Judgment J.R. Vora, J.—The instant appeal has been preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973 (“the Code” for short) against the judgment and order rendered by learned Additional Sessions Judge, Court No. 9, Ahmedabad City on 21.2.2004 in Sessions Case No. 35 of 2003 whereby the present appellant being the accused of the said Sessions Case came to be convicted for the offence punishable under Section 498-A of IPC and for the offence punishable under Section 302 of IPC. The appellant was sentenced to undergo imprisonment for three years and to pay a fine of Rs. 5000/-, in default, to undergo rigorous imprisonment for six months for the offence established against him under Section 498-A, while he was sentenced to undergo imprisonment for life and to pay a fine of Rs. 7000/-, in default, it was directed that the same shall be recovered in accordance with law. It was directed that both the sentences shall run concurrently. 2. As per the brief case of the prosecution, in this case the deceased is Femidabanu, wife of the accused. The appellant and the daughter of the complainant Hajimiya Mohammad Shaikh, resident of Vasna, Ahmedabad. The husband of Femidabanu appellant herein was her maternal cousin and wedding took place in 1996 and out of this wedlock, Femidabanu had delivered the child named Mohammad Asad. After three months of the marriage of the appellant and Femidabanu, their marriage life was in doldrum and it is alleged that the appellant started doubting chastity of Femidabanu and executed mental as well as physical cruelty. It is alleged that numbers of time during her married life, Femidabanu visited the house of her parents and expressed her determined will not to return the home at her in-laws. It is the prosecution case that, however, after considerable persuasion, Femidabanu was sent back to the house of the appellant and the appellant was also requested to behave in a good manner. On 24.10.2001, Sairabanu - sister-in-law of Hajimiya Mohammad Shaikh - complainant - the father of the deceased came around 9.30 in the morning and conveyed to the complainant that Femidabanu was sick. In pursuance of this news which he had received, Hajimiya Mohammad Shaikh visited the house of the parents of the appellant and it was found by him that Femidabanu - his daughter had already died. In pursuance of this news which he had received, Hajimiya Mohammad Shaikh visited the house of the parents of the appellant and it was found by him that Femidabanu - his daughter had already died. According to his case, the appellant conveyed to him that at around 8.30 in the morning, Femidabanu had vomiting and convulsion which resulted into her death. It was also at that juncture heard by the complainant that Femidabanu had committed suicide by hanging on fan and undoubtedly there were marks of ligature around her neck. On the same day, i.e. on 24.10.2001, the complaint came to be filed by the father - Hajimiya Mohammad Shaikh before the police i.e. before the Assistant Commissioner of Police, “C” Division, Ahmedabad which was recorded and initially came to be registered against the accused under Sections 498-A and 306 of IPC. During the investigation and from the postmortem note, it was found that the death was homicidal and, therefore, charge under Section 302 was added and chargesheet was filed against the accused appellant before the court of learned Metropolitan Magistrate who in turn committed the case to the Court of Sessions and was made over to learned trial Judge. 3. Initially, charge came to be framed against the appellant accused by the trial Court vide Exhibit 4 on 9.5.2003 for the offence punishable under Sections 498-A and 306 of IPC. However, thereafter after passing the detailed order below Exhibit 4, further charge came to be framed against the accused on 17.9.2003 whereby the accused was also charged alternatively for the offence punishable under Section 302 as well. The charge was read over to the accused who pleaded not guilty. The prosecution, therefore, examined as many as 11 witnesses as under. 1. P.W. 1 Hajimiya Mohammadmiya Shaikh Exhibit 29 2. P.W. 2 Merajbibi Hajimiya Shaikh Exhibit 31 3. P.W. 3 Asad Asif Shaikh Exhibit 32 4. P.W. 4 Dr.Vinayak Rao Patil Exhibit 33 5. P.W. 5 Bahdursinh Narsinh Exhibit 35 6. P.W. 6 Ruksanabanu Yasinmiya Exhibit 38 7. P.W. 7 Hamirkhan Gulamhussain Exhibit 41 8. P.W. 8 Hussanabibi Gulam Mohd.Shaikh Exhibit 47 9. P.W. 9 Indrajitsinh Chandrasinh Raj Exhibit 48 10. P.W. 10 Rajen Mahendrabhai Desai Exhibit 58 11. P.W. 11 Satishbhai Ambalal Trivedi Exhibit 61 4. To prove the case, the prosecution also produced the following documentary evidence. 1 Exhibit 49 Complaint dated 24.10.2001. P.W. 7 Hamirkhan Gulamhussain Exhibit 41 8. P.W. 8 Hussanabibi Gulam Mohd.Shaikh Exhibit 47 9. P.W. 9 Indrajitsinh Chandrasinh Raj Exhibit 48 10. P.W. 10 Rajen Mahendrabhai Desai Exhibit 58 11. P.W. 11 Satishbhai Ambalal Trivedi Exhibit 61 4. To prove the case, the prosecution also produced the following documentary evidence. 1 Exhibit 49 Complaint dated 24.10.2001. 2 Exhibit 52 Report of registration of crime under Section 157 of Cr.P.C. dated 24.10.2001. 3 Exhibit 37 Inquest panchnama dated 24.10.2001. 4 Exhibit 38 Panchnama of scene of ofence dated 24.10.2001. 5 Exhibit 39 Discovery panchnama of scissors and dupatta, discovered at the instance of the accused dated 24.10.2001. 6 Exhibit 10 Panchnama of cloths and bottles of blood, hair etc. of the deceased after postmortem. dated 25.10.2001. 7 Exhibit 11 Panchnama of seizure of wooden bat (DHOKA). dated 24.10.2001. 8 Exhibit 12 Panchnama of arrest of accused, dated 24.10.2001. 9 Exhibit 13 Postmortem Note of deceased Famidabanu. dated 24.10.2001. 10 Exhibit 14 Report of examination of scene of offence by FSL Expert. dated 24.10.2001. 11 Exhibit 15 Copy of forwarding letter of muddamal sent to FSL. dated 02.11.2001. 12 Exhibit 16 FSL receipt. dated 05.11.2001. 13 Exhibit 17 Covering letter of FSL. dated 08.01.2002. 14 Exhibit 18 Report of FSL. 15 Exhibit 19 Receipt of FSL. dated 05.11.2001. 16 Exhibit 20 Covering letter of FSL, dated 08.01.2002. 17 Exhibit 21 Report of FSL. dated 05.01.2002. 18 Exhibit 22 FSL Receipt. dated 05.01.2002. 19 Exhibit 23 Covering letter of FSL. dated 11.02.2002. 20 Exhibit 24 Report of FSL. dated 07.02.2002. 21 Exhibit 25 Serological report of FSL. dated 06.02.2002. 22 Exhibit 26 Report of FSL. dated 05.01.2002. 23 Exhibit 64 Request for the bill of videography. 24 Exhibit 57 Complaint registered as Accidental Death Case No. 29/01 under Section 174 of Cr.P.C. 25 Exhibit 59 Photographs. 5. Thereafter, the trial Court put all incriminating circumstances to the accused under Section 313 of the Code wherein the defence of the accused appears to be of total denial and stated that false case had been filed against him. He did not examine any defence witness. Therefore, the trial Court heard both the sides and came to the above conclusion. Hence, this appeal by the appellant accused. 6. In the present appeal, learned Advocate Mr. He did not examine any defence witness. Therefore, the trial Court heard both the sides and came to the above conclusion. Hence, this appeal by the appellant accused. 6. In the present appeal, learned Advocate Mr. Shaikh vehemently urged that conviction of the accused under Section 302 is erroneous and it is required to be set aside. It is vehemently submitted that the trial Court unnecessarily criticized the conduct of the accused appellant post incident and came to the conclusion that the same was one of the factors in missing link of circumstantial evidence against the accused. It is also submitted that the case rests on the circumstantial evidence and as per the law, the prosecution is bound to prove all necessary circumstances from which inference of guilt of the accused is required to be drawn. It is submitted that the circumstances which are incompatible with the innocence of the accused would only be taken into consideration to prove guilt of the accused in such cases. Though so far as conviction of the accused under Section 498-A is concerned, it has not been much pressed, but it is submitted that though defence has projected case of hanging by the deceased as alternative theory, but it is fairly submitted by Mr. Shaikh that undoubtedly, this is a case of strangulation. learned Advocate further submitted that it is not necessary that strangulation in all cases must be homicidal. The expert did not rule the possibility of strangulation suicidal. It is submitted that learned trial Judge took into consideration only the evidence of medical expert who conducted the postmortem and ignored the other evidence. It is submitted that it is the prosecution case itself that the doors of the room from which the dead body was found was closed from inside which was broken open by breaking the door. The evidence of child witness Asad has not been taken into consideration by the trial Court when he said that his mother died of strangulation suicidal. It is submitted that the prosecution has failed to establish the presence of the accused at the scene of offence. Learned trial Judge, according to Mr. Shaikh, erred in coming to the conclusion that the accused appellant offered false explanation to misguide the investigation and inquiry. It is submitted that the prosecution has failed to establish the presence of the accused at the scene of offence. Learned trial Judge, according to Mr. Shaikh, erred in coming to the conclusion that the accused appellant offered false explanation to misguide the investigation and inquiry. It is submitted that possibility or probability that the accused cut ligature by scissor just to save the deceased from dying has not at all considered by the trial Court, otherwise accused had no occasion to cut ligature. It is submitted that this evidence is not correctly appreciated by the trial Court. It is submitted that dupatta by which strangulation is executed has been produced as muddamal and it has two knots which might have been administered by the deceased herself and not by the accused. There are no injury marks except very minor ante-mortem injuries. It is, therefore, submitted that the trial Court appreciated the evidence not in its true perspective and, therefore, erred in relying upon the medical evidence and consequently coming to the conclusion that the accused appellant was guilty for the offence punishable under Section 302. It is submitted that, the appeal be allowed and the accused be acquitted of the charge under Section 302. 7. As against that, learned APP Mr. Dabhi has also vehemently submitted that in all circumstances, it has been established by the prosecution beyond any doubt that when the death of the deceased occurred, she was in the custody of the accused and the accused only. They were staying together in the same room in which the dead body was found. This circumstance was required to be explained by the accused before the Police Officer, but he failed to give correct explanation and correct explanation of this circumstance could not be given by him in his further statement also. It is submitted that this conduct of the accused is relevant under Section 8 of the Indian Evidence Act. It is submitted that the accused took specific defence of death of Femidabanu by hanging which proved to be false in all respects and hence, it is a case of false explanation by the accused and as such it is a missing link in the chain of circumstances against the accused. It is submitted that the accused took specific defence of death of Femidabanu by hanging which proved to be false in all respects and hence, it is a case of false explanation by the accused and as such it is a missing link in the chain of circumstances against the accused. It is submitted that in pursuance of the information given by the accused under Section 27 of the Indian Evidence Act, dupatta which was used as ligature by the accused as well as scissor by which he cut dupatta after the deceased died are recovered from him. It is submitted that though panchas have not supported to this discovery panchnama, but it has been proved beyond doubt by the Investigating Officer that in his presence, this panchnama was drawn and the accused had discovered dupatta and scissor from the attic of the room in which he and the deceased were residing and the presence therefore of the accused could be established by the fact that he cut dupatta by scissor soon after the death and under Section 27 upon his information, such dupatta and scissor were recovered. It is submitted that learned trial Judge has noted 20 to 22 circumstances against the accused to hold guilty for the offence punishable under Section 302 of IPC. The cumulative effect of these circumstances is nothing but irresistible inference that the accused and the accused who had strangulated his wife Femidabanu and had caused the death. It is submitted that the appellant accused had strong motive for committing this heinous act. The relatives i.e. parents of the deceased though have turned hostile, but so far as the aspect of cruelty is concerned, it has been established beyond doubt that the accused was doubting chastity of the deceased and was executing mental as well as physical cruelty on account of which he ultimately committed the murder of his wife. It is submitted that skirmishes which culminated upto the quarrel used to drive the deceased to her parents from the house of her husband and all these circumstances suggest that the accused has committed murder of the deceased and is guilty for not only the offence punishable under Section 498-A, but also for the offence punishable under Section 302 of IPC. Learned APP relied upon certain decisions which we will discussed later on. Learned APP relied upon certain decisions which we will discussed later on. Learned APP also relied upon the opinion of the expert offered on Medical Jurisprudence. It is, therefore, submitted that the appeal be dismissed entirely. 8. We have considered carefully and throughly the record and proceedings of the trial Court. We have scanned the evidence recorded during the trial and have reappreciated the same in this appeal. We have considered reasonable probability arising out of the facts established from the evidence recorded during the trial. We have also considered the contentions raised by learned Advocate for the appellant and learned APP in respect of this appeal. 9. Having regard to the evidence of the prosecution, it appears that P.W. 1 Hajimiya Mohammad Shaikh examined at Exhibit 29 has not supported the prosecution case though he is the complainant in the case and the death has been caused of his daughter. He stated that his daughter had committed suicide by strangulation and his son-in-law also conveyed to him the said fact. Learned APP conducting the trial declared the witness hostile who was confronted with the complaint. Though the averments made in the complaint by the witness have initially been relied, but in further cross, he admitted that before the police, he had said that the appellant was doubting chastity of the deceased and, therefore, Femidabanu was frequently coming to his house. Once she had stayed with the witness for about 1 and 1/2 year and compromise was executed between the parties by one Gulamatbhai and his wife who were friends of Gulam Kadar i.e. father of the accused. He again in his deposition admitted the fact that there was quarrel between the husband and wife and her daughter once had come to him bare foot and the deceased had again conveyed to him that the accused was doubting her chastity and at that time, she stayed with him for about 15 days and thereafter Sairabanu - sister of this witness persuaded her and she resumed the house of in-laws. He also admitted that for certain period, the husband and wife were staying alone for 2 - 3 months at Ramol, Khanwadi. He also admitted that for certain period, the husband and wife were staying alone for 2 - 3 months at Ramol, Khanwadi. In examination by the Court, he stated that he had good relation with the parents of the accused as they were his relatives to the extent that the mother of the accused was real sister of the wife of the witness. 10. P.W. 2 - Merajbibi Hajimiya Shaikh examined at Exhibit 31 is the mother of the deceased and she has also turned hostile. Though in her examination in cross, she admitted that before 2 and 1/2 years of the incident, on account of the husband of Femidabanu was doubting her chastity, she visited her house and it was also admitted by this witness that Femidabanu was telling her that she was met with cruelty physical as well as mentally. 2 - 3 times during their wedlock according to the witness, Femidabanu abandoned her in-laws house and came to the house of her parents. Not only that, it is also admitted by her that after rigorous persuasion and after intervening of other relatives, she was prepared to resume her in-laws house. 11. P.W. 3 is a child witness examined at Exhibit 32. Asad Ashif was aged about 7 years when his deposition was recorded and was about 4 and 1/2 years when the incident occurred. After verification of his understanding, his deposition in the form of question answer has been recorded in which he has stated that his mother died of strangulation. He denied the fact that there was any dispute between her parents. His deposition is short and he has not been cross examined by the defence. 12. Very important evidence is of witness No. 4 - Dr. Vinak Rao Patil examined at Exhibit 33. His evidence is required to be noted verbatim because from his evidence, the trial Court came to the conclusion that the death was homicidal and that the accused was responsible for strangulation. He stated as under in his deposition. 12.1. I have done M.D. in Forensic Medicine as well as M.D. in Anesthesia subject. Since, 1984 I was working in the Civil Hospital as a tutor upto 1998 and from 1998 I have become Asst. Professor and till the date I am working as an Asst. Professor. Presently, I am at Jamnagar in Forensic Medicine Department. 12.2. 12.1. I have done M.D. in Forensic Medicine as well as M.D. in Anesthesia subject. Since, 1984 I was working in the Civil Hospital as a tutor upto 1998 and from 1998 I have become Asst. Professor and till the date I am working as an Asst. Professor. Presently, I am at Jamnagar in Forensic Medicine Department. 12.2. On dated 25.10.2001, I was present on my duty in Forensic Department at B.J.Medical College, Civil Hospital, Ahmedabad. On that day, in the morning at about 8.20 a.m. dead body of Femidabanu Mohammad Asif Shaikh was sent to us for postmortem examination by P.I. of Shahpur Police Station along with police constable, buckle No. 4767. The postmortem was started by me and my colleague Dr. J.V.Satapara at 10.50 a.m. in the morning and we completed the same on the same day at 12.00 noon. 12.3. The dead body was of a female of 26 years of age. The clothes present on her body were one pista coloured top and purple coloured salvar and other clothes and articles found on her body have been written in column No. 7 of the P.M.Note. The salvar was found stained with urine. The Rigor Mortis was present all over the body and purple coloured P.M. lividity was present on the back and extensor aspect of both upper limbs. Mouth was semi open and tongue was inside the mouth. Pinkish Grey discharge was coming out from the mouth and nose. Eyes were closed. Sub-conjuetival hemorrhage were seen in left eye. Lips and nails were cyanosed. Face was extremely congested and ant bite were found on both axilla and on right neck. Ants were found on the body also. There was discharge of urine seen. 12.4. Following external injuries are present on the body is mentioned in column No. 17 of P.M. Report. i. The ligature mark was present on neck at the lower level of hyoid cartilage. It was nearly horizontal and passed upwards on right side from midlines which measured 12 x 1.5 cms upto posterior lateral side of neck. It was in the form of dark brown band of skin. On left side it goes horizontal backwards measuring 15 x 1.5 cms from midlines upto back of neck. On left side, it was in the form of diffuse red colour band of skin. ii. It was in the form of dark brown band of skin. On left side it goes horizontal backwards measuring 15 x 1.5 cms from midlines upto back of neck. On left side, it was in the form of diffuse red colour band of skin. ii. On left lateral side of neck, there was a scratch present of size 3 x 0.1 cms. It was going from mid supra clavicular region directed anterior to posterior. iii. On right side of neck, there was friction abrasion of size 5 x 0.5 cms. It was present 1 cms inferior to right side ligature mark of neck. Above discussed injuries were ante mortem in nature. 12.5. On internal examination Subcutaneous tissues and muscles below ligature mark i.e. injury No. 1 were contused and contusion is seen more on right side. The tissues below the external injury No. 3 were also contused. Both the lungs were congested and A.D. matters on cutting them, frothy blood comes out. Right side of heart was full of blood and left side is empty. In the stomach, there was about 50 ml pinkish grey thick fluid. The mucosa was mild congected. All the internal abdominal organs and brain were congested. The uterus was enlarged and pregnant. Its size was 19 x 15 x 3.5 cms and uterus contained a male foetus of 18 cms length and 125 gms weight and the foetus is about 4.5 months intra uterine life. 12.6. After completion of postmortem examination, viscera was preserved and handed over to the police on duty and the cause of death is as given in column No. 23 of P.M.Report. The death of the deceased was due to Asphyxia as a result of strangulation. Viscera were preserved for chemical analysis. This P.M.Report is written in the hand writings of Dr. Satapara and signed by both of us. I identify my and his signature and the contents are true. BY THE COURT 12.7. Hyoid bone was not fractured. 12.8. From the external injuries that I have found on the dead body, I conclude that, the death was homicidal and certainly not suicidal. 12.9. Satapara and signed by both of us. I identify my and his signature and the contents are true. BY THE COURT 12.7. Hyoid bone was not fractured. 12.8. From the external injuries that I have found on the dead body, I conclude that, the death was homicidal and certainly not suicidal. 12.9. The reason why I am saying that, this is a strangulation is because as per medical science and literature, no one can strangulate himself by any ligature because if someone is tightening any ligature on neck, within few seconds he will become unconscious and since, he will become unconscious, his grip will loosen and full death cannot happen and he will again regain consciousness. 12.10. Death must have been occurred 24 hours before I started my examination. 12.11. From the external injuries marks, I can say that, the material used for strangulation can be either dupatta or the rope, the width of which would be around 1.5 to 2 cms after fully stretching. 12.12. Hyoid bone is high in the neck and it is only if the ligature mark is on the hyoid bone then there would be the fracture of hyoid bone and in this case, as the ligature mark was at a lower level in the neck, hyoid bone has escaped the fracture.” (At this juncture, it appears that learned Advocate for the accused asked for adjournment and the cross examination of the witness was deferred to another date i.e. on 10.09.2003.) “FURTHER CROSS-EXAMINATION BY LA Mr. A.N. ALVI. I swear in the name of God that whatever I will speak will be the truth and nothing but the truth. 1. I do not agree that, in the cases of strangulation the knot of ligature would come at the back of the neck. 2. The ligature mark on the right side was nearly horizontal whereas, on the left hand side, it was totally horizontal. 3. It is not true that, I have not mentioned the said fact in the P.M. Report. The witness volunteers that, in column No. 17 of the P.M. Report, it is mentioned. 4. If the other person tries to strangulate, there may be ligature makes encircling the neck or there may not be. 5. Q. If there is a death by hanging, there may not be ligature mark on the back? A. It depends on the position of the knot. 4. If the other person tries to strangulate, there may be ligature makes encircling the neck or there may not be. 5. Q. If there is a death by hanging, there may not be ligature mark on the back? A. It depends on the position of the knot. The ligature mark is generally found on the opposite side of the neck. If there is a knot on the frontal portion, there may be ligature mark on the back portion. 6. Q If a person is tying to strangulate the other with ligature, would it be possible that, finger prints or the marks of the fingers or the marks of nails would be there on neck ? A. If the throttling is done by the hand totally, then it may be there. 7. In strangulation if there is a struggle on the part of the victim, there may be injury to the person who attempts to strangulate or who strangulates. 8. I do not agree that, if a person attempts to cut the ligature after the other person has died with a sharp cutting weapon like scissor or knife, there has to be injuries on the neck. The witness volunteers that, if the doer is intelligent, he will see to it that, the weapon does not touch the body and he cuts the ligature. 9. It is not essential in hanging or strangulation the tongue shall have to invariably come out. 10. It would also have no relevance with the opening of the eyes. It cannot be said whether the eyes would necessarily remain closed or open. 11. The depth of the ligature marks on the neck makes no difference whether it is hanging or strangulation. It is the object with which it is caused that leaves depth. If there is metallic wire or electric wire used for the purpose, there will be depth of ligature mark, but if it is done with the stretched cloth, there depth almost would not be there. 12. In strangulation, the swelling on the upper side of ligature mark is not seen. 13. On being asked whether there would be imprints on the neck, my answer is that, if the stretched cloth material or a rope is used and it is held for a longer duration, there may be imprints, but otherwise not. 14. Dr. J.B. Satapara was my junior. 15. 13. On being asked whether there would be imprints on the neck, my answer is that, if the stretched cloth material or a rope is used and it is held for a longer duration, there may be imprints, but otherwise not. 14. Dr. J.B. Satapara was my junior. 15. There was no other person who had helped me in performing the postmortem. 16. I and Dr. Satapara had jointly decided to write the postmortem note. 17. It is not true that, I have dictated the P.M. Note to Dr. Satapara after performing the postmortem. 18. I disagree that Dr. Satapara did not write the postmortem note as per my dictation. 19. It is incorrect that, I am deposing before the Court on the strength of the P.M.Note prepared by Dr. Satapara. 20. It is untrue and incorrect that, we have not taken due care in carrying out the postmortem. 21. It is also incorrect to say that, I have not exercised due diligence as was required by the expert. 22. It is incorrect and I disagree that, the cause of the death of deceased was suicidal and not homicidal as I have opined. 23. I disagree and it is not true that, I have not stated the correct facts before the Court on saying that, the death was caused due to strangulation. The witness volunteers that, in the postmortem note, I have been specific about the same. 24. I disagree that, the horizontal mark will also be present if there is a suicidal death by hanging. The witness volunteers that, the ligature mark will not be horizontal, but it shall be oblique. 25. In strangulation, the ligature mark will be transverses or horizontal and both are the same. Date : 10.09.2003.” 13. P.W. 5 Bahadursinh Narsinh examined at Exhibit 35 is a Constable of Vejalpur Police Station. He obtained clothes of the deceased from the hospital after the postmortem and blood sample which were seized by the police through panchnama. 14. 25. In strangulation, the ligature mark will be transverses or horizontal and both are the same. Date : 10.09.2003.” 13. P.W. 5 Bahadursinh Narsinh examined at Exhibit 35 is a Constable of Vejalpur Police Station. He obtained clothes of the deceased from the hospital after the postmortem and blood sample which were seized by the police through panchnama. 14. P.W. 6 Rukshanabanu Yasinmiya examined at Exhibit 38 and P.W. 8 Husenabibi Gulam Mahammad Shaikh examined at Exhibit 47 both happened to be neighbours of the accused and they were examined for the fact that there were quarrels between the husband and wife and Femidabanu was brought by the accused by compromise and thereafter they were staying separately from the father and mother of the accused in the same building in separate room. None of those two witnesses supported the prosecution case and both turned hostile. 15. P.W. 7 Hamirkhan Gulam Husain examined at Exhibit 41 is a panch witness of discovery panchnama which was drawn on 24.10.2001 at about 18.40 hours. According to the prosecution case, preliminary panchnama was drawn. The accused made the statement and accordingly, one dupatta and scissor were recovered from attic of the room of the accused where he and the deceased were staying. This witness has not supported the prosecution case. The said panchnama is produced at Exhibit 9. 16. P.W. 9 Indrajitsinh Chandrasinh Raj examined at Exhibit 48 is a witness who investigated initially accidental death inquiry as well as crime registered against the accused. At the relevant juncture, the witness was serving as Assistant Police Commissioner, “C” Division, Ahmedabad City and at Shahpur one accidental death was registered vide No. 29 of 2001 and, therefore, in pursuance of the accidental death, he visited Shahpur Police Station and from thereto, the place of offence. He arranged inquest panchnama to be drawn in the presence of the Executive Magistrate and noted the complaint of P.W. 1 Hajimiya Mohammadmiya Shaikh - father of the deceased. In his presence, the officer from the Forensic Science Laboratory visited the spot and inspected. He, thereafter, recorded the statements of other witnesses and relatives and draw discovery panchnama. According to him, the accused stated that after the crime, dupatta which was wrapped on the neck of the deceased was cut by the accused and he was prepared to show that dupatta. He, thereafter, recorded the statements of other witnesses and relatives and draw discovery panchnama. According to him, the accused stated that after the crime, dupatta which was wrapped on the neck of the deceased was cut by the accused and he was prepared to show that dupatta. So, the panchnama was drawn and dupatta and scissor were seized by this witness. He also stated that, during the investigation he had come to know that door of the room in which the husband and wife were staying had been closed from inside which had been broken open by the father of the accused through force by hitting club blows on the door. This witness, therefore, seized club and also executed panchnama of scene of offence. It is stated by him that there was paint sticking to the club and, therefore, the paint from the door which was broken open of the said room was collected and was sent to the Forensic Science Laboratory. 17. P.W. 10 Rajen Mahendrabhai Desai examined at Exhibit 58 was serving as 2nd Police Inspector, Shahpur Police Station. On 24.10.2001, he came to know that one Femidabanu residing near Limwadi Masjid at Shahpur had died on account of vomiting and vertigo. This information was given to the Police Station by one Mahammad Juned and the husband of the deceased i.e. accused. According to him, this incident was of visitation of higher officer and, therefore, he made the report to his higher officer. In the inquiry, he recorded some statements. According to this witness, one Arif Mahammad told him that his wife had died on account of vertigo when he had been to bathroom for taking bath. Thereafter, crime was registered and investigation was handed over to the Assistant Police Commissioner - P.W. 9. 18. P.W. 11 Satishbhai Ambalal Trivedi examined at Exhibit 62 is a Photographer who took the photograph of the scene of offence as well as of the dead body. He produced 33 negatives of the photographs which were taken on record and he also produced the bill which was paid by the Government. 19. This is all is the evidence of the prosecution. 20. While appreciating the evidence afresh, we undoubtedly come to the conclusion that so far as the charge of 498-A against the accused is concerned, it is amply proved. 19. This is all is the evidence of the prosecution. 20. While appreciating the evidence afresh, we undoubtedly come to the conclusion that so far as the charge of 498-A against the accused is concerned, it is amply proved. True it is that for the charge against the accused under Section 498-A, the evidence available during the trial is the evidence of the parents of the deceased who have turned hostile. It is celebrated principle of law that only because the witnesses have turned hostile, their evidence cannot be thrown over board. If the say of the hostile witness is credible to certain extent, the same may be accepted to that extent. As discussed above, while P.W. 1 and P.W. 2 both parents of the deceased turned hostile, but categorically stated that there was quarrel and dispute between the accused and deceased on account of which the deceased used to take shelter at the parental residence and was dismayed. This fact has been established by the prosecution without any reasonable doubt. Not only that, it has been established beyond doubt that cruelty upon the deceased by the accused was on account of doubting chastity of the deceased by the accused. This followed physical as well as mental cruelty. This fact is admitted by both the witnesses i.e. P.W. 1 and P.W. 2. In depositions of both these witnesses, more than once, this fact has been admitted by them in the cross examination by the prosecution. There is no reason that why this evidence should not be believed of the hostile witnesses. learned Advocate for the appellant in this appeal could not dislodge this conclusion of the trial Court that the accused was responsible for executing physical as well as mental cruelty upon the deceased wife within the meaning of Section 498-A and, therefore, we have no reason at all to take different view than the view taken by the trial Court in this respect. 21. Now, considering the conclusion of the trial Court to convict the appellant under Section 302 is concerned, mainly, the trial Court relied upon the following circumstances. (i) The accused was doubting chastity of the deceased and, therefore, there was strong motive. 21. Now, considering the conclusion of the trial Court to convict the appellant under Section 302 is concerned, mainly, the trial Court relied upon the following circumstances. (i) The accused was doubting chastity of the deceased and, therefore, there was strong motive. (ii) The deceased and the accused both were staying in one separate room with four years child and, therefore, presence of the accused at the time of crime at the scene of offence was natural. (iii) The room in which the crime was committed had two entrances; one was the main door entering in the room itself, while second door of the same was abutting to the house of the father of the accused and, therefore, it was possible for the accused to close the main door from inside and to enter from the other door in the room and the said door was abutting to the house of his father. (iv) The medical evidence established beyond doubt that the death was homicidal by strangulation and that this circumstance could not be explained by the accused anywhere including further statement under Section 313 of Cr.P.C. and, therefore, this was missing link of the chain. (v) The accused changed versions and gave false explanation of hanging by the deceased and the death of the deceased by vertigo and vomiting and misguided investigation and, therefore, this conduct of the accused was relevant under Section 8 of the Indian Evidence Act to connect the accused with the crime. As there was no evidence at all that the deceased died by hanging on fan. (vi) The accused discovered dupatta which was wrapped on the neck of the deceased and scissor by which he had cut that dupatta. (vii) There were some ante-mortem injuries on the neck of the deceased and her clothes were found blood stained and in Forensic Science Laboratory report, the group of the blood of the deceased including sample of hair found from the knot of the dupatta which was sent to the Forensic Science Laboratory was concluded to be of the deceased. 22. The case so far as charge against the accused under Section 302 is concerned rests solely upon the circumstantial evidence. The law on circumstantial evidence is well established and has been discussed by the Supreme Court in the matter of Bablu Alias Mubarik Hussain vs. State of Rajasthan, as reported in (2006) 13 SCC 116. 22. The case so far as charge against the accused under Section 302 is concerned rests solely upon the circumstantial evidence. The law on circumstantial evidence is well established and has been discussed by the Supreme Court in the matter of Bablu Alias Mubarik Hussain vs. State of Rajasthan, as reported in (2006) 13 SCC 116. In respect of circumstantial evidence, the Apex Court observed as under. “10.9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh vs. State of Rajasthan, Eradu vs. State of Hyderabad, Earabhadrappa vs. State of Karnataka, State of U.P. vs. Sukhbasi, Balwinder Singh vs. State of Punjab and Ashok Kumar Chatterjee vs. State of M.P.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. vs. State of A.P. wherein it has been observed thus: (SCC pp. 206-07, Para 21) “21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” 11. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” 11. In Padala Veera Reddy vs. State of A.P., it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp.710-11, Para 10) “10 (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. 12. In State of U.P. vs. Ashok Kumar Srivastava, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 13. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 13. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”. 14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. In Hanumant Govind Nargundkar and Anr. vs. State of Madhya Pradesh, wherein it was observed thus: (AIR pp. 345-46, Para 10) “10. . . . . .It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 15. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 15. A reference may be made to a later decision in Sharad Birdhichand Sarda vs. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p.185, Para 153) “153. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. . . . . the circumstances concerned must or should and not may be established. . . . (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 23. Thus, what is required to be appreciated in the case of circumstantial evidence is that the circumstances from which guilt is to be inferred must be proved beyond doubt and must be incompatible with the innocence of the accused. So, the circumstances as established must be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of conclusive nature and tendency, and they should be such as to exclude every hypothesis, but the one proposed to be proved by the prosecution. So, the circumstances as established must be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of conclusive nature and tendency, and they should be such as to exclude every hypothesis, but the one proposed to be proved by the prosecution. In other words, there must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. 24. Now, examining the circumstance against the accused, the first one would be of motive. True that, it is proved that the accused was doubting chastity of the deceased as his wife and on account of this, the deceased wife was suffering harassment and cruelty at the hands of the accused. The motive undoubtedly so far as circumstantial evidence is concerned is a forceful factor to establish guilt of the accused, but at the same time, the motive alone cannot lead to conviction of the accused when other circumstances according to law are not proved beyond doubt by the prosecution and, therefore, now we shall examine as to whether other circumstances on which the trial Court has placed reliance have been proved by the prosecution as to rule out innocence of the accused by all reasonable probability and to infer irresistably that an accused and accused had committed the crime. 25. If we take above noted circumstance Nos. 2 and 3 together, true it is that the accused was staying in the said room along with the deceased and the child of aged about 4 years. It is to be noted that the incident has taken place at about 8.30 in the morning and not during night when it would be natural for the accused to be in that room with the deceased. Meaning thereby that it is for the prosecution to prove beyond doubt each circumstance incompatible with the innocence of the accused. It was again for prosecution, therefore, to prove that the accused was with the deceased when the incident took place. It appears that the trial Court has not appreciated this circumstance in its true perspective. Meaning thereby that it is for the prosecution to prove beyond doubt each circumstance incompatible with the innocence of the accused. It was again for prosecution, therefore, to prove that the accused was with the deceased when the incident took place. It appears that the trial Court has not appreciated this circumstance in its true perspective. Had it been odd hours of night, there could have been room for inference that the accused must be with his deceased wife in the said room unless he explained his presence elsewhere, but this fact has not been taken into consideration by the trial Court that the incident had occurred at 8.30 a.m. in the morning and at that time, it is not proper to draw escapable inference that the husband was with his wife in the said room and further there is no evidence at all adduced by the prosecution that the husband and wife were seen together last before the incident. The prosecution has not proved beyond doubt that the accused was present in the said room when the incident took place. Learned trial Judge erred in ignoring two vital circumstances in this regard in coming to the conclusion that the accused was present or presumed present on his non-explanation in the said room. For the above circumstance Nos. 2 and 3, we would like to see here the panchnama of scene of offence and the panchnama exhibited by which club has been seized by the Investigating Officer on 25.10.2001 at 21.00 hours. The panchnama Exhibit 8 is an admitted document by both the parties and has been proved beyond doubt. This panchnama has been drawn on the same day at 16.45 hours by the Investigating Officer. The scene of offence was shown by one Mahammad Juned Samsuddin Shaikh who has not been examined by the prosecution. According to the panchnama of scene of offence, the room in which this couple was resided had main door abutting towards the eastern side, that is to day, while entering in the room, one has to go towards the east from the gallery preceding this door about 3 and 1/2 feet in width and 8 feet long. On the northern portion of this gallery, there was bathroom with wooden door and on the southern portion of the gallery, there was a stair to go up stair in the building. On the northern portion of this gallery, there was bathroom with wooden door and on the southern portion of the gallery, there was a stair to go up stair in the building. So, this is the location of the main door from which outsider can enter in this room. Now, entering into the room, it was found that the said room was 10 ft. x 10 ft. There were tiles in the floor and RCC roof on the northern wall of this room. There was wooden bench and on the eastern side in northern wall, there was one coat. There was wall in the eastern side of this room and in southern portion of this wall on eastern side, there was one another door which was painted and which was abutting towards the house of the father of the accused. In the middle of this door, there was iron halldraf and on the top of the door, there were iron stoppers. There was hook to lock the stoppers. This hook was found broken from its screw completely and had been out of the door. On the roof above cot, there was attic and there were some household luggage of the couple. This panchnama establishes beyond doubt that main entrance of this room was situated in the western portion and there was one more door of the room on the eastern wall and on the southern side of that eastern wall and the door was found broken as aforesaid. Learned trial Judge erred on factual aspects while coming to the conclusion that even if the main door was broken, there was one more door abutting to the house of the father of the accused from where the accused had come in the room even if the main door was locked from inside. In fact, while considering this panchnama of the scene of offence, it is established that the main door which is on the western side must have been closed from inside as well as door on eastern wall of the room abutting to the house of the father of the accused must have been closed from inside and, therefore, it was necessity to break open that door which was abutting to the house of the father of the accused. This is more clarified by the panchnama Exhibit 11 which is the panchnama which was drawn by the Investigating Officer on 25.10.2001 at 21.00 hours. This panchnama has been admitted by both the parties and, therefore, this was exhibited. This panchnama, therefore, is proved beyond doubt. According to this panchnama, the Investigating Officer and both the panchas went to the house of the father of the accused at the relevant juncture. It has been specifically mentioned in the panchnama that the father of the accused was present at that time and the panchas noted eastern side door of the room from the side of the house of the father of the accused, it was found by the panchas that the door had hitting marks. It is well to remember that this is the door which is abutting to the house of the father of the accused not the main door and according to the statement of the father of the accused, this door was closed from inside and it was necessary to open that door and there was nothing handy; club was found and hitting the club blows on the door, that door was broken open. This could happen only when the main door of the room would have been closed from inside otherwise the situation could have never been arisen to break open the door as one can easily enter in the room from the main door and would not necessitated breaking open the door which was abutting to the house of the father of the accused. In the presence of the panchas, not only marks of blows of the club were noted in that door, but some paint samples were taken from that door. Not only that, there was some paint which was sticking to the club and that club was also seized by the police through this panchnama. The sample which was collected from the door of the paint and the sample of the paint which was on the club were sent to the Forensic Science Laboratory. The opinion is placed on record and it has been established by the opinion at Exhibit 18 that paint sample on the club as well as paint sample on the door were matching and were same. The opinion is placed on record and it has been established by the opinion at Exhibit 18 that paint sample on the club as well as paint sample on the door were matching and were same. This goes to establish that the door was broken open and the door was broken open because both the doors of the room were closed from inside otherwise, there was no necessity to break open the door. Learned trial Judge misguided because it was considered that it was main door which was broken open and, therefore, it was observed that though the main door was closed from inside, there was one more door which was abutting to the house of the father of the accused and the accused could have access in the said room from that door, but according to the prosecution case itself, this door was broken open and this circumstance eliminates the presence of the accused in the said room at the time of incident and, therefore, when the presence of the accused is not established by the prosecution in the said room at the time of incident even by necessary inference, the accused cannot be saddled with the responsibility of explaining the circumstance as has been sought by the trial Court. So, the circumstances which mentioned at Nos. 2 and 3 above are not proved beyond doubt that the wife and husband staying together and, therefore, the accused was duty bound to explain the circumstances as his presence was natural at the relevant juncture nor could it be said that since there were two doors of the room, the accused had access to that room from the other door abutting to the house of the father of the accused. In the matter of State of Goa vs. Sanjay Thakran and Another, as reported in (2007) 3 SCC 755 in Paras 37 and 38, the Apex Court in this respect observed that in all cases, it is not the duty of the accused to explain the circumstances of the death of the victim. It depends upon the circumstances of the case. Here are the circumstances wherein it is probability that both the doors were closed from inside when the incident occurred and this is the prosecution case. It is not the case of the prosecution that at the time of incident, the accused was seen coming out of the said room. It depends upon the circumstances of the case. Here are the circumstances wherein it is probability that both the doors were closed from inside when the incident occurred and this is the prosecution case. It is not the case of the prosecution that at the time of incident, the accused was seen coming out of the said room. There is no other evidence that the husband and wife were seen last together more particularly when the incident has happened in the morning where every body would be following their normal activities and it was not in the time when it could be presumed that the couple was together in the said room and in these circumstances, it could not be said that failure on the part of the accused in 313 statement about the circumstance of the death of the victim is missing link. In Paras 37 and 38 in State of Goa vs. Sanjay Thakran (Supra), the Apex Court has observed as under. “37. It is urged by Mr Mahendra Anand, the learned Senior Counsel for the appellant(s), that the accused have not explained as to in what circumstances the victims suffered the death in their statements under Section 313, CrPC and thus would be held to be liable for homicide. The learned Senior Counsel for the appellant(s) placed reliance on the following observations of this Court made in Amit vs. State of Maharashtra; (SCC p.97, Para 9) “9. The learned Counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman vs. State of Assam for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed, in which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and the deceased were last seen by P.W. 1 and P.W. 11. No explanation has been offered in the statement by the appellant recorded under Section 313 CrPC. His defence is of complete denial. In our view, the conviction for offence under Section 302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court.” 38. We have noticed the decision. However, the circumstances in the present case are not similar to the case where the event of the last seen together has very close proximity with the time and place of the commission of the crime and other circumstances also favour the hypothesis of guilt and consequently, the fact that no explanation or false explanation offered by the accused was taken as a link in the chain of circumstances. (See also Birbal vs. State of M.P., Raju vs. State of Haryana and Babu vs. Babu.) Thus, in the circumstances of the case, the accused persons not giving any explanation in their examination under Section 313, CrPC could not be taken to be a circumstance pointing towards irresistible conclusion that they are involved in the commission of the crime.” 26. The trial Court has much placed reliance upon the opinion of the medical expert. Undoubtedly, the death is caused by strangulation and not hanging. Perhaps, the trial Court misguided because the trial Court considered two probabilities, strangulation or hanging and did not consider possibility and probability of strangulation to be homicidal or suicidal. The trial Court has much placed reliance upon the opinion of the medical expert. Undoubtedly, the death is caused by strangulation and not hanging. Perhaps, the trial Court misguided because the trial Court considered two probabilities, strangulation or hanging and did not consider possibility and probability of strangulation to be homicidal or suicidal. Though the medical opinion in this case is of strangulation by homicide and when we consider and weigh this opinion with the circumstances of the case from the evidence adduced by the prosecution and which is the prosecution case itself, we have our own doubt about accepting medical expert opinion on which much weight has been placed by the trial Court. The opinions of the experts are the opinions so far as appreciation of evidence is concerned. True that the opinion of P.W. 4 as to homicidal by strangulation is the opinion of the expert. No doubt that this opinion deserves due consideration and has to be seen carefully, but with respect, such opinion cannot be held absolutely conclusive particularly when other evidence clearly establishes gives contra indication. If we refer to the evidence of P.W. 4 Dr. Vinak Rao Patil Exhibit 33, we find that concerned Medical Officer had two reasons to come to the conclusion that death was caused by strangulation and the death was homicidal which he has stated in Paras 8 and 9. These two reasons viz., (1) There were external injuries on the dead body and (2) No one strangulate himself by any ligature because if someone is tightening any ligature on neck, within few seconds, he will become unconscious and since such person would become unconscious, his grip will loosen and full death cannot happen and he will again regain consciousness. Thus, these two reasons are given by the medical expert to come to the conclusion of homicidal death. We would like here to observe that neither the prosecution nor the defence at all attempted to put to the expert that strangulation by suicide cannot be ruled out though it may be the rarest incident. Noted author Dr. C.K. Parikh in “Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology” Sixth Edition in this respect offered expert opinion as under. “Suicide, homicide, or accident : Suicidal strangulation is not common although instances have been known. Noted author Dr. C.K. Parikh in “Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology” Sixth Edition in this respect offered expert opinion as under. “Suicide, homicide, or accident : Suicidal strangulation is not common although instances have been known. To effect suicide by ligature requires the employment of some means (e.g., a tourniquet) whereby the ligature is kept tight independently of any muscular effort on the part of the suicide. In suicide, the ligature should be found in situ and the body should be free from other signs of violence or marks of struggle. The knot is usually in front. Homicidal strangulation is a common form of murder. In fact, strangling should be assumed to be homicidal until the contrary is proven to be more likely under the circumstances. A suspicion of homicide should arise when (a) knot is tied on the back of neck (b) mouth is gagged (c) limbs are tied (d) other injuries are found on the body (e) signs of struggle are present, and (f) in case of female, if she is sexually assaulted; and in such a case, material that is readily available at hand, e.g., a nylon stocking, pantyhose, or the scarf of the victim, is used as a ligature. Tearing of clothes may be seen.” Likewise H.W.V. Cox in his book -Medical Jurisprudence and Toxicology-offered expert opinion as under. “(d) Strangulation - Strangulation by a ligature is quite possible in a suicidal manner, the suicider being able to wrap several turns of rope or wire around his neck and tie a complicated knot before unconscious occurs. Sometimes a “Spanish windlass”devise is used in which a loose ligature is tightened up by inserting a stick under the ligature and twisting until it becomes tight. This is quite possible in suicide but of course could also be a homicide. Manual strangulation is virtually impossible as a suicide act, though one or two cases have been described. The mechanism must of necessity be the sudden cardiac arrest type of death due to pressure on the carotid arteries, as it is obviously impossible to maintain pressure long enough to cause florid asphyxial changes with petechial cerebral anoxia would cause the hands to fall limply from the neck, with the return of consciousness to the intended suicide.” Dr. Modi in “Medical Jurisprudence and Toxicology” Twenty-third edition offered expert opinion in this regard as under. Modi in “Medical Jurisprudence and Toxicology” Twenty-third edition offered expert opinion in this regard as under. “(ii) Whether the Strangulation was Suicidal, Homicidal or Accidental Suicidal strangulation is not very common, though sometimes cases are met with. In these cases, some contrivance is always made to keep the ligature tight after insensibility supervenes. This is done by twisting a cord several times round the neck and then tying a knot, which is usually single and in front or at the side or back of the neck, by twisting a cord tightly by means of a stick, stone or some other solid material, or by tightening the ends of a cord by tying them to the hands or feet or to a peg in a wall or to the leg of bed. In such cases, injuries to the deep structures of the neck and marks of violence on other parts of the body are, as a rule, absent. It is not possible for anyone to continue a firm grasp of the throat after unconsciousness supervenes, hence throttling by the fingers cannot possibly be suicidal. Binnar records the case of a woman, aged 40 years, who committed suicide by throttling. She was suffering from melancholia and was found dead, crouched in her bed with both hands compressing her throat; the elbows were supported on the knees, and the back leaned against the wall; there were marks of her fingernails on both sides of the throat.” 27. Thus, strangulation by suicide or suicidal strangulation cannot be ruled out. This probability has not been probed into by the medical expert or trial Court. It appears that ligature i.e. muddamal dupatta appears not to have shown to the Doctor. At this juncture, it is noted that we had called for muddamal dupatta from the trial Court for appreciating the physical evidence and we have found simple double knots on dupatta. The knot is double and simple that one can easily administer this knot, but when these knots have been fixed ligature would not loosen for single centimeter. In fact, these knots appear to be contrivance of suicide which has been over looked by the medical expert. This is so because muddamal dupatta and knots have not been shown to P.W. 4. In fact, these knots appear to be contrivance of suicide which has been over looked by the medical expert. This is so because muddamal dupatta and knots have not been shown to P.W. 4. So, reason No. 2 which P.W. 4 has offered for his opinion would not sustain as there may be probability of suicide by strangulation and particularly in this case where there are other circumstances which rule out homicidal death. The Doctor in Para 9 stated about wrapping of ligature by a person, but not about knotting ligature in the manner which would not open easily and which could be knotted as has been done in this case by double knot. Such knot can easily be maneuvered before person becomes unconscious and once such double knots are fixed, it would be impossible to loosen the ligature and by the time victim would become unconscious. Once the knot is settled, undoubtedly, a person who has wrapped ligature and set knot would loose consciousness and such person would not be in a position to open this knot. This fact is not taken into consideration properly. So far as reason No. 1 is concerned, the injuries which the Doctor found ante-mortem were three as stated above. One was on account of ligature itself; second was scratch injury of the size of 3 x 0.1 cm on left lateral side of neck and the third one was friction abrasion of size of 5 x 0.5 cm on the right side of neck. This scratch and abrasion are so simple injuries that might have been caused for some other reason before the incident occurred or at the time while ligature was being wrapped upon neck. There is no other sign of violence and external injury to come to the conclusion that the death was homicidal. Both the reasons given by the expert are not convincing as to come to the conclusion that the death was conclusively homicidal. At 8.30 morning if someone is strangulated and particularly the wife in the presence of 4 years child, possibly there must be marks of violence which are absent and further as stated above, the opinions of the experts are required to be weighed along with the other circumstances of the case and as discussed earlier when the incident occurred, both the doors of the room were closed from inside. So, the opinion of the expert upon which much reliance is placed by the trial Court is not convincing and from this evidence, it is not established that the death of the victim was homicidal and homicidal only unless other circumstances are established by the prosecution through evidence. But, it is not the case of the prosecution that the accused or somebody came in the room and strangulated the victim. Obviously, the presence of the accused may be inferred under such situation, but when the incident has occurred in the morning and when it is established by the prosecution case itself that both the doors were closed from inside, we come to the conclusion that the medical opinion falls short in establishing the death to be homicidal. Though learned trial Judge has referred quotation of the noted author Dr. C.K. Parikh from his book of Medicolegal Postmortems in India (Guidelines for crime investigation) (Medical Publications, 1st Edition, 1985) mostly what is opined in this by the expert are the symptoms of strangulation at the time of postmortem appearing on the dead body. This is mere explaining the difference of symptoms between hanging and strangulation, but when strangulation is either suicidal or homicidal, symptoms would be the same of strangulation only and the symptoms of strangulation differing from symptoms of hanging are noted by learned author Dr. C.K. Parikh. Whether strangulation is homicidal or suicidal is a question of fact and along with the respective medical opinion has to be weighed with the circumstances of the case. Thus, 4th circumstance about the medical evidence to be of homicidal death which is against the accused is not conclusive so as to raise irresistible conclusion that accused and accused only committed murder. It is also not proved beyond doubt that death was homicidal. 28. 5th circumstance is in respect of Section 8 of the Indian Evidence Act i.e. conduct of the accused as has been observed by the trial Court in the judgment impugned in this appeal. It has been observed by learned trial Judge that the accused had offered such changed versions and attempted to misguide investigation firstly by coming out with a story of convulsion and vomiting and victim died due to that and also soon after the death he maintained the story of death by suicidal hanging. It has been observed by learned trial Judge that the accused had offered such changed versions and attempted to misguide investigation firstly by coming out with a story of convulsion and vomiting and victim died due to that and also soon after the death he maintained the story of death by suicidal hanging. When we scanned this minutely and thread bear, we find that there is no merit in this conclusion. The prosecution has attempted to bring version of the accused through the complaint filed by P.W. 1 and his deposition and through the deposition of P.W. 2. The version of the accused is also sought to be brought on record through discovery panchnama and from the evidence of P.W. 10 Rajen Mahendrabhai Desai Exhibit 58 who is Police Officer reached at the spot after coming to know that such accidental death had occurred. So, declaration made before the police and before Shahpur Police Station is also relevant and to be considered at this juncture. What is necessary is to ascertain that whether any changing versions have been given by the accused as proved by the prosecution and whether the accused was at all obliged to explain the circumstance. While discussing circumstance Nos. 2 and 3 above, we have discussed this aspect elaborately and came to the conclusion that according to law, the accused was not obliged to explain the circumstances of the death of his wife. Now, let us appreciate this about so called allegation against the accused about changing version. The question appears that who first in point of time informed Shahpur Police Station about unnatural death of Femidabanu. Necessary it is to look into the deposition of P.W. 10 Rajen Mahendrabhai Desai. He is examined at Exhibit 58. He stated that he was serving at the Police Station at Shahpur and was 2nd Police Inspector of that Police Station. He categorically stated that this declaration was made by one Mahammad Juned, a resident of that locality. It has also been stated by him that this was the declaration by the accused along with Juned. When we go through the prosecution case, it is found that about this declaration, only documentary evidence produced on record by the prosecution is Exhibit 57 wherein it is mentioned that one Mahammad Juned declared before the Police Station about the death of Femidabanu. When we go through the prosecution case, it is found that about this declaration, only documentary evidence produced on record by the prosecution is Exhibit 57 wherein it is mentioned that one Mahammad Juned declared before the Police Station about the death of Femidabanu. Very important factor is that witness Mahammad Juned has not been examined by the prosecution. Exhibit 57 the entry under Section 174 which is registered at Shahpur Police Station as Accidental death No. 29 of 2001 at 13.25 hours on 24.10.2001 establishes that whatever declaration was made was made by Mahammad Juned Samsuddin Shaikh and not by the accused. So, misleading investigation by the accused by changing version has not been proved beyond doubt. This is so because there was no any version of accused before police, which might have been recorded by police. Not only that, but the prosecution failed to prove also that Mahammad Juned gave declaration at the instance of the accused. On the contrary, going through the information received by P.W. 10 Rajen Mahendrabhai Desai which he recorded in the form of Exhibit 57 denotes that the death of Femidabanu was suspicious and required to be investigated. As aforesaid, Mahammad Juned has not been examined. Witness Rajen Mahendrabhai Desai examined at Exhibit 58 has, therefore, deposed against the record of his own Police Station i.e. Shahpur Police Station in deposing that Juned gave explanation of the death of Femidabanu at the instance of accused. Not only that, witness Rajen Mahendrabhai Desai on receiving the information reached at the scene of offence immediately. Even then, he did not ask anything from the accused. This is clear from the cross examination - Para 5. He categorically stated that he was there at the scene of offence for about four hours, but he did not inquire anything from the accused. When the defence asked and alleges that the accused had explained the circumstances of death of his wife, in reply, this witness stated that “it is not true that the accused conveyed to me about the incident when I was at the scene of offence.” Therefore, at the first place when the prosecution has failed to prove that the accused had given any statement or version before the police, the question of his changing version frequently would not arise at all. Even, no reliance in this respect could be placed on P.W. 1 and P.W. 2. Undoubtedly, P.W. 1 father of the deceased is hostile to the prosecution and stated that he came to know from the police that his daughter had died of suicide by hanging. Even, in the complaint also, he has stated that when he inquired about the death of his daughter from the accused, the accused did not give any satisfactory reply. Now, from this, it cannot be concluded that the accused was changing version. This might be on account that the accused might also not be knowing about the circumstances of the death of his wife. Even, when the FSL Officer visited the scene of offence on the day of incident, no statement alleged to have been made by the accused to them also. That report is placed at Exhibit 14. In the column of details of the crime, it is mentioned that Femidabanu died suicidal death on account of cruelty and mental harassment by the husband. This was the information received by them through Shahpur Police Station. Thus, when there is no other evidence on record that the accused gave any version to anybody about the incident, connecting the accused with the crime on the circumstance that he was changing version and misled the investigation is wholly erroneous. Even if any plea advanced by the accused turns out to be false, then even that fact itself would not connect the accused with the crime. Illustrating, it may be said that the accused may raise the plea of alibi and establishing the said plea to be false, it could not be presumed that the accused was present at the scene of offence and as per the law of this country, this fact has to be established by the prosecution through cogent evidence without any doubt. It is necessary, therefore, to quote observations of the Apex Court in the matter of Desari Siva Prasad Reddy vs. Public Prosecutor, High Court of A.P., as reported in (2004) 11 SCC 282 . Necessary it is to reproduce the observations of the Apex Court in this regard in Paras 21, 22, 23 and 24. “21. It is necessary, therefore, to quote observations of the Apex Court in the matter of Desari Siva Prasad Reddy vs. Public Prosecutor, High Court of A.P., as reported in (2004) 11 SCC 282 . Necessary it is to reproduce the observations of the Apex Court in this regard in Paras 21, 22, 23 and 24. “21. In drawing an inference that the accused must have been in the house on the crucial night, the High Court mainly relied on the evidence of P.W. 4 and also relied on the fact that the accused set up a false plea of alibi. As already noticed, the evidence of P.W. 4 was to the effect that he saw the accused entering his house at about 8.30 p.m. on 19th April, 1996. He also spoke to the fact that he observed some quarrel going on between the husband and the wife beyond 10 p.m. The High Court repelled the contention that the police examined P.W. 4 three months after the incident on a wrong assumption that P.W. 8 - the Head Constable, initially examined P.W. 4 after the case was registered. But, it is clear from the evidence of P.W. 8 that he did not examine P.W. 4, P.W. 10 also clarified that he examined P.W. 4 once only i.e. on 15-7-1996.There is absolutely no reason why P.W. 4 who was admittedly related to the deceased and who was in the house of the accused soon after the incident, did not come forward to give the statement about the facts observed by him. There is no reason to think that the police would not have examined him immediately if he was the person who had seen the deceased last in the company of the accused on the night of 19th April, 1996. Moreover, P.W. 4 came forward with an improbable version that he observed the quarrel from his house which is separated by four or five houses from the house of the accused. P.W. 10 - the I.O. categorically stated that P.W. 4 did not tell him that at 10 p.m. he observed the quarrel at the house of the accused. That means, P.W. 4 did not hesitate to go to any extent to help the prosecution to substantiate the ‘last seen’ version. P.W. 10 - the I.O. categorically stated that P.W. 4 did not tell him that at 10 p.m. he observed the quarrel at the house of the accused. That means, P.W. 4 did not hesitate to go to any extent to help the prosecution to substantiate the ‘last seen’ version. The High Court dismissed the criticism against P.W. 4’s evidence by merely observing that there was no reason for him to falsely implicate the accused. We are of the view that the High Court should not have upset the finding of the trial Court in regard to the credibility of evidence of P.W. 4 and buttress its conclusion on the last seen factor by relying on P.W. 4’s evidence. As far as P.W. 5 is concerned, the High Court concurred with the trial Court’s view that his evidence cannot be believed. 22. The High Court then observed that since the plea of alibi is found to be false, it can be inferred that the accused was present in the house in the night of 19-4-1996. The High Court after adverting to the observations in Prabhakar vs. State of Maharashtra drew the further inference that only the accused and the deceased were in the house at the relevant time and there was no possibility for others to enter into the house. These observations were primarily based on the unreliable evidence of P.W. 4. The High Court’s approach in seeking support from the decision in Prabhakar’s case is clearly unsustainable. The facts and circumstances in that case unerringly pointed to the presence of the accused at the crucial time and there was no possibility of third person being there. The inferences drawn in that case cannot therefore be pressed into service here. If we exclude P.W. 4’s evidence, there is no evidence whatsoever to establish the presence of the accused in the house on the crucial night. The fact that the appellant could not establish by cogent evidence that on the night of 19.04.1996 he remained at the house of his parents in another village does not lead to the necessary inference that the appellant must have remained at his house on the night of 19.04.1996. 23. However, there is one circumstance which is suggestive of the strong possibility of the presence of the accused at his house. 23. However, there is one circumstance which is suggestive of the strong possibility of the presence of the accused at his house. As per P.W. 3’s evidence which was believed by the trial Court, the appellant contacted him in the morning at 6 a.m. and brought P.W. 3 to his house giving a hint that something untoward happened to his sister (i.e. the deceased). Added to this, the accused, in the normal course, is expected to be at his house in the night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial Court is not the only possible view. But, that is not enough to reverse the acquittal. 24. A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between ‘may be true’ and ‘must be true’ shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of P.W. 3, the evidence of P.W. 4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial Court warranted no interference by the High Court.” 29. Thus, either version of the accused or unless it is established that the presence of the accused was at the scene of offence by any inevitable inference, such circumstance cannot be used against the accused as has been done by the trial Court. 30. Thus, either version of the accused or unless it is established that the presence of the accused was at the scene of offence by any inevitable inference, such circumstance cannot be used against the accused as has been done by the trial Court. 30. 6th circumstance which is relied upon by the trial Court is discovery of dupatta and scissor from the accused. Though panchas of the panchnama Exhibit 9 by which dupatta has been recovered and seized have not supported the prosecution version. There cannot be any doubt about the principle that the said fact can be proved by the Investigating Officer and his evidence should be accepted. Now, necessary it is to ascertain that what is proved by the panchnama Exhibit 9. Undoubtedly, what is established is, the accused discovered dupatta which was cut and scissor. Whether this circumstance alone would connect the accused with the crime. Our answer would be in negative. Necessary, it is to ascertain, therefore, that what is recovered is duppata and scissor and what is proved thereby under Section 27 is only to that extent that the accused discovered duppata and scissor. Under Section 27 it is not only object which is recovered is relevant, but what is relevant is mental status of the accused as well, but his mental status i.e. statement of the accused is relevant only to the extent of discovery of the object under Section 27 and rest of the statement which might have been recorded by the Investigating Officer in the presence of the panchas is not admissible evidence. In this case, the statement of the accused is recorded in the manner that “my wife Femidabanu hanged herself on fan and died by dupatta and that dupatta was cut by him and he was prepared to discover the said duppata and scissor.” By discovery of duppata and scissor, what is proved or relevant is the statement of the accused only to the extent that he had cut dupatta by scissor and he was prepared to discover dupatta and scissor and dupatta was that dupatta by which his wife had died and he had cut that dupatta by scissor. But, in any manner, from the recovery of dupatta and scissor and even if the fact is proved that dupatta was cut by the accused, it cannot be beyond reasonable doubt proved that the accused had strangulated the deceased and that he was present at the time of incident. This is so because these are circumstances incompatible with the innocence of the accused as to this fact that he might have cut dupatta when he found that this dupatta could not be opened to save his wife who was dying. It again denotes that the double knot on the dupatta was such as could have been managed by the deceased, but for opening of such knot scissor was required to cut dupatta. There was no necessity for him otherwise to cut dupatta and he would have left that dupatta wrapped around neck of the deceased. Even, otherwise it is established rule of law that it can seldom happen that information leading to discovery of the fact falls foundation of the prosecution case. It is one link in the chain of proof and other link must be forged in the manner allowed by law and, therefore, this circumstance alone is not capable to come to the conclusion that it was accused and accused only who committed murder of his wife and, therefore, this evidence also is not helpful to the prosecution and the trial Court erroneously placed reliance on this circumstance. 31. 7th circumstance and the last was relied upon by the trial Court was in respect of the injuries received by the deceased which were ante-mortem. As discussed hereinbefore broadly that ante-mortem injuries to which medical expert referred was one scratch and one abrasion. It cannot be said or could be proved by the prosecution above doubt that though injuries were caused by the accused to the deceased in the process of strangulation. This is so because these injuries are so superfluous that one is scratch and the other is mere abrasion which could have been caused while wrapping and tightening ligature. Second most important circumstance is that the prosecution failed to prove the presence of the accused in the house and in the said room at the time of incident. Even, there are no circumstances as discussed above by us that the presence of the accused could be believed at the scene of offence even by irresistible inference. Second most important circumstance is that the prosecution failed to prove the presence of the accused in the house and in the said room at the time of incident. Even, there are no circumstances as discussed above by us that the presence of the accused could be believed at the scene of offence even by irresistible inference. None of these two injuries were bleeding one nor according to the medical opinion, there was any bleeding either from the mouth or any of the limb of the deceased nor such evidence is forthcoming. We are at loss to understand that how the clothes of the deceased were stained by the blood as reported by the Forensic Science Laboratory that it was group of blood of the deceased. This is also circumstance incompatible with the innocence of the accused. Exhibit 14 report of the FSL Officer who visited the scene of offence is to the effect that the death of the deceased appeared to have occurred on account of suicide. There was saliva of the deceased on the clothes of the deceased but FSL Officers after investigating the scene of crime and dead body did not opine that there were blood marks on the clothes of the deceased. Therefore, only because there were minor and superfluous antemortem injuries, it cannot be said that mere presence of the injuries would irresistibly indicating that the accused caused these injuries in the process of strangulating his wife and thus, this circumstance also could not be proved beyond doubt by the prosecution. 32. Thus, it is clear that except motive, none of the circumstances which were taken in aid by the prosecution individually could be proved. Later on, to consider cumulative effect of all the circumstances together, as we have said above, each circumstance individually has to be proved by the prosecution in such type of cases so as to form a chain or link leading to the crime of the accused. We, therefore, cannot agree with the trial Court that the death of the deceased was homicidal and that it was proved by the circumstantial evidence that the accused was responsible for that murder. Learned trial Judge erred in coming to this conclusion as we have discussed above. 33. To substantiate the contention that the prosecution established the charge against the accused under Section 302 by circumstantial evidence, learned APP Mr. Learned trial Judge erred in coming to this conclusion as we have discussed above. 33. To substantiate the contention that the prosecution established the charge against the accused under Section 302 by circumstantial evidence, learned APP Mr. Dabhi quoted certain decisions which we are discussing at this juncture. Reliance is placed on the decision of the Nagpur High Court in the matter of Raghunath vs. Emperor, as reported in AIR 1926 119 wherein it is a case of strangulation of the deceased by the accused and double knot was found wherein it was observed that a person wishing to commit suicide by strangulation can give one knot to the rope tied around his neck. But he cannot give a second knot as the tightening of the rope caused by the first knot make him unconscious on account of the pressure on the vital structures of the neck and leaves him no strength to give second knot. 34. In this regard, it is made clear that in the said decision, the facts denote that there was other evidence against the accused that he committed murder of the victim and the circumstances were extra judicial confession of the accused to the friend that he had committed murder of the deceased and that after confession, the accused produced valuable property worth of Rs. 4000/- belonging and in possession of the deceased until his death. Therefore, this decision would not help the prosecution on the facts of this case. As discussed above, it is always question of fact whether one can strangulate himself or herself and in the facts of this case, it is undoubtedly established that the accused cannot be connected with the murder. 35. The second decision which learned APP relied is in the matter of Ram Kumar Madhusudan Pathak vs. State of Gujarat, as reported in (1998) 7 SCC 702 , it is also a case of homicidal death of the wife by strangulation. In the said case, there were injuries on the dead body and it was proved that topography of the house excluded all possibilities of any outsider entry on the top floor and committing murder of the deceased. Such are not the circumstances in the present case and, therefore, on the facts, this decision also would not help the prosecution. In the said case, there were injuries on the dead body and it was proved that topography of the house excluded all possibilities of any outsider entry on the top floor and committing murder of the deceased. Such are not the circumstances in the present case and, therefore, on the facts, this decision also would not help the prosecution. Thereafter, a decision in the matter of Thaman Kumar vs. State of Union Territory of Chandigarh, as reported in (2003) 6 SCC 380 is relied on by learned APP. But the facts of the said case also are altogether different from the facts of the present case. A decision in the matter of Mandhari vs. State of Chattisgarh, as reported in (2002) 4 SCC 308 is relied upon wherein it has been held that the accused himself made false report of commission of suicide by his wife and admitted in his examination under Section 313 Cr.P.C. that he was present in the house at the time of incident. Taking together other circumstances along with this circumstance, the accused was convicted and conviction was confirmed by the Apex Court. But, in the present case, it has not been proved that the accused has gave any report to the Police Officer nor he has admitted his presence in the house nor the prosecution beyond reasonable doubt established the presence of the accused in the house. Therefore, this decision also would not help the prosecution. A decision in the matter of Babu s/o Raveendran vs. Babu s/o Bahuleyan and Another, as reported in (2003) 7 SCC 37 is also relied upon. That is also a case of strangulation of the wife by the accused, but in the facts of that case, it was proved by the prosecution that the husband and wife both were last seen together and that was clinching evidence to convict the accused. The facts of this case differ materially from the facts of the said case. Therefore, this decision also would not help the prosecution. The facts of this case differ materially from the facts of the said case. Therefore, this decision also would not help the prosecution. Thereafter, learned APP also relied upon the decision of the Apex Court in the matter of Godabarish Mishra vs. Kuntala Mishra and Another, as reported in AIR 1997 SC 286 wherein the Apex Court on the facts of the case ruled out possibility of self strangulation on absence of contrivance to maintain force till death and that there was other evidence to establish that excepting the accused, no other person had chance to cause murder as the room in which the accused and the deceased were sleeping was locked from inside and, therefore, the Apex Court held that circumstantial evidence absolutely clinching in establishing complicity of the accused in murder. We have discussed the facts of the case above and the facts at hand and it is neither proved that there was complicity of the accused with the deceased at the time of incident and that the way in which double simple knot on dupatta is found, we come to the conclusion that it was sufficient contrivance to strangulate herself by the deceased. Therefore, this decision also would not help the prosecution. 36. Taking of the view of the evidence and considering all material aspects and reasonable probability of the case as aforesaid, we are unable to agree with the trial Court that the death of the deceased was homicidal. We, at length, discussed the medical evidence and we are unable to accept such expert opinion as given by P.W. 4 that death was homicidal. It is more so when other circumstances indicate self strangulation in this case. Necessary again to refer here that it was prosecution case itself that there were two doors of the said room where the incident occurred. The main door was the main entrance from outside. After entering in the room from the said entrance, there was one more door of the said room on the eastern wall in southern portion which was abutting towards the house of the father of the accused. It is the prosecution case that that door which was situated on the eastern wall of the room had to be broken open and the panchnama indicates this dislocation of the hook and photograph shows banding of chain to lock the door from inside. It is the prosecution case that that door which was situated on the eastern wall of the room had to be broken open and the panchnama indicates this dislocation of the hook and photograph shows banding of chain to lock the door from inside. Not only that, but it is a prosecution case that the said door was broken open by club blows as nothing was found handy by the father of the accused. The said door was painted and the sample of paint on the door as well as sample of paint which had adhered to on the club were sent to the Forensic Science Laboratory and it is the opinion of the Forensic Science Laboratory that the samples were matching and the same. The said club was also seized by the police through the panchnama. When one door is broken open at the time of incident, irresistible inference would be only that both the doors were locked from inside. The main door as well as the door situated on the eastern wall of the room, otherwise there was no necessity to break open the door as nobody could have entered in the room without breaking the door from the main door. These facts are established facts and admitted facts as the said panchnama is admitted by the prosecution as well as defence. If these facts are established then irresistible inference would be only that when the incident occurred, the room was locked from inside and both the doors were locked. It is not the case of the prosecution that the accused was present at that time when the incident happened in the room. The incident has occurred in the morning. Therefore, when the medical evidence is for strangulation and discussing the fact, homicidal strangulation is ruled out, only inescapable inference would be that the deceased committed suicide by self strangulation. Though these facts are rare according to the medical opinion, but such probabilities have not been ruled out even by the experts. Whether strangulation is homicidal or suicidal, always other facts of the prosecution case have to be judged and weighed. As stated above, when the medical opinion with other evidence of the prosecution case which is established beyond doubt is weighed, only conclusion which can be raised is that the deceased committed suicide by self strangulation which was probable and possible. Whether strangulation is homicidal or suicidal, always other facts of the prosecution case have to be judged and weighed. As stated above, when the medical opinion with other evidence of the prosecution case which is established beyond doubt is weighed, only conclusion which can be raised is that the deceased committed suicide by self strangulation which was probable and possible. This is so because the fact is established that the deceased died unnatural death and the death was by strangulation only and to that extent the defence also has nothing to say and, therefore, we come to the conclusion that the death of the deceased was suicidal and death occurred because of self strangulation. 37. In the trial, the accused was charged with Section 306 as also alternatively under Section 302 of IPC. He was also charged for the offence punishable under Section 498-A of IPC. While reappreciating the evidence as aforesaid, we have come to the conclusion that so far as conviction of the accused under Section 498-A is concerned, this appeal is not forcefully pressed by the appellant and it is proved beyond doubt that the accused was rightly held guilty for the offence punishable under Section 498-A. Now, what is relevant is the fact that the marriage span was within 7 years. It is proved that the deceased met with mental and physical harassment by the husband. The death of the deceased was unnatural and in these circumstances, it is necessary to raise presumption under Section 113A of the Indian Evidence Act that having regard to all the circumstances of the case, the said suicidal death of the deceased had been abetted by her husband i.e. accused. The accused could not dislodge this weighty presumption arising out of the evidence recorded during the trial and, therefore, along with the offence under Section 498-A of IPC, we find that the accused appellant is also guilty for the offence punishable under Section 306 IPC. Thus, though the prosecution has failed to prove the charge against the accused under Section 302 of IPC for murdering his wife, but the accused is guilty for abetting suicide committed by Femidabanu - his wife because cruelty as defined under Section 498-A of IPC is proved beyond doubt. Thus, though the prosecution has failed to prove the charge against the accused under Section 302 of IPC for murdering his wife, but the accused is guilty for abetting suicide committed by Femidabanu - his wife because cruelty as defined under Section 498-A of IPC is proved beyond doubt. Thus, this appeal is required to be partly allowed and after setting aside the conviction of the accused under Section 302 of IPC, the accused is required to be convicted for the offence punishable under Section 306 of IPC and sentenced accordingly and hence, the following final order is passed. 38. The appeal is partly allowed. The conviction and sentence awarded by the trial Court to the appellant Mohammed Ashif Gulam Kadar Shaikh for the offence punishable under Section 498-A is confirmed and the appeal to that extent is dismissed. The conviction and sentence awarded by the trial Court to the appellant accused Mohammed Ashif Gulam Kadar Shaikh for the offence punishable under Section 302 of IPC is set aside and the appeal is partly allowed to that extent. Instead, we convict the appellant Mohammed Ashif Gulam Kadar Shaikh for the offence punishable under Section 306 of IPC and we sentence him to undergo rigorous imprisonment of seven years and to pay a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment of two months. The sentence of imprisonment awarded for the offence punishable under Section 498-A and sentence of imprisonment awarded for the offence punishable under Section 306 shall run concurrently. The accused appellant shall be given the period of judicial custody as set off. It is directed that if accordingly the sentence is served by the appellant Mohammed Ashif Gulam Kadar Shaikh, he be set to liberty. The order of the trial Court in respect of the muddamal is not interfered with. Direct service is permitted.