A husband's conviction for murdering his wife was upheld on corroborated child-eyewitness testimony and other evidence. The court accepted consideration of an unmarked FSL report and drew an adverse inference from the absence of an explanation. It dismissed the appeal and confirmed life imprisonment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2022
PRESENT
THE HON’BLE MR. JUSTICE B. VEERAPPA
AND
THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL No.24/2020 (C)
BETWEEN:
SRI RAJACHARI S/O. LATE SRI MAHADEVACHARI, AGED ABOUT 41 YEARS, R/O. THUMBAGERE VILLAGE, MANDYA TALUK AND DISTRICT.
AT PRESENT RESIDING AT NO.54, 6TH CROSS, SRIGHANDA NAGAR, HEGGANAHALLI, BENGALURU. ... APPELLANT
(BY SMT. SOHANI A. HOLLA, ADVOCATE (NOC))
AND:
THE STATE OF KARNATAKA BY RAJAGOPALANAGARA POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001. ... RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.PC BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION DATED 09.05.2019, PASSED BY THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN S.C.NO.304/2013,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:-
J U D G M E N T
The appellant/accused who is none other than the husband of the deceased has preferred this appeal, against the impugned judgment of conviction and order of sentence dated 09/05/2019, passed in S.C. No.304/2013 on the file of LVI Additional City Civil and Sessions Judge, Bengaluru, convicting the accused for the offences punishable under the provisions of Section 302 of the Indian Penal Code, 1860 (“IPC”) and sentenced to undergo life imprisonment with fine of Rs.50,000/- with a default clause, praying to set aside the impugned judgment and acquit him of the accusation in the said case.
Bengaluru, in the house No.54, 6th Cross, Srigandha Nagar, Hegganahalli, Bengaluru, the accused had intentionally committed murder of his wife Uma by thrashing stone bond on her head while sleeping and when the neighbours heard the screaming of the child of the accused, they came to the spot and the accused ran way. Immediately one Nagaveni (PW.1), intimated to the police about the incident. Based on the complaint the police registered case in Cr.No.607/2012 and submitted the FIR to the jurisdictional Magistrate.
go home late from work and she used to advise both of them to stop quarrelling or to vacate the house. She has further deposed that on the midnight of 02/11/2012, she heard the screaming of the child of the accused and she went to the house of the accused. The accused came out of the house in a hurried manner and she asked him as to why he the child was crying, but without responding he just walked away. When she went inside the house, she saw the child weeping and she noticed that the deceased Uma was sleeping and a huge stone bond was on her head and she had died with crush injuries and blood was oozing. She further deposed that the accused was suspecting his wife and thereby there used to be quarrel every day and he killed her. Accordingly she lodged a complaint on 03/11/2012 at 5.40 a.m. and the police registered a case in Cr.No.607/2012. The police, after investigation file the charge sheet against the accused and learned 7th ACMM, Bangalore, committed the case to the Sessions Court
and the same came to be tried by the learned Sessions Judge.
presence of the accused and framed the charge for the offence punishable under Section 302 of the IPC on 05/03/2014. When the charge was read over and explained to the accused in the language known to him, he denied the charge and pleaded not guilty and claimed to be tried.
the prosecution examined twelve witnesses as PWs.1 to
12 and got marked twenty-five documents as Exs.P-1 to P-25(a) and marked twelve material objects as MOs.1 to
evidence adduced against him, but has not led any defence evidence.
aforesaid pleadings, framed the following point for consideration:
“Whether prosecution proves that on 03/11/2012 about 00.30 hours in the midnight within the jurisdiction of Rajagopalnagar police station, at house No.54, 6th Cross, Srigandha Nagar, Hegganahalli, Bangalore accused has committed murder of his wife Smt. Uma by thrashing stone bond on her head and face, and intentionally caused death of Smt. Uma and thereby committed offence punishable under Section 302 of IPC?”
evidence on record, the learned Sessions Judge recorded a finding that the prosecution has proved beyond all reasonable doubt that on 03/11/2012 at about 00.30 hours, in the midnight within the jurisdiction of Rajagopal Nagar Police Station, Bengaluru, in the house
No.54, 6th Cross, Srigandha Nagar, Hegganahalli, Bengaluru, the accused had intentionally committed murder of his wife Uma by thrashing stone bond on her head while sleeping and caused death of his wife and thereby, committed an offence punishable under Section 302 of the IPC. Accordingly, the learned Sessions Judge by the impugned judgment convicted the accused and sentenced to undergo life imprisonment for the offence punishable under Section 302 of the IPC and directed to pay find of Rs.50,000/- with default clause. Hence, the present appeal.
parties.
would further contend that PWs.1, 2, 4, 6 and 11 are not the eyewitness to the alleged incident, but the learned Sessions Judge erroneously considering the evidence has come to the wrong conclusion that the appellant has committed the offence and also contended that PW.3 child witness is not corroborated with other witnesses and the order of conviction is wholly unsustainable. PW.1, who is the complainant and the owner of the building, PW.2 is the son of PW.1, PW.3 is the child witness son of the accused and deceased and PW.4 the brother-in-law of the deceased though supported the case of the prosecution, the evidence of the said witnesses were inconsistent and cannot be relied upon and the evidence of the child witness PW.3 is tutored by other relatives, thereby his evidence cannot be relied upon.
involvement of homicidal death of the deceased by the accused. She would further contend that the inquest report Ex.P-16 clearly depict that the statement of child was not recorded and the accused was not arrested at the Peenya bus stand as per the evidence of PWs.1 to 3 and when the police had come, he was in the house, thereby the entire case of prosecution case is false and the learned Sessions Judge proceeded to pass the judgment on the presumption and assumption which cannot be sustained. She further contended that with regard to stab injuries found on the dead body, there is no proper explanation forth coming either in the postmortem report or in the cross-examination. In the absence of such clarification, the conclusion reached by the trial Court is totally against the law and that absolutely there is no evidence with regard to the presence of the appellant with the deceased on the intervening night when the alleged incident occurred.
Thereby, the learned Judge was not justified in imposing imprisonment for life.
antecedent of previous quarrel between the accused and the deceased and accused. Both oral and documentary evidence on record were not properly appreciated by the learned Sessions Judge while convicting the accused for the offence punishable under Section 302 of the IPC. She further contended that unfortunately the incident occurred on that day when there was quarrel between the accused and the deceased as stated in the voluntary statement as per Ex.P-12, thereby the case falls under the provisions of exception I to Section 300 of the IPC, thereby the accused is utmost is liable to be punished under the provisions of Section 304 and is not a rarest of the rare case to invoke the provisions of section 302
of the IPC. Therefore, she sought to allow the appeal.
A.Holla, learned counsel for the appellant –accused relied upon the following judgments:
(i) The dictum of the Hon’ble Supreme Court in
the case of Munikrishna @ Krishna etc. vs. State by Ulsoor Police Station [2022 LiveLaw (SC) 812] (Munikrishna @ Krishna etc. vs. State by Ulsoor Police Station) at para No.11, to the effect that in a case of circumstantial evidence, the entire chain of evidence must be complete and the conclusions which is arrived after examining the chain of evidence must point towards the culpability of the accused and to no other conclusion. This, however, is clearly missing from the case of the prosecution. The entire case of the prosecution is based on the so-called confessional statements or voluntary statements given by accused Nos.1 to 5, thereby the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable
doubt. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. The last principle is
that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt.
(ii) Learned counsel has also relied upon another judgment of the Hon’ble Supreme Court in the case of Bhagwan Singh & others vs. State of M.P. [(2003)3 SCC 21] to the effect that in the case of a child witness, the court should seek corroboration from other evidence to testimony of child witness. If possibility of tutoring appears to the Court, it should be careful in accepting his evidence. A child aged 6 years along with his mother going to his maternal grandfather’s house and staying there at night and while
sleeping with mother at midnight he alleged to have seen murder of his mother and grandfather and thereafter gone back to sleep. The unusual conduct of the child taken into consideration having regard to child psychology, the statement of the child not recorded by police immediately after the occurrence, but recorded after few days. Therefore, the testimony of PW.3 cannot be relied upon.
(iii) The dictum of the Hon’ble Supreme Court in the case of Nagendra Sah vs. The State of Bihar [Crl.A.No.1903/2019 disposed on 14/09/2021] (Nagendra Sah) at para No.19 it is held that under Section 101 of the Evidence Act, whoever desires any Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus, Section 106 constitutes an exception to Section 101. On the issue of
applicability of Section 106 of the Evidence Act, there is a classic decision of this Court in the case of Shambu Nath Mehra v. The State of Ajmer which has stood the test of time. The relevant part of the said decision reads thus:-
“Section 106 is an exception to section 101. Section 101 lays down the general rule about the burden of proof. "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist". Illustration (a) says-
"A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.”
A must prove that B has committed the crime". 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. Therefore, she sought to allow the appeal.
13. Per contra, Sri Vijay Kumar Majage, learned
Additional Special Public Prosecutor for the State while justifying the impugned judgment and order of sentence contended that PW.3 the child witness who is none other than the son of the deceased and accused deposed that he was sleeping along with his father-accused and mother was sleeping separately who stated on oath that at about 12.30 a.m. (midnight) when he heard the sound, he saw his father throwing the stone bond on his mother and he requested his father not to do so and again for the second time, he threw the stone bond and thereby, his mother died by crush injuries on her head. On hearing his scream, PW.1 came inside the house and PW.3 informed her that his father killed mother. Though in the cross-examination many questions were put to the child PW.3, the fact remains that his evidence with regard to killing of his mother by his father with MO.1 is unshaken and the age of the child was four years six months, learned Sessions Judge, before permitting the
child to lead evidence, had posed sixteen questions and satisfied that he is a fit witness on behalf of the prosecution and permitted him to lead evidence.
and PW.2 son of PW.1 were present on the unfortunate day and PW.1 specifically stated about the incident in the presence of the accused. Thereby, all the three witnesses consistently stated that on the date of the incident, the accused was with his son and wife. He further contended that with regard to the motive, PW.4 Nagaraju who is the brother in-law of the deceased and PW.6 is the wife of PW.4 and sister of the deceased specifically stated on oath that the accused was suspecting the fidelity of the deceased and thereby he had a motive to murder his wife. Learned counsel would further contend with regard to homicidal death that the doctor PW.5 who conducted post mortem on the dead body stated on oath that he found three injuries on the head as under:
(i) Head crushed over left side of face, fracturing all bones of face, skull, vault on left side, exposing the underlying brain. Mandible is fractured on its left side.
(ii) Stab wound, 2 cm x 0.5 cm xneck tissue deep, horizontally placed, situated at midline of the neck on dissection, it has punctured thyroid cartilage oesophagus and has entered the tissue between C-C vertebrae. Blood extravasation present along and around the track of the wound.
(iii) Stab wound 3 cm x 0.5 cm x muscle deep present over left side of chin. On dissection it is found (torn) muscle deep.
Due to the said injuries sustained by the deceased
she died. Nothing has been elicited in the crossexamination, thereby the homicidal death of the deceased is proved.
in a suspicious manner with the blood stained clothes and was arrested and produced before the Investigating Officer. He would further contend that PW.12-the PSI who stated on oath that at 03/11/2012 at around 6.15 a.m. at Peenya II Stage bus stand a person was roaming around in a suspicious manner and later he came to know that the said person was involved in the homicidal death of the deceased and the clothes worn by him were blood stained. Ex.P-12 is the statement of the accused and Ex.P-9 is the statement of Sandeep, Venkatesh and Ravi who supported the case of prosecution. Admittedly, the PSI was not crossexamined and nothing has been elicited in the crossexamination of PW.9 nor cross-examined PW.12 at all, thereby arrested the accused who was involved in the homicidal death of the deceased was proved.
Madiwala for scientific examination and also received the FSL report as per Ex.P-3. Though the FSL officer was not examined, the FSL report is found in the original records, but unfortunately not marked that would be the mistake on the part of the learned Public Prosecutor, however, the same has to be taken note of the taking into consideration that the blood stains on the clothes worn by the accused tallied with the blood of the deceased. He would further contend that while recording the statement of lthe accused as contemplated under Section 313 of the Cr.P.C., the accused has not explained any circumstance as to what happened to his wife when he was in the house on the unfortunate day on the date of the incident (death of wife-Uma). In the absence of explanation offered, an adverse inference was drawn against the accused. Therefore, he sought to dismiss the appeal.
urged by the learned counsel for the parties, the only
point that arises for our consideration in the present appeal is:
“Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting the accused under Section 302 of the IPC with a fine of Rs.50,000/- with a default clause in the peculiar facts and circumstances of the present case?”
the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
to re-appreciate the case of the prosecution as per evidence on record and the material documents relied upon, it is relevant to consider the evidence on record.
(a) PW.1-Nagaveni is the owner and complainant, who has deposed that the incident occurred on the unfortunate midnight in the presence of
the child. When she went to the spot, the child was weeping and she noticed that the deceased Uma died due to the crush injuries on her head with MO.1. Ex.P-1 is the complaint. She identified MO.1 stone bond and
supported the case of prosecution.
(b) PW.2-Srinivas, son of PW.1. He deposed on
par with his mother and stated that he had seen the accused on 02/11/2012 at around 12.30 a.m. and that there used to be frequent quarrel between the deceased
and accused and supported the case of the prosecution.
(c) PW.3-Madesh who is son of the accused and
deceased and eyewitness to the incident. He deposed that while he was sleeping with in between his father and mother. Mother was sleeping aside and heard the noise at about 12.30 a.m. and when he woke up, he saw his father assaulting his mother thrashing on her head with stone bond. He further deposed that inspite of requesting his father not to do it, his father did not listen to Madesh and thrashed the stone bond for the second
time and while he was crying, the neighbours came and took him, thereby he supported the case of prosecution.
(d) PW.4-Nagaraj who is the sister’s husband of
the deceased Uma. He deposed that he was with the deceased at 7.00 p.m. on 02/11/2012 and having seen the accused after ten minutes of his arrival on the midnight of 02/11/2022 and that he is looking after the child Madesh, thereby supported the case of the prosecution.
(e) Dr. M.P.Pradeep Kumar who conducted post-
mortem of the deceased and deposed that the death was “due to crush head injury” and Ex.P-2 is the postmortem report. He identified the stone bond MO.1 and the clothes worn by the deceased MOs.2 to 6 and supported the prosecution case.
(f) PW.6-Suma, who is the sister of the deceased and wife of PW.4 Nagaraj and deposed on par with her husband PW.4 and stated that the accused\
was suspecting his wife with regard to illicit relationship with others, thereby supported the prosecution case.
(g) PW.7-D.S.Manjunath, the Assistant Executive Engineer, BBMP speaks deposed having prepared the spot sketch at Ex.P-5 on 28/12/2012 after visiting the spot and supported the prosecution case.
(h) PW.8-Hanumanthaiah, Police Head Constable deposed that on the direction issued by the Inspector of Police, on 14/12/2012, submitted material objects to the FSL, Madivala and identified the acknowledgement at Ex.P-7, thereby supported the prosecution case.
(i) PW.9-Venkatesh, Police Head Constable, Rajagopalanagar Police Station, deposed about the arrest of the accused in Peenya 2nd Stage bus stand along with one Sandeep (PW.12) and Ravi on the instruction given by the Investigating Officer (PW.10) and supported the prosecution case. (j) PW.10-B.Vijayakumar, Investigating Officer
who conducted the spot panchnama on receipt of the
complaint and registered case in Cr.No.607/2012 and sent the FIR to the jurisdictional Court and recorded statement of other higher officials and voluntary statement of the accused and conducted seizure mahazar and sent the material objects to the FSL, Madivala and finally filed the charge sheet, thereby supported the prosecution case.
(k) PW.11-Venlatesh, who is the neighbor of the accused and deceased, deposed that he used to stay in the next door of the accused and he is the inquest witness at Ex.P-16 and supported the prosecution case.
(l) PW.12-Sandeep H., Police Sub-Inspector who
deposed that the accused was apprehended the accused at 6.15 a.m. on 03/11/2012 along with PW.9 at Peenya 2nd Stage bus stand, thereby supported the prosecution case.
Based on the aforesaid material on record, learned Sessions Judge proceeded to convict the accused.
20. On careful perusal of the material on record,
the following points would emerge in the present case:
The presence of the child:
21. By a careful perusal of evidence of PW.3, the
child witness aged about four years six months on the
date of the incident who stated that he is the only son to
the deceased and he was studying in LKG in Doddanna
School on the date of incident and his father killed his
mother by thrashing bond stone MO.1 crushing the head of his mother. On hearing the sound, he woke up and saw his father thrashing stone bond on his mother’s head and the child Madesha requested his father not to do it, but the accused once again crushed his mother’s
head and she died and the child had witnessed that his
father killed his mother. Thereafter, the neighbours took the child to their house. In the cross-examination, PW.3 has admitted that PW.4-Nagaraj used to come to their house along with his wife Suma-PW.6 and that PW.4 used drop his mother when she was going to work. Whenever PW.4 came to their house, his father used to get angry and was not happy due to which there used to be quarrel between his father and mother. His father/accused warned PW.4 that he should not come to his house. On the date of the death of his mother, he came from school at about 3.00 p.m. At that time, his uncle PW.4 was in his house and his mother and Nagaraj
were discussing something in the terrace and denied that after the dinner he went to sleep and later did not know what happened. He specifically stated in his cross-examination that he requested his father not to put stone bond on his mother and screamed. Listening to the screaming the neighbours came to the house, by then his father crushed his mother’s head with MO.1. He
has withstood the lengthy cross-examination and supported the case of prosecution and the crossexamination is unshaken and the presence of the accused and killing his mother with MO.1. In the complaint-Ex.P-1, the presence of the accused was specifically stated by PW.1-owner of the house and she deposed that on hearing the screaming of the child, when she came out of the house at about 12.30 a.m., the accused was outside the house and when she asked why the child was crying, he did not answer, but just went away. When she went inside the house of the accused, she found the deceased was in lying on the floor and there was a stone bond on the head of the deceased and her face was crushed and that she was dead. PW.2 – son of PW.1 also deposed on par with his mother. The evidence of PWs.1 and 2 and the presence of PW.3-Madesha son of accused and the deceased were
not disputed in the cross-examination, thereby the prosecution has proved beyond reasonable doubt the
presence of the eyewitness on the date of the incident in the house as both the accused as well as the deceased were residing together.
Motive:
the deceased has categorically stated on oath that the accused used to suspect his wife-deceased and PW.6-the sister of the deceased also spoke about the suspicion of the accused on his wife, thereby the evidence of PWs.4 and 6 clearly shows that the accused had the intention to kill his wife and the evidence of PW.1 corroborate with the voluntary statement given by the accused as per Ex.P-12, thereby the prosecution has proved beyond reasonable doubt the motive of killing of his own wife on suspecting her fidelity.
Homicidal death:
the post-mortem on the dead body of the deceased
stated that he conducted the post-mortem of the deceased on 03/11/2012 between 1.40 p.m. and 2.40 p.m. and found the following external injuries:
“The doctor has opined that the death is due to
crush injury to the head sustained”. Nothing has been elicited in the cross-examination of PW.5 to disprove the homicidal death, thereby the death of homicidal death of the deceased is proved by the prosecution beyond reasonable doubt.
Arrest of the accused:
killing of his wife with MO.1 is not disproved and thereby the prosecution proved arrest of the accused.
Recovery and Sending of articles to the FSL and FSL Report:
slip, bra were all stained with blood. The presence of the human blood on all the articles was detected with ‘B’ group human blood. Though the said FSL report was not marked, this Court can take judicial notice in view of the provisions of Section 293(4)(e) and 294 of the Cr.P.C. Learned counsel for the appellant contended that in the absence of examination of FSL Officer and since the FSL report not marked, the same cannot be relied upon. This Court is of the considered opinion that in the absence of any other corroborative evidence, the counsel for the accused was justified that if the Court was to convict the accused under the provisions of Section 302 of the IPC only on the basis of the FSL report issued by the FSL Officer without marking and without examining the report as well as without examining the authority who has issued the report, the arguments would apply. In the present case, the presence of the eyewitness and the accused on the date of the incident was spoken to in categorical terms by
PW.1 corroborating the evidence of PW.3, the motive is proved from the evidence of PWs.1, 4 and 6 and the homicidal death and the arrest of the accused with blood stained clothes are proved by PW.12, thereby there are other evidence clearly establish the involvement of the accused in the homicidal death of the deceased. In the present case, from the evidence of PW.3 who is the eyewitness and other evidence of the witnesses, the entire chain of evidence is complete and the conclusion which is arrived after examining the chain of evidence clearly points out the culpability of the accused. Thereby, as held by the Hon’ble Supreme Court in the case of Munikrishna @ Krishna etc. vs. St1ate by Ulsoor Police Station stated supra that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond reasonable doubt from the evidence stated supra and it clearly depicts the guilt of the accused. If conviction rests solely on circumstantial evidence, it must create a
network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused other than any other accused and he evidence on record clearly depicts that the prosecution has proved beyond reasonable doubt the involvement of the accused in the homicidal death of the deceased. In view of the aforesaid material evidence on record which clearly depicts that the accused was present in the house on the date of the incident and admittedly while recording the statement under Section 313 of the Cr.P.C. and the accused has denied the incriminating evidence against him in toto and not offered any explanation as to what happened to his wife when he was in the house along with his son and the unfortunate incident happened. Therefore, adverse inference has to be drawn against him under the provisions of Section 106 of the Evidence Act. Our view is fortified by the dictum of Hon’ble Supreme Court in
the case of Prahlad vs. State of Rajasthan reported in
[(2019) 14 SCC 438], wherein at paragraph No.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.”
was not in the house on the date of the incident and he was not involved in the unfortunate incident has not been proved by the accused and thereby taken the plea of alibi and thereby he has to prove his case under Section 103 of the Evidence Act as held by the Hon’ble Supreme Court in the case of State of Haryana vs.
Sher Singh [AIR 1981 SC 1021] at paragraph No.4, it is held as under:
“4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:
"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
27. Our view is also fortified by the dictum of the
Hon’ble Supreme Court in the very judgment relied upon by the learned counsel for the appellant in the case of
Nagendra Sah vs. The State of Bihar [Crl.A. No.1903/2019 disposed on 14/09/2021] (Nagendra Sah vs. The State of Bihar) referred above, at para Nos.20 and 21 held as under:
“20. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from
which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.
21. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.”
with regard to chain circumstances. The present case is based on the motive, eyewitness, recovery and sending the articles to FSL and thereby, it is not a case of circumstantial evidence. There are prime evidence on record which clearly establish that the accused was involved in the homicidal death of his wife merely on suspecting her fidelity with the husband of her own sister even after having a child and thereby killed his wife. Therefore, the said judgment has no application to the facts and circumstances of the present case.
“8. Section 293 Cr.P.C. reads as follows:
“293. Reports of certain Government scientific experts.–(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this
section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on this behalf.
(4) This section applies to the following Government scientific experts, namely– (a) any Chemical examiner or assistant chemical examiner to Government;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the serologist to the Government.
(g) any other Government scientific expert specified by notification, by Central Government for this purpose.”
9. A bare reading of sub-sections (1) and (2) of Section 293 shows that it is not obligatory that an expert who furnishes his opinion on the scientific issue of the chemical examination of substance, should be of necessity made to depose in proceedings before Court. This aspect has been highlighted by this Court in Ukha Kolhe v. The State of Maharashtra and Bhupinder Singh v. State of Punjab. Therefore, there is no substance in the revision petition so far as the conviction is concerned.”
30. Learned Sessions Judge before recording the
evidence of PW.3 the child witness had put sixteen questions and the same reads as under:
“1. ¤£Àß ºÉ¸ÀgÉãÀÄ? GvÀÛgÀ B ªÀiÁzÉñÀ. 2. ¤£Àß ªÀAiÀĸɵÀÄÖ? GvÀÛgÀ B 4. ¢£À, wAUÀ¼ÀÄ ªÀÄvÀÄÛ ªÀµÀðzÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. 3. ¤Ã£ÀÄ JµÀÖ£Éà vÀgÀUÀwAiÀÄ°è NzÀÄwÛ¢ÝÃAiÀiÁ? GvÀÛgÀ B ¸ÉPÉAqï ¸ÁÖAqÀqïØ. 4. AiÀiÁªÀ ¸ÀÆ̯ï? GvÀÛgÀ B UÀAUÉÆÃwæ EAlgï£ÁåµÀ£À¯ï ¥À©èPï ¸ÀÆ̯ï. 5. ¸ÀÆ̯ï J°èzÉ? GvÀÛgÀ B C£ÀߥÀÇuÉð±Àéj £ÀUÀgÀ. 6. ¤Ã£ÀÄ FUÀ J°è¢ÝÃAiÀiÁ? GvÀÛgÀ B PÉÆÃnð£À°è. 7. PÉÆÃnðUÉ KPÉ §A¢¢ÝÃAiÀiÁ? GvÀÛgÀ B ¸ÁQë ºÉüÀPÉ. 8. PÉÆÃlÄð K£ÀÄ ªÀiÁqÀÄvÉÛ? GvÀÛgÀ B ¥Àæ±Éß PÉüÀÄvÉÛ ªÀÄvÀÄÛ £ÁåAiÀiÁ ºÉüÀÄvÉÛ. 9. K£ÀÄ ¥Àæ±Éß PÉüÀÄvÉÛ? GvÀÛgÀ B ¤ªÀÄä C¥Àà ºÉÃUÉ ¤£Àß CªÀÄé£À£ÀÄß ¸Á¬Ä¹zÀgÀÄ CAvÀ PÉüÀÄvÉÛ. 10. £ÁåAiÀÄ CAzÀgÉ K£ÀÄ? GvÀÛgÀ B UÉÆwÛ®è. 11. vÀ¥ÀÅà ªÀiÁrzÀgÉ PÉÆÃlÄð K£ÀÄ ªÀiÁqÀÄvÉÛ? GvÀÛgÀ B ²PÉë PÉÆqÀÄvÉÛ. 12. ¸ÀļÀÄî ªÀÄvÀÄÛ ¤d ¤£ÀUÉ UÉÆvÉÛ? GvÀÛgÀ B UÉÆvÀÄÛ. 13. ¤Ã£ÀÄ PÉÆÃnð£À°è ¸ÀļÀÄî ºÉýzÀgÉ ¤£ÀUÉ K£ÁUÀÄvÉÛ? GvÀÛgÀ B 1 ªÀµÀð eÉʯÁUÀÄvÉÛ.
GvÀÛgÀ B ¸ÀļÀÄî ºÉýzÀgÉ 1 wAUÀ¼ÀÄ eÉÊ°UÉ ºÁPÀÄvÁÛgÉ.”
When the child has answered all the sixteen questions, the Court considered that the testimony of child witness can be accepted and thereby the learned Sessions Judge noticed the boldness, intelligence and knowledge he had and thereafter determined the confidence of the child witness as sufficient and is intelligent enough for adducing primary test and thus, proceeded to examine the child after disclosing his capacity, intelligence as well as the understanding of delegation of oath and thereby, the learned Sessions Judge is justified in relying upon the evidence of the child witness along with the corroborative evidence of other witnesses.
31. We are fortified by the dictum of the Hon’ble
Supreme Court with regard to child witness in the case of P. Ramesh vs. State Rep. by Inspector of Police [AIR 2019 SC 3559] as under:
“15. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to
understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.”
the learned Sessions Judge was convinced after putting sixteen question to PW.3 to evaluate his knowledge and came to a conclusion that PW.3 had knowledge to give evidence and accordingly, the learned Sessions Judge recorded the evidence of child witness withstood the test of cross-examination and the statement was unshaken by the defence and there are other corroborative evidence of PWs.1, 2, 4 to 6, 9, 10 and 12 clearly depict the involvement of the deceased in the homicidal death of the accused, thereby, the said judgment has no application to the facts and circumstances of the present case.
to Section 101. In the present case, the prosecution
proved beyond all the circumstances beyond all
reasonable doubt the involvement of the accused in the homicidal death of his own wife and he has not offered any explanation when his statement under Section 313 Cr.P.C. was recorded. In the absence of any explanation, an adverse inference has been drawn against him and thereby, the said judgment has no application to the facts and circumstances of the present case.
ORDER
(i) Appeal filed by the accused is hereby
dismissed as devoid of merit.
(ii) The judgment and order of sentence to undergo life imprisonment for the offence punishable under Section 302 of the IPC and fine of Rs.50,000/with a default clause passed by the learned LVI Addl. City Civil & Sessions Judge, Bengaluru, is hereby confirmed .
Sd/JUDGE
Sd/JUDGE
S*
3 issues framed by the court
Could the corroborated testimony of the child eyewitness sustain the conviction for murdering his mother?
Could the court consider the unmarked FSL report without examining its author?
Was an adverse inference justified by the accused's failure to explain his wife's death while he was present in the house?
Colour shows how this judgement treated each authority
Munikrishna @ Krishna etc. vs. State by Ulsoor Police StationDistinguished¶198
Munikrishna @ Krishna etc. vs. State by Ulsoor Police Station [2022 LiveLaw (SC) 812]
Bhagwan Singh & others vs. State of M.P.Distinguished¶233
Bhagwan Singh & others vs. State of M.P. [(2003)3 SCC 21] · Who else cites this
Nagendra Sah vs. The State of BiharDistinguished¶236
Nagendra Sah vs. The State of Bihar [Crl.A.No.1903/2019 disposed on 14/09/2021]
Prahlad vs. State of RajasthanRelied on¶182
[(2019) 14 SCC 438] · Who else cites this
State of Haryana vs. Sher SinghRelied on¶186
[AIR 1981 SC 1021] · Who else cites this
Rajesh Kumar and another vs. State Government of NCT of DelhiRelied on¶201
Rajesh Kumar and another vs. State Government of NCT of Delhi [(2008)4 SCC 493] · Who else cites this
P. Ramesh vs. State Rep. by Inspector of PoliceRelied on¶229
P. Ramesh vs. State Rep. by Inspector of Police [AIR 2019 SC 3559] · Who else cites this
6 provisions across 3 enactments
RAJACHARI
THE STATE OF KARNATAKA
B. VEERAPPA
K.S. HEMALEKHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
