IN THE HIGH COURT OF JUDICATURE AT BILASPUR CRIMINAL APPEAL N0. [__3_ q ‘ “12002 - .‘IPPELLANT Harishankar Gupta, ‘S/o Late Kartik Ram Gupta, aged 38 years, Rfo Village Takhatpur, Dhnbipara, Paiice Stafion Takhatpur, District Bilaspur (CLGj prssent addregs — Quarter no. H-IS, SADA Colcmya Korba, Chowki — Rampm; Palica Station Kmwali‘ Katha, n DisirictKorba {QGJ ~VERSUS- RESPONDENT State af Chh House 0111c Statium Kot (C.G.) attisgarh through $teitibn : er, Chcwki RzgmmL Pulice ' w wall. Ko;brD’iStrict Korha g a . ERQCED CRIMINAL URE APPEAL . ms 374 (2) OF THE CODE OF CRIMINAL K / Harishankar Gupta - Versus - State of Chhaitisgarh Criminal Appea! No.1089 of 2002 JUDGMENT FOR CONSIDERATION r HON’BLE SHRI JUSTLCE SUIL N KUMAR SINHA ‘ / ’*/ Scu- L.c.BHAD00 Judge M 7.1 .2007 “—i > V..._r% Sd/- SUNIL KUMAR SINHA Judge - 1 —2007 POST IT FOR PRONOUNCEMENT OF JUDGMENT ON Ia’jANUARv 90m )D’ ’ sal- L.C.BHAD00 Judge HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARHI ”/ @ HIGH COURT OF CHHATTISGARH, BILASPUk Criminal Appeal No.1089 of 2002 Hnrishankar Gupfn -Ver'sus- 5+a'l'e of Chha‘H-isgarh Present ‘— Mr‘. V.C. Offalwar', Advoca're: For The appeilam. Mr. U.N.S."Dfeo, AddL Public Prosecutor §wifh Mr. Ravindm Agarwal, Panel Lawyer For grhe S'l'a're/r'esponden‘r. £ ‘ DIVISION BENCH: — HON'BLE MR. LC. BHADOO, AG. CHIEF JUSTICE & HON'BLE MR. SUNIL KUMAR SINHA, J J U D G M E N T (Delivered on lo‘"" January, 2007) we Followinq judqmen'r of The Cohr'l' was delivered by LC 3/ma’oa, Aq. Chief Jusffce:- 1. By +hls.appeal under Secfion 374(2) of lhe Cr.P.C accused! uppellanf—Harishankar Gup'fa has quesfioned fhe legali‘ly d1 correc‘l‘ness of Judgmenf dufed 9Th Ocl’aber, 2002 passed by 3rd Addi‘rional Sessions Judge (Fasf Track Cour'i'), Korba in Sessions Trial No.33/2000, whereby The Additional Sessions Judge, offer holding The accused/appellanf guil'iy for E commission of’offence under Seciion 302 of ‘ihe Indian Penal GCOde, for commi‘i‘iing murder of his firs? wife Usha Gup'ia, sem‘enced him To undergo imprisonmenf for life and To pay a \ ’\ fine of Rs.500/-, in defauli' of paymen‘i‘ of fine 1'0 furfher \ \ \ undergo R.I. for 3 mon‘i’hs. . The prosecu'rion sfor'y, in brief, is fhaf on 15.9.1999, accused Harishankar‘ Gup‘ra gave a merg infimafion ‘ro The Police Ou‘fpos'f Rampur of Police Sfa'Hon Kofwuli, Ker-bu To fhe effect Tha'r he is residing in House No.H-18, SADA Coionyl Kcrba, in Hie in‘rer'vening nighf 'o’f 14Th & 15Th Sepfember‘, 1999, he along wi‘l‘h his wife Usha Gup'l'a wen'r To wa‘lch a miovie and affer' refurning from lhe movie fhey wen? for sleep. In The morning of abou'l’ 7.00 a.m., he fried 'l'o woke up his wife buf she was found dead. This repor‘r was regis'rered a? Sr. NOD/99 of fhe ou'r posT and Thereaffer, i‘i' was sen'l' io‘lhe Police Siafion Kofwali, Korba where Merg No.1'28/99 was regisfered. The Invesfigafing Officer lef‘r for The scené of occCIrrence, offer giving nofice (Ex.P-3) fo fhe Ponchos including fhe accused/appellant prepared fhe inquesf (Ex.P-4) on fhe body of Usha Gupfa. Body of Usha Gupfa was senf for posfmorfem examinafion fo fhe Governmenf HundredBed Hospifal, Korba under Ex.P-5, where Dr. R.K. Divya (PW-9) conducfed fhe posfmorfern; prepared fhe reporf (Ex.P-6) and opined fhaf fhe cause'of deafh was asphyxia as a resulf of sfrangulafion. Ornamenfs of fhe deceased, which were senf by fhe hospifal, were seized under Ex.P—8. Sife plan (Ex.P-10) was prepared by fhe Pafwari. Leffers (Arficles 1 fo 11) wriffen by deceased Usha Gupfa fo Parwafi Padamwar (PW-19) were seized from Parwafi Padamwar under Ex.P-11. Based on fhe posfmorfem reporf, F.I.R. (EX.P~13) was regisfered on 23.9.1999 for commission of offence punishable under Secfions 302 di 201 of fhe .Indi'a’n Penal Code. While in police cusfody, fhe " accused gave memorandum (Ex.P-1) regarding fhe place where he kepf fhe wood like scale abouf one feef in Iengfh, in pursuance of fhaf he gof recovered one wood like scale Under Ex.P—2. The same was senf fo fhe docfor (PW-9) for his opinion under Ex.P-9 and fhe docfor gave his opinion vide \ Ex.P-7 fhaf i'r was possible to press the neck of deceased by The said wood. 3. Affer' complefion of usual inves‘riga1ion, charge sheef was filed againsf ‘rhe accused/appellan'r in 'rhe Cour‘r cf Chief Judicial Magisfr‘a‘re, Korba, who in Turn commi'r'l'ed The case To learned Sessions Judge, Bilaspur from where The AddiTional Sessions Judge Korba received The case on Transfer for Trial The prosecuTion in order To prove The offence againsT The accusedZappellanT examined as many as 19 wqnesses. The AddiTIonaI Sessnons Judge recorded The sTaTemenT of-occused/appellanT under SegTion 313 of Cr.P.C., in whifh he denied The maTeriaI appearing againsT him in The prosecuTion evidence, pleaded innocence and sTaTed ThaT he has been falsely implicaTed in The crime. He furTher sTaTed ThiaT deceased Usha and his second wife namely Jayshree used To quarrel and he has noT done anyThing. Two defence wiTnesses namely Jayshree (DW-l) & Naresh Kumar (DW-z) were also examined. 4. Learned 3rd AddiTional Sessions Judge afTer hearing The argumenTs of counsel for respecTive par-Ties and afTer perusal of records, convicTed (Si senTenced The accused/appellant as aforemenTioned. 5. We have heard Mr. V.C. OTTaiwar, learned counsel for The appellanT; Mr. U.N.S. Deo, AddiTional Public Prosecufor wiTh Mr. Ravindra Agarwal, Panel Lawyer on behalf of The STaTe/respondehT and carefully perused The record and judgmenf of The Trial courT. 6. Mr. OTTaIwar, learned counsel for The accused/appellanT has noT dispuTed The homicidal deaTh of Usha GupTa. AparT from ThaT, PW-9 Dr. R.K. Divya has sTaTed in his evidence ThaT on 15.9.1999 he was working as AssisTanT Surgeon in The \\ Governmen‘r HospH'al, Korba, on Thaf day, dead body of Usha Gup-ra was sen‘r 'ro him by The Police STa‘rion Ko‘rwali, Korbu for postmom‘em examina'rion. He conduc-red pos‘rmor'rern examinafion. Moufh of Usha Gup'ra was closed, her Tongue was beTween fhe fee‘rh, blood wos coming ou'r from The moufh, she was wearing neckhce‘ she was also wearing a loekef Tied by silk colour Thread, There was a ligaTure mark inlThe size of 2%cm x 5cm brown in colour, on cuT cloTTed blood and haemorrhage was"noTiced. There were marks of posTmorTem liquidiTy, There were scratch marks on The neck obliquely~plaqed in The size of 3x1 cm. Above injuries were anTi morTem in naTure, in his opinion The cause of deaTh was 4 #f asphyxia as a resulT of sTrangulaTion and same was beTween 12—14 hours. He has furTher sTaTed ThaT he also examined Thle scale like wood and in his opinion iT was possible To press The neck of deceased from ThaT wood. Moreover, PW—15 Arjun Singh, Sub'InspecTor, Poiice STaTion KoTwali, Korba has sTaTed ThaT aT The Time of preparaTion of inquesT (Ex.P- 3) on The body of Us.ha, iT was noTiced ThaT There was blood on The eyebrow & chin and The blood was oozing ou‘l‘ of The mouTh. Therefore, in view of above evidence of Dr. R.K. Divya (PW-9) di Sub InspecTor Arjun Singh (PW-15), iT is esTablished ThaT The deaTh of Usha Gup’ra was homicidal in naTure. \ \ \ \ As far as involvemenT of The accused in commission of crime in quesTion is concerned, in This case There is no direcT or ocular evidence, whole case resTs upon The circumsTanTial evidence and for resTing The convicTion solely based on The circumsTanTial evidence, The law laid down by The Hon‘ble Apex CourT in The maTTer of Dhananjoy ChaTTerjee Vs. $TaTe of W.B. reporTed in (1994) 2 SCC 220 is ThaT; \ 5 @ “In a case based on circumsfanfiul evidence,.‘rhe circumsfances from which The conclus’ion of guilf is To be drawn have nof only 1‘0 be fully esfablishecl buf also lhaf all The circumsTunces so esTablished should be of a conclusive naTur‘e and conslsTenT only wiTh The hypoThesis of The guilT of The accused. Those circumsTances should noT'be capable of being explained by any oTher' hypoThesis excepT The guilT ‘of The accused and The chain of The evidence musT be so compleTe as noT To leave any reasonable ground for The belief consisTenT wiTh The innocence of The accused. IT needs no reminder ThaT legally esTablished circumstances and noT merely indignaTion of The courT can form The basis of ‘gopvicTion and The more serious The crime, The greaTer should be The care Taken To scruTinize The evidence lesT suspicion Takes The plact'e of proof." In This‘case The prosecuTion has Tried To esTablish The involvemenT of accused in crime in quesTion on The following circumsTances; . ThaT, deceased Usha GupTa was The firsT wife of accused, The accused broughT second lady namely Jayshree, boTh The ladies sTarTed quarrelling, on accounT of quarrel beTween Them, accused used To beaT Usha ThaT is why The accused wanTed To eliminaTe Usha, as such, The accused had moTive To eliminaTe Usha GupTa. 2. ThaT, JusT before The deaTh ofl'Usha GupTa, she was seen alive in The company of accused in his house in The faTeful nighT, on The nexT day morning Usha GupTa was‘found dead and as per medical reporT deaTh of Usha GupTa was homicidal. CIRCUMSTANCE NO.1" 8. As far This circumsTance is concerned, iT is an admiTTed posiTion ThaT Usha GupTa was married To accused Harishankar in The year 1980 and she was issueless. As, \ \ \ \ \ 6 Q? ¢ u. Ushn Gupta was issueless, +here was some dispute be‘fween accused & Usha Gup‘ra, fherefore, she star‘red residing with her par-enfs a'r Aarang. In ‘H1e year 1988, accused brougi'h‘ Jeyshr‘ee as his second wife, .Taishree gave bir'1‘h To a femhie chiild. Usha Gupfa filed 'H1e proceedings againsf fhe accused under Sec'rion 125 of Cr.P.C. of Ruipur, accused went +0 Usha Gup'ra‘ persuaded her i0 seHle The maHer, persuaded her 1'h1a1' he is ready ‘fo Take her 10 his residence, as a resuH‘ of which fhe ma'r'rer was compromised, Usha Gupfa wifhdrew‘ihe proceedings filed agains? The accused. Abouf 2%- years prior 1'0 ‘rhe da're of incidenT fhe accused brough'r Usha Gup’ra To his residence aT Korba and since Then-{The accused, Usha GupTa and seEond lady Jayshreei aH Three were residing TogeTher. The evidence To This effecT has been given by PW—3 Nirmala Adhariya, who has sTaTed ThaT her house is in fronT of The house of accused. The accused was having Two wives, accused used To harass Usha, he ThreaTened Usha many Times To finish her. Usha used To quarrei for her righTs wiTh Jayshree. In The morning of a day in SepTember, 1999 aT abouT 7.00 a.m. she came To know abouT The deaTh of Usha. 5-6 monThs prior To The daTe of incidenT, Usha disclosed To her ThaT her husband is harassing her and he does noT like her. She has furTher sTaTed ThaT he saw The accused beaTing Usha on The road and aT The gaTe of The house. Infhe cross-examinaTion, she has sTaTed ThaT JyoTi, daughTer of Jayshree was 6-7 years old. Usha came To The house of Harishankar 2% years prior To her deaTh. She saw The quarrel beTween Jayshree & Usha, boTh of Them used To say each oTher ThaT she is grabbing her righT. Usha disclosed This facT in fronT of 4-5 ladies. Usha also discloses To her ThaT accused has broughT second wife keeping her in dark. Accused had beaTen Usha once one year before The daTe of incidenT, ThereafTer 5 monThs before The deaTh and aT ThaT £ mu ‘ \ @ ‘Hme Jayshree was in The house. In The fateful nigh‘r she saw The accused & Ushd sfroHing, 5-6 days prior +0 Thaf Jayshree wenf To her paren‘rs‘ house. In ‘rhe evening of fafeful night she saw Usha coming +owar‘ds The house of Gup'ra Ji carrying in her hands Two Sarees & bangles, on enquiry she informed Thai some were given by her husband. 9. PW-5 Sm‘r. Sune‘rri Singh has also corroborafed fhe above evidence of PW-3, Nirmala Adhariya and s'rafed fha‘r her- house is a’r 'rhe disfance of(4-5 houses from fhe house of accysed. Earlier They used To visiT The house of each oTher buT since lasT one year They have sToppea visiTing The house of each oTher; Accused was having Two wives, Their names were Usha & Jayshree. Usha was married, buT how Jayshree was residing wiTh The accused she does noT know. In The cross-examinaTion This wiTness has sTaTed ThaT Usha used To come To her house and Teli ThaT accused was beaTing her. AT The Time of incidenT, Jayshree wenT To her parenTal house. On The faTeful nighT, Usha came To her house and disciosed her ThaT she and her husband are going To waTch movie. She also disclosed ThaT her husband has broughT Sarees d: Bangles for her. PW-6 SmT. Meena GupTa has also sTaTed ThaT she is residing near The house of accused, how Usha died she does noT know, buT Usha, as and when come To her, used To Tell her ThaT her husband was beaTing her. She heard ThaT Usha was murdered. PW-10 SmT. M. GupTa, who is sisTer-in-law of The deceased, has sTaTed ThaT Usha was married’To accused 16-17 years back. AfTer marriage accused‘used To quarrel wiTh Usha, Therefore, Usha lefT The house of accused and sTarTed residing aT Aarang. She used To say ThaT she would noT go To her husband. She had filed a mainTenance proceeding aT Raipur againsT The accused and during ThaT period accused desired To Take Usha wiTh him. @ Thereaf‘l'ef, 2L3 Times fhe accused came 1'0‘ Aurang To Take Ushu. The maf’rer‘ was seTHed, accused 100k Usha 1'0 his house, bu'r he said Tha'r his in-laws will no'f come 'l'o Korba. Once she wen‘i 'ro Korba To mee'r Usha, on which accused sfarfed quar'r'eHing wifh her' and asked why fhey are coming 1'0 his house. Af fhaf Time Usha showed her- br'oken hairs of head and said Tha‘r accused was in fhe habif of beafing her', as a r-esuH of which her' hair-s were broken. She saw The injury marks also on fhe b‘ody of Usha. When she was returning, The ladies of Tha‘r viciniTy Told her noT To Ieave Usha wiTh accused, as he was in The habiT of beaTing her. In The cross-examinaTion she has sTaTed ThaT Usha and second wife ofiaccused‘used To quarreL PW-M Umed Singh, husband of ParwaTi Padamwar (PW-19), has sTaTed ThaT Usha used fo wriTe ieTTers To his wife ParwaTi, as They were friends and Those leTTers were Taken inTo possession by The police under Ex.P-11. PW-17 RaghunaTh Das, Head ConsTable, P.5. KoTwali‘ Korba has sTaTed ThaT on 9.12.1999 he Took inTo possession The leTTers, which were wriTTen by Usha To ParwaTi, from ParwaTi Padamwar under Ex.P-11. PW-19, ParwaTi Padamwar has also sTaTed ThaT Usha was known To her, when she was residing aT Aarang They were visiTing The‘house of each oTher, when Usha was Taken by The accused, she used To wriTe leTTers To her, which are ArTicles 1 To 11. Those leTTers were Taken inTo possession by The police from her. 10.PW—3, Nirmala Adhariya, PW—5 SmT. SuneTri Singh & PW-6 SmT. Meera GupTa, all are independenT wiTnesses, who were gesiding nearby The house of accused, They have sTaTed ThaT There used To be quarrel beTween Usha d second wife of accused namely Jayshree, accused used To give beaTing To Usha and Usha used To disclose This facT To These wiTnesses. l In The cross-examinaTion of These wiTnesses The defence has \ a i \ \ \ V \ i \ i $ \ - no? been able To elicH' any circumsmnce wifh discredi'r Their evidence and show Thu? They have deposed againsf 'H'Ie accused on accoun'r of any nnimosify or on accoun'r of inferesf in The deceased. From Their evidence iT has came on record ThaT There used To be quarre'libeTween deceased Usha and Jayshree, in ThaT process accused used To give beaTing To Usha. As Usha was issueless, Therefore, Usha & accused used To quarrel on occounT of which Usha sTarTed residing aT Ara‘ng. When she filed mainT‘enance proceeding againsT The accused, as The accused was noT in a posiTion To face The as, proceeding and’give separaTe mainTenance To Usha, in a deceiTfui manner he persuaded Usha To wiThdraw The proceedings on fhe assurance ThaT he wiH Take her back wiTh himi. The poor lady wiThdrew The proceeding, sTarTed living wiTh The accused 2%- years before The daTe of incidenT. AfT‘er arrival of Usha in The house of accused, There used To -be quarrel beTween Usha (Si Jayshree and perhaps in order To geT rid of from day-To-day problem, The accused ThoughT iT proper To eliminaTe Usha, ThaT is why abouT a week earlier Jayshree lefT To her maTrimonial home and on The faTeful day jusT To keep Usha in a happy mood The accused firsT gave her Sarees di Bangles, ThereafTer Took_ her To movie and in The nighT afTer reTurning from The movie he eliminaTed her. As such, The accused was having moTive in his mind To eliminaTe Usha because of day—To-day quarrel beTween Two wives. FurTher perusal of leTTers (ArTicles 1To 11) wriTTen by Usha To ParwaTi Padamwar (PW-19) show ThaT Usha used To wriTe T‘his wiTness ThaT accused used To beaT her. / a; 11. Learned counSel for The accusedfappellanT argued ThaT There is no evidence To show ThaT These leTTers were wriTTen by \ deceased Usha To PW-19 ParwaTi Padamwar, There were no \ \signaTures of Usha on few leTTers, buT considering The \ \ @ Iaffers and fhe évidence of PW-19 ParwaH Padamwar, her' husband namely Umed Singh (PW-14) Hm'r le‘r'rer's (ArTiclesl 1'0 11) were wri’rfen by Usha, we are of fhe considered opinion fhaf 'l‘he argumenf advanced by learned counsel for fhe accused/appeHanT has no meri't. In View of Hne above, H is esfablished fhcn‘ accused was having mo‘rive To finish Usha. CIRCUMQTANCE No.2: . 12.145 far ‘as This circumstance is concerned, from ’rhe evidence of PW-3 Nirmala Adhariya, PW-5, Smi. Sunei’ri Singh, PW-6, Sm-r. Me‘e‘ra @upfa; H is esfablished The? a week's back ‘Jayshree had already left The house of accuSed, as she wenf fo her par‘enfal hoUse and in fhe evening of fafeful nighi’ These Wifnesses saw fhe accused and Usha sfrolling, Usha came f0 fhem and sfafed fhaf she along wifh her husband is going To wafch The movie and her husband has broughf Sarees &. bangles for her. Even The accused & Jayshree have admif‘led fhaf a week‘s back Jayshree wenf To her parenTal house. Therefore, in The faTeful nighT in The house only The accused d; Usha were There, They reTurned To house afTer waTching second show of movie in The nighT and wenT for sleep in The house. Even oTherwise, as per posTmorTem reporT (Ex.P-6) There was a ligaTure mark on The neck and haemorrhage on The body of Usha and she was murdered by sTrangulaTion. As per inqu-esT reporT (Ex.P-3) blood spoTs were presenT on The eyebrow di chin of Usha, whereas, The accused gave merg inT.imaTion in The Police OuTposT, Rampur of P.S. KoTwaliu Korba ThaT afTer reTurning from picTure he along> wiTh his wife wenT for sleep, in The nexT morning he Tried To woke up his wife buT she was found dead. Therefore, a ToTal false reporT was given by The accused in The police sTaTion‘because as per posTmarTem d: inquesT reporTs, iT is l esTablished ThaT Usha was murdered by sTrangulaTion. Even, 10 c ‘ x} 1 1 'rhe accused did no‘l‘ inform abouf The blood an The face of Ushu and also on +he pillow cover. 13. Learned counsel for 'rhe accused/appellanf argued fhaf as far as inques? reporf (Ex.P-3) and blood spo‘fs found on The body of Usha are concernred, in This regard no quesTion was puT To The accused under SecTion 313 of Cr.P.C., Therefore, some cannoT be used againsT The accused and for ThoT purpose he placed reliance on The judgmenTs of The Hon‘ble Apex Cour-T in The maTTers of Kaur Sain Versus The STaTe of£unjab reporTed in 1974 Supreme Court Cases (Cri) 179 and Zwinglee Ariel Vs. 5TaTe of Madhya Pradesh reporTed in AI$R 1954 ‘5.C. 15. In Kaur Sain’s case The Hon'ble Apex CourT held ThaT “accused was nor examined on one aspecr and prosecm‘r’on re/yi‘ng on Thaf aspect If is open To Hie accused re plead fai/ure ofMagisfrare To examine Mm on Maf poim‘." In Zwinglee Ariel‘s case The Hon'ble Apex CourT held ThaT ‘cr'rcumsfances' appearing agafnsr accused shay/d nor be considered unless apparfum'fy is given To accused for explaining fnem in n'is examinafion. ”(The principle laid down The Hon‘ble Apex CourT in above maTTers cannoT be dispuTed buT in This regard perusal of sTaTemenT of accused under SecTion 313 of Cr.P.C. shows ThaT ,QuesTions‘NoJOZ, 103, 104, 105, 106, 107, 108, 109 d1 110 were puT To him and in answer To Those quesTions, he simply said ThaT he does noT know. All These quesTions were regarding inquesT reporT prepared by Sub InspecTor Arjum Singh (PW-15). Perusal of noTice (Ex.P-3) given To The Panchas under SecTion 175 of Cr.P.C. before preparaTion of inquesf reporT shows ThaT This 1 no’rice was also given To The accused, his name‘appears aT 5r. \ accused. Therefore, The argumenT of learned counsel for The \ No.4 and This noTice d1 inquesf r‘eporf bear The signaTures of \\\ appellanT fhaT regarding inquesf no quesTion was puT To The ./ ‘ \ 12 @ accused, ’rher'efore, same cannof be used agains‘r fhe accused is confrar‘y 1'0 fhe record and as such, The same is devoid of any mer‘if. 14. As far as merg inTimaTion given by The accused/appellanT To The Police Oufposf, Rampur‘ is concerned, even Though Thaf merg infirnafion has no’r been fendered info evidence, buf F.I.Rj. (Ex.P-13) shows fhu'r merg infima'rion was‘given by fhe accused, same was reproduced in The F.I.R. PW-15 Sub Inspe‘ci‘or Arjun Singh has cafegoricaHy s‘rafed'fhaf on 15.9.1??? accused gave merg in‘rimafion To him, which he enTered a'i Sr. No.0/99, based on +ha1‘ merg infimafion, Merg No.128/9£9 was registered in The Poiice Sfafion Km‘waii, Korba. The ques'iion To ThaT effecT was puT To The accused during recording of his sTaTemenT and his repiy was ThaT he does noT know. Therefore, we do noT find any meriT in This argumenT of iearned counsel for The accused/appellant 15.Learned counsel for The accusedXappeIlam‘ argued ThaT DW-l Jayshree di DW—Z Naresh Kumar, broTher of Jayshree, have sTaTed ThaT in The faTeful nighT when They came To house of accused from SeepaT, The accused & deceased were noT aT. The residence, as There was a second key wiTh Jayshree, Therefore, she opened The door of house and enTered The house. When They were sleeping in The house, accused & deceased reTurned in The nighT. On seeing Them in The house, Usha sTarTed quarrelling wiTh Jayshree by saying ThaT when she wenT To her parenTal house for one monTh, Then why she reTurned back wiThin a week. On which, Jayshree replied ThaT as her broTher was suffering from sTomach pain, she has come along wiTh him To geT him examined from a Chhuri Baiga and They are going To ThaT Baiga in The early morning aT 4v am. Therefore, aparT from accused 6i deceased, i Jayshree & her broTher were also presenT in The house, even \ \ \ 13 3 some quarrel Took place befween Juyshr'ee & deceased, as such, 'rhe prosecufion has failed To esfablish fhm‘ fhe accused was fhe only person in The house. He would submi'l' fhaf fhe accused has been able +0 make ou’r a reasonable & pro‘babledefence Thaf in The fa‘reful nigh‘r Jayshree, second wife of accused, and her bro‘lher were also presen'r in The house and There was quarrel beTween Jayshree & Usha, Therefore, There was every possibillTy ThaT J‘ayshree mighT have commiTTed The murder of Usha, This probable defence of accused cannoT be brushed aside. The Trial courT has noT corr‘écfTly‘appreciaTed The evidence of Jayshree and her broTher, Their evidence has been brushed aside wiThouT assignihg any va‘lid’reason. As per seTTled law, The evidence of defence wiTnesses musT be evaluaTed and scruTinized wiTh equal weighTage of prosecuTion evidence and for This purpose learned counsel placed reliance