Judgment N.Pandey and Ashok Kumar Verma JJ. 1. Both these Criminal Appeals arise out of same judgment of conviction and sentence therefore, the appeals are disposed of by the common judgment. All these five appellants have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/each and in. default to undergo rigorous imprisonment for sixmonths under Sec. 302 read with Sec. 34 of the Indian Penal Code by the Judgment and Order dated 24th August. 1993 in Sessions Trial No. 211 of 1992 on the charge of having committed murder of Krishna Devi wife of appellant No. 1 Ghanshyam Prasad. The sentences are to run concurrently. 2. In brief the case of the prosecution is that Krishna Devi was married about 15-16 years ago with appellant Ghanshyam Prasad, Since for a pretty long time she could not produce any child appellant Ghanshyam had performed another marriage. Although Krishna Devi was residing with her husband but according to the prosecution witnesses she was always being beaten and tortured. On 19-5-1989 at about 8.15 p.m. the informant got information that his sister was murdered by Ghanshyam Prasad and his family members and her dead body was kept locked in a room. The informant at once proceeded to the place of occurrence but none of the accused persons were found present. He thereafter opened the room and found his sister lying dead on the floor. He had also noticed the injuries on the elbow Ear, chest, neck etc. He had also noticed blood coming out of ear of his sister. Immediately thereafter, the informant proceeded to the Police Station and got his fardbeyan recorded alleging that his sister was murdered by her husband and other family members. 3. The Police on the basis of the above statement recorded fardbeyan registered a regular case and proceeded to the place of occurrence for investigation. He had also examined the witnesses, prepared inquest report and had seized certain relevant materials from the room in question where Krishna Devi was lying dead. Ultimately having found a prima facie case the Investigating Officer submitted chargesheet on the basis of which the Chief Judicial Magistrate took cognizance of the offence and committed the case to the Court of Sessions calling upon the accused-persons to face trial. 4. Ultimately having found a prima facie case the Investigating Officer submitted chargesheet on the basis of which the Chief Judicial Magistrate took cognizance of the offence and committed the case to the Court of Sessions calling upon the accused-persons to face trial. 4. The defence of the accused persons as would appear from the statement under Sec. 313 of the Code of Criminal Procedure and also from the evidence of the defence witnesses as well as the trend of cross-examination was total denial of the allegation; According to them the relationship between appellant Ghanshyam Prasad and his wife was cordial. In fact after 14-15 years of marriage the deceased had delivered a female child but unfortunately she could not survive. Therefore. Krishna Devi was suffering from mental depression and. therefore, committed suicide by hanging. The defence has further suggested that since Ghanshyam Prasad and his father was not present in the house therefore on getting information about the death of Krishna Devi from appellant Sukri Devi, all the three defence witnesses arrived al the place of occurrence arid after untying the rope from the neck of Krishna Devi they brought her down on the floor. 5. At the very outset it may be indicated that there is no eye-witnesses to the occurrence in this case. The prosecution however has examined altogether seven witnesses out of whom PW 1 Rameshwar Singh is a, formal witness, PW 2 Umesh Prasad is cousin of the deceased. Prior to the date of occurrence this witness had gone to the house of appellant Ghanshyam Prasad to invite him and his sister Krishna Devi for a dinner. He further said that when Krishna Devi had come to his house she had alleged that she was being tortured and assaulted by Ghanshyam Prasad. PW 3 Puma Prakash is the resident of the PO village. On the date of the occurrence, he heard sound of crying of a woman from the upper floor of the house of the appellant at about 12 noon. He further said that earlier also he had heard such cry of a woman from that house. Unfortunately on the date of the occurrence in the evening hours this witness learnt that Krishna Devi was done to death in her bed, room. He further said that earlier also he had heard such cry of a woman from that house. Unfortunately on the date of the occurrence in the evening hours this witness learnt that Krishna Devi was done to death in her bed, room. PW 4 Shyam Pyari Devi is the mother of the informant and deceased had also supported the prosecution story regarding marriage and assault on Krishna Devi by her husband. She had also noticed injuries on her daughter when she arrived at the place of occurrence. 6. PW 6, Mahesh Prasad is the informant of this case. In his deposition before the Court he has fully supported the statement on the basis of which the fardbeyan was recorded. In the fardbeyan as well as in his deposition this witness has specifically alleged motive of the occurrence as quarrel between his sister and the second wife of appellant No. 1 Ghanshyam Prasad. He has also alleged that Ghanshyam Prasad always used to side the second wife and assault his sister. All the above witnesses were crossexamined at length by the defence but nothing was suggested on the basis of which their testimony can be discredited. 7. From the materials noticed above and the evidence of the I.O. PW 7 Akshay Kumar Singh, there is no dispute that the death of Krishna Devi was unnatural. This is also not in dispute that at the time of occurrence she was residing with Ghanshyam Prasad and the death took place inside the bed room. 8. According to the defence, Krishan Devi was leading a frustrated life therefore she committed suicide by hanging whereas positive case of the prosecution and its witness is that cause of death of Krishan Devi was strangulation and the external injuries which the doctor had found at the time of postmortem examination. Therefore only question that remains to be answered is whether the death of Krishna Devi was due to strangulation and hanging. For a deep probe of the above question it would be appropriate to quote the injuries found by the doctor PW 5 Dr. Mithlesh Kumar Sinha on the dead body of Krishna Devi as under: (1) Abrasion over lateral aspect of left side of neck located 1-1/2" below the lower margin of attachment of left external ear size 3/4" x 1/2". (2) Abrasion over back of right elbow size 1/2" x 1/2". Mithlesh Kumar Sinha on the dead body of Krishna Devi as under: (1) Abrasion over lateral aspect of left side of neck located 1-1/2" below the lower margin of attachment of left external ear size 3/4" x 1/2". (2) Abrasion over back of right elbow size 1/2" x 1/2". (3) Abrasion over crest of both cheek each of approx size 1/2" x 1/2". (4) One dark coloured non continuous ligature mark of width 1/2" around upper part of neck. Noncontinuity was of length 1-1/2 over left lateral aspect of neck. On dissection of ligature mark floor was found dry pile parchment like. Mucus membrane of wind pipe was found congested. It was containing pinkish froth. Both lungs were grossly congested. Other Viscera including liver spleen kidney were also congested." 9. In the opinion of the doctor (PW 5) all the injuries were ante-mortem which can be noticed as under: (1) All injuries were ante-mortem in nature. (2) Injury Nos. (1) to (3) were simple in nature and (4) was grievous in nature. (3) Injury Nos. (1) to (3) were caused by hard and blunt object and No. (4) was likely to be caused by soft negative material. (4) Death in my opinion was due to shock and asphyxia. (5) Time since death within 18 to 24 hours from the time of post mortem. (6) For detection of any suspected poison the viscera including stomach with its contents, liver, spleen, and kidney have been preserved in saturated solution of common Salt in a sealed container and is being forwarded through the constable for further transmission to Chemical Analyst, Bihar, Patna for examination and report." 10. The plea of the defence regarding death due to poisoning was not accepted by the doctor. The trial Court considering the evidence of the doctor has come to a definite conclusion that death of Krishna Devi was caused due to strangulation. 11. Mr. Rana Pratap Singh. Senior counsel appearing for the appellants contended that from a bare reference to the evidence of the doctor (PW 5) it would, appear that cause of death of Krishna Devi was hanging and/not strangulation as alleged by the prosecution. Because the doctor has specifically mentioned that non-continuous ligature mark on the neck of the dead body was a positive indicator that cause of death was hanging. Because the doctor has specifically mentioned that non-continuous ligature mark on the neck of the dead body was a positive indicator that cause of death was hanging. That apart in a case of strangulation as per the medical jurisprudence generally blood comes out from the nose and ear. In this case no prosecution witness has come forward to allege that they could notice any trace of blood on the neck or cheek of the deceased. 12. In our view true it is the doctor had found non-continuous ligature mark on the neck of the dead body therefore unless and until ante-mortem injuries are found on the person of the deceased it cannot be said with certainty that the cause of death was hanging. But in this case from a bare reference to the post mortem report and the evidence of the doctor it would appear that there were atleast three injuries ante-mortem in nature. The first injury is abrasion over the lateral aspect below that the lower margin. Second abrasion was found over the back of the right elbow 1/2" x 1/2" and the third abrasion was located over cheek each of appox size 1/2" x 1/2". Therefore, while taking into consideration the above injuries the doctor has opined that the cause of death of Krishna Devi might be due to external injury such as strangulation. He has specifically said that such injuries may not be possible unless and until forces are used. Therefore, simply because there was presence of non-continuous ligature mark it would be difficult for us to hold that death of Krishna Devi was due to hanging. 13. To support such a view it can be further noticed that the doctor apart from external injuries has also indicated that in case of strangulation saliva comes out. We have gone through the evidence of the eyewitnesses from which it appears that saliva was found which is also supported by the Investigating Officer (PW 7) That apart even the presence of blood was also noticed by PW 6 just below the ear and black mark on the neck. Therefore, in our view, finding of the trial Court appears quite justified that death of Krishna Devi was due to strangulation. 14. Therefore, in our view, finding of the trial Court appears quite justified that death of Krishna Devi was due to strangulation. 14. Now, the question that is relevant for consideration is actually who is responsible for the murder of the deceased, as would appear from the fardbeyan of the informant and the evidence of the prosecution witnesses, although her marriage with the appellant Ghanshyam Prasad had taken place long back, but she was not able to produce any child. Therefore, appellant Ghanshyam Prasad had performed second marriage. It has been specifically alleged by the prosecution that after the second marriage, Ghanshyam Prasad used to torture and assault Krishna Devi from time to time. We have already noticed the evidence of PW 2 Umesh Prasad, PW 3 Puran Prakash, and PW 6 Mahesh Prasad who have supported this part of the prosecution version that appellant Ghanshyam Prasad always used to torture and assault Krishna Devi, the deceased. Therefore, specific motive has been alleged against appellant Ghanshyam Prasad. There is no allegation against any other appellants that they also used to torture or assault the deceased. Nor any such motive has been proved. 15. True, it is in a case of murder, motive of the accused-persons may not playa vital role but certainly in a case of this nature where success of the prosecution depends only upon circumstantial evidence, it would be the duty of the prosecution to prove actually what was the motive behind such murder. Mr. Singh, learned counsel appearing on behalf of the appellant contended that in the facts and circumstances of the case, such motive is against appellant Ghanshyam Prasad who is the husband of the deceased. We are, therefore, of the opinion that unless and until any such motive of torture and assault is made out against other accused persons, it would not be proper to hold the entire family members guilty for the alleged murder. 16. Mr. Singh, however, contended that in this case three independent witnesses have come forward to state that Krishna Devi has committed suicide. According to these witnesses, they on getting information from PW 4 Shyam Peyari Devi that Krishna Devi had committed suicide by hanging, rushed to the place of occurrence and got the dead body down on the floor after cutting the rope. According to these witnesses, they on getting information from PW 4 Shyam Peyari Devi that Krishna Devi had committed suicide by hanging, rushed to the place of occurrence and got the dead body down on the floor after cutting the rope. They have further said that at the time of occurrence, appellant Ghanshyam Prasad and his father Krishna Prasad both were absent. Therefore, PW 4 had no option but to inform these witnesses. Learned counsel, therefore, submitted that in a case where the prosecution version is supported by interested witnesses, who are none else but the family members. Courts should give due weight age to the evidence of defence witnesses as well. In support of such submission Mr. Singh placed reliance on a decision of the Apex Court in the case of Dudh Nath Pandey V/s. State of Uttar Pradesh. 17. In our view, although these witnesses have come forward to state that cause of death of Krishna Devi was hanging but in absence of any positive evidence of the Investigating Officer and supporting materials in proof of such evidence, it would not be proper to discard the prosecution evidence solely on the basis of the evidence of defence witnesses. Because the story advanced by the defence witness regarding death of Krishna Devi by hanging is not being supported by the medical evidence. There is no explanation by the defence in what circumstances the deceased had external injuries, which we have already noticed. Similarly presence of blood and saliva on the person of the deceased is also one of the important factors to show that cause of death was strangulation. 18. We therefore taking into consideration the facts noticed above have no option but to hold appellant Ghanshyam Prasad of Cr. Appeal No. 470 of 1993 guilty for the murder of his wife Krishna Devi. Accordingly the order of conviction and sentence recorded by the trial Court against him is confirmed. This appeal is accordingly dismissed. 19. But in absence of evidence or specific motive having been attributed against other appellants it would not be proper to hold them guilty for the alleged offence. Accordingly we set aside the order of conviction find sentence awarded against these appellants namely Krishna Prasad. Narayani Devi. Sukari Devi and Maina Devi. Cr. Appeal No. 385 of 1993 is accordingly allowed. But in absence of evidence or specific motive having been attributed against other appellants it would not be proper to hold them guilty for the alleged offence. Accordingly we set aside the order of conviction find sentence awarded against these appellants namely Krishna Prasad. Narayani Devi. Sukari Devi and Maina Devi. Cr. Appeal No. 385 of 1993 is accordingly allowed. Since these appellants are on bail they are discharged from the liability of the bail-bonds.