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IN THE HIGH COURT OF KARNATAKADHARWAD BENCH

Dated this the 20th day of April 2017

Present

THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA

AND

THE HON’BLE MR. JUSTICE BUDIHAL R.B.

CRIMINAL APPEAL NO.100078/2014

BETWEEN:

SRI SRINIVAS PRABHAKAR HOOLIAGE: 41 YEARS,OCC: ELECTRICAL ENGINEERR/O.KOPPALNOW AT DHARWAD ...APPELLANT

(BY SRI SRINAND A PACHHAPURE, ADV.)

AND

THE STATE OF KARNATAKABY ACP, DHARWAD, SUB URBAN PSNOW REP. BY SPP,HIGH COURT OF KARNATAKABENCH AT DHARWAD.

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

THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF

CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF

CONVICTION DATED 31.12.2013 AND ORDER OF

SENTENCE DATED 04.01.2014 PASSED BY THE P.O., FAST

TRACK COURT & II-ADDL. DIST. & SESSIONS JUDGE,

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DHARWAD, IN S.C.NO.46/2009 FOR THE OFFENCES

P/U/S 302, 498-A & 201 OF IPC.

THIS APPEAL COMING ON FOR HEARING, HAVINGBEEN HEARD AND RESERVED FOR JUDGMENT ON28.03.2017, THIS DAY, BUDHIAL R.B., J, DELIVERED THEFOLLOWING:

JUDGMENT

This appeal is preferred by the appellant/accused

being aggrieved by the judgment and order of conviction

dated 31.12.2013 passed by the Fast Track Court at

Dharwad in S.C.No.46/2009. By the said judgment and

order, the trial Court convicted the appellant/accused

for the offence punishable under Sections 498A, 302

and 201 of IPC and acquitted for the offence punishable

under Sections 3 and 4 of Dowry Prohibition Act.

2. The brief facts of the prosecution case as per

the complaint (Ex.P-1) are that appellant married

Ashwini (deceased) on 20.12.2004 and at the time of

marriage, appellant was paid Rs.30,000/- cash, 3 tholas

of gold and utensils as varopachara and during

Seemant function of the deceased, the appellant was

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given gold ornaments of 1 thola. Despite the same,

appellant used to give ill-treatment to the deceased

insisting her to bring more dowry amount from her

parental place, the same was brought to the notice of

the complainant by the deceased. Hence, the appellant

was called by the complainant and he was advised not

to give such ill-treatment to the deceased. Even then,

the appellant did not heed to the advice and was still

insisting the deceased to bring money from her parental

place and in that regard he was giving ill-treatment to

her. The couple were staying in the rented house of one

Basavaraj Yadavatti at Dharwad, Gulaganjikoppa

nearby Hanuman Temple. It is further stated in the

complaint that, on 26.12.2008 at about 4.30 a.m., the

appellant with his mobile No.9448973389 phoned to the

mobile of the complainant having No.9845216245 and

informed that Ashwini (deceased) committed suicide and

asked him to come immediately. The complainant

became perplexed and himself, his wife and other

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relatives came to Dharwad at about 10.30 a.m. and saw

his daughter Ashwini lying dead in the first hall of the

said house and she was in a supine position. There

were injuries on the front side of the neck and appears

to be because of throttling and there was a blackening

of the skin at that place. Therefore, the appellant

committed the murder of his daughter by throttling and

hence, legal action may be taken against him. On the

basis of the said complaint, case came to be registered

in Dharwad Sub-urban Police Station Crime

No.246/2008 for the offence punishable under Section

498A and 302 of IPC against the appellant. The

Investigating Officer, after conducting investigation, filed

the charge sheet for the offence punishable under

Section 498A, 302 and 201 of IPC and Sections 3 and 4

of Dowry Prohibition Act.

3. To prove its case, prosecution in all

examined 27 witnesses as P.Ws.1 to 27 and the

documents Exs.P-1 to P-24 were produced and material

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objects M.Os.1 to 5 were got marked and on the side of

the defence, the appellant/accused got himself

examined as D.W.1 and no documents were produced.

4. After considering the materials placed on

record, the learned trial Judge convicted the accused for

the offence punishable under Sections 498A, 302 and

201 of IPC and acquitted for the offence punishable

under Sections 3 and 4 of Dowry Prohibition Act. Being

aggrieved by the judgment and order of conviction, the

appellant/accused is before this Court in this appeal

challenging the legality and correctness of the judgment

and order of the trial Court on the grounds as

mentioned in the appeal memorandum.

5. We have heard the arguments of the learned

counsel appearing for the appellant/accused and also

the arguments of the learned Addl. SPP for the

respondent-State.

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6. Learned counsel for the appellant has

submitted that the judgment and order of conviction is

contrary to the material placed on record. He has

submitted that the learned trial Judge has wrongly read

the evidence and came to the wrong conclusion in

convicting the appellant/accused for the said offences.

It is the first and foremost contention that materials

show that when the complainant came to the spot, the

Police Officers and other persons were already gathered

at the spot, the complainant had deliberated with the

relatives and also with the Police Officers at the spot

and thereafter, he lodged the complaint as per Ex.P-1,

therefore, the complaint is hit by Section 162 of Cr.P.C.

and it can be only the statement under Section 161 of

Cr.P.C. and it cannot be termed as complaint. It is also

his submission that the materials placed on record

show that complainant at one breath states that he has

filed the complaint at the spot before the Police and at

another breath he has deposed that he went to the

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Police Station along with his relative and lodged the

complaint. Therefore, there is no consistency with

regard to the place at which the compliant was given by

P.W.1. It is also his contention that though it is the case

of the prosecution as per the complaint averments that

appellant/accused informed the complainant P.W.1 at

about 4.30 a.m. on 26.12.2008 and the distance from

the residence of the complainant to the place of incident

hardly takes about 15-20 minutes, even then, the

complaint was lodged at 1.00 p.m. on 26.12.2008 and

hence, there is an unexplained delay in lodging the

complaint. Hence, he has submitted that, in view of

these infirmities in lodging the complaint and if the

complaint is disbelieved, the entire case of the

prosecution shall have to be disbelieved.

Learned counsel has further submitted that on

25.12.2008 itself the appellant had been to Koppal and

he was not at all in the house on the intervening night

of 25/26.12.2008 and hence, the appellant, by

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examining himself as D.W.1, has explained in his oral

evidence also that he was not at all present in the house

during that night and he placed the material that he

was at Koppal and only after coming to know about the

incident in the house, he along with his parents came to

the spot. Hence, it is his contention that this defence of

plea of alibi of the appellant was not properly and

correctly appreciated by the trial Court and it was

wrongly rejected.

He has further submitted that it has come in the

evidence of the prosecution witnesses that the own

sister of the deceased by name Vedashree eloped with

somebody and when it was brought to the notice of

deceased Ashwini, she felt very bad and as she was very

sensitive, because of that reason she committed suicide

in the house.

Learned counsel for the appellant, in the

alternative, has submitted that there is no intention on

the part of the appellant/accused person for committing

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the murder of the deceased. He has also submitted that

as it has come in the evidence of the panch witnesses

on the prosecution side that on the previous day of the

incident i.e., on 25.12.2008 when the deceased and the

appellant had been to the relatives namely Ashok

Arkasali and Kishore Arkasali, at that time the deceased

complained before them about the demand of the

amount by the appellant and giving ill-treatment and

harassment to her and in that connection the said

Ashok and Kishore advised the appellant/accused

person not to give such ill-treatment to her and

therefore, there is a grave and sudden provocation to

the accused and hence, even if it is assumed that he is

responsible for the death of the deceased, the case at

the most is punishable under Section 304(2) of I.P.C.

and not under Section 302 of IPC.

He has also submitted that even looking to the

evidence of landlady (P.W.14), she turned hostile and

not fully supported the case of the prosecution and her

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evidence is also not helpful to the prosecution to prove

that the appellant was very much present in the house

during the night on 25/26.12.2008. He has also

submitted that since the case is based on

circumstantial evidence, the prosecution failed to

establish the chain of circumstances to prove that it is

the appellant, who committed the alleged offence.

Therefore, he has submitted that the learned trial Judge

has wrongly convicted the appellant/accused and

hence, submitted that appeal be allowed and the

judgment and order of conviction be set-aside.

Lastly, he has submitted that appellant has

already undergone custody for a period of seven years

and in case, if it is held that the appellant/accused is

responsible for committing the offence, same may be

taken into consideration.

In support of his contentions, learned counsel for

the appellant has relied upon the following decisions:

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i. 2013(3) KCCR 2014 (DB) in the case ofH.C.Karigowda @ Srinivasa and Othersvs. State of Karnataka by

Holenarasipura Town Police, HassanDistrict;

ii. AIR 1973 SC 501 in the case of ThuliaKali vs. The State of T.N.;

iii. AIR (SC) 2007 3234 in the case ofDilawar Singh vs. State of Delhi;

iv. (2014) 2 SCC 1 in the case of LalitaKumari vs. Government of UttarPradesh and others;

v. 1995 SCC (Cri) 156 in the case of Stateof Punjab Gurmej Singh vs. Jit Singh &another;

vi. AIR 1993 SC 2644 in the case of State

of Andhra Pradesh vs. Punati Ramuluand others;

vii. 1995 CRI.L.J. 457 (SC) in the case ofMeharaj Singh vs. State of UttarPradesh;

viii. ILR 2017 KAR 105 in the case of Honya@ Honnappa @ Mohan vs. State ofKarnataka.

7. Per contra, the learned Addl.State Public

Prosecutor during the course of his argument submitted

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that though the police and other persons said to have

gathered at the spot by the time the complainant came

to the said place, but they were not knowing what was

the offence committed as the house was under lock from

outside. He submitted that it is only after the arrival of

the appellant-accused to the said place at about 10.30

a.m. it is appellant himself was having the key of the

said house who opened lock with the help of the said

key. Hence, the learned Addl.State Public Prosecutor

made the submission that when till the arrival of the

accused the police as well as other persons were not

knowing exactly what is the offence taken place

therefore the question of complaint-Ex.P1 being hit by

Section 162 of the Cr.P.C. does not arise in the case.

Hence, he submitted that there was no deliberation or

discussion by the police before Ex.P1-complaint was

lodged. It is also his submission that so far as the plea

of alibi is concerned the evidence on the side of the

prosecution witnesses clearly goes to show that the

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accused was very much present in the house during the

night of 25/26.12.2008. He also submitted that except

taking a bald defence of plea of alibi the appellant has

not placed any satisfactory and cogent materials to

prove the plea of alibi. Hence, he submitted that when

the accused has failed to prove his defence on alibi this

also supports the case of the prosecution about his

presence in the house during that night. It is also his

contention that this is the incident which took place

inside the house wherein the appellant, deceased and

their 3 years old baby were residing. Therefore, learned

Addl.State Public Prosecutor made the submission that

it is for the accused to explain how and under what

circumstances the said incident took place. He made

the submission that the facts about the death of

deceased were within the knowledge of the accused

person and therefore as per Section 106 of the Evidence

Act, the appellant-accused is the proper and competent

person to explain about the circumstances and the

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reasons about the death of the deceased. He submitted

that only with an intention to escape from the

punishment he has taken false defence of plea of alibi. It

is also his contention that as per the evidence placed on

record, it is the appellant himself who informed the

complainant-PW1 at 4.30 a.m. on 26.12.2008 informing

that Ashwini committed suicide and asking him to come

immediately. The learned Addl.State Public Prosecutor

also submitted that even it has come in evidence of the

witnesses that the accused also informed that she has

consumed something and died. It is his contention that

looking to the materials placed on record there is no

supporting material to say that the deceased either

consumed any poisonous substance or she has

committed the suicide. In this connection, learned

Addl.State Public Prosecutor draw the attention of this

Court to the postmortem report, the injuries noticed by

the Doctor who conducted postmortem examination so

also the oral evidence of the Doctor and submitted that

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all these materials completely ruled out the possibility of

deceased committing suicide and on the contrary they

go to show that death is because of manual throttling.

Hence, the learned Addl.State Public Prosecutor

submitted that looking to the oral and documentary

evidence on record the Trial Court correctly appreciated

the materials and rightly comes to the conclusion in

convicting the appellant-accused. There is no illegality

committed by the Trial Court nor there is any perverse

or capricious view taken by the Trial Court in coming to

such conclusion. Hence, he lastly made submission that

there is no merit in the appeal, same may be dismissed

confirming the judgment and order of conviction passed

by the Trial Court. Even with regard to the quantum of

sentence, he submitted that the sentence imposed by

the Trial Court is reasonable and proper. In support of

his contention, learned Addl. State Public Prosecutor

relied upon the following decision of the Hon’ble Apex

Court:

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i. Crl.Appeal No.1341 of 2005 dated

11.11.2006 in the case of Trimukh

Maroti Kirkan V/s State of Maharashtra.

8. We have perused the grounds urged in the

appeal memorandum, the judgment and order of

conviction passed by the Trial Court, oral evidence of

the witnesses and the documents produced before the

Trial Court. We have perused the decisions relied upon

by the learned counsel for the appellant and the learned

Additional State Public Prosecutor for the respondent-

State, which are referred to above. So also, we have

considered the oral submissions made by both the sides

at the Bar.

9. The first and foremost contention of the

learned counsel appearing for the appellant/accused is

that there is an unexplained delay in lodging the

complaint. Even though it is the case of the prosecution

that the police officer, the other prosecution witnesses

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and the general public were very much present at the

spot much earlier to the filing of the complaint (Ex.P.1)

by P.W.1-Mohan Annappa Asangi, the police have not at

all registered the FIR though the police were having

knowledge about the commission of the cognizable

offence. It is his further contention that the complaint-

Ex.P.1 was registered at 1.00 p.m. on 26.12.2008, by

which time the investigation had already started as the

police officers were present at the spot and were having

the knowledge about the commission of cognizable

offence. Hence, it is the contention of the defence that

the complaint-Ex.P.1 is hit by Section 162 of Cr.P.C.

and it can be treated only as a statement under Section

161 recorded during the investigation. In this regard, we

have carefully perused the decisions relied upon by the

learned counsel appearing for the appellant.

10. In the case of H.C.Karigowda @ Srinivasa

and Others Vs. State of Karnataka, decision reported

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in 2013(3) KCCR 2014 (DB), the facts therein go to

show that the alleged incident had taken place at about

6.30 p.m. on 22.05.2005 and there was death of two

persons viz., Krishnegowda and Srinivas. As per the

case of the prosecution, in the said case, PWs.4 and 18

went to rescue the deceased when the assault was going

on, on the two deceased persons. After assaulting the

deceased, the accused fled away from the spot along

with the weapons and the two deceased and PW.4 were

removed, in a tempo, to the hospital where the deceased

were declared as brought dead. One of the eyewitnesses,

PW.18 escaped after he was assaulted and PW.4

another eyewitness, on being admitted to the hospital,

was examined by P.W.27-Medical Officer. After

examining PW.4, PW.27-Medical Officer sent an

intimation as per Exs.P.25 and 26 to the jurisdictional

police reporting the two deceased having been brought

dead and injured (PW.4) having been admitted into the

hospital on account of the assault made by accused

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No.4-Rajegowda. The said intimation was received

initially by Head Constable-134 who, in turn, handed

over to PW.28-PSI. PW.28, on receipt of Exs.P.25 and 26

proceeded to the Hospital at Holenarasipura, thereafter

ascertaining from the Medical Officer that PW.4 was in a

fit condition to give statement, recorded his first

information as per Ex.P.2 in the presence of the Medical

Officer and thereafter returned to the police station and,

on the basis of Ex.P.2-complaint, he registered a case in

Crime No.98/2005 for the said offences in that case.

11. Looking to para No.15 of the said judgment

[H.C.Karigowda @ Srinivasa, (supra)], it is observed by

the Division Bench as under:

“Drawing our attention to the evidence

of PWs.3, 4, 10 and 11, he submits that their

evidence reveals that the police had come to

the spot immediately after the occurrence and

they had removed the body of the two

deceased to the hospital in a tempo along

with the assistance of other witnesses

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including PW.4. He further contended that

before the two bodies were removed to the

hospital the evidence of P.W.4 reveals that he

had gone to the outpost at Halekote and had

informed them of the occurrence and

thereafter had returned to the place of

occurrence. The said outpost police had also

sent a message to Holenarasipura police

through wireless of the said information. The

Outpost police have recorded the same at

Outpost police station and forwarded the

same to Holenarasipura police station. He

further submitted that the evidence of PW.29-

CPI reveals that at about 10.30 p.m. or 11.00

p.m. on being informed by PW.28-PSI of the

occurrence he had come to the spot. If the

same is taken into consideration, PWs.28 and

29 had the information about the occurrence

much prior to coming into existence of Ex.P.2-

first information recorded by PW.28 in the

hospital. Therefore, he submits that since the

police already had definite information of the

cognizable offence about the occurrence in

this case, as the investigation had

commenced, Ex.P.2 cannot be treated as first

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information and it is hit by Section 162 of

Cr.P.C.”

After analyzing the factual aspects involved in that

particular case, the Division Bench came to the

conclusion that Ex.P.2-first information is hit by Section

162 of Cr.P.C.

12. In another decision reported in AIR 1973 SC

501 between Thulia Kali Vs. The State of T.N., it is

observed by their Lordships of the Hon’ble Apex Court,

at para 12, as under:

“It is in the evidence of Valanjiaraju that

the house of Muthuswami is at a distance of

three furlongs from the village of Valanjiaraju.

Police station Valavanthi is also at a distance of

three furlongs from the house of Muthuswami.

Assuming that Muthuswami PW8 was not found

at his house till 10.30 p.m. on March 12, 1970

by Valanjiaraju, it is not clear as to why no

report was lodged by Valanjiaraju at the police

station. It is, in our opinion, most difficult to

believe that even though the accused had been

seen at 2 p.m. committing the murder of

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Madhandi deceased and a large number of

villagers had been told about it soon thereafter,

no report about the occurrence could be lodged

till the following day. The police station was less

than two miles from the village of Valanjiaraju

and Kopia and their failure to make a report to

the police till the following day would tend to

show that none of them had witnessed the

occurrence. It seems likely, as has been stated

on behalf of the accused, that the villagers came

to know of the death of Madhandi deceased on

the evening of March 12, 1970. They did not

then know about the actual assailant of the

deceased, and on the following day, their

suspicion fell on the accused and accordingly

they involved him in this case. First information

report in a criminal case is an extremely vital

and valuable piece of evidence for the purpose of

corroborating the oral evidence adduced at the

trial. The importance of the above report can

hardly be overestimated from the standpoint of

the accused. The object of insisting upon prompt

lodging of the report to the police in respect of

commission of an offence is to obtain early

information regarding the circumstances in

which the crime was committed, the names of

the actual culprits and the part played by them

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as well as the names of eye witnesses present at

the scene of occurrence. Delay in lodging the

first information report quite often results in

embellishment which is a creature of

afterthought. On account of delay, the report not

only gets bereft of the advantage of spontaneity,

danger creeps in of the introduction of coloured

version, exaggerated account or concocted story

as a result of deliberation and consultation. It is,

therefore, essential that the delay in the lodging

of the first information report should be

satisfactorily explained. In the present case,

Kopia, daughter-in-law of Madhandi deceased,

according to the prosecution case, was present

when the accused made murderous assault on

the deceased. Valanjiaraju, stepson of the

deceased, is also alleged to have arrived near the

scene of occurrence on being told by Kopia.

Neither of them, nor any other villager, who is

stated to have been told about the occurrence by

Valanjiaraju and Kopia, made any report at the

police station for more than 20 hours after the

occurrence, even though the police station is

only two miles from the place of occurrence. The

said circumstance, in our opinion, would raise

considerably doubt regarding the veracity of the

evidence of those two witnesses and point to an

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infirmity in that evidence as would render it

unsafe to base the conviction of the accused-

appellant upon it.”

13. Looking to the above mentioned two

decisions, the proved facts in the said cases were that

there were eyewitnesses to the incident. In the case of

H.C.Karigowda @ Srinivasa (supra), P.W.4 was the

injured and the facts therein also go to show that the

police officer immediately rushed to the spot, shifted the

deceased to the Hospital and also the P.W.4 and other

witnesses. In the case of Thulia Kali (supra), the facts

proved in the said case go to show that Kopia, the

daughter-in-law of the deceased, is an eyewitness to the

incident and even she called Valanjiaraju, who also

arrived near the scene of occurrence, and there was a

delay of more than 20 hours in lodging the first

information report before the police.

14. We have also perused decisions of the Hon’ble

Supreme Court in the case of Dilawar Singh Vs. State

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of Delhi reported in AIR 2007 SC 323 and in the case

of Lalita Kumari Vs. Government of Uttar Pradesh

and Others reported in (2014)2 SCC 1, with regard to

the principles enunciated therein regarding the

importance of registration of an information as FIR at

the earliest point of time.

15. In view of the principles enunciated in the

above referred decisions relied upon by the learned

counsel appearing for the appellant, now the question in

this case is,

Whether the complaint-Ex.P.1 is hit

by Section 162 of Cr.P.C., or, at the most, it

can be treated only as a statement recorded

under Section 161 of the Code of Criminal

Procedure during investigation?

16. Looking to the factual story, as per the

prosecution case, involved in this particular case, the

alleged incident took place in the residential house

wherein only the appellant/accused, his wife (deceased)

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and their small baby were residing and the incident

took place during the night of 25/26.12.2008. As per

the complainant’s contention, at about 4.30 a.m. on

26.12.2008, he received the information from the mobile

phone of the appellant/accused to his mobile phone

informing that the deceased committed suicide and

asking him to come immediately. In turn, P.W.1-

complainnant requested his relatives i.e., P.Ws.3 and 4

informing them about the message received from the

appellant and asking them to go to the said place

immediately and he will come later as it may take some

time. It is no doubt true, looking to the evidence of

P.Ws.3, 4 and other prosecution witnesses, they

reached the place at about 8.00 or 8.30 a.m. in the

morning, and when the complainant and his wife

reached the spot, it was 10.30 a.m. in the morning, by

which time the police were already present at the spot.

But it has come on record through the mouth of the

witnesses on the side of the prosecution that when they

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had been to the spot, the residential house of the

appellant was under lock from outside and it is only

after the arrival of appellant/accused to the spot at

about 10.30 a.m., the accused was having the key of the

lock and with the help of the said key, the accused

himself opened the lock, and thereafter everybody went

inside the house and saw the dead body. It is no doubt

true that a suggestion was made to the prosecution

witnesses that the accused was not at all in the house

during that night and he had been to Koppal and came

back at about 10.30 a.m. on 26.12.2008, but, the said

suggestion has been denied by all the witnesses. The

prosecution witnesses, viz., PW.1-Mohan, PW.2-

Manjula, PW.3-Seema and PW.5-Ashok have

consistently deposed in their evidence that the accused

was having the key of the said house and he opened it

when he came along with the police at about 10.30 a.m.

Therefore, looking to these materials placed on record

during the course of trial, it clearly goes to show that

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the house was under lock from outside till it was opened

at 10.30 a.m. by the accused with the help of the key

that he was having. Therefore, till the door was opened

at 10.30. a.m., even the police and other persons, who

had gathered in front of the house, were not able to

know exactly what incident that had taken place.

Whether it was a suicide or it was a homicidal death,

absolutely there was no information till that time to the

police. Apart from that, looking to the decision of the

Hon’ble Apex Court in the case of Lalita Kumari

(supra), in the Head Note ‘A’ at para 3, it is observed by

their Lordships as under:

“However, where information received does

not disclose a cognizable offence a preliminary

inquiry may be conducted to ascertain whether

cognizable offence is disclosed or not – Also,

matrimonial disputes/family disputes,

commercial offences, medical negligence cases,

corruption cases, or cases where there is

abnormal delay/laches in initiating criminal

prosecution are illustrations and not exhaustive

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of all cases which may warrant preliminary

inquiry.”

Therefore, in this case, as we have already stated above,

the incident took place in the residential house. As per

the evidence of the prosecution witnesses, the house

was under lock till 10.30 a.m. There was no definite

information to the police that a cognizable offence had

taken place. This is why because, as per the say of the

complainant-PW.1, accused informed PW.1 at 4.30 a.m.

on 26.12.2008 that she (deceased) committed suicide,

but it has come in the evidence of the prosecution

witnesses that the accused, at one stretch, informed

them that she (deceased) committed suicide by hanging

and, at another stretch, he informed them that that she

consumed something. Looking to this material also,

what exactly had happened was not known to anybody.

Therefore, looking to the facts and circumstances in the

decisions relied upon by the learned counsel for the

appellant/accused and the facts and circumstances of

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the case on hand, they are not exactly one and the

same. The criteria in respect of the offences that may

take place on the open ground and at some open place

cannot be the same as that of the offence in the present

case, which has taken place in the residential house

where only the couple were residing with their small

kid. There may be some delay, but in view of the

reasons and the evidence that we have discussed above,

we are of the clear opinion that Exs.P.1-complaint is not

hit by Section 162 of Cr.P.C, and it cannot be said that

Ex.P.1 can be considered only as a statement recorded

under Section 161 of Cr.P.C. during investigation.

Therefore, the decisions relied upon by the learned

counsel for the appellant will not come to the aid and

assistance of the appellant.

17. Looking to the cross-examination of the

prosecution witnesses, it is the defence of the accused

that his wife Ashwini committed suicide. But looking to

: 31 :

the postmortem report-Ex.P23, the Doctor who

conducted the autopsy noticed the external injuries as

under:-

“Continuous oblique imprint abrasions 4

in numbers with bruising in between and

surrounding them are present over front of

neck which are reddish brown in colour dry

and parchment like. These imprint abrasions

are round to oval in shape and measure 1.5

c.m. in diameter. The surrounding area is

bruised and congested. The upper end of then

continuous abrasion with bruise starts from a

point 5 c.m. below symphysis mark, 5 c.m.

lateral to midline towards right side above

superior border of thyroid cartilage. It traverses

downwards obliquely towards left crossing

midline at the level of thyroid cartilage and

ends at a point 8 c.m. below symphysis menti

4 c.m. lateral to midline towards left side. The

total area of all abrasion with bruising

measures 10 X 2 c.m.”

Even in his oral evidence also the Doctor-PW24

deposed about the said injuries which are narrated in

detail in the previous paragraph.

: 32 :

18. The Doctor has also mentioned in his oral

evidence that on further dissection of the neck bruising

and hemorrhage is found in superficial much

corresponding to areas mentioned above of abrasion

and bruising. Few hemorrhage spots are seen over

thyroid gline, cartilage and surface of epiglatice. The

Doctor has given the final opinion regarding the cause

of death that death is due to asphyxia as a result of

manual strangulation (throttling). During the course of

cross-examination of PW24, it was suggested that if a

person by taking soft cloth or the saree and commits

suicide by strangulation and at that time also the

injuries which has been mentioned at the neck portion

can be caused, but the Doctor denied the said

suggestion. He also denied the suggestion that at the

instance of the Investigation Officer, he has given a false

report that death is because of the manual

strangulation (throttling). Therefore, even looking to the

: 33 :

cross-examination of PW24 nothing has been elicited

from his mouth that the contents of the postmortem

report are false. Even it is not established in his oral

evidence that he is giving false evidence. Through the

mouth of some of the prosecution witnesses who are the

relatives of the deceased it has also come on record that

the accused informed that she committed suicide and

also he informed that she consumed something. In this

regard, prosecution produced the document Ex.P17

which is the FSL report. The opinion in this FSL report

is as under:-

“Residue of volatile poisons, pesticides,

barbiturates, benzodiazepines, toxic metal ions

and anions were not detected in all the above

stated exhibits.

So this Ex.P17-FSL report goes to show that the

stomach contents were examined by the laboratory and

found that there are no poisonous substance found.

Looking to the postmortem report so also the oral

evidence of PW24 and the document Ex.P17, it

: 34 :

completely overrules the possibility of the deceased

committing suicide by strangulation or committing

suicide by consumption of any poisonous substance.

Therefore, the accused was not able to establish that

the death is because of suicide and on the contrary

these materials and the other oral evidence of the

relatives of the deceased namely the parents and PW3, 4

and 5 go to show that it is a homicidal death and not

the suicidal death.

19. The main defence of the appellant-accused is

that on 25.12.2008 from morning at about 9.00 or 9.30

a.m. he was not present in the house till his return at

about 10.30 a.m. on 26.12.2008, as he had been to

Koppal along with the child. So the appellant took the

defence of plea of alibi that he was present elsewhere

and not at the spot of the incident. The deceased and

the accused are none other than the married couple

having a small kid from their wedlock. So the normal

: 35 :

presumption that the husband and wife along with their

kid were residing together in the said residential house

even during the night when the incident took place. But

when the accused took the specific defence of plea of

alibi heavy burden is casted on the appellant-accused to

establish the said defence with cogent and acceptable

materials. It is no doubt the appellant-accused got

himself examined as DW1. In his evidence, he deposed

that in 2008, he was working as Junior Engineer in the

Electrical Department at Dharwad Office within the

Hubballi Mahanagar Palike. At that time he was

residing along with his wife at Dharwad/Saidapur. 20-

25 days earlier to the incident himself and his wife-

Ashwini came to that rented house. As there was a

function in the house of the owner of the house of

Saidapur the said owner informed the accused to vacate

the said house. Hence, for a period of one month he

shifted his residence to the house situated at

Gulaganjikoppa. He further deposed that on 25.12.2008

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morning at 9.00 to 9.30 a.m. he went to Koppal along

with his son Abhinand. He came to know about the

death of his wife on 26.12.2008 at about 6.00 to 6.30

a.m. and at that time he was at Koppal. At that time

Basavaraj the owner of his house and his brother-in-law

Virupaxappa phoned to him and informed that Ashwini

committed suicide by hanging. His wife has also having

a mobile phone. Said Basavaraj and Virupaxappa

informed the news to PW1 through the mobile phone of

his wife deceased Ashwini. So also they have informed

him also about the incident with the said mobile phone.

Then he came back at about 11.00 a.m. By the time he

came to the spot, his in laws and his relatives at

Hubballi and Kalaghatagi also came to the spot. He

further deposed that on 25.12.2008 at 9.00 p.m. PW1

informed deceased Ashwini that her younger sister

Vedashri eloped with somebody. His wife was very

sensitive and after hearing that her sister eloped with

somebody she committed suicide. He further deposed

: 37 :

that half an hour after his arrival to the spot the police

came to the said place. He has also deposed that he has

not given ill treatment to his wife in connection with the

dowry amount and false case has been booked against

him. During the course of cross-examination, it was

suggested to DW1 that he is giving false evidence that

on 25.12.2008 itself he had been to Koppal along with

his son. But DW1 denied the said suggestion. It was

also suggested to DW1 that on 25.12.2008 he along

with his wife went to Kalaghatagi to the relatives house

namely Ashok Arakasali-P.W.5 and Kishore Kumar

Arakasali PW13 and at that time deceased complained

against him that he is giving ill-treatment to her in

connection with the dowry amount and PW5 and 13

advised him not to do like that, but DW1 denied the

said suggestions. When it is seriously challenged by the

prosecution that he had not been to Koppal and it is the

contention of the prosecution that during the night on

the day of the incident he was very much present in the

: 38 :

house, the accused has to place acceptable material to

show that he was at Koppal during that night. In this

regard except his oral say that he had been to Koppal

on 25.12.2008 along with his son, there is no

supporting material. If he had traveled to Koppal either

by train or by bus or through any other vehicle at least

he could have produced the tickets to show his travel to

Koppal and when it is his contention during his oral

evidence that his wife was also having mobile phone

with the said mobile phone the owner of his house

Basavaraj and his brother-in-law Virupaxappa phoned

to his mobile and informed at about 6.00 or 6.30 a.m.

about suicide committed by Ashwini he could have

produced the call details which he has not done. Had he

produced the call details even the location of the mobile

phone used at that movement of time could have been

came to be known by the police as well as the court

trying the matter. He could have examined the owner of

his house Basavaraj and his brother-in-law

: 39 :

Virupaxappa to prove the said contention which he has

not done. Apart from that it is the oral evidence of PW5

and 13 that on 25.12.2008 the accused along with his

wife came to Kalaghatagi and at that time the deceased

complained before them as against her husband the

accused that he is giving ill-treatment and harassment

to her in connection with the dowry amount PW5 and

13 advised him not to do like that. Then he went back

on the same day along with his wife. Even during the

course of cross-examination of PW5 and 13 nothing has

been elicited from their mouth to disbelieve their version

about the accused coming to them along with his wife to

Kalaghatagi on 25.12.2008. Apart from that looking to

his oral evidence the appellant-accused deposed that at

about 6.00 or 6.30 a.m. on 26.12.2008 he came to know

about the suicide of his wife when he was informed by

Basavaraj and Virupaxappa to his mobile through the

mobile phone of his wife Ashwini. Even with regard to

that also he could have produced some documentary

: 40 :

proof, which he has not done. Apart from that looking to

the oral evidence of PW14 Smt.Mahadevi Yadavatti, who

is the landlady of the accused and deceased, deposed in

her evidence in her examination-in-chief that in the year

2008 accused was staying in her house as tenant along

with his wife and one small kid. She further deposed

that on 25.12.2008 during the day time nobody was

present in the house of the accused, but on that day at

about 9.00 or 9.30 p.m. accused along with his wife and

child came back to the house at 9.30 p.m. when she

was watching the Television she noticed that accused

came inside the house and then went into his house

and she does not know what has happened during the

night thereafter and in the morning at about 8.30 a.m.

sister of the deceased Ashwini came and enquired

whether Ashwini is there or not. She has shown the

house to her, but it was locked from outside. When she

was also cross-examined by the Public Prosecutor she

admitted the suggestion that in the morning at about

: 41 :

4.00 a.m. she woke up after hearing the weeping sound

of Abhinandan, the son of the deceased. She has also

admitted the suggestion that at that time she has seen

the accused going out of his house along with his son

passing infront of the house of landlady PW14. She

further deposed that as the child was weeping she felt

that he might have taken the child to console the child.

Even in the cross-examination by the defence she

denied the suggestion that she is falsely deposing that

in the morning accused came along with his son and

opened the lock of the said house. She has further

deposed in the cross-examination that on 25th at about

9.00 or 9.30 p.m. when they came back she was

knowing that they had been to Kalaghatagi. She denied

the suggestion that she has not seen accused going out

of the house at 4.00 a.m. on 26.12.2008 along with

child and she is deposing falsely.

: 42 :

20. So far as the evidence of prosecution witnesses

that it is the accused himself, who came at about 10.30

a.m. and he himself opened the lock of the house with

the key, which he was possessing, is concerned, no

doubt, the Investigating Officer, Wilson Sudhakar

(P.W.26) in his cross-examination has clearly stated

that P.W.1/complainant and P.W.2 the wife of the

complainant, have not stated before him in their

statements about the said fact. Therefore, so far as the

evidence of P.Ws.1 and 2 with regard to the said aspect

is concerned, it can be said that there is an omission

about the said material fact and whatever P.Ws.1 and 2

have deposed before the Court about the fact that the

accused came, he was possessing the key and accused

himself opened the lock is an improvement in the case.

21. But regarding the fact that accused came at

about 10.30 a.m. and he was having the key of the said

house and it is accused himself opened the lock of the

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said house, which is also deposed by P.W.3-Seema,

P.W.5-Ashok Arkasali, P.W.13-Kishore Kumar Arkasali,

P.W.14-Smt.Mahadevi Yadavatti, who is the landlady, in

whose house accused and his wife (deceased) were

residing on rental basis, and P.W.16-Hemant Kumar

Melinamani, all these five witnesses have also deposed

in their evidence about the said fact, but their evidence

was not at all confronted to the Investigating Officer

that there is omission. Therefore, the evidence of all

these five witnesses with regard to the said fact remains

unchallenged. Unless and until, the said portion of the

evidence of these five witnesses was confronted to the

Investigating Officer, the contention of the defence that

there is omission, cannot be accepted at all. Therefore,

considering all these materials placed on reocrd, they

clearly show that the accused was very much present in

his house during the night on 25/26.12.2008 and it

also shows that accused has taken false defence that he

was at Koppal and he was not in the house during the

: 44 :

night of that incident. The accused failed to establish

his defence of plea of alibi that he was at Koppal.

22. The evidence of P.W.5 Ashok Arkasali and

P.W.13 Kishore Kumar Arkasali show that the accused

had been to Kalaghatagi on 25.12.2008 and the

deceased Ashwini complained before them against the

accused stating that he is giving ill-treatment and

harassment to her in connection with the amount that

he has demanded from her; at that time P.Ws.5 and 13

advised the accused not to do so. Thereafter, the

accused came back along with his wife and son to their

rented house Gulaganjikoppa, Dharwad.

23. It is true that looking to the evidence of

P.W.26, Investigating Officer, and the cross-examination

of P.Ws.5 and 13, they have admitted that they have not

stated in their statement before the Police during

investigation the fact of accused coming to them at

Kalaghatagi, deceased complaining against the accused

: 45 :

before them and they advising the accused. But the

evidence of P.W.14 (landlady) is very much clear that,

on 25.12.2008 during the day time nobody was there in

the house of the accused; accused came during night at

about 9.00 or 9.30 p.m. on the said day along with their

son and they all went inside their house. Her evidence

also shows that at about 3.00 a.m. on 26.12.2008 she

heard the weeping sound of the son of accused and at

about 4.00 a.m., she has seen the accused going out of

his house along with the said child. She has further

deposed that she was under the impression that as the

child was weeping, the accused might have taken out

the child to console the child. So this evidence of the

landlady, who is neighbourer, and who had an occasion

to know about what is happening in the house of the

accused, remains unchallenged. Even during the

course of cross-examination, nothing has been elicited

from her mouth so as to disbelieve her version.

Therefore, these materials also show that on 25.12.2008

: 46 :

the accused came to the house along with his wife and

son and he stayed in his house during that night.

24. The averments in the complaint, so also, the

oral evidence of P.Ws.1 to 5 and 13, the relatives of the

deceased, show that accused used to give ill-treatment

to the deceased in connection with the amount that he

has demanded and insisting the deceased to go to her

parental place and bring money. P.Ws.1 and 2, the

parents of the deceased Ashwini, have also specifically

deposed in their evidence that their daughter used to

call them over phone and was informing about the said

ill-treatment and harassment by her husband/accused.

P.Ws.5 and 13 have also deposed that, deceased

Ashwini complained before them against her husband

stating that he is giving ill-treatment and harassment to

her in connection with money. It is no doubt true, as

we have already discussed above, there is omission

regarding the said fact in the the evidence of P.Ws.5 and

: 47 :

13, but whether really the deceased along with her

husband had been to Kalaghatagi to the house of

P.Ws.5 and 13 on 25.12.2008 is also to be considered

and appreciated along with other attending

circumstances in the case.

25. It is also the contention of the learned counsel

appearing for the appellant that the prosecution

witnesses are all related to the deceased and hence,

they are interested witnesses and their evidence cannot

be relied upon by the Court. In this connection, learned

counsel for the appellant also relied upon the decision

of the Hon’ble Apex Court in the case of State of Punjab

Vs. Jit Singh & Another reported in 1995 SCC(Cri) 156.

So also, he relied upon another decision in the case of

State of A.P. Vs. Pujati Ramulu reported in AIR 1993 SC

2644 – Head Note ‘C’. We have perused the judgments of

the Hon’ble Apex Court. But, in the case on hand, the

prosecution not only relied upon the evidence of the

: 48 :

relatives of the deceased, but also examined Smt.

Mahadeve Yadavatti, the landlady, as P.W.14. The said

P.W.14 is an independent witness and she is not all

related to the deceased. The house in which the

deceased and the appellant herein were residing belongs

to P.W.14 and her husband. Therefore, the contention of

the learned counsel for the appellant that the

prosecution case rests on the evidence of interested

witnesses cannot be accepted at all.

26. As we have already discussed above, the

materials also support the contention of the prosecution

that the deceased had been to Kalaghatagi along with

her husband on 25.12.2008. Therefore, the evidence of

P.Ws.5 and 13 that deceased complained against her

husband before them about the ill-treatment and

harassment, amounts to oral dying declaration, which is

a relevant piece of evidence under the provisions of

Section 32 (1) of the Evidence Act.

: 49 :

27. Another important aspect of the case is that,

this is the incident, which took place inside the

residential house, wherein the accused, deceased and

their small kid only were residing and that too, the

incident took place during intervening night on

25/26.12.2008; so far as the defence of the accused

that he was not at all in the house during that night

and took the plea of alibi is concerned, we have already

discussed in detail with reference to the material placed

on record and we have already come to the conclusion

that the accused has utterly failed to establish his plea

of alibi and hence, he was very much present in the

house during that night. When that is so, there is

burden on the part of the accused person to explain

satisfactorily as to how and why the said incident took

place inside their house; it is not his defence that

somebody came to his house during his absence and he

might have committed the murder of his wife.

: 50 :

28. With regard to the explanation of the

accused by way of defence during the course of trial and

by suggesting to the prosecution witnesses at the time

of cross-examination that, as Vedashree, the sister of

the deceased, eloped with someone and when the same

was intimated to the deceased Ashwini and as Ashwini

was very sensitive, she felt very bad, so she has

committed suicide is concerned, the said defence story

has been denied by all the prosecution witnesses.

29. Apart from that looking to the medical

evidence about which we have discussed above, in

detail, it rules-out the possibility of deceased

committing suicide and on the contrary, the medical

evidence also establishes that it is a case of murder.

Under such circumstances, the burden is upon the

accused person to explain how the incident has taken

place inside the house. In this connection, learned

Addl. SPP has relied upon the decision of Hon’ble Apex

Court in Crl.Appeal.No.1341/2005 in the case of

: 51 :

Trimukh Maroti Kirkan V/s State of Maharashtra,

the relevant portion is paragraph No.12, which reads as

under:

“12. 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 Prosecution 1944

AC 315 quoted with approval by Arijit Pasayat,

J. in State of Punjab vs. Karnail Singh (2003) 11

SCC 271). 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

: 52 :

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 traveling on a railway

without ticket. The burden of proving that he

had a ticket is on him."

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

: 53 :

upon the prosecution and there is no duty at all

on an accused to offer any explanation.”

30. Therefore, even looking to the principle

enunciated in the said decision, it is the accused, who

has to explain about the incident, but looking to the

defence set up by the accused and the cross-

examination of the prosecution witnesses, he has

utterly failed to establish his defence that it is a case of

suicide and even he has also failed to establish that he

was not in the house during that night and he was at

Koppal. Hence, it is not only the non-explanation of the

accused about the incident, but he has taken a false

defence only with an intention to escape from the

clutches of law.

31. The evidence of the Doctor, who conducted

autopsy, and the contents of the PM examination,

consistently show that it was a homicidal death by

manual strangulation (throttling). Hence, we are of the

: 54 :

clear opinion that it is the accused and accused alone,

who is responsible for the death of the deceased

Ashwini.

32. So far as the contention of the defence that

there is a delay in lodging the complaint is concerned,

the materials show that the alleged offence took place

during night in between 25.12.02008 and 26.12.2008

and as per the say of the complaint/P.W.1., the accused

informed him about the incident through his mobile to

the mobile of the complainant at about 4.30a.m. on

26.12.2008 and as it was difficult for P.W.1 to go

immediately, he informed P.Ws.3 and 5 to go to the spot

immediately and they will come little later. The other

materials, about which we have already made

discussion, show that even though P.Ws.3, 5 and some

other relatives of the deceased came to the spot, the

house was under lock from outside and it is only at

about 10.30a.m. the accused came and with the help of

: 55 :

the key, which he was having, opened the lock, and till

then, the persons, who were gathered there, were not

able to know exactly what is the nature of the offence,

whether it is suicide or it is a homicidal death. In this

connection, it is relevant to refer to the evidence of

D.W.1 (accused), who has deposed at paragraph No.2 of

his deposition that on 26.12.2008 at about 6.00 to 6.30

a.m. he came to know about the incident that his wife

Ashwini expired. He has further deposed that his land

owner Basavaraj and his brother-in-law Virupakshappa

phoned to him and informed him that his wife Ashwini

committed suicide. After coming to know about the

incident, himself, his parents, his brother and his son

all came to the spot at about 11.00 a.m. He has also

deposed that after half an hour of his arrival to the spot,

Police came to the spot. So this evidence of the accused

himself shows that Police arrived to the spot only after

11.30 a.m. The complaint was filed at 1.00 p.m. and

there is gap of only 1 ½ hour. We have discussed about

: 56 :

referring to the decision of the Hon’ble Apex Court in

Lalita Kumari vs. Government of Uttar Pradesh and

others, that in case of maternal dispute/family

dispute/commercial dispute/corruption cases, the

nature of cases requires some sort of preliminary

enquiry. Therefore, looking to these aspects of the

matter, it cannot be said that there is an abnormal

unexplained delay in the case. It is no doubt true, so

far as lodging of the complaint by P.W.1 is concerned,

there are some minor discrepancies in the evidence of

P.W.1 and other prosecution witnesses, but they will not

go to the very root of the case to come to the conclusion

that the entire case of the prosecution is false and the

accused has been falsely implicated in the case. The

Court has to consider the entire materials placed on

record and to see what is the cumulative effect emerging

out of that and the Court cannot base its findings by

considering the materials in isolation. Therefore, we are

of the opinion that there is no unexplained delay in

: 57 :

lodging the complaint in this case and hence, the

contention of the defence in this regard cannot be

accepted at all.

33. During the course of arguments, learned

counsel for the appellant has made the alternative

submission that as the accused had been to Kalaghatagi

with his wife on 25.12.2008 to the relatives house i.e.,

P.Ws.5 and 13, Ashok Arkasali and Kishore Arkasali

respectively, and as the deceased Ashwini complained

before them that accused is giving ill-treatment and

harassment to her in connection with the amount

demanded by the accused and as P.Ws.5 and 13

scolded and advised the appellant/accused not to do

like that and because of that reason, in grave and

sudden provocation, the accused might have committed

the said offence and there is no intention on the part of

the accused to commit the murder. It is further

contended that at the most the case falls under Section

: 58 :

304(2) of IPC i.e. culpable homicide not amounting to

murder and hence, he has submitted that the appellant

has already undergone seven years custody period and

same may be taken into consideration while considering

the sentence, but regarding this contention of the

learned counsel for the appellant, firstly, the said

contention supports the case of the prosecution that on

25.12.2008 accused had been to Kalaghatagi along with

the deceased to meet P.Ws.5 and 13 and deceased made

complaint against her husband and in that regard

P.Ws.5 and 13 advised the appellant/accused. Apart

from that during the course of trial, it is not the defence

of the accused that there was a grave and sudden

provocation to the accused and because of which, he

committed the alleged incident, but on the contrary, the

defence of accused is that he was not at all present at

the spot, he was elsewhere and he is totally

unconnected with the said incident. Under such

circumstances, and in the absence of specific defence

: 59 :

regarding the grave and sudden provocation, only on

the basis of the arguments advanced by the learned

counsel for the appellant by way of alternative

submission, it cannot be accepted and hence, it is

hereby rejected.

34. Looking to the entire materials placed on

record and in view of our above discussions, we are of

the opinion that the trial Court has properly considered

each and every aspect of the matter, both oral and

documentary, and rightly came to the conclusion in

convicting the appellant/accused. Therefore, neither

there is any illegality in the judgment of the trial Court

nor there is any perverse or capricious view taken by

the trial Court in coming to the said conclusion. There

are no legal and valid grounds to interfere into the

matter either to set-aside the judgment and order of

conviction or to modify the same. Hence, there is no

: 60 :

merit in the appeal, accordingly, same is hereby

dismissed.

Even with regard to the sentence is concerned, we

are of the opinion that sentence imposed by the trial

Court is also reasonable and proper.

Sd/-JUDGE

Sd/-JUDGE

BSR/CLK/KMS