Research › Search › Judgment

Bombay High Court · body

2006 DIGILAW 2056 (BOM)

Ankush s/o. Ramrao Kamble v. State of Maharashtra

2006-12-19

S.B.DESHMUKH, S.P.KUKDAY

body2006
Judgment 1. Appellant-Ankush Ramrao Kamble and his paternal aunt-Kamlabai Anandrao Kamble original accused No.2) were prosecuted for offences punishable under sections 201, 302, 306 and 498-A read with section 34 of the Indian Penal Code (for short "the IPC"). The Trial Court acquitted accused No.2 of all the offences. Appellant is acquitted for offences punishable under sections 498-A and 306 of the IPC. He is, however, convicted for the offences punishable under sections 302 and 201 of the IPC for having committed murder of his wife Premila @ Vaishali at their residential house at Madansuri, Tq.Nilanga, District Latur. For the first offence, the appellant is sentenced to suffer imprisonment for life and to pay a fine of Rs.l,000/- i/d. to suffer S.1. for three months and for the second offence, he is sentenced to suffer R.1. for one year and to pay a fine of Rs.l,000/- in default to suffer S.1. for three months. The appellant has impugned this order of conviction and sentence, in the present appeal. 2. The prosecution case in brief is that, the appellant is a teacher in local school at Anandwadi Anand, aged 11 years and Aarti, aged 9 years are his two children from first wife Vaishali. Vaishali died in suspicious circumstances. Appellant, then, married Premila @ Vaishali (the deceased) daughter of Shantabai (complainant) on 23rd June, 1995. A vinash aged 5 years and one year old Anita were born within the wedlock from the second wife. At the relevant time, appellant was living with the deceased, his four children and paternal aunt Kamlabai (Original accused No.2). Appellant was demanding Rs.25,000/- for borewell and five bags of Jowar from the mother of the deceased and was torturing his wife as the demand was not met by her mother. The deceased used to infrom her brother Govardhan (P.W.5) and sister Zarita (P.W.4) about her plight. On 28th September, 2002, friends of appellant Ashok Dhondiram Sagar and Satish Bhaurao Mane (D.W.5) informed complainant at about 8.00 p.m. that her daughter committed suicide. As the information was given late in the night, the complainant came to village Madansuri on the next day with her son, neighbour- Trivenibai (P. W .6) and other relatives. Zarita and her husband Balaji (P.W.7) came to Madansuri from Korali. All of them saw the ligature mark around the neck of the deceased. As the information was given late in the night, the complainant came to village Madansuri on the next day with her son, neighbour- Trivenibai (P. W .6) and other relatives. Zarita and her husband Balaji (P.W.7) came to Madansuri from Korali. All of them saw the ligature mark around the neck of the deceased. After arrival of the relatives of the deceased, at 11.45 a.m., the appellant informed Kasarsirsi Police that on the morning of 28th, his wife committed suicide on account of domestic quarrel. On the basis of this information, A.D. No.27212002 was registered. As a sequel, API Nawande (P.W.8), visited the spot. After holding the Inquest, he sent the dead body to Rural Hospital, Kasarsirsi for postmortem. P.W.8 then prepared Panchnama of the scene of occurrence (Exh.l 0) and attached rope having length of 7 feet found on the spot. On 30-9-2002, mother of the deceased lodged report al1eging that as the demand for dowry of Rs.25,000 and five bags of Jowar was not met by her, the appel1ant and his paternal aunt Kamlabai were torturing her daughter and that her daughter has committed suicide on account of this torture. In view of this complaint, offence under sections 306 and 498-A of the IPC was registered at 6.30 p.m. During the course of investigation, P.W.8 arrested the accused and recorded statements of witnesses. On receipt of the post-mortem report showing that the death was due to strangulation, the Investigating Officer filed charge-sheet against the appellant and his paternal aunt. At the commencement of the trial, charge (Exh.5) was framed against the accused for the offences punishable under sections 306 and 498-A read with section 34 of IPC. Later on, the trial Court framed fresh charge (Exh.34) for the offences punishable under sections 201, 302, 306 and 498-A read with section 34 of the IPC. 3. Pleading not guilty to the charge, in addition to the theory of suicide on account of domestic quarrel, the appellant propounded that the deceased committed suicide as she was suffering from AIDS. To establish the defence, seven witnesses including Trivenibai (P.W.6) were examined. 4. At the conclusion of the trial, the trial court found that the deceased died a homicidal death while in custody of the appellant. He found from the evidence of Dr. Somawanshi (D.W.3) that he examined the deceased and advised HIV test and the evidence of Lab. To establish the defence, seven witnesses including Trivenibai (P.W.6) were examined. 4. At the conclusion of the trial, the trial court found that the deceased died a homicidal death while in custody of the appellant. He found from the evidence of Dr. Somawanshi (D.W.3) that he examined the deceased and advised HIV test and the evidence of Lab. Technician - Mahesh Jadhav (D.W.4) that he tested blood sample of the deceased and found that she was suffering from HIV first, is not trustworthy. He further found that evidence of Satish Mane (D.W.5) and the explanation of the appellant that the deceased committed suicide is not worthy of belief. As the appellant had given false explanation regarding the death which took place while the deceased was in his custody, learned Trial Judge held that the appellant is responsible for the murder of his wife. In this view of the matter, learned Trial Judge convicted the appellant for having committed offences punishable under sections 302 and 201 of the IPC and sentenced him as stated earlier, but acquitted accused No.2. 5. At the outset, learned counsel for the appellant Shri. R. N. Dhorde contends that there is no direct evidence to establish complicity of the appellant in the commission of the offence. For establishing guilt of the appellant, the prosecution relies on the circumstantial evidence. In these cases, the prosecution has to show that the circumstances proved form a complete chain supporting the hypothesis of the guilt of the accused. It has also to be shown that the only hypothesis which can be formulated is not only consistent with the guilt of the accused but is inconsistent with his innocence. Conviction of the accused can not be founded on a solitary circumstance that the deceased died a homicidal death or on the basis of strong suspicion. The suspicion, however strong, can not take place of legal proof. Learned counsel would contend that truthfulness or falsity of the explanation of the appellant can not be looked into unless the prosecution discharges initial burden of proving the guilt of the accused. In support of this exposition of the principles governing appreciation of evidence in the matters depending upon circumstantial evidence, reliance is placed on the rulings of the Apex Court reported in (i) Sashi Jena and others Vs. Khadal Swain and another (AIR 2004 SCC 1492); (ii) Narendra Singh and another Vs. In support of this exposition of the principles governing appreciation of evidence in the matters depending upon circumstantial evidence, reliance is placed on the rulings of the Apex Court reported in (i) Sashi Jena and others Vs. Khadal Swain and another (AIR 2004 SCC 1492); (ii) Narendra Singh and another Vs. State of M.P. ( AIR 2004 SC 3249 : 2004 ALL MR (Cri) 2557 (S.C.) (iii) Dasari Siva Prasad Vs. Public Prosecutor ( AIR 2004 SC 4383 ); (iv) Padala Ravi Reddy Vs. State of A.P. and another, ( AIR 1990 SC 79 ); (v) State of Gujarat Vs. Sonbai (1991 AIR sew 868); (vi) Kagen Bera and another Vs. State of West Bengal ( AIR 1994 SC 1511 ). Referring to these principles, learned counsel contends that in the present case, there is no evidence to establish that the appellant had a motive to commit the offence or was last seen with the deceased. The prosecution has not discharged initial burden of proving complicity of the appellant in the commission of the offence. Therefore, it was not permissible for the Trial Court to convict the appellant merely on the ground that the explanation submitted by the appellant is false This approach of the Trial Court is fallacious. Thus, order of conviction and sentence passed by the Trial Court is not sustainable in law and has to be set aside.6. Per contra, according to learned Additional Public Prosecutor, Shri. P. M. Shinde has rightly concedes that the prosecution case rests on the circumstantial evidence. The prosecution, therefore, has to establish chain of circumstances leading to the hypothesis which is consistent with the guilt of the appellant and is inconsistent with his innocence. According to learned APP, the circumstances established by the prosecution show that the deceased died a homicidal death when the appellant and his four children were at the house. Considering the fact that the children are too young, the irresistible conclusion would be that only the appellant could have caused the death of his wife. It is further contended that once the prosecution succeeds in discharging initial burden, it is for the appellant to explain the circumstances leading to the death of the deceased. Considering the fact that the children are too young, the irresistible conclusion would be that only the appellant could have caused the death of his wife. It is further contended that once the prosecution succeeds in discharging initial burden, it is for the appellant to explain the circumstances leading to the death of the deceased. False explanation furnished by the appellant that the deceased committed suicide as she was suffering from HIV first, provides an additional link, which completes the chain of the circumstances leading to the irresistible conclusion that the appellant alone is responsible for causing the death of his wife. Considering the fact that the Trial Court has appreciated evidence on record in proper perspective, no fault can be found with the findings recorded by learned Trial Judge. The appeal, therefore, deserves to be dismissed. 7. In the present case, undisputedly, the prosecution case is based on the circumstantial evidence. The principles governing such cases are by now well-settled. In such cases, the prosecution has to establish a chain of circumstances which unerringly points to the guilt of the accused. The chain of circumstances has to be complete and incapable of supporting any hypothesis consistent with the innocence of the accused. The circumstances must be conclusive in nature. All the circumstances should be complete and should be fully proved. The circumstances sought to be relied upon must be closely connected with the principal fact. The cumulative effect of the circumstances must be capable of ruling out any possibility of the innocence of the accused. Relying on the decisions of the Apex Court in Narendra Singh and another Vs. State of M.P. ( AIR 2004 SC 3249 : 2004 ALL MR (Cri) 2557 (S.C); Dasari Siva Prasad Reddy Vs. Public Prosecutor High Court of A.P. ( AIR 2004 SC 4383 ); Pad ala Ravi Reddy Vs. State of A.P. ( AIR 1990 SC 79 ); State of Gujarat Vs. Sonabai (1991 AIR SCW 868); Kagen Bera and another Vs. State of W.B. ( AIR 1994 SC 1511 ), learned counsel for the appellant has rightly contended that a suspicion, however strong, can not take place of a legal proof. If the prosecution fails to affirmatively prove the guilt of the accused beyond all reasonable doubt, the benefit must go to the accused. Relying on the decision of the Apex Court in Sashi Jena and others Vs. If the prosecution fails to affirmatively prove the guilt of the accused beyond all reasonable doubt, the benefit must go to the accused. Relying on the decision of the Apex Court in Sashi Jena and others Vs. Khadal Swain and another ( AIR 2004 SC 1492 ), it is sought to be argued that a solitary circumstance of the death being homicidal can not form basis of conviction. There can be no quarrel with the principles laid down. However, it has to be borne in mind that there can be no precedent on facts. Each case has to be decided on the facts of that particular case. In criminal cases, slight variation in the facts often leads to a different conclusion. It is, therefore, not advisable to superimpose facts of one case on the facts of the given case, to arri ve at a particular conclusion. In Parasa Raja Manikyala Rao Vs. State of A.P., (2003)12 SCC 306 : [2004 ALL MR (Cri) 267 (S.C.)], at page 312 it is observed: "This is a strange way of dealing with the accusations and consideration of the guilt or otherwise of the accused. How a person reacts in a given case may be the determinative factor so far as that case is concerned. That cannot be applied as a rule of universal application to all cases irrespective of the fact situation in that particular case. There can be no empirical formula as to how one reacts in a given situation and its effect and impact. It would be almost like trying to put a square peg in a round hole. To imprint the fact situation of one decided case upon another or observations made in the peculiar facts of a given case to any or every other case notwithstanding the dissimilarity in effect and the distinctive features, is legally impermissible. 9. Each case, more particularly a criminal case, depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. The vague and cryptic conclusion arrived at by the trial Court to treat their case differently from the manner it dealt with that of A-I, despite its very observation that the evidence was as cogent against them too as it was against A-I lacks ajusdicious approach and determination and, therefore, was rightly interfered with by the High Court after an objective appreciation of the evidence independently and in the light of the relevant and guiding principles of law governing such determination." 8. The law applicable to a case based on the circumstantial evidence is succinctly laid down by the Apex Court in Padala Ravi Reddy Vs. State of A.P. and others (supra). In para No. 10 of the report, enumerating the tests to be applied in a case based on the circumstantial evidence Their Lordships observed: "10. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is a no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon 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 (See Gambhir Vs. State of Maharashtra (1982)2 SCC 351 )." 9. State of Maharashtra (1982)2 SCC 351 )." 9. Undisputedly, the initial burden to establish the guilt of accused lies on the prosecution. The prosecution is not required to prove the impossible but has to adduce best evidence which nature of that particular incident admits. However, once the initial burden is discharged, the onus shifts on the accused. He is, then, obliged to disclose facts within his special knowledge in view of Section 106 of the Evidence Act. Falsity of the explanation can be considered to be providing a missing link which completes the chain of circumstances. The law on this point is succinctly laid down in Trimukh Maroti Kirkan Vs. State of Maharashtra (2006 AIR SCW 5300 : [2006 ALL MR (Cri) 3510 (S.C.) : 2007 ALL SCR 237]). In para Nos.l2 and 16 it is observed: "12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland V s. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab Vs. Kamail Singh (2003) 11 SCC 271 . The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provisions and it reads: (b) A is charged with travelling on a railway without ticket. Illustration (b) appended to this section throws some light on the content and scope of this provisions and it reads: (b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him." Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime is committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 16. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decision of this Court. (See State of Tamil Nadu Vs. Rajendraan, (1999)8 SCC 679 (Para 6); State of D.P. Vs. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 (Para 40); State of Maharashtra Vs. Suresh, (2000)1 SCC 471 (Para 27); Ganesh Lal Vs. State of Rajasthan, (2002) 1 SCC 731 (Para 15) and Gulab Chand Vs. State of M.P., (1995)3 SCC 574 (Para 4)." 10. In the present case, the deceased is second wife of the appellant. It is prosecution case that the first wife died due to fall in the well. Statement of P.W.4 that a prosecution in respect of the death of the first wife against the appellant was pending in the Court at Latur at the time of the occurrence, is not controverted. It is prosecution case that the first wife died due to fall in the well. Statement of P.W.4 that a prosecution in respect of the death of the first wife against the appellant was pending in the Court at Latur at the time of the occurrence, is not controverted. P.Ws.3, 4, 5, and 7 who are near relatives of the deceased, and P.W.6 a neighbour of P.W.l, have given evidence regarding alleged ill-treatment of the deceased, as demand for Rs.25,000 and five bags of Jowar was not satisfied. The Trial Court has disbelieved this evidence and has acquitted both the accused of the offence punishable under section 498-A of the IPC. These witnesses have no personal knowledge regarding the incident. The fact that these witnesses have made improvements over their statements recorded under section 161, Cr.P.C. in respect of the alleged ill-treatment, justifies the conclusion of the trial court that their evidence on the point of cruelty is not satisfactory. Acquittal of the appellant and accused No.2 is not challenged by the respondent State. Evidence of the related witnesses neither establishes the motive nor is useful for the purpose of deciding complicity of the appellant in commission of the crime. Learned counsel for the appellant contended that the complainant has Implicated the appellant at the instigation of her relatives who are in police force, particularly Home Dy.S.P. Shri. Ambegaonkar. This contention can not be accepted. Had there been instigation from high official of the Police Department, the allegation in the FIR would have been for the commission of murder and not for the commission of suicide. Similarly the contention in respect of the delay in lodging FIR based on the decision of the Supreme Court in Thulia Kali Vs. State of TamilNadu ( AIR 1973 SC 501 ) is of no avail as the complainant has no knowledge regarding the incident and evidence of the related witnesses regarding motive has been discarded. 11. Turning to the defence evidence, Shivaji Jadhav (D.W.l) is Sarpanch of village Madasuri. He is examined to show that on 29th i.e. on the next day of the incident, there was a compromise between the parties. It was agreed that the appellant should give one-and-half acres of land to the children of the deceased. In pursuance of this compromise a partition deed was executed. He is examined to show that on 29th i.e. on the next day of the incident, there was a compromise between the parties. It was agreed that the appellant should give one-and-half acres of land to the children of the deceased. In pursuance of this compromise a partition deed was executed. The evidence of this witness, even if accepted, does not relieve the appellant of the responsibility for the act committed by him. The Trial Judge has discarded evidence of this witness as it is contrary to the document placed on record. The partition deed (Exh.86) is executed on 17-7-2003 and not on the next day of the incident. Evidence of Tanaji Suryawanshi (D.W.2) is innocuous. He is Driver of the vehicle used for taking the deceased to the Hospital of Dr. Mandalapure and from there to the Government Hospital at Nilanga. Trivenibai (D.W.6) is examined as P.W.6. She has subsequently turned around and denied knowledge of the fact stated by her as witness for the prosecution. 12. Dr. Somwanshi (D.W.3) is a Medical practitioner of Nilanga. Mahesh Jadhav (D.WA) is a Laboratory Technician attached to Sagar Pathology Laboratory of Nilanga. Both these witnesses are examined to show that the deceased was suffering from HIV. D.W.3 testifies to the fact of having examined the deceased and advised blood test. D.WA speaks of having examined the blood sample and having found that the patient is suffering from HIV first. D.W.3 has not produced case papers of the patient. He identifies scribbling on a piece of paper to be the prescription for HIV test. D.W.4 is merely a Lab, Technician. He refers to report card of the deceased showing that she was suffering from HIV first. He has also not produced the date on which the finding is based, nor has he established his authority to certify the report. The Doctor at whose Laboratory the test is carried out, is not examined by the defence. The absence of relevant case papers and the data clouds veracity of the evidence of these witnesses. The evidence of these two witnesses does not inspire confidence and is rightly rejected by the Trial Court. . 13. Satish Mane (D.W.5) is a teacher and a friend of the appellant. The absence of relevant case papers and the data clouds veracity of the evidence of these witnesses. The evidence of these two witnesses does not inspire confidence and is rightly rejected by the Trial Court. . 13. Satish Mane (D.W.5) is a teacher and a friend of the appellant. He states that on the day of the occurrence, the appellant joined him and others at the hotel near the house of appellant at about 2.00 p.m. While they were at the Hotel daughter of appellant came there and informed them that her mother has closed the door from inside and is not opening the same. On receipt of this information, the appellant, his friends Vivek Khare and Ashok Sagar went to the house of the appellant. He also went to the appellants house after five minutes. He found the deceased lying on the cot. She was then taken to Dr. Mandalapure who examined her and advised that she should be taken to tre Government Hospital. However, the people w/o gathered there, told them that there is no point in taking the deceased to the Hospital as she has expired. The evidence of this witness is contrary to the defence version that Aarti, daughter of the appellant, informed them that her mother is standing on the chair with rope around her neck for committing suicide. Thus, appellant and his friends went to the house and took down the deceased who was hanging from rafter. Apart from the variation on the material points, evidence of this witness that they realized that the deceased has expired only after the onlookers told them about it; is, to say the least, queer. As the witness does not substantiate the theory that the deceased was hanging from the rafter and was taken down by the appellant, the defence can not derive any benefit from the evidence of D.W.5. 14. Turning to the merits of the prosecution case, the fact that the deceased died a homicidal death has been firmly established by the evidence of P.W.l. The autopsy surgeon found dark reddish continuous ligature mark around the neck having width of 1.2 cms. at the junction of the neck with lower jaw, anteriorly between the thyroid cartilage and chin, extending laterally on both sides to cross sterno-oleido-mastoid muscles at the junction of lower 2/3rd and upper l/3rd segment to meet the hair line posteriorly. at the junction of the neck with lower jaw, anteriorly between the thyroid cartilage and chin, extending laterally on both sides to cross sterno-oleido-mastoid muscles at the junction of lower 2/3rd and upper l/3rd segment to meet the hair line posteriorly. There were small abrasions and ecchymosis around the edges of the ligature mark with extravasasion of blood in sub-cutaneous tissues under the ligature mark. The neck muscles were injured and the hyoid bone was fractured on both sides. Both the lungs were engorged and congested. On dissection, they liberated bloody froth. The larynx trachea and bronchi contained fine froth. The abdominal organs were congested. There was fine froth in the oral cavity. From this data, the autopsy surgeon found that the death is caused on account of asphyxia due to strangulation. The data recorded in the post-mortem Report (Exh.16) disclose classic symptoms of strangulation and justify the cause of death given by the Medical Officer. In view of the suggestions given to the witnesses during their cross-examination, it is sought to be argued that the deceased died a suicidal death. The autopsy surgeon has repelled this suggestion. Arguments based on the commentary in the text book of Dr. Basu has been rightly rejected by the Trial Judge quoting decision of the Apex Court in State of M.P. Vs. Sanjay Rai (2004)10 SCC 570 , at page 577 : [2004 ALL MR (Cri) 1500 (S.C.)] wherein it is observed in para 17 of the report: "Though opinions expressed in textbooks by specialist authors may be of considerable assistance and importance for the court in arriving at the truth, they cannot always be treated or viewed to be either conclusive or final as to what such author says to deprive even a court of law to come to an appropriate conclusion of its own on the peculiar facts proved in a given case. In substance, though such views may have persuasive value, they cannot always be considered to be authoritatively binding, even to dispense with the actual proof otherwise reasonably required of the guilt of the accused in a given case. Such opinions can not be elevated to or placed on a higher pedestal than the opinion of an expert examined in court and the weight ordinarily to which it may be entitled to or deserves to be given." 15. Such opinions can not be elevated to or placed on a higher pedestal than the opinion of an expert examined in court and the weight ordinarily to which it may be entitled to or deserves to be given." 15. The Trial Judge has properly dealt with the evidence of the defence witness D.W.5. This witness does not mention that the deceased was hanging from the rafter. His evidence that the deceased was not taken to the Government Hospital as she was dead, lets the cat out of the bag. Besides the appellant has not propounded the theory of suicidal death at the time of his examination under section 313 of Cr.P.C. The medical evidence, therefore, firmly establish that the death was on account of asphyxia due to strangulation and that the deceased died a homicidal death. On the basis of the fact that the stomach contained semi digested food, the Medical Officer has fixed the time of death at about 2 hours after the last meal. 16. The Investigating officer speaks of the information given by the appellant (Exh.64). The incident took place in the afternoon on 28th, however, information regarding the death was given by the appellant on 29th at 11.45 a.m. The story narrated by the appellant is that on the day of the occurrence there was a quarrel between him and the deceased on account of domestic dispute. He then went to the school. On his return, he took meals and subsequently went to the nearby Hotel. While he was with his friends, at about 4.00 p.m. his daughter Aarti came to the hotel and informed him that the deceased is standing on the chair with rope around her neck. Thus, appellant went to the house with D.W.5 and others. They found that the deceased is hanging from the rafter and took her down. He then gave water to the deceased. The deceased died while she was being taken to the hospital. This story is apparently false. The un-controverted facts would show that the spouses took meals after return of the appellant (from the school around 11.00 a.m. to 12.00 noon. I Data from the post-mortem report that semi (digested food was found in the stomach would J fix the time of death at 2.00 p.m. The appellant went to the hotel some time after taking meals. Till then he was with the deceased. I Data from the post-mortem report that semi (digested food was found in the stomach would J fix the time of death at 2.00 p.m. The appellant went to the hotel some time after taking meals. Till then he was with the deceased. The death, therefore, took place while the appellant and his four children were at the house. Absence of injuries on the dead body at the time of death rules out possibility of the crime being committed by a stranger. The circumstances (i) that the deceased died a homicidal death in her dwelling house; (ii) that there was quarrel between the spouses in the morning; (iii) that the appellant was with the deceased in the house after taking meals till he went to the hotel; (iv) the death took place while the appellant was in the house with the deceased, do establish that the appellant and appellant alone had the opportunity to commit the crime. The circumstances brought on record are sufficient to discharge the initial burden resting on the prosecution. Considering the totality of the evidence, we can not sustain contention of learned counsel for the appellant that the prosecution has not discharged the initial burden to establish complicity of the appellant in the commission of the offence, therefore, the benefit of doubt must go to the appellant. Once the initial burden is discharged by the prosecution, the subsequent conduct of the appellant can be looked into. The fact that the appellant in not giving information of the death to the police, making an effort to settle the matter with the relatives of the deceased and making an effort with the aid of his friends to show that the deceased has committed suicide further strengthens the conclusion of his guilt. The circumstances established by the prosecution unerringly point to the guilt of the accused and rule out possibility of his innocence. Considering the totality of the circumstances, in our considered opinion, no fault can be found with the findings recorded by the trial Judge that the appellant committed murder of his wife and knowingly gave false information to the Police Officers for screening himself from legal punishment. We, therefore, confirm the order of conviction and sentence passed by the Trial Judge. In the result, the appeal fails and is dismissed accordingly. Appeal dismissed.