JUDGMENT - BRAHME P.S., J.:-Appellant Dnyandeo @ Vinayak Rajaram Namade has preferred this appeal challenging the judgment and order challenging the judgment and order passed by the Additional Session Judge, Khamgaon in Session Trial No. 22 of 1994, whereunder he was convicted for the offences under sections 498-A, 354, 506(11) and 203 of the Indian Penal Code as also under section 302 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for two years on each count and to undergo imprisonment for life for the offence under section 302 of the Indian Penal Code. All the sentences were to run concurrently. 2. The prosecution case, in brief, is that the appellant and the original accused No. 2 Namdeo are real brothers. Sau. Sumanbai Pandurang Malthane, who was original accused No. 3 is married sister of the appellant. The appellant and accused Namdeo are resident of village Alampur which is situated within the limits of Police Station, Nandura. Appellant Dnyandeo was residing with his third wife Punjabai (deceased). Accused Namdeo had married with one Sumanbai (P.W. 6). She stayed with him just for four months. At that time, they were living with appellant Dnyandeo. During her short stay, she noticed that appellant Dnyandeo had an evil-eye on her and he often insisted her to have sex with him. But she did not succumb to his desire and advances. At last, sumanbai took divorce from Namdeo. Victim Punjabai since deceased was daughter of Jagdeo Mate (P.W. 2) of village Lahud. 3. Then accused Namdeo married Punjabai and started living with her. Sulochanbai (P.W. 12), who is sister of Jagdeo Mate (P.W. 2), is married to Rambhau Gaygod (P.W. 3) resident of village Alampur. During her stay with accused Namdeo, Punjabai used to visit Rambhau Gaygod and his wife Sulochanabai and at that time, she disclosed that appellant Dnyandeo was casting evil-eye on her and insisting her to satisfy his sexual lust taking advantage of weaknesses of her husband Namdeo who was lame. It so happened that Jagdeo, when informed about this bad behaviour of appellant, came to Alampur and brought Punjabai to his house. Appellant had gone to the house of Jagdeo to fetch Punjabai, but she refused to go with him. It so happened that Jagdeo, when informed about this bad behaviour of appellant, came to Alampur and brought Punjabai to his house. Appellant had gone to the house of Jagdeo to fetch Punjabai, but she refused to go with him. Then Namdeo had gone to fetch her and Punjabai returned to her matrimonial home with Namdeo on his giving assurance that they would live separate from the appellant. Though she lived with her husband for a short span, there was no change in the attitude and behaviour of the appellant towards her. 4. The incident in question took place on 21-1-1994. That day deceased Punjabai had gone to the field for agricultural work with one Mandabai Tapare (P.W. 7). She returned home at about 4.00 p.m. as she was suffering from body ache. At night around 8.30 p.m., as disclosed by Rambhau Bhagat (P.W. 5), when he was going by road, he heard should and cries from the house of Namdeo and when he went towards that direction and peeped through the door, to this surprise, he saw Punjabai raising cries while the appellant was pressing her neck on sitting her chest. It so happened that appellant noticed witness Rambhau (P.W. 5) and scolded him. 5. At about 9.00 p.m., the appellant went to Dr. Arun Thakare (P.W. 4) and informed that Punjabai was unable to stand. Dr. Thakare accompanied Appellant and examined Punjabai and noticed that she was feeling uneasy as she was not able to breath and that her neck was loose. He advised to remove her to Primary Health Centre, Nandura at once. It was a matter of fact that. She was removed to Nandura in a bullock cart, but she was not taken to P.H.C. hospital. Instead, she was brought to Dr. Vishwas Deshmukh (P.W. 11) who instead of attending her, advised to shift her to the Government hospital, Nandura, But, she was brought to village Alampur without giving treatment at Nandura. It revealed that she had died on the way. 6. On 22-1-1994, the appellant, in the morning, approached Police Patil Ulhas Hatalkar (P.W. 15) to inform him that Punjabai died due to throat pain. Police Patil Ulhas (P.W. 15), on seeing dead body of Punjabai, rushed to the Police Station, Nandura and lodged report (Exh. 67). P.S.O. Nandura and A.P.I. Namdeo Patil (P.W. 16), on the basis of report Exh. On 22-1-1994, the appellant, in the morning, approached Police Patil Ulhas Hatalkar (P.W. 15) to inform him that Punjabai died due to throat pain. Police Patil Ulhas (P.W. 15), on seeing dead body of Punjabai, rushed to the Police Station, Nandura and lodged report (Exh. 67). P.S.O. Nandura and A.P.I. Namdeo Patil (P.W. 16), on the basis of report Exh. 67, registered A.D. No. 3 of 1994. He proceed to village Alampur to inquire into said A.D. He prepared inquest panchanama (Exh. 23) of the dead body of Punjabai and then sent it for post-mortem. He drew spot panchanama (Exh. 24). 7. On the same day, Dr. Keshav Mendhe (P.W. 14), who was then attached to General hospital, Khamgaon, carried out autopsy and prepared post-mortem report (Exh. 65). As noted in it, on external examination, he revealed that the body was cold and well nourished. The rigor mortis were present all over the body. There was P.M. lividity on back and buttock. It was not decomposed. He noticed that face was swollen and congested. Eyes were congested and proclosed. The tongue was inside the mouth. It was swollen. Reddish fluid was oozing from the nostrils. The position of left and right upper limbs was partially flexed at albow. The fingers were partially flexed. He found fracture and dislocation of 3rd and 4th cervical vertebra. It was ante-mortem. In his opinion, the mode of death was asphyxia, the cause of which may be strangulation. He stated that fracture of cervical vertebra with dislocation was sufficient to cause death. 8. On 23-1-1994, Jagdeo Mate lodged complaint (Exh. 49) at Police Station, Nandura alleging that appellant killed Punjabai in his bid to have sex with her when she offered resistance by pressing and twisting her neck. P.S.O. Patil on receiving that complaint, registered offence vide C.R. No. 8/94, under sections 498-A and 302 of the India Penal Code against the appellant who was arrested on 24- 1-1994. During the course of investigation, it was revealed that accused Namdeo and Sumanbai with appellant had conspired to subject Punjabai to cruelty and to giver a false information to police. So accused Namdeo and Sumanbai were arrested on 26-4-1994. P.S.O. Patil also concluded that appellant Dnyandeo had used criminal force to Punjabai with an intention to outrage her modesty and caused her body injury with an intention and knowledge to cause her death. So accused Namdeo and Sumanbai were arrested on 26-4-1994. P.S.O. Patil also concluded that appellant Dnyandeo had used criminal force to Punjabai with an intention to outrage her modesty and caused her body injury with an intention and knowledge to cause her death. As such, on completing investigation, P.S.O. Patil filed charge-sheet against the appellants in the Court of the Judicial Magistrate, First Class, Malkapur for trial for the offence under sections 498-A,. 176, 203, 354, 506(11) and 302 of the India Penal Code. The learned Magistrate, by his order dated 6th May, 1994, committed the case to the Court of Sessions. 9. Before the Additional Session Judge, Khamgaon, the accused persons including the appellant, pleased not guilty to the charge and claimed to be tried. Their defence was of total denial. They have not disputed the findings recorded by Dr. Mendhe in the post-mortem report (Exh. 65) that Punjabai died of asphyxia which may be due to strangulation and that fracture of cervical vertebra was sufficient to cause her death. The prosecution examined in all 16 witnesses including Jagdeo Mate (P.W. 2), Rambhau Gaygod (P.W. 3), Rambhau Bhagat (P.W. 5), Dr. Arun Thakare (P.W. 4), Dr. Vishwas Deshmukh (P.W. 11), Dr. Keshav Mandhe (P.W. 14), Sumanbai (P.W. 6), Sulochanabai, (P.W. 12), Ramesh (P.W. 10) son of Rambhu Bhagat, Ulhas Hatalkar (P.W. 15) and A.P.I. Namdea Patil (P.W. 16), who conducted investigation in the matter. 10. It is not disputed by defence that Punjabai had stayed for three days at the house of Sulochanabai and Rambhau Gaygod and that she was reached to the house of her father Jagdeo and that, she disclosed to her father about behaviour of the appellant and that, she returned to her matrimonial home with her husband Namdeo when he assured her father Jagdeo that he would stay separately from the appellant. It is not disputed that the appellant on 21-4-1994 at 9.00 p.m. had gone to the house of Dr. Arun Thakare (P.W. 4) and told him that Punjabai had motion and she unable to stand. It is admitted that Dr. Thakare advised the appellant to shift Punjabai to the Primary Health Centre, Nandura and she was attended by Dr. Vishwas Deshmukh (P.W. 11). It is admitted that Punjabai was brought back in the same position to her house without admitting her in the Government hospital. It is admitted that Dr. Thakare advised the appellant to shift Punjabai to the Primary Health Centre, Nandura and she was attended by Dr. Vishwas Deshmukh (P.W. 11). It is admitted that Punjabai was brought back in the same position to her house without admitting her in the Government hospital. It is admitted by defence that the appellant on 22-1-1994 went to the house of Police Patil Ulhas Hatalkar (P.W. 12) and reported about death of Punjabai and that the later lodged report in Police Station, Nandura. 11. The learned Additional Session Judge, accepting the evidence of witness Rambhau Bhagat (P.W. 5), who claimed to have witnessed the incident wherein the appellant was pressing the neck of Punjabai by sitting on her chest, as also the medical evidence of Dr. Mendhe, who has opined that the victim Punjabai might have died of asphyxia which might be due to strangulation and that the fracture of cervical vertebra was sufficient to cause death and other circumstantial evidence on the conduct of the appellant through the evidence of witnesses Jagdeo, Sulochanabai, Sumanbai, came to the conclusion that victim Punjabai died homicidal death due to the act of strangulation done by the appellant and that, she was subjected to cruelty and that criminal force was used by the appellant with the intention to outrage her modesty and also that she was put under grave threat. That is how, the appellant was found guilty for the offences under sections 498-A, 354, 506(11) and 203 of the India Penal Code, as also 302 of the Indian Penal Code and he came to be sentenced to suffer rigorous imprisonment for the period of two years on each count, as also imprisonment for life for the offence under section 302 of I.P.S. for committing murder of Punjabai. He was, however, acquitted of the offence punishable under section 176 of the Indian Penal Code. Other two accused Namdeo and Sumanbai to be acquitted for the offence punishable under sections 498-A, 176 and 203 r/w 34 of the Indian Penal Code. As stated earlier, the appellant has preferred this appeal challenging his conviction and sentence. 12. We have heard Mr. Daga, the learned Counsel for the appellant as also Mr. Deshpande, the learned A.P.P. for the State. As stated earlier, the appellant has preferred this appeal challenging his conviction and sentence. 12. We have heard Mr. Daga, the learned Counsel for the appellant as also Mr. Deshpande, the learned A.P.P. for the State. Before we deal with the submissions of the learned Counsel for the parties, it would be appropriate, at the outset, to state few facts about which there is no dispute. The appellant is elder brother of accused Namdeo and deceased Punjabai, who was married to accused Named, though initially lived with the appellant and Namdeo, returned from her fathers house to live separately with her husband. The incident in question which took place on 21st January, 1994, in which the deceased Punjabai died, took place in the house where she was living with her husband Namdeo. That day, at about 9.00 P.M., it was appellant who brought Dr. Thakare (P.W. 4) to his house and he found that she was unconscious and she was feeling uneasy and finding problem in taking breath and that, he notice that her neck was insensitive. He thought that she might have suffered any injury to her neck due to strangulation and therefore, he adviced the appellant to shift her to the Primary Health Centre, Nandura. It is admitted that though Punjabai was brought to Nandura, she was not admitted to the Government hospital, but she was taken to Dr. Deshmukh (P.W. 11) who was a private practitioner who, without attending her, advised that she should be removed to the Government hospital when it was reported to him that she was unconscious. It is a matter of record that though Punjabai died in the night of 21-1-1994, the appellant reported about her death to Police Patil Ulhas (P.W. 15), who immediately reported about Punjabais death to Police Station, Nandura by giving report (Exh. 67) on the basis of which A.P.I. Namdeorao Patil (P.W. 16) registered A.D. No. 3 of 1994. It is a matter of record that it was on 23-1-1994 that witness Jagdeo Mate, father of Punjabai, lodged complaint (Exh. 49) at Police Station, Nandura wherein it was alleged that Punjabai was done to death by the appellant in his bid to have sex with as she offered resistance. It is specifically stated in the complaint (Exh. 49) that the appellant has pressed and twisted her neck. 13. 49) at Police Station, Nandura wherein it was alleged that Punjabai was done to death by the appellant in his bid to have sex with as she offered resistance. It is specifically stated in the complaint (Exh. 49) that the appellant has pressed and twisted her neck. 13. We have already referred to the findings recorded by the Medical Officer Dr. Mandhe, who carried out autopsy on the dead body of Punjabai wherein he has opined that her death might have been due to asphyxia consequent upon strangulation. In his post-mortem report (Exh. 65), he has specifically noted the extra-ordinary appearance of the body in which he prominently noticed that her face was swollen and congested, eyes were congested and proclosed, tongue was inside the mouth and it was swollen and he noticed reddish fluid oozing from her nostrils. The position of left and right upper limb was partially flexed at elbow and fingers were partially flexed. He found fracture and dislocation of 3rd and 4th cervical vertebra which was ante-mortem injury. These findings given by the Medical Officer Dr. Mendhe, as also the opinion as to cause of death given by him have been admitted by defence. It is brought by defence in his evidence that there could be dislocation of cervical vertebra if one gets a jerk to the neck forcibly. It is not the case of defence that Punjabai had fracture and dislocation of cervical vertebra as a result of some accident or by fall. 14. We have gone through the evidence adduced by prosecution with the assistance of the learned Counsel for the appellant. The nature of evidence that was placed in service by the prosecution to substantiate the allegations and accusations against the appellant has been classified by the trial Court under the following heads :- (A) Circumstantial evidence which comprised of evidence of witness Jagdeo (P.W. 2), Rambhau Gaygod (P.W. 3), Sulochanabai (P.W. 12), Sumanbai (P.W. 6) about conduct of the appellant, in particular his behaviour towards women and erstwhile wife of his brother Namdeo namely Sumanbai (P.W. 6) and also victim Punjabai. (B) Ocular evidence comprising of evidence of witness Rambhu Bhagat (P.W. 5) and his son Ramesh. (C) Medical evidence which consists of evidence of Dr. Mandhe, Dr. Thakare and Dr. Deshmukh to establish that death of Punjabai was homicidal one. (B) Ocular evidence comprising of evidence of witness Rambhu Bhagat (P.W. 5) and his son Ramesh. (C) Medical evidence which consists of evidence of Dr. Mandhe, Dr. Thakare and Dr. Deshmukh to establish that death of Punjabai was homicidal one. (D) Circumstantial evidence consists of findings by the Chemical Analyser about detection of human blood as shown in the report of the Chemical Analyser (Exh. 40). 15. The accused has not disputed that the saree, blouse, petticoat and pieces of broken bangles of Punjabai were attached under seizure memo (Exh. 26) during the course of investigation and these articles were referred to the Chemical Analyser with requisition letter (Exh. 72). As per the report of the Chemical Analyser (Exh. 40), human blood has been detected on the saree (Article No. 11) blouse (Article No. 6) and broken pieces of bangles (Article No. 6). The blood stains on the saree were noticed to have washed. The blood stains noticed on the saree and blouse were of "B" group. The blood group of blood of appellant Dnyandeo as indicated in the report of the Chemical Analyser (Exh. 41) is "O". It show that the blood stains on the saree and blouse were of blood of Punjabai and there was an attempt to disappear these blood stains by taking those articles to wash. This very attempt of causing disappearance of evidence of the blood stains is found to be an incriminating circumstance. As it could be seen, the appellant has not given any explanation as regards the finding of blood which appears to be washed on the clothes of the deceased in his examination under section 313 of the Code of Criminal Procedure. It is surprising that his answers to that pertinent question relating to the finding of human blood was, "It is false" 16. As regards the ocular evidence, witness Rambhau Bhagat has claimed in his deposition before the Court that while he was proceeding in the night of 21-1-1994 from the house of accused Namdeo, his attention was attracted on hearing the cries of a lady and when he went towards the house of Namdeo and peeped through the door, to his utter surprise, he saw the appellant having sat on the chest of Punjabai who was lying on the cot and was pressing her neck and Punjabai was silent as she was unable to speak. It has come in his evidence that when the appellant noticed him, he immediately shouted at him and scolded him and threatened him of dire consequences if he would disclose to any one as to what he witnessed. It has come in his evidence that frightened and fiabbergasted as he was, he returned to his house, but did not disclose the incident to any third person in the village. However, when he reached home, seeing his condition frightened as it was, when query was made by his son Ramesh (P.W. 10), he disclosed as to what he saw about the particular atrocious act committed by the appellant with Punjabai. It has also come in his evidence that, in the morning on the next day, appellant had been in front of his house and again, he threatened him with dire consequences if any disclosure is made by him. So, he claimed that he remained silent and did not disclose anything to any one. As stated earlier, the trial Court has accepted his evidence in respect of some omissions and contradictions in his evidence. 17. Mr. Daga, the learned Counsel for he appellant seriously criticized the evidence of witness Rambhau Bhagat, as also claim of prosecution as to this witness as a eye-witness to the incident. It is submitted that this witness in his evidence stated that he disclosed about this incident to Jagdeo (P.W. 2) and Rambhau Gaygod (P.W. 3). It has come in the evidence of witness Jagdeo that amongst persons who attended the funeral of Punjabai were these witnesses Rambhau Bhagat and Rambhau Gaygod. But, none of them, according to witness, Jagdeo, disclosed him at that time that witness Rambhau Bhagat actually saw appellant having sat on the chest of Punjabai and pressed her neck. Mr. Daga also pointed out that it has come in the evidence of witness Jagdeo that when he went to the Police Station to lodge complaint, witness Rambhau Gaygod had accompanied him. Mr. Daga also pointed out that it has come in the evidence of witness Jagdeo that when he went to the Police Station to lodge complaint, witness Rambhau Gaygod had accompanied him. In this context, the learned Counsel drew our attention to the evidence of witness Rambhau Gaygod wherein he has stated that on 22-1-1994 Rambhau Gaygod had told him that when he had gone towards house of Sudhakar, at that time he heard should of a lady and when he rushed to the house of accused Namdeo, at that time he saw accused Namdeo pressing the neck of Punjabai when she was on the cot. Witness Rambhu Gaygod further stated in his evidence that whatever is disclosed to him by Rambhau Bhagat was told by him to Police Patil. Mr. Daga also pointed out from the evidence of witness Rambhau Gaygod that though he had accompanied Jagdeo in the Police Station for making report, he did not inform police of his own that Rambhau Bhagat had witnessed the incident. He did not tell police that Rambhau Bhagat was witness to the incident. He did not insist the Police Patil to insert name of Rambhau Bhagat as an eye-witness. 18. Mr. Daga, the learned Counsel, referring to the complaint (Exh. 49) lodged by witness Jagdeo, pointed out that in the complaint there is not even whisper that the incident was witnessed by witness Rambhau Bhagat. Therefore, the learned Counsel submitted with much emphasis that the claim of witness Rambhau Bhagat that he witnessed the incident falls to the ground. It is submitted that, in the first place, the witness did not disclose about the incident to any one, much leas to the police of his own, though the police were camping in the village right from 22-1-1994 to 24-1-1994. This conduct on the part of witness Rambhau Bhagat is absolutely incongruous, which falsifies his claim to be an eye-witness to the incident. The learned Counsel also pointed out certain admissions given by witness in his cross-examination wherein he has stated that he never entered the house of accused Namdeo. Giving much emphasis on this and particularly his statement that, when he went, the door of the house was closed, it is submitted that the claim by this witness is false. The learned Counsel also pointed out certain admissions given by witness in his cross-examination wherein he has stated that he never entered the house of accused Namdeo. Giving much emphasis on this and particularly his statement that, when he went, the door of the house was closed, it is submitted that the claim by this witness is false. It is also pointed out that witness Rambhau Bhagat is related to witness Rambhau Gaygod who is related to complainant Jagdeo. The Counsel for the appellant submitted that one person Pandurang Pandhari Malthane was cited as an eye-witness to the incident whose statement was recorded by the Magistrate under section 164 of the Code of Criminal Procedure, but prosecution has not examined him and therefore, in the background of this state of evidence of witness Rambhau Bhagat and the fact that he is related to deceased Punjabai, there is every reason to say that this witness Rambhau Bhagat is posed as an eye-witness by prosecution at the behest of witness Jagdeo and Rambhau Gaygod. 19. We have considered the submissions of the learned Counsel for the appellant showing dent in the testimony of witness Rambhau Bhagat on account of infirmities in his testimony. It is nodoubt true that in the complaint (Exh. 49), there is no whisper that the incident was witnessed by Rambhau Bhagat. It is also true that in the nature o things if really Rambhau Bhagat had disclosed to witness Jagdeo and Rambhau Gaygod about the incident, as claimed by witness in his evidence, in all probability in the complaint (Exh. 49) a reference would have been made about it. But, it is clear from the evidence of witness Jagdeo and it is equally reflected in the complaint (Exh. 42) that the neck of Punjabai was pressed and twisted. It is pertinent to note that witness Jagdeo has stated that Rambhau Gaygod and Rambhau Bhagat when attended funeral of his daughter Punjabai, that time there was no talk with him. The learned Counsel for the appellant was not able to point out that at any point of time any disclosure was made or that it was not made known to witness Jagdeo that the neck of Punjabai was pressed and twisted. The learned Counsel for the appellant was not able to point out that at any point of time any disclosure was made or that it was not made known to witness Jagdeo that the neck of Punjabai was pressed and twisted. In addition to that, witness Rambhau Gaygod has claimed in his evidence that when he had gone to the Police Station along with witness Jagdeo for lodging complaint he of his own, did not inform the police that Rambhau Bhagat had witnesses the incident. It is not brought in his cross-examination that he did not disclose about this fact to Jagdeo at the time when the complaint was lodged. In our opinion, the recitals in the complaint (Exh. 49) that the neck of Punjabai was pressed and twisted does indicate that complainant Jagdeo was made known that Punjabai was done to death by pressing and twisting her neck. That appears to be plausible having regard to the claim made by witness Rambhau Bhagat in his evidence that he told about this incident and particularly about the act done by the appellant vis a vis Punjabai to Jagdeo and Rambhau Gaygod. Whatever is claimed by witness Rambhau Bhagat in his evidence has not been specifically controverted. If this is viewed from this angle, the only infirmity that remains is about non-disclosure of name of witness Rambhau Bhagat as a person to have witnessed the incident of throttling in the complaint (Exh. 49). It is needless to say that mere absence of the same is not fatal to prosecution, much less it is sufficient to discredit the testimony of witness Rambhau Bhagat. The admission given by witness Rambhau Bhagat that he never entered the house of accused Namdeo does not bring out any infirmity in his evidence, much less to falsify his claim to have witnessed the incident. It may be true that witness Rambhau might not have actually entered the house by pushing the door, but the fact remains that he was noticed in the light by the appellant and as a consequence of that, he was scolded and driven out by the appellant. 20. It may be true that witness Rambhau might not have actually entered the house by pushing the door, but the fact remains that he was noticed in the light by the appellant and as a consequence of that, he was scolded and driven out by the appellant. 20. It has come in the evidence of Rambhau Bhagat that even on the next day in the morning the appellant had been in front of his house and gave threats to him if that is so, it was plausible that witness Rambhau Bhagat did not disclose about the incident to the police or any one in the village till his statement was recorded. Therefore, the conduct on the part of witness Rambhau Bhagat in remaining stoic and not disclosing about the incident to the third person in the village cannot be said to be unnatural. 21. Prosecution has examined Ramesh, son of witness Rambhau Bhagat (P.W. 10) and in his evidence, he has stated that his father was found frightened when he came home and when inquired, he disclosed him that the incident involving the appellant relating to deceased Punjabai had taken place and it was witnessed by him. It is pertinent to note that witness Rambhau Bhagat has stated in his evidence that when he went home, he disclosed about the incident which he witnessed to his son Ramesh. The evidence of witness Rambhau Bhagat and that of his son on this aspect remained undisturbed though they were subjected to cross-examination by defence. 22. It is true that witness Rambhau Bhagat is related to Punjabai. But, it is difficult to agree with the submission of the learned Counsel for defence on this count that, being interested, the evidence of witness Rambhau Bhagat is rendered unworthy of credit. Much has been said about recording of statement of one Pandurang Pandhari during the course of investigation by the Magistrate and of the fact that prosecution has chosen not to examine him as a witness at the trial. We have verified that this person never claimed to have eye-witnessed the incident. What he claimed is that he saw deceased dying. By no stretch of imagination he could be called as an eye-witness to the incident. We have verified that this person never claimed to have eye-witnessed the incident. What he claimed is that he saw deceased dying. By no stretch of imagination he could be called as an eye-witness to the incident. If that is so, non-examination of this witness by prosecution is not at all fatal to the prosecution nor his non-examination diminishes credibility of evidence of witness Rambhau Bhagat merely because witness Rambhau Bhagat is related to Punjabai. In our assessment of the evidence of witness Rambhau Bhagat independently, as it could be as the Appellate Court, the evidence of witness is credit worthy and we have no hesitation in holding that what the witness has claimed about the incident is truthful. The witness has no reason to give evidence against the accused. Presence of witness Rambhau Bhagat at the place of occurrence, as stated by him, was as natural as it could be as his attention was attracted while he was passing by the road when he heard the shouts and cries of a lady. There is no reason for the witness to falsely implicate the appellant. The trial Court has committed no error in placing implicit reliance on the testimony of witness Rambhau Bhagat. Accepting his evidence, the factual position that emerges out is that at the time of occurrence it was the appellant who has pressed and twisted the neck of Punjabai when she was lying on the cot inside her house. This fact is further strengthened by the fact that it was the appellant who alone noticed that Punjabai was lying motionless and that her neck was insensitive. It was the appellant who admittedly, brought Dr. Thakare to examine Punjabai at about 9.00 p.m. In our opinion, whatever symptoms Dr. Thakare noticed on examining Punjabai, with full force supports the atrocity committed by the appellant on deceased Punjabai. In addition to this, we find involvement of the appellant in commission of this crime implicit because of his conduct of not reporting death of Punjabai to Police Patil immediately at night and also in not taking her to the Government hospital inspite of advise given by the doctors. 23. It has come in the evidence of Police Patil Ulhas that in the morning accused appellant had come to his house and reported that Punjabai had died. 23. It has come in the evidence of Police Patil Ulhas that in the morning accused appellant had come to his house and reported that Punjabai had died. It is significant to note that while making this report about death to Police Patil, the appellant told that Punjabai had died of some throat pains. In the background of clinching ocular testimony of witness Rambhau Bhagat, which we have accepted to be truthful, it has to be said that whatever was reported by appellant as to cause of death of Punjabai to the Police Patil was totally false when it was within his knowledge as to how she died. That is the reason why the appellant himself did not go to the Police Station for reporting death of Punjabai in her house nor he take her to the Government hospital. In our considered opinion, this circumstance lends assurance to credibility of claim of witness Rambhau Bhagat that Punjabai was done to death by appellant by pressing and twisting her neck. The witness has emphatically stated that he saw the appellant having sat on the chest of Punjabai. So, accepting the evidence of witness Rambhau Bhagat, it is crystal clear that Punjabai died as a result of pressing and twisting of her neck. The medical evidence consists of findings recorded by Dr. Mendhe as to probable cause of death of victim Sumanbai, to which reference is already made in earlier part of the judgment, which lends assurance to the claim of witness Rambhau Bhagat in particular regarding pressing and twisting the neck of Punjabai by the appellant. 24. Strangulation is a violent form of death which results from constricting the neck by means of a ligature or by any other means without suspending the body. It is called throttling, when constriction is produced by pressure of the fingers and palms upon the throat. If the wind-pipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible, and may die instantly. If the windpipe is not completely closed, the face becomes cyanosed bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death. If the wind-pipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible, and may die instantly. If the windpipe is not completely closed, the face becomes cyanosed bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death. Death is usually due to asphyxia, but it may be due to other causes, namely, cerebral ischaemia or venous congestion, asphyxia and venous congestion combined, or shock due to reflux cardiac arrest. (It accounts for at least half the deaths from manual strangulation). Very rarely, the cervical vertabrae may be fractured. In such, cases of strangulation, as noticed in Modis Medical Jurisprudence and Toxicology by Modi, probably one or more causes may operate during strangulation. A pale face would indicate a rapid death from reflex cardiac arrest, while a cyanosed face with petechiae would suggest a delayed death. 25. In case of strangulation when the death is due to asphyxia post-mortem appearances are external and internal. The external appearances are due to constricting force applied to the neck and those due to asphyxia. If the fingers are used (throttling), marks of pressure by the thumb and finger tips are usually found on either side of windpipe. However, the marks are some times found cluster together, so that they cannot be distinguished separately. APPEARANCES DUE TO ASPHYXIA: 26. The face is puffy and cyanosed and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Patechiae are seen in the eyelids and the conjunctives. 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 been used. The tongue is often swollen, bruised, protruding and dark in colour, 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 discharge of urine, faeces and seminal fluid. 27. In case of strangulation, Modi found a fracture and dislocation of dislocation of the first and second caevical vertebrae together with the usual cord-mark. 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 discharge of urine, faeces and seminal fluid. 27. In case of strangulation, Modi found a fracture and dislocation of dislocation of the first and second caevical vertebrae together with the usual cord-mark. In addition to these injuries the right humerus the left femur, and the first and second ribs of both the sides were fractured. The fracture dislocation of the spine was either caused by forcibly twisting the neck during the act of strangulation, or by a violent blow with a blunt weapon across the nape of the neck. The lungs are usually congested, showing haemorrhagic patches. The right side of the heart is full of dark fluid blood and the left empty. The right ventricle is found contracted and empty like the left, if the heart had continued to beat after the stoppage of respiration. Sometimes, both the cavities are found full, if the heart stopped during diastole. The brain is also congested. 28. No inference should be drawn simply from a ligature mark, for it may be indistinct or absent, if a soft ligature like silk is used, and may be produced by the application of a ligature to the neck even after death. Similar marks may be produced by a collar or neckband worn loosely round the neck when it compresses the tissues, which are swollen and distended by putrefaction. 29. In the case before hand, there is evidence of Dr. Thakare (P.W. 4) who examined Punjabai at about 9.00 p.m. at her house when the appellant reported him about her insensitive condition. He found that Punjabai was lying in Court yard; she was unconscious; she was feeling uneasy for taking breath; her neck was loose (insensitive). Accepting Dr. Thakares evidence, it is revealed that Punjabai was alive at about 9.00 p.m. when he was examined by Dr. Thakare. In case of death due to dislocation and fracture of cervical vertebrae, the death is instantaneous. Therefore, it is submitted by the learned Counsel for the appellant that the medical evidence does not support the cause of death of Punjabai. We do not find any substance in this submission having regard to the ocular testimony and other evidence on record. In case of death due to dislocation and fracture of cervical vertebrae, the death is instantaneous. Therefore, it is submitted by the learned Counsel for the appellant that the medical evidence does not support the cause of death of Punjabai. We do not find any substance in this submission having regard to the ocular testimony and other evidence on record. We have already pointed out that in case of throttling if the wind pipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible, and may die instantly. If the wind pipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death. It is, therefore, very clear that in case of strangulation by throttling, death is not always instant. It depends upon how the wind pipe is compressed. If it is compressed suddenly so as to occlude the passage of air altogether, the victim is rendered powerless to call for assistance, becomes insensible and may die instantly. On the other hand, if the wind pipe is not completely closed by the act of pressing the neck, the victim may have bleeding from his mouth and nostrils, his face may become cyanosed, his hands would be cleansed and convulsions precede delayed death. In such a situation, death is not instant. 30. In the case before hand, all that we get from the evidence of witness Rambhau Bhagat is that the appellant was pressing the neck of Punjabai while sitting on her chest. As a result of that, she has become insensible in the sense as described by witness. She was unable to speak. It is pertinent to note that while witness was watching the said incident through the door, the appellant saw him and threatened him, as a result of which the latter left the place. Then, during the short span of half an hour Dr. Thakare examined Punjabai and he found her unconscious and insensible. This shows that she was alive. If that is taken into consideration, it goes to show that Punjabai did not die instant death. She must have died some time after she was examined by Dr. Thakare. Then, during the short span of half an hour Dr. Thakare examined Punjabai and he found her unconscious and insensible. This shows that she was alive. If that is taken into consideration, it goes to show that Punjabai did not die instant death. She must have died some time after she was examined by Dr. Thakare. This is possible only on the hypothesis and the fact that because of pressing of neck by the appellant, there was constriction of wind pipe and consequently occludation of passage of air was not complete. If that is so, there is no infirmity in the medical evidence and in particular, as regards the finding and opinion given by Dr. Mendhe as to probable cause of death. It is also to be noted that asphyxia in case of strangulation due to throttling and twisting of neck may result in dislocation and fracture of cervical vertebrae as has happened in the case at hand. Dr. Mendhe has stated in his evidence that fracture and dislocation of cervical vertebrae was sufficient to cause death. It goes without saying that there must have been dislocation and fracture of cervical vertebrae in the case before hand as a result of pressing and twisting of the neck. 31. We now consider the circumstantial evidence relating to conduct of the appellant. Conduct of the appellant is relevant in the instant case as it implicitly suggests the motive on the part of the appellant for committing murder of the victim Punjabai. Witness Jagdeo as also Sulochanabai and Rambhau Gaygod have stated in their evidence about behaviour of the appellant towards Punjabai after she started residing in the matrimonial home with her husband. It was but natural for Punjabai to go to the house of witness Rambhau Gaygod and his wife Sulochanabai who are staying in the same village Alampur and were related to her. The relation was not distant. Sulochanabai happened to be sister of Jagdeo. It has come in the evidence that whenever Punjabai experienced perverted behaviour of the appellant vis a vis her, including his advances expressing his desire to have her for consumation, she brought to the notice of Sulochanabai and her husband Rambhau Gaygod who, in turn, called Jagdeo to whom Punjabai disclosed it and returned to her parental house leaving her matrimonial home. This factual position is brought in the evidence of these witnesses and what is surprising is that their evidence on this count has remained undisturbed, though they were cross-examined by defence. There is no reason to discard their evidence in that regard. It is admitted by the appellant that Punjabai had gone to her fathers house and that it was accused Namdeo who brought her to the matrimonial home when assurance was given that Namdeo would live separately from his brother namely appellant. The appellant has admitted in his examination under section 313 of the Code of Criminal Procedure that Namdeo and Punjabai started living separately. Therefore, from the evidence of these witnesses, we certainly get the glimpse of perverted attitude and behaviour of the appellant. 32. That is further strengthened through the evidence of witness Sumanbai (P.W. 6). She claimed in her evidence that she was married to accused Namdeo and stayed with him for four months. According to her, while she was living with Namdeo, once Punjabai, third wife of the appellant had gone to her parental house and she was alone in the house and that, while seeing her alone, the appellant told her to behave with him as desired by him to satisfy his needs. She clarified further by saying that the appellant wanted her to allow him to have sex with him like his wife. But, she immediately disclosed about this incident to one Pralhad Nemade who reached her to her fathers house and then, when she returned to her matrimonial home, the appellant behaved properly for about 15 days. But, one day, while she was doing work in the field, the appellant came there and asked her to submit to his desires. She also stated that the appellant threatened her with dire consequences and then caught hold her by her arms and dragged her towards the well. But, she got herself released and ran from there. Thereafter, message was given to her father who came and brought her from the matrimonial home and then, she sought divorce. This evidence of witness Sumanbai inspires confidence. In fact, there is no cross-examination to the witness on material particulars. A very strange suggestion has been given to her denying the factum of marriage of witness with the appellants brother. The witness has strongly and stoutly denied that suggestion. This evidence of witness Sumanbai inspires confidence. In fact, there is no cross-examination to the witness on material particulars. A very strange suggestion has been given to her denying the factum of marriage of witness with the appellants brother. The witness has strongly and stoutly denied that suggestion. Basically, according to us, the suggestion was baseless as it could be. In the nature of things, a strange woman like Sumanbai, who has now married after she sought divorce, had no reason to come to the Court to give evidence claiming that she was married to accused Namdeo to show that the appellant, brother of Namdeo, was a man of bad virtues having perverted attitude towards her. It is very difficult to swallow even the suggestion in the background of the fact that it is not possible for a woman, who has married, to come to the Court to give evidence only for the sake of supporting the prosecution in respect of homicidal death of Punjabai when this witness was nowhere related to her. Therefore, we have no hesitation in accepting her evidence. The trial Court has rightly accepted her evidence. It goes without saying that once her evidence is accepted, it makes clear that the perverted attitude of the appellant, his conduct and behaviour vis a vis the wife of his brother Namdeo is clinchingly established. 33. In our considered opinion, this evidence of witness Sumanbai lends assurance to what witnesses Jagdeo, Sulochanabai and Rambhau Gaygod claimed about conduct and behaviour of the appellant vis a vis Punjabai. If that is so, it is clinching that the appellant had a very strong motive to commit the crime. He desired that Punjabai should succumb to his lust for sex and he could dare to express it taking advantage of the fact that he was elder brother of accused Namdeo and accused Namdeo was physically handicap. As a consequence of this clinching finding as to the conduct and behaviour of the appellant, the claim of witness Rambhau Bhagat that the appellant was pressing and twisting the neck of Punjabai by sitting on her chest becomes plausible and probable. It goes to show that, initially, the appellant must have tried to have Punjabai for satisfying his lust. As a consequence of this clinching finding as to the conduct and behaviour of the appellant, the claim of witness Rambhau Bhagat that the appellant was pressing and twisting the neck of Punjabai by sitting on her chest becomes plausible and probable. It goes to show that, initially, the appellant must have tried to have Punjabai for satisfying his lust. But then when there was resistance by her, the appellant decided to apprehend her by using physical force and in that process, he apprehended her by sitting on her chest when she was lying on the cot and then pressed and twisted her neck. But ultimately, the appellant did not succeed and his atrocious act of using physical force by pressing and twisting neck has resulted into death of Punjabi. That is how, the appellant is responsible and accountable for homicidal death of Punjabai. Prosecution has established beyond reasonable doubt that the appellant committed murder of Punjabai. The trial Court had committed no error in holding him guilty for the offence under section 302 of the Indian Penal Code. 34. The trial Court has also found him guilty of the offence under section 354 of the Indian Penal Code. Considering the evidence on record and having regard to the conduct and behaviour of the appellant and when the motive of the appellant was found to be his desire to have Punjabi for sexual pressure, it is abundantly clear that, the advances by the appellant in the past and also at the time of occurrence and using of criminal force was with the intention to outrage her modesty. Even his act of sitting on her chest was itself sufficient to hold that his intention was to outrage her modesty. Therefore, his conviction for the offence under section 354 of the Indian Penal Code is correct. 35. The trial Court has found the appellant guilty for the offence under section 498-A of the Indian Penal Code. It is nodoubt true that the conduct and behaviour of the appellant including the act which he did at the time of occurrence does reflect causing cruelty to the victim Punjabai. But, that by itself is not sufficient to hold him guilty for the offence under section 498-A of the Indian Penal Code. It is nodoubt true that the conduct and behaviour of the appellant including the act which he did at the time of occurrence does reflect causing cruelty to the victim Punjabai. But, that by itself is not sufficient to hold him guilty for the offence under section 498-A of the Indian Penal Code. In our opinion, what is contemplated and required for the offence under section 498-A of the Indian Penal Code is cruelty which means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand of any property or valuable security or is on account of failure by her or any person related to her to meet such demand. In the case before hand, it is crystal clear that the object and motive on the part of the appellant in committing assault on Punjabi was to have her for sex. It is not the case of prosecution that victim Punjabai was subjected to cruelty to meet any unlawful demand of property or valuable security or was on account of failure by her or any person related to her to meet such demand. As a consequence of physical force caused by appellant Punjabai by doing the act of pressing and twisting her neck which resulted in her death which was found to be homicidal one, the appellant is already found guilty for the offence under section 302 of the Indian Penal Code. Therefore, for this reason again the appellant cannot be found guilty and convicted for the offence under section 498-A of the Indian Penal Code. 36. The appellant was also found guilty for the offence under section 506(II) of the Indian Penal Code. The reasoning given by the trial Court for holding him guilty for this offence was that Punjabai was constantly put under threat and apprehension to cause grave injury or danger to her life. In our opinion, even conviction for the offence under section 506 of the Indian Penal Code cannot stand when the appellant is found guilty for the offence under section 302 of the Indian Penal Code. 37. The appellant is also found guilty for the offence under section 203 of the Indian Penal Code. In our opinion, even conviction for the offence under section 506 of the Indian Penal Code cannot stand when the appellant is found guilty for the offence under section 302 of the Indian Penal Code. 37. The appellant is also found guilty for the offence under section 203 of the Indian Penal Code. Taking into consideration the fact that the appellant being the author of the crime of committing murder of Punjabai, gave false information to Police Patil Ulhas Matalkar when reported her death telling that she died due to pains in throat, he has committed the offence under section 203 of the Indian Penal Code. The trial Court has rightly found him guilty for the offence under section 203 of the Indian Penal. 38. In the result, the appeal is partly allowed. The conviction and sentence of the appellant for the offences under sections 498-A and 506-II of the Indian Penal Code is set aside and the appellant is acquitted of the offences under sections 498-A and 506-II of the Indian Penal Code. However, his conviction and sentence for the offences under sections 320, 354 and 203 is maintained by dismissing the appeal to that extent. Appeal partly allowed. -----