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2010 DIGILAW 1168 (KAR)

State of Karnataka v. M. Shaheera

2010-11-10

K.N.KESHAVANARAYANA, K.SREEDHAR RAO

body2010
JUDGMENT K.N. KESHAVNARAYANA, J.—The respondents-accused Nos. 1 to 3 were tried for the charge levelled against them for the offence punishable under Section 302 IPC, before the District and Sessions Judge, Kodagu, Madikeri in S.C. No. 28/2002. After the trial, they were acquitted by the Learned Sessions Judge. Aggrieved by this, the State is in appeal before this Court. 2. The case of the prosecution in brief is as under: Accused No. 1-M. Shaheera married deceased Nazimunnisa daughter of P.W. 19-Ameena on 8.11.2001. After the marriage she started living with her husband-accused No. 1 and parents-in-law accused Nos. 2 and 3in Siddapura Town. While staying so in her matrimonial home, the accused were complaining that she does not know cooking and to take care of her husband and in-laws properly. In this regard, there were some differences between the accused on the one hand and the deceased Nazimunnisa on the other. This fact was known to the mother and other relatives of the deceased. During the night of 14.2.2002, accused No. 1 and the deceased slept inside the room of their house. In the early hours at about 5.30 a.m., accused No. 1 left the house. Thereafter since the deceased did not come out of the room, at about 7.30 a.m., accused No. 2-the mother-in-law of the deceased went inside the room and found Nazimunnisa lying dead on the cot. Immediately, accused No. 3-Musthaf, father-in-law of the deceased went to Siddapura Police Station and lodged a report at 10.30 a.m. about his daughter-in-law lying dead inside the bedroom of his house. Based on the said report, the case in UDR No. 6/02 was registered as per Ex. P14. Immediately, the police visited the scene of occurrence, shifted the dead body to the hospital where the doctor confirmed the death of said Nazimunnisa. Thereafter, the Investigating Officer held inquest over the dead body of Nazimunnisa. In the meanwhile, the mother and the relatives of the deceased were informed about the death and all of them came to the hospital, where they did not find the dead body and they were told that the dead body is in the house of the accused and, therefore, they went to the house of the accused and saw the dead body of the deceased there. Thereafter, P.W. 1-K.A. Mustafa, maternal uncle of the deceased lodged oral complaint as per Ex. Thereafter, P.W. 1-K.A. Mustafa, maternal uncle of the deceased lodged oral complaint as per Ex. P1 before the police suspecting the death of the deceased being a homicidal one and the accused being the husband and relatives of the deceased as responsible for her death. On the basis of the said complaint of P.W. l, case was registered and investigation was taken up. On the same day, accused No. 1 was apprehended and since he was also found to have sustained some injury, he was taken to the hospital for examination and treatment where he was examined by P.W. 9-Dr. Prathibha, Medical Officer in the Government Hospital at Siddapura. Before P.W. 9 accused No. 1 gave history of his injury as assault by his wife Nazimunnisa at about 5.00 a.m. on 15.2.2002 and the said history was recorded by P.W. 9 in MLC register and the same was mentioned in the Wound Certificate-Ex. P7 issued by P.W. 9. Subsequently, accused Nos. 2 and 3 were also arrested and after completing the investigation, the charge sheet came to be laid. 3. On committal of the case to the Court of Sessions, the accused pleaded not guilty of the charge levelled against them and claimed to be tried. The prosecution to bring home the guilt of the accused persons examined P.Ws. l to 33, relied on documentary evidence Exs. P1 to P24 and M.Os. 1 to 8. The defence of the accused was one of total denial and that of false implication. 4. After hearing both sides and on assessment of the oral and documentary evidence, the learned Sessions Judge by the judgment under appeal held that the prosecution has failed to prove the various circumstances relied upon by it to connect the accused to the death of the deceased and, therefore, the guilt of the accused for the charge levelled against them for the offence punishable under Section 302 read with Section 34 IPC is not established beyond reasonable doubt. Consequently, the accused were acquitted. Being aggrieved by the judgment of acquittal, the State is in appeal. 5. We have heard Sri G. Bhavani Singh, learned Additional State Public Prosecutor for the appellant-State and Sri Karumbaiah, learned counsel appearing for the respondents-accused. We have perused the records and closely scrutinized the evidence, both oral as well as documentary and also read the judgment under appeal. 6. 5. We have heard Sri G. Bhavani Singh, learned Additional State Public Prosecutor for the appellant-State and Sri Karumbaiah, learned counsel appearing for the respondents-accused. We have perused the records and closely scrutinized the evidence, both oral as well as documentary and also read the judgment under appeal. 6. In the facts and circumstances of the case, the points that arise for our consideration are: (1) Whether the learned Sessions Judge is justified in holding that the prosecution has failed to prove the charges levelled against the accused persons and in acquitting them? and (2) Whether the judgment under appeal suffers from any perversity or illegality calling interference by this Court? 7. The relationship between the accused and the deceased is not in dispute. Accused No. 1 married the deceased on 8.11.2001. The fact that Nazimunnisa died on 15.2.2002 in the bedroom of the house of accused is also not in dispute. According to the evidence of P.W. 9, on 15.2.2002 she conducted the post-mortem examination on the dead body of Nazimunnisa and she observed the following: “Body of a female aged about 16-18 years, moderately built and nourished. Rigor mortis present all over the body. P.M. staining present over the back and buttocks reddish in colour. Under cloth smells of urine Echymosis present over the neck and face. (2) (a) There is an abrasion in the center of neck in the midline at the level of the thyroid cartilage measuring 0.5 cm x 0.2 cm, reddish in colour. (b) There is an abrasion in the center of neck in the midline just below 2(a) measuring 0.4 cm x 0.1 cm reddish in colour. (c) There is an abrasion in the center of neck in midline just below 2(b) measuring 0.5 cm x .01 cm reddish in colour. (d) There is an abrasion in the neck right side, 4 cms from midline at the level of thyroid cartilage measuring 1 cm x 0.2 cm reddish in colour. (e) There is an abrasion over the neck 2.5 cms from midline at the level of the thyroid cartilage on left side. (f) There is an abrasion over the neck 5 cms from midline at the level of the thyroid cartilage on left side measuring 1 cm x 0.3 cm reddish in colour. (e) There is an abrasion over the neck 2.5 cms from midline at the level of the thyroid cartilage on left side. (f) There is an abrasion over the neck 5 cms from midline at the level of the thyroid cartilage on left side measuring 1 cm x 0.3 cm reddish in colour. On dissection extravasation of blood present in the subcutaneous tissues on both sides, corresponding to the abrasion mentioned earlier; contusions present over subcutaneous tissues and muscles. (3) Sub-conjuctival haemorrhage spots present on both sides. According to her further evidence fracture and dislocation of hyoid bone present on the left side and extravessetion of blood into fractured site was also noticed. She has opined that the death was due to asphyxia as a result of throttling. This witness has been cross-examined at length. We have carefully examined the answers elicited in the cross-examination of P.W. 9 and we find nothing to discard or discredit her testimony with regard to the cause of death. Therefore, the uncontroverted evidence of P.W. 9 would clearly establish that the death of Nazimunnisa was due to throttling, as such, the death was homicidal.” 8. The next question required to be considered is as to who was responsible for homicidal death of the deceased. No doubt the case of the prosecution rests on circumstantial evidence. The deceased was none other than the wife of accused No. 1 and daughter-in-law of accused Nos. 2 and 3. The death has occurred inside the bedroom in the matrimonial home of the deceased. Of course, the prosecution in order to connect the accused to the death of the deceased has relied on two circumstances, namely, the motive and the deceased being in the company of accused No. 1 inside the bedroom in or about the time of death. According to the learned Sessions Judge, the prosecution has failed to prove the circumstance of motive. According to the learned Sessions Judge in a case where the case of the prosecution rests on circumstantial evidence, the motive plays an important role. There is no quarrel about this legal position. According to the learned Sessions Judge, the prosecution has failed to prove the circumstance of motive. According to the learned Sessions Judge in a case where the case of the prosecution rests on circumstantial evidence, the motive plays an important role. There is no quarrel about this legal position. However, the learned Sessions Judge to base his conclusion that the prosecution has failed to prove the motive, has rejected the testimony of material witnesses examined by the prosecution in this regard only on the ground that they are all close relatives of the deceased and, therefore, their testimony cannot be accepted. This approach adopted by the learned Sessions Judge, in our opinion, is improper and contrary to the well settled principles of law with regard to appreciation of evidence of witnesses who are related to the victim or the deceased. It is well settled law by catena of decisions of the Apex Court and this Court that the testimony of a witness cannot be discarded only on the ground that he or she is closely related to the victim or the deceased. Nevertheless, the evidence of such witnesses have to be closely scrutinized before accepting the same to rule out the possibility of false implication. In the case on hand, the material witnesses examined by the prosecution to prove the motive are no doubt close relatives of the deceased. In a case of this nature, natural witnesses would be the close relatives of the deceased. Generally the neighbours of the accused would not come forward to give evidence against the accused for various reasons. In this case also the neighbours of the accused who were examined by the prosecution have turned hostile and have not supported the case of the prosecution. On that ground the testimony of close relatives cannot be discarded. 9. P.W. 19-Ameena being the mother and P.W. 1-Musthafa being the maternal uncle of the deceased in our opinion, are natural witnesses. It is a natural event that the daughter would inform her mother and other close relatives as to what transpires in her matrimonial home. P.Ws. 1 and 19 have deposed in their evidence about the differences between accused No. 1 and the deceased and also about the accused abusing the deceased saying that she does not know cooking and does not take proper care of her husband and in-laws. P.Ws. 1 and 19 have deposed in their evidence about the differences between accused No. 1 and the deceased and also about the accused abusing the deceased saying that she does not know cooking and does not take proper care of her husband and in-laws. Evidence of material witnesses would clearly establish that there were some differences between accused No. 1 and the deceased and, therefore, all that was not well between the couple. There used to be frequent quarrels between them. Under these circumstances, in our opinion, the learned Sessions Judge is not justified in holding that the evidence on record is not sufficient to prove the motive attributed against accused No. 1 if not against accused Nos. 2 and 3. 10. The other important circumstance relied upon by the prosecution is that the deceased was found in the company of accused No. 1 inside the bedroom in or about the time of her death. According to the evidence of P.W. 9, the age of the injuries found on the deceased was within 12 hours prior to the post-mortem examination. Post-mortem examination was conducted between 3.05 p.m. and 5.15 p.m. on 15.2.2002, 12 hours prior to the conduct of post-mortem examination takes us to between 3.00 a.m. and 5.00 a.m. Now the crucial question is as to whether the deceased was found in the company of accused No. 1 between 3.00 a.m. and 5.00 a.m. on 15.2.2002. According to the evidence of P.W. 13, on 15.2.2002 at about 10.30 a.m., accused No. 3 came to the Police Station and lodged a report as per Ex. P13 about the death of his daughter-in-law in the house and on that basis he registered the case in U.D.R. No. 6/02 and on the same day he visited the spot, namely, the house of accused Nos. 1 to 3 and conducted spot mahazar in the presence of panchas and also accused No. 3 as per Ex. P3. There is no serious cross-examination to P.W. 13 in this regard. The contents of Ex. P3 indicate that the dead body was found in the bedroom in the house of accused Nos. 1 to 3. Therefore, from the evidence on record it is clearly established that the death of the deceased had taken place inside the bedroom of the house of accused Nos. l to 3. The contents of Ex. P3 indicate that the dead body was found in the bedroom in the house of accused Nos. 1 to 3. Therefore, from the evidence on record it is clearly established that the death of the deceased had taken place inside the bedroom of the house of accused Nos. l to 3. Now the question is whether accused No. 1 was in the company of the deceased in or about the time of death. Of course, in this regard as per the case of the prosecution, the complaint lodged by accused No. 3 was the basis for setting the criminal law on motion. However, since it was the statement made by accused No. 3, the father-in-law of the deceased, it cannot be used against the accused persons. Nevertheless, there is intrinsic evidence on record, which would beyond reasonable doubt establish the presence of accused No. 1 inside the bedroom in or about the time of death of deceased. According to the case of the prosecution, on 15.2.2002 itself accused No. 1 was apprehended and since he was found having sustained some injuries on his person he was taken to the hospital at Siddapur for examination and when he was produced before the medical officer-P.W. 9, he gave history for the injury as assault by Nazimunnisa at about 5.00 a.m. on 15.2.2002. P.W. 9 in her oral evidence has stated that on 15.2.2002 she examined accused No. 1 at about 2.00 a.m. When he was brought to the Hospital by the Police with a history of assault. She has further stated that accused No. 1 gave the history of assault by Nazimunnisa (deceased) at 5.00 a.m. on 15.2.2002 and on examination she found the following injuries: (1) Abrasions injury over left elbow region size 2 complainant x 1 complainant reddish in colour. (2) Complaints of pain over right side of chest and abdomen region on examination tenderness was present on chest and abdomen. She has further stated that the injuries were simple in nature and the age of the injuries were within 24 hours prior to examination and to this effect she issued wound certificate Ex. P7. Careful examination of the answers elicited in the cross-examination of P.W. 9 indicates that the defence has not controverted the evidence of P.W. 9 with regard to history furnished by accused No. 1. P7. Careful examination of the answers elicited in the cross-examination of P.W. 9 indicates that the defence has not controverted the evidence of P.W. 9 with regard to history furnished by accused No. 1. Per contra, in the cross-examination it is elicited from P.W. 9 that she examined accused No. 1 in the duty room in the hospital at 2.00 a.m. in the intervening night of 15.2.2002 and 16.2.2002. There is no suggestion to P.W. 9 that accused No. 1 did not give any such history as stated by her. Thus the evidence of P.W. 9 clearly establishes that when accused No. 1 was taken to the Hospital and produced before P.W. 9, he gave the history that he was assaulted by his wife Nazimunnisa at about 5.00 a.m. on 15.2.2002. If this statement is admissible in evidence it would beyond reasonable doubt establish the presence of accused No. 1 in the company of the deceased in or about the time of death of the deceased. Now the question is as to whether this statement made by accused No. 1 before P.W. 9 is admissible in evidence or whether it is excluded under Section 26 of the Evidence Act. This position, in our opinion, is no more res integra in view of the decision of the Apex Court in the case of Kanda Padayachi vs. State of Tamil Nadu, AIR 1972 SC 66 . In this decision, their Lordships have distinguished the admission of a fact by an accused from ‘Confession’ within the meaning of Sections 24 to 26 of the Evidence Act. It has been clearly held that the statement made by the accused whilst he was in Police custody to the Doctor that injury on his person were caused by murdered person is admissible. Under Section 21 of the Evidence Act and such statement would not amount to ‘Confession’ within the meaning of Sections 24 to 26 of Evidence Act. The relevant observations are found in paras 6, 8 to 12 and 14, which reads as under: “6. Counsel for the appellant raised two contentions before us. The first was that both the Sessions Judge and the High Court had not properly construed important pieces of evidence and had drawn inferences which were not warranted by the facts established by evidence. Counsel for the appellant raised two contentions before us. The first was that both the Sessions Judge and the High Court had not properly construed important pieces of evidence and had drawn inferences which were not warranted by the facts established by evidence. The second, which was more substantial and requires consideration, was that the statement made by the appellant before the Doctor (P.W. 8) that it was the deceased who had caused the injury on his tow on the fatal night was inadmissible under Section 26 of the Evidence Act, 1872 as it was made whilst the appellant was in the custody of the Police”. “8. As regards the second contention, we think that on the strength of the decisions, both of the Privy Council and of this Court, the High Court was right in its conclusion that the appellant’s statement before the Doctor was properly admitted in evidence and could be relied upon as an admission under Section 21 of the Evidence Act, 1872. Nothing was and could be found against the Doctor to prevent his evidence about the statement made before him by the appellant from being accepted. The only question, therefore, is whether that statement was inadmissible by reason of Section 26. 9. Sections 24 to 26 form a trio containing safeguards against accused persons being coerced or induced to confess guilt. Towards that end Section 24 makes a confession irrelevant in a criminal proceeding it is made as a result of inducement, threat or promise from a person in authority, and is sufficient to give an accused person grounds to suppose that by making it he would gain any advantage or avoid any evil in reference to the proceedings against him. Under Section 25, a confession made to a Police Officer under any circumstances is not admissible in the evidence against him. Section 26 provides next that no confession made by a prisoner in custody even to a person other than a Police Officer is admissible unless made in the immediate presence of a Magistrate. 10. The expression ‘confession’ has not been defined in the Evidence Act. But Stephen in his Digest of the Law of Evidence defined it as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed a crime. Straight, J., in R. vs. Jagrup, (1885) ILR 7 All. 10. The expression ‘confession’ has not been defined in the Evidence Act. But Stephen in his Digest of the Law of Evidence defined it as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed a crime. Straight, J., in R. vs. Jagrup, (1885) ILR 7 All. 646 and Chandawarkar, J. in R. vs. Santya Bandhu, (1909) 11 Bom LR 633, however, did not accept such a wide definition and gave a narrower meaning to the expression ‘confession’ holding that only a statement which was a direct acknowledgment of guilt would amount to confession and did not include merely inculpatory admission which falls short of being admission of guilt. The question as to the meaning of ‘confession’ was ultimately settled in 1939 by the Privy Council in Pakala Narayana Swami vs. The King Emperor, AIR 1939 PC 47 wherein at page 81 Lord Atkin laid down that no statement containing self-exculpatory matter could amount to confession if the exculpatory statement was of some fact which if true could negative the offence alleged to be confessed. He observed: “Moreover, a confession must either admit to terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession. Some confusion appears to have been caused by the definition of confession in Article 22 of Stephen’s Digest of the Law of Evidence which defines a confession as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles: confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872; and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused ‘Suggesting the inference that he committed’ the Crime”. “11. As held by the Privy Council, a confession has to be a direct acknowledgement of the guilt of the offence in question and such as would be sufficient by itself for conviction. If it falls short of such a plenary acknowledgement of guilt it would not be a confession even though the statement is of some incriminating fact which taken alongwith other evidence tends to prove his guilt. Such a statement is admission but not confession. Such a definition was brought out by Chandawarkar. J., in R. v. Santya Bandhu, (1909) 11 Bom LR 633 by distinguishing a statement giving rise to an inference of guilt and a statement directly admitting the crime in question. 12. In Palvindar Kaur vs. State of Punjab (I), AIR 1952 SC 354 the statement made by the accused was that she had placed her husband’s dead body in a trunk and had carried it in a jeep and thrown it into a well. But with regard to the cause of death, the statement was that her husband had accidentally taken a poisonous substance erroneously thinking that to be a medicine. This Court referred to Pakala Naravayana Swami’s case, AIR 1939 PC 47 and the dictum of Lord Atkin and held that a statement which contained self-exculpatory matter could not amount to a confession if the exculpatory matter is of some fact which if true would negative the offence alleged to be confessed. But the Court added that a statement to be a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence, and that an admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. In Om Prakash vs. State of U.P., AIR 1960 SC 409 the appellant was convicted under Section 161 read with Section 109 of the Penal Code. Two statements made by him, Exs. P3 and P4, to the Assistant Agricultural Engineer, Aligarh were relied upon as confessions of bribery having been given by him to public servants and upon which the High Court had based his conviction. Two statements made by him, Exs. P3 and P4, to the Assistant Agricultural Engineer, Aligarh were relied upon as confessions of bribery having been given by him to public servants and upon which the High Court had based his conviction. This Court set aside the conviction holding that neither of the two documents amounted to a plenary acknowledgement of the offence, that the statements were capable of being construed as complaints by him of having been cheated by the public servants named therein and that at best they might arouse suspicion that he had bribed them. In this conclusion, the Court approvingly cited Pakala Narayana Swami’s case and relied on the meaning of the word ‘Confession’ given therein by Lord Atkin. In Faddi vs. State of Madhya Pradesh, AIR 1964 SC 1850 the appellant filed a first information report on the basis of which the dead body of his step son was recovered and three persons were arrested. As a result of the investigation, however, the appellant was arrested and was sent up for trial which resulted in his conviction and a sentence of death. In an appeal before this Court, he contended that the first information report ought not to have been admitted by reason of Section 25 of the Evidence Act and Section 162 of the Criminal Procedure Code. The contention was rejected on the ground that neither of the two provisions barred the admissibility of the first information report as that report was only an admission by the appellant of certain facts which had a bearing on the question as to how and by whom the murder was committed and whether the statement of the appellant in the Court denying the evidence of certain prosecution witnesses was correct or not. Such admissions were admissible under Section 21 of the Evidence Act and as such could be proved against the accused.” “14. On the authority of these pronouncements by this Court, it is clear that the statement in question did not amount to a confession. It was an admission of a fact, no doubt of an incriminating fact, and which established the presence of the appellant in the deceased’s room but which clearly was not barred under Section 26. The Sessions Judge and the High Court were, therefore, right in holding it to be admissible and in relying upon it. It was an admission of a fact, no doubt of an incriminating fact, and which established the presence of the appellant in the deceased’s room but which clearly was not barred under Section 26. The Sessions Judge and the High Court were, therefore, right in holding it to be admissible and in relying upon it. In this view, counsel’s second contention also fails and has to be rejected.” 11. A Division Bench of Kerala High Court in the case of State of Kerala vs. Ammini and others, AIR 1988 Ker. 1 following the aforesaid decision of the Apex Court has distinguished ‘confession’ as found under Section 26 of the Evidence Act as different from the statement made by the accused to any other person though in the custody of the police. In this decision the Kerala High Court has held that what is prohibited under Section 26 is only confession and that embargo is not extended to the statements which do not amount to confession. Relevant observations are found at para 45 of the judgment, which reads as under: “45. The admissibility is questioned on the ground that the statements are hit by Section 26 of the Evidence Act which prohibits confession made by a person whilst he is in the custody of a police officer. What is prohibited is only “Confession”, and the embargo is not extended to the statements which do not amount to confession. Admissions can be proved as against the person who makes it, and Section 21 of the Evidence Act permits such admissions being proved. The Contours of Section 21 are not bounded by limitations of the person being in the custody of a police officer. There is no doubt that if the admission amounts to “confession” it transgresses into the forbidden field designed in Section 26. What is a “confession”? Neither the Evidence Act nor other statutes on criminal law defines confession. Privy Council, way back in 1939 in Narayana Swami vs. Emperor, AIR 1939 PC 47 , made the endeavor to explain the word “confession” as used in the Evidence Act. Lord Atkin who delivered the famous judgment in that case stated thus: “The word “confession’ as used in Evidence Act cannot be construed as meaning a statement by an accused “suggesting the inference that he committed” the crime. Lord Atkin who delivered the famous judgment in that case stated thus: “The word “confession’ as used in Evidence Act cannot be construed as meaning a statement by an accused “suggesting the inference that he committed” the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession”. “The Supreme Court adopted the aforesaid explanation as correct in Palvinder Kaur vs. State of Punjab, AIR 1952 SC 354 . In Aghnoo Nagesia vs. State of Bihar, AIR 1966 SC 119 , Supreme Court considered the question of severability of the accused’s confession while in custody, one exculpatory and the other inculpatory. In the context, Supreme Court found it worthwhile to adopt the same line of thinking about the contours of confession and the principles followed in Palvinder Kaur’s case were reaffirmed. The important decisions on this subject, in view of the context in this case, is Kanda Padayachi vs. State of Tamil Nadu, AIR 1972 SC 66 . The subject dealt with in that decision is the admissibility of a statement made by an accused, in police custody, to a doctor regarding some minor injuries found on his person, to the effect that “it was the deceased who at about midnight on July 10, 1969 had caused the injury on his the (sic) by biting him”. The Supreme Court made reference to the case law on the subject including Pakala Narayana Swami’s case and held that the statement in question did not amount to a confession, but only amounts to an admission of fact “no doubt of an incriminating fact, and which established the presence of the appellant in the deceased room”. The dictum has been laid down in para 13 of the judgment which reads thus: “It is thus clear that an admission of a fact, however, incriminating, but not by itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act.” A Division Bench of this Court in Chandran vs. State of Kerala, (1987) 1 Ker LT 391 followed the same principle. When the statements attributed to the second and third accused in Exts. When the statements attributed to the second and third accused in Exts. P22 and 36 respectively are judged from the above guidelines, we hold that, though incriminating the statements do not amount to confession and hence they are not hit by Section 26 of the Evidence Act. 12. In the light of the aforesaid decisions, we are of the opinion that the statement made by accused No. 1 before P.W. 9 with regard to the history furnished by him that he was assaulted by his wife at about 5.00 a.m. on 15.2.2002 would not amount to ‘confession’ within the meaning of Sections 24 to 26 of the Evidence Act and said statement is admissible in evidence. The said statement would clearly establish that the deceased and accused No. 1 were together in the bedroom between 3.00 and 5.00 a.m. on 15.2.2002 during which period, the homicidal death of the deceased had occurred. As already noticed above, as per the medical evidence, the death of the deceased was due to throttling. Accused No. 1 being the husband of the deceased and being in fiduciary capacity was under an obligation to explain the circumstance in which his wife died on account of throttling. When deceased and accused were the only persons inside the bedroom and if the wife had died on account of throttling, in the absence of any explanation from accused No. 1 the only irresistible inference that could be drawn is that accused No. 1 was responsible for the homicidal death of the deceased who died on account of throttling. The fact as to who caused the homicidal death of the deceased while she was in the company of her husband namely the accused, was within the special knowledge of the accused. As per Section 106 of the Evidence Act, burden of proving the said fact is on the accused. The accused has not made any endeavor to explain as to who caused the death of his wife while she was in his company. Accused No. 1 has not come out with any explanation either during the cross-examination of material witnesses nor during his statement under Section 313 Cr.P.C. Therefore, having regard to the common course of natural event and human conduct, it has to be presumed that accused No. 1 alone was responsible for the homicidal death of his wife. Accused No. 1 has not come out with any explanation either during the cross-examination of material witnesses nor during his statement under Section 313 Cr.P.C. Therefore, having regard to the common course of natural event and human conduct, it has to be presumed that accused No. 1 alone was responsible for the homicidal death of his wife. The learned Sessions Judge, in our opinion, has completely omitted to take into account this important circumstance established on record. Therefore, the judgment under appeal suffers from perversity and illegality on account of omission to consider the important material evidence on record, which would clearly establish the complicity of accused No. 1 for the homicidal death of deceased Nazimunnisa. Therefore, the judgment under appeal acquitting accused No. 1 cannot be sustained. Of course, there is absolutely no evidence with regard to complicity of accused Nos. 2 and 3 for the homicidal death of the deceased. Even According to the case of the prosecution and also from facts established, it was only accused No. 1 who was in the company of the deceased in or about the time of her death. During that period, accused Nos. 2 and 3 were not in the company of the deceased. Therefore, acquittal of accused Nos. 2 and 3 is justified and it does not call for interference by this Court. However, acquittal of accused No. 1 is unjustified and is liable to be set aside. 13. The next question for consideration is as to whether the act committed by the accused would attract the offence punishable under Section 302 IPC. It is the argument of the learned counsel for the accused No. 1 that even if the entire case of the prosecution in this regard is accepted, the act committed by the accused would not fall under Section 302 IPC, at best it may attract provision of Section 304 Part II IPC as the incident appears to have occurred during a quarrel and scuffle, therefore, accused No. 1 had no intention to commit the murder of his wife. From the history furnished by accused No. 1 to P.W. 9 it is noticed that accused No. 1 had also suffered some minor injuries. From the history furnished by accused No. 1 to P.W. 9 it is noticed that accused No. 1 had also suffered some minor injuries. This would probabalise that there was a sudden quarrel and fight between the husband and the wife for some trivial reasons and in the scuffle accused No. 1 appears to have pressed the neck of deceased. Therefore, it cannot be said that accused No. 1 did the said act with premeditation. However, regard being had to the facts and circumstances of the case, it cannot be said that the accused committed such acts without the intention of causing death of his wife. Under these circumstances, in our opinion, the act committed by the accused though is culpable homicide, it would not amount to murder but the act committed by the accused No. 1 is culpable homicide not amounting to murder falling within I Part of Section 304 IPC. Therefore, in our opinion, accused No. 1 is liable to be convicted for the offence punishable under Section 304 Part I IPC. 14. Heard Sri Karumbaiah, learned counsel appearing for the respondent No. 1/accused No. 1 regarding sentence. It is the submission of the learned counsel that during the trial of the case for a total period of 3 years and 17 days, accused No. 1 was in judicial custody. Therefore, accused No. 1 has spent substantial period in the custody as such the learned counsel submits that a lenient view be taken and accused No. 1 may be sentenced to the period already spent in custody during the trial. 15. The offence under I Part of Section 304 IPC is punishable with imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to pay fine. Having regard to the fact that the incident occurred during a scuffle between husband and wife on trivial issue and also taking into consideration the period of custody already undergone by accused No. 1, we find considerable force in the argument of the learned counsel for the appellant that accused No. 1 should be sentenced for the period already undergone in custody during the trial of the case and to pay fine of Rs. 20,000/-. 16. Accordingly the appeal is allowed in part. 20,000/-. 16. Accordingly the appeal is allowed in part. The judgment dated 5.3.2005 passed by the District and Sessions Judge, Kodagu, Madikeri, in S.C. No. 28/2002 acquitting respondent No. 1/accused No. 1 is hereby set-aside. Accused No. 1 is convicted for the offence punishable under Section 304 Part I IPC. He is sentenced to imprisonment for the period already spent in custody during the trial of the case and also to pay fine of Rs. 20,000/-. In default to pay fine accused No. 1 shall undergo rigorous imprisonment for a period of 1 year. The judgment of acquittal passed against accused Nos. 2 and 3 is hereby confirmed.