JUDGMENT 1. - This appeal is directed against the judgment dated 18-1-1979 of Addl Sessions Judge, Gangapurcity who convicted and sentenced the accused-appellant Ram Bhajan for offence under Section 304 Part II and Section 201 IPC. He has been sentenced to 4 years rigorous imprisonment on the first count and 2 years rigorous imprisonment and fine of Rs, 200/- in default of payment of fine to further under go 6 months rigorous imprisonment on the second. 2. The prosecution case in that Radhey Shyam Gupta. PW I, Sarpanch Gram-panchayat, Rewali sent an application by registered post to the S.H.O. police station, Garhmora, duly signed by various villagers wherein it was mentioned that Rambhajan accused has badly beaten his wife, as a result of which she died. It was further mentioned that she was murdered. It was reported to be a case of murder and an inquiry for which was demanded. The villagers reported that there are eye-witnesses to the occurrence who will be disclosing the facts during an inquiry. On receipt of the report a case under S 302/201 IPC was registered and investigation commenced. An entry almost to similar effect was made in Ghatna Bahi of the patwari. After completion of the investigation a charge-sheet was submitted against the appellant in the court of Munsiff and Judicial Magistrate, Gangapur city who committed the case to the court of Addl. Sessions Judge, Gangapur city. The prosecution examined 14 witnesses in support of its case. Accused denied the allegations levelled by the prosecution witnesses in his statement under Section 313 Cr. P.C. and submitted that his daughter was married on 17-6-1978 and his sister had come in marriage from Deedwana. She was to go back, he asked his wife to give clothes to his sister from one which had come from her fathers place, as lot of expenditure has already been done in the marriage On this there was exchange of some hot words and his wife went to Nohra, then Roop Narain Vaidya came and told him that his wife is dead. According to him she was a heart patient. His one of the sons had fallen from the roof since then she has become a heart patient. He also got her treated at Bombay. Since Sarpanch was against him as he had not casted vote in his favour, this false case has been foisted against him. According to him she was a heart patient. His one of the sons had fallen from the roof since then she has become a heart patient. He also got her treated at Bombay. Since Sarpanch was against him as he had not casted vote in his favour, this false case has been foisted against him. The learned Sessions Judge held the accused guilty under Section 304 Part 11 and Section 201 IPC and sentenced as indicated above. Aggrieved by the same this appeal has been preferred. 3. Learned counsel for the appellant submitted that the trial court was in error in reading the explanation of the accused-appellant in part. He ought to have either accepted it as a whole or rejected as a whole. It is further submitted that there is no evidence that accused has either caused any grievous injury or any other injury which in his knowledge was likely to cause the death of his wife Rampyari. On the contrary it is submitted that there is evidence on record to suggest that accused was already apprehensive that due to the altercation she may not commit suicide so he went to bring her back from Nohra where she had gone. It is submitted that there is no eye witness and there is neither direct nor indirect circumstantial evidence to suggest even remotely a motive for committing murder. It is submitted that accused was of about 45 years of age who had grown up children, He married his daughter only a Fortnight before the occurrence. There was no rhyme or reason for him to have committed any offence. He submits that even in the alternative if the whole evidence is relied upon then also the case does not travel beyond Section 323 I. P. C. 4. Learned Public Prosecutor has supported the judgment of the trial court and submitted that in fact the act of the accused was so cruel that his wife had to breath her last and his submission is that accused deserves detrimental punishment. 5. I have given my thoughtful consideration to the rival contentions and have perused the entire record. 6. PW 1 is Sarpanch, Radhey Shyam who had forwarded the report prepared by the villagers in the Panchayat Bhawan. His evidence is neither E admissible nor relevant because he is neither an eye witness nor be was immediately told of the incident. 5. I have given my thoughtful consideration to the rival contentions and have perused the entire record. 6. PW 1 is Sarpanch, Radhey Shyam who had forwarded the report prepared by the villagers in the Panchayat Bhawan. His evidence is neither E admissible nor relevant because he is neither an eye witness nor be was immediately told of the incident. PW 2 Nanakram is one of the signatories to the report Ex. P. 1. He too is of no assistance to the prosecution because he had put his thumb impression on the application at the instance of Ishaq and Subrati He had no knowledge otherwise of the incident. PW 3 Kalyan is the star witness of the prosecution who has been relied upon by the trial court. He states that at about 11.00 p. m. on 29-6-78, while he was sleeping on the chabutra outside the house he saw Rameshwari running from the Nohra crying. She was shouting that she is being beaten. She went to the residence of Ramprasad, Pujari, then accused ran after his wife with a torch in his hand. They went towards Chhagan's Flour Mill. Ram Bhajan's wife then came to his house and stood. She was followed by few other persons which included Chhagan and Chhotiya Fakeer. She came and sit on his Chabutra. He then told Ram Bhajan as to why he should ill treat his wife on which Ram Bhajan told him that he is nobody to ask, he knows his responsibility towards his wife. He asked his wife to stand up and follow him. On this witness scolded him. Ram Bhajan gave a kick to his wife and forced her to follow him. He however, cannot say at what place this kick hit her. Thereafter, he learnt next morning that Rameshwari has died. In cross examination he states that this is true that accused told him that who would run the risk if she commits suicide by jumping into well and that was the reason that he went to force her to go to the home and actually dragged her. PW 4 Ramvtar is also almost to the same effect and states that he saw Ram Bhajan kicking his wife. This witness states that funeral was done at 5 or 6 in the morning and only four persons Ram Bhajan, Banwari. PW 4 Ramvtar is also almost to the same effect and states that he saw Ram Bhajan kicking his wife. This witness states that funeral was done at 5 or 6 in the morning and only four persons Ram Bhajan, Banwari. Rajendra and Roop Narain had taken the dead-body and after sprinkling kerosine they set fire to the pyre. Rajendra and Banwari are the sons of the accused PW 5 Soorajmal is uncle in relation of Ram Bhajan who states the condition of Rampyari on the night of 29-6-78 when she was badly beaten. Similarly almost are statements of PW 6 Gpilal, PW 7 Rampyari and PW 8 Rajendra son of deceased. Record also speaks of beating his mother by his father. This witness in cross examination stated that it is wrong that his father took his mother for treatment to Bombay, though he had taken to Lalsot and Gangapurcity. PW9Satya Narain also submits that Ram Bhajan beat his wife and when he went to take her to the house, he tried to intervene on which Rambhajan stated that who will be responsible if he commits suicide and he took her forcibly. PW 11 Gacoha, PW 12 Roop Narain are also witnesses who have stated that the accused strangulated the deceased by tying rope round the neck. This is the main evidence in the case. 7. On perusal of aforesaid evidence the only fact borne out is that beating In as given by the accused to his wife following some alternation at home and this beating was given on the Chabutra. Subsequently what transpired is not known but two things are absolutely clear. One is that this was not a case of strangulation as narrated by Roop Narain and which story has rightly not been believed by the trial court and second is that cause of death and mode of death is not known. One also does not know in the absence of corpus delicti whether the death was suicidal or homicidal or natural Therefore in the absence of Cause casun it is difficult to maintain the conviction under section 304 part II IPC. One also does not know in the absence of corpus delicti whether the death was suicidal or homicidal or natural Therefore in the absence of Cause casun it is difficult to maintain the conviction under section 304 part II IPC. It could have been a case of section 302 IPC had the conviction been based on circumstantial evidence, if there was one giving out cause of death but cannot be in between particularly under section 304 Part II IPC unless the cause of death or the nature of injury sustained was known to the court would, therefore, set aside the conviction of the accused appellant for offence under section 304 Part II IPC and instead of it convict him for offence under section 323 IPC. In fact, the circumstances of the present case are such which are fully covered by the provision of Section 498 (A) IPC, but said action cannot be invoked because it was not on the statute book in the day the incident took place. Thus, though the accused treated his wife with cruelty which resulted in the loss of life yet the offence cannot travel beyond section 323 IPC for which there is overwhelming evidence on record Since an offence even under section 323 IPC is committed and accused has caused the disappearance of evidence of offence his conviction under section 201 IPC is maintained. 8. For the discussions made above the conviction of the accused appellant offence under section 304 Part II IPC is set aside and he is convicted for offence lender section 323 IPC. His conviction under section 201 IPC is maintained. Regarding the sentence part, the accused-appellant has remained in jail for 201 days, Occurrence had taken place in the year 1978, it would now be travesty to be justice to send the accused to serve out the remaining sentence as the maximum sentence under section 323 IPC is only one year and alongwith the remittance he would be completing the same. Hence I would reduce the sentence of imprisonment on both the counts to the period already undergone. Sentence of fine awarded under section 201 IPC is maintained and two months' time is granted to deposit the fine. In case the same is not deposited the accused will undergo imprisonment in default of payment of fine. Hence I would reduce the sentence of imprisonment on both the counts to the period already undergone. Sentence of fine awarded under section 201 IPC is maintained and two months' time is granted to deposit the fine. In case the same is not deposited the accused will undergo imprisonment in default of payment of fine. Accused is on bail and need not surrender to his bail bonds for a period of two months. In case the fine is deposited within 2 months or has already been deposited, then the bail bonds shall stand discharged.Appeal Partly accepted. *******