Judgment R. S. MOHITE,J. ( 1 ) THIS is an appeal, filed by the appellant Hanuman s/o Kisanrao kadam (hereinafter referred to as accused no. 1), impugning the judgment and order passed by the Sessions Judge, Parbhani on 25th February, 2000, in Sessions Trial No. 147 of 1999. By the impugned judgment and order, the trial Court convicted accused no. 1 Hanuman for offences punishable under section 302 and section 498-A of the indian Penal Code. For the offence under section 302 of Indian Penal Code, the trial court sentenced him to suffer life imprisonment and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for two months. For the offence under section 498-A of Indian Penal Code, the accused No. 1 was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 200/-, in default to suffer further rigorous imprisonment for a period of one month. It was directed that both the substantive sentences, imposed upon accused No. 1, should run concurrently. The trial Court acquitted the original accused nos. 2, 3 and 4 of all the offences for which they were charged. ( 2 ) THE brief facts of the prosecution case were as follows : (a) The deceased Savitribai was married to accused No. 1 Hanuman prior to seven years from the date of the incident which occurred on 13th April, 1999. Accused No. 1 Hanuman is son of original accused No. 4 sarubai. Original accused No. 2 Maroti is the brother of Sarubai. It is the prosecution case that Hanuman was having an illicit relationship with original accused No. 3 Indumati. After her marriage, the deceased Savitribai came to reside in the house of accused No. Hanuman at village brahmangaon, Taluka Basmath, District parbhani. Initially she was treated well for a period of four years but thereafter all the accused started ill-treating her on the ground that she was not begetting a child. Savitribai used to inform about the ill-treatment being meted out to her, to her relatives and others. (b) On 13th April, 1999 at about 11. 00 a. m. , P. W. 1 Ambadas Chavan, who was also a resident of village Brahmangaon, was returning to his house from his land. When he reached the land of accused No. 1 hanuman, he heard somebody shouting "save me, save me". (b) On 13th April, 1999 at about 11. 00 a. m. , P. W. 1 Ambadas Chavan, who was also a resident of village Brahmangaon, was returning to his house from his land. When he reached the land of accused No. 1 hanuman, he heard somebody shouting "save me, save me". The shouts were coming from the land of accused No. 1 and, therefore, he rushed towards the said land. On reaching the said land, he saw accused nos. 1 to 4 assaulting Savitribai. He saw accused No. 1 Hanuman assaulting her with a wooden rod of a Charpai. Accused No. 2 was assaulting her with a stick, whole accused Nos. 3 and 4 were holding her hands. P. W. 1 Ambadas Chavan attempted to rescue Savitribai but accused No. 1 threatened him and asked him to leave the place. The witness then went and stood at a distance of about 200 feet away from that place and he saw all the accused flee from the spot. He saw Savitribai lying dead on the spot. This witness then returned home and from there he went to attend a "bhandara" in village Hatta, it is admitted position that on this day as well as on the next day ie. on 14th april, 1999 P. W. 1 Ambadas Chavan did not disclose what he had seen in the field on accused No. 1, to any one, and made a disclosure for the first time when his statement was recorded by the police on 14th April, 1999. (c) The brother of Savitribai P. W. 2 Vijay was working in a shop. At 07. 00 p. m. on 13th April, 1999, a person came to him in a jeep and told him that his sister had been killed and that he was required at village brahmangaon. As the said person, who gave the information was not known to Vijay, vijay did not immediately go to brahmangaon. On 14th April, 1999 he went to his village and there he came to know that Savitribai had been killed. He then immediately proceeded to Hatta Police Station to lodge a complaint. (d) The complaint filed by Vijay was reduced to writing by P. W. 7 A. P. I. Visheshwar nandedkar. After registering the crime vide c. R. No. 41 of 1999 under sections 302 and 498-A of Indian Penal Code, the Investigation Officer commenced the investigation. He then immediately proceeded to Hatta Police Station to lodge a complaint. (d) The complaint filed by Vijay was reduced to writing by P. W. 7 A. P. I. Visheshwar nandedkar. After registering the crime vide c. R. No. 41 of 1999 under sections 302 and 498-A of Indian Penal Code, the Investigation Officer commenced the investigation. He first visited the scene of the offence and saw the dead body of Savitribai lying there. He prepared the inquest Panchanama (Exhibit 15) and the spot Panchanama (Exhibit 24 ). At the scene of the offence, he collected the pair of Chappals, a plastic bag, a necklace, a piece of sari and seized them under a Panchanama. He also collected blood stained earth from the scene of offence and simple earth from the said spot. He also attached one iron basket, an aluminium pot, a steel pot, steel bowl and a white cloth piece, from the scene of offence. On the same day, he recorded the statements of nine witnesses, including P. W. 1 Ambadas, who was an eye-witness, and P. W. 4 waman. On 15th April, 1999, the Investigating Officer arrested accused No. 3 indumati and accused No. 4 Saraswatibai. On 16th April, 1999, the Investigating Officer recorded the statements of several witnesses, including P. W. 5 Subhash. On 19th april, 1999, accused No. 1 Hanuman, while in custody, made a statement that he had conciled an wooden rod in his plot and he would produce the same. Accordingly, the investigating Officer prepared the memorandum of his statement in the presence of panchas and then accused No. 1 Hanuman led the Investigating Officer and the Panchas to his plot and produced a wooden rod which was attached under Panchanama (Exhibit 29-A ). Within a short time, he handed over the investigation to P. S. I. Nilawar and on 10th May, 1999, P. S. I. Nilawar sent the muddemal articles to the Chemical Analyser. In due course, he received six reports from the Chemical Analyser and after receiving the reports, he filed the charge-sheet in the Court of the Judicial Magistrate, First class, Basmath. ( 3 ) IN due course, the case was committed to the Court of Sessions and after the charge was framed, the trial of the accused commenced. In order to prove its case, the prosecution examined P. W. 1 Ambadas chavan as its sole eye-witnesses. ( 3 ) IN due course, the case was committed to the Court of Sessions and after the charge was framed, the trial of the accused commenced. In order to prove its case, the prosecution examined P. W. 1 Ambadas chavan as its sole eye-witnesses. P. W. 2 vijay, P. W. 4 Waman and P. W. 5 Subhash were examined as witnesses to prove the motive for the commission of the crime. P. W. 3 Dr. Satish Tak was examined to prove the post-mortem notes and the injuries found on the person of deceased Savitribai. P. W. 6 Rama Kirtane was examined as the panch, before whom the statement made by accused No. 1, was recorded. The prosecution lastly examined P. W. 7 A. S. I. Visheshwar Nandedkar who was an Investigating Officer in the case. ( 4 ) THE accused did not lead any defence evidence. After recording the statement of the accused under section 313 of Criminal procedure Code and after considering all the ocular and documentary evidence, produced by the prosecution, and other material on record, the trial Court passed the impugned judgment and order and against the same, the present appeal has been filed. ( 5 ) ON behalf of the defence, it was contended that the evidence of the sole eyewitness P. W. 1 Ambadas Chavan ought not to have been believed by the trial Court. It was pointed out that firstly Ambadas chavan was a witness who had not disclosed what he had seen, to any person, on the date of the incident i. e. on 13th April, 1999 as well as on the next day i. e. 14th april, 1999 when, according to him, his statement was recorded by the police. Apart from this, P. W. 1 Ambadas Chavan had shown a tendency to involve more accused and had attributed acts to accused Nos. 2, 3 and 4, which were in the nature of material improvements that, there material improvement in the evidence of P. W. 1 ambadas were the basis on which accused nos. 2, 3 and 4 have been acquitted by the trial Court. 2, 3 and 4, which were in the nature of material improvements that, there material improvement in the evidence of P. W. 1 ambadas were the basis on which accused nos. 2, 3 and 4 have been acquitted by the trial Court. It was pointed out that the version given by P. W. 1 Ambadas Chavan did not find any corroboration in the medical evidence and, in fact the medical evidence indicated that the death was due to strangulation which ran completely contrary to the story given by P. W. 1 Ambadas. As regards the alleged recovery, it was argued that the Panch witness P. W. 6 Rama Kirtane had categorically admitted in his cross-examination that before the recording of the memorandum statement, he was told by the p. S. I, that the accused would produce an wooden rod. This statement alone rendered the discovery evidence unbelievable. That, p. W. 1 Ambadas Chavan claimed to have been present on the spot from the time he heard the deceased shouting for help till the accused filed from the place and if indeed the accused had strangulated savitribai, during this period, Ambadas would not have failed to notice the same. It was argued that, in the circumstances, the appeal ought to be allowed. ( 6 ) ON behalf of the prosecution, the a. P. P. supported the reasoning given by the trial Court. It was argued that there was a possibility that Savitribai might have bee strangulated prior to arrival of P. W. 1 chavan. It was argued that P. W. 1 Ambadas chavan had no reason for deposing falsely. It was contended that he had not made an early disclosure because he had been to village Hatta to attend "bhandara" and on this ground of non-disclosure alone his evidence ought not to be discarded. ( 7 ) WE have heard both sides, at length and perused the record. In our view, the benefit of doubt will have to be given to accused No. 1 Hanuman and his appeal will have to be allowed, for the following reasons, (a) As regards the evidence of the sole eye-witness Ambadas Chavan, we find that he has been disbelieved by the trial Court in so far as accused Nos. 2, 3 and 4 are concerned. He was so disbelieved because none of the overt acts attributed by him to accused Nos. 2, 3 and 4 are concerned. He was so disbelieved because none of the overt acts attributed by him to accused Nos. 2, 3 and 4 in his substantive evidence, could be found in his police statement. These omissions, amounting to material contradictions, were brought on record by the defence. Once it is found that ambadas Chavan was a witness who was willing to make improvements to involve accused Nos. 2, 3 and 4, the need arose to treat his evidence with extreme caution. We find that in his version, Ambadas Chavan has talked about accused No. 1 beating the deceased with wooden rod of a Charpai The injuries found on the person of deceased savitribai, at the time of post-mortem were as follows : " 1. Abraded contusion above the thyroid cartilage extending from lateral border of sternmocledo mastoid muscle, (Rt) side to (Lt) side 5 inch x inch. 2. Scratch mark, over the upper abdomen above umblicus (7) in number, extending above downwards. 3. Abrasion on inner side of (Lt) thigh-3 inches x 2 inches. " (b) According to the evidence of P. W. 3 dr. Satish Tak the fatal wound was external Injury No. 1, as stated hereinabove, and the cause of death, as given by him was "vagal inhibition and venous constriction due to strangulation over the neck". P. W. 1 ambadas Chavan states in his evidence that he went to the field of accused No. 1 on hearing the cries of Savitribai, for help. Thereafter, he claims to be on the spot till the accused, after beating the deceased, left the scene of the offence. This witness does not speak a word about any of the accused strangulating Savitribai. We find it difficult to believe that a ligature like injury on the neck could be caused by the wooden pole of a Charpai (article 15 ). For obvious reasons, the prosecution did not even ask a question about the possibility of any of the injuries being caused by the wooden pole during the examination-in-chief of P. W. 3 Dr. Satish Tak. If indeed P. W. 1 Ambadas chavan was an eye-witnesses, his natural conduct would have been to make a disclosure of what he had seen at the village either on 13th April, 1999 or on 14th April, 1999. Satish Tak. If indeed P. W. 1 Ambadas chavan was an eye-witnesses, his natural conduct would have been to make a disclosure of what he had seen at the village either on 13th April, 1999 or on 14th April, 1999. He admitted that he made no such disclosure to any person and for the first time disclosed about what he allegedly saw when his statement was recorded by the police on 14th April, 1999. Apart from this, as stated hereinabove, the evidence of P. W. 1 contained several material contradictions relating to the overt acts of accused Nos. 2, 3 and 4 and also relating to what happened at the spot of the incident. In the circumstances, we find it unsafe to place reliance on the evidence of P. W. 1 Ambadas Chavan. (c) Once the evidence of the eye-witness is discarded, the only evidence left is regarding the alleged discovery at the behest of accused No. 1. The discovery is of no avail to the prosecution because no blood is found on the wooden pole of Char-pai allegedly discovered. The link to the incident is, therefore, missing. Besides, the discovery itself is doubtful because the Panch witness P. W. 6 Rama Kritane candidly admitted, in his cross-examination that the Police Officer told him that the accused would discover a wooden rod, even before the statement was made. (d) That leaves us only with the motive and that by itself cannot be made the basis of any conviction under section 302 of Indian Penal Code. (e) In so far as the conviction under section 498-A is concerned, the prosecution case rests upon the evidence of P. W. 2 Vijay, p. W. 4 Waman and P. W. 5 Subhash. The evidence of all these witnesses is based upon what the deceased Savitribai told them in the past. Such disclosures made by savitribai do not relate to the cause of her death and are inadmissible under section 32 of the Indian Evidence Act for the offence under section 498-A of the Indian penal Code. Observations, to this effect, can be found in the judgment of the Apex Court in the case of (Gananath Pattnaik v. State of orissa), reported in 2002 (2) S. C. C. 619. In para 10 of its judgment, the Apex Court observed as under :"10. Observations, to this effect, can be found in the judgment of the Apex Court in the case of (Gananath Pattnaik v. State of orissa), reported in 2002 (2) S. C. C. 619. In para 10 of its judgment, the Apex Court observed as under :"10. Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial Court has referred to the statement of P. W. 5, who is the sister of the deceased. In her deposition recorded in the court on 4-5-1990 P. W. 5 had stated :"whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfilment of balance dowry amount of a scooter and a two in one. "and added :"on 3-6-1987 for the last time I had been to the house of the deceased i. e. to her separate residence. Sworna, Singdha, Sima Apa, baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from her, and that her mother-in-law has come and some conspiracy is going against her (the deceased ). She further told that mate au banchei debenahin. "such a statement appears to have been taken on record with the aid of section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under section 304-B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under section 498-A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of section 32 of the evidence Act, the same cannot be relied upon for finding the guilt of the accused, (f) The attempt made by the A. P. P. to buttress the reasoning given by the trial court in aid of section 106 of the Evidence act, also does not find favour with us. It was argued that what happened in the field, was within sole knowledge of the accused and since the accused had given no explanation regarding the same, and had come out with a false story about a bull trampling upon the deceased, the non-explanation/false-explanation should be made the basis of conviction. In our view, section 106 of the Evidence Act cannot be brought to the aid of the prosecution, in this case, because the prosecution itself has choosen to lead evidence in the nature of an eye-witness account as to what happened in the field of accused No. 1. The prosecution came forward with an eye-witness and, therefore, it cannot be said that the matter as to what happened in the field was within the exclusive knowledge of the accused No. 1. In this regard, the observations of the Apex Court, in paras 18 to 24 of its judgment in the case of (Murlidhar and others v. State of Rqjasthan), reported in A. I. R. 2005 S. C. 2345, would be relevant. In the case before the Apex Court, the prosecution had led the evidence of eye-witnesses to the fact of murder after abduction. The evidence of such eye-witnesses was disbelieved. The Apex Court held that once such evidence had been led and disbelieved, it was not open to the Court to have fallen back on the rule of burden of proof under section 106 of Evidence Act. The conviction under section 302 read with 34 of the Indian Penal Code was, therefore, quashed. In our view, the facts and circumstances in the present case are similar to the case before the Apex Court. ( 8 ) IN the circumstances, the appeal will have to be allowed. The conviction under section 302 read with 34 of the Indian Penal Code was, therefore, quashed. In our view, the facts and circumstances in the present case are similar to the case before the Apex Court. ( 8 ) IN the circumstances, the appeal will have to be allowed. Accused No. 1/ appellant Hanuman Kisanrao Kadam is, therefore, acquitted of all the charges against him. The impugned judgment and order of conviction and sentence, passed by the additional Sessions Judge, Parbhani on 25th February, 2000 in Sessions Trial No. 147 of 1999 is hereby quashed and set aside. The fine, if any paid by the appellant/accused No. 1, will be liable to be refunded to him. The bail bond of the appellant/accused No. 1 to stand cancelled. The appeal stands disposed of accordingly. Appeal allowed.