Rajinder Singh and Another vs State

P.K. Bhasin, J.—The filing of these two appeals is as a result of conviction of the five accused-appellants u/s 302/34 IPC by the learned Additional Sessions Judge, Delhi vide judgment dated 4-2-1993 and imposition of punishment of life imprisonment and fine vide order on sentence dated 22-2-1993 and since both the appeals arising out of the same judgment of the trial Court were heard together the same are being disposed of by this common judgment.

The Sessions Court had tried six accused persons for the offence punishable u/s 302/34 IPC for their having murdered one 19 years old bride Satwanti in her matrimonial home on the night of 30th March,1987. She was the wife of accused Umed Singh and daughter-in- law of accused Bharpai and sister-in-law (bhabhi) of accused Brahm Prakash. The prosecution had sought to establish their guilt primarily on the basis of the evidence of two eye-witnesses of the incident. They were the immediate neighbours of accused Umed Singh and the deceased in Village Jaffarpur Kalan, Delhi. The learned Additional Sessions Judge after examining the evidence of the two eye-witnesses convicted five accused persons. Sixth accused, Ram Phool, had died during the trial and consequently the case against him had abated. The five convicted accused challenged the decision of the trial Court by filing these appeals. During the pendency of the appeals, another accused Rajinder (who was appellant No. 1 in Crl. Appl. No. 42/1993) also died. This Court is now to decide the fate of remaining four convicts, namely, Umed Singh, Smt. Bharpai, Brahm Prakash and Dharamvir, who is the brother of the deceased accused R am Phool and Rajinder.

The prosecution version in respect of the occurrence is described by the complainant eye-witness PW-6 Hari Singh and his son PW-3 Dharam Pal, the other eye-witness. It would be more appropriate to notice the version of these two eye-witnesses given during the trial in their own words. This is what PW-6 claimed in his testimony before the trial Court on 21-12-88:

I know all the accused present in court, as they are my neighbours, and are also my collaterals. More than a year back, in between 8 to 9 p.m. I was at the house of my son Dharampal PW-3, who too was there. I heard loud voice of weeping of a woman. She was crying, he Ram bachaiyo bachaiyo mein mar geri. With the help of the cot, I and Dharampal had climbed the piri of the common wall. Accused Umed, his mother and other accused present in court, whose names I do not now recollect were beating the wife of the accused Umed Singh. I inquired from them why were they beating, whereupon accused persons said that it was their personal matter. Accused Ram Phool and Dharamvir were standing near the entrance of the room. Accused Umed told his mother to bring cloth/rope, and she had accordingly brought the rope. I do not know what happened thereafter. I am suspicious if accused Rajinder was present there or not. The two accused who were standing at the entrance, had inquired from the remaining co-accused if the work had been done, whereupon the remaining co-accused replied in the affirmative

PW-3 Dharam Pal''s version about the incident given by him before the trial Court is like this:

I know all the accused present in the Court. Their house is adjacent to my house. On 30-3-1987 at about 8-00 p.m. I along with my father Sh. Hari Singh was present in my house. We heard a noise MAAR GERI MAAR GERI RAM BACHAO BACHAO.. This was a voice of a lady. I and my father climbed up our wall and had seen accused Bharpai, Umed Singh, Dharambir, Rajinder, Brahm, Ram Phool were beating Satwanti wife of accused Umed Singh. The accused persons were saying that as Satwanti was making noise so her mouth and throat be pressed. Accused Umed Singh asked her mother Smt. Bharpai to bring a piece of cloth. Accused Rajinder and Umed tied that piece of cloth around the neck of Satwanti while accused Brahm caught hold of her hands. Accused Ram Phool and Dharamvir who were standing near the entrance, had come near Satwanti and enquired from the co-accused if Satwanti was dead to which they replied in affirmative. Both these accused had took Satwanti inside and made her to lie in the room. Bharpai had exhorted that Satwanti may not be spared at the time accused Umed and Rajinder had placed the piece of cloth around her neck.

The learned trial Judge accepted the evidence of these witnesses and held five accused persons guilty of murder of the deceased Satwanti.

Shri K.B. Andley, learned senior counsel for the appellants did not dispute the fact that PWs 3 and 6 were living in the house adjacent to the house of the deceased and accused Umed Singh and Bharpai. He also did not dispute that the deceased Smt. Satwanti died on the night of 30th March, 1987 inside her matrimonial home. Mr. Andley also did not challenge the prosecution case that her death was homicidal. That fact is even otherwise duly established from the evidence of PW-11 Dr. L.T. Ramani who had conducted the post-mortem examination of the deceased and had found the cause of death to be asphyxia from constriction of the neck. Evidence of two police officials, PW-8 Constable Ishwar Singh and PW-13 Sub-Inspector Vijay Singh, also lends support to this conclusion of ours. Both of them have deposed that when they had reached the house of the deceased on getting the information of the death of the deceased they had found the deceased lying dead. PW-8 had also deposed that when he had reached the spot at about 5 a.m. the deceased was found lying dead on a cot and some pieces of broken bangles, one pazeb and one ear-ring were seen lying on the floor and the same were seized by SI Vijay Singh(PW-13) vide memo Ex.PW-8/A.

Mr. Andley, however, very seriously challenged the findings of the learned trial Court holding the appellants guilty of the offence of murder relying upon the evidence of PWs 3 & 6. It was submitted that even though both the eye-witnesses in their respective examination-in- chief had deposed about the involvement of the accused persons in the incident which, according to them, had led to the death of Satwanti, there were many reasons for doubting the claim of these two witnesses of their being eye witnesses of the occurrence. Mr. Andley contended that the incident leading to the death of the deceased allegedly had taken place in the night of 30th March, 1987 and PWs 3 and 6 claimed to have witnessed that incident but they disclosed the information about the murder only on 10th April,1987 to the Sub-Divisional Magistrate (PW-10 Shri J.K. Dadu) and only then the FIR was registered. Learned senior counsel submitted that the abnormal delay in reporting the incident of murder by these so-called eye-witnesses, both of whom were admittedly inimical towards the accused, has remained totally unexplained and that circumstance by itself renders the prosecution case highly vulnerable. It was further contended by the learned senior counsel that the claim of PWs 3 and 6 of their being eye-witnesses of the occurrence becomes doubtful also for the reason that PW-6 Hari Singh although he claims to have gone to the police station in the early morning of 31st March, 1987 to report the matter to the police but the information which he gave at the police station at that time and which was recorded by the duty officer as DD No. 6A was not that the accused had murdered Satwanti but he had simply informed the police that he had seen the deceased returning back to her house at about 8 p.m. when she was hale and hearty but he had later on come to know that she had died and so he had come to the police station to give information about her death. In this regard Mr. Andley drew our attention to the cross- examination of PW-6 Shri Hari Singh where it was admitted by him that whatever was recorded in Ex.PW-6/A was correct. Mr. Andley also argued that both these eye witnesses cannot be believed also for the reason that they had not only not given any information to the police immediately on coming to know that the deceased had been murdered but even to the father and uncle of the deceased, who, as per the prosecution''s own case, had reached the house of the deceased same the night, it was not told by them that the deceased had been murdered by the accused persons which they would have definitely done if they had seen the deceased being strangulated by the accused persons. Mr. Andley also argued that there were many improvements made by the two eye-witnesses and that was noticed by the trial judge also. Our attention was drawn specifically to the observations made in para No. 11 of the judgment to the effect that:

A perusal of the above discussed evidence of the two witnesses-son and father, respectively, claiming to have witnessed the occurrence, and their statements Ex.PW10/B and Ex.PW-10/A made by them to the ld. SDM(PW-10) on 10-4-87 makes it clear that they have not only improved upon their statements in the court but have also introduced a new story of seeing the killing of the deceased by strangulation. This perhaps is their imagination and over-enthusiasm, influenced by the opinion of the doctor(PW-11) No doubt, there is exaggeration on the part of these two witnesses to depose against the accused, which has resulted in the introduction of imagination and falsehood.

In these circumstances, Mr. Andley contended, no reliance could be placed on the testimony of these witnesses in Court to the effect that on the night of 30th March, 1987 they had seen the accused persons beating and strangulating the deceased.

On the other hand, Shri M.N. Dudeja, learned Additional Public Prosecutor fully supported the judgment under challenge while contending that despite the admitted position that relations between the accused party and the complainant party(the father-son duo of eye witnesses) were inimical and certain improvements in their evidence had been noticed by the trial Court their evidence had been rightly believed by the trial Court ignoring these so-called infirmities which were strongly relied upon by the defence side while challenging the reliability of the evidence of the eye witnesses. Regarding the delay in the registration of the FIR, Mr. Dudeja drew our attention to the observations of the trial court made in the first para of the impugned judgment which says that the reasons for the delay were not attributable to the eye-witnesses but to the police officials.

We have dispassionately considered the submissions of learned advocates for both the parties. We have minutely and carefully examined, scrutinized and re-appreciated the evidence on record to come to our own conclusions to decide these appeals. We have also perused the judgment and record and proceedings of the case called for from the trial Court.

From the foregoing narration of facts, examination of the evidence adduced by the prosecution and submissions made by the counsel for the parties the admitted position which emerges and which might have a bearing on the fate of some of the accused while deciding their appeals is that the deceased Satwanti was married to accused Umed Singh and they were living together in a house in village Jaffarpur Kalan. Accused Bharpai is the mother-in-law of the deceased and accused Brahm Parkash is the brother-in-law of the deceased. Accused Dharam Vir, as per the statement of PW-3 and which statement has remained unchallenged, is also related to his co-accused persons, though exact relationship has not been given. He was living in a separate house at a distance of 400-500 yards from the house of Umed Singh. From the prosecution evidence, however, it is not clear as to whether accused Bharpai and her son accused Brahm Parkash were also living in the same house where accused Umed Singh and his wife Satwanti were living. It may also be mentioned here that accused Daharm Vir and his deceased brother Ram Phool were initially kept in column No. 2 of the challan by the police since during the investigation both of them, who were employees of Delhi Transport Corporation, were found to be on duty at the time of the incident(that was their defence also during the trial). The Sessions Court had, however, while passing the order on charge summoned them also to face trial alongwith other four accused persons.

The main attack on behalf of the appellants on the veracity of the testimonies of the two eye-witnesses is their failure to disclose the incident of 30th March to anyone till 10th April,1987 and even on 10th April they had not disclosed before the Sub-Divisional Magistrate, on whose directions the FIR was registered on 10th April,1987, that they had also seen the accused strangulating the deceased. There is no doubt that in this case the incident was of 30th March, 1987 while the FIR was registered on 10th April, 1987. There is also no doubt that in the DD No. 6-A, Ex. PW-6/A, recorded by the police at about 4.05 a.m. on 31st March, 1987 on the basis of information given by PW-6 Hari Singh at the police station it is not recorded that the accused persons had beaten the deceased Satwanti and the only information recorded in this Daily Diary entry is that at about 8 p.m. on 30th March, 1987 the deceased was hale and hearty but later on the informant had come to know that she had died and so he had come to the police station to lodge the report. However, in our view there are sufficient reasons for ignoring the delay in the registration of the FIR as well as for the absence of the details of the incident which the informant, PW-6 Hari Singh, had witnessed and as was claimed in his evidence before the Court, in DD- 6A, heavily relied upon by the defence for securing acquittal. PW-6 had claimed in his examination-in-chief itself that he wanted to report the matter immediately but he was dissuaded by his son and brothers from going to the police station as it was a family matter of the accused persons. We do not find anything abnormal in the relatives of the informant telling him not to go to the police station as it was a family matter of the accused persons particularly when both the witnesses had only seen the accused persons beating the deceased, as was claimed by them before the Sub-Divisional-Magistrate. However, it appears that the conscience of PW-6 did not allow him to keep quiet and so despite his family members discouraging him for going to the police he went to the police station at about 4 a.m., by which time he had already come to know that the deceased had died. We are satisfied about the reason for PW-6 not going to the police station immediately after seeing the deceased being beaten.

As far as the contents of DD No. 6A are concerned, it was pointed out by the learned APP that when he had reached the police station in the early morning his report was not recorded but his thumb marks were obtained by the police at four places. Mr. Dudeja submitted that it was evident from this statement of the witness and the observations of the trial Judge in para No. 1 of the impugned judgment, that the police was really not interested in registering the FIR. We find substance in this submission of Mr. Dudeja and the same gets re- enforced by the following observations of the learned trial Judge also made in the first para itself of the impugned judgment:

This case pertains to the murder of a young bride of 19 years of age in her matrimonial home in village Jaffarpur Kalan on 30- 3-87. It has startling facts, illustrative of the police-apathy and their all-out efforts to hash up the matter which is evident from the conduct of the local Station House Officer of P.S. Nazafgarh, who dared not to carry out the directions of his immediate superior the Illaqua Sub-Divisional Magistrate, Punjabi Bagh. This case of murder would have met with its unceremonial burial, but for the quick action taken by a good-smartian an illiterate rustic, who could not suppress voice of his conscious and therefore, in the mid of night on the last day of March, 1987, travelled from his village Jaffarpur Kalan to P.S. Nazafgarh situated at a distance of 5/6 k.m. It is, he, who made a report regarding the offence having been committed in his neighbor-hood and on his initiative the police shoed their promptness, initially by dispatching a police officer of the rank of Sub-Inspector with a Constable in the darkness of early hours before the day break to inquire into the information given by him. The police officer found the dead-body of Smt. Satyawanti w/o Umed Singh S/o Rajroop r/o Jaffarpur Kalan in that village, lying on a cot suggesting that a young hapless lady had been exterminated within the four walls of her matrimonial home. The police officer performed his initial duties with deafness in conducting inquest proceedings. He sent the dead-body of Satyawanti immediately for post-mortem to the mortuary. However, later on he became luke-worm in taking further action despite that the Doctor, who performed autopsy on the dead-body found that it was a case of death caused due to asphyxia resulting from ligature construction of neck and gave the time of death as 6 hours from the time of post-mortem which was conducted at 12 noon on 31-3-87. The Doctor, therefore, had to summon the Learned Sub-Divisional Magistrate of the Illaqua, who then conducted inquiry proceedings u/s 176 of the Cr.P.C. and got this case registered vide his letter dated 10-4-87 at P.S. Nazafgarh, Delhi i.e. after 10 days of the crime. Again the local police did not co-operate and despite the investigation was transferred to another officer of the police station, the job had to be assigned to the Assistant Commissioner of Police (Crimes) Women Cell. Only then, some of the accused could be got arrested in this case on 5.- 5-87 while one of the accused i.e. mother-in-law of the deceased obtained orders for her bail from the Hon''ble High Court and two of the accused were found to be on their respective duties on D.T.C. at the time of alleged commission of the offence.

There is no dispute about the fact that PW-6 did go to the police station at about 4 a.m. on 31st March.1987. This is what he stated in his evidence about his visit to the police station:

...At the police station my report was not recorded. SI Vijay Singh and one constable whose name I do not recollect has left motor cycle for my village on motor-cycle to verify the facts told by me to police while I was made to sit at PS. SHO had also gone to the village. Police had brought the body of wife of accused Umed Singh, and thereafter my thumb marks were obtained by the police at four places, and thereafter I was allowed to go to my house. I have seen my thumb marks at 2 places on DD No. 6A, at 31.3.87, which were then obtains from me by police. Copy of the said DD entry is Ex.PW-6/A....

PW-6 thus claims that his statement was not recorded at that time while the police claims that whatever he reported was noted in DD No. 6A. That claim of the police, however, is unbelievable and there are some circumstances which persuade us to accept the word of PW-6 Hari Singh. PW-6 would not have gone to the police station at the unearthly hour only to inform the police that at about 8-8.30 p.m. he had seen the deceased hale and hearty and thereafter he had come to know about her death. If actually he had claimed so before the police, the police would not have come into action immediately since there was no cognizable offence being reported. The copy of DD-6A was given to PW-13 Sub-Inspector Vijay Singh for enquiry and he alongwith PW-8 Constable Ishwar Singh had reached the house of the deceased at about 5.15 a.m., as deposed by PW-8. That shows that in fact PW-6 must have given some information to the police from which some foul play was suspected for which enquiry was considered necessary and immediately some policemen were rushed to the spot. In these circumstances, we have no reason to disbelieve the statement of PW-6 that when he went to the police station his exact information was not recorded at that time and it was only recorded that he had seen the deceased hale and hearty around 8 p.m. That fact also he must have informed the police and so his admission in cross-examination, which admission was being strongly relied upon by the learned Counsel for the appellants, that whatever was recorded in Ex.PW-6/A was correct would not show that he was admitting that that was the only information given by him to the police.

The disinterestedness of the police in registering any FIR is also evident from the fact when the Sub-Inspector visited the house of the deceased and had found her dead body in the house, the dead body was removed to mortuary. It is obvious that nobody from the family of accused Umed Singh was present at that time in the house as otherwise it would have been informed to the police that the deceased had died a natural death, as is their defence and they would have also protested against the removal of the corpse to the mortuary for being preserved there for post-mortem examination. Post-mortem examination was got conducted on that day. That shows that some foul play was being suspected by the police but no case was registered. Even when during post-mortem examination on 31st March the autopsy surgeon(PW-11) had noticed ante-mortem injuries over the neck and had opined the cause of death of the deceased to be asphyxia resulting from ligature constriction of neck. no case was registered by the police. All these tell-tale circumstances do show the efforts of the police to hush-up the case and, therefore, no fault can be found with the two eye witnesses and they cannot be blamed for non-registration of the FIR on the night intervening 30th March and 31st March, 1987. Thus, the delay in the registration of the FIR fully stands explained by the prosecution. The prosecution case, therefore, cannot be thrown overboard for this reason put in the forefront by the learned Counsel for the appellants.

The next ground of challenge to the reliability of the testimony of the two eye-witnesses pressed into service by the appellants. counsel was that even before the Sub-Divisional- Magistrate(PW-10) on 10th April, 1987 the two eye witnesses did not claim that they had seen the accused persons strangulating the deceased and they had spoken only about their beating the deceased but in the Court PW-3 Dharam Pal had introduced a new case that he had seen the accused strangulating also and since that was an improvement on a very material aspect the testimony of this witness cannot be relied upon at all on any aspect and even on his version of beating of the deceased by the accused. It was also contended that there were discrepancies on material aspects between the evidence of father and son and even the trial Court had noticed that fact. Mr. Andley argued that these infirmities in the prosecution have to be given due weightage and significance, taking into consideration the admitted position of the prosecution that there was enmity between these eye witnesses and accused Umed Singh and his family.

There is no doubt that PWs 3 and 6 had both not claimed before the Sub-Divisional Magistrate on 10th April, 1987 that the accused had also strangulated the deceased on the night of 30th March, 1987 and it is also clear and has been observed by the trial Court also that there are some discrepancies in the evidence of PWs 3 and 6 and also that it is the prosecution case itself that there was some enmity between these witnesses and accused Umed Singh. Once PW-3 was detained by the police on some complaint lodged by accused Umed Singh and some civil litigation was also going on between them in respect of the common wall between their houses. Now, we have to examine what needs to be done by a criminal court when the prosecution examines witnesses of some crime who are inimical towards the accused facing trial on some charges. The Supreme Court has on a number of occasions in its various judgments given its views on this aspect which are to be followed by the Courts. In the case of Anil Rai v. State of Bihar reported in : (2001) 7 S.C.C. 318, the Hon''ble Supreme Court has given guidelines as to how the evidence of inimical witnesses to the accused person should be appreciated by holding as follows:

The contention that as the witnesses relied upon by the courts were inimical towards the accused persons, their testimony could not be relied upon without corroboration in material particulars cannot be accepted.. In case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission. Testimony of eyewitnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eyewitnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime.

Similarly in Raghubir Singh Vs. State of U.P., the Supreme Court had while dealing with the contentions regarding the evidentiary value of inimical witnesses observed as follows:

..in cases where there is enmity between two factions then there is a tendency on the part of the aggrieved victim to give an exaggerated version and to rope in even innocent members of the opposite faction in a criminal case and that, therefore, the Court has in all such cases to sift the evidence with care and convict only those persons against whom the prosecution witnesses can be safely relied upon without raising any element of doubt.

The Supreme Court in Gangadhar Behera and Others Vs. State of Orissa, had also laid down guidelines to be followed by the criminal Courts while analyzing the evidence of witnesses who not only make improvements and embellishments during their evidence in Court but also introduce some element of falsehood, as has been found by the trial Court in the instant case to have been done by PWs 3 and 6. This is what was held by the Supreme Court:

...Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law....

Thus, evidence of even those witnesses who are inimical towards the complainant side and are found to have roped in some innocent persons also for the commission of some crime cannot be rejected in its entirety for that reason alone. Evidence of PWs 3 and 6, therefore, cannot be straightaway discarded because they had some enmity with accused Umed Singh, husband of the deceased, but their evidence needs to be scrutinized greater care. Similarly because of some discrepancies between the evidence of PWs 3 and 6 their evidence cannot be discarded totally from consideration. We have thus very carefully and cautiously examined and analysed the evidence of these two material prosecution witnesses in respect of each of the surviving accused keeping in mind the fact that they were on inimical terms with accused Umed Singh and his family and the inter-se discrepancies and the improvements made by them during their evidence before the trial Court.

As far as accused Umed Singh is concerned, both the witnesses have categorically deposed against him that he was seen by them beating his wife on the night of the incident. They were undisputedly the immediate neighbours of the deceased and accused Umed Singh on the date of the incident. The incident had taken place around 8.30 p.m. and at that time the presence of these witnesses in their house was quite natural. So, they could have easily heard the cries of the deceased when she was being beaten. These witnesses could not be shaken in cross- examination as far as their statements that they had seen accused Umed Singh beating his wife are concerned and we find no reason to disbelieve them. There is no doubt that PW-3 Dharam Pal had also claimed that Umed Singh had tied a piece of cloth around the neck of his wife to strangulate her but to that extent he had definitely made an improvement since he had not claimed so before the Sub-Divisional Magistrate in his statement Ex.DA made on 10th April,1987. In that statement he had only claimed that while beating the deceased the accused persons were saying to gag her as she was making noise. Similarly the statement of PW-6 Hari Singh to the extent that accused Umed Singh had asked his mother at the time of the incident to bring a piece of cloth or rope and then she had brought a rope was an improvement to his version before the SDM made by him also on 10th April,1987 vide statement Ex.DB in which he had not claimed so. Therefore, these improved statements in Court by these witnesses have to be ignored but not the whole of their statements made in Court, as was the submission of the learned senior counsel for the appellants. In this regard we have already referred to the views of the Supreme Court in Gangadhar Behra''s case (supra) which fully fortify this view of ours.

Thus, from the foregoing discussion of the prosecution evidence the circumstances which can be said to have been established beyond any shadow of doubt are that the deceased and her husband accused Umed Singh were living together in a house in village Jaffarpur Kalan, which fact Umed Singh himself also admitted in his statement u/s 313 Cr.P.C.; the deceased died a homicidal death in her matrimonial house in the night of 30th March,1987; at about 8.30 p.m. on 30th March,1987 accused Umed Singh was seen by his immediate neighbours, PWs 3 and 6, beating his wife, the deceased; she died around 8.30 p.m. on 30th March,1987, and that fact is clear from the evidence of the autopsy surgeon who has claimed that he had conducted the post-mortem examination on 31st March,1987 at 12 noon and had opined the time since death to be about 16 hours. These circumstances by themselves, in our view, are sufficient to hold at least accused Umed Singh guilty of murder of his wife.

PW-6 Hari Singh had also deposed that accused persons used to say that they would bring another girl having two chotis. Similarly, PW-3 Dharam Pal also deposed that accused Umed Singh ever since his marriage with the deceased used to say that he would remarry after killing his wife since her complexion was black. These statements were being pressed into service by the prosecution to show that the accused persons had a motive to kill the deceased. However, simply on the basis of the ipse dixit of these two neighbours who were inimical towards accused Umed Singh it cannot be accepted that Umed Singh was claiming so. It is highly improbable that Umed Singh would share his unhappiness with his wife with his enemy. There is no other evidence on this aspect. So, we hold that the circumstance of motive against accused Umed Singh does not stand established beyond reasonable doubt. But, even after excluding this circumstance the guilt of accused Umed Singh stands established from the circumstances which we have already found to have been established beyond any shadow of doubt.

Now, we come to the defence of accused Umed Singh. He had taken a plea of alibi by putting to PW-6 in his cross-examination and also in his own statement u/s 313 Cr.P.C. that at the time of the occurrence he was not present at his house but was at his agricultural field on the thresher as it was harvesting season. However, this accused has not even attempted to substantiate his plea of alibi which shows that he had taken a false plea. He has also not come forward with any stand during his statement u/s 313 Cr.P.C. as to when he came to know about the death of his wife and where and what he did after he came to know about her sudden death, which he must have come to know. It is significant to note that during the cross- examination of PW-6 Hari Singh a suggestion was put to him that on the day of the incident around 9 p.m. the deceased had fallen sick and she was taken to a hospital where she was declared dead and so was brought back home. The witness denied the suggestion and though he admitted that the deceased was taken in a car but according to him that was only to cause disappearance of her body but was brought back. Accused Umed Singh, however, during his statement did not take even that plea nor any evidence was led to show that the deceased was taken to some hospital where she on being examined was found already dead. Absence of any explanation in that regard also shows the falsity of his plea of alibi and a strong circumstance suggesting his involvement in the death of his wife. These are additional circumstances which also the prosecution can rely upon against accused Umed Singh. For this view we find support from a judgment of the Supreme Court in State of Rajasthan Vs. Mahavir @ Mahavir Prasad, , wherein also the husband was tried for the offence of murder of his wife and he had taken a plea of alibi. The trial Court did not accept the plea of alibi and convicted the accused husband. However, in appeal the High Court accepted that plea and acquitted the accused husband. The Supreme Court, when approached by the State in appeal, held that the plea of alibi was not proved. The Supreme Court held that the failure of the accused husband to establish the plea of alibi could also be used as an additional circumstance by the prosecution. It may be noticed that in that case the main circumstances relied upon by the trial Court for convicting the husband were that he and his wife were living together, the husband used to harass his wife for dowry and that on the night when the incident of burning took place the husband was at home and during the trial he had taken the false plea of alibi. Based on these circumstances the Supreme Court also restored the conviction of the accused husband as ordered by the trial Court and his acquittal by the High Court was set aside. This is what was observed by the Supreme Court while considering these circumstances and the plea of alibi taken by the accused husband:

As indicated earlier, it is not disputed that the respondent and his wife were staying together and none else was residing with them. Therefore, if death occurs in suspicious circumstances, a reasonable explanation was expected from the respondent. The only explanation that was sought to be given by the respondent was that he was away from Bikaner to Deshnok. between November 21, 1982 and November 24, 1982 and since he was not present during the night intervening between 23rd and 24th November, 1982, he could not be held responsible for the death of Radha. This plea of alibi of the respondent, in our considered view is an afterthought attempt. Except his bare words, no other material in support thereof was adduced by the respondent. In view of the absence of any material on record, in our opinion, the trial court was right in rejecting the plea of alibi. The High Court has committed an error while accepting the said plea without any material on record.

xxx xxx xxx

In addition to the circumstances mentioned above(other circumstances noticed were the homicidal death of the deceased), one more circumstance, namely, the false plea of alibi taken by respondent which cannot be brushed aside. No probable case was even made out by the respondent to support his plea of alibi that he had gone to see his ailing maternal grandmother at Deshnok. If this be so, the prosecution was right in relying upon this circumstance also to complete the chain of circumstantial evidence.

However, as far as accused Bharpai, Dharamvir and Brahm Parkash are concerned we are inclined to give them the benefit of doubt for the reasons that there is no clear evidence adduced by the prosecution as to whether they were also living with Umed Singh in the same house where the incident took place. So the prosecution cannot even have the benefit of Section 106 of the Evidence Act against these three accused persons. There are no circumstances appearing on record which could lend assurance to the testimony of PWs 3 and 6 as against these three accused persons, as are available against accused Umed Singh which clearly suggest that he (Umed Singh) alone had killed his wife.

We, therefore, maintain the conviction of accused-appellant Umed Singh but convert his conviction from Section 302/34 IPC to one u/s 302 IPC simpliciter and consequently his appeal stands dismissed. He was granted bail during the pendency of his appeal and now that his conviction for the offence of murder is being maintained his bail bonds stand cancelled and he shall be taken into custody forthwith and lodged in jail to serve out the remaining part of the sentence of life imprisonment. Appeals of other accused-appellants, namely, Smt. Bharpai, Brahm Parkash (who were the co-appellants in Crl. Appeal No. 59 of 1993) and Dharam Vir (who was the co-appellant in Crl. Appeal No. 42 of 1993) are allowed and they stand acquitted of the charge of murder. They were also on bail during the pendency of the appeals and with their acquittal their bail bonds stand discharged.