JUDGMENT : B.K. Patra, J. - This is an appeal from an order of the Sessions Judge, Ganjam acquitting the Respondent who was tried on a charge, u/s 302 of the Indian, Penal Code on the allegation that he committed the murder of his own son, Raj Kumar on 6-2-1971. 2. The deceased, Raj Kumar was the Respondent?s son through the latter?s first wife, Sahindri, p.w. 6. Shortly after marriage, Sahindri became lame and was staying in her father?s house. The Respondent therefore married a second wife. Even after the second marriage, he was occasionally visiting his first wife at her parents? house and it is there that Sahindri became pregnant and gave birth to the deceased, Raj Kumar. Thereafter, the Respondent brought her and her son, Raj Kumar to his house in village Kumanda. It is alleged that the Respondent, on the instigation of his second wife, was ill treating his first wife and her son, Raj Kumar. On 7-2-1971, the marriage, of the eldest son of Hadu Alatia of moza Kumunda with the daughter of Saita, Podhan of mouza Koradapalli was to take place at Kumanda mouza. The Respondent was to officiate as a barber in that ceremony. On 6-2-1971, p.w. 14, the younger son of Hadu Alatia; accompanied by the Respondent, left Kumunda mouza to go to Karadapalli to invite the bridge. The distance between the two villages is about ten miles. While leaving for Koradapalli, the Respondent brought his son, Raj Kumar along with him saying that he would purchase betel nuts and gundi on the way at Makar padia village and send them home through his son. No such purchase was, however, made at Makarpadia and the deceased, Raj Kumar went with his father and p.w. 14 up to Nuasahi, a hamlet of Koradapalli mouza where the deceased was left in the house of p.w. 10. Thereafter, the Respondent and p.w. 14 went to the house of Podhan, p.w. 5 at Koradapalli mouza. It was evening by the time they reached there and they took their food. Immediately afterwards, the Respondent left Saita Podhan?s house saying that he would go and feed his son whom he had left near p.w. 10?s house. Shortly afterwards, he came back to Saita?s house and to the query made by p.w. 14, he replied that his son had already taken his food and was sleeping. Immediately afterwards, the Respondent left Saita Podhan?s house saying that he would go and feed his son whom he had left near p.w. 10?s house. Shortly afterwards, he came back to Saita?s house and to the query made by p.w. 14, he replied that his son had already taken his food and was sleeping. That night, there was a feast in the house of p.w. 5. As the guests including the Respondent were taking their food, p.w. 4 and some others, who, in the meanwhile had gone to a near-by tank to wash themselves, came back with the dead body of a child which was found floating in the tank. It is alleged that although may persons who were partaking in the feast went to see the dead body, nobody could recognise it and that the Respondent not only did not go to see the dead body but also dissuaded p.w. 14 and others from going there. At about 11 p. m. that night, p.w. 2 lodged information at the Jagannath Prasad outpost regarding the finding of the unidentified dead body. p.w. 11 the Assistant Sub-Inspector of Police, in charge of that outpost drew up the U.D. F.I.R., Ext. 2/3 and went to the spot next morning, held an inquest over the dead body and sent it for post mortem examination to Bhanjanagar. Early morning on that day, the Respondent returned home and on being questioned by his first wife regarding the whereabouts of the deceased, he (the Respondent) at first feigned ignorance and later admitted that he had killed him and threw the dead body in the tank. He was arrested the next day. On completion of the investigation, a charge sheet u/s 302 of the Indian Penal Code was laid against him and after preliminary inquiry he was sent up to the Court of sessions where after trial, he was acquitted. 3. P.w. 9, the doctor, who conducted the post mortem examination over the dead body of Raj Kumar, found only an external injury which was a small abrasion 1" ? ?" in the region of the shoulder and post-mortem in character. 3. P.w. 9, the doctor, who conducted the post mortem examination over the dead body of Raj Kumar, found only an external injury which was a small abrasion 1" ? ?" in the region of the shoulder and post-mortem in character. The other symptoms that he noticed are the following; (1) Blood-stained fluid was coming out of the nostrils; (2) the skin was dry and there was no evidence of blisters; (3) on internal examination, he found the mucus membrane of the trachea congested; (4) the lungs were found of normal contour and when put in water, it was found floating; (5) on being cut, the lungs had exuded only small amount of, frothy blood; (6) the mucus membrane of the stomach showed areas of congestion at places; (7) the stomach contained about ?- oz of slimy fluid in which some undigested food particles were seen; (8) intestines were distended with gas; (9) both the chambers of the heart were empty and nothing abnormal was noticed there. According to the doctor, congestion of the trachea is one of the symptoms of death by throttling. But he stated that other symptoms of death by asphyxia which one would expect in the case of death by throttling or drowning were totally absent. He, therefore, could not give any positive opinion about the cause of death. 4. There is satisfactory evidence on record to show that on the date of occurrence, the deceased left his village along with his father, the Respondent and p.w. 14. This is admitted by the Respondent during his examination in the Trial Court. But he stated that he sent back his son from Makarpadia. His statement on this point is contradicted by p.w. 14 who stated that the deceased was not sent back home from Makarpadia, but that he went on along with him (p.w. 14) and the Respondent upto Nuasahi where the Respondent left Raj Kumar in the house of his Sangat. p.w. 14 did not know the name of this Sangat of the Respondent. But p.w. 10, Radha Podhanuni stated that about a year before her examination in Court on 3-2-1972, the Respondent brought his son, Raj Kumar and made him to sit on a plank in front of her house and went away. Raj Kumar played with the children for some time where after p.w. 10?s children went inside their house to take food. Raj Kumar played with the children for some time where after p.w. 10?s children went inside their house to take food. About an hour afterwards when p.w. 10 came out of her house, she did not find Raj Kumar there. 5. p.w. 14 stated that after the Respondent left Raj Kumar at his Sangat?s house, he and the Respondent went to the house of Saita Podhan, p.w. 5. whose daughter was to marry the elder brother of p.w. 14. According to p.w. 5, the Respondent and p.w. 14 reached his house in the evening and took their food. p.w. 14 says that after taking food, the Respondent went away saying that he would feed his son and come back. He came back after some time and told p.w. 14 that his son had already eaten and had gone to sleep. So far as this part of the case is concerned, there is no other evidence except the sole testimony of p.w. 14. 6. That night there was a feast in the house of Saita Podhan and when the guests were taking their food, the dead body of a child which was found floating in a near-by tank was brought to the place by p.w. 4 and some others. That the dead body which was brought to village Koradapalli was that of Raj Kumar has been very satisfactorily established. As no body could identify the dead body by the time it was sent for post mortem examination, photographs of the dead body were taken. Exhibits 10 and 10-1 are the photographs and they were identified by p.w. 6 as the photographs of her deceased son. 7. That the dead body was found floating in the tank is deposed to by p.w. 4 and the correctness of this statement is not challenged in cross examination. After the dead body was brought near the house of p.w. 5, all the persons who were partaking in the feast went to see it but nobody could identify as to whose dead body, it was. None of the persons who were present at the feast and who had been examined in the case stated that the Respondent, who was present at the feast, had gone to see the dead body. None of the persons who were present at the feast and who had been examined in the case stated that the Respondent, who was present at the feast, had gone to see the dead body. p.w. 14 makes a positive statement that the Respondent prevented him from going to see the dead body saying that as p.w. 14 was a small child, he should not go there Karadapalli is a small village and many persons were present near the house of p.w. 5 when the dead body was brought there, it is only natural that all the people present out of curiosity would go to see the dead body. The Respondent, who admittedly was present there, either went and saw the dead body or he aid not go. If he went and saw the dead body, which now has been established to be the dead body of his son, and kept quiet, his conduct in doing so is really suspicious. It would equally be suspicious if contrary to human nature, he did not have the curiosity to see whose dead body it was. In either case, therefore, the conduct of the Respondent that night creates a good deal of suspicious against him. 8. On the succeeding morning, he returned home alone. His first wife, p.w. 6 states that on her query as to where her son was, the Respondent told her that he sent him back the previous day from Makarpadia with Gua and Gundi. Thereafter, he went out saying that he would search for the boy. He came back and slept. The Respondent?s parents then questioned him where the deceased was and insisted on him to tell the truth whereupon the Respondent confessed that he killed his son by throttling him and threw his dead body in the tank. p.w. 7, the father of the Respondent corroborates the testimony of p.w. 6 regarding the alleged confession made by the Respondent. p.w. 13 says that he heard a (sic) in the village that the Respondent killed his own son by throttling and thereafter went and questioned the latter about it and he (the Respondent) replied that he had killed his son by throttling. 9. The question now for consideration is whether the evidence and circumstances referred to above establish beyond reasonable doubt that the Respondent had killed his son by throttling and then threw him in the tank. 9. The question now for consideration is whether the evidence and circumstances referred to above establish beyond reasonable doubt that the Respondent had killed his son by throttling and then threw him in the tank. We have already referred to the evidence given by the doctor who with reference to the result of the post mortem examination opined that he could not give any positive cause for the death. The doctor?s evidence, in our opinion, cuts at the root of the prosecution case. Strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. It is called throttling, when constriction is produced by the pressure of the finger s and palms upon the throat. Strangulation may also be bought about by compressing the throat with a foot, knee elbow or some other solid substance. Modi in his Treatise on Medical Jurisprudence (18th edition) at page 148 says that in a case of throttling brought about by compressing the neck with one?s hands, marks of pressure by the thumb and fingers are usually found on either side of the wind pipe. These marks look like soft, red bruises, if examined shortly after death, but they look brown, dry and parchment like some time after death. Crescentic marks produced by the finger nails are occasionally present if the finger tips are pressed deeply into the soft tissues of the neck. When both hands are used to grasp and compress the throat, the thumb mark of one hand and the finger marks of the other hand are usually found on either side of the throat. If the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck as well as on its back. Besides these marks, there may also be abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of the body, if there has been a struggle. In case of death by Asphyxia, bloody foam escapes from the mouth and nostrils, and sometimes pure blood issues from the mouth, nose and ears, especially when great violence is used. The tongue is often swollen, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. In case of death by Asphyxia, bloody foam escapes from the mouth and nostrils, and sometimes pure blood issues from the mouth, nose and ears, especially when great violence is used. The tongue is often swollen, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, and (sic). There would be extravasation of blood into the subcutaneous tissues under the ligature mark or finger marks, as well as in the adjacent muscles of the neck, which are usually lacerated. None of these symptoms which are usually to be seen in the case of death by throttling is ?present in this case. The only symptom that is present is congestion of the trachea. This is only one of the many symptoms of death by strangulation. But the absence of other symptoms raises a good deal of doubt whether at all the death was caused by throttling as alleged by the prosecution. The benefit of this doubt must necessarily go to the Respondent. 10. It is brought out in evidence that from the bank of the tank where the dead body was found floating were recovered a half shirt and a half pant marked M.Os. I and II respectively, p.w.6, the mother of the deceased identified these as belonging to the son and p.w. 14 stated that the deceased was wearing these apparels on the date of occurrence. If, as alleged by the prosecution, the Respondent throttled the boy and then threw the dead body into the tank, it does not explain why be should have taken the trouble of removing the half shirt and the half pant from the dead body. It is not natural that a person having committed such an offence would instead of throwing the dead body into the tank immediately would waste further time in removing the wearing apparel from the dead body. If this was done with a view to avoid identification of the dead body with reference to the wearing apparel, M.Os. I and II would not have been left on the bank of the tank without being thrown somewhere else. Having regard to the fact that M.Os. If this was done with a view to avoid identification of the dead body with reference to the wearing apparel, M.Os. I and II would not have been left on the bank of the tank without being thrown somewhere else. Having regard to the fact that M.Os. I and II were found on the bank of the tank, the submissions made on behalf of the Respondent that the deceased went to the tank to ease himself after removing his clothes and then accidentally got himself drowned in the tank cannot altogether be ruled out. 11. We, no doubt have before us the extra judicial confession made by the Respondent. What is most intriguing about it is that it is deposed to not only by the Respondent?s first wife who might have had some grudge against the Respondent but also by the Respondent?s father against whom nothing has been alleged to show that he had any motive to depose against his own son. In what exact terms the Respondent made, the alleged confession is not clear. While p.w. 6 says that the Respondent confessed that he killed her son by throttling him and then threw his body in Koradapalli Bandha all that his (Respondent?s) father says is that the Respondent tali him that he had killed Raj Kumar. According to p.w. 13, the Respondent told him that he killed his own son by throttling. It may be that the alleged statement by the Respondent might have been made out of remorse for neglecting the child. He might have thought-that because he left the child to himself in the house of p.w. 10, the child got drowned in the tank and that consequently the Respondent himself was responsible for his death. This may also explain to some extent his conduct on the night of occurrence when the dead body was brought near the house of p.w. 5. In these Circumstances, therefore, the learned Sessions Judge was justified in not placing any reliance on the extra judicial confession of the Respondent." 12. At its best, the evidence on record may create a grave suspicion that it is perhaps the Respondent who had killed his own son. But suspicion, however grave it may be, cannot take the place of proof. At its best, the evidence on record may create a grave suspicion that it is perhaps the Respondent who had killed his own son. But suspicion, however grave it may be, cannot take the place of proof. After bestowing our anxious consideration on the evidence and circumstances of this case, we are unable to come to the conclusion that the guilt of the Respondent has been established beyond all reasonable doubt. 13. The appeal, accordingly, fails and is dismissed. S. Acharya J. 14. I agree. Final Result : Dismissed