Judgment Prafulla C. Pant, J. This Criminal Appeal, preferred under Section 374 of Code of Criminal Procedure, 1973, is directed against judgment and order dated 16-08-1995, passed by learned Sessions Judge, Dehradun, whereby appellant Shri Niwas has been convicted and sentenced to life imprisonment and a fine of Rs. 2,000/-. 2. In brief the prosecution story is that appellant was a habitual drunkard who used to beat his wife almost daily under the influence of alcohol. Everyday people used to hear noise from his house and it was so frequent that the neighbours stopped taking notice of it. On 17-10-1990 at about 21-30 Hrs, there was noise of marpeet coming out from the house of the appellant. Though the appellant's wife was crying for help but nobody took it seriously and thought it to be as usual. Next day, on 18-10-1990, at about 6:00 a.m., Smt. Savitri Devi P.WA (neighbour) was told by Chhota (P.W.8), 5/0 Shri Niwas (Appellant) that his father has killed his mother by khukhri - [pointed double edged knife) (Exh. 1). On this the news spread and Mugan Chand (P.W.1) and the neighbours went inside the house of appellant and found that in .the western corner of the room, Smt. Sunita (W/o appellant) was lying dead in the pool of blood. There were signs of incised wounds over her head and face. Mugan Chand (P.W.1) who is also Up-Pradhan and the resident of Nayi Basti, Balmiki Colony, lodged the First Information Report (Exh. A-I) on 18-10-1990 at about 7:30 a.m. with out-post Patel Nagar of Police Station Kotwali, Dehradun. A Check Report (Exh. A-17) was prepared by Head Constable, Satyapal Singh who also made the entry at S.No. 9 on the same day in the General Diary (Extract Exh. A-18) regarding recording of the F.LR. A Crime No. 185 (re-numbered as 1874 with Police Station) of 1990 was registered against the appellant (Shri Niwas) under Section 302 LP.C. SubInspector Shri Dharam Veer Singh (P.W. 9), the Investigating Officer after the crime was registered, proceeded to the scene of occurrence and took dead body of the deceased in possession and prepared the inquest report (Exh. A-2) on the same day I.e. 18-10-1990. He also took the blood stained articles from the place of the incident and prepared Recovery Memo (Ext. A-3). A-2) on the same day I.e. 18-10-1990. He also took the blood stained articles from the place of the incident and prepared Recovery Memo (Ext. A-3). On the very day weapon used in crime I.e. Khukhri (Exh.1) was recovered and a Recovery Memo (Exh. A3) was also prepared. The Investigating Officer also prepared on 18-10-1990 itself a site plan (Exh. A-5) from the place where the dead body was found. 3. Dead body of Smt. Sunita (deceased), W/o the appellant was taken by Constable Gopal Singh and Constable Subhash Chandra for the post mortem, with the documents - sample seal (Ext. A-6), letter (Exh A-7) of the Investigating Officer for post mortem, police form No. 13 (Exh. A-8) and letter (Exh. A-9) requesting the Chief Medical Officer for post mortem, alongwith photo lash (Exh. A-10). At 3:40 p.m. on the same day i.e. 18-10-1990, Dr. Rakesh Shamsheri (P.W.10) conducted autopsy on the body of deceased and prepared the post mortem report (Ext. A-16). The autopsy report shows that the Medical Officer observed that the deceased was aged about 25 years. Death had taken place about 18 hours before the autopsy. The deceased was medium built, rigor mortis was present, eyes were open, mouth open. The Medical Officer found following ante-mortem injuries :- 1. 5 incised wounds length ranging from 3cm x 1cm wide x bone deep on the anterior half of the scalp. 2. 4 incised wounds each about 3cm x 1cm x bone deep on the right side of the face. 3. Incised wound 3em x 1em x bone deep on the left side of the face. 4. Incised punctured wound 2cm x 1/2cm x cavity deep on the front of abdomen 6cm above umbilicus. 5. Incised wound 1cm x 1/2 x bone deep on the right hand index finger. 6. Incised wound 4cm x 1/2 x bone deep on the middle finger of the right hand. 7. Incised wound 1cm x 1/2 x bone deep on the little finger of the right hand. 8. Incised wound 1cm x ½ x bone deep on the left hand 9. Incised wound 1.5cm x 0.5cm x bone deep oil the left hand index finger. 10. Incised wound 1cm x 0.5cm x bone deep on the left hand middle finger. 11. Incised wound 1cm x 0.5cm x bone deep on the left hand,s ring finger. 8. Incised wound 1cm x ½ x bone deep on the left hand 9. Incised wound 1.5cm x 0.5cm x bone deep oil the left hand index finger. 10. Incised wound 1cm x 0.5cm x bone deep on the left hand middle finger. 11. Incised wound 1cm x 0.5cm x bone deep on the left hand,s ring finger. The Medical Officer has further observed and recorded six fractures on the little finger of the right hand, index finger of the left hand as well as middle and ring fingers of the right- hand, fracture in the scalp frontal, fracture of both the parietal bones, as ante mortem injuries. The membranes were found congested, lungs were found pale, pericardium was pale, heart both sides empty, small intestine containing semi digested food and the large intestine containing faecal matter, lever was congested. Cause of the death has been recorded as shock and haemorrhage. 4. The Investigating Officer after recording the statements of witnesses, submitted charge-sheet against the appellant (Shri Niwas) .In the court of concerned Magistrate. The Magistrate after giving-- necessary copies to the accused, committed the case to the Court of Sessions Judge. learned Sessions Judge after hearing, framed charge under Section 302 I.P.C. against Shrl Niwas (appellant) who denied the charge and pleaded not guilty. The prosecution got examined P.W.1 Mugan Chand (informant), P.W.2 Mahendra (neighbour), P.W. 3 Shyam Singh, P.W.4 Savitr! Devi (neighbour), P.W.S Dile Ram (father of the deceased), P.W. 6 Pyare Lal (neighbour), P.W.7 Anand (neighbour), P.W.8 Chhota (5/0 the appellant Shri Niwas). P.W.9 Sub-Inspector Dharam Veer Singh (Investigating Officer) and P.W.10 Dr. Rakesh Shamsherl (Medical Officer). The documentary and oral evidence were put to the accused under Section 313 of the Code of Criminal Procedure, 1973, who alleged the evidence to be false and stated that on the date of incident, he was not at home and had gone to Kanwali Road. However, he stated that he was arrested from his house in Patel Nagar in the morning but he alleges that the reached there from Kanwali Road at' that time. No evidence in defence was given. Learned Sessions Judge on the basis of evidence on record and after hearing the parties found the accused guilty of the charge and convicted him under Section 302 I.P.C., 1860, and sentenced him to the life imprisonment and fine of Rs. 2,000. No evidence in defence was given. Learned Sessions Judge on the basis of evidence on record and after hearing the parties found the accused guilty of the charge and convicted him under Section 302 I.P.C., 1860, and sentenced him to the life imprisonment and fine of Rs. 2,000. Aggrieved by said judgment and order, this appeal is preferred. 5. We heard Smt. Pushpa Joshi (Amicus Curiae), learned Counsei for the appellant and learned Assistant Govt. Advocate at length and perused the evidence on record. 6. P.W.1 Mugan Chand has supported the prosecution story by stating that on 18-10-1990 at about 7:00 a.m. Savitri Devi (P.W.4) came to him and told that Chhota (P.W.8) has informed her that this father has killed his mother. He has proved that he lodged the F.I.R. (Exh. A-1) and came with the police to the scene of occurrence. P.W.4 (Savitri Devi) also corroborated the prosecution story that, at about 6:00 a.m. on the following day of incident, she was told by Chhota (P.W.8) that his father had killed his mother. She has further stated that she informed about the incident to Mugan Chand (P.W.1). Further, P.W.2 (Mahendra) and P.W.3 (Shyam Singh) were declared hostile as they did not corroborate the prosecution story, and told the Court that they are not aware that how appellant used to behave with his wife. P.W.S Dile Ram is father of the deceased. This witness has stated that his daughter Sunita (deceased) used to tell him that Shri Niwas (appellant) is a drunkard and used to fight with her. This witness has further stated that from the first wife of the appellant there were three children and after the death of the first wife, he (P.W.S) got married his daughter to him (appellant). P.W.6 Pyare Lal has also corroborated the prosecution story that the appellant used to fight with his wife under the influence of alcohol. This witness has also corroborated the fact that he heard the noise and cries from the house of the appellant on the day of the incident at about 10:00 p.m. And in the morning he saw the police coming to the house of Shri Niwas (appellant). P.W.7 Anand, who is also a neighbour, has also stated that Shri Niwas (appellant) used to beat his wife. P.W.7 Anand, who is also a neighbour, has also stated that Shri Niwas (appellant) used to beat his wife. He has further stated that in the year 1990 on the day of the incident, he heard cries "HAl MAAR DALA" (Oh I Killed). He further stated that since everyday there used to be noise from their house, he did not took it seriously. This witness in cross examination, stated that Chhota S/o Shri Niwas disclosed that his father has killed his mother. But Chhota (P.W.8) minor son of the appellant did not support the prosecution story before the court and was got declared hostile. He states that on the date of the incident, he had gone away to his paternal grand mother at Kanwali Road. From the evidence on record, it appears that this child is a step son of the deceased and later tutored. It has also come on the record that Sunita (deceased) got married to the appellant only about 7 months before the date of the incident. The witness appears to have been rightly disbelieved, denying his presence in the house where the murder took place as it is natural that by the time the trial started, now he wanted to save his father. His desire to save his father cannot be ruled out. Even this witness has stated that Savitri Devi (P.WA) was his neighbor. After examining the entire evidence on record, we are in agreement with the findings arrived at by the learned Sessions Judge. In our opinion, the charge under Section 302 of the I.P.C. is proved beyond the reasonable doubt against the appellant. 7. The defence has taken the plea of the alibi that the appellant had gone to Kanwali Road on the date of the incident. But no evidence has been given in defence to prove this fact. The burden to prove the plea of alibi lies on defence. Unless otherwise proved, it is difficult to believe that a person has gone, leaving his wife alone on the day of Diwali. Also, this Court cannot ignore the reply of the appellant recorded under Section 313 of the Code of Criminal Procedure, 1973,'''' that he was arrested from Patel Nagar i.e. where the incident took place. 8. Learned Counsel for the appellant argued that the recovery memo (Exh. Also, this Court cannot ignore the reply of the appellant recorded under Section 313 of the Code of Criminal Procedure, 1973,'''' that he was arrested from Patel Nagar i.e. where the incident took place. 8. Learned Counsel for the appellant argued that the recovery memo (Exh. A-4) shows that it was prepared at 3:30 p.m. while P.W.l Mugan Chand has stated in his cross examination that the recovery of the Khukhri (Exh. 1) at the instance of the appellant was made at 8: 15 a.m. We have scrutinized the evidence. P.W.1 Mugan Chand has stated that police has come twice, first when he lodged F.I.R. in the morning and thereafter, again after some time. It is also proved from the record that the dead body was also taken into possession by the police on that day. Thereafter the blood stained articles were taken and sealed. If we take into account all the formalities and the documents prepared regarding the recovery and the time taken in preparing the documents, including the inquest report, the preparation of the recovery memo relating to recovery of weapon khukhri [pointed double edged knife] (Exh. 1) at 3:30 p.m. cannot be ruled out. And, merely for this minor contradiction, the prosecution story cannot be disbelieved. 9. In view of principle of law laid down in Babu Vs. Bahuleyan and another (2003) 7 S.C.C. Pg. 37, a husband whose presence is natural with his wife, is supposed to explain how she died in the night where other witnesses had no opportunity to enter the house. 10. During the trial, report dated 19-06-1992 of Chemical Examiner relating to the blood stained khukhri and blood stained articles were received by the Court which also corroborated the prosecution story as it is mentioned in said report that in the articles 1 to 5, human blood was found. It further shows that article 1-khukhri, article 2-salwar, article 3-Kurta, article 4-chunni, article 5-bra were examined by the Chemical Examiner. However, blood stained were not sufficient for classification of the blood. The said. report is paper no. 30-A In the record of the trial court. 11. For the reasons as discussed above, we see no infirmity in the impugned judgment and order whereby learned Sessions Judge convicted the accused/ appellant under Section 302, I.P.C. and sentenced him to the life imprisonment and fine of Rs. 2,000. The said. report is paper no. 30-A In the record of the trial court. 11. For the reasons as discussed above, we see no infirmity in the impugned judgment and order whereby learned Sessions Judge convicted the accused/ appellant under Section 302, I.P.C. and sentenced him to the life imprisonment and fine of Rs. 2,000. As such in our opinion, the appeal is liable to be dismissed and is accordingly dismissed. Appellant is in jail. He shall serve the sentence awarded against him.