Judgment S.H.S.Abidi, J. 1. Md. Mahiruddin, Sk. Jahiruddin, Md. Tamizuddint and Bibi Bhugania wife the Sk. Sirajuddin have been convicted under Sections 302/34 of the Indian Penal Code (for short I. P. C. and have been) sentenced for life. 2. Sk. Sirajuddin is the father of the appellants 1 to 4 and husband of appellant No. 5. He is also husband of Bibi Matluwa who is said to have been killed in this case by throttling. The informant-Abdul Raut (P.W. 11) is the brother of Bibi Matluwa. He gave fardbeyan (Ext. 3) on 19-2-1982 at 19.30 P.M. at the house of Sirajuddin in village Shikarpur police-station Kasba District Purnia. He has said that his sister was married in Shikarpur village with Sk. Sirajuddin and she used to live with him in village Shikar. On the morning on 19-2-1982 about 6 A.M. Halizuddin son of Sk. Sirajuddin came with his servant and gave out to him that his (informant) sister had died. His Bahnoi (Sirajuddin) was with him in village Tolli. On this information the informant went on cycle to the house of Sirajuddin and saw dead body of his sister lying in the north and a palla of kothi was lying on her chest and the sari, which was wearing was tied round her neck. He removed aside the palla of kothi and on removing sari saw black spot round the neck and black spot on the back which showed that she had been killed.. On enquiry, the neighbours said that there was no hulla. His brother-in-law has got two wives. From the first wife he has four grown up sons. His sister (deceased) had two months old daughter. With the elder wife of Sirajuddin his (informant) sister used to quarrel and the first wife was helped by her sons. The informant said that his sister had been killed by the first wife of Sirajuddin and her sons. On the basis of this fard-beyan the first information was registered on 19-2-1982 at police-station Kasba. The investigation was taken up by-the Sub-Inspector of Police B. N. Singh (not examined as witness). During the course of investigation inquest report (Ext. 1) was prepared and dead body was sent to Sadar Hospital Purnia where post-mortem examination was held by Dr. Anand Kishore Choudhary (P.W. 1) on 20-2-1982 who gave the post mortem report (Ext. 2). The investigation was taken up by-the Sub-Inspector of Police B. N. Singh (not examined as witness). During the course of investigation inquest report (Ext. 1) was prepared and dead body was sent to Sadar Hospital Purnia where post-mortem examination was held by Dr. Anand Kishore Choudhary (P.W. 1) on 20-2-1982 who gave the post mortem report (Ext. 2). After examination of witnesses and completing investigation charge-sheet was submitted against the five appellants. 3. The accused in defence, denied the prosecution case and alleged that they have been falsely implicated. No witness in defence has been examined. 4. The prosecution, in support of its case, produced 11 witness, P.W. 1 Md. Taiyab Hussain Sarpanch of the village has said that Zahiruddin came to his house and told that dacoity had taken plale in his house in which his youngest mother Bibi Matluwa was killed. This witness also said that there used to be quarrel between the deceased and the appellants. Md. Ishaq (P.W. 2) a co-villager has also said about dacoity and quarrel. P.Ws. 3, 4 and 7, namely, Md. Ishaq, Md. Saiyad and Sk. Sukruddih have been tendered. P.W. 5 Sk. Amiruddin has turned hostile. Jagdeo Pd. Sah (P.W. 6) is witness of inquest report (Ext. 1). P.W. 8 Md. Mohfiz Dafadar has said that he had gone to police-station and gave information to the investigating officer (for short I.O.) that some one had been killed in the village and that no sanha entry had been made. P.W. 9 Sudhir Rishideo chaukidar. who had taken the dead body for post-mortem examination to the Sadar Hospital, Purnia, has been tendered. P.W. 10 Dr. Anand Kishore Choudhary has said about holding the post-mortem examination on 20-2-1982 and submitted post-mortem report (Ext. 2) P.W. 11 is Abdul Rauf informant himself. 5. The learned trial Court after considering the entire material on record has convicted and sentence the appellants as mentioned above. 6. Learned Counsel for the appellants has urged that the order of conviction of the appellants is bad as there is nothing to show that the appellants had taken part in the offence and that the appellants have been falsely implicated in this case on account of appellant No. 5 Bibi Bhugania being the co-wife of Sk. Sirajuddin and appellants 1 to 4 being her sons. Sirajuddin and appellants 1 to 4 being her sons. The circumstances do not make out the case against the appellants and the chain of circumstance is not complete. Motive for the offence, which is an essential ingredient in the case of circumstantial evidence, has not been made out. Further the learned Court below has tried to take advantage of the weakness of the defence case to buttress the prosecution case. And lastly on account of npn-examination of the I.O. prejudice has been caused to the accused and so they are entitled to get benefit of the same. To appreciate all these contentions the evidence brought on the record has to be scrutinised with care and caution. 7. P.W. 11 is the informant and brother of the deceased Bibi Matluwa. He has said that his sister was married to Sk. Sirajuddin of village Shikarpur. His brother-in-law Sirajuddin was- in village Tolli. On 19-2-1982 at about 6 A.M. Haflzuddin son of Sirajuddin came to the informants place along with a servant and said that his second mother had died. Then he (informant) went on cycle to the house of Sirajuddin and saw the dead body lying in the north and one small earthen palla of Kothi was kept on her chest and the sari, which she uas wearing, was tied round her neck. When he removed the sari from her neck, he found black spot in the neck and on the back. On enquiry the neighbours gave out that there was no hulla in the night. Zahiruddin and Hafiz Uddin sons of Sirajuddin said that in the night there was dacoity. Sirajuddin had got two wives. His wifes name is Bibi Bhugania who has got four sons. The younger wife was Bibi Matluwa who had been killed, who had two months daughter. There used to quarell, with the older wife and Bibi Matluwa and he had tried to pacify them two to three times. She had been killed as a daughter was born and so she was to get a share. He has given a fard-beyan to the police. In cross-examination he said that his sister had two months daughter who also died a natural death after the death of her mother. She had been killed as a daughter was born and so she was to get a share. He has given a fard-beyan to the police. In cross-examination he said that his sister had two months daughter who also died a natural death after the death of her mother. He had not said to the I.O. that Zahir Uddin and Haflzuddin had said that there was dacoity in the night and that he had gone two or three times to pacify the appellant No. 5 and the deceased. He further said that Bibi Matluwa was married about four years before. Earlier a child was born to her who died on the same day of birth. After the marriage there was quarrel between the deceased and Bibi Bhugania three times but for that no case filed. Sirajuddin had gone to his (informant) place and was staying therein and taking Mehmani. He (Sirajuddin) did not come to the place of occurrence along with the informant. He had removed the sari which was round the neck of the deceased. Anchal was tried round the neck. He denied the suggestion that the victim had committed suicide. 8. P.W. 7 Md. Taiyab is Sarpunch of the village. He has said that at the time of occurrence he was at his house. Next morning Zahiruddin came and told him that dacoity had been committed at his house and that the second mother had been killed by dacoits. He went to the house of Sirajuddin and saw the victim lying dead and palla of kothi was lying on her chest. The fard-beyan was recorded by I.O. In cross-examination he said that his house was at a distance of ½ kilometer from the place of occurrence. He had given statement to the I.O. and had told him that Zahiruddin had said to him that dacoity had taken place at his house, and that his younger mother had been killed. He reached the spot at about 5.30 A.M. He had seen the part of the kothi on the chest fallen. Kothi was in three parts. The upper part had fallen on her chest No other injury was found on her body. No rope was found hanging from roof. The roof was of bamboo and kath. The upper part of Kothi is so heavy that on account of fall of that on chest, the chest could have been; pressed. Kothi was in three parts. The upper part had fallen on her chest No other injury was found on her body. No rope was found hanging from roof. The roof was of bamboo and kath. The upper part of Kothi is so heavy that on account of fall of that on chest, the chest could have been; pressed. It was not pressed chest. He could not say that Bibi Matluwa had herself committed suicide. Further he could not say that there was any dacoity. 9. P.W. 2 Md. Ishaq said that on the day of occurrence he was at his place. At 4 A.M. Zahiruddin came to him and said that his mother had been killed by dacoits. He went there and found the dead body in the house and palla of kothi fallen on her. Then Zahiruddin took him to. Sarpunch. He did not know that there used to be quarrel between the two mothers of Zahiruddin. In cross-examination he said that he was examined by the I.O. He further said that he had not said to any one that there used to be any quarrel between the two women. He further said that there was no black spot on the neck of the deceased or did not see sari round her neck. He had not said the I.O. that he seen black spot on the neck. He had not said to the I.O. that on removing the palla of kothi injury was found or palla was kept after being killed. He denied the suggestion that he was giving false evidence and he was not related to Zahiruddin. 10. P.Ws. 3, 4 and 7 have been tendered and they have not been cross-examined on fact. P.W. 5 Sk. Amiruddin has been declared hostile. He has said that on the day of occurrence at about 10 A.M. when he returned home from Barsaini then he came to know that there was dacoity in the house of Sirajuddin in which his wife Bibi Matluwa was killed. He did not go the house of Sirajuddin. He was examined by the I.O. He did not say to the I.O. that some body had killed the second wife of Sirajuddin. People said that she had been killed by the dacoits but no body saw the dacoits coming and going. 11. P.W. 8 Md. Mohfiz is dafadar of the village. He did not go the house of Sirajuddin. He was examined by the I.O. He did not say to the I.O. that some body had killed the second wife of Sirajuddin. People said that she had been killed by the dacoits but no body saw the dacoits coming and going. 11. P.W. 8 Md. Mohfiz is dafadar of the village. He has said that at the time of occurrence he was doing dafadari. In the morning chaukidar Sudhir Rishideo was saying that there was hulla in Shikarpur from which it appeared that some body had been killed and so he went to the police station and told the I.O. to proceed to village Shikarpur. In the house of Sirajuddin his younger wife was lying dead. There was black spot on her neck. The palla of kothi was kept by her side. The I.O. saw the dead body and sent it for post-mortem examination to Sadar Hospital, Purnia. He went along with the dead body and post-mortem was done in his presence. In cross-eramination he said that the Sub-Inspector left for P.O. without writing a sanaha. His statement was not recorded at the police station. His house is away from the place of occurrence. The" victim as the step mother of appellants 1 to 4. Even the four accused and real brothers. On the spot he came to know that she (deceased) committed suicide. 12. P.W. 9 Sudhir Rishdeo, Chaukidar had taken the dead body for postmortem examination. He had been tendered. 13. Dr. Anand Kishore Choudhary (P.W. 10) had conducted the post-mortem examination on 20-2-1982 and had submitted post-mortem report (Ext. 3). He had found rigors mortis in the lower limb partially. Face congested, serosanguinous, frothey sereion from nostril, eyes and mouth were closed. There were discloured marks over neck on both sides and on trunk of chest. Hyoid bone fractured. Marks were ante-mortem in nature. There was post-mortem lividity on back. Stomach contained undigested rice and pulse about two ounce. Both the chambers of heart were full. The time since death was about 24 hours. In his opinion the death was due to throattling. In cross-examination he said that there was no mark of ligation over the neck and hyoid bone was fractured and so it cannot be a case of suicide by hanging. In case of hanging there can be no fracture of hyoid. The time since death was about 24 hours. In his opinion the death was due to throattling. In cross-examination he said that there was no mark of ligation over the neck and hyoid bone was fractured and so it cannot be a case of suicide by hanging. In case of hanging there can be no fracture of hyoid. He did not find any mark of finger nail over the neck and any ante-mortem injury on the person of the deceased. 14. Inspite of the best effort by the prosecution the I.O. has not been examined. From the order-sheet dated 9-9-1987 it appears that several letters had been sent to the Superintendent of Police but the I.O. did not turn up and as a last chance the Additional P. P. was given opportunity to produce the I.O. The Additional P.P. wrote letters the S. P. Purnia, and the I. G. Darbhanga Division to produce the I.O. on 21-10-1987. Inspite of that, the I.O. did not appear and the S. P. and the I.G. did no care to reply or produce him and so the prosecution case was closed. 15. The entire .evidence in the case is of circumstantial nature and all circumstances and the motive for the offence will have to be seen along with the medical evidence. It is a fact that Bibi Matluwa was the second wife of Sirajuddin and appellant No. 5 is the first wife of Sirajuddin and appellants 1 to 4 are sons of appellant No. 5. At the time of occurrence Sirajuddin was at the house of informant in village Tolli. The dead body was found in the house of Sirajuddin and on her body a part of palla of kothi was found kept and sari was seen tied round her neck and also on her back. It is also made out that Hafizuddin had gone to the house of informant and told him that there was a dacoity. Then the informant Abdul Rauf came to the place of occurrence and found the dead body of his sister in the said condition i.e. part of palla of kothi was on her chest sari was round her neck and black spots were on her neck and chest. Taiyab Hussain and Ishaq have also said that case of dacoity was given out them by the accused Hafizuddin and Zaheeruddin. Taiyab Hussain and Ishaq have also said that case of dacoity was given out them by the accused Hafizuddin and Zaheeruddin. P.W. Taiyab Husain said that there was palla on chest and black spots on chest and back also. So is the version of Dafadar also when he went to the I.O. giving information that the dead body was lying and palla of kothi was there and black spot on the chest and neck. Even the hostile witness has said that when he returned at 10 A.M., it was given out that it was a case of dacoity. The doctor also found that it was not a case of suicide but throttling on the basis of marks observed on the dead body. A child was also born to the second wife who had died on the date of birth and the second child a daughter, was two months old at the time of occurrence who also later on died, though a natural death. The appellant No. 5 did not like a second wife of her husband and the appellant Nos. 1 to 4 were supporting their own mother in the quarrels between the two mothers. Abdul Rauf (P.W. 11) has said that he tried to intervene between them and pacified them 2 to 3 times. The occurrence also took place at a time when Sirajuddin had gone to the house of the informant for mehmani. 16. Thus motive was to the appellants to do away with the victim and for that purpose they got floated a rumour that a dacoity took place in the house, as is borne out by the evidence of P.Ws. 11, 12 and 8 and even hostile witness Sk. Amiruddin (P.W. 5). Yet these witnesses have said that there was no dacoity and inspite of searching cross-examination nothing has come out from their evidence to the contrary about dacoity on its sign or even any hulla which might have attracted the villagers. Even the accused have not taken the defence of a dacoity under Section 313, Cr. P. C. Rather, according to dafadar Md. Mohfiz. he had heard hulla that somebody had been killed in the house of Sirajuddin. Even the accused have not taken the defence of a dacoity under Section 313, Cr. P. C. Rather, according to dafadar Md. Mohfiz. he had heard hulla that somebody had been killed in the house of Sirajuddin. In the house, except the dead body of victim with a palla of kothi on her chest and sari round her neck and black marks on the neck and chest, nothing was found to show that there was a dacoity. So the story of dacoity appears to have been made out by the appellant to mislead the people and cover up the offence committed by them. There is nothing to show that except the appellants some one else was present in the house who might have committed this offence. There is also evidence of the informant that there was no rope hanging from the roof nor was any thing to show that she herself might have committed suicide. Added to these circumstances which are complete by themselves is motive to the appellants and on the night of occurrence Sirajuddin was out and so the appellants got full opportunity to commit the offence. After killing her, they tried to give it out colour of dacoity with murder. Besides these circumstances, the condition of the dead body found in the house is clear enough to make out the case, not of suicide by her but a case throttling. Doctor in cross-examination has said that as there was no mark of ligature over the neck and Hyoid bone was fractured, so it was not a case of suicide by hanging. Doctor also found black mark on the neck and black spot on the back. Further if the dacoits had come and if there any struggle between her and the dacoits, and if they threw the palla on her or the palla itself fell upon her, then in any event, on account of its heavy weight, the palla after falling on her chest must have been pressed it completely, and her bones and ribs must have been smashed completely. But the chest was not found to be pressed by the doctor and the palla was found to be kept on the chest. The false explanation by the accused about the death is also a circumstance speaking by itself and supporting the other reliable and convincing circumstantial evidence. But the chest was not found to be pressed by the doctor and the palla was found to be kept on the chest. The false explanation by the accused about the death is also a circumstance speaking by itself and supporting the other reliable and convincing circumstantial evidence. The false explanation has been given out to the witnesses who have been cross-examined at length whose evidence inspires confidence. This fact of giving out a rumour of dacoity has been denied by the accused when put to them under Section 313, Cr. P. C. and so it can be looked into by the Court along with other evidence and circumstances of the case. Thus the facts and circumstances proved by the prosecution unerringly are pointing towards the guilt of the accused. The evidence conclusively his also established that with all human probability this offence has been committed by none else than the appellants. 17. In the case of Parvinder Kaur v. State of Punjab, AIR 1952 SC 354 , it has been said by the Supreme Court that in cases depending on circumstantial evidence Courts should safeguard themselves against the danger of basing their conclusion on suspicion howsoever strong. The Supreme Court in the case of Chandrakant Ganpsat Sovitkar v. State of Maharashtra, AIR 1974 SC 1290 , has observed that no one can be convicted! on the basis of mere suspicion though strong it may be. Again in the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , it has been observed that suspicion, howsoever, great cannot take place of legal proof and the fouler the crime higher the proof. On following these principles again in the case of Padala Veera Reddy v. State of Andhra Pradesh and another, AIR 1990 SC 79 , the Supreme Court observed that the circumstances indicated by the learned counsel undoubtedly would not be sufficient to hold that the respondent had committed the heinous crime. No one can be convicted on basis of mere suspicion, howsoever, strong it may be. 18. In considering the circumstantial evidence conducted of the accused is also looked in its entirety as said by the Supreme Court in Chandrakant Ganpat Sovitkar v. State of Maharashtra (supra). No one can be convicted on basis of mere suspicion, howsoever, strong it may be. 18. In considering the circumstantial evidence conducted of the accused is also looked in its entirety as said by the Supreme Court in Chandrakant Ganpat Sovitkar v. State of Maharashtra (supra). Similar view is of the Supreme Court in the case of Prem Thakur v. State of Punjab, AIR 1983 SC 61 , where it has been held that the circumstance that the appellant was seen in the company of the deceased can be accepted as proof but no inference can arise therefrom that the appellant had committed the murder. In the case of Sharad Birdhichand Sarda v. State of Maharashtra (supra), it has been said at page 1955, para 150 "It is well-settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea of false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court." Further at page 1657 in paras 158 and 159 it has been observed : "It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz- before a false explanation can be used as additional link, the following essential conditions must be satisfied : (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance point to the guilt of the accused with reasonable definiteness ; and (3) the circumstance is in proximity to the time and situation. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlals case, AIR 1981 SC 765 (supra) where this Court observed thus : "Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance. If other circumstances point unfailingly to the guilt of the accused." In the case of Harendra Narain Singh v. State of Bihar, AIR 1991 SC 1842 : 1991 (2) PLJR 87, the Supreme Court has observed in Paragraphs 5 and 6 (at p. 1844) : "Para 5The entire case of the prosecution rests on the circumstantial evidence as no prosecution witness has given any direct testimony against the appellants for the commission of the offence for which they have been convicted. The Trial Court as well as the High Court both have relied on circumstantial evidence in convicting the appellants for the offence under Sections 302/34 of the I.P.C. Since the entire case rests on circumstantial evidence it is necessary to refer to the principles which should gide the Court in considering the conviction of an accused resting on circumstantial evidence. It is a cardinal principle of criminal jurisprudence that circumstantial evidence must be fully established from which there should be inevitable conclusion of the guilt of accused beyond any reasonable doubt and the facts so established should be consistent only with the hypothesis of the guilt of the accused, ruling out any hypothesis of the innocence of the accused in Hammant v. State of Madhya Pradesh, (1952) 3 SCR 1091, this Court laid down fundamental and basic principles for appreciating the circumstantial evidence, Mahajan, j, speaking for the Court observed : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from whieh the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so for complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused-Para 6.This principles were reiterated by this Court in Shivaji Saheb Rao Bobde and another v. State of Maharashra, (1973) 2 SCC 793 , wherein it was emphasised that where the prosecution rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. The Court further observed that the cireumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved and the chain of evidence should be so complete as to rule out any reasonable ground for the conclusion consistent with the innocence of the accused and the circumstances must show that in all human probability the act must have been done by the accused. These principles have been consistently laid down by this Court in several decisions, it is not necessary to refer to all these decisions. However, we would like to refer to the decision in Sharad B. Chand v. State of Maharashtra, (1985) 1 SCR 88 as this case has been relied upon by the High Court in upholding the conviction of the appellants. In Sharad B. Chands case (supra) this Court while considering the absence of explanation or a false explanation of the accused for the circumstances and the facts proved against him, struck a note of caution that before a false explanation is used as additional link against the accused the Court should satisfy itself that (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved ; (2) The circumstances point to the guilt of accused with reasonable definiteness and (3) The circumstances are in proximity to the time and situation. Where all these conditions are fulfilled only then a Court can use a false explanation or a false defence of an accused, as an additional link to lend an assurance to the Court and not otherwise." 19. Section 113-A of the Evidence Act deals with the presumption about abetment of suicide by married woman and Section 113-B deals with presumption as to dowry death. Under Section 113-A if a woman has committed suicide within seven years from the date of her marriage and if it is shown that her husband or such relatives of her husband have subjected to her to cruelty, the Court having regard to all the other circumstances of the case may presume that such suicide has been abetted by her husband or by such relative of her husband. Similarly under Section 113-B if a death of woman has been caused on account of cruelty or harassment for or in connection with any demand of dowry, the Court shall presume that such person has caused the dowry death. Section 114 of the Evidence Act also gives out about presumption of existence of certain facts. If a man is found in possession of stolen goods soon after the death, is either by theft or has received the goods knowing them to be stolen unless he can account for his possession. Similarly under Section) 5-A of the Prevention of Corruption Act, if the illegal gratification is recovered from the possession of the accused, then he is to account for the possession of the same. The law presumes every body innocent unless proved otherwise. But in certain circumstances law has provided for some presumption as seen earlier. No doubt, such presumption will not be technically applicable in this case, but this much remains that when the victim woman in the house of her husband and near relations has died and the others had got no access except those inmates and the death is not natural, then the persons living in the house at the time of the occurrence and in whose custody she was before death at the time of the death and till discovered by others as dead, have to explain as to under what circumstances the death has occurred. That explanation becomes very relevant and material, along with other circumstances of the case. That explanation becomes very relevant and material, along with other circumstances of the case. If such explanation given out, directly or indirectly, appears to be convincing, cogent and reliable, then it will be a very relevant and pertinent material to dispel the doubt against those persons. Otherwise it will also become a relevant, reliable and cogent factor along with other circumstances against the husband or those relations as the case may be. Here is the same position. It has been brought on record and also fully established! that she had been married within four years of her death, that she was the second wife and the first wife was there with her four children living with the deceased wife under the same roof of Shirajuddin who at the relevant time was away to the house of informant. Further as given-out by P.W. 1 Abdul Rauf there used to be quarrel between the two wives in which he had been intervening and pacifying them. It is a known human phenomenon and conduct that two wives quarrel and it will be rare if the two or more do not quarrel. When Sirajuddin was out at the time of occurrence, then in the background of the strained and bad relations between the two wives the appellants appear to have got the opportunity to do away with the deceased. She has died in the house where the evidence establishes that no other person had any access and nobody had touched her. They have tried to give out an explanation to the witnesses which does not fit in with the circumstances and the medical evidence. Thus, the explanation given about her death establishes the falsity of the defence and becomes a strong additional link alongwith other cogent circumstances, to establish that she has been killed by none else than the appellants. 20. It has also been said that Sirajuddin, the husband of the two wives and father of appellants 1 to 4 has not been brought by the prosecution to support the case. As to this contention, Sirajuddin is the husband of the first wife and father of four sons. He was also husband of the second wife (deceased). Nothing has come out to show that he was present at the spot. P.W. 1 if clear in saying that Sirajuddin was with him for Mehmani on the night of occurrence. As to this contention, Sirajuddin is the husband of the first wife and father of four sons. He was also husband of the second wife (deceased). Nothing has come out to show that he was present at the spot. P.W. 1 if clear in saying that Sirajuddin was with him for Mehmani on the night of occurrence. It was expected of him to save his first wife and the four sons after the loss of his second wife. But he has not appeared at any stage for or against. He did not come to the spot along with P.W. 1 inspite of coming to know that a dacoity had taken, place in his house and the second wife had been killed and this information was given by none else than his own son. He has not at all appeared for or against in this case. If there would have been actual dacoity definitely he would have been there to lodge a report. But thinking that it was cock and bull story given by the accused to do away with the second wife, he did not come along with the informant and did not take any step for informing the police. He is not at all appearing in any capacity. If there was a natural death and not so as said by the prosecution, then definitely he would have appeared to defend his first wife and four. sons. The unfortunate victim, i.e. the second wifes first child had died on the day of birth and the second child (daughter) was about two months old. In these circumstances it was but natural for Sirajuddin to appear in defence of the appellants, who are after all the first wife and four sons. Yet he did not appear. For his non-appearance, prosecution cannot be held liable. 21. As regards non-examination of the Investigating Officer which is a regular feature of the criminal cases in this State, it appears that the Court had been taking steps. The order-sheet of the Court dated 9-9-1987 shows that several letters were sent to the Superintendent of Police for the appearance of the I.O. Yet he did not appear and the case remained pending. The order-sheet of the Court dated 9-9-1987 shows that several letters were sent to the Superintendent of Police for the appearance of the I.O. Yet he did not appear and the case remained pending. Last chance was given to the Additional P.P. and also ordered for sending letter to the S. P. Purnia and the I. G. Darbhanga for the production of the I.O. on 31-10-1987, yet the I.O. inspite of all these efforts by the Court and letters of the Addl. P.P. did not appear on| 31-10-1987 and the case of the prosecution was closed. Non-examination of the I.O. in every case cannot be said to be.fatal unless it is shown that it has caused prejudice and facts could not come on account of that the contradictions in the evidence could not be brought. Here in this case nothing has been shown that non-examination of the I.O. has caused any prejudice or any contradiction could not be brought out. Place of occurrence is also not disputed. The investigation done by the I.O. has also not been subjected to criticism and attack. Nothing has been shown that on account of non-examination of the I.O. any material could not come on the record or the appellants have been handicapped in their defence. No doubt, the I.O. is a material witness, but every non-examination of a material witness has got no affect unless it is shown that on account of non-examination the accused has suffered. Inspite of this, the non-examination of the I.O. is not to be taken lightly. It is also one of the cases, which deserves serious consideration and action by the head of Police Administration. Such defaulting Investigating Officers must be given, after consideration of all materials in individual cases, due punishments for such dereliction and carelessness and also causing delays in the disposal of cases and greatest of all prejudices to both the prosecution and the defence. On account of such in actions and omissions of the Investigating Officer, the Police Administration in the State is losing credibility and also confidence of the citizen at large. 22. Another contention is that there is nothing to show that all the accused were present on the spot. As to this, the first wife and the four sons being appellant Nos. 1 to 4 had been living in the same house where the death had taken place at the relevant time. 22. Another contention is that there is nothing to show that all the accused were present on the spot. As to this, the first wife and the four sons being appellant Nos. 1 to 4 had been living in the same house where the death had taken place at the relevant time. The prosecution has beeni giving out throughout that they have been living there. Nothing has been brought in the cross-examination of these witnesses which could show their absence from the place of occurrence at the relevant time. Appellant Nos. 1 to 4 are sons and appellant No. 5 the mother. The relation bet ween the deceased and appellant No. 5 were definitely strained and appellants 1 to 4 being the sons of appellant No. 5 appear to support the mother. Hafizuddin had gone to Abdul Rauf (P.W. 11) for giving information about dadoity with murder. Md. Taiyab (P.W. 1) said that Zahiruddin: had told him that a dacoity had taken place. Mahiruddin and Tamizuddin the two appellants have not been specifically assigned any role of going out or giving any information. But evidence does not make out that they were not present on the spot or they had gone away elsewhere. Even the suggestions have not been shown otherwise what so say any plea of alibi, if any. These appellants 1 to 5 have been throughout the occurrence till the final and so they have shared the common intention to do away with the second wife of Sirajuddin. 23. Thus from the evidence considered and scrutinised it is well made out that the claim of evidence, is complete and definitely and unerringly points to the guilt of the accused. Motive was to the appellants, being the first wife and her sons. At the time of the occurrence there was none else than the appellants in the house and the manner of occurrence does not shows that any dacoity had taken place. The manner of death shows that it was not a case of suicide and also not a natural death but was caused by enemy hands. At the time of the occurrence there was none else than the appellants in the house and the manner of occurrence does not shows that any dacoity had taken place. The manner of death shows that it was not a case of suicide and also not a natural death but was caused by enemy hands. Black marks on the neck and on the back were there, Sari was found tied round the neck, the dead body was lying on the ground and heavy -palla of kothi was found kept on the chest of the victim which, if, would have fallen of its own or during scuffle, would have definitely pressed her chest and broken even the bones of the body which was not at all found. To give a colour of dacoity a rumour was floated and also false information given to P.W. 11. There is nothing to show that the I.O. had found on the spot any sign of dacoity. No sign of hanging from the roof was there and even Sirajuddin husband of appellant No. 5 and fatter of appellant Nos. 1 to 4 has not appeared to defend his own kiths and kins after the death of the second wife. Thus circumstances fully make out a case against the appellants. 24. In the result, the order of conviction recorded by the trial Court appears to be well-founded and made out on the basis of evidence as dealt with above and so the conviction and sentences of the appellants are upheld and this appeal is dismissed. The appellants, namely Sk. Zahiruddin and Bibi Bhugania are on bail, their bail bonds are cancelled and they are ordered to be taken into custody to serve out their sentence. Amir Das, J. 25 I agree. q