IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN CRL.A. NO.1534/2015 (C) BETWEEN CHANDRA @ CHANDRASHEKARA S/O MAHADEVAPPA AGED ABOUT 27 YEARS HOUSE NO.196, 3RD CROSS MANANDAWADI ROAD SRIRAMPURA MYSURU – 570 008 ... APPELLANT (BY SRI. H. R. NARAYANASWAMY, ADV.) AND STATE OF KARNATAKA VIDYARANYAPURA P. S. REP. BY S.P.P. HIGH COURT BUILDING BENGALURU – 570 008 ... RESPONDENT (BY SRI. VIJAYAKUMAR B. MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE JUDGMENT OF CONVICTION DATED 28.05.2014 AND ORDER OF CONVICTION DATED 30.05.2014 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE MYSURU IN S.C.NO.295/2011 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant is the sole accused before the Court of Principal District and Sessions Judge, Mysore (for short, ‘trial Court’) in SC No.295/2011.
2. The appellant/accused has challenged the judgment of conviction and order of sentence passed against him by the trial Court in the said case for the offence under section 302 of IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.10,000/- with default sentence of simple imprisonment for three months.
3. The brief factual matrix of the case on hand are that, the accused is no other than the husband of the victim-Kamala. There is no dispute with regard to their marriage and after the marriage, they lived together for some time at various places. It is also not disputed that the deceased Kamala is the wife of the accused and she was not happy with her husband and has taken shelter in her mother’s house at that relevant point of time, ie., Particularly as on the date of the incident, the deceased was in the house of her mother (PW.3).
4. It is the case of the prosecution in the above said context that, on 15.08.2011, the accused himself has gone to Vidyaranyapura Police Station at Mysuru City and gave voluntary statement orally and that was reduced into writing as per Ex.P24 and the Police have registered a case in Crime No. 106/2011 for the offence punishable under section 302 of IPC and basing on the said information, the Police have investigated the matter and after thorough investigation, they found that the accused is the perpetrator of the crime, who committed the murder of his wife-Kamala as such, they laid the charge sheet against the accused. The accused was arrested on the date of his appearance before the Police ie., on 15.08.2011 at about 20.45 hours, at the time of registering a case against him. It appears since then the accused has been in custody.
5. After committal of the case, the trial Court after securing the presence of the accused, has framed charges against the accused for the offence punishable under section 302 of IPC.
6. The prosecution in order to bring home the guilt of the accused, examined as many as 22 witnesses as PW.1 to PW.22 and got marked Ex.P1 and P31 and the during course of cross-examination of Ex.D1 & Ex.D2 were also marked at the instance of the defence counsel and as many as 17 material objections are also marked as Mos. 1 to 17. The accused was also examined under Section 313 of Cr.P.C.. The Accused did not choose to adduce any defence evidence on his side. Therefore, on hearing both sides, the trial Court after appreciating the oral and documentary evidence, comes to the conclusion that the prosecution has proved the case against the accused beyond all reasonable doubt. Therefore, the trial Court has recorded the judgment of conviction and sentenced the accused as noted supra.
7. Learned counsel for the appellant has strenuously contended before the court that, the entire case of the prosecution revolves around the circumstantial evidence. The prosecution has mainly relied upon the voluntary statement of the accused and the first circumstance of recovery of the dead body at the instance of the accused. The second circumstance was that, the accused and deceased were last seen together and the accused has not given any explanation with regard to the death of his wife- Kamala. Thirdly, a strong motive relied upon by the prosecution is that, the accused had been suspecting the fidelity and conduct of his wife, as such, there is a strong circumstance is available against the accused.
7.1. Learned counsel for the appellant/accused has further contended that, though the prosecution has got examined 22 witnesses to lead evidence, many witnesses have turned hostile even to the above said circumstances. He drawn our attention to the statement of the accused to submit that, there cannot be recovery of the dead body at the instance of the accused, as it is evident from the records that, the Police knew the place where the dead body was found and as such it was not recovered at the instance of the accused. He would submit that the last seen together circumstance is concerned, some witnesses have supported the prosecution case, but their evidence is shaky. The learned counsel submitted that the independent witnesses sofar as this circumstance is concerned, have not supported the case of the prosecution. He would submit that the motive factor is a double edged weapon and there may be chances of falsely implicating the accused to the crime on the basis of the motive. He argued that though some materials are available on record to show that the accused and deceased were not happy with each other, it does not mean to say that, it operate as a strong motive to do away with the life of his wife. The learned counsel further submits that Perhaps after securing the dead body by the Police, the Police might have pitted up a case by creating evidence against the accused.
Therefore, for all these reasons, learned counsel for the appellant pleads for acquittal of the appellant.
8. Per contra, the learned Additional SPP has submitted before the court that, on over all analysis of the oral and documentary evidence on record, even considering the cross-examination of all the witnesses, there is a strong evidence against the accused that, he has last seen with the deceased on the date of the incident in the morning and there is no time gap between the accused and the deceased last seen together and the detection of the dead body by the Police. He further argued that the accused has not given any explanation as to what happened when he left the house along with his wife, whether he actually left the company of his wife etc,. Though the motive may not be a strong weapon to the prosecution, but in this particular case, invariably, all the witnesses have narrated that the accused was suspecting the fidelity and conduct of the deceased thinking that, she is having some illicit intimacy with the brother of the accused by Name Guruswamy. The learned SPP further submitted that accused must have committed the murder of his wife by taking her with him on the said ill-fated day. Therefore, there are some discrepancies, omissions and contradictions in the evidence of the prosecution witnesses and are not sufficient to throw the evidence which is strong enough to connect the accused persons. Therefore, the learned Additional SPP has pleaded for dismissal of the appeal.
9. In the wake of the above submission made by the learned counsels appearing on both sides, before adverting to the material evidence on record, we would like to have a cursory look at the evidence of the prosecution witnesses.
9.1 PW.1-Nayaz is no other than a friend of the accused. He was examined before the court to establish the circumstance of recovery of the dead body at the instance of the accused and also the Extra-judicial Confession made by the Accused No.1 and he is also a panch witness to Ex.P2. Though he has admitted his signature on Exs.P1 & 2, but he fully turned hostile to the prosecution. Even during the course of cross- examination by the prosecutor, he has not supported the case of the prosecution. It is shown to the court that, the evidence of PW.1 is very shaky, as he changes his version frequently as and when he feels so in order to create confusion. Therefore, the trial Court has come to the conclusion that he is not a trust worthy witness and the prosecution has to be laid against him for giving false evidence before the court. Be that as it may, at least his version showed that he is a false witness and for any reason his evidence should not be believed by the court.
9.2 PW.2-C. Chethan is the friend of PW.1. He supported the case of the prosecution with regard to the seizure of articles near the dead body.
9.3 PW.3-Mahadevamma is no other than the mother of the deceased and mother-in-law of the accused. She speaks about the motive and Extra- judicial Confession made by the accused before one Ramesh and recovery of the dead body and as well as identification of MOs. 1 to 16, which were said to have been seized at the spot by the Police.
9.4 PW.4-Ramesh was examined to prove Extra-judicial Confession. He has not supported the case of the prosecution.
9.5 PW.5-Parvathamma is the grandmother of the deceased ie., mother of PW.3. She spoke about seeing the accused and deceased together and further stated about them staying together in their house on the previous night and also stated that both left the house on the next day morning.
9.6 PW.6-H. Raghu is also another witness for last seen circumstance, but, he has not supported the case of the prosecution. Likewise, PW.7 – Sampath Kumar, is the owner of the house, in which PW.3, PW.5 and the deceased Kamala were all residing. He also supported the case of the prosecution with regard to the last seen theory.
9.7 PW.8-Shanthamma is a panch witness to inquest Mahazar (Ex.P5) and she identified her signature at Ex.P5(a). There is no necessity to discuss in detail the evidence of this witness, as there is absolutely no denial by the accused with regard to the death of Smt. Kamala. But, his defence was that, he was not responsible for the death of his wife. His defence is that, he never went or resided in the house of PW.3 either on the previous day of the incident or on the date of the incident and that he never took the deceased along with him. The evidence of PW.8 coupled with the evidence of PW.12-Dr.Kumar, who conducted Post Mortem examination on the dead body of the deceased as per Ex.P10, has categorically stated that there were three injuries found on the dead body of the deceased and there was strangulation of the neck of the deceased and the cause for death was due to strangulation with the help of a veil (MO.14). Ex.P11 is the opinion given by him regarding MO.14 (Veil).
9.8 Looking to the evidence of PW.8 and PW.12 there is absolutely no doubt that the prosecution has proved the homicidal death of the deceased beyond reasonable doubt.
9.9 PW.9-Shivanna is also another witness for last seen circumstance, but he has not supported the case of the prosecution.
9.10 PW.10-Lakshmi is no other than the daughter of PW.3, who was staying in the house PW.3 stated that she left her house as usual. She also supported the case of the prosecution with regard to the ill-treatment and harassment to the deceased by the accused and the motive factor and last seen circumstance of the deceased and the accused together.
9.11 PW.11-Nagaraju K.P. is the Junior Engineer PWD, Mysuru, who prepared the spot sketch as per Ex.P7.
9.12 PW.13-Chandrakanth, who speaks about the conduct of the accused. He has stated that, he has seen the accused immediately after the incident. But, he has also not supported the case of the prosecution.
9.13 PW.14-Mariswamy was also examined to establish the factum of last seen, but he has also not supported the case of the prosecution.
9.14 PW.15- Shivaram at the relevant point of time was working as a cashier in Shilpa Bar and Restaurant at Srirampura. He has stated that, he saw the accused on 15.08.2011. He further states that, the accused took one Brandi Bottle and other things on that day. But, he has also not supported the case of the prosecution.
9.15 PW.16-Yogesh Gowda is the photographer, who states about visiting the place along with the Police where the dead body was found and he took photographs (Exs. 15 to 19) and vediographed the place of incident and prepared the DVD as per MO.17 and produced them before the Police with a report as per Ex.P20.
9.16 As we have narrated, there is no dispute with regard to the death of the deceased and taking of the photograph and other things and they have no consequence on the facts of this case.
9.17 PW.17-Siddaraju is the sister’s husband of the deceased. He also spoken about the ill-treatment. But there is no specific incriminating evidence against the accused.
9.18 PW.18-H.S. Lokesh is the Police constable, who carried the FIR to the jurisdictional Magistrate.
9.19 PW.19-Sheela, who spoken about the previous registration of a case in NCR No.1166/2011 as per Ex.D1 against the accused on the complaint lodged by the deceased. Thereafter, she called the accused and the deceased to the Police Station and negotiated the dispute between them and both the accused and the deceased have consented to live together. Ex.P22 and Ex.P23 are the consent letters of the accused and deceased to the effect that they would not quarrel each other and they would lead happy life thereafter.
9.20 PW.20 Prabhuswamy is the ASI, who spoke about the recovery of the dead body at the instance of the accused.
9.21 PW.21-Harish Kumar is the Investigating Officer, who recorded the statement of the accused and recovered the dead body and suo-muto initiated the complaint against the accused in Crime No 106/2011 and conducted investigation and laid the charge sheet.
9.22 PW.22-Madhu is a panch to Ex.P20 with regard to seizure of DVD (MO.17) at the instance of PW.16.
10. Now the evidence of some of the witnesses required to be considered by this court.
11. As rightly contended by the learned counsel for the appellant, the entire case of the prosecution revolves around the circumstantial evidence. The prosecution has broadly projected the following circumstances for proof:
i) Voluntary statement of the accused and recovery of the dead body of the deceased at the instance of the accused.
ii) The accused and deceased were last seen together on the date of the incident and there is no explanation by the accused to that effect.
iii) Motive factor.
I. Recovery;
i) Sofar as recovery of the dead body at the instance of the accused is concerned, we are of the opinion that the prosecution has not proved this particular circumstance of recovery beyond reasonable doubt. Of course, PW.21 –Harish Kumar has deposed before the court that, on 15.08.2011, the accused has appeared before him and gave oral statement stating that, he has committed murder of his wife and threw the dead body near the Lingambudi Tank and it is also stated by the accused that the conduct of the deceased was not good and she had illicit intimacy with his brother–Guruswamy and in this context, there was a quarrel between him and his wife (deceased) and his wife has given two complaints against the accused and she has not co-operated with him and therefore, he has decided to do away with the life of his wife (deceased). In fact on 14.08.2011 when he had been to the house of his mother-in-law, he saw his brother Guruswamy and the deceased sleeping together. Therefore, he has decided to do away with the life of his wife and thereafter on 15.08.2011 at about 1.30 p.m., he took her near a vacant land and strangulated her neck with the help of the veil of the deceased and also cut her neck and committed her murder.
ii) The above said statement of the accused is not admissible in evidence as the same is hit by Section 25 of the Indian Evidence Act. Confession statement of the accused made before the Police Officer cannot be used for any purpose, either as corroborative or substantive evidence before the court unless any portion of the statement falls within the parameter of Section 27 of the Indian Evidence Act. Therefore, whatever the accused has stated before PW.21, that operates as confession statement and is not admissible and no court will allow such things to be proved on the basis of the voluntary statement of the accused. Therefore, bereft of the said statement of the accused, the prosecution has to independently establish the projected circumstance against the accused. The above said statement of the accused cannot be treated as corroborative evidence of the prosecution case, nor as substantive evidence, but can be taken into consideration till somebody sets the law into motion whether it may be the accused or any other person, for the purpose of registration of a case and for the purpose of investigating the matter. In this case, the Police came to know that a cognizable offence is committed, therefore, they have registered a case and proceeded to investigate the matter. Therefore, in this backdrop, we have to accept the statement of PW.21 that he registered a case on the basis of the statement of the accused and proceeded with the matter.
iii) It is worth to refer here the evidence of PW.21 coupled with document Ex.P24. PW.21 in categorical terms has admitted that, on the date of the incident, the accused came to the Police Station and gave his statement. Immediately, even before registering the case and without recording the voluntary statement of the accused and securing the presence of panch witnesses, in order to get confirmation of the said statement of the accused, he went to the spot and in fact, he has seen the dead body of the deceased with injury to the neck and thereafter, he deputed one Police Constable No.712 –Mr. Uttappa to take care of the dead body and came back to the Police Station and then registered a case against the accused and prepared the FIR and sent it to the Court. He also deposed that, he arrested the accused and thereafter recorded the voluntary statement of the accused and again he visited the spot along with panch witnesses in order to show that the dead body was recovered at the instance of the accused.
iv) Though the prosecution has examined two witnesses in this regard as PWs. 1 & 2, out of them, PW.1 has totally turned hostile and PW.2 has partially turned hostile and he was cross-examined by the prosecution, but in the course of cross-examination by the prosecutor, he admitted the above said factum sofar as going to the spot and recovering the dead body, by the Police at that time. But again when he was cross-examined subsequently, he turned hostile to the prosecution and supported the case of the accused stating that the Police have not recovered the dead body of the deceased at the instance of the accused and virtually denied the presence of the accused at that time.
v) The court found that these two witnesses viz., PWs. 1 & 2 have given false evidence before the Court. Therefore, the Court has initiated proceedings against them for perjury. This clearly goes to show that PWs. 1 & 2 though have supported the case of the prosecution to some extent, they found to be false witnesses before the court. Therefore, for no reasons, the evidence of these witnesses can be relied upon. Apart from the above, for any stretch of imagination, this court cannot form an opinion that the dead body was recovered at the instance of the accused, because the Police have neither recorded the voluntary statement of the accused nor arrested the accused. The accused was also not in the custody of the police and they have not secured the presence of any panch witnesses, but they alone went to the spot for the purpose of confirmation of the statement given by the accused.
vi) It is well founded principle of law that, whenever a report is lodged before the Police and if it is unambiguously disclose the commission of cognizable offence, it is the first duty of the Police officer to register a case against an known or unknown person and thereafter proceed to investigate the matter. If the said report does not disclose any cognizable offence, but still the Police officer suspects that any cognizable offence might have been committed, then he can register a case in NCR and proceed to enquire into the matter for the purpose of confirming himself whether any cognizable offence is committed or not, and thereafter, if he comes to know that, the cognizable offence is committed, then he can register a case.
12. In this particular case, according to the Investigating Officer and as per Ex.P24, it is clear that, there was a commission of cognizable offence, but the Police have neither registered a case nor recorded the voluntary statement of the accused, nor arrested the accused before they went to the spot to see the dead body. Therefore, it cannot be said that the Police were not knowing the place where the dead body was lying prior to the arrest of the accused and prior to securing the witnesses and going to the spot. Therefore, the Police knew about the dead body and thereafter they have registered a case and went to the spot. Hence, it cannot be conclusively said with all certainty that recovery of the dead body was only and exclusively at the instance of the accused. Therefore, we are of the opinion that the prosecution has not proved this circumstance of recovery.
II. Last Seen Theory – no explanation of the accused:
i) The prosecution has mainly relied upon the evidence of PW.3-Mahadevamma, PW.5-Parvathamma, PW.6-Raghu, PW.7-Sampath Kumar, PW.9-Shivanna and PW.10-Lakshmi and PW.14-Mariswamy so as to establish this particular aspect.
ii) Out of the above said witnesses, of course PW.6, PW.9 and PW.14 have turned hostile to the prosecution case. They are all witnesses who were not residing in the house of PW.3. It is the case of the prosecution that after the difference arose between the accused and deceased, the deceased Kamala started living in the house her mother (PW.3). The said house actually belonged to PW.7-Sampathkumar. Therefore, the inmates of the house are the proper persons to depose before the court, as to what has happened on the previous date or on the date of the incident. In this context, PW.3-Mahadevamma (mother of the deceased), PW.5-Parvathamma, the grandmother of the deceased, PW.7-Sampath Kumar (owner) and PW.10- Lakshmi, who is another daughter of PW.3, in their evidence have categorically stated that, on 14.08.2011 ie., on the previous day of the incident, the accused had gone to their house and he slept in the house along with the deceased on that particular day. On the next day morning, PW.3 as usual at about 7.30 am., went to her cooking work and other witnesses- PW.5 and PW.10 were present in the house. These two witnesses have categorically stated that the accused and the deceased together left the house at about 9.00 am., and they did not return to the house till 4.30 p.m. At 4.30 p.m., when PW.3 (mother of the deceased) returned to the house, enquired about the deceased and then PW.5 and PW.10 told PW.3 that the accused and deceased went together in the morning and they did not return to the house. PW.3 has further deposed that, she came to know from one of the residents of their colony that, the accused was standing near a bakery and when she went to the accused who was standing near the Bakery, the accused disclosed that he has left the deceased in a his paternal uncle’s house. This factum has not been proved to the satisfaction of the court that the accused has stated so to PW.3. Nevertheless these witnesses who are the inmates of the house have categorically stated about the presence of the accused on the previous day night and taking the deceased on 15.08.2011 along with him in the morning at about 9.00 ‘O’ clock. In the course of cross-examination of these witnesses, the motive factor and as well as last seen circumstance has been denied by the accused. It is suggested to these witnesses that the accused never visited the house of PW.3 either on the previous day or on the day of the incident. But, those suggestions have been denied by these said witnesses.
iii) Very strangely it is suggested to PWs. 3, 5, 7, 10 that one Mr. Siddaraju (PW.17), who is the sister’s husband of the deceased was there in the house and he was closely moving with the deceased and he actually took the deceased on the morning of the ill- fated day along with him and thereafter, he also did not return and he informed the inmates of the house as to what happened to the deceased Kamala. Therefore, these two aspects clearly discloses that the accused wants to plead alibi that he was not present in the house of PW.3 on the date of incident or on the previous day of the incident, but, PW.17, was present and he took the deceased along with him. Therefore, according to the accused, the fact of the deceased Kamala was residing in the house of PW.3 is not disputed. Though it is suggested to the above said witnesses that, PW.17-Siddaraju was very much present in the house of PW.3 and he took the deceased along with him, but in the course of cross-examination of PW.10 it is suggested that, PW.17-Siddaraju had not been to the house of PW.3 on 15.08.2011. Therefore, the accused has blowed hot and cold together at once. At one breath he suggests that PW.17 was not at all present in the house and in another breath, he says that he (PW.17) took the deceased along with him on that particular day.
iv) Be that as it may, the court has recorded 313 statement of the accused. At question No.67, the court has asked, whether the accused has got anything to say with regard to the prosecution case, he said that, ‘on that particular day, when he was going out from the house, PW.17- Siddaraju and the deceased Kamala were there in the house’. This clearly indicates that the accused was also very much present in the house of PW.3 and when he left the house, according to him, he never took kamala along with him, but PW.17-Siddaraju and Kamala were there in the house. Therefore, this statement of the accused amply clarifies the circumstance that, the accused was very much present in the house of PW.3 on the date of the incident.
v) PW.7 is an independent witness, who is the owner of the house and who has nothing to say falsehood before the court, because he is an independent witness. He deposed that, on that particular day, when he went near the house of PW.3 on his scooter, he saw the accused and his wife Kamala were moving in front of their house and he in fact enquired them and for that, he told him that they were proceeding towards the city and thereafter, he went off from that place and next day, he came to know about the death of the deceased Kamala. In the course of cross-examination, though it is suggested to PW.7 that, he has not seen the accused and the deceased on that day, but he strongly reiterated that, on that particular day, he saw the grand mother of the deceased and sister of the deceased by name Latha in the house and in front of the house the deceased and accused were standing together. Nothing has been elicited as to why this witness has to lie before the court. There is absolutely no material to prove ill-will or hatredness between this witness (PW.7) and the accused and no such evidence is forthcoming in the cross examination of this witness. More over, he is as good as an independent witness. It probabalies that as the owner of the house, he might have gone near the house of PW.3 at that point of time. Therefore, neither he can be called as a chance witness nor as a witness deposing falsehood before the court. Therefore, looking in to the strong evidence available on record, we are of the opinion that, the prosecution has established the circumstance of last seen of the accused and deceased together in the morning on the date of incident ie., on 15.08.2011.
vi) It is the case of the prosecution that the incident of death of the deceased has occurred on 15.08.2011 at about 1.30 pm. However, the dead body was detected at 11.30 pm by the Police. Therefore, there was no long time gap between the detection of the dead body of the deceased and also the accused and the deceased were last seen together. Of course, we can understand that, if there was any long time gap between the accused and the deceased going together and detection of the dead body, as the time gap is short, it throws the responsibility on the accused to explain as to what exactly happened on that particular date. When it is proved to the satisfaction of the court that the accused and deceased were last seen together, Section 106 of the Indian Evidence Act comes into play. When it is in the exclusive knowledge of the accused, he has to explain as to what happened on that particular day, when particularly he went along with the deceased. If he fails to give any explanation, that can be treated as an additional link to the last seen circumstance in order to point-out the accused as the perpetrator. In this case, except accepting the relationship between the accused and the deceased, the accused has denied the whole case of the prosecution and he has not given any explanation before the court with regard to what has happened actually when he took his wife along with him on that particular day at 9.00 a.m. Therefore, in our opinion, his non-explanation points towards the accused that he must be the only person committed the murder.
III Motive:
i) The last but not least, the ‘motive factor’. Of course, the motive, as rightly argued, is a double edged weapon. If the prosecution is able to prove the case other than the motive factor, the motive can be used for the purpose of strengthening the case of the prosecution for the purpose of assessing the gravity of the case and the sentence imposed upon the accused. In this particular case, the case of the prosecution is that, the accused and the deceased were not happy with each other. After the marriage, they lived happily for some time and thereafter, the accused started suspecting the conduct and fidelity of his wife- Kamala (deceased). He was also suspecting that the deceased was having some illicit intimacy with one Guruswamy, who is no other than the brother of the accused. Through-out the evidence of the prosecution witnesses, as we have observed, the cross examination was pointing towards the fact that, the deceased was also very closely moving with PW.17-Siddaraju and he was often taking her together with him and on that day also the said PW.17 has took her in the morning hours and they did not come back to the house. In this context, it is stated by all the witnesses that the deceased had given complaints against the accused and the accused had conceded his fault and undertaken that he would take care of his wife etc. But in spite of that, the fact remained that they did not pull on their life together living under a common roof. Therefore, inevitably the deceased sheltered herself in the house of her mother (PW.3). It is the further case, that the accused often visiting the house of PW.3 and tried to patch up the differences between himself and his wife and all the witnesses have also tried for the same. In the cross examination of the accused, virtually this factum has been admitted by the accused. In the cross examination of PW.3, the suggestion has been made on two documents, which were marked as Exs. D1 and D2. It is suggested to this witness (PW.3) that, the accused and deceased were not happy with each other and the accused was suspecting the conduct of the deceased and the deceased would like to give divorce to her husband. In this context, she lodged a complaint with regard to the ill-treatment and the Police were searching for the accused and in fact, subsequently, the accused appeared before the Police Station and he has given an undertaking that he would take care of his wife. It is also suggested that, on 12.05.2011 ie., about three months prior to the incident, a complaint was lodged as per Exs. D1 and D2 and the accused has given an undertaking before the Police consenting to take care of his wife-Kamala. In this context, the prosecution has also examined PW.20-Sheela, who has registered complaints earlier against the accused as per Exs. D1 and D2 in NCR 166/2011 and also regarding consent letters given by both the accused and deceased as per Exs.P.22 and P.23. Therefore, the above said aspect prove that the accused and the deceased were not happy with each other and in fact the accused was suspecting the conduct of the deceased and on various occasions, he was telling before PW.1 that the accused had been telling that he would like to commit murder of his wife. But, this witness has turned hostile to the prosecution, but his evidence corroborates with the evidence of other witnesses sofar as this aspect is concerned. In the course of cross-examination of witnesses (PW.1) by the prosecutor, he has stated that on 15.08.2011, the accused came to him at about 4.00 p.m. told him that he would commit murder of his wife.
He further stated that the accused was drunk at that time and since one year he has been stating in the same manner, therefore, this witness has slapped him twice on his face and went away. The cross- examination sofar as this aspect is concerned, is not much disputed. But the dispute is only to the effect that, the accused did not tell before him that he has committed the murder of his wife. Except that, the accused meeting this witness and telling regarding dispute between himself and his wife is not disputed, rather this particular aspect is corroborated by the evidence of the other witnesses. Therefore, the evidence of the hostile witnesses need not be altogether discarded. The court has to visualize as to whether the other evidence of the prosecution, in any manner corroborates the portion of the evidence, that can be relied upon by the court. Therefore, looking to the above said evidence, it is clear that the accused was waiting for an opportunity to do away with the life of his wife, if time permits. Accordingly, on that particular day, the accused took the deceased along with him and strangulated her with the help of her veil and committed murder of the deceased.
13. From the above circumstances, we are of the opinion that the prosecution unerringly proved the guilt of the accused. Of course the prosecution has projected many number of circumstances. It is the basic principle of law that, in the case of circumstantial evidence, the prosecution has to establish the circumstance by means of cogent, convincing and firm evidence, from which circumstances, inference of guilt is sought to be drawn. Nevertheless, it is not that, if few circumstances are not proved by the prosecution, altogether the case of the prosecution has to be thrown out. On the other hand, if prosecution proves circumstances and if such proven circumstances completes the link or the chain and it points towards the guilt of the accused, then there is no hurdle for the Court to draw an inference of guilt against the accused.
14. In this particular case, as we have discussed, the circumstances of the accused and deceased last seen together and non-explanation of the accused, and existence of strong motive, are the three circumstances, which have been strongly and unerringly established by the prosecution, which virtually completes the chain of circumstances against the accused to draw an inference of guilt against the accused.
15. In the above facts and circumstances of the case, we do not find any strong reason to interfere with the judgment of conviction and sentence passed by the trial Court. Hence, the appeal is devoid of merit and as such, we proceed to pass the following:_ ORDER The appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE KGR*