JUDGMENT - MARLAPALLE B.H., J.:—This appeal arises from an order of conviction and sentence passed by the learned Additional Sessions Judge, Aurangabad, in Sessions Case No. 316/1996, against the appellant-original accused No. 1 for offences punishable under sections 498-A and 302 of the Indian Penal Code (the Code, for short). The appellant accused has been sentenced to suffer R.I. for life and to pay a fine of Rs. 300/-, in default, to suffer R.I. for three months, for the offence punishable under section 302 of the Code, whereas, he has been sentenced to suffer R.I. for three years and to pay a fine of Rs. 200/-, in default, to suffer R.I. for a month, for the offence punishable under section 498-A of the Code. 2.The prosecution story unfolds thus: The accused was married to the deceased Shobha about six years prior to the date of the incidence i.e. 29-5-1996. His parents were staying in village Gadhe Pimpalgaon, whereas, he, with his wife Shobha, was staying in a cattle shed, little away from the said village. The deceased was in her 3rd pregnancy and she was staying with the accused on 29-5-1996, in the said cattle shed. About 5 to 5.30 a.m., on the next day, the accused went to Santosh Pawar (P.W. 4), who was staying in a neighbouring cattle shed, and woke him up, informing that Shobha was lying unconscious and sought his help to shift her to the hospital. Santosh Pawar (P.W. 4), therefore, came to the house of the accused and saw that Shobha was lying on the floor and in addition to the accused, his mother Smt. Anusayabai was also present at the spot. All three lifted Shobha, put her in a bullock-cart and took her to the Primary Health Centre in the same village. Shobha was attended by Dr. Pandurang Singankar (P.W. 3) at about 6. a.m. He informed the accused, on examination of Shobha, that she was already dead and thus, a dead body was brought to the hospital. The accused, therefore, took the dead body to his house in the very same bullock-cart. Kashinath, father of the accused, went to the Police Patil at about 7 a.m. and informed him about the death of Shobha. On the basis of a report (Exh. 17) made by the Police Patil, AD No. 8/1996 came to be recorded with the Police Station at Virgaon. Kashinath, father of the accused, went to the Police Patil at about 7 a.m. and informed him about the death of Shobha. On the basis of a report (Exh. 17) made by the Police Patil, AD No. 8/1996 came to be recorded with the Police Station at Virgaon. Anant Gulabrao Salunke, PSI (P.W. 6) visited the spot and made spot and inquest panchanamas, Exh. 9 and 10, respectively. The dead body was sent to the Primary Health Centre at Vaijapur for post-mortem. Dr. Govind Narware (P.W. 5) conducted the post-mortem and signed the PM notes (Exh. 22). He opined that cause of death was cardiorespiratory failure due to throttling. The post-mortem was conducted between 5.15 p.m. to 6.30 p.m. on 30-5-1996. The dead body was handed over to the accused. The funeral rites were completed in presence of the parents of the deceased. On 31-5-1996, the IO recorded the statements of Ramdas (P.W. 1), father of the deceased, Pandit (P.W. 2), uncle of the deceased and Santosh Pawar (P.W. 4), the neighbour. Ramdas (P.W. 1) lodged his complaint (Exh. 12), which came to be registered as a F.I.R. (Crime No. I-35/96) for the offences punishable under sections 498-A, 302 r/w. 32 of Code. The accused came to be arrested on 31-5-1996 and 3-6-1996. On receiving the PM notes (Exh. 22), and on completion of the investigation, the charge-sheet was submitted before the learned J.M.F.C., Vaijapur. As the case was triable exclusively by a Sessions Court, it was committed by an order dated 29-10-1996 and charge (Exh. 3) was framed on 19-6-1999 by the learned Additional Sessions Judge, Aurangabad. 3.The medical evidence, as came through Dr. Pandurang (P.W. 3) clearly disclosed that on 30-5-1996, the accused-Balasaheb and his parents had taken Shobha by a bullock-cart to the Primary Health Centre for treatment, the said Doctor examined her and found that she was already dead. Dr. Govind (P.W. 5), who performed post-mortem on the dead body of Shobha, stated before the trial Court that on examination of the dead body, he found the following external injuries:- (i) Abrasion on both forearms. On right forearm, the size of abrasion was 6 x 3 cm 5 x 3 cm and on left forearm, 6 x 3 cm and 7 x 4 cm. (ii) Abrasion on heels of both legs. On right forearm, the size of abrasion was 6 x 3 cm 5 x 3 cm and on left forearm, 6 x 3 cm and 7 x 4 cm. (ii) Abrasion on heels of both legs. (iii) Multiple abrasions and contusions on throat and the size of contusion was 7 x 5 cm. and 5 x 3 cm. The size of abrasion was 2 x 2 cm 3 x 2 cm and 4 x 4 cm. 6 x 3 cm. (iv) CLW on right mandibulate region of size 6 x 5 x 0.5 cm. (v) Contusion on scalp at occipital region of size 6 x 3 cm. (vi) Abrasion on back of size 6 x 4 cm and 7 x 3 cm. Dr. Govind (P.W. 5) stated that all these injuries were ante mortem and within 24 hours. On internal examination, he noticed the following injuries. (i) Contusion on scalp occipital region of size 6 x 3 cm. (ii) Fracture of occipital bone of size 6 cm. long and longitudinal in direction. (iii) 300 cc. of semi liquid blood was found in cranial cavity (extradural space). (vi) Fracture of cricoid bone and tracheal catriledge at many places. (vii) Lungs were blackened and pale. (viii) There was distension of large and small intestine. Dr. Govind (P.W. 5) opined that cause of death was cardiorespiratory failure due to throttling. He also stated that both the eyes were closed. He also stated that tongue was inside the mouth and blood stained fluid was oozing from the mouth. The injuries found on the dead body were signs of struggle. Ligature marks were not found on the neck and therefore, the doctor ruled out the possibility of use of ligature. Considering the injuries found on the dead body, he stated that there might be compression of the neck by fingers and the contusion of scalp and fracture of the occipital bone were possible, if the head was dashed on the ground while asleep. The doctor confirmed that Shobha died a homicidal death and injuries found were sufficient to cause death in the ordinary course of nature. He found that Shobha was pregnant of 20 weeks. 4.Shobha died a homicidal death is not disputed by the defence. The defence claimed that her parents had caused delay in cremating the dead body on the demand of Rs. He found that Shobha was pregnant of 20 weeks. 4.Shobha died a homicidal death is not disputed by the defence. The defence claimed that her parents had caused delay in cremating the dead body on the demand of Rs. 51,000/- and as the same demand was not met by the accused, they proceeded to file a false complaint implicating the accused. Along with the present appellant, his parents were also implicated as accused Nos. 2 and 3 and the trial Court has acquitted them of all the charges. There is no appeal from the State against the order of acquittal so far as accused Nos. 2 and 3 are concerned. We are, therefore, required to consider whether the order of conviction and sentence, as recorded by the trial Court, against the present accused is supported by evidence on record. 5.Admittedly, there is no ocular evidence in this case. The prosecution case is entirely based on circumstantial evidence and the medical evidence. 6.Shri Joydeep Chatterji, the learned Counsel for the appellant, submitted before us that there was no cogent and reliable evidence to hold that the accused was in the company of his wife in the night of 29-5-1996 in the cattle shed, though it is established that at about 5 to 5.30 a.m. on 30-5-1996, he had gone to Santosh Pawar (P.W. 4) and woke him up seeking his help to take Shobha to the hospital for treatment. The last seen theory, as relied upon by the Court below, on the basis of evidence of Santosh Pawar (P.W. 4) has not been proved, as per Shri Chatterji. He relied upon the following decisions in support of his contention that the evidence of the prosecution failed to prove beyond reasonable doubt its case that the present accused was the author of Shobhas murder. He argued that mere suspicion whatsoever strong cannot be accepted to support the prosecution case, unless the prosecution has proved its case beyond reasonable doubt. (1) (Sarwan Singh Rattan Singh v. State of Punjab)1, A.I.R. 1957 S.C. 637. (2) (Gambhir v. State of Maharashtra)2, 1982(2) Bom.C.R. (S.C.)471. (3) (Prabhakar Jasappa Kanguni v. State of Maharashtra)3, 1982(2) Bom.C.R. 393 . (4) (Jaharlal Das v. State of Orissa)4, A.I.R. 1991 S.C. 1388. (5) (Arvind Singh v. State of Bihar)5, A.I.R. 2001 S.C. 1224. (6) (Bodh Raj v. State of J K)6, A.I.R. 2002 S.C. 3164. (2) (Gambhir v. State of Maharashtra)2, 1982(2) Bom.C.R. (S.C.)471. (3) (Prabhakar Jasappa Kanguni v. State of Maharashtra)3, 1982(2) Bom.C.R. 393 . (4) (Jaharlal Das v. State of Orissa)4, A.I.R. 1991 S.C. 1388. (5) (Arvind Singh v. State of Bihar)5, A.I.R. 2001 S.C. 1224. (6) (Bodh Raj v. State of J K)6, A.I.R. 2002 S.C. 3164. In the case of Bodh Raj (supra), regarding the last seen theory, their Lordships observed thus: "The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused begin the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of a guilt of those case." We may also reproduce the following observations in the case of Arvind Singh (supra): "It is undoubtedly a social and heinous crime to have the wife burnt to death but without any proper and reliable evidence, the law Court cannot by itself also justify its conclusion in the matter of involvement of the husband. Direct evidence may not be available but circumstantial evidence with reasonable probity and without a snap in the chain of events would certainly tantamount to a definite evidence about the involvement but not otherwise." In the case of (Hanmant v. State of M.P.)7, A.I.R. 1952 S.C. 343, the Apex Court dealt with the case of circumstantial evidence and recorded its opinion in the following words : "In dealing with circumstantial evidence there is always the danger that conjuncture or suspicion may take the place of legal proof. It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." In the backdrop of these enunciations, we proceed to examine the prosecution case before us. 7.It has come in the evidence of Santosh (P.W. 4) that he was woken up between 5 to 5.30 a.m. on 30-5-1996 by the accused, seeking his help to take the deceased to the hospital for medical treatment. The accused, in his statement recorded under section 313 of Cri.P.C., has admitted this and also, the assistance rendered by Santosh Pawar (P.W. 4). Dr. Pandurang (P.W. 3) examined Shobha at 6. a.m. and informed the accused that she was already dead. Santosh Pawar (P.W. 4) had reached his cattle shed in the neighbourhood of the cattle shed of the accused at about 11 p.m. on 29-5-1996 and did not hear any commotion and/or noise coming from the cattle shed of the accused. Thus, these circumstances indicated that Shobha died sometimes between 11 p.m. on 29-5-1996 to 6 a.m. on 30-5-1996. 8.The accused pleaded innocence in the homicidial death of his wife and this innocence has been falsified by the spot Panchanama (Exh. 9) which has been admitted by the defence before the trial Court. The spot of offence was pointed out by him to the witnesses and the IO and he stated that in the night of 29-5-1996, he and his wife had slept at the same place i.e. place of incident. Broken bangles were seized from the spot of incident. This admission may not be, in the strict sense, an evidence against the accused, but certainly this is an additional circumstance which cannot be ignored. Broken bangles were seized from the spot of incident. This admission may not be, in the strict sense, an evidence against the accused, but certainly this is an additional circumstance which cannot be ignored. Before the trial Court the accused had adopted the plea of mere denial and he had not pleaded an alibi. These circumstances, coupled with the evidence of Santosh Pawar (P.W. 4), has proved that the accused-husband was in the company of deceased Shobha in the earlier night and Shobha died while she was in the company of the accused. At the spot there was a steel cot and some clothes were spread on it. About 2 ft. away from the said cot, broken bangle pieces were lying on the floor. The deceased had received bleeding injury on her head, fracture of the occipital bone and other injuries, as noticed by Dr. Govind Narwane (P.W. 5), which indicate that she had struggled when she was being strangulated. 9.Once it is accepted that the accused was in the company of the deceased Shobha on the night of 29-5-1996 and till he sought the assistance of Santosh Pawar (P.W. 4) and taken her to the Primary Health Centre at about 6 a.m., the burden of explaining his special knowledge regarding the incident squarely fell on him, in view of scheme of section 106 of the Evidence Act. He could not discharge the same burden. Though his mother was present at the spot, when Santosh Pawar (P.W. 4) had reached the spot in the few hours of 30-5-1996, the trial Court has ruled out her involvement in causing the death of Shobha. Even the complainant had accepted that the parents of the present accused were staying separately and therefore, it is possible that the accused called his mother for help before he approached Santosh Pawar (P.W. 4). We, therefore, do not find any infirmity in the order of conviction recorded by the trial Court for the offence punishable under section 302 of the Code against the present appellant accused. In this regard, we may usefully refer to the decision in the case of (Balram Prasad Agarwal v. State of Bihar)8, A.I.R. 1997 S.C. 1830. We, therefore, do not find any infirmity in the order of conviction recorded by the trial Court for the offence punishable under section 302 of the Code against the present appellant accused. In this regard, we may usefully refer to the decision in the case of (Balram Prasad Agarwal v. State of Bihar)8, A.I.R. 1997 S.C. 1830. 10.Now coming to the offence punishable under section 498-A of the Code, we have noticed that the finding of the trial Court in this regard is based on the evidence of Ramdas (P.W. 1) and his brother Pandit (P.W. 2). Their testimony read together may indicate the motive of the accused in doing away with his wife, but the complaints of harassment, beating, etc., as described by these witnesses and alleged to have been heard through Shobha, do not make out a specific case of cruelty as defined under section 498-A, Explanation (b) of the Code, and as death of Shobha is a homicidal, Clause (a) to the explanation of section 498-A of the Code will not be applicable. The evidence indicated that the accused did not like Shobha as she was dark and this strong dislike could be a motive to get rid of her. We, therefore, do not find ourselves in agreement with the view taken by the learned Additional Sessions Judge in holding that the offence punishable under section 498-A of the Code was proved by the prosecution against the appellant and we say so on due consideration of the deposition of Ramdas (P.W. 1) and Pandit (P.W. 2). The order of conviction and sentence under section 498-A of the Code is, thus, unsustainable. 11.In the result, we allow this appeal partly and quash and set aside the order of conviction and sentence for the offence punishable under section 498-A of the Code as passed by the learned Additional Sessions Judge, Aurangabad, in Sessions Case No. 316/1996 against the appellant and he is, thus, acquitted of the said offence. The order of conviction and sentence for the offence punishable under section 302 of the Code, as passed by the learned Additional Sessions Judge, Aurangabad, in Sessions Case No. 316/1996 against the appellant, is hereby confirmed. Appeal partly allowed. -----