Vimla Jain, J.Appellant Mohammad Hussain Ansari preferred this appeal under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 16.5.2001 passed by Additional Sessions Judge, Rewa in Sessions Trial No. 147/2000, whereby he has been convicted and sentenced as under:-

Provision

Sentence

Under Section 302 of IPC

Imprisonment for life.

Under Section 201 of IPC

Rigorous imprisonment for three years.

2. Brief facts of the case are that Rehana Bano (since deceased) was the wife of accused Mohammad Hussain Ansari. On the basis of telephonic information, PW.8 Mustaque Ahmad, brother of deceased, went to the house of the accused and found her sister Rehana Bano to be dead. He gave information of the incident to Police Station Tyonthar (Ex.P/15). On the basis of the marg intimation, it was found that in the night of 28.5.2000, accused had committed murder of his wife Rehana Bano by overlaying pillow on her mouth. As a result of the incident, gold nose-pin (PHULIA) had come out from her nose. The accused had buried the pillow and gold nose-pin (PHULIA) in his house but the same were recovered later on. It was alleged that the accused had illicit relationship with Asmat Anjum, who was sister-in-law of his younger brother and on being objected to such illicit relationship by the deceased, the accused had committed her murder. On the basis of these facts, the accused was charged under Section 302 of IPC for committing murder of his wife and was also charged under Section 201 of IPC for causing disappearance of evidence used in commission of the offence i.e. pillow and gold nose-pin (PHULIA). On the basis of the information given by PW.8 Mustaque Ahmad at Police Station Tyonthar (Ex.P/15), the police party reached the spot and investigation commenced. Spot map was prepared (Ex.P/7). Panchnama of the dead body was prepared (Ex.P/9). The dead body of Rehana Bano was sent for postmortem. Statements of witnesses were recorded. On the basis of the statement on memorandum (Ex.P/2), pillow and gold nose-pin (PHULIA) used in commission of the offence were recovered vide seizure memo Ex.P/3 at the instance of accused and he was arrested.

3. After investigation, charge sheet was filed under Sections 302 and 201 of IPC against the appellant before the Court of Judicial Magistrate First Class, Rewa, who committed the case to the Court of Sessions and ultimately it was transferred to the learned Additional Sessions Judge, Rewa. On being charged with the offence under Sections 302 and 201 of IPC, the appellant/accused pleaded not guilty, complete innocence and claimed to be tried with the prayer that he had been falsely implicated in the case. On examination under Section 313 of Cr.P.C, he stated that when the incident occurred, he was not at his home. He was sewing clothes in his shop.

4. In order to bring home the charges against the appellant, the prosecution examined fifteen witnesses and proved the documents (Ex.P/1 to P/17). The appellant did not examine any witness in support of his defence.

5. The learned Court below, after scanning the evidence found the charges proved against the appellant, convicted and sentenced him as stated hereinabove.

6. This appeal has been filed by the appellant assailing the said judgment of conviction and order of sentence.

7. Learned counsel for the appellant submitted that the Court below has committed an error of law in holding the appellant/accused guilty for the offence under Sections 302 and 201 of IPC. He also submits that the learned trial Court had erred in relying on the testimony of child witness Shahnaj (PW.14). He has prayed that appeal of appellant/accused deserves to be allowed by setting aside the finding of conviction and order of sentence.

8. On the other hand, learned counsel for the State has supported the finding of the trial Court.

9. We have considered the arguments advanced by learned counsel for the parties and perused the record.

10. PW.10 Dr. Anand Mahendra conducted the postmortem (Ex.P/12) of deceased Rehana Bano and opined that she died due to asphyxia within one hour after taking her night meal and within twelve hours from autopsy. Her death was homicidal in nature.

11. There is no challenge from any side to the fact that death of deceased Rehana Bano was homicidal in nature. According to PW.10 Dr.Anand Mahendra, she died as a result of asphyxia. Therefore, it is apparent that injury caused on her person was fatal in nature and sufficient to cause her death in due course. Looking to the nature of injuries, death of Rehana Bano appears to be homicidal.

12. PW.14 Shahnaj, a minor girl of 7 years of age and daughter of the accused and deceased, has stated in her deposition that the appellant/accused is her father. His name is Mohammad Hussain. Her mothers name is Rehana and she had been expired. Shahnaj further stated that she had one brother, who was younger to her. She used to call her brother LALA. She stated that on seeing her mother, she shrieked but her mother did not wake up. At that time, her father was present but later on he went away somewhere. Her mother was sleeping on a cot (KHATIA). On the night of the incident, she and her brother Lala had also slept on the cot (KHATIA) alongwith her mother. She tried to wake up her mother but as she was not responding, she had gone to the house of Bermain Aunty to call her and she came there. When she was asked to identify witness Kusum, she stated that yes it is Bermain Aunty, who had come to her house and Bermain Aunty had seen her mother and after the incident, her mother did not speak to her. In cross-examination of PW.14 Shahnaj, she stated that her father had a shop and he used to go there. It is true that on the day when her brother Lala was crying and her mother did not wake up, her father had gone to his shop after taking meals. She was sleeping alongwith her mother and brother Lala. On hearing the scream of Lala, when her mother did not wake up, she opened the door and alongwith her brother Lala went to the house of Bermain Aunty. She did not know whether her mother was dead or alive but she could not meet her mother from that day. She also stated that her father never beat her mother. He used to give food and clothes to her mother. Her mother used to take some medicines but she did not know the reason of taking such medicines.

13. Rabbulnisha (PW.1) and Kusumbai (PW.2) had corroborated the statement of Shahnaj (PW.14). Kusumbai (PW.2) stated that Shahnaj (PW.14) had come with her brother aged two months. Her brother was crying. Shahnaj told her that her mother did not wake up. Then she had called her neighbour Rabbulnisha (PW.1) and went to appellants house with torch. She saw that Rehana was dead. They also stated that appellant was present at 10 Oclock in the night but when they reached his home, he was not present there.

14. The Apex Court in C. Chenga Reddy and others v. State of A.P (1996) 10 SCC 193 , observed thus :-

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".

15. In the case of Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 CCC 681, the Apex Court took the view that 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 commission of crime, they were seen together or the offence takes place in 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. In Nika Ram v. State of H.P, it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "Khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.

16. In the case of State of Punjab v. Karnail Singh reported in (2003) 11 SCC 271 , the Apex Court quoted with approval from Stirland v. Director of Public Prosecutions [(1944) AC 315)] thus:-

"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 will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, 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 main does not escape. Both are public duties.

17. There is no dispute that deceased was the wife of the appellant/accused and she had been living with her minor daughter Shahnaj (PW.14) and son. Dr.Anand Mahendra (PW.10) stated that he found contents of Khichdi about 200 grams in her abdomen. It appears that she took food before sometime of the incident. Shahnaj (PW.14) also stated in her cross-examination that her father had taken food and he had gone to shop.

18. The contention of learned counsel for the appellant is that statement of Shahnaj (PW.14) shows that when her father (appellant) had gone to his shop, they had locked the door from inside and slept. When her younger brother had cried, she opened the door and went out. Learned counsel submits that it shows that the appellant had not come to home before the incident.

19. We do not find any substance in the submission made by the learned counsel for the appellant because there was no evidence on record that the appellant remained whole night in the shop.

20. Shahnaj (PW.14) is a child witness aged 7 years. In her cross-examination, she stated that "eSa vkSj esjh eEeh rFkk ykyk njoktk can djds lks x, FksA" It does not mean that all the three persons locked the door including two months old child.

21. The medical evidence disclosed that the deceased died of strangulation during late night hours or early morning. The evidence showed that the accused and his wife were seen together in the house at night and they took food. There cannot be any hesitation to hold and to come to the conclusion that it was the accused (husband), who was the perpetrator of the crime.

22. The appellant in his statement under Section 313 Cr.P.C did not offer any plausible explanation as to how his wife received injury, which was found on her body. Recovery of pillow and gold nose-pin of deceased was made at the pointing out of the appellant. In the absence of any explanation by the appellant about the circumstances in which his wife died coupled with the fact that no-one else had entry in the house where appellant was living with his wife and children, the circumstances enumerated above unerringly point to the guilt of the accused/appellant, which are inconsistent with his innocence.

23. As discussed above, in our opinion there is no merit in this appeal. The judgment of the trial Court cannot be faulted. Therefore, the appeal fails and the conviction and sentence awarded to appellant is hereby confirmed.

24. Appeal is dismissed.