M.P. Chinnappa, J.
1. This appeal is directed against the judgment and order dated 12/29-6-1995 in S.C. No. 43 of 1991 on the file of the II Additional Sessions Judge, convicting the appellant for an offence punishable under Section 302, IPC, for the murder of Gayathramma and also to pay a fine of Rs. 1,000/- in default to undergo R.I. for 3 months and further convicted for an offence under Section 302, IPC for committing the murder of Bhaskar and sentencing him to undergo imprisonment for life and to pay fine of Rs. 1,000/- in default to undergo R.I. for 3 months.
2. Heard Sri R.B. Deshpande for the appellant and learned Additional S.P.P. for the State.
3. The learned Counsel for the appellant has vehemently argued that the conviction and sentence passed by the learned Sessions Judge is contrary to law, evidence on record and probabilities of the case. The prosecution has miserably failed to establish the guilt against the appellant by cogent and convincing evidence, suppressed the material evidence and put forth false case against the appellant. He also submitted that if the evidence is considered in its proper perspective, the appellant is entitled for acquittal as he has not committed any offence. It is also urged that the benefit of Section 84, IPC could have been extended to the appellant on the ground of unsoundness of mind and insanity. The learned Sessions Judge has not considered that the appellant is a psychiatric patient and he was treated in Bangalore and other places resulting in miscarriage of justice. He also submitted that the learned Sessions Judge should have directed the prosecution to produce the medical records of the appellant in order to facilitate him to come to a correct conclusion in the interest of justice. He also submitted that the alleged voluntary statement made by the appellant cannot be relied upon and the learned Court below ought to have rejected it in toto.
4. Repelling this argument, the learned Additional S.P.P. Mr. Koti submitted that the materials placed by the prosecution fully establish the guilt of the appellant. The deceased Gayathramma and Bhaskar are his wife and son. As they were not obeying his commands, he committed their murders and the said fact has been fully established. He also submitted that the learnedSessions Judge has considered all these aspects elaborately and he was convinced that the prosecution was able to establish beyond all reasonable doubt the guilt of the appellant and such an order does not call for interference. He further argued that the benefit under Section 84 cannot be extended to the appellant as he has not placed any material to prove that he was a mental patient. The other circumstances placed before the Court below further establish that the appellant and the appellant alone was responsible for causing the murder of these 2 persons. He also submitted that the learned Sessions Judge has also applied the principles of law properly in regard to Ex. P-22 the voluntary statement made by the appellant before the police and it is not now open to the appellant to contend that it cannot be acted upon. For the foregoing reasons, he submitted that the appeal deserves to be dismissed.
5. Before we proceed to consider the facts on which the parties have joined issues, we may refer to those which remain uncontroverted. The appellant is a graduate and he had married Gayathramma about 23 years prior to her death. A son was begotten from the said legal wedlock and in the year 1991, he was about 12 years old. The appellant was working in Agriculture Department at Annur Village, Mandya District as an agricultural assistant and he was residing in Government quarters. The son of the appellant and the deceased Gayathramma was studying in Navodaya Central School at Shivanagudde in VII Standard and he was a hostelite. Since there was vacation to the school, his son Bhaskar had come to his parental home for about one month. On 17-1-1991 the police found the dead body of Gayathramma with multiple injuries. Her neck was tied with her own saree and all the jewels worn by her were intact. There is no complaint of any rape being committed on her. Therefore, it may be mentioned here itself that the prosecution was able to establish that Gayathramma died due to strangulation and also being dropped from a height of about 200'. Further, it is not a murder for gain or for any sexual act. Similarly, his son Bhaskar also was found nearby unconscious with injuries. He was removed to the Kollegal Hospital and as his condition was serious, the doctor adviced the police to remove him to NIMHANS and subsequently on 19-1-1997 the said Bhaskar succumbed to the injuries at NIMHANS hospital. He also sustained several injuries as statedby the doctor. Therefore, it is clear that Bhaskar also died due to the multiple injuries sustained by him as he was thrown from a height of about 200'. As far as these aspects are concerned, there is absolutely no dispute. Therefore, we can proceed with the assumption that the prosecution was able to establish that Gayathramma and also Bhaskar died due to unnatural death and their bodies were found near the falls.
6. The question is whether the appellant was responsible for the unnatural deaths or homicidal deaths of his wife and son. Admittedly, there is no direct evidence to prove the complicity of the appellant. The prosecution mainly relies on the circumstantial evidence.
7. The first circumstance on which the entire case rests is on the first information furnished by the appellant. The admissible portion is marked as Ex. P-22. At this stage, it may also be mentioned that the appellant has raised objection to mark this document. However, the learned Sessions Judge by his considered order held that only certain portions are admissible in this documents. Accordingly, only that portion is marked. This finding is based on the principles enunciated by their Lordships of the Supreme Court in a decision in Aghnoo Nagesia v State of Bihar. It may be recalled here that the appellant appeared before the Kollegal Police on 17-1-1991 at about 2.10 p.m. and narrated the incident in detail to the police. The police recorded the said statement which has been signed by the appellant. On the basis of this information, the police registered a case in Cr. No. 15 of 1991 and further investigation was done relying on this statement. We have also perused the admissible portions of the first information lodged by the appellant and we are convinced that the same was properly scrutinised and only those portions which are admissible are marked. Therefore, the argument of the learned Counsel for the appellant that the FIR lodged by the appellant was not properly construed by the learned Sessions Judge to accept it as one of the circumstance is rejected.
8. As stated above, the appellant is a Government employee and he was not happy with his wife and son obviously due to the fact that he was under the impression that his wife and son were not obeying his orders. According to the prosecution case, suchbeing the motive and with an intention to do away with their lives, he dropped these two persons into the falls. It is true that there is no direct evidence to show that this appellant has dropped these two persons into the falls. Therefore, the prosecution is mainly relying on the circumstantial evidence. At the very outset, it may be mentioned that from the investigation it is clear that the place where the dead body of Gayathramma and the injured Bhaskar were found was not easily accessible to the public. That means that only the mother and the son could not have gone without the help of someone and that person could be none other than the appellant and they could accompany him only, to such an inaccessible place because they reposed high confidence in him. The appellant also has not stated that he did not take them to that place. When a specific question was put to him, he only stated that he does not remember. Thereafter, the body of Gayathramma was also found but it is in the evidence of the prosecution that they could not easily secure the dead bodies and the dead body of Bhaskar was found only on the next day and he was unconscious. These circumstances would only show that they were taken to such a place where nobody would be able to see the incident. This is further corroborated by the fact that the appellant has sustained 2 injuries as spoken to by P.W. 20-Dr. A.V. Saroja, who is a Medical Officer in Government Hospital, Kollegal. She has specifically stated that she examined T.N. Lakshmaiah and found the following injuries:
1. An abrasion 1/2' x 1/2' on the left cheek;
2. A cut wound on his right thumb 2' x 1'.
These injuries were suffered by the appellant when he attempted to commit the murder of his wife Gayathramma. It is also disclosed that there were scratch marks on his cheek and also while dragging the deceased, he had dashed against a rock and the possibility of these injuries being sustained due to these two facts is also spoken to by this witnesses. When this specific question was put to the appellant under Section 313, Cr. P.C. statement (Q. No. 33) he has merely stated that he does not know.
9. Further, the prosecution relies on the recovery of the dead body on the information furnished by the appellant under Ex. P-22. As stated earlier, the place where the dead body of Gayathramma and Bhaskar who was unconscious were foundwas a place where public could not go easily. Under these circumstances, the prosecution was able to establish that appellant alone was aware of the persons lying at that particular spot. That portion of the statement of the appellant leading to recovery of the bodies is admissible in evidence. Therefore, it is clear that only the appellant could take them to that particular spot and push them down. However, the prosecution also made sincere efforts to collect materials in regard to the movement of the appellant with the deceased persons on 16-1-1991. To substantiate that, the prosecution has examined P.Ws. 4 and 11 who are tender coconut and apple vendors respectively. They have spoken to the effect that the appellant accompanied by the deceased Gayathramma and Bhaskar purchased tender coconuts and apples from them respectively. Thereafter, they went by Kollegal bus. However, they have turned hostile. The learned Sessions Judge with convincing reasons has held that the statements marked in the cross-examination of these witnesses are put to the I.O. and he has clearly admitted them and therefore, there is absolutely no reason to discard the evidence of P.W. 28-S.P. Kushalappa to the effect that they went to these two persons and purchased apples and tender coconuts. Further, P.W. 6-Syed Aalam was examined to show that there is a path to go to the upper side of the falls. He was also examined to show that on that day at 11.30 a.m. the appellant, a lady aged about 35 years and a boy aged 12 years went towards Gaganachukki falls and thereafter at 3.00 p.m. the appellant alone returned. He was also examined to show the dead body was removed from the falls but he also turned hostile. P.W. 7-Madevanaika was examined to show that he is the vendor of papaya and cucumber at Satyagala and near his shop one Mahadeva Gowda also was selling tender coconuts. On that particular day the appellant, a lady and a boy aged 12 years went towards Shivanasamudra and at about 4.30 p.m. the appellant alone returned to that place. He also turned hostile and his statement made before the police also was put to him but it was denied by him. Though these witnesses have turned hostile, the learned Sessions Judge has held that there is nothing to discard the evidence of P.W. 22 the Investigating Officer. These witnesses were examined by the I.O. immediately after the incident and they have stated before him with regard to the movements of the appellant with the deceased persons on that particular day. Therefore, the learned Sessions Judge has rightly accepted the evidence of P.W. 22 to hold that the appellant was found in the company of the deceasedGayathramma and their son Bhaskar on that particular day and it is a strong circumstance against the appellant.
10. The prosecution has examined P.W. 8-Kalaiah who has stated that on 12-1-1991 his son Manjunatha handed over the leave letter of the appellant wherein he had sought for casual leave on 14-1-1991. On 11-1-1991 evening, the appellant and his wife had left his house and he has also stated that on 16-1-1991 when the Assistant Director of Agriculture went to the office, he handed over the leave letter as per Ex. P-6. He further stated that on 16-1-1991 at about 7.30 p.m. when he was sitting on the 'jaguli' of his house, he saw the appellant opening the door of his house but however, his wife and son were not with him. Thereafter, on 17-1-1991 at about 7.00 or 7.30 a.m. the appellant locked his door and went towards K.M. Doddi. In the evening, the police had brought the appellant and recorded his statement. This also goes to show that the appellant had not attended the office, on the other hand, he went on leave and he came back home only on 16-1-1991 and left the house on 17-1-1991 alone. This is also corroborated by the evidence of P.W. 9-T.H. Ramaiah, retired Assistant Agricultural Officer and also P.W. 10-Neeraguntaiah, retired Agricultural Director. No explanation is offered by the appellant in regard to the evidence of these witnesses.
11. The other circumstance which deserves to be considered is the conduct of the appellant. He had appeared before the police on 17-1-1991 and his wife and son left the house on 16-1-1991. He did not make any attempt to search for them and he had also not stated as to where they had gone on 16-1-1991. Therefore, no plausible explanation is offered by the appellant in regard to the movements of his wife and son. However, when incriminating circumstances were put to him, he has either evaded the answer saying that he does not know or that he does not remember. This only shows that he was trying to avoid the circumstances appearing against him in the evidence of the prosecution as he does not have any reasonable explanation to offer. It is no doubt true that the Court cannot much rely on the statement made under Section 313, Cr. P.C. But at the same time, the Court also expects the appellant who is a graduate to give some explanation in regard to the circumstances appearing against him in the prosecution case. Be that as it may, the defence of the accused also will have to be considered. It is no doubt true that in the appeal memo, the appellant has raised a contention that thelearned Court below has not considered the plea of insanity and the medical reports were not called for. However, this ground was not much pressed into service at the time of arguments. Even though that point was not vehemently argued, in view of the statement made before the Court below while recording his statement under Section 313, Cr. P.C. to the effect that he was suffering from nervous disability and also sleeplessness, he remained absent on several occasions because of that disability. He was examined by a psychiatrist Dr. K.M. Druva Kumar. Thereafter also, for 3-4 days be remained absent. Once again he was taken to the said doctor and he had treated him. Thereafter, when he was undergoing training, he was absent from work for 15 days. In view of this, his probation period was extended by one month. He was not able to bear the sound of a metal cup being kept and he used to experience the said sound as if it was hammering on his head. Even if the 'pallo' of the saree of his wife were to fall on him, he used to be restless. As he was getting a salary of only Rs. 450/- p.m. he was not in a position to take proper treatment. Therefore, from this it is clear that he made a faint attempt to show that he was a psychological patient and he had taken treatment for the said illness. He has not stated that during the trial, he suffered such a disability and he has given the statement before the Court without any difficulty. Therefore, it was incumbent on him to lead defence evidence to establish his mental condition. He has not chosen to do so. With this background, it is now necessary to consider as to whether he was suffering from such mental instability during the relevant time. This relevant time is from the month of January, 1991. He had applied for leave and he was later attending to the office. His Officers were examined. In the cross-examination, it was not brought out as to whether he was suffering from any mental instability. He being a Government servant was entitled to all medical benefits but he has not chosen to go to any major hospitals to get himself tested. Even on 16-1-1991 also, he moved with his wife and child freely and he had taken them to Gaganachukki falls. If he was mentally disturbed, at least it would have drawn the attention of the public. On the other hand, he had taken them to an inaccessible place and threw them down into the falls. Thereafter, he went back to his house, he stayed there the whole night and the next day morning he went to the police station. The fact that he went to the police station is fully established in view of the evidence of the Investigating Officers. He has narrated the entire incident whichcame to be recorded as per Ex. P-22. Neither the Investigating Officer nor the Court felt any mental disability as far as this appellant is concerned. Thereafter, he led the Police Officers and panchas to the place of incident and showed the dead body of Gayathramma and also the place where his son Bhaskar was lying unconscious. From this, it is abundantly clear that this defence is nothing but an after thought to avoid his criminal liability. He was in a fit condition and his mental condition also was stable. Further the murders were committed only with an oblique motive to get rid of them. Under these circumstances, the appellant is not entitled for the benefit under Section 84, IPC.
12. After having given thoughtful consideration on the materials available on record and also the reasoning given by the learned Sessions Judge we are of the view that the learned Sessions Judge has rightly held him guilty for the offence punishable under Section 302, IPC on two counts. We find no reasons to interfere with the judgment of the Trial Court. Therefore, the appeal has no merit and the same is dismissed.