Judgment J.R. Vora, J.—Instant Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure against the judgment and order dated 30th of May, 2003, rendered by learned Special Judge (Atrocity), Third Fast Track Court, Mehsana, in Special (Atrocity) Case No. 135 of 1999. The said appellant was the accused in the said Special Case and was charged with the offences punishable under Sections 302 and 506(2) of the Indian Penal Code and also for Section 3(1)(10) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1985, the Trial Judge acquitted the accused appellant for the offence punishable under Section 3(1)(10) of the Prevention of Atrocities Act, but convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- , in default, to undergo imprisonment of 2 months and was also convicted for the offence punishable under Section 506(2) of the Indian Penal Code and was sentenced to undergo simple imprisonment of six months and to pay fine of Rs. 100/-, in default, to undergo imprisonment of 10 days. Hence, this Appeal by the appellant against his conviction and sentences. 2. As per the brief case of the prosecution, the deceased in this case is Keshaben, wife of Samantbhai Vala. Samantbhai Vala along with his wife Keshaben and three children - two daughters - Asha and Anita and son Hasmukh, were residing at Ahmedabad with their parents. Thereafter, during 1992-93, Samantbhai, his wife and children came to Kalol and started residing near Badilia Jhapa on rent and nearby their house, one Bhagyodai Wiring factory was situated where accused was serving as Supervisor. Accused, in that period, started coming to the house of the complainant and their relationship became thick. At that time, the complainant was doing the labour work and, therefore, accused induced him to get job in a factory, named, Sijhar India at Rs. 600/- as monthly salary and thereafter accused started frequently visiting the residence of the complainant, even in absence of the complainant. Thereafter, complainant changed job with the help of the accused and was doing work at Sindhbad Hotel. The visits of the accused at the residence of the complainant was continuing even if the complainant changed residence. 600/- as monthly salary and thereafter accused started frequently visiting the residence of the complainant, even in absence of the complainant. Thereafter, complainant changed job with the help of the accused and was doing work at Sindhbad Hotel. The visits of the accused at the residence of the complainant was continuing even if the complainant changed residence. Ultimately, before six months of the incident, which occurred on 12th of April, 1995, accused enticed the complainant and he represented before him that one room residence, near Saij, GIDC, adjoining one closed factory, could be obtained for the complainant and also promised that when the nearby closed factory starts functioning, he would also get job for the complainant and, hence, the family of the complainant started residing near Saij, GIDC. The rent of the said one room house was Rs. 125/- per month. The said factory and the said residential premises belonged to one Labhshankar. The family of the complainant was staying in the said room before last six months of the incident. Accused also gave Rs. 500/- to the complainant, by which the complainant started pan-beedi shop near the house. Wife of the complainant was doing work of pin sorting in the factory run by one Amrutbhai Mangabhai. During this period, the accused was frequently visiting the house of the complainant even in the absence of the complainant. In the factory in which the wife of the complainant was working, the accused was Supervisor. The wife of the complainant deceased Keshaben was attractive and, therefore, the complainant had suspicion that accused had illicit relationship with his wife. Therefore, he had warned accused not to visit his house, but accused ignored him and threatened that preventive steps on the part of the complainant would result in dire consequences and complainant would be beaten by him. On the day of the incident i.e. on 12th of April, 1995, at about 8.30 a.m., complainant along with his friend Sopanji Nathaji had been to market for purchasing wholesale goods for his pan-beedi shop. His wife deceased Keshaben also wanted to purchase one necklace (mangalsutra) and arrangement was made, therefore that after cooking food for the kids, deceased Keshaben has to join the complainant in the market. His wife deceased Keshaben also wanted to purchase one necklace (mangalsutra) and arrangement was made, therefore that after cooking food for the kids, deceased Keshaben has to join the complainant in the market. Complainant and his friend Sopanji Nathaji both completed purchasing and waited for the wife of the complainant, but she did not turn up and, hence, complainant sent Sopanji Nathaji with the goods to his residence and instructed that the goods which were purchased were to be kept at the residence of the complainant and Sopanji was also requested to send wife of the complainant at the market. Sopanji went to the house of the complainant and returned within 10 minutes on bicycle. He was frightened and asked complainant to go to the house. Immediately on the cycle of Sopanji, complainant came to his house and found that the house was closed from outside, which he opened, and in the house he noticed that his wife was lying in burnt condition and had already been died. His children were sitting near the factory and were crying and, therefore, he asked to the eldest daughter that what had happened. Asha stated that after the complainant left the house, the accused came to their house and had taken the deceased inside the house and started quarreling and thereafter accused burnt their mother and thereafter accused locked the door of the house from outside and ran away from that place. In the meantime, accused was noticed by the complainant and he was confronted and was asked by the complainant about the incident and the accused threatened the complainant that if the complainant uttered a word about the incident to anybody, he would also be done to death and, therefore, the complainant at initial stage filed a report before Kalol Taluka Police Station, on 12.4.1995, at about 19.50 hours, which is at Exhibit-33, wherein he only stated that he had noticed his wife in burnt condition inside the house and thereafter he made arrangements to call his parents from Ahmedabad. This report is placed at Exhibit-33 and was treated as accidental death information. This report is placed at Exhibit-33 and was treated as accidental death information. Accident death inquiry was conducted by Dilipbhai Balvantrai Swaminarayan, Police Sub-Inspector of Kalol Police Station, but thereafter the parents of the complainant came to Kalol and at about 0030 hours on 13.4.1995, complainant filed a detailed FIR before Kalol Taluka Police Station which was recorded by PW-8 Markandrai Trambaklal Mehta, PI, Kalol Taluka Police Station, which is placed at Exhibit-28 and from that, crime came to be registered. He recorded the statements of Ashaben - daughter of the deceased, Sopanbhai Marathi and Narayansinh Puwar, etc and since the offence pertains to atrocities, Deputy Superintendent of Police, SC - ST Cell took over the investigation on 13th of April, 1995. After the investigation, he filed the charge sheet in the Court of learned Judicial Magistrate, First Class. The case thereafter was committed to the Special Court i.e. Court of Sessions and made over to the Trial Court. 3. The trial Court framed charges of the above offences against accused at Exhibit-8 on 24th of January, 2003 and accused pleaded not guilty. 4. The prosecution therefore examined 9 witnesses as under : PW-1 Naransinh Meghsangji Tuvar Exhibit 14 PW-2 Jagadishbhai Nanjibhai Tank Medical Officer, Exhibit 15 PW-3 Babuji Jaymalji Chavda Exhibit 27 PW-4 Naranbhai Ramabhai Prajapati Exhibit 30 PW-5 Samantbhai Valabhai Makwana complainant Exhibit 32 PW-6 Ashaben Samantbhai Makwana daughter of complainant Exhibit 37 PW-7 Dilipbhai Balvantrai Swaminarayan Exhibit 40 PW-8 Markandarai Trambaklal Mehta Exhibit 41 Police Inspector (I.O.), Ahmedabad. PW-9 Jashvantsinh Karansinh Gohil Dy. S.P., SC- ST Cell, Mehsana Exhibit 49 5. Prosecution also produced on record Postmortem Note at Exhibit-16, Certificate of cause of death at Exhibit-17, Medical Certificate of the accused at Exhibit-20, FIR at Exhibit-28, Accidental Death Report field by the complainant vide Exhibit-33, Scene of offence panchnama vide Exhibit-38, Inquest Panchnama - vide Exhibit-34, Panchnama of arrest of accused - vide Exhibit-36, vide Exhibits 22 to Exhibits 26 reports of the Forensic Science Laboratory and the letters are produced vide Exhibits 42 to 46 the covering letter by which the muddamal was sent to Forensic Science Laboratory. Thereafter the incriminating circumstances were brought to the notice of the accused and his statement was recorded under Section 313 of the Code of Criminal Procedure. Thereafter the incriminating circumstances were brought to the notice of the accused and his statement was recorded under Section 313 of the Code of Criminal Procedure. After denying the evidence of the prosecution, the accused stated that, in fact, he had been there to save Keshaben and while he attempted to save Keshaben, he also got burn injuries. Except that, he did not know anything about the incident. Thus, in his further statement, accused admitted his presence at the scene of offence and denied all the incriminating circumstances. 6. Thereafter, the learned Trial Judge heard learned APP as well as the learned Counsel for the defence and came to the above conclusion to convict and sentence the appellant, as afore stated. Hence, the present Appeal. 7. We have heard in great detail learned Advocate Mr. B.S. Supheia for appellant and learned APP Ms. Chetnaben M. Shah for respondent in this Appeal. 8. Learned Advocate Mr. B.S. Supheia for the appellant vehemently submitted that Sopanji Nathaji, friend of the complainant, who had been with the complainant for purchasing wholesale goods for the pan-bidi shop of the complainant, has not been examined by the prosecution and the important material witness has been dropped. The involvement of the accused in this crime certainly appears to be an afterthought as the complainant earlier filed first declaration before the police, which is at Exhibit-33, wherein he did not involve the accused and he did not know the cause of death or the incident. Afterwards i.e. 5/6 hours of filing the Exhibit-33 accidental death report, complainant gave complaint at Exhibit-28, wherein he attempted to involve the accused in the incident. It is further submitted that, according to the deposition of PW-6 Ashaben, the complainant was informed by her that the accused was involved in the incident and Exhibit-33 declaration was made by the complainant thereafter, even then, he did not involve the accused and, hence, only inference which could be drawn is that neither the complainant nor PW-6 Ashaben could be believed and the involvement of the accused - appellant in the crime was an afterthought. Circumstances which have been established through the evidence, it is borne out that accused did not know the complainant and his family before they came to Kalol and out of sympathy he tried to help the accused in finding out the job and in finding out the residence and from that only the complainant had wrong suspicion about the illicit relationship. It is submitted that, in fact, Exhibit-28 cannot be treated as First Information Report and Exhibit-33 complaint which is produced on record must be treated as First Information Report where the involvement of the accused is not at all mentioned. Ashaben - PW-6, being daughter of the complainant, must have been tutored by the complainant, which is apparent from the evidence of Ashaben. It is submitted that no independent witness has been examined, though available, and only independent witness examined by the prosecution i.e. PW-1 Naransinh Meghsangji Tuvar, examined at Exhibit-14, has not supported the prosecution case. It is ultimately, therefore, submitted that the Appeal be allowed and the judgment and order of conviction and sentence impugned in this Appeal be set aside and accused be acquitted. 9. As against that, learned APP Ms. Chetnaben M. Shah, submitted that it is proved by the prosecution through the evidence of PW-2 Dr. Jagdishbhai Nanjibhai Tank that the death was homicidal and the accused admitted his presence at the scene of offence. Not only that, the accused had burn injuries, for which he gave statement before the Doctor, but in his statement under Section 313 of the Criminal Procedure Code, he admitted that, he was present at the scene of offence. The evidence of complainant as well as Ashaben cannot be brushed aside merely because both are father and daughter. It cannot be presumed that merely because Ashaben is daughter, she must have been tutored by his father. The history which the complainant has given reveals that the wife of the complainant - deceased Keshaben was attractive and the accused had developed illicit relationship with her and on account of that quarrels ensued and Keshaben was done to death. It is submitted that, according to the opinion of PW-2 Dr. Jagadishbhai, the death was caused due to asphyxia on account of suffocation and the burn injuries were postmortem and not antemortem injuries. It is submitted that, according to the opinion of PW-2 Dr. Jagadishbhai, the death was caused due to asphyxia on account of suffocation and the burn injuries were postmortem and not antemortem injuries. Prosecution, therefore, could establish a very strong case against the appellant of this appeal and the Appeal being merit less, requires to be dismissed. 10. We have undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record has been thoroughly scrutinized with reference to the broad and reasonable probabilities of the case. We have dealt with and appreciated the contentions raised by both the sides in this Appeal. 11. While re-appreciating the evidence adduced by the prosecution, it becomes crystal clear through the deposition of PW-2 Jagadishbhai Nanjibhai Tank, who was a Doctor at Kalol Municipal Hospital, Kalol and conducted the postmortem on the dead body of Keshaben from 8.10 hours to 10.20 hours. He found the following injuries on the body of the deceased. (1) flattened (pressed) notice (2) abrasion 1cm x 1 cm over nasal lip. (3) laceration - at incident of lower lip (teeth mark) (4) 70-80% of skin area involved in burns. PW-2 stated that injuries No. 1 to 3 were ante-mortem, while injury No. 1 was postmortem. 12. For cause of death, PW-2 stated that, however, death of deceased - Keshaben Samantbhai was on account of asphyxia due to suffocation. He submitted that there were 70 to 80% burn injuries which is at Sl. No. 4 in Column No. 17. As stated above, they were postmortem injuries. Meaning thereby that, after throttling deceased Keshaben, first, dead body was burnt thereafter. This cause of death could not be dislodged by the defence and on the contrary, the Doctor stated in examination-in-cross that while a person is throttled or asphyxiated, the situation was sufficient to cause death in ordinary course of nature and, hence, the homicidal death by asphyxia as well as setting the dead body on fire thereafter is proved beyond doubt by the prosecution. 13. The involvement of the accused in the crime when scrutinized through the evidence of prosecution, it becomes clear that, PW-5 Samatbhai Valabhai Makwana, stated in uncertain terms that, on account of the behaviour of the accused, he had reason to believe that the accused had developed illicit relationship with his deceased wife, who was attractive. 13. The involvement of the accused in the crime when scrutinized through the evidence of prosecution, it becomes clear that, PW-5 Samatbhai Valabhai Makwana, stated in uncertain terms that, on account of the behaviour of the accused, he had reason to believe that the accused had developed illicit relationship with his deceased wife, who was attractive. While appreciating this evidence, it clearly transpires from the evidence that accused was very much involved in the crime. There was no reason for the accused to help the family of the complainant except ill-tendency towards the attractive wife of the complainant. Complainant, examined as PW-5 at Exhibit-32, in all respects, stick to his complaint given before the police at Exhibit-28. He deposed that accused was warned not to visit his house frequently, but accused had threatened him. He did not conceal the fact that in the first declaration which he made before the police, which is at Exhibit-33, he did not involve the accused. The reasons for not involving the accused in Exhibit-33 has also been elaborately stated by the complainant in his complaint. He stated in uncertain terms that accused had threatened him and, therefore, he was frightened and only because his parents came from Ahmedabad, he mustered courage to declare the true facts before the police in Exhibit-28. Now Exhibit-28 - First Information Report is proved beyond doubt by the deposition of complainant as well as the deposition of PW-8 Markandarai Trambaklal Mehta. In this respect, we do not find any cross-examination of the complainant from the defence side. On the contrary, what is asked is the allegation that the complainant had suspicion about illicit relationship of the accused and his wife and, therefore, he murdered his wife. This allegation has been categorically denied by the witness complainant - Samantbhai. In cross-examination also, it is admitted by the defence that the accused was helping the complainant and his family and, therefore, he was frequently visiting his house. It was also an admitted fact that in the absence of the complainant, the accused used to visit the house of the complainant. All these circumstances inevitably lead to the presumption that suspicion of the complainant had a solid ground that the accused had illicit motive towards the wife of the complainant. It was also an admitted fact that in the absence of the complainant, the accused used to visit the house of the complainant. All these circumstances inevitably lead to the presumption that suspicion of the complainant had a solid ground that the accused had illicit motive towards the wife of the complainant. It has been proved in the deposition of the complainant that Ashaben, his daughter, informed him that accused had been to their house and had taken Keshaben - deceased inside the house and had started quarreling with her and thereafter Keshaben was burnt by the accused. Over and above this, the explanation which the complainant offered in Exhibit-28, which is proved beyond doubt, could not be challenged at all by the defence. If the circumstances are further probed, it becomes clear that the explanation offered by the complainant in Exhibit-33 not involving the accused is probable and plausible that when a person who is helping complainant financially and highhanded a poor person like the complainant, then he would be frightened and would not disclose the involvement of the accused on that count. It is also probable that when the parents of the complainant came from Ahmedabad and with the help of the parents he could muster the courage to state true facts before the police, which is proved beyond doubt and is probable in the circumstances in which the incident had occurred. The presence of the accused is not denied at the scene of offence, which he admitted in his statement under Section 313 of the Code of Criminal Procedure and it is also proved by the certificate produced on record at Exhibit-20 which is admitted by the accused in respect of the injuries on the hands of the accused. All the circumstances, therefore, undoubtedly established that the accused was present at the scene of offence and quarrel must have been ensued between the accused and Keshaben and Keshaben must have been throttled by the accused. 14. The incident and the prosecution story is well corroborated by PW-6 Ashaben, examined at Exhibit-37. She stated that accused ordered her mother to prepare tea for him. While the accused visited her house, her father - complainant had been to market for purchasing goods. 14. The incident and the prosecution story is well corroborated by PW-6 Ashaben, examined at Exhibit-37. She stated that accused ordered her mother to prepare tea for him. While the accused visited her house, her father - complainant had been to market for purchasing goods. By pulling the heirs of Keshaben, accused dragged her inside the house and insisted for preparing tea, which Keshaben refused because she had to go to the market and meet her husband. This witness Ashaben deposed that after dragging inside, her mother was burnt by the accused, who had closed the door of the house from inside. Thereafter, the accused came out and offered Rs. 2/- to them and stated that they should purchase biscuits for Rs. 2/-. This story appears very natural and probable and we do not find any tutoring in the evidence of Ashaben. She has been cross-examined in detail, but nothing is asked about the incident to this witness. On the contrary, she was asked whether the house could be noticed from where she was playing and she stated in uncertain terms that the house was easily visible. She denied the suggestion that on account of suspicion on the mind of her father, her father had murdered her mother. Except that, there is nothing in the cross-examination. 15. Therefore, the incident occurred has been established fully by the evidence of these two witnesses. Medical evidence is corroborating the evidence of these two witnesses. Not only that, PW-1 Naransinh, who has been though declared hostile, stated to the extent that, the kids who were playing outside were shouting that her mother was burnt. To that extent, the evidence of PW-1 Naransinh is corroborating the prosecution case. 16. Therefore, there is no merit in the contention that in Exhibit-33 the accused was not involved by the complainant and involving the accused after giving the FIR at Exhibit-28 was an afterthought. The explanation offered by the complainant for not involving the accused in Exhibit-33 declaration is proved and unchallenged. Not only that but while going through Exhibit-33 it becomes clear that the same cannot be treated as First Information Report as it does not disclose any cognizable offence and it was merely a declaration of unnatural accidental death. The Trial Court, therefore, rightly held that Exhibit-28 to be the FIR. 17. Not only that but while going through Exhibit-33 it becomes clear that the same cannot be treated as First Information Report as it does not disclose any cognizable offence and it was merely a declaration of unnatural accidental death. The Trial Court, therefore, rightly held that Exhibit-28 to be the FIR. 17. So far as the other witnesses are concerned, PW-3 Babuji Jaymalji Chavda was PSO on 12th of April, 1995 and registered the offence as per the complaint given by the complainant to PI, which is at Exhibit-28. This complaint was offered at 00.30 hours on 13th of April, 1995. PW- 4 Naranbhai Ramabhai Prajapati, examined at Exhibit-30, was Revenue Circle Inspector and produced the map of scene of offence at Exhibit-31. PW-7 Dilipbhai Balvantrai Swaminarayan, PSI, Kalol Police Station, examined at Exhibit-40, recorded the Exhibit-33 declaration as has been made by the complainant. As aforesaid, PW-8 and PW-9 are the Investigating Officers. The panchnamas i.e. inquest panchnama, panchnama of scene of offence and arrest panchnama, are the documents admitted by the defence and were exhibited and admitted to evidence. From the above discussion, it becomes crystal clear that, the trial Court did not commit any error in coming to the conclusion that though the accused - appellant was not guilty for the charges levelled against him under Sections 3(1)(10) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, but the accused was found guilty for the offences punishable under Sections 302 and 506 (2) of the Indian Penal Code. The trial Court relied upon the evidence of PW-5 complainant and PW-6 Ashaben and the corroborating evidence of the Medical Officer i.e. PW-2. When we re-appreciated the evidence as aforesaid and scrutinized the circumstances, for the reasonable probability, we found that, the case was proved by the prosecution beyond doubt that the accused had ill-motive towards Keshaben and she was done to death by throttling her and cause of death was asphyxia. There were injuries on the body of Keshaben, which were antemortem. The dead body was burnt by the accused and thereafter those injuries were postmortem injuries. We are unable to accept the contention of the learned Advocate for the appellant that the involvement of the accused was an afterthought and Exhibit-28 FIR was given after considerable long time. As discussed above, prosecution has explained the circumstances and those explanations are fully established. We are unable to accept the contention of the learned Advocate for the appellant that the involvement of the accused was an afterthought and Exhibit-28 FIR was given after considerable long time. As discussed above, prosecution has explained the circumstances and those explanations are fully established. In this view of the matter, the following Order is passed: “Appeal stands dismissed. Muddamal to be disposed of in terms of directions of the Trial Court.”