SHARMA, J. - (1.) NAWAB Khan, the appellant herein, appears to be indicted in his own cob-web. On his information a criminal case for the murder of his wife Kaniza was registered against unknown person but after investigation the appellant himself was placed on trial before the learned Special Judge SC/st (PA) Cases Jaipur who vide judgment dated September 19, 2001 convicted and sentenced the appellant under Section 302 IPC to suffer imprisonment for life and fine of Rs. 500/- in default to further three months imprisonment.
(2.) THE factual score depicts that on March 28, 1999 around 8. 00 AM Nawab Khan arrived at Police Station Bhatta Basti Jaipur and orally informed that in the night March 27, 1999 while he was away from his house and spent the night in the house of Allanoor Mullaji, his wife was killed by some unknown person. He came to know about this fact when he arrived at his house in the morning. He found his house bolted from the outside. His two daughters and cousin Navia were sleeping in the room while his wife was lying dead in another room covered with tin shed. Sum of Rs. 20,000/- was missing. On the basis of information supplied by the appellant, a case under Section 460 IPC was registered and investigation commenced. THEre was no eye witness of the occurrence but on the basis of circumstantial evidence the Investigating Officer came to the conclusion that appellant himself committed murder of his wife. On conclusion of investigation charge sheet was filed. In due course the came up for trial before the learned Special Judge SC/st (PA) Cases, Jaipur. Charge under Section 302 IPC was framed against the appellant, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 19 witnesses. In the explanation under Section 313 Cr. P. C. the appellant claimed innocence. However, no witness in defence was examined. THE learned trial judge on hearing the final submissions convicted and sentenced the appellant as indicated herein above. We have heard learned counsel for the parties. It is well established principle that where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be of a conclusive nature and tendency and there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. Bearing this principle in mind we proceed to scan the material on record and we noticed following redeeming features of the case:- (i) The fact stated by the appellant in the FIR that he was not in his house but he had spent the night of March 27, 1999 in the house of Allanoor, has been belied by Allanoor (PW. 4) who in his deposition stated that after money bag was handed over by Moinuddin to Nawab Khan, he (Nawab Khan) went to his house. Lal Mohd. (PW. 18) also stated that Moinuddin handed over money to Nawab and Nawab went to his house. (ii) In the explanation under Section 313 Cr. P. C. , the appellant stated that Allanoor gave wrong statement. (iii) The appellant in his statement under Section 313 Cr. P. C. did not support the facts stated by him in the FIR. (iv) The dead body of Kaniza was initially lying in the room which had no door and which was covered by tinshed but later on its was shifted to another room. (v) Polythene bag containing sum of Rs. 20,000/- along with the receipt on which name Moinuddin was written, got recovered at the instance of appellant. Learned trial Judge found following circumstances established against the appellant:- (i) Death of Kaniza was homicidal. (ii) The conduct of appellant was unnatural in lodging the false report with the police. (iii) At the instance of appellant electricity wire, allegedly used in throttling the deceased and a sum of Rs. 20,000/- were recovered. (iv) Motive.
(3.) A look at the memo Site-plan (Ex. P. 5) reveals that the dead body of Kaniza was lying in the house of appellant. Initially the dead body lying in a room which had no door and covered with tinshed, but later on the dead body was shifted to another room. No explanation was given by the appellant as to why he shifted the dead body from one place to another. If the appellant had spent the night of March 27, 1999 in the house of Allanoor and he was not with his wife, it was obligatory on him to establish this fact but he failed to discharge this burden. As already, noticed even Allanoor did not support the fact stated by appellant in the FIR. Allanoor categorically stated that the appellant took money-bag from Moinuddin and went to his house. Lal Mohd. (PW. 18) also corroborated the testimony of Allanoor. In view of this fact that dead body of Kaniza was not found in the room where her daughters were sleeping, this possibility cannot be ruled out that before the incident she was sleeping in another room with the appellant. It is highly unlikely that where mother and daughters were alone in the house, they would sleep in different rooms in the night and would not bolt the house from inside. Under these circumstances, it is difficult to believe that the incident did occur in the manner as stated by the appellant in the FIR. We are of the opinion that in the FIR the appellant had set up a false alibi and this act of appellant is an additional link in the chain of circumstances. In Anthony D' Souza vs. State of Karnataka (2003 (1) SCC 259), their Lordships of Supreme Court indicated that in a case of circumstantial evidence where the accused offers false answer in his examination under Section 313 Cr. P. C. against the established facts, that can be counted as providing a missing link for completing the chain. In Mani Kumar Thapa vs. State of Sikkim (2002 (7) SCC 157), the Apex Court propounded that in a case circumstantial evidence a false alibi set up by the accused would be an additional link in the chain of circumstances. ;