JUDGMENT 1. - The appeal has been directed against the judgement dated January 8, 1976 of the learned Sessions Judge, Balotra whereby the convicted the accused Rupa under Section 302 Indian Penal Code for committing the murder of Mst. Mohani and sentenced him to life imprisonment and a fine of Rs. 500/-, and in default of the payment of which to further undergo rigorous imprisonment for six months. He was also convicted under Section 201 Indian Penal Code and sentenced to suffer rigorous imprisonment for 31/2 years and a fine of Rs.100/-. The substantive sentences were ordered to run concurrently. The other seven accused viz. Veera Shanker, Photu, Hajarimal, Sagarmal, Luna and Multanmal who were tried along with accused Rupa were convicted under section 201, IIC, and each of them was sentenced to 31/2 years' rigorous imprisonment, and a fine of Rs. 100/- each. Mst. Gawari, mother of accused Rupa was also tried along with these accused for committing the murder of Mst. Mohani. However, she was acquitted of all the charges. 2. The prosecution story as disclosed at the trial in a nutshell is that Mst. Mohani (since deceased), daughter of Deepa was married with accused Rupa. The relations between Rupa and his mother Mst. Gawari, on one side and Mst. Mohani, on the other side were strained, for two reasons; firstly, she was uneducated, and secondly her parents did not give 'Dowry' to the extent it was expected by Rupa and his mother Mst. Gawari. A few days prior to the occurrence Deepa, father of Mst. Mohani (since deceased) came to the house of Rupa along with PW.2. Jawara and requested Rupa to send back Mst. Mohani. It is alleged that both the mother and the son refused to send Mst. Mohani (deceased) to her parents' place but in the tell-tale manner stated that they will get rid of her by committing her murder. The prosecution case is that on the date of occurrence Rupa came late to his house and some quarrel arose between the husband and the wife regarding non cooking of vegetable. They murdered her and threw her in the 'Tanka' situated in the house of the accused. The accused person in order to create a false defence pretended to search Mst. Mohani (deceased) in the vicinity & later on declared that she was found dead in the 'Tanka'. They murdered her and threw her in the 'Tanka' situated in the house of the accused. The accused person in order to create a false defence pretended to search Mst. Mohani (deceased) in the vicinity & later on declared that she was found dead in the 'Tanka'. The Foot Constable No. 702 Bhoorsingh, of the Police Station, Barmer, went on patrol duty at 9 A.M. on May 8, 1975 in Birmer. He came to know that Mst. Mohani (deceased) was murdered by her husband and her mother in law. He returned to the Police Station, and gave natural report that while on patrol duty he went to the street known 'Tailor's street' and there he learnt that in the house of Bhikha tailor Rupa and his mother had murdered Mst. Mohani. The Foot Constable also stated that the dead body of Mst. Mohani was taken by Ratanlal, Hajarimal,Shanker, Veera and others for cremation to the cremation ground. This report was recorded in the "Roznamcha" at the Police Station, Barmer and the same has been marked as Ex. P.7. The Sub Inspector of Police Shri Sugna Ram (PW.10), along with a party of some police constables, reached the cremation ground. The body was seized vide seizure memo Ex. P.1. A site inspection memo was also prepared which has been marked Ex. P.2 and the photos of the dead body taken at the instance of the Police have been marked Ex. P.3/1 to Ex. P.3/6. The autopsy on the dead body of Mst. Mohani was performed by Dr. Mohanlal Motyani. The post mortem report is Ex. P.5. The doctor failed to give a definite opinion about the cause of death. However, he found some injuries on the person of Mst. Mohani (deceased). As Dr. Motyani could not give a definite opinion about the cause of death a Medical Board was constituted consisting of Dr. Shyamlal Bohara. Chief Medical & Health Officer, Barmer, Dr. Harakraj Mathur and Dr. R.K. Whig as its members. The Medical Board after examining the dead body opined that there were signs of smothering on the dead body of Mst. Mohani (deceased), but the death was caused due to asphyxia by drowning. 3. Shyamlal Bohara. Chief Medical & Health Officer, Barmer, Dr. Harakraj Mathur and Dr. R.K. Whig as its members. The Medical Board after examining the dead body opined that there were signs of smothering on the dead body of Mst. Mohani (deceased), but the death was caused due to asphyxia by drowning. 3. On the basis of the medical report, and the preliminary investigation conducted by the Station House Officer, Barmer a case was registered on May 9, 1975 under sections 302 and 201 Indian Penal Code against the accused Rupa, Mst. Gawari, mother of the accused Rupa, (acquitted by the trial court), and other persons. During investigation the accused Rupa stated that Mst. Mohani (deceased) committed suicide by dropping herself in the 'Tanka', which was situated in the house of Rupa, and, therefore, a site inspection memo of the 'Tanka' was also prepared. The inspection memo is Ex. P.12. The Police after usual investigation submitted a challan against nine accused persons in the Court of Munsiff and Judicial Magistrate, Barmer. The learned Magistrate committed all the nine accused to the Court of Sessions Judge, Balotra. 4. The accused pleaded not guilty to the charge. The prosecution in support of their case examined 12 witnesses out of whom PW.1 Deeparam is the father of the deceased Mohani, PW.2 Jawara, PW.4 Hema and PW.5 Foujmal are the maternal uncles of the deceased Mohani. PW.9 Bhoor Singh is the Foot Constable who came on patrol duty at Barmer and reported the matter at the Police Station vide Ex. P.7 PW.8 is Dr. Mohanlal Motvani, who performed autopsy on the dead body of Mst. Mohani (deceased). PW.11 Modsingh is the Investigating Officer of the base and PW. 12 Dr. Shyamlal Bohara is the Chief Medical & Health Officer, Barmer, who was Chairman of the Medical Board,constituted for examining the dead body of Mst. Mohani (deceased). The accused persons denied their complicity in the crime and examined four witnesses in support of their defence. 5. The learned Sessions Judge held that there was sufficient evidence on the record to hold that Mst. Mohani was murdered by Rupa and as a result of smothering she sustained bruises on her lips and cheek and while she was having some life she was put in the 'Tanka' full of water as a result of which she died. He further held that Mst. Mohani was murdered by Rupa and as a result of smothering she sustained bruises on her lips and cheek and while she was having some life she was put in the 'Tanka' full of water as a result of which she died. He further held that Mst. Mohani met a homicidal death and it was not a case of suicide. The circumstantial evidence relied upon by the learned Sessions Judge against Rupa in that he was not on good terms with his wife Mst. Mohani (deceased), and on the night prior to the murder he came late in the house at nearly 10 to 11 p.m. and had a quarrel with her. He also held that the subsequent conduct of Rupa was unnatural so much so that he did not go to the cremation ground with the dead body of Mst. Mohani (deceased); that there were injuries on the chest, right lumber region, just lateral to left emulous bone, and lower and upper lips of Mohani (since deceased); that no other injury on any other part of her body was noticed by the doctors. If she would have jumped herself in the water (Tanka) she must have sustained at least some injuries on other parts of the body, such as head and foot. The injuries sustained by her could not be self inflicted. The learned Judge ruled out the possibility of a suicide. The evidence regarding motive to commit the murder was also held to be reliable. As regards the other accused appellants the learned Judge held that the injuries on the person of Mohani (deceased) were visible even by a bare look at her. The accused persons were aware of the fact that Rupa accused disliked. Mst. Mohani (deceased), in such circumstances the conduct of the accused persons in not informing her father about her death, not getting the post mortem conducted and making over hoste in taking her dead body to the cremation ground was held to be explicable to only one hypothesis i.e. the guilt of the accused. With these observations the learned Judge convicted the accused appellants and sentenced them as mentioned above. The convicted accused appellants have come up in appeal before this Court. 6. The learned counsel Mr. With these observations the learned Judge convicted the accused appellants and sentenced them as mentioned above. The convicted accused appellants have come up in appeal before this Court. 6. The learned counsel Mr. Bhimraj, appearing on behalf of the accused has vehemently challenged the findings of the trial court and the Additional Government Advocate has supported the judgement of the trial court. 7. It is an admitted case of the parties that there is no eye witness of the occurrence in this case as the entire case depends on the circumstantial evidence, and the law regarding the circumstantial evidence is well settled that the evidence must be such that it should not be explicable to any other hypothesis except that of the guilt of the accused. The first and foremost question which arises for consideration before us is whether Mst. Mohani (deceased) met a homicidal death or it is a case of suicide? The finding of the trial court as supported by the learned Additional Government Advocate is that first she was smothered thrown into the 'Tanka', and the death was caused due to asphyxia by drowning. We are unable to agree with this finding. PW.8 Dr. Mohanlal who performed the autopsy on the dead body of Mst. Mohani (deceased), first opined that the cause of death could not be ascertained by him and in his opinion no definite opinion could be given till the result of viscera sent for chemical examination was received. The report of the Chemical Examiner Ex. P.6 shows that it was negative for poison. The reply to the last question in cross examination, he categorically stated that this was not a case of smothering as the nose was not injured. PW.12 Dr. Shyamlal Bohara,m Head of the3 Medical Board constituted on examine the dead body of Mst. Mohani (deceased) was confronted with certain portions of Modi's Medical Jurisprudence, a page 125 and 179 (19th Edition), and thereafter he stated that in the opinion of the Board the death was caused only by drowning and not by smothering. The learned Additional Government Advocate appearing on behalf of the State while explaining the absence of the injuries on the nose has urged that the act of smothering must have been performed by the accused with the help of cotton or soft cloth and as such no injuries could be caused on the nose. The learned Additional Government Advocate appearing on behalf of the State while explaining the absence of the injuries on the nose has urged that the act of smothering must have been performed by the accused with the help of cotton or soft cloth and as such no injuries could be caused on the nose. We are unable to agree with the learned Additional Government Advocate. It does not stand to reason how the injuries were caused on the lower and upper lip and other parts of the body. If the accused had taken the precaution of using a cloth or cotton at the time of covering the nose for checking breathing he must have used the same precaution for the mouth also and if pillow was used as suggested then the pillow must have covered both the nose and the mouth of Mst. Mohani (since deceased). The existence of the injuries on the chest, lower and upper lips considered with the categorical statement made by Dr. Mohanlal to the effect that it was not a case of smothering as the nose was not injured, rules out the possibility of Mst. Mohani being smothered. Both Dr. Mohanlal and PW.12 Dr. Shyamlal, Chairman of the Medial Board, are unanimous on the point that Mst. Mohani died by drowning and not by smothering. The motive suggested by the prosecution for murdering Mst. Mohani (deceased) that she was uneducated and her parents had not given sufficient 'Dowry' at the time of her marriage and the immediate cause of incident as disclosed at the trial by the prosecution that she did not prepare vegetables for her husband is too flimsy to commit a murder. Accused Rupa is said to be highly educated man and it does not stand to reason that simply because his wife was uneducated and she did not prepare vegetables for his evening meals he will commit such heinous crime which may put his own neck under the gallous. The case put up by the prosecution is suggestive of the fact that Mst. Mohani's life was gloomy some quarrel might have taken place between the husband and the wife in the evening prior to the death of Mst. Mohani, she might have herself fallen into the "Tanka". The case put up by the prosecution is suggestive of the fact that Mst. Mohani's life was gloomy some quarrel might have taken place between the husband and the wife in the evening prior to the death of Mst. Mohani, she might have herself fallen into the "Tanka". The possibility of her being enraged and falling into the Tanka' herself with an intention to the commit suicide cannot be ruled out in this case. It is quite possible that when she was in the water, she might have made some efforts to come out of water and in that process the injuries found on her body might have been caused with the 'Choora' which she was wearing at that time. The photograph of the dead body of Mst. Mohani reveals that on the date of her death she was wearing a big 'Choora' made of elephant tusk. As it has not been proved beyond reasonable doubt that Mst. Mohani (deceased) met homicidal death, the accused Rupa cannot be held guilty of committing the murder of Mst. Mohani (deceased) and for the same reasons the other accused cannot be held guilty of the offence punishable under section 201 Indian Penal Code. 8. The net result of the above discussion is that the appeal is accepted and the accused appellants are acquitted of all the charges framed against them. The conviction of the accused appellant Rupa under section 302, and 201 Indian Penal Code and the sentences awarded to him are set aside and the conviction and sentenced awarded to the other accused persons Veera, Shanker, Photu, Hajarimal, Sagarmal,Luna and Multanmal are also set aside. Accused Rupa is in jail, he shall be released forthwith, if not required in any other case. The other accused persons Veera, Shanker, Photu, Hajarimal, Sagar Mal, Luna and Multanmal are on bail and they need not surrender to their bail bond. *******