JUDGMENT :

This appeal is preferred by the appellant challenging the judgment of conviction dated 07.12.2016 and the order of sentence dated 15.12.2016 passed by the II Additional District & Sessions Judge, Kodagu Madikeri sitting at Virajpet (hereinafter referred to as ‘the trial

court’) in S.C.No.28/2015 wherein the appellant/accused has been found guilty and convicted for the offence punishable under Section 302 of IPC and sentenced to undergo rigorous life imprisonment and payment of fine of Rs.30,000/and in default, the appellant shall undergo simple imprisonment for a period of two years for the offence punishable under Section 302 of IPC.

2. We have heard the arguments of learned counsel for the appellant and the learned High Court Government Pleader for the respondent State.

3. The rankings of the parties before the trial court are retained for the sake of convenience.

4. Before adverting to the arguments addressed by the learned counsel for the appellant and the learned HCGP, it is worth to mention the factual matrix of the case of the prosecution.

5. The case of the prosecution in a nut shell is that the appellant/accused and his wife Chandri @ Chandrika were residing in their house at Garikeri. That on 03.03.2002, at 9.30 p.m., there was a quarrel between them and the accused with an intention to cause her death pressed her neck. Thereafter, he has fled away from the spot. It is further case of the prosecution that after hearing the noise, CW1 to CW4 came to their house and before trying to caught hold the accused, he went away. Therefore, PW.1 shifted the deceased to the hospital and on the way she died. Later, a complaint came to be filed before Gonikoppa Police Station and the police, after the investigation, filed a charge sheet that the accused was absconding. Thereafter, the accused was secured and he has been committed to the Court of Sessions for trial. Accordingly, the trial court framed charges against the accused for the offence punishable under Section 302 of IPC. He has pleaded not guilty and claims to be tried by the trial court.

6. The case of the prosecution is that the prosecution examined in all six witnesses as PW.1 to PW.6 and got marked the documents as per Exs.P1 to P7. After completion of the evidence, the statement of the accused under Section 313 of Cr.P.C. has been recorded. The incriminating evidence led against the accused has been denied by him. However, in the reply, he has stated that the deceased had been with one Subramanya and said Subramanya assaulted her and sent out. Thereafter, the incident was occurred. Considering the findings, the trial court found the accused guilty and convicted for the alleged offence stated supra.

7. Learned counsel for the appellant/accused contended that the judgment of the trial court suffers from legality. That there is no eye witnesses to the incident. The four witnesses, who have been examined, are all alleged to be eye witnesses, but there was a lot of contradiction between them. That the presence of these witnesses creates a doubt and if at all they were present at the time of incident, nothing prevented them from rescuing the deceased or preventing the accused from committing the offence. That the evidence of PW.4 clearly shows that they all came to the house and his mother was found dead and the accused was not present. Therefore, they presume that the accused might have committed homicidal death. That itself was not a ground for convicting the accused. Further, learned counsel contended that all the witnesses cited were not examined. PW5 is only a Stree Shakti employee who was a Mahazar witness and PW6 is the Police Constable who transmitted the FIR. The prosecution has not examined the Investigating Officer, who registered the FIR, conducted investigation and filed the charge sheet against the accused. Even after the arrest of the accused, the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Merely the cir