S. L. KOCHAR, J. ( 1 ) ON difference of opinion between the then Justice Shri R. D. Vyas and the then Justice Shri Shambhoo Singh, this matter is placed before me as per provision under Section 392 of the Code of criminal Procedure. ( 2 ) I have gone through both the conflicting judgments passed by the then Justice shri R. D. Vyas and the then Justice Shri shambhoo Singh in the aforesaid Criminal appeal and I am in full agreement with the judgment passed by Justice Shri R. D. Vyas dismissing the appeal of the appellant, but, in view of the pronouncement contained in the case of State of Andhra Pradesh v. P. T. Appiah; Mattar v. State of U. P. and Sajjan singh and others v. State of M. P. I am required to give my independent opinion considering the rival contentions of the parties. ( 3 ) THE facts giving rise to this reference are that the father of deceased Kailash kunwar, namely Nathusingh (PW-5) gave a written report (Ex. P/2) at the Police Station to the effect that the appellant Jujhar singh was married with Kailash Kunwar eight to ten years, prior to her death in the intervening night of 6th and 7th May, 1992. PW-6 Krishna Bai was the only daughter out of their wedlock. It is alleged that kailash Kunwar was not being supplied proper and sufficient food and she was driven out from the marital home time and again. The mother of the appellant used to say that she had not given birth to a male child, therefore, the appellant should enter into second marriage. The in-laws were leveling allegations against Kailash Kunwar in regard to her character and were ill-treating her for demand of dowry or bringing less dowry. Kailash Kunwar from time to time used to disclose all these facts to her parents, brother and sister-in-law. At times she was pacified by the complainant nathusingh (PW-5) saying that sometime wisdom may prevail to the appellant and that it was her own house. Bearing in mind these teachings, she continued to live with her husband. In the year 1990 the appellant with a pre-plan tried to enter into second marriage and getting knowledge of this fact a legal notice (Ex. P/3) was sent to the appellant through Advocate. Thereafter, on intervention by community members, the appellant took Kailash Kunwar with him. Bearing in mind these teachings, she continued to live with her husband. In the year 1990 the appellant with a pre-plan tried to enter into second marriage and getting knowledge of this fact a legal notice (Ex. P/3) was sent to the appellant through Advocate. Thereafter, on intervention by community members, the appellant took Kailash Kunwar with him. Despite ill-treatment and harassment, she was residing with the appellant. ( 4 ) THERE was a marriage function of kamalsingh (Family member) at the house of appellant wherein the complainant nathusingh (PW-5) did not participate because he was not invited and the appellant and his family members, after hatching conspiracy, killed his daughter (deceased kailash Kunwar) and also cremated her dead body without any information to him. Ganpatsingh, elder brother of the appellant came and informed him that because of quarrel and beating Kailash Kunwar sustained injury and thereafter she was ablazed. Ganpatsingh asked him not to take any action against the appellant and his family members. He also asked him to execute an affidavit in their favour otherwise he would be implicated. On receiving this information, he went at Khachrod and gathered information thereafter submitted a written report. According to this report, the deceased was not suffering from any disease. She was beaten on 6-5-1992 and her dead body was cremated without any intimation to him and his family members, so that any action may be taken against the appellant and his family members. The complainant also sought custody of his granddaughter PW-6 Krishnabai. ( 5 ) ON the same day, crime was registered vide Cr. No. 216/92 under Sections 302/201/ 176 Indian Penal Code against the appellant and after due investigation, charge-sheet was filed against the appellant. The appellant denied the charges and pleaded innocence. He stated that the deceased kailash Kunwar met a natural death. He examined one witness DW-1 Dr. Rajesh in his defence. To prove its case, the prosecution examined eight witnesses. Learned trial Court, after considering the evidence adduced by the parties and hearing, convicted the appellant for the offences charged and sentenced him to undergo imprisonment for life with fine of Rs. 100/-, in default of payment of fine to suffer additional imprisonment for one month, three years and one month respectively. Learned trial Court, after considering the evidence adduced by the parties and hearing, convicted the appellant for the offences charged and sentenced him to undergo imprisonment for life with fine of Rs. 100/-, in default of payment of fine to suffer additional imprisonment for one month, three years and one month respectively. ( 6 ) GETTING dissatisfied with the aforesaid judgment of conviction and sentence, the appellant preferred the aforesaid Criminal appeal before this High Court. Learned justice Shri R. D. Vyas was of the opinion that the conduct of the appellant was not only doubtful, but, was also dubious as he did not explain the circumstances in which the dead body was cremated and relying on the evidence of eyewitness PW 6, krishnabai, who was of tender age, affirmed the conviction and sentence of the appellant. At the same time, learned Shri Justice shambhoo Singh was of the view that for holding the appellant guilty of the offence of culpable homicide, it must be proved that he caused death by doing an act with the intention of causing death or with intention of causing such bodily injury as was likely to cause death or with knowledge that it was likely by such act to cause death and the prosecution failed to prove beyond reasonable doubt that the appellant caused such bodily injury which was sufficient in the ordinary course of nature to cause death of kailash Kunwar and that there was no evidence that the deceased was labouring under such a disease that kicks on abdomen was likely to cause her death. On this ground, he opined that the conviction under Section 302 Indian Penal Code was not proper. The dead body was cremated in the presence of villagers, therefore, the offence under Section 201, Indian Penal Code was also not made out. He was also of the view that the appellant could not be convicted for the offence under Section 176. However, relying on the testimony of child-witness pw-6 Krishnabai, daughter of appellant, he opined that the appellant committed an offence under Section 323, Indian Penal Code for having caused simple hurt to the deceased. He, therefore, convicted the appellant under Section 323, Indian Penal Code and sentenced him to suffer R. I. for the one year and to pay a fine of Rs. He, therefore, convicted the appellant under Section 323, Indian Penal Code and sentenced him to suffer R. I. for the one year and to pay a fine of Rs. 1,000/- and in default of payment of fine, to suffer additional R. I. for three months. ( 7 ) LEARNED Senior counsel Shri Jaisingh appearing for the appellant, submitted that the statement of child-witness PW 6 krishnabai is not worth placing reliance because of material omissions, improvements and contradictions. She was residing with the parents of the deceased and, therefore, possibility of tutoring by them is not ruled out and that the prosecution has failed to adduce cogent and reliable evidence for motive of the appellant for committing murder of his wife. According to him, cremation of dead body was done by the father of the appellant. Therefore, he could not be held responsible for offence under Sections 201 and 176, Indian Penal Code. He also submitted that the prosecution has not examined witnesses Badrilal and Prabhusingh who had seen the dead body of Kailash kunwarbai before cremation and did not find any mark of violence and that the deceased met a natural death because of attack of manic depressive psychosis as opined by the defence witness DW-1 Dr. Rajesh sanghvi. Learned counsel vehemently supported the judgment and finding arrived at by the learned brother justice Shri Shambhoo Singh. ( 8 ) ON the other hand, learned Dy. Government advocate Shri S. D. Vohra has submitted that there is overwhelming evidence available on record regarding ill-treatment and torture to the deceased by the appellant. The appellant wanted to get rid of her and to enter into a second marriage. On this issue, there were exchange of legal notices between the appellant and the deceased kailash Kunwar. On all these issues, legal notice by Regd. Post A. D. was sent through her Advocate vide Ex. P/3 Postal receipt is ex. P/4 and P/5 a letter sent to the Post master regarding service of notice and not receiving the acknowledgement due was submitted. Learned Prosecutor has submitted that the daughter of the appellant PW-6 Krishnabai has given natural and true statement and there is no reason to disbelieve her statement and if the deceased met a natural death, why her parents were not informed and waited for their arrival and participation in her funeral. Learned Prosecutor has submitted that the daughter of the appellant PW-6 Krishnabai has given natural and true statement and there is no reason to disbelieve her statement and if the deceased met a natural death, why her parents were not informed and waited for their arrival and participation in her funeral. Because of demand of dowry and cruel behaviour by the appellant with his deceased wife she had some depression and for which the appellant was responsible and if she was suffering from any mental ailment or disorder that could also be a motive for the appellant to kill her and thereafter, enter into second marriage. The appellant and his family members were also dissatisfied because of not having male issue. After a period of nine years of their marriage, the appellant and the deceased produced the only female child Krishnabai (PW-6) aged six years. The learned PP has strongly supported the judgment and finding passed by the learned trial Court as well as by the judgment passed by Justice Shri R. D. Vyas. ( 9 ) HAVING heard learned counsel for the parties and after careful perusal of the oral and documentary evidence adduced and produced by the parties, it emerged that the deceased Kailash Kunwarbai was being ill-treated by the appellant and she was disclosing about beating and not providing food by the appellant to her brother Ishwarsingh, bhagwansingh and sister-in-law Govind Kunwarbai. ( 10 ) PW-1 Ishwar Singh has deposed that his sister, deceased Kailash Kunwarbai was married with appellant before ten years and they were having one daughter named krishnabai. The appellant was beating her and also was not providing food. He came to know this fact when the deceased disclosed it before PW-3 Govind Kunwarbai i. e. sister-in-law of this witness (wife of his brother ). This witness has further stated that before him also, the deceased disclosed about ill-treatment by her husband and he told this fact to his father, upon which, his father went to the house of appellant Jujhar singh. In cross-examination, he admitted about sickness of his sister Kailash Kunwar, but he denied her sickness prior to her marriage. He also stated in cross-examination that he was informed by Krishnabai about pressing of neck of the deceased by the appellant and inflicting kick-blows. In cross-examination, he admitted about sickness of his sister Kailash Kunwar, but he denied her sickness prior to her marriage. He also stated in cross-examination that he was informed by Krishnabai about pressing of neck of the deceased by the appellant and inflicting kick-blows. He could not give the date, month and year in which the deceased disclosed about ill-treatment to him as well as to his sister-in-law Govind kunwarbai. He also deposed about getting the deceased treated by her father. ( 11 ) ON independent assessment of the evidence of this witness, he stood firm on the question of ill-treatment, beating, not providing of food and threatening the deceased by the appellant and disclosure of all these events by the deceased. ( 12 ) PW 2 Bhagwansingh is another brother of deceased. He also stated about marriage of the deceased before 8-10 years. According to this witness, deceased was complaining about beating and ill-treatment to her by the appellant, to his wife Govind kunwarbai and Govind Kunwarbai in her turn informed all these facts to this witness and this fact was also informed to his father who admonished the appellant. In cross-examination, his say is that the deceased fell sick after marriage before 4/5 years from her death and he was not knowing what kind of ailment was she having. He further deposed that he asked the deceased kailash Kunwarbai about her sickness who told him about hungriness, not providing food in time and she was got treated by her father. Now in the statement of this witness also, I find sufficient material about fact that the deceased was being ill-treated by the appellant and she was not getting proper food in her matrimonial house. She fell sick because of non-supply of food and for want of good behaviour. ( 13 ) PW 3 Govind Kunwarbai is the sister-in-law of the deceased, wife of PW-2 bhagwansingh. She has not specifically stated about disclosure of ill-treatment, beating and cruel behaviour given by the appellant, but she has stated that some sort of dispute was going on between them and she was complaining about the same. She has also deposed that the deceased was being kept properly but, she was sick and again voluntarily disclosed that some sort of quarrel was happening and deceased was having talks with her brother and her father also. She has also deposed that the deceased was being kept properly but, she was sick and again voluntarily disclosed that some sort of quarrel was happening and deceased was having talks with her brother and her father also. In cross-examination, she has stated that the deceased fell sick after marriage. Prior to that she was not sick and she was not knowing about her ailment. Again in cross-examination para 7, she expressed her ignorance about good relations between the spouse. ( 14 ) ON going through the statement of this witness, it appears that the deceased was disclosing her about quarrel and dispute with her husband and in her matrimonial house. But, this witness took all that as usual event. ( 15 ) THE Fourth witness PW-4 Govind singh examined by the prosecution has turned hostile. He is the resident of village laudia where the appellant was residing. In his examination-in-chief, he has stated that the deceased was mad and he was not knowing about her sickness prior to her marriage. In cross-examination, he admitted that according to the village-relation, he is brother of the appellant. He was confronted with his case-diary statement (Ex. D/1 and he has denied his entire case-diary statement. He has further deposed about madness of the deceased and her unusual behaviour of throwing stones at the villagers and tearing of clothes. On cross-examination by the defence advocate, he has stated that right from the time of marriage, she was sick and she was mad as well as having manic attacks. On assessment of the entire statement of this witness Govind singh, it can easily be discern that he is not giving true version about the sickness of the deceased and gave contradictory statement in his examination-in-chief and thereafter in cross-examination about sickness of the deceased prior to and after her marriage. ( 16 ) PW 5 Nathusinigh is the father of deceased. He has testified that after the death of his daughter, Ganpat Singh, the elder brother of appellant, came to Dewas and asked him to take seven to eight thousand rupees for not lodging report because his brother (the appellant) had killed his daughter (Kailash Kunwar ). Ganpat Singh also disclosed that the appellant killed his wife by pressing the neck (throttling ). Ganpat Singh also disclosed that the appellant killed his wife by pressing the neck (throttling ). Thereafter, he reached with Shankar Singh at Lasudiya Khema where Krishnabai, the daughter of deceased told him about throttling of deceased by the appellant. After knowing this fact, he went to Police Station and lodged the report Ex. P7 and also submitted an application before Khachrod court for custody of Krishnabai, daughter of deceased and the custody of Krishnabai was given to him as per Court's order. This witness further testified that after marriage, the deceased was ill-treated by the appellant for demand of dowry. He was not providing food to Kailash Kunwar and used to assault her. Whenever the deceased was visiting his house, she used to disclose all these facts to her brother Bhagwansingh (PW 2 ). Bhagwansingh PW 2, in his cross-examination para 4 stated that when he asked the deceased about her sickness, she disclosed about hungriness and not providing food to her in time by the appellant. When this witness tried to admonish her she getting shy and started weeping. He also stated about sending of notice Ex. P/3 and proved the same in Court with postal receipt ex. P/4 and the letter of inquiry from postal authority (Ex. P/5 ). This witness also had admonished the appellant Jujharsingh for cruel behaviour with the deceased kailash Kunwar and demand of dowry. According to him, prior to marriage the deceased was hale and hearty. After marriage also she did not become mad but, she was being beaten and also being ill-treated by the appellant. In cross-examination, he admitted that the fact of demand of dowry by the appellant was not disclosed by him to anybody. ( 17 ) IN the notice (Ex. P/3), the fact of payment of four/five thousand rupees was not mentioned, but the fact of demand of dowry as well as ill-treatment was mentioned. On going through the contents of the notice (Ex. P/3), all these facts are found mentioned in the notice along with the fact that the appellant was going to enter into second marriage, for which he was warned. This notice was dated 14-2-1990. At that time, the deceased was in the house of this witness. This notice is also containing the fact of mental disorder of deceased because of ill-treatment and cruel behaviour extended by the appellant. Ex. This notice was dated 14-2-1990. At that time, the deceased was in the house of this witness. This notice is also containing the fact of mental disorder of deceased because of ill-treatment and cruel behaviour extended by the appellant. Ex. P/4 is the postal receipt showing the fact of sending the registered A. D. letter to the appellant and Ex. P/5 is the letter written to the Post Master, Dewas Post Office by Advocate of the deceased Kailash kunwar about verification of service of registered envelope to the appellant and not receiving the acknowledgement due for the same. ( 18 ) IT is pertinent to mention here that in the accused statement recorded under section 313, Criminal Procedure Code, the appellant in answer to question No. 10 expressed his ignorance and he has not specifically denied about receipt of such notice. ( 19 ) IN para 13 of his cross-examination, the say of this witness is that deceased died on 6th, her funeral was performed on 7th, ganpat, the elder brother of appellant came to him at Dewas on 8th. At the time of talk with Ganpat, nobody was present and he did not disclose the fact of offer of seven or eight thousand rupees, to his family members. In para 15, he further stated about sending of notice Ex. P/3 and explained that after sending the notice Ex. P/3, the matter was not taken to the Court because the same was got amicably settled through one anopsingh upon promise of not to beat the deceased by the appellant. He admitted regarding not lodging the report at the police station against demand of dowry. In para 16, this witness stated about fact of killing of deceased was disclosed to him by Ganpat singh and daughter of deceased PW 6 krishnabai. He did not gather any information about this fact from the residents of village Lasudia Khema. Again in para 17, he deposed that after marriage of his daughter, he used to visit the village of appellant and his daughter deceased Kailash Kunwar after seeing him used to weep and complain about beating by the appellant, but he was not disclosing this fact to his family members. In para 19, he denied the suggestion of defence counsel that before five years he went to the appellant and demanded Rs. In para 19, he denied the suggestion of defence counsel that before five years he went to the appellant and demanded Rs. 5,000/- and because of refusal by the appellant, he concocted a false case against him. ( 20 ) ON overall perusal of the statement of this witness who is the father of deceased kailash Kunwar I come to only and only irresistible conclusion that the deceased was being ill-treated in her matrimonial house and the spouse were having strained relations. ( 21 ) ON going through the judgment of the learned Justice Shri Shambhoo Singh, it is found that on the basis of the statement of prosecution witnesses about strained relations between the two families, positive finding in favour of the prosecution or against has not been given and in the judgment there is no discussion and assessment of notice Ex. P/3, its postal receipt Ex. P/4 and letter sent by the Advocate to the Postal authority about information of service of registered Envelope Ex. P/5, whereas, the statement of Nathusingh (PW5), Ishwarsingh (PW-1), Bhagwansingh (PW-2), father and brothers of the deceased respectively, as well as the statement of PW 7 Anopsingh (due to typing mistake wrongly mentioned as PW 4 in the judgment of Justice shri Shambhoo Singh) who is in relation of the appellant Jujharsingh, it is established without any shadow of doubt that the deceased was ill-treated by the appellant. She was not provided proper and sufficient food by the appellant in time and he was also beating her. PW 7 Anopsingh is in relation of the appellant and no suggestion is given in cross-examination to him about any strained relations with the appellant or reason for giving statement against them. In para 13 the only suggestions were given that the deceased Kailash Kunwar and the appellant had no talk with him. The deceased did not disclose anything to him. He did not see any injury on her person and he also did not admonish the appellant, and the deceased was mad. All these suggestions have been denied by this witness. In the statement of this witness in para 7 only omission is brought on record in his case-diary statement about non-mention of the fact of seeing the injury on the cheek and head of the deceased. All these suggestions have been denied by this witness. In the statement of this witness in para 7 only omission is brought on record in his case-diary statement about non-mention of the fact of seeing the injury on the cheek and head of the deceased. Apart from this, no other omissions, contradictions or improvements are available though extensive cross-examination of this witness has been done. To this witness Anopsingh, no suggestion was given by the defence that he was having direct relationship with PW 5 Nathusingh. There is no reason to disbelieve this witness. ( 22 ) FOR convicting the appellant under section 302, Indian Penal Code, the prosecution has to establish that the deceased met a homicidal death amounting to murder. For the purposes of establishing homicidal death, post-mortem report and medical evidence give immense proof but, in the present case, the deceased died in the room of the appellant. Thereafter, funeral was performed without lodging any report at the Police Station and Post-mortem Examination of deceased Kailash Kunwarbai. The supreme Court, in the case of Mani Kumar thapa v. State of Sikkim, has held in para 4, as under: "it is a well settled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without a trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is therefore, required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. (See: also Sevaka perumal v. State of T. N. , (1991) 3 scc 471 : 1991 SCC (Cri.) 724. (See: also Sevaka perumal v. State of T. N. , (1991) 3 scc 471 : 1991 SCC (Cri.) 724. Therefore, the argument that in the absence of corpus delicti the prosecution case should be rejected, cannot be accepted. " also see: State of Karnataka v. M. V. Mahesh; Ramanand and others v. State of himachal Pradesh and Ramchandra and another v. State of U. P. ( 23 ) IN the instant case, the prosecution has examined eyewitness of the incident krishnabai (PW-6), daughter of the appellant aged about six years. The say of this witness is that she and her deceased mother as also the appellant were dwelling in the room of upper floor of the house (first floor ). In the night, she and her mother Kailash kunwar were sitting. The appellant came in the room and caused kick-blows to her mother and thereafter he pressed her mother's neck. The assault was made by kicks on the stomach. In cross-examination para 6, a leading question was put to her by the defence counsel that she was sleeping on the ground-floor with her grandmother, grandfather and uncles Kamalsingh and saudansingh. She deposed that she was sleeping on the upper portion. Then a question was put that 'in the night at what time her mother died? She answered 'at 2-1 o'clock in the night'. Then a question was put "when your father reached in the room?" she replied 4-1 O'clock'. Learned defence counsel asked her that she gave two different timings and out of those, which was correct, the witness answered 4 O'clock'. Again a leading question was put that she was sleeping at 4. 00 O'clock', she answered that she was not sleeping. Again a question was put that who told her about beating of her mother? In reply to this question, she deposed that "accused assaulted her mother". At that juncture, she had cried. She too was given two slaps by the appellant. Again a leading question was put to her that the fact of beating told by her maternal grandfather nathusingh, she answered that she was deposing the fact which was witnessed by her. In reply to this question, she deposed that "accused assaulted her mother". At that juncture, she had cried. She too was given two slaps by the appellant. Again a leading question was put to her that the fact of beating told by her maternal grandfather nathusingh, she answered that she was deposing the fact which was witnessed by her. Again, in para 9 a leading question was put to her that she was told all the facts about the case by her maternal grandfather, she refused flatly 'nahin Batai thi' Again, she deposed in answer to a question that there was a watch in her house and she was knowing to ascertain the time by seeing the watch. When her father assaulted her mother, that time she had ascertained by seeing the watch. Thereafter, she was asked to show the time by seeing the watch which was fixed in the Court-Room, but she expressed her inability and in her deposition, the Court has put a note that the figures mentioned in the watch were in English language. She further testified in para 11 of her cross-examination that the police recorded her statement as disclosed by her. She told the police about the time of death of her mother, but after recording the statement police did not read over the same to her. She was asked about omission of time of death of her mother in her police statement (Ex. D/1 ). She answered that she told the time to the police, but she did not know as to why the same was not written in her statement. Again, in cross-examination para 12, this witness has deposed that her statement was also recorded in Khachrod and she gave the statement that her mother was assaulted by her father appellant by kicks and thereafter, he pressed her neck by both hands. ( 24 ) ON going through the statement of this witness apart from omission of time of incident, in her case-diary statement (Ex. D/2), nothing adverse has been elucidated by the defence. She has boldly refuted the suggestion and a leading question was put to her about tutoring by her maternal-grandfather. ( 24 ) ON going through the statement of this witness apart from omission of time of incident, in her case-diary statement (Ex. D/2), nothing adverse has been elucidated by the defence. She has boldly refuted the suggestion and a leading question was put to her about tutoring by her maternal-grandfather. So far as time factor is concerned, in view of this Court, looking to the age of this witness, much importance cannot be attached, if she was not able to ascertain time by seeing the watch in the court and gave time. But, according to her, the incident occurred in the night and she was consistent on this. She also finally stated the time of incident as 4. 00 a. m. The presence of this witness in the room along with the appellant and deceased is firmly established by the prosecution and there is no contradiction available regarding time of incident. There is only omission in her case-diary statement. On the question of time, while appreciating the evidence of the eyewitnesses in the case of Gurnam Kaur v. Bakshish Singh and others the Supreme court has observed that "when rustic woman mentioned the time as 1. 00 p. m. , 2. 00 p. m. , 3. 00 p. m. allowance must be given and the time mentioned should not be treated as precise. In this judgment, the high Court did not rely on the two eyewitnesses Gurnam Kaur and Charan Kaur regarding their presence in the field till 3. 00 p. m. and held that the incident occurred at 12. 00 noon. At that time, both the women must have been in their house preparing lunch. On consideration, the Supreme Court reversed the finding and held about precision of time as above and also held that "they were not asked in cross-examination why they were crying in the field till 3. 00 p. m. instead of making ready lunch. If asked, they might have given a very plausible explanation. ( 25 ) IN the case in hand, the eyewitness krishnabai (PW-6) specifically stated that at the time of incident, she was sitting with her mother and she was not sleeping. Her father came inside the room and kicked her mother on stomach and also throttled her. If asked, they might have given a very plausible explanation. ( 25 ) IN the case in hand, the eyewitness krishnabai (PW-6) specifically stated that at the time of incident, she was sitting with her mother and she was not sleeping. Her father came inside the room and kicked her mother on stomach and also throttled her. This Court does not find any reason to discard the testimony of this witness on the basis of drawing presumption that she being a child, must be sleeping and there was no reason for her not to sleep in the dead hour of night or up to 4. 00 O'clock. This witness has nowhere stated that for the whole night she was awaking. Therefore, it would not be just and proper to draw such inference. In cross-examination, she has stated plainly that she was sitting with her mother and they were chitchatting and at that juncture the appellant entered the room and assaulted the deceased. She has also stated that in the said night, there was marriage of her uncle, but she did not go to attend the function because her uncle used to beat her. At this stage, it is made clear that kamalsingh was residing on the lower portion of the same house and if there was marriage function in the house this witness would be awaking with her mother. In case of State of U. P. v. Shankar the Apex Court, in para 18, while considering the reason assigned by the High Court to discard the testimony of eyewitness that normally in the village, rural people usually go to answer the call of nature before Sunrise. Therefore, the occurrence took place much before Sunrise when it was dark and not at 9. 00 a. m. The Supreme Court held that such generalization is not possible. It depends on the habit of individual, state of his health particular of his digestive system and so many factors. This Court is also of the opinion that the generalization is not possible that the child witness could not remain awaking in the night. ( 26 ) ON careful scrutiny of the statement of this witness PW 6 Krishnabai, this Court does not find any abnormal circumstance to discard her testimony. This Court is also of the opinion that the generalization is not possible that the child witness could not remain awaking in the night. ( 26 ) ON careful scrutiny of the statement of this witness PW 6 Krishnabai, this Court does not find any abnormal circumstance to discard her testimony. Learned Shri Justice shambhoo Singh has also relied upon the testimony of this witness for convicting the appellant for causing beating to deceased in the night. She was disbelieved only for pressing the neck of the deceased by the appellant causing death and the ground stated for this that if the deceased was throttled by the appellant, she must have raised cry and also tried and struggled to save herself, but PW 6 Krishnabai did not state that Kailash Kunwarbai made some noise or struggle. The question of raising cry and struggle would depend as to how and under what circumstance the appellant pressed her neck. It was possible that while throttling no chance could be given to the victim to raise alarm and put resistance. Apart from this, no question was put to this effect to the eyewitness so that she could explain this circumstance. Therefore, relying on the witness for part of overt act of the appellant of causing kick-blows and discard her version for throttling would not go parallel. I regret. I am unable to concur with the finding of the learned Justice Shri shambhoo Singh in para 6 that PW 6 krishnabai was a tutored witness so far as overt act of throttling/pressing of neck of the deceased by the appellant. Merely because she was a child-witness, it cannot be presumed that she must have been tutored especially when she stood firm in detail and incisive cross-examination by the defence counsel. Nothing is brought on record by the defence to say that she was a tutored witness. ( 27 ) THE Supreme Court in the case of state of Maharashtra v. Bharat Fakir, while reversing the judgment of acquittal passed by the High Court, held that "merely because a witness is child, his/her evidence is not always liable to be rejected. Where trial Court found the testimony of child-witness to be reliable, such witness stood the test of searching cross-examination, and even otherwise his evidence was supported by a number of other circumstances, the high Court erred in disbelieving the evidence of such witness". Where trial Court found the testimony of child-witness to be reliable, such witness stood the test of searching cross-examination, and even otherwise his evidence was supported by a number of other circumstances, the high Court erred in disbelieving the evidence of such witness". (Emphasis supplied ). In the case of State of Karnataka v. Sherrif the Supreme Court, while appreciating the evidence of child-witness discussed as under: "in our opinion the view taken by the learned Sessions Judge that it would be unsafe to rely upon the testimony of PW 3 regarding the actual factum of incident is not correct. A boy aged 8/9 years would be near his mother and would be sleeping in the same house where she was sleeping. There was no occasion for him to go to the house of Jaina Bi and to sleep with her. If PW 3 was not present in the house and was in the house of her grandmother in the night in question, he could not have conveyed the information about the incident to PW 1 and PW 2 nor they would have come to know about the incident forthwith. If PW 3 was present in the house he was bound to witness the incident, namely picking up quarrel by the accused with his wife and setting her on fire. There was absolutely no reason why PW 3 would give a false statement against his own father that he had tied the hands and legs of his mother and had burnt her. We are of the opinion that the testimony of PW 3 is fairly reliable on the factum of the incident and the same cannot be discarded only on account of a stray sentence in his cross-examination where he has stated that when his mother caught fire he was in his grandmother's house. The High Court did not examine the testimony of this witness carefully and we find ourselves unable to agree with the view taken by it. " In the instant case, the child witness PW 6 krishnabai did not give any chance to the defence to bring any such material on the basis of which it can be held that she was hot inside the room with her father and mother and she was tutored for giving the statement in the Court against the appellant. " In the instant case, the child witness PW 6 krishnabai did not give any chance to the defence to bring any such material on the basis of which it can be held that she was hot inside the room with her father and mother and she was tutored for giving the statement in the Court against the appellant. Also see: ratansingh v. State of Gujarat ; Suryanarayan v. State of Karnataka ; Radheshyam v. State of Orissa. In my opinion, the child witness PW 6 krishnabai is fully reliable witness and her statement is corroborated On material particulars by the statement of PW 1 ishwarsingh, PW 5 Nathusingh and PW 4 goverdhansingh. ( 28 ) THE deceased Kailash Kumar died inside the house of appellant and if she met the natural death the appellant should have informed this fact immediately to her parents and other relations who reside in vishnu Colony, Dewas, which is not situated at a long distance from village Lasudia khema and situated in the adjacent district of Ujjain. In Hindu community, it is a deeply routed tradition and culture to send information before performance of funeral to the near and dear of the deceased person, especially mother, father, brother, sister and other close relatives and wait for reasonable time or period for their arrival to participate in the funeral and see the face of deceased last time before funeral. According to the prosecution case, Kailash Kunwar died in the intervening night of 6th and 7th may, 1992 and funeral was performed on 7th May, 1992. PW 5 Nathusingh, father of the deceased has deposed that Ganpat singh elder brother of appellant reached at dewas on 8-5-1992 and offered seven to eight thousand rupees for not lodging the report because the appellant killed Kailash kunwar by pressing her neck. On this information, he reached at village Lasudiya, met his grand-daughter Krishnabai (PW-6)who disclosed about killing of deceased by appellant by pressing her neck. PW 5 nathusingh was informed by Ganpat Singh which is amply proved on the basis of the statement in examination-in-chief as well as in cross-examination. After confirming the information, he immediately on 9-5-1992 lodged a written complaint to the Police (Ex. P/2 ). The appellant has not examined any witness in defence to establish as to why before performance of funeral the appellant did not inform father and brothers of the deceased. After confirming the information, he immediately on 9-5-1992 lodged a written complaint to the Police (Ex. P/2 ). The appellant has not examined any witness in defence to establish as to why before performance of funeral the appellant did not inform father and brothers of the deceased. In accused statement recorded under Section 313, Criminal Procedure Code also, he has not assigned any reason for not giving information about demise of Kailash kunwar before funeral. He has also not examined his brother Ganpat Singh to contradict the statement of PW 5 Nathusingh about giving him the information. In answer to question No. 6, regarding information given by his brother Ganpat Singh to Nathusingh (PW 5), he has given simple answer of denial. The appellant has also not explained as to why information was not given to the police about death of his wife especially when he was not having cordial relations with his in-laws. The way in which funeral was performed, hurriedly, is a strong circumstance against the appellant and this abnormal and unusual conduct is admissible under Section 8 of the Evidence act and this circumstance also strengthens the eyewitness's account of daughter of appellant pw 6 Krishnabai. See Alamgir v. State (Placi-D) and D'souza Anthony v. State of Karnataka (Placi-C ). ( 29 ) IN the statement recorded under Section 313, Criminal Procedure Code the appellant's defence was that the deceased met a natural death and PW 5 Nathusingh is speaking against him because he did not give him money. In cross-examination, in para 9 Nathusingh has denied the defence suggestion that before five years from the date of his examination in Court i. e. 18-1-1993, he demanded Rs. 5,000/- (Rupees five thousand) from the appellant and because of non-payment, he concocted a false case against him. This defence does not sound well. It is not a case that after the death of kailash Kunwarbai, her father PW 5 nathusingh demanded money from the appellant and on non-payment thereof he concocted a false case against him. According to the defence, the demand was much before the death of Kailash Kunwarbai. Burden lies on the appellant to prove that the deceased died a natural death. According to the defence, the demand was much before the death of Kailash Kunwarbai. Burden lies on the appellant to prove that the deceased died a natural death. In his statement recorded under Section 313, Criminal procedure Code the appellant has nowhere stated that his wife deceased Kailash kunwar was suffering from mental disorder and was having recurring attack and she reached the chronic stage. He simply stated in answer to question No. 44 that he is innocent and Kailash Kunwarbai met a natural death. The same statement he has given in defence plea. In defence, he examined DW1 Rajesh Sanghvi. Dr, Sanghvi was posted in Mental Hospital, Indore as Assistant Surgeon on 8-7-1992. He proved the certificate Ex. D/7 dated 8-7-1992 regarding treatment of deceased Kailash kunwarbai who was suffering from manic depressive psychosis. He also proved the record of outdoor patient of Kailash Kunwar vide Ex. D/8 and D/9. In para 3, he deposed that'in this disease there is no possibility of death in ordinary course of nature, but if the patient goes in deep depressive mania, there is possibility of death and such kind of severe attack may come once in a year or two years. In cross-examination, he has deposed that it is not necessary that on attack in all probability the patient would die. He lastly examined Kailash Kunwar on 29-1-1991. ( 30 ) ON perusal of the certificate (Ex. D/7), it is evident that first time Kailash kunwarbai was examined in the mental hospital, Indore on 1-7-1989, in the month of July and thereafter, in October and December, 1989, she was treated and then she was examined again on 12-2-1990 and lastly on 29-1-1991. This Certificate (Ex. D/7) was given on the basis of OPD Ticket No. 1100 dated 1-7-1989. Dr. Sanghvi (DW 1) also proved the documents of treatment ex. D/8-C dated 1-7-1989 in four pages and ex. D/9 in eight pages. These are all photostat copies of the documents of treatment of deceased relied upon by the defence. On first examination on 1-7-1989, in the Out-Door patient Card, it is mentioned under the head of 'family History' that the deceased was residing with her father-in-law and mother-in-law, quarrel used to take place in the house, husband used to beat her, financial condition was weak, insufficiency of food and lack of sleep. She used to cry, beat and behave violently. She used to cry, beat and behave violently. This history of the patient itself is revealing that she was the victim of the appellant and his family members. For the first time, she was treated on 1-7-1989 much after her marriage and her delivery of one female child. DW 1 Dr. Sanghvi on the basis of these documents gave certificate Ex. D/7 dated 8-7-1992 and in this certificate as well as in the treatment documents Ex. D/8 and D/9, nowhere it is mentioned that she had possibility of death because of manic attack. Admittedly DW 1 dr. Sanghvi did not see and examine the body of deceased. For the first time in Court on the basis of the aforesaid old documents and lastly the deceased was treated by him on 29-1-1991, he gave opinion regarding possibility of her death because of excessive depression or mania. This opinion is neither here nor there and also has no sound and concrete basis. By no stretch of imagination, such kind of hypothetical Expert opinion can be relied upon for establishing the fact even by preponderance of probabilities regarding death of deceased especially when ocular account is available for homicidal death, evidence of motive and abnormal conduct of the appellant. ( 31 ) I do not find any substance in the arguments advanced by the learned counsel for the appellant for non-examination of badrilal and Prabhu Singh who were the witness regarding seeing of the dead body of Kailash Kunwar. First of all, both the witnesses were given up by the prosecution on 19-1-2004. Prabhu Singh was given up on the ground of his being won-over. Whether they found any mark of violence or struggle on her person or not is not very material, in the absence of medical evidence and post-mortem report. The prosecution case is not that on the person of the deceased mark of violence and struggle were present which is contrary to the statements of these two witnesses, as discussed hereinabove. The question of presence of mark of violence and struggle depends as to how and under what circumstances, the deceased was throttled and no question was put to the eyewitness of this effect. Therefore, non-examination of these two witnesses would not give any benefit to the appellant and no adverse inference can be drawn against the prosecution. The question of presence of mark of violence and struggle depends as to how and under what circumstances, the deceased was throttled and no question was put to the eyewitness of this effect. Therefore, non-examination of these two witnesses would not give any benefit to the appellant and no adverse inference can be drawn against the prosecution. Since the deceased died in the house of the appellant and without lodging report at the Police Station and without conduction of the post-mortem examination funeral was performed. Therefore, it was incumbent upon the appellant to explain all these circumstances and he should have examined the villagers to establish the circumstances favourable to him, but he has not done so. ( 32 ) THUS, for the reasons indicated hereinabove, i am in agreement with the then justice Shri R. D. Vyas and respectfully disagree with the opinion of the then Justice shri Shambhoo Singhji. Therefore, the appeal preferred by the appellant is liable to be dismissed. ( 33 ) NOW the matter be laid before the division Bench for final disposal. Appeal dismissed. .