JUDGMENT : K.N. PHANEENDRA, J. 1. The present appeal is preferred against the judgment of conviction dated 24.09.2013 and order of sentence dated 11.10.2013 passed by the I Addl. Sessions Judge at Shivamogga in SC No. 195/2012 convicting the appellant/accused for the offence punishable under Section 302 and also under Section 309 of IPC sentencing him to undergo RI for life and to pay fine of Rs. 5,000/- with default sentence for the offence punishable under Section 302 of IPC and also sentencing him to pay fine of Rs. 2,000/- for the offence punishable under Section 309 of IPC with default sentence. 2. Before adverting to the grounds urged before this court by the learned counsel for the appellant, we would like to have the brief factual matrix of this case. 3. PW-1 Subhan has lodged a report, which was registered by the respondent-police in Crime No. 55/2012 for the offences punishable under Sections 302 and 309 of IPC on 15.07.2012. He has alleged in the report that, the deceased Baby is no other than the sister of this person. She was given in marriage to the accused about 25 years ago. It was a love marriage and particularly an inter caste marriage. After the marriage they started living together and they were happy with each other for some time and thereafter, the accused wanted to take her to Bengaluru. But the deceased did not wish to go along with him to Bengaluru. Therefore, about five years prior to the incident, the accused had alone went to Bengaluru and he was residing there. Thereafter, about two years prior to the incident, he came back and started living with the deceased. Both the children born to this couple were grown up and they were actually not residing with the deceased and the accused. It is alleged that the accused and deceased when joined together later, they were not happy with each other. The accused started suspecting the loyalty and fidelity of the deceased and often there were quarrels between each other. In this background, it is alleged that on 15.07.2012, this complainant came to know about the death of Baby through his relatives Mehaboobi and Reshma, who have also informed him that, the accused had committed murder of his wife by throttling her neck and thereafter, he also attempted to commit suicide by jumping into a well nearby. In this background, it is alleged that on 15.07.2012, this complainant came to know about the death of Baby through his relatives Mehaboobi and Reshma, who have also informed him that, the accused had committed murder of his wife by throttling her neck and thereafter, he also attempted to commit suicide by jumping into a well nearby. After seeing the same, PW-2 Reshma with the help of others lifted him up and saved him and later he was also shifted to the hospital. They also saw the dead body of the deceased in the house, thinking that, she might be alive, she was also shifted to the hospital. Immediately, this witness went to the hospital wherein the deceased and accused were admitted and thereafter to the place where the accused and deceased were living and thereafter visited the place, where actually the incident has taken place, along with Mehaboobi (CW-5) and Reshma (CW-2/PW-2). But they came to know that, the deceased already breathed her last. On these allegations, the police have registered a case and investigated the matter and submitted the charge sheet against the accused for the above said offences. On the next day of the alleged incident, i.e. on 16.07.2012, the accused was arrested and since then it appears he has been in Judicial custody. 4. The trial Court after securing the presence of the accused, proceeded to frame charges for the above said offences and as he pleaded not guilty, the accused was put on the trial. 5. The prosecution in order to bring home the guilt of the accused, examined as many as 17 witnesses viz. PWs. 1 to 17 and got marked the documents as per Exs.P1 to P23 and material objects as per MO Nos. 1 to 6. The accused was also examined under Section 313 of Cr.P.C. and an opportunity was provided to him to lead his evidence. But, he did not choose to do so. After hearing both the parties, the trial Court has come to the conclusion that, the prosecution has proved the case beyond all reasonable doubt and convicted the accused and sentenced him for the offences, as noted above. 6. But, he did not choose to do so. After hearing both the parties, the trial Court has come to the conclusion that, the prosecution has proved the case beyond all reasonable doubt and convicted the accused and sentenced him for the offences, as noted above. 6. Learned counsel for the appellant/accused has strenuously contended before this court that, there are no eye-witnesses to the incident and only two strong circumstances were relied upon by the prosecution and the prosecution has not proved them beyond reasonable doubt. He contended before the court that, the accused and deceased were residing together. But nobody has stated, as to on the particular date of incident what exactly happened between the wife and the husband. The so-called extra judicial confession as deposed by PW-2 is also not reliable. PW-2 herself has admitted in her cross-examination that, the accused was not disclosing anything about his family matters at all times. Therefore, said evidence also cannot be believed. The accused was also arrested and it is stated that, there has been recovery at the instance of the accused and in the prosecution evidence itself, it is clear that the accused shirt was torn. Therefore, the learned counsel alternatively submitted before the court that, even accepting the entire case of the prosecution, it clearly discloses that there was quarrel between the husband and wife on that day and in that quarrel, the deceased had torn the shirt of the accused. Perhaps, due to enragement and in a heat of passion, he has committed the said act and under such circumstances, the offence may not fall under Section 302 of IPC, but it may fall under Section 304 part I of IPC, which is not compulsorily punishable with imprisonment for life. Therefore, considering the languity of the imprisonment of the accused already undergone, a lenient view may be taken and the sentence may be reduced to the period already undergone by him. Therefore, he contends that the accused may be acquitted or the sentence may reduced accordingly. 7. Learned SPP has strenuously contended before this court that, through out the cross-examination of the witnesses, there is absolutely no denial that the accused and deceased living together as on the date of incident and some of the witnesses have also stated that, there was quarrel between the husband and wife on that particular day. 7. Learned SPP has strenuously contended before this court that, through out the cross-examination of the witnesses, there is absolutely no denial that the accused and deceased living together as on the date of incident and some of the witnesses have also stated that, there was quarrel between the husband and wife on that particular day. The conduct of the accused that immediately after the incident, he went to PW-2 and disclosed that he has committed the murder of his wife by throttling her neck, which also tallies with the opinion expressed by the Doctor, who has conducted autopsy on the dead body of the deceased Baby. The conduct of the accused that he fell into a well situated near by immediately after this incident and his conduct discloses that he might have repented for having committed the murder of the deceased and as such, he wanted to commit suicide. Therefore, the office under Section 309 of IPC is also attracted. The last living of the accused with the deceased has been established by the prosecution and on the other hand, immediately after the incident, Extra-judicial Confession made by the accused before PW-2 is also established beyond reasonable doubt. 8. The learned counsel further argued that PW-2 Reshma is no other than a close relative of both the accused and the deceased, therefore, there is no reason to disbelieve her evidence. In the above said circumstances, no other materials are available on record to come to a conclusion that, as to what exactly the quarrel that was taken place between the deceased and the accused and there is no material to draw an inference that only due to heat of passion the accused has committed murder of his wife. Therefore, considering all the above said factual and legal aspects, the trial Court has rightly come to the conclusion and held conviction against the accused as stated above. Therefore, there is no room for this court to interfere with the impugned judgment of conviction and order of sentence, and hence, he pleaded for dismissal of the appeal. 9. Having heard the above said submission made by the learned counsel for the appellant and the learned SPP, it is just and necessary to have a cursory look at the evidence adduced by the prosecution in order to bring home the guilt of the accused. 10. 9. Having heard the above said submission made by the learned counsel for the appellant and the learned SPP, it is just and necessary to have a cursory look at the evidence adduced by the prosecution in order to bring home the guilt of the accused. 10. First we will have the brief cursory look at the evidence of the witnesses and there after we will consider the relevant evidence on record. 10.1. PW-1 Suban is the brother of the deceased. Of course, he was an hear say witness sofar as the incident is concerned. He received an information from CW-5 Mehaboobi and accordingly narrated the factual aspects about the incident. He lodged the complaint as per Ex.P1. However, he deposes about the previous conduct of the accused and the deceased that, the accused was suspecting the conduct and fidelity of the deceased and there was quarrel often between the wife and husband. He specifically stated that, on the date of the incident also, there was a quarrel between the husband and wife. He went to the Police station and lodged a complaint as per Ex.P1. 10.2. From the above circumstances, what we could observe is that, in the course of cross-examination, there is no denial with regard to the accused and deceased living together in the place where the dead body of the deceased was found and there is no explanation whatsoever in the course of cross-examination that, as to how the incident had happened in the house of the accused. Of course, it is stated that the accused and deceased married after loving each other and as well as it was an inter caste marriage. 10.3. PW-2 Reshma is a star witness to the prosecution. In fact, she has categorically stated that, the deceased was the maternal aunt of this witness and the accused was also a close relative of her in lieu of the marriage between the deceased and accused. She has also stated that, the deceased and accused were living together and their children were not living with them and both of them are living at Hospete. She has also deposed that there were quarrels taking place between the deceased and accused with regard to bringing back their daughter from Hospete to native place. She has also stated that, the deceased and accused were living together and their children were not living with them and both of them are living at Hospete. She has also deposed that there were quarrels taking place between the deceased and accused with regard to bringing back their daughter from Hospete to native place. It is further stated that, the accused was always suspecting the fidelity of Baby, as she was receiving some phone calls from some body. In this context, it appears there were quarrels between the husband and wife. 10.4. In this context, it is deposed by PW-2 Reshma that the deceased Baby died on 15.07.2012. in fact, this lady was present in her house which is at a distance of 150 to 300 fts. from the house of the deceased. On that day the accused came to her house and called her separately and told her that there was a quarrel between himself and his wife Baby and he throttled the neck of the his wife Baby and killed her and he also told that she should inform his children about the said incident and he gave their telephone numbers to her. This witness was about to telephone to the children of the accused, by that time, she saw the accused who was sitting on the wall of a well nearby her house, fell into the well and immediately, she rushed to that particular spot where the well is situated and called CW-3 Santhosh and CW-16 Gangadhar for help and all of them lifted him up from the well and rescued and thereafter shifted him to the hospital. Immediately after hearing the accused with regard to the incident, they all went to the house of the accused and saw the body of the Baby and thinking that she might be alive, she was also shifted to the hospital. But, they came to know that, Baby has already lost her breath. In the course of cross-examination, of course in one sentence she has stated that the accused was not disclosing his personal matters to her and she was also not telling him any of her personal matters. It all depends upon the facts and circumstances of each case. May be minor matters have not been disclosed with regard to the family matters to this lady. It all depends upon the facts and circumstances of each case. May be minor matters have not been disclosed with regard to the family matters to this lady. But, such a ghostly incident has taken place and the accused himself has gone to this witness (PW-2 Reshma) thinking that she is the only close relative residing by the side of the house of the accused, therefore he felt it proper to disclose the same to this lady. Except exaggeration of this particular aspect no other material is available as to why this witness should not be believed. It is also narrated in the cross-examination that, on that particular day, at about 3.45 or 4.00 p.m. this witness and another one Gangadhar and Santhosh were also talking each other. The accused called this witness alone and told this aspect alone. Therefore, he might have felt that, such confidential information if he disclose to her she may help him and when it is specifically stated that he gave telephone numbers of his children to PW-2 to inform about the incident to his children, this conduct of the accused also goes to show that he had lot of confidence with PW-2 Reshma. Because of the relationship between PW-2 Reshma and deceased Baby, he must have narrated the above said aspects to her. Therefore, there is no reason for her to explain in the course of cross-examination as to what exactly happened in the house of the deceased on the date of incident and why he has committed such a heinous offence and as to what exactly transpired between them immediately before the death of the deceased Baby. But, it is deposed by her that, he has disclosed the above facts to this witness. In fact, the accused has not taken any defence in the course of cross-examination except the total denial of the statement made by this witness. Therefore, looking to the above said evidence, though we are of the opinion that the extra-judicial confession itself is a weak piece of evidence, but it all depends upon the facts and circumstances of each case to believe or disbelieve the same. The circumstances in this particular case that the accused and the deceased living together and immediately after the incident, the accused rushed to PW-2 and informed the about the incident to her. The circumstances in this particular case that the accused and the deceased living together and immediately after the incident, the accused rushed to PW-2 and informed the about the incident to her. Therefore, the extra-judicial confession projected by the prosecution is strengthened by the surrounding circumstances. 10.5. PW-3 Santhosh S/o Surendra, has in fact reiterated as to what he heard from PW-2 about the incident. Apart from that, he was the person who saw the accused in well, who fell into the well after disclosing the incident to PW-2. In fact PW-2 with the help of others rescued the accused and thereafter it appears the accused was shifted to the hospital. Though he was treated hostile for some portion of the evidence, but thereafter he was suggested in the cross-examination that, immediately after the accused disclosing the factual aspects to PW-2 in fact naturally she would have disclosed the same to this Santhosh whatever disclosed by the accused before her. Therefore, the sequence of events regarding the disclosure of the above said fact by PW-2 to this PW-3 immediately after the same was disclosed to her, in our opinion, it is also admissible under Section 6 of the Indian Evidence Act, as it is the continuation of the same transaction. Even in the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness. There is no denial sofar as this aspect of PW-2 disclosing the said fact before this witness about the confession made by the accused. 10.6. PW-4 Santhosh, son of Devendrappa, is a circumstantial witness, who shifted the deceased to the hospital. Of course, there is no incriminating material available in the evidence of this witness. PW-5 Ravichandra is also another witness, who along with PW-4 shifted the accused to the hospital. He is also a formal witness and there is no incriminating material is available in his evidence. PW-6 Ismail is a panchwitness to Ex.P3-Spot Mahazar drawn by the police near the well into which the accused said to have been jumped and from where the accused was rescued and shifted to hospital by other witnesses. Ex.P4 and Ex.P5 are the photographs taken at the spot. Ex.P9 is the inquest proceedings for which this witness has attested his signature. Ex.P7 and Ex.P8 are the photographs of the dead body. Ex.P4 and Ex.P5 are the photographs taken at the spot. Ex.P9 is the inquest proceedings for which this witness has attested his signature. Ex.P7 and Ex.P8 are the photographs of the dead body. There is no much denial with regard to the death of the deceased Baby in the house of the accused. Therefore, drawing up of the inquest proceedings and Mahazar at the spot will have no serious significance in this case. PW-7 is the panchwitness to Ex.P10. One shirt was recovered at the instance of the accused and the same was marked at MO.4. 10.7. Learned counsel for the appellant as we have already referred to, submitted that the shirt was torn when it was produced by the accused and he told before the witness that he had a quarrel with his wife and in the process of quarrel his wife tare the shirt. Here also nothing has been elicited in the course of cross-examination as to what exactly transpired between the accused and the deceased and as to why there was a quarrel and what was the exact reason for taking up of quarrel. In examination in chief except stating that the accused had quarrelled with the deceased and at that time she tare the shirt. Nothing has been elicited, in the cross-examination in this regard, but a suggestion was made that, due to quarrel, between the deceased and accused, the accused being enraged, reached to such an extent that, he lost his mental balance and therefore, in a heat of passion, he committed the said offence. In the absence of elucidation of such facts anywhere in the evidence of the prosecution witnesses, or availability of such circumstance it is very difficult for us to imagine something which is not supported by any material, to draw an inference that, the accused committed such offence in a heat of passion, so that the offence would fall under any of the exception to Section 300 of IPC. Therefore, we do not accept the argument of the learned counsel, sofar as this aspect is concerned. 10.8. PW-8-Gangadhar is another panchwitness for the inquest proceedings (Ex.P9) and also the seizure of photographs Exs.7 & 8. He also stated with reference to the Extra- judicial Confession made by the accused before PW-2 and the accused jumping into the well near by and tried to commit the suicide. 10.8. PW-8-Gangadhar is another panchwitness for the inquest proceedings (Ex.P9) and also the seizure of photographs Exs.7 & 8. He also stated with reference to the Extra- judicial Confession made by the accused before PW-2 and the accused jumping into the well near by and tried to commit the suicide. PW-9 Smt. Preeda is the daughter of the accused. She was not at all present when the incident happened. She has also not implicated her father to the crime and she wanted to support her father. She has stated that, the accused and deceased were living happily and there were no quarrels between them. But, if there were no quarrels between the accused and deceased, it is again a question to the court that, what actually happened on the date of incident between the husband and wife. In the absence of any material, the court has to presume itself that even though there was no quarrel and there was no animosity existing between the accused and deceased, what made him to kill his wife. Therefore, it has to be explained only by the accused and his explanation would play a dominant role sofar as this case concerned, when specifically it is proved to the satisfaction of the court that the incident has happened in the house of the accused only, when only he and his wife were in the house. 10.9. PW-10 Nagaratna is the Secretary of Mastikatte Panchayath, Hosanagar. She has issued the Demand Register Extract, which are marked as Ex.P11 and Ex.P11(a). As this aspect is concerned, there is no cross-examination of this witness in this regard that the said house did not belong to the accused at all. 10.10. PW-11 Dr. Vrunda Bhat has examined the materials sent to her by the Investigating Officer as per Ex.P3. But she stated that, she could not give any opinion with regard to the fracture of Hyoid Bone. Learned counsel relying upon the evidence of this witness, wants to argue that there was no fracture of Hyoid Bone. But the opinion of this witness shows that in almost all the cases, there would be fracture of Hyoid Bone. Coupled with the evidence of PW-12 Dr. Tejasvi and PW-13 Dr. Learned counsel relying upon the evidence of this witness, wants to argue that there was no fracture of Hyoid Bone. But the opinion of this witness shows that in almost all the cases, there would be fracture of Hyoid Bone. Coupled with the evidence of PW-12 Dr. Tejasvi and PW-13 Dr. Gururaj, who conducted Post Mortem examination on the dead body of the deceased, who gave Post Mortem report as per Ex.P15, has explained that the death was due asphyxia as a result of throttling. The Doctor-PW-11 has given an opinion that in all the cases of throttling, there would be fracture of Hyoid Bone. Therefore, we are of the opinion that the court has to consider, what is the real cause for death. Here it is very much clear from the surrounding circumstances and the evidence of the Doctor coupled with contents of Ex.P15 (PM Report) the death was due to throttling. Whenever throttling is established, the breakage of Hyoid Bone always depends upon the pressure factor on the neck. If the pressure was only sufficient for blocking of air passage from mouth and as well as nose, then there may not be any breakage of the Hyoid Bone. If the pressure is more, it not only blocks the air passage but, it may also in certain circumstances, cause fracture of Hyoid Bone. Therefore, in view of the above said opinion of both the Doctors, we are of the opinion that the mere absence of fracture of Hyoid Bone, the court cannot come to the conclusion that the death was not a homicidal death. PW-12 Dr. Tejasvi, who actually treated the accused and gave intimation to the Police as per Ex.P16. Ex.P17 is the wound certificate showing that the accused has sustained some small injuries and the said injuries according to the witness-PW-2 and others, those injuries were caused when the accused had jumped into the well. 11. The evidence of the prosecution according to PW-14 is that, he seized the nighty and petticoat of the deceased as per MO Nos. 5 & 6 under Ex.P19, which is also relevant to be considered by this court. PW-15 Eeresha is CPC 959, who carried the bottle contained hyoid bone and handed over the same to the doctor at SIMS Shimoga for his opinion and submitted the report to the Inspector, which we have already discussed above. 5 & 6 under Ex.P19, which is also relevant to be considered by this court. PW-15 Eeresha is CPC 959, who carried the bottle contained hyoid bone and handed over the same to the doctor at SIMS Shimoga for his opinion and submitted the report to the Inspector, which we have already discussed above. PW-16- Mohan is the Head Constable, who registered a crime on the basis of Ex.P1 and dispatched the FIR to the jurisdictional Magistrate. PW-17 Ganapathi Gudaji, CPI, is the person, who recorded the statement of the witnesses and on completion of the investigation, he laid the charge sheet against the accused. 12. On looking to the entire evidence on record, we are of the opinion, that the prosecution has established beyond reasonable doubt that, the accused and deceased were living together at the relevant point of time in their house. Though there is some evidence to show that, there was quarrel between the accused and the deceased immediately prior to the incident, it is the duty of the accused himself to prove by preponderance of probability to the satisfaction of the court when the husband and wife were alone in the house, as to what transpired between himself and his wife and what exactly happened on that particular day. Though the non-explanation of the accused alone will not fasten the liability on the accused, but it should also be added as an additional link to the circumstances, which have been established by the prosecution. Here there are two strong links established by the prosecution that the accused and deceased were living together and they were found together on the date, time and place of the incident, and soon after the incident, the accused rushed to PW-2 Reshma, who was very close relative of the deceased and the accused, had disclosed that, he has committed the murder of the deceased by throttling her neck and thereafter he also jumped into a well situated nearby his house so as to commit suicide. The conduct of the accused also clearly goes to show that, he must have disclosed the above fact to PW-2 and also asked her to intimate the same to his children and thereafter he must have repented himself by thinking that, he loved his wife so much and he suspected her conduct and fidelity, and because of that he committed murder of his wife, and being frustrated by his acts he must have thought that there is no purpose for him to live in society, therefore he had made an attempt to commit suicide. 13. Looking to the above factual aspects, there is no ground for this court to draw any other inference to bring the case either under the exception of Section 300 or 304-II of IPC and it is a clear cut case of Section 302 of IPC. Therefore, we do not find any strong reason to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court. Accordingly, we pass the following order: ORDER The appeal is dismissed.