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2016 DIGILAW 581 (CAL)

Gopi Jiban Karmakar v. State of West Bengal

2016-07-27

ASHA ARORA, RAJIV SHARMA

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JUDGMENT : Asha Arora, J. 1. The appeal is directed against the judgment and order of conviction and sentence dated 25th April, 2001 and 26th April, 2001 passed by the Additional Sessions Judge, 3rd Court, Bankura in Sessions Trial No. 9(9) 1993 arising out of Sessions Case No. 14(5) 1993 whereby the accused/appellant was convicted for the offence punishable under section 302 of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/- in default of which to suffer simple imprisonment for one year for the aforesaid offence. 2. The factual scenario of the prosecution case in brief is as follows: On 10/12/1990 at 11.15 a.m. the complainant Bhairab Chandra Karmakar lodged a complaint at Gangajal Ghati P.S. stating that his sister deceased Malati Karmakar was given in marriage to the accused/appellant Gopi Jiban Karmakar of Jamgari village on 21st Jaistha, 1397 in accordance with Hindu rites and rituals. After marriage the accused started torturing his wife Malati. As there was ‘badal’ marriage between the complainant and the sister of the accused on one side and the accused and sister of complainant on the other side, the deceased would endure the torture inflicted upon her without a murmur. On the night of 9th /10th December 1990 the accused throttled his wife to death when they were together in their room. In the morning of 10th December 1990 the complainant was informed by Shibdas Karmakar of Jamgari village that his sister was throttled to death by the accused. On being so informed, complainant went to the house of accused and found his sister lying dead. It is the further case of prosecution that the accused confessed before the complainant that he had throttled his wife to death in the night since his family members would pressurize him to contribute more money towards household expenses. 3. On the basis of the FIR (Exhibit 2/1), lodged by the complainant Bhairab Karmakar (P.W.7), Gangajal Ghati P.S. Case No.71 of 1990 dated 10.12.1990 was registered against the accused/appellant under section 498A/302 of the IPC. After conclusion of investigation charge sheet was submitted against the accused/appellant under section 498A/302 of the IPC. 3. On the basis of the FIR (Exhibit 2/1), lodged by the complainant Bhairab Karmakar (P.W.7), Gangajal Ghati P.S. Case No.71 of 1990 dated 10.12.1990 was registered against the accused/appellant under section 498A/302 of the IPC. After conclusion of investigation charge sheet was submitted against the accused/appellant under section 498A/302 of the IPC. The case being a Sessions triable one was committed to the Court of the Sessions Judge, Bankura wherefrom it was transferred to the Additional Sessions Judge, 3rd Court, Bankura for trial and disposal. The Trial Court framed the charge for the offence punishable under section 302 of the IPC against the accused/appellant who pleaded not guilty to the arraignment and claimed to be tried. In course of trial prosecution examined 13 witnesses and exhibited some documents. Out of these witnesses P.W.1 Gurupada Karmakar and P.W.2 Bijoy Karmakar are the neighbours of the accused who turned hostile during the trial. They stated nothing in aid of prosecution. P.W.3 Balaram Karmakar and P.W.4 Arati Karmakar are the parents of the accused who were declared hostile by prosecution for resiling from their earlier statement made before the Investigating Officer under section 161 of the CrPC. P.W.5 Sumitra Karmakar is the brother’s wife of the accused. For obvious reasons this witness also turned hostile. P.W.6 Guiram Lohar a co-villager of accused is another hostile witness. P.W.7 Bhairab Karmakar is the defacto complainant and the brother of deceased victim. P.W.8 Sandhya Rani Karmakar is related to the deceased who she referred to as her ‘pistoto nanad’. P.W.9 Banki Karmakar was tendered for cross-examination. P.W.10 Basudeb Karmakar is another witness who was declared hostile by prosecution. P.W.11 Constable Sudhir Kumar Jana brought the corpse of deceased for post mortem examination and identified the same to the Autopsy Surgeon. He also witnessed the seizure of the wearing apparels of the deceased. P.W.12 Constable Lakshmikanta Bera is another formal witness in whose presence the wearing apparels of the deceased were seized and P.W.13 Dr. J.N. Dey held post mortem examination on the corpse of deceased. 4. Defence version as is evident from the tenor of cross-examination of prosecution witnesses as well as from the answers given by the accused in his examination under section 313 of the CrPC is innocence and complete denial of the prosecution case. J.N. Dey held post mortem examination on the corpse of deceased. 4. Defence version as is evident from the tenor of cross-examination of prosecution witnesses as well as from the answers given by the accused in his examination under section 313 of the CrPC is innocence and complete denial of the prosecution case. Accused/appellant strived to set up a plea of alibi by suggesting to some of the witnesses in cross-examination that on the night of incident he went to see ‘jatra’ performance and returned home in the morning. 5. After hearing the learned counsel for the parties and upon consideration of the evidence on record the Trial Judge rendered the impugned judgment and order of conviction and sentence. 6. Aggrieved, the convicted accused/appellant preferred this appeal. 7. The crucial point for determination is whether the conviction of the appellant for the offence punishable under section 302 of the IPC is sustainable. 8. Mr. Mukherjee, learned counsel for the appellant strenuously argued that prosecution was unable to prove its case as most of its witnesses were declared hostile. Furthermore, there being no eye witness to the incident, the circumstances relied on by the prosecution could not be proved by clinching evidence. Mr. Mukherjee submitted that the circumstance of ‘last seen together’ banked upon by prosecution could not be proved since none of the witnesses saw the deceased and accused together shortly before the incident. It has been contended on behalf of appellant that reliance on the evidence of P.W.4 and P.W.5 by the Trial Court for the purpose of proving this circumstance was not justified since the accused was not questioned in his examination under section 313 of the CrPC regarding such evidence. Referring to the examination of the accused under section 313 of CrPC. Mr. Mukherjee pointed that only the gist of the incriminating evidence was put to the accused in the form of question No.1 in his examination under section 313 of CrPC. According to the learned counsel, the accused/appellant has been seriously prejudiced since he was denied the opportunity to explain the circumstances appearing in evidence against him which were relied on by the Trial Court including the evidence regarding the alleged extra judicial confession made before P.W.7, P.W.8 and P.W.10. It has further been argued by Mr. Mukherjee that non-examination of the Investigating Officer has resulted in prejudice to the accused. It has further been argued by Mr. Mukherjee that non-examination of the Investigating Officer has resulted in prejudice to the accused. This apart, non-examination of Shibdas Karmakar whose name figures in the FIR as the person who informed about the incident to the complainant, gives rise to an adverse presumption in view of section 114(g) of the Indian Evidence Act. Learned Counsel for the appellant urged that the burden of proof is on the prosecution and section 106 of the Indian Evidence Act is not intended to relieve the prosecution of its duty to prove its case beyond all reasonable doubt. To buttress his submission Mr. Mukherjee relied on the decisions reported in AIR 1977 Supreme Court 170 in the case of Shri Rabindra Kumar Dey versus State of Orissa, (2012) 6 Supreme Court Cases 403 in the case of Sahadevan and another versus State of Tamil Nadu and AIR 1956 Supreme Court 404 (Shambu Nath Mehra versus The State of Ajmer). Reference has also been made to the case of Harbhajan Singh versus State of Punjab reported in AIR 1966 Supreme Court 97 and (2008) 8 Supreme Court Cases 395 in the case of Latu Mahato and another versus State of Bihar (now Jharkhand). Regarding the plea of alibi, Mr. Mukherjee contended that since the accused could not establish by evidence that on the night of incident he had been to witness ‘jatra’ performance away from his house does not lead to the inference that he must have remained in his house on that night. To fortify such submission learned Counsel for the appellant relied on the decision reported in AIR 2004 Supreme Court 4383 in the case of Dasari Siva Prasad Reddy versus The Public Prosecutor, High Court of Andhra Pradesh. 9. Repudiating the submissions made on behalf of the appellant, Mr. Ghosh, learned advocate appearing for the State/respondent argued that the evidence of P.W.3, P.W.4 and P.W.5 read conjointly prove that the deceased and accused were together in the house on the night of incident. Mr. Ghosh contended that the circumstance of ‘last seen together’ having been proved, the accused/appellant was under an obligation to explain the cause of death of deceased in view of section 106 of the Indian Evidence Act. Mr. Ghosh contended that the circumstance of ‘last seen together’ having been proved, the accused/appellant was under an obligation to explain the cause of death of deceased in view of section 106 of the Indian Evidence Act. In support of such submission learned advocate for the respondent referred to the decisions reported in AIR 1959 Supreme Court 1390 (Krishan Kumar versus Union of India), and 2014 CRILJ 4047 Supreme Court in the case of State of Rajasthan Versus Thakur Singh. Placing reliance on the case of Ambika Prasad and another versus State of Delhi Administration, Delhi reported in, AIR 2000 Supreme Court 718, Mr Ghosh appearing for the State/respondent countered that non-examination of the Investigation Officer has not adversely affected the prosecution case nor has the accused been prejudiced thereby. Learned advocate for the respondent drew our attention to Page 65-66 of the impugned judgment which indicates that considering the submission of the learned defence counsel that accused would be prejudiced due to non-examination of the Investigating Officer, the Trial Court gave opportunity to the prosecution to examine the Investigating Officer vide order No.64 dated 26/4/2000. Instead of availing the said opportunity, the accused/appellant challenged the aforesaid order before this Court. Learned advocate for the State urged that at the instance of the accused the order of the Trial Court allowing the prayer of prosecution for examining the Investigating Officer was set aside. Therefore, the plea of prejudice to the accused due to non-examination of the Investigating Officer is not justified. 10. In the decision reported in Ambika Prasad and another versus State of Delhi Administration, Delhi reported in, AIR 2000 Supreme Court 718, the Apex Court held that non examination of the Investigating Officer is of no consequence when defence failed to shake the credibility of witnesses or to point out any material contradiction in the prosecution case. In the case before us no contradiction could be pointed out in the evidence of any of the prosecution witnesses nor could it be shown what prejudice has been caused to the accused/appellant due to non-examination of the Investigating Officer. Therefore the argument advanced on behalf of appellant on this score is wholly devoid of merit. There is also no substance in the argument that due to such non-examination of the Investigating Officer an adverse presumption under section 114(g) of the Indian Evidence Act may be drawn against prosecution. Therefore the argument advanced on behalf of appellant on this score is wholly devoid of merit. There is also no substance in the argument that due to such non-examination of the Investigating Officer an adverse presumption under section 114(g) of the Indian Evidence Act may be drawn against prosecution. In the context of the present case the Investigating Officer is not at all a material witness for any of the parties. We have already observed earlier that accused could not show how he has been adversely affected due to non-examination of this witness. Furthermore, we cannot lose sight of the fact revealed from the record of the Trial Court that the order for examination of the Investigating Officer was set aside by the High Court at the instance of the accused. 11. We are also not impressed with the argument that non-examination of Shibdas Karmakar has adversely affected the prosecution case. It is not the requirement of law that prosecution must examine all the witnesses cited by the investigating agency. Under section 226 of the CrPC it is for the prosecutor to decide by what evidence he proposes to prove his case. Defence cannot dictate to the prosecutor or insist upon examining a particular witness by the prosecution. If prosecution chooses not to examine a witness, it is open to the accused to cite and examine him as a defence witness. 12. Coming to the merits of the case, it is not in dispute that the deceased was the wife of accused. There is also no denial of the fact that the death of deceased was homicidal in nature and that the dead body was found in the room of accused where he resided with the deceased. There being no eyewitness to the occurrence, prosecution case hinges entirely on circumstantial evidence. We are conscious of the settled position of law that in a case based on circumstantial evidence, success of prosecution depends on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the offence has been committed by the accused. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. In the case before us the incriminating circumstances relied on by prosecution may be broadly enumerated as follows: (1) Homicidal death of deceased caused due to manual strangulation. This piece of incriminating circumstance is sought to be proved by the medical evidence of the Autopsy Surgeon (P.W.13) which is in conformity with the prosecution case as regards the cause of death of Malati Karmakar. (2) The accused/appellant was last seen with his wife (deceased) in their house on the night of incident by P.W.4 and P.W.5. (3) Extra judicial confession said to have been made by the accused before P.W.7, P.W.8 and P.W.10. (4) Post occurrence conduct of the accused. (5) Motive for the commission of the crime. (6) Silence of the accused on being questioned during his examination under section 313 of the CrPC regarding the cause of death of his wife. 13. To prove that the appellant’s wife (deceased) was done to death by manual strangulation, prosecution banked on the evidence of P.W.13 Dr. J.N. Dey who held postmortem examination on the corpse of deceased on 11.12.1990 at 11:00 hrs. On examination the Autopsy Surgeon found the following injuries: “(1) A crescentic nail mark ½” x ½’’ over bridge of nose; (2) A crescentic nail mark 4’’ x 2’’ over left side of ala of nose; (3) A crescenting nail mark 3’’ x 2’’ over right side ala of nose. (4) A crescenting nail mark 1’’ x 1’’ over right side of body of mandible; (5) A crescenting nail mark 1’’ x 1’’ over left angle of mandible. (6) A lacerated wound 1’’ x ¼’’ x muscle over right side of lower lip; (7) Bruise over lower lip. (8) Bruise 2 ½’’ over mid part of right side of neck. (9) Bruise 2’’ x ½’’ over mid part of left side of neck. (10) Bruise 1’’ x ½’’ over front of right shoulder. On dissection : - (1) Fair amount of extravasated clotted and liquid blood seen to infiltrate the tissues from left angle of mandible covering an area of 1’’ x 1’’. (2) Fair amount of extravasated clotted and liquid blood seen to infiltrate the tissues of left angle of mandible covering an area of 2’’ x 1’’. On dissection : - (1) Fair amount of extravasated clotted and liquid blood seen to infiltrate the tissues from left angle of mandible covering an area of 1’’ x 1’’. (2) Fair amount of extravasated clotted and liquid blood seen to infiltrate the tissues of left angle of mandible covering an area of 2’’ x 1’’. (3) Fair amount of extravasated clotted and liquid blood seen to infiltrate the tissues of whole larynx and trachea. (4) Fracture (sub-laxation) :- of grater cornae of hyoid bone on left side. (5) Fracture of trachea at its anterior part Fair amount of extravasated clotted and liquid blood seen to infiltrate the tissues in and around the lacerated injuries and fractures described above. According to P.W.13 death was due to manual strangulation as described in his report (Exhibit 5) antemortem and homicidal in nature. He further opined that all the injuries on nose and face could be caused by nail of hand. The evidence of P.W.13 as to the injuries found on the person of deceased and his opinion regarding the cause of death remained unchallenged in cross-examination. Nothing could be elicited in the cross-examination of this witness to render his evidence doubtful. At this juncture it significant to mention that prosecution case regarding the cause of death of deceased due to throttling as narrated in the FIR (Exhibit 2/1) and as testified by P.W.7 and P.W.8 who found marks of injury on the neck of deceased is corroborated by the medical evidence of the doctor who held post mortem examination. Therefore, it has succinctly been established by convincing evidence that the death was homicidal in nature caused by manual strangulation. 14. The question that now looms large for consideration is whether the accused committed the murder of his wife. It is not in dispute that the incident occurred at night in the room of accused where he and his wife (deceased) stayed together. It is also not disputed that the dead body of deceased wife was found in their room on the following morning with injuries and marks of throttling on her neck. Through P.W.4 and P.W.5 prosecution endeavoured to prove this vital circumstance. P.W.4 is the mother of accused while P.W.5 is his brother’s wife. These two witnesses were declared hostile by prosecution. Even P.W.3 the father of accused was declared hostile. Through P.W.4 and P.W.5 prosecution endeavoured to prove this vital circumstance. P.W.4 is the mother of accused while P.W.5 is his brother’s wife. These two witnesses were declared hostile by prosecution. Even P.W.3 the father of accused was declared hostile. It is a well-settled principle of law that declaring a witness as hostile does not ipso facto make his evidence unacceptable. The evidence of such a witness cannot be thrown out in its entirety merely because prosecution chose to treat him as hostile and cross-examined him. The portion of evidence of a hostile witness which is beneficial to the parties may be taken advantage of and accepted to the extent his version is found to be believable. In our present case P.W.3 the father of accused stated in his evidence that accused is his second son. He was married to Malati who is dead. The relevant portion of the evidence of P.W.4, the mother of accused is reproduced hereunder: “The accused is my son. The accused married Malati who died 5 (five) years back in the month of Agrahayan. We came to know in the morning when we called her. On the previous night we were in the house. Excepting my elder son, others stay in our house.” P.W.5 unequivocally corroborated the evidence of P.W.4 by stating as follows: “I am the boudi of accused whose wife is dead. In the night of incident myself, my father-in-law, mother-in-law and two of the younger brothers of my husband were in the house.” Significantly the above quoted evidence of P.W.4 and P.W.5 remained unchallenged by the accused in cross-examination. P.W.4 categorically averred in her evidence that excepting her elder son others stay in their house. We get from the evidence of P.W.3 (father of accused) that accused is his second son. P.W.5 Supports the version of P.W.4 by elucidating that on the night of incident her father-in-law, mother-in-law and two of the younger brothers of her husband were in the house. From the evidence of P.W.4 and P.W.5 it is clear that on the night of incident accused was in his house with his wife (deceased). P.W.4 and P.W.5 spoke spontaneously regarding the presence of the accused in the house on the night of incident. From the evidence of P.W.4 and P.W.5 it is clear that on the night of incident accused was in his house with his wife (deceased). P.W.4 and P.W.5 spoke spontaneously regarding the presence of the accused in the house on the night of incident. Their evidence in this regard is credible and convincing for the simple reason that being closely related to the accused they could not have deposed falsely against him. From the evidence of P.W.4 and P.W.5 it can safely be concluded that the accused was last seen with his wife by these two witnesses. Accused endeavoured to set up a plea of alibi through the cross-examination of P.W.2, a neighbour of accused, P.W.3, .P.W.4 the parents and P.W.5 the brother’s wife of the accused. In response to a suggestion on behalf of accused in cross-examination these witnesses conceded that on the night of incident accused went to see jatra performance and returned on the following morning. Curiously enough the time of going to jatra performance has not been disclosed by these witnesses or by the accused during his examination under section 313 of the CrPC. In fact, no such plea of alibi was taken by the accused during his examination under section 313 CrPC. At what time of night did the accused go to witness the jatra performance? This question remained unanswered by the accused. The time factor is very significant in view of the fact that the wife of accused was throttled to death on the night of 9-12-90/10-12-90. Even the place of jatra performance and its distance from the place of occurrence (house of accused) remained undisclosed. Without the specific details as regards the exact time in the night when the accused allegedly went to witness the jatra, the place of its performance and its distance from the site of occurrence, this plea of accused is fallacious. No evidence has been led by the accused in support of his plea of alibi which remained unsubstantiated. The evidence of .P.W.4 and P.W.5 testifying to the presence of the accused in the house on the night of incident could not be shaken in cross-examination. Evidently, on the night (of incident) accused was with his wife in their room. It is not the case of the accused that someone else had entered their room and murdered his wife. The evidence of .P.W.4 and P.W.5 testifying to the presence of the accused in the house on the night of incident could not be shaken in cross-examination. Evidently, on the night (of incident) accused was with his wife in their room. It is not the case of the accused that someone else had entered their room and murdered his wife. P.W.5 the brother’s wife of accused was made to state in her cross-examination that on the night of incident when she went out with Malati (deceased) she found her talking to a stranger. No other witness corroborated this vague statement of P.W.5 in cross-examination. A futile suggestion was given to P.W.7 and P.W.8 in cross-examination that Malati was killed by someone else over a love affair and that accused has been falsely implicated. Nothing in this regard has been stated by P.W.3 and P.W.4 the parents of the accused or by the accused himself during his examination under section 313 of the CrPC. The aforesaid defence suggestion of false implication is devoid of merit for the simple reason that it is not expected that the near and dear ones of the deceased would shield the real murderer and falsely implicate an innocent person. In fact there is nothing to suggest in the evidence that some other person had access to the room of the accused and his wife on the night of incident. 15. In fact there is nothing to suggest in the evidence that some other person had access to the room of the accused and his wife on the night of incident. 15. In the case of Trimukh Maroti Kirkan versus State of Maharashtra reported in, (2006) 10 Supreme Court Cases 681 the Apex Court held as follows: “Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.” Similarly, in Dnyaneshwar versus State of Maharashtra reported in, (2007) 10 Supreme Court Cases 445 the Apex Court observed that since the deceased was murdered in her matrimonial home and the appellant did not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife. In the case before us the accused offered no explanation in this regard in his examination under section 313 of the CrPC. In State of Rajasthan versus Thakur Singh reported in 2014 Cri.LJ 4047 Supreme Court the Apex Court held as follows in Paragraph 22 of the judgment: “22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.” The Apex Court held in the case of Bodhraj alias Bodha versus State of Jammu and Kashmir reported in, 2002 Cri.LJ 4664 Supreme Court that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. In the case before us prosecution succeeded in proving through the evidence of P.W.4 and P.W.5 that on the night of incident the accused and deceased were together in the house and thereafter in the morning his wife was found throttled to death in their room. We reiterate that the plea of accused that he went to witness jatra performance on the same night could not be proved by evidence regarding details such the time and venue of the performance and its distance from the place of occurrence. For the reasons discussed we are of the firm view that circumstance No.2 has been convincingly proved. 16. Another significant circumstance connecting the accused/appellant with the crime is the confession said to have been made by the accused before P.W.7, P.W.8 and P.W.10. It is indeed true that an extra judicial confession should ordinarily be corroborated by other evidence and it should inspire confidence before the Court can act upon it for convicting the accused. In our present case P.W.7 the brother of the deceased testified in his evidence regarding this circumstance in the following manner: “On 10.12.90 one Shibdas Karmakar reported to us that the accused person killed my sister by throttling. I got the information during morning hours. To this myself, Sandhya, my brother Basudeb, Bamacharan Karmakar, Uttam Karmakar went to the house of the accused person. I got the information during morning hours. To this myself, Sandhya, my brother Basudeb, Bamacharan Karmakar, Uttam Karmakar went to the house of the accused person. On our going we found Malati was dead and that there was marks of blood on her mouth and mark of injury on her throat. On our query the accused person stated to us that he killed his wife by throttling.” Surprisingly this piece of evidence of P.W.7 was not challenged in cross examination. The evidence of P.W.7 remained unscathed in cross-examination. Nothing could be elicited from the mouth of this witness in cross-examination to render his evidence suspicious. Significantly we get from the evidence of P.W.7 that he was informed about the incident by his brother-in-law Shibdas Karmakar on 10.12.90 between 8.00/8.30 a.m. and he lodged the FIR on the same day at 11.15 a.m. after visiting his sister’s house where he found her dead with marks of injury on her throat. The factum of confession by the accused before the complainant (P.W.7) that he throttled his wife to death in the night clearly finds place in the FIR. Prompt lodging of the FIR by P.W.7 within a few hours of being informed about the incident eliminates the possibility of concoction or fabrication in the prosecution case or false implication of the accused. Though P.W.7 is the brother of deceased there is no reason why he would invent a false story of murder against the accused to exculpate or shield the real murderer of his sister. We are convinced that P.W.7 is a reliable witness whose evidence inspires confidence. 17. P.W.8 deposed spontaneously regarding the factum of confession by the accused in the following words: “On 23rd Agrahayan, 1397 B.S. we got the information of death of Malati from Shibdas Karmakar that the accused killed Malati by throttling. To this my self, my husband, neighbours, Uttam and Bamacharan went to the house of the accused person. On our way we found the accused and some villagers and we went upstair to see the dead body of Malati. We saw a swelling on the throat of Malati and marks of blood on her mouth. On my asking the accused admitted that he murdered Malati by throttling last night.” Nothing has emerged in the cross-examination of P.W.8 to render her evidence doubtful. No contradiction could be pointed out in the testimony of this witness. We saw a swelling on the throat of Malati and marks of blood on her mouth. On my asking the accused admitted that he murdered Malati by throttling last night.” Nothing has emerged in the cross-examination of P.W.8 to render her evidence doubtful. No contradiction could be pointed out in the testimony of this witness. Her evidence remained unshaken in cross-examination. Evidently P.W.8 spoke truthfully without any exaggeration. 18. P.W.8 Basudeb Karmakar was declared hostile but the factum of the accused making a confession before him could be elicited from the mouth of this witness during his cross-examination by prosecution. Being quizzed in cross-examination P.W.10 stated that on seeing him the accused made a confessional statement that he killed Malati. This statement of P.W.10 remained unassailed during his cross-examination on behalf of the accused. The reason why we can safely rely on this portion of the evidence of P.W.10 is not far to seek. The name of this witness clearly figures in the evidence of P.W.7 and P.W.8. We get from the evidence of P.W.7 that Sandhya Karmakar (P.W.8), Basudeb Karmakar (P.W.10), Bamacharan and Uttam went with him to the house of accused on getting information of the death of Malati. The evidence of P.W.7 on this point has not been challenged in cross-examination. Even P.W.8 Sandhya, the wife of P.W.10 testified regarding the fact that her husband along with others went to the house of accused on getting information of her death from Shibdas. P.W.10 himself testified in his examination in chief regarding this fact but omitted to state about the confession of the accused. Only after being declared hostile this factum could be extricated from the mouth of P.W.10 during cross-examination by prosecution. It appears to us that the evidence of P.W.7, P.W.8 and P.W.10 regarding extra judicial confession made to them by accused is voluntary and free from suspicion. Above all it does not suffer from any discrepancy and has a ring of truth in it. These three witnesses are certainly not persons in authority. So the confession made before them is not hit by section 24 of the Evidence Act. Nothing could be elicited in the cross-examination of P.W.7, P.W.8 and P.W.10 to render their evidence in this regard suspicious or doubtful. We unhesitatingly hold that this piece of evidence provides another vital link in the chain of circumstances pointing to the culpability of the accused. Nothing could be elicited in the cross-examination of P.W.7, P.W.8 and P.W.10 to render their evidence in this regard suspicious or doubtful. We unhesitatingly hold that this piece of evidence provides another vital link in the chain of circumstances pointing to the culpability of the accused. The decision reported in (2012) 6 Supreme Court Cases 403 in Sahadevan’s Case referred to by the learned advocate for the appellant is clearly distinguishable on facts from our present case. In the said case the extra judicial confession of the accused was in the form of a statement in writing (Exhibit.P-4) addressed to the Police Inspector. The accused person allegedly went to the office of P.W.6 to make the confession. It was P.W.6 who handed over Ext. P-4 (confession) to the Police. This document (Ext.P-4) could not be corroborated by other evidence but in the case before us there are other cogent circumstances which corroborate the evidence of P.W.7, P.W.8 and P.W.10 regarding the confession of guilt made before them by the accused. 19. Yet another circumstance which speaks against the accused is his post occurrence conduct. From the evidence of P.W.4 we find that on the previous night accused was in the house but he was not available in the house when she detected the dead of deceased. She further stated that accused did not tell her anything about the death. From the cross-examination of P.W.5 it is clear that accused returned in the morning. Evidently the accused was not found in his house after commission of the crime. He returned home on the following morning. P.W.3 and P.W.4 the parents of accused categorically stated that the accused did not tell them anything about the death of his wife. The post crime conduct of the accused cannot be said to be natural, spontaneous or consistent with his innocence. The plea of alibi pursued by the accused could not be proved by evidence. The specific details regarding the time of his alleged departure from the house to witness the jatra performance and the exact venue of such performance and its distance from the place of occurrence are not forthcoming. The plea of alibi pursued by the accused could not be proved by evidence. The specific details regarding the time of his alleged departure from the house to witness the jatra performance and the exact venue of such performance and its distance from the place of occurrence are not forthcoming. Absence of the accused from the house after the occurrence, the fact that accused did not disclose about the death of his wife to the inmates of his house and the false, unsubstantiated plea of alibi of accused are telling and relevant circumstances which form another link in the chain of circumstances connecting the accused with crime. 20. This now brings us to the motive for the commission of the offence. It is true that in a case based on circumstantial evidence motives assumes much significance but absence of proof of motive cannot be a ground to put the prosecution case out of court where the circumstances relied on by prosecution are proved by credible and convincing evidence. In the case before us the motive for the crime is clearly spelt out in the evidence of P.W.7 who stated unequivocally in his evidence that on his query accused told him that there was poverty in the family and he was under pressure for giving money in the family which he could not so he killed Malati. This fact has also been mentioned in the FIR (Exhibit 2/1) which was lodged by P.W.7 without inordinate delay. The possibility of P.W.7 inventing a false story against the accused is completely ruled out by the fact that the FIR was lodged with promptitude within a few hours of being informed about the incident. 21. The inevitable conclusion is that the various links in the chain of circumstances have been proved by clinching and unimpeachable evidence. The circumstantial evidence discussed unerringly leads to the only conclusion that the accused alone committed the murder of his wife. 22. During his examination under section 313 of the CrPC accused maintained silence as to the cause of death of his wife. At this juncture it is pertinent to reproduce the questions which were posed to the accused by the Trial Judge during his examination under section 313 of the CrPC and the answers given by him. “Q.1. 22. During his examination under section 313 of the CrPC accused maintained silence as to the cause of death of his wife. At this juncture it is pertinent to reproduce the questions which were posed to the accused by the Trial Judge during his examination under section 313 of the CrPC and the answers given by him. “Q.1. It is revealed from the evidence adduced by P.W.7 Bhairab Karmakar, P.W.8 Smt. Sadhyarani Karmakar and P.W.10 Basudeb Karmakar that you throttled your wife Malati to death. Do you have to say anything about this? Ans. No, Sir. I am innocent.” “Q.2. P.W.13 Dr. J.N. De has stated in his evidence that he performed the postmortem examination over the deadbody of Malati and Malati had been throttled to death. Do you have to say anything about this? Ans. I am innocent.” “Q.3.- Will you adduce any evidence in defence? Ans. No, Sir.” “Q.4.- Will you say anything else? Ans. No, Sir.” It is clear that the accused on being asked, offered no explanation regarding the incriminating circumstances on the point of the cause of death of his wife. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Shambhu Nath Mehra versus The State of Ajmer reported in AIR 1956 Supreme Court 404 relied on by the learned counsel for the appellant, the Apex Court while dealing with the interpretation of Section 106 of the Evidence Act held that the Section is not intended to shift the burden of proof (in respect of the crime) on the accused but to take care of a situation where a fact is known only to the accused and it is virtually impossible or extremely difficult for the prosecution to prove the fact. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. The decision in Shambhu Nath’s Case (AIR 1956 Supreme Court 404) does not come to the aid of the appellant. Rather it supports the prosecution case. In the case before us the appellant/accused was prosecuted for the murder of his wife which took place inside his house in the room which was occupied by them. The decision in Shambhu Nath’s Case (AIR 1956 Supreme Court 404) does not come to the aid of the appellant. Rather it supports the prosecution case. In the case before us the appellant/accused was prosecuted for the murder of his wife which took place inside his house in the room which was occupied by them. In the case of Ganeshlal versus State of Maharashtra reported in, (1992) 3 Supreme Court Cases 106 it was held by the Apex Court that since the death of his wife had occurred in the custody of the accused, he was under an obligation to give an explanation for the cause of death in his statement under section 313 of the CrPC. A denial of the prosecution case coupled with absence of any explanation from the side of the accused as to how his wife was throttled to death inside their room is a circumstance which is inconsistent with his innocence but consistent with the hypothesis that it was the accused alone who committed the murder of his wife. The principle of law laid down in Section 106 of the Evidence Act is clearly applicable to our present case. We find that since the wife of accused died a homicidal death in the room occupied by her and the accused, the cause of homicidal death was known only to the accused. There is no evidence that anybody else had entered their room in the night. The facts relevant to the cause of death of deceased wife were known only to accused, yet he chose not to disclose them or to explain them. This itself forms an additional link in the chain of circumstances pointing to the guilt of the accused. The principle enunciated in Thakur Singh’s Case reported in 2014 CRILJ 4047 Supreme Court is clearly applicable to the facts of the case before us. 23. There is no substance in the argument on behalf of the appellant that all the in criminating evidence was not put to the accused in his examination under section 313 of the CrPC and in consequence thereof serious prejudice has been caused to him. The questions which were put to the accused during his examination under section 313 of the CrPC have been reproduced hereinabove at page 26 of the judgment. The questions which were put to the accused during his examination under section 313 of the CrPC have been reproduced hereinabove at page 26 of the judgment. It is clear that the vital incriminating evidence relating to the death of the appellant’s wife by throttling was put to the accused during his examination under Section 313 of the CrPC. The factum of the presence of the accused in his house on the night of incident as testified by P.W.4 and P.W.5 was not challenged in their cross-examination. This piece of circumstantial evidence was not specifically denied by the accused by way of cross-examination of P.W.4 and P.W.5. Therefore, the accused cannot be said to have been prejudiced on account of omission to question him regarding the aforesaid circumstance. In this context it is worthwhile to mention that the plea of alibi of the accused that on the night of incident he went to witness ‘jatra’ performance could not be proved by any iota of credible evidence. Therefore the circumstance relating to the presence of the accused in his house at the time of incident remained unshattered. The circumstance regarding the confession of the accused that he killed his wife by throttling her as testified by P.W.7, P.W.8 and P.W.10 is covered by question No.1 of the examination under Section 313 of the CrPC. It cannot be said that the accused was denied the opportunity to explain the circumstances appearing in evidence against him. In our view the examination of the accused under section 313 CrPC is not defective so the plea of non-compliance of the provisions of section 313 of the CrPC raised by the appellant is not sustainable. Having reached this conclusion we find that the decision reported in (2008) 8 Supreme Court Cases 395 in the case of Latu Mahto and Another versus State of Bihar cited by the learned advocate for the appellant does not apply to the case before us. 24. Coming to the plea of alibi, we have already discussed earlier in our judgment that the accused failed to establish that on the night of incident he went to witness jatra performance at Durgapur. Accused could not adduce any evidence in support of such a plea. 24. Coming to the plea of alibi, we have already discussed earlier in our judgment that the accused failed to establish that on the night of incident he went to witness jatra performance at Durgapur. Accused could not adduce any evidence in support of such a plea. In view of Section 103 of the Evidence Act it is incumbent on the accused pursuing the plea of alibi to prove it with absolute certainty so as to exclude the possibility of his presence at the place and time of occurrence. In the case before us the presence of the accused in his house on the night of incident has been established by cogent, convincing and credible evidence of P.W.4 the mother of accused and P.W.5 who is his brother’s wife. The plea which the accused/appellant tried to set up that he was elsewhere at the time of occurrence could not be proved. The case of Dasari Siva Prasad Reddy versus The Public Prosecutor, High Court of Andhra Pradesh reported in AIR 2004 Supreme Court 4383 relied on by the learned advocate for the appellant finds no application to the case before us being distinguishable on facts. In the decision referred the evidence of P.W.4 was found to be unreliable and it was held that if the evidence of P.W.4 is excluded, there is no other evidence to establish the presence of the accused in the house on the crucial night. In the case before us we have the evidence of two witnesses namely, P.W.4 and P.W.5 who testified regarding the presence of the accused in his house on the night of incident. They are the mother and brother’s wife of accused who would certainly not depose falsely regarding his presence in the house on the night of incident. The case of Harbhajan Singh versus State of Punjab reported in, AIR 1966 Supreme Court 97 is also of no help to the appellant. In the aforesaid case the Apex Court held that as soon as the accused succeeded in proving the preponderance of probability, the burden shifts to the prosecution which has still to discharge its original onus. In our case in hand no iota of evidence was led by the accused in support of his plea so the question of a preponderance of probability being established does not arise. In our case in hand no iota of evidence was led by the accused in support of his plea so the question of a preponderance of probability being established does not arise. For the same reason we find that the decision reported in AIR 1977 Supreme Court 170 in the case of Shri Rabindra Kumar Dey versus State of Orissa, and the case of V.D. Jhangan versus State of Uttar Pradesh reported in, AIR 1966 Supreme Court 1762 are not apposite for the purpose of our present case since the accused could not show in any manner a preponderance of probability in favour of his plea of alibi. 25. The conclusion that necessarily follows is that the accused/appellant failed to make out any case for interference with the impugned judgment and order of conviction and sentence passed by the Trial Court. 26. Consequently the appeal is dismissed. 27. The appellant is directed to surrender before the Trial Court within one month from date to serve out his sentence in default of which the Trial Court shall take appropriate steps for execution of the sentence in accordance with law. 28. A copy of this judgment along with the LCR be sent immediately to the Trial Court for intimation and necessary action. 29. Urgent photostat certified copy of the judgment, if applied for, shall be given to the parties upon compliance of requisite formalities.