Criminal Appeal No.329 of 1993

20th July, 2007

Petitioner Counsel: Shri. V. M. DESHPANDE
Respondent Counsel: Shri. D. B. PATEL

Cases Cited:
Jatinder Kumar Vs. State (Delhi Administration), Delhi, 1992 Cri.L.J. 1482 [Para 8,13]
Udaipal Singh Vs. State of U.P., AIR 1972 SC 54 [Para 28,39]

JUDGMENT

S. R. DONGAONKAR, J.:- Appellant Ramdas was convicted for the offence punishable under sections 302 and 201 of the Indian Penal Code in Sessions Case No.47/1986 by Additional Sessions Judge, Amravati by his judgment dated 30-7-1993. He was prosecuted for the aforesaid offences along with other offences under sections 498-A, 306, read with section 34 of the Indian Penal Code along with his mother accused No.1 Sau Laxmi (since deceased), accused No.2 he being himself, accused No.3 Eknath his father (deceased), accused No.4 Ramrao husband of the sister of accused No.1 Laxmi, accused No.5 Niranjan Bhuyar son of accused No.4 Ramrao and one Parasram accused No.6. During trial, accused No.1 Laxmibai, accused No.3 Eknath, accused No.4 Ramrao died and therefore, the trial was completed only against accused No.2 i.e. present appellant, accused No.5 and accused No.6, named above. After the trial, accused No.5 and 6 were acquitted of all the offences. whereas the appellant accused No.2 Ramdas was acquitted of the offence punishable under section 498-A as well as section 306 of the Indian Penal Code. He was, however, convicted & sentenced for the offences mentioned above. Appellant Ramdas challenges this conviction and sentence. Sentences are imprisonment for life and fine of Rs.1,000/- for the offence under section 302 of the Indian Penal Code and R.I. for one year for offence under section 201 of the Indian Penal Code.

2. Prosecution case in brief is as under :

Chandrakala daughter of one Punjaji Mondhe of village Loni was married to appellant accused No.2 Ramdas (hereinafter referred to as accused No.2 for the sake of convenience) at village Fulmala some time in the year 1976. She started residing with her husband. Accused No.1 Laxmi and accused No.3 Eknath were her in laws i.e. parents of accused No.2. One Jaiwantabai the sister of accused No.1 Laxmibai had married with accused No.4 Ramrao. Accused No.5 is the son of accused No.4 Ramrao and the said Jaiwantabai. Accused No.5 is also resident of Fulmala and resides in the vicinity of the house of accused No.2 Ramdas. Accused No.6 Parasram is resident of Shiogaon & is acquainted with the family of accused No.2 Ramdas. It is the prosecution case that accused No.2 Ramdas, his parents used to beat, ill-treat and harass the said Chandrakala for petty reasons. They were alleging that she was in habit of eating stealthily and for this she was reached to her parents' home twice. It is alleged that, she had come to her matrimonial home just some time prior to the incident due to intervention of accused No.6 Parasram. It is the case of the prosecution further that one Kusum is wife of Bhimrao; the real brother of accused No.4 Ramrao. Kusum is his second wife. He had one son Dilip from his first wife. It is alleged that about 2-3 days prior to the death of Chandrakala she had asked Kusum as to whether she used to sleep with Dilip suggesting that she had illicit relations with her stepson Dilip. She became angry. It is alleged that on this count Kusum had assaulted and beaten Chandrakala. On 29-9-1985, at about 7.00 - 7.30 p.m. Kusum along with Jaiwantabai wife of accused No.4 Ramrao had gone to the house of accused No.2 Ramdas and complained to him that Chandrakala was spreading numour in the village regarding illicit relationship of Kusum with her stepson Dilip. Accused No.2 Ramdas then started beating Chandrakala. Her cries & shouts were heard by others, outside the house, however, after some time said sound stopped. Next day morning i.e. on 30-9-1985 accused No.2 Ramdas told people in the village that his wife Chandrakala had committed suicide by jumping into well in the field of one Bansilal. In the noon time he informed the Police Patil of the village accordingly. Police Patil then confirmed the fact that the dead body of Chandrakala was lying in the said well and sent written report to the police station. The report was sent through Kotwal Ramdas Khadse, upon which A.D. No.12/1985 was registered at the instance of Head Constable Chimote. He proceeded to the spot of incident. He could not take out the dead body at that time, so on 1-10-1985 in the morning he again went to the spot of incident. By dropping the hook in the well the dead body of Chandrakala was fished out. Later on he prepared inquest Panchnama on the dead body. He also prepared spot Panchnama. He sent the dead body for post-mortem examination. Post-mortem Examination was conducted by Dr. Sharad Khanorkar who issued autopsy report. However, as dead body was in the process of decomposition and findings were some what inconclusive, he opined that no definite opinion could be given as the body was in the process of decomposition. He, however, preserved viscera for Chemical Analysis and report. Said viscera was sent to Chemical Analyser. However, no recognized poison was detected.

3. During the course of investigation, as it was transpired that Chandrakala committed suicide, due to cruel treatment given by her husband and in laws, offence was registered under sections 306, 498-A, read with section 34 of the Indian Penal Code vide crime No.122/1985 and concerned accused were also arrested. However, later on, further investigation was handed over to Local Crime Branch, Amravati i.e. to Dy. S. P. Swami. He received these investigation papers of crime No.122/1985. Then Dy. S. P. Swami conducted latter investigation from 3-12-1985 onwards, on that date some informants told him that one Baban Bhonduji Sarise was the eye-witness to the dropping of the dead body by the above mentioned four accused in the well. He recorded statement of that witness and one Sukhdeo Solanki and went to Amravati and registered offence under section 302 of the Indian Penal Code and informed the concerned Judicial Magistrate accordingly. As the statement of the said Baban disclosed that accused No.4 Ramrao, accused No.5 Niranjan, Accused No.6 Parasram had also accompanied & assisted accused No.2 Ramdas in throwing dead body of Chandrakala in the well, they were also arrested. This Dy. S. P. Swami claims that he could not pay any attention to this case till 3-12-1985 though case papers were received in the L.C.B. Office on 1-11-1985, due to communal riot. The report of C.A. was received. During the investigation by Local Crime Branch a query letter was sent to Dr. Khanorkar seeking opinion on some points, so as to enable to infer as to whether the death of the deceased was due to drowning or not. Dr. Khanorkar informed that the death was not possible due to drowning, meaning thereby she was "dead" before she was thrown in the well. After due investigation, charge-sheet against accused persons mentioned above was submitted for the offences under sections 302, 201, 498-A read with section 34 of the Indian Penal Code.

4. On committal of the case, learned Additional Sessions Judge initially framed the charge for the offence punishable under sections 498-A, 306 read with section 34 of the Indian Penal Code. When the other Additional Sessions Judge took over the charge of the case, he altered the said charge and framed it for the offences under section 302 read with section 34 of the Indian Penal Code, 201 of the Indian Penal Code, 498-A read with section 34 of the Indian Penal Code and in alternative for section 306 read with section 34 of the Indian Penal Code against the relevant accused. The same was explained to them. Accused No.3 Eknath was dead at the time of framing of first charge. When the fresh charge was framed accused No.4 Ramrao had also expired. During trial accused No.1 Laxmibai had died. As such appellant accused No.2 Ramdas, accused No.5 Niranjan and accused No.6 Parasram faced the trial, in which accused No.2 appellant Ramdas was convicted for the aforesaid offences, whereas rest of the accused were acquitted.

5. Appellant Ramdas challenges his conviction and sentence in this appeal. It needs to be placed on record that the State has not preferred any appeal against the acquittal of other accused.

6. It may be mentioned that the learned trial Judge, has found that the testimony of P.W.2 Baban Sarise who claimed that he had seen all the (male) accused coming with the dead body of Chandrakala and throwing it in the well of Bansilal, is not reliable and trustworthy. He, however, on the strength of observations in the authority on "Medical Jurisprudence of Modi" found that the death of deceased due to drowning is not established and in all probabilities she must have been dead when she was thrown in the well. He also found that the evidence on record indicates that the deceased was ill treated. Considering the material circumstances established on record, he also found that even if the evidence led by the brothers of the deceased i.e. P.W.1 Laxman and P.W.4 Sahebrao is considered as true, it cannot be said that cruelty was of such a nature that she would be driven to commit suicide or to cause harm to her body. He has considered the circumstances, on record that Chandrakala had children and she had led marital life of about 9 years. She had also come back to her matrimonial home and during all her matrimonial life she had given birth to four children. He did not think that the intention of the accused persons was to drive her to commit suicide. Holding that she was not alive when she was thrown in the well, and it was appellant accused No.2 Ramdas responsible for her death in the house, he held him guilty of the offence under section 302 of the Indian Penal Code and as her body was thrown in well for making evidence to disappear to screen himself from the punishment arising out of the offence, he found him guilty of the offence punishable under section 201 of the Indian Penal Code, as well.

7. In order to challenge this judgment of conviction, learned counsel for the appellant Shri. V. M. Deshpande has submitted that the evidence on record does not conclusively show that deceased Chandrakala was dead when she had been in the well. According to him, the articles like Chappal, small German pot used for going to answer nature's call by the side of the well show that she had committed suicide. According to him Dr. Khanorkar who had conducted post-mortem examination was unable to opine regarding the exact cause of death i.e. whether homicidal or not. Latter opinion given by him during L.C.B. investigation was a concocted opinion and it was just to suit the investigation and determined conclusion of L.C.B. that the murder was committed. He also pointed out many discrepancies in the evidence and also the fact that the statement of material witness P.W.2 Baban was recorded after considerable lapse of time i.e. of about 2 months, he was hardened criminal and bootlegger dealing with illicit distillation of liquor and therefore, he was rightly disbelieved by the learned trial court, but, according to him, it would lead to the inference that LCB had gone to the extent of fabrication of evidence in its favour. He has also pointed out the discrepancy in the evidence of P.W.8 Pundlik who had taken dead body in bullock cart to the hospital for P.M. Examination and P.W. Head Constable Chimote who had prepared inquest Panchnama regarding the noticing of cotton rags in the mouth and nostrils of the deceased Chandrakala; when the dead body was taken out. He has further contended that when the direct evidence of P.W.2 Baban as regards throwing of dead body of Chandrakala in the well by the accused persons is found to be false, prosecution case becomes totally unreliable as it has a smell of concoction of the evidence against the accused. Learned counsel for the appellant has also taken us through the authority of Modi on medical jurisprudence to contend that in no case it is established that deceased Chandrakala had died of homicidal death and she was not alive before she was thrown in the well. According to him though some injuries were found on the dead body of the deceased, which were allegedly ante-mortem, the same cannot establish the ill-treatment meted out to deceased Chandrakala. It is his submission further that case against the appellant Ramdas is clearly of suspicion and not of full proof established case for the offence under section 302 read with section 201 of the I.P.C.

8. Apart from this he has specifically contended that the learned trial Judge should not have framed charge under section 302 of the I.P.C. and in alternative section 306 of the Indian Penal Code as the Additional Sessions Judge who was holding trial earlier had framed charge under section 306 of the Indian Penal Code, despite the charge-sheet was for the offence under section 302 of the Indian Penal Code. According to him, learned trial Judge, has committed serious error in conducting the trial, in view of the judgment of the Delhi High Court in 1992 Cri.L.J. 1482, after framing charge u/s.302 of I.P.C. & in alternative u/s.306 of I.P.C. which are inconsistent to each other. It is also submitted by him that this changing of stand by the prosecution i.e. earlier registering a case of 306 of the Indian Penal Code, then after handing over investigation to L.C.B. making out a case of offence under section 302 of the I.P.C. and filing charge-sheet under that section, then the Additional Sessions Judge framing the charge under section 306 of the I.P.C. despite charge-sheet was filed under section 302 of the Indian Penal Code and later on new Additional Sessions Judge holding trial by framing charge under section 302 of the Indian Penal Code and in alternative one under section 306 of the Indian Penal Code has caused serious prejudice to the defence of the appellant Ramdas and therefore, in such circumstances, he is entitled for acquittal.

9. Per contra Learned A.P.P. Shri. D. B. Patel has submitted that the appellant Ramdas had himself informed Police Patil and stated before villagers that the deceased Chandrakala had committed suicide by jumping into well upon which A.D. was registered. He has definitely misled the investigating agency and therefore clear case of suspicion was against him. According to him, conduct of the appellant clearly shows that he was perpetrator of crime and as the deceased had died in his house and in his company, it was for him to explain how she died. He has further contended that witnesses P.W.6 Tulshiram and P.W.7 Dhondiram had, prior to the alleged death of the deceased, heard shouts from house of appellant "Melo re Bapa" and therefore, the intention of the appellant to kill her was obvious. He has also referred to the evidence of P.W.5 Kusum although she has turned hostile to the prosecution to show that the deceased Chandrakala had tried to accuse her of having illicit relations with her step son Dilip. He has further referred to the evidence of P.W.8 Pundlik to show that when dead body was taken in his bullock cart for Post-mortem, he noticed cotton rags in her nostrils and mouth meaning thereby when the dead body was taken out from the well, she had cotton rags in her nostrils and mouth and therefore, she must not have committed suicide. He has further taken us through the answers of Dr. Khanorkar to the queries made by the L.C.B., when it took up the investigation by which Dr. Khanorkar had informed that external injuries might have been caused by hard and blunt object, possibility of death due to drowning is least; meaning thereby the deceased was not alive when she was in the well. It is also his submission that as the appellant Ramdas had opportunity to commit crime and the circumstances are such that the deceased Chandrakala would never commit suicide, only inference that is possible is that she had died of homicidal death as her accidental death is not at all possible considering the location and situation of the well; which had parapet wall of considerable height. He therefore, relying on the reasons recorded by the learned trial Judge submitted that the judgment of the learned trial Judge is correct and proper and it cannot be set aside in appeal.

10. As regards the framing of charge in alternative, he has submitted that no prejudice is caused to the appellant Ramdas and therefore, trial can not be said to be vitiated on that count.

11. At the very threshold, we propose to deal with the contention of the learned counsel for the appellant that the learned trial Judge has framed the charge incorrectly, making the charge under section 306 of the Indian Penal Code, as the alternative charge to section 302 of the Indian Penal Code and therefore, the trial is vitiated.

12. In order of appreciate this contention of the learned counsel for the appellant, it is necessary to examine Exh.20 which was initial charge that was framed against the accused persons. It was under sections 498-A and 306 read with section 34 of the Indian Penal Code. It is to be noted that in the present case, though initially offence under section 306 of the Indian Penal Code was registered, the charge-sheet was filed under section 302 of the Indian Penal Code, besides the other offences. As such it appears that the learned trial Judge while amending the charge included the offence under section 302 of the Indian Penal Code, ofcourse read with section 34 of the Indian Penal Code, while amending the charge. Rest of the charges were suitably amended while retaining charge under section 306 of the Indian Penal Code as an alternative charge to the murder. In specific words he has mentioned at paragraph 4 "in the alternative to charge of murder"

13. It is necessary to bear in mind that there were no reasons recorded by the learned trial Judge while framing charge under section 306 of the Indian Penal Code, though the charge-sheet was one under section 302 of the Indian Penal Code. Learned counsel for the appellant has taken us through 1992 Cri.L.J. 1482 (Jatinder Kumar and others Vs. State (Delhi Administration), Delhi), in which it is held in paragraph 5 thus :

"5. A bare reading of the aforesaid section shows that the doubt has to be as to the nature of the offence and not about the facts, if in a given case, on the facts which can be proved by the prosecution, it is doubtful which of the offence the said facts will constitute the framing of charge in the alternative is permissible. Section 221 is not intended to be applied to a case where facts are in doubt. Ordinarily, an alternative charge cannot be framed in respect of distinct offences. The offence under S.302, IPC and the offence under S.306 are distinct. The ingredients of the two provisions are altogether different. The prosecution has to take a stand whether it is a case of murder or suicide. The prosecution cannot say that the accused has murdered the deceased and if the deceased has committed suicide, the accused has abetted the commission of suicide. The framing of such charge is not permissible under S.221 of Cr.P.C., as there is a doubt about the facts which can be proved and in that eventuality S.221 of the Code has no application."

According to the learned counsel for appellant, no charge under section 306 in alternative to section 302 of the Indian Penal Code can be framed, as the same is not permissible in view of the above observations.

14. In order to consider this contention, it has to be noticed that the facts of this case show that the said matter was at the stage of framing of charge. It is necessary to peruse the final order in paragraph 10 of the said judgment which reads thus:

"10. For the forgoing reasons the revision petition is partly allowed. The impugned order directing framing of charge against petitioner Veena and Poonam is set aside. The said petitioners are discharged. The order directing framing of charge in alternative under S.306, IPC against petitioners Jatinder Dina Nath and Smt. Mala Devi is set aside. However, the order directing framing of charge under Ss.302/34, IPC and S.498-A, IPC against the said three petitioners is maintained. The petition is disposed of in the above terms. The record be sent back immediately."

15. It is therefore, apparent that in that case the matter of framing of alternative charge of section 306 of the Indian Penal Code was taken to Delhi High Court at the stage of framing of charge, itself.

16. In the case in hand, the charge is already framed, trial has been completed and the appellant has been convicted. Therefore, in our opinion, the observations of the said case would not come to the help of the appellant for succeeding in the contention that the trial is vitiated on that count. In fact, in our opinion, the provisions of section 464 of the Code of Criminal Procedure would now be attracted, which read thus :

"464 (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of the opinion that a failure of justice has in fact been occasioned, it may -

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it things fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

17. It is necessary to bear in mind that these provisions make it clear that no finding, sentence or order by the court of competent jurisdiction shall be deemed to be invalid merely on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (Emphasis supplied)

18. Here is the case where the appellant has contested the case thoroughly and due cross-examination was conducted by the defence; of all the prosecution witnesses. There is apparently nothing on record to suggest that the defence has been prejudiced because of framing of improper charge. There appears to be no failure of justice, in fact. Further it cannot be lost sight of the fact that the charge-sheet against the accused/appellant was for the offence under section 302 of the Indian Penal Code making out a clear prosecution case against him for that offence. Therefore, this contention of the learned counsel for the appellant cannot lead us to allow this appeal on that count. But it needs to mention that trial Courts are expected to pass reasoned order if charge is not framed for the offences for which charge-sheet is filed or when it is altered or amended materially at a later stage, after hearing the parties, to avoid failure of justice to enable defence to know in clear terms what case it has to meet.

19. It is necessary to bear in mind while proceeding further that the learned trial Judge has discarded the evidence of P.W.2 Baban who had come to depose that at the relevant time he had seen accused persons throwing "dead body" of deceased Chandrakala in the well. It is necessary to note what he had stated in this regard. He had stated that he was proceeding at about 12.00 p.m. to 1.00 a.m., by the side of orchard of Bansilal, when he was returning from the forest after distillation of liquor. He went near the orchard of Bansilal, there was wire fencing around that orchard, at that time he saw five persons having lifted dead body and they were trying to enter through the barbed wire fencing into the orchard. He has specifically stated that those five persons (naming accused persons) dropped dead body in the well situated in the orchard. He further stated that after throwing the dead body in the well; all those five persons returned to the houses and he returned to his house and he identified these persons in the bright moonlight. Besides this, he also stated that accused Parshram was holding a lamp. Thus his categorical statement is that he had seen these accused persons throwing the dead body in the well and this was seen by him in the moonlight and in the lamp light.

20. In cross-examination, this witness had to admit that he was facing so many criminal cases against him. He also admitted that accused No.5 Niranjan had lodged report against him for theft. He has also admitted that he was facing prohibition and theft cases and he was proceeded in chapter case under section 110 of the Criminal Procedure Code. Apart from this, he has stated that he did not report about the incident to the police patil either orally or in writing. He narrated whole incident before the police when he was interrogated, but he did not report about the same to any other person. He has also stated about material facts that they are not recorded in his statement before the Magistrate. As regards his presence on the spot, suffice it to say that it is quite unnatural, as he stated that he was returning after distillation of illicit liquor and though the way through the orchard to fencing was long, due to fear of police, he used to pass through orchard of Bansilal. This is rather unnatural, as possibility of Choukidar i.e. Watchman would have also been there. He further admitted that he did not disclose many things before the police and also before the Executive Magistrate for which he made disclosure during evidence. He has stated that there used to be Watchman in orchard but he clarified that at that time there was no watchman present in the orchard. Thus he has given evidently unbelievable version. More so because in the statement before police and Magistrate he did not disclose that accused No.6 Parashram was holding lamp. His statement was recorded by I.O. P.W.12 Dy. S. P. Swami only on 3-12-1985. Now it is worthwhile to see that as to what Dy. S. P. Swami of L.C.B. has to say in this regard. He has stated that he had received the case papers of this crime for investigation on 1-11-1985. However, due to communal riot he could not pay any attention to this case till 3-12-1984. It is pertinent to note that in examination-in-chief he has also stated that from some informant he came to know that one Baban Tanbaji Surse was eye-witness. This he has stated in pursuance to his statement that on 3-12-1985 he received case papers of crime No.122/1985 of Loni Police Station. Prosecution owes explanation as to why this informant is not examined. After getting the case papers, he had started investigation. He noticed that documents particularly post-mortem notes which indicated some ante-mortem injury. He came to know this fact from Baban; an eye-witness. This would apparently mean that besides, him this Baban did not disclose about seeing accused throwing dead body in well to anybody else prior to this date, since he is a criminal there is possibility of his being under the thumb of the police and doing as police wanted and the cross-examination of this witness clearly suggests that Baban did not tell many material thing before him and this fact assumes importance and makes the evidence of P.W.2 Baban totally unreliable, which is rightly discarded by the learned trial Judge.

21. But then, simply by discarding the evidence of P.W.2 Baban the job of the court would not be over. It cannot be lost sight of the fact that there is clear possibility of making this witness as fabricated witness to generate support for further investigation. Earlier the case was of section 306 of the Indian Penal Code and later on it was converted into one under section 302 of the Indian Penal Code, may be for whatever reasons, but the fact remains that in such circumstances, the evidence of the prosecution case will have to be viewed with suspicion and unless, it withstands to the judicial scrutiny and figures no doubts, then only it can be relied upon.

22. Learned trial Judge has considered evidence of Medical Officer Dr. Sharad Khanorkar P.W.3 for coming to the conclusion that deceased Chandrakala had met with homicidal death.

23. In this regard it is pertinent to note that initially this witness, when conducted autopsy, has opined that no definite opinion can be given as regards cause of death, as the body was in the process of decomposition. He has also preserved viscera in which later on no recognisable poison was detected. All this means that medical officer was not of the opinion that the death of the deceased was homicidal and it was not because of any other thing, but because the body was in process of decomposition. Although in post-mortem notes, he has observed that certain injuries were seen to be ante-mortem. These ante-mortem injuries do not suggest that the death of the deceased, was homicidal one. These injuries were not sufficient to cause death. On the contrary, he was not sure so he gave this type of opinion. Thus when he conducted autopsy, he had not even suspected that death of deceased could be homicidal.

24. Now, how he has come to the opinion that deceased died of homicidal death, needs to be carefully seen. It was; when the L.C.B. made queries to him on 19-12-1985; he had submitted relevant opinion on 20-12-1985. It is necessary to examine it verbatim:

"On execution of Post-mortem report of deceased Chandrakala Ramdas Mehre, clarification of following is given part-wise as described.

(1) There were ante-mortem contusion seen on dead body which was already mentioned in column No.17, it might have been caused due to hard & blunt object.

(2) Vagina was swollen, decomposed and it was eaten up by maggots, hence no definite opinion can be given.

(3) On Exam. of P.M. report column Nos.11, 16, 20, 21 and seeing the decomposed state of body. No definite opinion can be given. However possibility of Drowning is least.

(4) No goose skin or cuits Anesrai was seen on dead body."

25. According to him, though no definite opinion can be given, possibility of drowning was least.

26. Taking this clue and considering some other circumstances, learned trial Judge has come to the conclusion that deceased had died due to homicidal death.

27. To quote, few observations of the learned trial Judge, it may be stated that, he has observed - "If Chandrakala would have died natural death, there would be no reason for her husband to dispose of the dead body by throwing the same in the well. The fact that dead body was thrown in the well indicate that she was killed or she had died during the beating." He further observed - "Though the exact cause of death is not known, it is firmly ruled out that it is a case of suicide by drowning and by the circumstances indicated above, possibility of death due to natural cause is also ruled out. The only inference that can be drawn in the given circumstances is that Chandrakala was killed and she died homicidal death".

28. Learned trial Judge after relying on AIR 1972 SC 54 (Udaipal Singh Vs. The state of U.P.) found that the accused had an opportunity to kill deceased and therefore, he has found appellant guilty of the offence under section 302 of the Indian Penal Code.

29. Now it is necessary to note that offence under section 498-A of the Indian Penal Code is not established. There are observations of the learned trial Judge in the impugned judgment that the possibility of settling the disputes between the parties amicably cannot be overruled and therefore, there appears ex-facie no strong motive to kill the deceased by the appellant and the other accused. We must say that for absence of the appeal against acquittal by the State against other accused, case against the appellant is weakened.

30. Yet one important circumstance which tends to discredit prosecution case, is the evidence of P.W.8 Pundlik. He has carried the dead body in Bullock-cart, after the same was taken out from the well of Bansilal. He has stated that when he went there dead body of wife of Ramdas was being taken out from the well. He saw that there were cotton rags in the mouth and nostrils of the dead body. Meaning thereby that when the dead body was in the well; it had these cotton rags in the mouth and nostrils of the deceased. That would clearly indicate that "dead body" was thrown in the well and not that deceased had jumped in the well.

31. It is necessary to see in this behalf that this witness has further stated that in the presence of the Police Head Constable cotton rags were removed from the mouth and nostrils and were thrown in the well. He however admitted that it is true that he disclosed this fact only when his statement was recorded by C.I.D. Officer. Now this statement is recorded on 1-12-1985. He admitted that accused No.5 Niranjan had filed criminal case against P.W.2 and he has further admitted in cross-examination that his wife is sister of P.W.2 Baban. Leave this apart, this witness has been materially contradicted by the evidence of P.W.10 Constable Chimote who has clearly stated that he fished out the dead body and further that there were no cotton rags in the mouth and nostrils of deceased. He had prepared inquest panchnama as per condition of the dead body. This would clearly mean that after the investigation was entrusted to L.C.B., the case was being tried to be made out for the offence under section 302 of the Indian Penal Code in contrast to the case of committing suicide by the deceased i.e. for offence under section 306 of the Indian Penal Code.

32. Therefore, the evidence of Medical Officer Dr. Khanorkar becomes important. It is necessary to bear in mind that had the deceased would have been killed in the house, accused and all of them would not have gone to the well of Bansilal, in his orchard; where there was possibility of watchman being there; as it was a fruit garden. As already stated above, evidence of P.W.2 Baban is quite suspicious and therefore, case that this accused must have taken the dead body of the deceased to the well by killing her in the house, appears to be improbable. The noticing of cotton rags in the mouth and nostrils of deceased while body was taken out of the well also appears to be an after thought story just to support the theory of L.C.B.

33. The finding of the Chappals of the deceased near the well so also the container used for going to answer nature's call near the well makes out a possibility of the deceased being met with suicidal death though possibility of accidental death is not there.

34. Now it is pertinent to note that the defence has tried to contend that the deceased Chandrakala might have committed suicide because of her allegations against P.W.5 Kusum that she had illicit relations with her step son Dilipkumar. This witness Kusum has turned hostile to the prosecution. Apart from that in her evidence, she has given some admissions, which would show that possibility of deceased Chandrakala committing suicide because of scolding by appellant Ramdas is not all together improbable.

35. This takes us to consider the medical evidence in this behalf.

36. On perusal of the evidence of Medical Officer Dr. Khanorkar, it would be seen that apart from his giving no definite opinion regarding homicidal death of the deceased, he has agreed with authority in Modi's Jurisprudence which reads thus :

"In a few cases, death may occur from obstructive asphyxia also known as dry drowning caused by laryngeal spasm set up by a small amount of water entering the larynx. In such a case water does not enter the lungs and the signs of drowning will be absent."

37. It would be seen that possibility of death of deceased by vagal inhibition or concussion is not altogether ruled out. He has specifically stated that in the present case due to purification he could not say if the death might have been caused due to vagal inhibition or concussion.

38. It is obvious that if the death is due to vagal inhibition or concussion, there would not be any external signs of death due to drowning. In our opinion, the view taken by the learned trial Judge to some extent is possible, but then, although there was an opportunity to appellant to commit offence deceased being in custody of appellant, being husband, merely on that count, it can not be held that she was killed at the house and then her dead body was thrown in the well as alleged. More so because the State has accepted the verdict of acquittal of other accused of the trial court and because the introduction of P.W. Baban as an eye-witness seems to be clearly engineered.

39. In these circumstances the authority relied upon by the learned A.P.P. reported in AIR 1972 SC 54 (Udaipal Singh Vs. State of U.P.) will not be attracted. In all the cases where the accused had a chance to commit offence, unless there is strong motive to commit that offence, it may not be possible to draw any adverse inference against accused, much less to find him guilty of the offences charged. Appellant cannot be called upon to explain the death of the deceased in the present case inasmuch as the same is not proved to be in the house of the appellant/accused and in view of above possibility of suicidal death is not ruled out beyond reasonable doubt. In these circumstances therefore, we are of the opinion that the case against appellant accused is more of suspicion rather thick suspicion, but then in view of the basic principle of criminal law, the same cannot take place of proof.

40. We have already pointed above that State has not preferred any appeal against acquittal of appellant for other offences and of other accused.

41. In these circumstances, it is not possible to confirm the judgment of conviction of the appellant. As such the appeal is allowed, appellant's conviction and sentence is set aside and he is acquitted of the offences for which he was found guilty. His bail bond stands cancelled. He is set at liberty forthwith.

Appeal allowed.