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2012 DIGILAW 1614 (ALL)

NIRANKAR SHARMA v. STATE OF U. P.

2012-07-20

AMAR SARAN, VIJAY PRAKASH PATHAK

body2012
Vijay Prakash Pathak, J. This criminal appeal has been directed against the Judgment and order dated 3.8.2006 passed by Additional Sessions Judge/FTC ? I Ghaziabad in Sessions Trial No. 753 of 2004 convicting the appellant Nirankar Sharma for the offence punishable under Section 302 of IPC and sentencing him for life imprisonment and a fine of Rs. 6,000/- and in default of fine, to further undergo a sentence of one year. 2. The brief facts are that Prem Raj, ( P.W.1) submitted a handwritten report dated 15.1.1993 to Police Station ? Garh Mukteshwar, District ? Ghaziabad, alleging therein that in his village Khilwai, the house of Sukhveer Singh was lying vacant and since about five months, driver Nirankar Sharma ( accused) was residing there along with his wife Smt. Anita and son Soni aged about five years. For the past three days, the outer door of the house was open and the inner door was shut and a lock was hanging on it. It is further alleged that Smt. Anita and her son Soni had not been seen since then and when in the evening it appeared that stink was emanating from the house, then he and other villagers opened the inner door and saw the dead body of Smt. Anita and her son Soni lying on the cot. It is also alleged that it appeared that someone had murdered them. 3. On the basis of the said written report, an FIR was lodged at Police Station Garh Mukteshwar as Case Crime No. 24 of 1993, under Section 302 of IPC on 15.1.1993 at 00.15 O' Clock against unknown culprits. 4. The investigation of the matter was handed over to Satya Pal Singh, Station Incharge, Police Station- Garh Mukteshwar. The panchayatnamas of the dead bodies of Smt. Anita and Soni were prepared by Sub-Inspector Gopi Chand and postmortem was got conducted. On 15.1.1993 at 11.15 a.m. the accusedppellant Nirankar was taken to the Police Station by Raj Pal ( P.W.3) and Devi Saran of the village and was handed over to the custody of the police on the basis of extra judicial confession made by him before the said persons. He also made confession before the police about his guilt in committing the murder of Smt. Anita and her son Soni due to his wife having illicit relations with some other person. He also made confession before the police about his guilt in committing the murder of Smt. Anita and her son Soni due to his wife having illicit relations with some other person. During investigation, the statement of the witnesses were recorded and on the pointing out of the appellant Nirankar, the rope, used in committing the murder was recovered from the house of the accused and fard of the said recovery was prepared. After completing the investigation, charge sheet under Section 302 of IPC was submitted by the Investigating Officer in the Court. 5. In support of the prosecution as many as seven witnesses namely Prem Raj, P.W.1, Dinesh Kumar, P.W.2, Rajpal, P.W.3, Bablu, P.W.4, Mool Chand, P.W.5, Dr. J.K. Verma, P.W.6 and Sub-Inspector, Satya Pal Singh, P.W.7 were examined. 6. In documentary evidence, the prosecution produced written report Exhibit Ka-1, panchayatnama of the dead body of deceased Smt. Anita, Exhibit Ka-2, panchayatnama of the dead body of Soni, Exhibit Ka-3, postmortem report relating to dead body of Smt. Anita, Exhibit Ka-4, spot map, Exhibit Ka- 5, recovery memo of rope, Exhibit Ka-6, spot map of recovery, Exhibit Ka-7, charge sheet, Exhibit Ka-8, Chik FIR, Exhibit Ka-9 and copy of GD No.4 dated 15.1.1993 regarding registering of the case, Exhibit Ka-10. The other papers like postmortem report of dead body of deceased Soni, Exhibit Ka-11, Police Form No. 13, Exhibit Ka-12, letter to CMO for postmortem, Exhibit Ka-13, Photo of dead body of deceased Anita, Exhibit Ka-14, Namoona Seal, Exhibit Ka-15, letter to CMO for returning clothes of deceased Anita, Exhibit Ka-16, Form No. 33, Exhibit Ka-17, Form No.13 relating to deceased Soni, Exhibit Ka-18, letter relating to return of clothes of deceased Soni, Exhibit Ka-19, letter to CMO for postmortem and dead body of deceased Soni, Exhibit Ka-20, letter to R.I., Exhibit Ka-21, photo of dead body relating to deceased Soni, Exhibit Ka-22, namuna seal relating to Soni, Exhibit Ka-23 and form No. 33 relating to deceased Soni, Exhibit Ka-24 were also produced. The formal proof of the said Exhibits No. 11 to 24 were admitted by the counsel for the accused. 7. P.W.1, Prem Raj is the first informant who got lodged the FIR. The formal proof of the said Exhibits No. 11 to 24 were admitted by the counsel for the accused. 7. P.W.1, Prem Raj is the first informant who got lodged the FIR. He has stated that the accused Nirankar had been residing in the house of Sukhveer Singh as tenant since September-October 1993 ( it appears that under confusion 1993 was written instead of 1992) along with his wife Anita and son Soni. Since the night of 12.1.1993, he had not seen Anita and Soni and the outer door of the house was open, whereas, the inner door was shut and a lock was hanging on it. On 15 January, 1993, stink was coming from the house, then he and other people of the Mohalla opened the door and found the dead bodies of Anita and Soni lying on a cot. This witness has further stated that Nirankar was last seen by him 3-4 days earlier when the dead bodies were recovered. He was a Bus Driver. 8. This witness, Prem Raj, ( P.W.1), in his cross-examination has stated that he knew the accused Nirankar since six months before the incident and when on the last occasion he saw him going from his house, thereafter he did not see Anita and Soni alive. He has further stated that Nirankar was doing the work of Driving and some times, he returned to his house in two days, some times in four days and some times even on the very next day. He has also stated that he did not see Nirankar killing his wife. 9. P.W.2, Dinesh Kumar is a witness of panchayatnama, who has stated that the panchayatnamas of the dead bodies of deceased Anita and Soni were prepared by Sub-Inspector before him. His signature is there on the panchayatnama and according to the opinion of the Panchan it was found that deceased Anita and Soni were murdered by strangulation. 10. P.W.3, Rajpal is the witness of extra judicial confession made by the appellant Nirankar. This witness has stated that the incident had taken place about 12 years ago when driver Nirankar was residing along with his wife and son in the house of Sukhveer Singh of his village. 10. P.W.3, Rajpal is the witness of extra judicial confession made by the appellant Nirankar. This witness has stated that the incident had taken place about 12 years ago when driver Nirankar was residing along with his wife and son in the house of Sukhveer Singh of his village. The wife and son of Nirankar were not seen since 2-3 days and when stink started coming from the house, the villagers opened the door and saw that the dead bodies of wife and son of Nirankar were lying on the cot, for which the report was got lodged by Prem Raj of his village at Police Station. After the lodging of the report the police came to the village and prepared panchayatnamas of the dead bodies and the same were sent for postmortem. Subsequently, Nirankar came to his house and after packing his belongings when he started to leave with his luggage, at 10.00 a.m., before him, Devi Saran and other villagers then they asked him that where was he going with his luggage when the dead bodies of his wife and son had been sent for postmortem. On this Nirankar told them that his wife had gone to the farmhouse of his uncle and when she did not return for many days, he went there to see her, where he saw her in a bed along with a servant of the farmhouse. Seeing the said situation he returned without saying a word and when his wife came back to his house, he also came to the village in the evening on 12.1.1993 with his Bus and in the night, he killed his wife and son by strangulating them. He also said that he had committed a wrong. 11. After giving the said statement and supporting the prosecution case on 16.3.2005, this witness, Rajpal, P.W.3, again came before the Court on 29.4.2005 for cross-examination as the case was adjourned on the application of the accused on 16.3.2005 and in his cross examination, he became hostile and did not support his earlier statement dated 16.3.2005. He has stated that the day on which the dead bodies of Nirankar's wife and son were found, Nirankar was not at the house. He had gone 2-3 days earlier and he had seen him going from his house. He has stated that the day on which the dead bodies of Nirankar's wife and son were found, Nirankar was not at the house. He had gone 2-3 days earlier and he had seen him going from his house. This witness has also stated that Nirankar used to come to his house after a gap of many days and that between the day when Nirankar had left his house and the day when the dead-bodies of his wife and son were found, he had seen his wife and son. He had seen Nirankar going in a normal state. He has further stated that he had not seen Nirankar killing his wife and son and he had neither seen any quarrel between Nirankar and his wife, nor heard so. This witness has admitted the report to have been lodged by Prem Raj but has denied giving any statement before Sub-Inspector and said that he does not know whether Nirankar's wife had illicit relations with anyone or not. 12. On cross-examination by ADGC ( Crl.), this witness Rajpal, P.W.3 has accepted his earlier statement made during examination-in-chief to be true but has further stated that Nirankar had not told him that his wife was found sleeping with a servant at his uncle's farmhouse. Nirankar had also not told him about killing his wife and son in the night of 12.1.1993 by strangulation. This witness has further stated that on the earlier occasion he had given a wrong statement and today he is giving a true one. 13. P.W. 4, Bablu has also not supported the prosecution version and has become hostile. 14. P.W.5, Mool Chand, who is the witness of recovery of rope has also not supported the prosecution version and has stated that no rope was recovered before him, by the police from near the dead body of the deceased Anita. This witness has identified his signature on the fard of recovery of rope but has stated that no fard was written in his presence and his signature was taken on plain paper. Although this witness has become hostile but in cross-examination he has accepted that when on the last occasion he saw accused Nirankar going from his house, thereafter, he did not see his wife and child. 15. P.W.6, Dr. Although this witness has become hostile but in cross-examination he has accepted that when on the last occasion he saw accused Nirankar going from his house, thereafter, he did not see his wife and child. 15. P.W.6, Dr. J.K. Verma has stated that he had conducted the postmortem of the dead body of deceased Anita on 15.1.1993 at 4.00 P.M. and found the age of Anita to be about 28 years. He has further sated that rigor mortis was present on her body and death was caused one and a half days earlier. He has also found ligature mark, 30 cm. X 1cm., extending around her neck between chin and thyroid cartilage and cause of death is shown to be asphyxia due to ligature mark. This witness has further stated that the said postmortem is in his hand writing and his signature is there on it. 16. The postmortem of the dead body of Soni was also conducted by Dr. J.K. Verma. The formal proof of the said postmortem report has been accepted by the learned counsel for the appellant. According to said postmortem report, ligature mark, 20 c.m. X 1 c.m. extending around neck between chin and thyroid cartilage was found and cause of death is shown to be asphyxia due to antemortem injuries. 17. P.W. 7, Sub-Inspector, Satya Pal Singh, the Investigating Officer of the case, has stated that after lodging of the FIR he had gone to the spot and got prepared panchayatnamas of the deceased by S.I. Govind. He inspected the spot on the pointing out of the informant and prepared the site plan. On 15.1.1993 itself, at 11.15 a.m. accused Nirankar Sharma was got produced in the police station by Rajpal Singh and Devi Saran. He had interrogated the accused and went along with him and other officials to village Khilwai, place of incident and on the pointing out of the accused, a rope was recovered and fard was prepared before witnesses Mool Chand, ( P.W.5) and Gajendra and he also prepared site plan of the place of recovery and after completing the investigation he submitted charge sheet. 18. The appellant Nirankar Sharma in his statement under Section 313 Cr.P.C. has completely denied the committing of murder by strangulating his wife and son and has also stated that the witnesses Premraj, ( P.W.1) and Rajpal, ( P.W.3) had wrongly deposed. 18. The appellant Nirankar Sharma in his statement under Section 313 Cr.P.C. has completely denied the committing of murder by strangulating his wife and son and has also stated that the witnesses Premraj, ( P.W.1) and Rajpal, ( P.W.3) had wrongly deposed. He has further stated that the investigation was wrongly made and the case has falsely proceeded against him. He has not produced any evidence in his defense. 19. Heard Sri R.K. Shukla and Sri R.B. Sharma, learned counsels for the appellant and Sri Sagir Ahmad, learned AGA. 20. Learned counsel for the appellant has contended that there is no eye account of the alleged incident and from circumstantial evidence the appellant cannot be connected with the offence of killing of his wife and son. He has also contended that the prosecution witness Rajpal, ( P.W.3), who was a witness of extra judicial confession and Mool Chand, ( P.W.5), the witness of alleged recovery of rope have become hostile and have not supported the prosecution version. It is also contended that the appellant had no motive to commit the murder of his wife and son. It is also contended that the medical evidence is also incompatible with the prosecution version and thus the guilt of the accused could not be proved beyond reasonable doubt. 21. Learned AGA has contended that the evidence produced by the prosecution has fully proved the charge levelled against the appellant for committing the murder of his wife and son. It is also contended that the circumstantial evidence adduced by the prosecution are fully consistent and reliable to prove the guilt of the appellant. 22. In this matter there is no evidence of eye account regarding the incident and the entire matter rests on circumstantial evidence. For proving the guilt of the accused on the basis of circumstantial evidence, certain tests must be satisfied. 22. In this matter there is no evidence of eye account regarding the incident and the entire matter rests on circumstantial evidence. For proving the guilt of the accused on the basis of circumstantial evidence, certain tests must be satisfied. The Hon'ble Apex Court in Padala Veera Reddy V. State of A.P. and Ors, AIR 1990 SC 79 , has laid down that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: ( 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ( 2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; ( 3) the circumstance, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and ( 4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 23. The Hon'ble Supreme Court in State of Rajasthan Vs. Rajaram reported in AIR 2003 SC 3601 has held that conviction solely on the basis of circumstantial evidence is permissible and inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The Hon'ble Apex Court, in the aforesaid verdict in paragraphs 8 and 9 has observed as follows:- "Circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed." "Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." 24. In case of C. Chenga Reddy and Ors. v. State of A.P., J.T. 1996( 7) SC 397, the Hon'ble Supreme Court has been pleased to give the following observations:- "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstance should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence......" 25. In case of Sarbir Singh v. State of Punjab, 1993 SCC ( Cri) 860, the Hon'ble Apex Court has laid the following tests for proving the circumstantial evidence:- ( i) the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established; ( ii) all the facts so established should be consistent only with the hypothesis of guilt of the accused and should be such as to exclude every hypothesis but one sought to be proved; ( iii) the circumstances should be of a conclusive nature; and ( iv) the chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused. 26. The Hon'ble Apex Court in case of Rukia Begum v. State of Karnataka, AIR 2011 SC 1585 in para 16 and 17 has held as follows:- "For bringing home the guilt on the basis of the circumstantial evidence, the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn, are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete, that there is no escape from the conclusion, that the crime was committed by the accused and none else. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete, that there is no escape from the conclusion, that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner." "In order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused, but inconsistent with his innocence. No hard-and-fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence, which exercise is to be done in the facts and circumstances of each case." 27. In this matter, about the murder of Smt. Anita and Soni, the wife and son of the accused appellant Nirankar Sharma, the following circumstances are highlighted to fasten the guilt on the accused: 1.When the accused last time went from his house, his wife Smt. Anita and son Soni were not seen alive thereafter. 2.In the evening preceding the night of 15.1.1993, feeling that stink was emanating from the house of the accused, the informant and other villagers opened the door and found the dead body of Smt. Anita and her son Soni lying on the cot, regarding which report was got lodged by the informant Prem Raj, P.W.1. 3.The death of Anita and Soni was caused by strangulation with a rope. 4.On 15.1.1993, when the dead bodies of Anita and Soni were sent for postmortem, accused started to go from his house after packing his belongings and on being asked by Raj Pal ( P.W.3), Devi Saran and others, he confessed his guilt of committing murder of his wife and son. 4.On 15.1.1993, when the dead bodies of Anita and Soni were sent for postmortem, accused started to go from his house after packing his belongings and on being asked by Raj Pal ( P.W.3), Devi Saran and others, he confessed his guilt of committing murder of his wife and son. 5.The accused appellant made extra judicial confession before Rajpal, ( P.W.3) and Devi Saran for committing murder of his wife and son and also stated the motive for doing the same that his wife had gone to the farmhouse of her uncle and when she did not return for many days, he went to the farmhouse to see her and there he found her in a bed along with a servant 6.On 15.1.1993 at 11.15 a.m., the accused was handed over to the police after being brought to the police station by Rajpal ( P.W.3) and Devi Saran. 7.On the the pointing out of the accused, the rope used in the murder of the deceased was recovered from his house by the police. 28. For proving the first circumstance as stated above that when for the last time the accused went from his house, his wife Smt. Anita and son Soni were not seen alive thereafter. The witness Premraj, P.W.1 has categorically stated in his statement that the accused was residing as tenant in the house of Sukhbir Singh of his village along with his wife Anita and son Soni. He did not see Anita and Soni since the night of January 12, 1993 and when on 15th January, 1993, a stink was coming from the house then he and other persons of the Mohalla after opening the door saw that the dead bodies of Anita and Soni were lying on the cot about which he had submitted a written report, Exhibit Ka-1. He had last seen Nirankar going from his house 3-4 days earlier, when the dead bodies were found. This witness has further stated that when he saw Nirankar for the last time going from his house, thereafter he did not see Anita and Soni alive. He had last seen Nirankar going from his house 3-4 days earlier, when the dead bodies were found. This witness has further stated that when he saw Nirankar for the last time going from his house, thereafter he did not see Anita and Soni alive. This fact has also been proved by the witness Rajpal, ( P.W.3) in his examination-in-chief that the wife and son of Nirankar were not seen since 2-3 days and when stink started coming from the house, the villagers after opening the door saw that the dead bodies of the wife and son of Nirankar were lying on the cot for which a report was got lodged by Premraj ( P.W.1). The said fact has also been proved by Mool Chand, ( P.W.5) who, in his cross-examination, has stated that when on the last occasion he saw accused Nirankar going from his house, thereafter he did not see his wife and child. 29. It has been argued by the learned counsel for the appellant that witness Rajpal ( P.W.3) did not support the prosecution version in his cross-examination and as such his evidence cannot be relied on. In this connection it is noteworthy that the examination-in-chief of the said witness Rajpal, ( P.W.3) was recorded on 16.3.2005 and his cross-examination was deferred on the said date on the adjournment application moved on behalf of the appellant and thereafter his cross-examination was conducted on 29.4.2005. It appears that during the said period of about one and a half months, in between examination-in-chief and cross examination of the said witness, he was influenced and won over. It is well settled principle of law that even part of the statement of a hostile witness may be relied upon which is supported by the facts and circumstances of the matter. Thus, the argument of the learned counsel for the appellant that this witness can't be relied on is not acceptable. Further it has been argued that Mool Chand, ( P.W.5), the witness of recovery of rope has also become hostile and hence his evidence cannot be considered. The said argument is also not acceptable, as already observed earlier that part of the evidence of even a hostile witness can be considered and relied upon. 30. Further it has been argued that Mool Chand, ( P.W.5), the witness of recovery of rope has also become hostile and hence his evidence cannot be considered. The said argument is also not acceptable, as already observed earlier that part of the evidence of even a hostile witness can be considered and relied upon. 30. After considering the aforesaid evidence, the first circumstance that the appellant when last time went from his house thereafter his wife and son were not seen alive, is proved. 31. Regarding the second circumstance, the witness Prem Raj, ( P.W.1) has categorically stated that when on 15.1.1993, a stink was emanating from the house of the accused, he and other villagers opened the door and saw the dead bodies of Smt. Anita and her son Soni lying on the cot for which he had got an FIR lodged. The lodging of FIR and signature on written report has been proved by the witness, Premraj ( P.W.1), hence the second circumstance is also proved. 32. So far as the circumstance that the death of Anita and Soni was caused by strangulation with rope and circumstances No. 4,5 and 6 are concerned, in this connection, Dinesh Kumar ( P.W.2), who is a witness of panchayatnama has stated that the panchayatnama of the dead bodies of the deceased Anita and Soni were prepared by Sub-Inspector before him and his signature is there on the panchayatnama. According to the opinion of the Panchan it was found that the deceased Anita and Soni were murdered by strangulation. The said fact is also proved by the postmortem report of both the deceased, according to which, ligature mark extending around neck between chin and thyroid cartilage were found on both the dead bodies and death is shown to be due to asphyxia as a result of antemortem injury. 33. In this connection, P.W.3, Rajpal, who is a witness of extra judicial confession made by the accused Nirankar before him, Devi Saran and other villagers, has categorically stated that at the time of the incident, driver Nirankar was residing along with his wife and son in the house of Sukhveer Singh of the village. 33. In this connection, P.W.3, Rajpal, who is a witness of extra judicial confession made by the accused Nirankar before him, Devi Saran and other villagers, has categorically stated that at the time of the incident, driver Nirankar was residing along with his wife and son in the house of Sukhveer Singh of the village. The wife and son of Nirankar had not been seen since 2-3 days and when stink started coming from the house, the villagers opened the door and saw the dead bodies of his wife and son lying on the cot. This witness has also stated that subsequently, Nirankar came to his house and after packing his belongings when he started to leave with his luggage at 10.00 a.m. before him, Devi Saran and other villagers, then they asked him that where was he going with his luggage when the dead bodies of his wife and son had been sent for postmortem. On this Nirankar told them that his wife had gone to the farmhouse of his uncle and when she did not return for many days, he went to the farmhouse to see her where he saw her in a bed along with a servant of the farmhouse. Seeing the said situation he returned without saying a word and when his wife came back to his house, he also came to the village in the evening of 12.1.1993 with his Bus and in the night, he killed his wife and son by strangulating them. He also said that he had committed a wrong. 34. The said witness has fully supported the prosecution version regarding extra judicial confession made by the accused and the motive for killing his wife and son, but in his cross-examination he did not support the prosecution version and turned hostile. It is relevant to mention here that the examination-in-chief of this witness was recorded on 16.3.2005, at that time he had fully supported the version of prosecution but on that date the case was got adjourned on the application of the accused and on 29.4.2005, after about one and a half months, his cross-examination was recorded. It appears that during this period, this witness was influenced and won over by the accused side and it also appears that due to sympathy some how gained in favour of the accused, he did not support his own version given in examination-in-chief. It appears that during this period, this witness was influenced and won over by the accused side and it also appears that due to sympathy some how gained in favour of the accused, he did not support his own version given in examination-in-chief. Even in the cross-examination made by the A.D.G.C. ( Crl.) this witness has accepted his earlier statement made during examination-in-chief to be true. This witness has frequently changed the reasons of giving his statement in examination-in-chief. Some times he stated that he did so under pressure of Court Saheb ( A.D.G.C, Crl.) but immediately he stated that on that day Court Saheb ( A.D.G.C., Crl.) did not make any pressure on him. Thereafter, he stated that he gave the statement on saying of Gram Pradhan, Hariraj who had pressurized him on that day but before that nobody had pressurized him. He again stated that he did not complain to anybody about giving his false statement under pressure of Court Saheb ( A.D.G.C., Crl.) or Pradhan. 35. The statement of this witness, Rajpal ( P.W. 3), regarding extra judicial confession made by the accused is also supported by G.D. No. 20 written on 15.11.1993 at 11.15 a.m., in which the extra judicial confession made by the accused is described in detail. According to said G.D., it is also proved that the accused Nirankar was handed over to police after being brought to the Police Station by Rajpal, P.W.3 and Devi Saran of the same village. In the said G.D. it is also written that the son Soni was born from the first husband of Anita, whom she brought alongwith her. The evidence of the witness, Rajpal, P.W.3 which is supported by facts and circumstances of the matter, are acceptable and may be relied upon and his statement made in cross examination, which was recorded after one and half months, was apparently an influenced statement and does not appear to be a true one. 36. In view of the verdict given by the Allahabad, High Court in Ram Swaroop Vs. State of U.P. 1995 Allahabad Dand Nirnaya page 6, the evidence of a hostile witness if supported by facts and circumstances may be relied upon and the Court may take shelter of such evidence of the witness. 37. In view of the aforesaid considerations, the circumstances 3,4,5 and 6 are also proved. 38. State of U.P. 1995 Allahabad Dand Nirnaya page 6, the evidence of a hostile witness if supported by facts and circumstances may be relied upon and the Court may take shelter of such evidence of the witness. 37. In view of the aforesaid considerations, the circumstances 3,4,5 and 6 are also proved. 38. So far as the seventh circumstance, that the rope used in the murder of the deceased was recovered on the pointing out of the accused from his house by the police is concerned, in this connection the only public witness Mool Chand, ( P.W.5) did not support the recovery of rope but it appears that the said witness was also influenced and won over by the accused side. This witness has admitted his signature on the recovery memo which also bears the signature of the accused Nirankar. This witness in his cross-examination has accepted that when on the last occasion he saw accused Nirankar going from his house, thereafter he did not see his wife and child. The recovery of rope, recovery memo and the site plan of the said recovery have been proved by Sub-Inspector, Satyapal Singh ( P.W.7) who has stated in his statement that on 15.1.1993 at 11.15 a.m., the accused Nirankar was produced at the police station by Rajpal Singh ( P.W.3) and Devi Saran which was shown in G.D. No. 20 at 11.15 a.m. on the same day itself. The accused Nirankar was interrogated in the Hawalat. Thereafter he went along with the accused and other officials to Gram Khilwai, place of the incident, where on the pointing out of the accused, a rope was recovered and the fard of the said recovery was prepared before Mool Chand, ( P.W.5) and Gajendra. This witness has also stated that he has also prepared a site plan of the place of recovery. Hence, the recovery of rope on the pointing out of the accused is proved from the statement of Sub-Inspector, Satya Pal Singh and there is no reason or circumstance to disbelieve the statement of this witness. 39. Learned counsel for the appellant has argued that there was no motive to commit the murder by the appellant of his wife and son. In the said argument there is no substance as P.W.3, Rajpal has proved the extra judicial confession made by the appellant of committing murder of his wife and son. 39. Learned counsel for the appellant has argued that there was no motive to commit the murder by the appellant of his wife and son. In the said argument there is no substance as P.W.3, Rajpal has proved the extra judicial confession made by the appellant of committing murder of his wife and son. In G.D. No.20 dated 15.1.1993 recorded at 11.15 a.m, it is also stated that Soni was born from the first husband of Anita, wife of appellant and she brought him with her. According to extra judicial confession of the appellant, it is also clear that Anita had gone to farmhouse of her uncle and when she did not return for some days, the appellant went there and saw his wife in a bed along with a servant of the farmhouse. Without saying a word he went back and when his wife returned, he also came to the village along with his Bus in the evening of 12.01.1993 and in the night committed murder of his wife and son by strangulating them with a rope. 40. In the statement under Section 313 Cr.P.C., the appellant has completely denied the prosecution case but he did not explain as to how his wife and son were killed. In view of Section 106 of the Evidence Act, the burden of proving the said facts that how the deceased were killed lies on the appellant as they were killed in his house and when he was seen last time going from his house, his wife and son were not found alive thereafter. The burden lies on the appellant to explain the killing of his wife and son and he has not discharged the burden of proving the said facts. On the spot there was no sign of theft, loot or dacoity nor any evidence of committing rape with the deceased Anita and hence the entire burden lies on the appellant to prove and explain that how his wife and son died, which he could not discharge. 41. Learned counsel for the appellant has also argued that according to postmortem report, rigormortis was present over the dead bodies of the deceased and the postmortem was conducted on 15.1.1993 at 4p.m. and 4.30 p.m. respectively. His submission is that according to the statement of Dr. 41. Learned counsel for the appellant has also argued that according to postmortem report, rigormortis was present over the dead bodies of the deceased and the postmortem was conducted on 15.1.1993 at 4p.m. and 4.30 p.m. respectively. His submission is that according to the statement of Dr. J.K. Verma ( P.W.6), rigor-mortis was present in the body and death had taken place about one and a half day before. He further submits that according to the said evidence, death of Anita and Soni was caused when the appellant had already gone 3-4 days earlier. 42. It appears that Dr. J.K. Verma. ( P.W.6), has given his opinion of the time of death on the basis of rigor-mortis but this cannot be a conclusive proof as the time of death is changeable on the basis of cause of death and the weather. According to Modi's Medical Jurisprudence, in northern part of India during winter period, the rigor-mortis remains present for a duration of 24 hours to 48 hours. It is also mentioned that in case of strangulation the rigor-mortis starts late in winters and lasts for a long time. From the said consideration, it cannot be said definitely that the deaths were caused about one and a half days before the postmortem. It is also notable that the occurrence took place in January, 1993 and in the month of January there is severe cold in Northern India and in view of the matter, opinion given by the doctor about time of death cannot be conclusive. It is also not out of place to mention here that according to statement of P.W.1, Premraj and the facts written in the FIR, it is clear that when stink was emanating from the house of the appellant, the villagers opened the door and found the dead bodies of Anita and Soni lying on the cot. It is also clear from the said statement that stink was emanating from the dead bodies which also shows that the process of decomposition had started and the process of decomposition sets-in generally after the disappearance of rigor-mortis. Hence, the argument of the learned counsel for the appellant is not sustainable that the death of the deceased was caused after the appellant had gone for the last time from his house. 43. Hence, the argument of the learned counsel for the appellant is not sustainable that the death of the deceased was caused after the appellant had gone for the last time from his house. 43. In view of the aforesaid consideration of the entire material available on record, the circumstances shown by the prosecution are fully established and it is also proved that no one else but the appellant was the person who committed murder of his wife and son by strangulation with a rope. The entire facts and circumstances shown by the prosecution have been fully proved. 44. After considering the entire facts and circumstances of the case, a rational mind may be persuaded to reach the irresistible conclusion that either the appellant should explain how and under what circumstances the victims suffered death or own up the liability for the homicide. On the basis of the entire evidence in this matter, it is fully established that the murder of the deceased was committed by the appellant only and no one else. The entire facts and circumstances are fully consistent with the guilt of the accused-appellant and inconsistent with his innocence. 45. In view of the aforesaid considerations and discussions, we reach to the conclusion that the guilt of the appellant for killing his wife and son by strangulation is fully proved beyond shadow of reasonable doubt and the learned Trial Court has rightly convicted the accusedppellant under Section 302 IPC and awarded sentence of life imprisonment with a fine of Rs. 6,000/- and in default of fine to further under go a sentence of one year. This appeal is devoid of merit and is liable to be dismissed. 46. Accordingly, this appeal is dismissed.