Ratnesh Kumar Pandey vs State of U.P.

Rakesh Tiwari, J.

Heard Sri R.P. Tiwari, learned counsel for the appellant, Sri Sher Singh, learned AGA and perused the record.

This criminal appeal is directed against the judgment and order dated 8.7.2003 passed by Sri Krishna Singh, Additional Sessions Judge, Court No.2, Gorakhpur in S.T. No. 355 of 2001, State versus Ratnesh Kumar Pandey and others and S.T. No. 510 of 2001, State versus Smt. Maya Rani and others, convicting and sentencing the appellant Ratnesh Kumar Pandey under Section 302 IPC to undergo imprisonment for life with a fine of Rs.10,000/ (Ten Thousand). It was further directed that in default of payment of fine the appellant shall further undergo 1 year RI.

The appeal is preferred on the ground that the conviction and sentence by the Court below are against the weight of evidence on record and contrary to law; that the conviction and sentence being too severe and in the facts and circumstances of this case, the appeal is liable to be allowed by setting aside the judgment and order of the Court below.

This case has its genesis in FIR dated 31.1.2001 lodged at 10.05 A.M. in respect of occurrence, which is said to have taken place at Mohalla Awas Vikas Colony, Tiwaripur, Gorakhpur on the night of 30/31.1.2001 within the jurisdiction of PS Tiwaripur, Sadar, District Gorakhpur.

Ratnesh Kumar Pandey son of Sri Prabhu Nath Pandey resident of House No. A353, Avas Vikas Colony, PS Tiwaripur, Gorakhpur was married to Suman, who was the sister of first informant Chandra Shekhar Pandey son of late Rajendra Prasad Pandey resident of village Dharmshala, PS Gagha, District Gorakhpur. According to the averments made in the FIR, the marital relations between accused Ratnesh Kumar Pandey and his wife deceased Suman were passing through a troubled phase. Suman used to inform about tense relationship between her and her husband to her Inlaws and for about two months before her death she was living with her brother, the first informant. On 29.1.2001, Ratnesh Kumar Pandey took Suman to his house in the evening. The first informant was informed by a relative that his sister had been murdered by accused Ratnesh Kumar Pandey and one unknown person and her body was lying in the room.

On the basis of chik report case crime no. 13 of 2001, under Section 302 IPC was initially registered against accused Ratnesh Kumar Pandey and one unknown person. It was partly investigated by SubInspector Sri Gopal Swaroop Bajpai and partly by C.O. Sri O.P. Pandey and C.O. Sri Ajay Shankar Rai, under Sections 498A, 304B/34, 120B IPC and Section � Dowry Prohibition Act, against accused Ratnesh Kumar Pandey, Prabhu Nath Pandey, Smt. Mayarani Pandey, Rajesh Kumar Pandey and Smt. Poonam Pandey. After completing the investigation Charge sheet no. 24/2001 was submitted against accused Ratnesh Kumar Pandey, Ramzan, Prabhu Nath Pandey, Rajesh Kumar Pandey and Charge sheet no. 24A/2001 was submitted against Smt. Mayarani wife of Sri Prabhu Nath Pandey and Smt. Poonam Pandey wife of Sri Rarjesh Kumar Pandey.

The cases were committed to the Court of Sessions vide orders dated 16.7.2001 and 13.11.2001 passed by the Chief Judicial Magistrate, Gorakhpur and were registered as S.T. Nos. 355 of 2001 and 510 of 2001 respectively.Both the cases were consolidated vide order dated 5.1.2002 and S.T. No. 355 of 2001 was made as the leading case and charges against the accused Ratnesh Kumar Pandey, Prabhu Nath Pandey, Rajesh Kumar Pandey, Smt. Mayarani and Smt. Poonam Pandey under Sections 498A, 304B IPC and Section � Dowry Prohibition Act were framed.

In so far as accused Ratnesh Kumar Pandey is concerned, he was also additionally charged under Section 302 IPC . Accused Ramzan was also charged under Section 302 and 120B IPC. All the accused persons denied the charges and claimed to be tried.

The prosecution in support of its case examined ( PW 1), Sri Chandra Shekhar Pandey, (PW 2) Sri Ram Prakash Dubey, (PW 3), Smt. Yasoda, (PW 4), Sri Hari Shankar Pandey, (PW 6) Sri Daya Shankar Tripathi, (PW 6) Dr. V.V. Tripathi, (PW 7), Sri Gopal Swaroop Bajpai (PW 8), Sri Om Prakash Pandey and (PW 9) Sri Ajay Shanker Rai.

The accused were examined by the Court under Section 313 Cr.P.C. and denied the prosecution story. They also produced ( DW 1), Sri Ram Chandra Shukla, (DW 2), Sri Chandra Bhushan Shukla, (DW 3) Sri Chandra Prakash Tripathi and ( DW 4) Sri Ramanuj Rai in support of their case.

PW 1, Chandra Shekhar Pandey, the first informant in his evidence stated that his sister Suman had been married according to the Hindu rituals with Ratnesh Kumar Pandey, accused and according to the demand of the Inlaws a sum of Rs. 1,50,000.00, cash and other things in dowry were given and ''Gauna'' of Suman was done in March, 2000. She had told him that her husband Ratnesh Kumar Pandey, fatherinlaw, Prabhu Nath Pandey, motherinlaw Smt. Mayarani, Jeth Rajesh Kumar Pandey and Jethani Smt. Poonam Pandey were demanding refrigerator and washing machine and for this reason strained relations had developed between husband and wife; that Suman had come 34 times to the house of PW 1 and told that she was being beaten and abused by her Inlaws ; and that accused Ratnesh Kumar Pandey had come on a jeep along with the driver on 28.1.2001 for ''Vidai'' of Suman. After ''Vidai'' in the evening of 29.1.2001, they had not seen Suman alive again and had been informed by Rama Prakash Dubey their relative that Suman had been murdered by her husband Ratnesh Kumar Pandey and one unknown person; and that he immediately proceeded for Gorakhpur and on seeing the dead body of Suman he was perplexed and went to the police station where FIR (Ex.Ka1) was lodged. He stated that Rama Prakash Dubey is his cousin, being the son of his ''Bua''. He had been the person who had got the marriage fixed with Ratnesh Kumar Pandey, whose parents were living in a house situated about 200 yards from his house and they were earlier living in Padalganj in another house. In his crossexamination he stated that accused Ratnesh Kumar Pandey had informed before marriage that he was graduate but after marriage with Suman it came to light that he was educated up to High School and he had purchased a jeep after the marriage which was the source of income. He also narrated that for the last 2 years Suman was living in their house and on 29.1.2001 Ratnesh Kumar Pandey had taken her to his house in the evening. He also confirmed about the dowry demand. Regarding information of death of his sister he stated that Rama Prakash Dubey had informed him at about 7.30 A.M. on 31.1.2001 about the death of his sister by telephone and on receipt of information he proceeded to the house of accused at Gorakhpur at about 8.30 A.M. where he reached at about 9.30 A.M. There was crowd standing there but the police had not reached, hence he went to the police station and after lodging the FIR he came back at the place of occurrence at about 10.15 A.M. He also stated that none of the accused were at the house where the occurrence had taken place. When he had first reached Gorakhpur, he met Smt. Maya Rani and Prabhu Nath Pandey and when he came back after lodging the FIR, the other accused were not there. He also stated that he had not specifically written the name of accused Ramzan in the FIR but had clearly written that his sister was murdered by Ratnesh Kumar Pandey and one unknown person and denied the suggestion that Rantesh Kumar Pandey had no nexus with the incident.

PW 2, Rama Prakash Dubey also corroborated the statement of PW 1 and supported the prosecution story by saying that Rs.1,50,000.00 and other goods were given in the dowry of Suman; and that Inlaws of Suman were demanding refrigerator and washing machine. He also stated that his house is situated about 50 yards from the house of accused Ratnesh Kumar Pandey and at the time of ''Bhaiduij'' he had gone to her house where he had met fatherinlaw, motherinlaw, husband, Jeth and Jethani of Suman, who had informed her that till that demand of refrigerator and washing machine was not met, they will not send Suman to her parents house. He had met Suman, who told him that the behaviour of the Inlaws were not good and she was beaten and abused. Some money was also paid to Ratnesh Kumar Pandey for the jeep and about two months back accused Ratnesh Kumar Pandey had left Suman with her parents saying that if the aforesaid demands were not met they will not send back Suman to their house. However, on 29.1.2001, accused Ratnesh Kumar Pandey had taken her away and she was not found alive thereafter. He was also a witness of the Panchayatnama, which was proved by him and exhibited as (Ex.Ka2).He also stated that on the showing of accused Ratnesh Kumar Pandey the police had recovered blood stained knife used in the murder of Suman from the kitchen in the second storey of the house at about 11.30 P.M. At the time of recovery of knife he was at the door of the kitchen and saw accused Ratnesh Kumar Pandey coming out with the knife in his hand. The knife was sealed at the spot on which he and Rajendra Kunwar had signed on the fard. In his crossexamination he stated that Prabhu Nath Pandey had a house at Gorakhpur in Surya Kund and land in Paidalganj and the house was constructed after the marriage of Ratnesh Kumar Pandey with Suman and that accused Ratnesh Kumar Pandey had a tempo and an old Fiat car which he was using as taxi.

PW 3, Smt. Yasoda, the mother of deceased Suman stated that the marriage of Suman was solemnized with Ratnesh Kumar Pandey about 3 and a half years back and she had come to her ''Mayaka'' 34 times. Thereafter, she had complained about the misbehavior of the accused persons, who were demanding refrigerator and washing machine and used to beat her. She stated that she had told her daughter that their dowry demand would be fulfilled as soon as some money is arranged; that accused Ratnesh Kumar Pandey had come a day earlier prior to the incident and had taken away Suman to his house in the evening; that she had seen the dead body of her daughter Suman at about 9.00 A.M. in the room when she had gone to her Inlaws'' house on receipt of the information of murder of Suman from Rama Prakash Dubey. She also stated that Prabhu Nath Pandey, the fatherinlaw of Suman had two houses in the City of Gorakhpur, one in Mohalla Viladpur and another in Mohalla Tiwaripur and in Mohalla Tiwaripur her daughter and soninlaw lived. She denied the suggestion in her crossexamination that the accused were not demanding refrigerator and washing machine in dowry and at the time when she had gone to see her dead body she had not seen the knife on the bed and Prabhu Nath Pandey and his wife, elder son and his wife had come when she was there. She had fainted on seeing the dead body of her daughter and did not know when she regained conscious.

PW 4, Hari Shankar Pandey son of late Dev Saran Pandey resident of village Chavriya Bujurg Tola Dharmshala, P.S. Gagah, District Gorakhpur stated that Suman was his niece, who was married on 10.7.1999 with accused Ratnesh Kumar Pandey. He also narrated that Suman had come about two months back before she was murdered and the accused had demanded refrigerator and washing machine from him as father of Suman had died in an accident. He stated that he had received a telephonic information on 31.1.2001 from Sri Rama Prakash Dubey regarding death of Suman and had gone on the spot of occurrence where the police had completed the formalities of inquest. Accused Smt. Mayarani was also present at the place of occurrence but other accused persons were not there.In his crossexamination he denied the suggestion that dowry was not being demanded by the accused persons. He also denied the suggestion that accused Prabhu Nath Pandey, Smt. Mayarani, Rajesh and Smt. Poonam Pandey were living in the newly constructed house at Paidalganj. He also stated that when he had seen the accused in the house, deceased Suman was lying on her back on the bed. He had not seen the knife in the room and that inquest report and recovery memo etc. were prepared before him. He also denied the suggestion that accused had not killed Suman and she was killed by some third person or that it was not a case of murder for dowry.

PW 5, Head Constable Sri Daya Shankar Tripathi, PS Tiwaripur, District Gorakhpur stated that he had registered case crime no. 13 of 2001, under Section 302 IPC on the basis of chik FIR, which was written by him. He also proved entry in the GD, which was exhibited as ( Ex.Ka6).

PW 6, Dr. V.V. Tripathi, specialist in Orthopedics at sadar hospital, Gorakhpur, stated that he along with Dr. Sonu Kesharwani, physician had conducted the post mortem of Suman at about 10.30 A.M. On 1.2.2001. He gave details of the twenty knife injuries received by deceased Suman and proved the post mortem report as Ex.Ka7. He opined that the deceased Suman had died due to excessive drainage of blood from the wounds. He proved his opinion as Ex.Ka8. In his crossexamination he stated that the cause of death was inadvertently not written on the post mortem report, hence he had given the same in writing on 27.2.2001 to the I.O. PS Tiwaripur when asked about it. He also opined that the cause of death could not be due to strangulation.

PW 7, Sri Gopal Swaroop Bajpai, S.O. Sahajnwa, District Gorakhpur entered in the witness box and stated that the First Information Report was lodged on the information of the first informant Chandra Shekhar Pandey and was registered as case crime no. 13 of 2001, under Section 302 IPC in his presence. He had taken up the investigation. During the investigation he prepared the site plan and on receipt of information from a Mukhbir he had apprehended accused Ratnesh Kumar Pandey, who confessed the crime of having murdered of his wife Suman on 30.1.2001 with the aid of his friend Ramzan; that he had taken away two finger rings, a chain and two bangles from the body of the Suman and gave the same to Ramzan alongwith Rs.300/ cash and that he had concealed his knife on the platform of the kitchen and when the police had come he surreptitiously went away.

On his showing the knife was recovered. PW 7 also stated the sweater which accused Ratnesh Kumar Pandey was wearing contained blood spot on the right side of which the fard was made. The recovery of knife was made before Rama Prakash Dubey and Ravindra Kumar. He also prepared the site scene of recovery as well as blood soaked pieces cushion, bed cover and pillow etc. and prepared the inquest report, which contains his signatures and the Panch. He also stated that after the statements were given by the accused persons in respect of offences under Sections 498A and 304B IPC, remaining investigation was done by the C.O. First. In his crossexamination he stated that in the FIR only name of accused Ratnesh Kumar Pandey was written but a mention of an accomplice was also made therein; that he had arrested accused Ratnesh Kumar Pandey on 31.1.2001 at about 11.00 A.M. from the heart of the city Railway Station Surya Kund and that after the arrest of accused his statement was recorded, which was mentioned in the case diary. Accused Ratnesh Kumar Pandey had gone in front and they were behind him when he took out knife used in the murder from the place of concealment regarding which fard was prepared by him. The house was not in order at that time. He denied the suggestion that the knife was not recovered on the pointing out of accused Ratnesh Kumar Pandey and that the knife was recovered in the kitchen, which is about 20 steps from the place of occurrence.

PW 8, Sri Om Prakash Pandey stated that he was posted as Circle Officer, police on 31.1.2001 at Gorakhpur and had investigated the matter on 2.2.2001 after it was partly conducted by Sri G.S. Bajpai, S.O. PS Tiwaripur; that he had recorded the statement of accused Ramzan in jail as he was confined there in respect of other matters on 6.2.2001; that he had recorded the statements of first informant Chandra Shekhar Pandey and witness Rama Shankar Dubey and other persons under Section 161 Cr.P.C. in the case diary, who stated that Inlaws of Suman were demanding refrigerator and washing machine etc. in dowry. He stated that when he reached the spot by that time accused Ratnesh Kumar Pandey had not been arrested but his father and mother were there whom he did not know at that time. In his crossexamination he stated that he remained at the spot of incident for about two to two and a half hours but had not found any indication of loot and dacoity. He also denied the suggestion that accused Ratnesh Kumar Pandey was innocent.

PW 9, Sri A.K. Rai, stated that he was C.O. Cantt, Gorakhpur at the relevant time and stated that he had investigated the case crime no. 13 of 2001, under Sections 498A, 304B and 120B IPC and Section � Dowry Prohibition Act which was earlier being conducted by his predecessor Sri O.P.Pandey, the then C.O. He proved chargesheet (Ex.Ka22) and stated that he had recorded the statements of Smt. Mayarani Pandey and Smt. Poonam Pandey. He also stated that he had sent the sealed mohar case property for examination to Vidhi Vigyan Prayogshala and that he had not got the blood examined and had also not received the investigation report in this regard.

The accused persons in their statements under Section 313 Cr.P.C. denied the prosecution story.

DW 1, Ram Chandra Shukla son of Sri Jang Bahadur Shukla resident of village Munda, PS Sahjanwa, District Gorakhpur stated that he had to go Gonda about two and a half years back as he had received information that mother of his daughterinlaw Sumitra was serious and he had gone to Sahjanwa Taxi stand to hire a taxi and that he had hired a taxi on 30.1.2001. He identified accused Ratnesh Kumar Pandey in the Court as driver of that taxi. He also stated that he had come at about 8 o''clock on a jeep and all of them departed for Gonda at about 11.00 A.M. After having ''Darshan'' at Ayodhya for two hours they reached Gonda at about 7.00 P.M. Since his wife was alone in the house, they undertook return journey at about 11.00 P.M. in the night but as there was fog they had to stay at ''Dhaba'' and from there they had started at 5.00 A.M. for his village at Gorakhpur which is 7 kms. from Gorakhpur. He stated that accused Ratnesh Kumar Pandey was along with him on 30.1.2001 till 31.1.2001 morning. He stated that he does not know where the house of accused Ratnesh Kumar Pandey is.

DW 2, Chandra Bhushan Shukla son of Sri Dwarika Prasad Shukla stated that he knows accused Prabhu Nath Pandey, who was his tenant between July, 1999 to August, 2001; that accused Prabhu Nath Pandey had not come back on 31.1.2001 and he was informed by some staff from his office that some incident had taken place in the house of Prabhu Nath Pandey and he had gone there. He failed to recollect to any other date except 31.1.2001 and stated that he does not remember when and what dates Prabhu Nath Pandey stayed at night in his house and he does not keep all accounts of these activities; that he had not told this fact to the police as he did not think it necessary.

DW 3, Sri Chandra Prakash Tiwari son of Sri Kauleshwar Prasad Tripathi stated that he is the neighbour of accused Prabhu Nath Pandey and his wife; that Prabhu Nath Pandey had his house in Mohalla Tiwaripur where his son accused Ratnesh Kumar Pandey lives and they are good persons. On 31.1.2001 at about 8.30 A.M. a call had been received at his house that a dacoity had taken place in the house of Prabhu Nath Pandey at Tiwaripur. He has conveyed this information to Smt. Mayarani and Prabhu Nath Pandey was also informed about it in his office but he was informed that Prabhu Nath Pandey had not reached the office by that time. He also stated that he had never heard the accused demanding of dowry. In his crossexamination he stated that he was on leave and that on 31.1.2001 when he reached the place of occurrence he came to know that Suman had been murdered but the information of dacoity was not correct. He denied the suggestion that he was present in the marriage of Ratnesh Kumar Pandey and Suman.

DW 4, Ramanuj Rai, the last defence witness stated that he is an Accountant in Karan Electronic Golghar, Gorakhpur and is serving there since 1993; that on 24.11.97 he had sold a washing machine to Smt. Mayarani Pandey and proved the receipt. He also proved the sale of Cooler to accused Ratnesh Kumar Pandey. He stated that it is correct that receipts (Ex.Kha1 and Ex.Kha2) do not contain the signatures of the purchaser and he does not no where the aforesaid goods, which have been sold, were kept.

On the basis of above statements of the witnesses, learned counsel for the appellant submits that when the mother of deceased Suman reached the room at about 9.00 P.M. where the body was lying she had seen the knife with blood on the bed whereas it was not seen by PW 2, who was there subsequently. The recovery of the said knife is said to have been made by the police from the kitchen when Rama Prakash Dubey was not in the kitchen and he only saw the knife in the hands of the accused of which the memo was prepared. Learned counsel for the appellant has also laid great emphasis on the fact that no dowry was demanded in the marriage from the Inlaws of accused Ratnesh Kumar Pandey and this fact is amply clear from the statements of the prosecution witnesses.

He states that there was no motive for accused Ratnesh Kumar Pandey to have murdered his wife Suman as he was earning and had a Fiat car, tempo and house to live in even from before marriage, therefore, the story of demanding dowry is wholly false and has only been put forward to falsely implicate the accused persons.

Learned counsel for the appellant has then pointed out that even the names of the Inlaws are not in the FIR and they have simply been implicated because they are related to Ratnesh Kumar Pandey, accused; that the recovery of knife from the accused is in suspicious circumstances and the fact that accused Ratnesh Kumar Pandey was not in the house on 31.1.2001 from 8.00 A.M. to next day till at about 9.00 A.M., hence he could not have murdered his wife. In this regard heavy reliance has been placed upon the statement of DW 1, who is a witness of alibi of accused Ratnesh Kumar Pandey.

In support of his submission aforesaid, learned counsel for the appellant has placed reliance upon paragraph 11 of the judgment rendered in the case of Kansa Behera versus State of Orissa, AIR 1987 Supreme Court1507 wherein the Apex Court has held that

" 11.As regards the recovery of a shirt or a dhoti with blood stains which according to the serologist reports were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small bloodstains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the bloodstains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn."

In that case the Court held that in circumstantial evidence recovery of blood stained clothes from the possession of the accused was reported by the Serologist but the blood group was not indicated. The Court held that dimensions of bloodstains on clothes was not given in the report, hence evidence of blood group is only conclusive to connect bloodstains with the accused.

Even if, there is any irregularity in the investigation it is conclusively proved that the accused was guilty even without the aid of measuring of blood group and moreover, the facts of the case of Kansa Behera (supra) do not apply squarely to the facts and circumstances of this case.

Learned AGA has urged that the evidence of DW 1 has been disbelieved by the Court below on cogent grounds as he was not able to prove any receipt of hiring taxi from accused Ratnesh Kumar Pandey with regard to carrying him to Gonda. He also doubted the memory of DW 1 by saying that he is a Court witness and that he only remembers what happened on 31.1.2001 and did not remember any other date. If any person has no photographic memory, he would not recognize the person who had been carrying him on taxi for about two and a half years back when he suddenly confronted with him in Court. It is stated that no jewellery was missing from the body of the deceased and ''Jhumaka'' having been found in the post mortem report and the fact that no theft or loot has been committed in the house, it can safely be said that the act of murder was being done by an insider and not an outsider. He states that it is proved beyond doubt by the prosecution that Suman was last seen in the company of accused Ratnesh Kumar Pandey, her husband, who had taken her from her ''Mayaka'' to his house where she was found dead, the next day. This is circumstantial evidence, which conclusively proves that Suman was killed by accused Ratnesh Kumar Pandey and no one else.

Before dealing with the arguments of learned counsel for the parties the injuries on the body of the deceased Suman may be reproduced as reported in the post mortem report which facilitate appreciation of the facts of the case in the background narrated above.

@Hindi@

The body of deceased Suman was recovered from her bed room which was found in order. Neither anything was stolen from the house nor any thing in the room was disturbed. Suman was butchered to death by about 20 injuries of knife on her body which belies that the dacoity was the motive. If dacoity would have been the main object then murder of a person, who is resisting the dacoity may be consequential but it would not be the main object. However, the nature of the injuries on the body of deceased Suman shows personal vengeance against her having been killed by an individual rage.

In addition to it we may observe that according to the defence witness DW 1 the mother of his daughterinlaw Sumitra was seriously ill, hence they had to rush for Gonda. At this juncture, the conduct of alibi may be noted. He claimed to have stopped for ''Darshan'' in the way at Ayodhyafor more than two hours with Sumitra and thereafter while returning took a plea of fog for stopping at night at ''Dhaba'' the whole night. He has stated that he wanted to return to Gorakhpur at about 11.00 P.M. as his wife was alone in the house. It appears that the defence witness was trying to stretch of absence of accused Ratnesh from scene of crime from 8.00 A.M. on 31.1.2001 up to 1.2.2001 at 8.309.00 P.M. The plea of alibi has rightly been discarded by the Court below for cogent reasons.Suman had been last seen with her husband accused Ratnesh Kumar Pandey after ''Vidai'' on the evening of 29.1.2001.

Significantly, the conduct of accused Ratnesh also shows that he had reached the house on 1.2.2001 at about 9.00 A.M. and had seen the crowd gathered at his house as his wife had been killed. He did not make any attempt to lodge FIR as would have been natural, instead slipped away and was arrested from the station nearby at about 11.00 in the night.

In the aforesaid backdrop the subsequent and the past conduct of accused Ratnesh Kumar Pandey in these facts and circumstances is conclusively incriminating compatible only with his guilt. It is most unthinkable that when the wife has been murdered and he is near the house and knows about the incident, does not take any action for assistance in bringing the guilty person(s) before court of law.

The manner in which there is deliberate attempt by DW1 to provide alibi to the accused and the conduct of accused Ratnesh Kumar Pandey as narrated above is sufficient and conclusive of proof that the murder was committed by him and not during any course of dacoity as claimed and, belied by his conduct and circumstances. It is unthinkable that the husband in the circumstances stated above would not take recourse to law or aid of law until and unless he is himself a perpetrator of the crime. Regard may also be had to the judgment rendered by the Apex Court in Trimukh Maroti Kirkan versus State of Maharashtra,(1) 2007 SCC (2) page80 wherein the Apex Court has held in paragraphs 13,14,15 and 22 that

" If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it would be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision.

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

Accused Ratnesh Kumar Pandey could not even explain how the blood came on his sweater. Suman, who was last seen with him was found in the bed room of his own house, therefore, the provisions of Sections 106 and 114 of the Evidence Act apply completely to the facts and circumstances of this case. Since the accused has been acquitted from the charge under Section 304B IPC, the same need not be discussed. There was no other person except the accused in the house, hence applying the provisions of Sections 106 and 114 Evidence Act, it can be safely deduced that there was no one else, who could have committed murder of Suman.

We are, therefore, of the confirmed view that the order and judgment of the Court below does not suffer from any illegality or infirmity and the appeal is liable to be dismissed. The appeal is hereby dismissed.

Let a copy of this order be certified to the C.J. M. concerned immediately for compliance.