S.R. Bannurmath, J.
1. This appeal is filed by the convicted accused Nos. 1 and 4 being aggrieved by the judgment of conviction dated 31st January, 2001 passed by the learned Sessions Judge, Tumkur in S.C. No. 97/ 96 holding both the appellants guilty of the offences under Sections 302, 201 both read with Section 34 of IPC.
2. It is to be mentioned here itself that in all, six accused including the appellants were tried for the offences punishable under Sections 498A, 304B, 302, 201 IPC, and Sections 3, 4 and 6 of the Dowry Prohibition Act, but on appreciation of evidence, the Trial Court though gave benefit of doubt to accused Nos. 2, 3, 5 and 6 and acquitted them of all the charges, the appellants who were accused Nos. 1 and 4 respectively, were found guilty of the offences punishable under Sections 302 and 201 both read with 34 IPC.
3. The brief facts giving rise to the present case are as follows:
On 14th February, 1996 at about 10.30 a.m. a woman by name Kempamma appeared at the Gubbi Police Station and submitted to the Head Constables/ S.H.O.-P.W. 15 that her daughter Shanthamma, who was married to the appellant/accused No. 1, was found dead in her matrimonial house under suspicious circumstances. Based on the report, the S.H.O., registers a case in the UDR 2/1996 for enquiry under Section 174 Cr.P.C. Since in the statement of said Kempamma showed that Shanthamma died in the house of her husband and the unnatural death took place within seven years of the marriage, he sent a requisition to the Taluk Executive Magistrate, Gubbi to conduct inquest proceedings. Accordingly, P.W.9 Mumtaz Ahamed, the Taluk Executive Magistrate goes to the spot and holds an enquiry under Section 174 Cr.P.C, in the presence of independent mahazar witnesses. The dead body is found in the house of the accused/husband of the deceased and the Magistrate notices certain injuries around the neck and on the other parts of the body including the private parts of the deceased. After noting the same and making enquiries including recording the statements of the relatives of the deceased; as he suspects foul play, sends the report to the police to hold enquiry regarding the unnatural suspicious death of Shanthamma. On receipt of the same P.W.16 the P.S.I., registers the same in Cr. No. 53/1996 for the offences under Sections 498A, 306 r/w 34 IPC., against the husband, his parents, brothers and sister. F.I.R. is drawn, sent to the superiors and the Magistrate and the investigation is taken up. As none of the accused are found in the house, search for them is set in. It is to be noted that accused No. 6 surrendered initially and later was released on bail. Similarly accused Nos. 1 to 5 also surrendered later. Thereafter C.O.D., Anti Dowry Cell, takes up the investigation. The investigating officer of C.O.D., thereafter prepares the sketch, records the statements of the relatives of the deceased like mother, brothers, etc. After receipt of the autopsy report and other materials as the Investigating Officer finds prima facie material against the six accused, he files charge sheet against them.
4. After committal and going through the charge sheet material, the learned Sessions Judge framed charges against all the accused for the offences under Section 498A, 304B, 302, 201 all read with Section 34 IPC, and also under Sections 3, 4 and 6 of the Dowry Prohibition Act. As the accused denied all the charges and claimed to be tried, they are tried in S.C. No. 97/96.
5. In order to establish the guilt of the accused, the prosecution has relied upon the evidence of 17 witnesses as well as on Exs.P. 1 to 13 and M.Os. 1 and 2. Apart from denying the prosecution case as totally false, the defence has only relied upon Ex. D. 1 and no other oral or documentary evidence is produced. As already noted the trial Court after considering the entire evidence, though gave benefit of doubt to accused Nos.2, 3, 5 and 6 and acquitted them of all the charges, it held the present appellants/accused Nos. 1 and 4 guilty of the offences under Sections 302, 201 both read with Section 34 IPC, and sentenced them and hence, the present appeal.
6. The learned Advocate appearing for the appellants, taking us through the entire evidence, vehemently contended that the impugned judgment is contrary to law and evidence on record; that the Court below has not properly applied its mind while considering the entire evidence of the prosecution. Highlighting the same, he contended that as the case of the prosecution is based only on circumstantial evidence and as the prosecution has failed to establish any of the circumstances, the trial Court ought to have given benefit of doubt to the appellants as rightly done in the case of other accused and in not doing so not only committed an illegality but also perversity also. He submitted that as is apparent from the prosecution evidence, there is absolutely no motive established. In the absence of any motive, the trial Court could not have held that the appellants committed the murder of Shanthamma. It is also submitted that even the medical evidence is not sure as to whether the death of Shanthamma was homicidal or not. In this regard, he contended that as the doctor himself has found ligature mark around the neck of the deceased, possibility of her committing suicide could not have been over looked and as such, the impugned judgment is liable to be set aside. He also contended that as the appellants have been acquitted of the offences under Sections 498A, 304B and Dowry Prohibition Act, the trial Court could not have drawn adverse presumption against the appellants under Section 114 of the Evidence Act. It is also submitted that as the prosecution witnesses themselves admit that on the date of incident the appellants were not present in the village, there is absolutely no possibility of their committing the crime and hence, as the prosecution has failed to bring home the guilt of the accused beyond doubt much less reasonable doubt, the trial Court has passed an unjust order of conviction. On these among other grounds it is submitted that the impugned judgment, which is not only illegal but also perverse, is liable to be set aside and the accused are entitled for benefit of doubt and clean acquittal. On the other hand Shri Muddappa, the learned Additional SPP., argued in support of the prosecution case and the findings arrived at by the trial Court.
7. We have heard both the sides at length and perused the entire evidence in detail.
8. Out of the 17 witnesses examined by the prosecution, P. Ws. 1 and 8 are the neighbours of the accused, who have been examined to speak about the motive namely causing harassment and cruelty to the deceased by the accused, have not supported the prosecution, and hence, have been treated as hostile. P.Ws.2, 3 and 5 are the mother, the brother and the sister respectively of the deceased who have been examined about the motive namely the dowry demand, harassment and cruelty by the accused. They also speak about the body condition of the deceased when they came to the house of the accused on learning the death of Shanthamma. PW.6 and P.W.7, P.W. 13, P.W. 14 are the neighbours of P.W.2 who have been examined to prove the ill treatment of the deceased by the accused over their dowry demand. But some of them have not supported the prosecution. P.W. 11 is a mahazar witness to the inquest proceedings whereas P.W.9 is the Taluka Executive Magistrate who has held the inquest. P.W. 10 is the autopsy doctor who has given the report as per Ex.P.5 and certain clarifications as per Ex.P.6. The remaining witnesses are the members of the investigating team.
9. At the outset, we would like to deal with the question as to whether the death of Shanthamma was homicidal in nature as put forth by the prosecution or suicidal as contended by the defence. Since the guilt or innocence of the accused in a murder case mainly depends upon the fact that the death was homicidal, we have considered this aspect at the outset. There is not much dispute that prior to 14.2.1996 Shanthamma was alive till her dead body was seen by her mother Kempamma. It is not the case of the defence that she met with any accidental death nor there is any specific explanation by the husband accused No. 1 and his brother accused No. 4 as to how and under what circumstances Shanthamma died. However, as seen from the suggestions and cross-examination of the prosecution witnesses, an attempt has been made to show that the deceased Shanthamma committed suicide. This theory is based mainly on one of the injuries noted by the autopsy doctor P.W. 10 and his report Ex.P.5. According to the defence as ligature marks around the neck was found on the body of the deceased, it shows suicide by hanging. Unfortunately, for the defence not only the theory is absurd but also false as the very doctor has noted that this ligature mark was post-mortem in nature. This specific observation of the doctor signifies that after the death of Shanthamma an attempt has been made to make it appear as death by suicidal hanging. It is to be noted that somebody had seen the body hanging and on the other hand when P.W.2 Kempamma mother had visited the house in the morning saw the dead body lying on a cot in the house. Moreover as the doctor has affirmatively stated that this ligature mark was post-mortem and in spite of searching cross- examination by the defence, the said observation of the expert has not been shaken, we find that the theory of suicide is not only an after thought on the part of the accused but actually an attempt to mislead the whole world. It is also to be noted that apart from this post-mortem ligature mark, the doctor has also noted clotted blood present on mouth, nostrils. He has also noticed right side of the face, right ear, forehead were contused and blackish. He also noticed that there was sub-conjunctival haemorrhage. He also noticed sub conduct sub haemorrhage on the upper part of the chest and the neck, contusion with bluish colour. He has further noticed burn injury on right calf and on the left lateral aspect of external genitalia. He had noticed blood clots present around the external genitalia. According to the doctor all the injuries. Except the ligature mark were antemortem in nature and the cause of death was due to shock and hemorrhage as a result of external violence and mainly injury caused to the brain. This un-impeaching evidence of the doctor, in the absence of any contra indication, in our view, clearly proves that the death of Shanthamma was nothing but due to homicidal attack on her.
10. As such once we hold that the death of Shanthamma was homicidal and not suicidal, it is to be found out as to who caused the death and more specifically whether the prosecution has proved that it is the appellants who are the authors of the crime.
11. The entire case of the prosecution in this regard revolves around the evidence of circumstantial in nature. The circumstances as per the prosecution are as follows.
i) Accused No. 1 husband of the deceased and accused No. 4 his brother along with his wife were residing in the house wherein on 14.2.1996 the dead body of Shanthamma was found;
ii) Accused No. 1 and his family members were demanding the deceased to bring more dowry and in this regard were causing harassment and treating her cruelly.
iii) Shanthamma was found murdered in the house of the appellants, having many injuries on her person and even on the next day none of the accused was found in the house when Kempamma the mother came to the same.
iv) Report regarding the death of Shanthamma was lodged only by said Kempamma and neither the husband nor any of his family members;
v) The theory propounded by the latest that Shanthamma died of suicidal death finds no support from the medical evidence i.e., multiple injuries including burns on various parts of the body especially on her private part clearly indicates homicidal death.
vi) The total denial and silence on the part of the accused as to what happened to Shanthamma on the night of 13.2.1996 as well as their abnormal conduct of absconding from the Police.
12. As the main contention of the learned Advocate for the appellants is that there is absolutely no motive proved by the prosecution as against the appellants and hence, absence or failure on the part of the prosecution to show the motive, their entire case of the prosecution falls to the ground.
13. Before considering the entire evidence and re-appreciating the same, we would like to remind ourselves as to the law laid down by the Hon'ble Supreme Court in respect of appreciation of evidence especially when the motive is not proved or absent.
14. In the case of RAJINDER KUMAR v. THE STATE OF PUNJAB, AIR 1996 SC 1322 it is held that 'motive behind crime is a relevant fact of which evidence can be given. The absence of the motive is also a circumstance which is relevant for assessing the evidence. The absence of circumstances however would not weaken at all by the fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action.'
15. In the case of SHIVAJI BHOBADE v. STATE OF MAHARASHTRA, : 1973CriLJ1783 it is observed thus:
'Proof of motive satisfies the judicial mind about the likelihood of the authorship but it absence only demands deeper search and cannot undo effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamenable too easy proof that Courts have to go without clear evidence there on.'
16. In the case of STATE OF HARYANA v. SHER SINGH, : 1981CriLJ714 it is held that
'the prosecution is not bound to prove motive of any offence in a criminal Case. In as much as motive is known only to the preparatory of the crime and may not be known to others. If the motive is proved by the prosecution, the Court has to consider it and see whether it is an adequate.
17. In the case of Mulakraj v. Satish Kumar, : 1992CriLJ1529 it is held:
'in case of circumstantial evidence the motive bears some significance. Motive always crops up in the mind of the accused and sometimes it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear, it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances collecting data with the crime nor militates against the prosecution case.'
18. Considering these well settled principles or guidelines of the Hon'ble Supreme Court, we find that even if the prosecution is unable to prove the motive, the same will not result in fatality to the prosecution case at the outset, if there is enough material otherwise.
19. As the case of the prosecution revolves around the evidence -circumstantial nature, we have also kept in our mind various pronouncements by the Apex Court in this regard.
20. In the case of AGARWAL v. STATE OF MAHARASHTRA, : [1963]2SCR405 it is held that:
'circumstantial evidence can be that basis of conviction if it is of such a character that it is wholly consistent with the guilt of the accused and inconsistent with the innocence of the accused
21. In the case of UDAIPAL SINGH v. STATE OF UTTAR PRADESH, AIR 1972 SC 54 it is held that
'In the cases where only circumstantial evidence is available at the outset one normally starts looking for the motive and the opportunity to commit the crime. If the evidence shows that the accused had the opportunity of committing the crime and established circumstances on the record along with explanation if any, of the accused exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete so as to show that within all human probability, the crime must have been committed by the accused. He may, in that event, safely be held guilty on such circumstantial evidence.'
22. In the case of MOHAN LAL v. STATE OF UTTAR PRADESH, : 1974CriLJ800 it is held that:-
'the circumstantial evidence must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from the probative force of the facts and the circumstances.'
'Among the circumstances which go against the accused's innocence is the falsity of the plea that he puts forward. It is not illegal to take into consideration this circumstance also if there are other compelling materials bringing home the guilt of the accused.
23. In the case of GURBACHAN SINGH v. SATPAL SINGH, : 1990CriLJ562 it is observed that
'when direct evidence is hardly available, it is the circumstantial evidence and the conduct of the accused persons which are to be taken into consideration for agitating upon the truth less or otherwise of the prosecution case.'
24. Keeping in mind these principles we have to assess the entire evidence of the prosecution.
25. It is to be noted that on assessment of the evidence especially of the autopsy doctor P.W. 10 and his report Ex.P.5 is accepted as true and especially when we have no reason even to hold otherwise, taking into consideration the entire nature of antemortem injuries on the body of Shanthamma, we have already reached to the conclusion that her death is homicidal in nature and the theory of the defence as tried to be projected in the absence of any explanation in this regard, is apparently false and an absurd and then we started searching as to who could have committed such murder. It is to be noted that it is nobody's case that the deceased Shanthamma had any enemy who intended to do away with her young life. It is to be noted that at the time of death she was residing along with her husband accused No. 1 and his brother accused No. 4 and the latter's wife. Undisputedly by the date of the incident, wife of accused No. 4 had gone to her parents house for delivery and as such on 13.2.1996 it was only the deceased, her husband and brother-in-law, who were in the house. At this stage itself, we would like to refer to the argument of the learned Counsel proposing a theory of alibi for the appellants viz., on the date of incident both of them had gone to the parental house of accused No. 4's wife. This argument is merely based upon the evidence of P.W. 1 a neighbour of the accused. It is to be noted that this witness has resiled from her statement made before the Police and as such, has been treated as a hostile witness. Her attitude/evidence clearly shows that she has no value for truth. Except her stray evidence that the appellants were out of station, we do not find any material in this regard. It is worthwhile to note that this is not even the case of the appellants themselves as is clear from their statement under Section 313 Cr.P.C, the appellants except denying the entire prosecution case as false, have offered no explanation as to where they were in the night of 13.2.1996 or even thereafter till they were arrested nearly 2 months thereafter. It is well settled that once an accused propounds a theory of alibi, he has to prove the same and if he does not, based on other evidence it is to be held that he was not at any other place but in his house especially at night. As such in the absence of any material, we have to hold that in the night of 13.2.1996 it was only the appellants and the deceased, who were in the house. As we have already noted in such situation especially when the deceased had received fatal injuries including on her private parts literally pierced with an instrument as well as burn marks, it was most essential for the accused to explain the same. Non explanation of either their whereabouts or as to what happened to the deceased Shanthamma, who is none else than the wife of accused No 1 and sister-in-law of accused No. 4, we have to hold that the silence and flat denial of the prosecution case by them, supplies the additional and the missing link to make the chain of circumstances complete especially when all the other circumstances which we have noted earlier have been cogently established by the prosecution. After giving our anxious considerations to the entire fact scenario, we find that there can be no other hypothesis except that it was the accused and the accused alone, who murdered the deceased. The nature of injuries clearly indicate that it was an act of persons of sadistic mind. It is also significant to note that the attempt of trying to make it appear as if the deceased hanged herself, which has been proved to be false as per the doctor's evidence, we find that it must be the work of more than one person. As we have already noted it was only the appellants besides the deceased who were in the house in the night of 13.2 1996 and as such, it leaves no doubt in our mind that it was these accused who committed the ghastly murder of Shanthamma.
26. On going through the entire judgment of the trial Court, we find that the learned Sessions Judge has taken into consideration all these aspects carefully and has reached to the proper and just conclusion of guilt of these appellants. Agreeing with the finding of the trial Court, we find that there is no merit in any of the contentions raised by the learned Counsel for the appellants and hence, find no merit in the appeal.
27. In the result and for the reasons stated above, the appeal stands dismissed, affirming the judgment of conviction passed by the trial Court holding the accused guilty of the offence punishable under Section 302 read with 34 IPC.