- (1.) THIS criminal appeal is directed against an order of conviction of the appellant under Section 302 of the Indian Penal Code where he was sentenced to suffer imprisonment for life and to pay fine with default clause. This is a case, which is entirely based on circumstantial evidence. In a case of this nature the circumstances relied upon by the prosecution must be of definite tendency pointing towards the guilt of the accused and in their totality must unerringly lead to the conclusion that the offence was committed by the accused and none else. The conclusion of guilt must be based on the circumstances which are only compatible with the guilt of the accused and must not be consistent with his innocence.
(2.) THE prosecution case in gist goes like these. The appellant is the husband of the deceased, Chameli Bibi. The appellant for a considerable period, from before the incident was living at her matrimonial home as a domesticated son -in -law with his wife and their minor child aged about 2 months. The other inmates of the house were his parents -in -law. According to the said parents -in -law on 26.6.2007 between 9/930 p.m. their dinner was complete and after that the appellant along with his wife, victim Chameli Bibi and their minor child went to kotha ghar at the upstairs for going to bed at about 11/11.30 p.m. the parents -in -law of the appellant became alert with the cry of the baby and after found the cry was not stopped they went upstairs and found the baby was lying alone and both the appellant and their daughter was not there. On the same night, they searched for both of them, i.e. their son -in -law and the daughter but they could not be located. On the next morning, PW/2, the aunt of the victim went to attend natures call and found the dead body of the victim lying in a nearby drain. Police was then informed and an U.D. case was registered, inquest was held and dead body was sent for post mortem. In the post mortem, it was found that she was killed by strangulation. In the trial, prosecution examined as many as twenty -two witnesses to prove its case whereas the defence examined none. It appears from the trend of the crossexamination and reply given by the appellant during his examination under Section 313 of the Code of Criminal Procedure that he was innocent and at the material time he was not present at his matrimonial house.
(3.) THE learned Counsel appearing on behalf of the appellant assailed the order of conviction and contended, according to the PW/1, the father of the victim and the PW/3, her mother that on 26th June, 2007 at around 9/9.30 p.m. the said witnesses and the deceased and the appellant all together finished their dinner and thereafter the appellant and the deceased with their child went to up -stair for sleeping. However, the evidence of PW/13, a co -villager completely demolished the prosecution case because according to him he found the appellant along with another near a Video Hall in a different village at around 9/9.45 p.m. He further submitted that if the appellant was found at that particular time near the Video Hall at a different village, it cannot be said that he was the author of the crime. He further submitted that at the time of the inquest stab injury was found in her person and similar was the evidence of the PW/1, PW/2 and PW/3, who noticed marks of stab injury on the person of the deceased. However, according to the Post Mortem Doctor, there was no stab injury and she was killed by manual strangulation. He, therefore, submitted on the face of the aforesaid evidence, the conviction cannot be sustained. The learned Counsel for the State contended that there is no reason to disbelieve the PW/1 and PW/3 the victim. They have no motive to falsely implicate the appellant in the offence. He also relied on the evidence of PW/8 and PW/9, the co -villagers who found the appellant coming out from the village on the same night at around 11 p.m. which clearly indicates that appellants after committing the crime took heal and he was absconding for long. This is a case where the victim suffered a homicidal death and she was killed by manual strangulation was not challenged either during the trial or now before us. We have very carefully gone through the evidence of the Doctor and the Post Mortem report and have no reason to take a different view. It is also not disputed from the side of the appellant that as a domestic son -in -law, he used to live at his matrimonial home with his wife, the deceased and their child aged about 2 months at the time of occurrence Now, according to the evidence of PW/1, on the fateful date, he, his wife, his deceased daughter and sonin - law completed their dinner between 8.30 to 9.00 p.m. and thereafter the appellant and the deceased with their minor child went to the up -stair and went to bed at kotha ghar. On the same night at around 11/11.30 p.m. both the PW/1 and PW/2 being attracted by the cry of the child went up -stair but did not find either the appellant or the deceased inside the room and only the child was alone there. They made all possible search on that night for them but none of them could be located and on the next morning PW/2, sister -in -law of the PW/3 found their daughter, Chameli Bibi lying dead in a nearby drain. Carefully examining the evidence of PW/3 the only other inmate of the house we find she corroborated the PW/2 in all material particulars. Both the PW/1 and PW/3 were cross -examined at length and their evidence that on the fateful night both the appellant and the deceased went to bed together after dinner and when the went upstairs around 11/11.30 p.m. in the same night being attracted by the cry of the son of the deceased neither the deceased nor the appellant was found there and on the next morning while the appellant was not available at his matrimonial home, the victim was found lying dead in a drain. Therefore, the first circumstance against the appellant that victim was last found alive in his company stands established and during the post mortem as it was established that she was killed by manual strangulation, it is now for the appellant to explain as to how this happened as in between what happened was within his special knowledge. Therefore, the provisions of Section 106 of the Evidence Act squarely attracted. By the operation of the aforesaid provisions of law after the prosecution established that the victim was killed and before her killing she was in the company of the appellant, the appellant is now responsible to prove that he is innocent and as to how she was killed. In this case the appellant has not made any remote attempt to discharge the onus shifted on him at least by prima facie materials it goes completely against him showing his culpability.;