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12. It is submitted by the Appellant Vivek Kapil, that earlier, the Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011) deceased was residing in her matrimonial house at Jhansi, but due to some differences with the family members of the Appellant Vivek Kapil, She went back to her parental house, therefore, he filed a petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights. It was further submitted that although the deceased was residing in her parental home, but he was on talking terms with her. The birthday of his daughter was celebrated by the Appellant along with the deceased and his daughter on 8-3-2008 in a Park situated in Cantt. Area, Jhansi. When a specific question was put to the Appellant Vivek Kapil regarding the outcome of the petition filed under Section 9 of Hindu Marriage Act, then it was submitted by him that the petition was filed in the year 2006, but thereafter, he was transferred to Dabra, therefore, he started living along with his wife at Dabra. He was transferred to Mahoba in the month of September 2007, but he did not join at Mohaba, as he was trying his level best to get the transfer order cancelled. Accordingly, the transfer order was cancelled on 17-1-2008 but thereafter, he was again transferred to Mahoba in the month of March 2008 and he submitted his joining in the month of March 2008 itself. From the month of September, 2007, till his transfer order was cancelled in the month of January 2008, he was staying in Jhansi along with his family whereas Anuja was staying in her parental home. He conceded that at the time of death of his wife, he was on unauthorized leave and he had also remained on unauthorized leave during the period when he was trying to get his Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011) transfer order cancelled. However, he submitted that he never informed Omprakash Pateria (P.W.1) that Anuja is missing from the evening of 12-8-2008. He submitted that in fact he was never informed about the death of Anuja. He further stated that he had summoned Time Keeper of Mahoba Distt. Hospital along with the register to prove that he had already undergone the Vasectomy Operation, but since, Dr. Pratap Singh had come along with the Record, therefore, he did not examine him. Once, he had already undergone Vasectomy Operation, therefore, the presence of sperms in the vaginal slide of the deceased clearly indicates the presence of foreign sperms. He further submitted that he had filed an application for conducting the DNA test, but the said application was rejected. He has also filed I.A. No 1910 of 2015 in this appeal, and this Court by order dated 15-4-2015 has held that the said application shall be considered and decided at the time of final hearing. He further stated that there are material variances in the evidence of Omprakash Pateria (P.W.1), Smt. Asha Pateria (P.W.2), Anurag Sharma (P.W.10) and Parmanand Sharma (P.W.16). He further submitted that his defence revolves around the presence of sperms and non holding of DNA test. He further submitted that Omprakash Pateria (P.W.1) never informed the Investigating Officer that he had taken an Insurance Policy of Anuja. He further stated that once, his wife was already having the Insurance Policy of Rs. 10 Lacs, then there was no need for the Appellants to demand Rs. 5 Lacs, but during the Course of Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011) arguments, he fairly conceded that neither there is any thing on record to suggest that the Appellants were aware of the Insurance Policy, nor the Appellant Vivek Kapil ever paid even a single premium of the Insurance Policy. He also admitted that the Insurance Policy of Anuja was taken prior to her marriage. During the Course of arguments, he further stated that after the maturity of the Insurance Policy, he would not have received any amount, and only the deceased Anuja would have got the maturity value of the Insurance Policy. He further stated that there is a discrepancy in the evidence of Anurag Sharma (P.W.10), Swami Prasad (P.W.15) and Parmanand Sharma (P.W. 16) regarding the place of his arrest. Swami Prasad (P.W. 15) has stated that he was arrested from the Platform of Itarsi Railway Station, but Parmanand Sharma (P.W.16) has stated that he was arrested outside the Itarsi Railway Station. He further stated that the FSL report was received just 2 days after the filing of the charge sheet, therefore, it is clear that the charge sheet was filed without collecting entire evidence. He further stated that although his wife Anuja was residing in her parental home on account of differences with her in- laws, but the differences were not so deep, so as to break the relationships with her. He further submitted that why the police party went to Itarsi by a private vehicle in order to arrest him? However, it was not clarified by the Appellant as to why cremation of his wife was not done by him.

40. Anita Shrivastava (P.W. 11) has prepared the Nazri Naksha Ex. P.13.

Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011)

41. Anurag Sharma (P.W. 12) is the witness of arrest of Appellant Vivek Kapil and seizure of Alto Car from Itarsi Railway Station. He stated that the Appellant Vivek Kapil was arrested from Itarsi Railway Station vide seizure memo Ex. P. 14. His memorandum, Ex. P. 15 was recorded in which he disclosed that the Alto Car UP- 93-P- 0596 is parked in Itarsi Railway Station Taxi Stand and the bag of Anuja is with Kiran Kapil. On disclosure by Vivek Kapil, Alto Car No. UP-93-P-0596 was seized from Railway Station Taxi Stand along with Registration Card vide seizure memo Ex. P.16. ( It is not out of place to mention her that Alto Car No. UP-93-P-0596 was registered in the name of deceased Anuja wife of Vivek Kapil). This witness was cross-examined and in cross-examination, he stated that Vivek Kapil and Anuja Kapil are not known to him. The parents of Anuja are also not known to him. He denied that he had attended the marriage of Anup Pateria, brother of the deceased and the said marriage was also attended by his sister. He admitted that in photographs Ex. D.7, his sister Anjali is also visible. He could not identify the other persons who are visible in the photograph, Ex. D.7. He denied that Omprakash Pateria is his relative. He denied that he has come to Court along with Omprakash Pateria. He is the owner of TATA 407 loading vehicle. On 26-5-2008, he had gone to Itarsi from Bhopal on his motor cycle as he had received an information that his TATA 407 has broken down near Itarsi bridge. He had received the telephonic information in the intervening night of 26 and 27 th and Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011) therefore, he came to Itarsi in the same night and started from Bhopal at 2 A.M. He parked his motor cycle in Parking area of Itarsi Railway Station. Thereafter, he was busy in getting his vehicle repaired and thereafter he got free. When he went to pick up his motor cycle, at that time, the Appellant Vivek was there in the custody of police. Then memorandum was recorded in his presence. Thereafter, he went back to Bhopal. Alto car was parked outside the parking area. He had seen Vivek in the custody of police at about 3-3:30 P.M. He expressed his ignorance about the fact that when and from which place, the Appellant Vivek was taken in custody by the police. He also denied that Vivek was taken into custody from Jhansi on 24-5- 2009 and Vivek had sent a telegram to S.P. Jhansi in this regard. He admitted that Vivek was not arrested in his presence and only seizure was made. The seized car was of Silver colour. After the seizure proceedings, he stayed in Neelam Hotel for 1-2 hours.

45. Swami Prasad (P.W.15) has stated that on 13-5-2008, he was posted in Police Station Chirulla. He had taken the dead body of a lady for post-mortem and the post-mortem report is Ex. P.7. The sealed packet received from Distt. Hospital were handed over to A.S.I. Parmanand Sharma vide Ex. P.10. On 26-5-2008 at 15:30, Vivek was arrested in his presence vide arrest memo Ex. P.14. His memorandum is Ex. P.15 and on the basis of disclosure made by Vivek, Alto Car No. UP 93-P-0596 was seized vide seizure memo Ex. P.16. This witness was cross-examined. In cross-examination, he stated that on 13-5-2008, he was posted in Chirulla Police Station. The dead body of the deceased was received immediately after the post-mortem. He went to Itarsi directly from Chirulla Police Station. He, S.H.O. and Rajarama Tiwari had gone. They went to Itarsi by car. The S.H.O. had not disclosed the reason for going to Itarsi. Car Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011) was a private one, but he was not in a position to disclose the name of driver. He had never met with Vivek prior to his arrest. Vivek was identified by S.H.O. The Appellant Vivek was not having any parking ticket with him. There was nothing inside the car. The signature of Anurag Sharma were obtained on seizure memo. The Appellant Vivek Kapil was arrested from the platform. Although this witness was not able to disclose the number of platform, but stated that it was the first platform towards the Itarsi city. He denied that Anurag Sharma had come to Itarsi along with this witness. He denied that Appellant Vivek was arrested in Jhansi on 24-5-2008.

46. Parmanand Sharma (P.W. 16) has stated that on 13-5-2008, he was posted on the post of ASI in Police Station Chirulla. On the said date, Constable Mahendra Singh Dangi informed that the dead body of one unknown lady is lying near culvert, Chirulla road. Accordingly, merg under Section 174 Cr.P.C., Ex. P. 19 was registered. Requisition for post-mortem is Ex. P.6. On the said day, the Head Constable Ramraja Tiwari brought Hyoid bone in a sealed bottle, viscera in another sealed bottle, one sealed packet containing cloths, in one packet the ornaments removed from the dead body of the deceased, bottles containing tips of fingers of both hand, pubic hair, vaginal smear in sealed condition were brought which were seized vide seizure memo Ex. P.10. On the very same day, he prepared spot map on the information of Mohan Singh Dangi, Ex. P.20. On 13-5-2008, the dead body of unknown woman was buried Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011) near bridge situated near cremation ground in the presence of witnesses. The burial panchnama is Ex. P.21. After receipt of short PM, he registered FIR in Crime No. 22/2008 for offence under Sections 302,201 of IPC, Ex. P.22. On 15-5-2008, Omprakash Pateria had identified the dead body from its photo and cloths. On the very same day, the dead body was taken out and its panchnama is Ex. P.2. Thereafter the dead body was handed over to Omprakash Pateria vide supurdaginama Ex. P.3. The identification memo on the basis of cloths is Ex. P.17. The cloths were resealed and memo is Ex. P.18. During investigation, he recorded the statements of witnesses. On 26-5-2008, the Appellant Vivek Kapil was arrested from Itarsi Railway Station, vide arrest memo Ex. P. 14. On his disclosure, Alto Car bearing registration No. UP-93-P-0596 was seized. The memorandum is Ex. P.15 and seizure of Car is Ex. P.16. On 28-5- 2008, the Appellant Kiran Kapil was arrested and he recorded her memorandum, Ex. P.9. On 28-5-2009, he seized white ladies bag, one copper ring, one diary of the deceased vide seizure memo P.10. On 28-5-2008, he had recovered one small girl from the possession of accused Smt. Kiran Kapil and handed over the same to the complainant Omprakash Pateria, vide supurdaginama Ex. P.4. On 13-6-2008, he had send sealed hyoid bone and salt solution to Forensic Medico-legal Institute Gandhi Medical College, Bhopal, which is Ex. P.23, and Viscera, cloths, salt solution pubic hairs, Vaginal slide of the deceased were sent to R.F.S.L., Gwalior vide Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011) draft Ex. P.24. The report received from Medico-legal Institute Bhopal is Ex. P.25 and F.S.L. report is Ex. P.26. Ladies purse is Article A14, Copper ring is A15, Diary is A16, the photographs of dead body of deceased are Article A2 to A13. This witness was cross-examined. In cross-examination, he stated that he had recorded merg statements of Mahendra Dangi, Nathuram Kumhar and Hukum Singh. The Lash Panchnama of the deceased Ex. P.12 was already received prior to sending the dead body for post-mortem. He stated that medical of Vivek was not got done after his arrest. He denied that Omprakash Pateria remained in his constant touch and was instructing him. He denied that Omprakash Pateria had informed him about the Vasectomy Operation of Vivek and that is why, he did not go for DNA test of Vivek. The seized articles were kept in the Malkhana of Chirulla Police Station from 13-5-2008 till 13-6-2008. Entry with regard to deposit and taking out of the goods is made in the Malkhana Register. He had not prepared the spot map of the place where the dead body of the deceased was buried. The said place is a part of cremation ground and is 30 mt.s away from Police Station. Earlier he had got the photograph identified. He admitted that Alok Dubey and Ashok Dubey are brothers and had come to Police Station Chirulla on 15-5-2008. Certain omissions and contradictions in the evidence of the witnesses were got proved. He further stated that during the investigation, he had not received any information that Vivek had filed an application for restitution of Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011) conjugal rights. He denied that Vivek was arrested on 24-5-2008 from Jhansi and accordingly on 24-5-2008, information was given by telegram to S.P. and Senior Police Officers. He had received an information from the informer that Vivek is in Itarsi. The information was received on 25-5-2008. In the evening of 25-5-2008 itself, he had left for Itarsi by private vehicle. At Itarsi, Vivek was got identified from another informer. Omprakash Pateria had not gone with him to Itarsi. He had arrested Vivek from Railway Station Itarsi at about 3.25 P.M. He had not given any information to local police. He admitted that Hemant Sonia who is the contractor of Itarsi Station Taxi Stand had informed that Car is parked there from 15-5-2008. The car was registered in the name of deceased Anuja. He denied that the car was recovered from Jhansi. He denied that he had not gone to Jhansi. He further stated that Appellant Kiran Kapil was not known to him. He had received an information that Kiran Kapil is likely to come and accordingly, he went from Police Station Chirulla. He had received the information about 3:30 A.M. from the informer. He had noted his departure in rojnamcha. He had gone on his official vehicle. Only police force had gone. They took about 35 minutes to reach Jhansi from Chirulla. He did not report his arrival in Kotwali, Jhansi. He had arrested Kiran Kapil outside the Jhansi Railway Station. She was not having any bag with her except the minor daughter of Anuja. She was also not having any railway ticket. He denied that the Appellant Kiran Kapil was not with minor Omprakash Pateria (dead) through L.R. Vs. State of M.P. & Ors. (Cr.A. No.15/2011) Vivek Kapil & Anr Vs. State of M.P (Cr.A. No. 80 of 2011) girl. He denied that he did not go to Railway Station. He had recorded the memorandum of Kiran Kapil at a place which is approximately 2 Kms away from Railway Colony. He had seized the articles from the house of Kiran Kapil at about 7:30 A.M. He had called Omprakash Pateria for handing over the custody of minor girl. He had called Omprakash Pateria by informing him on phone. He was already having mobile number of Omprakash Pateria. The house of Kiran Kapil was locked which was unlocked by her. He denied for want of knowledge as to whether the husband and other children of Kiran Kapil were also residing in the same house or not? He admitted that the territorial jurisdiction of Chirulla Police Station is upto border of Jhansi. He admitted that he had not seized the driving license of Vivek.