JUDGMENT : (Shree Chandrashekhar, J.) On 14.02.2008, around 09:00 PM, Meghlal Kolh and his wife were found injured inside a room in their house. The door of the room was closed from inside and the villagers entered the room through roof of the house. By the time the villagers entered the room Malwa Devi, wife of Meghlal Kolh, had died and Meghlal Kolh was found injured lying unconscious in the room. He was taken to Sadar Hospital, Giridih for treatment and he finally survived. On the basis of the fardbeyan of Birbal Kolh recorded by R.K. Dubey, SI & Officer-in-Charge of Giridih (M) PS on 15.02.2008 at around 02:30 PM, Giridih (M) P.S. Case No. 60 of 2008 was lodged. The informant has stated that last night around 09:00 PM Basudeo Kolh started raising hulla in the village saying that his father locked his mother inside a room and his mother was crying. The villagers gathered around the house of Meghlal Kolh and the informant with the help of Baldev Roy and Ganpat Hazam entered the house of Meghlal Kolh through the roof. They found Malwa Devi lying dead and Meghlal Kolh was trying to commit suicide by slitting his neck. A nine month old child drenched in blood was crying near the dead body of Malwa Devi and a blood stained farsa was also lying there. With the help of the villagers Meghlal Kolh was taken to Sadar Hospital for treatment. The fardbeyan of Birbal Kolh, a co-villager of Meghlal Kolh, was recorded next day afternoon at the house of Meghlal Kolh and on that basis Giridih (M) P.S. Case No. 60 of 2008 was lodged against Meghlal Kolh under sections 341, 302 and 309 of the Indian Penal Code. After the investigation a charge-sheet was laid and he faced the trial for committing the aforesaid offences. 2. The prosecution has examined eight witnesses during the trial to prove the charges framed against the accused by an order dated 05.08.2008. In course of investigation the co-villagers gave statement before the police that on hearing hulla raised by son of the accused they rushed to the house of Meghlal Kolh and after breaking open roof of the house he was recovered from a closed room and sent to Sadar Hosptial, Giridih. In course of investigation the co-villagers gave statement before the police that on hearing hulla raised by son of the accused they rushed to the house of Meghlal Kolh and after breaking open roof of the house he was recovered from a closed room and sent to Sadar Hosptial, Giridih. The son of the accused also provided valuable information to the investigating officer, however, during the trial he turned hostile and did not support the prosecution. 3. The learned District & Additional Sessions Judge-VIII, Giridih has observed that the dead body of Malwa Devi was found in her house and the accused was also lying there in an injured condition inside a bolted room. Still, the accused has failed to offer any explanation in his examination under section 313 of the Code of Criminal Procedure. The learned trial Judge has further held that though motive was not proved and the investigating officer did not come to the dock no prejudice was caused to the accused. The learned trial Judge has finally held that the accused has killed his wife. However the charge under section 309 of the Indian Penal Code was found not proved and, accordingly, Meghlal Kolh was acquitted from the charge under section 309 of the Indian Penal Code. 4. The learned trial Judge has held as under: “23. In the facts and circumstances discussed above I find that the prosecution has been able to prove and to establish its case since this is a case of circumstantial evidence and accused, deceased alongwith a child of tender age was found in a room bolted from inside, the weapon of offence (farsa) was also recovered from the place of occurrence though not produced before the Court. Infers that the death has been caused by the accused and the accused only and there is no chance of escape of accused from assuming that death was done to some one else or in other circumstances the chain of circumstantial evidence is so complete there is no chance of escape. Hence I find and hold guilty Meghlal Kolh for the offence u/s. 302 of the I.P.C. 24. Hence I find and hold guilty Meghlal Kolh for the offence u/s. 302 of the I.P.C. 24. The case laws relied upon the learned counsel for the defence are mainly two grounds:- First-There is no repeatation of blow and at best if accused is found guilty he may be sentenced u/s. 304 part 2 of the I.P.C. Next that no eye witness of the incident, no mensrea has been proved, and no motive has assigned thus the story of prosecution appears to be doubtful and accused deserves acquittal. So far the offence u/s. 304 part 2 of the I.P.C. is concerned. Prosecution has been able to prove death of the deceased has caused inside the room where none else except deceased, accused and a child of tender age was present there and postmortem report suggest that a sharp cut wound was found on the upper neck of the deceased. Since the injury was found on a very vital part of the deceased by a sharp cutting instrument and therefore, it can not be presumed that such an injury was caused in heat of passion without any motive. This case does not fall under Sec. 304 part 2 of the I.P.C. So far the motive, mansrea and no eye witness is concerned, dead body of deceased was found in the room of the accused which was bolted from inside and the deceased and accused are wife and husband in relation and as already discussed. It was incumbent upon accused to prove as to how deceased died. In this case the case of defence is simply of denial and no reason has been assigned by accused, how the deceased was done to death. Thus the theory of absence of eye witnesses mansrea, and motive does not apply in this case. The learned counsel for the defence during course of argument has given much stress on the point that the I.O. of the case has not been examined and weapon of offence has not been proved before the Court which makes the case of prosecution doubtful. In this regard I would like to say that all possible effort has been taken by the Court to secure the attendance of the I.O. and production of material Ext. (weapon) but all in vain. In this regard I would like to say that all possible effort has been taken by the Court to secure the attendance of the I.O. and production of material Ext. (weapon) but all in vain. It is settled principle of law that if the case of prosecution if proved otherwise then none examination of I.O. is not fatal to the prosecution. Likewise the death of the deceased has been proved to be caused by sharp cutting weapon and in such circumstances non production of I.O. and material Ext. is not fatal to the prosecution, more over when the witnesses of seizure deposed before the Court that weapon of offence was seized before him. 25. So far the offence u/s. 341 of the I.P.C. is concerned, all the witnesses examined on behalf of prosecution except hostile witnesses and official witness have unanimously deposed that the door was bolted from inside thus the prosecution has establish its case u/s. 341 I.P.C. I find and hold the accused guilty for the offence u/s. 341 I.P.C. 26. So far the offence u/s. 309 I.P.C. is concerned, by injury report of the accused has not been brought on the record and no cogent evidence has been brought on record by which it can be conducted that the accused attempted to commit suicide and therefore, I find and hold that prosecution has failed to establish its case u/s. 309 I.P.C. and the accused deserve acquittal from the charge u/s. 309 I.P.C. hence acquitted from the charge u/s. 309 I.P.C. 27. Accordingly accused Meghlal Kolh is find and hold guilty u/s. 341 and 302 I.P.C. He is already in custody.” 5. In Sessions Trial No. 240 of 2008, Meghlal Kolh has been convicted and sentenced to RI for life and a fine of Rs.2,000/-under section 302 of the Indian Penal Code with a default stipulation to undergo further SI for three months; and RI for one month under section 341 of the Indian Penal Code. 6. Heard Mr. Mahesh Kumar Sinha (2), the learned counsel for the appellant, Mr. Ashish Verma, the learned Amicus and Mr. Sanjay Kumar Srivastava, the learned APP. 7. 6. Heard Mr. Mahesh Kumar Sinha (2), the learned counsel for the appellant, Mr. Ashish Verma, the learned Amicus and Mr. Sanjay Kumar Srivastava, the learned APP. 7. The judgment of conviction of the appellant has been assailed primarily on the grounds that (i) the prosecution has suppressed the real genesis of the occurrence, (ii) the chain of circumstances is not complete so as to raise a presumption under section 106 of the Evidence Act, and (iii) since the charge under section 309 of the Indian Penal Code was found not proved the appellant would at best be liable to be convicted for culpable homicide not amounting to murder. 8. The law on the circumstantial evidence is by now well-settled. Recently in “Mohd. Younus Ali Tarafdar vs. State of West Bengal” (2020) 3 SCC 747 and “R. Damodaran vs. State Represented by the Inspector of Police” (2021) SCC OnLine SC 134 the law on the subject has been explained by the Hon’ble Supreme Court. 9. In “Mohd. Younus Ali Tarafdar” (supra) the Hon’ble Supreme Court has observed as under: “10. There is no direct evidence regarding the involvement of the appellant in the crime. The case of the prosecution is on the basis of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence as laid down by this Court are: (Anjan Kumar Sarma case, SCC p. 368, para 14) “14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (See Sharad Birdhichand Sarda v. State of Maharashtra, SCC p. 185, para 153; M.G. Agarwal v. State of Maharashtra, AIR p. 206, para 18.)” 10. In “R. Damodaran” (supra) the Hon’ble Supreme Court has observed as under: “13. In a case based on circumstantial evidence, the settled principles of law are that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and such circumstances should be conclusive in nature and moreover the circumstances should be complete and there should be no gap left in the chain of events. However, the circumstances must be consistent only with the hypothesis of the guilt of the accused and inconsistent with the innocence….” 11. There is no witness who has seen the appellant committing murder of his wife. The prosecution has laid circumstantial evidence to establish that the appellant killed his wife and later on tried to commit suicide in repentance. In a case based on circumstantial evidence the prosecution is required to prove such incriminating circumstances of definite tendency which unerringly point towards guilt of the accused. The circumstance that the appellant and his wife were found locked inside a room in their house has been proved by the prosecution and, infact, there is no challenge at all by the defence to controvert this circumstance. There is some discrepancy in the evidence of the prosecution witnesses how the villagers entered the room in which dead body of Malwa Devi was lying in a pool of blood but such discrepancy would have no bearing on the core of the prosecution case. PW6, PW7 and PW8 did not support the prosecution in the Court and they were declared hostile but this set back to the prosecution would also not weaken its case. 12. A plea regarding non-examination of the investigating officer was raised on behalf of the appellant to contend that in view of the inconsistencies and discrepancies in evidence of the prosecution witnesses this flaw in the prosecution case would prove fatal for it. It is well-settled that non-examination of the investigating officer would not ipso facto result in failure of the prosecution case. It is well-settled that non-examination of the investigating officer would not ipso facto result in failure of the prosecution case. In “Behari Prasad vs. State of Bihar” (1996) 2 SCC 317 the Hon'ble Supreme Court has observed that a case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait jacket formula should be laid down that non-examination of the investigating officer per se vitiates a criminal trial. 13. We find that the prosecution has proved presence of the appellant inside the room in which his wife was found dead and he was lying unconscious with serious neck injury. 14. PW1-Gullu Marandi, PW2-Puran Hembram, PW3-Lakhan Kisku and PW4-Birbal Kolh are the co-villagers who have deposed in the Court that on hearing hulla they rushed to the house of Meghlal Kolh and found that the accused and his wife were bolted in a room. PW1 has stated that he heard cries of Malwa Devi and Hiralal Murmu, Birbal Kolh, Puran Hembram, Lakhan Kisku and others also reached at the house of the appellant. He pushed the door of the room but found that it was locked from inside. Ganpat Hazam and Baldeo Rai went to the roof and entered the room making way for themselves by removing the roof tiles. In his cross-examination he has remained unshaken and stated that he is a neighbour of Meghlal Kolh and stays about 40-50 paces away from the house. His testimony to the extent that he entered the room in which Malwa Devi was found dead was seriously challenged by the prosecution and he appears to have faultered in the cross-examination. He has stated that roof of the house was about 15-16 feet above from the ground and Baldeo Rai climbed the roof. To a suggestion from the defence whether he jumped from the roof he has answered in affirmative. This apparently is unbelievable that he would have jumped from a height of 15-16 feet and that too in a room in which two persons were lying in a pool of blood. He has further admitted in the cross-examination that when he entered the room Meghlal Kolh was unconscious. PW2 has also claimed in the Court that he entered the room in which Malwa Devi was killed and that Baldeo Rai opened the door. He has further admitted in the cross-examination that when he entered the room Meghlal Kolh was unconscious. PW2 has also claimed in the Court that he entered the room in which Malwa Devi was killed and that Baldeo Rai opened the door. In his cross-examination he has stated that he did not enter the room and no inquiry was made from him in the police station though he went to the police station. PW3 has also stated that on hearing hulla of Basudeo Kolh he rushed to his house. He has admitted in his cross-examination that Meghlal Kolh was unconscious. The evidence of PW4 is also on the similar lines. He has also admitted in paragraph no. 39 of his cross-examination that Meghlal Kolh was unconscious. 15. The aforesaid statements of the prosecution witnesses do not support the prosecution case that the witnesses have seen Meghlal Kolh slitting his own neck. However, Meghlal Kolh was found unconscious with serious neck injury inside a room which was bolted from inside is proved. What really happened inside the room can be stated by the appellant himself, however, he has exercised his right to remain silent. He was the one who was with his wife inside the room and, therefore, the appellant is required to explain this incriminating circumstance to the Court. 16. In “Phula Singh vs. State of H.P.” (2014) 4 SCC 9 the Hon’ble Supreme Court has observed as under : “11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide Ramnaresh v. State of Chhattisgarh, Munish Mubar v. State of Haryana and Raj Kumar Singh v. State of Rajasthan.)” 17. The appellant has been acquitted of the charge under section 309 of the Indian Penal Code on technical grounds. (Vide Ramnaresh v. State of Chhattisgarh, Munish Mubar v. State of Haryana and Raj Kumar Singh v. State of Rajasthan.)” 17. The appellant has been acquitted of the charge under section 309 of the Indian Penal Code on technical grounds. The learned trial Judge has observed that the injury report of the accused was not brought on record and there was no cogent evidence to establish that he attempted to commit suicide. Notwithstanding acquittal of the appellant from the charge under section 309 of the Indian Penal Code, the failure of the appellant to explain the injury caused to him is another circumstance which persuades us to accept the prosecution story. 18. PW5, Dr. C.K. Shahi who conducted the post-mortem examination on 15.02.2008 at about 05:15 PM has observed one sharp cut wound over upper neck of Malwa Devi. The injury had cut through the skin subcutaneous tissue muscles, vessels and larynx esophagus-cervical vertebra was intact. 19. The prosecution case is that the appellant committed murder of his wife with a farsa. The aforesaid observation of the doctor, however, would indicate that the injury was not caused in a violent attack by farsa. The doctor has explained the cause of death as anoxia and ischemia of brain. Anoxia in medical jurisprudence is absence or deficiency of oxygen in tissues and it generally happens in case of death by strangulation. Ischemia of brain is a condition in which blood supply to the brain is restricted. The prosecution witnesses have stated in the Court that by the time they could enter the room Malwa Devi had died. The medical evidence suggests that Malwa Devi appears to have died due to loss of blood. There is only one injury over her neck and the appellant was also found seriously injured – he was found unconscious. How the incident happened is however not known. From the materials on record we gathered that the son of the appellant when found his father locking his mother inside the room he raised hulla and called the villagers, but no motive is disclosed by the prosecution for the crime. 20. The aforesaid circumstances weaved together portray a picture of a fight between husband and wife during which the husband has suddenly gave one farsa blow to his wife and in repentance tried to kill himself. 20. The aforesaid circumstances weaved together portray a picture of a fight between husband and wife during which the husband has suddenly gave one farsa blow to his wife and in repentance tried to kill himself. In our opinion, the appellant cannot be attributed with intention to cause murder of his wife. An injury over neck would definitely be dangerous and life-threatening but it is also difficult in the circumstances to hold that the appellant really intended to kill his wife. 21. We, therefore, hold that conviction of the appellant under section 302 of the Indian Penal Code is not proper. Accordingly, the judgment of conviction of the appellant, namely, Meghlal Kolh under section 302 of the Indian Penal Code passed by the learned District & Additional Sessions Judge-VIII, Giridih in Sessions Trial No. 240 of 2008 are set-aside. 22. The appellant, namely, Meghlal Kolh is convicted and sentenced to RI for 10 years under section 304 Part I of the Indian Penal Code. 23. Mr. Sanjay Kumar Srivastava, the learned APP states that the letter received from Jail Superintendent, Loknayak Jaiprakash Narayan, Central Jail, Hazaribag discloses that the appellant, namely, Meghlal Kolh who is in custody has served the sentence over 14 years, with remission. 24. Accordingly, the appellant, namely, Meghlal Kolh shall be released forthwith, if not wanted in connection to any other case. 25. In the result, Criminal Appeal (DB) No. 1889 of 2017 is partly allowed. 26. Let the lower Court records be sent to the Court concerned forthwith. 27. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through 'Fax'.