JUDGMENT : 1. This appeal is preferred by the appellant-accused being aggrieved by the judgment and order of conviction dated 8.4.2011 passed by the IV Addl. District and Sessions Judge, Mysore in S.C.No.24/2009. By the said judgment, the learned Sessions Judge convicted the appellant-accused for the offences punishable under Sections 498A and 302 of IPC. 2. Brief facts of the prosecution case as per the complaint averments Ex.P1, are that, one Nataraj - P.W.1 who is the complainant in this case, is the brother of the deceased. He has stated that about 14 years back his elder sister Rajalakshmi @ Geetha was given in marriage to the appellant-accused. The couple were having one male and one female child. His sister and brother-in-law were residing in the house bearing No.4246, 5th Cross, Gandhinagar. The appellant herein was having illicit connection with one woman by name Mahadevamma. Because of this reason, there used to be quarrel between the appellant and the deceased Rajalakshmi. In this regard, a complaint was also filed before the women police station and also it was informed to the Sahayavani Kendra. In spite of this, appellant herein continued his relationship and was quarrelling with the deceased. On 17.9.2008 at 2.00 p.m. the appellant came to the house, picked up a quarrel with the deceased and dragged her in the house and caused bleeding injury on her hand. When she screamed, the neighbours neglected thinking that it is a usual affair and kept mum. Thereafter, the appellant-accused committed murder of the deceased by asphyxia at about 4.30 p.m. and was running out from the house and the children of the appellant and deceased namely, Priya and Purushotham have seen him and they were also screaming stating that their father had committed the murder of their mother. Thereafter, the neighbours came to the house of the deceased and on seeing the deceased lying informed the complainant. Immediately, the complainant rushed to the said house thinking that she may be alive, she was immediately shifted to the Mission Hospital. But the doctor after examining her declared her dead. Hence, complainant requested to take legal action against the appellant herein. On the basis of said complaint, initially, FIR came to be registered for the offence under Section 302 of IPC in Crime No.220/2008. But the doctor after examining her declared her dead. Hence, complainant requested to take legal action against the appellant herein. On the basis of said complaint, initially, FIR came to be registered for the offence under Section 302 of IPC in Crime No.220/2008. After investigation, the Investigating Officer filed the charge sheet for the offences punishable under Sections 498A and 302 of IPC. 3. The learned Sessions Judge took cognizance of the offences and on hearing both sides, framed the charges for the above said offences. When the charge was read over and explained to the appellant-accused, he pleaded not guilty and claimed to be tried and accordingly, the matter was posted for trial. The prosecution in support of its case examined in all 18 witnesses and got marked Exs.P1 to P21 with sub-markings and two material objects M.Os.1 and 2 were also got marked. After hearing the arguments on both sides, the learned Sessions Judge held the appellant-accused guilty of both the offences and convicted and sentenced him with life imprisonment and fine of Rs.10,000/- for the offence punishable under Section 302 of IPC and three years imprisonment and fine of Rs.5,000/- for the offence punishable under Section 498A of IPC. 4. Being aggrieved by the judgment and order of conviction, so also, challenging the legality and correctness of the said judgment, appellant is before this Court in the above appeal on the grounds as mentioned in ground Nos.7 to 16 of the appeal memorandum. 5. We have heard the arguments of the learned counsel appearing for the appellant-accused, so also, the arguments of the learned Addl. SPP for the respondent-State. 6. Learned counsel appearing for the appellant-accused during the course of his arguments submitted that P.Ws.2, 3, 5, 6, 13, 15, 16 and 17 were not at all cross-examined by the defence. It is his submission that there are no eyewitnesses to the incident. Case of the prosecution totally rests on circumstantial evidence and even the circumstances will not bring home the guilt of the appellant-accused. The complainant who is the own brother of the deceased has not at all mentioned in the complaint that the accused person had caused the death of the deceased by using two water heaters and he has only stated that death is because of smothering. The complainant who is the own brother of the deceased has not at all mentioned in the complaint that the accused person had caused the death of the deceased by using two water heaters and he has only stated that death is because of smothering. The first information given before the police itself is very clear that the case of the prosecution is doubtful and even during the trial the case was not satisfactorily established by the prosecution. Learned counsel taking us to the entire materials like paper book, original file, referring to the exhibits and deposition of the witnesses submitted that though the children of the appellant and deceased are said to be eyewitnesses to the incident, there is no consistency in their evidence, since the material on record would show that when the children came home, accused was already running out of the house. Therefore, the children witnessing the incident that appellant herein caused the death of the deceased by using water heaters does not arise at all. He has submitted that these aspects were not properly appreciated and considered by the learned trial Judge; the learned trial Judge has not even given proper opportunity for cross-examination of the prosecution witnesses. Therefore, judgment and order of conviction passed by the Court below is not sustainable in law. Apart from that, alternatively, the learned counsel has also submitted that matter may be remanded back to the trial Court giving one more opportunity to the appellant-accused to cross-examine the said witnesses and then to proceed in accordance with law. 7. Per-contra, Sri.Vijayakumar Majage, learned Additional State Public Prosecutor during the course of his arguments, so far as the witnesses not being cross-examined are concerned, he drew our attention to the paper book and submitted that sufficient opportunity had been given to the defence to cross-examine the prosecution witnesses and in spite of that, it has not been made use of. Hence, question of remanding the matter to the trial Court on that ground would not arise. Hence, question of remanding the matter to the trial Court on that ground would not arise. It is also his submission that in the evidence, P.W.4-the daughter of the deceased has consistently stated about the acts of the appellant-accused herein that he used to quarrel with her mother and even he was having illicit connection with one Mahadevamma and in that connection he used to pick up quarrel with the deceased and was abusing her in filthy language and assaulting her and was also giving physical and mental torture to her. He has also submitted that said Mahadevamma is also examined and her evidence would also support the prosecution case. Regarding the cause of death, learned Addl. SPP has submitted that under the inquest mahazar conducted in the house of the appellant, two water heaters were seized in the presence of panch witnesses and they were marked as M.Os.1 and 2. They were also sent for FSL examination and report. All these materials also support the case of the prosecution. Even the neighbours of the appellant and deceased were also examined as P.Ws.15 and 16, who have deposed about the ill-treatment and harassment meted out to the deceased by the appellant. Hence, he has submitted that trial Court has taken all these aspects into consideration and properly appreciated the oral and documentary evidence and has rightly arrived at a conclusion holding that appellant-accused is guilty of the offences alleged. He has submitted that P.W.15 is the witness who has been examined with regard to the document Ex.P9, the bond executed by the appellant-accused admitting the ill-treatment given to the deceased on earlier occasion and undertaking not to commit the same in future. Hence, he submitted that no illegality has been committed by the Court below in convicting the accused. Hence he has submitted, there is no merit in the appeal and has prayed for same being dismissed. 8. We have perused the grounds urged in the appeal memorandum, judgment and order of conviction passed by the trial Court, oral evidence of the prosecution witnesses, so also, the documents at Exs.P1 to P21 and also Ex.D1 produced on behalf of the defence and we have also carefully considered the submissions of the learned counsel for the appellant and the learned Additional State Public Prosecutor for the respondent. 9. 9. As per the complaint averments and the evidence of P.W.1, it is no doubt true that P.W.1 is not the eyewitness to the incident. After securing or obtaining information from the neighbours and children of the deceased, P.W.1 lodged the complaint as per Ex.P1. He has specifically stated or alleged in his complaint that appellant herein was having illicit relationship with one Smt. Mahadevamma and in that connection, there used to be quarrel between appellant and deceased in the house. As per the prosecution case the alleged incident took place on 17.9.2008 between 2.00 to 4.30 p.m. The complainant has stated that neighbours as well as the children of the deceased namely, Priya and Purushothama told the complainant that after committing the murder of the deceased, appellant herein ran away from the house. Accordingly, he has mentioned the same in the complaint Ex.P1. 10. We have perused the evidence of P.W.4, the daughter of the deceased. She has consistently stated in her evidence that on 17.9.2008 herself and her brother Purushothama went to school at 8.30 a.m. and her mother was in the house and she came to the school at 12.10 noon to give meals to both of them, at that time her mother was alright. The school was closed at 4.00 p.m. and P.W.4 came to the house along with her brother. When they came to the house, the door of the house was closed, but was not latched. They opened the door, went inside and saw that their mother was lying on the floor and their father who was standing by the side of her mother was holding water heater in his hands. After seeing them, he threw the water heater there itself and ran away. They made an attempt to wake up her mother, but she did not respond and then they started screaming that their father committed the murder of their mother. At that time, the neighbours tried to catch hold their father, but he escaped. There were injuries to her mother on the wrist portion and also on the palm. Her mother was wearing saree and a blouse. She has further deposed at that time, neighbours as well as the complainant came to the said place and their grandmother also came to the place and they all enquired with her and she narrated the incident as stated above. Her mother was wearing saree and a blouse. She has further deposed at that time, neighbours as well as the complainant came to the said place and their grandmother also came to the place and they all enquired with her and she narrated the incident as stated above. They immediately shifted her mother to the hospital, but she was brought back as dead. The evidence of this witness was not shaken even during the course of cross-examination. Suggestions were made to this witness stating that she has not at all seen her father standing near her mother holding water heater in his hand and after seeing them, he threw the water heater in the house and ran away, but these suggestions were denied by her. On careful examination of the entire cross-examination, no material is brought on record to disbelieve the version of P.W.4, the daughter of the deceased. 11. Purushothama, son of the deceased is examined as P.W.5. It is no doubt true, in his evidence he has stated that they came to the house at about 4.00 p.m. and saw that his mother lying on the floor in the hall and his father was giving electric shock through the water heater to his mother and after seeing them, his father threw the water heater there itself and ran away. Learned counsel for the appellant-accused submitted that his evidence is not consistent with the evidence of P.W.4, the daughter, because P.W.4 has deposed that when they came to the house they saw the accused person holding water heater in his hand and was standing by the side of their mother. We do agree that to said extent there is discrepancy in the evidence of P.Ws.4 and 5. But looking to the evidence of both P.Ws.4 and 5, it is clear that their father was present in the house when they came back from school and their mother was lying on the floor and their father was holding water heater in his hand and after seeing them, he ran away throwing the water heater in the house itself. P.W.5 is not cross-examined. However, application was filed under Section 311 of the Cr.P.C. and same was allowed and witness was called and he was present before the Court. In spite of that, defence counsel sought for time to cross-examine the said witness. P.W.5 is not cross-examined. However, application was filed under Section 311 of the Cr.P.C. and same was allowed and witness was called and he was present before the Court. In spite of that, defence counsel sought for time to cross-examine the said witness. However, on the ground that no sufficient cause is made out, his prayer was rejected by the Court. Therefore, whatever P.W.5 has deposed in his evidence, had remained unchallenged. 12. During the course of inquest mahazar proceedings, two water heaters were seized by the police in the presence of panch witnesses and sent for FSL examination. The report of the FSL is produced and marked as per Ex.P20. We have perused the said document. In the opinion column it is mentioned as under: “1. The ‘‘ALMONARD” company immersion water heating coil marked as article number 1 is found to be intact and also in working condition. 2. The “JOHNSON” company immersion water heating coil marked as article number 2 is damaged near the connecting points of the wires and melted due to usage and short circuit and is not in working condition.” The seizure aspect of the two water heaters is established by the prosecution with the help of cogent and satisfactory material and they were also referred to the FSL. The FSL finding is also in favour of the prosecution. 13. We have also perused the post mortem report. The Doctor who conducted autopsy over the dead body has given his report as per Ex.P11 wherein it is specified that there are five external injuries over the dead-body of the deceased, which are mentioned in detail at point Nos.1 to 5. In the final opinion for cause of death he has opined that, “On perusal of post mortem findings H.P.E. report, I am of the opinion that “Death is due to electrocution”. Said Doctor has been examined as P.W.3. In his evidence he has deposed: ‘Injury Nos.1 to 3 could cause electrocution and cause death of a person and injury Nos.4 and 5 are exit wounds. (Now I see immersion coils shown by police. They are marked at M.O.1 and 2)’. He has not been cross-examined by the defence and time prayed for cross-examination came to be rejected by the Court. 14. (Now I see immersion coils shown by police. They are marked at M.O.1 and 2)’. He has not been cross-examined by the defence and time prayed for cross-examination came to be rejected by the Court. 14. So far as the motive for the commission of the offence is that appellant-accused was having illicit relationship with one lady by name Smt. Mahadevamma and because of that reason he used to pick up quarrel with the deceased quite often and ultimately he caused the death of the deceased. Prosecution has recorded the statement of said Smt. Mahadevamma during investigation and she has also been examined before the Court as P.W.13. We have perused the oral evidence of P.W.13. She has stated that she knows the accused. The accused person is the son of her uncle. At that relevant point of time, she was residing in a rented house at Gandhinagar belonging to one Sri.Mahadevappa. Her husband expired about 20 years back. The accused was working in the KEB office. She does not know about the ailment accused was suffering from. She has stated that accused used to come to her house. She also used to go to the house of accused rarely. However, she has denied that she was having illicit relationship with the accused person and because of said illicit relationship, accused person was picking up quarrel with the deceased. The evidence of P.W.13 Mahadevamma also shows that the accused person often used to go to her house and even she also used to come to the house of the accused person. 15. It is the contention of the learned counsel for the appellant-accused that it is not the case of murder, but it is a suicide committed by the deceased herself. However, the defence has not been able to establish that it was a suicidal death. When the case rests on the circumstantial evidence, the Court has to see the circumstances involved in the case and whether those circumstances are sufficient enough to arrive to at conclusion that appellant-accused has committed the murder of the deceased. It is opposite to refer to the decision of the Hon’ble Apex Court reported in (2007)3 Supreme Court Cases (Cri) 101 in the case of Manjunath Chennabasapa Madalli Vs. State of Karnataka wherein the Hon’ble Apex Court has observed that, conditions precedent before conviction could be based on circumstantial evidence, must be fully established. It is opposite to refer to the decision of the Hon’ble Apex Court reported in (2007)3 Supreme Court Cases (Cri) 101 in the case of Manjunath Chennabasapa Madalli Vs. State of Karnataka wherein the Hon’ble Apex Court has observed that, conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 16. We have examined the materials placed on record and also the circumstances involved in this case carefully in the light of aforesaid judgment. The circumstances involved in the case on hand are, (i) Rift between the deceased and the accused prior to her death. In this regard, the document Ex.P.3 written by the deceased herself came to be produced by the complainant. (ii) The document at Ex.P10 the letter issued by the KEB office is produced regarding absence of the accused for the duty on 17.9.2008 i.e., date of incident between 12.00 noon and 4.45 p.m. (iii) Extra-marital affair the appellant-accused had with Smt. Mahadevamma P.W.13 is proved. In her evidence she has admitted that accused used to visit her house often and she was also visiting the house of the accused. She is a widow and had lost her husband about 20 years prior to the incident. (iv) Opinion of the Doctor who conducted autopsy over the dead body of the deceased and the injuries on the body of the deceased, so also, the opinion of the Doctor in this regard. She is a widow and had lost her husband about 20 years prior to the incident. (iv) Opinion of the Doctor who conducted autopsy over the dead body of the deceased and the injuries on the body of the deceased, so also, the opinion of the Doctor in this regard. (v) Evidence of P.W.4 and 5, the children of the deceased that when they came to the house the accused person was holding water heater in his hand and after seeing them, he ran away by throwing the water heater in the house itself. These circumstances have been established by the prosecution by placing both oral and documentary evidence, which clearly shows the involvement of the accused in committing the alleged offences. 17. Further, for the sake of appreciation, if the case of the defence is accepted that it is a case of suicide, then the normal conduct of the appellant as a husband would be that he should have been present in the house throughout and he should have participated in the funeral of the deceased. But the material on record, more particularly, the evidence of children of the deceased namely, daughter Priya and son Purushothama so also, the evidence of other witnesses who are neighbours go to show that immediately after P.Ws.4 and 5 came from school they saw the appellant-accused in the house, and he had run away from the house throwing the water heaters in the house itself. This conduct of the accused would establish that he was having guilty conscious and had appeared only on 26.9.2008 before the Court. Thus, from 17.9.2008 to 26.9.2008 he has not at all visited his house either to attend the funeral or to look after the children P.Ws.4 and 5. Therefore, the conduct of the accused is also most material in the instant case. Apart from that, as per the prosecution material collected during the course of trial, at the relevant point of time i.e., between 2.00 to 4.45 p.m. on 17.9.2008 when the incident has taken place in the house wherein the husband and wife used to stay, the deceased and the accused were only present in the house, and children had been to school. As per Section 106 of the Indian Evidence Act, it is for the accused person to explain the circumstances under which the death had occurred. As per Section 106 of the Indian Evidence Act, it is for the accused person to explain the circumstances under which the death had occurred. The facts leading to the incident is exclusively within the knowledge of the accused person and as such burden is on him to explain the circumstances under which death had taken place. In this connection, we may refer to the judgment of the Hon’ble Apex Court reported in (2006)10 Supreme Court Cases 681 in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra. Paragraph Nos.21 and 22 of the said judgment reads as under: “21. In a case based on circumstantial evidence where no eye- witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal (SCC para 39:AIR para 40); State of Maharashtra v. Suresh (SCC para 27); Ganesh Lal v. State of Rajasthan (SCC para 15) and Gulab Chand v. State of M.P. (SCC para 4)]. 22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Nika Ram v. State of Himachal Pradesh it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.” 18. So far as the submission made by the learned counsel for the appellant-accused that number of witnesses examined by prosecution have not been cross-examined and therefore, opportunity is to be given to the appellant-accused by allowing the appeal and remanding the matter to the trial Court for fresh consideration has also been considered by us. We have also examined the deposition of said witnesses. It is not that learned Sessions Judge has rejected the prayer of the defence without any sufficient reason. Many a times, the witnesses were recalled allowing the applications filed by accused under Section 311 of the Cr.P.C. Sufficient opportunity was also extended to the defence to cross-examine the prosecution witnesses and in spite of grant of such opportunity the defence has not cross-examined the witnesses as per the time schedule. We are conscious about the provision under Section 309 of the Cr.P.C. that when a trial is fixed in a criminal case it has to go on, on a day to day basis, in spite of that, the learned Sessions Judge has considered the request of the defence on many a dates had granted further time to cross examine the witnesses and even then, for reasons best known defence had not cross-examined the witnesses. Under such circumstances, we are unable to accept the submission of the learned counsel appearing for the appellant-accused that proper and sufficient opportunity was not given to the defence to cross-examine the prosecution witnesses and on that ground the matter requires to be remanded to the trial Court. 19. Considering all these aspects of the matter, we are of the clear opinion that learned Sessions Judge has considered both oral and documentary evidence in a proper perspective. 19. Considering all these aspects of the matter, we are of the clear opinion that learned Sessions Judge has considered both oral and documentary evidence in a proper perspective. No illegality has been committed by the learned Sessions Judge in coming to such conclusion. Hence, we find there is no merit in this appeal. Accordingly, appeal is hereby dismissed. The judgment and order of conviction dated 08.04.2011 passed in S.C.No.24/2009 by the IV Addl. District and Sessions Judge, Mysore is hereby confirmed. Registry to transmit the original records to Jurisdictional Sessions Court forthwith.