JUDGMENT S.K. Kulshrestha, J.
1. By this appeal, the appellant has assailed the judgment dated 27th June, 1994 of the learned Sessions Judge, Sagar, in Sessions Trial No. 298/93 by which he has been convicted under Sections 302 and 201 of the IPC and, respectively, sentenced thereunder to imprisonment for life and rigorous imprisonment for 7 years. Both the sentences have been directed to run concurrently.
2. The appellant is the husband of deceased Sarojrani who was tied in the nuptial bondage with him in the summers of 1989. This nuptial was blessed with a son in the year 1991 who was, at the time of the incident, about 3 years old. At the time of the incident, Sarojrani was in the house in which the accused lived alongwith other members including P.W. 1 Jiwanlal, though bed- room of the accused was separate.
3. According to the case of the prosecution, accused was unemployed and frustrated by his unemployment, his wife Sarojrani (deceased) used to pressurize him to allow her to go to her parents' place. This attitude of the deceased had led to quarrels between the two, in the past, as the accused was opposed to the idea of her frequently going to the house of her parents. It was on account of this hostility existing between the two that the accused, according to the prosecution, throttled her and after her death, burnt her body by pouring kerosene oil on the body and lighting a match to it and thereafter went away. On being informed by the neighbour Ajay Kumar, Jiwanlal (P.W. 1) rushed to the place of the incident and thereafter informed the police, on the basis whereof, police recorded a "merg" and sent the body for post-mortem. In the report of post-mortem, it was revealed that the deceased had died on account of throttling and the body was burnt later. During investigation, clothes of the deceased, half burnt match stick, a bucket made of iron sheet containing kerosene oil, was seized and sent to the Forensic Science Laboratory, Sagar in which traces of kerosene were found by the Laboratory. On the basis of the evidence collected by the prosecution including the statement of P.W. 7 Chhiddu Shah that the accused had made extra-judicial confession which he did not support at the trial, the prosecution claimed that the accused was the person who had caused the death of his wife Sarojrani by throttling her and thereafter, in order to screen the offence and the offender, he had burnt the dead body and surreptitiously left the house.
4. The accused, on being charged with the offences aforesaid, denied the charges stating that the case of the prosecution was false and pleaded that he was at the Pathak Medical Store when Arvind Rajput informed him that his wife had set herself on fire and when he reached the spot, police had already arrived. The learned Sessions Judge, however, on trial found the accused guilty and convicted and sentenced him as stated above. It is against this conviction under Sections 302 and 201 of the IPC that the accused has preferred this appeal.
5. We have heard the learned Senior Counsel and the learned Additional Advocate General for the respondent/State and perused the record.
6. Learned Senior Counsel for the appellant has stated that the first and foremost requirement to which the prosecution should have addressed itself is the presence of the accused at the time of the incident or around that time in order to draw any inference that the accused alone was the person who could have killed his wife in the aforesaid manner. Learned Senior Counsel has stated that the prosecution has brought no evidence of traces on the clothes of the accused or any recovery of any means used for commission of throttling or any other evidence to connect the accused with the offence in question and merely on far fetched inference that his wife had died of throttling as stated in Autopsy Report, has proceeded against the accused on the assumption that the accused was guilty. In this behalf, learned Counsel has referred to the decision in Harbans Lal v. State of Punjab and Rajkumar v. State of M.P., , and submitted that unless there is something to suggest proximity of the accused to the person against whom the offence had been committed, then merely because the person happens to be the husband of the deceased, it can not be said that he is the person guilty of the offence committed.
7. Learned Additional Advocate General, per contra, has submitted that though no body has stated anything about the presence of the accused at the time or before or after the incident, yet since the accused and his wife were living in a separate room, though in the house occupied by other inmates also, none else was responsible except the accused and, therefore, he has been rightly convicted. Reliance has been placed by the learned Counsel on the decision in State of Karnataka v. K. Gopalkrishna (2005 AIR SCW 949).
8. The point canvassed before us has narrowed down the controversy and, therefore, elaborate discussion on the point relating to the death of Sarojrani and its homicidal nature is not necessary. In fact, since other facts have receded into background, we can straight away proceed to consider the question and the only question involved in the present case; whether the accused can be held responsible for the death of his wife.
9. We have repeatedly asked the learned Additional Advocate General to point out the evidence to the effect that the accused was seen in the house whether before the incident, at the time of the incident or after the incident. Learned Additional Advocate General, as per his usual can-dour, has accepted that such evidence is not there but he has stressed his point on the footing of the case of K. Gopalkrishna (supra). In view of the asphyxial death and the evidence of strangulation leading to fracture of hyoid bone and the fact that the accused was seen in the house only little before the house was put on fire, Their Lordships observed that it was a case where complicity of the accused was patent from the facts on record. It is undisputed in the case in hand that there is not even an iota of evidence to suggest that at the time of the commission of the offence, before or after the commission of the offence, the accused was present. Thus, the observations relied upon by the learned Additional Advocate General do not apply to the facts of the present case on account of the important distinction going to the root of the matter.
10. Learned Senior Counsel has cited Harbans Lal v. State of Punjab (supra). In this case, it has been observed that where the prosecution did not lead any evidence to show that the appellant was living in the house and not in the shop as pleaded by him, he was entitled to benefit of doubt. This case also related to the murder of wife allegedly by husband. Reliance has also been placed on the decision in Rajkumar v. State of M.P. (supra). In this case, Their Lordships have observed in Paragraph 8 as under :--
"The evidence of P.W. 8 does not advance the prosecution case much. During the long gap of 4 1/2 hours in the day time, there was a reasonable possibility of the accused leaving the house to attend to his work or for any other purpose. In fact, P.W. 15 --the brother of the accused who was declared as hostile witness, set up the version that the accused was working at the saw mill at the crucial time but it was not substantiated further. The accused did not, in the course of his examination under Section 313, Cr.PC, clarify whether he was at the house or elsewhere. He just denied the knowledge of the incident. Though it is not safe to act upon the version given by P.W. 15, yet it was the duty of the prosecution to establish that the accused had or necessarily would have remained at the house around the time when the attack took place. The 'last seen' evidence of P.W. 8, even if believed, can not be pressed into service by the prosecution on account of the long time gap, that too during day time. Barring evidence of P.W. 8 who claimed to have seen the accused at 9.00 a.m. at his house, there is no other evidence to establish the presence of the accused in the house proximate to the time of occurrence. Therefore, the vital link in this behalf is missing in the case."
11. Even later view of Their Lordship, as we have come across in the case of Dasari Siva Prasad Reddy v. Public Prosecutor, High Court of A.P. , does not accept the ipso dixit of the prosecution that in the case of the death of wife, the complicity of the husband should be inferred. Observations in Paragraph 23 of the report read as under :--
"23. The High Court then observed that since the plea of alibi is found to be false, it can be inferred that the accused was present in the house in the night of 19-4-1996. The High Court after adverting to the observations in Prabhakar v. State of Maharashtra, , drew the further inference that only the accused and the deceased were in the house at the relevant time and there was no possibility for other to enter into the house. These observations were primarily based on the unreliable evidence of P.W. 4. The High Court's approach in seeking support from the decision in Prabhakar's case is clearly unsustainable. The facts and circumstances in that case unerringly pointed to the presence of the accused at the crucial time and there was no possibility of third person being there. The inferences drawn in that case can not therefore be pressed into service here. If we exclude P.W. 4's evidence, there is no evidence whatsoever to establish the presence of the accused in the house on the crucial night. The fact that the appellant could not establish by cogent evidence that on the night of 19th April, 1996 he remained at the house of his parents in another village does not lead to the necessary inference that the appellant must have remained at his house on the night of 19th April, 1996."
12. In the above case, even on failure of the husband to prove that he was elsewhere, inference that he was there in the house with his wife was found impermissible. We, therefore, find that unless by cogent, trustworthy and reliable evidence it is established as a fact that the husband was present and had the opportunity to strangulate his wife or otherwise cause her death, merely on account of death, by hind sight, it can not be inferred that the husband is the person who caused her death. We make it clear that we should not be understood as laying down that in every case where complicity of the accused is otherwise patent, proof of presence would be imperative. There may be cases where the proof of his presence may become available from the statement in the dying declaration of the deceased or the other circumstances such as hair of the accused in the closed fist of the deceased or the burn sustained by the accused and the like. Such is not the case in hand. What more, the accused has also examined two defence witnesses D.W. 1 Anup Sen and D.W. 2 Santosh Pathak to prove his alibi. However, since the prosecution has failed to prove his presence in or about the time of the commission of the offence, we consider it quite unnecessary to deal with the defence evidence.
13. From the above discussion, we conclude that accused is entitled to benefit of doubt and while the conviction of the appellant under Sections 302 and 201 of the IPC and the sentence awarded thereunder is set aside, he is acquitted of all charges and directed to be set at liberty forthwith if not required in connection with any other matter.