JUDGMENT : The appellant, who is the sole accused in S.C.No.805/2012 on the file of the Fast Track (Sessions) Judge (FTCVI), Bengaluru, has challenged the judgment of conviction and sentence dated 06.08.2014. The learned Fast Track Judge has convicted the appellant for the offence under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/, in default, to undergo simple imprisonment for a period of six months. 2. We have heard the arguments of Sri K. Diwakara, learned counsel for the appellant and also Sri Vijayakumar B. Majage, learned Additional State Public Prosecutor for the State. We have carefully perused the entire oral and documentary evidence adduced and produced by the prosecution before the Trial Court. We have also examined the correctness of the judgment of the Trial Court. 3. Before adverting to the grounds urged by the learned counsel for the appellant, we feel it is just and necessary to have the brief factual matrix of this case. A person by name B. Bhaskar Raju PW.1 has lodged a complaint as per Ex.P.1 before the Police Inspector, Vyalikaval Police Station, Bengaluru, stating that his own sister by name Chandrakala alias Roopa was given in marriage to the accused-Mahesh Raju, in the year 2000. Thereafter, the said Mahesh Raju and the deceased were residing together in a house situated near Jalagangamma temple in Vyalikaval. They were blessed with two children by name Shravani and Jayashree. It is the further case of the prosecution that as per Ex.P.1, the said Mahesh Raju, after some time of the marriage addicted to alcohol and he used to quarrel with his wife and in that context, he also used to abuse and assault the deceased with respect to some financial differences in the house. In spite of repeated advices and panchayaths, the accused did not desist himself from doing the above said illegal acts. In this context, it is also alleged that, the accused has sold the Mangalya chain of the deceased and she was often insisting him for getting back the said Mangalya chain. In this context also there were quarrels between the accused and the deceased. 4. In the wake of the above said facts, it is alleged that, on 21.02.2012, PW.1-Bhaskar Raju Urs received an information from his another sister Dhanalakshmi stating that Chandrakala was done to death by the accused. In this context also there were quarrels between the accused and the deceased. 4. In the wake of the above said facts, it is alleged that, on 21.02.2012, PW.1-Bhaskar Raju Urs received an information from his another sister Dhanalakshmi stating that Chandrakala was done to death by the accused. Immediately, PW.1 and others went to the house of the deceased and saw the dead body of the deceased in a car belonging to the accused bearing Regn. No.KA 52 1695. They observed some injuries on the dead body and also blood coming out from her mouth, nose and there were some press marks on the neck etc. Therefore, they suspected that the accused must have committed the murder of the deceased. Hence, PW.1 has lodged the said report to the Police. 5. On the basis of the above said report, the Police have registered a case in Crime No.26/2012 for the offence under Section 302 of IPC, investigated the matter and submitted the charge sheet against the accused for the offence punishable under Section 302 of IPC. The records reveal that, the accused was also arrested on 23.02.2012 itself and since then he has been in custody. After committal proceedings, the Trial Court has secured the presence of the accused and framed charges against him for the above said offence under Section 302 of IPC and put the accused on trial. The prosecution in order to bring home the guilt of the accused examined as many as 21 witnesses as PWs.1 to 21, got marked 15 documents as per Exs.P.1 to P.15 and also material objects MOs.1 to 12. Ex.D.1 was also marked, which is a portion in Ex.P.1. The accused was also examined under Section 313 of Cr.P.C. However, the accused did not take any specific defence under 313 statements nor he has chosen to lead any defence evidence on his side. After hearing both the sides and on appreciating the oral and documentary evidence on record, the Trial Court has come to the conclusion that, the prosecution has proved the case beyond all reasonable doubt. Challenging the said judgment of conviction and sentence, the appellant is before this Court. 6. Sri K. Diwakara, learned counsel for the appellant contends before this Court that, almost all the witnesses examined in this case are in one way or the other interested witnesses. Challenging the said judgment of conviction and sentence, the appellant is before this Court. 6. Sri K. Diwakara, learned counsel for the appellant contends before this Court that, almost all the witnesses examined in this case are in one way or the other interested witnesses. They have spoken about the conduct of the accused as well as the motive that has been projected by the prosecution. However, the motive pleaded by the prosecution is very feeble. It is alleged that, due to addiction to alcohol, the accused was not treating his wife in proper manner and he was abusing and assaulting her. The other motive was that, the accused has sold the Mangalya chain of the deceased due to this, the wife was not happy with her husband and almost everyday quarrel used to take place. According to the prosecution, the accused used to come to the house late in the night everyday in a drunken state and used to quarrel with his wife. But the above motive is not substantially established by showing whether the accused has actually sold the said Mangalya chain etc., It is further argued that, the main witness to the prosecution is none other than the daughter of the deceased by name Shravani PW.10, turned hostile to the prosecution. She stated nothing against her father with reference to any quarrel in the house or about the behaviour and conduct of the accused in the house. So far as other witnesses are concerned, they were not residing with the accused, but they are related to the deceased, who got information about the incident from the accused only. They are all hearsay witnesses so far as the incident is concerned. The prosecution has not proved the motive, but the Trial Court has not considered this fact properly and has wrongly come to the conclusion. The Trial Court has not properly considered the evidence of the prosecution but invoking the provision under Section 106 of the Indian Evidence Act, 1872, the Trial Court has completely thrown the burden on the accused, without ascertaining that it is the fundamental duty of the prosecution to establish the guilt of the accused beyond reasonable doubt. The Court cannot look into the defence that has been taken by the accused or non-explanation by the accused if the prosecution itself has not proved the case. The Court cannot look into the defence that has been taken by the accused or non-explanation by the accused if the prosecution itself has not proved the case. Therefore, the learned counsel has strenuously contended that, the prosecution has not proved the case beyond reasonable doubt. Hence, the accused is entitled for acquittal. 7. Alternatively, learned counsel also submitted that, even on overall analysis of the entire evidence on record, if this Court, for any reason, comes to the conclusion that the prosecution has proved its case, it is evident that, the accused is a drunkard and everyday he used to come to the house in a drunken state of affair. Therefore, in that drunken state and being enraged in the quarrel with his wife, he must have committed such an offence without any premeditation or reason to kill his wife. Therefore, the offence may fall either under Section 304 Part-I or Part-II of IPC. Hence, considering the facts and circumstances of this case, leniency may be shown to the accused to reduce or modify the sentence passed by the Trial Court in convicting the accused for the offence punishable under Section 302 of IPC and impose lesser punishment either under Section 304 Part-I or Part II of IPC. 8. Countering the above said argument of learned counsel for the appellant, Sri Vijayakumar B. Majage, learned Additional State Public Prosecutor appearing for the respondent-State submitted before this Court that, the entire evidence if it is seen, the conduct of the accused has been consistently deposed by the witnesses invariably with regard to his conduct of coming to the house late in the night after consuming alcohol and abusing and assaulting his wife and almost quarreling with his wife everyday. He has also submitted that, there is no material whatsoever in the evidence of any of the witnesses to show that on that particular day, the accused has come to the house in a drunken state and there were talks during the quarrel, which enraged the accused to commit such an offence so as to reduce the offence from Section 302 of IPC to any other provision as requested by learned counsel for the appellant. Therefore, he submitted that, there is no ground to interfere with the judgment of conviction and sentence passed by the Trial Court. Hence, he requested the Court to dismiss the appeal. 9. Therefore, he submitted that, there is no ground to interfere with the judgment of conviction and sentence passed by the Trial Court. Hence, he requested the Court to dismiss the appeal. 9. On hearing the arguments in the above said manner submitted by the learned counsels, before adverting to the material evidence on record, we would like to have a cursory look at the evidence of the prosecution adduced before the Trial Court. 10. PW.1-B. Bhaskar Raju Urs is the first informant. As we have stated, the information report lodged is marked at Ex.P.1. He was also a witness to Ex.P.2-Mahazar under which recovery of a towel, nighty, petticoat and a kaacha as per MOs.1 to 4 was made and they were identified by this witness. PW.2-R. Babu is the friend of PW.1 and he is also witness to mahazars Exs.P.2, 3 and 4. So far as Ex.P.4 is concerned, it was drawn at the time of recovery of TowelMO.1 at the instance of the accused. PW.4-Manoj Kumar is the neighbor, house-owner’s son. He has deposed before the Court with regard to the conduct of the accused as well as the harassment to the deceased by the accused. PW.5-Roopa Bai is another neighbor who has also deposed in the same fashion as that of PW.4. PW.6-K.Prakash is another friend and panch for spot mahazar and car mahazar as per Exs.P.2 and P.3. PW.7-B.M.Arasu is another brother of the deceased who rushed to the spot after receiving call from PW.3-Dhanalakshmi and visited the spot and he has also spoken about the conduct of the accused. PW.8-Venugopalraj Urs and PW.9-Srinivasraj Urs are the brothers of the deceased, who have also spoken in similar manner with reference to the conduct of the accused and harassment to the deceased. PW.10 Shravani is none other than the daughter of the accused and the deceased. She turned hostile to the prosecution and portion of her statement under Section 161 of Cr.P.C. is marked at Ex.P.6. PW.11-K.N.Rajesh, Assistant Engineer, on the request of the Police, went to the spot and drewup the spot sketch as per Ex.P.7. PW.12-Mahadevappa another friend of PW.1 is also hearsay witness, who received information from PW.1 with regard to the incident. PW.13-Govindaraju is another brother of deceased who also spoke about the conduct of the accused along with other brothers. PW.11-K.N.Rajesh, Assistant Engineer, on the request of the Police, went to the spot and drewup the spot sketch as per Ex.P.7. PW.12-Mahadevappa another friend of PW.1 is also hearsay witness, who received information from PW.1 with regard to the incident. PW.13-Govindaraju is another brother of deceased who also spoke about the conduct of the accused along with other brothers. PW.14-B.P.Nagaraj is the Police Sub-Inspector, who apprehended the accused and produced him before the Investigating Officer with a report as per Ex.P.9. PW.15-Venkatalkshmi, sister-in-law of the deceased. She is a witness to Ex.P.5-Inquest Report. Likewise, PW.17 Manjunatha Rao and PW.18-Anantharaju are also witnesses to Ex.P.5-Inquest Mahazar. PW.16 K.V.Sathish is the doctor who conducted autopsy on the dead body of the deceased and gave Post Mortem report as per Ex.P.10 and also on examining the towel-MO.1, gave an opinion as per Ex.P.11 that the towel can be used as a ligature and the ligature mark found on the neck of the deceased can be caused by strangulating the deceased with the help of towel like MO.1. PW.19-Dr.H.M. Srikanth, Medical Officer in Bowring Hospital examined the accused and gave a report as per Ex.P.12. PW.20-Chandrashekar H, is the Police Constable. He was present during the inquest and he identified MOs.2 to 4. PW.21-B.J.Jagannatha Rai, is the Investigating Officer, who conducted investigation and submitted charge sheet against the accused. 11. As could be seen from the entire evidence of the prosecution, of PWs.1, 2, 4, 5, 7, 8 and 9, who are all witnesses, relatives of the deceased, brothers and neighbors of the deceased have categorically spoken about the conduct of the accused. They have categorically stated that the accused and deceased were living together in the house situated at Jalagangamma temple in Vyalikaval. They were blessed with two children by name Shravani and Jayashree. They also stated that the accused was running a Taxi and eking his livelihood. He was addicted to alcohol. He used to quarrel with his wife. Everyday, this was the aspect that has been seen by these witnesses. Though the brothers of the deceased were not residing together, but they received the information from the deceased with regard to the conduct of the accused. They categorically stated that the deceased was informing them that the accused was addicted to alcohol. Everyday, this was the aspect that has been seen by these witnesses. Though the brothers of the deceased were not residing together, but they received the information from the deceased with regard to the conduct of the accused. They categorically stated that the deceased was informing them that the accused was addicted to alcohol. Everyday he used to harass her and he also sold the Mangalya chain of the deceased and she was demanding the accused to get the Mangalya chain back to her. 12. In this background, in the course of cross-examination of these witnesses, it is seen that there is no much cross-examination so far as these aspects are concerned. On the other hand, they reiterated in the cross-examination that, on some occasion, the accused was so drunk, he fell on the road itself and on one occasion, the Police have brought him to the house and on one more occasion some witnesses have brought him to the house. These answers were elicited to show that the accused was a drunkard and everyday he used to come to the house in a drunken state of affair. All these witnesses have not actually seen what exactly happened on that ill-fated day inside the house of the accused. PW.10-Shravani is the prime witness who ought to have stated as to what was the situation in the house, prior to and on the day of the incident but she being the daughter of the accused and it is elicited in the course of the cross-examination that after the death of the mother, she had been residing with the accused and her grandfather and therefore, she might not have supported the prosecution in order to save her father, if possible. Therefore, there is no material to show what exactly was happening inside the house of the accused and the deceased, but we are left with the information given by the deceased to her own brothers. As we have stated, in the course of cross-examination, here and there it is suggested that the deceased was murdered by somebody and accused was not responsible for that, and these suggestions have been denied by these witnesses. It is also suggested to one of the witnesses that, the accused in fact had been to the house of PW.3 and he actually told her that, the deceased was unconscious and she was not in a speaking condition. It is also suggested to one of the witnesses that, the accused in fact had been to the house of PW.3 and he actually told her that, the deceased was unconscious and she was not in a speaking condition. Thereafter, PW.3 came to the house of the deceased and saw the dead body of the deceased in the car of the accused. In this background, the evidence of PWs.4 and 5 in our opinion play a dominant role. 13. PWs. 4 and 5 are the neighbors of the accused and the deceased. They have also categorically stated in their evidence that the accused has been residing in the adjacent house of these witnesses along with his wife and two children. They have also stated that, the accused was running a Taxi. He was addicted to alcohol and almost everyday he used to come to the house in a drunken state and used to quarrel with his wife. Speaking to the incident date, they have stated that on 21.02.2012, in the morning at about 11.30 a.m., they were preparing to go to a temple i.e. Kadumalleshwara temple. At that time, they saw the accused and the deceased quarreling with each other in their house. These two witnesses have felt that this is the usual quarrel between the accused and the deceased. Thinking so, they went to the temple. They came back at 2.10 p.m on the same day and the accused requested PW.4 to give his mobile phone and then accused telephoned to Dhanalakshmi and in turn the said Dhanalakshmi PW.3 who came to the spot, saw the dead body of the deceased. Afterwards, these two witnesses have also gone their and saw the dead body of the deceased and they found some blood stains on the face of the deceased and blood was oozing out from the ears and the nose of the deceased etc. They have also deposed that, in fact, the accused himself has shifted the deceased to the hospital, but they came to know that the deceased was already died by the time she was taken to the hospital. 14. In the course of cross-examination, nothing worth has been elicited particularly with regard to the quarrel between the wife and the husband. They have also deposed that, in fact, the accused himself has shifted the deceased to the hospital, but they came to know that the deceased was already died by the time she was taken to the hospital. 14. In the course of cross-examination, nothing worth has been elicited particularly with regard to the quarrel between the wife and the husband. It is suggested to them that, they have personally not seen the quarrel between the accused and the deceased outside the house of the accused at the relevant time soon before the death of the deceased, but they were only hearing the quarrel sound inside the house of the accused but they have denied these suggestions. In the course of cross-examination, it is also elicited that the accused was only present in the house and he has taken the mobile phone of PW.4 and contacted Dhanalakshmi, while conversing with Dhanalakshmi, he informed PW.4 that his wife is not well, therefore, he wanted to contact somebody in order to shift his wife to the Hospital. Therefore, the evidence of these two witnesses clearly established that approximately soon before the incident, accused and deceased were alone in their house. 15. In this context, the evidence of the doctor plays a dominant role. Apart from that, in the evidence, the witnesses who have attested the inquest report have also categorically stated that they were present during the inquest proceedings. They have also stated about the status of the dead body that there was pressure marks on the neck of the deceased and also they found that the face was swollen and some injuries on other parts of the body. PWs.9, 15, 17 and 18 have categorically stated about drawing up of inquest Ex.P.5 by the Police. The Doctor-PW.16 in support of the Post Mortem examination Report has deposed before the Court that, he examined the dead body and he found the injuries on the dead body of the deceased. He ultimately gave an opinion that, the death of the deceased was due to strangulation and smothering. He also identified MO.1-towel which was alleged to have been used by the accused as a ligature for the purpose of strangulating the deceased. Accordingly, he gave his opinion as per Ex.P.11. In the course of cross-examination, no alternative suggestion was even put as to how the death has occurred otherwise than strangulation or smothering. He also identified MO.1-towel which was alleged to have been used by the accused as a ligature for the purpose of strangulating the deceased. Accordingly, he gave his opinion as per Ex.P.11. In the course of cross-examination, no alternative suggestion was even put as to how the death has occurred otherwise than strangulation or smothering. Therefore, it is clear from the evidence of the Doctor and the inquest witnesses that the death of the deceased has occurred in an unnatural circumstance and it is the homicidal death of the deceased. 16. No woman can strangulate herself in such a manner and smother herself and there are no circumstances elicited in the course of cross-examination by any of the witnesses that it is a suicidal case, not even it is suggested to any of the witnesses that, how the death of the deceased has occurred or otherwise. Therefore, we have absolutely no hesitation to hold that the prosecution has proved the homicidal death of the deceased. 17. There are some discrepancies in the evidence of the prosecution witnesses with regard to drawingup of mahazar, seizure of MO.1 on the spot. Though the Police have visited the spot, drewup the mahazar as per Exs.P.2 and P.3, seizure of towel and after arresting the accused, they recorded the voluntary statement of the accused and thereafter they have shown that the towel MO.1 was recovered at the instance of the accused. Except these discrepancies in the mahazars and in the case of the prosecution, the core of the prosecution case is not disturbed. Therefore, looking to the overall evidence of the prosecution, we are of the opinion that, the death of the deceased was proved as homicidal in the house of the accused and at that time, the accused and the deceased were only in the house. Therefore, it becomes the responsibility of the accused to explain as to how the death of the deceased occurred whether it is an unnatural death or a suicidal death. The explanation of the accused may not be absolutely necessary, when the death has occurred in a natural manner and without third party intervention, but in such circumstance when death occurred in an unnatural and suspicious manner it is the responsibility of the accused to explain the same. 18. The explanation of the accused may not be absolutely necessary, when the death has occurred in a natural manner and without third party intervention, but in such circumstance when death occurred in an unnatural and suspicious manner it is the responsibility of the accused to explain the same. 18. On a careful perusal of the cross-examination of the above said witness and also the statement given by the accused while he being examined under Section 313 of Cr.P.C, there is absolutely no explanation by the accused as to how the death of the deceased had occurred in his house when his presence in the house has been spoken to and proved from the evidence of PWs.4 and 5 in an unequivocal manner. Therefore, we are of the opinion that the accused is the only person who must have committed the crime and the prosecution is able to prove beyond reasonable doubt that the accused is the person who committed the murder of his wife. 19. Next comes the alternative argument of the learned counsel for the accused. Learned counsel for the accused strenuously contends that, the Court can draw inference that the incident might have occurred in a heat of passion or due to sudden quarrel that might had taken place between himself and the deceased or due to sudden provocation or due to persuasion of his mind and losing control of his mind which is due to alcohol as he was drunk which is also established by the prosecution itself, therefore the offence would fall under Section 304 Part I or Part II of I.P.C. 20. We are of the opinion that, the drunkenness itself will not help the accused in any manner. It should be established before the Court, by means of atleast probabilities that on that particular day, the accused was fully drunk and came to his house, quarreled with his wife and due to some enragement with the words used by the deceased, he must have lost his patience and mortal balance and committed such an offence. It is worth to refer to a provision under IPC which falls as an exception to general rule. Section 86 of IPC refers to offence requiring particular intent or knowledge committed by one who is intoxicated. It is worth to refer to a provision under IPC which falls as an exception to general rule. Section 86 of IPC refers to offence requiring particular intent or knowledge committed by one who is intoxicated. This provision says “In cases where an act done is not at offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.” Therefore, in order to bring down the offence under Section 304 Part II, it must be established before the Court that on that particular day and time of the incident, the accused was so drunk, he lost his conscious, his mental condition was so bad and he was mentally so imbalanced that he could not foresee the consequences of his act. If any evidence is available so far as this aspect is concerned, it is enough to say that, it may fall under exception to Section 300 of IPC, but not under Section 304 Part II of IPC. As we have meticulously looked into the evidence of the prosecution witnesses not even a single suggestion is made to any of the witnesses that on that particular day, the accused came to the house in a drunken state and that there was a quarrel and he lost all his mental balance and in this context he might have committed the offence. Even there is no suggestion to PWs.2 and 4 who are appropriate witnesses to tell about the conduct or status of the accused on that particular day when actually they saw the accused and the deceased quarreling with each other at 11.30 in the morning near their house on the date of the incident. Therefore, in the absence of any evidence before the Court, the Court itself cannot imagine something which is not based on any legal evidence, otherwise it will amount to interested imagination by the Court. Therefore, we are of the opinion that we cannot draw any inference without any evidence, in such a manner. Therefore, in the absence of any evidence before the Court, the Court itself cannot imagine something which is not based on any legal evidence, otherwise it will amount to interested imagination by the Court. Therefore, we are of the opinion that we cannot draw any inference without any evidence, in such a manner. Hence, the appellant has not made out any ground to bring down the offence either under Section 304 Part I or under 304 Part II of IPC. 21. In the above said circumstances, we do not find any strong reason to interfere with the judgment of conviction and sentence passed by the Trial Court. The appeal is devoid of merits and the same is liable to be dismissed. Accordingly, the appeal is dismissed. In view of dismissal of the appeal itself, I.A.No.1/2014 does not survive for consideration and the same is accordingly dismissed.