JUDGMENT
Mirdhe, J.
1. This appeal is preferred by the appellant-accused against the Judgment dt. 22-7-94 passed by the II Addl. Sessions Judge, Bijapur, in S.C. No. 145/93 convicting the appellant/accused for the offence punishable under Sec. 302, IPC and sentencing him to imprisonment for life.
2. We have heard the learned counsel for the appellant/accused Sri. R. B. Deshpande and the learned Addl. Government Pleader Sri Rajagopal and perused the records of the case.
3. The case of the prosecution is as follows :
That deceased Huchawwa was the wife of the appellant-accused. The accused was residing at Bagalkot, whereas the deceased was residing separately from her husband/accused in Bijapur in the house of P.W. 2, the complainant. She had obtained an order of maintenance against the accused and the accused was required to pay the arrears of maintenance amounting to Rs. 6,000/- to her. Therefore, the accused was nursing a grudge against her. The deceased was living in that house with her daughter Kavita and she had developed illicit intimacy with P.W. 11 Jangir. This was also resented by the accused. On the date of the incident, the deceased had gone to fetch water and by the time she returned home the accused had entered into the house and when she came into the house he stabbed her on her stomach with the knife – M.O. 2. The deceased followed him up to the door and the accused ran away. The incident had been witnessed by P.Ws. 3, 4 and 5 viz. wife, mother and daughter of P.W. 2, the complainant and also the landlord of the house where the deceased was staying. After P.W. 2 returned home, the incident was narrated to him by P.Ws. 3, 4 and 5 and he went to the police station and lodged his complaint. The police, after investigation, filed charge sheet against the accused.
4. It is the case of the prosecution that the deceased died a homicidal death. P.W. 1 is Dr. Chalawadi who conducted the post-mortem examination on the dead body of Huchawwa and he noticed 3 stab injuries on the stomach and he also noticed internal injuries corresponding to the above external injuries. He has opined that the death of the deceased was due to haemorrhage and shock as a result of injury to the vital organ viz. liver of the deceased. In view of this piece of evidence, the trial Court was justified in holding that the deceased died a homicidal death.
5. The case of the prosecution is that the deceased committed the murder of his wife as he was nursing a grudge against her for having obtained an order of maintenance. In the evidence of P.W. 3 it is brought out that P.W. 11 Jangir was visiting her and P.W. and her husband had taken objection to the visits of Jangir to that house. The learned counsel for the accused submitted that there is no record produced to show that the deceased had obtained any order of maintenance against the accused. He also submitted that no question has been put to the accused in his statement under Sec. 313, Cr.P.C. touching this aspect of the prosecution case. His further submission is that P.W. 11 Jangir himself has not supported the prosecution case regarding the illicit intimacy between the deceased and P.W. 11 Jangir. No doubt no material is produced by the prosecution like the certified copy of the maintenance order or any other record to infer from that that there was an order of maintenance passed in Court against the accused and in favour of the deceased. We have gone through the statement of the accused recorded under Sec. 313, Cr.P.C. There also no question is put to the accused regarding this aspect of the prosecution case. It is a well settled principle of law that the Court cannot rely on any incriminating circumstance against an accused which has not been put to him in his examination under Sec. 313, Cr.P.C. Therefore, we think that the Court will not be justified in coming to the conclusion that there was any such order obtained by the deceased against the accused for her maintenance. But, it is the case of the prosecution that the relationship between the accused and the deceased was strained. This has been spoken to by P.W. 3 in her evidence. According to the evidence of this witness the deceased was living separately from her husband in their house as a tenant. The accused in his reply to question No. 11 in his statement under Sec. 313, Cr.P.C. has admitted that he had left her since 15 years. Therefore, the evidence of P.Ws.2 and 3 which goes to show that the deceased was living separately in their house as a tenant coupled with the answer of the deceased that he had left his wife about 15 years prior to the date of the incident leads to the irresistible inference that the relationship between the accused and the deceased had deteriorated and they were not living together as husband and wife at the time of the incident. Though the prosecution has not been able to show conclusively that the deceased had obtained an order of maintenance against the accused, but still it is proved beyond all reasonable doubt that the relationship between the accused and the deceased had deteriorated to such an extent so as to make the accused and the deceased live separately the deceased at Bijapur and the accused at Bagalkot.
6. It is further the case of the prosecution that on account of the strained relationship between the deceased and the accused, the accused had committed this murder. In view of the fact that the relationship between the accused and the deceased was strained to such an extent, so as to make them live in two separate towns, we are of the opinion that the prosecution has been able to prove the motive on the part of the accused to commit the murder of the deceased in this case. Moreover, motive will not play such an important role in a case which is based on the evidence of eye-witnesses as it would have done in a case which is based purely on circumstantial evidence. The prosecution has relied on the evidence of P.Ws. 3, 4 and 5 as the evidence of eye-witnesses in this case. In view of the structure of the prosecution case which is based on the evidence of the eye-witnesses, the existence or non-existence, sufficiency or insufficiency of the motive will play no significance. The guilt or otherwise of the accused will have to be decided on proper appreciation and assessment of the evidence of eye-witnesses.
7. The prosecution has tried to rely on the evidence of P.W. 4 as the evidence of an eye-witness, but she has been treated hostile and cross-examined by the prosecution. Therefore, her evidence could not have been of any avail to the prosecution to connect the accused with the offence alleged against him.
8. Another witness is P.W. 5. She is the daughter of P.Ws.2 and 3. Though in her examination she has deposed that she saw the accused assaulting the deceased, in her cross-examination she has stated as follows :
In view of these answers given by her in her cross-examination, it will be difficult to hold that she is the witness who had seen the incident in which the accused is alleged to have assaulted the deceased. Therefore, it will not be safe to rely on the evidence of this witness to convict the accused.
9. Now what remains is the evidence of P.W. 3, P.W. 3 has stated in her evidence that the deceased was residing in her house with her daughter as a tenant and the accused used to come to that house and the deceased herself had told her that the accused was her husband. She also further stated that Jangir was also coming to the house of Huchawwa and she had told the deceased that her husband had left her and she was living with her paramour and, therefore, she should vacate the house. It is not further evidence that on the date of incident she and the deceased had gone to fetch water and after getting the water she went to her house and Hucchawwa went to her house and at that time the deceased told her that someone had come to her house and by the time this witness went inside her house, she heard the shouts and the boys were shouting that Huchawwa was assaulted, and she stood outside and peeped into the house and then she saw a male person inside the house and that she shouted but no one came at that time and that both the accused and the deceased came together from the house of Huchawwa and Huchawwa fell outside the house. This witness has further stated that she asked the accused as to why he did like that and that the accused told her that he did nothing. It is further her evidence that she lifted the saree from the body of Huchawwa and she saw 3 stab injuries on her stomach and by the time she struck a match stick, the accused had run away. This witness has been relied upon by the trial Court. Now, the question before the Court is whether the conviction of the accused can be sustained on the basis of the evidence of this solitary witness alone. The law in this regard is even the evidence of solitary witness can be the basis of conviction of an accused provided the evidence is safe to be relied upon. The evidence is required to be weighed and not counted in law. The evidence of this witness is attacked by the learned counsel for the appellant on the ground that the version of the incident as given by this witness in her evidence is quite contrary to the version given by the complainant in his complaint Ex.P-2 and that she could not have identified the assailant because she has stated that there were no lights at that time and the darkness was such that even faces were not visible. From her evidence it is apparent and it can safely be inferred that the deceased was residing in her house as a tenant with her daughter Kavita. Her evidence is also to the effect that the deceased herself had told her that the accused who was visiting her in her house at times was her husband. In her evidence it has also come that Jangir used to visit the deceased to which P.W. 3 had taken objection and had asked the deceased to vacate the house. This witness P.W. 3 is a natural witness. The inquest proceedings disclose that the dead body of the deceased 2 was found outside the house where she was residing. The murder to Huchawwa took place in that house and P.W. 5 is the wife of the landlord of that house and she was residing in a house which is adjacent to the house where the deceased was residing. Therefore, she is not a chance witness but she is a natural witness. No such material is elicited in her cross-examination so as to lead to an inference that this lady has any animus against the accused so as to depose falsely against him. There appears to be a stamp of truth in her evidence. She has stated in her cross-examination as follows :
which freely translated means as follows :
“I would prefer to die here only rather than tell falsehood.”
We have perused the complaint Ex.P2 also. In the complaint the version of the incident given is different than the version as spoken to by P.W. 3 in her evidence. But there is no discrepancy in the evidence of P.W. 3 and the complaint Ex.P2 that it was the accused who assaulted the deceased with a knife. In the complaint it is mentioned that the complainant was informed by his mother Gurubai, by his wife Gangabai and his children that when Huchawwa was coming towards her house after filling up water in her pot, the accused stopped her and pulled her pot and slapped her on her cheek and abused her and he also gagged her mouth and stabbed with his right hand on her stomach, and then he went inside the house, threw the knife in the kitchen portion and thereafter, ran away from the spot. No doubt, there is some discrepancy in the evidence of P.W. 3 and the averments in the complaint regarding the place where the assault was made by the accused on the deceased and also the manner in which he assaulted. But the thing to be noted is P.W. 2 is not an eye-witness. He claims to have been informed by his mother, wife and the daughter. In the cross-examination it is elicited by the defence itself as follows :
(Vernacular matter omitted)
In the cross-examination by the defence it is elicited that some portion of the complaint was not elicited by P.W. 2 and that has been incorporated by the police and the witness has signed what has been written by the police. In view of these admissions of P.W. 2, it is apparent that he is not the author of all the averments in Ex.P2. He is also not an eye-witness. In view of these circumstances, it will not be proper to reject the evidence of P.W. 3 merely on the ground that there is discrepancy between the complaint, Ex.P2, and also the evidence of P.W. 3. The intrinsic work of the evidence of P.W. 3 will have to be assessed independently without reference to the averments regarding the incident in Ex.P2 in view of the answers given by P.W. 2 in his cross-examination as to how Ex.P2 came into existence. Therefore, the argument of the learned counsel for the appellant that P.W. 3 should be disbelieved because of the version of the incident as given in Ex.P2 by the complainant P.W. 2 cannot be accepted.
10. Learned counsel for the appellant has further submitted another ground for disbelieving P.W. 3 by arguing that there was darkness at the time of the incident and even the faces were not visible to each other. P.W. 3 has stated in her evidence that at that time there were no street lamps and it was dark and even the faces of persons could not be seen. But her evidence also discloses that the accused was not a stranger to her. From her evidence, it is clear that the accused had visited the house where Huchawwa was residing many times and it was Huchawwa herself who had told this lady that the person i.e. the accused who was coming at times to the house was her husband. Therefore, there could not have been any difficulty for P.W. 3 to identify the accused person when he came to that house. The question is whether P.W. 3 could have identified him in the darkness. This witness has given evidence with a full sense of responsibility. She has stated that when she looked into the room in the house, she saw a male person. If she were to tell lies, she would have said that the person whom she saw when she peeped into the house was the accused. But she has not stated so. Her further evidence is very natural when she says that the accused and the deceased both came together and thereafter, the deceased fell outside the door and she talked with the accused and asked him as to why he did like that and he replied that he did not do anything. She talked with the accused and the accused had replied to her. In that context it is difficult to hold that P.W. 3 could have committed any mistake in identifying the accused as the assailant who committed assault on the deceased on that night.
11. It has been argued by the learned counsel for the appellant that no blood stains were found inside the house and, therefore, there could not be any possibility of the offence taking place inside the house. The deceased was wearing a saree which was 16.4′ in length and the 3 injuries are on the stomach. The saree was found blood stained. The evidence discloses that the deceased walked with the accused up to the threshold and, thereafter, she fell outside the door. The possibility of the blood being soaked into the saree worn by the deceased cannot be ruled out, in this case and therefore, there could not have been any blood stains found inside the house, as the deceased had walked up to the threshold along with the accused before she fell down outside the door. Therefore, we are of the opinion that the evidence of P.W. 3 is safe to be relied upon. Though the trial Court could not have relied on the evidence of P.W. 5, the evidence of P.W. 3 will be enough in law to convict the appellant for the offence that is alleged against him. Hence, we are of the opinion that there are no grounds to interfere with the Judgment challenged by the appellant in this case.
12. Hence, we proceed to pass the following :
ORDER
13. The appeal is dismissed, making it clear that the accused will be entitled to set off under Sec. 428, Cr.P.C. against the sentence of life imprisonment awarded to him.
14. Appeal dismissed.