Judgment : Singh Ahluwalia, J. Gouranga Das, present appellant has been convicted for an offence punishable under Section 302 IPC by the Court of Additional Sessions Judge, Cooch Behar vide judgment and order dated 13th December, 2000. Vide a separate order of even date, he has been sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer rigorous imprisonment for two years. In the present appeal, conviction and sentence awarded to the appellant has been assailed. Present appellant-Gouranga Das was married with Dipali Das of village Pakrikuri, Police Station Kumargram, District Jalpaiguri. Their marital relations were not cordial. On 10th October, 1985 at about 1.00/1.30 p.m. the present appellant had emerged out of the bushes carrying the severed head of his wife Dipali Das in one hand, and a sword smeared with blood in the other hand. The appellant made an attempt to approach the police authorities. This in nutshell is the prosecution case. A peculiar feature of this case is that since the occurrence had taken place in the village and near the house of the accused-appellant, almost all witnesses cited and examined are his relations and belong to the village of the accused. A number of them have made departure from the statements made to the police and this Court, after scanning the evidence available, has to ponder whether conviction and sentence of the appellant can be sustained or not. To do so, it will be necessary not only to recapitulate the evidence but also to narrate as to how the criminal case was set into motion. Parsanath Das PW-1, brother of the appellant, had filed written complaint wherein he stated that he and his brother Gouranga Das-appellant were living separately. After the death of the first wife, Gouranga Das present appellant about 2/2½ years ago had married Dipali Das deceased. Their matrimonial relations became strained. She went to live in her sister’s house at Maheshkuthi several times. A week before, she went to Maheshkuthi and returned on Monday to take shelter in the house of father of the appellant. The complainant Parsanath Das accompanied by Bhishnudeb Das went to Kalibari market for selling jute. When he was returning at about 1/1½ p.m. he saw his brother with a sword covered with blood in the left hand and severed head of his wife in the right hand. The complainant Parsanath Das accompanied by Bhishnudeb Das went to Kalibari market for selling jute. When he was returning at about 1/1½ p.m. he saw his brother with a sword covered with blood in the left hand and severed head of his wife in the right hand. The accused was coming from his house towards Tufanganj. The complainant could not dare to ask his brother any question and hurriedly he along with his family members went inside his house. He stated that earlier there was a scuffle between his brother and the deceased wife, and the deceased being frightened had taken shelter in the house of his uncle and had shut the door. The accused made his way into the house and dragged his wife from the room and took her to the bushes situated north-east side of the house. It was stated in the FIR that the accused had killed his wife and carrying her severed head he had rushed towards Tufanganj. This Court is conscious that the above said being the FIR cannot be taken into consideration as a substantive piece of evidence but can only be used to corroborate or confront the witness. Therefore, it will be necessary to state what was stated by the de-facto complainant in his deposition in the Court appearing as PW-1. In the Court, this witness stated that the appellant is his brother. Deceased Dipali Das was his second wife. He was divorced. On the day of occurrence, this witness was going to sell jute to the hat (market). When he returned, he saw his brother walking towards Tufanganj with a sword in his hand and the head of his wife in another hand. On reaching home, he heard that Dipali Das was murdered. On the same day, he went to Police Station Tufanganj and the investigating officer, after interrogating him, had recorded the FIR as Ex.P1, the gist of which has been reproduced above. In cross-examination, this witness stated that deceased Dipali Das used to go to the house of her sister’s husband and this was the main cause of divorce. He further stated that he was told by Darogababu in the Police Station that Gouranga Das was walking with a sword and a head in his hand. However, this witness further stated in cross-examination that the body of Dipali Das was recovered from the bushes far away from the house. He further stated that he was told by Darogababu in the Police Station that Gouranga Das was walking with a sword and a head in his hand. However, this witness further stated in cross-examination that the body of Dipali Das was recovered from the bushes far away from the house. Narayan Dutta PW-2 stated that he was living at a distance of 1/ 1½ km from the house of accused. He heard from the villagers that the accused had murdered his wife. Darogababu was present at the spot which was at a distance of 200 meters from the house of the accused. The dead body was recovered from there and the investigating officer had seized an axe and other articles vide seizure memo Ex.P3. Ganesh Ch. Das PW-3, a resident of Chhat Jaigir Chilakhana, also stated that the dead body was recovered at a distance of 1 bigha to the east of house of the accused. This witness had attested the inquest Ex.P4. Sikha Das PW-4 was declared hostile, even though her statement was recorded under Section 164 Cr.P.C. However in cross-examination by the public prosecutor, she stated that “I stated to the Magistrate that on getting that information I came out from my house and found that Gouranga Das was running here and there with the severed head of his wife on his right hand and a sword on his left hand”. However, she stated that she cannot tell whether she had stated the above under some fear or not. In cross-examination by the defence counsel, this witness stated that she had not seen anything. PW-5 Md. Delwar Hossain stated that he was a rickshaw puller by profession. On the day of occurrence at about 1.30 p.m. he was going to Kalibari from Tufanganj with two passengers. Then the accused came in front of his rickshaw with a severed head of a female on his left hand and a sword on his right hand and told him that the head belongs to his wife and asked him to take him to Tufanganj Police Station. On seeing the accused, the passengers fled away. The accused sat on his rickshaw and forced him to go to the Tufanganj Police Station. This witness along with the accused entered into the Police Station Tufanganj and subsequently became unconscious. On seeing the accused, the passengers fled away. The accused sat on his rickshaw and forced him to go to the Tufanganj Police Station. This witness along with the accused entered into the Police Station Tufanganj and subsequently became unconscious. He further stated that his rickshaw was blood stained and the same was seized by the police. This witness had attested the seizure memo Ex.P7. Sword was also taken into possession vide seizure memo Ex.P8. In cross-examination, this witness further stated that the accused was not known to him earlier. He identified the accused in the witness box. PW-6 Ram Krishna Das is cousin of the accused. He stated that he learnt from his mother that the accused had severed the head of his wife. In cross-examination, this witness stated that he was not an eye-witness of the occurrence. PW-7 Haribhakta Das stated that he learnt from the villagers that the accused has murdered his wife. He went to the spot and found dead body of a female without head. He further stated that while working in the field, Gadadhar had shouted that Gouranga had cut the head of his wife. He rushed to the spot and found Gouranga carrying the severed head of his wife in the left hand and a sword in the right hand. The accused was proceeding towards Tufanganj. In cross-examination, this witness admitted that he was a member of CPI(M) party and he was examined 2/3 days after the occurrence by the police. He further stated that Mohan Das was leader of the party. PW-8 Khagen Das is a witness to recovery of certain articles from the house of the accused. Bibhuti Bhusan Chakraborty PW-9 had proved the photographs of dead body of the deceased. PW-10 Ketabuddin was tendered for cross-examination but the defence has ventured not to cross-examine him. PW-11 Suraj Jamal was a rickshaw puller. He stated that on 10th October, 1985 he was waiting at Kalibarimore when he saw a person coming with a severed head on his left hand and a sword on his right hand and a bag was hanging on the shoulder of that person. He further stated that the man boarded on his rickshaw. He being frightened went towards a tea stall. He further stated that the man boarded on his rickshaw. He being frightened went towards a tea stall. The person carrying the severed head of a female was shouting ‘rickshaw rickshaw’ and he had cut the tyre of rickshaw of this witness with his sword and started walking towards Tufanganj town. Thereafter, he stopped another rickshaw whose passengers fled away from the spot. The accused boarded the rickshaw and went towards the Police Station. He named the rickshaw puller, who took the accused to the Police Station, as Delwar Hossain. He further stated that he knew the accused prior to the incident and his name was Gouranga Das. He identified the accused in the Court. However, in cross-examination he admitted that he is a member of the rickshaw union which owns its origin to CPI(M) party. PW-12 Kasem Mia also stated on the same lines that the accused was seen coming with a severed head of a female in one hand and a sword in the other. The accused asked Suraj Jamal to take him to Tufanganj in his rickshaw. Later he boarded the rickshaw of Delwar Hossain. This witness had attested the seizure memo whereby the rickshaw was taken into possession. PW-13 Nikunja Bihari Das had attested the seizure memo whereby the tyre of Suraj Jamal’s rickshaw was cut. PW-14 Pujan Ganguli was posted in Home Guard and he also attested the seizure memo. PW-15 Biren Talukdar was a member of Panchayat. This witness stated that on the day of occurrence he had found Dipali weeping in the market. He asked various persons to arrange for her stay in the house of her father-in-law as the deceased had stated that she will not go to the house of accused. Manik Das PW-16 stated that he had taken the deceased to the house of her father-in-law Deben Das, who had refused to take Dipali to his house thereafter, she was left at the house of a widow. Prakash Das PW-17 also deposed on the same lines. PW-18 Ramen Das and PW-19 Sridam Ch. Das have not advanced the case of prosecution. PW-20 Sunil Das was declared hostile as he had not supported the prosecution case. Prakash Das PW-17 also deposed on the same lines. PW-18 Ramen Das and PW-19 Sridam Ch. Das have not advanced the case of prosecution. PW-20 Sunil Das was declared hostile as he had not supported the prosecution case. In cross-examination by the public prosecutor, this witness admitted that he had told the investigating officer that he had seen the accused proceeding towards south with the severed head of his wife in his left hand and the blood stained sword in his right hand. This witness denied the suggestion that he was a follower of CPI (M) party. Subhas Ch. Das PW-21 and Giribala Das PW-22 have also not advanced the case of prosecution. PW-23 Biswadeb Das had stated “when we were about a kilometer from Parsanath’s house then I found Gouranga with severed head of his wife in the left hand and a sword on his right hand. Being frightened I fled away from the spot”. In cross-examination this witness stated that all residents of the village Tufanganj are the followers of CPI(M) party. PW-24 Nanda Rani Das stated that 3/4 days prior to the incident Dipali came to her house and told that Gouranga had taken her in a bus and when the bus reached at Saldanga, the conductor demanded ticket from Dipali and she found that her husband was missing. The conductor forced Dipali to get down from the bus at Saldanga, from where she went to her sister’s house. Dipali had also told this witness that she was also tortured by her husband. PW-25 Bakul Das and PW-26 Nishikanta Das have not stated anything in their deposition. Dr. Madan Mohan Saha PW-27 had conducted autopsy on the body of the deceased. As per his opinion, cause of death was shock and hemorrhage due to the injuries which were homicidal in nature. He found the dead body and according to him the head was severed. PW-28 Bhaben Roy had taken the dead body from the spot to the hospital for post mortem. PW-29 G. Bharati partly recorded the statements of the witnesses. PW-30 Indrajit Thapa had received the written complaint from PW-1 Parsanath Das, on the basis of which formal FIR was registered. He had also effected the recovery of sword and other articles from the accused, who had appeared in the Police Station. Subal Roy PW-31 proved various facets of the investigation. PW-30 Indrajit Thapa had received the written complaint from PW-1 Parsanath Das, on the basis of which formal FIR was registered. He had also effected the recovery of sword and other articles from the accused, who had appeared in the Police Station. Subal Roy PW-31 proved various facets of the investigation. After the prosecution evidence was closed, statement of the accused was recorded under Section 313 Cr.P.C. All incriminating evidence put to accused was condemned by him to be false and he had not divulged any version. No person was examined in defence. From the above evidence, the following facts stand established: (a) That relationship of the accused with his second wife Dipali Das was strained. On the day of occurrence, she had complained regarding conduct of the accused to PW-15 Biren Talukdar member of the Panchayat; Manik Das PW-16 and Prakash Das PW-17, and the deceased was taken to the house of father of the accused for shelter. Regarding strained relations between the deceased and the accused, there is the testimony of PW-24 Nanda Rani Das. (b) That the dead body of the deceased Dipali Das was recovered at a distance of 200 meters from the house of the accused as per Narayan Dutta PW-2; or at a distance of 1 bigha from the house of the accused as per the testimony of Ganesh Ch. Das PW-3. (c) That the accused was seen carrying the severed head of his wife Dipali in his left hand with a blood stained sword in his right hand. This fact emerges in the testimony of Parsanath Das PW-1; PW-5 Md. Delwar Hossain; PW-7 Haribhakta Das; PW-11 Suraj Jamal; PW-12 Kasem Mia and PW-23 Biswadeb Das. (d) The witnesses stated that they heard from the villagers that the accused had murdered his wife. PW-7 Haribhakta Das further stated that Gadadhar had shouted that Gouranga had cut the head of his wife. (e) The accused has neither given any version nor any suggestion was given to the witnesses as to how the occurrence had taken place. Sh. Deep Chaim Kabir appearing on behalf of the appellant has assailed conviction of the appellant on the following grounds: (i) That there is no eye-witness available with the prosecution who had seen the accused causing death of his wife. It is stated that the evidence of the witnesses being hearsay evidence cannot be taken into consideration. Sh. Deep Chaim Kabir appearing on behalf of the appellant has assailed conviction of the appellant on the following grounds: (i) That there is no eye-witness available with the prosecution who had seen the accused causing death of his wife. It is stated that the evidence of the witnesses being hearsay evidence cannot be taken into consideration. It is further submitted that if any husband finds his wife murdered, it is the normal and natural reaction of the husband to take the weapon of offence and the severed head of his wife to the Police Station. It is submitted that conduct of the accused and his reaction to the situation being natural, probable and convincing, rules out his involvement in the offence. (ii) That relations between the husband and wife being strained cannot be taken as the sole factor to convict the appellant. It is incumbent upon the prosecution to complete the chain of circumstances to such an extent that the offence has been committed by the accused alone and there remain no possibility that same may have committed by somebody else. (iii) Lastly, in the alternate it has been submitted that if the prosecution case is accepted and the Court comes to a conclusion that the appellant is author of the crime then the offence will fall under Section 304 Part-I IPC and not under Section 302 IPC. In support of this argument, it has been submitted that the appellant was suspecting the fidelity of his wife as she used to stay in the house of husband of her sister and according to Parsanath Das PW-1 this was the cause of strained relations. It was urged that from the circumstances and the deposition of the witnesses, it can be safely inferred that the appellant had acted due to grave and sudden provocation, especially when prosecution has failed to prove, origin and genesis of the occurrence. Having given our thoughtful consideration to the submissions advanced, we are of the considered opinion that the same are liable to be rejected. Now we shall state our reasons for not accepting the submissions advanced by counsel for the defence. Section 6 of the Indian Evidence Act, 1872 and the illustration (a) thereto read as under: "6. Having given our thoughtful consideration to the submissions advanced, we are of the considered opinion that the same are liable to be rejected. Now we shall state our reasons for not accepting the submissions advanced by counsel for the defence. Section 6 of the Indian Evidence Act, 1872 and the illustration (a) thereto read as under: "6. Relevancy of facts forming part of same transaction – Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (a) – A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact." A perusal of the above provision and illustration makes it explicitly clear that the spontaneous statement made in the course of transaction is admissible based on the doctrine of res-gestae. The word ‘by-standers’ has been explained in ‘Nasir Din v. Emperor’, AIR 1945 Lahore 46 : (46 Cri LJ 431) to say that the by-stander is a person who was present at the time of occurrence be it beating or murder and not a person who has formulated an opinion regarding the occurrence. A perusal of the evidence of PW-7 Haribhakta Das reveals that he was working in the fields with Ram Kishan Das, Gadadhar, Sunil and Ranjit. At that stage, Gadadhar had shouted that Gouranga had cut the head of his wife. Immediately the accused had threatened Gadadhar and other labourers not to come to the spot and threatened them with dire consequences. Thus, it is apparent that reaction of Gadadhar was instantaneous s and spontaneous. As to what is said by Gadadhar to PW-7 Haribhakta Das can be taken into consideration as res-gestae evidence. To this extent, contention of the counsel that what was expressed by the villagers and Gadadhar is their opinion and they have not seen the appellant causing murder of his wife, is not tenable. Therefore, what the villagers had relayed or said may as an opinion cannot be taken into consideration. But this in itself is not sufficient to ignore what was said by Gadadhar to PW-7 Haribhakta Das. Therefore, what the villagers had relayed or said may as an opinion cannot be taken into consideration. But this in itself is not sufficient to ignore what was said by Gadadhar to PW-7 Haribhakta Das. The conduct of accused in close proximity to what was said by Gadadhar qualified by unity of space, time and action make it admissible as res-gestae evidence. However, it is also conclusively proved by way of evidence that the place of occurrence was at a short distance from the house of the accused, i.e. 200 meters or 1 bigha. It has also been proved by the prosecution by examining various witnesses that the relations of the accused with the deceased were strained. On the day of occurrence itself, the deceased had complained to the member of Panchayat and other villagers regarding conduct of the accused. The accused was carrying severed head and a sword, a weapon of offence, in his hands, near the place of occurrence where the dead body was lying. The sword was smeared with blood. The accused has not furnished any explanation in his statement recorded under Section 313 Cr.P.C. No suggestion has been given to any witness as to how Dipali Das was murdered. In ‘Neel Kumar @ Anil Kumar v. State of Haryana’ 2012(5) SCC 776, it was held as under: “16. The learned Sessions Court further remarked that as the victim was in the custody of the appellant, there had been no explanation from the side of the accused as to how such severe injuries were suffered by the victim and how she met with death as these facts were in his special knowledge alone. The provisions of Section 106 of the Indian Evidence Act, 1872 (hereinafter called Evidence Act') were fully applicable in this case. Appellant was guardian of the child and was duty bound to safeguard the victim. The accused had kept mum and had not gi venany information to any law enforcing agency or even to the mother of the victim. It comes out from the statement of Roopa Devi (PW.3) that the information abou trapeand murder to her was telephonically given by co-accused Ramesh Kumar. If somebody else would have committed the offence it was but natural that appellant Neel Kumar@ Anil Kumar must have taken steps to initiate the legal action to find out the culprit. It comes out from the statement of Roopa Devi (PW.3) that the information abou trapeand murder to her was telephonically given by co-accused Ramesh Kumar. If somebody else would have committed the offence it was but natural that appellant Neel Kumar@ Anil Kumar must have taken steps to initiate the legal action to find out the culprit. The silence on his part in spite of such grave harm to his daughter is again a very strong incriminating circumstance against him. The High Court has agreed with the findings recorded by the trial court and confirmed the death sentence after re-appreciating the evidence. 17. In our opinion, the courts below have taken a correct view so far as the application of Section 106 of the Evidence Act is concerned. This Court in Prithipal Singh & Ors. v. State of Punjab & Anr., 2011(4) R.C.R.(Criminal) 791 : 2011(6) Recent Apex Judgments (R.A.J.) 61 : (2012)1 SCC 10 , considered the issue at length placing reliance upon its earlier judgments including State of West Bengal v. Mir Mohammad Omar & Ors. etc.etc., 2000(4) R.C.R.(Criminal) 147 : AIR 2000 Supreme Court 2988; and Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai, 2002(4) R.C.R.(Criminal) 752 : AIR 2003 Supreme Court 215 and held as under : ‘That if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 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 he accused by virtue of his special knowledge regarding such facts, ailed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly ithin the knowledge of the accused’. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly ithin the knowledge of the accused’. (See also: Santosh Kumar Singh v. State through CBI, 2010(4) R.C.R.(Criminal) 593 : 2010(5) Recent Apex Judgments (R.A.J.) 518 : (2010)9 CC 747; and Manu Sao v. State of Bihar, 2010(3) R.C.R.(Criminal) 805 : 2010(4) R.A.J. 384 : (2010)12 SCC 310 ). Thus, findings recorded by the courts below in this regard stand fortified by the aforesaid judgments.” Thus, in our view it was incumbent for the accused to explain and rebut the presumption regarding possession of severed head of the deceased and the weapon of offence. The trained relations between the husband and wife; making of complaint by the deceased on the day of occurrence regarding conduct of the accused; presence of the dead body near the house of the appellant; his running helter and skelter at the time proximate to the time of occurrence; cutting the tyre of rickshaw; then under the threat taking another rickshaw puller to the Police Station along with severed head and the weapon of offence are the circumstances which complete the chain, calling upon the accused to explain certain facts which were expressly in his nowledge. Non-explanation of the material circumstances coupled with the circumstances narrated above are sufficient for us to hold that the appellant is guilty of the offence along with evidence in form of res-gestae. We find no merit in the contention advanced regarding dilution of the offence. There is no foundation laid for us to hold that there was any grave or sudden rovocation for the appellant to commit the offence. Mere suspicion for which no suggestion has been given to the witnesses and no plea has been raised under Section 313 Cr.P.C., is not sufficient for us to consider plea of grave and sudden provocation. Hence there is no doubt for us that the offence committed by the appellant falls under the ambit of Section 302 IPC and the sentence awarded is adequate and just. Therefore, there being no merit in the present appeal, no interference is warranted. Consequently, the same is dismissed.