Karnataka High Court

Shri.Kumar S/O. Subhas Goundi vs The State Of Karnataka on 9 December, 2021

Bench: Suraj Govindaraj, J.M.Khazi

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

    DATED THIS THE 09th DAY OF DECEMBER, 2021

                        PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                           AND
        THE HON'BLE MS. JUSTICE J.M.KHAZI

           CRIMINAL APPEAL No.100134/2018

BETWEEN:

SHRI. KUMAR S/O. SUBHAS GOUNDI,
AGE 30 YEARS, OCC: COOLIE,
R/O. MAHALINGAPUR, TALUKA MUDHOL,
DIST. BAGALKOT.
                                                 ... APPELLANT
(BY SRI. D.B.KARIGAR, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
REP. BY P.S.I., MAHALINGAPUR POLICE STATION,
TALUKA MUDHOL, DIST. BAGALKOT,
BY ITS SPP, HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
                                               ... RESPONDENT

(BY SRI. V.M.BANAKAR, ADDL. SPP FOR RESPONDENT)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND TO SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION
AND SENTENCE PASSED BY THE 1ST ADDL. DISTRICT AND
SESSIONS JUDGE, BAGALKOT, SITTING AT JAMKHNADI IN ITS
                              2


S.C.NO.49/2015   DATED   30.03.2017   OFFENCE   PUNISHABLE
UNDER SECTION 302, 201 OF IPC AND THEREBY ACQUIT THE
APPELLANT/ACCUSED BY ALLOWING THIS APPEAL.


     THIS APPEAL COMING ON FOR FINAL HEARING , HAVING
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:

                         JUDGMENT

1. The accused is before this Court challenging the order

of conviction passed by the 1st Additional District and

Sessions Judge, Bagalkot, sitting at Jamkhandi dated

30.03.2017 in Sessions Case No.49/2015 by way of the

said Judgment, the accused has been found guilty of

the offences under Sections 302 and 201 of IPC and

sentenced to undergo imprisonment for life and fine of

Rs.10,000/- and in default to undergo imprisonment for

one year for the offence punishable under Section 302

of IPC, as also to make payment of a sum of

Rs.25,000/- to the complainant as compensation under

Section 357(B) of the Cr.P.C.

2. The case of the prosecution is that the complainant

who is the brother of the accused and son of the

deceased was residing at Sameervadi Cross,

Mahalingapur in Mudhol taluk, along with his family

members. His mother namely Shantawwa Subhas

Goundi (deceased) and his elder brother Kumar Subhas

Goundi, the accused were staying together. It is

alleged that Kumar Subhas Goundi (accused) is

addicted to bad vices like drinking, and in his drunken

state would pick up quarrels with his mother, though

accused had been advised several times by the

complainant and his relatives including Shivabasu

Goundi (P.W.7) and their community elders, the

accused did not heed to it. In view thereof, the

complainant along with his wife and children started

residing in another place.

3. It is alleged that, on 21.01.2015 at about 6.00 a.m.,

the complainant had gone to get sugarcane with

Shivappa B. Mang (P.W.18) and others, while he was

cutting the sugarcane, he was informed that his mother

had been murdered by his brother with a stone, as

such, he along with Shivappa B. Mang came to

Mahalingapur, where in the kitchen room, he saw his

mother lying on the left side with her head washed with

water and a big stone near her, all household materials

being thrown here and there and in the bathroom,

water mixed with blood had accumulated. The

complainant in the complaint had alleged that on

enquiry, he came to know that between 9.30 p.m. on

20.01.2015 to 05.30 a.m. on 21.01.2015, the accused

had picked up a quarrel with the deceased on account

of his marriage not being performed, proper food not

being given to him as also on account of the deceased

not giving him money towards satisfying his vices. This

quarrel eventually led to the accused assaulting the

deceased using a stone. Thereafter, with an intention

to destroy the evidence the accused had washed the

injury on the deceased and also the house with water

and later absconded from the place. It is further

alleged that, a neighbor Prakash Danawwa Pujeri

(P.W.5) had also informed him about hearing a quarrel

between the accused and the deceased at 10.30 p.m.

on 20.01.2015, but they have not given much

importance to the same, since they frequently

quarreled. It is on this basis that Crime No.9/2015 was

registered by the PSI, Mahalingapur Police Station

(P.W.23) on 21.01.2015 and FIR sent to the Court.

4. The accused was arrested on 24.01.2015 and produced

before the Court and remanded to judicial custody. The

Circle Inspector of Police, Mudhol (P.W.24) upon

investigation submitted a charge-sheet on 22.04.2015

for the offences under Sections 302 and 201 of IPC.

Hence, the Additional JMFC Court, Mudhol had

committed the matter to the Sessions Court, Bagalkot,

sitting at Jamkhandi. After hearing the accused and the

prosecution, charges were framed against the accused.

The accused pleaded not guilty and claimed to be tried.

5. Thereafter prosecution examined 24 witnesses from

P.W.1 to P.W.24, got marked 33 exhibits from Ex.P.1

to P.33 and 10 material objects at MO-1 to MO-10.

Upon completion of evidence, the evidence against the

accused was put across to the accused, the statement

of the accused under Section 313 of the Cr.P.C. was

recorded, wherein he has denied all the incriminating

materials against him, but has not lead any evidence;

arguments of both sides were heard and thereafter, the

impugned Judgment came to be passed convicting the

accused as aforesaid and order of sentence was passed

as aforesaid. It is challenging this order of conviction

and sentence that the appellants/accused is before this

Court.

6. The contention of Sri. D.B.Karigar, appearing for the

accused is that, there was no motive for the accused

for having committed the murder of his mother, nor

the prosecution has been able to establish the intention

on his part, there are no eyewitnesses to the crime as

alleged against the accused. The circumstantial

evidence which has led the trial Court to convict the

accused is of a weak nature and not sufficient for the

purpose of such conviction, more so, when the offence

is under Section 302 of IPC. Almost all the witnesses

have not supported the case of the prosecution. The

complainant as also other independent witnesses have

denied the statement given by them to the police, in

fact they have also certified that the accused is a good

man, of good character and the only persons who have

supported the case of the prosecution are the official

witnesses whose evidence cannot be taken into

consideration, more so, when the complainant and

other witnesses have not supported the case of the

prosecution. In that background, he submits that the

accused ought to have been acquitted of the crimes.

7. Per contra, Sri. V.M.Banakar, learned Addl. SPP would

submit that, the order of conviction and sentence are

proper based on the evidence on record. The accused

and the deceased were the only persons living in the

house, the deceased was last seen in the company of

the accused, the accused has not given any

explanation as regards the incident having occurred in

the house. Thus, the accused has not satisfied the

requirement of Section 106 of the Evidence Act. The

trial Court taking into account the evidence on record,

including the scientific evidence and the FSL report,

which would establish beyond reasonable doubt that

the accused had committed the offence has convicted

him and as such, there is no requirement of this Court

to intercede in the matter, he refers to and relies upon

the decision of the Apex Court in the Trimukh Maroti

Kirkan Vs. State of Maharashtra, reported in

(2006) 10 SCC 681, more particularly at paragraph

Nos.11 and 12 has held as under. The same is

extracted hereunder for easy reference:

    11.      From the evidence adduced by       the
    prosecution the following circumstances     are
    clearly established:

    (i)    The marriage of Revata with the appellant

Trimukh had taken place about 5-6 years back.

(ii) The appellant Trimukh used to ply a tempo.

(iii) There was a demand of Rs 25,000 by the appellant and his parents from the parents of the deceased. The deceased was being ill-treated and was occasionally not given food on account of the fact that the demand of money had not been met.

(iv) The deceased had told her parents about the fact that she was being ill-treated and occasionally she was not given food, whenever she visited her parental home and last time on the occasion of Panchami festival. She had also told about the said fact to her neighbour PW 5 Girjabai of Village Kikki.

(v) After the death of Revata, the appellant and his parents informed some persons in the village as also the family members of the deceased that she had died on account of snakebite.

(vi) When PW 1, PW 2, PW 3 and PW 4 reached the house of the accused in Village Kikki, they found the body of the deceased in a sitting posture with her back taking support from the wall. PW 14 Devichand, Assistant Sub-Inspector of Police also found the body in the same position.

(vii) The post-mortem examination revealed that Revata had died due to asphyxia as a result of strangulation and not on account of snakebite.

(viii) Certain recoveries like chappal of the deceased, broken pieces of bangles were made at the pointing out of the appellant. A shoe was also recovered at his pointing out.

12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be

cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.

8. The decision of the Apex court in the case of

State of Rajasthan Vs. Thakur Singh, reported in

2014 Cri.L.J. 4047, more particularly paragraph

Nos.16 to 22 which are reproduced hereunder for easy

reference:

16. Way back in Shambhu Nath Mehra v. State of Ajmer2 this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:

"This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could

prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra3 this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said:

"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."

Reliance was placed by this Court on Ganeshlal v. State of Maharashtra4 in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.

19. Similarly, in Dnyaneshwar v. State of Maharashtra5 this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

In Jagdish v. State of Madhya Pradesh6 this Court observed as follows:

"It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."

More recently, in Gian Chand v. State of Haryana7 a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar? which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words:

"During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."

22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."

9. Shri Banakar submits that the conviction is just and

proper, based on evidence on record, the Prosecution

having proved that the Accused had committed the

offence and as such the Appeal is liable to be

dismissed.

10. It is in the above background that we are required to

reappreciate the evidence on record to ascertain

whether the prosecution has proved that the accused is

guilty of the offence alleged.

11. The complainant though had given his complaint at

Ex.P.1, making the aforesaid allegations, the

complainant when examined as P.W.1 did not support

the case of the prosecution and has denied the habits

of the accused upon being informed about the incident

he had come to the spot and found his mother lying on

her left side and a piece of stone laying near her. On

an enquiry he was informed that, no one knew about

what had happened and that the police had come and

taken photographs of the spot and also his left thumb

impression on a complaint, the contents of which were

not known to him. It is at this juncture he was treated

as hostile and cross-examined. During the cross-

examination, he has admitted that the accused was an

alcoholic and used to quarrel with his mother

frequently and that he was residing separately on

account of the actions of the accused. Apart from this,

nothing has been elicited during his cross-examination.

12. P.W.2 who is also a witness to the inquest

panchanama, spot panchanama and clothes seizure

panchanama, has denied his presence, he has not

supported the case of the prosecution. He has stated

that, the police had called him to the spot. He did not

know anything about what has happened or of the

objects near the body of the deceased. He was treated

as hostile but nothing much was elicited from him

during the course of cross examination.

13. P.W.3 who is the witness to the inquest as well as spot

panchanama as per Ex.P6 and Ex.P7, has also denied

that she knew anything about the incident, she states

that the police had asked her to come to the spot and

obtained her thumb impression on two documents, the

contents of which she did not know, she was treated

as hostile and cross-examined by the prosecution and

nothing much was elicited from her.

14. P.W.4 is another panch witness as regards the seizure

of the clothes of the deceased and clothes of accused.

He states that, the police had obtained his signatures

on Ex.P.8 and Ex.P.9 at the police station, he did not

know the contents of the said exhibits; the Public

Prosecutor treated him as hostile and cross-examined

him, but however, nothing was elicited during such

cross-examination.

15. P.W.5 who lives in the neighborhood of the victim and

the accused deposed that the accused was a good

man. When he went to the spot on the day of the

incident, he saw the deceased body there and that he

did not know what had happened. He was treated as

hostile and cross-examined by the Public Prosecutor,

but nothing much was elicited from him. He denied

giving any statement to the police.

16. P.W.6 who is also a resident of the neighborhood

deposed that the accused is of good nature and worked

as a mason and was living with his mother. When he

heard the news, he went to the house and the police

were already present, he denied having given any

statement to the police. He was treated as hostile and

cross-examined by the Public Prosecutor, but nothing

much was elicited during his cross-examination.

17. P.W.7 had deposed that the deceased was his elder

brother's wife and that the accused is the elder

brother's son. He has stated that the accused and the

deceased were living together, upon knowing about the

incident he visited the spot, but stated that he has not

noticed any injuries on the deceased. He has further

stated that, he does not know why a complaint was

filed against the accused. In that background, he was

treated as hostile and cross-examined by the Public

Prosecutor, but nothing much was elicited from him. He

also denies having been given any statement to the

police.

18. P.W.8 has also stated that, the deceased was his

brother's wife and the accused is his brother's son.

Though he has stated that the accused and the

deceased were residing together. He has denied having

seen the dead body when he visited the spot and also

of having given any statement to the police, he was

treated hostile and cross-examined, but nothing much

was elicited from him.

19. P.W.9 is stated to be the cousin of the accused,

deposed that when they went to the house of the

deceased they noticed her dead body, but has not

observed any injuries on the dead body, and that he

did not know the reason for the death of the deceased,

he denied having given any statement to the police, he

was also treated as hostile and cross-examined by the

Public Prosecutor, but nothing much was elicited from

him, during the course of cross-examination.

20. P.W.10 is also stated to be the cousin brother of the

accused. He has also stated that, when he went to the

spot, he saw people had gathered there, but he has not

seen any dead body and he does not know reason for

the death of the deceased and has denied giving any

statement to the police. He was also treated as hostile

and cross-examined by the public prosecutor, but

nothing much was elicited from him during the cross-

examination.

21. P.W.11 has deposed that the deceased was his aunt

and that she was residing with the accused. He

deposed that the accused had come to his house at

about 5.00 a.m. and informed him that the deceased

had fallen down and hence, he went along with the

accused to the house where he noticed that the

deceased was laying on the ground, she was bleeding

from her head and saw a stone next to her. He denied

any knowledge of what had happened. He denied the

knowledge of cause of death as also having given any

statement to the police. He was also treated hostile,

but nothing much was elicited from him during the

cross-examination.

22. P.W.12 who is stated to be the brother of the deceased

deposed that after coming to know about his sister's

death came to her house and noticed the dead body of

his sister, he did not know what had happened. He also

denied giving any statement given to the police. Hence,

he was treated as hostile and cross-examined, but

nothing much was elicited during the cross-

examination.

23. P.W.13 has deposed that the deceased was his aunt

and admitted that the accused is her son, and that

both of them were residing together. When he came to

know of the death of the deceased, he came to the

house of the deceased and saw the dead body and the

wound on the forehead. He states that, he has not

enquired the manner in which the deceased has died.

He further stated that there was a rumor that the

deceased had died as a result of falling in the

bathroom. This witness has also been treated hostile

and when cross-examined by the Public Prosecutor,

nothing much was elicited during the cross-

examination.

24. P.W.14 has deposed that he was the relative of the

deceased. He has stated that after he came to know

that deceased had died after falling in the bathroom,

he went to the house where he saw the dead body, but

he did not enter the house, he does not know the

cause of death of the deceased and has not given any

statement before the police. He was treated as hostile

and cross-examined by the Public Prosecution and

nothing much was elicited.

25. P.W.15 deposed that the deceased was her mother-in-

law and the accused is her brother-in-law and the

complainant is her husband. She stated that the

deceased and the accused were residing together,

whereas P.W.15 and her husband were residing in

Sameervadi cross. She also stated that, the accused is

of good character. She deposed that after hearing the

news about the death of the deceased, she went to the

house, though the dead body was there, she did not

see the dead body and she does not know the cause of

death of her mother-in-law and she denied giving any

statement to the police. This witness was also treated

as hostile and cross-examined by the Public Prosecutor,

but nothing much was elicited during the cross-

examination.

26. P.W.16 deposed that the deceased was her relative.

The deceased and her son were staying in the house

belonging to P.W.16. She did not come to the spot at

the time of the death of the deceased. It is only after

the death, in order to collect the key of the house, she

went to the police station, she did not know how the

deceased died, she denied giving any statement to the

police. She was treated as hostile and nothing much

was elicited during the cross-examination.

27. P.W.17 has deposed that the deceased and the accused

were mother and son. When he came to know that the

deceased was dead, he went to the Mahalingapur Police

Station, there he was asked if he knows how to write

and when he answered in the affirmative, the police

asked him to write Ex.P.1 being the complaint. He has

stated that he had not gone to the house of the

deceased, he had not seen the dead body and he has

not given any statement before the police. He was also

treated as hostile and cross-examined by the Public

Prosecutor, but nothing much was elicited during the

course of cross-examination.

28. P.W.18 has deposed that he is the distant relative of

the family, that around 8.00 a.m. on the day of the

incident P.W.1's uncle had called him and informed him

about the demise of the deceased. He immediately

informed P.W.1 who was working with him and went

along with him to the deceased house, and saw her

body, P.W.1 had enquired with C.W.7, who was not

examined by the prosecution, who had informed them

that the accused had beaten her as she was not willing

to give him money, and for not getting him married,

P.W.18 further deposed that a stone was lying near her

dead body and identified it as MO-1, he had

accompanied P.W.1 to the police station while lodging

complaint. He has also given a statement to the police

in consonance with the complaint filed. However,

during the course of cross-examination by the accused

he denied the knowledge as regards the contents of the

statement. Thus, he has only partially supported the

case of the prosecution.

29. The above being the statements of material witnesses,

all the material witnesses have turned hostile and not

supported the case of the prosecution.

30. P.W.19 is the Doctor who conducted postmortem of the

deceased has stated that there were injuries both on

the left and the right side of the head. He has further

deposed that all the injuries were ante mortem in

nature and opined that the cause of death was due to

cardiopulmonary arrest secondary to injuries to vital

organ brain. He has deposed that the following injuries

have been caused:

A. Contusion on the left parietal bone about 4.5 x 4 cm with central cut lacerated wound about 2.5 x 1 cm with underlined parietal bone fracture in line with external wound measuring about 2.5 cm underlining meningesis and parietal lobe of brain are contused measuring 2 x 2 cm.

B. Contusion around right eye about 10x10 cm. C. Contusion of 10x10 cm extended from right frontal prominence to right zygotic prominence, horizontal from bridge of nose to right trigus with central cut lacerated wound about 5x2 cm over right frontal bone.

31. He has deposed that he had conducted postmortem

about 15 to 18 hours after the death. He had examined

MO-1 the stone which had blood stains on it and has

opined that the injuries might have been caused by the

use of the MO-1. He has withstood the test of cross-

examination, supported the case of the prosecution and

denied the suggestions made during the course of

cross-examination.

32. P.W.20 is the Assistant Executive Engineer who had

prepared the sketch of the spot at Ex.P.25. He

identified the said Exhibit. He denied all the

suggestions put forward by the accused during the

course of cross-examination.

33. P.W.21 is a Police Constable of Mahalingapur Police

Station. He has deposed that upon direction from the

PSI, he had carried the complaint and FIR to the

Mudhol JMFC Court at 2.30 p.m.

34. P.W.22 is the police constable, who had conducted the

spot mahazar inquest and prepared the sketch at

Exhibits P.6, 7 and 26 respectively. He has stated that

he has accompanied P.W.20 the Assistant Executive

Engineer to the spot at the time of preparing sketch, he

carried the MO-1 stone to the Doctor for obtaining his

opinion and submitted the same to the Investigating

Officer. He has denied all suggestions put across to him

during the course of cross-examination and withstood

the test of cross-examination.

35. P.W.23 is the PSI of the Mahalingapur Police Station.

He has deposed that on 21.01.2015 at 11.00 a.m. a

complaint was filed by P.W.1 and registered as Crime

No.9/2015 in pursuance of which the FIR was

forwarded to the Magistrate. He has deposed of

conducting an inquest panchanama between 12.30 to

1.30, marked as Ex.P.6, spot panchanama was

conducted between 2.00 p.m. to 3.00 p.m. i.e., Ex.P.7,

rough sketch was prepared at Ex.P.26. Cloth seizure

panchanama of the deceased was made in the

presence of C.W.2 and C.W.3. He has also obtained the

photographs of the spot and sent the body for

postmortem. He has stated that MOs. 3 to 6 were

seized from the spot in the presence of C.W.2 and

C.W.3. He has recorded the statement of C.W.5 to

C.W.12, C.W.14 to C.W.18 as per Ex.P.10 to 22 and

also recorded the statement of C.W.13 and 19. He had

arrested the accused on 24.01.2015 at 4.00 a.m. near

Sai Mandir. On enquiry with the accused he has

deposed that the accused had admitted his guilt, hence

he recorded his voluntary statement as per Ex.P.28,

seized the blood-stained clothes of the accused in the

presence of C.W.3 and C.W.4 by drawing a

Panchanama as per Ex.P.9. He also identified the

clothes of the accused at MOs.7 and 8. He had

produced the accused before the Court along with

remand application and sent the requisition to the

P.W.D for preparing a sketch of the scene of the

offence. He has recorded the statement of C.W.27. This

witness has also withstood the test of cross-

examination and denied all the suggestions made to

him.

36. P.W.24 is the Investigating Officer, he has deposed

that on 26.01.2015 he took up the investigation of the

case after verifying investigation already carried out,

he recorded the statement of C.W.22, received

postmortem report on 10.02.2015 as per Ex.P.23,

received the sketch from P.W.D on 17.02.2015 as per

Ex.P.25. The house extracts from Purasabha as per at

Ex.P.31. he has sent the seizure articles with C.W.21 to

FSL, Belagavi for examination under an

acknowledgement as per Ex.P.32. On 09.03.2015 he

has sent MO-1 for C.W.22 i.e. Medical Officer for his

opinion, which opinion is as per Ex.P.24. Pending

receipt of the FSL report, he has filed a charge-sheet

against the accused. On 12.02.2015 he received FSL

report as per Ex.P.33. This witness has also withstood

the test of cross-examination and denied all the

suggestions put across to him.

37. A perusal of the aforesaid evidence and the exhibits

would indicate that the family members except P.W.18

have not supported the case of the prosecution and

have turned hostile and nothing much was elicited from

them, during the course of cross-examination. Even

though P.W.18 had supported the case of the

prosecution during the cross-examination, he has

denied the contents of the statements given by him to

the police.

38. This is a classic case of all the relatives turning hostile

and abandoning the deceased to protect her murderer,

the accused. Probably under the assumption that

nothing can be done about the dead, but a living

relative has to be protected. Be that as it may, from

the entire evidence of the relatives i.e. P.W.1 to P.W.18

it is clear that the deceased and the accused were

residing together in the same house. It is also clear

that the death of the deceased took place in the said

house, none of the witnesses have deposed as regards

the presence of the accused in the house though they

have deposed about the body of the deceased being

present. Admittedly, the incident occurred in the

intervening night of 20.01.2015 and 21.01.2015. The

last person who was seen in the company of the

deceased was the accused in the night, but was not

available in the morning. The accused has also not led

any evidence or stated anything as regards where he

was and or when he left the company of the deceased.

The death being homicidal and unnatural is not in

dispute.

39. The evidence of the Doctor and the forensic

examination reports indicates that the deceased had

suffered injuries on her head, on both sides. If the

arguments of Sri. Karigar, learned counsel for the

appellant is to be accepted that the deceased fell on

her own, injured herself and died on the spot due to

the injury, then the injury might have been caused only

on one side of the head on which the deceased would

have fallen. The fact that there were two grievous

injuries on both sides of the head would indicate and

establish that the deceased had been assaulted on one

side due to the force of which she fell down on the

other side, resulting in grievous injuries on both sides

of the head. The stone lying near the deceased was

also having blood on it.

40. The evidence on record indicates that there was an

attempt made to wash the place including the head of

the deceased and the stone as there was blood which

was mixed with water found near the bathroom. This

was probably with an intention to remove the blood

and the evidence from the scene of occurrence of the

crime. If indeed the death was due to an accident, the

deceased and the house would not have been washed.

41. P.W.11 has stated about the accused having come to

his house at 5.00 a.m. and informed about the

deceased having fallen down and being unresponsive.

There is no explanation given as to what P.W.11 and

accused did thereafter. Admittedly, there was no

attempt made to either contact the hospital or the

police. The first thing that anybody would do in such a

situation is to contact a hospital or a Doctor to get

medical aid and assistance.

42. From the evidence by the official witnesses it is

gathered that the blood group of the deceased was 'O'

positive. After the arrest of the accused, his blood-

stained clothes were seized by the Investigating Officer

by conducting panchanama. When these clothes were

sent for examination to the FSL, the FSL had given a

report at Ex.P.33 that M.O.No.7 being the clothes

seized from the accused, was stained with blood of 'O'

positive group which is same as that of the deceased.

There is no explanation given by the accused as

regards this, when the evidence against him was put

across to him while recording his statement under

Section 313 of Cr.P.C.

43. Section 106 of the Evidence Act reads as under:

                 Burden of proving      fact   especially
           within knowledge :

"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

44. The death of the deceased has occurred in the house in

which the deceased and the accused were residing.

Thus there is a special knowledge on the part of the

accused as regards the events that had occurred in the

said house in the intervening night of 20.01.2015 and

21.01.2015, more so when the accused was present in

the house on the night of 20.01.2015. Thus, there is a

burden which is cast on the accused to explain about

the incidents that had occurred in the intervening night

of 20.01.2015 and 21.01.2015, the Apex Court in the

case of Gajanan Dashrath Kharate Vs. State of

Maharashtra, reported in 2016 (2) SCC Cri. 436,

more particularly paragraph No.13 has held as under:

"13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellantaccused had gone to another Village Dahigaon. The prosecution has

proved presence of the appellant at his home on the night of 7-4-2002. Therefore, the appellant is dutybound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."

45. The incident having occurred in the house where only

inmates were the deceased and the accused, special

knowledge is deemed to be had by the accused as

regards the death of his mother and or the events that

occurred in the house which has not been explained by

the accused. The accused has simply denied the case of

the prosecution and has maintained stoic silence.

46. In the peculiar nature and circumstance of the case, it

is only the Investigating Officer and the official

witnesses who have performed their duty in order to

obtain justice for the deceased Shantawwa. Admittedly,

there is no allegation made of any enmity or hostility