JUDGMENT : J.B. PARDIWALA, J. 1. The present appeal is at the instance of a convict accused for the offence punishable under Section 302 of the Indian Penal Code and is directed against an order of conviction and sentence dated 24th December 2014 passed by the Additional Sessions Judge, Limbdi in the Sessions Case No.115 of 2012. 2. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code, and consequently, sentenced him to suffer life imprisonment with a fine of Rs.10,000/- and in default of payment of fine, to suffer further rigorous imprisonment for the period of one year. CASE OF THE PROSECUTION: 3. The deceased by name Jayshreeba was married to the accused appellant herein. In the wedlock, one son and a daughter was born. It is the case of the prosecution that in the night hours of 19th July 2012, the accused herein committed murder of his wife Jayshreeba on the first floor of their residential house. According to the case of the prosecution, the accused indiscriminately stabbed his wife with a knife all over the body and thereby caused her death. After the incident, the accused is said to have come down and woke up his cousin brother namely Sukhdevsingh Pravinsinh Zala residing bank opposite the house of the accused. After waking up Sukhdevsinh Pravinsinh Zala at 1:30 in the night, the accused is said to have told Sukhdevsinh that he had killed his wife. Saying so, the accused, thereafter, left for the police station. It is the case of the prosecution that the motive behind the crime was the suspicion in the mind of the accused that his wife was living an immoral life. To put it in other words, the accused, as husband, had a doubt with regard to the fidelity of his wife i.e. the deceased. 4. On 19th July 2012, at 5:30 hours in the early morning, Sukhdevsinh Pravinsinh Zala lodged the First Information Report at the Limbdi Police Station. The First Information Report Exhibit : 44 lodged by Sukhdevsinh Pravinsinh Zala reads as under: “Date - 19/07/12 My name is Sukhdevsinh Pravinsinh Zala, age - 31years, occupation - pan shop, resident - Limbadi, Haveli Sheri, Mobile -9924433060. The First Information Report Exhibit : 44 lodged by Sukhdevsinh Pravinsinh Zala reads as under: “Date - 19/07/12 My name is Sukhdevsinh Pravinsinh Zala, age - 31years, occupation - pan shop, resident - Limbadi, Haveli Sheri, Mobile -9924433060. I state the fact of my complaint that, I reside at the above mentioned place and I run a pan shop. We are three brothers. Among them, Mahendrasinh is the eldest and he lives on the upper floor of our house. He has a daughter namely Nidhiba, age - 12 yrs. and a son namely, Vishwarajsinh age - 10 yrs. I and my wife live on the ground floor along with my parents. We, brothers live separately. My second brother Bharatsinh lives in Limbadi near Lal Bunglow. My brother Mahendrasinh got married with Jayshreeba D/o Rambha Devisinh Rathod at Dhrangadhra fourteen years ago. In the wedlock, a daughter and a son was born. They live on the upper floor of our house. My brother Mahendrasinh woke me up at around 1: 30 hours in the night by knocking my door after coming down. Therefore, I and my parents woke up and opened the door. We saw that Mahendrasinh had suffered injuries on his hand and was bleeding from the wound. Mahendrasinh told us that, he had killed his wife by inflicting knife blows and his children are sleeping in another room. Further, he stated that I am going to the police station. Thereafter, he left the house. Thereafter, I and my father went to the upper floor and we saw that my sister-in-law Jayshreeba was lying in bleeding condition. Thereafter, I made a phone call to the police station, and as the police came, I lodged my complaint against my brother Mahendrasinh before the police. My brother often used to quarrel with my sister-in-law as he had doubt regarding her character. Therefore, my brother became aggressive and killed her by inflicting knife blows. There is no any other reason.” 5. On the strength of the F.I.R. lodged by Sukhdevsinh Pravinsinh Zala, the investigation commenced. The inquest panchnama Exhibit : 20 was drawn in presence of the two panch witnesses. The dead body was sent for postmortem examination and the postmortem report revealed that the deceased had sustained fifteen stab injuries on front part of her body and five stab injuries on the rear part of her body. The inquest panchnama Exhibit : 20 was drawn in presence of the two panch witnesses. The dead body was sent for postmortem examination and the postmortem report revealed that the deceased had sustained fifteen stab injuries on front part of her body and five stab injuries on the rear part of her body. There was one one incised wound on her face. The cause of death assigned in the postmortem report Exhibit : 17 was “hemorrhagic shock” on account of multiple injuries all over the body. The scene of offence panchnama Exhibit : 32 was drawn in presence of the two panch witnesses. The clothes of the deceased stained with blood were collected and sent for chemical analysis to the F.S.L. The bloodstained clothes of the deceased were collected by drawing a panchnama Exhibit : 40. The accused was sent for medical examination and the medical certificate Exhibit : 22 was issued by the Doctor as regards the injuries noticed on the body of the accused. The accused, on his own, surrendered himself before the police and handed over the weapon used in the commission of the offence as well as the clothes worn by him at the time of the commission of the offence. The police collected the weapon as well as the clothes by drawing a panchnama Exhibit : 35 in presence of the two panch witnesses. The accused was, thereafter, arrested at 12:15 hours of 19th July 2012. The officials of the Foreign Science Laboratory visited the place of occurrence and prepared a report Exhibit : 65 in that regard. 6. Finally, a charge-sheet was filed against the accused in the Court of the Additional Chief Judicial Magistrate, Limbdi. As the case was exclusively triable by the Sessions Court, the Additional Chief Judicial Magistrate committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure, 1973. On committal, the case came to be registered as the Sessions Case No.115 of 2012. 7. The Sessions Court framed the charge against the accused at Exhibit : 11 and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried. 8. The prosecution adduced the following oral evidence in support of its case: Name of the prosecution witnesses Exhibit Dr. 7. The Sessions Court framed the charge against the accused at Exhibit : 11 and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried. 8. The prosecution adduced the following oral evidence in support of its case: Name of the prosecution witnesses Exhibit Dr. Parul Hasmukh Jadav 16 Girishkumar Ramniklal Rojasara 26 Merabhai Bhavanbhai Bharvad 28 Gitaben Nileshbhai 29 Vaghela Atulbhai Laljibhai 31 Gohil Virbhadrasinh Mahavirsinh 33 Jayeshbhai Chaturbhai 34 Dhudabhai Kehabhai Bharvad 36 Viralbhai Jayantilal Shah 39 Makwana Mustufabhai Rasulbhai 42 Complainant Sukhdevsinh Pravinsinh Zala 43 Pravinsinh Gumansinh 47 Bhupendrasinh Harisinh Rathod 50 Dakshaba Sukhdevsinh 51 Girdharlal Jivabhai Chauhan 52 Pandya Jayeshbhai Prahladbhai 53 Hansaba Kishorsinh 54 Kishorsinh Karansinh 55 Bharatsinh Pravinsinh 56 P.S.O. Natvarsinh Motimiya Parmar 57 Investigating Officer Hareshkumar Jashvantlal Bhatt 61 9. The following pieces of documentary evidence were adduced by the prosecution: P.M. Report 17 Police Yadi for carrying out the P.M. 18 Office copy of the written letter at the time of returning samples before sending the blood of the deceased to the F.S.L. of 19 Inquest panchnama 20 Original postmortem form Exhibit: 20 21 Injury certificate of the accused 22 Police yadi 23 Cash paper 24 Letter of the Original case of the samples of blood handed over to the police 25 Inquest panchnama 27 Panchnama of the place of offence 32 Seizure panchnama of the weapon and clothes which were used in the commission of the crime 35 10. After completion of the oral as well as the documentary evidence of the prosecution, the statement of the accused under Section 313 of the Cr.P.C. was recorded, in which the accused stated that the complaint was a false one and he is innocent. 11. At the conclusion of the trial, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 of the I.P.C. and sentenced him, as stated hereinbefore. 12. Being dissatisfied, the accused appellant has come up with the present appeal. CONTENTIONS ON BEHALF OF THE ACCUSED APPELLANT: 13. Mr. Aamir Pathan, the learned counsel appearing for the appellant submitted that the Trial Court committed a serious error in holding the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code. Mr. 12. Being dissatisfied, the accused appellant has come up with the present appeal. CONTENTIONS ON BEHALF OF THE ACCUSED APPELLANT: 13. Mr. Aamir Pathan, the learned counsel appearing for the appellant submitted that the Trial Court committed a serious error in holding the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code. Mr. Pathan laid much emphasis on the fact that all the witnesses examined by the prosecution to establish the guilt of the accused resiled from their police statements and have been declared hostile. Mr. Pathan submitted that the prosecution has not been able to lead as iota of evidence on the basis on which it could be said that it was the appellant herein, who committed the murder of his wife at 1:30 hours in the night on the first floor of their residence. It is submitted that the original first informant PW 11 Sukhdevsinh Zala also turned hostile. The prosecution wanted to prove the First Information Report, more particularly, to bring into evidence the extra-judicial confession alleged to have been made by the accused before PW 11 Sukhdevsinh. Such evidence has not come on record as the PW 11 Sukhdevsinh did not support the case of the prosecution. Mr. Pathan submitted that each and every panch witness failed to support the case of the prosecution and have been declared as hostile witnesses. It is submitted that on the date of the incident i.e. on 19th July 2012, the accused was not present at his house, as he was at Gandhidham. It has been vociferously submitted that the appellant, at the relevant point of time, was serving in one company at Gandhidham. The appellant was informed about the incident by the PW 11 Sukhdevsinh Zala and that is how the appellant came to know about the assault on his wife. According to Mr. Pathan, the Trial Court failed to consider the plea of alibi raised by the appellant in its true perspective. It is submitted that the conviction of the appellant is only on the basis of suspicion and howsoever strong suspicion may be, the same cannot take the place of proof. The prosecution is obliged to prove the guilt of the accused beyond reasonable doubt. In the last, Mr. It is submitted that the conviction of the appellant is only on the basis of suspicion and howsoever strong suspicion may be, the same cannot take the place of proof. The prosecution is obliged to prove the guilt of the accused beyond reasonable doubt. In the last, Mr. Pathan submitted that the Trial Court ought not to have convicted the appellant only on the strength of the evidence of the Investigating Officer. 14. Mr. Pathan, the learned counsel has placed strong reliance on a recent pronouncement of the Supreme Court in the case of Reena Hazarika vs. State of Assam reported in AIR 2018 SC 5361 . Mr.Pathan has placed reliance on this judgment of the Supreme Court to fortify his submission that the Trial Court should have considered the defence of the accused in the form of his plea of alibi. Mr. Pathan has placed reliance on the observations made by the Supreme Court, as contained in paras 16 and 17 of the judgment. Paras 16 and 17 read as under: “16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory-right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word ‘may’ cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing. 17 Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 Cr.P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinabove. The complete non-consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in Hate Singh Bhagat Singh vs. State of Madhya Bharat, AIR 1953 SC 468 observing as follows: “26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess, the evidence in an appeal here, but because there has been in this case a departure from the rule that when an accused person puts forward a reasonable defence which is likely to be true,........then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit......... A similar view is expressed in M. Abbas vs. State of Kerala, (2001) 10 SCC 103 as follows: “10....On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement recorded under Section 313 CrPC is quite plausible. A similar view is expressed in M. Abbas vs. State of Kerala, (2001) 10 SCC 103 as follows: “10....On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement recorded under Section 313 CrPC is quite plausible. Where an accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities....” 15. Mr. Pathan has placed reliance on the decision of the Supreme Court in the case of Sk. Yusuf vs. State of West Bengal reported in AIR 2011 SC 2283 . By placing reliance on this judgment, the learned counsel submitted that even if the PW 11 Sukhdevsinh would have deposed before the Court as regards the extra-judicial confession alleged to have been made by the accused before him, the same would not have been sufficient to convict the accused as extra-judicial confession by itself is a very weak type of evidence. 16. Mr. Pathan submitted that as the prosecution could not be said to have proved its case against the accused beyond reasonable doubt, the appeal merits consideration and the order of conviction and sentence be set aside. SUBMISSIONS ON BEHALF OF THE STATE: 17. Mr. Ronak Raval, the learned Additional Public Prosecutor appearing for the State submitted that the Trial Court rightly recorded the findings of guilt of the accused for the offence of murder punishable under Section 302 of the Indian Penal Code by placing reliance on the circumstantial evidence on record. Mr. Raval submitted that just because, all the panch witnesses turned, that by itself, is not sufficient to discard the evidence with regard to the various panchnamas drawn in the course of the investigation. The learned A.P.P. submitted that the Investigating Officer, in his evidence, has clearly deposed as regards the panchnamas, which were drawn in presence of the panch witnesses. Mr. Raval submitted that all the witnesses attributed the commission of the offence only to the appellant in their statements under Section 161 of the Cr.P.C. It is difficult to imagine that the first informant and the witnesses have falsely named the appellant as being the person responsible for the offence at the initial stage itself. Mr. Mr. Raval submitted that all the witnesses attributed the commission of the offence only to the appellant in their statements under Section 161 of the Cr.P.C. It is difficult to imagine that the first informant and the witnesses have falsely named the appellant as being the person responsible for the offence at the initial stage itself. Mr. Raval vehemently submitted that all the witnesses could be said to have been won over by the accused appellant. 18. The learned A.P.P. further submitted that the appellant has miserably failed to prove his plea of alibi. He submitted that not an iota of evidence has been led by the appellant to substantiate his plea of alibi. On the contrary, the false plea of alibi raised by the appellant is one additional circumstance going against him. The entire defence put forward by the accused appellant is falsified by the circumstantial evidence on record. 19. The learned A.P.P. submitted that the incident had actually occurred inside the house i.e. on the first floor of the house where the accused and his deceased wife were residing at the relevant point of time with their two minor children. The inquest panchnama drawn by the Executive Magistrate, in presence of the panch witnesses, establishes that the dead body of the deceased was lying on the bed of the first floor of the house. However, the defence went to the extent of introducing a false story that the had incident occurred in the early morning outside the house somewhere in the locality. 20. The learned A.P.P. submitted that the conduct of the appellant also deserves to be looked into for the purpose of determining his guilt. The Investigating Officer, in his evidence, has deposed that the accused, on his own, came at the police station with the knife and clothes worn by him at the time of the incident and surrendered himself. The weapon used in the offence i.e. the knife as well as the clothes were collected by drawing a panchnama, and thereafter, the same were forwarded to the Forensic Science Laboratory for the Serological Test. Mr. Raval, the learned A.P.P., in the last, submitted that once the accused fails to prove his plea of alibi, then, in such circumstances, an inference can be drawn that the appellant, being the husband, was in company of his wife in the night hours. Mr. Raval, the learned A.P.P., in the last, submitted that once the accused fails to prove his plea of alibi, then, in such circumstances, an inference can be drawn that the appellant, being the husband, was in company of his wife in the night hours. He also submitted that there was a strong motive behind the commission of the crime, as the appellant had doubt as regards the fidelity of his wife. 21. In such circumstances referred to above, Mr. Raval would submit that there being no merit in this appeal, the same may be dismissed and the order of conviction and sentence be upheld. ANALYSIS: 22. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our determination in this appeal is whether the Trial Court committed any error in findings the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code. 23. We first propose to consider the medical evidence on record so as to satisfy ourselves that the accused had inflicted injuries with a knife on the body of the deceased is in consonance with the case put up by the prosecution. The prosecution has examined the PW 1 Dr. Parul Hasmukhbhai Jadhav Exhibit : 16 to prove the postmortem report. The PW 1 Dr. Jadhav, in her evidence, has deposed that on 19th July 2012, she was on duty as a Medical Officer at Limbdi. At that time, a dead body of one lady by name Jayshreeba Jayendrasinh Zala was brought at the hospital with a police yadi for the purpose of postmortem. The PW 1 along with Dr. Sumeru A. Shah, while performing the postmortem, noted the following injuries on the body of the deceased: “Total 21 injuries on face and body viz. (15) - stab injuries on front part of the body (05) - stab injuries on back part of the body (01) - incised injury on face The site and description are attached in separate paper. 21 injuries on right elbow. Stab injury of 1.2 x 0.4 x 0.7 cm.” Fracture of 6th Rib coinciding with the 16 on ventral part. (15) - stab injuries on front part of the body (05) - stab injuries on back part of the body (01) - incised injury on face The site and description are attached in separate paper. 21 injuries on right elbow. Stab injury of 1.2 x 0.4 x 0.7 cm.” Fracture of 6th Rib coinciding with the 16 on ventral part. (1) stab injury of 1.5 x 0.3 x 1 cm at junction of thoracic and left under limb (2) stab injury of 1.2 x 0.5 x 2 cm at junction of thoracic and right upper limb (3) stab injury of 1.0 x 0.5 x 0.9 cm at bone of neck (4) stab injury of 0.9 x 0.5 x 1.5 cm at mid clavicular line in 3rd intercostal space (5) stab injury of 0.7 x 0.2 x 0.8 cm at junction of middle and lower 1/3 of sternal line (6) stab injury of 1.2 x 0.6 x 1.8 cm Right 7th Rib at Anterior axillary line (7) stab injury of 0.9 x 0.2 x 2 cm at epigastric area (8) stab injury of 0.9 x 0.2 x 0.8 cm at left hypochondrium (9) stab injury of 1.1 x 0.3 x 1 cm at left lumbar region (10) stab injury of 0.8 x 0.4 x 1.2 cm at left lumbar and iliac region [11 stab injury of 0.9 x 0.5 x 2 cm just above junction of miculus (12) stab injury of 0.8 x 0.5 x 1 cm - 5 cm below and 1 cm lateral umbilical (13) stab injury of 1.2 x 0.5 x 1 cm - 1 cm below umbilical right (14) stab injury of 2.5 x 0.8 x 1.2 cm at inguinal region (15) stab injury of 2 x 0.4 x 1 cm on right lumbar region.” (1) stab injury of 0.5 x 0.2 x 0.4 cm at 1 cm medial left side to posterior axillary line (2) stab injury of 0.6 x 0.2 x 0.3 cm at 0.6 cm medial left side in 5th intercostal space to posterior axillary line (3) stab injury of 2.5 x 0.5 x 1.2 cm at junction of left side in 7th intercostal space to lower limb and Andonery (4) stab injury of 2.1 x 0.2 x 1.5 cm at 8 cm below left medial intercostal space to left thigh (5) stab injury 1.5 x 0.5 x 1.1 cm at Right 7th intercostal space just 1.5 cm medial to right Artery axillary. “ Single Incised wound 9 cm x 0.8 x 0.6 cm size extending from upper lip middle part to 3 cm lateral to right outer angle of eye. “6th Rib having fracture at mid axillary line coinciding with ventral part (16) on ventral part. (25) having underlying sternal abrasion marks bone Right lung having stab injury of 0.8 x 0.1 x 0.3 cm coinciding with I3 on ventral part. “ “Heart stab injury on left ventricle of 0.6 x 0.2 x 0.5 cm size.” 24. The cause of death assigned in the postmortem report Exhibit : 17 prepared by Dr. Jadhav was “hemorrhagic shock” due to multiple stab injuries on the body. Dr. Jadhav, in her evidence, further deposed that the injuries sustained by the deceased were possible by a sharp cutting weapon i.e. the muddamal article No.5 (knife). Dr. Jadhav has deposed that the injuries mentioned in column No.17 of the postmortem note were possible by such knife. Dr. Jadhav also deposed that due to profusely bleeding, the deceased must have gone in hemorrhagic shock resulting in her death. Dr. Jadhav, in her evidence, has also deposed that on the same day and date i.e. on 19th July 2012 at 8: 50 hours in the night, the appellant herein was brought at the hospital for medical examination with police yadi. In the course of the Examination-in-Chief of Dr. Jadhav, the Public Prosecutor tried to inquire from Dr. Jadhav the history, if any, given by the appellant at the time of his medical examination. It appears that at that stage, the defence counsel raised an objection as regards the injuries suffered by the appellant on the premise that any statement made by the accused before the doctor in the form of history would be hit by Sections 24, 25, 26 and 27 of the Evidence Act and would not be admissible in evidence. It appears that the Trial Court upheld such objection raised by the defence and did not permit the Public Prosecutor to bring such evidence on record. We may say that the Trial Court was not justified in upholding such objection raised by the defence at the relevant point of time. We shall deal with this issue at a little later stage in our judgment. 25. In the cross-examination of Dr. Jadhav, various suggestions have been put. However, by and large, all such suggestions have been denied. We may say that the Trial Court was not justified in upholding such objection raised by the defence at the relevant point of time. We shall deal with this issue at a little later stage in our judgment. 25. In the cross-examination of Dr. Jadhav, various suggestions have been put. However, by and large, all such suggestions have been denied. The defence tried to cross-examine Dr. Jadhav on the line that having regard to the number of injuries suffered by the deceased, more than one weapon might have been used. To put it in other words, the possibility of use of more than one weapon for the purpose of inflicting injuries cannot be ruled out. Dr. Jadhav, in her cross-examination, admitted that the injuries suffered by the deceased could be caused on account of friction with a rough surface. However, Dr. Jadhav, in her cross-examination, has maintained that the injuries could have been caused by the weapon, which was shown to her i.e. the muddamal article No.5. From the overall cross-examination of PW 1 Dr. Jadhav by the defence, nothing substantial could be elicited so as to render the testimony of Dr. Jadhav doubtful in any manner. 26. Thus, from the medical evidence on record, it is established that the deceased had sustained more than twenty two stab injuries caused by a sharp cutting weapon like knife including one stab injury in the heart and right lung. The deceased had also sustained fracture of the sixth rib. 27. The above takes us to consider the evidence of the other witnesses examined by the prosecution. The prosecution examined PW 2 Girish Ramniklal Rojasara Exhibit : 26 as one of the panch witnesses to the inquest panchnama Exhibit : 27. However, the PW 2 did not support the case of the prosecution and was declared as a hostile witness. 28. The prosecution examined PW 3 Merabhai Bhavanbhai Bharvad Exhibit : 28 as one of the panch witnesses of the inquest panchnama Exhibit : 27. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 29. The prosecution examined PW 4 Gitaben Nileshbhai Exhibit : 29. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 30. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 29. The prosecution examined PW 4 Gitaben Nileshbhai Exhibit : 29. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 30. The prosecution examined PW 5 Atulbhai Laljibhai Vaghela Exhibit : 31 as one of the panch witnesses of the panchnama of the place of the incident. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 31. The prosecution examined PW 6 Virbhadra Mahavirsinh Gohil Exhibit : 33 as one of the panch witnesses of the panchnama of the place of the incident. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 32. The prosecution examined PW 7 Jayeshbhai Chaturbhai Exhibit : 34 as one of the panch witnesses to the arrest panchnama Exhibit : 35. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 33. The prosecution examined PW 8 Dhudabhai Kehabhai Bharvad Exhibit : 36 as one of the panch witnesses to the arrest panchnama Exhibit : 35. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 34. The prosecution examined PW 9 Viralbhai Jayatilal Shah Exhibit : 39 as one of the panch witnesses to the clothes of the deceased Exhibit : 41. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 35. The prosecution examined PW 10 Mustufabhai Rasulbhai Makwana Exhibit : 42 as one of the panch witnesses to the clothes of the deceased Exhibit : 41. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 36. The prosecution examined PW 11 Sukhdevsinh Pravinsinh Zala Exhibit : 43 for the purpose of proving the First Information Report. The PW 11, although admitted his signature on the First Information Report Exhibit : 44, yet outright denied having lodged any such F.I.R. at the police station. The PW 11 Sukhdevsinh is the cousin brother of the appellant. He has deposed that he is residing at Limbdi and is engaged in the business of cotton. The PW 11, although admitted his signature on the First Information Report Exhibit : 44, yet outright denied having lodged any such F.I.R. at the police station. The PW 11 Sukhdevsinh is the cousin brother of the appellant. He has deposed that he is residing at Limbdi and is engaged in the business of cotton. He has deposed that the appellant happens to be his cousin brother. According to him, he is residing on the ground floor of the house situated exactly opposite the house of the appellant. We are of the view that the PW 11, not only resiled from his First Information Report, but thoroughly tried to mislead the Court by his false deposition. He has deposed that the incident had occurred at around 8 o’clock in the morning. According to him, his wife heard shouts and screams coming from the side of the public road and that is how his wife woke him up. The PW 11 came outside his house and saw that his sister-in-law (deceased) was lying on the road bleeding profusely and was struggling with life. The PW 11 inquired with his sister-in-law (deceased) as to what had happened. The sister-in-law i.e. the deceased is said to have stated before the PW 11 that one unidentified person wearing black clothes came and inflicted injuries and thereafter ran away. He has deposed that sometime later, she became unconscious. In the meantime, someone informed the police between 9 and 10 o’clock, The police arrived at the place of the incident. He has also deposed that he had narrated before the police what was told to him by the deceased. The police then called for a car and took his sister-in-law Jayshreeba to the hospital. The PW 11 also accompanied the police. On reaching the Limbdi Government Hospital, the sister-in-law was declared dead. The PW 11 was shown the original First Information Report from the record of the case. He admitted his original signature on the First Information Report. Thereafter, he has deposed that the incident had not occurred in the night hours. He also denied that while he was sleeping in the night, the accused had knocked the door of his house. He also denied that it was the accused who had knocked the door and on opening the door, he noticed that the appellant had sustained injury on his hand and was bleeding. He also denied that while he was sleeping in the night, the accused had knocked the door of his house. He also denied that it was the accused who had knocked the door and on opening the door, he noticed that the appellant had sustained injury on his hand and was bleeding. He also denied the accused disclosing before him that he had killed his wife with a knife. In such circumstances, the Public Prosecution had to request the Trial Court to declare the PW 11 as a hostile witness. On being declared as a hostile witness, the Public Prosecutor cross-examined the PW 11. The PW 11 also came to be cross-examined by the defence counsel. The PW 11, in his cross-examination, deposed that it was true that he was woken up by his wife on hearing the commotion on the road and having come out on the road, he saw the deceased lying over there bleeding profusely. The PW 11 further deposed that it was true that he informed his cousin brother i.e. the appellant on phone about the incident. According to the PW 11, his cousin brother was at Gandhidham. He has deposed that his brother reached home at about 5:00 hours in the evening. He has deposed that while he was talking with his cousin brother, the police arrived and took him at the police station. 37. The prosecution examined PW 12 Pravinsinh Gumansinh Exhibit : 47. The PW 12 is the father of the PW 11 Sukhdevsinh. The PW 12 also did not support the case of the prosecution and was declared as a hostile witness. The PW 12 has deposed almost on the line of the deposition of his son PW 11 Sukhdevsinh. 38. The prosecution examined PW 13 Bhupendrasinh Harisinh Rathod Exhibit : 50. The PW 13 happens to be one of the relatives of the deceased. However, the PW 13 also did not support the case of the prosecution and was declared as a hostile witness. The PW 13, in his cross-examination by the defence counsel, deposed that the relations of the appellant with his wife Jayshreeba (deceased) were cordial and they never used to quarrel. He has deposed that the marital life of his brother-in-law i.e. the appellant and his sister-in-law i.e. the deceased was quite happy. 39. The prosecution examined PW 14 Dakshaba Sukhdevsinh Exhibit : 51. He has deposed that the marital life of his brother-in-law i.e. the appellant and his sister-in-law i.e. the deceased was quite happy. 39. The prosecution examined PW 14 Dakshaba Sukhdevsinh Exhibit : 51. She is the wife of PW 11 Sukhdevsinh. This witness also turned hostile. She has also deposed almost on the same line with that of her husband PW 11 Sukhdevsinh. The PW 14, in her crossexamination, has deposed that on the date of the incident, she heard lot of commotion on the street at around 8 o’lock in the morning. On coming out of the house, she saw that the wife of the appellant herein was struggling with life and bleeding profusely. The PW 14, thereafter, woke up her husband i.e. the PW 11 Sukhdevsinh and informed about the same. 40. The prosecution examined PW 15 Girdharlal Jivabhai Chauhan Exhibit : 52. This witness happens to the neighbour of the appellant. This witness did not support the case of the prosecution and was declared as a hostile witness. 41. The prosecution examined PW 16 Jayeshbhai Prahladbhai Pandya Exhibit : 53. This witness happens to be the neighbour of the appellant. This witness also turned hostile. 42. The prosecution examined PW 17 Hansaba Kishorsinh Exhibit : 54. This witness is the sister of the deceased. This witness also did not support the case of the prosecution and was declared as a hostile witness. 43. The prosecution examined PW 17 Kishorsinh Karansinh Exhibit : 55. This witness is the brother-in-law of the deceased. However, this witness also did not support the case of the prosecution and was declared as a hostile witness. 44. The prosecution examined PW 18 Bharatsinh Pravinsinh Exhibit : 56. He is the elder brother of the PW 11 Sukhdevsinh. He also turned hostile and did not support the case of the prosecution. 45. The prosecution examined PW 19 Natvarsinh Motimiya Parmar Exhibit : 57. This witness at the time of the incident was serving as a P.S.O. This witness has deposed that the PW 11 Sukhdevsinh Pravinsinh had lodged the F.I.R. before the Police Sub Inspector Shri H.J. Bhatt as regards the appellant inflicting injuries with a knife on his wife on account of the doubt in his mind as regards the character of his wife. The PW 19 has deposed that the F.I.R. was noted down and registered as I-C.R. No.82/14 for the offence punishable under Section 302 of the I.P.C. The PW 19 has also deposed that the F.I.R. was registered at 5:30 hours in the early morning. This witness, in his crossexamination, has admitted that the first informant had not dictated the F.I.R. in his presence. The PW 19 denied the suggestions put to him that the date and time of the incident was wrongly stated in the F.I.R. as well as in the station diary. 46. The prosecution examined PW 20 Maheshwariba Bharatsinh Zala Exhibit : 59. This witness is one of the sisters of the deceased. She has deposed that she learnt that her sister namely Jayshreeba had been murdered by her husband i.e. the appellant herein. 47. In the last, the prosecution examined PW 21 Hareshkumar Jashvantray Bhatt Exhibit : 61. This witness is the Investigating Officer. The PW 21, in his evidence, has given more than a fair idea as regards the entire investigation carried out by him of the offence. He has deposed as regards the various panchnamas drawn in presence of the panch witnesses. 48. Having regard to the fact that practically, all the witnesses examined by the prosecution turned hostile and the prosecution has been left only with the evidence of the Investigating Officer, we would like to reproduce the entire Examination-in-Chief of the PW 21 as under: “Exh.61 Deposition of the Prosecution Witness no.21 My Name Religion Age about Occupation Residence I do hereby on solemn affirmation state that : Hareshkumar Jashvantray Bhatt : Hindu : 47years : PSI : Mithapur, Dwarka. Administered the Oath :- Examination in Chief by Ld. A.P.P. Shri N.D. Karia. (1) On 19/07/2012, I was performing my duty at Limbdi Police Station. At that time, at about 3 o’clock in the night, when I was sleeping at my house, PSO, Limbdi Police Station informed me that ‘‘Sukhdevsinh Pravinsinh Zala residing at Limbdi Haveli Street telephoned and informed that his brother Mahendrasinh has killed his wife’’. We reached Limbdi Haveli Street immediately at the house of Sukhdevsinh Zala. Sukhdevsinh informed that my brother Mahendrasinh has killed my sister-inlaw and her dead body is lying in the room located on upper floor. Thereafter, we sent yaadi to the Executive Magistrate to fill up the inquest. We reached Limbdi Haveli Street immediately at the house of Sukhdevsinh Zala. Sukhdevsinh informed that my brother Mahendrasinh has killed my sister-inlaw and her dead body is lying in the room located on upper floor. Thereafter, we sent yaadi to the Executive Magistrate to fill up the inquest. As he arrived, he called the panch witnesses and filled the inquest. And, we filled the Marnottar Form and sent the dead body to CHC Limbdi for PM with yaadi. I recorded the complaint of Sukhdevsinh Pravinshinh Zala residing at Limbdi and forwarded it to the Police Station for registration. PSO registered the offence as Limbdi Police Station I.C.R. No.82/12 and handed over its further investigating to me. Thereafter, I drew the panchnama of the place of occurrence in the presence of panch Atulbhai Laljibhai Vaghela and Virendrasinh Mahavirsinh Gohil between 07:30 and 09:00 hrs. In addition to this, I recorded the statements of witness Pravinsinh Gumansinh Zala, Sonalba w/o Pravinsinh Zala, Daxaba @ Nishaba Sukhdevsinh Zala, Hansaba w/o Kishorsinh Karansinh Gohil, Bhupendrasinh Harisinh Rathod and Kishorsinh Karansinh Gohil as dictated by them. Thereafter, at 10:45 hrs, as the accused Mahendrasinh Pravinsinh arrived at Limbdi Police Station and produced the knife used in the offence and the clothes, the knife used in the offence and the clothes were seized vide seizure panchnama in the presence of panch Jayesh Chaturbhai Raval and Ghudabhai Kehabhai Bhuva. The accused was arrested at 12:15 hrs. Moreover, the photograph and the fingerprints of the accused were obtained. Details of the incident were obtained tactfully from the accused. Thereafter, I recorded the statements of witness Bharat Chhaganbhai Soneji, Girdharlal Jivabhai Chauhan, Dipubha Gumansinh Zala, Kantilal Harjivandas Sanghvi all residing at Limbdi. Thereafter, when police constable Miteshbhai Anilbhai produced clothes and blood sample of the deceased collected by doctor during post mortem, the same were seized in presence of pancha witnesses Viralbhai J. Shah and Mustufa Rasulmiya from 16:15 to 17:15. Moreover, he also produced blood sample of the accused, it was seized vide panchanama from 17:05 to 17:35 and separate muddamal receipts were issued. Moreover, statement of Jayeshbhai Prahladbhai Pandya, brother by religion of the deceased, was recorded. Statements of Bhartiben w/o Lalabhai Dudhrejiya, Bharatsinh Pravinsinh Zala, Maheshvariben w/o Bharatsinh Zala were recorded. Seized muddamal and PM note were received and were forwarded to FSL with yaadi. Moreover, statement of Jayeshbhai Prahladbhai Pandya, brother by religion of the deceased, was recorded. Statements of Bhartiben w/o Lalabhai Dudhrejiya, Bharatsinh Pravinsinh Zala, Maheshvariben w/o Bharatsinh Zala were recorded. Seized muddamal and PM note were received and were forwarded to FSL with yaadi. Meanwhile, I was transferred from Limbdi police station to Ahmedabad police station on 29/08/2012 and further investigation of the case was handed over to PSI M.B. Khileri. Inquest panchanama drawn during my investigation is produced at Ex.27. Police report filed regarding examination of dead body of deceased Jayshriba Mahendrasinh is produced at Mark-3/2. It bears my signature. It is assigned Exhibit-62. Thereafter, I had sent forwarding letter to Medical Officer, Limbdi to perform PM of the dead body. The said forwarding letter is produced vide Mark-3/3. It bears my signature. It is assigned Exhibit-63. The receipt for handing over the dead body was issued by Bhupendrasinh Harisinh Rathod and it bears his signature as well as my signature. It is produced vide Mark-3/4. It is assigned Exhibit-64. Thereafter, Panchanama of scene of occurrence was drawn. The said Panchanama is produced vide Ex-32. Thereafter, site examination of scene of occurrence was carried out by FSL. The report of the site examination is produced vide Mark-3/6. It is assigned Exhibit-65. Thereafter, the accused produced the weapon used in the offence and clothes and its seizure Panchanama was drawn in presence of two pancha witnesses. It is produced vide Ex-35. Moreover, clothes of deceased Jayshriba Mahendrasinh worn at the time of occurrence were seized in presence of two panchas. The said Panchanama is produced vide Ex.40. Post mortem of the deceased Jayshriba Mahendrasinh was performed in hospital and her medical samples were obtained during PM. A letter regarding this was sent to me. The said letter is produced vide Mark-3/9. It is assigned Exhibit-66. Thereafter, blood sample of the accused was seized vide Panchanama. The said panchanama is produced vide Ex-41. Blood sample of the accused was collected by Medical Hospital, Limbdi. The said medical samples were sent to me along with a letter. The said letter is produced vide Mark-3/11. It is assigned Exhibit-67. The accused also sustained injuries during scuffle at the time of occurrence. Therefore, he was also sent to hospital for medical examination on 03/08/2012. The Medical Certificate in this regard is produced vide Ex-22. PM report of the deceased is produced vide Ex-17. The said letter is produced vide Mark-3/11. It is assigned Exhibit-67. The accused also sustained injuries during scuffle at the time of occurrence. Therefore, he was also sent to hospital for medical examination on 03/08/2012. The Medical Certificate in this regard is produced vide Ex-22. PM report of the deceased is produced vide Ex-17. Forwarding letter for forwarding muddamal to FSL and letter of authority are produced vide Mark-3/14 and they bear my signature. It is assigned Exhibit-68. I was intimated about the occurrence by PSO and station diary entry no.2/12 was registered in this regard at 04:10 hrs. Certified copy of extract of the Station Diary is produced vide Mark-10/1 and it bears signature of PSI, Limbdi. I identify the same. It is assigned Exhibit-69. Telephone wardhy given to me by PSO and extract of register is produced vide Mark-10/2. It bears signature of PSO, Limbdi. It is assigned Exhibit-70. I sent yaadi to Executive Magistrate, Limbdi to draw inquest panchanama and it is produced at Mark-10/3. It is assigned Exhibit-71. I sent report to PSO regarding arrest of the accused. It is produced vide Mark-10/4. It is assigned Exhibit-72. I sent yaadi to Medical Officer, Limbdi to collect blood sample of the accused and for treatment. The said yaadi is produced vide Mark-10/5. It bears my signature. It is assigned Exhibit-73. PSO made Entry No.14/2012 in the Station Diary pursuant to arrest report of the accused submitted by me. Its certified copy is produced vide Mark-10/8. It is assigned Exhibit-74. I got six photographs of deceased Jayshriba clicked at the time of occurrence. They are produced vide Mark-3/20. Cross-examination by Ld. Advocate Shri K.D. Udhreja for accused person. Adjourned as adjournment application was given by Advocate for the accused person. Date: 17/9/2014 Before me, Sd/- Illegible Additional Sessions Judge, Limbadi Sessions Case No. 115/2012 Exhibit-61 Administered the oath. Cross-examination: Ld. Advocate Shri A.G. Bhardhwaj on behalf of the accused person. It is not true that during the time I was performing my duty at Limbadi Police Station on 19/7/2012, at about three o’clock at night, when I was sleeping at my home, a phone call came from the PSO of Limbadi Police Station stating that a phone call has come from Sukhdevsinh Pravinsinh Zala residing in Limbadi Haveli Sheri that his brother Mahendrasinh has killed his wife. As I immediately rushed to the house of Sukhdevsinh Zala in Limbadi Haveli Sheri, Sukhdevsinh stated that my brother Mahendrasinh has killed my bhabhi and her dead body is lying upstairs in the room. Even though any such incident did not take place at the time stated by me and even though the person as stated by me has not stated such fact, I falsely state such fact in the Court. It is not true that I immediately called the Magistrate by sending a Yadi for filling up the Inquest. As he came, he filled the Inquest by calling the Panchas before him and I filled up Marnottar Form and we sent the dead body to CHC Limbadi along with Yadi for performing P.M. During this time, I recorded complaint of Sukhdevsinh Pravinsinh Zala, residing at Limbadi before me regarding this incident and I sent the same to the Police Station for registering it. Based on it, PSO, Limbadi Police Station registered an offence bearing CR No. I-82/2012 u/s 302 of the IPC and further investigation was handed over to me. Even though any such incident has not occurred as stated by me or Inquest was not drawn or Marnottar Form was not filled up and though any complaint of the person stated by me has not been recorded and it was not sent to register an offence, I falsely state such fact in the Court. It is not true that thereafter, I had drawn Panchnama of the local place in this case before Panch Atulbhai Laljibhai Vaghela and Virendrasinh Mahavirsinh Gohil from 7-30 hours to 9-00 hours and though any such procedure was not performed before the Pancha at the time stated by me, I falsely state such fact in the Court. It is not true that statements of witnesses Pravinsinh Gumansinh Zala, Sonalba w/o Pravinsinh Zala, Dakshaba alias Nishaba Sukhdevsinh Zala, Hansaba w/o Kishorsinh Karansinh Gohil, Bhupendrasinh Harisinh Rathod, Kishorsinh Karansinh Gohil were recorded as dictated by them and though statements of any such persons were not recorded and they were fabricated, I falsely state such fact before the Court. It is not true that statements of witnesses Pravinsinh Gumansinh Zala, Sonalba w/o Pravinsinh Zala, Dakshaba alias Nishaba Sukhdevsinh Zala, Hansaba w/o Kishorsinh Karansinh Gohil, Bhupendrasinh Harisinh Rathod, Kishorsinh Karansinh Gohil were recorded as dictated by them and though statements of any such persons were not recorded and they were fabricated, I falsely state such fact before the Court. It is not true that thereafter, when I was present in the Police Station, at about quarter to eleven, the accused Mahendrasinh Pravinsinh came to Limbadi Police Station and produced the knife and clothes used in this offence and the knife and clothes used in the offence were seized in presence of Panch Jayesh Chaturbhai Raval and Dhudabhai Kehabhai Bhuva after drawing a Panchnama and at about 12-15 o’clock, the accused person was arrested, photographs and finger prints of the accused person were taken and the details of the incident were obtained tactfully from the accused. Though any such incident did not take place in my presence and even though Mahendrasinh did not produce himself at the time stated by me and he did not produce the articles stated by me and though no proceeding was carried out in presence of the Panchas and no photographs or finger prints were obtained and though any details regarding incident were not obtained from accused, I falsely state such fact before the Court. It is not true that thereafter, statements of witnesses Chhaganbhai Soneji, Girdharlal Jivabhai Chauhan, Dipubha Gumansinh Zala, Kantilal Harjivandas Sanghavi, all residing at Limbadi were recorded and though statements of any such persons were not recorded, I falsely state such fact before the Court. It is not true that the policeman Mitesh has not produced and seized any clothes or blood sample from the doctor in the manner stated by me in presence of the persons as stated by me at the time stated by me. It is not true that I falsely state the fact about collecting blood sample of the accused person at the details of the Panchnama at the time stated by me and the fact about making separate Muddamal receipt. It is not true that any statement of Jayeshbhai or Bhartiben or Bharatsinh or Maheshwariben was recorded. It is not true that I falsely state the fact that the Muddamal seized in this case and P.M. Note were received, they were sent to the FSL with Yadi. It is not true that any statement of Jayeshbhai or Bhartiben or Bharatsinh or Maheshwariben was recorded. It is not true that I falsely state the fact that the Muddamal seized in this case and P.M. Note were received, they were sent to the FSL with Yadi. It is not true that I have never sent any Muddamal at anytime. It is not true that I have fabricated the Panchnama vide Exhibit-27. It is not true that I have created papers of Exhibit-62, 63, 64 afterwards by showing false facts. It is not true that the Panchnama vide Exhibit-32 has been fabricated. It is not true that, the report vide Exhibit-62 was fabricated afterwards in the police station at the instance of the police. It is not true that, I state the fact false that, thereafter the accused person appeared with the weapon and clothes used in this offence and his arrest Panchanama was drawn before two Panchas which is produced in this case vide Exhibit-35. It is not true that, the Panchanama vide Exhibit-35 was fabricated afterwards. It is not true that, I state the false fact that the accused person appeared with the weapon and clothes used in the offence. It is not true that, the Panchanama vide Exhibit-40 was fabricated afterwards and the clothes of any person as stated by me were not seized before the Panchas. It is not true that, no medical samples of Jayshriba were collected at the time of P.M or I did not receive the letter thereof. It is not true that, the letter vide Exhibit-66 was fabricated afterwards. It is not true that, no blood sample of the accused person was collected at the details of the Panchanama as stated by me. It is not true that, the Panchanama vide Exhibit-41 was fabricated afterwards. It is not true that, no blood sample of the accused person was collected or it was not sent to me. It is not true that, the letter vide Exhibit-67 was fabricated afterwards. It is not true that, I state the false fact that, the accused person also sustained injuries during the scuffle therefore he was also sent to the hospital on 3/8/12 for the treatment and the medical certificate thereof, is the same which is produced in this case vide Exhibit-22. It is not true that, I state the false fact that, the accused person also sustained injuries during the scuffle therefore he was also sent to the hospital on 3/8/12 for the treatment and the medical certificate thereof, is the same which is produced in this case vide Exhibit-22. It is not true that, I state the fact false to hide the fact of causing injury to the accused in the police station that, the accused also sustained injuries during the scuffle therefore he was sent for the medical treatment on 3/8/12. It is not true that, as the accused was beaten in the police custody, he sustained injuries. It is not true that, we have fabricated the document vide Exhibit-22 to shield the police by requesting the doctor. It is not true that, the document vide Exhibit-68 was fabricated afterwards and it is not related with the present case. It is not true that, the document vide Exhibit-69 was fabricated afterwards. It is not true that, the station diary entry No.2/12 was not made at the time mentioned by me and the false extract of the false time has been produced in the court. It is not true that, the document vide Exhibit-70 was fabricated afterwards. It is not true that, no telephone vardhy was recorded or received as stated by me or PSI did not inform me. It is not true that, the yadi vide Exhibit-70 was fabricated to create the false time of the incident. It is not true that, the document vide Exhibit-71 was fabricated afterwards. It is not true that, the document vide Exhibit-72 was also fabricated and no report was made to the PSO to record the details as stated by me. It is not true that, I state it false that, the yadi was written to collect the blood sample of the accused and for his treatment. It is not true that, the document vide Exhibit-73 was fabricated afterwards. It is not true that, the document vide Exhibit-74 was also fabricated afterwards. It is not true that, as I have fabricated false time of incident, false place and false facts of the incident, all the papers including Exhibit-74 and the Panchanamas were fabricated afterwards mentioning false facts and false time to corroborate it. It is not true that, no photographs were taken as stated by me. No Re-Examination. Before me, SD/- Addl. It is not true that, as I have fabricated false time of incident, false place and false facts of the incident, all the papers including Exhibit-74 and the Panchanamas were fabricated afterwards mentioning false facts and false time to corroborate it. It is not true that, no photographs were taken as stated by me. No Re-Examination. Before me, SD/- Addl. Sessions Judge, Limbdi. 49. We take notice of the fact that in the cross-examination of the PW 21, only suggestions have been put and all those suggestions have been outright denied by the PW 21. There is no further cross-examination of the Investigating Officer in a particular line or direction. 50. The picture that emerges on the cumulative assessment of the materials on record is that the accused was not getting along well with his wife as he had a doubt in his mind as regards the fidelity of his wife i.e. the deceased. This is the case of the prosecution. The evidence on record suggests that the incident occurred in the night hours and that too inside the house. The defence has introduced a story, which is not only highly improbable, but, is completely falsified by the evidence on record. The dead body was found lying inside the room on the first floor of the house. The inquest panchnama was drawn while the dead body was lying in the room on the first floor of the house. If we go by the theory put forward by the defence that an unknown person had stabbed the deceased on the road in the morning at around 8 o’clock, then having regard to the number of stab wounds suffered by the deceased and also having regard to the fact that the deceased must have bleeded profusely, blood should have been found at the place where, according to the defence, the deceased was assaulted. Not a drop of blood has been found or noticed on the road. This circumstance, by itself, falsifies the story put forward by the defence. It is indeed very unfortunate that each and every witness has turned hostile. Not only the family members of the accused turned hostile, but even the panch witnesses turned hostile. 51. The first thing we would like to examine is the defence of alibi put forward by the accused. It is indeed very unfortunate that each and every witness has turned hostile. Not only the family members of the accused turned hostile, but even the panch witnesses turned hostile. 51. The first thing we would like to examine is the defence of alibi put forward by the accused. The defence has tried through the evidence of the first informant i.e. PW 11 Sukhdevsinh Zala to establish that after having come to know about the assault, the PW 11 is said to have called up the accused on his mobile while the accused was at Gandhidham. The incident occurred at Limbdi, District : Surendranagar, whereas, according to the defence, at the relevant point of time, the accused was not at Limbdi, but he was at Gandhidham. 52. The moot question that falls for our consideration is whether the accused has been able to establish his plea of alibi even on the touchstone of preponderance of probability? 53. The plea of alibi is based on Section 11 of the Evidence Act, which provides, inter alia, that a fact, which is, otherwise, not relevant, will become relevant if such a fact is inconsistent with the fact in issue. Thus in a given case, when the incident took place at a place, ‘X’ and the accused claims that he was, at the relevant point of time, at a place, ‘Y’, in order to show that it was not possible for him (i.e., the accused) to be present at the place ‘X’, at the relevant point of time, the implication is that the accused seeks to prove a fact, which is inconsistent with the fact in issue, namely, that the accused was present at the place of occurrence. When a person wants to establish a fact, which will contradict a fact in issue or a relevant fact, such a fact is relevant and must be allowed to be proved. The burden to prove such a fact is, however, on the accused under Section 103 of the Evidence Act inasmuch as Section 103 lays down that the burden of proof, as to any particular fact, lies on that person, who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall be on any particular person. 54. 54. Thus, in the light of Section 103, if the accused wishes the Court to believe in existence of the fact that he was at a place other than the place where he is alleged to have been, the burden to prove that he (the accused) was elsewhere, rests on the accused. It is based on this principle that the illustration, appended to Section 103, states, inter alia, that when an accused wishes a Court to believe that, at the time, in question, he was elsewhere, it is the accused, who must prove it. We must hasten to point out and reiterate that the burden of proof of the plea of alibi, which the accused takes, rests on the provisions of Section 103 and not on Section 106. 55. We may also point out that before a Court examines the correctness of the plea of alibi taken by an accused, the evidence on record must, otherwise, be sufficient to bring home the charge against the accused. If the evidence adduced by the prosecution is insufficient to uphold the charge brought against the accused, the plea of alibi taken by the accused may not be necessary to be examined. When the prosecution succeeds in proving its case, the Court has, if the accused has taken the plea of alibi, obligation to determine whether the plea of alibi is or is not true. Moreover, when the plea of alibi taken by an accused is found to be false, it becomes an additional link in the chain of circumstances, which may appear against the accused. In other words, it is only when the prosecution succeeds in discharging its burden of proving its case against an accused that the evidence given by the accused as regards his plea of alibi can be examined in order to ascertain as to whether the accused has been able to exclude the possibility of his presence at the place and time of the alleged occurrence. 56. In the aforesaid context, we may profitably reproduce few passages from Binay Kumar Singh vs. State of Bihar reported in 1997(1) SCC 283 : “22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. 56. In the aforesaid context, we may profitably reproduce few passages from Binay Kumar Singh vs. State of Bihar reported in 1997(1) SCC 283 : “22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context: “The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant.” 23. The Latin word alibi means “elsewhere” and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.” 57. The aforesaid principles have been reiterated in Gurpreet Singh vs. State of Haryana [ 2002 (8) SCC 18 ], S.K. Sattar vs. State of Maharashtra [ 2010 (8) SCC 430 ] and Vutukuru Lakshmaiah vs. State of Andhra Pradesh [ 2015 (11) SCC 102 ]. 58. The first informant PW 11 Sukhdevsinh, no doubt, resiled from the First Information Report lodged by him at the police station at 5.30 hours in the early morning of 19th July 2012. He admitted his signature on the First Information Report. With the admission of his signature on the First Information Report, the prosecution has been able to at least establish one thing that an F.I.R. was lodged at the police station early in the morning at 5.30 hours. The registration of the F.I.R. at 5.30 hours in the early morning by the PW 11 Sukhdevsinh renders the entire case put forward by the defence false that the incident had occurred at 8 o’clock in the morning and that an unknown person stabbed the deceased on the road and ran away. We fail to understand why should the police register a false F.I.R. and that too at 5:30 in the early morning? We also fail to understand what could be the good reason for the police to falsely implicate the accused in the crime? We take note of the entry made in the station diary Exhibit : 69 as regards the phone call received by the P.S.O. from PW 11 Sukhdevsinh Pravinsinh Zala as regards the incident. In the station diary Exhibit : 69, the fact as regards the phone call made by PW 11 Sukhdevsinh is noted and the time stated is 4:10 A.M. i.e. early in the morning. In the station diary Exhibit : 69, the fact as regards the phone call made by PW 11 Sukhdevsinh is noted and the time stated is 4:10 A.M. i.e. early in the morning. We also take notice of the entry of the registration of the F.I.R. at 5:30 in the early morning in the station diary at Exhibit : 58. The Investigating Officer PW 21, in his evidence, has deposed that while he was present at the police station, the accused came over there with the knife used in the commission of the crime and clothes, and practically, surrendered himself. In this regard, a panchnama was drawn in presence of the two panch witnesses. However, the panch witnesses have turned hostile and have not proved the contents of the panchnamas. The fact remains that there is no good reason for us to not to accept the evidence of the Investigating Officer as regards the accused coming at the police station on his own and handing over the knife i.e. the weapon of offence and the clothes. If this circumstance is believed or accepted, then the entire defence put forward by the accused that he was at Gandhidham and as soon as he learnt about the incident through his brother PW 11, he came down to Limbdi in the evening gets falsified. In our opinion, the prosecution witnesses have not only turned hostile by resiling from their previous statements made before the police under Section 161 of the Cr.P.C., but the family members of the accused have gone to the extent of introducing an absolutely false story and thereby thoroughly misled the Court. Except, a bald assertion that the accused was not present at the time of the incident and was at Gandhidham, no evidence worth the name has been led by the accused in this regard. The plea of alibi is not to be proved on preponderance of probability. But, a strong proof is required, if the accused wants to establish his alibi. 59. In the decisions reported as 1971 Cri LJ 1764 Mohinder Singh vs. State of Punjab, ILR 1972 Cut 1181 Hadibandhu Jali vs. State as also 1954 Cri LJ 1303 Madhuwa Pyarelal Kurmi vs. State of V.-Pra. But, a strong proof is required, if the accused wants to establish his alibi. 59. In the decisions reported as 1971 Cri LJ 1764 Mohinder Singh vs. State of Punjab, ILR 1972 Cut 1181 Hadibandhu Jali vs. State as also 1954 Cri LJ 1303 Madhuwa Pyarelal Kurmi vs. State of V.-Pra. It has been held that where a defence of alibi utterly breaks down, it is a strong inference that, if the accused was not in fact where he says he was, then in all probability he was where the prosecution says he was. Where an accused attempts to create false evidence to prove alibi the same is strong evidence to show that he was conscious of some great danger impending and that he was actuated by a strong desire to escape. The mental condition of a person is a fact under Section 3 of the Evidence Act. In the decision reported as 2003 (9) SCC 86 : (2003 Cri LJ 2536) Babudas vs. State of M.P., it was held that a plea of false alibi, though by itself cannot be the sole link or the sole circumstance based on which a conviction can be sustained, but certainly is a link in the chain of circumstances. We may lodge a caveat here. Where the defence of alibi is not proved due to insufficiency of evidence, such an inference need not be drawn. But where it stands established that the defence of alibi is predicated on false evidence, said fact would be relevant as the conduct of the accused to bring on record the evidence favourable to him; which evidence is false. The legal principle being, that the conduct of an accused is relevant and admissible evidence under Section 8 of the Evidence Act. Where the accused tries to shield himself by producing false evidence, the very production of false evidence is indicative of a guilty mind. 60. A Special Bench of the Calcutta High Court consisting of three Hon’ble Judges in the case of Sarat Chandra Dhupi vs. Emperor reported in AIR 1934 Calcutta 719 had observed something very apt to the facts of this case. 60. A Special Bench of the Calcutta High Court consisting of three Hon’ble Judges in the case of Sarat Chandra Dhupi vs. Emperor reported in AIR 1934 Calcutta 719 had observed something very apt to the facts of this case. We may quote the observations: “..Whenever a defence of alibi is set up and that defence utterly breaks down it is a strong inference that if the prisoner was not in fact where he says he was then in all probability he was where the prosecution say he was. At any rate the line of defence adopted and his failure to substantiate it is an element which it is right to take into consideration in deciding whether or not the accused is guilty...” 61. In Hadibandhu Jali (supra), a Division Bench of the Orissa High Court in para 15 had observed as under: “A fool-proof alibi is no doubt the most effective answer to a charge; but such an invulnerable defence is seldom readily available. The reason is, if the prosecution is a got up story, it would not be ordinarily so silly as to include a person whose complicity in the crime would be an impossibility. Again, if it is true, a false plea of alibi is a very dangerous plea not unoften taken in keenly contested cases born of party faction to falsify the entire prosecution case by all means, fair or foul. But such got-up pleas of alibi, however, ingeniously made, can hardly stand the fire of cross examination by an astute criminal lawyer, or wily enough to escape the scepticism of an alert Judge. The result is when this alibi, which is likened to a “bubble” is successfully pricked, it rebounds on him who has taken in which while smashing his defence strengthens the prosecution” 62. We are clear in our mind that the relatives of the accused, in the course of the trial, decided to save him. If we go by the case of the prosecution, then after the assault at around 1:30 hours in the night, the accused knocked the door of the house of the PW 11 Sukhdevsinh and confessed before him that he had killed his wife. If the PW 11 Sukhdevsinh would have supported the case of the prosecution, then the evidence of extra-judicial confession would have come in evidence. If the PW 11 Sukhdevsinh would have supported the case of the prosecution, then the evidence of extra-judicial confession would have come in evidence. However, the PW 11, being the cousin brother, tried to save the accused by turning hostile. It is only after the accused brought to the notice of the PW 11 about the assault, the PW 11 thought fit to go to the police station and lodged the F.I.R. at 5:30 hours in the early morning of 19th July 2012. This is how it appears that the F.I.R. came to be registered. 63. Having being convinced that the plea of alibi raised by the accused is palpably false, then there is every good reason for us to believe that the accused was along with his wife on the fateful night of the incident. If the husband and wife go to bed in the night and something transpires during the midnight hours inside the house, then the accused needs to explain what had happened on that particular day. The false explanation or the false defence of the accused leads to an irresistible inference that it is the accused only who killed his wife. 64. In (2006) 10 SCC 681 : (2006 AIR SCW 5300, para 12) (Trimukh Maroti Kirkan vs. State of Maharashtra), it was observed as follows :- “15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” 65. Similar view has been taken in (2006) 12 SCC 254 : ( AIR 2007 SC 144 ) (State of Rajasthan vs. Kashi Ram) as follows :- “23. Similar view has been taken in (2006) 12 SCC 254 : ( AIR 2007 SC 144 ) (State of Rajasthan vs. Kashi Ram) as follows :- “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. ( AIR 1960 Mad 218 ).” 66. The Trial Court committed one error while recording the evidence of the PW 1 Dr. Parul Hasumukhbhai Jadhav Exhibit : 16. It appears that the deceased might have offered some resistance at the time of assault and on account of such resistance, the accused also sustained some injuries on his hand. In such circumstances, the accused was subjected to the medical examination. He was brought at the Civil Hospital, Limbdi at 8:50 hours on 19th July 2012 by the Police Constable, buckle No.358 with a police yadi and a certificate Exhibit : 22 has been issued by the PW 1 Dr. Jadhav. In such circumstances, the accused was subjected to the medical examination. He was brought at the Civil Hospital, Limbdi at 8:50 hours on 19th July 2012 by the Police Constable, buckle No.358 with a police yadi and a certificate Exhibit : 22 has been issued by the PW 1 Dr. Jadhav. In the certificate, there is a reference of the accused having suffered injuries during the scuffle. In the Examination-in-Chief of the PW 1 Dr. Jadhav, the Public Prosecutor did try to put questions to the doctor to bring on record the history, if any, narrated by the accused before the doctor. It, prima facie, appears that the history was narrated by the accused before the doctor and that is how there is a reference of the same in the medical certificate Exhibit : 22. However, the defence was wary of the fact that if the history would come on record through the evidence of the doctor, then, probably, it would be treated as an incriminating admission on the part of the accused. Having regard to the objection raised by the defence, the Trial Court did not permit the Public Prosecutor to put questions to the doctor as regards the injuries suffered by the accused on the misconception of law that the same would be hit by Sections 24, 25, 26 and 27 of the Evidence Act. In our opinion, the Trial Court committed a serious error in upholding such objection. What would be inadmissible would be an extra-judicial confession of the crime. There is a fine distinction between confession and an incriminating admission. If an accused is arrested and is in custody of the police and while in custody of the police, he is subjected to the medical examination and during the course of the medical examination, if he confesses his guilt before the doctor in the form of history, then such confession would be hit by Sections 25 and 26 of the Evidence Act. However, if the history remains only within the ambit of an incriminating admission, then the same would be relevant and admissible under Section 21 of the Evidence Act. The same would be relevant even as the conduct of the accused under Section 8 of the Evidence Act. 67. Mr. However, if the history remains only within the ambit of an incriminating admission, then the same would be relevant and admissible under Section 21 of the Evidence Act. The same would be relevant even as the conduct of the accused under Section 8 of the Evidence Act. 67. Mr. Dagli, the learned counsel appearing for the accused vehemently submitted that it is true that the accused was subjected to the medical examination and was even given treatment. However, the injuries suffered by the accused were not on account of the scuffle with the deceased at the time of the incident, but, was on account of the third decree methods adopted by the police to make the accused confess his crime. To put it in other words, according to Mr. Dagli, the accused was beaten up by the police while in police custody and that is how he had suffered the injuries. This explanation offered by the accused is once again a false explanation. Except, a bald assertion in this regard, no evidence has been led of any nature that the accused was beaten up by the police. This is the only explanation which the accused could have offered to explain the injuries suffered by him. In this regard, except, a suggestion put to the Investigating Officer in the crossexamination, no other evidence has come on record to even entertain a doubt that the accused might have been manhandled by the police. If the case is considered in the totality of the circumstances and also taking into consideration the gruesome manner in which the deceased was stabbed to death and also having regard to the fact that the witnesses, who are none other than the close relatives of the accused attributed the commission of the offence only to the appellant in their statements under Section 161 of the Cr.P.C., it is difficult to imagine that the first informant and the other witnesses had all falsely named the appellant as being the person responsible for the offence at the initial stage itself. This is one aspect which the Trial Court has rightly kept in mind and taken into consideration while holding the appellant guilty of the offence. 68. This is one aspect which the Trial Court has rightly kept in mind and taken into consideration while holding the appellant guilty of the offence. 68. We have taken into consideration the following incriminating circumstances pointing towards the guilt of the accused: [a] The PW 19 Natvarsinh Motimiya Parmar, P.S.O., Limbdi Police Station called up the PW 21 Hareshkumar Jashvantlal Bhatt, the Police Inspector, Limbdi Police Station on 19th July 2012 at around 3 o’clock in the night and informed that he had received a phone call from PW 11 Sukhdevsinh Pravinsinh Zala that his brother Mahendrasinh (accused) had killed his wife. [b] The PW 21 i.e. the Investigating Officer, on receipt of such information from the P.S.O., reached Limbdi Haveli Street at the house of PW 21 Sukhdevsinh Zala. On reaching the house of Sukhdevisinh Zala, Sukhdevsinh informed the PW 21 that his brother Mahendrasinh (accused) had killed his wife and her dead body was lying in the room on the upper floor of the house. [c] The PW 21, the Investigating Officer, sent a police yadi to the Executive Magistrate to fill up the inquest. On arrival of the Executive Magistrate, the Investigating Officer called for the panch witnesses and the inquest panchnama was carried out on the first floor of the house where the dead body was lying. [d] At 5:30 hours in the early morning, the PW 21 Sukhdevsinh Zala lodged the F.I.R. at the Limbdi Police Station as regards the incident. Although the PW 11 denied having lodged any such F.I.R. at 5:30 hours in the early morning, yet he admitted his signature on the original First Information Report. [e] At 10:45 hours, the accused reached the Limbdi Police Station and produced the knife used in the commission of the crime and the clothes worn by him at the time of the incident. The weapon of offence and clothes were collected by the Investigating Officer by drawing a panchnama in presence of the two panch witnesses. [f] The accused came to be arrested at 12:15 hours. An arrest panchnama was drawn in presence of the panch witnesses. Although the panch witnesses have turned hostile, yet they have admitted their signatures on the original panchnama. Immediately after surrender by the accused before the police, his photographs and fingerprints were obtained. [g] The plea of alibi is completely falsified by the evidence on record. An arrest panchnama was drawn in presence of the panch witnesses. Although the panch witnesses have turned hostile, yet they have admitted their signatures on the original panchnama. Immediately after surrender by the accused before the police, his photographs and fingerprints were obtained. [g] The plea of alibi is completely falsified by the evidence on record. [h] The accused was sent to the hospital with a police yadi for medical examination at 8:50 hours in the late evening. The medical examination revealed injuries on the hand of the accused, as reflected from the medical certificate on record. The presence of the accused at his house along with his deceased wife at the time of at the time of the incident is established. 69. We remind ourselves of what the Supreme Court had observed in the case of Dharm Das Wadhwani vs. the State of U.P. reported in AIR 1975 SC 241 . We quote the relevant observations as under: “13. The question then is whether the cumulative effect of the guilt-pointing circumstances in the present case is such that the court can conclude not that the accused may be guilty but that he must be guilty. We must here utter a word of caution about this mental sense of ‘must’ lest it should be confused with exclusion of every contrary possibility. We have in S. S. Bobade vs. State of Maharashtra, (1973) 2 SCC 793 = ( AIR 1973 SC 2622 ) explained that proof beyond reasonable doubt cannot be distorted into a doctrine of acquittal when any delicate or remote doubt flits past a feeble mind. These observations are warranted by frequent acquittals on flimsy possibilities which are not infrequently set aside by the High Courts weakening the credibility of the judicature. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct...” 70. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct...” 70. We may also refer to and rely upon a very recent pronouncement of the Supreme Court in the case of Kripal Singh vs. State of Rajasthan [Criminal Appeal NO.2100 of 2008 decided by the Supreme Court on 15th February 2019], wherein the Supreme Court observed in para 17 as under: “The submission of the learned senior counsel for the appellant that recovery has not been proved by any independent witness is of no substance for the reason that in the absence of independence witness to support the recovery in substance cannot be ignored unless proved to the contrary. There is no such legal proposition that the evidence of police officials unless supported by independent witness is unworthy of acceptance or the evidence of police officials can be outrightly disregarded. “ 71. We are of the view that the Trial Court committed no error in holding the accused guilty of the offence. In such circumstances, the appeal fails and is hereby dismissed. The judgment and order of conviction and sentence are hereby affirmed. 72. Dismissing the criminal appeal filed by the appellant and affirming his conviction of the offence of murder, is not going to be sufficient. As noted above, the prosecution examined in all twenty one witnesses. It is only the PW 1 i.e. the doctor and the PW 21 i.e. the Investigating Officer, who have been able to throw considerable light on the case of the prosecution. This is a fit case in which the Trial Court should have either proceeded against the hostile witnesses under Section 344 of the Cr.P.C. or at least under Section 340 of the Cr.P.C. The evil of perjury has assumed an alarming proposition in cases depending on oral evidence and in order to deal with the menace effectively, it is desirable for the Courts to use the provisions of Section 344 or Section 340 of the Cr.P.C. more effectively and frequently than it is presently done. Witnesses change their statements during different stages of the criminal proceedings at their own sweet will and thereby effecting the course of justice, though under the law, they are bound to state the truth and truth only. 73. A criminal case is built upon the edifice of evidence (whether it is direct evidence or circumstantial evidence) that is admissible in law. Free and fair trial is the very foundation of the criminal jurisprudence. There is a reasonable apprehension in the mind of the public at large that the criminal trial is neither free nor fair with the Prosecutor appointed by the State Government conducting the trial in a manner where frequently the prosecution witnesses turned hostile. 74. We have noticed, while hearing the criminal appeals, that there is practically no effective and meaningful cross-examination by the Public Prosecutor of a hostile witness. All that the Public Prosecutor would do is to confront the hostile witness with his police statement under Section 161 of the Cr.P.C. and contradict him with the same. The only thing that the Public Prosecutor would do is to bring the contradiction on record and thereafter prove those contradictions through the evidence of the Investigating Officer. This is not sufficient. The objects of cross-examination are to impeach the accuracy, credibility and general value of the evidence given in-chief to sift the facts already stated by the witness to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party. What we are trying to convey is that it is the duty of the Public Prosecutor to cross-examine a hostile witness in details and try to establish that the witness is speaking lie and has deliberately resiled from his police statement recorded under Section 161 of the Cr.P.C. A good, seasoned and experienced Public Prosecutor will not only bring the contradictions on record, but will also cross-examine the hostile witness at length to establish that for any reason, the witness has turned around and resiled from his previous statement. 75. In the instant case also, the PW 11 Sukhdevsinh Zala tried to pollute the course of justice by turning turtle from his original version of the occurrence at the later stage of the proceedings / trial. The PW 11 was the first person, who came to know about the incident. 75. In the instant case also, the PW 11 Sukhdevsinh Zala tried to pollute the course of justice by turning turtle from his original version of the occurrence at the later stage of the proceedings / trial. The PW 11 was the first person, who came to know about the incident. He reached the police station at 5:30 hours in the early morning of 19th July 2012 and lodged the F.I.R. in clear terms. In clear terms, he stated before the police that the accused woke him up in the night and disclosed before him that he had killed his wife. It is so apparent that at the stage of recording of the evidence, the PW 11, not only resiled from his original version, but introduced a false story. He has tried to adduce false evidence in support of the accused. Following his footsteps, the other members of the family too turned hostile and created a false story of an unknown person assaulting the deceased at 8 o’clock in the morning on the road. We are of the view that this trend should be arrested and such witnesses should not be allowed to escape the consequence of their sins. Even the panch witnesses appear to have been won over and they too turned hostile. Therefore, in our opinion, it is expedient in the interest of justice that the following witnesses must be prosecuted for perjury under the relevant provisions of law: Sr.No. Prosecution Witness Exhibit Name of the witnesses Remarks 1 11 43 Sukhdevsinh Pravinsinh Zala Complainant and cousin brother of the accused 2 12 47 Pravinsinh Gumansinh Zala Father of the complainant 3 14 51 Dakshaba Sukhdevsinh Wife of the complainant 4 18 56 Bharatsinh Pravinsinh Zala Brother of the complainant 76. In the aforesaid context, we may refer to a decision of the Supreme Court in the case of Perumal vs. Janaki reported in (2014) 5 SCC 377 , wherein the Supreme Court had observed as under: “19. In the aforesaid context, we may refer to a decision of the Supreme Court in the case of Perumal vs. Janaki reported in (2014) 5 SCC 377 , wherein the Supreme Court had observed as under: “19. Therefore, all that sub-section (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to another court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195 (1), every appellate court competent to entertain the appeals either from decrees or sentence passed by the original court is treated to be a court concurrently competent to exercise the jurisdiction under Section 195(1). High Courts being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a Court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suo moto whenever the interests of justice demand. 20. The High Courts not only have the authority to exercise such jurisdiction but also an obligation to exercise such power in appropriate cases. Such obligation, in our opinion, flows from two factors - (1) the embargo created by Section 195 restricting the liberty o f aggrieved persons to initiate criminal proceedings with respect to offences prescribed under Section 195: (2) such offences pertain to either the contempt of lawful authorities of public servants or offences against public justice. 21 Any superintendence like any other power impliedly carries an obligation to exercise powers in an appropriate case to maintain the majesty of the judicial process and the purity of the legal system. Such an obligation becomes more profound when these allegations of commission of offences pertain to public justice.” 77. In Manila Vinod Kumari vs. State of M.P. reported in 2008 Cri. L.J. 3867, the Supreme Court had observed in paras 9 and 10 as under: “9. The object of the provision is to deal with the evil perjury in a summary way. 10. In Manila Vinod Kumari vs. State of M.P. reported in 2008 Cri. L.J. 3867, the Supreme Court had observed in paras 9 and 10 as under: “9. The object of the provision is to deal with the evil perjury in a summary way. 10. The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done.” 78. Thus, the message of the Supreme Court is loud and clear. In order to deal with the menace of the witnesses turning hostile, the Trial Courts must make use of the provisions of Section 344 or 340 of the Cr.P.C., as the case may be, more effectively and frequently. 79. Free and fair trial is sine quo non of Article 21 of the Constitution of India. The criminal justice system is meant not only for safeguarding the interest of the accused persons, but is equally devoted to the rights of the victims as well. If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a Judge and the justice delivery system would be shaken. Denial to fair trial is as much injustice to the accused as to the victim and the society. No trial can be treated as a fair trial unless there is an impartial Judge conducting the trial, an honest and fair defence counsel and equally honest and fair Public Prosecutor. A fair trial necessarily includes fair and proper opportunity to the Prosecutor to prove the guilt of the accused and opportunity to the accused to prove his innocence. [see : Dinubhai Boghabhai Solanki vs. State of Gujarat and others (Criminal Appeal No.492 of 2014 decided by the Supreme Court on 30th October 2017)]. 80. We are conscious of the fact that the prosecution for perjury should be sanctioned only in those cases where the perjury appears to be deliberate and conscious and conviction is the reasonably probable or likely. 80. We are conscious of the fact that the prosecution for perjury should be sanctioned only in those cases where the perjury appears to be deliberate and conscious and conviction is the reasonably probable or likely. We are also conscious of the fact that the mere fact that a person has made a contradictory statement in the judicial custody is not by itself sufficient to justify prosecution under Sections 199 and 200 of the Penal Code, but it must be shown that the witnesses examined by the prosecution have intentionally given a false statements or fabricated false statements. In the case on hand, we are, prima facie, convinced that the witnesses deliberately resiled from their previous statements only with a view to save the accused and not only they resiled, but they led false evidence. Giving a false evidence, as noted above, is an evil, which must be effectively curbed with a strong hand. We are satisfied that appropriate action is required in the interest of justice and appropriate in the facts of the case. 81. In view of the above, we direct the Additional Sessions Judge, Limbdi to initiate criminal proceedings against the witnesses named above under the appropriate provisions for intentionally giving contradictory and false statements on oath before the Court. 82. The Registry is directed to forward a copy of this judgment to the Additional Sessions Judge, Limbdi to act in accordance with the directions issued in para 81 hereinabove.