JUDGMENT H.N. Sarma, J. 1. This Criminal Reference, arises out of the judgment and order passed in Sessions Trial No. 02/2001 (Corresponding to Roing PS Case No. 38/2000) convicting the accused under Section 302, IPC and sentencing him to undergo imprisonment for life, referred for confirmation under Section 30 of Regulation 1 of 1945--The Assam Frontier (Administration of Justice) Regulation, 1945, by the learned Deputy Commissioner, Lower Dibang Valley district, Roing. 2. We have heard Mr. N. Lowang, learned Public Prosecutor, Arunachal Pradesh and Mr. T. Pertin, learned Amicus Curiae, appointed to defend the accused. 3. The prosecution case initiated on the basis of an FIR lodged with the Officer in Charge, Roing Police Station, by one Shri Tengare Linggi, to the effect that on 14.6.2000 at about 3.00 A.M., the accused Shri Naina Bahadur Chetri murdered his wife. On receipt of the said FIR, the Roing Police Station Case No. 38/2000 under Section 302, IPC, was registered and Shri M.K. Deuri, SI, PW-9, was entrusted to investigate the case. The process of investigation having been set into motion, the Investigating Officer visited the place of occurrence and drew a sketch map of the place of occurrence (Ext-3), conducted inquest upon the dead body and forwarded the dead body for post mortem examination. During the investigation, the Investigating Officer recorded the statements of as many as eight witnesses whereas the statements of PW-3, Shri Purna Bahadur Chetri and PW-5, Miss Lila Devi Sivakot were recorded under Section 164(5), Code of Criminal Procedure. After conclusion of the investigation, the investigating Officer having found prima facie material against the accused for prosecuting him under Section 302, IPC, prepared the charge sheet being Charge Sheet No. 56/2000 under Section 302, IPC and forwarded the same for necessary action to the learned trial Court. The case being a Sessions triable one, the same was committed to the Court of the learned Deputy Commissioner for necessary trial. The learned Deputy Commissioner registering the case being Sessions Trial No. 2/2001, on the basis of the materials made available before him by the investigating agency and on hearing both prosecution and the defence framed charge against the accused person under Section 302, IPC to which the accused denied and claimed to be tried. 4. The learned Deputy Commissioner registering the case being Sessions Trial No. 2/2001, on the basis of the materials made available before him by the investigating agency and on hearing both prosecution and the defence framed charge against the accused person under Section 302, IPC to which the accused denied and claimed to be tried. 4. During the course of trial, the prosecution examined as many as 10 witnesses including the Doctor, the Investigating Officer, exhibited eight documents and three photos whereas the defence examined none. After closer of the prosecution case, the accused was examined under Section 313, Code of Criminal Procedure, putting upon him the circumstances that appeared against him during the course of trial in relation to the charge to which the accused denied. The defence not having examined any witness in support of its case, the learned trial Court after hearing the arguments advanced by the parties and upon meticulous consideration of the evidence and materials on record and having found that the prosecution has been able to prove the case beyond reasonable doubt against the accused, vide judgment and order dated 8.7.2003 convicted him under Section 302, IPC, for murdering his wife and sentencing him to undergo imprisonment for life subject to the confirmation by this Court. 5. Both the learned Public Prosecutor, Arunachal Pradesh as well as the learned Amicus Curiae led us through the evidence adduced by the prosecution witnesses in support of their respective cases. Mr. N. Lowang, learned Public Prosecutor, Arunachal Pradesh, in support of the prosecution case submits, inter alia, that the evidence of the prosecution case unerringly goes to point the guilt towards the accused and the learned trial Court upon proper assessment of the evidence available on record rightly found the accused guilty and accordingly, he has been convicted under proper section of law, which requires no interference and the said judgment is liable to be confirmed. Mr. T. Pertin, learned Amicus Curiae, on the other hand, submits that the accused is affected by epilepsy and being a epileptic patient he was not in a position to understand what he did during the relevant time and consequently, the offence alleged against the accused even if proved it falls under the general exceptions under Section 84, IPC and he should be dealt accordingly by giving benefit of the provisions of the aforesaid section of law. 6. 6. We have considered the rival submission made by the learned Counsel for the parties. In the instant case, the death of the deceased Smt. Chalsaya Sivakot, the wife of the accused, on 14.6.2000, is not disputed. Now the question arises as to how the wife of the accused died and whether it is a homicide and if so who caused her death. Regarding the cause of death of Smt. Chalsaya Sivakot, we may turn to the deposition of PW-8, the Doctor, SJ Mitapo, who conducted the autopsy on the dead body. During the examination of PW-8, he stated before the Court that on examining the dead body, he found the following injuries: 1. Multiple bruises over the upper part of the chest and around the neck. 2. Cresentic abrasions were present over and around the neck and under the chin. 3. On 'V' shaped incises haemorrhages in the subcutaneous tissue present and submucasal haemorrhages of the larynx present and the back of the tongue bruised. The ends of the hyoid bone fractured. 4. Face slightly cyanosed and occasional pataecae present. 5. Eyes suffused and pupils dilated. 7. The Doctor further opined that the death was caused due to mechanical asphyxia. He proved the Postmortem report as Ext. P/2 and Ext. P/2(1) is his signature. He further stated that the injuries at serial Nos. 1, 2 and 3 are dangerous to life and injury Nos. 4 and 5 are the outcome of the injury Nos. 1, 2 and 3. He further stated that due to internal dissection on the neck and considering the internal haemorrhage, that was a pure case of throttling. He could also notice nail marks and finger marks on the neck side. The Doctor further stated that sufficient force was made which caused the injury to the neck, tissues and trachea hyoid bone. The suggestion that the injuries and bruises over the body of the victim due to sexual attempt was denied. On Court's question the Doctor further stated that the injuries on the victim are not possible by lathi or stick. Apart from injuries on the neck, no other injuries were found. It is seen from the deposition of the Doctor, PW-8 that the death of the victim was homicidal one and the death was caused by throttling. The statements of other PWs also specifically satisfied that the victim was killed by strangulation. Apart from injuries on the neck, no other injuries were found. It is seen from the deposition of the Doctor, PW-8 that the death of the victim was homicidal one and the death was caused by throttling. The statements of other PWs also specifically satisfied that the victim was killed by strangulation. Thus from the evidence on record clearly disclosed that Smt. Chalsaya Sivakot died not in natural death but she was killed by strangulation. The next question arises as to whether the finding of the learned Deputy Commissioner to that effect is correct. PW-1, Tengare Linggi, the informant, stated in his deposition that he was informed by two labourers that the accused killed his wife by strangulation. Then he along with those two labourers went to the Roing Police Station and lodged the FIR which he proved as Ext-P/1 and Ext P/1(1) is his signature. He further stated that he has not seen the occurrence. On being asked by the Court this witness replied that the accused tried to flee away and in the past he was informed that the accused had abnormal mental tendency and he had observed his abnormal minded behaviour when the accused worked under him before the incident. P.W.-2, Bal Bahadur Chetry, deposed, inter alia, that on the morning of the day of occurrence, the daughter and nephew of the accused came to his house and informed that the wife of the accused died and they stated that they did not know who killed her. On going to the place of occurrence, he saw the dead body and he also saw the accused was sitting near the dead body. This witness further stated that the accused tried to flee away from the place of occurrence and he along with other caught him and tied with a rope in one post of the house. During the cross-examination this witness stated that he found the accused was sitting near the dead body and crying. Since there was nobody near the place of occurrence they suspected that the accused might have killed his wife. P.W.-3, Puma Bahadur Chetry, stated in his deposition that the accused is his uncle. On the night of the occurrence he was in the house of his uncle and was sleeping in the same room with his uncle and the deceased. PW-4, Hernial Sharma, was also sleeping in the same room. P.W.-3, Puma Bahadur Chetry, stated in his deposition that the accused is his uncle. On the night of the occurrence he was in the house of his uncle and was sleeping in the same room with his uncle and the deceased. PW-4, Hernial Sharma, was also sleeping in the same room. He further stated that apart from four of them there were two minor kids of the family. At mid night he was woken up due to hue and cry of the Kids. He and other persons got up from sleep. He noticed that the wife of the accused was already dead and he did not notice any injury on her body. He saw the accused crying silently then he along with Miss Lila Devi Chetry and two Kids went to the village to inform the villagers. He further sated that he could not remember what he stated before the police. He also stated that he did not observe any quarrel between the accused and his wife. PW-4, Hernial Sharma, deposed, inter alia, that on the night of occurrence, the daughter of the accused along with two minor Kids came to his house at about 4.00 in the morning and reported that the accused has killed his wife by strangulation. Thereafter along with few other villagers, he went to the place of occurrence and saw the dead body of the victim and the accused was sitting near the dead body. As the accused came out of the house and went to the flee away, he along with other villagers caught him and tied with a rope in his hand. During the cross-examination this witness confirmed on a Court's question that the children informed him that the accused killed the victim by strangulation. This witness also stated that he did not know whether the accused has been suffering from epilepsy or any other disease. PW-5, Lila Devi Chetry, the daughter of the accused, deposed, inter alia, that on the night of the occurrence, his father engaged one priest as he was ill. The priest performed Puja and after performing the Puja, the priest left the house, the accused, her mother (deceased), cousin PW-3 and the two minor Kids were present in the house and they all slept together in the Chung. Their house has only one room. The priest performed Puja and after performing the Puja, the priest left the house, the accused, her mother (deceased), cousin PW-3 and the two minor Kids were present in the house and they all slept together in the Chung. Their house has only one room. In the morning at about 4.00 A.M. she awakens up by Purna Bahadur Cherry and saw that her father was crying near her mother. Purna Bahadur Cherry told her that the body of her mother was cool and probably she expired so they went to the village and informed the matter to PW 4. Thereafter, villagers came to the place of occurrence. Subsequently the accused was caught by the villagers and tied him with a rope. Thereafter the police came to the place of occurrence and took his father. This witness stated that on the night of occurrence there was nobody in their house except her father (the accused), her mother (the deceased) and they four others. She made statements on oath before the Magistrate Roing about the incidence. Although this witness was cross-examined nothing adverse to the prosecution could be elicited. PW-6, Smt. Bishnu Maya Cherry, who deposed, inter alia, that on the night of occurrence she stayed at the house of the accused. She did not know who killed the victim but the children informed her that, the wife of the accused was dead. Thereafter the villagers came to the place of occurrence and she saw that the accused was being tied with a rope. She did not know the reason as to why he was tied. PW-7, Prem Bahadur Chetry, deposed in his evidence that he was informed by the daughter of the accused and his son in the early morning on the night of the occurrence about the incident. They did not state how the wife of the accused was killed. On arriving the place of occurrence he saw that the accused was coming out of his house and the villager caught hold of him and tied with a rope and the accused did not utter any word nor he stated the villagers about the incident. He further stated that the accused performed Puja on the night of occurrence as he was not well. The Puja was also performed for Maize cultivation. In his cross-examination, this witness stated that there was no quarrel between the accused and the deceased. He further stated that the accused performed Puja on the night of occurrence as he was not well. The Puja was also performed for Maize cultivation. In his cross-examination, this witness stated that there was no quarrel between the accused and the deceased. He also denied the suggestion that the daughter of the accused told him about the murder of her mother. PW-9, M.K. Deuri, is the Investigating Officer, who stated, inter alia, that he started the investigation of the case on 14.6.2000. Ext. P/3 is the sketch map and the Ext. P/3(1) is his signature. He also arrange for taking photograph of the place of occurrence. Exts. 1, 2 and 3 are the photographs of the deceased with negative. He also made necessary arrangements for postmortem of the dead body in the Roing hospital. Ext. P/4 is the inquest report prepared by him and Ext. P/4(1) is his signature. He took the dead body to the Roing Police Station and made necessary arrangements to send the dead body to the CHC, Roing, for post mortem. He stated that he arrested the accused person and the accused also showed him the injuries on his back side. During the course of investigation he also recorded the statements of available witnesses and forwarded the two names of the witnesses to the Magistrate, Roing for recording their statements on oath, namely the PW-3 and PW-5. During the cross-examination, this witness, inter alia, stated that he did not arrange the priest for performing the Puja on the night of occurrence and he confirmed recording of the statements of Hernial Sharma. He also stated that after arrest of the accused, he found some injuries on the back side of the accused and accordingly he forwarded him to the CHC, Roing, for medical examination. He did not find any nail mark injury either on the face or on the body of the accused. He recorded the statements of the witnesses within a week. No statement suggesting any contradiction in the statements recorded by the Investigating Officers during the investigation and no comparison of their statement made before the Court was given to the Investigating Officer by the defence. PW 10, CS Jeinow, is the Magistrate, who recorded the statement of Miss Lila Devi Chetry, @ Sita Devi and Purna Bahadur Chetry as produced by the police before the Court. He proved those statements as Ext. P/7. PW 10, CS Jeinow, is the Magistrate, who recorded the statement of Miss Lila Devi Chetry, @ Sita Devi and Purna Bahadur Chetry as produced by the police before the Court. He proved those statements as Ext. P/7. He further stated that he recorded the statement after observing the necessary formalities. During the cross-examination, this witness stated that he explained the procedure and consequences to the witnesses. He also engaged an interpreter for the purpose. He further stated that the statements of both the witnesses were recorded in his own hand writing and he was satisfied that the witnesses were not pressurized. 8. On the basis of the aforesaid prosecution evidence and materials on record, the learned trial Court framed the following circumstances against the accused: 1. On the night of murder accused and deceased were sleeping together in their house and that point is proved by PW-3 and PW-5. 2. When the PW-3 and PW-5 got up from sleep they say accused silently crying sitting near the dead body without making any hue and cry as if he knew well how the incident took place. That abnormal behaviour of accused is an important circumstances against the accused. 3. Medical evidence shows that death of the accused is caused by mechanical asphyxia. Sufficient force needed to be applied by any assailant at the time of strangulation. Since, such force cannot be applied by any of the 4 children present in the house apart from the accused and the deceased, there is strong possibility of the accused being the author of the throttling of his wife. 4. When the villagers came to the place of occurrence accused silently tried to escape from the PO and the villagers caught him and tied him with a rope. This fact of trying to escape is also a circumstance that goes against the accused. 5. When the accused and the deceased being husband and wife sleeping together in the same room on the night of occurrence and when wife found dead and death was caused by strangulation it is natural to presume husbands's guilt Under Section 106 of the Indian Evidence Act. And that accused (husband) need to give some explanation about the incident. 5. When the accused and the deceased being husband and wife sleeping together in the same room on the night of occurrence and when wife found dead and death was caused by strangulation it is natural to presume husbands's guilt Under Section 106 of the Indian Evidence Act. And that accused (husband) need to give some explanation about the incident. It appears from the record that when villagers came to the PO accused instead of giving some explanation to them tried to escape like a guilty man as if he know that well how the incident took place. 9. On careful consideration of the evidence of the prosecution witnesses and on proper marshalling of their statements it is seen that the prosecution has been able to prove that the deceased and the accused along with the PW-3 and 5 and two minor Kids were sleeping in the same room and on the same bed on the night of occurrence. In fact, when these circumstances were put to the accused in his examination under Section 313, Code of Criminal Procedure, the accused admitted the same. Thus, the aforesaid evidence of the prosecution witnesses, particularly, the PW-3 and 5, disclosed that the accused was sleeping with the deceased along with the PWs-3 and 5 and two minor Kids and the deceased was found to be dead due to strangulation as would be evident from the evidence of the PW-8. Thus the death of the victim is homicidal due to mechanical asphyxia and that the force required for throttling could have been applied by the accused. The evidence of the aforesaid witnesses were not shaken in their cross-examination. In fact, we find that there is no cross-examination of the witnesses on the vital aspect of their deposition pointing the guilt towards the accused. 10. The Apex Court in a series of decisions has consistently held that when a criminal case rests upon circumstantial evidence such evidence must satisfy the following tests: 1. The circumstances from which the interference 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. 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 the innocence. Ref : AIR 1990 SC 79 Padala Veeda Reddy v. State of Andhra Pradesh 1981 (1) SCC 511 Rama Nand v. State of Himachal Pradesh 1982 (3) SCC 462 Prem Thakur v. State of Punjab 1994 (2) SCC 220 Dhananjay Chetterjee v. State of West Bengal. 11. The noticeable feature in this case is that out of the six inmates who slept in the same bed on the night of the occurrence in the house of the accused only the accused and the deceased wife were the major members of the family found to be present, out of which one major member, i.e., the wife of the accused was found dead. Two witnesses, namely PW-3 and 5 though they are minor, they having attained sufficient maturity of understanding to rely upon their statements have deposed against the accused. In such a circumstance, the chain of circumstances framed by the learned trial Court is completely pointed to the hypothesis of guilt only none to the accused. Although they are very minor, the sight contradictions those appeared in the prosecution witnesses told that those are material circumstances against the accused. Although the learned Amicus curiae tried to defend the accused by providing of shelter of the provisions of the general exceptions of Section84, IPC, but no such foundation could be led to that effect. PW 1 although on the Court's query replied that in the past this witness was informed about the abnormal mental tendency of the accused, this could not be established by providing any material evidence; therefore, this is only a hearsay evidence. PW 1 although on the Court's query replied that in the past this witness was informed about the abnormal mental tendency of the accused, this could not be established by providing any material evidence; therefore, this is only a hearsay evidence. The observation of the mental abnormality was then the accused was working under him as labourer and is not sufficient enough to get the protection under Section 84, IPC, i.e., for two reasons, namely that in spite of the abnormal mental behaviour, the accused was engaged as labourer, it is nothing but bold and vague statement incapable of acceptance as defence. The assertion of the accused examined under Section 313, Code of Criminal Procedure, that he is an epilepsy patient, which also protect him from the act of killing his wife. If a person is suffering from epilepsy, he temporarily lost his control for the time being making him incapable of doing something but the accused though took such a plea, the circumstances disclose that he killed his wife by throttling while she was asleep with him. The learned trial Court rightly observed that in the absence of any positive evidence regarding such defence the same cannot be taken into consideration, inasmuch as, the statement under Section 313, Code of Criminal Procedure, could not be proved. It might led foundation for defence but are not required to be proved by clear, cogent and impeachable evidence which is lacking in this case. 12. Applying the aforesaid tests as laid down by various judicial pronouncement, we find that the circumstances appeared against the accused has been fully established by acquiring cogent and unpredictable evidence on record. 13. For the foregoing reasons, we do not find that the prosecution has not been able to prove beyond reasonable doubt the guilt of the accused and the learned trial Court upon proper assessment of the evidence and materials on record failed to convict the accused under Section 302, IPC and imposed the sentence of imprisonment for life. Accordingly we do not find any reason to alter or modify or coming to a different conclusion that of the learned Deputy Commissioner and accordingly, the impugned judgment passed by the learned Deputy Commissioner in Sessions Trial No. 02/2001 is hereby affirmed. The reference is answered accordingly in favour of the prosecution.