Circumstantial evidence in domestic murder cases places the burden of explanation on the accused; failure to do so can lead to conviction.

1. This appeal has been filed against the judgment of conviction and order of sentence dated 30.04.2011 passed by the Additional Sessions Judge Bemetara, district Durg in Sessions Trial No. 41/2010 convicting the accused / appellant under S.302 and S.201, IPC and sentencing him to undergo imprisonment for life with fine of Rs.1000/- u/S. 302 and RI for five years with fine of Rs.500/- u/S. 201, , plus default stipulations.

2. Name of the deceased in the case in hand is Kanti Bai - wife of the accused / appellant. Their marriage was solemnized about six years prior to the date of incident i.e. 29.05.2010 and out of the wedlock one female child was also bom. Case of the prosecution is that the accused / appellant used to doubt the fidelity of the deceased and subject her to beating for that. On 30.05.2010 at about 6 a.m. one Beni Prasad Tiwari is said to have informed the father of the deceased namely Gaya Prasad Tiwari (PW - 7) about receiving a telephonic information about her death. On receiving the said information father of the deceased along with his son Ashok Kumar Tiwari (PW - 9), brother - in - law Kunj Bihari Tiwari (PW - 8) and some other persons went to village Sonpuri where accused and the deceased resided, and by the time they reached there, body of the deceased was already taken to the cremation ground for the last rites. On seeing the blood coming out of her mouth and froth out of the nostrils and a mark on her neck, he and his relatives grew a suspicion that she might have been killed by throttling and therefore, he asked the people present there not to perform the last rites. He then informed the police about the death of the deceased vide Ex. P - 6. On arrival of the police party to the cremation ground and nurturing the suspicion of some foul play, inquest was made vide Ex. P8 and the body was sent for post - mortem examination which was conducted by Dr. S.K. Sharma (PW - 1) with the assistance of Dr. A.M. Shrivastava (PW - 2) vide report Ex. P - 1. As per query report Ex. P - 3 given by PW - 2 the cause of death was strangulation and the death was opined to be homicidal in nature. After merg inquiry, FIR Ex. P - 16 was registered on 02.06.2010 against the accused / appellant and his mother Shakuntala Pandey for the offences punishable under S.302, S.201 and S.34, IPC . Vide seizure memo Ex. P - 11 one nylon rope was seized from the house of the accused / appellant though there is no FSL report on record. After completion of investigation, charge sheet was laid by the police against the accused / appellant and his mother Shakuntala Pandey for the offences punishable under S.302, S.201, S.34, followed by framing of charges accordingly.

3. To hold the accused persons guilty the prosecution has examined 15 witnesses in support of its case. Statements of the accused persons have also been recorded under S.313 of the Code of Criminal Procedure in which they denied the allegations made against them and pleaded innocence and false implication in the case. Defence also examined two witnesses namely Kadanand Singh Verma (DW - 1) and Bhagwan Das (DW - 2) in support of its case.

4. After hearing the parties the Court below acquitted co - accused Shakuntala Pandey of the charges levelled against her but has convicted and sentenced the accused / appellant herein as detailed in paragraph No. 1 of this judgment.

5. Counsel for the accused / appellant submits as under:

(i) That in the house in question, apart from the accused / appellant, his mother and father were also residing and therefore it cannot be said that it is the accused / appellant alone who has committed the offence alleged.

(ii) That, the house was accessible to one and all and being so the possibility of some third p