Manish Pitale, J.
1. By this appeal, the appellant has challenged the judgment and order dated 23.01.2014 passed by the Court of Session, Amravati, in Sessions Case No. 63 of 2006, whereby the appellant was convicted under Sections 302 and 498-A of the Indian Penal Code (IPC), sentenced to suffer imprisonment for life and rigorous imprisonment for 1 year, with the sentences running concurrently and he was further sentenced with amounts of fine to be paid in respect of the said conviction.
2. The appellant has been charged with the murder of his wife Vaishali and as per the prosecution, the incident in question happened in the early morning of 12.10.2005. A report of accidental death was submitted to the Police Station in respect of the said incident, as a result of which spot panchanama and inquest panchanama were prepared between 9.30 and 10.45 in the morning in the presence of panchas, by the Police Sub Inspector K.Y. Apar.
3. It was recorded in the spot panchamama that the body of the deceased -wife of the appellant, was found in the bathroom having dimensions 41/2' X 6' which was attached to the bedroom on the first floor of the house. It was recorded that the appellant, being the husband of the deceased, had shown the place where the dead body was lying. It was recorded that a box of Livocin poisonous medicine was found near the dead body, beneath the wash basin and that the head of the deceased was near the commode. It was recorded in the inquest panchanama that there were injury marks on the right wrist of the deceased from where some bleeding was seen and that while the eyes and mouth were closed, there was white froth coming from the nose of the deceased.
4. The body of the deceased was sent for post mortem on the same day i.e. 12.10.2005 and the Doctor (PW3) conducted the post mortem between 3.40 and 4.50 p.m. It was recorded in the post mortem that the brain and other organs of the body were found to be congested and that the mode of death was asphyxia, although no definite opinion could be given as to the probable cause of death. The viscera was sent for chemical analysis.
5. It is the prosecution case that the father of the deceased Manikrao Kale (PW1) was not informed by the appellant and his family about the incident and that the said PW1 came to know about the same from one of his relatives. When PW1 reached the house of the appellant and saw the body of his daughter, he suspected foul play. After the post mortem and cremation, PW1 submitted a written report (Exh.182) dated 12.10.2005 before the Police Station Nandgaon Peth regarding the death of his daughter. He claimed that the appellant and his family were responsible for the death of his daughter and that the appellant was having an extra marital affair with one Vandana (accused No.7) and that his daughter had also been harassed by the appellant and his family for which offences were required to be registered against them. This report (Exh.182) was received at 1.30 a.m. on 13.10.2005 as it was claimed by PW1 that the concerned Police officials were reluctant to receive the same.
6. It has come on record that PW1 was informed by accused No.9-PSI Apar that the aforesaid report at Exh.182 was not in the proper legal form and that a proper report was required to be submitted regarding the incident. As a result, another report (Exh.183) was prepared at Police Station Nandgaon Peth regarding the incident. In this oral report, it was recorded that the marriage of the appellant and his wife had taken place about 16 years ago. The facts pertaining to the involvement of the appellant and his family in the death of Vaishali and the extra marital affair of the appellant with the accused no.7 Vandana were recorded and first information report (FIR) dated 13.10.2005 (Exh.184) was registered at 10.30 p.m. in the Police Station at Nandgaon Peth, Amravati, for offences under Sections 304-B, 498-A and 34 of the IPC. The registration of FIR by accused No.8 Mufiz Deshmukh (Police Official) under Section 304-B of the IPC was surprising, because as per the report submitted by PW1 at 1.30 a.m. on 13.10.2005 (Exh.182) and even as per the oral report dated 13.10.2005 (Exh.183), it was clearly stated that a period of about 16 years had elapsed from the date of the marriage of the appellant and his wife. Since the death had not occurred within the period of 7 years of marriage, as required under Section 304-B of the IPC, the registration of the FIR for an offence under the said provision was obviously wrong and unsustainable.
7. In this situation, as PW1 suspected involvement of the Police personnel and there being an attempt at a botched up investigation, he submitted a complaint to the Government that the investigation was required to be transferred to the Criminal Investigation Department (CID). By an order dated 21.02.2006, the investigation was transferred to the CID and a fresh investigation was ordered, which was entrusted to the Deputy Superintendent of Police of the CID Amravati i.e. PW8 Raghunath Waghmode. This was necessitated because, despite the Assistant Commissioner of Police questioning the Police Officials i.e. Mr. Apar and Mr. Deshmukh of the Police Station Nandgaon Peth, as to why offence is registered under Section 304-B and not 302 of the IPC, the said officials of the Police Station Nandgaon Peth proceeded to file a charge sheet for offence under Section 304-B of the IPC.
8. The new investigating officer i.e. PW8 filed an application before the Court for return of the investigation papers and he sought permission for further investigation, which was granted by an order dated 03.06.2006. As the fresh investigation proceeded, the Police Officials of Police Station Nandgaon Peth who had conducted the earlier investigation and submitted charge sheet, were arrayed as accused Nos. 8 (Mufiz Deshmukh) and 9 (K.Y.Apar) for having committed offences under Sections 217 and 218 of the IPC. The Government was approached for grant of sanction to prosecute the said accused Nos. 8 and 9, which was granted. As part of the fresh investigation, the investigating officer PW8 sent queries to the Doctor who had conducted the post mortem, as regards opinion on cause of death of the wife of the appellant. In the responses sent by the Doctor, it came on record that the death of Vaishali did not seem to be natural and that the asphyxia leading to her death could be because of a quilt being pressed on her face leading to suffocation and death. On this basis, the investigating officer PW8 proceeded with further investigation and a seizure panchanama dated 03.07.2006 (Exh.275) was prepared, under which the appellant led the investigating officer to his house where a quilt was seized. On the basis of the further investigation conducted by PW8, an application was submitted before the Court for deleting Section 304-B of the IPC from the charge sheet and insertion of Sections 302, 201, 498-A, 120-B and 109 of the IPC in the charge sheet against the accused. The appellant was accused No. 1 and the other accused Nos. 2 to 6 were his family members. Accused No.7 Vandana was the person with whom the appellant was allegedly having an extra marital affair. It is relevant to mention here that during the pendency of the trial, the appellant and the said accused No.7 got married. The accused Nos. 8 and 9 were the Police Officials who earlier investigated the matter and against whom offences under Sections 217 and 218 of the IPC were registered. On 20.09.2007, charge was framed against all the accused Nos. 1 to 9. The prosecution recorded the evidence of 10 witnesses in support of its case.
9. The facts that have emerged in the present case show that the initial investigation into the death of the wife of the appellant on 12.10.2005, was wholly unsatisfactory and that vital evidence regarding the incident appeared to have been either ignored or deliberately tampered with due to the incompetence or connivance of accused Nos. 8 and 9. It was only after the investigation was transferred to the CID and further investigation was conducted that the investigation seems to have proceeded in a more professional manner. Be that as it may, the question as to whether the accused were guilty of the charges levelled against them, has to be decided on the basis of material and evidence on record.
10. The Sessions Court came to the conclusion that the death of the wife of the appellant was homicidal and that the offence under Sections 302 and 498-A of the IPC stood proved only against the appellant. The family members of the appellant i.e. accused Nos. 2, 3, 5 and 6 were acquitted, while the prosecution against accused no.4 abated as she died during the pendency of the trial. The accused No. 7 Vandana was also acquitted, while the Police Officials i.e. accused Nos. 8 and 9 were convicted and sentenced for offences under Sections 217 and 218 of the IPC.
11. The Sessions Court found that the accused Nos. 8 and 9 had deliberately sought to misdirect investigation in order to help the accused. The convicted accused were sentenced to imprisonment of durations referred to above.
12. Mr. S.P. Dharmadhikari, learned senior counsel appearing for the appellant-accused no.1, submitted that the Sessions Court had committed a grave error in convicting and sentencing the appellant and that the finding that the death was homicidal in nature, was wholly unsustainable. He vehemently submitted that the post mortem report and the medical evidence on record, particularly evidence of the Doctor i.e. PW3 was wholly insufficient to return the finding of homicidal death in the present case. It was submitted that a perusal of the deposition of PW3 demonstrated that no definite conclusion regarding homicidal nature of death could be reached in the present case. The learned senior counsel appearing on behalf of the appellant made detailed references to Modi's Medical Jurisprudence, pertaining to symptoms found in cases of unnatural and homicidal death concerning asphyxia. It was submitted that when there was insufficient evidence on record to reach a positive finding regarding homicidal nature of death, the other factors taken into consideration by the Sessions Court regarding presence of the appellant in the house at the time of the incident etc. were wholly irrelevant. It was submitted that conviction and sentencing of the appellant on the basis of the evidence and material on record was unsustainable and that the impugned judgment and order of the Sessions Court deserved to be set aside.
13. On the other hand, Mr. S.M.Ukey, learned Additional Public Prosecutor appearing for the respondent-State, submitted that there was sufficient evidence on record to show that the nature of death of the wife of the appellant was homicidal. It was submitted that when the deceased was shown to be in the custody and with the appellant at the time of the incident, the onus was on him to explain as to how she had died. It was further submitted that in the absence of any explanation, the only conclusion that could be derived was that the appellant was guilty.
14. Mr. Adwait Manohar, learned counsel appearing on behalf of the complainant, to assist the prosecution, supported the contentions raised on behalf of the respondent-State. He vehemently submitted that when the entire investigation in the initial stages was improper and wholly unsatisfactory, it would be unfair to place an extremely heavy and unjustified burden on the prosecution to prove its case, particularly when it was a case of circumstantial evidence wherein only the appellant was with the deceased at the time of the incident in the four corners of his bedroom. It was submitted that there were sufficient circumstances brought on record to form a chain which pointed towards only the guilt of the appellant.
15. Having heard the counsel for the parties and having perused the evidence and material on record, central question that arises for consideration in the present case is as to whether the death of Vaishali in the early hours of the morning on 12.10.2005 was homicidal in nature. In other words, whether prosecution has been able to prove that it was a case of homicidal death and whether there is sufficient evidence and material on record to reach such a finding. It is only when a finding of the death being homicidal in nature is reached that the other aspects of this case become relevant, particularly when there is no eyewitness to the incident and it is a case of circumstantial evidence.
16. The question as to whether death is homicidal in nature, can be answered by circumstances brought on record in respect of the occurrence of the incident and the medical evidence on record. There is no doubt that the circumstances in the present case do raise a strong suspicion regarding foul play leading to the death of the wife of the appellant. But, unless there is clinching evidence on record to show firstly, that the death was unnatural and secondly, that it was homicidal, the guilt of the appellant cannot be proved.
17. In order to reach a finding regarding homicidal death, the medical evidence on record assumes great importance. The post mortem report and the evidence of the Doctor i.e. PW3 needs to be analysed on the basis of standard medical jurisprudence to reach a positive finding regarding the nature of death being homicidal.
18. The post mortem report (Exh.205) shows the following features:-
(a) face congested.
(b) eyes closed.
(c) mouth closed.
(d) tongue inside mouth.
(e) watery fluid oozing from mouth and nose.
(f) palms, soles and nails bluish.
(g) incised wounds on the right wrist with linear abrasion and blood stains.
(h) brain congested.
(i) Larynx and trachea congested with whitish froth.
(j) Both lungs congested, froth present.
(k) All Chambers of the heart full of blood.
(l) Peritoneum and all organs congested.
19. It is also recorded in the post mortem report that the mode of death is asphyxia. But, it is further recorded that no definite opinion could be given as to the probable cause of death. The viscera was sent for chemical analysis, as box of poisonous medicine was found near the dead body. But, there was no poison found in the viscera.
20. The evidence of the Doctor PW3 (Exh.204) shows that the following statements have been made by the said witness:-
(a) No final opinion as to cause of death was formed because the findings of external and internal examination were not conclusive.
(b) Even after going through the report of viscera, the witness was unable to form exact opinion as to cause of death.
(c) The investigating officer continuously asked the witness about the cause of death but till last he could not give exact opinion regarding cause of death.
(d) Asphyxia was the mode of death and that asphyxia could happen due to various causes.
(e) There cannot be natural death by asphyxia.
(f) As per Exh.210, i.e. opinion given by the witness in response to query of the investigating officer, the death did not seem to be a natural death.
(g) In asphyxia there could be unnatural death and also natural death in case of some diseases.
21. An analysis of the aforesaid post mortem report Exh.205 and the deposition of the Doctor i.e. PW3 (Exh.204) would show that there were clear features on record showing death by asphyxia. In this context, it would be relevant to consider the medical jurisprudence regarding death due to asphyxia and symptoms that would show that such asphyxia led to homicidal death of a person. Modi's Medical Jurisprudence (Twenty Third Edition) in its chapter pertaining to deaths from asphyxia states that in cases of death by asphyxia bloody froth comes out of the mouth and nostrils and that the right side of the heart is often full of dark fluid blood and the left is empty. It is also stated that the brain is generally congested and so are the abdominal organs. But, it is further stated that in cases of homicidal death by asphyxia, generally injuries on other parts of the body are seen and in most cases on the mouth, nose , lips and other parts of the face because homicidal suffocation leading to asphyxia is forced upon the victim. Yet in another place, it is stated that no local signs of violence are found if a soft cloth or pillow has been used to block the mouth and nostrils.
22. In the instant case, a perusal of the aforesaid features emerging from the post mortem and the deposition of the Doctor would show that while the congestion of brain and other organs of the body is found in the case of the deceased, the froth oozing from the nose and mouth is not bloody, but it is white. Furthermore, there are no injuries on the face or any part thereof. There are also no injuries on any other part of the body except the incised wounds and linear abrasion on the right wrist of the deceased. Even with regard to the said injuries, the Doctor (PW3) has specifically stated in his letter in response to a query by the investigating officer by letter dated 31.10.2005 (Exh.208), that the said injuries cannot be said to be injuries that were suffered during resistance offered by the victim to any force used against her.
23. Thus, although there is material on record showing that the death of the wife of the appellant was caused due to asphyxia, there is absence of any clinching evidence to show that such death was unnatural or homicidal in nature. Even if it is taken that the death is unnatural, yet there is absence of material on record that would clinchingly prove that the death is homicidal.
24. The Court is required to reach a finding that there is enough material on record to prove that the death is homicidal in nature, even if it appears to be unnatural. An unnatural death, apart from being homicidal in nature, could be accidental or suicidal. But once the Court finds that the material and evidence on record falls short of reaching a finding that the death is homicidal in nature, it would not be safe to proceed further. It would not be appropriate to hold against the accused, as submitted on behalf of the respondent, that only because the material on record does not show that the death is either accidental or suicidal in nature, it has to be held to be homicidal because there is enough material to show that it can be termed to be an unnatural death.
25. In the case of Subramanium .vs. State of Tamil Nadu and another – (2009) 14 Supreme Court Cases 415, the Hon’ble Supreme Court has held that when death due to asphyxia was not coupled with the marks of violence on the body of the deceased, it would be difficult to convict the accused-husband of the murder of his wife. In the said judgment, the Hon’ble Supreme Court has quoted from and relied upon the text of Modi’s Medical Jurisprudence pertaining to death by asphyxia and the question as to whether such death could be said to be accidental, suicidal or homicidal. It has been held by the Hon’ble Supreme Court that in the absence of evidence of violence in the shape of external marks surrounding the mouth and nostril or inside the mucosal surface, it is not possible to come to a definite conclusion about the nature of the death being homicidal. In the instant case also, as stated above, there are no marks of injuries or violence on the face to indicate that the death due to asphyxia could be homicidal in nature.
26. In the present case, the prosecution has come up with the positive case that the deceased was suffocated by means of a quilt which was recovered under the seizure panchanama dated 03.07.2006 (Exh.275). But, such seizure was made on 03.07.2006 while the incident took place on 12.10.2005. A quilt is an article that is usually found in households and there is no material on record to connect the seized quilt to the incident in question and the use of the same by the appellant-accused to cause the death of his wife. The medical evidence in the form of the deposition of Doctor (PW3) only shows that causing death by pillow was not the opinion of the said witness but it was only a response to the query of the investigating officer as to whether death could be caused by suffocation by means of pillow or quilt. Thus, the said positive case of homicidal death sought to be made out by the prosecution is clearly not proved.
27. The medical evidence on record is not conclusive and there are doubts emerging from the record. A clear finding regarding the nature of the death being homicidal cannot be given in the facts and circumstances of this case, in the absence of clinching evidence. Therefore, the findings of the trial Court that Doctor's evidence is clear and convincing that the death of the wife of the appellant is homicidal death, is not sustainable.
28. The counsel appearing for the State and the Complainant have placed emphasis on judgments of the Hon’ble Supreme Court in the case of Trimukh Maroti Kirkan .vs. State of Maharashtra – (2006) 10 Supreme Court Cases 681 and Babu .vs. State of Tamil Nadu – (2013) 8 Supreme Court Cases 60, for the proposition that when 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 and that the burden would be of a comparatively lighter character. It is the contention raised on behalf of the respondent-State and the complainant that when the appellant as the husband of the deceased was expected in the normal course of human conduct to be with his wife in the early hours of the morning in the bedroom, it was for him to explain as to how the death of his wife had occurred. The counsel placed reliance on Section 106 of the Evidence Act, 1872, which pertains to the burden of proving facts especially within the knowledge of any person.
29. It was contended that the death of the wife of the appellant had occurred in suspicious circumstances that were brought on record by the prosecution and that the failure of the defence to show that the death was either accidental or suicidal, would lead to a reasonable inference that the death of the deceased was homicidal in nature. It was contended that if the death of the deceased wife of the appellant had been either accidental or suicidal, there would have been injuries on her body due to fall on the floor, considering the fact that her body was found lying in a bathroom with dimensions of 41/2’ X 6’, which was cramped due to wash basin and commode in the bathroom. The contention was that when no such injuries were found on the body of the deceased, it was for the appellant to explain how the death had occurred and that in such a situation it could be reasonably inferred that the case was of homicidal death.
30. The aforesaid judgments relied upon by the respondent-State and the complainant i.e. Trimukh Maroti Kirkan .vs. State of Maharashtra (supra) and Babu .vs. State of T.N. (supra) are cases where there were multiple external physical injuries found on the bodies of the deceased. It was in such a situation that the Hon’ble Supreme Court held that the failure on the part of the defence to explain the manner in which the injuries were suffered by the deceased led to the reasonable inference that the death was homicidal in nature. But, in the present case, there are no external injuries indicating that the suffocation and asphyxia suffered by the deceased was due to any external force applied. There is no evidence to show either smothering or throttling. There are no ligature marks or any external marks on the body showing pressure being applied to suffocate the victim.
31. In this backdrop it would be unsafe to hold that a reasonable inference could be drawn about the death of the wife of the appellant being homicidal in nature. The contention raised on behalf of the respondent-State and the complainant that it was for the appellant to explain the circumstances leading to the death of his wife cannot be stretched to an extent that a finding of homicidal death is given even when there is no medical evidence to support such a finding. In fact, in the case of Subramanium .vs. State of T.N. (supra), a case of death by asphyxia, the Hon’ble Supreme Court has held that even if the husband has to explain the circumstances in which his wife has died within the four walls of a house, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance, but that alone in the absence of evidence of violence on the deceased cannot be held to be conclusive.
32. It has been also held by the Hon’ble Supreme Court in the case of Madho Singh .vs. State of Rajasthan – (2010) 15 Supreme Court Cases 588 that in the absence of proof of homicidal death, the accused cannot be convicted merely on the theory of last seen and that conviction cannot be maintained merely on suspicion, however, strong it may be. In the case of Sujit Biswas .vs. State of Assam – (2013) 12 Supreme Court Cases 406, the Hon’ble Supreme Court has held that suspicion, however grave it may be, cannot take the place of proof and that there is a large difference between something that 'may be" proved and something that 'will be proved'.
33. In the present case, it is evident that the circumstance heavily relied upon by the prosecution that the appellant being the husband of the deceased was supposed to be with her in the bedroom in the early hours, could be used against the appellant only if there was other evidence to link the appellant with the death of his wife. As discussed above, there is absence of clinching evidence to reach a finding regarding homicidal death of the wife of the appellant and the claim of the prosecution that the appellant might have used quilt to suffocate his wife, is in the realm of speculation and conjecture.
34. In this regard, the judgment of the Hon'ble Supreme Court in the case of Dhanajaya Reddy .vs. State of Karnataka – (2001) 4 Supreme Court Cases 9, is relevant. In similar circumstances, wife of the deceased was charged with murder of her husband, who was found dead in their bedroom. But, she was acquitted and it was held by the Hon'ble Supreme Court that the circumstance of the wife being last seen with her deceased husband or that she was supposed to be with him in the house, could not lead to the irresistible inference of her guilt, as there was lack of other circumstantial evidence to link her with the murder of her husband. Thus, in the instant case also it cannot be inferred that the appellant is guilty of the murder of his wife, particularly in the absence of clear and cogent evidence to give a finding that the death was homicidal in nature.
35. As regards the offence under Section 498-A of the IPC, the Sessions Court has found only the appellant guilty and other accused have been acquitted. The Sessions Court has convicted the appellant under Section 498-A of the IPC, primarily on the basis that he was h
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aving an extra marital and illicit relationship with accused No.7 Vandana and that this caused harassment and cruelty to the deceased. In this regard the Sessions Court relied upon the evidence of PW1 Manikrao (father of the deceased) and PW2 Manish (husband of the sister of the deceased). Both these witnesses have stated about the alleged extra marital and illicit relationship between the appellant and accused No.7 and they have claimed that this caused harassment to the deceased. But, their evidence shows that the details about such harassment and illicit relationship were not stated in their statements before the Police or in their evidence before the Court. In fact, no report was ever lodged regarding such harassment allegedly suffered by the deceased. The allegation made by PW1 regarding demand of money was disbelieved by the Sessions Court. It was also stated by PW1 in his deposition that after the birth of child Adhiraj, the appellant was treating the deceased properly. 36. There does not appear to be any detailed evidence in respect of the allegation of harassment meted out by the appellant to the deceased. The said witnesses have emphasized on the extra marital and illicit relationship between the appellant and accused no.7 being the main cause of harassment to the deceased. But, the Sessions Court in its judgment has given finding that the prosecution failed to show any material regarding exchange of SMS between the appellant and accused no.7 and it only records that the call details show that there were exchange of calls on mobile between the appellant and accused No.7. Even before this Court, the counsel appearing for the respondent-State and the complainant were unable to show anything against the appellant on the basis of mobile call records. Thus, there does not appear to be sufficient evidence and material on record to prove that the appellant subjected the deceased to cruelty that was likely to cause any danger to her life or that she was harassed by the appellant in relation to any unlawful demand. Therefore, the conviction of the appellant under Section 498-A of the IPC is also not sustainable. 37. In view of the above, upon considering the entire evidence and material on record, particularly the medical evidence on record, we find that it is not possible to sustain the conclusion of the Sessions Court regarding homicidal nature of death of the wife of the appellant. Consequently, the other circumstances relied upon by the prosecution to prove the charge of offence under Section 302 of the IPC do not lead to any conclusion against the appellant. Therefore, the impugned judgment and order of the Sessions Court deserves to be set aside as against the appellant. 38. Accordingly, we allow this appeal and set aside the judgment and order of the Sessions Court dated 23.01.2014 and we acquit the appellant of the charges framed against him. The appellant be released from custody forthwith if not required in any other case. The amount of fine, if any paid, be refunded to the appellant.