G. P. MATHUR, J. Sangam Lal has preferred this appeal against the judgment and order dated 31-1-1977 of IIIrd Additional Sessions Judge, Allahabad in S. T. No. A-1 of 1976 by which he was convicted under Section 302 I. P. C. and was sentenced for imprisonment for life. Ghanshyam accused who was tried alongwith the appellant in the same sessions trial was, however, given benefit of doubt and was acquitted. 2. Before adverting to the merits of the case, it is necessary to place on record certain disturbing features of the present appeal. The appellant was convicted and sentenced on 31-1-1977 and soon thereafter he preferred the appeal and was granted bail. All the criminal appeals of the year 1977 have been heard and disposed of by this Court several years back but the present appeal was not listed for hearing at its turn. Trijugi Narain, brother of the deceased Smt. Manorama Devi filed an application for hearing of the appeal on which an, order was passed on 30-11-2000 for listing it alongwith the record of the appeal. It was thereafter that the office submitted a report that for a long time the record of the criminal appeal was not traceable in the High Court office. However on a further order being passed, the record of the trial Court was summoned. When the trial Court record was received, it was found to be partly burnt and some documents which had been marked as Exhibits in the trial Court were totally missing. Fortunately, the statement of the witnesses were intact. The appeal has been heard on the material as it stands today on the record. It is not necessary for us to guess as to who was to gain by the disappearance of the record of the appeal from the High Court office and also from the delay in the hearing of the appeal as the appellant is enjoying bail for over 24 years. 3. The case of the prosecution, in brief, is that the deceased Smt. Manorama Devi was resident of village Madhoganjmohli. P. S. Kotwali, district Pratapgarh. She was married to the appellant Sangam Lal, resident of Ismailganj, P. S. Tharwai district Allahabad about 8 years before the occurrence. Sangam Lal suspected the fidelity of his wife that she had illicit connection with Hari Shankar Jaiswal of Madhoganjmohli. He used to ill-treat her and used to beat her occasionally. P. S. Kotwali, district Pratapgarh. She was married to the appellant Sangam Lal, resident of Ismailganj, P. S. Tharwai district Allahabad about 8 years before the occurrence. Sangam Lal suspected the fidelity of his wife that she had illicit connection with Hari Shankar Jaiswal of Madhoganjmohli. He used to ill-treat her and used to beat her occasionally. She had sent some letters to her parents complaining about the false accusations made by her husband and also about the beating given to her. The appellant had a flour mill in the front portion of his house. Inside the house there is a room and then there are two rooms on the first floor. Co-accused Ghanshyam, who has been acquitted by the trail Court, had been employed by the appellant Sangam Lal for the purpose of running the flour mill and he was working as a servant. The incident took place in the midnight of 24/25-10-1975. A few incidents of theft and dacoity had occurred in the village in the past few months and as a precautionary measure, the villagers had formed some guard-parties which used to do patrolling in the night from around 10. 00 p. m. P. W. 4 Girja Shankar had gone to the flour mill at about 12. 00 in the afternoon of 24- 10-1975 for the purpose of grinding his wheat. On the said day, it was his turn to do patrolling alongwith others. While he was at the flour mill, the appellant told him that he should be vigilant and alert as the miscreants may make an attempt in the night. At about 12. 00 in the night, the appellant Sangam Lal raised an alarm that some miscreants had entered his house. P. W. 4 Girja Shankar and members of the guard-party then rushed towards his house and an alarm was raised in the whole village which attracted many other people. P. W. 1 Ram Chandra, who was the Sarpanch and P. W. 3 Sangam Lal (another person having the same name as the appellant), who was the Pradhan of the Gaon Sabha also reached there. The appellant Sangam Lal told all those persons who had collected there that the miscreants were inside his house and they had committed the murder of his wife. Ghanshyam, co-accused was also standing outside alongwith the appellant. The appellant Sangam Lal told all those persons who had collected there that the miscreants were inside his house and they had committed the murder of his wife. Ghanshyam, co-accused was also standing outside alongwith the appellant. The house was completely dark and the persons collected there asked Sangam Lal to switch on the lights which was done. A number of persons went inside the house but there was no trace of any miscreant. Smt. Manorama Devi was found lying dead in a cot of the inner room of the house and a considerable amount of blood was found on the clothes, quilt and below the cot. Sangam Lal then scribed the FIR of the occurrence in his house and went to P. S. Tharwai, where it was lodged at 1. 00 a. m. on 25-10-1975. P. W. 6 Rachpal Singh, S. O. of P. S. Tharwai then came to the village Ismailganj alongwith other police personnel at 2. 30 a. m. He held inquest on the body of the deceased and prepared other documents like challan lash, photo lash and the letter to the C. M. O. for post-mortem examination. The body was sealed and was handed over to constable Ram Swaroop Pandey for taking to the district head quarters for the purpose of post-mortem examination. He also prepared a site plan. He took in his possession blood stained pillow, quilt, bed-sheet and also blood stained earth from the spot. Sometime, thereafter he recovered a brief case from a Khandahar (dilapidated building) adjoining to the house which contained some clothes of the deceased. He recovered a letter from inside the dressing-table which was kept in the room where the body was found and prepared its seizure memo. The Investigating Officer continued to interrogate the appellant Sangam Lal. At about 9. 00 a. m. , the appellant volunteered that he can show the place where he had kept a gandasa and some other objects. P. W. 6 Rachpal Singh and some others then followed him to the first floor of the house. A large quantity of leaves for manufacturing bidi had been kept in big bundles in one of the rooms. The appellant took out a gandasa, a baniyan and an underwear which were all blood stained and some crackers from underneath the bundles. These articles were sealed and their seizure memo was prepared. A large quantity of leaves for manufacturing bidi had been kept in big bundles in one of the rooms. The appellant took out a gandasa, a baniyan and an underwear which were all blood stained and some crackers from underneath the bundles. These articles were sealed and their seizure memo was prepared. The appellant also led the party to the door of the stairs of the first floor and from a spacing above the door-frame (chaukhat of the door) he took out some ornaments like, golden ear rings and a silver-payal. These articles were also sealed and their seizure memo was prepared. Subsequently, Ghanshyam accused said that he could show the place where he had concealed some utensils. The Investigating Officer and other witnesses then followed him to the first floor. He led the party to a place where timber and leaves of bidi had been stored and took out some utensils like, thalis, lotas, kadhai and gangal etc. which had been concealed there. The articles were sealed and their seizure memo was prepared. P. W. 7 Rachpal Singh recorded the statement of other witnesses and also went to the maternal home of the deceased in village Madhoganjmaholi district Pratapgarh and recorded the statement of her brother, P. W. 5 Hira Lal and some others. Thereafter, he submitted charge-sheet against Sangam Lal and Ghanshyam accused. 4. The post-mortem examination on the body of the deceased was conducted by P. W. 2 Dr. S. N. Pandey at 4. 00 p. m. on 25-10-1975 and he found the following ante-mortem injuries on the same: "ante-mortem injuries (1) Incised wound 3 1/2" x 1" x vertebrae deep on the right middle of neck on the lateral and posterior aspect cutting the neck vessels of right side through and through including common carotid artery. (2) Incised wound 1" x 1/2" x bone deep on the chin. (3) Incised wound 1" x 1/2" x bone deep on the right angle mandible. (4) Incised wound 1/2" x 1/10" x skin deep on the back and part of left forearm, 1" below the alscranon process. (5) Abrasion 1/10" x 1/10" on the 1/2" below injury No. 4. (6) Incised wound 1/2" x 1/10" x skin deep on the medial side of left elbow. (7) Abrasion 1/10" x 1/10" on the back and middle of right forearm. " 5. (5) Abrasion 1/10" x 1/10" on the 1/2" below injury No. 4. (6) Incised wound 1/2" x 1/10" x skin deep on the medial side of left elbow. (7) Abrasion 1/10" x 1/10" on the back and middle of right forearm. " 5. On the basis of the charge-sheet submitted by the police, the Chief Judicial Magistrate took cognizance of the offence and committed the case to the Court of Sessions on 20-12-1975. The learned IIIrd Additional Sessions Judge, framed charge under Section 302 read with Section 34 I. P. C. against both the accused namely, Sangam Lal and Ghanshyam by the order dated 29-5-1976. The charges were read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. In order to establish its case, the prosecution examined 7 witnesses and filed some documentary evidence. 7. P. W. 5 Hira Lal is the brother of the deceased Smt. Manorama Devi and is the original resident of Madhoganjmaholi district Pratapgarh. He deposed that 8-9 years before the occurrence, the marriage of his sister had been performed with the appellant Sangam Lal. When Manorama Devi had visited her parental home prior to the occurrence she had informed that the appellant suspected her fidelity and levelled a false allegation that she was having illicit connections with Hari Shankar Jaiswal of her own village. She had also sent some letters including one on11-8-1975 to her parental home complaining about the behaviour of Sangam Lal. Three letters marked as Exhibits Ka-9, Ka-10 and Ka-11 were proved by the witness to have been written by his sister. He further deposed that Hari Shankar Jaiswal lived near his house and his sister used to call him "bhaiya". He also proved the writing of Hari Shankar Jaiswal on the letter, Exhibit Ka-11, which had been recovered from the dressingtable kept in the room of the deceased. Last time Manorama Devi had come to her parental home in August 1975 and after staying there for about 1 1/2 months, she had gone back to her husbands place. In his cross- examination he admitted that he was step-brother of Manorama Devi and she had been born from the second wife of his father. He further stated that whenever Manorama Devi came to her parental home she used to stay there for long time and was reluctant to go to her husbands place. In his cross- examination he admitted that he was step-brother of Manorama Devi and she had been born from the second wife of his father. He further stated that whenever Manorama Devi came to her parental home she used to stay there for long time and was reluctant to go to her husbands place. However, Sangam Lal used to come and beg her to accompany him. The family members tried to persuade her to go and then she used to accompany Sangam Lal. 8. P. W. 4 Girja Shankar is son of P. W. 3 Sangam Lal. He deposed that he had gone for the purpose of grinding the wheat to the flour mill of Sangam Lal at about 12. 00 in the afternoon of 24-10-1975 where both the accused were present and the appellant had warned him that he should be alert and vigilant as the miscreants may make an attempt on that night. He was on guard-duty in the night and was doing patrolling in the village at about 9. 00 p. m. While passing in front of the house of Sangam Lal he was called by him. The deceased Manorama Devi came out and asked him to take tea. Thereafter she brought tea which was taken by him around 9. 30-10. 00 p. m. He had to do guard-duty till 3. 00 a. m. However, at about 12. 00 in the night, he heard an alarm of Sangam Lal. Sound of cracker was also heard. After hearing alarm he alongwith other members of the guard-party reached his house. The alarm had also attracted many other people including P. W. 1 Ram Chandra, Sarpanch of the village and P. W. 3 Sangam Lal, Pradhan of the village, who surrounded the house of the accused. P. W. 1 Ram Chandra and P. W. 3 Sangam Lal have given similar statements that they heard the alarm at about 12. 00 in the night and also heard the sound of crackers which attracted number of people and they all surrounded the house of accused Sangam Lal so that no one may be able to escape. Sangam Lal informed them that some miscreants were inside his house and they had killed his wife. As the lights in the house were off and it was dark he was asked to switch on the lights. Sangam Lal informed them that some miscreants were inside his house and they had killed his wife. As the lights in the house were off and it was dark he was asked to switch on the lights. Thereafter, 3 persons namely, P. W. 1 Ram Chandra, P. W. 3 Sangam Lal and Chotey Lal Vaish entered the house but they did not find any one inside. Both P. W. 1 and P. W. 3 have deposed that the walls of the house of the accused were 15-20 feet high and it was not possible for any one to scale it or to jump outside. The witnesses saw Smt. Manorama Devi lying dead on the cot having sustained many injuries. There was blood on the pillow, bed-sheet, quilt, cot and also on the ground. Thereafter, Sangam Lal wrote the FIR and went to the police station. The Investigating Officer and other police personnel came to the spot at about 2. 30 a. m. who held inquest on the body of the deceased and took the blood stained clothes and other articles in their custody. The witnesses have also stated that the Investigation Officer recovered a brief case from a khandahar which contained some clothes like, blouses, peti-coats etc. which belonged to Manorama Devi. The khandahar is immediately adjoining to the house of the accused. Both P. W. 1 and P. W. 3 have further deposed that subsequently during the course of interrogation Sangam Lal said that he would show the place where he had concealed some articles. He then led the Investigating Officer and the witnesses to a room in the first floor where several bags of bidi leaves had been stored. He took out a gandasa, a baniyan and an underwear from beneath the bag which were all blood stained. Some crackers were also recovered from there. Thereafter, Sangam Lal took out a pair of golden ear-rings and two silver payals from a space above the door-frame (chaukhat of the door) of the stairs. Both P. W. 1 and P. W. 3 have further deposed that Ghanshyam, co-accused told the Investigating Officer that he could show the utensils which had been kept by him. He led the party to the first floor and took out the utensils from below the bags of leaves of bidi which had been stored in another room. 9. P. W. 2 Dr. He led the party to the first floor and took out the utensils from below the bags of leaves of bidi which had been stored in another room. 9. P. W. 2 Dr. S. N. Pandey, Medical Officer Incharge, Motilal Nehru Hospital, Allahabad had conducted post-mortem examination on the body of the deceased. The injuries sustained by Manorama Devi have already been described in the earlier part of the judgment. In his statement, the doctor had stated that the injuries to the deceased could have been caused by the gandasa, Exhibit 17, which was shown to him in Court. The injuries were likely to have been caused in the mid-night of 24/25-10-1975 and after receiving the injuries, the deceased would have met an instantaneous death. In his cross-examination, the witness has stated that the injury No. 1 could not have been caused by a knife but were possible only by a blow of gandasa as the same was very deep. Injuries No. 2, 3, 4 and 6 could also be caused by gandasa. 10. P. W. 7 Pancham Lal Srivastava was A. S. I. at P. S. Tharwai at the relevant time. He deposed that Sangam Lal lodged the FIR at 1. 00 a. m. on 25-10-1975 on the basis of which he registered the case in the General Diary and prepared chick FIR. He proved the copies of the aforesaid documents which had been filed by him. He further deposed that at about 3. 15 p. m. , 5 sealed bundles were deposited by Asgar Ali, Constable regarding which he made an entry in the General Diary. Rachpal Singh, S. O. returned to the police station at 11. 45 a. m. and brought some sealed bundles. He denied the defence suggestion that information about the crime had been given by the chawkidar in the night. He further denied the defence suggestion that the written FIR of the accused Sangam Lal had been subsequently sent by the Investigating Officer of the case. P. W. 6 Rachpal Singh was S. O. of P. S. Tharwai. He deposed that Sangam Lal had lodged the FIR at 1. 00 a. m. on 25-10-1975 on the basis of which a case crime was registered under Section 460 I. P. C. He immediately proceeded for the spot alongwith other police personnel and reached there at 2. P. W. 6 Rachpal Singh was S. O. of P. S. Tharwai. He deposed that Sangam Lal had lodged the FIR at 1. 00 a. m. on 25-10-1975 on the basis of which a case crime was registered under Section 460 I. P. C. He immediately proceeded for the spot alongwith other police personnel and reached there at 2. 30 a. m. He deposed about the steps taken by him like, conducting inquest, preparation of inquest report and site plan and taking into possession of blood stained clothes, bedding, etc. He also deposed that he recovered a brief case from a khandahar which contained some clothes and a letter from the dressing-table kept in the room where the body was found. He has given the details as to how Sangam Lal took out the blood stained gandasa, banian and underwear from under the bags of bidi leaves which had been kept in a room on the first floor. From the same place the accused had also taken out few crackers. Thereafter, Sangam Lal had taken out a pair of golden ear-rings and silver payals from a space above the door frame of the stair case. The witness has further deposed about the recovery of utensils from underneath the timber and bags of bidi leaves kept in a different room on the first floor which had been taken out by co-accused Ghanshyam. P. W. 6 went to the parental home of the deceased in village Madhoganjmaholi on 8-11-1975 where her father gave him three letters written by Manorama Devi which had been marked as Exhibit Ka-9, Ka-10 and Ka-11. 11. Sangam Lal in his statement under Section 313 Cr. P. C. admitted that Manorama Devi had been married to him 7-8 years back and was living with him. He however denied that he suspected the fidelity of Manorama Devi or had levelled any allegation that she was having illicit relations with Hari Shankar Jaiswal. He admitted that some dacoities had been committed in the past in the village but denied that any guard-parties had been formed or that any patrolling was being done in the night. He denied the fact that the P. W. 4 Girja Shankar had come to his house at about 10. 00 p. m. on 24-10-1975 or that Ghanshyam accused was present there at that time. He denied the fact that the P. W. 4 Girja Shankar had come to his house at about 10. 00 p. m. on 24-10-1975 or that Ghanshyam accused was present there at that time. He also denied the fact that P. W. 1 Ram Chandra and P. W. 3 Sangam Lal or any other villager came inside his house but admitted that the body of his wife was lying in the room. He also denied to have gone to the police station or to have lodged any report. The recovery of the various articles like, the brief case containing clothes, blood stained gandasa, blood stained banian, blood stained underwear, crackers and the ornaments was denied by him. He also denied recovery of the utensils. Regarding the question as to why he had been prosecuted and why the witnesses had deposed against him, he only stated that they were deposing on account of enmity and pressure of the police. He also stated that the Station Officer got the FIR written from him on the next day. When asked whether he would lead any evidence in his defence, he said that he did not want to give any evidence. Ghanshyam accused denied the prosecution case and stated that he was not employed at the flour mill of Sangam Lal and he had Got gone there. He further stated that he had been married six months before the occurrence and used to sleep in his own house and was carrying on his own business. 12. The learned Sessions Judge after considering the evidence adduced before him held that the statement of all the prosecution witnesses were convincing and reliable. Relying upon the testimony of P. W. 5 Hira Lal, he held that the appellant Sangam Lal doubted the fidelity and chastity of his wife Manorama Devi and believed that she had illicit relations with Hari Shankar Jaiswal. When Sangam Lal had told P. W. 4 Girja Shankar in the afternoon that miscreants were likely to make an attempt in the night, he was intending to commit the murder of his wife and had planned to give it a shape of an incident of dacoity. He further held that the murder of Smt. Manorama Devi had been committed at about mid-night on 24/25-10-1975 inside the room of the house in which both the appellant Sangam Lal and the deceased were living. He further held that the murder of Smt. Manorama Devi had been committed at about mid-night on 24/25-10-1975 inside the room of the house in which both the appellant Sangam Lal and the deceased were living. On the alarm raised by the appellant, the villagers including P. W. 1, P. W. 3 and P. W. 4 had come to the house who went inside and did not find any miscreant there. The construction and the topography of the house was of such kind that no body could have gone out un- noticed. He also believed the prosecution case that on the pointing out of the appellant, blood stained gandasa, underwear and banian, ornaments of the deceased besides some crackers had been recovered. The gandasa, underwear and banian were found to be stained with human blood. It was thus held that the evidence adduced by the prosecution established beyond any shadow of doubt that the appellant Sangam Lal had committed the murder of his wife. Regarding Ghanshyam accused, the learned Sessions Judge held that he had no motive to commit the crime and he was also not the author of the false FIR, Exhibit Ka-1, where it was given out to be a case of house trespass and commission of murder. It was further held that it was possible that Sangam Lal might have asked him to keep the utensils in the first floor earlier or during the daytime. He was accordingly given benefit of doubt and was acquitted. 13. We have heard Sri P. N. Misra, learned senior Advocate for the appellant, Sri D. S. Tewari for the complainant, learned A. G. A. , for the State at considerable length and have examined the record available before us. 14. There is no dispute that the deceased Smt. Manaorama Devi was married to the appellant Sangam Lal 7-8 years back before the occurrence and at the time of commission of the crime she was living alongwith her husband (appellant) in his house in village Ismailganj district Allahabad. The testimony of P. W. 5 Hira Lal, who is the brother of the deceased, shows that the appellant suspected the fidelity of his wife and had levelled an allegation that she was having illicit connections with Hari Shankar Jaiswal of her paternal village. The testimony of P. W. 5 Hira Lal, who is the brother of the deceased, shows that the appellant suspected the fidelity of his wife and had levelled an allegation that she was having illicit connections with Hari Shankar Jaiswal of her paternal village. The appellant used to occasionally beat his wife and she had not only narrated about this fact to her own family members but had also sent some letters in this connection to her parents. The three letters which were marked as Exhibit Ka-9, Ka-10 and Ka-11 had been given to the Investigating Officer by her father and had been filed before the trial Court. They were proved to be in the hand writing of the deceased by P. W. 5. The letter alleged to have been written by Hari Shankar Jaiswal to the deceased, which was recovered from the dressing-table in the room where the body was found (Exhibit Ka-12) is also not on the record as the file has been burnt, therefore, we have not been able to look into the same. We are, therefore, not taking into consideration the contents of these four letters. There is no reason why this witness would level a false allegation against his sisters husband. In normal course of events, a person would not make a false statement in Court to the effect that his brother-in-law doubted the chastity of his sister and further used to level an allegation against her that she was having illicit relations with another person. This kind of a statement in Court before large number of persons and which would go on the record certainly brings some amount of dishonour and bad name to the family and unless this is factually correct, a statement to that effect would never be made in a Court of law. There is absolutely no reason not to place reliance on the testimony of P. W. 5. His statement conclusively establishes that the appellant Sangam Lal had doubts about the character and chastity of his wife Manorama Devi and he believed that she was having illicit relations with Hari Shankar Jaiswal. In these circumstances, he had a strong motive to commit the murder of his wife. 15. His statement conclusively establishes that the appellant Sangam Lal had doubts about the character and chastity of his wife Manorama Devi and he believed that she was having illicit relations with Hari Shankar Jaiswal. In these circumstances, he had a strong motive to commit the murder of his wife. 15. The testimony of P. W. 1, P. W. 3 and P. W. 4 shows that some time before the present occurrence, two incidents of theft and dacoity had taken place in the village. It appears that the appellant devised a plan to commit the murder of his wife and then to give it a shape of dacoity. When P. W. 4 went to the flour mill of the appellant at about 12. 00 in the afternoon of 24-10-1975, in furtherance of the aforesaid plan, the appellant asked him to be alert and vigilant as the miscreants were likely to make an attempt in that night. Some small guard-parties had been formed in the village which used to do patrolling. When P. W. 4 Girja Shankar passed in front of the house of the appellant at about 9. 00 p. m. , the appellant called him. At that time the deceased offered him tea and thereafter he resumed patrolling at about 9. 45 p. m. This shows that the deceased Smt. Manorama Devi was alive till that time and the appellant was also present there. Co-accused Ghanshyam was, however, not present. P. W. 4 has deposed that he heard the alarm raised by the appellant Sangam Lal that the miscreants had come to his house at about midnight and then he alongwith all the members of the guard-party reached there and surrounded the house from all the sides. P. W. 1, Ram Chandra is Sarpanch of the village and his house was at a distance of 150 yards while P. W. 3 Sangam Lal is the Pradhan of the village and his house was only at a distance of 40-50 yards from the house of the appellant. Both of them have deposed that after hearing the alarm, they also reached there and saw that some more people had collected and they had surrounded the house of the appellant from all sides. Their houses being nearby, they could reach the spot on hearing the alarm. Both of them have deposed that after hearing the alarm, they also reached there and saw that some more people had collected and they had surrounded the house of the appellant from all sides. Their houses being nearby, they could reach the spot on hearing the alarm. They have further deposed that the appellant was asked to switch on the lights as till their arrival the lights were off and thereafter they entered the house and found Smt. Manorama Devi lying dead with number of injuries on her body. They did not find any other person inside the house. The testimony of these witnesses further shows that the walls of the house of the appellant are more that 15-120 feet high and it was not possible for any one to scale the wall either to come inside or to go outside. Both these witnesses are respectable people of the village and, as such, there is no reason to doubt their testimony. This evidence establishes that the alarm raised by the appellant to the effect that miscreants were inside his house was false and that the appellant was present inside the house when the assault was made on the deceased. 16. The testimony of P. W. 6 Rachpal Singh, Investigating Officer, P. W. 1 Ram Chandra and P. W. 3 Sangam Lal further shows that the appellant was interrogated by P. W. 6 and at about 9. 00 a. m. on 25- 10-1975 he made a statement that he could produce the gandasa and some other articles. Thereafter, he went to the room on the first floor where a larger number of bags containing bidi leaves had been stored. He took out a gandasa, a baniyan and an underwear which were all blood stained from underneath a bag. He also took out some crackers. Thereafter, in presence of these witnesses he took out a pair of golden ear-rings and a pair of silver payal from inside a spacing above the door frame (chaukhat of the door) of the stair case. This gandasa was shown to P. W. 2 Dr. S. N. Pandey at the time of his deposition in the trial Court and he has stated that the injury to the deceased could have been caused by the said weapon. This gandasa was shown to P. W. 2 Dr. S. N. Pandey at the time of his deposition in the trial Court and he has stated that the injury to the deceased could have been caused by the said weapon. He has made a categorical statement that the fatal injury No. 1 could not have been caused by a knife but had been caused by a gandasa. The presence of blood stained underwear and baniyan in the room of the house itself clearly shows that the assault had been made by an inmate of the house who wanted to conceal his participation in the crime by removing and concealing the clothes which had become blood stained at the time of commission of the crime. If the assault had been made by dacoits, as suggested by the appellant, they would not have removed their underwear and baniyan nor would have made any attempt to conceal them and also the blood stained gandasa under the bags of bidi leaves. Similarly, the dacoits would not have concealed the ornaments in the spacing of the door-frame of the staircase but would have taken them away. The discovery of these articles at the pointing of the appellant Sangam Lal is a very clinching piece of evidence which goes a long way is establishing the prosecution case against him. 17. Sri P. N. Mishra, learned Counsel for the appellant has strongly urged that P. W. 3 Sangam Lal has stated in para 19 of his deposition that the appellant volunteered to make the statement about gandasa at about 9. 00 a. m. and till that time the appellant had not been arrayed as an accused and had not been taken into custody and, therefore, the information relating to the discovery of the aforesaid incriminating articles is not admissible under Section 27 of the Evidence Act. Learned Counsel has submitted that the information leading to the discovery is admissible only if the person accused of an offence is in custody of a police officer and not otherwise. The question which requires consideration here is what is the meaning of the word "custody" and whether a person can be said to be in custody only after he has been formally arrested by the police officer. The dictionary meaning of the word "custody" is the act or duty of carrying and preserving, protection. The question which requires consideration here is what is the meaning of the word "custody" and whether a person can be said to be in custody only after he has been formally arrested by the police officer. The dictionary meaning of the word "custody" is the act or duty of carrying and preserving, protection. In Guardian and Wards Act, the word "custody" refers not only to actual but also to constructive or legal custody. In Maharani v. Emperor, AIR 1948 All 7, this question was considered and it was held as follows: "the word "custody" in Section 26 or 27, Evidence Act, does not mean formal custody, but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction. " 18. In Chotey v. State of U. P. , 1954 Crl. L. J. 1445, the Court after referring to the aforesaid decision observed that there is distinction between an accused being "under arrest" and an accused being in "custody". In Re. Ram Chandran, AIR 1960 Madras 191, it was ruled that the interpretation of the word "custody" in various decisions has proceeded in so far as to suggest that "police custody" in terms of Section 27 might well include surveillance, interrogation before arrest etc. Where a person submits himself to the custody of a police officer with the consciousness that temporarily at least he is in such custody, or such control, whether formally authorised in some manner or otherwise. This question has been considered threadbare in the Constitution Bench decision of the apex Court in State of U. P. v. Deoman Upadhaya, AIR 1960 SC 1125 , wherein para 12 of the reports, it was held as under: " (12) There is nothing in the Evidence Act which precludes proof of information given by a person not in custody which relates to the facts thereby discovered; it is by virtue of the ban imposed by Section 162 of the Cr. P. C. , that a statement made to a police officer in the course of the investigation of an offence under Ch. P. C. , that a statement made to a police officer in the course of the investigation of an offence under Ch. 14 by a person not in police custody at the time it was made even if it leads to the discovery of a fact is not provable against him at the trial for that offence. But the distinction which it may be remembered does not proceed on the same lines as under the Evidence Act, arising in the matter of admissibility of such statements made to the police officer in the course of an investigation between persons in custody and persons not in custody, has little practical significance. When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Station 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person insufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of Section 27 of the Indian Evidence Act:. . . . . . . . . . . . . . . . . . A person who has committed an offence, but who is not in custody, normally would not without surrendering himself to the police give information voluntarily to a police officer investigating the commission of that offence leading to the discovery of material evidence supporting a charge against him for the commission of the offence. . . . . . . . . . . " 19. The law is, therefore, well-settled that in order to attract Section 27 of the Evidence Act, it is not necessary that the accused should have been under arrest and it is enough if he has come into the hands of a police officer or is under some sort of surveillance or restriction. . . . . . . " 19. The law is, therefore, well-settled that in order to attract Section 27 of the Evidence Act, it is not necessary that the accused should have been under arrest and it is enough if he has come into the hands of a police officer or is under some sort of surveillance or restriction. A person giving information to the police officer may be deemed to have submitted himself to the custody of the police officer within the meaning of Section 27 of the Evidence Act. Therefore,the contention raised by Sri Mishra cannot be accepted and the information given by the appellant leading to the discovery of the incriminating articles referred to above is fully admissible in evidence. 20. Learned Counsel for the appellant also urged that in normal course of events, the Investigating Officer should have made a search of the entire house of the appellant and he could have easily found the blood stained gandasa, underwear and baniyan which had been concealed below the bag of bidi leaves and, consequently, the information given by the appellant cannot be said to have led to the discovery of the articles. The contention raised has no substance in view of pronouncement of the apex Court in Karan Singh v. State of U. P. , AIR 1973 SC 1385 , where it was held as under: "merely because the accused had first told the police that he would show them the knife and then took them to the place where it was hidden his evidence leading to the discovery of blood stained knife could not be said to be inadmissible on the ground that the police already knew the place where the knife would be found. " 21. The other important feature to connect the appellant with the crime in question is that he tried to conceal the crime by making a false statement before the witnesses and other persons of the village who had collected in front of his house after hearing the alarm that a dacoity had been committed and the dacoits had killed his wife. He also lodged a totally false FIR at the police station mentioning the aforesaid fact on the basis of which a case was registered under Section 460 I. P. C. 22. He also lodged a totally false FIR at the police station mentioning the aforesaid fact on the basis of which a case was registered under Section 460 I. P. C. 22. There is no dispute that Manorama Devi was found murdered inside the room of the house of the appellant. No other person was living in the house except the appellant. The appellant being the husband and head of the family was expected to look after and protect his wife. The deceased was seen alive till about 9. 45 p. m. Thereafter, the appellant alone was present in the house with his wife. These circumstances by themselves coupled with the recovery are enough to prove the prosecution case. The only inference possible from the chain of circumstances discussed above is that it was the appellant who committed the murder of his wife. The prosecution having proved all the circumstances which point towards the guilt of the appellant, the burden shifts on him to prove his innocence by leading evidence that the deceased was assaulted by someone else and in a different manner. We can take support from the principle enunciated by the apex Court in a recent judgment rendered in State of West Bengal v. Mir Mohd. Omar, 2000 SCC (Crl.) 1516. In this case, the victim Mahesh was dragged out of the house at about 2. 30 a. m. and was seen being assaulted by the accused who took him away. Next day his body was found in the hospital. The accused were convicted for abduction but were acquitted of the charge of murder both by the trial Court and also by the High Court. In appeal, the Supreme Court reversed the finding of acquittal and convicted the accused under Section 302 I. P. C. , applying the following principle. (Paras 31 to 34 and 36to 39 of the reports ). "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognised by the law for the Court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction, the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody. 36. If he was found murdered within a short time after the abduction, the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody. 36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. " 37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. 38. Vivian Bose, J. had observed that Section 106 of the Evidence Act is designed to meet certain exceptional case in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 , the learned Judge has stated the legal principle thus: "this lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are `especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word especially stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. " 39. In the present case, the facts which the prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the victim sustained fatal injuries and the proximity of the place within which the dead-body was found are enough to draw an inference that victims death was caused by the same abductors. If any deviation from the aforesaid course would have been factually correct only the abductors would know about it, because such deviation would have been especially within their knowledge. As they refused to state such facts, the inference would stand undisturbed. " 23. The case in hand stands on still better footing. The appellant does not dispute that he was through out present in the house when his wife was found murdered at about 12. 00 in the mid-night. The explanation by him is that the dacoits committed her murder. The prosecution evidence shows that no dacoity took place and no one had entered his house. The evidence further shows that though he had said to the people collected that the miscreants were inside the house but nobody was found there nor the people who had surrounded the house saw any miscreant. The walls of the house were 15-20 feet high and nobody could scale the walls and jump outside from there. The witnesses and the Investigating Officer did not find any evidence of dacoity. In normal course of events the dacoits would have caused injury to a male member, namely, the appellant but he did not receive a single scratch. The neck of the deceased was completely cut by a heavy cutting weapon with the sole object to commit her murder and the injury was such which could only be caused to a sleeping person by a gandasa. The dacoits, who are primarily interested in looting the property, are not likely to cause this type of injury to a lady in the house. There is no question of dacoits removing their underwear or baniyan and then concealing it in the house as after looting the property they would be in a hurry to escape. The ornaments of the deceased had not been taken away but were found concealed in the house which the dacoits would never do. Even the brief case containing clothes of the deceased was not taken away and was found in the khandhar adjoining the house. Thus, the plea taken by the appellant in his statement under Section 313 Cr. P. C. , to the effect that a dacoity had been committed is completely false. In these circumstances, we have no hesitation in holding that the appellant had committed the murder of his wife. 24. Thus, the plea taken by the appellant in his statement under Section 313 Cr. P. C. , to the effect that a dacoity had been committed is completely false. In these circumstances, we have no hesitation in holding that the appellant had committed the murder of his wife. 24. Sri P. N. Mishra has submitted that the appellants Sangam Lal and Ghanshyam accused were both charged under Section 302 read with Section 34 I. P. C. and as Ghanshyam accused had been acquitted by the trial Court, the appellant alone could not be convicted under Section 302 I. P. C. In support of this submission he has placed reliance on Baul v. State of U. P. , AIR 1968 SC 728 . In this case the prosecution case was that two accused had hit the deceased on the head with lathis. Though both the accused were convicted by the trial Court but one of them was acquitted by the High Court. In these circumstances, it was held that the appellant Baul alone could not be held to have caused all the injuries on the head of the deceased. In our opinion, the authority cited by the learned Counsel for the appellant is clearly distinguishable on facts. Ghanshyam, co-accused has been acquitted on the ground of being a servant. He had no motive to commit the crime and he was not an inmate of the house. It was also found that he had been married only six months back and he was likely to be sleeping in his own house. The utensils alleged to have been discovered on the basis of information given by him were very big in size and could not be said to have been concealed. They might have been kept by him at that place some time earlier. At any rate the discovery of utensils by themselves is not an incriminating circumstance as it has no connection with the commission of murder. Thus there is no direct evidence to connect him with the crime in question. The case of the appellant stands on an entirely different footing. The weapon of assault namely, blood stained gandasa with which the injury had been caused was discovered on the pointing out of the appellant so were the blood stained clothes. The ornaments of the deceased were also discovered on his pointing out. The case of the appellant stands on an entirely different footing. The weapon of assault namely, blood stained gandasa with which the injury had been caused was discovered on the pointing out of the appellant so were the blood stained clothes. The ornaments of the deceased were also discovered on his pointing out. He had a strong motive to commit the crime. He does not dispute his presence inside the house when the murder was committed. This evidence is clinching in nature and proves beyond any shadow of doubt that it was the appellant who assaulted the deceased resulting in her death. The appellant has been charged under Section 302 read with Section 34 I. P. C. but has been convicted under Section 302 I. P. C. simpliciter. Section 464 (1) Cr. P. C. says that no finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Learned Counsel for the appellant has not been able to point out how a failure of justice had in fact been occasioned by not framing of a charge under Section 302 I. P. C. simpliciter. From the nature of the allegation made and the evidence adduced by the prosecution, it was absolutely clear that charge of murdering Manorama Devi was being levelled against him. We do not find that the appellant has been prejudiced in any manner or there has been failure of justice by non- framing of a charge under Section 302 I. P. C. Section 464 (1) Cr. P. C. ,in its present shape has come in existence in the Code of Criminal Procedure, 1973 which was enforced on 1-4-1974. This section was not in existence when the case of Baul v. U. P. (supra) was decided. 25. In the result, the appeal preferred by the appellant is dismissed. His conviction under Section 302 I. P. C. and the sentence for imprisonment for life imposed upon him by the learned Sessions Judge are affirmed. The appellant is on bail which is hereby cancelled. He shall be taken into custody forthwith to undergo the sentence imposed upon him. 25. In the result, the appeal preferred by the appellant is dismissed. His conviction under Section 302 I. P. C. and the sentence for imprisonment for life imposed upon him by the learned Sessions Judge are affirmed. The appellant is on bail which is hereby cancelled. He shall be taken into custody forthwith to undergo the sentence imposed upon him. The C. J. M. , Allahabad shall take all steps available in law to take the appellant into custody. 26. The office is directed to send a copy of this judgment to C. J. M. , Allahabad, who shall report compliance of this order within two months. Appeal dismissed. .