IMPORTANT POINT
When the accused being alone with the deceased is not able to explain the circumstances of homicidal death of the deceased and does not discharge onus on him u/c 106, Evidence Act, his conviction u/s 302 IPC cannot be faulted.

JUDGMENT

NAVIN SINHA, J.

The appellant is aggrieved by his conviction under Section 302 IPC sentencing him to life imprisonment, and under Section 25 of the Arms Act for one year.

2. The appellant submitted a written report to the police that in the night intervening between 24/25.03.2002, at about 01:30 AM, three hooligans entered his house to abduct him. His wife was shot dead by the miscreants after a scuffle when she tried to prevent them from doing so. One firearm injury was found on the person of the deceased, with an entry and exit wound. On consideration of the evidence, the appellant was convicted by the trial court and which has been upheld by the High Court.

3. Dr. Surender Singh Hooda, learned counsel for the appellant, submitted that the present is a case of circumstantial evidence. Relying on Sharad Birdhichand Sarda vs. State of Maharashtra, 1984 (4) SCC 116, it was submitted that the links in the chain of circumstances had not been established pointing conclusively towards the guilt of the appellant alone. Mere suspicion, no matter how strong, cannot be the basis of conviction. No incriminating circumstances were put to the appellant under Section 313 Cr.P.C. The High Court has disbelieved the recovery of the country made pistol on the alleged confession of the appellant under Section 27 of the Evidence Act, 1872. The conviction of the appellant is unsustainable and he is entitled to acquittal.

4. Mr. Jatinder Kumar Bhatia, learned counsel appearing for the State and Mr. Sanjay Kumar Dubey, learned counsel appearing on behalf of the relative of the deceased, whom we permitted to address us allowing his application for impleadment, submitted that the motive of the appellant stands clearly established to obtain the benefit of the Life Insurance Policy ( LIC) taken few days earlier in the name of the deceased. The plea of entry by outsiders has been completely disbelieved in absence of any evidence. The occurrence having taken place at past midnight when the appellant was alone at home with the deceased, the onus shifts on him under Section 106 of the Evidence Act to explain the circumstances under which his wife met a homicidal death. The appellant failed to furnish any plausible defence.

5. We have considered the submissions on behalf of the parties and also perused the evidence on record. The appellant had taken an LIC policy in the name of his deceased wife on 23.03.2002, barely few days before the occurrence. PW­4, brother of the deceased, deposed that they reached at six in the morning after being informed of the death of his sister by others and not the appellant. The mother of the deceased PW­6 deposed that the appellant was greedy for money and prior to the occurrence he had demanded Rs.10,000 from the witness.

6. The appellant initially stated in the FIR that three persons entered his house at midnight to abduct him. In his evidence as DW­1 he stated that there were five persons. If the intruders had come to abduct the appellant and his wife had been shot dead after she tried to prevent his abduction, it would have been all the more convenient for the intruders to take the appellant away with them. No explanation has been furnished by the appellant in this regard. The appellant has not mentioned any reason or named any on suspicion of enmity or otherwise why the intruders wished to abduct him. No details of the physical features and approximate age, height, built of the intruders has been mentioned even if they had their faces covered despite the fact that the spot map proved by PW­9 and PW­13 establishes the light of an electric bulb. The appellant initially took the defence that he suspected his wife of having an illicit relationship. The defence of unknown intruders having entered by scaling the northern side wall built of mud and cement is belied by the spot map and evidence that no damage or marks were found on the wall. Not a single brick was found disturbed and neither were there any foot marks in the mu