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2019 DIGILAW 1049 (HP)

Vinod Kumar Khadia v. State of H. P.

2019-07-26

DHARAM CHAND CHAUDHARY, JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. The instant appeal has been preferred by the appellant Vinod Kumar Khadia (hereinafter referred to as the "accused" in short), against the judgment dated 16.02.2011, passed by learned Additional Sessions Judge, Solan, District Solan, H.P., in Sessions Trial No.5-s/7 of 2010, titled State of H.P. versus Vinod Kumar Khadia, whereby the accused was convicted for the offence punishable under Section 302 IPC and sentenced to undergo rigorous imprisonment for life, alongwith fine of Rs.20,000/- and in default of payment of fine, the convict has to further undergo imprisonment for one year. 2. Prosecution Case: 2(i). The accused, alongwith his wife and three minor children, resided in tenanted premises owned by PW-3 Leela Dutt, at Village and Post Office Garkhal, Tehsil Kasauli, District Solan, H.P. 2(ii). On 23.11.2009, at about 10.45 p.m., accused gave beating to his wife Kiran Bala at his home (tenanted premises) with wooden block Ext.P-1 as well as caused injuries to her with knife Ext.P-2. 2(iii). Elder son of the accused, called their neighbour PW-2 Naresh Kumar Attri by knocking at his door and requested him to save his mother from his father. Noises were also heard by another neighbour PW-1 Sushil Kumar. 2(iv). PW-1 Sushil Kumar and PW-2 Naresh Kumar Attri, reached home of the accused and saw him giving beatings to his wife. The wife of the accused was seriously injured, unconscious and lying on floor. PW-13 Prabhu Dyal, Vice President of Gram Panchayat, Garkhal-Sanwar, was telephonically informed about the incident by PW-1 Sushil Kumar; whereafter he (PW-13) informed Police Chowki, Garkhal, about the alleged occurrence. PW-13 Prabhu Dyal, also visited the house of the accused. 2(v). Kiran Bala was shifted initially to PHC Dharampur, District Solan, H.P. Statement of PW-1 Sushil Kumar was recorded under Section 154 Cr.P.C. vide Ext.PW-1/A, on the basis of which, FIR Ext.PW-10/B, was registered. 2(vi). On the application (Ext.PW-6/B), moved by PW-6 ASI Yadav Singh, for recording statement of Kiran Bala, Dr. Parvinder Singh (PW-12), issued certificate Ext.PW-6/C, to the effect that injured was not fit to record her statement. 2(vii). Kiran Bala was referred to Regional Hospital, Solan and thereafter to Indira Gandhi Medical College and Hospital, Shimla and finally to PGI, Chandigarh, where she died on 27.11.2009. Her dead body remained unclaimed. Parvinder Singh (PW-12), issued certificate Ext.PW-6/C, to the effect that injured was not fit to record her statement. 2(vii). Kiran Bala was referred to Regional Hospital, Solan and thereafter to Indira Gandhi Medical College and Hospital, Shimla and finally to PGI, Chandigarh, where she died on 27.11.2009. Her dead body remained unclaimed. It was thereafter handed over to PW-5 Madan Lal (Manager All India Sewa Samiti, Chandigarh) by PW-6 ASI Yadav Singh and the said Samiti cremated the dead body of deceased Kiran Bala. 2(viii). The investigation was carried out by the police. The blood stained clothes; wooden block; knife and pieces of bangles etc., were taken into possession by the police. Photographs Ext.PW-14/A to Ext.PW-14/D were taken vide certificate Ext.PW-14/E. The sketch of wooden block and knife were drawn. Post mortem of the dead body was conducted by Dr. S.P. Mandal (PW-15). 2(ix). The police report was presented under Section 173 Cr.P.C. The accused was charged for commission of offence punishable under Section 302 IPC, to which, he pleaded not guilty and claimed trial. 3. To establish its case, the prosecution examined 15 witnesses and also led documentary evidence. 4. (I). The accused did not lead any evidence in defence. His statement was recorded under Section 313 Cr.P.C., wherein, in answer to question No.22, he stated:- "I innocent Sir, my wife had fallen from lentre. I was not present at my home at the time of incident." 4(ii). Thus, the defence of the accused is to the effect:- (i) He was not present on the spot at the time of alleged occurrence; and (ii) His wife had fallen from lintel. 5. Learned trial Court has convicted the accused for offence punishable under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life. Feeling aggrieved, present appeal has been filed by the appellant-accused. Initially, this appeal was allowed by a Division Bench of this Court vide judgment dated 13.10.2014. State of Himachal Pradesh, feeling aggrieved against the judgment dated 13.10.2014, preferred Criminal Appeal No.1827 of 2017, before Hon'ble Apex Court, which was allowed vide judgment dated 25.10.2017. The order of Hon'ble Apex Court is reproduced hereinafter:- "We have heard Mr. D.K. Thakur, learned Additional Advocate General for the appellant. None appears for the respondent in spite of service. State of Himachal Pradesh, feeling aggrieved against the judgment dated 13.10.2014, preferred Criminal Appeal No.1827 of 2017, before Hon'ble Apex Court, which was allowed vide judgment dated 25.10.2017. The order of Hon'ble Apex Court is reproduced hereinafter:- "We have heard Mr. D.K. Thakur, learned Additional Advocate General for the appellant. None appears for the respondent in spite of service. It is pointed out that in the circumstances of the case, Section 106 of the Evidence Act, 1872 gets attracted which aspect has not been looked into by the High Court. We are of the view that since the High Court has not approached the matter in right perspective, it will be in the interest of justice to set aside the High Court judgment and remand the matter to the High Court for fresh decision in accordance with law. We order accordingly. The matter may be listed before the High Court for hearing on Monday, the 4th December, 2017. The State may produce the respondent before the High Court upon which the High Court may decide whether the respondent is to be released on bail or not. The appeal is accordingly disposed of." 6. We have heard learned counsel for the parties, on both sides, and gone through the record carefully. 7. Mr. Digvijay Singh, learned defence counsel representing the accused, has raised following points for consideration:- (i) Absence of the accused from the spot; (ii) Contradictions in the statements of material witnesses; (iii) Non-examination of the eldest child of the accused; and (iv) Absence of motive. We propose to discuss these points separately hereinafter:- 8. Plea of Alibi taken by the accused. Presence/absence of the accused on the spot. Learned defence counsel has argued that accused was not present at the scene of occurrence and that is why he was arrested only the next day of alleged incident. To examine this defence, vis-a-vis case of prosecution, the testimonies of four important witnesses, i.e. (i) PW-1 Sushil Kumar; (ii) PW-2 Naresh Kumar; (iii) PW-6 ASI Yadav Singh; and (iv) PW-13 Prabhu Dyal, need to be referred. 8(i). PW-1 Sushil Kumar, has deposed that on 23.11.2009, at about 10.30 p.m., while watching television, he heard noises from house of Leela Dutt (where accused resided as tenant with his family). 8(i). PW-1 Sushil Kumar, has deposed that on 23.11.2009, at about 10.30 p.m., while watching television, he heard noises from house of Leela Dutt (where accused resided as tenant with his family). He heard elder son of the accused crying and knocking at he door of his neighbour PW-2 Naresh Kumar; the elder son was shouting that his father had killed his mother; whereafter, he alongwith PW-2 Naresh Kumar, went to the accused's house and saw him standing there; his wife lying on floor in pool of blood; accused, on asking as to why he killed his wife, told that he had received telephonic call from his native place about elimination of his entire family. He further disclosed that he would, therefore, kill his wife, thereafter his children and lastly himself before somebody else kills his family. On asking as to how he killed his wife, he (accused) informed that he killed his wife with the help of a wooden block and a knife. The wooden block and knife were there on the spot. It has further come in the statement of PW-1 Sushil Kumar that he telephonically called PW-13 Prabhu Dyal, Up-Pradhan of the Gram Panchayat, who in-turn, called the police on spot for further proceedings. The relevant part of the statement of PW-1, in his examination-in-chief, is reproduced hereinafter:- "On 23.11.2009 when I was watching television at about 10.30 PM I heard noises from the house of Leela Dutt. The children were crying. The elder son of the accused was knocking at the door of my neighhbour Naresh Kumar Attri and was shouting that his mother had been killed by his father. Thereafter, myself and Naresh Kumar Attri went to the room of the accused where deceased Kiran Bala wife of accused was lying on the floor in a pool of blood. She was unconscious and the accused was standing there. We enquired from the accused that why he killed his wife. The accused told that he has received telephonic calls from his native place that his entire family shall be eliminated. He further disclosed that he thought before his family is killed by some one else he killed his wife and thereafter he was to kill his children and himself lateron. Rest of family members were saved due to the shouting of elder son of accused. He further disclosed that he thought before his family is killed by some one else he killed his wife and thereafter he was to kill his children and himself lateron. Rest of family members were saved due to the shouting of elder son of accused. The accused disclosed that he killed his wife with the help of a wooden piece (2 feet in length) and 1 knife." 8(ii). PW-2 Naresh Kumar, corroborating the stand of PW-1 Sushil Kumar, deposed that he visited the room of the accused on request of elder son of the accused saw the accused standing there; in his presence and in presence of PW-1 Sushil Kumar, the accused was beating his wife with wooden block and sharp edged knife. PW-2 has further deposed that the accused, on their inquiry, had told about his intention to finish and kill his wife Kiran Bala. In his examination-in-chief, he (PW2) states that:- "On 23.11.2009 at about 10.45 PM I was present in my house. The elder son of accused Vinod Kumar present in the court today knocked my door. I opened the door. The boy asked me to save his mother and told me that the accused was beating his wife. I visited the room of the accused, who was a tenant of Leela Dutt. In the meantime PW1 had also come after hearing the noise and we both visited the room of the accused. When we went inside the room of accused, he was beating his wife deceased Kiran Bala with the help of a wooden piece and was having one sharp edged knife in his hand. The deceased was lying unconscious on the floor. In our presence accused had thrown deceased by pulling her from legs. Thereafter we saw the face of injured which was badly injured. The accused on our enquiry told us that he will finish his wife deceased Kiran Bala." In his cross-examination, PW-2 Naresh Kumar Attri, stated that:- "The accused in our presence hit the deceased with the help of Ext.P-1 which was held by him by both the hands and there-after I went to my room for making a call to Prabhu Dayal." 8(iii). PW-13 Prabhu Dyal, has also corroborated the presence of the accused, at the spot, at the time of his visit to the accused's house. PW-13 Prabhu Dyal, has also corroborated the presence of the accused, at the spot, at the time of his visit to the accused's house. The relevant part of his statement is to the following effect:- "For the last 9 years, I am Vice-President of Gram Panchayat, Garkhal, Sanawar. On 23.11.2009, I was at my residence about 10.45 p.m. Sushil Kumar PW-1 telephonically informed me that a quarrel had taken place between the husband and wife who were tenants of Leela Dutt. Thereupon, I telephonically informed at Police Chowki Garkhal. I visited the house of Leela Dutt. Accused Vinod Kumar present in the court today was found present in his room (witness pointed out towards the accused). His wife was lying on the floor. She was unconscious and had sustained injuries on her head which were bleeding. A wooden block strained with the blood and knife lying on the floor. In the meantime, the accused Vinod Kumar fled away from the spot." 8(iv). PW-6 ASI Yadav Singh, has also testified that on his reaching the spot, alongwith other police officials, he found Kiran Bala to be badly injured and unconscious with accused present there. Relevant part of his statement is reproduced hereinafter:- "I alongwith other police officials rushed to the spot. The deceased was badly injured and was unconscious at that time. Accused Vinod Kumar was also present there." Observations (Plea of Alibi): 8(v). The accused has taken the plea of alibi in his statement recorded under Section 313 Cr.P.C. The prosecution has established, on record, the presence of the accused on the spot, at the time of alleged occurrence. Be it PW-1 Sushil Kumar or PW-2 Naresh Kumar or PW-13 Prabhu Dyal or PW-6 ASI Yadav Singh; their statements, extracted in previous paragraphs, are unison that they have seen the accused at the place of occurrence with his wife in seriously injured condition, lying unconscious on the floor with blood oozing out and accused standing there with sharp edged knife and wooden block in his hand. The testimonies of these prosecution witnesses are natural; in harmony with each other and inspire confidence. Thus, presence of the accused has been established on the spot at the time of alleged occurrence beyond all reasonable doubt. 8(vi). Learned defence counsel has submitted that the accused was arrested on 24.11.2009, at about 04.00 p.m., from Garkhal Bazar. The testimonies of these prosecution witnesses are natural; in harmony with each other and inspire confidence. Thus, presence of the accused has been established on the spot at the time of alleged occurrence beyond all reasonable doubt. 8(vi). Learned defence counsel has submitted that the accused was arrested on 24.11.2009, at about 04.00 p.m., from Garkhal Bazar. This fact has also been admitted and is the correct position as has come out in the statement of PW-14 Inspector Ramesh Thakur. But mere arrest of the accused, the next day, will not prove that the accused was not present at the scene of alleged occurrence on 23.11.2009. We have already discussed the statement of PW-1 Sushil Kumar; PW-2 Naresh Kumar; PW-6 ASI Yadav Singh; and PW-13 Prabhu Dyal to the effect that all these material witnesses have seen the accused present at the spot, with PW-2 Naresh Kumar, infact, the eye witness to the occurrence. 8(vii)(a). PW-13 Prabhu Dyal, in his examination-in-chief, stated that accused Vinod Kumar Khadia had later fled away from the spot. He has maintained this factual statement even during cross-examination in following manner:- "We had no time to apprehend the accused since his wife was serious and we worried about her life. The accused ran away from the spot after sometime when I reached at the spot." 8(vii)(b). Even, PW-6 ASI Yadav Singh had also testified that at the relevant time, when they reached the spot, their entire focus was to provide medical treatment to the deceased, who was very serious and therefore, in this process, they were not able to arrest the accused, who had fled away. Resultantly, the accused could be arrested only on the following day. 8(vii)(c). These witnesses have also given a plausible reason for not catching hold the accused at the time of alleged occurrence. The reason being deceased Kiran Bala was seriously injured and in immediate need of medical help and their all focus was to provide her medical treatment. The reason is plausible. 8(viii). In titled Ashwani Kumar and another versus The State of Punjab, 2018 15 Scale Hon'ble Apex Court observed as under: "8. We are not persuaded to overturn the concurrent findings of the courts below. As observed by the High Court, there is no motive for the police officials to falsely implicate the appellants. The case of the second appellant is one of alibi. We are not persuaded to overturn the concurrent findings of the courts below. As observed by the High Court, there is no motive for the police officials to falsely implicate the appellants. The case of the second appellant is one of alibi. She has not discharged her burden to show that she was elsewhere. On the other hand, there is evidence of the police officials that after committing the crime, the appellants came out and proclaimed that they have accomplished what they wanted. They were apprehended. In such circumstances, we see no reason to allow the appellants to rely upon the statement of the first appellant under Section 313 Cr.P.C or upon the deposition of D.W.1. No doubt, the High Court has taken the view that D.W.1 has not given complaint to the higher police officers. The High Court no doubt also finds fault with the first appellant in not disclosing the name of the person with whom his wife was found to be in a compromising position. Even proceeding on the basis that he may not have known the name of the person it still does not detract from us reposing confidence in the testimony of the police officer. The presence of the second appellant and her being apprehended by the police officers, has been believed by both the Courts and this is completely inconsistent with the case set up by the appellants. In such circumstances, we see no reason to interfere. The appeal fails and stands dismissed." It was for the accused to establish his plea of alibi. There is no evidence on record to prove that the accused was not present on the spot at the time of occurrence. Rather, overwhelming evidence is there to the contrary. Point raised by learned defence counsel is answered accordingly. 9. Actual Commission of Crime/Contradictions in the Statements of Material Witnesses: 9(i). Mr. Digvijay Singh, learned defence counsel, has contended that prosecution has not been able to establish that the accused was actually guilty of offence punishable under Section 302 IPC, in killing his wife. In support of this contention, he has pointed out certain contradictions in the statements of the prosecution witnesses. The contradictions as pointed out in the statements of prosecution witnesses are:- 9(ii). PW-1 Sushil Kumar stated that he, alongwith PW-2 Naresh Kumar, had reached the house of the accused almost at the same time. In support of this contention, he has pointed out certain contradictions in the statements of the prosecution witnesses. The contradictions as pointed out in the statements of prosecution witnesses are:- 9(ii). PW-1 Sushil Kumar stated that he, alongwith PW-2 Naresh Kumar, had reached the house of the accused almost at the same time. On reaching the spot, he saw deceased Kiran Bala lying on floor in pool of blood, in practically unconscious state, with accused standing there. Whereas, PW-2 Naresh Kumar's statement was that accused was beating his wife inside his room with wooden piece and knife; deceased was lying unconscious on floor; accused had thrown deceased by pulling her from legs. Learned defence counsel relied upon following specific portion of the statement of PW-1 Sushil Kumar to point out the contradictions:- "It is incorrect that when I reached in the room of the accused, he was beating the de-ceased with a wooden piece. It is correct that deceased was saved by us from the clutches of the accused. It is correct that accused was proclaiming in our presence that he will kill the deceased. I can identity the piece of wooden knife if shown to me in the court today." Learned defence counsel further submitted that in comparison to above statement, PW-2 Naresh Kumar, has stated that he actually saw the accused beating his wife Kiran Bala with a wooden block and a sharp edged knife. The difference in the statement of PW-1 Sushil Kumar and PW-2 Naresh Kumar has been contended to be a major contradiction by learned counsel for the accused. 9.(iii). Hon'ble Apex Court in titled Shamim verus State (Government of NCT of Delhi), (2018) 10 SCC 509 observed as under:- "12. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it." In titled Menoka Malik and others v. State of West Bengal and others, (2018) AIR SC 4011 Hon'ble Apex Court held as under under:- "......14. It is a well-settled position of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments or exaggerations. The doctrine of falsus in uno, falsus in omnibus, which means "false in one thing, false in everything" has been held to be inapplicable in the Indian scenario, where the tendency to exaggerate is common. This Court has endorsed the inapplicability of the doctrine in several decisions, such as Nissar Ali v. State of Uttar Pradesh, (1957) AIR SC 366, Ugar Ahir v. State of Bihar, (1965) AIR SC 277, Sucha Singh v. State of Punjab, (2003) 7 SCC 643 : ( AIR 2003 SC 3617 ), Narain v. State of Madhya Pradesh, (2004) 2 SCC 455 : ( AIR 2004 SC 2751 ) and Kameshwar Singh v. State of Bihar, (2018) 6 SCC 433 : ( AIR 2018 SC 1916 ). In Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 : ( AIR 2002 SC 1965 ), this Court highlighted the dangers of applying the doctrine in the Indian scenario: "51....The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P., (1957) AIR SC 366 : 1957 Cri LJ 550]... The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P., (1972) 3 SCC 751 : 1972 SCC (Cri) 819] : ( AIR 1972 SC 2020 ) and Ugar Ahir v. State of Bihar, (1965) AIR SC 277 : (1965) 1 Cri LJ 256].) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood." 15. It is not uncommon for witnesses to make exaggerations during the course of evidence. But merely because there are certain exaggerations, improvements and embellishments, the entire prosecution story should not be doubted. In Ranjit Singh v. State of Punjab, (1974) 4 SCC 552 (Sic (2013 AIR SCW 6515 (Para 25)), this Court observed: "26. It is trite that even when exaggerations and embellishments are galore the courts can and indeed are expected to undertake a forensic exercise aimed at discovering the truth. The very fact that a large number of people were implicated in the incident in question who now stand acquitted by the High Court need not have deterred the High Court from appreciating the evidence on record and discarding what was not credible while accepting and relying upon what inspired confidence. That exercise was legitimate for otherwise the Court would be seen as abdicating and surrendering to distortions and/or embellishments whether made out of bitterness or any other reason including shoddy investigation by the agencies concerned. The ultimate quest for the court at all times remains "discovery of the truth" and unless the court is so disappointed with the difficulty besetting that exercise in a given case, as to make it impossible for it to pursue that object, it must make an endeavour in that direction." This Court in State of Punjab v. Hari Singh, (1974) 4 SCC 552 : ( AIR 1974 SC 1168 ), observed as follows: "16. As human testimony, resulting from widely different powers of observation and description, is necessarily faulty and even truthful witnesses not infrequently exaggerate or imagine or tell half truths, the Courts must try to extract and separate the hard core of truth from the whole evidence. This is what is meant by the proverbial saying that Courts must separate "the chaff from the grain". If, after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt the Courts are bound to give effect to the result flowing from it and not throw it overboard on purely hypothetical and conjectural grounds." 16. Thus, it cannot be doubted that it is the duty of the Court to separate the chaff from the grain. Thus, it cannot be doubted that it is the duty of the Court to separate the chaff from the grain. Moreover, minor variations in the evidence will not affect the root of the matter, inasmuch as such minor variations need not be given major importance, inasmuch as they would not materially after the evidence/credibility of the eye witnesses as a whole......." 9(iv). In the backdrop of above legal position, we have seen complete statements of the material witnesses, including PW-1 Sushil Kumar, PW-2 Naresh Kumar, PW-6 ASI Yadav Singh and PW-13 Prabhu Dyal. PW-2 Naresh Kumar is the direct eye witness to the crime and has deposed that he has seen accused beating his wife with wooden block and knife and further that in their (PW-1 and PW-2) presence, accused had thrown deceased Kiran Bala by pulling her from legs and that they had, at that time, seen the victim Kiran Bala seriously injured. It is though correct that PW-1 Sushil Kumar, in his statement, recorded under Section 154 Cr.P.C., had stated that in their presence accused had given beatings to his wife, however, on this particular aspect he had resiled from his statement, while appearing as PW-1. He was accordingly confronted with his such statement Ext.PW-1/A. Nonetheless, this variation will not weaken prosecution case as PW-1 Sh. Sushil Kumar, while appearing as PW-1, has otherwise admitted the entire prosecution case; admitted to accused beating his wife; he has implicated the accused with the murder of Kiran Bala in no uncertain terms by stating that deceased was saved by them (PW-1 and PW-2) from the clutches of the accused; claiming that the accused had proclaimed in their presence that he will kill the deceased; saw the witness deceased lying on the floor in pool of blood with the accused standing there; professing that he has killed his wife and will kill his children and thereafter himself before they got killed by someone else. 9(v). This entire stand is also corroborated by PW-13 Prabhu Dyal also. Therefore, the alleged contradictions pointed out by learned defence counsel are of no significance in the facts and circumstances of the case, more particularly, in view of the statement of PW-2, the eye witness to the alleged occurrence. 10. Medical Examination/Injuries: PW-15 Dr. S.P. Mandal, who conducted the post mortem of deceased Kiran Bala, found antemortem injuries on the body of deceased. 10. Medical Examination/Injuries: PW-15 Dr. S.P. Mandal, who conducted the post mortem of deceased Kiran Bala, found antemortem injuries on the body of deceased. According to him, the injuries, as reflected in his autopsy report, could have been caused by wooden block Ext.P-1 and knife Ext.P-2. In his cross-examination, he stated that deceased was not having any fracture in the skull. The Doctor (PW-15) finally opined that deceased Kiran Bala died due to shock and head injury caused with blunt weapon. Here it is noticeable that defence of the accused is that deceased had fallen from the lintel. 11. Non EXAMINATION OF SON OF THE ACCUSED: 11(i) Learned counsel for the appellant-accused, has contended that the elder son of the accused was a material witness in this case and his non-examination will cause a major dent in the prosecution case. In the peculiar facts and circumstances of the case, in our considered view, non-examination of son of accused will not weaken the prosecution case. 11(ii). True it is, that it was the elder son of the accused, who knocked at the door of PW-2 Naresh Kumar, seeking his help for rescuing his mother from his father, yet, his non-examination has been explained by PW-14 Inspector Ramesh Thakur, in his cross-examination, the relevant portion of which is reproduced below:- "The children of the accused were present in adjoining house when I went to the spot. I met the children on spot. I had enquired from the children but they could not understand since they were small and had some language problem. The children were weeping and were not able to understand my quaries and communicate the reply. It is incorrect that eldest son of accused was aged 9-10 years. Volunteered he was approximately 5-6 years old. The children are not cited as witnesses since they could not understand my quaries." The elder son of the accused was stated to be of approximately 2-3 feet height and aged about 3-4 years by PW-1 Sushil Kumar. As per PW-2 Naresh Kumar, the elder son of the accused was about 3-4 feet in height and aged about 9-10 years. As per PW-14 Ramesh Thakur, the elder son of the accused was approximately 5-6 years of age. Thus, the elder son the accused, being very young and because of inability to comprehend the language, was not examined by the prosecution. The explanation is plausible. As per PW-14 Ramesh Thakur, the elder son of the accused was approximately 5-6 years of age. Thus, the elder son the accused, being very young and because of inability to comprehend the language, was not examined by the prosecution. The explanation is plausible. Even otherwise, the prosecution has been able to prove its case against the accused beyond all reasonable doubt, without the elder son having been cited as witness. 11(iii). The defence has not led any evidence either to prove the age of elder son of accused or his ability to comprehend what was going on and, therefore, could appear as a witness. 11(iv). The statements of witnesses, namely, PW-1 Sushil Kumar, PW-2 Naresh Kumar and PW-13 Prabhu Dyal (eye witnesses), are sufficient to implicate the accused with the alleged offence of murdering his wife without elder son of accused stepping into the witness box. 12. Motive: Another argument raised by learned counsel for the appellant-accused, is that there was no motive for the accused to commit murder of his wife. As per him, the professed case of the prosecution is that accused killed his wife and also wanted to kill his entire family because he received a telephonic call from his native place about elimination of his entire family, therefore, the accused took upon himself the task of eliminating his family before it was accomplished by someone else. Hon'ble Apex Court in Cr. Appeal No.1697 of 2009, titled Sukhpal Singh verus State of Punjab, decided on 12.02.2019, held as under:- "15. The last submission which we are called upon to deal with is that there is no motive established against the appellant for committing murder. It is undoubtedly true that the question of motive may assume significance in a prosecution case based on circumstantial evidence. But the question is whether in a case of circumstantial evidence inability on the part of the prosecution to establish a motive is fatal to the prosecution case. We would think that while it is true that if the prosecution establishes a motive for the accused to commit a crime it will undoubtedly strengthen the prosecution version based on circumstantial evidenced, but that is far cry from saying that the absence of a motive for the commission of the crime by the accused will irrespective of other material available before the court by way of circumstantial evidence be fatal to the prosecution. In such circumstances, on account of the circumstances which stand established by evidence as discussed above, we find no merit in the appeal and same shall stand dismissed." In titled Sanjeev versus State of Haryana, (2015) 4 SCC 387 Hon'ble Apex Court has held as under:- "16. It is settled principle of law that, to establish commission of murder by an accused, motive is not required to be proved. Motive is something which prompts a man to form an intention. The intention can be formed even at the place of incident at the time of commission of crime. It is only either intention or knowledge on the part of the accused which is required to be seen in respect of the offence of culpable homicide. In order to read either intention or knowledge, the courts have to examine the circumstances, as there cannot be any direct evidence as to the state of mind of the accused." In titled Nizam and another versus State of Rajasthan, (2016) 1 SCC 550 Hon'ble Apex Court has held as under:- "12. Based on the evidence of PWs 1 and 2, courts below expressed the view that motive for murder of Manoj was the lust for the money which Manoj was carrying. Courts below based the conviction of the appellants on the circumstances "last seen theory" as stated by PWs 1 and 2 along with recovery of bilty and receipt by PW-6 on which the name of the accused person (Nizam) was printed. The appellants are alleged to have committed murder of Manoj for the amount which Manoj was carrying. But neither the amount of Rs.20,000/- nor any part of it was recovered from the appellants. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to the prosecution case. But even if the prosecution has not been able to prove the motive, that will not be a ground to throw away the prosecution case. Absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution." In the present case also, prosecution has been able to prove its case on record against the accused beyond all reasonable doubt by leading cogent and reliable evidence. Absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution." In the present case also, prosecution has been able to prove its case on record against the accused beyond all reasonable doubt by leading cogent and reliable evidence. Therefore, absence or presence of motive on the part of the accused in killing his wife will not be of any significance in the facts of this particular case. 13. Section 106 OF THE INDIAN EVIDENCE ACT: Mr. Digvijay Singh, learned defence counsel, relying upon titled Murlidhar and others versus State of Rajasthan, (2005) 11 SCC 133 has contended that Section 106 of the Indian Evidence Act, is not attracted in the present case. 13(i). As has observed earlier, Hon'ble Apex Court, vide order dated 25.10.2017, had remanded the matter to this Court, observing therein that aspect relating to Section 106 of the Indian Evidence Act (hereinafter referred to as the "Act" in short) had not been looked into by this Court in its earlier judgment dated 13.10.2014. 13((ii). In the instant case, it is the accused who had taken the plea of alibi and he has projected the theory of his wife having suffered injuries on account of falling from the lintel. The prosecution has established its case in respect of presence of the accused at the place of occurrence and has conclusively implicated the accused in the offence of murder of his wife Kiran Bala. Under these circumstances, Section 106 of the Act definitely gets attracted. Resultantly, it was for the accused to prove and establish his plea of alibi that his wife suffered fatal injuries on account of fall from the lintel, which he failed to do so. 13(iii). In this regard, reference can be made to titled State of Rajasthan versus Thakur Singh, (2014) 12 SCC 211 . Hon'ble Apex Court, in the judgment, held as under:- 15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872.[1] This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. 16. Hon'ble Apex Court, in the judgment, held as under:- 15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872.[1] This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. 16. Way back in Shambhu Nath Mehra v. State of Ajmer this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said: (AIR p.406, para 11). "11. This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not." 17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra, this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p.694, para 22) "22. It was said: (SCC p.694, para 22) "22. 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." 18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra, in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife. 19. Similarly, in Dnyaneshwar v. State of Maharashtra, this Court observed that since the deceased was murdered in her matrimonial home and the appellant had 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. 20. In Jagdish v. State of Madhya Pradesh, this Court observed as follows: (SCC p.503, para 22) "22....It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt." 21. More recently, in Gian Chand v. State of Haryana a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. More recently, in Gian Chand v. State of Haryana a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words: (Mir Mohammad Omar case, SCC p.393, para 35) "35. During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise." 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. 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." In titled Gajanan Dashrath Kharate versus State of Maharashtra, (2016) 4 SCC 604 Hon'ble Apex Court, held as under:- "14. In Trimukh Maroti Kirkan v. State of Maharashtra, it was held as under:- (SCC pp.694-95, para 22). "22. In Trimukh Maroti Kirkan v. State of Maharashtra, it was held as under:- (SCC pp.694-95, para 22). "22. 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. In Nika Ram v. State of H.P., (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. v. Rajendran, (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime. Same view was reiterated by this Court in State of Rajasthan v. Parthu." In titled Harijan Bhala Teja versus State of Gujarat, (2016) 12 SCC 665 Hon'ble Apex Court, held as under:- "19. Section 106 of the Evidence Act, 1872 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death." In titled State of Himachal Pradesh versus Raj Kumar, 2018 2 SCC 69 Hon'ble Apex Court has held as under:- "16. As pointed out by the Sessions Judge, deceased Meena Devi was last seen alive in the company of accused Raj Kumar and the accused did not satisfactorily explain the missing of deceased Meena Devi and the same is a strong militating circumstance against the accused. As pointed out by the Sessions Judge, deceased Meena Devi was last seen alive in the company of accused Raj Kumar and the accused did not satisfactorily explain the missing of deceased Meena Devi and the same is a strong militating circumstance against the accused. Meena Devi who was residing in the same house with the accused and was last seen alive with the accused, it is for him to explain how the deceased died. The accused has no reasonable explanation as to how the body of Meena Devi was found hanging from the tree. As held in Kashi Ram case, it is for the accused to explain as to what happened to the deceased. If the accused does not throw light on the fact which is within his knowledge, his failure to offer any explanation would be a strong militating circumstance against him." 14. In view of the above discussions and observations, we find that the prosecution has been able to prove its case on record against the accused beyond all reasonable doubt. No interference is required in the findings of conviction against the accused returned by learned trial Court. Accordingly, the appeal filed by the appellant-convict, is dismissed and the judgment of conviction passed by learned trial Court against the appellant-convict for committing offence punishable under Section 302 IPC, is upheld. The appeal stands disposed of accordingly, so also the pending miscellaneous applications, if any.