Keshava vs The State Of Karnataka
2022 Latest Caselaw 147 Kant

                                  1



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 5TH DAY OF JANUARY, 2022

                          PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                            AND

             THE HON'BLE Mrs. JUSTICE M.G. UMA


             CRIMINAL APPEAL NO.1120/2017

BETWEEN:

KESHAVA
S/O. PILLAMUNIYAPPA
AGED ABOUT 34 YEARS
CONVICT NO.12293
PRESENT ADDRESS:
CENTRAL PRISON
BELLARY - 583 219,
PERMANENT ADDRESS:
R/O. KORAMANGALA GRAMA
VIJAYAPURA HOBLI
DEVANAHALLI TALUK - 562 110
                                             ... APPELLANT

(BY SRI: KAPIL DIXIT, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY VIJAYAPURA POLICE
REPRESENTED BY
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001
                                          ... RESPONDENT

(BY SRI: VIJAYKUMAR MAJAGE., ADDL. SPP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
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20.11.2015 AND SENTENCE DATED 26.11.2015 PASSED BY THE V
ADDL. DISTRICT AND SESSIONS JUDGE, DEVANAHALLI IN
S.C.NO.15001/2013 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.10,000/- FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. THE
APPELLANT/ACCUSED IS PRAYS THAT HE BE ACQUITTED.


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


                            JUDGMENT

The appellant-accused has filed the present appeal

against the impugned judgment of conviction dated

20.11.2015 and order of sentence dated 26.11.2015 made in

S.C.No.15001 of 2013 on the file of V Additional District and

Sessions Judge, Devanahalli (hereinafter referred to as 'the

Trial Court'), convicting the appellant-accused for the offence

punishable under Section 302 of Indian Penal Code (for short

'the IPC'), and sentencing him to undergo rigorous

imprisonment for life and to pay a fine of Rs.10,000/-.

2. The Circle Inspector of Police, Vijayapura Circle

after investigation filed the charge sheet against the accused

for the offence punishable under Section 302 of IPC. It is the

specific case of the prosecution that accused and deceased

Anitha are husband and wife. Their marriage was performed

about 10 years prior to the incident. From the wedlock, they

had begotten two children by names Charan and Myna aged 5

years and 1½ years respectively. Both were residing together

in the house of accused at Koramangala. After the birth of

children, there was frequent quarrel between the accused and

the deceased in respect of trivial issues. The panchayats

were held in the presence of elders, but not yielded any

result. It is the further case of prosecution that on

02.02.2013 in the midnight at about 12.00 a.m., there was a

sudden quarrel between the accused and the deceased and

during quarrel, the accused became violent and assaulted his

wife on her head, hands and legs with MO1 - chopper and

caused grievous cut injuries. Due to the grievous cut injuries,

she collapsed and died at the spot. The accused feared by the

death of deceased thought that he may be prosecuted for her

murder and made an attempt to kill himself by cutting his

throat by a small knife. In the meanwhile, the brothers and

relatives of the accused came to his house and took the

accused to the Government Hospital, Devanahalli for

treatment and thereafter, he was shifted to Bowring Hospital.

In the midnight at about 1.00 a.m., PW5 - Munikrishna, the

brother of accused informed the murder of the deceased by

the accused to PW7 - Hanumappa, who in turn telephoned to

PW2 - Venkateshappa, the complainant who is the adopted

father of the deceased. PW2 - Venkateshappa informed the

same to his friends and relatives and all of them went to

Koramangala to the house of accused and saw the dead body

and PW2 - Venkateshappa lodged the complaint to Vijayapura

Police Station as per Ex.P2.

3. On the basis of Ex.P2, PW18 - Sandeep Kowri,

Sub Inspector of Police of Vijayapura Police Station registered

the case in Crime No.22 of 2012 for the offence punishable

under Section 302 of IPC and after investigation, filed the

charge sheet. Learned JMFC secured the presence of the

accused and committed the matter to the Sessions Court.

The learned Sessions Judge secured the presence of the

accused and framed charge for the offence punishable under

Section 302 of IPC and read over and explained the same to

the accused in kannada language known to him. The accused

pleaded not guilty and claimed to be tried.

4. In order to prove the case of prosecution, it

examined PWs.1 to 19, marked material documents Exs.P1 to

14 and material objects MOs.1 to 11. After completion of

evidence of the prosecution witnesses, statement of the

accused was recorded under Section 313 of Cr.P.C. The

accused denied all the incriminating materials available on

record in his statement recorded under Section 313 of Cr.P.C.,

but has not chosen to lead any evidence in support of his

defence. Based on the aforesaid pleadings, the learned

Sessions Judge formulated the points for consideration.

Considering both oral and documentary evidence on record,

the learned Sessions Judge recorded the finding that the

prosecution has proved beyond reasonable doubt that

deceased Anitha is the wife of the accused and they were

frequently quarrelling and on 02.02.2013 at about 11.30 to

12.00 in the midnight at Koramangala village in the house of

the accused, the accused with an intention to murder his wife

assaulted her with chopper on the head and other parts of the

body and caused grievous injuries, which has resulted in the

instant death, thereby, attracts the provision of Section 302 of

IPC. Accordingly, the learned Sessions Judge by the

impugned judgment of conviction and order of sentence,

convicted the accused for the offence punishable under

Section 302 of IPC sentencing him to undergo rigorous

imprisonment for life with a fine of Rs.10,000/-. Hence, the

present appeal is filed by the accused.

5. We have heard the learned counsel for the parties

to the lis.

6. Sri.Kapil Dixit, learned counsel for the appellant-

accused contended with vehemence that the impugned

judgment of conviction and order of sentence passed by the

Trial Court convicting the accused for the offence punishable

under Section 302 of IPC is without any basis and contrary to

the material on record and cannot be sustained and liable to

be set aside. He further contended that the alleged

unfortunate incident occurred in the house of the accused in

midnight on 02.02.2013 was due to sudden provocation,

thereby, the accused assaulted his wife which clearly attracts

of the provisions of Section 304 of IPC and not Section 302 of

IPC. The same has not been considered by the learned

Sessions Judge while passing the impugned judgment, hence,

the same cannot be sustained. He would further contend that

the Trial Court proceeded to convict the accused mainly on

the ground that he was suspecting the fidelity of his wife that

she was having affair with another man by name Nataraj and

it was the strong motive for the appellant-accused to murder

Anitha. Learned Sessions Judge failed to notice that there is

no smoke without fire, when expressing the latter

observation, if the Trial Court stood by its view that the

appellant was making out an imaginary and fictitious

character connecting Nataraj, it could not have held the

appellant-accused killed his wife as he suspected her chastity.

7. He would further contend that because of the

mistake committed by the learned counsel for the accused

before the Trial Court about the new defence taken with

regard to the illicit relationship with Nataraj, the same should

not affect the rights of the accused who is innocent as the

incident happened in a sudden provocation and without any

pre-meditation. The said aspect of the matter has not been

considered by the learned Sessions Judge, thereby

erroneously convicted the accused. He would further contend

that though the accused was admitted to Bowring Hospital

immediately after the incident as he has also sustained

injuries, he was not arrested immediately and when he went

to the police station on 27.02.2013 to know the fate of the

complaint, he was arrested and the complaint submitted by

him was suppressed by the police. The said aspect has not

been considered by the Trial Court and ignoring the fact that

the appellant being a layman and hailing from a downtrodden

section of the society, there is all likelihood that the written

the complaint which he intended to submit to the police

station through the Medical Officer could have been

suppressed deliberately and with intention. Therefore, there

is a need for an investigation in the matter all over again, for

which the impugned judgment of conviction and order of

sentence has to be set aside. Therefore, he prays for allowing

the appeal.

8. Per contra, Sri.Vijaykumar Majage, learned

Additional State Public Prosecutor for the State while

justifying the impugned judgment of conviction and order of

sentence passed by the Trial Court convicting the accused for

the offence punishable under Section 302 of IPC contended

that there is no dispute that the appellant and the deceased

are husband and wife and they had love marriage and from

the wedlock, two children were born. It is the specific case of

prosecution as per the complaint lodged by PW2 -

Venkateshappa, the adoptive father of the deceased that two

years prior to the incident, there was frequent quarrel

between the husband and wife and the husband assaulted his

wife with MO1 - chopper and thereby killed his wife.

Therefore, the Trial Court is justified in convicting the accused

for the offence punishable under Section 302 of IPC.

9. He would further contend that even though the

accused has not offered any explanation while recording his

statement under Section 313 Cr.P.C., but very strangely the

defence is taken in the cross examination that the deceased

had illicit relationship with one Nataraj, thereby, the accused

was provoked and assaulted his wife. That being the story

created only during the cross examination of the prosecution

witnesses and there is absolutely no basis and the fictitious

person address was also not known to the accused. He would

further contend that if really there was a quarrel, he should

have offered explanation in his statement recorded under

Section 313 Cr.P.C. In the absence of any explanation, a film

story created by him cannot be accepted. He would further

contend that on the date of unfortunate incident occurred on

02.02.2013 in the midnight, only the accused and his wife

were in the house of the accused at Koramangala and the

burden is on the husband to explain in view of the provisions

of Section 106 of the Evidence Act. The same has not been

discharged.

10. He would further contend that both oral and

documentary evidence produced depicts that the accused

intentionally killed his wife with MO1 - chopper on the

unfortunate day and thereby committed the murder of his

wife, which attracts the provision of Section 302 of IPC. He

further contended that the learned Sessions Judge on

considering both oral and documentary evidence in a proper

perspective has rightly convicted the accused for the offence

punishable under Section 302 of IPC. He further contended

that Ex.P14 - FSL report clearly depicts that the blood was

detected in Article Nos.1 to 3, 5 to 11 i.e., Machu, maflar,

control soil, sweater, nighty, petticoat, bra, pant, towel and

blade and it was stained with human blood. The blood clot in

item No.4 was disintegrated and item No.1 machu, item No.2

maflar and item No.3 control soil were stained with 'B' blood

group. Therefore, he sought for dismissal of the appeal.

11. In view of the rival contentions urged by learned

counsel for the parties, the only point that would arise for our

consideration in this appeal is:

             "Whether       the         appellant-accused            has
      made    out    a     case     to     interfere         with    the

impugned judgment of conviction and order of sentenced passed by the Trial Court in convicting the accused for the offence punishable under Section 302 of IPC sentencing him to undergo rigorous imprisonment for life and pay a fine of Rs.10,000/-, in the facts and circumstances of the case?"

12. We have given our anxious consideration to the

arguments advanced by the learned counsel for the parties

and perused the entire material on record and the Trial Court

records carefully.

13. It is not in dispute that the accused and the

deceased Anitha are husband and wife and their marriage was

performed about 10 years prior to the incident. It is also not

in dispute that from of the wedlock, two children were born

aged 5 years and 1½ years respectively. According to the

complaint - Ex.P2 filed by PW2 - Venkateshappa, the uncle of

the deceased and adopted father, Anitha is the daughter of

his brother and her mother died while she was in her tender

age and since her father was drunkard, he has fostered the

deceased and as she fell in love with the accused about 10

years back, he performed their marriage at H-Cross, as per

Hindu customs and rites. They were residing in Koramangala

and they had two children by name Charan and Myna aged 5

years and 1½ years respectively. There were frequent

quarrels between the husband and wife and from last two

years, he had convened panchayats for 3 to 4 times and had

advised the accused. He further stated that at about 1.00

a.m. on 03.02.2013, he received information from his relative

Hanumappa that there was a quarrel between the husband

and wife and the accused had assaulted the deceased with

chopper on her head and hand, thereby killed and after killing

the wife, being afraid of the consequences, has tried to cut his

throat with a blade. Thereafter, he informed the same to his

friends and relatives and went to the spot and thereafter

lodged the complaint. Based on the complaint - Ex.P2, the

police registered the case on 03.02.2013 at about 7.30 a.m.

in Crime No.22 of 2012 for the offence punishable under

Section 302 of IPC.

14. This Court being the Appellate Court, in order to

re-appreciate the entire materials on record, it is relevant to

consider the evidence of the prosecution witnesses and the

documents relied upon.

(i) PW1 - Paparaju is a coolie by profession. He has stated that he has signed on Ex.P1 - spot mahazar in the police station. He has turned hostile.

(ii) PW2 - Venkateshappa, is the uncle of the deceased and complainant who has stated in support of the case of prosecution. Nothing has been elicited in the cross examination to disprove that the accused was not involved in the commission of the death of the deceased.

(iii) PW3 - Muniraju is the brother of the deceased who has stated that there are 4 siblings to their parents. After demise of his mother, his father addicted to alcohol and neglected the children, therefore, the deceased was under the care and custody of PW2 - the uncle. The marriage of the deceased was performed about 10 years prior to

the incident. About 7 to 8 years they led a happy married life and out of the wedlock they have two children. Recently, from last two years, they started quarrelling and accordingly, PW2 - uncle had conducted panchayath for 3 to 4 times, but has not yielded any result. He received a call from Hanumappa, then he along with others reached Koramangala and found the dead body. Accordingly, Ex.P1 was prepared and he had signed Ex.P1 - mahazar. He further stated that he has not seen the accused at the spot with self injury. He has supported the case of prosecution.

(iv) PW7 - Hanumappa, who is the neighbour has stated that he know both the accused and the deceased. He has stated that his house is about 50 to 100 feet far from his house. About one year ago, when he was sleeping at his home, at about 12.00 in the midnight, PW5 - Munikrishnappa waked him up and asked him to come to Anitha's house and when they visited, they found Anitha was dead with severe head injuries. At that time, there was only accused and the deceased at the home and he called PW3 - Muniraju, the brother of the deceased and told about the incident. The relationship of the deceased and the accused were cordial, however, recently they started quarrelling with each other and they conducted panchayat, the same has not yielded any result. He further

stated that the accused never spoke about the illicit relationship with Nataraj. The police never took any statement of him. He supports the case of prosecution.

(v) PW8 - Eshwara is the relative of the deceased. He also stated on par with PW7 and so also PW9 - Munivenkatappa and PW10 - Gowramma. Nothing has been elicited from the cross examination to disbelieve that accused is not involved in homicidal death of the deceased. Admittedly, PW9 - Munivenkatappa has given a statement on oath and he has not been cross examined.

(vi) PW11 - Kemparajaiah is the PDO of Koramangala Grama Panchayat. As per requisition, he has prepared and issued demand register extract in respect house of the accused as per Ex.P6. He supports the case of prosecution.

(vii) PW12 - Srinivas Murthy is the Junior Engineer. As per the requisition, he has prepared Ex.P8 spot sketch and issued letter of AEE as per Ex.P9. He supports the case of prosecution.

(viii) PW13 - Dr.Nagesh who conducted post mortem has stated on oath that on 03.02.2013, he received requisition to conduct post mortem of the dead body of the deceased. Accordingly, he conducted post mortem of the dead body of deceased Anitha and later on 15.03.2013, he

received MO1 - machete for opinion. He has given his opinion as per Ex.P11 that it is possible to cause the injuries sustained by the deceased with the weapon. He has also identified MO.2 and MOs.5 to 10 the clothes of the deceased and opined that as many as 7 injuries were found on the dead body as per the post mortem report.

(ix) PW14 - Shivamallappa is the Police Constable who submitted FIR to the Hon'ble Court on 03.02.2013 around 12.00 in the afternoon.

(x) PW15 - Nagaraj and PW19 - Md.Khakim Mulla are the Head Constables. They were deputed on 14.03.2013 by the Investigating Officer to trace the accused. On receiving the information that the accused is in Bowring hospital, they apprehended the accused and produced before the Investigating Officer.

(xi) PW16 - Buddegowda is the Head Constable who carried 7 articles to FSL on 14.03.2013 i.e. MOs.1 to 11.

(xii) PW17 - Venugopal is the Police Inspector who is also Investigating Officer visited the hospital, recorded the statement, collected the samples and identified the materials and submitted the same before the Court. He has also made requisition to Grama Panchayath and PWD to prepare sketch of

the house of the accused and after completion of investigation, filed charge sheet.

(xiii) PW18 - Sandeep P Kauri is the Police Sub Inspector who received information that husband has murdered his wife with chopper and immediately rushed to the scene of offence and found the dead body. Later on receiving the complaint from PW2 - Venkateshappa registered FIR for the offence punishable under Section 302 of IPC.

15. Based on the aforesaid materials on record, the

Trial Court proceeded to convict the accused. Admittedly,

there are no eye witness to the incident. PW2 -

Venkateshappa who is the adopted father of deceased lodged

the first information on the basis of information given by PW7

- Hanumappa who got information from PW5 -

Munikrishnappa. It is specifically stated in Ex.P2 that initially

their relationship was cordial and from about 2 years, accused

started ill-treating Anitha due to some family dispute. The

elders had advised the accused, but he did not heed to the

same and continued ill-treating the deceased. He further

explained that the accused was manhandling, ill-treating and

abusing the deceased to bring money from her parent's

house. But there is no such plea in the complaint. It is the

specific defence of the accused that since the deceased was

having extra marital relationship with one Nataraj, he was

quarrelling with her. Admittedly, no such explanation is

offered by the accused in his statement recorded under

Section 313 of Cr.P.C. and in the absence of any material

document produced to prove the illicit relationship, mere cross

examination without any basis cannot be a ground to believe

the version of the accused.

16. It is also not in dispute that the accused in the

cross examination of prosecution witnesses has taken a

defence that the deceased was having illicit relationship with

one Nataraj. Therefore, the suggestion of the accused made

in the cross examination of the prosecution is strong and

more reliable. A married lady Anitha may feel very much

insulted when her husband suspects her fidelity. Therefore,

she might not have disclosed the real facts to PW2, relatives

and friends and therefore, PW2 might not have not stated the

same in the complaint as well as in the evidence. Thereby,

suggestion of the accused itself gives rise the motive for him

to commit the offence, which becomes strong and more

probable.

17. One of the contention raised by the learned

counsel for the accused in the present appeal is that the very

defence of illicit relationship between Anitha and one Nataraj

could not have been taken by the learned counsel for the

accused before the Trial Court, but unfortunately, in the

present case, no such ground is taken by the appellant in the

present appeal. From the oral and documentary evidence on

record, the prosecution proves that the deceased and the

accused were quarreling for trivial issues. It is true that

PWs.2, 3 and 7 to 10 have not stated before the police that

the quarrel was for getting dowry, but however, they have

stated that the dispute was in respect of bringing money from

the parents of the deceased. PW3 has stated in his evidence

that the accused was having extra marital affair with another

woman. But he has not stated that the deceased was having

illicit relationship with another boy. All the witnesses have

clearly deposed before the Court that the relationship of the

accused and the deceased was not cordial. All the witnesses

are not the eye witnesses to the incident, but the accused had

personal knowledge of the quarrel which discloses that the

deceased had illicit relationship with one Nataraj. Therefore,

there was frequent quarrel.

18. If really there was truth in the statement that the

quarrel took place between the husband and wife and

according to the defence, Nataraj, the alleged paramour tried

to assault the accused, thereby the deceased tried to protect

her husband and Nataraj killed the deceased and not the

accused. If really that was the defence, the accused ought to

have lodged the complaint before the jurisdictional police

immediately after the incident, instead he has vanished from

the spot. The another defence taken by the accused is that

deceased Anitha had extra marital relationship with one

Nataraj and the accused had suspected her chastity and

fidelity. When the husband suspected and believed that his

wife is having affair with another man, it is a strong motive to

murder her. The said defence of the accused indicates that is

was the motive to kill his wife.

19. On perusal of the entire statement recorded under

Section 313 of Cr.P.C. of the accused, nowhere he has offered

any explanation to the incriminating circumstances placed by

the prosecution. In the absence of explanation, an adverse

inference has to be drawn against the accused under the

provision of Section 114(g) of the Evidence Act. Our view is

fortified by the Hon'ble Supreme Court in the case of Prahlad

Vs State of Rajasthan1, wherein para 11, it is held as under:

"11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. 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. It is also not in dispute that admittedly as per the

date of incident, accused and the deceased were residing in

the house of the accused. Admittedly, the husband has not

discharged initial burden on him to offer any reasonable

explanation under the provisions of Section 106 of Evidence

Act as to how the deceased died, as held by the Hon'ble

Supreme Court in Kalu alias Laxminarayan Vs State of

(2019) 14 SCC 438

Madhya Pradesh2, wherein, at paras 11 to 16, held as

under:

"11. The aforesaid factors leave us satisfied that the prosecution has been able to successfully establish a case for a homicidal death inside the house where the deceased resided with the appellant alone. The conduct of the appellant, in the aforesaid background, now becomes important. If the deceased had committed suicide, we find it strange that the appellant laid her body on the floor after bringing her down but did not bother to inform anyone living near him much less the parents of the deceased. There is no evidence that the information was conveyed to the family members of the deceased by the appellant or at the behest of the appellant. The appellant was also not found to be at home when her family members came the next morning. The appellant offered no defence whatsoever with regard to his absence the whole night and on the contrary PW3 attempted to build up a case of alibi on behalf of the appellant, when he himself had taken no such defence under Section 313 Cr.P.C.

(2019) 10 SCC 211

12. The occurrence had taken place in the rural environment in the middle of the month of October when it gets dark early. Normally in a rural environment people return home after dusk and life begins early with dawn. It is strange that the appellant did not return home the whole night and was taken into custody on 21.10.1994.

13. In the circumstances, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the matrimonial home as it was a fact specifically and exclusive to his knowledge. It is not the case of the appellant that there had been an intruder in the house at night. In Hanumant. v State of M.P. it was observed:

"10. .....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the

one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

14. In Tulshiram Sahadu Suryawanshi v State of Maharashtra, this Court observed:

"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not

intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar:

"38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:

'11. This 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."

15. In Trimukh Maroti Kirkan v State of Maharashtra, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case:

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions --

quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of

Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a 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 an accused to offer any explanation.

22. 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. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the

facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313 Cr.P.C with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased."

21. It is also not in dispute that with regard to the

defence taken by the accused that the Investigating Officer

has not examined any of the neighbor or witnesses belonging

to Koramangala Village, in fact, the Investigating officer has

examined PWs.1, 5, 7 and one Shivakumar, the resident of

Koramangala. PWs.1, 5 and 7 in their evidence have not

stated that Anitha had illicit relationship with Nataraj and

Nataraj killed Anitha and not her husband. PW5 -

Munikrishnappa, the brother of the accused has not supported

the version of the accused. If anybody has seen the incident

that Nataraj killed Anitha, the accused could have examined

them or atleast bring the same to the notice of the

Investigating Officer. The accused has failed to examine any

of the witnesses to prove that the deceased had illicit

relationship with Nataraj, as such the alleged defence taken

by the accused appears to be a story and is not probable.

From this it appears that the said Nataraj is a fictitious person

and the accused has created a false story. Whether the said

Nataraj is the resident of same village or from different village

is also not made known to the Court. It also does not disclose

that he was very rich person and politically influenced having

capacity to avoid the litigation and case against him.

Therefore, the defence taken by the accused before the Trial

Court is unacceptable.

22. The Trial Court considered the entire material on

record in a proper perspective and has come to the right

conclusion that the deceased is the wife of the accused and

there was frequent quarrel and on 02.02.2013 at about 11.30

to 12.00 in the mid night, in Koramangala in the house of

accused with an intention to murder his wife assaulted her

with chopper on her head, hands and other parts of the body

and caused grievous injuries as a result of the incident, the

deceased died at the spot, which attracts the provisions of

Section 302 of IPC. Though learned counsel for the appellant

tried to persuade this Court that it is a frequent quarrel

between the parties and due to sudden provocation, the

accused assaulted the deceased and thereby Exception 4 of

Section 300 of IPC attracts under the provision under Section

304 Part II IPC, cannot be accepted. If really there was

sudden quarrel between the wife and husband and during the

quarrel and without premeditation he assaulted, the same

should have been taken or offered explanation in the

statement recorded under Section 313 Cr.P.C., but the same

is not stated. Very strangely, they have taken a new defence

in the cross examination of the prosecution witness that she

had illicit relationship with one Nataraj. The same is not

proved thereby, the very plea taken in the present appeal

cannot be accepted.

23. Learned counsel for the appellant has not pointed

out any of the circumstances and any of the evidence of the

prosecution witnesses that the accident occurred due to

sudden provocation without pre-meditation. Admittedly, the

accused has not examined any defence witnesses to prove the

specific evidence with regard to the illicit relationship between

the deceased and Nataraj, thereby the prosecution has proved

beyond reasonable doubt about the involvement of the

accused in homicidal death of his own wife and killed using

MO1 - chopper. If really there was a sudden quarrel there

was no occasion for the accused to use MO1 - chopper and

assault on the vital parts of the body.

23. As per Ex.P10 - the post mortem report discloses

7 injuries which reads as under:.

"1. Condition of Subject: Stout, emaciated, decomposed, etc.

- A female body aged about 30 years of height about 5 feet of dark complexion upper limbs flexed lower limbs extended. Rigor mortis present.

2. Wounds: Position, size, character.

3. Bruises: Position, size, nature.

4. Mark of ligatures on neck, dissection, etc.

-1. A liner cut injury measuring about 6" x "

over left occipital area.

2. A semi-circular deep cut injury measuring about 5"x 4"x 3"present below the previous injury exposing the underlying cut membranes and lacerated brain tissue.

3. A linear transverse cut injury measuring about 2"x 1"over lateral aspect of left arm.

4. A linear transverse cut injury measuring about 3"x 1.1/2" below the previous injury.

5. A deep transverse cut injury measuring about 4"x 2"at the level of left wrist joint disarticulated from the left upper limb.

6. A linear transverse deep cut injury measuring about 4.1/2" x 1" over right palm exposing underlying cut muscles and palmer muscles.

7. A transverse linear cut injury measuring about 4"x 1" over medical part of middle 1/3rd of right thigh".

PW13 - Dr.Nagesh, has opined that the cause of death

is due to shock and hemorrhage as a result of vital head

injury i.e., left occipital lobe of brain.

24. The same is also supported by scientific evidence

Ex.P14 - FSL report which clearly depicts as under:

"1. Presence of blood was detected in Article Nos.1, 2, 3, 5, 6, 7, 8, 9, 10 and 11.

2. Items 1, 2, 3, 5, 6, 7, 8, 9, 10 and 11 were stained with human blood.

3. Blood in Item 4 was disintegrated, hence, their origin could not be determined.

4. Items 1, 2, 3, 5, 6, 7, 8, 9 and 10 were stained with "B" blood group

5. The blood grouping of the blood stains in item 11 could not be determined as the results of the test were inconclusive".

25. All these materials unmistakenly points accusing

the finger towards the accused as the author of the crime and

the accused has not probabalized his defence, thereby the

prosecution is successful in proving the guilt of the accused

beyond reasonable doubt.

26. For the reasons stated above, the points raised in

the present appeal has to be answered in Negative holding

that the accused has not made out any grounds to interfere

with the impugned judgment of conviction and order of

sentence, sentencing him to undergo imprisonment for life

and to pay a fine of Rs.10,000/- for the offence punishable

under Section 302 of IPC.

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

ORDER

(i) Criminal Appeal filed by the accused is hereby

dismissed as devoid of merits.

(ii) The impugned judgment of conviction and order of

sentence dated 20.11.2015 passed in S.C.No.15001 of 2013

on the file of V Additional District and Sessions Judge,

Devanahalli, is hereby confirmed.

Registry is directed to send back the Trial Court records,

forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

*bgn/-