JUDGMENT : (Per S.P.Kukday, J.) 1. Appellants are convicted by Ad-hoc (3) Additional Sessions Judge, Osmanabad, for offence punishable under Section 302 read with Section 34 of the Indian Penal Code ( IPC for short) and are sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/- each in default to suffer rigorous imprisonment for two months. The appellants are, however, acquitted of the offence punishable under Section 498A of IPC. This order of conviction and sentence dated 13th May, 2005, is impugned in present appeal. The order of acquittal has attained finality. 2. At the outset we may notice facts relevant for decision ofthis appeal. Diksha, daughter of Navnath Bhalshankar, married Dayanand ( appellant no.1) in or about March 2003. After the marriage, she started living with her husband, father in law Changdeo Sambhaji Zende ( appellant no.4) and mother-in-law Nirmala ( appellant no.2) at Kallam, district Osmanabad. Her sister-in-law Jyoti ( appellant no.3) is living in the same chawl with her husband andchild. In the month of April 2004 Manisha was brought to Mumbai by her father for delivery. She delivered a male child in Nair Hospital. Appellant no.1 visited Mumbai about one month after the delivery and quarrelled with his father-in-law as his wife was not treated at J.J.Hospital. He then demanded Rs.50,000/- for business, gold locket of 20 grams and (4) gold ring of 5 grams. As the demand was not satisfied, appellant no.1 got annoyed and returned to Kallam. Nirmala ( Appellant no.2) visited Mumbai about two months thereafter. She adopted conciliatory attitude and brought Diksha ( deceased) to her matrimonial house. 3. On 8th September 2004 at about 5.30 p.m., while giving intimation of death of her daughter-in-law toKallam Police, appellant no.2 stated that after finishing household chores at about 12.30 in the noon, she went to the house of her sister Sulbha. Her daughter Jyoti, who lives in the same building, had been to the hospital for inoculation of her child. On her return Jyoti heard cries of the son of the deceased and went to her parental house to discover that the deceased was hanging from the iron pipe in her room. Jyoti conveyed this information to her. On getting this information, she rushed to her house with her sister. By that time the neighbours had gathered near the house. On her return Jyoti heard cries of the son of the deceased and went to her parental house to discover that the deceased was hanging from the iron pipe in her room. Jyoti conveyed this information to her. On getting this information, she rushed to her house with her sister. By that time the neighbours had gathered near the house. She then took Manisha to rural Hospital with the help of Sulbha. At the hospital Dr.Dikale found that Manisha had expired. On the basis of this information Accidental Death No.39/2004 ( Ex.59) was registered under section 174 of the Code of Criminal Procedure ( Cr.P.C. for short). During the course of the enquiry PSI Dhondappa Kamale ( P.W.8) held inquest ( Ex.41) on the (5) dead body in presence of Latabai Randive ( P.W.6) and sent the dead body for postmortem. PSI Kamale then attached rope made from gunny sack or nylon sack having length of 11 and half feet and thickness of half inch under Panchanama of the scene of occurrence ( Ex.43) in presence of Bharat Jadhav (P.W.7) and arrested appellant no.1. As he had scratches on his cheek, appellantno.1 was sent for medical examination. The medical officer examined him and issued injury certificate ( Ex.44). By that time Navnath, father of Manisha and her other relatives arrived at Kallam. They saw dead body of Manisha in the postmortem room. There were two ligature marks on the neck of the deceased. Navnath, thus, filed report with Kallam Police alleging that the appellants killed his daughter as their demand for money was not satisfied. On the basis of this report ( Ex.36) offence under section 302 and 498A of the Penal Code came to be registered againstthe appellants and PSIKamale took over the investigation. On receipt of postmortem report ( Ex.36) the investigating officer filed charge sheet against the appellants. 4. In support of its case, the prosecution examined eight witnesses. As no direct evidence is available and the appellants are acquitted of the offence punishable under section 498A of IPC, the prosecution relies on the circumstantial evidence. Dr.Dikale (P.W.1) performed postmortem on 9th (6) September 2004 at about 10 a.m. He found following external injuries on the dead body: 1. Ligature mark around the neck below thyroid cartilage 12 x 1/2". Ecchymosis was seen at the base of the ligature mark. 2. Dr.Dikale (P.W.1) performed postmortem on 9th (6) September 2004 at about 10 a.m. He found following external injuries on the dead body: 1. Ligature mark around the neck below thyroid cartilage 12 x 1/2". Ecchymosis was seen at the base of the ligature mark. 2. Another ligature mark 3" above the first mark, above thyroid cartilage 10 x 1/2". The first ligature mark was ante mortem, whereas, the second was postmortem. . The internal examination disclosed fracture of hyoid bone on the right side. Lungs and pericardium were congested. There were semi digested food particles in the stomach. Dr.Dikale prepared postmortem report (Ex.34) giving the cause of death as asphyxia due to strangulation. He further opined that the injury was sufficient in the ordinary course of the nature to cause death. During the cross-examination, the medical officer admitted that the first ligature mark can be caused if a person standing on a cot ties a rope around his neck and gives a jerk. In case the person then falls down from the cot, the second ligature mark can appear on the neck. He, however,maintained that the fracture of the hyoid bone can be caused by the strangulation alone. 5. At the time of his arrest on 9th September 2004, it was found that appellant no.1 has suffered injuries. Therefore, he was sent for medical examination. Medical Superintendent of the hospital (7) examined appellant no.1 and issued injury certificate ( Ex.44) showing that appellant no.1 had sustained an abrasion over third toe of the left foot and had a nail mark over cheek beneath right eye. The appellants have admitted genuineness of the injury certificate, thus formal proof of the injury certificate is dispensed with. 6. At the trial, by way of their defence, the appellants set up a story that brother of the deceased had committed suicide just prior to the incident. Since then the deceased used to be nervous and finally committed suicide. For giving an explanation of the injuries suffered by him, appellant no.1 stated that he had gone out for doing work at the time of the occurrence. While he was returning to the house, he fell down from bicycle and suffered injuries. 7. Since then the deceased used to be nervous and finally committed suicide. For giving an explanation of the injuries suffered by him, appellant no.1 stated that he had gone out for doing work at the time of the occurrence. While he was returning to the house, he fell down from bicycle and suffered injuries. 7. On appreciation of the evidence, the Sessions Judge found that in the context of the admitted fact that the deceased used to treat the deceased nicely till her delivery, about two months prior to the incident, evidence of Navnath ( P.W.2) father ofthe deceased, her mother Sindhu ( P.W.3), sister Uma (P.W.4)and brother-in-law Mohan Gawali ( P.W.5) that she used to be tortured by the appellants as their demand for Rs.50,000/- and gold ornaments was not satisfied, does not inspire confidence. He (8) further found that the medical evidence and the circumstances established by the prosecution lead to the irresistable conclusion that death of the deceased took place while she was in custody of the appellants. Failure of the appellants to give satisfactory explanation of the death of the deceased, leads to the irresistable conclusion that the appellants are responsible for the death of deceased Manisha. In conformity of these findings, learned Sessions Judge acquitted the appellants for the offence punishable under section 498A IPC. He, however, convicted them for the offence punishable under Section 302 read with Section 34 of IPC and sentenced them as stated earlier. 8. In support of the appeal, Shri R.N.Dhorde, learned Counsel for the appellants would argue that as the present case is essentially based on the circumstantial evidence, the prosecution is obliged to establish complete chain of circumstances capable of excluding every hypothesis of innocence of the appellants. Learned Counsel further submitted that in the present case beyond the fact that the death had occurred in the house, no evidence is placed on record to show that the inmates were present or that they participated in the commission of the offence. According to learned counsel, considering the time of the occurrence, presence of the inmates of (9) the house cannot be presumed. In fact the appellants have given satisfactory explanation for their absence from the house at the time of the death. According to learned Counsel, the circumstances proved by the prosecution do not forge a complete chain incompatible with the innocence of the appellants. In fact the appellants have given satisfactory explanation for their absence from the house at the time of the death. According to learned Counsel, the circumstances proved by the prosecution do not forge a complete chain incompatible with the innocence of the appellants. Relying on the decision of the Apex Court in Vithal Tukaram More and others v. State of Maharashtra ( 2002 Cri.L.J. 3546) it is contended that even assuming that the appellants were present at the time of occurrence, mere presence of the relatives of the husband would not, ipso facto, be sufficient to saddle them with vicarious liability for the commission of the offence. 9. Referring to the fact that the death is homicidal and that the appellants had furnished false explanation; learned A.P.P. Shri Shinde contends that no fault can be found with the finding of the lower court regarding the complicity of the appellants in the commission of the crime. Learned A.P.P. Shri Shinde further submitted that no interference with the order of conviction passed by the lower Court is warranted in the facts and circumstances of the present case. 10. It is not in dispute that the prosecution case is entirely based on the circumstantial evidence. In such cases the (10) prosecution is obliged to establish chain of circumstances so complete, that it unerringly establishes guilt of the accused and does not leave any scope for an inference consistent with their innocence. The circumstances relied upon by the prosecution must be incompatible with any hypothesis consistent with the innocence of the accused and should negate all possibilities of their innocence. 11. Learned Counsel Shri Dhorde has rightly submitted that the burden to prove guilt of the accused beyond doubt lies on the prosecution. It is further contended that Section 106 of the Evidence Act is not applicable to the facts of the present case. In support of this proposition, reliance is placed on the decision of the Apex Court in P.Mani v. State 1053 of Tamil Nadu ( 2006 AIR SCW 1053). In that case, referring to the fact that the deceased was alone in the room when she committed suicide; it is observed that section 106 of the Evidence Act is not attracted. In support of this proposition, reliance is placed on the decision of the Apex Court in P.Mani v. State 1053 of Tamil Nadu ( 2006 AIR SCW 1053). In that case, referring to the fact that the deceased was alone in the room when she committed suicide; it is observed that section 106 of the Evidence Act is not attracted. This decision is based on the facts of that particular case and does not lay down principles governing the nature of the burden of proof which the prosecution has to discharge in cases of custodial death. In all cases, the initial burden to prove guilt of the accused is undoubtedly on the prosecution. However,in case of custodial death this burden is lighter as the crime is committed in the (11) privacy of the house where the accused have freedom to choose the time and mode of the commission of the offence. In the absence of the availability of direct evidence, the prosecution cannot be saddled with the responsibility of proving the facts which are exclusively within the knowledge of the accused. In view of Section 106 of the Evidence Act, there is corresponding burden on the accused to disclose the facts which are within their special knowledge. Once the initial burden is discharged by the prosecution, the inmates of the house, in whose custody the death has occurred, are obliged to explain the circumstances leading to the death of the deceased. If they fail to offer probable explanation, this would be an additional circumstance in the chain of the circumstances already established and would substantiate the conclusion regarding complicity of the inmates in the commission of the offence. The inference of the guilt is stronger in case of the husband who is primarily responsible for the safety of the spouse. In case of other inmates mere presence at the time of the occurrence would not be sufficient, it must be further shown that they were not the helpless spectators. The law on this point is no longer res integra. In case of other inmates mere presence at the time of the occurrence would not be sufficient, it must be further shown that they were not the helpless spectators. The law on this point is no longer res integra. Dealing with the nature of the onus on the prosecution to prove guilt of the accused In State of W.B. 382 v. Mir Mohammad Omar ( (2000) 8 SCC 382 ), the Apex Court observed in para 31 of the report: (12) " The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offence would be the major beneficiaries and the society would be the casualty. " . Referring to the principles deducible from Section 106 of the Evidence Act, In Trimukh Maroti Kirkan v. State of Maharashtra ( (2006) 10 SCC 681 ), in para 15 of the report the Apex Court observed: "15. 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 was 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. " 12. 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. " 12. Learned Counsel for the appellants Shri Dhorde has rightly referred to the decision of the Supreme Court in Vithal Tukaram More v. State of Maharashtra 20) ( (2002) 7 SCC 20 ), to emphasize his contention that all the inmates of the house cannot be (13) ipso facto made liable for the commission of the crime in the absence of cogent evidence to establish their participation. While dealing with similar circumstances, Their Lordships observed in para 17 of the report: "17. Assuming that the presence of all the accused persons on the date and time of the incident is fully proved but that fact alone cannot lead to an inference that all of them jointly assaulted the deceased and had common intention to kill her. Mere presence of the accused-appellants in the house cannot reasonably lead to an inference of their joint participation in physical assault and common intention on their part with the convicted accused to commit her murder. The medical evidence showing that the death was not "suicidal" but "homicidal" also does not necessarily lead to the inference of involvement of all the accused in the homicidal death of the deceased. " 13. In the present case edifice of the prosecution case rests on the medical evidence. At the time of the postmortem Dr.Dikale ( P.W.1) noticed two ligature marks on the neck of the deceased. First ante mortem ligature mark was around the neck beneath thyroid cartilage having length of 12 inches with ecchymosis at the base. The second ligature mark was post mortem and was three inches above the first ligature mark. The second ligature mark was not seen on the backside of the neck. It was oblique in direction situated above the thyroid and had length of 10 and half inches. There was no echhymosis at the base of this mark. Coupled with the first ligature (14) mark, the fact that there was fracture of the hyoid bone and other symptoms of the strangulation, the medical officer had no hesitation in coming to the conclusion that the death is caused on account of asphyxia due to strangulation. There was no echhymosis at the base of this mark. Coupled with the first ligature (14) mark, the fact that there was fracture of the hyoid bone and other symptoms of the strangulation, the medical officer had no hesitation in coming to the conclusion that the death is caused on account of asphyxia due to strangulation. Referring to the admission given by the medical officer during his cross-examination, learned Counsel Shri Dhorde, canvassed a theory that these two ligature marks can appear if the deceased first gives a jerk and then slips from the cot on which she was standing. This theory cannot be accepted as it does not have any foundation from the proved facts. The prosecution is not obliged to meet every hypothetical eventuality canvassed by the defence. The courts have to draw logical inferences from the proved facts, having regard to the common course of conduct of the human being. In the ordinary course a person committing suicide would just ditch the support to tighten the noose around the neck. In a normal case of suicide two ligature marks never appear on the neck. There is no evidence to support the theory that the deceased stood on the cot or that the iron rod could support the weight of the deceased. The fact that only the first ligature mark completely encircling the neck is ante mortem; would clinch the issue of the death being the result of strangulation and would prove that the death is homicidal. As the second ligature mark is post mortem, there can be no impediment in coming (15) to the conclusion that the deceased was hanged by her assassin after her death, in a bid to divert suspicion. Absence of injuries over other parts of the body normally caused due to friction with the hard surface of the road in case of fall from moving bicycle and the fact that semi circular injury typically caused by nail is noticed on the cheek of appellant no.1, falsifies his explanation that he suffered injuries due to fall from bicycle while returning to the house. In addition no evidence is adduced to show that appellant no.1 was elsewhere at the time of the occurrence. Nail mark over right cheek of appellant no.1 would indicate that there was struggle between him and the deceased while she was strangulated. In addition no evidence is adduced to show that appellant no.1 was elsewhere at the time of the occurrence. Nail mark over right cheek of appellant no.1 would indicate that there was struggle between him and the deceased while she was strangulated. The struggle between the victim and her nemesis in a case of strangulation is natural as the victim would invariably offer resistance. The medical evidence, therefore, establishes presence and participation of appellant no.1 in commission of the offence. 14. At the time of their examination under Section 313 of Cr.P.C. appellant nos. 2 and 3 have abandoned theory of their absence from the house at the time of the occurrence, propounded at the time of giving intimation ( Ex.59) of the death to the Police (16) and have not adduced evidence to establish their alibi though it is mentioned in the ‘Khabar" ( Ex.59) that neighbours had assembled at the house. The fact that semi digested food particles were found in the stomach would show that the death has taken place about three to four hours from the last meal. Normally the lunch is taken at the villages, at about 1.00 p.m. If this fact is accepted, the time of death would be somewhere between 4.00 to 5.00 p.m. This inference is substantiated by the fact that intimation of the death is given to the Police at 5.30 p.m. In our considered opinion, the proved facts would justify conclusion of the trial Court to the extent of presence of appellant nos.1, 2 and 4 only as appellant no.3 is married and is admittedly residing separately from her parents. It is a matter of common knowledge that strangulation can be done by a single person. In the present case the fact that appellant no.1 suffered injuries during the struggle would justify the inference that he alone is responsible for the death of his wife. This inference is further substantiated by the absence of evidence indicating participation of father-in-law and mother-in-law and by the fact that they never subjected the deceased to torture. In the light of these facts, we are inclined to sustain contention of learned Counsel Shri Dhorde that in the facts of the present case; mere presence of appellant nos. 2 and 4; would not, ipso facto, establish their complicity (17) in the commission of the offence. 15. In the light of these facts, we are inclined to sustain contention of learned Counsel Shri Dhorde that in the facts of the present case; mere presence of appellant nos. 2 and 4; would not, ipso facto, establish their complicity (17) in the commission of the offence. 15. In our considered opinion, pragmatic appreciation of the evidence available on record leads to the conclusion that complicity of appellant no.1 alone is established beyond doubt. Though presence of appellant nos. 2 to 4 is assumed to have been established, in the absence of motive and evidence to show their participation, on the principles evolved by the Apex Court in Vithal More’s case (supra), these appellants are entitled to benefit of doubt. Learned trial Judge did hold that the appellants had not subjected the deceased to torture during her lifetime, but has failed to appreciate significance of the absence of the motive and saddled appellant no.2 to 4 with the vicarious liability for the commission of the crime, in absence of evidence to establish their participation. The circumstances proved by the prosecution that, (1) the deceased died while she was in the custody of the appellants, (2) the appellant had nail mark and scratches on his right cheek and abrasion on left toe, (3) that an attempt is made to divert suspicion by tying rope to the iron rod in the room and, (4) the death is caused by strangulation; coupled with falsity of the explanation given by appellant no.1, would show that inmates of the house are responsible for causing death of the deceased. However, as the strangulation can be accomplished by (18) one person, so also a rope can be tied to the rod in the room to make a show of suicide by a single individual, in absence of injury marks sustained during the inevitable struggle that follows strangulation or other evidence to show participation of appellant nos. 2 to 4, the appellant alone can be held responsible for causing death of his wife for some obscure reason. In the light of this, we set aside finding recorded by the Trial Judge in respect of the complicity of appellant nos. 2 to 4. Finding of the Trial Judge regarding the complicity of appellant no.1, however, deserves to be confirmed. 16. The appeal is, thus, partly allowed. In the light of this, we set aside finding recorded by the Trial Judge in respect of the complicity of appellant nos. 2 to 4. Finding of the Trial Judge regarding the complicity of appellant no.1, however, deserves to be confirmed. 16. The appeal is, thus, partly allowed. Conviction of appellant no.1 - Dayanand Changdeo Zende - for the offence punishable under Section 302 of I.P.C. is confirmed. . The order of conviction and sentence in respect of appellants (accused) Nos. 2 to 4 (Nirmalabai w/o Changdeo Zende, Jyoti Suryakant Kasbe and Changdeo Sambhaji Zende) is modified. Appellants (accused nos. 2 to 4) (Nirmalabai w/o Changdeo Zende, Jyoti Suryakant Kasbe and Changdeo Sambhaji Zende) are acquitted of the offence punishable under Section 302 read with Section 34 of I.P.C. Fine, if paid, be refunded to them. Their bail bonds stand cancelled