O.P.MEHROTRA, J.

(1.) This appeal has been filed by Rajendra Prasad against the order dated 29-6-1977 passed by the Sessions Judge, Kanpur Dehat convicting him for the offence of murder under section 302 IPC and sentencing him to imprisonment for life.

(2.) The appellant is said to have committed the murder of his wife Smt. Phoolmati, aged about 20 years, by strangulating her in the ground-floor room of her fathers house no. 301 Rail Bazar P. S. Cantonment, Kanpur City on the night between 13/14th January, 1976.

(3.) There is no dispute that Smt. Phoolmati was daughter of Manni Lal PW 3 and was married to appellant Rajendra Prasad in March, 1972. Manni Lal was resident of house no. 301 Rail Bazar P. S. Cantonment Kanpur City while appellant Rajendra Prasad resided with his parents and brother at house no. A 19 Shanti Nagar P. S. Cantonment Kanpur. It is alleged by the prosecution that Smt. Phoolmati lived cordially with the accused at her father-in-laws house for some time but thereafter her mother-in-law, sister-in-law and brother- in-law (Dewar) started ill-treating her. She was vigorously assaulted so much so that she suffered fracture in one of her legs. Thereupon her father Manni Lal PW 3 brought her to his house in Mohalla Rail Bazar. Smt. Phoolmati lodged a report regarding this occurrence against Virendra Singh and Kamla (her brother-in-law and mother-in-law) under sections 323, 504 and 506 IPC on 26-6-1973 (vide copy of the G. D. Ex. Kb-7). She also filed a complaint in that regard. The accused also gave a notice to his father-in-law Manni Lal on 23-8-1973 alleging that he had taken away his wife along with all the ornaments and was not allowing her to come back. Thereafter the father of the accused also filed a complaint under section 420 IPC against Manni Lal. According to the prosecution, this was a false complaint filed with a view to create defence for the complaint already filed by the deceased. Both these complaints were pending when this occurrence took place.

(4.) It it further alleged that about 9 months before the incident in question, accused Rajendra Prasad approached his father-in-law, begged to be excused and requested that either Smt. Phoolmati be sent with him or he may be allowed to live with his wife in her fathers house. Manni Lal refused to send Smt. Phoolmati but he permitted the accused to live with his wife in the ground-floor room of his house no. 301 Rail Bazar. Thereafter the accused started living in the ground-floor room of that house along with his wife. It is, however, said that very often quarrels used to take place between the accused and the deceased and that on the night of 13-1-1976 also, there was some altercation between the accused and the deceased till about raid night, during the course of which the deceased had threatened that he would, kill her. However, at the intervention of Manni Lal, and others they stopped quarreling.

(5.) This occurrence is said to have taken place on the same sight some time after mid night and before 3 A. M. in the same ground-floor room, in which the accused had started living with his wife. There is no eye witness of the actual commission of this murder. The medical evidence shows that the deceased was strangulated. It is further said that at about 3 A. M. the accused opened the door of that room and came out whereupon Chhedi PW 2, who resided in another room of the same house, was awakened from sleep and asked who was there. The accused replied that it was he. Chhedi thought that the accused had gone for urination. Thereafter at about 4 A. M. Smt. Chhidana PW 1, who was sister of the deceased and lived with her husband in the back portion of house no. 301 Rail Bazar, came to the room and called Smt. Phoolmati as she wanted her to accompany for taking bath in the Ganges on the occasion of Makar Sankranti. There was, however, no response to the calls of Smt. Chhidana. She then tried to tap the door and found the same open. She went inside the room and found Smt. Phoolmati lying wrapped in a Rajai and blanket on the cot. When she uncovered her face, she found her dead with marks of nails on the neck and her tongue was protruding out. She raised alarm whereupon Chhedi PW 2, Hori Lal, Darshan, Manni Lal PW 3 and his wife came running. Smt. Chhidana was informed that there was an altercation between the accused and the deceased till about mid night, during the course of which the accused bad threatened to kill her. She was also told that the accused had left the house in the night at about 3 A. M.

(6.) In the morning Smt. Cnhidlana along with her father went to P. S. Cantonment and lodged first information report Ex. Ka-1 of this occurrence at 6.30 A. M. A case under section 302 IPC was registered and investigation was taken up by S. I. Karan Singh Sengar PW 8. He sent S. I. Y. P. Sharma PW 5 of out-post Rail Bazar, who was present at the police station, to the spot for holding inquest. S. I. Y. P. Sharma reached the spot at 7.15 A. M. He found the dead body lying on the cot in the room He hold inquest and prepared inquest report and other papers Ex. Ka-3 to Ka-5. After recording the copy of the first information repeat and G. D. in the case diary, S. I. Karan Singh left for the spot at about 8.15 A. M. At the spot, he recorded the statement of Smt. Chhidana and then inspected the spot and prepared site-plan Ex. Ka-8. He recorded the statements of Darshan, Chhedi PW 2, Hori Lal, Manni Lal PW 3 and other witnesses. Subsequently on the same day, he recorded the statement of Sharda Prasad PW 6, who gave evidence of extra judicial confession made by the accused to him. He searched for the accused on that day as also on the next day (but he was not available. He, therefore, submitted a report against him .under sections 82/83, CrPC and after obtaining warrant on 20-1-1976, he again searched for the accused but he was not available. On the same day, viz. 20-1-1976, accused Rajendra Prasad surrendered before the court and on the same day, the investigating officer submitted charge-sheet Ex. Ka-9 against him.

(7.) The autopsy on the dead body of Smt. Phoolmati was performed by Dr. G. C. Gupta PW 4 on 14-1-1976 at 2 P. M. He estimated her age as about 20 years and probable time since death as half day. She was of average built. Rigor mortis was present in all the four extremities. Eyes were closed. Mouth was half open. Tongue was bitten between teeth, bruised, swollen, protruded and dark in colour. Eyes were congested. Nails and lips were cynosed. He found the following ante mortem injuries on the dead body : 1. Linear abrasion (Semi circular in shape) 1/2 cm. long on right side of front of neck, 3 5 cm below right mandible, echymosis present. 2. Linear abrasion 1/2 cm long (semi circular in shape) on left side of neck front, 6 cm above medial end of left clavicle, echymosis present underneath. 3. Linear abrasion 3/4 cm long (semi circular in shape) 1/2 cm. lateral to injury no. 2, echymosis present underneath. External examination revealed that the membranes and brain were congested. Larynx and trachea were also congested. Cornua of hyoid (right side) was fractured. Both the lungs were congested. The stomach contained 8 oz. semi digested food. Small intestines were empty. Large intestines were half full. Spleen and kidney were congested. Bladder was empty. In the opinion of the doctor, the death the death was due to asphyxia as a result of strangulation-vide post mortem report Ex. Ka-2.

(8.) As regards extra judicial confession, it is alleged that on the same day viz. 14-1-1976 at about 6 30 a. m. Sharda Prasad PW 6 was having morning stroll at G. T. Road near Railway Nachghar. Accused met him in nervous condition and caught hold of his feet and told him that during the night his wife abused and insulted him which he could not tolerate and in anger he pressed her neck resulting in her death. He requested Sharda Prasad to save him some how. .

(9.) In support of its Case, the prosecution examined eight witnesses. PW 1 Smt. Chhidana is the sister of the deceased and is the informant of this case PW 3 Manni Lal is the father of the deceased while PW 2 Chhedi happens to be the cousin brother of the informant and resided in another room of House No. 301 in which this occurrence took place and he is said to have seen the accused coming out of the room in question at about 3 A. M. These there witnesses gave evidence regarding the circumstances alleged against the accused. PW 4 was Dr. G. C. Gupta who had performed the post mortem examination. PW 6 Sharda Prasad gave evidence regarding extra judicial confession said to have been made to him by the accused. PW 5 S. I. Y. P. Sharma, PW 7 H, C. Prem Chand and PW 8 I. O. Karan Singh Sengar are formal witnesses of the police.

(10.) The accused did not dispute that he was married to Smt. Phoolmati in 1972. He, however, denied that Smt. Phoolmati was ill-treated by the members of his family or that she was ever assaulted. His case, on the other hand, was that Smt. Phoolmati amicably lived with him for about six months and thereafter her father took her away along with all her ornaments etc. He went to call her several times but her father refused to send her back so that he gave a notice and then his father filed a complaint. He denied that he ever went to live in the ground-floor room of his father-in-laws house. He also denied having made any confessional statement before Sharda Prasad. He also denied that he had absconded and stated that he had been falsely implicated on account of the complaint regarding ornaments.

(11.) The learned Sessions Judge did not believe the testimony of Sharda Prasad PW 6 and held that the alleged extra judicial confession of the accused cannot be considered legal evidence and must be discarded. He, however, placed reliance on the testimony of other witnesses and held that Smt. Phoolmati was victim of culpable homicide, that she was done to death during sleep at about mid night, that the witnesses were reliable and although relations between the two families were strained, yet the testimony of Smt. Chhidana PW 1, Chhedi PW 2 and Manni Lal PW 3 could not be thrown out merely on the ground of relationship. He further believed the prosecution case that the accused had started living along with the deceased in the ground-floor room of his father-in-laws house for the last about 9 months prior to this occurrence, that altercations had taken place between the accused and the deceased on the previous night which continued till about mid night and that during the course of those altercations the accused had threatened the deceased that he would kill her. The said room in which this murder took place was occupied only by the accused and the deceased. He also believed the statement of Chhedi PW 2 and held that at about 3 A.M. the accused came out of that room and then disappeared, and that he was not found at his house till 20-1-1976 when he surrendered before the court. In his opinion, the above circumstances proved by the prosecution, even after excluding the extra judicial confession, lead to the irresistible conclusion that it was on!|y the accused who could have strangulated his wife shortly after sleep, Accordingly, he held the appellant guilty of the offence of murder and convicted and sentenced him as mentioned above.

(12.) It has not been disputed before us that this was a case of murder and that this murder had been committed by strangulation at or soon after mid night on the night between 13/14th January, 1986 There can be no doubt that some body strangulated Smt. Phoolmati while she was sleeping in that room, as a result of which she died. As there is no eye witness testimony regarding the actual murder, the main question for consideration is as to whether various circumstances alleged by the prosecution have been proved and whether they are sufficient to establish that this murder had been committed by the accused and there was no probability of its having been committed by some one else.

(13.) In the first place, it was contended that the first information report was belated and had been ante-timed. It was alleged that this murder had come to light at about 4 a. m. but the first information report was lodged at 6.30 a. m. at police station, Cantonment, which was at a distance of about 1-1/2 miles from the spot. It was also pointed out that the statement of the investigating officer shows that he left for the spot at about 8.15 a m. and that the constable who had left with the special report at 7.55 A. M. returned to the police station at 14.15 Hrs. It was, therefore, argued that the first information report had actually been lodged after 7.30 a. m. but the same had been ante- timed. We do not find any force in these contentions. In such cases when there is no eye witness testimony of the actual offence of murder and the murder comes to light on recovery of the dead body, people do not rush to the police station at once but take some time in finding who might have committed the murder. In this case also as soon as Smt. Chhidana found that her sister was lying dead in the room, she raised an alarm and when people assembled it came to light that there was an altercation between the deceased and her husband during the previous night during the course of which the accused had threatened to murder the deceased and it also came to light that the accused had left the room at about 3 a. m. It was then that Smt. Chhidana along with her father went to the police station, which was at a distance of 1-1/2 miles, and lodged the report at 6.30 a. m. There was thus no delay in lodging the first information report which appears to be quite prompt. We have also no reason to think that the investigation was tainted or that the investigating officer made any attempt to ante-time the first information report. Some time must have been taken by the Head Moharrir in preparing the first information report on the basis of verbal statement made by Smt. Chhidana and also in making an entry in the general diary regarding the registration of the case. The investigating officer would have also taken some time in copying out the first information report and the entry of the general diary in his case diary while statement shows that the first information report was being prepared, he had directed S. I. Y. P. Sharma to leave for the spot for holding the inquest. In these circumstances the investigating officer left for the spot at about 8.15 a. m. It cannot be inferred that the first information report had been ante-timed.

(14.) It was next contended that the appellant had no motive to commit this murder. Our attention was drawn to the prosecution case that despite counter complaints filed by the parties, the appellant had gone to the house of his father-in-law and had begged to be excused and thereafter he had been living with his wife in the ground-floor room of his father-in-laws house for the last about 9 months prior to this occurrence. It was, therefore, contended that if that was so the accused could not: have any motive to commit this murder. In this Connection, we may simply point out that although the evidence shows that the accused had started living with his wife in the ground- floor room of his father-in-laws house, yet the husband and wife often used to quarrel and that on the night previous to this occurrence, there had been long drawn altercation between the two which continued till about mid night and that during the course of that altercation, the accused had threatened his wife that he would kill her. Although informant Smt. Chhidana was not an eye witness to this altercation, yet she had come to know about this altercation from the witnesses who had assembled on the spot in the morning and on that basis a mention about these altercations and threat was made in the first information report, We also do not find any merit in the defence contention that this could not be a sufficient motive for the accused to commit this murder, especially when he had amicably settled the matter and had started living with his wife. In this connection we may simply observe that much depends upon the mental make up of the persons involved. Some people commit heinous crimes over trifling matters. We do not know the matter which led to the altercation between the husband and wife and what had been uttered by the wife which impelled the accused to extend the threat. It may be that she said something which hurt the accused so much so that he went to the extent of giving practical shape to his threat extended by him. Any way, in the above circumstances, it cannot be said that there w,as absence of motive for this murder.

(15.) The main contention raised on behalf of the appellant was that the appellant never lived in that room and that the statements of PW 1, PW 2 and PW 3 to that effect were altogether false. It was contended that besides these three witnesses, who were closely related to the deceased, the prosecution did not examine any independent witness of the locality to say that the appellant had started living in this room. It was also contended that keeping in view the strained relations between the parties and the pending litigations it was difficult to believe that the appellant would have come to Manni Lal with the request to permit him to live there, nor it was probable that Manni Lal would have allowed him to live in the ground-floor room of his house. In this connection, it was also pointed out that if the appellant had actually been living there for the last about 9 months he must have been keeping his clothes and other articles in that room and the investigating officer must have recovered the same from that room.

(16.) Having given our anxious consideration to the above contentions, we do not think that they are well founded.

(17.) There is no dispute that the deceased lived with the appellant at his house for some months after marriage and thereafter she had been living in her fathers house. According to the prosecution, the family members of the appellant had started ill treating her and they had also assaulted her causing a fracture so that her father Manni Lal brought her to his house. She had been assaulted on 19-6-1973 regarding which she filed an FIR under sections 323/504/506 IPC and subsequently also filed a complaint against the mother and brother of the appellant. The papers filed by the accused also show that he gave a notice dated 23-8-1973 (Ex. Ka-1) to his father-in-law Manni Lal alleging that he had taken his wife along with all the ornaments on the pretext that they would be needed on the occasion of Deepawali and in marriage and that he was wrongfully detaining her and not sending her to his house. Smt. Phoolmati gave a reply to this notice on 4-9-1973 Ex. Kha-3 through her counsel denying the allegations and mentioning that she was being ill-treated and that her life was not safe in the appellants house. Ex. Kha-2 is another notice dated 11-9-1973 given by the appellant through his counsel reiterating the facts alleged in the earlier notice and denying the allegations made in the notice given by the deceased on 4-9-1973. There is no dispute that thereafter the father of the appellant filed a complaint under section 420 IPC against the father of the deceased. It would thus appear that the relations between the two families were strained and they were making allegations and counter allega- tions against each-other and had also filed cross complaints. It, however, does not mean that the appellant could not have gone to the father of the deceased and started living with his wife in his father-in-laws house. After all they were husband and wife and were living separately for about two years. Moreover, the grievance of Smt. Phoolmati was mainly against her mother-in-law and brother-in-law who used to ill-treat her and had also assaulted her. There was no direct allegation of ill-treatment or assault against the appellant. In these circumstances it was not at all unnatural that the appellant approached his father-in-law and begged to be excused and requested that his wife may either be sent along with him or he may be permitted to live with her at his father-in-laws house. All the three witnesses of fact have consistently deposed that the appellant was living with the deceased in the ground-floor room of the house of Manni Lal. As observed by the learned Sessions Judge, their testimony cannot be discarded simply on the ground that they were related to the deceased, especially when they were the most natural witnesses. No doubt Darshan was an independent witness of the locality but his non-production was no ground for discrediting the testimony of the above mentioned three witnesses on this point. The evidence shows that it was Chhedi PW 2 who got up at 3 A. M. on hearing the Ahat of opening of the door and on his asking, the appellant told that it was he. Whereupon the witness again went to sleep under the impression that the appellant had gone for urination and will again come back and sleep. It was pointed out that the name of Chhedi was not mentioned in the first information report. Instead the names of Darshan and Hori Lal were mentioned as the persons who told Smt. Chhidana regarding the altercation on the previous night and regarding the fact that the appellant had left the house at 3 A. M in the night. There is actually no discrepancy because the evidence shows that in the morning at 4 A. M when Smt. Chhidana raised the alarm several persons including Darshan, Hori Lal and Chhedi had arrived there. Naturally when Chhedi came to know about this murder, he told the persons present there that he had seen the appellant going out of the room at 3 A. M. It appears that Smt. Chhidana omitted to mention the name of Chhedi in the first information report. It appears that after coming to know from Chhedi that the appellant had left the room at 3 A. M. Darshan and Hori Lal also started repeating the same, which is very common and natural in such cases. It was under that impression that Smt. Chhidana mentioned in the first information report that Darshan and Hori Lal told her about the altercation and also about the fact that the appellant had left the room at 3 A. M. As it was Chhedi who had actually seen the appellant leaving the room at 3 A. M., the prosecution was perfectly justified in producing him and his statement cannot be disbelieved merely on the ground that his name was not mentioned in the first information report, especially when he had been interrogated by the investigating officer on that morning itself. In our opinion, the learned Sessions Judge was perfectly justified in believing the aforesaid three witnesses and in. holding on the basis of their testimony that the accused was living alongwith the; deceased in that room and that there was an altercation on the previous night and that the appellant had been seen going out of the room by Chhedi at 3 A. M.

(18.) It is also noteworthy that if the appellant had not been residing with his wife in that room it was highly improbable that Smt. Phoolmati would have been living and sleeping all alone in that ground floor room. In that case it was expected that she would have lived upstairs while her father or brother would have lived on the ground floor room. An absurd and unbelievable suggestion was made on behalf of the appellant that Smt. Chhidana lived in that room and it was she who committed this murder. This suggestion was altogether baseless and there was absolutely nothing to lend support to such a suggestion. The evidence shows that she along with her husband Gur Prasad lived on the back side of house no. 301. It was also suggested that the deceased had illicit connection with Gur Prasad, husband of Smt. Chhidana. This is also a baseless suggestion and there was neither any evidence nor any circumstance to lend support to such an allegation. On the other hand, the evidence on the record definitely shows that for the last about 9 months, the appellant had started living in that room with his wife. It is also noteworthy that the appellant merely made wild suggestions but did not adduce any evidence to show that he was not living in this room but was living in his fathers house in Mohalla Shanti Nagar. There was also no evidence that the deceased had illicit connection with Gur Prasad or that any one else lived in the room in question.

(19.) It is correct that the investigating officer has not said anything regarding the recovery of any clothes etc. of the appellant from the room in question. It is correct that normally it was expected that if the appellant was living in that room for the last so many months some of his clothes and other belongings were expected to be found there. In the first place the investigating officer has not been interrogated in this connection. It is also noteworthy that the appellant was resident of the same town and his fathers house was in Mohalla shanti Nagar. There is also nothing to show that he kept his clothes and belongings in the room in question. For the reasons best known to the appellant or his counsel, no questions were pud to the witnesses in this respect. It may be that the appellant used to come to live with his wife but kept his clothes and other belongings in his fathers house in Mohalla Shanti Nagar and it is also possible that he might have taken away his belongings. There was also no evidence that the appellant kept clothes and other articles in the room. Consequently we do not find any merit in this contention. Our attention was also drawn to the evidence that after this murder came to light Munni Lal sent Chhedi and Hori Lal to Shanti Nagar to see whether Rajendra (appellant) was there. Accordingly they went there and found that the house was locked. The learned counsel for the appellant contended that if Chhedi had seen the appellant leaving room at 3 A. M. there was no reason why he should have gone to the house of the appellant to see whether he was there. In this connection, we may observe that the actual murder had not been seen by any one and this was a case depending on circumstantial evidence; as such even though Chhedi had seen the appellant leaving room at 3 A. M.. there was nothing unnatural if Manni Lal asked these witnesses to go and verify whether the appellant was at his house.

(20.) Lastly it was contended that even if the circumstances alleged by the prosecution were held to have been proved, it does not rule out the probability that this murder might have been committed by some one else. We are unable to agree. From the evidence on record, it is proved beyond doubt that the deceased lived with the appellant in that room and that no one else lived in that room. The evidence also shows that there was an altercation on the previous night during the course of which the appellant threatened to murder the deceased. The appellant was seen leaving this room at 3 A. M. in the morning by PW 2 Chhedi and at 4 A. M. when Smt. Chhidana came to this room, she found that her sister was lying dead. These circumstances lead to the irresistible conclusion that this murder bad been committed by the appellant and by no one else. The guilty conscience of the appellant is further apparent from the fact that he absconded and was not available at his house till 20-1-1976 when he ultimately surrendered before the Court. The prosecution case has been proved beyond reasonable doubt and the learned Sessions Judge was perfectly justified in convicting the appellant.

(21.) In the result the appeal fails and is hereby dismissed. The conviction of the appellant under section 302 IPC and the sentence of life imprisonment awarded to him are maintained. He is on bail. He shall be taken into custody forthwith and sent to jail to serve out the sentence in accordance with law. Appeal dismissed.