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2022 DIGILAW 436 (KAR)

Ningappa v. State of Karnataka

2022-03-31

H.T.NARENDRA PRASAD, RAJENDRA BADAMIKAR

body2022
JUDGMENT Rajendra Badamikar, J. - The appellant/accused has filed this appeal under Section 374(2) of Cr.P.C. challenging the judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Dharwad in S.C. No. 6/2017 dated 13.11.2017 whereby the learned Sessions Judge has convicted the appellant/accused under Sections 302 and 201 of IPC and sentenced him imprisonment for life with fine of Rs. 5,000/- for the offence under Section 302 of IPC with default clause and rigorous imprisonment for a period of 3 years with fine of Rs. 5,000/- with default clause for the offence under Section 201 of IPC. 2. For the sake of convenience, parties shall be referred with the original ranks occupied by them before the trial court. The brief factual matrix leading to the case are as under: That the deceased Manjula was given in marriage to the accused about 8 years prior to her death. Accused, his wife and their minor daughters were residing in Hanamapur village. Earlier, the deceased Manjula @ Savita was suffering from tuberculosis and after she being cured, her marriage was solemnized. Further, it is also alleged that she had already undergone tubectomy operation and there was infection due to surgery and she had obtained treatment in her parental house. It is further case of the prosecution that 20 days prior to the date of filing of the complaint accused being son-in-law of the complainant took his wife and children to his house at Hanamanal. The accused used to reside separately with his wife and children in Hanamanal village while his parents used to reside separately in the same village. It is further case of the prosecution that, 4 days prior to her death, she had come to the house of the complainant and resided for one day and later on returned to her house along with her husband and children. It is further the allegation of the prosecution that accused was not doing any work and he used to subject the victim all along to ill-treatment in order to meet out his illegal demand of money for consumption of liquor. Deceased used to advise him to give up the habit of drinking, but the accused used to quarrel with her in this regard and subjected her to ill-treatment. 3. Deceased used to advise him to give up the habit of drinking, but the accused used to quarrel with her in this regard and subjected her to ill-treatment. 3. According to the prosecution, on 22.04.2016 at about 9.00 or 9.30 p.m. the deceased slept in her house along with her husband and children and it is alleged that at about 3.00 a.m. accused informed his brother-in-law i.e., another son of the complainant by name Parashuram and reported that his wife is not responding as she did not wake up in spite of all the efforts. The matter was brought to the notice of the complainant and immediately complainant along with other family members went to Hanamanal village where they found that deceased Manjula was sleeping on the that and she was already dead. As such, the complainant suspected some foul play and he lodged a complaint regarding unnatural death of his daughter as per Ex. P7. On the basis of the same, UDR crime No. 14/2016 was registered under Section 174 of Cr.P.C. and FIR came to be issued as per Ex. P20 to Taluka Executive Magistrate. Thereafter, scene of occurrence mahazar was conducted and inquest was also conducted on the dead body. Later on, postmortem was conducted on the dead body and the Medical Officer who has conducted the postmortem has collected viscera and hyoid bone and sent the same to KIMS Hospital and to FSL for examination. The postmortem report was received on 07.05.2016 and final opinion is withheld for want of FSL report. 4. It is also alleged that in the meanwhile, the complainant heard rumors that his daughter was strangulated by the accused. Then he went to Hanamanal village and enquired with the accused, but the accused did not respond properly and behaved as if nothing has happened. As such, after discussing this aspect, the complainant has filed a complaint against the accused for the offence under Section 302 of IPC. This complaint is marked at Ex. P8. The investigating officer then issued fresh FIR in this regard. Meanwhile, the final opinion was also received by the investigating officer as per Ex. P15 on 26.09.2016 wherein it is reported that death is due to compression of neck as per the report of FSL and Histopathology report of KIMS Hospital. This complaint is marked at Ex. P8. The investigating officer then issued fresh FIR in this regard. Meanwhile, the final opinion was also received by the investigating officer as per Ex. P15 on 26.09.2016 wherein it is reported that death is due to compression of neck as per the report of FSL and Histopathology report of KIMS Hospital. Then investigating officer apprehended the accused and on interrogation he confessed regarding he committing the murder of his wife and then at his instance, the mahazar was drawn at the spot wherein the offence was committed as per Ex. P1. The investigating officer has also recorded statement of the material witnesses and found that there is sufficient evidence to prove the guilt of the accused. Hence, after completion of the investigation, he has submitted the charge sheet against the accused. 5. After submission of the charge sheet as there are sufficient grounds to proceed against the accused, cognizance was taken by the learned Magistrate. He has also secured the accused and furnished prosecution papers and accused is represented by defence counsel. Later, learned Magistrate has committed the matter to the sessions court and matter was placed before the Principal District and Sessions Judge. He secured the accused from custody and he was represented by his counsel. 6. After hearing learned public prosecutor and defence counsel, the learned session Judge has framed charge under Sections 302 and 201 of IPC against the accused and the accused pleaded not guilty. 7. To prove the guilt of the accused, the prosecution has examined in all 24 witnesses and has also placed reliance on 24 documents as well as 3 material objects. Further, during the course of evidence, Ex. D1 to D5 were marked which were portion of statements given in UDR complaint and statement under Section 161 of Cr.P.C. given by P.Ws. 10, 13, 19 and 12 respectively. 8. After completion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. However, the case of the accused is of total denial and he did not choose to lead any oral and documentary evidence in support of his defence. Further, he has also not given any explanation for the death of his wife in his house in odd hours. 9. However, the case of the accused is of total denial and he did not choose to lead any oral and documentary evidence in support of his defence. Further, he has also not given any explanation for the death of his wife in his house in odd hours. 9. After hearing the arguments and after perusing the material evidence on record, the learned sessions Judge has found that prosecution has proved the guilt of the accused for the offence under Sections 302 and 201 of IPC beyond all reasonable doubt and accordingly, convicted the accused for both the offences and sentenced him. 10. Being aggrieved by this judgment of conviction and order of sentence, the accused has filed this appeal. 11. We have heard the learned counsel for the appellant and learned Additional SPP for the respondent-State at length. We have also given our anxious consideration to the submissions made by both the parties and perused the records of the trial court. 12. Learned counsel for the appellant would contend that judgment and conviction and order of sentence is not based on facts nor evidence on record and it is unsustainable. He would also contend that trial court has overlooked the admissions of material witnesses which has resulted in injustice to the appellant/accused. He would also contend that prosecution has projected the entire story of eyewitnesses who are interested and also at a belated stage without any proper explanation. The trial court has failed to note delay in lodging the complaint and no independent evidence is led in the form of neighbours to prove the harassment and ill-treatment to the deceased. The evidence of child witness is not acceptable as she has admitted that she is giving evidence at the instance of her maternal grandparents and other family members. That the trial court has not considered defence story and ill-health of the deceased as she was suffering from health complications. Proper points for consideration are not at all framed. He would also contend that there is no certainty as to whether it is a homicidal death or suicidal death and hence, the benefit of doubt ought to have been extended to the accused. He would also contend that since the case of the prosecution is projected on the basis of eye-witness, question of applicability of Section 106 of the Indian Evidence Act does not arise. He would also contend that since the case of the prosecution is projected on the basis of eye-witness, question of applicability of Section 106 of the Indian Evidence Act does not arise. He would also contend that though positive opinion of hyoid bone was given on 11.09.2016 itself, the case was registered on 25.09.2016 which creates doubt regarding genesis of the case itself. Hence, he would contend that in view of presence of eye-witness question of accused explaining facts within his knowledge under Section 106 of the Indian Evidence Act does not arise at all. Admittedly, no injury was found on the dead body or neck of the deceased. As such, he would contend that entire case of the prosecution is shrouded with darkness and suspicious and hence, he would contend that, when two views are possible, the view favourable to the accused is required to be taken and on this principle, he prayed for allowing the appeal by setting aside the judgment of conviction and order of sentence. 13. Per contra, learned Additional SPP would supports the judgment of conviction and order of sentence. He would submit that all the witnesses have specifically stated the motive regarding commission of the offence as accused was addicted to bad vices and deceased used to advise him in this regard. He would also contend that incident has occurred in the house of the accused and except accused, deceased and minor children, no one was there and under such circumstances, it is for the accused to give explanation as to how the death of his wife has occurred. But he does not want to give any explanation in respect of the facts within his knowledge, as what has transpired within four walls cannot be made known to others. Hence, he would contend that provisions of Section 106 of the Evidence Act are directly applicable and the medical evidence clearly establish that death is due to compression of neck, which is as a result of strangulation and as such, he would contend that learned sessions Judge has appreciated oral and documentary evidence in detail and has rightly convicted the accused by imposing a reasonable sentence. As such, he would seek for dismissal of the appeal. 14. As such, he would seek for dismissal of the appeal. 14. Having heard the arguments and after perusing the oral as well as documentary evidence, the following points would arise for our consideration: i) Whether the prosecution has proved beyond all reasonable doubt that on the intervening night of 22.04.2016 and 23.04.2016 around 2.00 a.m. the accused being the husband of the deceased Manjula @ Savita in his house bearing No. 59 of Hanamanal village within the limits of Garag police station has committed the murder of his wife by throttling her neck and in order to conceal the offence of murder informed falsely that the deceased died while she was in asleep and it is a homicidal death as contended? ii) Whether the judgment of conviction and order of sentence passed by the trial court is perverse, erroneous, arbitrary and suffers from infirmity so as to call for interference by this court? 15. It is an admitted fact that deceased Manjula is wife of the accused. It is further undisputed fact that she was residing along with accused and three minor children in Hanamanal village in the house of the accused. Further, it is an admitted fact that on the intervening night of 22.04.2016 and 23.04.2016 before 2.00 a.m. she died while she was in asleep and she did not respond to wake up call. It is also an admitted fact that in the house, accused, deceased and three minor children alone were residing in Hanamanal village. The medical evidence discloses that final opinion which is based on Histo-pathological report, that the death is due to compression of neck. Hence, it is evident that death is because of strangulation and strangulation contains number of forms. Postmortem report marked at Ex. P11 discloses that "fine white froth was seen over the nose and mouth". The final opinion was given on the basis of FSL report and histopathology report. This evidence is not at all challenged. Though during the course of the arguments, learned counsel for the appellant has also tried to make out a case that deceased was suffering from lot of ailments and death might have occurred because of this ailment, but the said argument holds no water as neither in the evidence of the witnesses nor during the cross-examination of the Medical Officer and scientific officer, such a defence is put forward. The cross of these material witnesses discloses that no such defence of death due to any other health issue is raised and as such, now it is not open for the appellant/accused to take such a defence. Even otherwise, the accused during his statement recorded under Section 313 of Cr.P.C. also did not give any explanation in this regard. As such, the said argument holds no water. Looking to the medical evidence and other evidence led by the prosecution, it is evident that death is a homicidal one. 16. P.Ws. 1 and 2 are the spot panchas for Ex. P1 mahazar and Ex. 2-sketch drawn at the instance of the accused. They have supported the case of the prosecution regarding spot is being shown by the accused and though in the cross-examination the witnesses admits that they have not dictated the terms of the mahazar and they do not know the contents of the mahazar, but their presence at the spot while drawing Exs. P1 and P2 is undisputed. 17. P.Ws. 3 and 4 are mahazar witnesses and inquest mahazar was drawn initially when UDR case was registered and they deposed these aspects and there is no much dispute about this aspect. 18. P.W. 5 is the seizure mahazar witness in respect of seizure of M.Os. 1 to 3 by the police in the police station, which are clothes of the deceased and there is no much dispute about this aspect. 19. P.W. 6-Gangappa is the complainant and father of the deceased. He has deposed in terms of the recitals of UDR complaint lodged by him. His evidence discloses that initially itself they suspected some foul play regarding death of his daughter Majula and later on he lodged complaint as per Ex. P8. The witness was cross-examined at length by the defence counsel, but nothing worthy was elicited so as to impeach his evidence. He admits that his daughter has suffered tuberculosis disease prior to her marriage, but he asserts that she was cured after treatment. He has also admitted that she underwent tubectomy operation and there was infection and treatment was provided to her and she was again recovered subsequently. These aspects were not disputed or denied in the evidence of the witness. He admits that his daughter has suffered tuberculosis disease prior to her marriage, but he asserts that she was cured after treatment. He has also admitted that she underwent tubectomy operation and there was infection and treatment was provided to her and she was again recovered subsequently. These aspects were not disputed or denied in the evidence of the witness. However, this witness has specifically deposed that accused used to harass and ill-treat the deceased as she used to advise the accused to leave the habit of drinking alcohol and regularly he used to demand money from the deceased to satisfy his bad habits. 20. P.W. 8-Madavi is the wife of the complainant and mother of the deceased and her evidence also disclose that initially they did not suspect and later on, they got information that the accused has committed the murder of their daughter. Her evidence further discloses that deceased was initially infected with tuberculosis prior to her marriage and only after she getting cured her marriage was performed. She also admitted that she underwent tubectomy operation and initially there was infection. It is not the case of the accused that this infection has spread over the body and death is due to septicemia. No such defence is set up by the accused nor it is suggested to Medical Officer. Nothing worthy was elicited in the cross-examination of this witness. 21. P.W. 9-Parashuram is the brother of the deceased and P.W. 10-Netravathi is the sister of the deceased and they have also supported the case of the prosecution and their evidence corroborates the evidence of P.Ws. 6 and 8. 22. During the cross of P.W. 9, it is for first time a suggestion was made that death is due to infection suffered by the deceased after birth of Jeevika. But interestingly, no such suggestions were made to other witnesses. Similar suggestion was made to P.W. 10-Netravathi, which came to be denied. But whether the death is due to infection/septicemia is required to be stated by the Medical Officer who has conducted postmortem and her evidence is very specific that death is due to compression of neck. Even during the cross-examination of the doctor, no such suggestion was made that death is because of septicemia. 23. In the cross-examination of P.W. 10, it is elicited that in 2014 accused was working in their village itself. Even during the cross-examination of the doctor, no such suggestion was made that death is because of septicemia. 23. In the cross-examination of P.W. 10, it is elicited that in 2014 accused was working in their village itself. It is also suggested that on 18.08.2016 (ought to have been 2014) the deceased while she was in her matrimonial home suddenly collapsed and was unconscious and she was admitted to civil hospital and later on to KIMS Hospital wherein she has taken treatment for 8-10 days. This suggestion was in respect of 18.08.2016, which cannot be accepted as the death of the deceased was occurred on the intervening night of 22.04.2016 and 23.04.2016. Considering the earlier part of the cross-examination, it ought to have been read as 2014 only. But the accused did not explain as to what has transpired in this 1 1/2 to 2 years and no evidence is produced to show that she died due to septicemia as a result of infection during tubectomy operation. 24. P.W. 11-Bhimappa is the brother of the complainant and he has also supported the case of the prosecution regarding accused being addicted to drinking, used to demand money from the deceased to satisfy his bad habits and used to ill-treat the deceased. 25. P.W. 12-Jyoti is the minor daughter of the deceased and accused who is posed as an eye-witness. We will discuss about her evidence little later. 26. P.W. 13-Dharanendra is the resident of Lokur. He has deposed regarding accused subjecting the deceased to ill-treatment even in Lokur and accordingly, P.W. 14 has also deposed. 27. P.W. 15-Melappa is the father of the accused and he has turned hostile. Very interestingly, during the cross-examination of P.W. 14, a suggestion was made that accused used to look after his deceased wife properly and to this question, the witness has specifically answered that, the accused used to take care of his wife when he was in normal state of mind, but he used to ill-treat only when he was under the intoxicated state of mind. This statement is not at all denied by the defence counsel during the cross-examination, which itself was elicited in the cross-examination. 28. P.W. 12-Jyoti is a minor daughter of the deceased and accused. This statement is not at all denied by the defence counsel during the cross-examination, which itself was elicited in the cross-examination. 28. P.W. 12-Jyoti is a minor daughter of the deceased and accused. She has deposed that her father accused is in the habit of consuming liquor and under the intoxicated state of mind, he used to abuse and assault her mother. She further deposed that on the date of incident, he was under intoxicated state of mind and he assaulted the deceased and throttled her neck and she has witnessed the incident. But her cross-examination reveals that her maternal grandfather, grandmother and aunt have asked her to give evidence regarding accused caused the death of her mother and as such, she is deposing. Considering this admission, the learned sessions Judge did not accept the evidence of this witness and rejected it. However, the witness has denied the fact that she is giving false evidence. Though it is also one of the ground raised by the learned counsel for the appellant, but it is an admitted fact that learned sessions Judge did not rely on the evidence of this witness on the ground that she appears to have been tutored. 29. P.W. 16-Dr. Gayatri is the Medical Office who has conducted postmortem examination on the dead body in the District Hospital, Dharwad. She has specifically deposed that she conducted postmortem between 3.00 to 4.05 p.m. on 23.04.2016 and there were no external injuries on the dead body and after conducting postmortem she issued postmortem report as per Ex. P11 by withholding the final opinion. She has further deposed that she sent parts of the body for FSL by addressing letters as per Exs. P12 and 13. Ex. P12 is the letter addressed to the Regional FSL Laboratory, Belagavi and sending portion of stomach and its contents and small intestine and its contents and pieces of liver, kidney, brain, lungs, heart and spleen. Ex. P14 is the letter addressed by her to the Pathology Department of KIMS Hospital, Hubballi by sending hyoid bone muscles seeking opinion. These letters disclose that on 24.04.2016 itself the Medical Officer has taken prompt steps in this regard. Her further evidence discloses that on the basis of the histopathology opinion as per Ex. P16, she has given final opinion as per Ex. P15 dated 11.09.2016 that death is due to compression of neck. These letters disclose that on 24.04.2016 itself the Medical Officer has taken prompt steps in this regard. Her further evidence discloses that on the basis of the histopathology opinion as per Ex. P16, she has given final opinion as per Ex. P15 dated 11.09.2016 that death is due to compression of neck. She has specifically deposed that death was due to throttling as referred in Ex. P16. This witness was cross-examined at length and certain suggestions were made stating that in case of throttling there is possibility of fracture of hyoid bone and swelling of face, but she denied the said suggestions. A further suggestion was made that in case it is throttling, she is likely to face injuries on the neck due to nails, but she claimed that in all circumstances it will not happen. 30. In the cross-examination, it is elicited that the witness is not able to say whether deceased was committed suicide or it was strangulation of neck. On this ground, much arguments have been advanced by the learned counsel for the appellant. It is not the case of the accused that deceased has committed suicide. Further, it is hard to accept the said contention that deceased committed suicide by throttling her own neck. It is most improbable and in this regard no suggestions were made to any of the witnesses and no motive was forthcoming for deceased to commit suicide on her own. Even statement of the accused under Section 313 of Cr.P.C. was silent in this regard. 31. Histopathology report Ex. P16 clearly disclose that there was fractured byline cartilage, which has resulted in death due to compression of neck and a suggestion was made that, in case the strangulation of neck, the body will turn into blue, but the witness has specifically answered that it does not happen in all circumstances. Hence, the evidence of Medical Officer disclose that witness has faced the test of cross-examination efficiently and scientifically answered all questions raised in the cross-examination and the explanation given by the witness were not denied or disputed. 32. The other marked document is Ex. P24, but it discloses that no toxic materials were found and it does not assist either the defence or the prosecution in any way. The other witnesses are official witnesses and investigating officers. 33. On scrutinizing overall evidence lead by the prosecution and on verification of Exs. 32. The other marked document is Ex. P24, but it discloses that no toxic materials were found and it does not assist either the defence or the prosecution in any way. The other witnesses are official witnesses and investigating officers. 33. On scrutinizing overall evidence lead by the prosecution and on verification of Exs. P11, 12, 15 and 16, it is evident that death was due to compression of neck. No doubt, opinion was given on 11.09.2016 however, the investigating officer has issued FIR after taking a complaint as per Ex. P8 on 25.09.2016. Hence, the learned counsel for the appellant would contend that there is inordinate delay in lodging the complaint and in this contest he placed reliance on a decision of the Hon'ble Apex Court in the case of Lalita Kumari v. Govt. of U.O. & Others reported in 2014 CRI.L.J. 470 and argued that recording of FIR is mandatory and word "shall" used in Section 154 leaves no discretion in police officer to hold preliminary inquiry which is impermissible. On the basis of this citation, he would contend that conduct of the investigating officer is suspicious. No doubt conduct of the investigating officer in this regard is not acceptable and there was no need for him to take a complaint and on the basis of medical report itself as per Ex. P15, he could have registered case for the offence punishable under Sections 302 and 201 of IPC, but there is no material evidence to show that this conduct of the investigating officer has prejudiced the accused in any way. In fact, it shows that investigating agency was reluctant to initiate action against the accused. As such, the accused cannot take advantage of this aspect considering the fact that accused in no way prejudiced by this delay. Merely for the lapses on the part of the investigating agency, the case of the prosecution which is based on medical evidence cannot be discarded. Further, it is not the case of the accused that medical evidence is fabricated and his defence is all along inconsistent and contrary which is not put to Medical Officer when she was examined. 34. The trial court has also considered definition of strangulation as defined in Modi's Medical Jurisprudence and Toxicology and symptoms thereof. Further, it is not the case of the accused that medical evidence is fabricated and his defence is all along inconsistent and contrary which is not put to Medical Officer when she was examined. 34. The trial court has also considered definition of strangulation as defined in Modi's Medical Jurisprudence and Toxicology and symptoms thereof. It is also specifically observed on the basis of commentary that, injury to the muscles of the neck is common and fracture of the larynx antrachea is often found and also hyoid bone. Hence, when the evidence is marshaled in detail including circumstantial evidence coupled with medical evidence, it is evident that death of the deceased is due to compression of neck and it is not a natural death or suicidal. Though accused tried to take up a defence of she died due to septicemia as a result of infection, no such suggestions were made to P.W. 16-Dr. Gayatri who has conducted postmortem on the dead body. On this point, no cross-examination was made. 35. Further, it is to be noted here that death has occurred within four corners of the wall and except accused, deceased and minor children no-one were in the home. The evidence of P.W. 12 minor daughter was discarded on the ground that she is appears to be tutored. Even otherwise, medical evidence supports the case of the prosecution. Under such circumstances, what has transpired within the four corners, it is for the accused to explain and he cannot expect that third person should come to know about this aspect. Hence, under Section 106 of the Evidence Act, the burden is on the accused to give explanation. Learned counsel for the appellant would contend that when the case is based on the eye-witness, on the basis of circumstantial evidence the case cannot be proved by casting the burden on the accused under Section 106 of the Evidence Act. In support of his contention, he placed reliance on the decision of the Hon'ble Apex Court in the case of Shambu Nath Mehra Vs. State of Ajmer reported in AIR 1956 SC 404 . But the facts and circumstances of the said case are entirely different. In support of his contention, he placed reliance on the decision of the Hon'ble Apex Court in the case of Shambu Nath Mehra Vs. State of Ajmer reported in AIR 1956 SC 404 . But the facts and circumstances of the said case are entirely different. The said case was claiming TA for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus in respect of second class railway fare and it is observed that, either he did not travel at all between those places on the relevant dates, or, if he did, that he did not pay the fare. It is in this context, it is held that Section 106 cannot be made applicable as the burden is on the prosecution. But in the instant case, no such facts are forthcoming and the incident has occurred within the four corners of the wall and except accused, deceased and minor children there are no other persons. The minor daughters cannot explain facts and the other witness is the deceased who is not available now and left over person is accused. Hence, it is for the accused to explain as to under what circumstances the death has occurred, but he is not prepared to give explanation. Considering the facts and circumstances, though principles enunciated in the above cited decision cannot be disputed, but they cannot be made applicable to the facts and circumstances of the case in hand. 36. The counsel for the appellant has further placed reliance on the decision in the case of Jethalal Nanalal v. State of Gujarat reported in AIR 1968 Gujarat 163, wherein it is observed that Section 106 cannot come into play where the facts concerned are such as are capable of being known by others also. But in the instant case, the facts which have taken place within the four corners of the house are not capable of being known to others. As such, the said principles cannot be made applicable to the facts and circumstances of the case in hand. 37. Learned counsel for the appellant has further placed reliance on the decision in the case of C. Narayanan Writer and Etc. Vs. As such, the said principles cannot be made applicable to the facts and circumstances of the case in hand. 37. Learned counsel for the appellant has further placed reliance on the decision in the case of C. Narayanan Writer and Etc. Vs. State of Kerala and Others reported in ILR 1992 (2) Kerala 321 and argued that, when there is doubt and when circumstance pointing divergent conclusions regarding death is a suicide or homicide, the benefit of doubt needs to be extended to the accused. But in the instant case, there is no such doubt and the only conclusion can be drawn is that, death is due to compression of neck. Even otherwise, no defence is set up by the accused that death is due to suicide. As such, the said principles cannot be made applicable to the facts and circumstances of the case in hand. 38. Learned counsel for the appellant has lastly placed reliance on the decision of the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 and argued that, when two views are possible, the view favourable to accused should be considered. There is absolutely no dispute regarding principles enunciated in the above cited decision and the same opinion is expressed by the Hon'ble Apex Court even subsequently. But in the instant case, there are no two views possible and the only conclusion can be drawn is regarding death due to compression of neck and in the house except accused there are no other persons. Hence, it is for the accused to explain which he has failed to do so under Section 106 of the Evidence Act. As such, considering the facts and circumstances of the case in hand, the principles enunciated in the above cited decision do not come to the aid of the accused in any way. 39. Learned Additional SPP has placed reliance on the decision in the case of Trimukh Maroti Kirkan Vs. As such, considering the facts and circumstances of the case in hand, the principles enunciated in the above cited decision do not come to the aid of the accused in any way. 39. Learned Additional SPP has placed reliance on the decision in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 wherein the Hon'ble Apex Court held as under: "Criminal Trial-Circumstantial evidence - Last seen together - Dowry death - Prosecution of the husband for - Where prosecution succeeds in leading evidence to show that (i) either the husband and wife were last seen together, or (ii) the offence was committed in the dwelling house, where the husband also resided, and if the accused husband offers no explanation as to the injuries received by his wife or if the explanation is false, held, there is strong circumstance which indicates that he committed the crime - Burden of proof - Penal Code, 1860, S. 304-B." 40. Learned Additional SPP has further invited the attention to the observations made in paragraph 15, wherein it is held that, if the offence is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. It is further observed that, in view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. It is further specifically observed that, inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. The said principles are directly applicable to the case in hand. In the instant case also, the incident has occurred in the house and except accused there are no other inmates other than the deceased. Further, the death is homicidal one and it is for the accused to explain, but he has failed to do so. The said principles are directly applicable to the case in hand. In the instant case also, the incident has occurred in the house and except accused there are no other inmates other than the deceased. Further, the death is homicidal one and it is for the accused to explain, but he has failed to do so. As such, under Section 106 of the Evidence Act it is for the accused to explain which he has failed to do so. As such, adverse inference is required to be drawn against the accused. 41. On similar point, learned Additional SPP has further placed reliance on the decision of the Hon'ble Apex Court in the case of State of Rajasthan v. Thakur Singh reported in 2014 CRI.J. 4047, wherein the Hon'ble Apex Court observed as under: "Evidence Act (1 of 1872), S. 106 - Burden to proof - Murder case - Deceased wife died unnatural death in room occupied by her and accused - No evidence that anybody else entered their room and caused her death - Cause of death of his wife known only to accused, yet he failed to explain them - There is strong presumption that deceased was murdered by accused." 42. The said principles are also directly applicable to the facts and circumstances of the case in hand. The evidence clearly discloses that it is the accused and no other person is capable of committing this offence and there cannot be any other view. The possibility of self-strangulation is improbable and it is also not the case of the accused. Further, accused has not set up defence of septicemia by cross-examining the doctor and he has also not taken up a defence of suicide also. Under these circumstances, the medical evidence clearly establishes that death is due to compression of neck and it is by the accused only who is capable of doing this offence. The circumstances clearly establish that accused has committed the murder of his wife and thereafter he wanted to show that it was a natural death as deceased died while sleeping which is not the case forthcoming in the instant case. The oral and documentary evidence clearly establish that prosecution has established the guilt of the accused beyond all reasonable doubt. 43. The learned sessions Judge has considered all these aspects in proper perspective and he has analyzed oral and documentary evidence in detail. The oral and documentary evidence clearly establish that prosecution has established the guilt of the accused beyond all reasonable doubt. 43. The learned sessions Judge has considered all these aspects in proper perspective and he has analyzed oral and documentary evidence in detail. He has also considered medical jurisprudence in this regard and rightly convicted the accused. The judgment of conviction and order of sentence does not suffer from perversity or infirmity so as to call for any interference by this court. He has also imposed reasonable sentence. Under these circumstances, looking to the facts and circumstances of the case, we answer point No. 1 in the affirmative and point No. 2 in the negative. Accordingly, appeal being devoid of any merits fails and as such, we proceed to pass the following: ORDER The criminal appeal is dismissed by confirming the judgment of conviction and order of sentence dated 13.11.2017 passed by the Principal District and Sessions Judge, Dharwad in S.C. No. 6/2017. The trial court is directed to secure the presence of accused for serving remaining part of sentence. Send back the TCR's to trial court with copy of this order for compliance.