IMPORTANT POINTS
When presence of accused on the scene of occurrence at the time of occurrence is not established by any persuasive evidence, presumption u/s 106, Evidence Act, 1872 will not be attracted.
Wrongful acquittal should be preferred over wrongful conviction.
When circumstances do not absolutely rule out innocence of the accused, it will be unsafe to maintain conviction. Benefit of doubt should be extended to the accused.

JUDGMENT :

AMITAVA ROY, J.

The appellant stands sequentially convicted by the both the Courts below under Section 302 of the Indian Penal code (for short, hereinafter to be referred to as “IPC”) and resultantly sentenced to suffer imprisonment for life and also to pay fine of Rs. 10000/-.

2. At the trial, he along with his brother Benny Joseph, were indicted under Sections 498A/Section 302 IPC read with Section 34 IPC for having murdered his wife Neena. The Trial Court however acquitted both of them of the charge under Section 498A IPC. The co-accused was also acquitted of the other charge. To reiterate, the conviction of the appellant under Section 302 IPC having been sustained by the High Court, he seeks panacean intervention in the instant appeal.

3. We have heard Mr. Basant R., learned senior counsel for the appellant and Mr. G. Prakash, learned counsel for the respondents.

4. To appropriately outline the factual premise, apt it would be at the threshold to present the fascicule of the rival projections.

5. The appellant was a police constable at the time of marriage with the deceased on 19.6.1986 as per their customary rites whereafter they set up their matrimonial home to start with at their family house and thereafter at the places of his postings in service. Allegedly, he developed an extra-marital relationship with one lady named Darly for which he used to ill-treat and harass his wife both physically and mentally whenever she used to express her reservations and objections to such alliance. According to the prosecution, under the influence of the said lady, the appellant even resigned from his job and proceeded for Jeddah in the year 1997 where he and the said Darly lived as husband and wife. It is alleged that in order to legalise the relationship, the appellant plotted to eliminate the deceased and with that end in view, returned to India on 22.8.2000. He thereafter accompanied Neena, the deceased, for a spiritual retreat to “Potta Divine Retreat Centre” but abruptly cut short their stay thereat and returned home on 19.9.2000. The accusation is that after their return on that date, sometime in between 6.30 to 8.30 p.m., the appellant smothered the deceased inside the room of his house, strangulated her by using a plastic rope and then hanged her from a hook of the roof of the work area of the house by using a saree and thus brutally murdered her. The prosecution has imputed that in this heinous act, the co-accused his brother, who since has been acquitted, had assisted him.

6. The information of this incident was lodged by Mr. Cheriyan @ Papputy with the Koonachundu Police Station whereafter the the appellant and the co-accused, his brother were arrested on 21.9.2000 and 15.11.2000 respectively. On the closure of the investigation, charge-sheet was laid against both the accused persons under Sections 498A/ 302 read with Section 34 IPC and eventually, the case was committed for trial to the Sessions Court, Kozhikod.

7. The accused persons denied the charge and claimed to be tried, whereafter the prosecution examined 25 witnesses including the doctor, who performed the post-mortem examination on the dead body as well as the investigating officer. Several documents were also proved and exhibited. The accused persons were examined under Section 313 Cr.P.C. They stood by their denial and refuted the correctness of the incriminating circumstances with which they were confronted. They also examined three witnesses in defence.

8. The Trial Court, to reiterate, on a scrutiny of the evidence of the record and after analysing the rival contentions, acquitted both of them of the charge under Section 498A but held the appellant guilty of the offence of murder of his wife Neena and convicted him under Section 302 IPC and sentenced him as above. The co-accused was exonerated of the charge under Section 302 IPC as well. The appellant failed to secure his acquittal before the High Court, which by the verdict impugned, has sustained the dete