Per D.N Patel, J.
1. This criminal appeal has been admitted vide order dated 23rd January, 2013. Records and proceedings of Sessions Trial No. 269 of 2004 was called for from the trial court, so as to appreciate the arguments for suspension of sentence under Section 389 Cr.P.C
2. This appellant has been convicted by 1st Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No. 269 of 2004 vide order dated 1/3 August 2012, mainly for the offence of murder of his wife, punishable under Section 302 of the Indian Penal Code for life imprisonment.
3. This Court has received the records and proceedings of Sessions Trial No. 269 of 2004. We have perused the same in detail.
4. We have heard the learned counsel for both the sides at great length. Counsel for both the sides has referred and re-referred the evidences collected during the course of investigation.
5. Having heard the learned counsel for both the sides and looking to the evidences on record, there is a prima facie case against this appellant-accused. The incident has taken place on 29th August, 1997 and the murder of his wife has taken place in the house of the appellant. The death has been taken place because of burn injury. We have carefully gone through the evidences on record. It appears that the appellant has not sustained any injury on any part of his body nor even upon his hands. No explanation is coming forthwith from this appellant-husband. It is vehemently submitted by A.P.P that if the appellant is a loving husband, he would have tried to save the life of his burning wife. Looking to the documents on record, it further appears that investigating agency has tried to help the accused and I.O has been examined as a defence witness. It is a mis-fortunate of the victim that though the post-mortem report is on the record, no doctor has been examined. No care has been taken by the prosecution to examine the other police officer, who has gone along with the I.O for investigation nor the doctor has been examined to prove the post-mortem report, which is very vital in this case. But, looking to the evidences on record, there is enough evidence against this appellant-accused, which constitute a prima facie case against him. Moreover, A.P.P has also submitted that looking to the evidences on record, he is also going to prefer an appeal under Section 391 Cr.P.C for taking additional evidence at the appellate stage, because post-mortem report, etc. is already on record, which is a contemporary report and some doctors have also been called in the Court for narrating the same again in the Court. But, looking to the evidences on record, it appears that the murder has been taken place during early hours of 29 August, 1997. Suicidal theory is also not accepted by this Court at this stage, because, if anybody commits suicide by pouring kerosene oil, then there will be a burn injury on the hair and also on the legs, but there is no burn injury on the legs of the deceased. Prima facie, it appears that kerosene oil must have been poured upon the lady, when she was sleeping and she must have sustained severe burn injury, so that she has expired within a couple of hours. Counsel for the appellant has also tried to argue that he was not present in the house, but no such evidence has been laid by the accused or someone else about his presence in somewhere else, because the defence of proving the case of alibi lies upon the accused nor the husband can take a plea that he was sleeping. Once there are severe burn, the wife must have shouted calling anybody. It is also submitted by the counsel for the appellant in his lengthy arguments that culpable homicide is not proved and he has relied upon the judgments reported in (2006) (2) Eastern India Criminal Cases 99, (2006) 3 Eastern India Criminal Cases 219, AIR 1974 SC 778 and (1992) 4 SCC 45 and has submitted that it is not the duty of a loving husband to prove how his wife, at midnight, has sustained a burn injury. We are not accepting this argument.
6. Looking to the depositions of the prosecution witnesses and other evidences on record at this stage under Section 389 Cr.P.C, it is also submitted by counsel for the appellant that no eye-witness has been examined by the prosecution, and therefore, the sentence must be suspended. We are not accepting this argument also that during night hours in a bedroom/house of the appellant, there will not be any independent eye-witness. This is an absurd argument.
7. There are enough circumstances against this appellant-accused based upon the evidences on record, mainly:
(a) No explanation is coming forth from this accused about the death of his wife during early hours of 29 August, 1997;
(b) There is no burn injury upon the hands or at least on the palm of the accused;
(c) Defence of alibi is also not acceptable, because the accused has not proved his presence at other place, that is other than the place of scene of offence.
(d) There is no proof about unsoundness of mind of the wife nor such defence has been taken by the accused, even in his statement recorded under Section 313 Cr.P.C
8. As much length arguments have been canvassed, we think this is sufficient to reject the prayer for suspension of sentence under Section 389 Cr.P.C, otherwise, there are several evidences on record, which goes against this appellant.
9. We hereby direct the Registrar General of this Court to get the paper books prepared with neatly typed copies of depositions of the witnesses and other documents, as required under Rules 190 and 191 of the Jharkhand High Court Rules, 2001 and place this matter for final hearing in the 2nd week of June, 2013.
10. We hereby direct Mr. Awadh Kishore Singh S/o Late Ram Awatar Singh, resident of Village-Saram, P.S- Gomia, District-Bokaro to be joined as party-Respondent No. 2, especially when I.O is examined as defence witness.
11. Notice be issued to Respondent No. 2.
12. We hereby direct the head of Bermo police station, District-Bokaro, to serve notice to the newly joined party-Respondent No. 2.
13. Notice is made returnable on 15 April, 2013.
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