JUDGMENT
Mirdhe, J.
1. This appeal is preferred by the State against the judgment dated 10-12-91 passed by the III Addl. Sessions Judge, Belgam, in S.C. No. 25/91 acquitting the respondent-accused for the offence punishable under Sec. 302 IPC.
2. We have heard the learned Government Pleader Shri M. Marigowda and the learned counsel for the respondent accused fully and perused the records of the case.
3. The case of the prosecution is as follows :
That the deceased Sawakka was married to the respondent accused about more than a year prior to her death. At the time of her marriage with the accused, Savakka had not attained puberty. After six months of her marriage, she was sent to her husband’s house. The accused was sleeping with Savakka on the night between 4-10-1990 and 5-10-1990 and since Savakka did not allow the accused to have sexual intercourse with her, he throttled her and committed her murder and thereafter, he consumed poison and attempted to commit suicide but he was saved due to the timely medical help. P.W. 1 the father of Savakka gave his complaint as per Ex. P. 1 and on the basis of Ex. P. 1 the case came to be registered by the police and the investigation was undertaken. After the completion of the investigation the police filed charge-sheet against the accused for the offense under Secs. 302 and 309 IPC.
4. The trial Court has acquitted the respondent accused of the offence punishable under Sec. 302 IPC. It is the grievance of the appellant State that the trial Court has erred in acquitting the accused of the said offence.
5. The trial Court convicted the respondent for the offence punishable under Sec. 309 IPC. The evidence of P.W. 1 who visited the hospital is to the effect that the accused was found admitted in the hospital. P.W. 2 who is the father of the accused has also deposed that the accused was taken to the hospital after he had consumed poison. P.W. 3 is the rickshaw driver who took the deceased to the Government Hospital, Bailhongal, and he was admitted there. P.W. 3 also stated that he found the accused vomiting. P.W. 10 has deposed that the accused was admitted in the hospital and he treated him and after receiving the report of the Chemical Examiner as per Ex. P. 17, he has opined that the accused had consumed poison with a view to commit suicide. Though the evidence led by the prosecution proves beyond reasonable doubt that the accused attempted to commit suicide, he could not have been convicted under Sec. 309 IPC. In view of the ruling of the Supreme Court , P. Rathinam/Nagbhusan Patnaik v. Union of India, wherein the Supreme Court has held that (at pp. 1626, 1630 of Cri LJ) :
“”S. 309 of the Penal Code deserves to be effaced from the statue book to humanise our penal laws. It is a cruel and irrational provision and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State’s interference with the personal liberty of the concerned persons is not called for. Thus S. 309 violates Art. 21, and so, it is void. May it be said that such view would advance not only the cause of humanisation, which is a need of the day, but of globalisation also, adverse sociological effects are caused by the death of the concerned person, and not by one who had tried to commit suicide. In deed, those who fail in their attempts become available to be more or less as useful to the family as they were. So the person to be punished is one who had committed suicide; but, he is beyond the reach of law and cannot be punished. This can provide no reason to punish a person who should not be punished.”
In the said Judgment, their Lordships have held as follows in para 112 (at p. 1630) :
“We, therefore, hold that Section 309 violates Article 21, and so, it is void, May it be said that the view taken by us would advance not only the cause of humanisation, which is a need of the day, but of globalisation also, as by effacing Section 309, we would be attuning this part of our criminal law to the global wave length.”
In view of this ruling which holds Sec. 309 of IPC as violative of Article 21 of the Constitution of India, the trial Court could not have convicted th respondent for the offence punishable under Sec. 309 IPC. Though the respondent has not preferred any appeal against this conviction, we can exercise our inherent powers under Sc. 482 Cr.P.C. and acquit the respondent of the offence under S. 309 IPC. in view of the ruling of the Supreme Court quoted above.
6. The grievance of the State appellant in this appeal is that the trial Court was wrong in acquitting the appellant of the offence punishable under Sec. 302 IPC. The evidence of P.W. 1 who is the father of the deceased is to the effect that his daughter was married to the accused and she had not attained puberty at the time of her marriage and she attained puberty 6 months thereafter and then he sent her to her matrimonial house and on one day at 6.00 a.m. one Yallappa came to his house and informed him that Sawakka has died and he went to the house of the accused and saw the dead body of the deceased lying on the floor of the kitchen room of the house and nobody was present in the house and he went to the police station and then we went to the Government Hospital, Bailhongal, and saw the accused there and he has also stated that he came to know that the accused was admitted in the hospital because he had consumed poison. At one breath he has stated that he did not enquire with the accused but again in the very next breath he was stated that he enquired with him and the accused told him that he had murdered his daughter by throttling her and thereafter he consumed poison. He has given his complaint Ex. P. 1.
7. P.W. 2 is the father of the accused. He has deposed that on the night of the incident he and C.Ws. 4 to 6 were sleeping is padsala of the house and Sawakka and accused were sleeping in the kitchen room and at 5.30 a.m. he came to know that Sawakka had died. His evidence also discloses that the accused had consumed poison and he was taken to the hospital. His further evidence is that the dead body of Sawakka was hanging in the kitchen room and that the father of Sawakka came and separated the body from the rope and covered with a shawl. P.W. 1 & 2 were treated hostile by the prosecution and cross-examined.
8. P.W. 3 has stated that he is a rickshaw driver and he was called to the house of the accused. Accordingly he went to the house of the accused and he found the accused sleeping and vomitting and then he took him in his rickshaw to the hospital.
9. P.W. 4 is the doctor who conducted autopsy on the dead body of Sawakka and gave her report as per Ex. P. 7.
10. Sharanbasu P.W. 5 is the Tahsildar who conducted the inquest proceedings and he has deposed about the same.
11. P.W. 6 is the Asst. Executive Engineer, K.E.B, and he has deposed that there was electricity from 4-10-1990, 6.00 p.m. to 5-10-1990, 6.00 a.m. near shedbal chanel, Bailhongal.
12. P.W. 7 was sought to be examined as an inquest mahazardar but he has turned hositle and the prosecution has treated him hositle by cross-examining him.
13. P.W. 8 is the carrier of the articles to th C.E., Bangalore. He has deposed accordingly.
14. P.W. 9 is the PSI. He has deposed that P.W. 1 appeared before him and lodged the written complaint as per Ex. P. 1 and he started the investigation and after, he registered the case.
15. P.W. 10 is the Medical Officer who treated the accused and gave his report as per Ex. P. 17.
16. P.W. 11 is the Jr. Engineer who has inspected the scene of offence and gave the sketch map of the scene of offence.
17. P.W. 12 is the CPI who took further investigation of the case from the PSI and after investigation filed the charge-sheet.
18. The evidence of P.Ws 1 & 2 the father of the deceased and the father of the accused respectively and the statement of the accused under Sec. 313, Cr.P.C. clearly proves beyond reasonable doubt that the deceased Sawakka was the legally wedded wife of the accused, and that Sawakka had come to her marital house and was staying in the house of the accused. It is further the evidence of P.W. 1 that his daughter Sawakka had not attained puberty at the time of her marriage with the accused, but she attained puberty 6 months later on and thereafter she was sent to the house of the accused. Therefore, the prosecution has been able to prove beyond reasonable doubt that the deceased was the legally wedded wife of the accused and she had not attained puberty at the time of her marriage with the accused and 6 months later on she attained puberty and thereafter, she was sent to the house of the accused.
19. It is the case of prosecution that the deceased had not allowed the accused to have sexual intercourse with her and therefore, the accused throttled her to death and thereafter, he also attempted to commit suicide by consuming poison. There are no eye-witnesses to connect the accused with the offences alleged against him. The guilt of a person can be proved in law either on the evidence of direct eye-witnesses or by circumstantial evidence also. But the standard of circumstantial evidence required for the conviction of a person on the basis of such evidence is laid down by the Supreme Court in many rulings that each circumstance against the accused must be proved beyond reasonable doubt and the chain of the circumstances must be so closely knit so as to exclude all the reasonable hypothesis of the innocence of the accused.
20. In the statement of the accused recorded by the Trial Court under Sec. 313, Cr.P.C. in answer to question 42 the accused has stated as follows :
“On that night myself and Sawakka were sleeping. At 4 a.m. I got up to ease myself. I saw that Sawakka had hanged herself.”
We are aware of the fact that the statement of an accused under Sec. 313, Cr.P.C. cannot be made use of to fill up in the prosecution case, but at the same time it can be looked into to find out if it lends corroboration to the case of the prosecution. In this case P.W. 2 is the father of the accused and he has not supported the prosecution case fully. He has been treated hostile. But the well settled principle of law now is that even the evidence of a hostile witness can be relied upon provided it is found to be acceptable and is free from suspicious circumstances. In view of the answer of the accused himself to question 42 that he and his wife were sleeping together in his house, the evidence of P.W. 2 to the effect that Sawakka and the accused were sleeping together in the kitchen room of the house deserves to be accepted. Therefore, one circumstance that is proved beyond reasonable doubt is that Sawakka and the accused were sleeping together in another room in that house on that night.
21. The next circumstance to be seen is the medical evidence of P.W. 4. P.W. 4 Dr. Lata has deposed that on 5-10-1990 she conducted the autopsy on the dead body of the deceased from 1.35 p.m. to 3.15 p.m. and she has deposed regarding the external injuries as follows :
“Oblique contusions present on the lateral aspect of both the sides of the neck, extending from the front of the neck to the nape of the neck on the back. And superiorily between the lower aspect of the lower jaw and inferiorily up to the clavical on the right side. Contusions are three in numbers on left side and measure 8 cms x 1 cm. contusion is one one right side measuring 7.5 cms x 1 cm. bluish red in colour. An abrasion present about 1/4 cm. x 1/4 cm. on the nape of the neck. Dried blood present. There appears to be diffuse swelling around the neck and lower part of the face up to the mastoid region.”
She has also stated about the internal injuries as follows :
“1. Neck :- Dark red fluid blood with blood clots present in the subcutaneous tissues and muscles of neck.
2. Larynx & Trachea :- The intrinsic muscles of larynx are filled with blood clots. Hybrid bone and langugeal cartilage intact. Mucus membrane of larynx and trachea congested.
3. Lungs :- Both the lungs are congested. Cut section dark red fluid blood oozes on cutting both the lungs.
4. Brain :- Congested.
Cut section petechial haemorrhage present.
5. Stomach :- contains semi-digested food material. Rice is seen. No smell.
6. Liver :- Pinkish purple in colour.
Cut section : Dark red fluid blood oozes out.
She has deposed that the injuries found on the deceased were ante mortem. Her evidence is also to the effect that the reproduction organs of the deceased showed that the deceased was still a virgin. Her reply is like this :
“These organs show that they are more in favour of virginity.”
After receiving the chemical analysis report in respect of the viscera preserved and sent to the Chemical Examiner, the doctor has opined that the ante mortem injuries found on the dead body were sufficient in the ordinary course to cause death of a person. She has also stated that no poison was found in the system of the deceased. She has stated that the death of the deceased was due to asphyxia as a result of throttling. Further she has stated that this was not a case of hanging by a rope. The medical evidence clearly proves beyond reasonable doubt that the deceased had not died due to any poison and injuries sustained by her were ante mortem and they were sufficient in the ordinary course of nature to cause her death and her death was due to asphyxia as a result of throttling and it was not a case of hanging by rope.
22. The third circumstance to be seen is that the medical evidence discloses that the deceased was still a virgin. The case of the prosecution is that the accused committed the murder by throttling her to death as she resisted the accused from having any sexual intercourse with her. The medical evidence in this case to the effect is that the deceased was still a virgin at the time of her death though she was found sleeping with the accused on that night lends corroboration to the prosecution case that the deceased committed her murder as she was not amenable to his attempt for sexual intercourse with her.
23. The evidence of P.W. 1 is to the effect that when he went to the house of the accused on receiving the information of the death of his daughter, he found her body lying on the floor of the kitchen. This is corroborated by his averment in Ex. P. 1 the complaint. Therefore, the further circumstance that is disclosed and proved beyond reasonable doubt by the prosecution is that the dead body was not hanging by any rope when it was found but it was found lying on the floor in the kitchen.
24. The next circumstance is regarding the conduct of the accused. The accused has stated in his statement that the deceased died by hanging herself by a rope. But this explanation is patently false in view of the medical evidence that the death of the deceased was due to throttling and not by hanging by a rope.
25. The next circumstance that is proved beyond reasonable doubt is that the accused attempted to commit suicide by consuming poison. In fact the trial Court convicted him for the offence under Sec. 309, IPC. The evidence on record does not disclose that there was any such reason for this accused to commit suicide on account of any circumstance in his family life. In his statement the accused has stated that he got up at 4 a.m. to answer the call of nature and thereafter he came and found his wife hanging by a rope. The conduct of the accused in consuming poison in the early hours of the morning also is a circumstance that lends corroboration to the prosecution.
26. Now summing up the circumstances proved by the prosecution beyond reasonable doubt against the accused ar as follows :
(1) The medical evidence clearly proves in this case that the deceased died due to ante mortem injuries and her death was due to throttling and not due to hanging by a rope.
(2) The deceased was found to be a virgin even after her death as deposed to by P.W. 4.
(3) The accused and deceased were sleeping together on that night. The deceased was not suffering from any disease. She had not consumed any poison and she was sleeping with her husband in that room on that night and was found dead by throttling.
(4) The accused and the deceased last stayed together in their house. The learned counsel for the respondent cited two rulings of the Supreme Court and submitted that mere last seen together is not enough to hold that the accused committed the murder of the wife. He relied on , Inderjit Singh v. State of Punjab wherein the Supreme Court has held that the sole circumstance that deceased was last seen in the company of the accused was not sufficient to convict the accused. In that case the deceased last seen alive in the company of the accused before he was found dead. But this case is not the case of last seen together but it is the case of last staying together. On this ground this Judgment is distinguishable from the facts of this case. So also in . State of Rajasthan v. Smt. Kamla the Supreme Court has held that the circumstance of last seen together cannot be a ground in that case to convict the accused. But as we have pointed out above, this is not a case of the accused last seen alive in the company of the accused but this is a case where the deceased was last seen alive not only in th company of the accused but the accused and the deceased stayed together and later on the deceased was found to have been done to death by throttling. In our opinion all these circumstances which are proved by the prosecution against the accused form such a closely knit chain of circumstances against the accused which exclude all the reasonable hypothesis of the innocence of the accused. Added to this, the last circumstance is the conduct of the accused.
(5) The accused attempted to commit suicide by consuming some poison on that morning, and also a false explanation was sought to be given by the accused as well as his father that the deceased died due to hanging as she hanged herself by a rope. In view of these circumstances which are consistent only with the guilt of the accused, the trial Court was not justified in acquitting the accused of the offence punishable under Sec. 302, IPC. For all these reasons, we proceed to pass the following :
ORDER :- In exercise of the powers vested under Sec. 482, Cr.P.C. we set aside the Judgment of the trial Court convicting the respondent for the offence punishable under Sec. 309, IPC, and acquit him of the said charge.
(b) The appeal preferred by the State is allowed and the Judgment of the trial Court acquitting the accused of the offence under Sec. 302, IPC, is set aside and the accused is convicted for the same and he is sentenced to undergo RI for life. His bail bonds stand cancelled and he is ordered to be taken into custody forthwith for undergoing the sentence awarded to him.
27. Order accordingly.