JUDGMENT : Heard. 1. Both the aforesaid Criminal Appeals, since arising out of the common judgment and order, were heard together and are being disposed of, by the common judgment. 2. The appellants, Ali Bux Mian and Md. Kamrul Mian were put on trial along with Noor Jahani Khatoon on the accusation of committing murder of Rojni Khatoon (wife of Ali Bux Mian). The trial court while acquitting Noor Jahani Khatoon, convicted both the appellants for the offence punishable under Sections 302/34 and also under Section 120B of the Indian Penal Code vide judgment dated 16.02.2003 and sentenced each of them to undergo imprisonment for life for each of the offences under Sections 302/34 and Section 120B of the Indian Penal Code vide its order dated 17.01.2003. 3. The case of the prosecution is that the deceased -Rojni Khatoon having married to the Ali Bux Mian was living at her in-laws place where in due course, she gave birth of two children who subsequently died. Thereafter the appellant-Ali Bux Mian started saying that he would marry one Noor Jahani Khatoon, cousin of the accused-Kamrul Mian. The informant-Md. Ghulam Rasool (P.W.9), the brother of the deceased tried to impress upon the appellant, Ali Bux Mian not to marry Noor Jahani Khatoon. In spite of that, Ali Bux Mian did marry Noor Jahani Khatoon who started living with the deceased and the appellant-Ali Bux Mian. After some days, they started altercating with each other. The deceased was being subjected to torture by the appellant and was being forced to leave the house. Since the deceased did not leave her in-laws place, Noor Jahani Khatoon, the second wife of the appellant-Ali Bux Mian went to her parents' house. Kamrul Mian had also extended threat to the deceased to leave the house otherwise she would be done to death. It is stated that on 28.08.2000 in the early morning when the informant received information that his sister-Rojni Khatoon has been killed in the night, he came and found the dead-body lying under the pool of blood over the verandah situated outside of the room in which wife and husband were living. 4. On getting such information, when the Sub Inspector, K.P. Keshri, Officer-in-Charge of Jamua Police Station came to Village:-Raiyodih, he recorded the 'fardbeyan' (Ext.2 /2) of the informant at about 1.00 p.m. wherein he narrated about the incident, as has been, stated above. 4. On getting such information, when the Sub Inspector, K.P. Keshri, Officer-in-Charge of Jamua Police Station came to Village:-Raiyodih, he recorded the 'fardbeyan' (Ext.2 /2) of the informant at about 1.00 p.m. wherein he narrated about the incident, as has been, stated above. 5. On the basis of said fardbeyan, a formal FIR was drawn and the case was registered against these two appellants as well as one Afzal Mian and Noor Jahani Khatoon, the second wife of the appellant- Ali Bux Mian. Subsequently investigation was taken over by Bindhyachal Prasad (P.W.10) who in course of investigation held inquest on the dead-body of the deceased and prepared an inquest report (Ext.3/1) and thereafter the dead-body was sent for post-mortem examination which was conducted by Dr. Suresh Brahamchari (P.W.1) who upon holding autopsy on the dead-body did find the following injuries :- (i) Fracture of right mandible. (ii) Ecchymogis over right infra orbital area. (iii) An incised wound 1/2”X1/4”X deep to the bone over right mandible. (iv) An incised wound 1/2”X1/2” X deep to the bone over the forehead. (v) An incised wound 3½”X3”X deep to the vertebrae partially cutting 5th cervical vertebra over the front of neck, cutting the food and wind pipe and right carotid vessel. (vi) Blood stain present over the face and scalp hair. 6. The Doctor issued post-mortem report (Ext.1) with an opinion that death was caused due to shock and hemorrhage as a result of aforesaid injuries caused by sharp-cutting weapon. 7. Meanwhile, the I.O. inspected the place of occurrence and did find blood in good quantity inside the room. Broken bangles were also found there which were recovered. The I.O. also did find spots of blood over one of the walls of the room where the appellant and the deceased used to sleep. 8. Upon completion of the investigation, charge-sheet was submitted against these two appellants as well as Noor Jahani Khatoon against whom cognizance of the offence was taken. 9. In due course when these two appellants along with Noor Jahani Khatoon were put on trial, the prosecution in order to prove its case, examined altogether ten witnesses. Of them, P.W.6-Nasiman Khatoon, the mother of the deceased, P.W.7-Sahida Khatoon and P.W.9 -Md. Ghulam Rasool have testified almost in the same manner as the statement of the informant is there in the 'fardbeyan'. Of them, P.W.6-Nasiman Khatoon, the mother of the deceased, P.W.7-Sahida Khatoon and P.W.9 -Md. Ghulam Rasool have testified almost in the same manner as the statement of the informant is there in the 'fardbeyan'. According to them when the appellant, Ali Bux Mian married Noor Jahani Khatoon, both of them started subjecting the deceased to torture and were forcing her to leave the house. Even the accused-Md. Kamrul Mian extended threat to the deceased to leave the house otherwise, she would be done to death which fact was stated by the deceased to the informant. They have further testified that after knowing that the deceased has been done to death, they came and found the deceased lying under the pool of the blood on the ground where the appellant- Ali Bux Mian had lied down and was keeping mum in spite of he being exhorted by others to say as to how it happened. 10. Rest of the witnesses i.e. P.Ws.1, 2, 3, 4 and 5 when came after hearing hulla at the house of the appellant, they saw the deceased lying under the pool of the blood at the Verandah where the appellant- Ali Bux Mian was lying keeping mum. 11. Upon closure of the prosecution case, when the incriminating evidences appearing against the appellant, were put to him under Section 313 Cr.P.C., he simply denied. 12. Thereupon the trial court having placed its reliance upon the testimonies of the witnesses, did find these two appellants guilty whereas the accused, Noor Jahani Khatoon was not found to be guilty and hence, the trial court while acquitting Noor Jahani Khatoon, convicted the appellants and sentenced them as aforesaid which is under-challenge in this appeal. 13. Mr. Tarun Kumar Sinha, learned counsel appearing for the appellants submits that the prosecution has failed to examine a single eye-witness, still the trial court recorded the order of conviction on the basis of the only circumstance that the deceased was killed in a room where the appellant and the deceased used to sleep but that circumstance is not enough to hold the appellant-Ali Bux Mian guilty. Further, it was submitted that so far, appellant-Md. Further, it was submitted that so far, appellant-Md. Kamrul Mian is concerned, he has been convicted on the evidence that Kamrul used to hold out threat to the deceased for leaving the house and that the co-convict, Ali Bux Mian in his extra-ordinary judicial confession had named Kamrul Mian as his associate who also participated in the commission of the murder of the deceased, but that cannot be taken to be a substantive piece of evidence rather substantive piece of evidence being absent, the trial court committed illegality in recording the order of conviction so far as Kamrul Mian is concerned. 14. Mr. Pankaj Kumar, learned counsel appearing for the State submits that evidences have been led on behalf of the prosecution that the deceased and the appellant-Ali Bux Mian were living in a room where the I.O. did find mark of blood over one of the walls and then the dead-body seems to have been brought outside the house and kept in the verandah and thereby when only the appellant and the deceased were there in the room and the deceased was found murdered, presumption would be there that it was the appellant who committed murder and the burden was there upon the appellant in terms of Section 106 of the Evidence Act to explain the circumstance as to how she was killed, but the appellant-Ali Bux Mian has not stated anything in his statement made under Section 313 Cr.P.C. about his innocence and thereby, the trial court was absolutely justified in recording the order of conviction and sentence. 15. Further submission was made that so far other accused, Kamrul Mian is concerned, he also seems to have been convicted rightly by the trial court taking into account the evidence appearing against him. 16. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution, as has been testified by P.Ws.6, 7 and 9 that when the appellant Ali Bux Mian did marry Noor Jahani Khatoon, both of them started subjecting the deceased to torture so that she may leave the house but when the deceased did not leave the house, Noor Jahani Khatoon herself went away to live at her parents' house. Probably on account of that, the deceased was killed and the circumstances which is there against the appellant-Ali Bux Mian is that it was only he who was living with the deceased and thereby it was the appellant who was having special knowledge of the entire thing as to how she was killed, but the appellant failed to explain anything in this regard and thereby presumption would be that it was the appellant-Ali Bux who killed his wife when spotting blood was found by the Investigating Officer over one of the walls. 17. It further appears that the dead-body was brought outside the room and was kept at the Verandah where the appellant-Ali Bux Mian was found sleeping who was exhorted by the witnesses to say something as to how it had happened, but he kept complete silence. This fact has been stated by a number of witnesses i.e. P.Ws.1 to 5. 18. Thus, under the circumstances, when the prosecution did prove that the appellant and the deceased were living in a room where she was found killed, presumption would be drawn upon the husband-Ali Bux Mian to have killed unless he gives a cogent explanation about his innocence. This burden does not seem to have been discharged in this case by the appellant-Ali Bux Mian. He did not say anything in his statement under Section 313 of the Cr.P.C. Moreover, the conduct of the appellant-Ali Bux Mian of subjecting the deceased to torture and then keeping mum and not explaining anything can also be taken to be incriminating circumstances against the appellant and thereby taking into account all the aspects of the matter, as aforesaid, we do find that the trial court was absolutely justified in recording the order of conviction and sentence so far offence under Section 302/34 IPC is concerned. But conviction under Section 120B IPC seems to be quite bad as nothing is there to show that there was conspiracy on the part of this appellant and other accused to kill the deceased and thereby the appellant-Ali Bux Mian is acquitted of the charge under Section 120B of the Indian Penal Code, but the sentence imposed upon him for the offence punishable under Sections 302/34 IPC shall remain intact. 19. 19. So far the other appellant-Kamrul Mian is concerned, he has been convicted as the co-convict, Ali Bux Mian in his extraordinary judicial confession has named this appellant as one of associates, but there does not appear to be any evidence either circumstantial or direct to suggest that the appellant-Kamrul Mian also participated in the commission of the murder of the deceased and thereby the extra-ordinary judicial confession of the co-accused can never be taken to be sufficient to hold the appellant-Kamrul Mian guilty. Accordingly, the trial court committed illegality in recording the order of conviction and sentence against the appellant-Kamrul Mian which is hereby, set aside and the appellant is acquitted of both the charges and is discharged from the liability of the bail bonds. 20. Thus, Cr. (Jail) Appeal No.832 of 2004 is hereby dismissed whereas Cr. Appeal (DB) No.193 of 2003 is hereby, allowed.