Judgment ( 1. ) APPELLANT alongwith his father accused Bhuvneshwar were put on trial for offence under Section 302/34 and 201 of the Indian Penal Code. Second Additional Sessions Judge, Chhindwara by Judgment dated 6-1-1989 passed in Sessions Trial No. 136/86 acquitted the appellant of the charge under Sec. 201 hut has found him guilty of offence under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life, whereas his father has been acquitted of both the charges. Appellant being aggrieved by his conviction and sentence, has preferred this appeal. ( 2. ) IT is an admitted position that deceased Maya was the wife of the appellant and they were married about 11 months prior to the date of incident. It is further an admitted position that the deceased was a teacher posted at Parasia whereas appellant was also a teacher posted at village Mungwani and he used to visit his wife at village Parasia. It is further not in dispute that P. W. 2 Narendra Kumar Sharma and P. W. 11 Dipal alias Pappu are brothers of deceased whereas P. W. 8 Sushila Bai and P. W. 10 Rajkumari are sisters of the deceased. It is also an admitted position that appellant alongwith the deceased had gone to his Sasural an on 8-5-1986 they had gone to Vidisha alongwith P. W. 10 Rajkumari and her husband Radhakishan and Depak at Rajkumaris residence. They stayed there for about ten days and thereafter on 19-5-1986 appellant alongwith the deceased and P. W 11 Dipak returned to village Parasia and on the same day he went to village Salkhani, declining the request to stay at village Parasia. There is no controversy that the deceased was at advance stage of pregnancy and she died in the night between 21-22 May, 1986 at her Sasural at village Salkhani. On receipt of the information about the death of Maya, P. W. 1 Mahesh Prasad who is the husband of the sister of the deceased alongwith P. W. 8 Sushila and P. W. 2 Narendra Kumar Sharma went to village Salkhani. Seeing dead body of Maya they perceived her death to be suspicious, and hence gave report (Ex. P/1) to the Chourai Police Station. On receipt thereof, inquest report (Ex. P/3) was prepared in presence of the witnesses and vomitted material alongwith the earth were seized. P. W. 5 Dr. Seeing dead body of Maya they perceived her death to be suspicious, and hence gave report (Ex. P/1) to the Chourai Police Station. On receipt thereof, inquest report (Ex. P/3) was prepared in presence of the witnesses and vomitted material alongwith the earth were seized. P. W. 5 Dr. Panchamlal who was called by the appellant on 22-5-1986 declared her dead. ( 3. ) ACCORDING to the prosecution after the marriage of the deceased with the appellant on 2-6-1985, deceased came to her Sasural at village Salkhani only 3-4 times and although appellant used to go to meet his wife at village Parasia but was not happy with the articles given in the marriage and had kept the same at the parents place of the deceased at Parasia. According to the prosecution, appellant further used to demand Scooter and had suspicion about his wifes fidelity and believed that she had illicit relationship with her brother-in-law Radhakishan husband of P. W. 10 Rajkumari. According to the prosecution, immediately prior to the incident appellant and deceased had gone to Radhakishans House at Vidisha. According to the prosecutions after returning from Vidisha to Parasia, inspite of the request made, appellant did not stay with his wife there and went alongwith the deceased to his village Salkhani, although deceased was not inclined to go. Prosecution story further is that on 21- 5-1986 the villagers heard the cries of the deceased. According to the prosecution she was done to death by the appellant and in order to conceal the crime, he projected that she died of vomiting. ( 4. ) WHILE preparing the inquest report it was found that there were red and blue spots on the face and chest of the deceased and thin blood coming out from the nostrils and as such the death was found to be suspicious and accordingly the dead body of Maya was sent for post-mortem examination. The Post mortem was conducted by a team of doctors consisting of P. W. 7 Dr. VE. Chako and Dr. K. D. Khan and they submitted the post-mortem report (Ex. P/12) signed by both of them. According to the post-mortem report and the evidence of P. W. 7 Dr. Chako, Mayas death was asphyxiated as a result of suffocation". On enquiry by the investigating officer, Dr. VE. Chako and Dr. K. D. Khan and they submitted the post-mortem report (Ex. P/12) signed by both of them. According to the post-mortem report and the evidence of P. W. 7 Dr. Chako, Mayas death was asphyxiated as a result of suffocation". On enquiry by the investigating officer, Dr. Chako opined that swelling from Pomum adami to the breast was ante-mortem in nature and could have been possible by pressing hard the pillow. The investigating agency also sent the earth containing vomited material for chemical examination to the Forensic Science Laboratory but in its report the Forensic Science Laboratory did not find any poison. However, on the seized under-garments of the deceased and on the slides prepared from the vaginal fluid human sperms were found to show that the deceased had sexual intercourse before her death. ( 5. ) AFTER usual investigation Police submitted charge-sheet against the accused persons and the case was ultimately committed to the Court of Sessions for trial. Appellant denied to have committed any offence and his plea was that he has been falsely implicated in the case. Prosecution in support of its case had altogether examined 13 witnesses. Three defence witnesses have also been examined. ( 6. ) THE Trial Court on appreciation of evidence and placing reliance on the post-mortem report and the evidence of P. W. 7 Dr. Chako, found the death of Maya to be homicidal in nature. While holding so, the Trial Court rejected the evidence of D. W. 3 Dr. S. D. Vaidya who had opined that death of Maya was accidental in nature. The Trial Court further found that appellant doubted about the fidelity of his wife and believed that she had illicit relationship with her brother-in-law and was not happy with the articles given to him in the marriage and as such had motive to commit the crime. It further found that the deceased was in the company of the appellant in the night when she died and hence nobody other than him could have caused her death. ( 7. ) MR. S. C. Datt, appears on behalf of the appellant whereas Mr. S. K. Gangrade, Panel Lawyer appears on behalf of the State. Mr. It further found that the deceased was in the company of the appellant in the night when she died and hence nobody other than him could have caused her death. ( 7. ) MR. S. C. Datt, appears on behalf of the appellant whereas Mr. S. K. Gangrade, Panel Lawyer appears on behalf of the State. Mr. Datt submits that the finding recorded by the trial Court that the death of Maya was homicidal in nature is erroneous and once that finding is reversed by this Court, appellant cannot be held guilty of offence under Section 302 of the Indian Penal Code. Shri Datt submits that when there is difference amongst the experts as regard the cause of death of the deceased, benefit should be given to the appellant and he deserves to be aquitted for the charge levelled against him. He submits that the material brought on record clearly go to suggest that death of Maya was accidental. He draws our attention to the evidence of P. W. 13 Ravendra Kumar Pandey, Sub-Inspector of Police who has stated in para-3 of his evidence that the vomited material was seized from the place of incident and vomited material, viscera and the slide prepared from the vaginal swab were sent to the Forensic Science Laboratory for examination and according to the report (Ex. P/25) chemical poison was not found either in the vomited soil or in the viscera. However, on the vaginal-slide and in the under-garments of the deceased seminal stains and spermatozoa were found. Sri Datt refers to the post-mortem report and contends that in the same, autopsy surgeon has not opined that the death of Maya was homicidal. It has been suggested that the vomited material stuck in the trachea and the deceased died of suffocation. From the aforesaid, according to Sri Datt, there is no manner of doubt that the death of Maya was accidental and evidence of P. W. 7 Dr. Chako is not fit to be believed. Our attention has further been drawn to the evidence of D. W. 3 Dr. S. D. Vaidya who has opined that death of Maya Seemed to be accidental. ( 8. ) MR. S. K. Gangarade, however, appearing on behalf of the State submits that the death of Maya was homicidal in nature which is established beyond all reasonable doubt from the evidence of P. W. 7 Dr. S. D. Vaidya who has opined that death of Maya Seemed to be accidental. ( 8. ) MR. S. K. Gangarade, however, appearing on behalf of the State submits that the death of Maya was homicidal in nature which is established beyond all reasonable doubt from the evidence of P. W. 7 Dr. Chako and other material brought on record. ( 9. ) HAVING appreciated the rival submission, we do not have the slightest hesitation in accepting the broad submission of Sri. Datt that in case of doubt, view favourable to the accused has to be taken. However in the present case there is overwhelming material to show that death of Maya was homicidal in nature. P. W. 7 Dr. Chako who had conducted the post-mortem examination alongwith Dr. Khan had observed as follows : "bloody froth was present over nostrils, face was turned on the left side, dry stread of discharge from the nostrils and mouth present over the right cheek, going upto the right side of the neck. Her eyes were closed, mouth was also closed, nails of both the fingers of both the hands, they are blue. Terminal phalanx of both the hands were slightly flexed. Dissection of the neck along with the upper part of the chest--On opening (dissection) of the part between the chin and sternum sub-cutaneous tissue found markedly congested and oedematous, compared to the rest of the body. Thyroid gland slightly enlarged and found markedly congested. The ribbon muscles in the lower part of the neck on both the sides and sub cutaneous tissue over the supra sternal notch and muscles (inter costal) from the junction of the second sterno costal found markedly oedematous and congested. Oozing out darky bloody colour fluid. On opening the trachea and larynx:- dark red colour mucoid fluid present, right upto the bronchus. Mucosa markedly congested. No rupture of any tracheal ring found. On opening of chest both the lungs were found fully expanded and congested (dark voilet colour ). Little plural fluid was found on both sides which was bloody coloured No fracture of ribs present on any side Dissection of small bronchitis, bloody coloured, mucoid fluid was found, scattered small area of sub-plural congestion seen over both the lungs. On dissection of both the lungs dark colour violet blueish froth came out. Little plural fluid was found on both sides which was bloody coloured No fracture of ribs present on any side Dissection of small bronchitis, bloody coloured, mucoid fluid was found, scattered small area of sub-plural congestion seen over both the lungs. On dissection of both the lungs dark colour violet blueish froth came out. In the muscles of neck and upper part of chest, extravasaction of blood and dark purple colour found, more near the sternal notch, and lower part of neck muscles. The swelling described between the pomumadami and upper border of breasts is antemortem. The whole of the face, front of the neck, and the portion of the body above the both breasts anteriorly is dark (congested) as compared to the rest of the body, which is fair coloured pale. Veins over the said area and both the shoulders and upper arm are prominent and purplish blue in colour. Terminal pulps of the fingers of the right hand were found blueish purple in colour, while in the left hand it is present over the tips of the fingers. The portion between the upper border of the breasts and pomum adami is swollen and darkly coloured congested. " (underlining ours) In the opinion of the doctors the cause of death was asphyxia as a result of suffocation. Dr. Chako has further stated in her evidence that on 5-6-1986 she received the following query (Ex. P/13) from the investigating agency : "1. You have mentioned in P. M. report that "swelling between pomumadami and border of the breasts" please clear that how that swelling can be caused. 2. You have also mentioned in P. M. report that "nails of fingers of both the hands are blue and terminal pulps of the fingers of the right hand found blueish purple colour (Coppery) while in the left hand it is present over the tips of fingers" please clarify that how it can be caused. 3. The case of death according to P. M. report "asphyxiated death due to suffocation" please how that suffocation caused resulting into death. " 4. Please clarify that mode of death is whether homicidal, suicidal or accidental. " In answer thereto, Dr. Chako had stated as follows :- "1. 3. The case of death according to P. M. report "asphyxiated death due to suffocation" please how that suffocation caused resulting into death. " 4. Please clarify that mode of death is whether homicidal, suicidal or accidental. " In answer thereto, Dr. Chako had stated as follows :- "1. The swelling on the said area is ante-mortem in nature and can be caused both by external heavy pressure applied on the chest and the said region and smothering by an object like soft pillow with deeply applied pressure. 2. The blueish purple (Coppery) colour on the said areas are as a result of asphyxia. 3. Cause of death given as asphyxia as a result of suffocation which can be attributed to the ante-mortem injury (swelling) mentioned in the P. M. Report. 4. Death is homicidal. " ( 10. ) TRUE it is that in the post mortem report this doctor has not stated that death of Maya was homicidal in nature but in the same it has been clearly stated that death was "asphyxiated as a result of suffocation". On query made to this doctor she has clearly stated that death was homicidal in nature and in that view of the matter, mere non mentioning of the same in the post-mortem report in no way creates any doubt as regards the opinion of P. W. 7 Dr. Chako. ( 11. ) IT is relevant here to state that vomited material was found during the course of investigation and as stated earlier it has been suggested that the vomited material stuck in the trachea of the deceased and she died of suffocation. P. W. 7 Dr. Chako had found dark red coloured mucoid fluid on the trachea and violet blueish froth in the lungs. However, she had not found food particles in the trachea, larynx and bronchitus. Hence vomited material blocking the air passage is clearly ruled out. Further the deceased was in the company of the appellant and in case she would have died of suffocation because of stocking of the vomited material in the trachea, she must have had bouts of coughing, which is not the case of the appellant. Hence vomited material blocking the air passage is clearly ruled out. Further the deceased was in the company of the appellant and in case she would have died of suffocation because of stocking of the vomited material in the trachea, she must have had bouts of coughing, which is not the case of the appellant. It is relevant here to state that during the post-mortem examination, stomach of the deceased was found to be empty and in that view of the matter the theory propounded by the appellant that the deceased vomited and vomited material stuck in her trachea resulting into suffocation is absolutely ruled out. P. W. 7 Dr. Chako has found swelling between the pomum-adami and border of the breasts which in her opinion can be caused by heavy pressure by an object like soft pillow with deep pressure. Dr. Chako who had the opportunity to see the dead body and conduct the post-mortem examination; on objective assessment has opined that the death of Maya was homicidal in nature. D. W. 3 Dr. Vaidya did not had the opportunity to see the dead body and as such his opinion, in the face of the objective finding and opinion of P. W. 7 Dr. Chako in no way inspires confidence and does not shakes the credibility of the evidence of Dr. Chako. ( 12. ) SRI Datt has drawn our attention to the evidence of P. W. 7 Dr. Chako; wherein while answering the query as regard to the cause of presence of swelling between pomum adami and the border of breasts, this doctor has opined that it had happened because of smothering by an object like soft pillow. He submits that there cannot be smothering of the chest and it is always of the mouth and accordingly he submits that the evidence of P. W. 7 Dr. Chako is fit to be rejected. The word "smother" is not a word of medical science and its meaning has to be understood like any other word of English language. The word "smother" means to "cover" and what Dr. Chako meant that chest region was somthered by pillow and heavy pressure applied which resulted into swelling between pomum adami and border of the breast. ( 13. The word "smother" is not a word of medical science and its meaning has to be understood like any other word of English language. The word "smother" means to "cover" and what Dr. Chako meant that chest region was somthered by pillow and heavy pressure applied which resulted into swelling between pomum adami and border of the breast. ( 13. ) IT has been further highlighted by Sri Datt that had the deceased died of asphyxia on account of any external pressure by the appellant the deceased must have fought for her life and in normal course should have sustained some injury. True it is that no injury has been found on the person of the deceased. But the evidence suggests that the deceased was in an advanced stage of pregnancy. Infact during the post-mortem examination seven months fetus was found. The occurrence had taken place in the night in a room occupied by none other than the appellant and it seems that before the deceased could react, she was overpowered and, therefore, no injury was found on her person. From what has been stated above, we have no manner of doubt that the death of Maya was homicidal in nature. ( 14. ) NO other submission has been advanced by Sri Datt to assail the judgment of conviction and sentence. We have perused the record. The deceased was the wife of the appellant and she was with her husband i. e. the appellant on the fateful night. She was living with her husband is further fortified by the fact that in the vaginal slides, spermotozoa was found which clearly goes to suggest that she had sexual intercourse with the appellant. Thus his presence with the deceased immediately before her death has been proved beyond all reasonable doubt. P. W. 1 Mahesh Prasad, P. W. 2 Narendra, P. W. 3 Kuwarlal, P. W. 8 Sushila Bai, P. w. 9 Kripal Singh and P. W. 11 Rajkumari have clearly stated in their evidence that the appellant had taken the cash amount given in the marriage but had not taken the other articles to his village for which appellant was unhappy. It has further come in their evidence that appellant used to exert pressure for Scooter and these witnesses have further stated that appellant suspected the fidelity of his wife and he believed that she had illicit relationship with her brother-in-law living at Vidisha i. e. husband of P. W. 11 Rajkumari. According to these witnesses the appellant and the deceased fought at the residence of Radhakishan at Vidisha where they had gone immediately prior to the date of incident. All the witnesses are consistent in their evidence that the appellant suspected the character of his wife and as such, we are of the opinion that he had motive for the same. ( 15. ) THE deceased was living with the appellant. She is none other than his wife. His explanation that the death of Maya was accidental in nature has been found to be untrue. Deceased was with the appellant prior to her death and the explanation put forth by the appellant as regards the cause of her death being untrue, we are of the opinion that the prosecution has proved beyond all reasonable doubt that the death of Maya was homicidal in nature and caused by the appellant. ( 16. ) IN the result, we do not find any merit in the appeal. It is dismissed accordingly.