Judgment DHARAMPAL SINGH, J. 1. This Criminal appeal is directed against the judgment and order, dated 3-10-1988 passed by the Vth Additional Sessions Judge, Palamau at Daltongunji, in Sessions Trial No. 183 of 1986, whereby and where under all the four appellants have been convicted of the offences punishable under Section 302 read with Section 31 of Indian Penal Code and sentenced to undergo imprisonment for life. The appellants were also charged for the offence punishable under Section 201 of Indian Penal Code but the learned trial court has acquitted the appellants of that charge. 2. The case was instituted on the basis of the Fardbeyan recorded at 8.30 p.m. on 16-4-1986 on the statement of one Anjira Khatoon (PW 3), a sister of the deceased Aleha Khatoon The prosecution case, as would appear from tre Fardbayan (Ext. 2) was that Aleha Khatoon (the deceased), the younger sister of the informant (PW 3), has been married to appellant No. 1 about five years back and in the preceding year in the month of Chati, the second marriage of Aleha Khatoon was performed and she came and lived in the house of her husband situated in village Darmi, P.S.Garhwa in the District Palamau. After she had lived for about three months with her husbahd, Aleha Khatoon went back to her Maika (Parents Place) and about three months before the date of occurrence (16-4 86) she was again escorted back to the house of her husband by her brother-in-law Islam Khan, and Aleha Khatoon thereafter was living with her husband The treatment of the appellant, who happend to be the husband, parents-in-law and sister-in-law of the deceased, was very bad and they used to assault Aleha Khatoon The informant (PW 3) who was married in the same village about 15 years back used to see her sister and about fifteen days before the occurrence she had learnt that the appellants had assaulted Aleha Khatoon and when she had gone to her place she had found swelling on arm, back and threat of Aleha and in order to give relief she brought turmeric and besmeared the injured parts with it. Again about eight days before the occurrence, Appellant No 1 assaulted Aleha Khatoon severely. When the informant (PW 3) on learning about it, wanted to see her but appellant No 3 did not allow her to enter into house. Again about eight days before the occurrence, Appellant No 1 assaulted Aleha Khatoon severely. When the informant (PW 3) on learning about it, wanted to see her but appellant No 3 did not allow her to enter into house. On the date of occurrence i.e on 16-4-1986 at about 7 A.M. appellant No. 3, the mother-in-law of Aleha had been heard abusing her and at about 10 A.M appellant No. 3 was seen going towards west with a female child of Aleha Khatoon aged about one year. At about 4 P. M. thereafter appellant No. 1 spread the news in the village that Aleha Khatoon had died by setting fire. Several persons assembled and found the dead body of Aleha with burn injuries. However the informant out of fear could not go but she believed that Aleba bad first been strangulated and then burnt. The motive for commission of the offence was that about five years back appellant No. 1 had taken Rs. 10,000 from Alehas father for the purpose of defending himself in a murder case in which he was an accused and after the death of Alehas father her mother had demanded for returning the money. 3. On the basic of the Fardbeyan (Ext. 2) the case was instituted by drawing up a formal FIR (Ext 1). The police after investigation submitted charge-sheet against the appellants and all these appellants were put on trial and they were convicted and sentenced as indicated above. 4. The defence of the appellant was that they had gone away to another house that was under construction and whsn they were away Aleha committed suicide by burning herself in their old house and this was detected only later by the appellants and then appellant No. 2 went to the Police Station and lodged an information about the same. Whereupon a case of unnatural death was instituted. 5. A perusal of the lower courts record shows that during tne course of trial the prosecution had produced in all 12 witnesses. Out of them, PW 11 Taslima Bibi and PW 12 Israil Mian were only tendered. PW 10 Sk. Fazlul Haque is a witness who stated about the preparation of Inquest report (Ext. 4) on which he put his signature (Ext 4/1). PW 4 Laxmi Sao is also a formal witness who proved the formal FIR (Ext. Out of them, PW 11 Taslima Bibi and PW 12 Israil Mian were only tendered. PW 10 Sk. Fazlul Haque is a witness who stated about the preparation of Inquest report (Ext. 4) on which he put his signature (Ext 4/1). PW 4 Laxmi Sao is also a formal witness who proved the formal FIR (Ext. 1) and Fardbayan (Ext 2) PW 5 is the Doctor who held the post-mortem examination on the deadbody of Aleha Khatoon. The other witnesses deposed about some facts. PW 1 Sk. Ismail is the father-in-law of the informant. He stated that at about 4.30 P.M. appellant No. I informed him that his wife Aleha Khatoon had died by setting fire to herself. He stated that he then went to the house of the appellants and found the dead body of Aleha Khatoon. He stated to have enquired from appellant No. 1 as to why the information had been given at 4 30 P.M. when the death had taken place at about 11 A.M. He deposed the Nesar Ahmad appellant No. I, was an accused in a murder case and he had taken Rs. 10,000 from Neyaz Ahmad Khan for doing pairvi in the said case. He has also deposed that when Aleha Khatoon had gone to her parents place about four months before the occurrence, appellant No.1 wanted to marry and then Aleha was brought to her husbands place by her brother and brother-in-law. This witness also deposed that behaviour of the appellants towards Aleha was not good. In cross-examination in paragraph 10 he stated that his house is situated at about 5 to 6 chains from the house of appellant No 2. He denied that he had any dispute with the appellants, when suggestion was given to this effect to this witness. 6. PW2 Sk. Farooque Siddiqui is the husband of PW3. He has deposed to the effect that one day in the morning when he was going towards river side to attend the call of nature he had seen through a window that the appellants were assaulting Aleha Khatoon who has been caught by locks of her heirs and they were talking that she should be burnt to death. He stated that he did not say anything to them because the appellants always used to quarrel with Aleha Khatoon. He stated that he did not say anything to them because the appellants always used to quarrel with Aleha Khatoon. He further stated that while returning he had seen that the door of the house of the appellants was closed. He further stated that in the evining at about 4 P.M. Appellant No. 1 informed that Aleha Khatoon had burnt herself to death. This witness also deposed about appellant No. 1 being an accused in an ther murder case and about taking by him of Rs. 10,000/- by way of loan from his father-in-law. According to him, the Aleha Khatoon was killed because her mother had demaned for payment back of the money. It has been elicited during his cross-examination in paragraph 15, that about the assault which the appellants had been doing on Aleha no punchati was organised because the appellants did not listen to anybody. It has further been elicited in paragraph 17 that when the mother-in-law had demanded back the money, appellant No. 1 had stated that she should advance further money, otherwise he would kill her daughter. 7. PW 3 is the informant and she has stated that when she was passing by the side of the house of the appellants at about 7 A.M she heard that the appellants were giving threat to assault and to burn Aleha to death. She stated that she did not go inside She has supported the story as given in the Fardbeyan (Ext. 2) that Aleha had been beaten fifteen davs before the occurrence and this witness bad bismeared turmeric on the injuries of Aleha and she also stated about the assault done by the appellants about eight days before the occurrence and when this wintness wanted to see her sister the appellants abused her and told that she was nobody to intefere and this is why she did not enter into the house She has also stated about advancing of money of Rs 10,000 to appellant No.1 in connection with murder case and about demand for the mm by her mother. The demand, according to her evidence, had caused annoyance to the appellant. She stated that at about 4 PM she had learnt that Aleha bad died by burn injury. She stated that since there was no commotion in the bouse she believed that it was the appellants who had killed her. The demand, according to her evidence, had caused annoyance to the appellant. She stated that at about 4 PM she had learnt that Aleha bad died by burn injury. She stated that since there was no commotion in the bouse she believed that it was the appellants who had killed her. She has denied the suggestion that Aleha Khatoon had died by burning herself. 8. PW 6 Akhtar Khan has stated that at about 4 PM he was sitting in a shop when appellant No. 1 came and told that his wife died of burning When this witness enquired as to when she died the appellant No. 1 told him that it was at about 11 A.M. He has stated that he went to the house of the appellant and found that the wife of the appellant No 1 had died of burnt injury. He also stated about frequent quarrel between Nasar Ahmad appellant No. 1 and his wife. He has stated that Aleha had written a letter to her brother in this connection. He, however, frankly stated that be had not seen any assault or dispute which had taken place between the appellant No. 5 and his wife and he had learnt about the same from the sister of the deceased. 9. PW 7 Waezuddin Khan, who is brother of the deceased, and the informant stated about the marriage of Aleha with appellant No 1 and about advancement of Joan of Rs. 10,000/- in two instalments of Rs 5,000 by his father to appellant No. 1. His evidence shows that he and his brother-in-law had escorted Aleha to the husbands place when he learnt that appellant No. 1 was thinking to marry another giri. He has also deposed about writing of letter by Aleha Khattoon. PW 8 is Nisayudding. He also stated that at about 4 P.M. appellant No. 1 informed him that his wife had died at about 11 A.M. He is stated to have enquired as to why he was informing him at that time when the death had taken place at 11 A.M. whereupon appellant No. 1 stated that he had gone to the Police Station to give information. He stated that previously there was quarrel between the appellants and the deceased. He has also stated about seizure of some burnt clothes by the Police Officer. He admitted that Sk. He stated that previously there was quarrel between the appellants and the deceased. He has also stated about seizure of some burnt clothes by the Police Officer. He admitted that Sk. Farooque Siddiquie PW 2 is his Mausera brother. 10. PW 5, the Doctor has deposed to the effect that at 7 50 A.M. on 17-4-1986 she had held post-mortem examination on the dead body of Aleha Khatoon aged about 22 years. According to his evidence and the post-mortem report, Ext. 3, prepared by him the following were found : black singeing of face : burnt eye lashes, eye brows hair of head, face, whole body : arms were extended, fore arms, were flexed, thigh apart, knees was also flexed ; tongue was protruded, blood mixed with forthcoming out from her mouth and nostril, faeces coming out of anns, urine drops from uthera ; rigor moris was present and decompoposition was in progress. He further stated that she had found ante-mortem burnt injuries on the whole of the body including front of chest, face and around waist, back thigh and forearm and leg. According to her blackening-seety of the face was present and skin peeled off at places with red margin around it. According to him, no other external injury was found and the death was caused due to shock and suffocation. He further stated that due to the burnt injury, external injury could not be detected His cross-examination shows that if there would have been grave injury, then it could have been detected but superficial injury could not be detected. 11. After considering the evidence, the learned trial court by the impugned judgement found the appellants guilty and rejected the defence stand that Aleha had committed suicide when the appellants were out of their house in connection with construction of new house, that was being constructed about (sic). 12. Learned counsel for the appellants has assailed the finding of the learned trial court by raising the following contentions : His first contention is that the informant claim in the Fardbeyan that the appellants first strangulated Aleha Khatoon and thereafter set fire to her is not supported by the legal evidence. 12. Learned counsel for the appellants has assailed the finding of the learned trial court by raising the following contentions : His first contention is that the informant claim in the Fardbeyan that the appellants first strangulated Aleha Khatoon and thereafter set fire to her is not supported by the legal evidence. His second contention is that the Investigating Officer has not been examined and the appellants could not be able to show that at about 2.30 P. M. the appellant No 2 had gone to the Police Station and lodged an information on the basis of which U. D. Case was instituted According to his contention, the circumstance alleged by the prosecution is that only belatedly at about 4 P.M. the appellant No. 1 gave information to others about burning to death of Aleha would have lost its force if the defence could have shown if the I. O would have been examined that the information about the death by burning had been lodged at the Police Station at 2.30 P. M. He has next contended that the case is based only on circumstantial evidence as nobody has claimed to have seen the actual strangulation or burning but from the circumstantances, proved it is not possible, according to his contention, to arrive at a definite finding that these appellants or any one, two or three of them had been instrumental in causing the death of Aleha. His further contention is that when the accused were examined under Section 313 of the Code of Criminal Procedure no specific question was asked about the circumstances which were alleged against the appellants and so the circumstances could not used for arriving at the conclusion that they are guilty of the offence punishable under Sec- tion 302 read with Section 34 of the Indian Penal Code. 13. On the other hand Mr. Rajgarhia, Addl. P. P. appearing on behalf of the State has contended that if the evidence of the Doctor is closely scrutinised it will be clear that the death which had been caused was not only by burning but some pressure had been escorted on her before her body was burnt. According to his contention the Doctor found some such signs as obviously go to indicate that Aleha had been strangulated and thereafter fire had been set to her body. According to his contention the Doctor found some such signs as obviously go to indicate that Aleha had been strangulated and thereafter fire had been set to her body. According to bis contention the defence stand that she had committed suicide is completely precluded by the evidence of the Doctor. He has further contended that the the circumstances which have been established by cogent and clear evidence clearly lead to only one conclusion that the appellants had not killed and burnt the deceased. He also controverted the assertion of the learned counsel for the appellants that due to non-examination of the Investigations Officer the defence has been greatly prejudiced inasmuch as they could not show that at 2.30 P. M. a U.D. case had been lodged by one of the appellants about the death of Aleha. 14. The only point that arises for decision in this appeal is whether in view of the contention raised the finding of the learned trial court holding the appellants guilty can be said to be correct or well founded on evidence or it needs to be set aside. 15. In order to decide as to whether the contentions raised on behalf of the appellants or on behalf of the State are acceptable, it may be noticed that certain facts and circumstances seem to be established by the evidence brought on the record. There is sufficient and satisfactory evidence to show that appellant No. 1 had taken Rs. 10,000/- from his father-in-law in order to defend himself in a murder case and after the death of his father-in-law, his mother-in-law made demand for returning the money. The evidence of the witnesses have already been referred to above and it will appear that on this point PW 1. PW 2, PW 3, and PW 7 have given evidence, of course PW 11, the mother-in-law of appellant No. 1 had only been tendered but non the less there seems to be ample evidence on this point. There also appears to be ample evidence of the fact that at about 4 P. M. on 16-4-1986 appellant No. 1 gave information to several persons that his wife had died by burning herself at about 11 A.M. This has been deposed by PW 1, PW 2, PW 3, PW 6, PW 8 and PW 9. There also appears to be ample evidence of the fact that at about 4 P. M. on 16-4-1986 appellant No. 1 gave information to several persons that his wife had died by burning herself at about 11 A.M. This has been deposed by PW 1, PW 2, PW 3, PW 6, PW 8 and PW 9. It is indicated by the evidence that when some of the witnesses went to the house of the appellants Aleha was found dead, in that very house with burnt injury So it is established that the death had occurred in that very house which belong to appellant No. 1 and where. Aleha had been living after she had been escorted there about three months prior to the occurrence. There is also sufficient evidence on record to show that the appellants had been ill-treating Aleha and she had been beaten previously. This is stated by PW 1, PW 2, PW 3, and PW 7. There is also a letter (Ext. 5) which Aleha is said have written to her brother, but even if the ietter (Ext. 5) is ignored on the ground, as has been contended by the learned counsel for the appellants that Aleha was illiterate and she could not have written a letter, there seems to be sufficient evidence to show that the appellants had been ill-treating Aleha and had assaulted her previously The informant (PW 3) has stated that she had once gone to see her sister Aleha and had to put turmeric on the person of Aleha. This fact is also stated in the Fardbeyan, the contents of which go to corroborate her evidence. 16. To be sure these witnesses are related to the informant and a comment was made daring the course of argument that such interested witnesses should not be considered to be reliable. But it is to be noticed that these witnesses who are related to the informant are also related to appellant No. 1 and their evidence cannot be discarded only because of their relationship with the informant who is the sister of the deceased. 17. It may be mentioned here that the defence of the appellants was that the appellants had gone to another house and Aleha was preparing food in the house and she died by burning. 17. It may be mentioned here that the defence of the appellants was that the appellants had gone to another house and Aleha was preparing food in the house and she died by burning. This fact was stated by appellant No. 1 in his statement when he was being examined under Section 313 of the Code of Criminal Procedure and the same was stated also by his mother (Appellant No. 3). On this point there seems to be no evidence adduced by the defence to show that the appellant had been to some other house of their own. To be sure, PW 10, who was called as a witneses on inquest only, stated during the cross-examination that on that day which Aleha died some of the accused were near another house since 4 O clock in the morning. But he has not specified which of the accused were there, and on probability, his statement about presence of accused still 4 Oclock is not believable when as he stated that only take were being prepared there. On the contrary, there is evidence of PW 2 and PW 3 that when they had passed from near the house of the appellants in the morning, they bad heard the appellants threatening to assault Aleha on the very day of the occurrence. To be sure their evidence indicates that they did hot intervene, and on this point it was contended on behalf of the appellants that this was highly improbable. But it appears from the evidence of the informant that the appellant had not liked her going to the house of Aleha on previous occasion and so it was net unusual that they did not intervene at that time. There is also evidence to the effect that the appellant No. 3 was seen carrying one year femal child of Aleha from the house and so the defence of alibi taken by the appellants that they were present at another house on that day cannot be accepted in view of the evidence of PWs referred to above and the absence of any positive evidence led by the defence to prove this alibi. 18. 18. The possibility of Aleha having died either by burning herself that is by way of suicide or by accidental catching of fire is also ruled out completely in view of that the doctor has stated to have found at the time of conducting autopsy. If Aleha would have died due to burning either by accidental fire or by deliberately putting herself ablaze there could be no such signs as protusion of the tongue, nor would have there any blood mixed with froth or faeces coming out of anus and urine having dropped out from the urethra or red marging around the waist wherefrom skin had been peeled off. These signs would definitely go to show that the death had not been caused by burning alone. To be sure the doctor did not find any external injury on the body, and so it was contended by any of the appellants some such marks of ante-mortem injuries could be found by the doctor. But the evidence of the Doctor also shows that due to burnt injuries, external injuries could not be detected. The signs indicated above about the blood mixed with forthcoming out from mouth and nostril and falces coming out of anus and the tongue indicates putting of pressure on the body of Aleha and burning was done later either if she was still having some life or she had just died. If she had died only by burning some sooty and Carbon particles would have been found on the laryinge, and trachee because of respiration. The doctor did not state that he found any such thing but only found blackening sooty of face. The Doctor also stated that undigested rice was also in her stomach and this circumstance also belies the theory of suicide or accidential burning while cooking food. A person who is about to commit suicide would not take any rice, and when food was still under preparation when Aleha got the burn injuries there was no question of taking rice. 19. A person who is about to commit suicide would not take any rice, and when food was still under preparation when Aleha got the burn injuries there was no question of taking rice. 19. Considering the, a forementioned aspects, the only conclusion in view of the evidence on the record would be that it was a case of homicide and not of suicide or of accidental fire So the first contention of the learned counsel for the appellants that the claim of the informant made in the Fardbeyan that Aleha was first strangulated and thereafter set on fire is not supported by legal evidence cannot be accepted. 20. As regards the contention that if the Investigating Officer would have oeen examined it could have been possible for the defence to show that the appellant No. 2 had gone to the Police Station at 2.30 P.M. to lodge information about unnatural death of Aleha and by proving the fact it could have shown that the circumstance that only belatedly appellant No. 1 discloses about the death of Aleha at about 4 P.M. can not be considered to be an adverse circumstance against the appellants. In my opinion, this arguments is also completely devoid of substance. If Aleha had died by suicide or accidental fire even then the natural conduct of an innocent inmates of the house would be first to inform their neighbours and relations about the fact of death immediately and before rushing to the Police Station to lodge information Moreover, even if one of the appellants went to the P. S. to lodge information about the alleged unnatural death there could be no reason why the other appellants will be keeping silence about the same ar d inform in the meantime their neighbours and relations So even if the fact of lodging information at the P.S at 230 P M. by appellant No 2 is assured to be correct, the fact that appellant No. 1 only belatedly informed others at 4 P.M. about the death of his wife at 11 A.M. definitedly suggests foul play painting to the guilt if taken along with the other circumstances proved by the evidence, Hence the argument advanced on this point is rejected. 21. 21. As regards the contention that the case is based on circumstantial evidence because no one has claimed to have seen the actual strangulation of burning seems to be correct, but the argument that the circumstances established and already pointed out above do not lead necessarily to the inference that those appellants have caused the death of Aleha cannot be accepted as wholly correct. There is definite evidence of PWs 2 and 3 that in the morning of that fateful day they had heard the appellants threatening Aleha that she would be burnt. There is also evidence to the effect of PW 3 that at about 10 A.M. she had seen the appellants No. 3 coming out of her house with one year child of Aleha. The evidence of some witnesses already referred to above that at 4 P.M. appellant No. 1 had informed about the death of Aleha. He gave information that she died at about 11 A.M. So it appears from these circumstances if taken along-with the fact that the death of Aleha was homicidal as already referred to above, there cannot be any doubt that appellant No. 1 Nesar Ahmad Khan and appellant No 3, his mother who carried the baby in the lap at about 10 A.M. from the house had definite hand in causing the death of Aleha. Though it appears from the evidence of PWs 2 and 3 that in the morning the other two appellants were also with appellant No. 1 and 3 when they heard them thre atening Aleha of burning her to death, it appears from the Fardbeyan that only the mother-in-law i e. Appellant No. 3 had been heard by the informant threatening Aleha. So appellant Nos. 2 and 4 may be given benefit of doubt particularly when it is not stated by the witnesses that when they reached the house of the appellants on the information given at 4 PM by appellant No. 1, they had seen the appellants No. 2 and 4 also present and there is no evidence that they had done anything with the child or they spread any false news. It may be noticed that in their statements under Section 313 of the Code of Criminal Procedure the appellant No. 2 or appellant No. 4 did not take the plea that the appellants were at another house and Aleha was cooking meal in the house which is the place of occurrence. It is only appellant No. 1 and appellant No. 3 who took the plea that they had been to their house and Aleha died by burning while cooking food in their old house. It may also be noticed in this connection that it was appellant No. 1 who was annoyed according to the evidence because of the demand of returning Rs. 10,000/- and it was appellant No. 3, who, according to evidence of the informant, did not allow the informant to inter into her house when she had gone to see her sister about a week before her death on learning that the latter had again been assaulted some days after the former had bismeared turmeric on the Injuries caused due to assault on previous occasion. 22. The contention that all the circumstances were not put while examining the appellants under Section 313 of the Code of Criminal Procedure and so the appellants should be acquitted only for that reason also cannot be accepted. The appellants were aware of the charge levelled against them and they were defended through out and the witnesses were cross-examined on their behalf. Appellant No 1 and Appellant No. 3 took a definite stand about alibi and obviously in this context omission to put any question regarding any circumstance seems to be immatrial so far as these two appellants are concerned, and it cannot be said that any prejudice was caused to them because all the circumstances were not specifically put to them when they were examined under Section 313 of the Code of Criminal Procedure. So the contention of the learned lawyer for the appellant regarding improper examination of the appellants under Section 313 of the Code of Criminal Procedure and for their acquittal on this ground alone in not also acceptable. So the contention of the learned lawyer for the appellant regarding improper examination of the appellants under Section 313 of the Code of Criminal Procedure and for their acquittal on this ground alone in not also acceptable. Thus, all the contentions raised on behalf of the appellants fail at least so far appellant No. 1 and appellant No. 3 are concerned and, in my opinion, the contentions raised by the learned counsel for the State as already indicated above seems to have much force and are acceptable in the facts and circumstances of the case, except that appellant No. 2 and appellant No. 4 may be given benefit of doubt for the reasons indicated above. 23. So in view of the discussions made and the reasons indicated above, I am of the opinion that the appeal, so far as it relates to appellant No. 1 Nesar Ahmad @ Nesar Ahmad Khan and appellant No 3 Bano Bibi has no merit and the same is dismissed and the finding of conviction and sentence passed against them by the trial court seems to be justified and well founded on the evidence on record. But so far as appellant No. 2 Nawab Khan and appellant No. 4 Shaheeda Bibi are concerned, in my opinion, they may have to be given benefit of doubt for the reasons indicated above Their appeal is, accordingly, allowed and these appellant Nos. 2 and 4 are discharged from the liabilities of their bail bonds. Bail of appellant No. 3 is cancelled and she is directed to surrender before the trial court to serve out the sentence without delay. SATYA BRATA SINGH, J. 24 I agree with the conclusion arrived at by my learned Brother Dharmpal Sinha, J. However, I shall add a few words of my own for arriving at the same conclusion. 25. In this case the Doctor in his post-mortem report (Ext. 3) stated the cause of death to be shock and suffocation but stated that the cause of injuries was open fire. The finding of the Doctor (PW 5) have been mentioned in details by my learned Brother Dharmpal Sinha, J., but It is necessary to consider this aspect of the matter in a bit more details. In this case, the left chamber of the heart was found empty whereas the presence of dark blood was noticed in the right chamber. The finding of the Doctor (PW 5) have been mentioned in details by my learned Brother Dharmpal Sinha, J., but It is necessary to consider this aspect of the matter in a bit more details. In this case, the left chamber of the heart was found empty whereas the presence of dark blood was noticed in the right chamber. The Doctor has further noticed that faeces was coming out from the anus and blood mixed with froth coming out from mouth and nostril. Modi in his Medical Jurisprudence and Toxicology, 20th Edition, while considering Asphyxia caused by strangulation and suffocation stated in the following respectively at pages 152 and 160 thereof: "The face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases they may be closed. The conjunctive are congested, and the pupils are dilated. Petechiae are seen in the eyelids and the Conjunctive. The lips are blue. Bloody foam, escapes from the mouth and nostrils, and sometimes pure blood issues from the mouth, nose and ears, especially if great violence has bees used. The tongue is often swollen, braised, protruding and dark in clour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharges of urine, faeces and seminal fluid". "The face may be pale or suffused. The eyes are open, the eyeballs are prominent, the conjunctive are congested and some there are small petechial haemorrhages. The lips are livid, and the tongue sometimes protruded. Bloody froth comes out of the mouth and nostrils. The skin shows punctiform ecchymoees with lividity of the limbs. Rupture of the tympanum may occur from a violent effort at respiration." At pages 153 and 161 of the said treatise the learned author observed that in both such cases right side of the heart would be full of dark blood and the left empty. 26 In this case, therefore, although marks of external injuries were not found, the death dae to asphyxia either by strangulation or suffocation cannot be ruled out. In this case, PW 5 has not found sooty particles present in larying and trachae. In a case where death has taken place owing to fire injuries, presence of such sooty substance must be found. In this case, PW 5 has not found sooty particles present in larying and trachae. In a case where death has taken place owing to fire injuries, presence of such sooty substance must be found. Modi in his aforemeationed book at page 189-190 while considering the internal appearance observed : "The skull bones are found frectured or burst-open, if intense heat been applied, characteristic curged fractures in skull and long bones are reported. The brain and its meninges are generally congested. There is extravasation of blood, usually brick-red or a reddish brown deposit upon the upper surface of the dura mater. The brain is sometimes shrunken, though its form is retained Some times if the head is exposed to severe heat after death not only the charred skull vault may be fractured causing false suspicion of violence but there is a thin layer of extradural blood underneath, which looks like a cooked spongy mass. This has been called a heat haematoma. If death has occurred from suffocation, the nasopharynx, trachea and brochial tubes may contain sooty carbon particles, and their mucous membrance may be congested and covered with frothy mucus, the absence of soot indicates that the decased was not alive at the time od diew. A some of the sooty mucus may trickle into the stomach. They pleurae are congested or Inflamed, and there may be serous effusion into their cavities The lungs are usually congested ; they may be shrunken and rarely anaemic. The chambers of the heart are usually full of blood. The blood is cherry red in colour, if death has occurred from suffocation due to inhalation of carbon monoxide produced by incomplete combustion." 27. Taylor is his Principles and Practice of Medical Jurisprudence at page 252 observed : "When epithelial tissues in the interior of the body, notably the lining of the air passage, are exposed to heat, the cells are liable first to become swollen, pale, and ballooned (Fig. 12.4) However, they are then relatively rapidly shed into the lumen of the viscus. Thus the smaller perioheral air passages are liable to become choked by & mass of desquamated epithelial cell, mucus and carbon particles (Figs. 12-5-12.8)." 28. 12.4) However, they are then relatively rapidly shed into the lumen of the viscus. Thus the smaller perioheral air passages are liable to become choked by & mass of desquamated epithelial cell, mucus and carbon particles (Figs. 12-5-12.8)." 28. H.W.V. Cox in his Medical Jurisprudence and Texicology 5th Edition at page 323 (Editorial 5Now in the 6th Edition at page 395-396 while dealing with the subject relating to the question "were the burns inflicted before or after death" observed as follows : "Where the burns are peri-mortal, i.e. death and burning occurred simultaneously, it may be quite impossible to say definitely whether or not life was extinct at the time of burns. It must also be remembered that where wide arreas are burned, the burning process is a continous one and may often overlap the point at which life became death. Other pointers to dislinquish ante-mortem from post-mortem burns are to be seen in other organs, rather than the skin. Where death has occurred in a fire in a dwelling, in a motor vehicle or aircraft or indeed anywhere there is burning material, then there will often be smoke, fumes and carbon monoxide produced. "If soot and carbon particles are found in the larynx, trachea, main bronchi and small bronchi, then respiration must have been proceeding during the conflagration and therefore the fire was in progress during life. It is possible for some passive percolation of soot and smuts to reach the back of the pharynx even after death if the mouth is open, but they certainty cannot be carried in any quantity beyond the vocal chords and certainly not into the deeper bronchi ( see Fig. 100). Histological examination of the lungs may reveal carbon in the terminal bronchioles which is absolute proof of life during the fire. Similarly, though soot may be found in the mouth and throat in a dead person not alive during the fire, swallowing could not take place and therefore, soot particles could not be carried to the lower oesophagus and into the stomach, as if commonly found in victim of conflagrations." 29. The medical jurisprudences in this ease, appears to suggest that the death might have been caused by causing some external injury (which being superficial in nature might not have been found by the Doctor holding autopsy) and thereafer the body was burnt, when the deceased had already died or become unconscious. The medical jurisprudences in this ease, appears to suggest that the death might have been caused by causing some external injury (which being superficial in nature might not have been found by the Doctor holding autopsy) and thereafer the body was burnt, when the deceased had already died or become unconscious. However, assuming that the death took place only because of the burn-injuries received by the deceased, there could not be any doubt that in this case the prosecution has clearly established that the death of Aleha was homicidal in nature and not accidental or sucidal in nature. 30. In this case, the defence has taken a plea of alibi inasmuch as it is their definite case that while the occurrence took place they had been at the place where new house was under construction. The burden of proof of the said defence of alibi was on the appellants. However, no defence witness had been examined on behalf of the appellants to prove this fact. As noticed by my learned brother Dharmpal Sinha, J., this fact is sought to be proved from the evidence of PW 10. 31. It is not possible as has been alleged by PW 10 that all the appellants would be at that place from 4 Oclock in the morning. It is also unlikely that it was PW 10 himself who informed the appellants about the occurrence and thereafter they came home. 32. It may be mentioned that PW 10 was examined only for the purpose of proving the inquest. Although PW 10 has not been cross-examined by the prosecution the statement in his cross-examination appears to be wholly improbable. 33. It is true that the examination of the appellants under Section 313 of the Code of Criminal Procedure is defective but on that ground, the judgment of conviction and sentence cannot be set aside. It must be shown by the appellants that material prejudice was caused to them because of not putting definite questions to them. 33. It is true that the examination of the appellants under Section 313 of the Code of Criminal Procedure is defective but on that ground, the judgment of conviction and sentence cannot be set aside. It must be shown by the appellants that material prejudice was caused to them because of not putting definite questions to them. Under Section 313 of the Code of Criminal Procedure which reads as follows : "(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary ; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case : Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer to such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed." 34. In Moseb Kaka Choudhry and another v. State of West Bengal reported in AIR 1956 SC 536 , it was held as follows : "There can be no doubt that this is very inadequate compliance with the salutary provisions of Section 342, Criminal P. C. It is regretable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court, in various decisions commencing Tara Singh v. The State, 1951 SC 441 (AIR V 38) (B), on a due and fair compliance with the terms of Section 342, Criminal P. C. But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with Section 342, Criminal P. C. It is settled that clear prejudice must be shown. This Court has clarified the position, in relation to cases where accused is represented by counsel at the trial and in appeal. It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. This Court in its judgment in the latest case on this matter viz. K. C Mathew v. The State of Travancore-Cochin, 1956 SC 241 (S) AIR V 43 (C), (delivered on 15-12-1955) has laid down that "if the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough. Learned counsel could not, before us, make out any clear prejudice. All that learned counsel for the appellants urges is that this might be so in a case where the trial was with the assessors and the Judges view on the evidence was the main determining factor. But he contends that the same would not be the case where the trial is with the aid of a jury. Learned counsel urges that a full and clear questioning in a jury trial does not serve the mere purpose of enabling the accused to put forward his defence or offer his explanation, which may be considered along with the entire evidence in the case. The jury would, he suggests, also have the opportunity of being impressed one way or the other by the method and the manner of the accused when giving the explanation and answering the questions and that the same might turn the scale. Learned counsel urges, therefore, that the non-examination or inadequate examination under Section 342, Criminal P. C. in a jury trial must be presumed to cause prejudice and that a conviction in jury trial should be set aside and re-trial ordered, if there is no adequate examination under Section 342, Criminal P. C. We are not prepared to accept the contenas a matter of law. The question of prejudice is ultimately tion one of inference from all the facts and circumstances of each case. The fact of the trial being with the jury may possibly also be an additional circumstance for consideration in an appropriate case. But we see no reason to think that in the present case this would have made any difference." 35. The question of prejudice is ultimately tion one of inference from all the facts and circumstances of each case. The fact of the trial being with the jury may possibly also be an additional circumstance for consideration in an appropriate case. But we see no reason to think that in the present case this would have made any difference." 35. In Rama Shankar Singh v. State of West Bengal, reported in AIR 1962 SC 1239 , it was held as follows : "Duty is thereby imposed upon the Court to question the accused generally in a case after the witnesses for the prosecution have been examined to enable the accused to explain any circumstance appearing against him." It was observence : "the object of the section is to afford to the accused an opportunity of showing that the circumstance relied upon by the prosecution which may be prima facie against him, is not true or is consistent with his innocence. The opportunity must be real and adequate." Proceeding further it was further held : "The examination by the Sessions Judge of the appellants was perfunctory, but as observed in Ajmer Singhs case, 1953 SCR 418 : (AIR 1958 SC 76) every error or omission in complying with Section 342 does not vitiate the trial" Errors of this type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused." "To the question asked by the Judge, the answers given by the appellants were either" I am innocent or "the story is false". Failure on the part of the Sessions Judge to split up the questions so as to deal with each distinct feature or material piece of evidence separately, however, does not, in the circumstances of the present case, justify an inference that prejudice was thereby caused to the appellants. Counsel for the appellants has not been able to suggest, having regard to the line of cross-examination adopted and the criticism of the evidence of the prosecution witnesses offered by him, what explanation besides complete denial of the prosecution story, the appellants could have offerred in answer to the questions relating to the different circumstances and pieces or features of evidence on which the prosecution relied. It is true that the prosecution strongly relied upon two circumstances against Bimla (1) that when she came out of the house of Ramdeo Ahir, she had a blood-stained knife in her hand and (2) that when she was arrested from the godown of Bhola Singh, the knife was in her hand. To these matters of evidence attention of the accused Bimla does not appear to have been invited. Similarly, attention of Ram Shankar to the evidence that when he came out of the room of Ramdeo Ahir, he had a knife in his hand was not invited. But we have already observed beyond a bare denial, the learned counsel was unable to suggest any other answer which the accused could give to these pieces of evidence even if they had been specifically out to them. It is also to be noticed that the plea that the appellants had not been properly examined under Section 342 of the Code of Criminal Procedure was not raised before the High Court: atleast there is no reference in the judgment of the High Court to any such argument. Failure to comply with the provisions of Section 342 is an irregularity, and unless injustice is shown to have resulted therefrom a more irregularity is by itself not sufficient to justify an order of re-trial. The appellant court must always consider whether by reason of failure to comply with a procedural provision, which does not affect the jurisdiction of the court, the accused have been materially prejudiced. In the present fact, we are of the view, having regard to the circumstances, that the appellants have not been prejudiced because of failure to examine them strictly in compliance of the terms of Section 342 of the Code and that view is strengthened by the fact that the plea was not raised in the High Court by their counsel who had otherwise raised numerous questions in suport of the case of the appellants." 36. in a case like the present one where the plea of the accused was that he was not present at the scene at the time of occurrence putting in adverse circumstances to the accused as to his participation in his crime would have been no use. 37. in a case like the present one where the plea of the accused was that he was not present at the scene at the time of occurrence putting in adverse circumstances to the accused as to his participation in his crime would have been no use. 37. Further, nothing has been pointed out before us by the learned Cousel as to what explanation, other than of the bare denial or ignorance, the appellants could give, had the relevant question be put to them under Section 313 of the Code of Criminal Procedure. In my opinion, the appellants cannot be said to have been prejudiced thereby. 38. Farther no objection as to defective examination under Section 313 of the Code of Criminal Prosedure appears to have been raised in the court below and in this view of the matter too, in my opinion, the appellants in the facts and circumstances of this cases should not be permitted to raise this question in this Court. 39. In any event, the main circumstances which according to the prosecution have proved the death of deceased are : (a) the motive for commission of the offense was the demand of Rs.10,000/- back from the husband of the deceased (Appellant No, 1) which he took from his father- in-law when he became an accused in a murder ease (b). It has been brought on record that because of the aforementioned demand of Rs. 10,000/- the deceased used to be tortured. 40. Evidences have been brought on record only for the purpose of proving the aforementioned two main circumstances together with the conduct of the appellants which point oat the guilt of the Appellant Nos. 1 and 3. 41. The other circumstances which have been relied upon by the learned court below as also by my learned brother Dharmpal Singh, J. are for the purpose of showing that the death had occurred in the house where the deceased lived with his husband and the theory of accidental or suicidal death has to be ruled out as well for the purpose of showing that the plea of alibi raised on behalf of the appellants are not correct. These circumstances have been brought on record for the purpose of negativing the plea of alibi raised on behalf of the appellants. 42. These circumstances have been brought on record for the purpose of negativing the plea of alibi raised on behalf of the appellants. 42. In this situation, as the said pleas were raised on behalf of the appellants themseleves, it was not necessary to put the said circumstances to the accused person in their examination under Section 313 of the Code of Criminal Procedure as the question of offering any further explanation by them in relation thereto did not arise. 43. As noticed- hereinbefore the appellants have definitely taken ia the stand that the deceased died out of burn Injuries received by her while she cooking meal. 44. It may further be mentioned that in the memo of appeal, no ground has been urged to show that the appellants were materially prejudiced by reason of an omission on the part of the learned court-below in complying with the provisions under Section 313 of the Code of Criminal Procedure. In this view of the matter, in my opinion, the same will not necessarily vitiate the trial. Reference in this connection may be made to the case of Ajmer Singh v. State of Punjab, AIR 19S3 SC 76. 45. From the medical evidence on record, a suicidal or accidential death has to be ruled out The Appellant Nos. 2 and 4 in their examinations under Section 313 of the Code of Criminal Procedure spoke of accidental death but the definite case of the appellants in the cross-examination of the prosecution witnesses appears to be that the deceased committed suicide. 46. In the case of State (Delhi Admn.) v. Laxman Kumar, ( 1986 CrLJ 155 ), the Supreme Court upon takiag into consideration various circumstances of the said case came to the conclusion that the theory of suicidal or accidental death has to be ruled out. 47. If the plea of alibi raised on behalf of the appellants to the effect that all of them bad been to their new house for the purpose of manufacture of tiles, at such an odd hour namely 4 Oclock in the morning, the deceased if wanted to commit suicide would have bolted the door from inside. 48. Neither PW 10 nor the appellants in their examinations under Section 313 of the Code of Criminal Procedure stated nor in cross-examination of the prosecution witnesses suggested that the door or the house had to be broken open. 49. 48. Neither PW 10 nor the appellants in their examinations under Section 313 of the Code of Criminal Procedure stated nor in cross-examination of the prosecution witnesses suggested that the door or the house had to be broken open. 49. In the case of Surinder Kumar v State (Delhi Administration), 1987 CrLJ 537 , the Supreme Court on the basis of evidence on record ruled out the theory of accidental death. In that case it was found that so far as the theory of suicidal is concerned, there was no evidence that there was any proximate cause for her to make an attempt to end her life on that cause. 50. In Subedar Tiwary V; State of Uttar Pradesh and other, reported in AIR 1986 SC 733 : 1989 CrLJ 923 , the Supreme Court convicted the appellants taking into consideration over-whelming circumstances of unnatural conduct of the accused husband. The Supreme Court in that case also considered Modis Medical Jurisprudence and observed at page 928 in the following terms : "The body of the deceased was found pugilistic attitude. According to Modi, when a body is exposed to great heat, it gets cooked and becomes so rigid that the limbs fixed, arms fixed and fingers hooked like claws that it assums an attitude of defence called the pugilistic or fending posture. According to Taylor all muscles portion in the body is coagulated at temperature above 65°C. When a body is subjected to a temperature above, the coagulation point of the muscle portein, rigidity is produced which, if complete is far more intense than that found in rigor mortis. So it can be conclusively inferred by the pugilistic attitude of the body of the deceased Veena that the body was exposed to great heat and it was cooked. Dr. Kochar has also noted in the post-mortem report that the brain was cooked. It is also established by the pugilistic attitude of the body that the heat above 65°C was given to the body." Thus, in the decisions aforementioned the Supreme Court arrived at the finding of guilt of the accused persons in bride-burning cases by considering circumstances which negative the defence plea that the death of the victim lady was suicidal or accidental in nature. 51 For the reasons aforementioned I agree with the conclusions arrived at by my learned Brother Dharmpal Singh, J.