JUDGMENT :

MUKTA GUPTA, J.

1. The present appeal has been filed by the appellant challenging the impugned judgment dated 18th April, 2018 passed by the learned Additional Sessions Judge convicting the appellant for offence punishable under Section 302 IPC and the order on sentence dated 1st May, 2018 whereby he has been directed to undergo imprisonment for life with a fine of Rs.50,000/- in default whereof to undergo simple imprisonment for six months.

2. A brief background to the passing of the impugned judgment is that pursuant to registration of FIR No. 399/2009 at PS New Ashok Nagar a charge-sheet was filed against the appellant and his parents, namely, Faiz Mohd. and Salma for offences punishable under Section 302/498-A/34 IPC. Pursuant to the trial, vide judgment dated 28th March, 2014 appellant Mohd. Anish was held guilty of the offence punishable under Section 302 IPC for having committed the murder of his wife/ Manju @ Shahin and Mohd. Anish and his parents, namely, Faiz Mohd. and Salma were convicted for offence punishable under Section 498-A/34 IPC.

3. The convicts preferred appeals before this Court being CRL.A. 534/2014 filed by Faiz Mohd. and Salma challenging their conviction and order on sentence for offence punishable under Section 498-A/ 34 IPC and Mohd. Anish filed CRL.A. 777/2014 challenging his conviction and order on sentence for offences punishable under Section 302 IPC and 498-A/34 IPC.

4. Vide the judgment dated 28th March, 2014 appellant was convicted for the murder of his wife for the reason he was present at home and thus the onus shifted on him under Section 106 of the Indian Evidence Act, to explain under what circumstances she died, however, the PCR official who stated that the appellant was at home was not examined thereby missing out on material evidence. The appeals were thus decided vide the judgment dated 24th September, 2014 whereby Mohd. Anish, Faiz Mohd. and Salma were acquitted for the offence punishable under Section 498-A IPC. However, as regards the conviction of Mohd. Anish for offence of murdering his wife was concerned, the matter was remanded back for further evidence to be led before the Trial Court by examining In-charge of the PCR van which reached at the spot after receiving of the information of a girl being killed. This direction was passed for the reason that in the PCR Form it was recorded that the husband of the deceased was present in the house.

5. Relevant portion of the judgment dated 24th September, 2014 in CRL.A. 777/2014 remanding back the matter is as under:

“2. Our reasons for acquitting Faiz Mohd and Salma and for the remand concerning Mohd.Anish.

3. Dead body of Manju @ Shahin, who was a Hindu by birth but converted to Islam after contracting marriage with Mohd.Anish admittedly died in her matrimonial house and information regarding the death was received at the Police Control Room on September 22, 2009 at 16:07:03 hours.

4. One Pramod had conveyed the information to the Police Control Room which was noted in the PCR Log by L/H.Ct.Nimmo. She wrote on the PCR log that a caller had informed that a Hindu girl had been killed by Muslim.

5. Appearing as PW-16, L/Ct.Nimmo has proved only limited part of the PCR form as Ex.PW-16/A. A further writing by her in the PCR log at 16:50:38 hours that the in-charge of the PCR van which had reached the spot had met the husband at the house and had told him that his wife died due to infection on applying ‘mehandi’ has not been proved.

6. On the evidence led, there being no evidence that Mohd.Anish was present in his house when his wife died, and the time of death being late afternoon, the learned Trial Judge has wrongly applied the law that where a husband is present in the house when his wife dies, unless he satisfactorily explained how she died, if the death is homicidal, an adverse inference can be drawn. In the instant case the evidence does not prove that Mohd.Anish was present in the house.

7. Unfortunately, the prosecution which had