Kumara @ Kulda vs The State Of Karnataka
2022 Latest Caselaw 5999 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 4TH DAY OF APRIL, 2022

                         PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                           AND

           THE HON'BLE MR. JUSTICE S. RACHAIAH

             CRIMINAL APPEAL NO.1529 OF 2019

BETWEEN:

KUMARA @ KULDA,
S/O PARASHURAMAPPA,
AGED ABOUT 31 YEARS,
LABOURER,
R/AT BHOVI COLONY,
RIGHT SIDE,
3RD CROSS, CHANNEL AREA,
BHADRAVATHI TALUK,
SHIVAMOGA DISTRICT - 577 301.
                                               ... APPELLANT
(BY SRI SUBRAMANYA P.D., ADVOCATE)

AND:

THE STATE OF KARNATAKA,
BY THE STATION HOUSE OFFICER,
OLD TOWN POLICE STATION,
BHADRAVATHI TOWN CIRCLE,
BHADRAVATHI TALUK - 577 301,
SHIVOMOGGA DISTRICT,
NOW REP. BY THE STATE P.P.,
                                 2




HIGH COURT OF KARNATAKA BUILDING,
BENGALURU - 560 001.
                                                  ... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)

                               ****

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.PC PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED
29.11.2018 AND SENTENCE DATED 03.12.2018 PASSED BY THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIMOGA, SITTING
AT BHADRAVATHI IN S.C.NO.112/2012, CONVICTING THE
APPELLANT/ACCUSED FORT THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC. THE ACCUSED IS SENTENCED TO UNDERGO
LIFE IMPRISONMENT TILL HIS ENTIRE LIFE I.E. TILL HIS DEATH
AND TO PAY FINE OF RS.50,000/- FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC AND IN DEFAULT OF PAYMENT OF
FINE, TO UNDERGO S.I FOR ONE YEAR.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J, DELIVERED THE FOLLOWING:


                        JUDGMENT

The accused, who is the father of the deceased, has killed his

own daughters and has filed the present criminal appeal against the

impugned judgment of conviction dated 29.11.2018 and the order

of sentence dated 03.12.2018 made in S.C.No.112/2012 on the file

of the IV Additional District and Sessions Judge, Shivamogga,

sitting at Bhadravathi, convicting the accused under the provisions

of Section 302 of IPC and sentencing the accused to undergo

imprisonment for life with a fine of Rs.50,000/-with a default

clause.

2. It is the case of the prosecution that the accused and

CW.1-Bhagya are husband and wife, and their marriage took place

eight years prior to the alleged incident. Out of their wedlock, they

had three children, namely Pallavi, Jayalakshmi and Yashavantha

and after the birth of the third child, their relationship was strained.

Hence, CW.1-Bhagya was residing in her parents' house since

three years as on the date of the incident. Out of three children,

two daughters were studying and staying in a hostel. On

21.03.2012, CW.6 and CW.7, the paternal grand parents of the

children, invited two daughters on the eve of the Ugadi Festival to

their house at Bhadravathi and the accused called the complainant-

CW.1 to his house for the festival, she did not come. In order to

take revenge against her, he took the two daughters at about 11.00

a.m. on 25.03.2012 from the house and pushed them into the

Bhadra river behind the K.S.R.T.C Depot at about 12.00 noon and

thereby, committed the murder of his two daughters.

3. On the basis of the complaint dated 29.03.2012 as per

Ex.P1, the Circle Inspector of Police of Bhadravathi Town Circle, set

the law in motion and registered a case in Crime No.39/2012 under

the provisions of Section 302 of IPC against the accused.

4. The matter has been committed to the learned Sessions

Judge. After committal, the learned Sessions Judge secured the

presence of the accused and framed charge against the accused

under the provisions of Section 302 of IPC and read over and

explained in the language known to him, who pleaded not guilty

and claimed to be tried.

5. In order to prove the case of the prosecution, the

prosecution examined, in all, 17 witnesses as PW.1 to PW.17, got

marked 26 material documents as Ex.P1 to Ex.P26 and identified

M.O.1 and M.O.2. After conclusion of evidence of the prosecution

witnesses, the statement of the accused as contemplated under the

provisions of Section 313 of Cr.P.C. was recorded. He denied the

incriminating evidence adduced by the prosecution witnesses, but

not adduced any defence evidence and got marked the statement

of CW.1 as per Ex.D1 and signature as per Ex.D1(a).

6. Based on the aforesaid pleadings, learned Sessions

Judge framed a point for consideration, which read as under:-

Whether the prosecution proves beyond all reasonable doubt that on 25.03.2012 at about 11.00 a.m., in order to take revenge against his wife, took away his two daughters from the house and pushed into Bhadra river behind K.S.R.T.C. depot at about 12.00 noon and thereby, accused has committed an offence punishable under Sec.302 of IPC?

7. Considering the entire material on record, the learned

Sessions Judge answered the above point in the affirmative, holding

that the prosecution has proved, beyond all reasonable doubt, that

the accused, in order to take revenge against his wife, took away

his two daughters on 25.03.2012 at about 11.00 a.m. from the

house and pushed them into the Bhadra river behind the K.S.R.T.C

Depot at about 12.00 noon and thereby, committed the murder of

his own daughters. Accoridngly, the learned Session Judge

convicted the accused and sentenced him to undergo imprisonment

for life with a fine of Rs.50,000/-with a default clause under the

provisions of Section 302 of IPC. Hence, the present appeal is filed.

8. We have heard the learned counsel for the parties.

9. Sri Subrahmanya P.D., learned counsel for the

appellant-accused contended with vehemence that the impugned

judgment of conviction and order of sentence passed by the learned

Session Judge, is erroneous and contrary to the material on record

and cannot be sustained. He further contended that the unfortunate

incident occurred on 25.03.2012, the complaint was filed by PW.1

on 29.03.2012, thereby, there was a delay in initiating the crime

set into motion. He further contended that the learned Session

Judge erred in not appreciating that the complainant/State not

established the ingredients of the offence alleged under Section 302

of IPC beyond all reasonable doubt against the appellant.

10. It is further contended that the learned Session Judge

has failed to appreciate the exculpatory evidence of prosecution

witnesses and erroneously accepted inadmissible and unsupported

documents like spot mahazar at Ex.P10 and Ex.P11 and the post

mortem report at Ex.P7. He further contended that the evidence of

the prosecution contradicts the evidence of PW.6, PW.7, PW.9,

PW.10, PW.11 and PW.12, who turned hostile.

He further contended that the benefit of doubt ought to have

been given to the appellant. Therefore, he sought to allow the

Criminal Appeal.

11. Per contra, Sri Vijaykumar Majage, learned Additional

State Public Prosecutor, while justifying the impugned judgment of

conviction and order of sentence passed by the learned Sessions

Judge, contended with vehemence that in the present case four

circumstances have been proved by the prosecution to convict the

accused. i.e.,

(i) Last seen theory: spoken to by P.W.14-Ravi, brother of

the accused, to the effect that he saw the accused

taking his two daughters out of the house. P.W.2-

Annaiah, also deposed that the accused took the

children with him on the date of the incident and

thereafter, the children went missing.

(ii) Motive: The accused had quarrelled with his wife saying

that she has illicit relationship with P.W.2, due to which,

she had left the matrimonial home and went to her

parents' place and was staying there. When the

accused invited her to Ugadi festival, she refused to

come. So, accused wanted to take revenge on his wife

and therefore, he chose to kill his two daughters.

Accordingly, motive is proved.

(iii) Recovery: The accused has shown the place behind

KSRTC depot where he pushed his two daughters into

Bhadra River. With the help of fishermen, dead body of

one daughter was recovered and another body

remained untraced. Accordingly, recovery is proved.

(iv) Conduct of the accused: The accused has not denied

the fact he took away his two daughters from the house

and the children did not return home. The said fact is

evident from the last seen witnesses. Later, the

accused telephoned Annaiah-P.W.2 that he took his two

daughters to Bengaluru and in Bengaluru, his daughters

went missing. When the wife of the accused and their

relatives went to Bengaluru, they could trace only

accused and could not trace his two daughters. The

accused has not lodged any complaint with the

jurisdictional police regarding missing of his two

daughters. When the relatives were taking the accused

back to the village, the accused jumped out of the

moving train, into Bhadra river and was rescued with

the help of fisher men. The accused has not offered

any explanation as to why he did not lodge police

complaint regarding missing of his daughters. Very

strangely, accused has taken the plea of alibi, but failed

to prove the same. While recording the statement of

the accused under Section 313 of the Code of Criminal

Procedure, to question No.26 as to whether he has

anything to say, the accused has stated that his wife

and his brother were having illicit relationship and they

might have done something to the children. Accused

has not led any defence evidence in this regard. No

prudent father will behave like the accused and

therefore, the conduct of the accused creates doubt in

the mind of the Court.

12. Learned Additional SPP contended that taking into

consideration the above said four circumstances, the learned

Sessions Judge has rightly convicted the accused and therefore,

sought to dismiss the Criminal Appeal.

13. In view of the aforesaid rival contentions urged by

learned counsel for the parties, the points that would arise for our

consideration are:

(i) Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 302 of the Indian Penal Code?

(ii) Whether the accused has made out any ground to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, in the facts and circumstances of the present case?

14. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the parties and

perused the entire material on record, including original records,

carefully.

15. This Court being the appellate Court, in order to re-

appreciate the entire material on record, it is relevant to consider

the evidence of prosecution witnesses and the material documents

relied upon.

(i) P.W.1 -Smt.Bhagya, complainant-wife of the accused deposed that about 8 years prior to the incident, her marriage was performed with the accused. Out of the wedlock two female children and one male child were born. Accused was addicted to alcohol and he used to assault her under the influence of alcohol. Being unable to bear the torture, she shifted to her parents' house at Chikkamagaluru, along with her children. P.W.2-Annaiah and P.W.14-Ravi tried to persuade her to join the matrimonial home. But she refused. Therefore, they took her two daughters along with them saying that it would be difficult for her to look after the education of all the three children and they admitted the two female children to hostel at Meguru, near Sringeri to pursue their education. When things stood thus, her daughters were taken to home by the parents of the accused on the eve of Ugadi festival. The accused telephoned and asked her to come home for Ugadi festival, but she refused and went to Tamil Nadu to visit her relative. After 3-4 days, C.W.5 - Saroja telephoned her and told that the

accused took the daughters out of the house and has not returned. Immediately, she returned to her parents' house at Chikkamagaluru. There she received phone call from her sister saying that they got the information from the accused that he took the children to Bengaluru and there the children went missing. Immediately, she along with her relatives rushed to Bengaluru and they could trace only accused. While returning to Bengaluru, accused jumped out of the moving train into Bhadra river and was rescued with the help of fishermen and was admitted to hospital. When enquired, accused told that he pushed the children into the Bhadra river, behind KSRTC Depot. Accordingly, she filed complaint as per Ex.P.1. Upon search, dead body of only one daughter was found in the water. She supported the prosecution case. The photographs were marked as per Exs.P.2 to 5. Nothing is elicited in the cross-examination of P.W.1 to disprove the case of the prosecution.

(ii) P.W.2-Annaiah, brother of the accused, deposed that since the marital relationship between accused and P.W.1 was not good, P.W.1 had left the company of the accused and was residing with

her parents at Chikkamagaluru. Himself and his brother Ravi went to the parents' house of P.W.1 and brought her two daughters with them assuring that they will look after the education and welfare of those children and they admitted the daughters of P.W.1 to a hostel at Meguru near Sringeri. About two years ago, they brought the children to home from the hostel on the eve of Ugadi festival. On the date of the incident, the accused took the children out of the house saying that he will get them some snacks, but did not return home. Next day evening, accused telephoned him and informed that he has taken the children to Bengaluru and they went missing from Bengaluru Bus Stand. Immediately, he along with P.W.1 and other relatives rushed to Bengaluru and they could trace only accused. While returning to Bengaluru, accused jumped out of the moving train into Bhadra river and was rescued with the help of fishermen and was admitted to hospital. When enquired, accused told that he pushed the children into the Bhadra river, behind KSRTC Depot. Therefore, P.W.1 lodged police complaint as per Ex.P.1. Upon search, dead body of only one daughter was found in the water. He supported the prosecution

case. He identified the photographs marked as per Exs.P.2 to 5. Nothing is elicited in the cross- examination of P.W.2 to disprove the case of the prosecution.

(iii) P.W.3-Saroja, sister of P.W.1 deposed that P.W.2-

Annaiah is her husband. C.Ws.6 and 7 are the parents of her husband. About eight years back, the marriage of P.W.1 was performed with accused. Out of the wedlock, two female and one male children were born. On the date of the incident, the accused took the children out of the house but did not return home. Next day evening, accused telephoned and informed that he has taken the children to Bengaluru and they went missing from Bengaluru Bus Stand. Immediately, they rushed to Bengaluru and they could trace only accused. While returning to Bengaluru, accused jumped out of the moving train into Bhadra river and was rescued with the help of fishermen and was admitted to hospital. When enquired, accused told that he pushed the children into the Bhadra river, behind KSRTC Depot, and supported the prosecution case. Nothing is elicited in the cross-examination of P.W.3 to disprove the case of the prosecution.

(iv) P.W.4-Dr.Bhargavi, Bhadravathi Government Hospital, deposed that she conducted the post mortem of dead body of Pallavi, aged 6 years, on 29.03.2012 between 4.45 to 6.30 pm. The post mortem report was marked as per Ex.P.7. She has given her opinion that the cause of death is asphyxia as a result of drowning and time since death is around 72 hours, and supported the prosecution case. Nothing has been elicited in the cross-examination to disprove the case of the prosecution.

(v) P.W.5-Parashuram, deposed that accused is his son through his second wife. P.W.1 is the wife of the accused. The accused and P.W.1 had three children i.e., two daughters and one son. The two daughters of the accused were studying by staying in a hostel near Sringeri and the son was staying with P.W.1. On account of Ugadi festival, they had brought the daughters of the accused to their house from hostel. After Ugadi festival, he had been Shivamogga. When he returned after 2 to 3 days, his wife informed him that the accused took the children out of the house but did not return home. The accused telephoned them and

informed that his two daughters went missing from Bengaluru Bus Stand. Annaiah, Ramesh, Murugesh and others went to Bengaluru and searched, but they could trace only accused. He was informed that while returning to Bengaluru, accused jumped out of the moving train into Bhadra river and was rescued with the help of fishermen and was admitted to hospital and he is not aware about any other events. He was treated as partly hostile.

(vi) P.W.6-Liyaqat, witness to inquest mahazar-Ex.P.9 deposed that about 3 years back, when he was going in his motor cycle, police called him and obtained his signature on a document and identified it as Ex.P.9(a). He was treated as hostile witness.

(vii) P.W.7-Sunkappa, witness to spot panchanama-

Ex.P.11 was treated as hostile witness.

(viii) P.W.8-Savood, another witness to spot mahazar-

Ex.P.11 was treated as hostile witness.

(ix) P.W.9-Althamash, witness to inquest mahazar-

Ex.P.9 identified his signature on the document as Ex.P.9(b) and turned hostile.

(x) P.W.10-Ramesha, relative of the accused deposed on par with P.W.4. But he deposed that when he along with accused and other relatives were returning to Bengaluru, he got down from the train at Tharikere to bring banana. By the time he returned, the train had left the station. So he went to Bhadravathi by bus and came to know that accused jumped into Bhadra river from moving train and was rescued by fishermen and was admitted to McGann Hospital, Shivamogga. He partly supported the prosecution case.

(xi) P.W.11-Manjunatha, fisherman denied the suggestion that on 29.03.2012 around 12 noon, in the presence of police he found the dead body of a six year old girl in the river and lifted the dead body. He was treated as hostile.

(xii) P.W.12-Keshava, villager, turned hostile.

(xiii) P.W.13-Murugesha, brother of P.W.1 deposed on par with P.W.1. He further deposed that the accused informed them that the children went missing at Bengaluru. Since they could not find children in Bengaluru, they informed the jurisdictional police. When the CCTV cameras of the railway station were visualized, it was found

that accused alone had come to the railway station. At that time, the accused changed his version and said that he has left the children at Tarikere and if they take him to Tarikere he will show the children. Accordingly, when they were going to Tarikere in train, with an intention to escape, the accused jumped out of the moving train into Bhadra river. They stopped the train by pulling the emergency chain and went near the river. By that time, the fishermen had rescued the accused and he was laid on the river shore. The right leg bone of the accused was broken and therefore, he was admitted to McGann Hospital, Shivamogga, for treatment. At that time, when enquired about the children, the accused told that he pushed the children into Bhadra river behind KSRTC bus stand and killed them. He supported the case of the prosecution.

(xiv) P.W.14-Ravi, brother of the accused deposed on par with P.Ws.1 and 2 and supported the prosecution case.

(xv) P.W.15-Annaiah, relative of the accused deposed that about 4 to 5 years back, the two daughters of the accused and P.W.1 were brought to the house of the accused from hostel on the eve of

Ugadi festival. After two days, the accused took his two daughters out of the house and did not return. Later he telephoned and informed that his daughters went missing in Bengaluru. He along with other relatives went to Bengaluru and searched for the children, but they were not found. When they were returning to Bhadravathi, the accused jumped out of the moving train into Bhadra river. He was rescued and admitted to hospital. The witness was treated hostile.

    (xvi)    P.W.16-Siddaramesh,           PSI,    deposed       that    on
             29.03.2012      around      10.40     am,     he    received

complaint-Ex.P.1 from P.W.1. He registered FIR as per Ex.P.18 and supported the prosecution case.

(xvii) P.W.17-J.J.Thirumalesh, Circle Inspector, Bhadravathi, deposed that he took up case, conducted investigation and filed his report, and supported the prosecution case.

Based on the aforesaid pleadings, the learned Sessions Judge

proceeded to convict the accused for the offence punishable under

Section 302 of the Indian Penal Code.

16. It is undisputed fact that, complaint as per Ex.P.1 was

lodged by P.W.1-Smt.Bhagya who is none other than the wife of the

accused, wherein, she has stated that, her marriage with the

accused was performed about eight years prior to the date of

incident. Out of the marriage, two female and one male children

were born. Jayalaxmi @ Ramya, aged 7 years is elder daughter,

Pallavi aged 6 years is the second daughter and Yashavanth aged 4

years is the son. Since there was some quarrel, she left the

matrimonial home and settled in her parents' house at Aladagudde,

Chikkamagaluru, and was doing coolie work. About an year ago,

the siblings of her husband i.e., Annaiah and Ravi came to her

house and told her that she may find it difficult to look after all the

three children and therefore, took two female children with them

and admitted them to hostel to provide them education. She used

to visit the children occasionally. When she was invited for Ugadi

festival, she could not go, as she was in Tamil Nadu. On

25.03.2012, her sister Saroja telephoned her and informed that

Jayalaxmi @ Ramya and Pallavi were taken out by the accused and

they have not returned. Later she came to know that her husband

had telephoned from Bengaluru and informed that the kids have

gone missing in Bengaluru. So, the complainant along with

Murugesh, Annaiah and others went to Bengaluru and searched for

the children, but they could trace only accused. When enquired

about the children, the accused told them that he will narrate

everything after going home. Accordingly, when they were

travelling back to Bhadravathi from Bengaluru, the accused jumped

out of the moving train into Bhadra river. He sustained injuries to

hands and legs and therefore, was admitted to McGann Hospital,

Shivamogga. On 29.03.2012, when enquired about the children,

the accused informed that since the complainant did not come

home for Ugadi festival, to take revenge, on 25.03.2012, he took

the children behind Bhadravathi KSRTC depot and around 12.00

pm, he pushed the children to Bhdra river and the children got

drowned in the river water. Therefore, the complainant sought to

take action against the accused.

17. Though learned counsel for the appellant/accused

contended that the incident is alleged to have happened on

25.03.2012 and the complaint is lodged on 29.03.2012 and

therefore, there is delay in lodging the complaint, the fact remains

that the accused being the father of the minor children has stated

that he took them to Bengaluru and there the children went

missing. If that is so, the accused ought to have lodged complaint

with the jurisdictional police. The same has not been done. When

the accused telephoned and informed that the children went

missing in Bengaluru, the complainant along with other relatives

rushed to Bengaluru and they could trace only the accused. When

enquired about the children, the accused told them that he will

narrate everything after going home. Accordingly, when they were

travelling in the train back to Bhadravathi from Bengaluru, the

accused jumped out of the moving train into Bhadra river and

sustained injuries to his hands and legs and accordingly, was

admitted to McGann Hospital, Shivamogga. On 29.03.2012, when

enquired about the children, the accused informed that, on

25.03.2012, he took the children behind KSRTC depot, Bhadravathi,

and around 12.00 pm, he pushed the children to Bhdra river and

the children got drowned in the river water'. The delay is due to

the aforesaid reasons and there is no deliberate delay in lodging the

complain by P.W.1. If the children really went missing, the accused

being father, should have lodged the complaint.

18. The learned Sessions Judge, while convicting the

accused for the offence punishable under Section 302 of the Indian

Penal Code, has considered four circumstances, i.e.,

(i) Last seen theory: Smt.Saroja-P.W.3, sister of P.W.1/

complainant has deposed that, on the date of the incident, the

accused took the children out of the house around 3.00 pm. Since

they did not return, she informed her sister-P.W.1 on the next day

over phone. On the next day, the accused telephoned her husband

and informed that he has taken the children to Bengaluru. On the

next day, her husband, her sister-P.W.1, C.Ws.3, 4 and 8 went to

Bengaluru and while bringing back the accused in train, the accused

jumped off the moving train into Bhadra river. He was rescued and

was admitted to hospital. Another material witness, P.W.14-Ravi,

younger brother of the accused has deposed that the two female

children of the accused and P.W.1 were studying in an Ashram near

Sringeri. They had come home on the eve of Ugadi festival. On the

next day of the festival, the accused took the children on the

pretext that he will get them some snacks and will get hair cut. Till

evening the accused did not return home. When his brother

Annaiah telephoned the accused and asked as to why he has not

returned home, the accused informed that he has taken the

children to Bengaluru. On the next day, they went to Bengaluru

and traced the accused. While coming back, the accused jumped

off the moving train into Bhadra river. He was rescued and was

admitted to hospital. These are the two witnesses who have last

seen the deceased children along with the accused. Nothing has

been elicited in the evidence of these two witnesses to disbelieve

the last seen theory.

(ii) Motive: P.W.1, complainant- wife of the accused and

other prosecution witnesses have deposed that there was quarrel

between accused and P.W.1. After the birth of the third child, the

relationship between the accused and P.W.1 was not good. P.W.1

went to Chiikkamagaluru and started to reside with her parents.

Later, the two daughters were brought back by the brothers of the

accused and the son was staying with her mother at

Chikkamagaluru. The two daughters were admitted to hostel to

pursue their studies. The accused requested the P.W.1 to come

home for Ugadi festival. But she refused to come. Therefore,

accused was angry on P.W.1. To take revenge against his wife-

P.W.1, on the fateful day, accused took his daughters with him and

pushed them to Bhadra river. Thereby, 'motive' has been proved

by the prosecution. Nothing has been elicited in the cross-

examination to disprove the said version of the prosecution

witnesses.

(iii) Recovery: Based on the statement made by the accused that

he took his two daughters behind KSRTC depot and pushed them to

Bhadra river, the police went to the spot and were able to recover

dead body of Pallavi and were unable to recover the dead body of

another child. Thus, the recovery has been proved.

(iv) Conduct of the accused: If really the accused had not killed

his daughters and if the contention of the accused is to be accepted

that the children went missing in Bengaluru, it is not forthcoming as

to what prevented him from lodging missing complaint with the

jurisdictional police. It is also not forthcoming as to what was the

reasons for the accused to jump to Bhadra river from the moving

train, on 29.03.2012. Accused has stated that his wife/P.W.1 had

illicit relationship with P.W.2 who is none other than his brother.

But none of the prosecution witnesses have whispered about the

illicit relationship between P.W.1 and P.W.2. Very strangely, he has

taken the plea of alibi. Once the prosecution discharged the initial

burden, it is the duty of the accused to prove the plea of alibi, in

view of Section 103 of the Indian Evidence Act. But the same is not

done. Our view is fortified by the dictum of the Hon'ble Supreme

Court in the case of State of Haryana vs. Sher Singh and others

reported in AIR 1981 SC 1021, wherein at paragraph 4 it is held

as under:

"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:

"103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

19. When P.Ws.3 and 14 have specifically deposed that

they have last seen the children along with accused, it is for the

accused to offer his explanation as to what happened to the

children who were with him. The accused has not offered any

explanation as to what happened to his daughters whom he took

along with him on the date of the incident. In the absence of any

explanation offered, an adverse inference has to be drawn against

the accused. Our view is fortified by the dictum Hon'ble Supreme

Court in the case of Prahlad vs. State of Rajasthan reported

(2020)1 SCC Crimes 381, wherein, at paragraph 11, it is held as

under:

11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.

20. The learned Sessions Judge, considering the entire

material on record, observed that, 'when all the witnesses stood

well saying that accused called P.W.2 over telephone and informed

that he took the children to Bengaluru and there the children went

missing, and on coming to know the said fact from P.W.2, the

relatives went to Bengaluru and there, they traced accused alone,

and when it is proved that accused had taken away the children and

he took inconsistent defence, it is clear that he has taken such a

defence only to show that he is innocent, by hook or cook'.

Admittedly, when the accused took the children to Bengaluru, if

really the children went missing in Bengaluru, he, being the father

of the said children, should have lodged a complaint with the

jurisdictional police. On perusal of the evidence of prosecution

witnesses, it is clear that there is inconsistent defence taken by the

accused as to why he jumped into Bhadra river from a moving

train. If the accused was really disgusted due to the character of

his wife, he would not have returned with C.W.1, his brother P.W.2

and others from Bengaluru. If he jumped into Bhadra river on

account of threat and attempt to kill him by C.W.1 and her

relatives, he could have lodged complaint to the police while taking

treatment, or his brothers P.W.2 and P.W.10 or relatives-P.W14 and

15 could have lodged the complaint. Since the same has not been

done, it falsifies the defence of the accused or reason given by him

for jumping to Bhadra river. P.W.2, P.W.3, P.W.5, P.W.10, P.W.14

and P.W.15 being the relatives of the accused have clearly stated

that accused took away the children from the house and did not

return to the house along with two children and later, he informed

his brother-P.W.2 over telephone that he took the children to

Bengaluru and there, they went missing. When the relatives of the

accused went to Bengaluru, they traced accused alone and could

not trace the children, they lodged complaint to the local police at

Bengaluru and returned to Bhadravathi. Therefore, the contention

of the learned counsel for the appellant that there is delay in filing

the complaint, cannot be accepted.

21. No leniency can be shown to a heartless father like the

accused, who pushed the children into river. This is a rarest of rare

case where, in order to take revenge against wife, the husband has

pushed his own daughters to the river and killed them. Thereby,

accused is not entitled to any mercy at the hands of this Court. It

is unfortunate that the State has not filed any Appeal seeking

enhancement of punishment.

22. The learned Sessions Judge, considering the entire

material on record, has rightly come to the conclusion that the

prosecution has proved beyond reasonable doubt that on

25.03.2012 at about 11.00 am, in order to take revenge against his

wife, the accused took away his two daughters from the house and

pushed them into Bhadra river behind KSRTC depot at about 12.00

noon and thereby, accused committed an offence punishable under

Section 302 of the Indian Penal Code.

23. For the reasons stated above, the first point raised for

consideration in the present Appeal is answered in the affirmative

holding that the learned Sessions Judge is justified in convicting the

accused for the offence punishable under Section 302 of the Indian

Penal Code. The second point is answered in the negative holding

that accused has not made out any ground to interfere with the

impugned judgment of conviction and order of sentence passed by

the learned Sessions Judge, in exercise of appellate jurisdiction

under Section 374(2) of the Code of Criminal Procedure.

24. In view of the above, we pass the following:

ORDER

(i) The Criminal Appeal is hereby dismissed.

(ii)    The    impugned judgment of conviction dated

        29.11.2018           and      order    of     sentence      dated

03.12.2018 made in Sessions Case No.112/2012

on the file of the IV Additional District and

Sessions Judge, Shivamogga, sitting at

Bhadravathi, convicting the accused for the

offence punishable under Section 302 of the

Indian Penal Code and sentencing him to undergo

imprisonment for life and to pay fine of `50,000/-

(Rupees fifty thousand only), in default to

undergo simple imprisonment for a period of one

year, is hereby confirmed.

(iii) However, the impugned judgment of conviction

wherein the learned Sessions Judge has observed

that the 'accused is sentenced to undergo

imprisonment till his death', is clarified as

'imprisonment for life' as contemplated under

Section 302 of the Indian Penal Code.

Sd/-

JUDGE

Sd/-

JUDGE

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