JUDGMENT : The accused in Sessions Case No.83/2011 on the file of Sessions Judge, Kodagu at Madikeri has preferred this appeal challenging the judgment dated 26.09.2013 convicting him for the offences punishable under Sections 302 and 201 of IPC, and sentencing him to undergo life imprisonment and to pay a fine of Rs.10,000/- with default clause of two years in relation to offence punishable under Section 302 of IPC and rigorous imprisonment of five years and to pay a fine of Rs.5,000/with a default clause of one year in relation to offence punishable under Section 201 of IPC. 2. The prosecution case in brief is as follows: On 12.2.2011 at about 9.00 a.m. PW.1 Gangadhara and his wife i.e., P.W.8 Padmavathi had been to a forest area nearby their house for bringing firewood. At about 9.30 a.m. they felt a foul smell from a nearby place. When they went near the place from where the smell was coming, they saw a dead body of a female. As they went near the dead body, they came to know that it was of one Meenakshi who was residing nearby their house. They noticed that the body was in a decomposing state and it was also burnt to some extent. Immediately they returned to their village and informed the same to some other villagers, namely, Raghavan and Kalinga. Once again they came to that place. On further enquiry, he came to know that about 7 or 8 days back, the accused had picked up a quarrel with his wife Meenakshi and assaulted her. Even the accused was not found in the village. Therefore, they entertained a doubt that the accused might have assaulted his wife, committed her murder and then thrown the dead body in the forest area. On 12.02.2011 at about 4 p.m. first information was registered in Crime No.30./2011. Thereafter the police held investigation and filed the charge sheet. 3. After charging the accused for the offences punishable under Sections 302 and 201 of IPC, the trial was held. The prosecution examined 15 witnesses, P.W.1 to P.W.15 and got marked 17 documents as per EX.P.1 to EX.P.17 and 9 material objects as per MO.1 to MO.9. The accused was examined under Section 313 of Cr.P.C. After appreciating the evidence, the trial Court held the accused guilty of the offences as aforementioned. 4. The prosecution examined 15 witnesses, P.W.1 to P.W.15 and got marked 17 documents as per EX.P.1 to EX.P.17 and 9 material objects as per MO.1 to MO.9. The accused was examined under Section 313 of Cr.P.C. After appreciating the evidence, the trial Court held the accused guilty of the offences as aforementioned. 4. The trial Court has given findings that the evidence of the witnesses examined by the prosecution are worth believable inspite of hostility of some of the witnesses. It is mainly held by the trial Court that though PW.5, the doctor who conducted the post mortem examination was not able to give the exact cause of death, the medical evidence is not conclusive as the entire incident is established by PW.10, the daughter of the deceased. PW.10 is a child witness, yet her evidence is believable and nothing is there to show that she was tutored. Further it is held by the trial Court that the recovery of Mos.4 to 9 at the instance of the accused is substantiated by the evidence of PW.6 and therefore it can be concluded that the prosecution is able to prove its case. 5. Assailing the findings of the trial Court the learned counsel appearing for the appellant/accused argues that the evidence of PW.10 cannot be believed as she is the daughter of the deceased. Though in the examination in chief she has stated that her father assaulted her mother, the other answers given by her in the cross examination indicate that actually her mother had gone out of the house. From the answers given by her, it is possible to draw an inference that actually she did not see anything that is said to have taken place inside the house. There is all possibility that she might have been tutored. The next point she argues is that according to the prosecution, the date of incident is 03.02.2011 and for about two days the dead body was kept under the cot inside the house of the accused. That means the dead body might have been thrown in the forest area on 05.02.2011 and it was detected on 12.02.2011. The evidence on record does not indicate as to what happened between 05.02.2011 and 12.02.2011. That means the dead body might have been thrown in the forest area on 05.02.2011 and it was detected on 12.02.2011. The evidence on record does not indicate as to what happened between 05.02.2011 and 12.02.2011. More over evidence given by PW.5 does not establish the cause of death, that the post mortem report indicates presence of alcohol in the stomach, and the nature of injuries are as such that the using of katti, MO.4 can be doubted. Even from the evidence of PW.10 it can be stated that the employment of club for assaulting the deceased could be doubted. Therefore it is her argument that the prosecution has not been able to prove its case beyond reasonable doubt. This benefit should go to accused and consequently he must be acquitted of the offences. 6. The learned SPP argues that the evidence of PW.10 cannot be disbelieved at all. If the cross examination of PW.10 is perused, it can be said that she had not been tutored; nothing has been elicited from her in order to draw conclusion that she was subjected to tutoring. On the day when the incident is said to have taken place, the only persons present inside the house were PW.10, the deceased and the accused. Her evidence clearly shows as to how the incident took place. Merely because in the cross examination she has stated that on the next day morning when she enquired her father, she came to know that her mother had gone out, it cannot be considered as a reason for disbelieving her evidence that the dead body was kept under the cot. Probably she believed the answer given by her father and was under the impression that the mother had gone out, but the reality was otherwise. Therefore, it is his argument that the evidence of PW.10 cannot be discarded at all. 7. With reference to seizure of material objects MOs.4 to 9, the learned SPP argued that the evidence of PW.6 cannot be discarded at all. He has clearly given evidence that it was at the instance of the accused that the police were able to seize the material objects, MOs.4 to 9. The evidence of PW.6 shows that he was very much there at the time of recovery. It has been proved. Therefore, in this circumstance, the evidence of PW.6 cannot be discarded. 8. He has clearly given evidence that it was at the instance of the accused that the police were able to seize the material objects, MOs.4 to 9. The evidence of PW.6 shows that he was very much there at the time of recovery. It has been proved. Therefore, in this circumstance, the evidence of PW.6 cannot be discarded. 8. So far as the medical evidence is concerned, it is his argument that since the dead body was detected nearly 6 to 7 days after the incident and because it was in a decomposing state, the doctor could not give opinion with regard to cause of death. This cannot be a deciding factor to doubt the prosecution case. He lastly argued that if the entire judgment of the trial Court is seen, it appears that it has very meticulously appreciated the evidence. There are no infirmities in the impugned judgment and therefore the appeal should be dismissed. 9. Before giving our reasons, we find it necessary to give a cursory glance at the evidence of the witnesses. 10. PW.1 Gangadhara is the neighbor of the accused and the deceased. His examination in chief shows that he spotted the dead body of the deceased when he and his wife i.e., PW.8 had been to the land of one Bhaskar. They went near the dead body and came to know that it was that of a woman by name Meeanakshi, the wife of the accused. The evidence of PW.1 to this effect is corroborated by the evidence of PW.8 Padmavathi. PW.1 also gave first information to police. 11. PW.2 Sadananda Bangera is a resident of Katakeri village and he was known to the accused and the deceased. He too went to the spot after coming to know that dead body of the deceased was found in the forest area. He was examined to speak to the fact that PW.10 narrated before him the incident of assault on the deceased by the accused, but this is not established by him; to this extent he turned hostile. He is also an attestor to inquest drawn as per EX.P2. 12. PW.3 K Raghavan is also a resident of Katakeri village. He also went near the spot after coming to know that dead body of the deceased was found in the forest area. He is also an attestor to inquest drawn as per EX.P2. 12. PW.3 K Raghavan is also a resident of Katakeri village. He also went near the spot after coming to know that dead body of the deceased was found in the forest area. He has given evidence that the accused and the deceased used to quarrel very often. He is also the witness to EX.P2. 13. PW.4 B D Sunil is another resident of the same village and he is an attester to the seizure mahazar drawn as per EX.P.4. 14. PW.5 Dr. Shylaja was the doctor who conducted the post mortem examination on 13.02.2011. EX.P5 is the post mortem report. Though she has spoken about conducting post mortem examination, she has not given the cause of death. Her evidence is that it was not ascertainable; however, she has stated that the death might have taken place three to four days before the date of post mortem examination. 15. PW.6 Malinga Naik is an attester to EX.P6 under which MOs. 4 to 9 were recovered by the police. Though in the examination in chief he did not support the prosecution case to some extent, when cross examined by the Public Prosecutor, he supported the prosecution case and thereby appears to have established the prosecution case with regard to seizure of all the MOs. 4 to 9. 16. PW.7 Revathi is a witness examined to establish one circumstance that when she enquired PW.10, she came to know from her that her mother was lying under the cot and was not responding. But she has not established this. She turned hostile to some extent. 17. PW.9 Rajesh is a police constable who carried the First Information Report to the Court. 18. PW.10 Shashikala is the daughter of the deceased and the accused. She has stated that she saw her father assaulting her mother with iron and putting her under the cot and later on throwing her body near the fence of that land. This evidence of PW.10 will be discussed later. 19. PW.11 Krishnappa Naik is the brother of the accused. He has turned hostile. 20. PW.12 S N Srikanth was the PSI of Madikeri Rural Police Station. He registered the First Information Report and conducted part of the investigation. 21. PW.13 Ramesh Naik, the brother of the accused has turned hostile. 22. This evidence of PW.10 will be discussed later. 19. PW.11 Krishnappa Naik is the brother of the accused. He has turned hostile. 20. PW.12 S N Srikanth was the PSI of Madikeri Rural Police Station. He registered the First Information Report and conducted part of the investigation. 21. PW.13 Ramesh Naik, the brother of the accused has turned hostile. 22. PW.14 Sathish Kumar is the CPI who conducted the investigation and filed charge sheet. 23. PW.15 Yogeshkumar speaks about the apprehending of accused on 13.02.2011. 24. Therefore it is clear that main witness is PW.10. On the day when she was examined in the Court, her age was 12 years. Before examining her, the trial Court put preliminary questions to her and only after ascertaining that she was a competent witness, she was permitted to be examined. In the examination in chief she has stated that her mother Meenakshi died about five years ago. Her father was addicted to liquor and that he used to beat her mother also. She has stated further that the day previous to the date of incident, her father picked up quarrel with her mother and assaulted her with iron, that her mother was in the habit of going out of the house and whenever she used to go out, her father used to bring her back. In the afternoon hours of one day, her father assaulted her mother, kept her body under a cot and then threw her mother’s body near a fence in the forest area. One day afternoon, she along with her brother went near the fence and saw the dead body. She has also stated that her father assaulted her mother not only with iron, but also with a piece of firewood. She identified MO.4 and also MO.5. The Public Prosecutor treated her hostile and cross examined her. In the cross examination she admitted all the suggestions given to her and thereby established the prosecution case. The learned counsel for the accused also cross examined her. If the entire cross examination is seen, we find that nothing worth to disbelieve her is elicited from her. Though PW.10 has given one answer that she had developed anger against her father as he used to scold her mother, this answer cannot be taken to be a good reason for disbelieving her testimony. If the entire cross examination is seen, we find that nothing worth to disbelieve her is elicited from her. Though PW.10 has given one answer that she had developed anger against her father as he used to scold her mother, this answer cannot be taken to be a good reason for disbelieving her testimony. It is quite natural that any daughter would get anger when mother is abused or scolded. The learned counsel has argued that she is a tutored witness. We do not think that there is anything to say that she was subjected to tutoring before she entered the witness box. From the note made by the trial Court in the beginning of her deposition, it is seen that she came to court hall directly from her hostel. PW.10 is the daughter of the deceased and also the accused. There is no material on record to come to conclusion that she had a particular reason for deposing against her father. It is not the case of the defence that she was not present in the house on the day when the incident took place. There may be some discrepancies in the evidence of PW.10, but they are trivial. PW.10 was aged about 12 years at the time when she went to Court for deposing. For these reasons we find no reasons to discard her testimony. 25. Then assumes the importance of evidence given by PW.6. His evidence discloses that on 13.2.2011 at about 9 a.m. he along with CW.7 went to Madikeri Rural Police Station. At that time the accused was also present there. The accused took the police to his house. Going inside the house, he brought one chopper, a club and a kerosene lamp and then gave them to police. Since he did not support the prosecution case in examination in chief to some extent, he was treated hostile and cross examined. At that time, he admitted the suggestions that the accused also handed over a gunny bag in which he carried the dead body and also his clothes namely, a tea shirt and pants which are marked as MO.8 and MO.9. On perusing the cross examination of this witness, we find nothing worth mentioning here. He is not discredited. Therefore, seizure of MOs.4 to 9 at the instance of accused gets established. 26. On perusing the cross examination of this witness, we find nothing worth mentioning here. He is not discredited. Therefore, seizure of MOs.4 to 9 at the instance of accused gets established. 26. The learned counsel for the appellant raised one point that the evidence of PW.5 does not show the exact cause of death and therefore the prosecution case is not free from doubt. We do not find this point to be of importance because on the day when the dead body was detected, it was in decomposing state and this could be the reason for the doctor being unable to give an opinion regarding cause of death. Added to this the nature of injuries noticed by PW.5 shows that the deceased might have been beaten severely. More over, when the evidence of PW.10, the eye witness is worth believable, failure of PW.5 to give an opinion does not affect the prosecution case. The cause of death recedes to background. She also argued that if really the dead body was thrown in the forest two days after the incident, there is no evidence indicating as to what happened after 05.02.2011. We do not find that this is a point to be considered here. PW.5 has stated that the death might have taken place three to four days prior to post mortem examination. Even the date of incident, 03.02.2011 as given by the prosecution appears to be not the exact date of the incident. Though in the charge sheet the date is mentioned so, it is not impossible to opine that the death might not have taken place exactly on 03.02.2011. 27. We are of the opinion that in a circumstance like this, if evidence as regards incident is worthy of acceptance, the point raised by counsel for appellant may not be given much of importance. There is also consistent evidence which shows that all the evidence with regard to crime was sought to be destroyed by the accused. Therefore, we arrive at a conclusion that the reasons assigned by the trial Court are well founded. Evidence is properly appreciated. We do not find good reason to take a view different from the view expressed by the trial Court. Therefore, we arrive at a conclusion that the reasons assigned by the trial Court are well founded. Evidence is properly appreciated. We do not find good reason to take a view different from the view expressed by the trial Court. Thus we come to conclusion that this appeal is devoid of merits, and consequently it is dismissed confirming the judgment and sentence dated 26.09.2013 passed by the trial Court in Sessions Case No.83/2011 on the file of Sessions Court, Kodagu at Madikeri.