JUDGMENT Deepak Gupta; C.J.:- This appeal by the convict is directed against the judgment dated 30th October, 2003 delivered by the learned Addl. Sessions Judge, South Tripura, Udaipur whereby he convicted the accused under Section302 IPC for having murdered his wife Jarina Khatoon and sentenced him to undergo imprisonment for life and to pay fine of ` 5000/- and in default to suffer Rigorous Imprisonment for 6(six) months. 2. The undisputed facts are that the appellant was married to Jarina Khatoon. It is also not disputed that Jarina Khatoon died on the night intervening 5th and 6th December, 2002. As per the medical evidence i.e. the statement of P.W. 12, Dr. Smriti Sankar Nath, the preliminary post mortem report (Exhibit-A) and the final post mortem report (Exhibit 7), the death of Jarina Khatoon had taken place due to smothering. The learned trial Court held that it is the appellant who had committed the murder of his wife and convicted him. Hence, this appeal. 3. We have purposely not referred to the FIR in this case because that is the bone of contention between the parties. According to P.W. 1 and P.W. 13, the accused himself lodged the FIR in the form of a written complaint (Exhibit 5). The contents of the written complaint when translated, read as follows:- To The O.C., Kakraban Out Post, Udaipur, South Tripura. Sub: Intimation of death. Sir, It is humbly submitted that last night at about 8 O'clock, I fell asleep in my own room/hut after having finished with my night-time meal. I could not feel as to when my wife Smti. Jarina Khatun, age about 15(fifteen) years, had, after finishing her meal at night, slept with me on the same bed. Waking up from sleep in the morning today, I called my wife. Getting no response, I pushed my wife and found that her body had become stiff. I called my father, mother and sister. They came, saw my wife and could understand that her death had occurred. Later on, I sent news to my father-in-law's house. My mother-in-law came to our house from my father-in-law's house. For that reason I could not lodge complaint (Ejahar) at the P.S. in the morning on time. It is not known to me as to how the death of my wife has occurred. Later on, I sent news to my father-in-law's house. My mother-in-law came to our house from my father-in-law's house. For that reason I could not lodge complaint (Ejahar) at the P.S. in the morning on time. It is not known to me as to how the death of my wife has occurred. Therefore, Sir, your good self may pass orders for rendering justice following investigation into the above mentioned matter. The end, 6.12.02 L.T.I. of Tuta Miah S/o. Sekantar Ali Vill-Ichachherra. 4. In this first report to the police allegedly made by the accused, it was stated that the accused and his wife had slept at night on the same bed and in the morning the accused found that his wife was dead and her body had become stiff. The stand of the accused is that he never went to the police station, he never wrote such complaint and that his thumb impression was obtained on a blank piece of paper. Therefore, the appellant is not denying his thumb impression on this first intimation about the occurrence. 5. We may notice that there has been a practice in the State of Tripura that even when information about a cognizable offence having been committed is given, the police was not normally recording an FIR. From the evidence on record, it is apparent that even before this intimation was given to the police, the police officials had already gone to the spot and had carried out certain investigation. This fact is also not denied by the accused. Be that as it may, this intimation was received in the police station at 3:15 PM because there is corroboration of the same by way of G.D. entry No. 151 (Exhibit 9) in which the complaint has been reproduced verbatim. Therefore by 3:15 PM this complaint had definitely been lodged in the Police station. 6. According to the stand of the appellant, he in fact was not in the house at that night. It is alleged that in addition to doing the work of rickshaw puller he also purchases vegetables from different places and takes the vegetables to the market to be sold. 6. According to the stand of the appellant, he in fact was not in the house at that night. It is alleged that in addition to doing the work of rickshaw puller he also purchases vegetables from different places and takes the vegetables to the market to be sold. The accused stepped into the witness box as D.W. 1 and stated that on the evening of 5.12.2002 he had gone to Mohanbhog market to purchase vegetables in the evening since it was late at night, he could not return home and therefore, spent the night in the house of Maharam Ali, D.W. 2. If the plea of alibi is believed, then obviously the accused will have to be acquitted. The question, therefore, is whether this plea of alibi is a true plea of alibi or is a false plea set up by the accused. 7. According to the accused he left for Mohanbhog market at about 3-30 PM and purchased the vegetables. He had completed purchasing vegetables at about 5-30 PM when he met Maharam Ali in the market. His next sentence contradicts the previous sentence when he states that he could complete the marketing by 8-30 PM. 8. Once an accused takes the plea of alibi he has to prove the plea. No doubt the degree of proof is not the same as that which lies on the prosecution but a plea of alibi must also be proved even if to the level of preponderance of evidence. Other than Maharam Ali in whose house the appellant stayed, no other witness from the market has been examined to show that actually the accused went to the market. It was not difficult to get such evidence if actually the appellant had purchased vegetables because in all the small markets the purchasers and sellers of vegetables would know each other by first name. Neither the name of any person from whom the accused allegedly purchased the vegetables has been disclosed nor any details given of the vegetables. As far as the statement of Maharam Ali is concerned, he states that at about 8-30 PM Tota Miah put the vegetables on his bicycle and thereafter the accused told this witness that at night, the ferry may not be available and as such he would have to spend the night at the house of Maharam Ali. As far as the statement of Maharam Ali is concerned, he states that at about 8-30 PM Tota Miah put the vegetables on his bicycle and thereafter the accused told this witness that at night, the ferry may not be available and as such he would have to spend the night at the house of Maharam Ali. This version is totally contradictory to the version of the accused who states that it was Maharam Ali who invited him to stay at his house. 9. While considering this aspect of the matter, it would be most important to note that P.W. 13 is the Investigating Officer who recorded the G.D. Entry (Exhibit 9). He appeared in the witness box as P.W. 13 and clearly stated that on 06.12.2002 at about 15-15 hours, Tota Mia (the appellant-accused) came to the police station and submitted the written information stating that his wife Jarina Khatoon died in the previous night in her sleep. There is no question put to this witness in cross examination that this statement is false. No suggestion has been put to this witness that Tota Miah never appeared before him to deliver the written complaint. 10. P.W. 1 had suo motu lodged the FIR but in the FIR also he had clearly stated that Tota Miah had given a complaint that he and Jarina Khatoon (deceased) had slept together on one bed and next morning the wife was found dead. No suggestion was put even to this witness that Tota Miah had never made such a statement. The accused now wants the court to believe that his thumb impression was taken on a blank piece of paper on which the complaint was recorded. It may be true, that the scribe of the complaint has not been examined. Who was the scribe would best be known to the person who got the complaint scribed. In the present case we have no doubt in our mind that this complaint was scribed at the instance of Tota Miah since it admittedly bears his thumb impression and it was filed within 8 to 9 hours of the body of Jarina Khatoon being discovered. 11. The version of the appellant that he was not present at night does not inspire confidence and to us it is clear that this is a false plea taken up. 11. The version of the appellant that he was not present at night does not inspire confidence and to us it is clear that this is a false plea taken up. While coming to this conclusion we are also taking into consideration the fact that to none of the witnesses who appeared in the witness box and some of which witnesses also supported the defence, any suggestion was made that the accused also used to deal in the purchase and sale of vegetables. It is true a suggestion has been made to most of the witnesses that the accused was not in his house in the night intervening 5th and 6th December, 2002 and some of the witnesses have supported him to this effect but some of the witnesses including the uncle of the appellant-accused (P.W. 9) have not supported him. P.W. 9 clearly states that when he enquired from the appellant as to what had happened, the appellant replied that he and the deceased had slept on the same bed but he does not know how his wife died. 12. In this view of the matter, we are clearly of the view that the plea of alibi is false and the petitioner was in his house at the intervening night of 5th/6th December, 2002. The deceased wife of the appellant was only 15 years old. She has died a violent death. She has been smothered. We have gone through the post mortem report and in this post mortem report it is mentioned that the body was partially decomposed but the following injuries were found:- (i) Multiple semi lunar scratch marks over nose and around mouth. (ii) Laceration of both upper & lower lips inner aspect. Lips are swollen. (iii) Swelling of nasal pyramid. (iv) Bloody discharge from nose & mouth 13. Hemorrhagic spots were also found on the membranes. There are scratch marks over the nose and around the mouth and there is laceration of both the upper and lower lips. It is thus apparent that this unfortunate girl struggled and fought for her life before she was smothered completely. If two people are sleeping on the same bed and one is smothered violently at night, the other person cannot feign ignorance as to what happened at night. It is thus apparent that this unfortunate girl struggled and fought for her life before she was smothered completely. If two people are sleeping on the same bed and one is smothered violently at night, the other person cannot feign ignorance as to what happened at night. A wife sleeping on the same bed cannot be murdered and the husband be totally unaware of his wife being smothered while she sleeping next to. 14. The motive for the murder is apparent from the cross examination directed to the prosecution witnesses. It is admitted that a Panchayat of the senior members of the community was held about two months prior to the date of occurrence. In this Panchayat it was alleged that the accused was not consuming the food prepared by his wife since he suspected the fidelity of his wife. No doubt the matter was settled in the Panchayat but the suggestions made by the defence to the prosecution witnesses are that some persons kept visiting the house of the accused and the deceased in his absence and used to meet the deceased. 15. In view of the above discussion, we are of the concerned view that the following circumstances are fully proved:- (i) That the deceased Jarina Khatoon was murdered by smothering. (ii) That the appellant and his wife Jarina Khatoon slept together on the same bed on the night intervening 5th and 6th December, 2002. (iii) That next morning, the dead body of Jarina Khatoon was found. (iv) That the complaint (Exhibit-5) was written at the instance of the accused and bears his thumbs impression which also proves that he was present at night in the house of the deceased. (v) That even the other witnesses have stated that when they saw the body of Jarina Khatoon, blood was coming out from her nostrils and mouth. (vi) That the medical evidence proves that the death was by smothering. (vii) That the plea of alibi taken by the accused is a totally false. (viii) That there was a motive to kill the deceased since the appellant doubted her fidelity. 16. This is a case which attracts Section 106 of the Evidence Act. Once we have held that the accused and his wife were in the same room when the wife was murdered, it was for the accused to come out with a reasonable explanation. 16. This is a case which attracts Section 106 of the Evidence Act. Once we have held that the accused and his wife were in the same room when the wife was murdered, it was for the accused to come out with a reasonable explanation. What to talk of a reasonable explanation, he has taken a totally false plea of alibi. 17. In view of the above discussion, we find no merit in the appeal and the same is accordingly dismissed.