JUDGEMENT : CHATURVEDI, J. This case has come before this Court both on appeal by the accused and under Section 374 of the Code of Criminal Procedure for confirmation of the capital sentence passed by the Additional Sessions Judge, Gwalior, on the accused for the offence of murder of one married young Kumhar (Potter) female (Mahila Dhanno) who was fifteen or sixteen years old. 2. There is no eye-witness to the actual murder and the case depends entirely on circumstantial evidence. The case commenced in the following way. 3. Babu, P. W. 1, brother of the deceased, lodged a report (Ex. P. 7) in police Station Madhogang, Lashkar at 11 p.m. on 4-2-1950 that his sister Dhanno had gone to sell cowdung cakes at about twelve (noon) and had not -yet returned home. Search amongst relations had proved to have been of no avail. It was added in the report that she had told her mother that she was going towards Jachakhana (Maternity Ward). 4. On the next day, i.e., on 5-2-1950 the father of the accused, Yashwant Rao Jamdar P. W. 3 aged 55 years approached Thakur Puttusingh, the Superintendent of Police, and the latter sent for the City Kotwal P. W. 10 who on inquiry from Yaswant Rao recorded at 4 p.m. in the Roz Namcha A. M. a report No. 16 dated 5-2-1950 (Ex. P. 12), that the said Yaswant Rao stated that he had gone out of Lashkar and when he returned that day he saw some Kumhars roaming about his house. His son, Narain Rao (the accused) who was convicted in a theft case and was released from jail on 26-1-1950 was there; but he did not give any reply to his questions. It was added that the said Narayan Rao had however locked the stair-case leading to a room, and he was bent upon having a fight but would not open the doors. 5. The Kotwal then went to the house of Yashwant Rao, which was very near the Maternity Ward. In the meanwhile the accused absconded. The Kotwal and the Police with the father of the accused and other persons went inside the house. In the sleeping room of the accused, above his cot, there was a wooden plank fixed on which the basket was found and nearby in a corner were found the cow-dung cakes. In the meanwhile the accused absconded. The Kotwal and the Police with the father of the accused and other persons went inside the house. In the sleeping room of the accused, above his cot, there was a wooden plank fixed on which the basket was found and nearby in a corner were found the cow-dung cakes. Babu, (P. W. 1) identified these as belonging to the deceased. On the left side of the room was a stair-case which was locked. The lock was broken and the party went to the roof. On the left side was a sort of verandah with three doors which were closed. The doors were opened, and after entering a Kotha they found a very small room which was also closed. Opening it the dead body of Mahila Dhanno was found in it. The body was lying on its back. The mouth was stuffed with a handkerchief and on it was tied a langot; eyes were closed; private parts and breast were uncovered and there were many marks of abrasions on both sides of the breast. Dr. V.R. Sapkal (P. W. 2) who performed the autopsy on 6-2-1950 was of opinion that there were nearly ten abrasions on the right side of breast and a big abrasion with a diameter of 1¼" on the nipple left side. This was most probably due to human bite. No scratches or wounds could be detected near the private parts; hymen being old ruptured. The stomach and small intestines and oesophagus were inflamed; lungs, liver, spleen, kidneys being congested. The right side of the heart was full of blood and the left empty. According to him the cause of death was asphyxia and irritant poison. The viscera were sent for chemical examination; and opium was found in them. Examined as a witness Mr. Shankar Rao (P. W. 8), the Chief Chemist, deposed that he was unable to say whether the morphia which he found was the result of partaking of opium in the form in which it is usually taken or of partaking of some preparation containing morphia. He could not tell the quantity of opium taken or the time before death at which it could have been taken. The fatal dose being one grain of morphia or four grains hi opium, it is difficult to say whether so much opium or morphia was in fact administered. He could not tell the quantity of opium taken or the time before death at which it could have been taken. The fatal dose being one grain of morphia or four grains hi opium, it is difficult to say whether so much opium or morphia was in fact administered. The police failed to discover any morphia or opium in the house. It is possible that the fatal dose may not have been given but some preparation may have been given in order to break the resistance, if any. The slides containing vaginal discharge were negative for semen and no spermatozoa could be traced. The examination of the Lehenga and Dhoti of the deceased also indicated the same result. 6. From the above, it is evident that attempts were made to have sexual intercourse with the unfortunate female forcibly and the deceased continued to resist. Then, in order to silence her, a handkerchief was stuffed into the deceased's mouth and a langot was tied over it. It appears that the female died due to suffocation before the offender could commence sexual intercourse. 7. Counsel for the appellant, Mr. Ramprakash Saxena, has however argued that as the heart was found full of blood, it should be taken that death could not have been due to suffocation. It could have been due to opium alone and as there is no evidence that the appellant administered opium, his client should be acquitted. 8. A perusal of the text books on medical Jurisprudence will show that there is no substance in the argument. Modi in his Medical Jurisprudence (Seventh Edition 1943) at page 175 dealing with "Internal appearance in suffocation" says : "The right side of the heart is often full of dark blood and the left empty. The brain is generally congested, and so are the abdominal organs, especially the liver, spleen and the kidneys." 9. Taylor in his Principles and Practice of Medical Jurisprudence, Vol. I (9th Edition 1934) at page 596 writes : "Watson observes that the engorged state of the right side of the heart and lungs is greatest when the act of suffocation has been slow and gradual, by the access of air to the lungs not having been completely prevented; when, on the other hand, death has taken place quickly or suddenly there is little or no unusual congestion of blood." 10. It is clear that the internal appearance in this case could have been of suffocation. It is true that in poisoning by opium the post mortem appearances are typically those of asphyxia due to the paralysing action of opium on the respiratory centre in the meedulla. But it is to be borne in mind that if a fatal dose of opium had been given there would have been smell or odour of opium in the stomach contents; and, in the Post Mortem Report (Ex. P. 11) Dr. Sapkal had clearly mentioned that no particular smell could be detected in the contents of the stomach. Dr. Sapkal in his evidence also could not say anything whether death could have been caused by opium; and the Chief Chemist (Chemist in the Agriculture Research Laboratory) in answer to several questions, replied that he was not a medical man and so could not express any opinion on such points. On the slender data furnished by the testimony of these witness, it cannot be concluded that death of the female Dhanno could have been caused by opium poisoning. The Court has therefore to form its own opinion about the cause of the death after taking into consideration the circumstances in which the corpse was found. As mentioned above, a handkerchief was found stuffed in the mouth of the deceased and a langot was tied over it. In such cases death occurs on an average from 4 to 5 minutes after complete withdrawl of air from the lungs. The tongue of the deceased was also found pressed under the teeth and there were clear appearances of death by sufiocation. It is true that ecchymosed spots were not visible any where; but they might have disappeared with putrefaction. According to Post Mortem Report rigor mortis was present and death had taken place within 24 to 48 hours before performing of the autopsy. Taylor in Vol. I page 595 also mentions that the appearance of ecchymosed spots are. more strongly marked only if there has been rapid suffocation. In cases of slow and gradual suffocation the substance of the lungs is more congested with blood and then these patches or dots are merged in the general violet colour of the surface of the organs. It, therefore becomes clear that death was definitely due to suffocation and the interruption of breathing had been slow and gradual. In cases of slow and gradual suffocation the substance of the lungs is more congested with blood and then these patches or dots are merged in the general violet colour of the surface of the organs. It, therefore becomes clear that death was definitely due to suffocation and the interruption of breathing had been slow and gradual. From the signs of struggle and resistence in the body of the deceased neither accident nor suicide could be urged as affording a satisfactory explanation of their presence. From the absence of semen or spermatozoa on the clothes of the deceased one is led to the conclusion that the handkerchief was stuffed into the mouth of the deceased in order to silence her and the female died due to suffocation before the offender could commence sexual intercourse. Whosoever the offender is, he must be presumed to have known the natural consequences of his act; but it is difficult to say that the natural consequence of behaving in this way is definitely death. Though the conduct of the offender was most reprehensible and constituted a criminal offence, yet in my opinion he cannot be saddled with the intention or knowledge necessary to constitute an offence under S. 302, IPC. The handkerchief seems to have been stuffed in the mouth of the deceased in order to silence her and not with any idea of killing her. The most that can be said then is that the offender must be presumed to have known that he was likely in so doing to cause her death. He was therefore guilty of culpable homicide not amounting to murder. In this view, I am fortified by 'In re Sendoga Gounden', a decision of Ayling and Tyabji, JJ., reported in 'AIR (3) 1916 Mad 651 : 1915 MWN 621 : 30 Ind Cas 438 : 16 Cr LJ 614'. 11. I now proceed to discuss whether the accused Narayan Rao can be held responsible for this offence. Narayan Rao had disappeared from Lashkar in the afternoon on 5th Feb. 1950 as soon as his father P. W. 3 went to the police to lodge a report suspecting his complicity in this murder. After due investigation a warrant was issued against him under Sections 302 and 392, I. P C. but it seems the accused could not be arrested for about 3 months. 1950 as soon as his father P. W. 3 went to the police to lodge a report suspecting his complicity in this murder. After due investigation a warrant was issued against him under Sections 302 and 392, I. P C. but it seems the accused could not be arrested for about 3 months. It was the Dewas police that required him in connection with a theft case and got him arrested at Poona in May 1950. He was brought to Gwalior from Dewas and challanged under Sections 302 and 392 but was committed under Section 302 alone and, as stated above, sentenced to death. 12. The defence of the accused has been from the beginning that he had left Lashkar on 28th Jan. 1950 and that he has no knowledge that any corpse or dead body was recovered from his house. In my opinion the learned Sessions Judge has rightly disbelieved the defence. In the presence of Ex. P. 12, i.e., the report recorded by the City Kotwal P. W. 10 at the instance of the father of the accused (P. W. 3), the statement of the accused, and, that of his defence witness Vittal Rao D. W. 1 cannot be relied on. The father Yashwant Rao (P. W. 3) supported the substance of the report which has been lodged in the police in the Committing Court. But he turned hostile in the Sessions Court and resiled from the previous statement recorded in the Court of the Committing Magistrate. The Sessions Judge then admitted his deposition before the Committing Magistrate as evidence at the trial under Section 288 of the Code of Criminal Procedure. Counsel for the appellant contends that this course was open to objection, and refers to notes 5 and 7 of Chitaley's Commentary on this Section in the 1948 edition. He also argues that such a statement should not have been relied upon in the absence of corroboration. It is true that the power under this Section, being one in derogation of the general principle that a Court can only act on the evidence given before it, the decision to let in the previous deposition of a witness under Section 288 should be arrived at after careful consideration and only where there are sound and reasonable grounds for such a decision. In this case the Sessions Judge found that there were material changes in the version given by the witness P.W. 3 before it from the version given by him before the Committing Court. It was natural for a father in view of his affection for his son and his obvious desire to save him from the gallows to resile from the previous statement and then to depose that his son was not there on 5th Feb. 1950. Under these circumstances, in my opinion, the Sessions Judge was fully entitled to have recourse to the provisions of Section 288 to bring on record the deposition of the witness in the Committing Court. The evidence so brought on record is good evidence and does not require corroboration from other sources. It is a substantive evidence and usable for all purposes; and if the Court finds that the evidence given before the Committing Court was true it can act upon it in preference to the one given before it. 'Parmanand Ganga Prasad v. Emperor', AIR (27) 1940 Nag 340; 'Narinjan Singh v. Emperor', AIR (23) 1936 Lah 357; 'Muhomed Surwar v. Emperor', AIR (29) 1942 Lah 215 and 'Hanuman Prasad v. Crown', AIR (36) 1949 Nag 254. I think that the Sessions Judge was fully justified in admitting the deposition of Yashwant Rao before the Committing Magistrate as evidence and in acting upon it. 13. From this testimony it is proved beyond doubt that the room from which the dead body of Mahila Dhanno was recovered was exclusively in the possession of the accused and his father. The mother was away at Poona and the father on 4th was absent and the house was, at the time of Mahila Dhanno's death, in the exclusive possession of the accused. Not only the accused knew that the dead body was there, he also locked the staircase so as not to allow any body to go up through the staircase and recover the dead body. It was the duty of the accused to have explained how the dead body came in that portion of the house, which was in his exclusive possession. 14. It was the duty of the accused to have explained how the dead body came in that portion of the house, which was in his exclusive possession. 14. Then I would not rely on the evidence of those persons who gave information to the police that they saw Mahila Dhanno going to the house of the accused and subsequently resiled from those statements, but Sakharam P.W. 4 aged 19 or 20 years definitely states (and has stuck to that statement even in the sessions Court) that he is a friend of the accused and that the accused had invited him to come to his house on 4th Feb. in the afternoon for a chat with a girl friend. The witness then deposes that he could not go to his house as he was doing work at his shop but after finishing the work he went in the evening, and when he took tea with him he saw a girl therenear the window, but she was not his friend. According to the witness the accused told him that she is a kumhar girl and after enjoyment (i.e. sexual intercourse; he will let her go. The witness then after finishing his tea went to his house. Nowhere in the cross-examination of this witness, nor in the arguments before us, has the testimony of this witness been in any way, shaken and I am bound to take that testimony as weighing heavily against the accused. A question was put to the accused to give explanation as to why Sakharam should depose against him. No satisfactory reply was forthcoming. The testimony clearly proves that the deceased was seen with the accused on the evening of 4th Feb. 1950. 15. It is then argued that there were other persons living in the house e.g. D. W. 1 Vithal Rao. I agree with the Sessions Judge that he is an unreliable witness. Any statement of a witness who comes to tell a naked lie that the accused was not present in the house on 5-2-1950 cannot be believed. The evidence of P. W. 3 the father of the accused is cogent and clear to prove that there were only two persons living in the house viz. the witness and his son, the accused. 16. The evidence of P. W. 3 the father of the accused is cogent and clear to prove that there were only two persons living in the house viz. the witness and his son, the accused. 16. It is also strenuously urged that the house is in somewhat dilapidated condition and anybody can climb the roof and put the dead body there. First, it has to be borne in mind that the same thing can be said of most of the houses; thieves do climb the roof of many of the houses. Secondly, this circumstance could have been taken into consideration if other circumstances inculpatory of the accused had not been present in this case. 17. Here, we have a man aged 18 years who was seen with a female in the evening of 4-2-1950 in his house and the accused had told Sakharam that she was a Kumhar female and after sexual intercourse she would be allowed to go. The accused was at that time alone in the house and in the exclusive possession of the house. The deceased a Kumhar lady disappeared that day. Her basket and cow-dung-cakes were found in the house of the accused next day and her dead body was recovered in that house of the accused in a condition which indicated that the lady died after a cloth had been stuffed into her mouth just before sexual intercourse could commence. The accused was suspected by the Kumhars and he had bolted the room and also locked the staircase and would not allow anybody to go in the rooms on the second storey where the corpse was lying. When the father returned home he asked the accused questions to which he did not reply. The accused did not allow even his father to proceed to the second storey. He said he was prepared for a fight but would not unlock the staircase. Disgusted with his son's attitude, the father had to approach the Police. If the accused had been innocent he would have remained there and would have expressed consternation at the recovery of a corpse and would do what he could to make amends. But then the accused absconded like a criminal. All these circumstances are certainly not compatible with his innocence; they are inconsistent with any other reasonable hypothesis than that of the guilt of the accused. But then the accused absconded like a criminal. All these circumstances are certainly not compatible with his innocence; they are inconsistent with any other reasonable hypothesis than that of the guilt of the accused. I am therefore of the opinion that the accused was responsible for the death of Mst. Dhanno, but should be convicted under S. 304, IPC. 18. In my judgment, therefore the appeal should be allowed in the sense that the conviction under S. 302, IPC and the death sentence should be set aside and a conviction should be recorded under S. 304 (Part 2) and he should be sentenced to seven years rigorous imprisonment. 19. DIXIT, J. :- I agree. On the evidence on record the appellant Narayan Rao's conviction under S. 302, IPC cannot be maintained. He is guilty of the offence of culpable homicide not amounting to murder and for this offence he should be sentenced under S. 304 Part 2, I P. C. to seven years Rigorous Imprisonment. Conviction altered.