The failure to properly question the accused regarding key circumstantial evidence can lead to serious prejudice and a miscarriage of justice, necessitating the reversal of a conviction.

JUDGMENT

Per Gautam Kumar Choudhary, J. Sole appellant is before this Court in appeal against the judgment of conviction and sentence passed under Section 302 of the IPC.

2. Appellant is the first wife of Suleman Ansari and as per the prosecution case, she committed the murder of the second wife of her husband.

3. Informant (P.W. 1) is the father of the deceased-Shakila Bibi. As per the FIR lodged on 22.09.1991, his daughter Shakila was married to Suleman Ansari about 7 – 8 years ago before the incidence. His daughter was the second wife of Suleman Mian, as he had no child from his first wife therefore, he contracted second marriage with her. After the marriage, there used to internecine quarrel between the deceased and the appellant and she even threatened her life. On 22.09.1991, nephew of his son-in-law gave the message that his daughter had died of diarrhea. On getting this information when he went there, from the appearance of the dead body, it appeared that she had died of poisoning. From neighbors, he came to know that his daughter was hale and hearty till the evening on 21.09.1991 and suddenly died at night. At the time of incidence, his son in-law was not at home, as he had gone to Madhya Pradesh for some business. It is alleged that appellant in conspiracy with the brother of Suleman Mian had poisoned the deceased to death.

4. On the basis of the written report, Dhurki P.S. Case No.36/91 was registered under Sections 302, 328, 120B of the IPC against this appellant and Kasim Mian. After investigation, charge sheet was submitted against these two accused persons, who were jointly put on trial under Sections 302/34 and 120B of the IPC. Altogether seven prosecution witnesses have been examined and thereafter, statement of appellant was recorded under Section 313 of the Cr.P.C. Defence is of innocence, but no specific defence has been pleaded.

5. Learned trial Court gave benefit of doubt to Kasim Ansari and convicted the appellant under Section 302 of the IPC.

6. It is argued by the learned counsel on behalf of the appellant that there is no direct eye witness to the incidence and the appellant has been convicted on mere suspicion. As per the FIR, death was due to poisoning, whereas as per the post-mortem report, death was due to throttling. There was no direct eye witness and the prosecution case rests on circumstantial evidence in which chain is not complete from which an inference of guilt of the appellant can be drawn. I.O has not been examined and there is material discrepancy in recording the statement of the appellant under Section 313 of the Cr.P.C.

7. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that there was history of past bickering and quarrel between the appellant and the deceased. At the time of incidence, the appellant was alone with the deceased, who died of throttling as per the post-mortem examination report. Law of evidence does not cast unconscionable burden on any party to prove a fact in issue. Since the death occurred at home when the husband was away in the sole company of the appellant, it was incumbent on her part under Section 106 of the Evidence Act to throw light on the homicidal death of the deceased. Appellant has not discharged the statutory burden, thereby leading to the only conclusion that it was the appellant who was author of the crime.

FINDING

8. Death is a reality of life, but its cause is a matter of investigation when attending circumstance cast cloud over the natural death of a person.

9. In the present case, daughter of the informant died a homicidal death is established by the post-mortem examination report (Exhibit 2). Autopsy Surgeon (P.W. 6) noted ante mortem injuries (bruises and abrasions) on the dead body and opined that death was due to Asphyxia by pressing of neck.

10. Informant (P.W. 1) has deposed that appellant being the first wife, had no child and his daughter (deceased) was blessed with two daughters. It was for this, she used to assa