D. MOHAN v. State of Karnataka

We have heard the arguments of Sri N.R.Krishnappa, learned counsel appellant/accused and Sri M.V.Anoop Kumar, learned High Court Government Pleader for the respondent/State.

Sri N.R.Krishnappa pointed out following points which according to him are sufficient enough to set aside the judgment of the trial court. (cid:1) The investigating officer did not record the voluntary statement of the accused. In the complaint filed by PW2 there is no mention about locking of the door; - 6 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 (cid:1) The extra judicial confession is not proved; (cid:1) PW1 says that he saw poison bottle and tablets lying beside the dead body. The court has not appreciated evidence in this regard; (cid:1) The neighbors of the accused were not examined; (cid:1) Without UDR or original inquest, the trial court proceeded to hold the trial; (cid:1) The further statement of PW2 was recorded 18 days after the incident. So this itself is sufficient enough to disbelieve the prosecution version; (cid:1) Motive was not proved by the prosecution in the sense that there is no evidence indicating as to with whom the deceased had illicit relationship; - 7 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 (cid:1) Presence of the accused at the time of the incident is spoken only by PW2 and no other witnesses; (cid:1) Photographs produced by the prosecution during trial indicate presence of froth on the deceased. The injury mark on the neck is not visible at all. (cid:1) All these aspects indicate that probably Sunitha might have committed suicide. The prosecution has not proved at what time the accused left the house and at what time the deceased came back to her house. These being lapses evidence, the accused should not have been convicted.

Sri M.V.Anoop Kumar submits absolutely there is no ground to entertain the appeal as learned Sessions Judge has - 8 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 discussed the evidence properly. It is a case based on circumstantial evidence. The evidence of PW2 clearly discloses the accused was quarreling with his wife on that night. PW2 went and advised them not to quarrel. On the next day morning he saw the dead body of Sunitha and accused being not there in the house. The medical evidence clearly rules out suicide. It was a case of manual strangulation, the burden was very much on the accused himself to explain under what circumstances the death occurred. His failure results in drawing adverse inference against him. The argument of the appellant’s counsel that the door was locked from outside is not correct because it is the clear evidence of PWs.1 and 2 that the door got opened when they pushed it inside. Therefore the door was not locked from outside and it was also not latched or bolted from inside. The evidence of PW2 clearly indicates that till 10.45pm the accused was very much present in - 9 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 the house. If he had gone to some other place he should have proved by producing cogent materials. All these circumstances are clearly noticed by the trial court for recording conviction against the accused. There are no grounds to interfere with the well reasoned judgment.

We have considered the arguments and perused the entire evidence both oral and documentary.

The case is based on circumstantial evidence. The main circumstances to be established by the prosecution are: i) The accused and his wife being together on the night of 06.05.2013 and the quarrel between them; ii) Accused leaving the house around

10.45pm on 06.05.2013; iii) Accused making a confession before Smt. Jayasheela; - 10 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 iv) Motive; v) Medical and FSL evidence (only as corroborative); & vi) Failure of the accused to give proper explanation in regard to alibi.

If we reassess the entire evidence, the following is the picture obtainable. As regards the quarrel between the accused and his wife, the prosecution mainly relies on the testimonies of PWs.2, 7 and 9.

PW2 has stated that the accused and his wife were his tenants in a house situated on the second floor of the building. He heard a quarrel sound from the house of accused around 10.30pm, went to their house and advised them not to quarrel. PW7 and PW9 are said to be the neighbors of the accused and the deceased. They were examined to prove from them that they heard quarrel voice between accused and his wife around - 11 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019

09.00pm on 06.05.2013 and PW2 going to their house and advising them not to quarrel. But these two witnesses have not supported. Inspite of hostile evidence given by PWs.7 and 9, the testimony of PW2 in this regard can be very much believable inasmuch as while cross examining PW2, a clear positive suggestion was given to him that after the quarrel the accused left the house with his child. The witness might have denied the suggestion, but inference can be drawn from that suggestion at least to the effect that there had taken place a quarrel between the accused and his wife. PW2 may not have seen the accused going outside the house. It is not his evidence that he did not see the accused and the deceased quarreling. If he had not seen, he would not have gone to their house and advised them. Therefore the evidence of PW2 itself is sufficient enough to draw a clear conclusion that there had taken place quarrel between the accused and his wife on the - 12 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 night of 06.05.2013. There is convincing evidence with regard to the first circumstance.

In regard to second circumstance, PWs.7 and 9 are the main witnesses examined by the prosecution. As stated already they did not support the prosecution. Merely for the reason that they did not support, it cannot be said that there is no evidence that accused left the house with his child after quarreling with his wife. The suggestion given to PW2 is already mentioned above. More than this, the testimony of DW1 is to the effect that he went to the house of the accused after receiving call from Sunitha. The accused and Sunitha were taking meal and Sunitha was feeding the child also. As the child was weeping, Sunitha beat the child. The accused felt bad for this and therefore he took the child and requested him i.e., DW1 to give him a drop to Majestic bus stand as he wanted to go to his parents’ house. - 13 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019

DW1 might have examined by accused to prove that the latter left the house for some other reason. But the fact remains that till he left the house in the night, he was there. To what extent the evidence of DW1 is believable will be discussed later. But now considering the suggestion given to PW2, a clear inference can be drawn that the accused left the house with the child. In this view the hostile evidence of PWs.7 and 9 is of no consequence.

The next circumstance is the accused making confession before a woman by name Smt. Jayasheela. She was cited as a witness in the charge sheet but not examined by the prosecution.

PW11 has stated that after coming to know about death of Sunitha he went to her house and came to know that the accused was getting into quarrel with his wife suspecting her fidelity. He also stated that Smt. Jayasheela told him that - 14 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 accused had telephoned her to inform that he himself killed his wife by pressing her neck. The evidence given by PW11 is purely hearsay. Therefore it cannot be acted upon. This circumstance is therefore not proved.

The medical evidence is that the death occurred due to asphyxia as a result of manual strangulation. PW3 was the doctor who conducted post mortem examination. He noticed presence of injuries such as contused abrasion measuring 1.5 x 1 cm on the front of the middle neck over and below thyroid cartilage and has opined that this injury was ante mortem. He collected viscera of the stomach, and the stomach contents for scientific examination at FSL. Ex.P1 is the post mortem report.

PW15 is the FSL expert whose evidence shows that when he subjected viscera of the stomach and its contents, small intestine and its - 15 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 contents, lever and kidney, he did not find any kind of poison or toxic contents in them. Ex.P16 is the certificate issued by PW15. Based on FSL report, PW3 came to the ultimate conclusion that the death occurred due to manual strangulation i.e., on account of pressing of the neck. In this regard argument advanced Sri N.R.Krishnappa may be adverted to at length. His argument was that according to the evidence given by PW1 the door was latched from inside. The photographs produced by the prosecution show a bottle lying beside the dead body. PWs.1 and 2 have clearly stated that they saw one medicine bottle and tablets. PW1 has clearly admitted in the cross examination that when he, PW2 and Venkatesh pushed the door forcibly, the bolt put to the door from inside got opened. This indicates that after the accused left the house, Sunitha might have committed suicide by consuming some tablets or poison and therefore there is a doubt in - 16 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 the prosecution case about the actual cause of death of Sunitha. It is true that PW1 has answered in the cross examination that the bolt put to the door was broken open when it was pushed inside. But no inference can be drawn in this regard that the door had been bolted from inside. The argument put forward by Sri Krishnappa about suicide is plausible only if the door had been latched or bolted from inside. The house in which the accused and the deceased were living was situated in the second floor. Obviously there can be only one main door in the front. Either somebody should lock the door from inside or from the outside. Possibility of suicide can be suspected only if the door had been locked from inside.

Now merely because PW1 stated in the cross examination that the inside bolt was broken open when it was pushed, inference to this effect - 17 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 cannot be drawn because in the examination-in- chief his evidence is that PW2 came and told him and Venkatesh that the water was flowing from the house of accused living in the second floor and all the three went to the house of accused, when they pushed the door inside, it opened. In the examination-in-chief he did not state that the door was bolted from inside.

PW2 has also stated that he called Kariyappa-PW1 and Venkatesh seeing the water flow. He has stated further that when he pushed the door inside, it opened and then all of them went inside the house. PW2 has been given a suggestion in the cross examination that when door was pushed he found that door was locked from inside. PW2 refuted this suggestion. In Ex.P11 the spot panchanama what is written is that the door opened when it was pushed forcibly. This being the evidence available on record, just - 18 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 because PW1 stated in the cross examination that he found the door being locked or bolted from inside, it cannot be given importance.

The medical evidence and the FSL report clearly rule out the suicidal death. Mere presence of some tablets and medicine bottle beside the dead body does not lead to an inference that Sunitha might have consumed tablets or poison to commit suicide. If she had taken tablets or poison, when the viscera and the organs of the body were subjected scientific examination, it would have definitely disclosed the presence of poisonous or toxic substances. When they were not present, the evidence of PW3 that death was due to manual strangulation as he noticed contusion on the neck becomes believable.

The last circumstance is motive which according to prosecution is that the accused was suspecting his wife to be having illicit relationship. - 19 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 PW5, the mother of the deceased, speaks about it. But direct evidence with regard illicit relationship is hardly possible to be obtained.

Now the circumstances clearly indicate that accused was found present inside the house i.e., till 10.00pm on 06.05.2013. For no reason the evidence in this regard can be disbelieved. PW2 went to their house and advised them not to quarrel. Though PWs.7 and 9 turned hostile and refuted the prosecution case that they saw the accused leaving the house with his child, from the evidence of DW1 and also a suggestion given to PW2, a clear inference can be drawn that the accused left the house during night hours. His conduct in leaving the house is very important. The evidence of DW1 that the quarrel broke out in the background of Sunitha beating her child is not so convincing. Probably the accused might have examined DW1 to show that accused left the house - 20 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 at 9.00pm itself because according to prosecution the death might have occurred around 10.45pm. If the accused left the house at 9.00pm, he should have explained as to why he left the house. Such an explanation is not forthcoming. Instead, from the suggestion given to PW2, a clear inference can be drawn that accused the house after quarreling with his wife and it could be after

10.30pm only. Therefore inspite of the fact that the evidence with regard to motive is not so much satisfactory and there is no evidence with regard to extra judicial confession, yet from the evidence given by PWs.1 and 2 and the buttressal evidence of PW3 regarding cause of death, and the FSL report with regard to absence of toxic or poisonous substance in the viscera, the involvement of the accused in the death of his wife can be very much inferred. - 21 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019

When suicidal death is ruled out, there was a greater responsibility on the accused to have explained under what circumstances the death of his wife occurred. His silence in this regard fills the gap in the evidence.

Sri N.R.Krishnappa has relied on the judgment of the Hon’ble Supreme Court in the case of SUNIL KUNDU AND ANOTHER V. STATE OF JHARKHAND [(2013) 4 SCC 422] in support of his argument that investigative lapses cannot be ignored if the evidence on record do not appear to be of sterling quality. There cannot be a second word with regard the preposition of judgment. In fact this judgment is not useful to the defence because the prosecution has been able to bring on record that kind of evidence which does not appear to be ignorable for any reason inspite of some lapses in the investigation. It is highly - 22 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 impossible to expect a fool proof investigation in any case.

Moreover the facts and circumstances in the cited decision clearly indicate incriminating materials were not subjected scientific scrutiny at FSL. This was the main reason for giving prominence lapses investigation. In this case we do not find such major lapses in the investigation. Since the death was due to manual strangulation, there was no necessity to subject any articles for scientific examination. However PW3-doctor conducting post mortem collected viscera and sent them to FSL to find out the possibility of any other reason for the death. Only after obtaining FSL report he gave a definite conclusion that the death was on account of manual strangulation which was supposed to be explained by the accused alone as to how it happened. Thus seen we do not find any - 23 - NC: 2024:KHC:12881-DB CRL.A No. 1296 of 2019 infirmity in the impugned judgment. Therefore appeal is dismissed. Sd/- JUDGE Sd/- JUDGE KMV List No.: 1 Sl No.: 14