J U D G M E N T (per the Hon’ble Mrs.Justice T. Meena Kumari) The present appeal is preferred by the appellant accused aggrieved by the conviction and the sentence imposed by the learned II Additional Metropolitan Sessions Judge, Hyderabad, in Sesions Case No.307 of 2003 on 14.09.2004 for the offence punishable under 302 IPC. 2. The facts in brief are as follows: 3. One Nafees Begum (for short, the deceased) is no other than the wife of the accused. Their marriage took place about 20 years back and they were residing at Noorishah colony, Bandlaguda along with her children. 4. While so, on 6.6.2001 the elder son of the deceased came to the are house of P.W.1, who is no other than the brother of the deceased and informed about the death of the deceased due to heart attack. Then, P.W.1 rushed there and found the deceased lying dead on the floor. On observation, he found nail marks and scar marks over the neck of the deceased. Having suspected the accused, P.W.1 lodged a complaint and the same was registered as a case in crime No.130 of 2001 under Section 174 Cr.P.C., initially and investigated into. 5. During the course of investigation, inquest as well as post mortem examination was held over the dead body of the deceased and the statements of younger brother of the deceased and others were recorded. On the basis of post mortem report that the death of the deceased was due to throttling, the section of law was altered to that of 302 IPC. After completion of the investigation, charge sheet has been filed. 6. On filing the charge sheet before the learned XIV Metropolitan Magistrate, Hyderabad, he committed the same to the Metropolitan Sessions Division. The learned Metropolitan Sessions Judge registered the same as a Sessions Case and made over to the learned II Additional Metropolitan Sessions Judge, Hyderabad for trial. 7. The Charge leveled against the appellant-accused reads as follows: “On or about 6th day of June, 2001 at about 2.00 am., at the house bearing door No.18-13-132/15, Noorishah colony, Bandlaguda, Hyderabad did commit murder by intentionally or knowingly causing the death of his wife viz., Nafees Begum and thereby committed an offence punishable under section 302 of the Indian Penal Code.” 8. In order to substantiate its case, the prosecution in all examined P.Ws.1 to 6 and got marked Exs.P-1 to P16. After completion of the prosecution evidence, the accused was subjected to examination under 313 Cr.P.C. by putting incriminating circumstances found against him in the evidence of prosecution witnesses. The plea of the accused is of total denial. One Naheeda Begum, who is no other than the daughter of the accused and the deceased, was examined as D.W.1 on behalf of the appellant-accused. 9. On appreciation of oral and documentary evidence, the Court below found the appellant-accused guilty of the offence under section 302 IPC and convicted and sentenced him to suffer life imprisonment and also to pay a fine of Rs.1,000/- in default, to suffer simple imprisonment for a period of one month. Having aggrieved by the same, the appellant-accused preferred the present appeal. 10. Heard the learned Counsel for the appellant-accused and the learned Public Prosecutor appearing for the State. 11. The learned Counsel appearing for the appellant has argued that there is no direct evidence on record and the entire case rests upon the circumstantial evidence, the chain of which is not contiguous and that P.W.2, on which basis, the conviction is recorded, is not an eye witness and his evidence is very inconsistent and that the Court below has not evaluated the evidence of D.W.1 in a proper perspective and that non-examination of L.W.21, who collected nail clippings is fatal to the case of the prosecution. It is also further contended that in the absence of any other evidence as to the commission of the offence, the medical opinion cannot be a basis for conviction and that there was no motive for the accused to commit the offence in question and the absence of any incriminating circumstances, the implication of the accused in the above case is not sustainable and consequently, the Court below is not justified in convicting the accused and therefore, the judgment under appeal is liable to be set aside. 12. On the other hand, the learned Public Prosecutor contended that the evidence of P.Ws.1 and 2 is very consistent and corroborative and the medical report clearly goes to show the incriminating circumstances and therefore, it is the accused who is responsible for the commission of the offence and therefore, the accused is not even entitled to the benefit of doubt. 13. 13. Perused the material available on record and the judgment under appeal. 14. Admittedly, the entire case rests upon the circumstantial evidence only. In such a situation, the case of the prosecution has to be subjected to the tests as laid down in PADALA VEERA REDDY VS. STATE OF A..P. & OTHERS(1) wherein the Apex Court held that when a case rests circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 15. Having regard to the above principle of law enunciated by the Apex Court, let us examine the circumstances appearing in this case. 16. Insofar as the circumstance as to the nature of the death of the deceased is concerned, the evidence of P.W.3, Medical Officer, P.W.4one of the inquest mediators to Ex.P12-Inquest Panchanama and Ex.P2-Post Mortem report, is relevant for consideration. 17. P.W.3-Medical Officer, who conducted post-mortem examination over the dead body of the deceased, found the following injuries on the dead body of the deceased: External: 1. Multiple subcutaneous oval shape contusions of sized 1 x 0.5 cms., to 0.75 x 0.5 cm, present on both sides of front of neck over thyroid cartilage. 2. Contusion of upper lip and lower lip noteed. 3. Abrasion of 1 x 1.5 cms., over right knee 4. Abrasion of 1 x 1 cm., over left knee noted. Abrasions are reddish brown and contusions are red in colour. Internal: 1. Contusion of neck muscles underneath injury No.1 present. 2. Thyroid cartilage and Hyoid bone are intact. The testimony of the ‘Medical officer as well as his report goes to show that the cause of the death of the deceased was due to throttling. Abrasions are reddish brown and contusions are red in colour. Internal: 1. Contusion of neck muscles underneath injury No.1 present. 2. Thyroid cartilage and Hyoid bone are intact. The testimony of the ‘Medical officer as well as his report goes to show that the cause of the death of the deceased was due to throttling. While certifying that there was bluish discolouration over face, neck and chest and upper limbs, the Medical Officer is not certain death of the deceased as to whether the death is due to smothering or strangulation or manual strangulation. No violent nail marks are mentioned in the P.M. certificate either on the neck or on the face of the dead body. Even according to the Medical jurisprudence, when the throat is gripped by a hand, the typical type of skin lesion is a small disc shaped bruise and finger nail scratches and the possibility of a fractured hyoid and especially thyroid cornua, is greater and also impact upon large blood vessels in the neck may be more likely. Strangulation by ligature tends to be a constant pressure in one place (though there are exceptions), but the fingers of a strangler usually move around the neck and a shifting grip may suddenly impinge upon the carotid vessels causing sudden death. Thus there may be a period of partial asphyxia terminated suddenly by the onset of cardiac arrest. In may any other cases, pressure on vital structures may cause death at an early stage before there is any time for the so called classical signs of asphyxia to develop. 18. But, coming to the case on hand, the hyoid bone and thyroid cartil age are found intact. Keeping in view the characteristics as enunciated in the Medical Jurisprudence as to the expression’ throttling’, We feel that the opinion issued by the Doctor, is ambiguous, on which basis, it is much difficult to come to a conclusion as to the nature of the death. Apart from that, according to the medical jurisprudence, in a case of throttling, the medical officer is expected to remove a piece of skin around the neck for preservation as an exhibit in a later criminal proceedings for the purpose of ascertaining the opinion of the Expert. The failure in this regard, is a lacuna in this case. 19. Apart from that, according to the medical jurisprudence, in a case of throttling, the medical officer is expected to remove a piece of skin around the neck for preservation as an exhibit in a later criminal proceedings for the purpose of ascertaining the opinion of the Expert. The failure in this regard, is a lacuna in this case. 19. Thus, the evidence of the medical officer creeps a doubt in the mind of the Court as to the cause of the death of the deceased. Apart from that, in view of the failure to elicit the nature of the material object in the medical evidence, with which, the throttling could be possible, viz., either by manual or by any material object like rope etc., and the evidence of P.W.4-inquest mediator that the deceased might have died due to injuries found on her neck, we feel that it is very difficult to conclude that the deceased died due to throttling in view of wobbly evidence of the medical officer. 20. Now, let us examine as to whether the accused is responsible for the death of the deceased. 21. It is the case of the prosecution that the medical report clearly goes to show that the deceased died due to throttling. The incident took place at night and at that relevant point of time, except the accused nobody was there with the deceased. Therefore, it is the accused who is responsible for commission of the offence. 22. P.W.1, who is the brother of the deceased, deposed that the accused married the deceased about 22 years back and out of their wedlock, they got two sons and four daughters, who among them, P.w.2 is the elder son and D.W.1 is the eldest daughter. The accused, deceased and their children were residing at Bandlaguda at the time of the death of the deceased. The accused is a lorry driver. The accused worked in Saudi Arabia for three years prior to the date of incident. Just four days prior to the death of the deceased, the accused came from Saudi Arabia. On 6.6.2001, at about 6 or 6.15 a.m., P.W.2, who is the son of the deceased came to him and informed that the deceased died and then, he went there and found nail marks on the neck of the deceased and suspected that it is a murder. 23. On 6.6.2001, at about 6 or 6.15 a.m., P.W.2, who is the son of the deceased came to him and informed that the deceased died and then, he went there and found nail marks on the neck of the deceased and suspected that it is a murder. 23. P.W.2, who is no other than the son of the deceased and the accused, deposed that by the date of death of his mother, himself, his brothers and sisters were residing in Bandlaguda. On 5.6.2001 night himself, his sisters, brothers and parents were sleeping in their house, which has four rooms. Himself, his brothers and sisters slept in one room. His parents slept in another room. At about 2 a.m., his father woke him up from sleep and asked him to see as to what had happened to his mother. She was unconscious. Then, he went out and brought an auto and took her to Life Line Hospital, Chandrayanagutta, from where she was taken to Asra Hospital, where she was declared to have dead. At about 6 a.m., they returned back and went to the house of P. W.1 and informed the same. After the arrival of P.W.1 and his grandfather, they found the nail marks on the neck and throat of his mother. 24. On a perusal of the evidence of the above witnesses, it is pertinent to note that the marriage of the deceased and the accused took place about 22 years back and they begot four daughters and two sons. The accused returned to village having worked for three years in Soudi Arabia just prior to the incident in question. Either P.W.1 or P.W.2 did not speak any previous disputes or misunderstandings, if any between the accused and the deceased during their entire marital life of 22 years. Apart from that, P.W.2 did not speak as to any altercation of words or any quarrel preceding the incident. In the absence of any attribution as to the negative attitude of the accused towards the deceased. Suddenly. the suspicion raised by P.Ws 1 and 2 basing on the tracing of nail marks on the dead body of the deceased, cannot be construed as a circumstance to draw an inference of guilt. In that view of the matter, it can easily be said that the evidence of P.Ws.1 and 2 suffers from unnaturality. 25. Suddenly. the suspicion raised by P.Ws 1 and 2 basing on the tracing of nail marks on the dead body of the deceased, cannot be construed as a circumstance to draw an inference of guilt. In that view of the matter, it can easily be said that the evidence of P.Ws.1 and 2 suffers from unnaturality. 25. Now, the evidence that remains for consideration in the instant case is D.W.1, who is no other than the daughter of the deceased and the accused. 26. According to D.W.l, on the night of the death of the deceased, they took dinner at 8 p.m., and the accused left the house after diner saying that he was going to his brother’s house. Herself and his grandmother were sleeping in one room and her brothers and sisters were sleeping in front room. The deceased was sleeping in the bedroom. At about 2 a.m., or 2.30 a.m., the accused knocked the door and then, she woke up and saw three or four persons running from a bedroom of his mother into bath room. Then, she opened the main door and informed the same to the accused. Then, he went to bathroom and those persons went away. Then, my father went to the room of the deceased and found her lying unconscious. In her cross-examination, it is elicited that P.Ws.2 and other sisters and brothers are now staying with the accused in the same house even after the death of his mother. This piece of evidence is fortified by that of P.W.2, who in his crossexamination Mated that his maternal uncles are not looking after them after the death of the deceased. 27. The testimony of all the above witnesses does not disclose a clear and categorical genesis of the occurrence. Apart from the ambiguity in the evidence of the Medical officer, the theory as narrated by P.w.2, who is no other than the son of the accused and the deceased on one hand and D.w.1 who is no other than their daughter on the other, gives rise to a doubt as to the offence in question in view of the different versions spoken to by them. When once two views are possible, the view that is favourable to the accused shall be adopted so as to arrive at the conclusion. 28. When once two views are possible, the view that is favourable to the accused shall be adopted so as to arrive at the conclusion. 28. Apart from that, L.W.21 who is alleged to have examined the deceased and taken the nail clippings and rendered his opinion, has not been examined in this case. No efforts seem to have been taken by the prosecution at least to get the opinion of L.w.21 marked. In the peculiar circumstances of the case and in view of the fact that the entire case solely rests upon the circumstantial evidence, the non examination of this witness is fatal to the case of the prosecution. 29. But, without considering all these aspects, the Court below has mechanically came to the conclusion as to the guilt of the accused on mere surmises and conjectures. Hence, We have no hesitation to hold that the Court below is not justified in convicting and sentencing him to imprisonment for life and consequently, they are liable to be set aside. 30. In the result, Criminal Appeal is allowed setting aside the conviction and the sentence imposed in Sessions Case No.307 of 2003 on 14.09.2004 by the learned II Additional Metropolitan Sessions Judge, Hyderabad, against the appellant accused for the offence under section 302 IPC. 30. The appellant accused shall be set at liberty forthwith, if he is no longer required in any crime. 31. Fine amount, if any paid by the appellant accused shall be refunded after expiry of statutory period. --X--