Shiv Shanker Prasad, J.

1. This jail appeal is by the accused-appellant Munna Lal challenging the judgment and order dated 28th January, 2009 passed by the Special Judge (E.C. Act), Mirzapur, in Sessions Trial No. 229 of 2007 (State Vs. Munna Lal Patel) arising out of Case Crime No. 433 of 2007, under Sections 302 I.P.C., Police Station-Kachhawan, District Mirzapur, whereby the accused-appellant has been convicted and sentenced to undergo life imprisonment for the offence punishable under Section 302 I.P.C. with fine of Rs. 10,000/-, in default thereof, to further undergo two years additional imprisonment.

2. We have heard Mr. C.L. Chaudhary, learned Amicus Curiae, appearing for the accused-appellant and Kumari Meena, learned A.G.A. for the State.

3. The prosecution case proceeds upon a written report dated 13th July, 2007 (Exhibit-Ka/1) of first informant, namely, Badama Devi (P.W.-1) scribed by Daya Sanker Singh, son of Lalman Patel resident of Village Diyav Raghauna, Police Station Kachhawan, District Mirzapur, on the basis of which the first information report (Exhibit-ka/11) got registered as case crime no. 433 of 2007 under Section 302 I.P.C. on the same day at 13:25 p.m. The report has been proved by P.W.-1 in which it has been alleged that the marriage of her daughter, namely, Rekha Devi (since deceased) aged about 24 years was solemnized with the accusedappellant three years ago and her daughter has a baby girl of about 8 to 9 months. Rekha came and was staying at her house for the last 15 days and the accused-appellant was also staying at her house since 2 to 3 days. The accused-appellant used to crack indecent jokes with her second daughter, namely, Sulekha (P.W.-2) on which the deceased used to feel bad and object due to which there was altercation and quarrel between the husband and wife. It is alleged that yesterday i.e. 12th July, 2007, also on the same issue an altercation took place between them. Last night, when the accused-appellant and the deceased were sleeping in the same room, at around 3 to 4 o'clock in the night, the deceased screamed on which she, her second daughter Sulekha (P.W.-2) and Ajay woke up and went there and saw that the accused-appellant had killed the deceased by pressing her mouth. When the accused-appellant was going to perform the last rites of the deceased, she and villagers objected and stopped the same. Since the accused-appellant has murdered the deceased by strangulating her, her report be lodged and appropriate action be taken. It is further alleged that on raising her alarm, her neighbour Ramjatan son of Bhukkhal and Munnalal son of Basant came to the spot at the time of incident.

4. After registration of the aforesaid first information report, the investigation proceeded in the matter and the Sub-Inspector Suresh Rai (P.W.-7) after entering the chick first information report and the written report of the first informant/P.W.-1 in the Case Diary, has recorded the statement of first informant/P.W.1, P.W.-2 and son of P.W.-1 Ajay (not produced) under Section 161 Cr.P.C. at the police station. After recording the same, P.W.-7 reached the place of occurrence along with the first informant/P.W.-1 and on her pointing out, P.W.-7 has prepared the site plan (Exhibit-ka/13).

5. On the instruction of Naib Tehsildar Manoj Kumar Tiwari (P.W.-4), the inquest proceedings of the deceased were conducted on the same day i.e. 13th July, 2007, which commenced at 19:30 p.m. and concluded at 20:30 p.m. The inquest report (Exhibit-ka/3) has been prepared by P.W.-7 on dictation of P.W.-4. The Inquest witnesses opined that since the death of the deceased Rekha seems to be dubious, therefore, for ascertaining the exact cause of death, post-mortem be got conducted. The dead body of the deceased was then sealed and sent to Mortuary.

6. The autopsy of the dead body of the deceased Rekha has been done on 14th July, 2007 at 04:00 p.m. by the Autopsy Surgeon, Dr. H.R. Maurya, Medical Officer (P.W.-3) along with Dr. V.K. Tiwari. As per the postmortem report the cause of death is asphyxia due to strangulation. P.W.-3 has also found following ante-mortem injuries on the deceased:

“Head and neck-Swollen & skin peeled off.

Membrane and brain-congested.

Left and right lungs-congested.

Larynx, trachea and bronchi-congested, hyoid bone fractured. Heart-left side empty and right side filled.

Subcutaneous tissue between….congested, pleura gland congested.

Skin peeling off due to decomposition, therefore, any external injury could elicited. ”

7. On 14th July, 2007, the investigation has been taken over by the SubInspector Gopal Singh (P.W.-5), who was then posted as Station House Officer of Police Station Kachhawan, District Mirzapur. P.W.-5 has recorded the statements of Ramjatan and Munnalal son of Basanta (whose names have been mentioned in the FIR) under Section 161 Cr.P.C. On 17th July, 2007, P.W.-5 has arrested the accused-appellant. After completion of statutory investigation under Chapter XII Cr.P.C., charge-sheet (Exhibit-ka/ 10) came to be submitted by P.W.-5 on 25th July, 2007 against the accused-appellant. Having taken cognizance on the charge-sheet dated 25th July, 2007 the concerned Magistrate committed the case to the Court of Sessions where the following charge was framed against the accusedappellant on 19th November, 2007 under Sections 302 I.P.C.:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

Charges were also read out to the accused-appellant, who denied the accusation and demanded trial.

8. In order to establish its case, the prosecution has adduced following documentary evidence:

“i) Written report (Exhibit-ka/1) dated 13 th July, 2007 of the informant/P.W.-1 scribed by Daya Shanker Singh, which has been marked as Exhibit-Ka/1.

ii) The first information report dated 13 th July, 2007 has been marked as Exhibit- Ka/11;

iii) The inquest report (Panchayatnama) dated 13 th July, 2007 has been marked as Exhibit-ka/3;

iv) Site plan with index dated 13 th July, 2007 has been marked as Exhibit-ka/13.

v) Post-mortem report dated 14 th July, 2007 has been marked as Exhibit-ka/2; and

vi) Charge-sheet dated 25 th July, 2007 has been marked as Exhibit-ka/10.”

9. In addition to the above documentary evidence, the prosecution has also adduced two witnesses of fact, namely, Badama Devi (P.W.-1/first informant) and Sulekha (P.W.-2), who happen to be the mother and younger sister of the deceased respectively. Autopsy Surgeon Dr. H.R. Maurya, who conducted the post-mortem of the deceased, has been adduced as P.W.-3. P.W.-4, namely, Manoj Kumar Tiwari, then posted as Naib Tehsildar, Tehsil Sadar, District Mirzapur, on whose instruction the inquest proceedings of the deceased were conducted. P.W.-5 SubInspector Gopal Singh, the then Station House Officer, Police StationKachhawan, District Mirzapur, the second investigating officer has submitted the charge-sheet and also proved the same during the course of trial. Constable-138 Sudama Yadav, then posted as Head Moharir, who has prepared the chik FIR and proved the same during the course of trial, has been adduced as P.W.-6. P.W.-7 Sub-Inspector Suresh Rai, the first investigating officer, who has prepared the site plan and inquest report on the dictation of P.W.-4 and he has also proved the same.

10. On the basis of above incriminating material placed on record during the course of trial the statement of the accused-appellant has been recorded under Section 313 Cr.P.C. in which he has denied the accusation. He has admitted that he was married to the deceased Rekha Devi three years prior to the incident and out of their wedlock a girl child was born and at the time of incident she was 8 to 9 months old. About the incident, the accused-appellant has stated that at that time, he was sleeping outside and hearing the noise, he came inside the room. He has denied the rest of the prosecution version. He has also stated that the Investigating Officer by doing wrong investigation, has submitted charge-sheet against him. The prosecution witnesses have given wrong statements against him. No defence witness has been adduced by the defence.

11. Before coming to its conclusion, the trial court has recorded its finding that P.W.-3 the Autopsy Surgeon has been cross-examined by the defence but nothing has come up in it that could lead to his statement being treated to be wrong. In his cross-examination, this witness has clarified that strangulation leads to fracture of the hyoid bone of neck. If any person is killed by smothering with a pillow or anything else, hyoid bone of his neck will not be fractured. In the statements of both the prosecution witnesses of fact, it has come in evidence that the deceased's neck was strangulated by the accused-appellant. Murder of the deceased by strangulating her is sufficient evidence of his intention. Fracture of the hyoid bone of the deceased due to strangulation, as per her post-mortem report indicates that the accused-appellant strangulated her with such force that the hyoid bone of the deceased was fractured, which shows his intention to kill her. From the aforesaid, it cannot be said that he strangulated the neck of the deceased only to scare her as was suggested by P.W.-2. Therefore, on the basis of the above, the trial court opined that the accused has killed the deceased by strangling her neck. Hence, this case cannot be treated to be culpable homicide not amounting to murder.

12. The trial court after perusing the entire oral as well as documentary evidence available on record, has come to the conclusion that the accused-appellant taking advantage of the financial condition of the informant/P.W.-1, with the intention of establishing illicit relationship with Kumari Sulekha, has strangulated the deceased. Hence the prosecution has succeeded in establishing the guilt of the accused-appellant beyond reasonable doubt. The trial court has, therefore, held the accusedappellant guilty of murder of his wife i.e. the deceased Rekha Devi under Section 302 I.P.C. and convicted him accordingly and sentenced him to undergo life imprisonment with fine of Rs. 10,000/-.

13. Aggrieved by the aforesaid judgment and the order of conviction and sentence, the present jail appeal has been filed on the ground that conviction is against the weight of evidence on record and against the law and the sentence awarded to the accused-appellants is too severe.

14. Learned Amicus Curiae appearing for the accused-appellants submits that as per the prosecution case, the incident occurred in the night of 13th July, 2007 between 03:00 a.m. to 04:00 a.m. There was no source of light and it was dark, as such in absence of any light it was impossible for any person to see the occurrence or to identify the person who was committing such incident. Further submission is that the accused-appellant with intention to scare the deceased had pressed her neck but accidentally, she died, as such this case be treated to be culpable homicide not amounting to murder, as is evident from the statements of P.W.-2 in her cross-examination and P.W.-5 in his examination-in-chief. Next submission is that at the time of occurrence, the accused-appellant was sleeping on the well outside the room and when he heard the noise he came inside the room. Further submission is that none of the prosecution witnesses i.e. P.W.-1 and P.W.-2 have seen the incident, when it was occurring with their own eyes. Both the alleged eye-witnesses P.W.-1 and P.W.-2 being mother and sister of the deceased, are interested witnesses, therefore, their testimonies are not reliable and credible. It is also contended that the accused-appellant has been falsely implicated in the present case by both the prosecution witnesses of fact only due to apprehension/suspicion. It is urged that the accused-appellant has no motive to commit the alleged offence. It is further urged that the site plan (Exhibit-ka/13 prepared by the Investigating Officer does not support the statement of P.W.-1, in which she has admitted that on the cot in the north side of the room, accusedappellant and deceased were sleeping together, whereas on the cot in the east side of the room, P.W.-2 Sulekha was sleeping, which casts a doubt in the prosecution case.

On the cumulative strength of the aforesaid, learned Amicus Curiae appearing for the accused-appellant submits that the impugned judgment and order of conviction cannot be legally sustained and is liable to be quashed.

15. On the other-hand, Kumari Meena, learned A.G.A. for the State, while supporting the prosecution case submits that there is direct evidence against the accused-appellant in the form of the statements of P.W.-1 Badama Devi and P.W. 2-Sulekha, who happen to be the mother and sister of the deceased respectively and are reliable and credible in the facts and circumstances of the case. Both the witnesses of fact are consistent and intact and being eye-witnesses they have clearly disclosed about the commissioning of the offence of murder. The medical evidence also fully supports the aforesaid direct evidence. Therefore, the trial court has not committed any error in holding conviction of the accused-appellant under Section 302 I.P.C. On the cumulative strength of the aforesaid submissions, learned A.G.A. submits that as this is a case of direct evidence, the impugned judgment and order of conviction does not suffer from any illegality and infirmity so as to warrant any interference by this Court. As such the present appeal filed by the accused-appellant who committed heinous crime by murdering deceased Rekha, is liable to be dismissed.

16. We have considered the submissions made by the learned counsels for the parties and have gone through the records of the present appeal especially, the judgment and the order of conviction and evidence adduced before the trial court.

17. The only question which is required to be addressed and determined in this appeal is whether the conclusion of guilt arrived at by the trial court and the sentence awarded is legal and sustainable under law and suffers from no infirmity and perversity.

18. For coming to a fruitful conclusion in the present appeal, it is important for us to record brief statements of the prosecution witnesses.

19. This Court may record that P.W.-1 has supported the prosecution case. She in her examination-in-chief has stated that the marriage of her daughter, namely, Rekha (now deceased) was solemnized with the accused-appellant, namely, Munnalal 3 years before the incident. She had a baby girl of 8 to 9 months at that time. She came to her place 15 days before the incident and stayed with her. The accused-appellant was also staying at her house for 2 to 3 days from the incident. He used to crack indecent jokes with her second daughter, namely, Sulekha (P.W.-2) due to which the deceased used to feel bad and scold him and that is why both of them used to fight. This witness has further stated that about 10 months ago, in the month of Asadh, there was a quarrel between the deceased and the accused-appellant and after that the same night both of them (accused-appellant and the deceased) slept on a cot and the other daughter (P.W.-2) slept on another cot in the same room, whereas she was sleeping in the hutment of one Bhukkhal son of Aliyar next to the same room with her son Ajay and daughter of the deceased. At 3 to 4 o’clock in the morning, the deceased screamed on which she, her son Ajay and P.W.- 2 woke up and lit torch and saw that the accused-appellant pressed the mouth and throat of the deceased due to which she fainted. P.W.-1, Mattu, Smt. Chironji Devi, Munnalal son of Basanta took the deceased to Dr. Shiv Shanker Patel by a Tempo of Sukkhu Harijan for her treatment where she was declared dead, whereafter they took her dead body to her house. After that when the accused-appellant was taking the body of the deceased for last rites, she protested on which some villagers came and the accusedappellant was stopped by them in front of the medicine shop of Dr. Madan Mohan Singh. P.W.-1 has further stated that the accused-appellant strangulated the deceased to death as she used to protest and scold him on his joking with P.W.-2. On hearing the noise, Ramjatan and Munnalal son of Basant also came to the spot at the time of incident. In relation to the incident, on her dictation, Dayashanker had written an application, which has been given to the police station. On the said written report, her thumb impressions were also appended. She has also proved the same as Exhibit Ka-1.

20. In the cross-examination this witness has stated that there are six members in her family i.e. she, her two sons, two daughters and granddaughter (daughter of deceased) and they used to sleep in same room. She has further stated that it was raining on the night of the incident. Around the time of the incident, the rains stopped at 4 o'clock in the night. There was no electricity in her hutment. The lamp was lit in the hutment. She had kept two cots in the hutment and on one cot she, her younger son and her grand-daughter were sleeping whereas on other cot, her elder son Chandrashekhar was sleeping.

21. This witness has further stated that she deliberately did not put P.W.- 2 to sleep in that room, but due to lack of space, she made her sleep separately in the accused’s room. She did not put her grand-daughter and son to sleep in that room. Cot of P.W.-2 was at some distance from deceased's cot in that room. The accused-appellant did not sleep with P.W.-2 but slept with the deceased. The accused-appellant and the deceased were sleeping on a cot on the north side of the room, whereas P.W.-2 slept on a separate cot on the eastern side of the room.

22. This witness has further stated that P.W.-2 is her second daughter. The name of her third daughter is Sangeeta, who slept with her on the night of the incident. The police came on the spot at 2 o’clock in the afternoon. When the police came, accused-appellant was present there. After questioning, the police took him away. When she heard the noise, she along with her sons Chandrashekhar and Ajay and daughter Sageeta saw the incident by lighting a torch in the room. She cannot tell as to why the name of Sageeta was not mentioned in her statement as having seen the incident at the spot. P.W. 2 was sleeping in the room of the deceased and when she reached there, she woke up her and then she got up. P.W.-2 slept after taking medicine for headache. When she reached the room, her daughter i.e. deceased fainted. When she lit the torch light she saw her unconscious. When she lit the light, the accused-appellant was standing next to her and then said that he had strangled her daughter (deceased) to death. All the children were woken up by lighting the torch. When she heard the screams, everyone who was with her woke up and went to the room. There is no electricity in her house and she saw the incident in the torch light.

23. This witness has further stated that accused-appellant used to joke with P.W.-2 which the deceased did not like and suspect that they had an illicit relationship. On the evening of the incident, the deceased asked the accused-appellant to bring her a saree (Dhoti) which he could not give due to which there was a fight between them. That night both slept on the same cot. When she reached the room at the time of the incident, the accused-appellant said that he was scaring the deceased.

24. This witness has denied that on the night of incident, the accused slept near the well. She has also denied the version that when he reached the room along with her, the deceased was unconscious.

25. Similarly, P.W.-2 has supported the prosecution case. This witness has stated that the accused-appellant strangulated the deceased to death as she used to object and scold him on an apprehension of his having illicit relations with her sister i.e. P.W.-2 and for making fun with her. Apart from the above, in her examination-in-chief this witness has adopted the same version as stated by P.W.-1, therefore, we need not reiterate the same once again except her statement in cross-examination.

26. In the cross-examination, this witness has stated that on the date of incident, she was sleeping when her sister shouted. P.W.-1 came and woke her up. She was awake when the accused-appellant was fighting with her sister (deceased) in the room at night. When the fight was over, she fell asleep. The deceased and the accused-appellant had also fallen asleep. When she woke up, the deceased was unconscious. She was in the room, P.W.-1, her brother, the accused-appellant, Ramjatan, Munnalal son of Basanta and Chiroji Devi came before she awoke. They took the deceased to the doctor, where she was declared dead. When the police came on the spot, they caught hold of the accused-appellant and took him to the police station. All the family members of the accused-appellant ran away. This witness has further stated that deceased was her elder sister, whereas Sangeeta is her younger sister. Sangeeta slept with P.W.-1, who was sleeping in the hutment adjacent to her room. The deceased was killed by strangulation. This witness has denied that the accused-appellant did not sleep in the room on the date of the incident or that he slept on the well. She has denied that she was giving false testimony.

27. P.W.-3 Dr. H.R. Maurya, Autopsy Surgeon in his examination-in-chief has stated that the texture of body was normal. The stiffness was over. Rotting had started in the body. The skin was peeling off at various places. The eyes were turned outward. The tongue was out. The upper part of the torso was lying blue. He has further stated that due to putrefaction, the skin had been removed from various places. No external injury marks were found on the body as the skin was removed. There was swelling on the neck and the skin was removed. Membrane and brain were congested. The tissue under the skin between both the breasts was congested (due to bleeding). The pleura was congested. The vocal cords and trachea were also congested. Hyoid bone was found to be fractured. The right and left lung was congested. The left chamber of the heart was empty and the right chamber was full. The teeth were 16/16 and the tongue was turned outward. Undigested food and gas were found in the small intestine and digested food and gas in the large intestine. This witness has further stated that in his opinion the death of the deceased is due to suffocation by strangulation. He also proved the post-mortem report. This witness has also stated that the death of the deceased seems to have been caused by forceful strangulation on her chest.

28. In the cross-examination, this witness has stated that squeezing the throat causes a fracture in the hyoid bone in the throat. If some one is killed by smothering with a pillow or anything else, there will be no fracture in the hyoid bone. This witness has denied that he was making a false statement.

29. It would be worthwhile to reproduce the relevant portion of the statement of this witness given in his cross-examination:

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30. P.W.-4 Naib Tehsildar, Tehsil-Sadar, District-Mirzapur, Manoj Kumar Tiwari has instructed P.W.-7 to prepare inquest report and ensure that the dead body of the deceased is sealed and sent to Mortuary for postmortem.

31. P.W.-5 Sub-Inspector, Gopal Singh, the then Station House Officer, Police Station Kachhawan, District-Mirzapur, has investigated the case from the second day of incident i.e. 14th July, 2007 and has submitted the charge-sheet and proved it. He has stated in his examination-in-chief that after investigation, he found that the accused-appellant used to make fun and joke with P.W.-2 i.e. the younger sister of the deceased, which she felt bad and they used to altercate and quarrel with each other about it. On the date of the incident i.e. 12.07.2007 also, there was altercation and quarrel between them and only to scare his wife i.e. deceased, the accusedappellant pressed her throat and mouth in the night due to which she fainted and fell down and ultimately died.

32. P.W.-6, Constable-138 Sudama Yadav, the then Head Moharir at Police Station-Kachhawan has prepared the chik FIR and proved it. P.W.-7 Sub-Inspector Suresh Rai has investigated the matter on the first day of incident and prepared the inquest report on the instruction of P.W.-4 and also prepared the site plan and proved them.

33. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. in which he has accepted that he was married to the deceased Rekha Devi 3 years before the incident and a girl was born from their wedlock, who at that time was 8 to 9 months old. The accused-appellant has stated that at the time of incident he was sleeping outside and went inside the room on hearing the noise. The Investigating Officer has deliberately recorded false statements of the prosecution witnesses and conducted biased investigation in order to submit charge-sheet against the accused-appellant.

34. On bare perusal of the oral evidence (statements of all the prosecution witnesses including the witnesses of fact, namely, P.W.-1 and P.W.-2) as well as documentary evidence led by the prosecution during the course of trial, we find substance in the contentions raised by the learned A.G.A. for the State.

35. The testimony of witnesses of fact i.e. P.W.-1 and P.W.-2, who have been cross-examined at full length has been perused by us and no benefit can be derived by the accused as both the witnesses of fact have established their presence at the place of occurrence, when it occurred.

36. It is well settled that the direct evidence in the case is that of the eyewitnesses who had seen and narrated the entire occurrence. The evidence of a doctor or an expert is merely an opinion which lends corroboration to the direct evidence in the case. Where there is a glaring inconsistency between direct evidence and the medical evidence in respect of the entire prosecution story, that is undoubtedly a manifest, defect in the prosecution case. This however is not the position here. There is no inconsistency between the direct evidence and the medical evidence. The post-mortem report as well as statement of P.W.-3 who conducted the autopsy, as per which the cause of death of the deceased is asphyxia due to strangulation and fully corroborate the prosecution version i.e. statements of witnesses of fact P.W.-1 and P.W.-2. In the present case motive is also present.

37. Now we may come to the contentions advanced by the learned Amicus Curiae appearing for the accused-appellant. The first contention is that there was no source of light and it was dark between 03:00 a.m. to 04:00 a.m. on the date of incident i.e. 13th July, 2007 is only stated to be rejected on the ground that in their statements, both the witnesses of fact/eye-witnesses i.e.P.W.-1 and P.W.-2, on hearing the shouting of the deceased, P.W.-1, her son Ajay and Ramjatan reached the room and lit the torch in which they saw along with P.W.-2 that the accused-appellant was pressing the mouth and throat of the deceased due to which she fainted.

38. The third and fourth contentions advanced by the learned Amicus Curiae are distinct contentions, as the first contention is that only in order to scare her, the accused-appellant pressed the face and throat of the deceased and accidentally she died, whereas the second contention is that at the time of incident, he was sleeping outside the room i.e. near the well and after hearing the noise, he went inside the room. Both the stands cannot be pressed concurrently. Either he pressed the face and throat of the deceased with an intent to scare her and accidentally she died or else he has not committed the offence as he was outside the room when it occurred. Even if it is accepted that the deceased was accidentally done to death by the accused-appellant, as he pressed her mouth and face only to scare her also cannot be accepted by us. P.W.-3 in his statement has stated that the death of the deceased seems to have been caused by forceful strangulation on her chest. In the cross-examination, this witness has stated that squeezing the throat by force causes a fracture in the hyoid bone in the throat. Only to scare no one is strangulate with such force or pressure that it breaks the bone of the throat so that he/she becomes unconscious. The fourth contention advanced on behalf of the accusedappellant that at time and date of incident he was sleeping outside the room and hearing the noise he went inside is also liable to be rejected on the ground that P.W.-1 has clearly stated in her statement that it was raining on the night of the incident and the rains stopped at 4 o'clock in the night.

39. The fifth contention advanced on behalf of the accused-appellant that none of the prosecution witnesses has seen the incident from his/her own eyes is incorrect. Being the mother and sister of the deceased, P.W.-1 and P.W.-2 are natural witnesses and their testimony cannot be said to be unreliable or untrustworthy as they are interested witnesses. From the prosecution evidence it is apparently established that P.W..-1 and P.W.-2 are witnesses of fact/eye-witnesses, who have been cross-examined in detail by the defence during the course of trial but in their crossexamination, both of them have fully supported the prosecution case.

40. It is well settled that merely because the witnesses examined by the prosecution are relatives of the victim/deceased by itself will not be sufficient to discard and discredit the evidence of the relative witnesses, if otherwise they are found to be truthful witnesses and rule of caution is that the evidence of the relative witnesses has to be reliable evidence which has to be accepted after deep and thorough scrutiny. It is no doubt true that in the present case, the prosecution has not been able to produce any independent witness but the prosecution case cannot be doubted on the ground of non-examination of independent eye witnesses. In these days, common people are generally insensitive and do not come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.

41. So far as the sixth contention advanced on behalf of the accusedappellant that only on apprehension or suspicion, the accused-appellant has been falsely implicated in the present case is concerned, we may record that from deeper scrutiny of the statements of the witnesses of fact i.e. P.W.-1 and P.W.-2, it is apparent that in the torch light they have seen that the accused-appellant pressed the face and throat of the deceased due to which she fainted and ultimately died, there was quarrel between them in the evening of 12th July, 2007 as the accused-appellant made fun with P.W.-2 which the deceased protested and scolded the accusedappellant. Therefore there is no possibility of any suspicion or apprehension to falsely implicate the accused-appellant by the prosecution. To the seventh contention advanced on behalf of the accused-appellant that the accused-appellant has no motive or intention to commit the alleged offence, it may be worth noticing that the accusedappellant has strong motive/intention to commit the alleged offence on the ground that the accused-appellant cracked indecent jokes with his sisterin-law (P.W-2 herein) and wanted to have a relationship with her, because of which his wife (deceased herein) scolded and quarreled with him as well as she was an obstacle between him and his sister-in-law, therefore the accused-appellant has killed her wife (deceased) by strangulation removing his obstacle.

42. Qua the last submission made on behalf of the accused-appellant that the site plan does not support the prosecution story with regard to places of cots on which deceased and accused-appellant as well as P.W.2 were sleeping separately on the night of the incident, we may record that as per the site plan prepared by P.W.-7 (Exhibit-ka/13) on the cot kept on the west side of the room, P.W.-2 was sleeping, whereas on the cot kept on the east side, the accused-appellant and the deceased were sleeping when as a matter of fact, as per the statement of P.W.-1, the accusedappellant and the deceased were sleeping together on the cot of north side of room whereas P.W.-2 was sleeping alone on the cot of east side of room, meaning thereby that there is a difference between the site plan and the statement of P.W.-1 only in the location/direction of the cot on which the deceased and the accused-appellant were sleeping together, which can be called a minor error. Therefore, this submission has also no substance.

43. From the aforesaid facts, which have been noted herein above, we find substance in the submissions made by the learned A.G.A. that this is a case of direct and clinching evidence of two eye witnesses of the incident, namely, P.W.-1 and P.W.-2. The medical evidence fully supports the prosecution evidence. The incident occurred between 03:00 a.m. to 04:00 a.m. on 12/13th July, 2007 and the first information report was lodged by the informant at 01:35 p.m. Though there is delay of nine hours in lodging the FIR but the same has satisfactorily been explained by the prosecution. The accused-appellant had also motive to commit such offence. The incident and the place of incident were not disputed by the defence side.

44. As already discussed above, we find that the testimony of both the eye-witnesses i.e. P.W.-1 and P.W.2 is credible and trustworthy as they were subjected to lengthy cross-examination but nothing could be elicited to discredit their testimony. The police documents and statements of Investigating officer and the Autopsy Surgeon as well as medical evidence fully support the prosecution version.

54. Taking cumulative effect of the evidence, we are of the view that the trial court was fully justified in convicting the appellant. Accordingly, we confirm the judgment and order of trial court.

46. This jail appeal has no substance and the same is dismissed. The accused-appellant has been enlarged on bail by this Court vide order dated 29th September, 2022. His bail bonds stand cancelled and sureties stand discharged and he be taken into custody for serving the remaining sentence.

47. The dismissal of this criminal appeal however shall not prejudice the rights of the accused-appellant to apply for remission, which shall be dealt with in accordance with law on merits.

48. We record our appreciation for the able assistance rendered in the case by Mr. C.L. Chaudhary, learned Amicus Curiae, who would be entitled to his fee from the High Court Legal Service Authority.

49. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Mirzapur, who shall transmit the same to the Jail Superintendent concerned for information of the accused-appellant henceforth.