Surjit Singh, J.
1. Appellant Man Bahadur has appealed against the judgment dated 18th May, 2006 of learned Sessions court, whereby he has been convicted of an offence, punishable under Section 302 Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5000/-, in default of payment of fine to undergo imprisonment for a further period of three months.
2. Appellant was working as labourer in the area of village Kiar-kothi, Tehsil Kotkhai District Shimla. Deceased Padam Bahadur Thapa was employed in the area of same village with PW-4 Kehar Singh. Deceased had been provided a temporary shelter (Dhara) comprising of one room for his stay. Deceased along with his wife Dilma Thapa (PW-3) used to live in that Dhara. Appellant and his wife Tara also started living with the deceased and his wife in the said Dhara. Appellant developed a suspicion that the deceased had been having illicit intimacy with his wife Tara. On 27th June, 2004, deceased, appellant and Tara went together to work in the fields. There the appellant and deceased happened to quarrel with each other, when the appellant made the accusation that the deceased was having illicit relations with his wife. In the evening, they returned to the Dhara of the appellant. Fish had been arranged that evening, which was cooked at the place of the deceased. Besides the deceased, his wife Dilma Thapa (PW-3), the appellant and his wife Tara, there were two other persons, namely, Tej Bahadur (PW-6) and one Sehdev and also Sehdev's wife Bimla (PW-5), who took their evening meals at deceased's place. Bimla's child went to sleep at deceased Dhara so Bimla also slept there in the night while her husband Sehdev accompanied by Tej Bahadur went to his own nearby Dhara. Around mid night Bimla heard sound of something striking against another thing. She woke-up Dilma Thapa (PW-3) and asked her to light the lamp. In the light of lamp, it was found that axe Ext. P1 was stuck in the head of deceased Padam Bahadur Thapa and he was dead. Appellant, who had slept in that very Dhara was found missing and the door was bolted from outside.
3. Kehar Singh (PW-4) with whom the deceased was employed was informed by Dilma Thapa. Police was informed. PW-14 Sukh Dev Raj A.S.I., accompanied by some other police officials reached to the spot. He recorded the statement, under Section 154 of the Code of Criminal Procedure, of Dilma Thapa, which is Ext. PW-3/A and sent the same to the Police Station for formal registration of the case. Case was registered on the basis of that statement.
4. Inquest was conducted. Scene was got photographed. Dead body was sent to Primary Health Centre, Garaug, Tehsil Kotkhai District Shimla for postmortem where PW-1 Dr. Surinder N. Gupta conducted the autopsy. He found an oblique incised gaping brain deep wound measuring 10x4x4 cm over the left parietal bone. Lot of clotted blood was found in the brain, near/around neck, nose and mouth. There were fractures in scalp and fracture parietal bone. Membranes of the brain were damaged. The cause of death was opined to be extensive haemorrhage and shock as a result of head injury. Postmortem was conducted on 28.6.2004 and probable time gap between death and postmortem was opined to be within 36 hours and the death was opined to have taken place instantaneously with the infliction of the injury.
5. Appellant was arrested by PW-15 Sub Inspector Yogesh Dutt on 19th September, 2004 at Solan.
6. On completion of the investigation, appellant was challaned. Judicial magistrate committed the case to the learned Sessions Court, after complying with the requirement of Section 207 of the Code of Criminal procedure. Appellant was charged with the offence under Section 302 Indian Penal Code, to which he pleaded not guilty and was therefore put on trial.
7. Prosecution examined eighteen witnesses to bring the charge home. Relevant and material witnesses are PW-3 Dilma wife of deceased, PW-5 Bimla wife of Sehdev who had stayed in the Dhara in question, on the relevant night PW-6 Tej Bahadur who had taken meals at the Dhara of the deceased, on the relevant night and PW-1 Dr. Surinder N. Gupta, who conducted the postmortem examination.
8. Defence did not deny the violent death of the deceased. However, appellant took the plea of alibi. According to him on 27th June, 2004, he had gone to Solan to collect money which his aunt (father's sister) had sent from Nepal through DW-1 Sher Bahadur and did not return to his place for several days.
9. Learned trial court has disbelieved the plea of the appellant and relying upon the circumstances that the appellant had slept in the same Dhara where the deceased had slept and was found missing after the murder of the deceased.
10. We have heard the learned Counsel for the appellant as also the learned Assistant Advocate General for the respondent and gone through the record.
11. PW-3 Dilma Thapa and PW-5 Bimla testified unequivocally that on the relevant night, appellant was at the deceased's place and that they all, i.e., two witnesses named above, the deceased, the appellant besides PW-6 Tej Bahadur and Sehdev, husband of Bimla had taken their meals at deceased's place and after taking the meals while Tej Bahadur and Sehdev went to Sehdev's nearby Dhara for sleeping as the accommodation at the deceased's Dhara was not enough for all of them, they (two witnesses namely Dilma Thapa PW-3 and Bimla PW-5), deceased and the appellant slept in deceased's Dhara. PW-5 Bimla stated that around mid night, she heard a 'thak' (sound produced by striking of two objects with each other) and woke-up PW-3 Dilma Thapa and asked her to light the lamp and when lamp was lighted, they noticed that axe Ext. P1 was stuck in the head of the deceased and the appellant was missing. They also stated that the door of the Dhara was found chained from outside and one of them taking advantage of the gap in the planks of the door extended her hand out to unchain it. Suggestions were thrown to these witnesses that the appellant was not there in the Dhara that evening as he had gone to collect money remitted by his aunt (bua) from Nepal. They denied the suggestions.
12. PW-6 Tej Bahadur, who also took his meal at the Dhara of the deceased that night, testified that the appellant was very much present in the Dhara along with his wife Tara that night and he shared meals with other persons and thereafter he (the witness) along with Sehdev went to Sehdev's Dhara, while Sehdev's wife Bimla slept at deceased's Dhara because her child had already gone to sleep there. No suggestion was put to the witness that the appellant was not at deceased's Dhara on the relevant night or that he had gone to collect money remitted by his aunt from Nepal. Thus, the testimony of this witness has remained unchallenged.
13. Appellant examined DW-1 Sher Bahadur working at a Saw-mill at Solan who testified that on 27th June, 2004, appellant came to him at 11 a.m. and asked if his aunt (bua) had sent any money for him and he informed him that she had not sent any. He stated that appellant then stayed back with him and worked at the Saw-mill for 26-27 days as the wages offered to him at the Saw-mill were almost double the wages which he had been earning in village Kothi.
14. In the cross-examination the witness stated that he recollected the date because the attendance of the appellant used to be marked in the Register maintained by the Saw-mill owner. No effort was made by the appellant to get produced the said attendance Register.
15. Testimony of DW-1 Sher Singh does not inspire confidence. Appellant's specific and categoric plea is that his aunt had sent money through DW-1, which he went to collect on the relevant day. Sher Bahadur states that the aunt of the appellant had not sent any money for him. Also DW-1 Sher Bahadur says that the appellant stayed back and worked at the Saw-mill for 26-27 days, but the appellant himself does not say so. Thus, the plea of alibi raised by the appellant stands disproved.
16. Besides the aforesaid two circumstances, viz. presence of the appellant at the Dhara of the deceased on the relevant night and his having absconded from the area immediately after the commission of the crime, there is another circumstance which points to the guilt of the appellant. Tej Bahadur (PW6) very categorically stated that on the relevant evening appellant was not talking to his wife Tara and the reason was that the appellant suspected that she was having illicit relations with the deceased. He stated that he and Sehdev told the appellant not to suspect the fidelity of his wife as the deceased was a good man and so his character should not be doubted. The witness further stated that deceased himself offered to swear at temple that he did not have any relationship with the wife of the appellant. This part of the testimony of Tej Bahadur has also remained unchallenged. His testimony proves that the appellant had a strong motive to kill the deceased.
17. In view of the above stated position, we see no merit in the present appeal. The same is, therefore, dismissed.