RESERVED
Court No. - 45
Case :- CRIMINAL APPEAL No. - 5263 of 2005 Appellant :- Naresh Kumar Sharma Respondent :- State Of U.P.
Counsel for Appellant :- Ghanshyam Joshi,B.K.Tripathi,Manish Kesharwani,Noor Mohammad,S.K.Tripathi,Sangam Lal Kesharwani,Vijai Bahadur Shivhare,Yanendra Pandey,Yashpal Singh,Yogesh Srivastava Counsel for Respondent :- Govt. Advocate
Hon'ble B. Amit Sthalekar,J. Hon'ble Ali Zamin,J.
(Delivered by Hon'ble B. Amit Sthalekar, J)
This is an appeal against the judgment and order of the trial court dated 25.11.2005 passed by the Additional Sessions Judge, Moradabad in Sessions Trial No. 145 of 2004 under Section 302 IPC, Police Station-Dilari, District-Moradabad whereby the appellant Naresh Kumar Sharma has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs.1,00,000/- and in case of default further imprisonment of three years.
Briefly stated the facts of the case are that an F.I.R. was lodged by the appellant alleging that on the night of 12/13.10.2003 he was sleeping inside his house in the room on a cot and his wife aged about 25 years was also sleeping in the room on another cot. At about 12:45 am in the night four persons came into the room and shot and killed his wife. Hearing the sound of the firearm the informant woke up and saw four persons running away out of whom two persons were wearing Pant and Shirt and two were wearing Kurta Pajama and one person was wearing a Tehmat (Lungi) and a Kurta. He also stated that there was enmity between him and one Amar Singh S/o Prem Singh Yadav of the same village and he suspected that Amar Sigh would be involved in the murder of his wife. In the F.I.R. it was also stated that these four persons had actually come to murder him but by mistake they killed his wife. The F.I.R. was lodged at about 2:45 am in the same night. The case was investigated by Devendra Pal Singh, S.O., P.S. Dilari, Moradabad who visited the spot at about 7:00 am on 13.10.2003. The Investigating Officer prepared the site plan (Ext. Ka-6) and inquest report (Ext. Ka-7). He also prepared the relevant documents and dispatched the dead body for postmortem.
P.W.6 Dr. Sunil Kumar conducted the autopsy on the dead body and prepared postmortem report Ext. Ka-2 according to which following injury was found.
“(1) Gunshot wound of entry 2cm x 2 ½ cm x chest cavity deep over front of chest body of sternum. There is no blackening or charring.
(2) Left and Right Lungs-Lacerated with recovery of 23 small metallic pellets.
(3) Pericardium- Lacerated with recovery of 11 small metallic pellets.
(4) Heart- Lacerated with recovery of 16 small metallic pellets and one cap plastic and one cork (wading) weight 180 gm.
(5) Chest cavity full of blood with recovery of 20 small metallic pellets.”
The accused Naresh Kumar Sharma, husband of deceased Mamta was arrested on 15.10.2003 at about 5:00 am in the morning from his house and his confessional statement was recorded in the presence of witnesses and on his pointing recovered country made pistol and prepared recovery memo of country made pistol (Ext. Ka- 14) and site-plan (Ext. Ka-15) from where the country made pistol was recovered. After completing the investigation, charge sheet (Ext. Ka-16) under Section 302 IPC was filed on 21.10.2003 against appellant/accused Naresh Kumar Sharma.
To prove its case, prosecution produced following witnesses:-
• Amar Singh was made Prosecution Witness (P.W.-1).
• P.W.-2 whose name is also Mamta, is the sister of the accused.
• P.W.-3 is one Vimla, mother of the accused.
• P.W.-4 Pooja is also sister of the accused.
• P.W.-5 Narendra Kumar is stated to be the grand father in relation of the accused.
• P.W.-6 is the Doctor, Sunil Kumar , Medical Officer, Community Health Centra, Sahara who conducted the postmortem of the deceased.
• P.W-7, Bablesh Kumar is an independent witness for the prosecution.
• P.W.-8 Devendra Pal Singh, Sub-Inspector who is the IO of the case.
After adducing the prosecution evidence, the statement of the accused-appellant under Section 313 Cr.P.C. was recorded in which he has stated that his relation with his wife was cordial and he has not committed murder of his wife and the Investigating Officer has submitted false charge sheet against him as he is friend of Amar Singh. The learned trial court after hearing the learned counsel for the parties and perusal of the record passed the impugned judgement and order as disclosed in para 1 of this order. Hence, this appeal.
The P.W.-1 Amar Singh in his testimony has stated that he is the Gram Pradhan of the village and at the time of the incident also he was the Gram Pradhan. He has stated that appellant-accused Naresh Kumar Sharma has named him in the F.I.R. for the murder of his wife only because of groupism (party bandi). He has stated that there was party bandi between him and one Chattar Singh of the same village and that the accused-appellant was an associate of Chattar Singh. He further stated that earlier in the same village one Santram S/o Om Prakash had been murdered in which the accused- appellant Naresh, Chattar, Kullu and Gajram were framed as the accused and that he (Amar Singh) used to do pairvi of that case and that is why the accused-appellant bore an animus towards him and because of this animosity the accused-appellant has named him in the F.I.R. This witness has also stated that the accused-appellant was having an affair with his brother-in-law's daughter (i.e. daughter of his wife's brother). He further stated that immediately after the incident police also came to his house but later on told him that the accused-appellant Naresh Kumar Sharma had named him as having murdered his wife and had lodged an F.I.R. against him. The P.W.-1 has also stated that it was a small village and immediately after the murder it was the talk in the village that Naresh had murdered his wife and he also acquired knowledge of the same from the villagers.
The P.W-2 Mamta in her testimony has stated that at the time of the incident she was sleeping in the verandah of the house with her sister Pooja and another sister Kiran whereas her mother and father were sleeping in the gher (area outside the constructed portion of the house) which is about 100-150 metres away from the house. On the night of the incident at about 12:30 am a sound of firearm was heard from the room in which her brother Naresh and his wife were sleeping adjacent to the verandah. She also stated that she did not see her brother coming out of the room but she heard her brother shouting “maar diya, maar diya”. When she went inside the room she saw that her sister-in-law (Bhabhi) had been shot by a firearm and was breathing slowly and after sometime she succumbed to her injury. The P.W.-2 has further stated that she did not see her brother come out of the room with a country made pistol (Tamancha). In her cross examination she has stated that she alongwith her sisters was sleeping hardly 7-8 steps from the place where her sister-in-law (deceased) was sleeping. This witness was, however, declared hostile during trial.
P.W.-3 Vimla, stated that on the night of the incident at about 12 O' clock she, her husband and her younger son Gaurav were sleeping in the gher whereas her daughters Pooja and Mamta and the accused-appellant Naresh along with his wife Mamta (deceased) were sleeping in the house. The gher was at a distance of 20-25 steps from the house where the murder took place. When she heard the sound of her children crying, she alongwith her husband went to the house and saw her daughter-in-law lying dead on the cot in the verandah. She had been shot and Naresh Kumar Sharma accused- appellant, her son was standing at some distance. The P.W.-3 also stated that her son did not speak to her and did not tell her anything about the incident and she also stated that it is not in her knowledge as to who shot her daughter-in-law. This relevant portion of the statement is reproduced below:-
^^ esjs yM+ds dh eq>ls dqN ckr ugha gqbZ mlus eq>s dqN ugha crk;k FkkA esjh tkudkjh essa vkt rd ;g ugha vk;k fd esjs yM+ds dh chch dks fdlus ekj fn;kA^^ However, this witness has denied that Naresh had shot his wife and killed her. She also denied that the accused-appellant was having an affair with Neelam (his brother-in-law's daughter). This witness was also declared hostile.
The P.W.-4 Pooja sister of the accused-appellant who was also sleeping in the verandah immediately outside the room where the incident had occurred has stated that she did not hear the sound of firearm nor did she see her brother (accused-appellant) running with a country made pistol (Tamancha) after shooting her sister-in- law. In her cross examination, however, she has stated that she does not know who killed her Bhabhi (sister-in-law). This witness was also declared hostile during tiral.
The P.W.-5 Narendra Kumar who is a resident of the same village has identified his signature on paper no. 5/27 which is the recovery memo of the country made pistol and also identified Ext. Ka-14. However, he went on to state that no recovery was made in his presence nor was any report written in his presence but that his signature was taken by the Constable in the Thana. What is however, interesting is that in his deposition u/s 313 Cr.P.C. during trial the accused has not denied his thumb impression on the recovery memo Exb. Ka-14 or that the recovery of country made pistol with empty cartridge in it was made in the presence of Bablesh Kumar, P.W.-7 and Narendra Kumar, P.W.-5. The appellant has not elaborated or explained as to how his thumb impression came to be put beside the signature of the Investigating Officer, P.W.-8.
P.W.-6 Dr. Sunil Kumar, is the medical officer who conducted postmortem of the body of the deceased on 13.10.2003 at about 1.30 pm and has stated that death was caused by a firearm. He has stated that lungs were also found lacerated and 23 metallic pellets were found inside them. Pericardium was also lacerated and 11 small metallic pellets were recovered therefrom. Heart was also lacerated and 16 small metallic pellets, one plastic cap and one wadding cork was also recovered. Chest cavity was filled with blood and from it 20 small metallic pellets were recovered. He further stated that injuries are antemortem and were caused by fire- arm shot from a close range.
P.W.-7 Bablesh Kumar is an independent witness who has turned hostile and has stated that no county made pistol was recovered from the pile of chaff on the pointing out of the accused- appellant in the presence of police or in his presence. He also stated that the accused-appellant had not made any statement in his presence to the police that he killed his wife with this very country made pistol on the night of 12/13.10.2003. However, this witness had identified his signature on paper n. 5/27 which is the recovery memo. He has also denied that any statement was made by him to the police under Section 161 Cr.P.C.
The P.W.-8-Sub-Inspector, Devendra Pal Singh is the Investigating Officer who had conducted the investigation of the case and had stated that on receiving information, he made entry in the general diary on 13.10.2003 at 2:45 am. He went to the house of the accused-appellant and investigated the premises at 7:00 am on 13.10.2003, prepared the site plan and prepared inquest memo of dead body duly sealed before sending the body for postmortem. This witness has also stated that on 15.10.2003 when the police reached the village the accused-appellant tried to run away upon which he was caught by the police and thereafter, the statement of the accused-appellant was recorded and entry made in the case diary. The IO during his examination-in- chief has stated that the accused took out the country made pistol from the pile of chaff kept in a shed in the barrel of which there was an empty cartridge. The IO also stated that the accused-appellant while handing over the country made pistol to him disclosed that on the night of 12/13.10.2003, he had shot and killed his wife with the same country made pistol. The IO also stated that in the presence of witnesses he had prepared the recovery memo of the country made pistol which is Paper no. 27 which was verified by him in court and the witnesses as well as the accused-appellant had also signed the recovery memo which was marked as Ext. Ka-14. The IO also proved the Ext. Ka-15 which is the site plan prepared by him. He also proved the country made pistol as Ext. 2 and the empty cartridges as Ext. 3 as recovered by him. He also stated that he had recorded the statement of the accused-appellant on 13.10.2003, two days before the recovery of the country made pistol from the pile of chaff. The witness also stated that he had questioned Amar Singh and recorded his statement on 21.10.2003 but had not arrested him. The IO denied that he was trying to shield Amar Singh because he was the Gram Pradhan. The witness had also stated that no bullet/pellet was recovered from the site of murder in the room of Naresh accused (appellant herein).
We have heard learned counsel for the appellant, learned AGA for the State.
The learned counsel for the appellant submitted that the appellant had immediately after the shooting of his wife raised a cry and in the F.I.R. which was also lodged by him he had clearly mentioned that he suspected Amar Singh to be involved in the murder of his wife. He further submitted that the police did not arrest Amar Singh because he was a well-known and wealthy person of the village as has already been stated by the IO in his testimony and, therefore, the entire investigation as well as the trial has been vitiated. The learned counsel submitted that prosecution witnesses Mamta, Vimla, Pooja, P.W.-2, 3 and 4, respectively, had clearly denied the involvement of the accused-appellant in the murder of his wife. Much stress was laid by the learned counsel for the appellant on the fact that no bullet/pellet was recovered from the room in which the deceased was shot and in the absence of the bullet, the Forensic Science Laboratory report also could not link the country made pistol and cartridges recovered from the pile of chaff with the murder of the deceased and therefore, there was absolutely no material to connect the appellant with the murder of his wife.
Per contra, learned AGA submitted that the incident was caused in the room in which appellant and the deceased, wife of the appellant were sleeping. Appellant himself lodged the FIR stating that four persons came in the night at about 12:45 am and killed his wife by shooting mistakenly and that actually they had come to commit his murder. In the FIR it is stated that on hearing sound of the firearm the appellant woke up and saw four persons running away but just infront of the door of the room in which appellant and the deceased were sleeping, his sisters Mamta, Km. Pooja and Kiran were sleeping in the verandah. Vimla, mother of the appellant and father Rajendra Kumar were also sleeping in the gher of the house but no one has supported the story of the appellant. Since death occurred in the room in which appellant was also sleeping, strong burden was on him. The story set up by the appellant is not established and in the facts and circumstances of this case as well as the evidences adduced, it is proved that appellant is the person who has killed his wife and learned trial court has rightly convicted and sentenced him. No interference is required by this court and the appeal is liable to be dismissed.
We have considered the submissions of learned counsel for the parties and carefully perused the record.
It is an admitted fact that on account of firearm injury which is also supported by postmorterm report (Exbt. Ka-2) and proved by P.W.-6 Dr. Sunil Kumar, Smt. Mamta wife of the appeallant died in the intervening night of 12/13.10.2003 in the room in which she was sleeping alongwith the appellant.
As per inquest report (Ext. Ka-7) dead body of the deceased was found on the cot in the room. She was wearing a yellow color peticot, red color blouse. In the blouse on the chest there was a hole having blackening. P.W.-6 Dr. Sunil Kumar who conducted the autopsy on the dead body of the deceased also found at the time of autopsy peticot and blouse alongwith other things and handed over the same to the Constable. If the Investigating Officer found such clothes on the body of the deceased in that condition on a blush one can identify her to be a lady. In that case, the story set up by appellant that actually the culprits had come to commit his murder but had mistakenly committed murder of his wife, is not believable. Apart from this, the story of the appellant is also not believable for the reason that if culprits come to commit murder of a particular person, they would first ascertain the identity of the person and only then they would commit murder.
There is an interesting aspect to this case. The appellant who is also the informant of the case has stated that he woke up hearing the sound of fire-arm and saw four persons running away. Two persons were wearing pant and shirt, two persons were wearing kurta and pajama and one was wearing a tehmat (lungi) and kurta. If these figures are numerically added it would come to five which means that there were five persons and not four but the appellant has mentioned only four persons as running away from the room. P.W.-2 who is the sister of the appellant and whose name is also Mamta has stated that she alongwith her sisters Pooja and Kiran was sleeping in the verandah immediately outside the room where this incident occurred whereas her father and mother were sleeping in the gher. Interestingly, this witness has stated that she did not see the appellant coming out of the room immediately after firing but after he came out of the room he shouted that someone has killed his wife. She has also stated that she alongwith her two sisters was sleeping hardly 7-8 steps from where her Bhabhi (sister-in-law) the deceased, was sleeping. In such circumstances, it is very difficult to accept that if there were four persons who had entered the room and fired a shot and killed the deceased, this witness neither saw these persons in the room as she rushed into the room immediately after hearing the sound of the fire-arm nor does she say that she saw any person running away from the house. It is also surprising that the appellant did not make any effort to provide medical aid to his injured wife.
P.W-4 Pooja who is also a sister of the appellant states that she was sleeping hardly 10-12 steps from her Bhabhi (deceased) but she did not hear the sound of any firearm. In her cross examination she also states that she does not know who shot her Bhabhi. She has nowhere stated that the appellant, immediately upon her waking up, had at any time shouted that some assailants had shot and killed her Bhabhi. She does not even mention that her brother had disclosed to her that four persons had entered the room and shot the deceased and were running away. From the statement of this witness the conduct of the appellant after the incident does not appear natural.
P.W.-3 Vimla who is the mother of the appellant has stated that she along with her husband and younger son was sleeping in the gher (portion of the house outside the constructed portion) and that she was awakened hearing the sound of crying of her children and that when she went to the spot where the murder is stated to have taken place, she saw the appellant just standing there and that she did not have any conversation with her son and that the appellant did not disclose anything to her. She has also stated that she did know who had shot her daughter-in-law. This is very surprising that if the story set up by the appellant that he had seen four persons running away from the house after shooting and killing his wife he would not disclose this fact to his mother or sisters who were present there all the time. In this view of the matter it is quite clear that the sisters and mother of the appellant are clearly trying to shield the appellant.
Learned counsel for the appellant, at this stage submitted that since P.W.-2 and 3 had been declared hostile, therefore, their testimony is wholly unreliable and cannot be taken into account and ought to have been rejected in its entirety.
The submission of the learned counsel is wholly misconceived. The law in this regard has been settled by the Supreme Court in a catena of judgments. In (1996) 10 SCC 360, State of U.P. Vs Ramesh Prasad Misra and Another, the Supreme Court has held that the evidence of a hostile witness cannot be totally rejected, if spoken in favour of the prosecution or the defence but it can be subjected to close scrutiny and that part of the statement which is consistent with the case of prosecution or the defence may be accepted. Similar view has been taken by the Supreme Court in the following cases:-
i) Krishna Mochi Vs State of Bihar, (2002) 6 SCC 81
ii) K. Anbazhagan Vs Superintendent of Police and Others, (2004) 3 SCC 767
iii) Ramesh and Others Vs State of Haryana, (2017) 1 SCC 529 In the present case, we find that the testimony of P.W.-2 Mamta, sister of the appellant and P.W.-3 Vimla, mother of the appellant is consistent and intact that when they reached the spot inside the room immediately after the incident, the appellant was standing in the room where his wife had been shot. P.W.-2 stated that she rushed into the room when her brother was shouting maar diya, maar diya and P.W.-3 reached the spot on hearing the cries of the people around and that when she reached the spot the appellant was standing in the room at some distance from the cot on which the deceased had been shot. Thus, what we find that there is consistency in the statement of these witnesses with regard to the presence of the appellant in the room immediately after the incident and therefore, this part of the evidence cannot be ignored and the testimony of the hostile witnesses P.W.-2 and P.W.-3 cannot be discarded in its entirety.
There is another notable factor, namely, that inside the room where the murder took place, the appellant and the deceased were sleeping on their individual cots. According to the appellant four assailants came into the room and shot his wife resulting in her death. The interesting factor is that the appellant clearly identified the clothes worn by the alleged assailants but he is not able to identify their faces and in the FIR he puts the blame upon Amar Singh, the village Pradhan on the basis of suspicion. If Amar Singh indeed had been present and had committed the murder, the appellant could have identified him since he was Pradhan of the village and there was already group rivalry between the group of Amar Singh and the group of Chattar Singh whose associate the appellant was stated to be, the appellant would certainly have known Amar Singh by face. Besides if the alleged assailants had indeed come to kill him there is little likelihood that they would kill his wife instead, that too allegedly by mistake, and thereafter run away sparing the appellant.
We also cannot ignore the fact that the murder was committed in the room and the appellant's sisters who were sleeping in the verandah outside the room hardly 7-8 steps away from the cot on which the deceased was lying, can hardly be said not to have seen some persons running away from the spot after committing the murder. One sister Pooja, P.W.-4, who was aged about 18 and a half years at the time of the incident, in her deposition has stated that she never heard the sound of any firearm. The burden of proving the circumstances in which the deceased died would rest heavily upon the accused-appellant in view of the provision of Section 106 of the Indian Evidence Act, 1872. Section 106 of the Indian Evidence Act is an exception to the general rule that the burden of proving the fact is on the prosecution. Section 106 clearly states that burden of proving a fact which is especially within the knowledge of any person, the burden of proving that fact rests on that person. Section 106 of the Indian Evidence Act, 1872 reads as under:-
“106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.”
The Supreme Court in State of Rajasthan Vs Kashi Ram, (2006) 12 SCC 254 in paragraph 23 has held as under:-
“23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.”
In Trimukh Maroti Kirkan Vs State of Maharashtra, (2006) 10 SCC 681, the Supreme Court in para 14 and 15 held as under:-
“14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
“(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”
In the present case, a heavy burden lay on the appellant to show as to how the deceased died within the confines of a room where only he and the deceased were sleeping. The accused- appellant tried to explain that four persons came in the intervening night of 12/13.10.2003 and killed his wife and he has been falsely chargesheeted by the Investigating Office to screen Amar Singh with whom he has enmity but his defence/explanation in view of the testimony of P.W.-2 Mamta, P.W.-4 Pooja, P.W.-3 Vimla, sisters and mother of the appellant, as discussed above, is not convincing.
Thus, on the basis of the above discussion, we come to a conclusion that the story set up by appellant that culprits came to commit his murder but by mistake murdered his wife deceased Mamta is not believable. Witnesses P.W.-2 Mamta, P.W.-4 Pooja and P.W.-3 Vimla are closely related with the appellant as sisters and mother, respectively have not supported his story with respect to four persons coming in his room and going away from the room where the incident took place. On the other hand their statement is self-contradictory and being relatives of the appellant, they have tried to shield him. The conduct and behavior of the appellant after the incident also does not appear to be natural one as he did not make any effort to provide medical aid to his wife, the deceased or to see whether she was dead or alive but he only remained standing and shouting that some had killed his wife when his sisters Mamta, Pooja and mother Vimla reached there. His conduct also does not appear natural one with regard to not telling anything about the incident to his mother. These are circumstances which go against the appellant. In the absence of cogent and reliable explanation, considering the provisions of Section 106 of the Evidence Act, 1872 and the law laid down by Hon'ble Supreme Court in State of Rajasthan Vs Kashi Ram, Trimukh Maroti Kirkan Vs State of Maharashtra (supra), we are of the view that appellant has not discharged his burden, hence irrefutable inference is that appellant is the person who committed murder of his wife deceased Mamta.
Therefore, on a conspectus of facts and circumstances of the case, in our opinion, there is no illegality or infirmity in the impugned judgment and order of the trial court dated 25.11.2005 passed by the Additional Sessions Judge, Moradabad in Sessions Trial No. 145 of 2004 under Section 302 IPC, Police Station-Dilari, District-Moradabad.
The appeal is devoid of merit and is accordingly, dismissed.
The conviction and sentence awarded by the trial court is upheld.
The appellant Naresh Kumar Sharma is already in jail. He shall be kept there to serve out the sentence as awarded by the trial court and affirmed by us in the above case.
Office is directed to send a copy of this order to the court concerned within a week for compliance. The lower court record shall be returned to the court concerned.
Order Date :- 17.12.2019 Kirti