Irshad Hussain, J.
1. Accused Nirmal Singh preferred this appeal from his conviction and sentence to imprisonment for life under Section 302 I. P. C. for having committed the murder of his wife Smt. Palwinder Kaur in his house in village Kachnalgazi of P. S. Kashipur, the then District Nainital at about 10 A. M. on 26-6-1979 per Judgment dated 28-3-1981 passed by then I Additional Sessions Judge, Nainital in the sessions trial No. 210 of 1979.
2. Jeet Singh, Smt. Surendra Kaur and Km. Sukhbider Kaur, the father, mother and sister respectively of accused Nirmal Singh were however acquitted of the charge under Section 302/34 I. P. C. and aggrieved by their acquittal complainant Jagir Singh, the father of the deceased, preferred criminal revision.
3. Briefly stated the facts of the case are as follows:
Accused Nirmal Singh was married to Smt. Palwinder Kaur deceased about two years before the occurrence which took place on 26-6-1979. Accused and his parents and sister proved to be very greedy and wanted the parents of the deceased lady to give money in lieu of dowry. Smt. Palwinder Kaur was used to be taunted for not fulfilling the demand of money raised by the accused and his family members although after marriage Jagir Singh the father of Smt. Palwinder Kaur on several occasions met the demands of money of his son-in-law the accused and his family members. About 20 days before the occurrence a panchayat was organized as Jagir Singh wanted to take his daughter with him. Dalip Singh, maternal grand fattier of accused Nirmal Singh however intervened and it was settled that Jagir Singh would pay a sum of Rs. 5,000/- to his son-in-law the acused and thereafter the in-laws of Smt. Palwinder Kaur would never tease her and press for more money in lieu of dowry. Jagir Singh paid a sum of Rs. 5.000/-to the in-laws of his daughter about 15 days before the occurrence.
4. On 26-6-1979, P. W. 2, Jagir Singh was informed at about 11 A. M. by P. W. 3, Ujagar Singh son of Aroor Singh resident of village Manpur that his daughter Palwinder Kaur had been strangulated to death by the husband Nirmal Singh and other family members at about 10 A. M. the same day in their village. Jagir Singh then went to village Kachnalgazi and found his daughter to be dead. He got prepared the written report of the incident, Ext, Ka. 2 and delivered it at the police station, Kashipur at 4.45 P. M. and on its basis check F. 1. R., Ext. Ka. 5 was drawn and an entry in the G. D., Ext. Ka. 6 was entered registering a case under Section 302 I. P. C, against the accused Nirmal Singh and other three. Investigation of the case was taken up by S. I. Moolraj Sharma (P. W. 9). He left for the village of the occurrence and on reaching there held inquest on the dead body and prepared inquest report, Ext. Ka. 3 and other connected documents. Packed and sealed dead body of the deceased Smt. Palwinder Kaur was then sent for post mortem which was conducted next day on 27-6-1979 at 10.45 A. M. by Dr. D, K. Joshi (P.W.1). The post mortem report, Ext. Ka. 1 reveal the following facts :
The deceased was about 21 years of age. Rigor moritis had passed of from the neck and upper parts. Forthy material was coming out from both of her nostrils and mouth. The ante-mortem injuries found were as under:
1. Abraded contusion in front of neck 3 cm 2 cm outside of midline and faint mark extending from left angle mendible to right angle of mendible passing from front. Ecchymosis present under the contusion.
2. Abraded contusion 3.5 cm x 2 m on right side of heck. Ecchymosis present under the contusion.
On internal examination both the cornua of hyoid bone were found fractured; brain membrane and pleura were congested and so was the case with both the lungs. Both the chambers of heart were empty. In the opinion of the medical officer the death was caused due to asphyxia as a result of throttling.
5. The investigating officer completed other formalities of the investigation and finally submitted charge sheet, Ext. Ka. 13 against the accused Nirmal Singh and three others on 10-7-1979.
6. Accused and three others were committed to Court of Session and accused Nirmal Singh was charged under Section 302 I. P. C. for committing the murder of his wife Smt. Palwinder Kaur at about 10A.M. on 26-6-1979 in his house in village Kachnalgazi. The other three were charged under Section 302/34 I. P. C. Accused pleaded innocence and claimed that they have been falsely implicated in the case. The defence case as borne out from the cross-examination of informant Jagir Singh was that the deceased herself committed suicide.
7. At the trial, prosecution examined nine witnesses to bring home the guilt to the accused. The defence has also examined two witnesses besides relying on some documents. P. W. 1, Dr. D. K. Joshi was the autopsy surgeon and he proved the post mortem report, Ext. Ka. 1 and observations made therein which have been referred above. P. W. 2, informant Jagir Singh and P.W. 6 Pyara Singh gave evidence in regard to the motive and in regard to the conduct of the accused Nirmal Singh and his other family members in making demand of money in lieu of dowry. Jagir Singh also stated that about 25 days before the occurrence a panchayat was held and to honour the decision of the panchayat a sum of Rs. 5.000/-was paid by him to accused Nirmal Singh. P.W. 6, Pyara Singh gave out that he participated in the panchayat and thus corroborated the statement of informant Jagir Singh. P.W. 2 also proved the written report, Ext. Ka. 2. Check F. I. R. and G. D. report were prepared by P.W. 7, Head Constable Harihar Singh who proved these documents. Ext. Ka::5 and Ext. Ka.6 respectively. P. W. 3, Ujagar Singh and P. W. 4 Gurbachan Singh were examined eye-witnesses of the occurrence. P.W. 3 was the maternal grand father of the deceased. He said that his wife had died about 7 or 8 years ago and it was he who had brought up the deceased and thus had great love and affection for the deceased. He gave out that a day before the occurrence he had gone to the house of the accused to see her grand daughter the deceased and had stayed there in the night. According to him next day at about 10 A. M. accused Nirmal Singh took the deceased to his south facing room and other there accused also went inside that room. Inside the room accused Nirmal Singh made the deceased to lay down on the cot and then Surendra Kaur caught hold of the right hand, Sukhbinder Kaur caught hold of the left hand and Jeet Singh pressed the legs of the deceased and then accused Nirmal Singh sat on the chest of the deceased and throttled her by neck. The witness claimed to have raised alarm and Gurbachan Singh also happened to reach at that place. According to him Gurbachan Singh pulled away the accused Nirmal Singh but by that time accused's wife, the deceased, had already breathed her last.
8. Eye-witness P. W. 4, Gurbachan Singh a resident of village Belwala P. W. Kashipur claimed that a day before the occurrence Jeet Singh (accused) had borrowed his trolley to transport wheat to Kashipur Mandi and on the day of the occurrence he had gone to take back his trolley from Jeet Singh. He gave out that hearing the shouts of Ujagar Singh he happened to see that accused Nirmal Singh was throttling the neck of his wife and other three accused have pinned her down on the cot by catching hold of hands and feet, witness said that he pulled away Nirmal Singh but by that time the deceased had already died.
9. P. W. 6 Pyara Singh was, besides the motive aspect as referred above, examined also to prove the extra-judicial confession of the accused Nirmal Singh. Witness claimed that on 26-6-1979 he had gone to co-operative society at Kashipur where accused Nirmal Singh met him at about 1.30 P. M, and confessed to him that he had murdered his wife. Accused Nirmal Singh then solicited the help of the witness so that the police may be impressed to suppress the crime.
10. P. W. 5, Mahendra Singh tender his evidence by affidavit to prove the proceedings of inquest. In his presence the broken pieces of bangles of the deceased were attached by the investigating officer. P. W. 8, constable Mohd. Yashin who took the dead body for post mortem also filed his affidavit to prove this fact. P. W. 9, S. I. Moolraj Sharma, the investigating officer of the case proved various steps taken during the investigation of the crime and in the process also connected site-plan, Ext. Ka. 12 of the place of the occurrence, inquest report, Ext. Ka. 3 and other relevant documents, Ext. Ka, 9 to Ext. Ka. 11. He affirmed the factum of attaching the broken pieces of bangles, material Exhibit-6 vide memo, Ext. Ka. 4 from the place of the occtirrene. Accused Nirmal Singh and others were arrested by him from near the temple of Nagnath at Kashipur the same day, that is, 26-6-1979, as said earlier, charge-sheet, Ext. Ka. 13 was placed against the accused and the other three on completion of the investigation.
11. In defence D. W. 1, Teeka Ram Tiwari, Supervisor of marketing co-operative society, Kashipur was examined. According to him accused Nirmal Singh had purchased manure from the society on 26-6-1979 vide voucher, Ext. Kha. 3 and part payment was then made by accused Nirmal Singh through cheque No. 262736 of Rs. 525/- and Rs. 2.80 p. were paid to him in cash. D. W. 2, Narayan Lal is the Accountant of the said co-operative society, Kashipur and he orroborated the evidence of D.W. 1 about giving of cheque by the accused. He proved the counterfoil of the receipt, Ext. Kha. 4 and testified that on its back are the signatures of the accused Nirmal Singh. He also connected pass book entry of accused Nirmal Singh regarding the said transaction having taken place during the working hours from 10 A. M. to 5 P. M, He however could not say as to whether the accused Nirmal Singh came to him on that day at about 1.30 P. M, or 2 P. M. or some time thereafter or earlier thereto.
12. It need to be stated here that on behalf of the prosecution certain incriminating circumstances were also pressed into service to connect the accused with the commission of the crime and the circumstances were as under :--
(1) The deceased was admittedly residing with the accused at the time when she met her unfortunate death.
(2) The broken pieces of bangles were found lying on the floor of the cot indicating that force was applied on the person of the deceased who had resisted the overt act.
(3) There was no rope etc. having been found there which could have been used for committing alleged suicide by the deceased.
(4) The deceased had an eight months old child and has had no immediate cause to put herself to such a frame of mind to commit suicide.
(5) The accused or his family members have not sent any information of any such suicidal death of the deceased to her father.
(6) The accused has not lodged any report at the police station regarding the alleged suicide.
(7) The accused Nirmal Singh tried to create evidence of his absence since morning from his house by saying that he had left the house to conduct business at the society at Kashipur.
(8) Accused even tried to run away and came to be arrested by the investigating officer. P.W. 9, in the night near Nagnath temple at Kashipur.
13. Learned Additional Sessions Judge meticulously examined the evidence on record, the facts and circumstances pressed into service and in an elaborated judgment under appeal gave weighty reasons in reaching to the conclusion that P. W. 3, Ujagar Singh and P. W. 4 Gurbachan Singh witnessed the murder of Sm. Palwinder Kaur deceased by the throttling of her neck by the accused Nirmal Singh at the time and place as alleged by the prosecution; that the medial evidence and the circumstances pressed into service further conclusively establish that It was the accused Nirmal Singh who murdered his wife by throttling her neck in a merciles manner and that the accused had lust for the wealth and being a greedy person used to demand money from his father-in-law the informant who had even obliged the accused at times and the accused being a young man, not passed the marriageable age thought to make capital out of such situation and murdered the deceased in the hope of getting remarried and again receiving rich dowry. With these conclusions, the accused Nirmal Singh alone was held guilty for offence punishable under Section 302 I. P. C, and was convicted and sentenced as stated above whereas the father, mother and sister on appreciation of the evidence were given benefit of doubt and were, acquitted of the charges against them.
14. In support of the appeal, learned Counsel for the appellant submitted that the approach of the learned Sessions Judge was clearly erroneous both on legal and factual aspects. He urged that three accused were acquitted on the same evidence whereas the accused appellant alone could not have been treated separately on the same set of evidence; that both the eye-witnesses examined in the case were not truthful witnesses and It would not stand to reason that the accused was so careless as to commit the murder of the wife during day time while those witnesses were present in the house at that time; that the learned Additional Sessions Judge failed to attach due significance to the material infirmities and contradictions in the evidence of both the witnesses who were related to the informant; that the incriminating circumstances taken note of were not sufficient to complete the chain pointing to the guilt only of the accused and that there was no evidence to indicate that the accused had motive to commit the murder of the wife. Learned counsel therefore, submitted that the judgment under appeal not being based on proper and fair appraisal of the evidence and the circumstances deserve to be set aside and the accused is entitled to be acquitted of the charge framed against him.
15. In response, learned A. G. A. submitted that the learned Additional Sessions Judge by a well reasoned judgment has found the prosecution version to be reliable and that being so this Court should not Interfere with the judgment, of conviction and the appeal is liable to be dismissed. Learned counsel for the revisionists assailed the view taken by the trial Court in acquitting the three accused by submitting that the murder of the deceased having been committed inside the house of the accused and also seen by the eye-witnesses there was no justification to acquit them of the charge levelled against them and that on re-appreciation of the evidence on record the three acquitted accused should be held guilty and convicted of the offence of murder of the deceased.
16. In the above backdrop it is to be seen as to whether the evidence and the circumstances have been properly considered and a correct finding was arrived at to convict the accused appellant alone for offence of murder of his wife.
17. As has been noticed above prosecution placed reliance on the evidence of two eye-witnesses P. W. 3, Ujagar Singh and P.W. 4. Gurbachan Singh who claimed to have seen accused Nirmal Singh murdering Smt. Palwinder Kaur by throttling the neck of the deceased. P. W. 3, was the maternal grand father of the deceased and P. W. 4 was distantly related to the informant. No doubt P.W. 2, informant Jagir Singh tried to screen the relationship with P. W. 4 and his conduct was made subject matter of the criticism by the learned Counsel for the accused-appellant but this aspect of the matter cannot be taken to discard the evidence of the witness if the basic version of the testimony of the witness is otherwise convincing and inspire confidence. It is well-settled . that the evidence of related or interested witness can be made basis of conviction of an accused of the crime if on cautious and careful scrutiny the evidence is found to be otherwise reliable. In this background the evidence of both these eye-witnesses need to be re-appreciated.
18. P. W. 3, Ujagar Singh being the maternal grand father of the deceased has had occasion to visit the matrimonial home of his grand daughter and to stay there out of love and affection. It is in the evidence of this witness that his wife had died long ago and he had great love and affection for his grand daughter Smt. Palwinder Kaur and has thus visited her matrimonial home and was there on the day of the occurrence. Considering this peculiar aspect of the matter we see no merit in the argument of the learned Counsel for the accused that P. W. 4, was not at all probable and natural witness of the occurrence as he was not supposed to be there staying in the house of the accused. This witness gave out that on the day of the occurrence at about 10 A. M. deceased was taken in the south facing room by accused Nirmal Singh and there in that room the deceased was strangulated by neck by accused Nirmal Singh with the assistance of other family members. To discredit the testimony of the witness learned Counsel argued that it was highly improbable that the accused would have taken a decision or decided to done away with his wife while such a close relation of the wife was staying in the house. We see no merit in this argument and in our view an altogether diametrically different argument will prevail in the peculiar aspect of the matter and the facts of the case. This witness P.W. 3, was aged about 70 years at that time and when he visited the matrimonial home of his grand daughter he was not expected to be frequenting in and around the house all the time and rather must have been expected to be leisurely taking rest at the place in the house chosen for him by the host. Human mind being admittedly quite fertile and one can easily make up his mind to take stock of a particular situation and also to take benefit out of it to attain a particular object. Accused Nirmal Singh having taken a decision to commit the crime might have chosen that very day thinking that it will hardly be accepted by the people that the murder of the deceased was committed while her grand father was staying In the house and the projected theory of suicide committed by the deceased would get favourable currency. Even otherwise the prosecution was not supposed to explain as to why the accused chose that day to commit the crime as none can with certainty tell as to how and in what manner the mind of a criminal was operating in a given situation and therefore the argument of the learned Counsel that the accused would not have decided to commit the murder of the wife while P. W. 3 was staying there in the house cannot safely be sustained. In fact the accused Nirmal Singh could not notice that witness P. W. 3 happened to be near the south facing room of ., the house where the accused took the deceased and got her down on the cot and then strangulated her by neck to commit the murder before the eyes of the said witness.
19. It was then submitted against the evidence of P. W. 3 that the graphic description of the occurrence given by him and stated to have been told to informant Jagir Singh was not narrated by the informant in the written report, Ext. Ka. 2 and on this account also the evidence of the witness was sought to be disbelieved. No doubt the information of the murder was given by P. W.3, to informant P. W. 2, who got scribed the written report but as rightly observed by learned Additional Sessions Judge F. I. R. is not an encyclopedia of every minute detail and if what was said by P. W. 3 was not narrated in the F. I. R. this omission cannot be taken to disbelieve the otherwise reliable evidence of P. W. 3.
20. It was also pointed out that P. W. 3 after seeing the occurrence claimed to have gone to the informant to tell all about it and that on way he had prosecuted the town of Kashipur where the police station was situate but strangely enough he did not care to lodge the F. I. R. of the ocurrence at the first available opportunity and this aspect of the matter surfaced falsity of his claim of witnessing the occurrence. We also do not find any merit in this submission because P. W. 3 gave out that he thought it proper to first of all give information to the informant who may then take stock of the situation and its consequences prior to reporting the matter to the police. The explanation given by the witness appear reasonable and plausible and merely because no F. I. R. was lodged by him at Kashipur it would not indicate that his claim about seeing the occurrence is false.
21. P. W. 3 after giving information to Jagir Singh came back to Kachnalgazi, the matrimonial home of the deceased and claimed that he had not returned to the said village with Jagir Singh. He however, claimed that when he reached Kachnalgazi about 20-25 relatives were found assembled there and at that time he had not discussed anything about the occurrence with those relatives. Referring to this statement learned Counsel submitted that when the witness has had not talk with large number of relations about the incident at that time it becomes clear that he was not present at the place of the occurrence when the incident took place and that he was introduced as a witness in the F. I. R. after due deliberations. The argument does not appear convincing because the witness having told all about the occurrence to the informant there was no occasion for him to discuss all about the ill-fated incident with other relatives who have assembled there and naturally after knowing about the tragic death of the deceased.
22. Learned counsel then pointed out to an omission occurring in the statements of P. W. 3, as recorded under Section 161 and Section 164 of the Code of Criminal Procedure to assail credibility of the witness. P.W. 3 testified that witness Gurbachan Singh (P.W. 4) on the reaching at the place of the occurrence at the time of the incident pulled off the hands of Nirmal Singh while the accused was throttling the deceased by neck. This do not find plae in the statement of P.W. 3 recorded during the investigation but at any rate the omission is not as material as may be taken to be a contradiction telling adversely upon the reliability of the testimony of P. W. 3. Therefore, we do not find merit in the argument that on account of infirmity and contradiction the evidence of P. W. 3 does not warrant acceptance.
23. We have noticed that the evidence of this witness was also considered with care and caution by the learned Addl. Sessions Judge and finding no infirmity in the basic version of the witness his evidence was found reliable and in the totality of the evidence of the witness we find ourselves in full agreement with the view taken by the learned Addl. Sessions Judge. In other words the evidence of P. W. 3 inspire confidence and prove that accused Nirmal Singh was seen throttling the deceased by neck and deceased was murdered in this way.
24. As was stated above, P. W. 4, Gurbachan Singh is another eye-witness of the incident. The purpose for which he visited the house of the accused was that he wanted to take back his trolley from Jeet Singh who had borrowed the trolley on the previous day for transporting wheat to Mandi. It was argued by the learned Counsel for the accused that this witness was a chance witness and his evidence could not have been taken into reckoning to corroborate the prosecution version. Since the witness has a specific purpose to go to the house of the accused he cannot be termed to be a chance witness, particularly when his cross-examination did not yield any benefit to the defence on the point of his trolley having been borrowed by Jeet Singh. When the trolley had been lent by the witness he had ever occasion to go to the house of Jeet Singh to take it back and therefore he proved himself to be a probable and natural witness of the occurrence.
25. The testimony of P.W. 4 was challenged by the learned Counsel by submitting that it was not at all probable that the accused would think of committing the murder of his wife when a distant relative P.W. 4 had come to the house to take back the trolley and that this aspect of the matter belie the claim of P.W. 4 that he saw accused Nirmal Singh throttling the neck of his wife who breathed her last in his presence. As we have found in the case of P.W. 3 the submission of the learned Counsel has no appeal. The visit of P.W. 4, was not expected at about 10 A. M. on the day of the occurrence because the evidence do not indicate that the time to take back the trolley from the house of Jeet Singh was fixed in advance. Therefore, P. W. 4 having visited the house to take back the trolley as per his own convenience and reaching there heard the shouts of P. W. 3, Ujagar Singh to rush to the room where deceased had been pinned down on the cot and the witness saw that accused Nirmal Singh was throttling the neck of the deceased. The witness claimed to have pulled off Nirmal Singh but by that time the deeased had already breathed her last. This witness was also cross-examined at length but nothing of significance seem to have been elicited to assail his basic version about the incident and this witness also having stood the test of cross-examination the learned Additional Sessions Judge was justified in holding that this witness was also a competent and honest witness and his testimony about the incident had a ring of truth to establish involvement of the accused Nirmal Singh in the commission of murder of the deceased.
26. It has come in the evidence of the witness that on any previous occasion his trolley was not borrowed by Jeet Singh and the learned Counsel thus submitted that the theory of borrowing trolley was spun out to show the presence of this witness in the house at the time of the occurrence. Even if in the past the trolle was not lent out to Jeet Singh by the witness it would not mean that Jeet Singh would not have borrowed the trolley of the witness a day prior to the occurrence. In the evidence of another witness P.W. 6, Pyara Singh it has come that Kashmir Singh was standing with the defence counsel when the evidence was recorded in the sessions trial and the witness was suggested that Kashmir Singh had been doing Pairwee on behalf of the accused in the case. According to the witness the house of Kashmir Singh was situate at a distance of about one kilometer from the house of the accused and Kashmir Singh has got both tractor and trolley. Learned counsel argued that if Jeet Singh was actually in need of a trolley to transport the wheat the same could have been borrowed from Kashmir Singh and there was no reason for Jeet Singh to take obligation from P. W. 4 Gurbachan Singh whose house is situate at a far off distance. There is nothing in the evidence on record that Kashmir Singh was in a position to spare his trolley a day before the occurrence of the case. In the absence of such evidence it will be a hypothetical proposition that instead of borrowing trolley from P. W. 4 the trolley could have very well been borrowed from Kashmir Singh who was also related and has his house much nearer to the house of Jeet Singh. Therefore, the argument advanced by the learned Counsel to discredit the testimony of P. W. 4 can safely be said to be without force and appeal.
27. Learned counsel drew attention to the contradiction in the statement of P. W. 3 and P. W. 4 in order to seek rejection of the evidence of the witnesses. P. W. 3, Ujagar Singh gave out that when witness Gurbachan Singh had pulled the accused Nirmal Singh who was engaged in throttling the neck of the deceased the deceased was still breathing but she died after Gurbachan Singh had successfully pulled off Nirmal Singh. As against this, P. W. 4 Gurbachan Singh gave out that the deceased had been throttled to death by accused Nirmal Singh before he could pull him away from doing the criminal act. By no reasoning the contradiction in the statements can be said to be material and therefore no undue importance to it could legally be given so as to assail the evidence of the witnesses. Having carefully re-appreciated the entire evidence of P. W. 4 also we are of the firm view that his testimony also inspires confidence and in turn reliance being placed thereupon 'it corroborate the evidence of P. W. 3 and the ' prosecution claim that it was accused Nirmal Singh who committed the murder of his wife Smt. Palwinder Kaur by throttling her neck at about 10 A. M. inside his house on the day of the ocurrence.
28. This takes us to the evidence of P.W, 6, Pyara Singh who was examined to prove that acused Nirmal Singh confessed his guilt before him. The evidence of the witness was riot found convincing by the learned Addl. Sessions Judge for the cogent reasons incorporated in the judgment. On behalf of the State nothing was said to question the conclusion in that regard and on re-appreciation of the evidence we also find that the evidence of the witness was not worth reckoning towards the proof of alleged extra-judicial confession of the accused Nirmal Singh.
29. The F.I. R. of the case was lodged on the day of the occurrence at 4.45 P. M. As stated above the occurrence took place at about 10 A. M. and the Informant Jagir Singh (P. W. 2) was informed of the incident by his father-in-law, P.W. 3, UJagar Singh. P. W. 2 is resident of village Majra Joshi situate at a distance of about eight kilometers from the village of the occurrence, that is, Kachnalgazi. He had first gone to the place of the ocurrene to verify the truth of the information and after return from village Kachnalgazi lodged the F. I. R. at P. S. Kashipur. This was the reason that so much delay was caused and there was nothing unusual if informant thought of verifying the things himself before reporting the matter to the police instead of acting upon the information given to him by his father-in-law. The delay was explained by P. W. 2 and therefore we are of the view that the F. I. R, of the case corroborate the prosecution version and evidence of the eye-witnesses discussed above.
30. In so far as the medical evidence was concerned the definite evidence of Dr. D. K. Joshi (P. W. 1) prove that the death occurred due to asphyxia caused by throttling. The observation made at the time of postmortem of the dead body of deceased Smt. Palwinder Kaur and also the ante-mortem Injuries and the internal examination, were mentioned in the post mortem report, Ext, Ka. 1 and which have been reproduced earlier. There was no ligature mark on and around the neck of the deceased which is a very significant feature ruling out the possibility of suicide by strangulation with the help of rope etc. Abraded contusions in front of the neck and on right side of the neck with ecchymosis present under the contusions speak of throttling because the abraded contusions would be caused when the neck is pressed by the hand and pressure is exherted upon the throat. The doctor clearly stated that the contusions on the neck and the fracture of both the cornua of hyoid bone was the result of forceful pressing of the neck. The medical officer was not even suggested that ante-mortem injuries as were found on the neck could be caused by a rope or in other words by suicidal hanging. In fact the evidence of the medical officer is in consonance with the similar observations found in Modi's Medical Jurisprudence and Toxicology (Twenty Second Edition) from pages 261 to 267. We could also lay hands upon a reported decision of the Apex Court in the matter of State of Karnataka v. K. Gopalkrishna 2005 S.CC (Cri) 1237 : 2005 AIR SCW 945 : 2005 Cri LJ 1436 and the observations of the Hon'ble Judges of the Court on medical evidence in quite similar factums of the case can safely be applied here also to conclude that the death of Smt. Palwinder Kaur was caused on account of asphyxia as a result of throttling. In the case before the Apex Court the accused made a report to the police to the effect that his wife (Veena) had been burnt along with her child in an accidental fire. The post-mortem examination of the dead body of the deceased disclosed that though her body was burnt but on internal examination it was found that the cornua of hyoid bond was fractured. The doctor certified that cause of death was asphyxia due to throttling. The husband who was the accused in that case was convicted by the trial Court but on appeal to the High Court trial Court's verdict was set aside and he was acquitted. The State of Karnataka filed special leave petition, which was admitted and the Apex Court in that appeal set aside the impugned judgment of the High Court and restored the Judgment of the trial Court. The Apex Court placed reliance on the evidence of the doctor and accepted his opinion that death was on account of asphyxia caused by throttling. The conclusion was supported by the fact that there was fracture of the cornua of hyoid bone. Hon'ble Judges of the Apex Court also observed that 'it is well accepted in medical jurisprudence that hyoid bone can be fractured only if it is pressed with great force or hit by hard substance with great force. Otherwise the hyoid is not a bone which can be easily fractured.'
31. In view of above we are of the firm view that the medical evidence prove and fully corroborate the prosecution version and the evidence of its witnesses that the deceased died of throttling by hand and it was not a case of suicide by strangulation with the help of rope etc.
32. As stated in the earlier part of the judgment number of incriminating circumstances apart from the direct evidence to prove a complete chain to connect the accused with the ommission of the crime of murder of his wife. The first circumstance relate to the admitted fact that deceased was residing with the accused at the time when she met her unfortunate death. The medical evidence rule out the theory of suicidal death by the deceased herself and the homicidal death of the deceased having occurred in the matrimonial home of the deceased, her husband, the accused Nirmal Singh was supposed to explain as to how and in what manner his wife met her unfortunate end. The burden on the accused lay in view of the provision of Section 106 of the Indian Evidence Act which the accused has failed to discharge and also to put forward any explanation whatsoever regarding the homicidal death. The time of the death has not been disputed in the case and it is thus more alarming as to how during the day time at about 10 A. M. the deceased met her unfortunate end in her matrimonial home and it would not go without repetition that nothing has been said in that regard by the accused and he preferred to keep mum when statement under Section 313 of the Code of Criminal Procedure was recorded.
33. The second circumstance pertain to finding of broken pieces of bangles near the cot on which the dead body of the deceased was found lying in the house. P. W, 9, S, I. Moolraj Sharma attached the bangle pieces, material exhibit vide memo, Ext, Ka. 4. There is nothing on record to dispute this fact. The presence of broken bangle pieces further rule out the possibility of the deceased committing the suicide herself and rather these broken pieces of bangles indicate that the deceased had been the victim of violence. When accused Nirmal Singh sat on her chest to throttle the deceased by neck the deceased must have shown some resistance and in the process had her bangles broken, pieces of which were naturally found near the cot.
34. The third circumstance concerning absence of any rope there at the place of the occurrence further rule out the possibility of deceased herself committing suicide. Inquest request, Ext. Ka.3 reveal that there was a Dupatta around the neck of the deceased. Absence of any ligature mark on the neck and presence of abraded contusions on the neck and fractured cornua of the hyoid bone was also referred in the earlier part of the judgment fully explode the suggested theory of suicide. This apart, as mentioned in the inquest report, the roof of the room in which the dead body of the deceased was found was at a height of about ten feet and although there was a hook in the roof nothing was found there in the room to even remotely suggest that the hook of the roof was somehow used for suicidal hanging. When the roof was at such a big height one can only climb up to the hook of the room only by standing on some sufficiently high table etc. and none of such item was then found in the room by the investigating officer. Even otherwise the Dupatta could not have at all been utilized for suicidal hanging by tying it on the hook of the roof. In short these peculiar aspects of the matter further rule out the theory of suicide.
35. The next circumstance, pertain to the eight months old child of the deceased as has been affirmed by the evidence of P. W. 9, S, I. Moolraj Sharma the investigating officer of the case. There is absolutely nothing on record to show that the deceased has put herself to such a frame of mind to commit suicide despite being a proud mother of an infant. Naturally the deceased has had great love and affection, for her infact child and must have been full of hope for a bright and better future of her child and she being in such a state of mind could not have thought of committing the suicide making her child as an orphan. These aspects of the matter were also consciously considered by the learned Additional Sessions Judge and we have no hesitation to pick up the same thread to draw an inference that this incriminating circumstance also lend full credence to the above conclusion that it was not a case of suicide.
36. Circumstances mentioned at serial Nos. 5 and 6 relate to the conduct of the accused and other family members in not sending any information of the death of the deceased to her father and also not lodging any report at the police station alleging that the deceased committed suicide. P. W. 2, informant Jagir Singh vehemently denied receiving of any information from the accused or any other members of the family and the conduct of the. accused indicate that a guilty mind did not dare to send false information to the father of the deceased and further had no courage to report the matter to the police with false allegation of suicide. These circumstances are also the links in the chain of the circumstances leading to the guilt of the accused in committing the murder of his wife.
37. Circumstance at serial No. 7 pertain to the fact that accused Nirmal Singh tried to create false evidence of his absence since morning from his house by taking the plea that he left the house to conduct the business at the Co-operate Society, Kashipur. The evidence of D. W. 1 and D. W. 2 referred earlier cannot be taken to indicate that the accused was there at the society at Kashipur at about 10 A. M. on the day of the occurrence. The distance of the office of the society from the village of the acused was about four kilometers as stated by D. W. 1, Teeka Ram Tiwari and since the business hours at the Co-operate Society were from 10 A. M. to 5 P. M. the accused tried to create false defence by conducting some business at the society on that day. However the evidence of D. W. I and D. W. 2 do not conclusively prove that the accused was there at the society at. 10 A. M. and the accused probably went there to show his presence after committing the crime as a measure to escape from the clutches of the law. The defence evidence in fact had taken away the steam from the falsely created defence boiler and rather it went against the accused and sufficiently established that accused tried to create false evidence of his absence since morning from his house.
38. The last circumstance mentioned at serial No. 8 is that after commission of the crime the accused ran away and was not available at his house. The evidence of P.W. 9, Moolraj Sharma, the investigating officer of the case prove that the accused was arrested in the night, near Nagnath temple at Kashipur. If the accused was innocent he would have remained in the house instead of running away from there and was thus arrested away from his house by the investigating officer. There can be no gainsaying that all these incriminating ircumstanes taken together unerringly lead to the inference that it was the accused Nirmal Singh who murdered his wife by throttling her neck at about 10 A. M. inside his house.
39. Learned counsel for the accused argued that on the same set of evidence and circumstances the accused alone could not have been held guilty of committing the crime when other three accused who were also attributed overt acts were let-off and acquitted by the learned Additional Sessions Judge. Learned counsel also urged that it was a case in which truth cannot be separated from falsehood and when such separation was impossible the accused-appellant alone could not have been held guilty of the commission of the crime. The learned Counsel pressed into service the decision of the Apex Court in the case of Narain v. State of M.P. MANU/SC/0084/2004 : (2004)2SCC455 . Here it need to be mentioned that the learned Counsel appearing on behalf of the revisionists persuasively argued that the evidence regarding other three accused was also cogent and reliable and the learned Addl. Sessions Judge was not at all justified in acquitting the three and convicting the accused appellant alone for committing the murder of the deceased. We have found that learned Addl. Sessions Judge gave cogent and weighty reasons to come to the conclusion that other three family members have not participated in the commission of the crime. No injuries were found on the feet and hands of the deceased which were according to the witnesses forcefully caught hold of by the other three accused and this aspect of the matter was also taken into account in drawing the inference that perhaps the eye-witnesses have been over zealous to implicate the other three along with the real culprit accused Nirmal Singh and thus decided to extend benefit of doubt to them. Considering the totality of the circumstances of the case the stand taken by the learned Addl. Sessions Judge was just and proper particularly when the separation of the grain of acceptable truth from the chaff of exaggeration and improbabilities was not possible in the case. It was thus also rightly observed that the principle 'Falsus in Uno Falsus in Omnibus' does apply to criminal trials in this country and it. is the duty of the Court to disengage the truth from falsehood to sift the grain from the chaff instead of taking an easy course of rejecting the prosecution case in its entirety merely on the basis of a few infirmities. We have re appreciated the evidence of the prosecution and circumstances as discussed above and are convinced that the case of the accused Nirmal Singh stand apart from the case of the other three accused and since the evidence and circumstances do not unerringly prove the guilt of the other three accused the accused-appellant Nirmal Singh alone was held guitly of committing the murder of the deceased. The reported decision in the face of the facts of the case would not be of any help for the cause of either the accused appellant or the revisionists. In short the three accused were rightly acquitted of the charge under Section 302/34 I. P. C.
40. In so far as the motive is concerned, it need to be stated at the outset that if occurrence is proved, motive is Immaterial. Even otherwise the evidence of P. W. 2, informant Jagir Singh and P. W. 6, Pyara Singh sufficiently establish that the accused has had the tendency of extracting money in lieu of dowry from his in-laws and even twenty five days before the ocurrence when a panchayat was held a decision was taken that informant shall part with sum of Rs. 5.000/- to be paid to his son-in-law, accused Nirmal Singh and who was not supposed to make any further demand of money in future. The learned Addl. Sessions Judge also discussed the motive aspect of the case in proper perspective and inferred that though the accused was an affluent person he had lust for wealth and used to demand money from in-laws. In all probability when the accused had such a tendency he thought of committing the murder of the wife so that he may remarry and thus be able to receive rich dowry. Learned counsel for the accused argued that according to the evidence of the prosecution itself the In-laws of the accused were just like a goose laying golden eggs and therefore the accused would not have thought of losing such a source by committing the murder of the wife and motive theory as put forward by the prosecution run counter to its own case. We see no merit in this argument because as the proverbial saving goes a man having lust for wealth and greed for money would not hesitate to stain a golden eggs laying goose. The accused by his temperament and psyche could have very well thought of doing away with his wife so as to have a new bride and receiving rich dowry. Considering these aspects of the matter we are convinced that the motive imputed by the prosecution against the accused Nirmal Singh for the commission of the crime was fully established.
41. For the reasons aforesaid, the evidence and circumstances as discussed above, we find that the accused appellant Nirmal Singh alone had been rightly held guilty, convicted and sentenced to Imprisonment for life under Section 302 I. P. C. for the offence^ of the committing murder of his wife. The appeal thus has no force and is liable to be dismissed.
42. The appeal is dismissed and the judgment dated 28-3-1981, passed by the then Additional Sessions Judge, Nainital is affirmed. The accused appellant Nirmal Singh is on bail. His ball bonds are cancelled and sureties are discharged. He shall be taken into custody forthwith to serve out the sentence.
43. The criminal revision filed on behalf of the informant and others is also dismissed.
44. Let the record be sent, back to the trial Court for compliance, to be reported to the Court within two months.