Karnataka High Court The State Of Karnataka vs Rajanaika S/O Lachanaika on 21 February, 2014Author: K.Bhakthavatsala And K.N.Keshavanarayana

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 21ST DAY OF FEBRUARY 2014 PRESENT

THE HON’BLE Dr. JUSTICE K.BHAKTHAVATSALA AND

THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA CRIMINAL APPEAL No.300 OF 2010 (A)

BETWEEN:

THE STATE OF KARNATAKA

BY AJJAMPURA POLICE. … APPELLANT [BY SRI.K.R.KESHAVAMURTHY, ADDL. SPP]

AND:

RAJANAIKA

AGED 29 YEARS

S/O. LACHANAIKA

RESIDING AT KARADIPURA VILLAGE

TARIKERE TALUK.

…RESPONDENT

[BY SRI.A.H.BHAGAVAN &

SRI.A.N.RADHAKRISHNA, ADVOCATES]

*****

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) & (3) OF THE CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 03.12.2009 PASSED BY THE ADDITIONAL SESSIONS JUDGE, CHIKMAGALUR IN S.C.NO.102/2008- ACQUITTING THE RESPONDENT/ACCUSED FOR THE 2

OFFENCES PUNISHABLE UNDER SECTIONS 498-A AND 302 OF IPC.

RESERVED ON : 05.02.2014

PRONOUNCED ON : 21.02.2014

THIS CRIMINAL APPEAL BEING HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, K.N.KESHAVANARAYANA, J., DELIVERED THE FOLLOWING: JUDGMENT

This appeal filed under Section 378 (1) & (3) of Code of Criminal Procedure by the State is directed against the judgment and order dated 03.12.2009 passed by the Additional Sessions Judge, Chikmagalur in S.C.No.102/2008, acquitting the respondent-sole accused of the charges leveled against him for the offences punishable under Sections 498A and 302 of Indian Penal Code.

2. During the course of judgment, respondent herein would be referred to as accused, the rank which he held in the Trial Court.

3. The accused was charge sheeted by DYSP Anti- Dowry Cell C.O.D, Bangalore for the offences punishable under Sections 498(A) & 302 of Indian Penal Code alleging 3

that the accused being the husband of deceased Sheela Bai, subjected her to physical and mental cruelty suspecting her character and in that background, at about 4.00 a.m. on 22.04.2008, while the deceased and the accused were sleeping inside the house in Karadipura Village, the accused intentionally committed murder of his wife Sheela Bai by fisting on her chest and abdomen and suffocating her with a pillow.

4. According to prosecution, Shekarnaika-father of the deceased on being informed about the incident, rushed to the scene of occurrence and thereafter lodged a report before the jurisdictional police, based on which case came to be registered and investigation was taken up.

5. During the investigation, the accused surrendered himself before the Court. Thereafter, he was subjected to judicial custody. On completion of investigation, charge sheet came to be laid.

6. On committal of the case to the Court of Sessions, the accused, when produced from judicial custody, pleaded 4

not guilty for the charges leveled against him and claimed to be tried.

7. In order to bring home the guilt of the accused for the charges leveled against him, the prosecution examined PWs 1 to 21, relied on documentary evidence Exs.P1 to P28 and M.Os 1 to 4. During the course of cross- examination of PWs 8 & 9, the defence got marked Exs.D1 to D4, which are portions of the statement of witnesses made before the I.O. under Section 161 of Code of Criminal Procedure.

8. During his examination under Section 313 of Cr.P.C., by the learned Sessions Judge, the accused denied all the incriminating circumstances appearing against him in the evidence of prosecution witnesses. The accused did not choose to lead any defence evidence. However, the defence of the accused was one of total denial and that of false implication. He also took up plea of alibi contending that on the previous evening he left the village along with a load of Banana for business purpose 5

and stayed away from the village during that night and thus, he was not present in the house and he came to know about the death of his wife only on his return to the village on the following day.

9. After hearing both the sides and on appreciation of oral and documentary evidence, the learned Sessions Judge by the judgment under appeal held that though the evidence placed by the prosecution satisfactorily established the death of the deceased as homicidal, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt for the charges leveled. Therefore, the learned Sessions Judge recorded an order of acquittal. Aggrieved by the said judgment of acquittal, the State is in appeal before this Court.

10. Upon service of notice of this appeal, respondent-accused has appeared through his learned counsel.

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11. The case of the prosecution as projected before the Trial Court was as under:

PW8-Shekarnaik and PW9-Ambika Bai are the father and mother of deceased Sheela Bai. PW3-Lakshmi Bai is the maternal grandmother of the deceased. They are residents of Hosalli Tanda in Tarikere Taluk. The deceased Sheela Bai was married to accused on 21.04.2003. After the marriage, the deceased joined her husband in the matrimonial home at Karadipura Village. Initially PW11-Devalibai-mother and Laccha Naika-father of the accused were also staying in the same house. However, after some time, the parents of the accused started staying separately in the same house. Initially, the relationship between the accused and the deceased was cordial. From out of the said wedlock, the deceased gave birth to one son and two daughters. PW4-Tulasiprasad is the eldest child of the deceased and accused. After couple of years, the accused started suspecting the character of the deceased and in that background, he used to harass 7

and subject her to mental and physical cruelty. About 3 days prior to 22.04.2008, PW3-Lakshmi Bai, grandmother of the deceased came to the house of the deceased and accused to see her grand daughter and great grand children and stayed in their house for couple of days. During the night of 21.04.2008, there was some religious function in the house of the accused and the deceased, wherein some Pooja was performed, in which they had sacrificed a hen and all the family members including the parents and brother of accused had their dinner together. After the dinner, the accused, deceased and their three children including PW.4, slept inside the house, while PW3-Lakshmi Bai and PW11-Devalibai slept outside the house. While they were so sleeping at about 4.00 a.m. on 22.04.2008, PW3-Lakshmi Bai woke up on hearing the cry of the children of the accused inside the house. Immediately, when she went near the door of the house, she saw the accused going away from the house and inside the house she saw her grand daughter Sheela Bai lying on the floor. On examination, she found her grand 8

daughter dead. At that juncture, PW4-Tulasiprasad, son of the deceased who was inside the house crying, on being asked, he told PW3 that on hearing sound he woke up and saw his father sitting on the chest of the deceased and by pressing the pillow on her mouth, killed her. Immediately, PW.3 raised hue and cry. On hearing the same, PW11- Devalibai and others came there. By that time Laccha Naika, father of the accused, PW14-Lokyanaika, elder brother of the accused and others came and shifted the dead body to the veranda in front of the house of the accused. In the meantime, someone informed PW8 about the incident. On hearing the same, PW8 and his wife PW9 and others came to the house of the accused; saw the dead body of the deceased Sheela Bai kept in the veranda. At that time PWs 3 and 4 informed PW8 as to how the accused killed the deceased. Thereafter, PW8 went to Ajjampura Police Station and lodged a report as per Ex.P12 at about 10.35 a.m. on 22.04.2008. PW7-Dilip Kumar K.H., PSI and S.H.O, on receipt of Ex.P12, registered the case in Crime No.61/2008 and submitted 9

the FIR to the jurisdictional Court as per Ex.P11. On being requested by PW7, PW6-Jayamadhava P., Tahsildar and Taluka Executive Magistrative, Tarikere, in the presence of panchas conducted inquest over the dead body between 2.00 p.m. and 4.00 p.m. on 22.04.2008 in the veranda of the house of the accused. During inquest, PW.6 noticed some external injuries on the chest of the dead body. During inquest, PW6 recorded the statements of PWs 3, 4 and others and submitted report Ex.P9 with his opinion as to the apparent cause of death. Thereafter, the dead body was subjected to post mortem examination. PW5-Dr.G.Balakrishna, the Medical Officer at Gadihalli who conducted post mortem examination on the dead body of Sheela Bai between 4.00 p.m. and 6.00 p.m. on 22.04.2008 noticed external and internal injuries, fracture of right clavicle, fracture of 2nd, 3rd and 4th rib on left side in mid clavicular line, fracture of 2nd and 3rd rib on the left side in mid clavicular line, rupture of right upper lobe of lungs, rupture of right lobe of liver. During post mortem examination he preserved the viscera and sent the 10

same to F.S.L. examination, which revealed that there was no presence of any poisonous substance in the viscera. Thereafter PW5 submitted his final opinion that the death was due to shock and hemorrhage as a result of injury to vital organs viz., lungs and liver. PW21-Suresh Naik, Circle Inspector, Tarikere who took up further investigation visited the scene of occurrence, drew up spot mahazar as per Ex.P27, seized some incriminating material objects viz., M.Os 1 to 4, prepared a rough sketch of the scene of occurrence as per Ex.P28, got the photographs of the dead body through a photographer, recorded statement of witnesses. On his request, PW2- G.S.Mohan, Junior Engineer, PWD Tarikere, prepared a sketch of the scene of occurrence as per Ex.P2. During investigation, PW.21 obtained the house register extract- Ex.P1 from PW1-Seetappa-Secretary, Grama Panchayat relating to the house of accused standing in the name of father of accused. On coming to know of the accused surrendering before the jurisdictional Court and he having been remanded to judicial custody, PW.21 obtained police 11

custody of accused for a day. After collecting the post mortem report-Ex.P3 and the final opinion as to the cause of death as per Ex.P5, PW.21 handed over the further investigation to PW.20-Devasingh Naik, DYSP Anti-dowry Cell C.O.D., Bangalore who on completion of investigation, laid charge sheet.

12. As could be seen from the judgment under appeal, the learned Sessions Judge having regard to the contents of the inquest report as well as the post mortem report and the evidence of PW5-Dr.Balakrishna and the final opinion as to the cause of death has recorded a finding that the prosecution has satisfactorily established that the death of the deceased was homicidal. With regard to the charge under Section 498A of IPC, the learned Sessions Judge has held that though the evidence on record to some extent indicates that the deceased had been subjected to some amount of cruelty or harassment, the same cannot be accepted as cruelty within the meaning of explanation to Section 498A of Indian Penal 12

code. Therefore, the learned Sessions Judge has held that the guilt of the accused for the offence punishable under Section 498A of IPC is not proved. With regard to the charge under section 302 of Indian Penal code, the learned Sessions Judge has declined to place reliance on the testimony of PW4-Tulasiprasad, son of the deceased and accused on the ground that he is a boy aged about 5 years and having regard to his tender age, possibility of his having been tutored cannot be ruled out and in the absence of any corroboration from independent source, it is highly unsafe to place reliance on the testimony of PW4. The learned Sessions Judge has declined to place reliance on the testimony of PW3 also on the ground that her evidence is inconsistent and discrepant and in view of the fact that she had a poor eye- sight and since there was no source of light inside the house, her evidence that she saw accused going out of the house cannot be accepted. In the light of the evidence of PWs11 & 14, the mother and brother of the accused, the learned Sessions Judge has held that the defence plea of alibi is probablised to some 13

extent. Having regard to the medical evidence that the urinary bladder of deceased was found empty, the learned Sessions Judge has proceeded to hold that possibility of deceased having gone out of the house in the early hours to answer the call of nature and at that time she having met her tragic end cannot be ruled out. According to the learned Sessions Judge, this is further corroborated from the contents of the sketch-Ex.P2 prepared by PW2 wherein the place of occurrence is shown outside the house. Therefore, the learned Sessions Judge has held that the evidence placed on record does not establish the complicity of the accused for the homicidal death of the deceased. The learned Sessions Judge referring to the well settled principles that the accused cannot be convicted under doubtful circumstances and that suspicion, however grave it may be, cannot take the place of proof and that where two views are possible, the one favouring the accused shall be taken into consideration, has proceeded to extend the benefit of doubt to the accused, and consequently has recorded an order of 14

acquittal. The correctness of these findings is questioned in this appeal.

13. We have heard Sri.K.R.Keshavamurthy, Additional State Public Prosecutor for Appellant State and Sri.A.H.Bhagavan, learned counsel for accused.

14. Learned Additional State Public Prosecutor contended that the judgment under appeal is highly perverse and illegal inasmuch as the learned Sessions Judge for irrelevant reasons has discarded the cogent and consistent evidence of PW4, which by itself would establish the guilt of the accused and, if any corroboration for the testimony of PW4 was required, the testimony of PW3 and the factum that the deceased met homicidal death in the early hours of 22.04.2008 inside the house where the only person who could be the author of such act was the accused, would corroborate the testimony of PW4, as such, the testimony of PW4 could not have been rejected. He further contended that the learned Sessions Judge has failed to notice that the evidence of PWs 3 and 15

4 would clearly establish that the accused was very much present in the house during the intervening night of 21/22.04.2008, as such the plea of alibi raised by the accused was a false plea, which by itself would provide the missing link, if any, to establish the complicity of the accused to the homicidal death of the deceased. He further contended that the learned Sessions Judge has committed serious error in holding that the defence plea of alibi is probablised by the evidence of PWs. 11 & 14, who are the mother and elder brother of the accused though they have been declared hostile for the prosecution, as such, their evidence is highly discredited and therefore, no reliance could have been placed on the evidence of these witnesses in that regard. He further contended that in catena of decisions, it has been held that when the accused puts forth plea of alibi, he has to prove the same satisfactorily and since, in the case on hand no acceptable evidence is produced by the accused in proof of his plea of alibi, the learned Sessions Judge is not justified in holding that the plea of alibi is probablised. He further contended 16

that the learned Sessions Judge has failed to appreciate that when there is cogent and acceptable evidence, which establishes the presence of the accused in the house during the night of 21.04.2008 and the accused being the husband of the deceased is under an obligation to explain as to how his wife met homicidal death inside the house during the intervening night of 21/22.04.2008 and since, the accused has not come out with any kind of explanation in this regard, the learned Sessions Judge is not justified in acquitting the accused. He further contended that the findings recorded by the learned Sessions Judge that since, the urinary bladder of the deceased was found empty at the time of post mortem examination, it would suggest that the deceased might have gone out of the house for answering the call of nature where she might have met her tragic end, is based on mere surmises and conjectures, and there are no acceptable basis for such inference. He further contended that the contents of the sketch-Ex.P2 prepared by PW2 could not have been relied upon to assume that the scene 17

of occurrence was outside the house, since, PW2 was not an eye-witness and the evidence of PW2 does not indicate as to who showed him the place of occurrence as depicted in Ex.P2. Under these circumstances, the learned Sessions Judge is not justified in drawing an inference that there is serious doubt as to the actual place of occurrence. He further contended that if the evidence placed on record by the prosecution is read as a whole, it would clearly establish that the accused being the husband of the deceased was responsible for the homicidal death of the deceased, as such, the judgment of acquittal recorded by the learned Sessions Judge cannot be sustained and therefore, it is liable to be set aside and the accused is liable to be convicted and sentenced accordingly.

15. Per Contra, Mr.A.H.Bhagwan, learned counsel appearing for the accused sought to justify the judgment under appeal, contending that the judgment under appeal does not suffer from any perversity or illegality warranting 18

interference by this Court. It is his contention that the learned Sessions Judge on proper appreciation of oral as well as documentary evidence and by assigning cogent and proper reasonings has found that the evidence on record does not establish beyond reasonable doubt complicity of the accused to the crime and since, such finding recorded by the learned Sessions Judge is sound and reasonable having regard to the evidence on record, this Court sitting in appeal against the judgment of acquittal cannot interfere with the said judgment. He further contended that the High Court sitting in appeal over the judgment of acquittal recorded by the Sessions Court can interfere with such judgment only if there exist “substantial and compelling reasons” for doing so and such substantial and compelling reasons can be held to exist, where the judgment of acquittal is palpably wrong having regard to the facts of the case; or where the decision of the trial Court is based on erroneous view of law; or where the entire approach of the trial Court in dealing with the evidence was patently illegal; or where the 19

trial Court’s judgment was manifestly unjust and unreasonable; or where the trial Court has ignored material evidence or misread the material evidence or has ignored material documents and since, in the case on hand, no such infirmity is pointed out, no interference by this Court is warranted. He further contended that though the evidence on record establishes the presence of injuries on the deceased, which reasonably leads to an inference that the death of the deceased was homicidal, the evidence placed by the prosecution does not beyond reasonable doubt, establish the complicity of the accused for the homicidal death of deceased and therefore, the learned Sessions Judge is justified in recording an order of acquittal. He further contended that the learned Sessions by pointing out various circumstances, has held that it is highly unsafe to place reliance on the testimony of PW4 who is a person of tender age on account of which, possibility of he having been tutored by his grand parents cannot be ruled out and therefore, the learned Sessions Judge is justified in not placing reliance on the testimony 20

of PW4. He contended that even otherwise evidence of PW4 is not consistent with medical evidence as to the nature of injuries and cause of death as such, his testimony is highly unreliable. He further contended that the learned Sessions Judge has pointed out as to how the testimony of PW3 is highly inconsistent and discrepant, as such; her evidence has been rightly disbelieved by the learned Sessions Judge. He also contended that since the alleged incident was stated to have occurred under pitch darkness, it was impossible for PW3, an aged lady suffering from blurred vision to have seen the accused running away from the house, therefore, the learned Sessions Judge is justified in holding that the evidence placed by the prosecution does not establish the presence of the accused in the house. He contended that having regard to the evidence of PWs. 11 & 14, the plea of alibi raised by the accused is highly probablised and since, the accused is not required to prove the defence beyond reasonable doubt unlike the prosecution, the learned Sessions Judge is justified in holding that the plea of alibi 21

to some extent is substantiated. He further contended that the evidence placed on record by the prosecution in the form of sketch-Ex.P2 prepared by PW2 itself would create a great amount of doubt as to the actual place of occurrence, since, in Ex.P2, the scene of occurrence is shown near the open well outside the house, while according to the case of the prosecution, the alleged incident occurred inside the house and since the evidence or record also indicates that the dead body had been moved from the actual place of occurrence, in the absence of any evidence as to who moved the dead body and from which place, the learned Sessions Judge is justified in holding that there is serious doubt as to the scene of occurrence. He further contended that having regard to the contents of Post-Mortem report that the urinary bladder was empty, the inference drawn by the learned Sessions Judge on that basis that the deceased might have gone out of the house for answering the call of nature where she appears to have met her tragic end, is sound and reasonable, and this inference is fortified by the 22

contents of Ex.P.2 where the place of occurrence is shown near the open well outside the house. Therefore, the learned counsel contented that the learned Sessions Judge is justified in recording the judgment of acquittal and there are no reasons for interfering with the well reasoned judgment of acquittal.

16. In the facts and circumstances of the case and in the light of the submissions made by both the sides, the points that arise for our consideration are: (i) Whether the learned Sessions Judge is not justified in holding that the prosecution has failed to establish the complicity of the accused for the homicidal death of the

deceased Sheela Bai?

(ii) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?

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17. We have perused the records secured from the trial Court and have read the oral as well as documentary evidence and the judgment under appeal.

18. The law as to the scope of interference by the High Court sitting in appeal against the judgment of acquittal recorded by the trial court is well-settled. In Ghurey Lal Vs. State of U.P. [ (2008) 10 SCC 450] though the Apex Court has held that the Appellate Court may review the evidence in appeal against the acquittal under Section 378 and 386 of Cr.P.C. and its power of reviewing the evidence is wide and it can re-appreciate the entire evidence available on record and also can review the trial court’s conclusion with respect to both facts and law, it has been held in the said decision that the accused is presumed innocent until proven guilty and the accused possessed this presumption when he was before the trial court and the trial court’s acquittal bolsters the said presumption. It is further held that due or proper weight and consideration must be given to the trial court’s 24

decision more especially when a witness’s credibility is at issue and it is not enough for the High Court to take a different view of the evidence and there must also be substantial and compelling reasons for holding that the order of trial court was wrong.

19. After referring to several earlier judgments, the Apex Court has held that the Appellate Courts should follow the well-settled principles crystallized by number of judgments if it is going to over-rule or otherwise disturb the trial court’s acquittal and it would do so when it has “very substantial and compelling reasons”. The Apex Court has illustrated certain instances which could constitute “very substantial or compelling reasons” as under:-

“i) The trial court’s conclusion with regard to the facts is palpably wrong;

ii) The trial court’s decision was based on an erroneous view of law;

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iii) The trial court’s judgment is likely to result in “grave miscarriage of justice”; iv) The entire approach of the trial court in dealing with the evidence was patently

illegal:

v) The trial court’s judgment was manifestly unjust and unreasonable:

vi) The trial court has ignored the evidence or misread the material evidence or has

ignored material documents like dying

declaration/report of the ballistic expert, etc.”

Of course, as observed by the Apex Court, the list is only illustrative and not exhaustive. Again in S. Anil Kumar Vs. State of Karnataka [(2013) 7 SCC 219] it has been held that, only in exceptional cases, where there are compelling circumstances and where the judgment in appeal is found to be perverse, the High Court can interfere with the order of acquittal and that interference in a routine manner 26

where the other view is possible should be avoided, unless there are good reasons for interference.

20. Keeping in mind the aforesaid well-settled principles, we proceed to consider the case on hand.

21. The learned Sessions Judge as noticed supra, after referring to the contents of the inquest report and the post mortem report as well as the oral evidence of the Investigating Officer who conducted the inquest and the oral evidence of the Doctor who conducted the post mortem examination, has recorded a finding that the prosecution has proved the death of the deceased as homicidal.

22. Perusal of the records would also indicate that before the trial Court the accused had not seriously disputed the fact that his wife Sheela Bai met a homicidal death. Perusal of the contents of the inquest report- Ex.P9, the contents of the post mortem report-Ex.P3 as well as the oral evidence of PW6-the Taluka Executive 27

Magistrate who held inquest and the oral evidence of PW5- Dr.G.Balakrishna, who conducted post mortem examination, clearly establishes that there were five external injuries on the dead body and the deceased had suffered fracture of right clavicle, fracture of 2nd, 3rd and 4th rib on left side in mid clavicular line, fracture of 2nd and 3rd rib on the left side in mid clavicular line, rupture of right upper lobe of lungs, rupture of right lobe of liver. The Doctor has opined that the death was due to shock and hemorrhage as a result of injury to vital organs viz., lungs and liver. The above evidence is neither challenged nor controverted.

23. In the light of the uncontroverted evidence, we are of the considered opinion that the learned Sessions Judge is justified in holding that the death of the deceased was homicidal. The said finding, in our opinion, is sound and reasonable regard being had to the evidence on record. We find no perversity or illegality. Even before this Court, the learned counsel for the accused did not 28

seriously question the correctness of the said finding recorded by the trial Court. Therefore, we hold that the death of the deceased was homicidal.

24 As noticed supra, according to the prosecution, the accused being the husband of the deceased was responsible for the homicidal death of the deceased. In order to establish this fact, the prosecution relied on the direct evidence of PW4, who is none other than the son of the accused and the deceased as well as the circumstantial evidence. PW4 is shown to be aged about 5 years as on the date of the homicidal death of the deceased. According to the prosecution, he was sleeping inside the house along with his parents and two siblings who are younger to him. According to the prosecution, PW4 saw the accused sitting on the chest of the deceased while she was sleeping and pressing her face with a pillow and causing her death. Thus, according to the prosecution, PW4 is an eye-witness.

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25 As noticed supra, the learned Sessions Judge has found it difficult to place reliance on the testimony of PW4 mainly on the ground that he is a boy of tender age and therefore, possibility of his having deposed as tutored cannot be ruled out.

26 PW4 being the son of the deceased and the accused and regard being had to the fact that he was aged about 4 ½ to 5 years at the time of the alleged offence, it is reasonable to hold that he was residing with his parents, more so, in the absence of any contention on behalf of the accused that PW4 was not staying with his parents. Therefore, the presence of PW4 in the house where the incident said to have occurred is quite natural. When PW4 was brought before the Court to tender evidence, having regard to the fact that he was aged about 5 years, the learned Sessions Judge before permitting the examination of the said witness had put some preliminary questions and after being satisfied that the witness is in a position to understand the questions and capable of giving rational 30

answers, permitted the examination of the said witness. In his oral evidence PW4 has stated that the accused is his father, deceased is his mother and according to him, his father killed his (PW4’s) mother by pressing the neck and thereafter by opening the door of the house ran away from the place. He has further stated that while he was sleeping he woke up on hearing sounds and at that time, he saw his father sitting on the chest of his mother and pressing the neck and ran away from the place. The witness has been cross-examined wherein he has stated that he does not know the date and day of his evidence. He does not know as to who is the Tahsildar, Circle Inspector. He does not know as to whether he gave any statement before the Tahsildar or Circle Inspector of Police. He does not know as to how much hours constitutes a day. It is further elicited that on the date of his evidence, he was brought to the Court house by his grand mother from her house. According to him, before he started staying in his maternal grand mother’s house, he was staying with his paternal grand parents. He has denied the suggestion 31

that from his paternal grand parents’ house he was forcibly taken by his maternal grand parents. At that stage, it appears the witness started crying in the witness box, which has been noted by the learned Sessions Judge. He has denied the suggestion that he has been tutored by his maternal grand parents to state in Court that his father killed his mother. He admits that he had not stated before anyone that his father ran away from the place, however, has denied the suggestion that as per the dictate of the police he has deposed that fact before the Court. It is elicited from him that he does not know as to what is meant by telling truth and falsehood. He has denied the further suggestion that he has deposed falsely as tutored by his grand mother. The learned Sessions Judge has noticed that the witness was crying throughout his evidence before the Court.

27 Now the crucial question is as to whether the testimony of this witness deserves to be accepted or not. The term ‘child witness’ is not found either in the 32

Evidence Act or in the Code of Criminal Procedure or in Indian Penal Code. The said expression have been derived from the provision of Section 118 of the Evidence Act, which deals as to who may testify. According to Section 118 of the Evidence Act ‘all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.’ Thus, as per Section 118 of the Evidence Act all persons are competent to testify unless the Court considers that by reason of any of the factors mentioned in the said Section any person is incapable of understanding the questions put to him and of giving rational answers. In the light of this, whenever a witness of a tender age is brought before the Court for giving evidence, before finding out as to whether he is competent to testify, it is incumbent on the part of the concerned Court to find out as to whether the witness is capable of understanding the questions put to him and 33

giving rational answers. In catena of decisions, it has been held that testimony of the child witness should be accepted only after great caution and circumspection. The rational behind this is that it is common experience that a child witness is more susceptible to tutoring and on account of fear or inducement he can be made to depose about things, which he had not seen. Therefore, before accepting the evidence of a witness who is of tender age even after the Court finding that the witness is capable of understanding the questions put to him and giving rational answers, the Court should rule out the possibility of the witness having been tutored or witness having deposed under fear or inducement. In the case of Bhagwan Singh and Others vs. State of M.P. reported in AIR 2003 SC 1088, the Apex Court has held that “law recognizes the child as a competent witness, but a child particularly at such tender age of 6 years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be 34

relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony.”

28 In this background, the testimony of PW4 is required to be evaluated. No doubt, since PW4 was aged about 5 years, the learned Judge after putting some preliminary questions to the witness was satisfied about the capacity of the witness to understand the questions and to give rational answers. In the cross-examination, he has denied the suggestion that he has been tutored by his maternal grand parents. Merely, because the witness was staying with his maternal grand parents and on the date of his deposition he was brought to the Court by his maternal grand mother that by itself cannot be a circumstance to infer that he has been tutored. The fact that the witness was crying all through his evidence before the Court as noticed in the deposition sheet, has been 35

viewed by the learned Judge as a circumstance to indicate that he has been tutored. On the other hand, the witness being the son of the deceased was deposing against his own father. According to the witness, in front of his own eyes, he saw his mother being killed by his father. It is possible that by recalling said scene; the witness might have started crying. That circumstance in our considered opinion would not lead to an inference that the witness has been tutored. Reading of the entire cross-examination of this witness, in our considered opinion does not indicate any possibility of the witness having been tutored. 29 As noticed supra, the presence of PW4 in the house is quite natural. The presence of PW3-the maternal grand mother of the deceased in the house of the accused on that day is not disputed. In fact, the presence of PW3 on that day in the house of accused has been spoken to by PWs 11 & 14 who are the mother and elder brother of the accused. PW3 in her evidence has stated that on 21.04.2008 evening, there was some religious function in 36

the house of the accused, when they made sacrifice of animal and had non-vegetarian dinner and thereafter, the deceased, accused and their three children slept inside the house while she and PW11 slept outside. The evidence of PW3 that PW4 slept inside the house has not been challenged in the cross-examination. Of course, PW11-the mother of the accused in her examination-in-chief has stated that after the dinner, PW4 slept with his paternal grand father in the mango grove at a distance of about a mile from the house. PW11 has been declared hostile by the prosecution and she has been cross-examined by the learned Public Prosecutor with reference to her earlier statement said to have been made by her before the Investigating Officer and recorded as per Section 162 of Code of Criminal Procedure. This witness has obvious reasons in not supporting the case of the prosecution, since, the accused is none other than her own son. It is too much for anyone to expect that a person like PW11 being the mother of the accused would support the case of the prosecution and thereby send her own son to gallows. 37

Therefore, it is quite natural for PW11 in not supporting the case of the prosecution. Though in the examination- in-chief, PW11 has stated that PW4 slept with his grand father in the mango grove, on that basis it cannot be said that PW4 was not present in the house during that night. As noticed supra, the positive evidence of PW3 that PW4 slept inside the house has not been challenged in the cross-examination. PW11 has not been cross-examined by the defence. Though PW11 has stated in her examination- in-chief that her statement has not been recorded by the police, PW21-Suresh Naik, Circle Inspector who was the Investigating Officer of the case has stated in his evidence that on 23.04.2008, he examined and recorded the statement of PW11-Devalibai and that PW11 has stated before him as per Ex.P23. Similarly, PW20-Devasingh Naik, who took up further investigation from PW21, has stated that on 10.07.2008, he recorded the further statement of PW11 who has stated before him as per Ex.P24. There is no serious cross-examination to these Investigating Officers about they having recorded the 38

statement of PW11. Thus, the evidence on record establishes that during investigation PW11 was examined and her statement was recorded as required by Section 162 of Code of Criminal Procedure. It is not brought out in the cross-examination of PW11 by the defence that during her examination by the Investigating Officer she had stated that during that night PW4 was sleeping with his grand father in the mango grove nor it is brought out in the cross-examination of PWs 20 & 21 that PW11, during her statement had stated the aforesaid fact. Thus, for the first time only before the court, PW11 has stated that during that night PW4 was sleeping in the mango grove along with his grand father. Therefore, it is reasonable to infer that this part of evidence of PW11, was only intended to create a doubt about the presence of PW4 in the house, since, he had been projected as an eye- witness to the incident. PW11 has been highly discredited by proving her previous statement. Therefore, on the basis of her statement for the first time only before the Court that PW4 was sleeping with his grand father in the 39

mango grove, the presence of PW4 in the house cannot be doubted. Yet another reason assigned by the learned Sessions Judge to disbelieve the testimony of PW4 is that there was no source of light inside the house and even if PW4 were to be inside the house he could not see as to what was going on. The evidence on record does not indicate that there was no source of light inside the house. In rural areas, it is quite natural to keep a small lamp (Bed lamp) while sleeping in a room or house, more so when there are small children or infants. Therefore, in the absence of any evidence that there was no light inside the house, it cannot be said that PW4 could not see as to what transpired. PW4 has categorically stated that after hearing the sounds, he woke up and at that time he saw his father sitting on the chest of his mother and pressing her neck. Of course, from the medical evidence it is noticed that the cause of death was shock and hemorrhage, as a result of injury to vital organs viz., lungs and liver and the deceased had sustained fracture of clavical bone as well as number of ribs on either side. 40

Therefore, it is contended that the evidence of PW4 that the accused pressed the neck of the deceased is not corroborated by medical evidence. In other words according to defence this part of the evidence of PW4 is inconsistent with the medical evidence. We find no force in this contention. What has been stated by PW4 is that when he woke up, he saw his father sitting on the chest of the deceased and pressing the neck. It is necessary to note that as per the contents of the post mortem report as well as the oral evidence of PW5-Dr.G.Balakrishna, there was an oval shape abrasion mark over supra sternal notch that is in between collar bone on lower 1/3rd of neck measuring 1.5 c.m. reddish surface ante mortem in nature, and fracture of medial 1/3rd of the right clavical. If these injuries are taken into consideration, the say of PW4 that when he woke up, he saw his father sitting on the chest of the deceased and pressing the neck cannot be stated as inconsistent with the medical evidence. Therefore, we are of the considered opinion that there are 41

no circumstances to discard the testimony of PW4 on the ground of inconsistency with medical evidence.

30. As held in catena of decisions, before accepting the testimony of child witnesses and acting thereon, the Court as a rule of prudence has to look for some corroboration. We are of the considered opinion that the evidence of PW3 on record would provide the needed corroboration to the testimony of PW4. PW3 in her oral evidence has stated that after the dinner in the night of 21.04.2008, both the accused and the deceased along with their three children slept inside the house, while she and PW11 slept outside and at about 4.00 a.m. she woke up on hearing the cries of the children inside the house and immediately she got up and went near the door of the house, at that time the accused went out of the house in a hurry and when she went inside, she saw the deceased lying on the floor and on examination, she was found dead. It is her further say that on enquiry, PW4 told her that his father killed the mother. As noticed supra, the 42

presence of PW3 in the house of the accused on that day is not disputed. On the other hand, it is established by the very evidence of PWs 11 & 14. The learned Sessions Judge has rejected the testimony of PW3 on the ground that her evidence is inconsistent and discrepant. It is well settled law that the testimony of a witness cannot be discarded on some minor inconsistency or discrepancy. On perusal of the entire evidence of PW3, we find no such circumstance, which has discredited her testimony, nor any glaring inconsistency has been brought out. In the examination-in-chief, she has stated that when she went near the house she saw the accused dragging the deceased by holding her tuft towards the door. This evidence is sought to be shown as an improvement on the ground that the said fact has not been disclosed in her statement before the police. When a suggestion was put to her in this regard in the cross-examination, she has sated that she does not know as to whether she has made such a statement before the police or not. However, it is necessary to note that during the cross-examination of 43

PWs 20 & 21, who are the I.Os and who said to have examined and recorded the statement of PW3, this omission has not been put to them. Thus, it is not proved by the defence that this part of evidence of PW3 was an omission, as such it is an improvement during the evidence. The evidence of PW3 is doubted on the ground that she had poor eye-sight and therefore, she could not see the accused going out of the house and since, there was no source of light, she could not have seen anyone going out of the house. No doubt, in the cross examination of PW3, it is elicited that she has blurred vision. However, it is not elicited from her that she has poor eye-sight and is unable to see. Even if there was no source of light, it was not that difficult for this lady to identify the accused who is none other than the husband of her grand daughter, going out of the house, more so, having regard to the fact that when she slept outside the house, the only persons inside the house were the deceased, accused and their three young children and if at all anyone had gone out of the house when she went near 44

the door on hearing the cries of the children, it should be none other than the accused. Therefore, her say that when she went near the door of the house she saw the accused going out of the house, cannot be rejected on the ground that she had a poor eye-sight and there was no source of light. It is in the evidence of PW3 as well as PW11 that in the night of 21.04.2008, there was a Pooja in the house of the accused and they had sacrificed a hen and had non-vegetarian dinner. This circumstance highly probablises the presence of the accused in the house. It is highly difficult to believe that in the absence of the accused, the Pooja would have been performed. Therefore, the evidence of PW3 clearly establishes the presence of the accused in the house during that night. Thus, the evidence of PW3 provides corroboration to the testimony of PW4. The evidence of PW3 also proves the previous statement of PW4. According to Section 157 of the Evidence Act, former statement of a witness may be proved to corroborate latest testimony as to the same fact. As per this Section, in order to corroborate the testimony 45

of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place or before any authority legally constituted to investigate the fact, may be proved. PW3 in her oral evidence has stated that when she went inside the house, she saw PW4 crying and PW4 told her that the accused sat on the chest of the deceased and pressed pillow on her face. It is also in the evidence of PWs 8 & 9 who are the maternal grand parents of the deceased that when they reached the house of the accused on coming to know about the incident, they were told by PW4 that his father namely accused sat on the chest of the deceased, fisted her and pressed a pillow on her face and killed her. This part of the evidence has not been seriously challenged in the cross-examination. This also shows the immediate conduct on the part of PW4 in disclosing as to what he saw inside the house to his kith and kin. This previous statement made by PW4 before PWs 3, 8 & 9 would provide the needed corroboration for the testimony of PW4 with regard to the accused being responsible for the 46

homicidal death of the deceased. Yet another ground for rejecting the testimony of PW3 was that her conduct in not raising a hue and cry and informing the neighbours. In our considered opinion, rejection of the testimony of PW3 on this ground is highly perverse for the reason that the human reactions would be different in different situations. PW3, a lady aged about 71 years, on hearing the cries of her great grand children, woke up in the early hours, went near the door of the house, saw the accused going out and when she went inside the house, she noticed her grand daughter lying on the floor and on examination, she was found dead. On seeing such ghastly incident, it is reasonable to infer that she was under great amount of shock. Therefore, one cannot expect such a person to go to the doors of the neighbours and to wake them up at that early hour. It is her say that on hearing her hue and cry, PW11 came there and thereafter the father of the accused and the brother of the accused also came there and therefore, that conduct on the part of PW3 is not inconsistent with the natural human conduct. It is 47

contended that PW3 has not reported the matter to anyone till the arrival of PWs 8 & 9 at about 9.00 a.m. and therefore, her conduct is highly doubtful. We find no substance in this contention for the reason that it is in the evidence of PW3 that PW11, the mother of the accused came there first and thereafter, PW14 and the father of the accused came and somebody had telephoned to PW8 and PW8 came to the scene of occurrence at about 9.00 a.m. Therefore, the fact that PW3 did not report the matter to anyone has not rendered her testimony doubtful. In our considered opinion, the learned Sessions Judge on irrelevant grounds has rejected the testimony of PWs 3 and 4. The rejection of the testimony of PWs 3 and 4 on irrelevant grounds, in our considered opinion has resulted in perverse finding. From the testimony of PWs 3 and 4, it is clear that the deceased and the accused were together inside the house during the night of 21.04.2008, along with their young children and at about 4.00 a.m. on 22.04.2008, the deceased was found dead inside the house with injuries and having met homicidal death. 48

Under these circumstances, it was incumbent on the part of the accused to come out with an explanation as to how his wife met homicidal death. At this juncture, it is necessary to note the doubt expressed by the learned Sessions Judge as to the scene of occurrence. The said doubt is expressed on the basis of the sketch Ex.P2 said to have been prepared by PW2-G.S.Mohan.

31. Reading of evidence of PW2 indicates that on being requested by the Investigating Officer, he visited the house of the accused on 22.04.2008 and as shown by police staff who accompanied him, he prepared sketch as per Ex.P2. Admittedly, PW2 was not an eye witness nor he had seen as to where the dead body was found and as to which was the scene of occurrence. The preparation of sketch by him was based on some information said to have been given by the police official who accompanied him. The evidence of PW2 does not disclose particulars of the police official who showed the place of occurrence. It is not the say of PW2 that either PW3 or PW4 showed him 49

the place of occurrence. Therefore, the sketch-Ex.P2 prepared by PW2 cannot be accepted as a sketch depicting the correct facts. No doubt, Ex.P2 is produced by the prosecution. However, that does not mean that for all practical purpose the contents of Ex.P2 should be accepted. Of course, in Ex.P2 the place of occurrence is shown near an open well outside the house. At this stage, it is necessary to note that as per the evidence of PWs 3 and 11, they were sleeping outside the house. If really any incident had occurred outside the house, they would have noticed the same or at least PW11 would have come out with statement that the incident occurred outside the house. On the other hand, even from the evidence of PW11, her daughter-in-law was lying dead inside the house. It is in the evidence of PW21 that after holding inquest on the dead body, he prepared a sketch as per Ex.P28. This evidence of PW21 is not challenged. In Ex.P28, any place outside the house near the open well is not shown as scene of occurrence. Therefore, the learned Sessions Judge is not justified in entertaining a doubt as 50

to the place of occurrence on the basis of the contents of Ex.P2. In our considered opinion, the contents of Ex.P2 have no evidentiary value and no reliance can be placed thereon. Yet another circumstance relied on by the learned Sessions Judge was the fact that during the post mortem examination, the Doctor found the urinary bladder of the deceased being empty. On this basis, the learned Sessions Judge has assumed that the deceased might have gone out of the house to answer the call of nature and at that time, she might have met her tragic end. Merely on the basis that the urinary bladder of the deceased was empty, one could not jump to a conclusion that the deceased had gone out of the house to answer the nature’s call. In the light of the evidence of PW4 that the accused sat on the chest of the deceased, fisted her and pressed her neck, it is reasonable to infer that the deceased might have urinated at that time and thereby the bladder was empty. The bladder could be empty for any other reason also. Therefore, the doubts entertained by the learned Sessions Judge are not supported by 51

acceptable reasons as such, they are mere doubts based on surmises and conjunctures. In our considered opinion, the learned Sessions Judge is not justified in entertaining such doubt to draw a conclusion that the place of occurrence was not inside the house or it was elsewhere and also to doubt the presence of the accused. Therefore, the conclusions reached on that basis are highly perverse and contrary to the evidence on record.

32. As noticed supra, the accused has taken plea of alibi contending that he was not in the house from the evening of the previous day, as such, he was not in the house during that night. The word ‘alibi’ is of Latin origin and it means ‘elsewhere’. This plea of alibi flows from Section 11 of the Evidence Act. It is well settled law by catena of decisions and also in the light of provisions of Section 103 of Evidence Act, where plea of alibi is put forth by an accused in a criminal trial it is for him to establish the same beyond reasonable doubt. The logic behind is that the said fact would be within the personal 52

knowledge of the accused, therefore, he has to establish the same. Of course, even if the accused fails to discharge the said burden and to prove the alibi, it would not automatically lead to an inference that he is guilty of the charge leveled against him. The failure on the part of the accused to prove the plea of alibi wherever raised would not dispense with the burden on the part of the prosecution to prove the guilt of the accused beyond reasonable doubt. In the light of the discussion made above that the evidence of PWs 3 and 4 would establish the presence of the accused inside the house during the night of 21.04.2008 and that the deceased being the wife of the accused was found dead inside the house in the early hours of 22.04.2008, it is necessary to find out as to whether the accused has proved the plea of alibi.

33. In the case on hand, though the accused has put forth plea of alibi, has not placed any positive evidence in that regard. During his examination under Section 313 of Code of Criminal procedure by the learned Sessions 53

Judge, he has not asserted that he was not in the village and house during that night. The learned Sessions Judge has proceeded to hold that the plea of alibi put forth by the accused is probablised on the basis of evidence of PWs 11 & 14, the mother and elder brother of the accused. According to the evidence of PWs11 and 14 on the previous evening the accused left the village with a load of banana to sell them in the market and he did not return to the house during that night. Of course, it is in the evidence of PW3 as well as PW8 that the accused was carrying on business in banana and he used to go out of village for selling the banana. As noticed supra, PWs 11 and 14 had been declared hostile and thereby they have been discredited with reference to their previous statement recorded under Section 162 of Cr.P.C. The defence has not cross-examined PWs 11 & 14. It was the only voluntary statement of PWs 11 and 14 that the accused left the village on the previous evening. This part of the evidence of PWs 11 and 14 is an improvement since it is not brought on record that they had disclosed the said 54

fact before the I.O. during their examination under Section 161 of Cr.P.C. In the cross-examination of PWs. 20 and 21, the I.Os who examined and recorded statements of PWs 11 and 14 during investigation, it is not suggested by the defense that during such examination, PWs. 11 and 14 have disclosed about accused leaving the village on the previous evening and not returning on that night. Obviously in order to help the accused, these two witnesses have come out with a statement that the accused left the village previous evening and did not return. Therefore, merely based on the evidence of PWs 11 and 14, it cannot be held that the accused has substantiated or has probablised his plea if alibi.

34. As noticed supra, the plea of alibi will have to be proved beyond reasonable doubt unlike other defences falling under general exceptions. To establish that the accused left the village on the previous evening with a load of banana, except the oral statement of PWs 11 and 14 no other evidence is placed on record. The registration 55

number of the vehicle, the name and particulars of the driver, the place to which the banana was transported, the person to whom it was sold, have not been stated by the accused. Neither the driver of the vehicle, in which the banana was stated to have been transported nor the person to whom the banana was sold has been examined to establish the said fact. Therefore, the observation of the learned Sessions Judge that the plea of alibi raised by the accused is probablised is highly perverse since it is not supported by any acceptable evidence. Thus, the accused has failed to establish the plea of alibi.

35. Having regard to the fact that the evidence of PWs 3 and 4 established the presence of the accused inside the house during that night, it is reasonable to hold that the accused had taken a false defence that he was not in the house and this would provide the missing link to connect the accused. As noticed by the learned Sessions Judge, in the judgment under appeal, in Dynaseshwar vs. State of Maharashtra reported in 2007 56

SAR (Criminal) SC 490, the Apex Court has held that ‘ where the couple was last seen in the premises to which a outsider may not have any access and where the wife is found having met unnatural death it is for the husband to explain the ground for unnatural death’ and again in Raj Kumar Prasad Tasmarkar vs. State of Bihar & Another reported in 2007 (1) Crimes 132 (SC) it has been held that ‘once prosecution is able to show that at relevant time room in question was in exclusive occupation of couple, burden lay upon the respondent to show under what circumstances death was caused to his wife.’

36. In the case on hand also, the evidence on record establishes that apart from the 3 young children only the deceased and accused were sleeping inside the house during the night of 21.04.2008 and at about 4.00 a.m. on 22.04.2008, the wife of the accused was found having met homicidal death inside the house. It is also established from the evidence on record that there was only one entry door into the house. Therefore, it was for the accused to 57

come out with an explanation as to how his wife met homicidal death. However, the accused has not come out with any kind of explanation. On the other hand, he took up a false plea of alibi. Therefore, from the proved circumstances, reasonable conclusion that can be drawn is that the accused and the accused alone was responsible for the homicidal death of the deceased and no other person could have committed the said act. In our opinion, the learned Sessions Judge has failed to take into consideration all these factors. Omission to consider these factors, in our considered opinion has led to a perverse finding by the learned Sessions Judge and this has led to an unmerited acquittal of the accused. Therefore, in the light of the above discussions, we are of the considered opinion that the judgment of acquittal suffers from perversity and illegality warranting interference by this Court. From the discussion made above, we are of the considered opinion that the prosecution has proved the guilt of the accused for the charge under Section 302 of IPC beyond reasonable doubt 58

and therefore, the accused is liable for conviction for the said offence. Of course, insofar as the charge under Section 498A of Indian Penal Code is concerned, we find no perversity in the findings recorded by the learned Sessions Judge for the reason that even assuming that the deceased had been subjected to some amount of cruelty or harassment, the same would not be cruelty within the meaning of explanation to Section 498-A of the Act, since the evidence on record does not indicate that at any point of time, the deceased had attempted to commit suicide or caused harm to her life or limb. Therefore, the judgment of acquittal for the charge under Section 498-A of IPC is sound and does not call for interference by this Court. In view of the fact that we have found the accused guilty of the offence punishable under Section 302 of IPC and since, we are of the opinion that this is not a case falling under category of ‘rarest of the rare cases’ warranting imposition of death sentence provided under Section 302 of IPC and since, the only other sentence 59

required to be passed against the accused is imprisonment for life and fine, there is no need to hear the accused or his counsel regarding sentence. In the result, we pass the following order:

(i) Appeal is allowed in part.

(ii) The judgment and order dated 03.12.2009, passed by the Additional

Sessions Judge, Chikmagalur in S.C.No.102/2008, acquitting the respondent-accused for the offence punishable under Section 302 of IPC is

hereby set aside.

(iii) The accused is convicted for the offence punishable under Section 302

of IPC

(iv) The judgment of acquittal in respect of charge for the offence punishable under Section 498A of IPC is affirmed.

(v) The respondent-accused is sentenced to undergo imprisonment for life and

also to pay fine of Rs.5,000/- for the

offence punishable under Section 302

60

of IPC and in default to pay fine he

shall undergo Simple Imprisonment for

three months.

(vi) In terms of the bail bonds, the respondent-accused is directed to surrender himself before the trial Court forthwith and on such surrender, the

learned Sessions Judge shall commit

him to prison to serve the sentence. In

the event of the accused failing to

surrender, the learned sessions Judge

shall take necessary steps to secure

his presence and commit him to prison.

(vii) A free copy of this judgment shall be furnished to the accused forthwith

through his counsel.

SD/-

JUDGE

SD/-

JUDGE

SS*