IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 PRESENT THE HON'BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.845 OF 2016 C/W CRIMINAL APPEAL NO.597 OF 2016 IN CRL.A. NO.845 OF 2016:
BETWEEN:
MADHU S/O. MANTAIAH @ MANTEGOWDA, AGED ABOUT 26 YEARS, RESIDING AT NO.607, ‘MANTESWAMY KRUPA’, OPPOSITE CAUVERY KALPATHARU, GRAMEENA BANK, VIVEKANANDA NAGAR, T. NARASIPUR TOWN, MYSORE DISTRICT.
... APPELLANT AND:
(BY SRI HASHMATH PASHA, SENIOR COUNSEL, FOR M/S. HASHMATH PASHA & ASSOCIATES) STATE OF KARNATAKA BY T. NARASIPURA POLICE, MYSORE DISTRICT.
REPRESENTED BY STATE PUBLIC PROSECUTOR.
... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 18-3-2016 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, IN S.C. NO.303 OF 2012 CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 201 READ WITH SECTION 34 OF THE I.P.C.
IN CRL.A. NO.597 OF 2016:
BETWEEN:
MANTAIAH @ MANTEGOWDA S/O. SIDDEGOWDA, AGED ABOUT 52 YEARS, RESIDING AT NO.607, ‘MANTESWAMY KRUPA’, OPPOSITE KAUVERY KALPATHARU GRAMEENA BANK ROAD, VIVEKANANDA NAGAR, T. NARASIPUR TOWN.
... APPELLANT (BY SRI HASHMATH PASHA, SENIOR COUNSEL, FOR M/S. HASHMATH PASHA & ASSOCIATES) AND:
THE STATE OF KARNATAKA BY T. NARASIPURA POLICE, MYSORE DISTRICT, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE.
... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 18-3-2016 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS COURT, MYSURU, IN S.C. NO.51 OF 2013 CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 READ WITH 34 OF THE I.P.C.
THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
J U D G M E N T The above said two appeals are arising out of common judgment passed by the V Additional District and Sessions Judge, Mysuru, in Sessions Case No.303 of 2012 dated 18-3-2016. Accused No.1 has preferred an appeal before this Court in Criminal Appeal No.845 of 2016 challenging the judgment as he was convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code (for short, “the I.P.C.”). However, the appellant in Criminal appeal No.597 of 2006 originally filed before the learned Single Judge as accused No.2 was convicted for the offence punishable under Section 201 of the I.P.C. and acquitted for the offence punishable under Section 302 of the I.P.C. As both the cases are arising out of common facts and also legal aspects, they are taken up together for disposal.
2. The learned Sessions Judge has convicted accused No.1 for the offence punishable under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.25,000/- and also convicted him for the offence punishable under Section 201 of the I.P.C. and sentenced him to undergo imprisonment for 2 years and to pay a fine of Rs.5,000/-. Accused No.2 was convicted for the offence punishable under Section 201 of the I.P.C. and sentenced him to undergo imprisonment for 2 years and to pay a fine of Rs.5,000/- with default sentences. Aggrieved by the judgment of conviction and order of sentence, both the appellants have preferred the appeals.
3. Sri Hashmath Pasha, learned Senior counsel for the appellants, has submitted before the Court that, almost all the witnesses examined on behalf of the prosecution have turned hostile including the mother and the brother of the deceased. There is no recovery at the instance of the accused. The circumstantial witnesses, as projected by the prosecution, have also turned hostile to the prosecution. The only link, relied upon by the Sessions Judge is that, the deceased and accused Nos.1 and 2 were ordinarily residing together. Therefore, they have not explained how the death has occurred on the particular date, when particularly the death of the deceased was due to smothering and strangulation. Therefore, taking series of non-explanation by the accused, the trial Court has convicted the accused persons for the above said offences. Even the trial judge has acquitted accused No.2 for the offence punishable under Section 302 of the I.P.C. The same yardstick has not been extended in so far as accused No.1 is concerned. Therefore, there is absolutely no evidence to connect the accused persons to the case. There is absolutely no evidence to show that any of the accused persons were present at the relevant date, time and place of the incident. Therefore, the prosecution itself has not established its case beyond reasonable doubt. Therefore, the trial Court could not have relied upon Section 106 of the Indian Evidence Act, 1872, for the purpose of drawing an inference without any proof therein. It is only a moral conviction recorded by the trial Court drawing some inference which is illegal and therefore, the observation made by the trial Court deserves to be set at naught. Hence, he prays for acquittal of the accused.
4. Sri Vijayakumar Majage, the learned Additional State Public Prosecutor, submits that though the prosecution witnesses, almost all of them, have turned hostile, nevertheless the factum of accused Nos.1 and 2 and the deceased were residing together under a common roof is not disputed. Everyday, accused Nos.1 and 2 were there with the deceased in the house. Therefore, it clearly discloses that on the particular date also, they were residing and there was no other person to commit the offence and not even know, how the death has occurred in the house on the particular date and time. Therefore, the accused were residing with the deceased and drawing of the presumption under Section 106 of the Indian Evidence Act is not erroneous in the absence of any explanation by the accused. Therefore, he submitted that the trial Court has in detail considered the above factual and legal aspects, convicted the accused persons and sentenced them accordingly. There is absolutely no room to interfere with the judgment of conviction passed by the trial Court. Therefore, he pleaded for dismissal of the appeals.
5. Before adverting to the above said rival contentions by the learned counsel, we feel just and necessary to have a brief factual matrix of this case.
6. One Sri Guruswamy, who is none other than the paternal uncle of the deceased-Sowmya, has lodged a report as per Ex.P.1 which reveals the factual matrix of this case. It is the case of the prosecution that, the deceased was given in marriage to accused No.1 and their marriage was performed on 3-11-2011 at Mahadeshwara Smaraka Bhavan and at that time, as demanded by the accused persons, they have given Rs.3,00,000/- and 100 grams of gold and performed the marriage. After the marriage, some days later, the accused and other members of the family have started ill-treating and harassing the deceased in demand of further dowry, etc. Accused No.1 also telling that actually he was not willing to marry the deceased, but due to force of his father, he married her, and also demanded for additional dowry, etc. In this context, he was mentally and physically ill-treating and harassing the deceased. On several occasions, due to conciliation and advise of the elders, accused No.1 and the deceased were living together. In this background, it is stated that on 12-5-2011, in the night hours at 9:00 p.m., Mr. Guruswamy has received information from one Nagaraju stating that, the deceased was done to death, her dead body is in the house of the accused. Immediately, the complainant and others went to the house of the deceased and found dead body of the deceased on a divan cot. She had also sustained injury on her neck. Therefore, suspecting the conduct of accused Nos.1 to 3, the complainant has lodged a complaint for taking appropriate action by the Police. On the basis of above said report, the Police have registered a case in Crime No.137 of 2012 for the offences punishable under Sections 304B and 302 read with Section 34 of the I.P.C and Sections 3 and 4 of the Dowry Prohibition Act and started investigation. During course of investigation, the Police found that accused Nos.1 to 3 are responsible for the death of the deceased. Police have submitted the charge- sheet and the accused were also arrested in connection with this case and the case was committed to the Court of Sessions.
7. The learned Sessions Judge, after securing the presence of the accused persons, framed charges against them for the offences punishable under Sections 498A, 304B, 302 and 201 read with Section 34 of the I.P.C. as well as for the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act. After framing of the charges, the prosecution in order to bring home the guilt of the accused examined as many as 32 witness as P.W.1 to P.W.32, got marked Ex.P.1 to Ex.P.65 and M.Os.1 and 2.
8. The accused was also examined under Section 313 of the Code of Criminal Procedure and they did not choose to lead any evidence on their side. Therefore, after hearing both side, the learned trial Court has come to the conclusion that, the prosecution has proved the case beyond reasonable doubt so far as accused No.1 is concerned for the offences punishable under Sections 302 and 201 of the I.P.C. and so far as accused No.2 is concerned for the offence punishable under Section 201 of the I.P.C. and also held that, the prosecution has not proved the case against accused No.3. Accordingly, accused No.3 was acquitted.
9. Before adverting to the material evidence on record for discussion, we would like to have a brief cursory look at the evidence of the prosecution witnesses.
9.1 P.W.1-Guruswamy, in fact, has lodged a report as per Ex.P.1 and present while conducting spot mahazar as per Ex.P.2 and identified Exs.P.11 to 15 photographs, but he has not supported the case. During the course of evidence, he has turned hostile to the prosecution case even with reference to the conduct of the accused or demand of any dowry or involvement of any person in the crime.
9.2 P.W.2-Nagaraju is also senior uncle of the deceased, but he also turned hostile to the prosecution with reference to the conduct of the accused and the deceased prior to and at the time of incident.
9.3 P.W.3-Nagaraju is the cousin of the deceased. He states that, the deceased was his senior aunt’s daughter. He only deposed that, the deceased died in the house of the accused. He does not know anything as to how the death has occurred. He has also not supported the case of the prosecution.
9.4 P.W.4-Rajashekar is another senior uncle of the deceased, who has also deposed that, he does not know the cause of death of the deceased.
9.5 P.W.5-Mariswamy is a resident of same village of the deceased and he has also stated that, he knew the deceased, who was given in marriage to accused No.1 and he has stated that, he was examined, after one week of the death of the deceased. He was examined to establish that the Police have arrested accused No.1 and seized some gold articles under Ex.P.16. But he has also not fully supported the case and turned hostile.
9.6 P.W.6-Kempegowda has also stated that, he does not know anything about the death of the deceased. He was examined to establish the spot mahazar-Ex.P.2, but he has also not supported the case of the prosecution.
9.7 P.W.7-Kondegowda is also from the same village. He has also not supported the case of the prosecution. Though some of the witnesses are residing in the same village, who are supposed to know about the movements of the accused, have not supported the case of the prosecution.
9.8 P.W.8-Hucchegowda is also a witness examined with reference to the previous conduct of the accused in demanding dowry and also about the incident and suspecting the hand of the accused in the death of the deceased, but he has turned hostile to the case of the prosecution.
9.9 P.W.9-Mahadeva is also similarly examined to establish the demand of dowry and also conduct of the accused, but he also turned hostile to the case of the prosecution. He has actually seen the dead body of the deceased, but he did not see any injury on the dead body.
9.10 P.W.10-Puttegowda is also examined for the same purpose with regard to dowry and other things, he has also not supported the case of the prosecution.
9.11 P.W.11-Siddaiah is the brother of accused No.2. He also turned hostile to the case of the prosecution.
9.12 P.W.12-Jayamma, who is none other than the close relative of the mother of the deceased, examined with reference to demand of dowry prior to the marriage, but she has also not supported the case of the prosecution.
9.13 P.W.13-Nanjundegowda is also close relative of the deceased, but he has also not supported the case of the prosecution to any extent.
9.14 P.W.14-Mahesha is also a relative. He has also not supported the case of the prosecution to any extent.
9.15 P.W.15-Mahadevaswamy is the person, who was residing in the same village, particularly in the same lane, where the accused and the deceased were residing. He has also not supported the case of the prosecution to any extent with reference to the conduct of the accused, prior to the marriage or on the date of the marriage.
9.16 P.W.16-Mahadevanna has also stated in similar line that, he does not know anything about the death of the deceased.
9.17 P.W.17-Veeresha is also a witness to Ex.P.36, which is the inquest report. He has not supported the case of the prosecution. Though he has admitted his signature to Ex.P.16, but he has stated that he has signed the mahazar in the Police Station.
9.18 P.W.18-Mahadeva is also a witness to Ex.P.16, Ex.P.10 and Exs.P.21 to 23. He says that, he does not know why he has signed the documents. It is suggested in the course of cross-examination that, though he has stated that he has signed the mahazar in the Police Station, but he has stated that, the Police have not given any notice to him, but the accused took the Police to his house and the Police have recovered some articles in the said house, but he has not identified any article, except his signature to Ex.P.16, Ex.P.10 and Exs.P.21 to 23.
9.19 P.W.19-Shivaraja is also another inquest panch. He has also turned hostile to the case of prosecution.
9.20 P.W.20-Rathnamma is another important witness, who is none other than the mother of the deceased. For the reasons best known to her, she has also not supported the case of the prosecution. She has specifically stated that, she does not know anything about demand of dowry or gold articles from the accused and she also does not know as to how the death of the deceased occurred. She further deposed that, the deceased has never complained anything about her husband. She got to know that her daughter has committed suicide and she has seen the dead body of the deceased, but she has not implicated any person making any allegations against them.
9.21 P.W.21-Kumara is also another inquest panch. He has also not supported the case of the prosecution.
9.22 P.W.22-Somshekar is the brother of the deceased, who was examined before the Court with regard to similar aspect to prove that, the accused have demanded dowry, etc. but he has not supported the case of the prosecution. He has specifically stated that, when he went to the house, the accused were not in the house and he found the dead body of the deceased in the house, but there were no injuries on her and that, he does not know why she has committed suicide.
9.23 P.W.23-Nanjunda is the friend of accused No.1, who was examined to establish before the Court that, on the particular date, accused No.1 had visited the house of this witness. He has admitted that, on the date of incident, this witness and accused No.1 had been to Muddubeeranahundiya Gate for the purpose of looking a land and thereafter at 8:00 p.m., accused No.1 left the house of this witness. Except this, he has not stated anything about the conduct of the accused. It is the case of the prosecution that, the accused wanted to sell the property of his father-in-law, therefore, he has taken this witness. To that extent, he has turned hostile.
9.24 P.W.24-Basavanna is the grand-father of the deceased. In fact, he has also not supported the case of the prosecution, he turned hostile. Except admitting that, he came to know about the death, went to the hospital and saw the dead body of the deceased.
9.25 P.W.25-Kalimuthu is the witness examined by the prosecution to show that, he had purchased the land from the father of the deceased and suggestions have been made that, the accused persons have been ill-treating and harassing the deceased, but he denied the said allegations and turned hostile to the case of the prosecution.
9.26 P.W.26-Vishwanath is the friend of accused No.1. He has also stated that, he is the resident of Musuvinakoppalu. On the date of the death of the deceased, accused No.1 had been to Kalihundi Village along with this witness and stayed up to 2’O clock and thereafter, the accused took this witness to Mudubeeranahundi Village to show the site belonging to his father-in-law stating that his wife is also having a share in the property. Except admitting that, the accused has taken this witness to Mudubeeranahundi, other aspects are concerned, he has not supported the case of the prosecution. It is also the case of the prosecution that, after the accused committing the murder of the deceased, this witness has told accused No.1 to surrender before the Police, so that, he can save his sister going to jail. But all these suggestions have been denied during the course of cross-examination. As could be seen from the cross-examination portion, this witness appears to have not admitted anything about the incriminating material against the accused.
9.27 P.W.27-Jawaraiah, Police Constable, was deputed to guard the dead body of the deceased in the house of the accused. He was there, when the inquest was conducted by the Executive Magistrate and thereafter, he has taken the body of the deceased to the Government Hospital for Post- Mortem examination and after Post-Mortem examination, he handed over the dead body to the relatives of the deceased.
9.28 P.W.28-Dr. Lokeshwari, who conducted Post-Mortem examination on the dead body of the deceased. She has given the opinion as per Ex.P.45 and Ex.P.43, which we will discuss little later.
9.29 P.W.29-Javaregowda is the Taluka Executive Magistrate, who conducted the inquest mahazar-Ex.P.36 and Exs.P.11 to 15 are the photographs of the deceased taken at the time of inquest mahazar.
9.30 P.W.30-Vijay Kumar, Deputy Superintendent of Police, who conducted investigation and filed the charge-sheet.
9.31 P.W.31-Javaraiah, Police Constable, who made efforts to apprehend accused No.2.
9.32 P.W.32-Santhosh Kashyap, Police Sub- Inspector, who registered a case against the accused on the report submitted by P.W.1 as per Ex.P.1 for the above said offences.
10. After careful scrutiny of the entire material on record, it shows that almost all the witnesses have turned hostile to the case of the prosecution. The prosecution has cross-examined the witnesses, but nothing worth has been elicited, except putting suggestions to these witnesses as to what they have stated before the Police and marking the contradicted portion during the evidence of these witnesses. Therefore, the Court has to see on what source, the trial Court has convicted the appellants for the above said offences. In order to ascertain, whether the said observation and the appreciation by the trial Court is proper and correct, the trial Court has relied upon the evidence of the Doctor to come to the conclusion that it was a homicidal death occurred in the house of the accused when accused Nos.1 and 2 and the deceased were residing together. In this context, whether the accused and the deceased were together at the relevant date and time is an important aspect to be considered by this Court. The trial Court has to come to the conclusion that, the death occurred due to strangulation without interference of the third party. Therefore, it was a homicidal death. In this case, the Court has to see the evidence of the Doctor with reference to this particular aspect. Of course, there is much dispute by the accused with regard to the death of the deceased in the house of the accused, but some of the witnesses have stated including relatives of the deceased, mother, brother and uncles of the deceased that, she has committed suicide in the house of the accused. But the Court has to draw an inference on the basis of the injury found on the dead body of the deceased and the opinion of the Doctor. The prosecution has proved with regard to the homicidal death of the deceased. Now, we would like to consider the evidence of the Doctor, who has given the Post-Mortem examination report and opinion with regard to whale (duppata) seized in this case and also the Court has to see the opinion with reference to M.O.2-saree seized by the prosecution.
11. P.W.28-Dr. Lokeshwari has categorically stated that, she has found as many as six injuries on the dead body, i.e. contusion present below the angle of mandible on the right and left side, extensive contusion present above and below the right and left elbow joint, etc. She has also stated that, after dissection of the neck, she found contusion and ecchymosis underneath the ligature mark with contusion of strap muscles of the neck and fracture of thyroid cartilage on right side. After examining the dead body, the Doctor has given the opinion that death of the deceased was due to asphyxia as a result of strangulation. She has also given opinion on 20-6-2012 that, the injuries found on the neck could be caused by means of strangulation with the help of a whale like M.O.1 and accordingly, she gave the opinion that, if a person is strangulated with the help of M.O.1, such death could be caused. She furnished the Post- Mortem examination report as per Ex.P.43 and also gave opinion with regard to whale as per Ex.P.45. In the course of cross-examination, she has admitted that, the injuries which are mentioned in the Post- Mortem report would also be caused in the case of suicidal death. Further, the ligature marks normally found in the case of strangulation is transverse and such ligature marks are rarely found in the suicidal death. With regard to M.O.2-saree, Doctor has admitted that if a person decides to hang herself with a nylon saree and the nylon saree slips while committing suicide, there is chance of two ligature marks as found in this case at Sl. Nos.1 and 6 of the Post-Mortem examination report. She also admitted that M.O.2 was not sent for her inspection and opinion. M.O.2 is a nylon saree, it is worth to mention here that if M.O.1-whale is used for the purpose of strangulating a person, normally threads of said cloth would imprint on the neck of the deceased. If a person commits suicide with the help of a ligature like M.O.2, there are chances of injuries as mentioned by her in the Post-Mortem examination. It is categorically admitted that, such marks similar to threads of M.O.1 were not found in the neck of the deceased. Therefore, on the basis of the above said circumstances, the Doctor has stated that, she cannot with all certainty say whether the death was due to strangulation or due to suicide hanging.
12. Learned Additional State Public Prosecutor in the course of re-examination suggested that, injury Nos. 2 to 5 found on the deceased would also be caused while the dead body being shifted from one place to another and that, opinion was given by the Doctor by imagination. Therefore, looking to the evidence of the Doctor, there is no consistency or conclusion in the evidence of the Doctor, of course, it is the opinion given by an expert. The Court has to visualise the entire surrounding circumstances and then, draw an inference that prosecution has proved the homicidal death of the deceased. As could be seen from the evidence of the Doctor, there is serious doubt expressed by the Doctor with regard to ligature used for the purpose of hanging or for the purpose of strangulation. It is categorically stated that, the injury found on the neck of the deceased though may be caused if M.O.1 is used for strangulating, but she has also stated that, there is possibility of using M.O.2 for the purpose of hanging herself. Therefore, under the above said circumstances, the trial Court, in fact, has not given the benefit of doubt regarding the cause of death as expressed by the Doctor while giving findings with regard to homicidal death of the deceased. It is well recognised principle of criminal jurisprudence that, if the benefit of doubt is reasonable in nature, it should be given in favour of the accused and if two opinions are available, on the basis of the evidence of the Doctor, normally the opinion which favours the accused has to be preferred, if no other corroborative evidence to strengthen the other view. Therefore, we are of the opinion that, the findings given by the trial Court, with regard to homicidal death of the deceased, is also not proper and correct.
13. In this context, it is worth to refer a decision of the Hon’ble Apex Court in the case of JOSE ALIAS PAPPACHAN v. SUB-INPSECTOR OF POLICE, KOYILANDY AND ANOTHER reported in (2016) 10 SCC 519, wherein it has been observed at paragraph No.57 that, “the medical evidence as elaborated hereinabove also does not decisively establish the case to be of homicidal hanging. The unchallenged expositions of the doctor performing the post-mortem examination highlighting the absence of the characteristic attributes attendant on death due to homicidal hanging following strangulation further reinforce the possibility of suicide. The absence of definite medical opinion about the homicidal death of the deceased in our comprehension is a serious setback to the prosecution.
Therefore, we are of the opinion that, the benefit of such doubt ought to have been extended to the accused by the trial Court.”
14. Yet another strong circumstance relied upon by the trial Court is ordinarily, who were all residing in the house of the accused. Of course, there is no dispute that accused Nos.1 and 2 and deceased were living together under a common roof. It is admitted fact that, accused No.3 was not residing ordinarily with accused Nos.1 and 2 and the deceased. On that ground, the trial Court has acquitted accused No.3. Now the question arises just because accused Nos.1 and 2 ordinarily resided with the deceased is sufficient to draw an inference that accused persons were present on the material date, time and place. It is the case of the prosecution that, accused Nos.1 and 2 were very much present at the time of the incident and both of them strangulated the deceased, shifted the deceased to the divan cot and therefore, both of them must have committed the offence punishable under Section 302 of the I.P.C.
15. In this context, the trial Court has relied upon a decision of the Hon’ble Apex Court, particularly reported in (2007) 1 SCC (criminal) page-
80 between Thrimukh Maroti Kirakan Vs. State of Maharashtra wherein Apex Court has observed that:
“17. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.”
16. It was also observed in another decision of the Hon’ble Apex Court reported in AIR 1972 SC 2077 in the case of Nika Ram Vs. State of Himachal Pradesh, wherein it was observed that:
“The fact that the accused alone was with his wife in the house when she was murdered there with ‘Khokhri’ and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt.”
17. The trial Court also relied upon the decision reported in (1992) 3 SCC 106 in the case of Ganeshlal Vs. State of Maharashtra, wherein it was held that:
“The appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.”
18. In this context, it is also worth to refer a decision of the Apex Court reported in (2016) 10 Supreme Court Cases 519, between Jose alias Pappachan Vs. Sub Inspector of Police, Koyilandy and Another, as noted above, whereas the Apex Court has dealt with similar circumstances wherein the factual matrix of the case also little bit important. The case of the prosecution in the said case was that, the appellant along with his brother, were indicted under Section 498-A/Section 302 IPC read with Section 34 of IPC for having murdered his wife. The trial Court however, acquitted both of them of the charge under Section 498-A IPC. The co-accused was also acquitted for the other charge. But the appellate Court convicted the appellant under Section 302 IPC. In that case also, the accused and his wife were ordinarily residing together. Taking into consideration the above said factual aspects, the Apex Court has observed with reference to the case of the prosecution at paragraph-52 of the said judgment which reads thus:
“52. The evidence of the eye witnesses when considered in conjunction with the testimony of the doctor does not link the appellant directly or indirectly with the actual act leading to the unnatural death of the deceased. In the absence of any persuasive evidence to hold that at the relevant time the appellant was present in the house, it would also be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act. The consistent testimony of the appellant and his son to the effect that after alighting from the bus on their return from Potta, the deceased was made to a accompany DW1 back home while the appellant did go in search of labourers for works in his compound on the next day and that thereafter till the time DW1 had departed for his ancestral house, the appellant did not return home, consolidates the defence plea of innocence of the appellant.”
19. It is clear from the above said dictum of the Hon’ble Apex Court that in the absence of any persuasive evidence to conclude that at the relevant point of time, the appellant was present in the house and the incident happened, it would be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act.
20. In this background, this Court has to see whether any material available or probably would have been produced by the prosecution in this regard. There is no proof before this Court by the prosecution that, accused Nos.1 and 2 were actually present at the relevant time when the incident took place in the house. The prosecution examined PW.15 who was residing in the same lane, where accused No.1 and deceased were residing together.
21. PW15-Mahadevaswamy, who has categorically stated that the house of accused No.2 and house of this witness are situated in the same lane/road. But he turned hostile to the prosecution so far other aspects are concerned. At least, during the course of cross examination, it is not even suggested whether he saw the accused persons in the house at the relevant point of time or not. No other neighbors of the accused have been examined before the Court to show that, at the relevant point of time or at least soon before the death of the deceased, the accused Nos.1 and 2 were found in the said house.
22. On the other hand, the prosecution has relied upon the evidence of PW.23-Nanjunda.M who has stated that on the particular day at about 4 pm, accused No.1 had been to the house of this witness at T. Narasipura Village and both of them had been to Muddubeeranahundi gate and came back at about 8.00 p.m. and thereafter, the accused left the house of this witness. The trial Court has drawn an inference that, after leaving the house of PW.23, accused No.1 must have gone to his house and therefore, drawn the inference that the accused must have committed the offence alleged against him. To draw such inference, the prosecution has to unerringly show that accused No.1 was seen going towards his house at that particular point of time. Though some responsibility is cast upon the accused to show that as to how the death of the deceased occurred. For that, in the course of cross- examination of the Doctor, he got explained the possibility of deceased committing suicide. It is not necessary that, the accused has to prove any specific defence during trial beyond reasonable doubt, but on the basis of the preponderance of probability, if he is able to create a serious doubt with regard to the happening of the incident and also nature of the death occurred, that is sufficient to draw an inference in favour of the accused and against the prosecution. In the above said circumstances, when it is doubtful whether the death was suicidal or homicidal, and in the absence of proof of presence of accused Nos.1 and 2 in that particular house at the relevant time, in our opinion, it is very hazardous to draw an inference against the accused on the basis of such insufficient and inadequate material placed by the prosecution.
23. Last but not least, the case of the prosecution is that both the accused Nos.1 and 2 were present in the house, at that time, both of them committed murder of the deceased by strangulating her neck. Holding that accused No.2 was not present at the time of incident, the trial court for the reasons best known to it, exonerated the accused No.2 for the offence under Section 302 of IPC when the Court is of the opinion that the accused No.2 was not present at the time of incident but later he helped the accused No.1 and for that reason, he was convicted for the offence under Section 201 of IPC . If such being the case, for such opinion of the trial Court, same yardstick ought to have been extended so far as accused No.1 is concerned. However, we are of the opinion that the prosecution has not established the presence of the Accused No.1 and 2 in their house at the relevant point of time and there is serious doubt expressed in the evidence of the doctor that, it may be a suicidal case. Therefore, the trial Court has committed serious error in drawing such an inference. In the above said circumstances, we do not find any strong legal evidence to sustain the judgment of trial court. Hence, same is liable to be set aside.
24. Accordingly, Crl.A.No.845/2016 and Crl.A.No.597/2016 are allowed. Consequently, the judgment of conviction and order of sentences dated 18.03.2016 passed by the V Additional District and Sessions Judge at Mysuru in S.C. No.303/2012 C/w S.C.No.51/2013 as against the appellant-accused No.1 in Crl.A.No.854/2016 for the offences punishable under Sections 302 and 201 of IPC and appellant/accused No.2 in Crl.A.No.597/2016 for the offence punishable under Section 201 of IPC, are hereby set aside.
25. The appellant/accused Nos.1 and 2 in the above appeals are acquitted of the charges levelled against them.
26. The jail authorities are hereby directed to release the appellant-accused No.1 in Crl.A.No.854/2016 forthwith, if he is not required in any other case.
27. Accused No.2 in Crl.A.No.597/2016 is already enlarged on bail by this Court while suspending the sentence. His bail bond and surety bond stands cancelled. If any fine amount is already deposited by appellants/accused Nos.1 and 2, the same shall be refunded to them on proper identification and acknowledgment.
Registry is hereby directed to communicate a copy of this order to the concerned Jail Authorities immediately.
SD/- JUDGE SD/- JUDGE kvk / JS