Pradeep Kumar Srivastava, J.

1. The instant criminal appeal is preferred for setting aside the impugned judgment and order of conviction and sentence dated 30.11.2018 & 03.12.2018 respectively, of the appellant passed by learned Additional Judicial Commissioner, XVIII, Ranchi in S.T. Case No. 393 of 2017, whereby and whereunder the appellant has been held guilty and convicted for the offence under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life along with fine of Rs.10,000/- with default stipulation.

Factual Matrix:-

2. Factual matrix giving rise to this appeal is that informant’s daughter (Asha Devi, deceased) was married with the present appellant in the year 2003. Initially, everything was going on in normal manner but by passage of time, the appellant used to scuffle and assault with his wife frequently on trivial issues. The informant Basudeo Upadhyay (father of the deceased) made several attempts to settle the dispute and differences between husband and wife but the same could not be resolved. Ultimately, on 19.03.2017, informant came to know from Narayan Ojha that his daughter Asha Devi had died. The informant along with his son and other family members went to matrimonial home of Asha Devi and found her dead, sustaining sharp cut injuries on her body. The informant was suspecting that his son-in-law Mukesh Kumar Ojha along with his father and brother had committed murder of the deceased. Accordingly, Mandar P.S. Case No. 16 of 2017, was registered for the offence under Section 302/34 of I.P.C. After investigation, charge-sheet was submitted against the sole accused (husband of the deceased) for the offence under Section 302 of the I.P.C.

3. The case was committed to the Court of Sessions and the accused was put on trial. In the course of trial, altogether 11 witnesses were examined by prosecution namely:

                  P.W.-1-Deoraj Singh P.W.-2-Dilip Sao P.W.-3-Tabrej Alam P.W.-4- Anju Baitha P.W.-5-A.K. Mishra

                  P.W.-6- Paras Nath Singh P.W.-7-M.N. Singh

                  P.W.-8-Dr. Sawan Mundri (The doctor, who has conducted post mortem examination)

                  P.W.-9-Basudeo Upadhyay (Informant) P.W.-10-Anil Nand Tiwari

                  P.W.-11- Singrai Sundi (I.O.)

4. Apart from the oral testimony of witnesses, following documentary evidence has been adduced:-

                  Exhibit-1-Signature of Awadhesh Kumar Mishra over seizure list dated 20.03.2017

                  Exhibit-2-Post Mortem Report of deceased Asha Devi Exhibit-3-Written report of Basudeo Upadhyay (P.W.-9)

                  Exhibit-3/1-Signature of Basudeo Upadhyay over written report Exhibit-4-Signatue of Basudeo Upadhyay over inquest report Exhibit-5-Formal F.I.R.

                  Exhibit-6-Carbon copy of inquest report

                  Exhibit-7-Production-cum-seizurelist of blood samples over pillow Exhibit-7/1-Seizure list of iron plate used in motor vehicle

                  Exhibit-8-Confessional statement of Mukesh Kumar Ojha Exhibit-9-S.F.S.L. report

5. On the other hand, the case of defence is denial from occurrence and false implication. One defence witness namely, Vikesh Kumar Ojha has also been examined who has proved Exhibit-A, a letter purported to be written by deceased Asha Devi.

6. The learned trial court, after evaluating the evidence available on record, recorded the finding about guilt of the appellant and accordingly, convicted and sentenced to him as stated above, which has been assailed in this appeal. Submissions on behalf of appellant:-

7. Learned counsel for the appellant, in course of argument, has raised following points challenging the legality of the impugned judgment and order:

                  i. Most of the independent witnesses examined by prosecution, namely P.W.-1, P.W.-3, P.W.-4, P.W.-5, P.W.-6 and P.W.-7 have been declared hostile by the prosecution and disclosed nothing incriminating circumstance against the appellant but the learned Trial Court has taken the evidence of hostile witnesses as a corroborative piece of evidence.

                  ii. P.W.-8 is the doctor who conducted autopsy on the dead body of the deceased and opined about the cause of death due to certain ante- mortem head injuries and P.W.-11 is the Investigating Officer who has simply stated the manner in which he has conducted the investigation of the case.

                  iii. The sterling witnesses of prosecution is P.W.-9, Basudeo Upadhyay, who happens to be the father of the deceased-cum-informant in this case. Admittedly, he is not an eye-witness of the occurrence rather came to know about death of his daughter from one Braj Narayan Ojha then he went to matrimonial home of his daughter along with his elder son-in-law Anil Nand Tiwari (P.W.-10).

                  iv. P.W.-9 has simply seen the dead body of deceased lying on cot at her matrimonial home under pool of blood with marks of certain injuries over the dead body. He has stated in general terms that there was strained relationship between the deceased and her husband which crept after 3-4 years of marriage. In spite of endeavour made for conciliation and settlement by convening Panchayat that could not be resolved.

                  v. P.W.-9 has not stated at all as to what kind of disputes and prior issues were prevailing between the husband and wife causing their strained relationship. Not a single instance, even overheard from the deceased has been brought on record. There is no whisper either from the mouth of P.W.-9 or P.W.-10 that on what issue the Panchayat was ever convened. Moreover, no member of Panchayat has been examined in this case to corroborate the aforesaid story of strained relationship. Not only this, the informant has withheld his own son Radha Krishna Upadhyay to appear in witness box, who also accompanied him after the occurrence while going to matrimonial home of the deceased. Therefore, the story of strained relationship as an incriminating circumstance against the appellant cannot be relied upon and the learned Trial Court has wrongly placed reliance upon it.

                  vi. It is admitted by the informant (P.W.-9) that his daughter once left her matrimonial home and went to native place of this witness at village Kwatu P.S. Ichak, Hazaribagh and after 3-4 days she was brought to village Murgu Police Station, Ratu, Ranchi, by this witness and again sent to her matrimonial home.

                  vii. There is no dispute that the deceased died an unnatural death which may be homicidal but there is no iota of evidence showing the involvement of appellant in commission of the said murder.

                  viii. The confessional statement of the appellant extorted by police is also not leading to discovery of any fact or recovery of any incriminating article, therefore, has no value in the eyes of law. However, the learned Trial Court has considered the recovery of iron plate allegedly used in assaulting the deceased from Chhaja of the house recovered at the instance of accused relevant under Section 27 of the Evidence Act against the principles of law. It is trite that any incriminating article which may be recovered by ordinary search and seizure cannot be included within the ambit of Section 27 of the Indian Evidence Act. Therefore, recovery of blood-stained iron plate and blood-stained clothes of the deceased which were found to be origin from same human being, as per F.S.L. report, also has no bearing in the matter to be considered against the accused appellant as a circumstance proving his guilt.

                  ix. The investigating officer (P.W.-11) Singrai Sundi has categorically submitted that there was no eye-witness of the occurrence and he has submitted charge-sheet against the accused only on the basis of suspicion.

                  x. It is trite that suspicion howsoever grave it may be, cannot take place of legal proof. The suspicion raised by the I.O. as a basis of submission of charge-sheet and also entertained by informant (P.W.-9) that murder was committed by none else but the husband of the deceased never culminated into legal proof beyond doubt and in this case the suspicion remained suspicion forever.

                  xi. The learned Trial Court while shifting the burden of proof against the appellant under Section 106 of the Evidence Act, failed to consider that the very foundational facts for invoking the above provision has not been established by the prosecution. Simply because the deceased died an unnatural death at her matrimonial home, it cannot be assumed that the husband has caused murder.

                  xii. Admittedly, the deceased was habitual in frequently going to other places without permission of her husband and was also under love affair with one Bablu, prior to the marriage, which was suggested to P.W.-9 but denied. The independent witnesses have also deposed that when they heard about the occurrence, they went to the house of accused, who disclosed that some unknown miscreant has murdered his wife and fled away. There was no reason to discard the aforesaid testimony of witnesses.

                  xiii. In the premises of aforesaid vital aspects of the case, the learned counsel for the appellant concludes that the impugned judgment of conviction and sentence of the appellant is absolutely unwarranted under law and based upon conjecture, surmises and assumptions and presumptions entertained by the learned Trial Court. As such impugned judgment is liable to be set aside and the appellant deserve acquittal from the charge levelled against him.

Submissions on behalf of State:-

8. On the other hand, learned Spl. P.P. for the State, defending the impugned judgment and order of conviction and sentence of the appellant has submitted that the prosecution has been able to substantiate the charge levelled against the appellant beyond all reasonable doubt through circumstantial evidence available on record.

9. The circumstances relied upon by the informant as well as the attending circumstances under which the dead body of the deceased was found in her matrimonial home, the cause of death which is apparently homicidal in nature, the strained relationship between husband and wife continuing since considerable time and the manner of assault in a closed room acquired by the appellant, all are self explanatory that it is none else but the appellant who has caused murder of his own wife.

10. The appellant has miserably failed to offer any valid explanation as to under what circumstances his wife died a homicidal death while in his custody at her matrimonial home. The defence has also not brought on record its specific pleas suggested to witnesses regarding any love affair of the deceased with one Bablu or any mental illness of the deceased for which she was ever treated. The appellant has also not pleaded anywhere that he was not present at his house at the relevant time of occurrence. He has also not raised any alarm at the time of alleged intrusion of any other person into his house for committing murder of his wife. The bald and false pleas without any evidence taken by the appellant furnishes additional link in the chain of circumstances against him. Therefore, the learned Trial Court has committed no error of law in accepting the proved circumstances and shifting the burden of proof against the accused appellant under Section 106 of the Evidence Act. As such, there is no illegality or infirmity in the impugned judgment and order calling for any interference by this appeal, which is devoid of merits and fit to be dismissed.

11. On the basis of respective argument of the learned counsels for the parties and from perusal of impugned judgment, the only point for consideration emerges in this appeal, as to “whether the impugned judgment of conviction and sentence of the appellant for murder of his own wife suffers from any error of law?”

Analysis, discussions and reasons:-

12. Before imparting our verdict on the above point, it is apposite to take brief resume of evidence adduced in this case for proper adjudication of the above issue.

                  P.W.-1-Deoraj Singh has expressed no knowledge about the occurrence and has been declared hostile by the prosecution.

                  P.W.-2-Dilip Sao has stated in his evidence that the occurrence took place at about 10-11 months ago at night and he came to know about it at 7.00 A.M. in the next morning. He heard that Asha Devi was murdered by Mukesh Ojha. Thereafter, the police came there and took the dead body in their custody. He has identified the under trial accused-Mukesh Ojha present behind the deck.

                  In his cross-examination, he stated that Asha Devi was mentally unfit and she was under treatment of a mental doctor. She used to take medicines for the same. He has further stated that prior to the occurrence, Asha Devi had fled away from her home many times, for which a Panchayat was convened between both the parties. The family members of Asha Devi married her to Mukesh Ojha by concealing her illness.

                  P.W.-3-Tabrej Alam, P.W.-4- Anju Baitha, P.W.-5-A.K. Mishra, P.W.-6- Paras Nath Singh & P.W.-7-M.N. Singh, have expressed no knowledge about the occurrence and have been declared hostile by the prosecution.

                  P.W.-8-Dr. Sawan Mundri who has conducted post mortem examination on the body of deceased, has stated in his evidence that on 19.03.2017 he was posted as Assistant Professor in the Department of FMT, R.I.M.S., Ranchi. On that day, he conducted post-mortem examination upon the dead body of Asha Devi which was brought and identified by Chowkidar No. 1/8 Mantu Lohra and was accompanied by Braj Bihari Ojha and Awdesh Kumar Mishra. On examination, he found that the body was of average build. Rigor mortis was present all over the body. The abdomen was not distended. There were dry blood stains over the right side of the face, scalp, neck and clothes.

                  Lacerated Wounds:-

                  (i) 6 cm x 1 cm x bone deep over temporo-parietal bone.

                  (ii) 5 cm x 1 cm x soft tissue over right side of occipital region.

                  Incised wounds:-

                  (i) 4 cm x 1 cm x soft tissue was present in fronto-lateral aspect of left neck middle part of trachea.

                  (ii) 5 cm x 1 cm x soft tissue was on the front of neck, middle part over larynx.

                  Internal:-

                  There was diffuse contusion of right temporo-parietal scalp and temporalis muscle, fissure fracture 7 c.m. noted over right temporo-parietal bone, there was contusion of brain, presence of subdural haemorrhage over left cerebral hemisphere.

                  Opinion:-

                  (i) Above-noted injuries were ante-mortem, incised wound was caused by sharp-cum-pointed weapon, head injury by hard and blunt substance.

                  (ii) Cause of death was head injury and its complication.

                  (iii) Time since death is 12 to 30 hour from the time of post mortem examination.

                  The post-mortem report has been marked as Exhibit-2.

                  P.W.-9-Basudeo Upadhyay is the informant of this case. He has stated in his evidence that the victim was his younger daughter and her marriage was solemnized with one Mukesh Narayan Ojha in the year 2003. After marriage, she lived peacefully for 3-4 years in her matrimonial home. Thereafter, some altercations took place between them. He further stated that the occurrence is of 19th March. On that day at 8.00 A.M., Braj Narayan Ojha called him on phone and informed him that his daughter had died in the house of Mukesh Ojha. Thereafter, he gave a written application to the police. He identified his signature on the said application, which has been marked as Exhibit-3. The dead body was sent for post-mortem for which a death inquest report was prepared. He put his signature on the same, identified it, and it has been marked as Exhibit-4.

                  In his cross-examination, he stated that once Asha Devi came to her parental home from her matrimonial home and lived there for 4-5 days. Thereafter he took her back to her matrimonial home. There were four children born out of the wedlock of Asha Devi and Mukesh Ojha, out of which one has died. Asha Devi was under treatment.

                  P.W.-10-Anil Nand Tiwari has stated in his evidence that on 19.03.2017 at 8.00 A.M., when he was at his home, the informant told him that Asha Devi had died in her matrimonial home. Thereafter, when they went to the matrimonial home of Asha Devi, they saw several wounds on her neck and forehead. He has identified his signature on the application given by the informant to the police and the same has been marked as Exhibit-3/1.

                  P.W.-11- Singrai Sundi is the Investigating Officer of this case. He has stated in his evidence that on 19.03.2017 he was posted as Sub-inspector at Mandar Police Station, Ranchi. On the same day, on the basis of application given by the informant, Mandar P.S. Case No. 16 dated 19.03.2017 was registered under Sections 302/34 of the I.P.C. and the charge of the investigation was handed over to him. He identified the formal F.I.R. which contains the signature of Officer-in-charge-Ram Narayan Singh and the same has been marked as Exibhit-5.

                  Thereafter he went to the place of occurrence where death inquest report was prepared by A.S.I.-Ram Dayal Mahto. He identified the signature of A.S.I.-Ram Dayal Mahto on the carbon copy of the death inquest report and the same has been marked as Exhibit-6. The informant had given the written application at the place of occurrence itself, on the basis of which the Officer-in-charge registered the case and handed over the investigation to him. He identified his signature on the production-cum-seizure list prepared by FSL team and the same has been marked as Exhibit-7.

                  During investigation, he arrested the accused-Mukesh Kumar Ojha and recorded his confessional statement on 20.03.2017 in which he has stated that he assaulted his wife by an iron plate on her neck, thereby cutting her neck and also assaulted on her head due to which her head causing a fracture. Thereafter, he hide the said iron plate. The witness identified the confessional statement of accused-Mukesh Kumar Ojha which is in his handwriting and bears his signature and the same has been marked as Exhibit-8. On the basis of confessional statement of accused, he recovered the said iron plate from the house of the accused and prepared a seizure list of the same. He identified the said seizure list and the same has been marked as Exhibit-7/1.

                  Thereafter, he submitted charge-sheet No. 38/2017 dated 15.06.2017 under Section 302 of the I.P.C. against the accused appellant.

13. We have given anxious consideration to the testimony of witnesses as discussed above, particularly the evidence of P.W.-9, who happens to be the unfortunate father of the deceased. He has stated in clear terms that just after 3- 4 years of marriage, the strain relationship between deceased with her husband started, although, four children were born to them out of their wedlock, but the family affairs was not in normal condition. It also appears that several times Panchayat were also held to pacify the dispute between deceased with her husband (appellant) but all in vain. It is also quite obvious that deceased has died a homicidal death in her own matrimonial home, sustaining injuries caused by sharp cutting weapon on vital part of body. The weapon used in this case was also recovered at the instance of present appellant. The presence of the present appellant on the fateful date and time at his own house, along with his wife, has also not been denied.

                  In the above circumstances, the prosecution has very firmly proved the foundational facts invoking the provisions of Section 106 of the Evidence Act. The learned Trial Court has rightly shifted the burden of proof on the accused (appellant) to explain the circumstances under which his wife died a homicidal death in his own house while she was in his custody.

14. The explanation offered by the appellant through suggestions given to the hostile witnesses and other witnesses of fact that someone else entered into his house and fled away after causing murder of his wife, does not find corroboration from any evidence. Rather, it is simply a suggestion wherein the appellant himself has disclosed the above fact before the witnesses. The strained relationship between the deceased and the appellant, as stated by P.W.- 9, has also not been rebutted in his cross-examination by the defence. Merely because no member of Panchayat were examined to substantiate the factum of Panchayat convened by the P.W.-9 (father of the deceased) itself is not sufficient to disbelieve his testimony.

15. The discovery of iron plate used in assaulting the deceased was also effected on the basis of confessional statement of the appellant which was concealed under the Chhaja of the house and could not be searched by ordinary search and seizure. Therefore, the plea of defence that provision of Section 27 of Evidence Act is not applicable here cannot be sustained. It further transpires that the appellant has not offered any valid explanation to the incriminating circumstances appearing against him.

16. We also find that the circumstances proved against the appellant are of conclusive nature, pointing towards the guilt of the appellant for commission of murder of his own wife. The appellant has failed to offer any valid explanation rebutting the incriminating circumstances appearing against him and has also failed to prove his own defence plea regarding his innocence.

17. In the above discussion and reasons, we do not find any error of law in the impugned judgment and order of conviction and sentence of the appellant and no merits in this appeal, which stands dismissed.

18. Pending I.A., if any, stands disposed of.

19. Let a copy of this judgment sent to the concerned court for information and needful.