JUDGMENT : A.S. Naidu, J. - The judgment and order of conviction dated 27.2.2001 passed by the learned 2nd Addl. Sessions Judge, Berhampur in S.C. No. 6 of 2000 convicting the Appellants, who are related to each other as father, mother and son for commission of offences under Sections 302/34 I.P.C. and sentencing each of them to undergo R.I. for life is assailed in this Criminal Appeal. 2. The scenario of facts reveals that the Appellants along with one Bhagyalaxmi Mohapatro faced trial for commission of offences under Sections 302/34 I.P.C. on the allegation that on the night of 12/ 13 of April, 1998, in furtherance of their common intention, committed murder by intentionally causing death of Puspalata Patra, wife of Santosh Kumar Patro-Appellant No. 1. Bishnudevi Patro-Appellant No. 3 happens to be wife of accused Ganesh Patro-Appellant No. 2 and the other accused Bhagyalaxmi (since acquitted) is the daughter of Ganesh. It is apt to mention here that out of the four accused person accused Bhagyalaxmi was found not guilty and was acquitted by the learned 2nd Addl. Sessions Judge, Berhampur u/s 235 of Code of Criminal Procedure No attempt having been made to assail the order of acquittal of the aforesaid accused person this appeal is confined only to the order of conviction and sentence of the three Appellants. 3. Prosecution was set to motion on the basis of a written F.I.R. (Ext.2) lodged by Niranjan Panigrahy-P.W.2 before Purushottampur Police Station alleging that his sister Puspalata had married Santosh Kumar Patro-Appellant No. 1 about 12 years back in consonance with Hindu rites and customs and on the early morning of 13.4.1998 (at about 3.00 A.M.) Santosh came to the house of the informant in Auto rickshaw and informed him that Puspalata was seriously ill and requested him to accompany him to his house. The informant and his mother went to the house of Santosh and on reaching there they found that Puspalata was lying dead on the cot inside the house of the accused persons. It was further alleged in the F.I.R. that after marriage Santosh was usually quarreling with Puspalata for petty matters and was abusing her and that on inquiry he came to know that in course altercation between Puspalata and her husband Santosh, mother Bishnudevi and sister-in-law Bhagyalaxmi, the accused persons became enraged and throttled Puspalata and committed her murder. 4. It was further alleged in the F.I.R. that after marriage Santosh was usually quarreling with Puspalata for petty matters and was abusing her and that on inquiry he came to know that in course altercation between Puspalata and her husband Santosh, mother Bishnudevi and sister-in-law Bhagyalaxmi, the accused persons became enraged and throttled Puspalata and committed her murder. 4. On the basis of the F.I.R., P.W.13 the then Officer-in-Charge of Purushottampur P.S. registered Purushottampur P.S. Case No. 32 of 1988 and commenced investigation. In course of investigation he examined different persons, issued requisition to Superintendent of Police, Ganjam, Chhatrapur for deputing Scientific Team, took photographs of the deceased, prepared spot map, made inquest over the dead body and sent the same for postmortem examination. He also seized different material objects and recorded the statements of different witnesses u/s 164 of Code of Criminal Procedure After completion of investigation, charge sheet was submitted against the accused persons before the learned J.M.F.C, Purushottampur in G.R.Case No. 32 of 1998. The learned Magistrate on being prima facie satisfied from the police documents, took cognizance of the offences and committed the case to the Court of Sessions for trial. The plea of the accused persons was of tomplete denial. 5. In order fo substantiate its case the prosecution got examined as many as 13 witnesses. Out of them P.W.2 was the informant and brother of the deceased, P.Ws. 1 and 3 were witnesses to the inquest, P.Ws.4 and 5 were the son and daughter of the deceased and Santosh Appellant No. 1 P.W.6 was the private doctor who had treated Puspalata and declared her dead. P.W.7 was the son of Bhagyalaxmi, the other accused. P.Ws.8 and 9 were the Constables who took part in the investigation. P.W.'IO was the doctor who conducted autopsy on the dead body. P.W.11 was the learned Magistrate who had recorded statement of P.Ws.5 and 6 u/s 164 Code of Criminal Procedure P.W.12 was the photographer who accompanied the Scientific Team and took photographs and P.W. 13 was the Investigating Officer. 6. This is an unfortunate case where most of the witnesses i.e. P.W.2-the informant, P.Ws.1 and 3 the eyewitnesses, P.Ws.4 and 5 the son and daughter of the deceased had turned hostile in course of trial and did not support the prosecution case at all. Learned 2nd Addl. 6. This is an unfortunate case where most of the witnesses i.e. P.W.2-the informant, P.Ws.1 and 3 the eyewitnesses, P.Ws.4 and 5 the son and daughter of the deceased had turned hostile in course of trial and did not support the prosecution case at all. Learned 2nd Addl. Sessions Judge after vivid discussion of the materials and in the absence of any ocular evidence, relying upon the circumstantial evidence came to the conclusion that the accused persons being Santosh, Ganesh and Bishnudevi and had committed offences under Sections 302/341.P.C. and convicted them there under. Learned 2nd Addl. Sessions Judge, however, held that the prosecution failed to substantiate its case against accused Bhagyalaxmi and acquitted her. 7. Mr. Sarangin, learned Counsel for the Appellants strenuously took this Court through the evidence of all the witnesses and also through the exhibits and submitted that there was no iota of evidence connecting the Appellants with the alleged crime, inasmuch as, none of the witnesses supported the prosecution case and as such the learned 2nd Addl. Sessions Judge acted illegally and with material irregularity in convicting the Appellants. According to Mr. Sarangi perusal of the F.I.R. itself would reveal that the same was based on mere surmises and conjectures. Added to it the informant- P.W.2 turned hostile and even did not support the allegation levelled in the F.I.R. Thus the learned 2nd Addl. Sessions Judge should have acquitted the accused persons mainly on the ground that from the very inception, the prosecution case was doubtful and was based only on suspicion. He further submitted that in the absence of direct evidence the Court below wrongly relied upon on circumstantial evidence and even otherwise the chain of circumstances have not been established to put a conclusive finger on the accused persons with regard to commission of offences. Learned 2nd Addl. Sessions Judge, it is submitted, has proceeded more on the basis of strong suspicion though law is well settled that suspicion, however strong it may be, cannot take place of the proof nor a person can be convicted on the basis of suspicion alone. It is stated that in view of the aforesaid clear provision of law, the order of conviction and sentence may be set aside. 8. Mr. Mishra, learned Addl. It is stated that in view of the aforesaid clear provision of law, the order of conviction and sentence may be set aside. 8. Mr. Mishra, learned Addl. Government Advocate on the other hand took pain to place the entire judgment before this Court and submitted that all the witnesses being members of the same family, backed out from the statements made by them before the Investigating agency and even from the statements recorded u/s 164 of Code of Criminal Procedure by the learned Magistrate. Such action itself reveals that the defence has not come with clean hands to the Court. That apart according to Mr. Mishra the death admittedly having occurred in the house of the accused persons and the said death not being a normal one, adverse inference should be taken against the accused persons and in the absence of any cogent explanation they were rightly held guilty by the learned 2nd Addl. Sessions Judge and it is a fit case where the order of conviction invites no interference. 9. Heard learned Counsel for the parties at length. Perused the evidence both oral and documentary meticulously. Considered the arguments diligently. Admittedly deceased Puspalata was the wife of Appellant No. 1 and daughter-in-law of Appellant nos.2 and 3. She was found dead on 12.4.1998. The evidence of P.W. 10 who conducted postmortem coupled with the postmortem report-Ext.7 reveals that Puspalata sustained following external injuries:- i) Oval shape contusion looking purplish blue in colour of size 2.5 cm X 2 cm situated over the inner aspect of lower boarder of let mandible present, 4 cm away towards left to the chin, over which a scratch abrasion of size 0.5 X 0.5 cm was present. ii) Linear abrasion of length 0.8 cm situated little obliquely 1 cm below external injury No. i. iii) Linear abrasion of length 0.7 cm situated 0.3 cm below and left to external injury No. 2 over the left side of upper neck. iv) Linear abrasion situated almost horizontally of length 0.5 cm over left upper neck, 0.5 cm above the external injury No. ii. v) Crescent shaped linear abrasion of length 1 cm with convexity towards above situated over the left side of upper neck, 1.5 cm below the left angle of mandible. iv) Linear abrasion situated almost horizontally of length 0.5 cm over left upper neck, 0.5 cm above the external injury No. ii. v) Crescent shaped linear abrasion of length 1 cm with convexity towards above situated over the left side of upper neck, 1.5 cm below the left angle of mandible. vi) Oval shaped contusion looking purplish blue in colour of size 2 cm X 1.8 cm situated over the left side of upper neck, just above the external injury No. 5, over which 3 linear abrasions of length 0.5 cm, 0.4 cm and 0.4 cm situated respectively with a gap of 0.3 cm apart from each other. vii) Crescent shape linear abrasion of length 0.7 cm with convexity upwards situated over left side of upper neck, present 0.5 cm below external injury No. vi. viii) Crescent shape linear abrasion situated over the left upper neck with convexity facing downwards of length 0.7 cm present 1 cm below external injury No. vii. ix) Contusion, almost round in shape looking purplish blue in colour of size 2 cm X 1.8 cm situated over middle of left neck 4 cm below and 1 cm lateral to chin on left side. x) A 'J' shaped linear abrasion, the upper limb of which measures 3.2 cm starts 2 cm below the right side of the neck, horizontally linear abrasion which measures 4 cm starts from the junction of the upper limb, 2 cm lateral to adams apple, having multiple tiny scratch abrasions over both the limbs. xi) Abraded contusion looking purplish blue in colour of size 2 cm X 1 cm situated over the middle of the upper limb of external injury No. x. xii) Oval shaped contusion looking purplish blue in colour situated over the inner aspect of the lower boarder of right mid mandible. On dissection P.W.10 also found the following internal injuries:- i) On disSection of external injury No. i and xii shows extravasations and infiltration of blood into the underneath fascia and tissue. ii) Extravasations of blood into the superficial fascia and muscle plains of upper neck including thyroid cartilage and above. iii) Irregular fracture of left greater cornu of hyoid bone with extravasations of blood into the surrounding tissues. iv) Fracture of thyroid cartilage on right side at its superior cornu with contusion and extravasations of blood into the surrounding tissues. v) Retropharyngeal space filled with extravassated blood. iii) Irregular fracture of left greater cornu of hyoid bone with extravasations of blood into the surrounding tissues. iv) Fracture of thyroid cartilage on right side at its superior cornu with contusion and extravasations of blood into the surrounding tissues. v) Retropharyngeal space filled with extravassated blood. According to the Doctor all the external injuries were anti mortem in nature and injury nos. i, vi, ix, xi and xii correspond to internal injuries and could have been the cause of death. The doctor also opined that the death was caused by compression over neck using fingers including thumb. The report indicates that abrasions caused by nail bite marks were seen on the body. P.W.12 was the photographer. He has taken photographs of the deceased on 13.4.1998 vide Ext.10. The negative of the photographs were marked as Ext.9. The said photographs were marked as exhibits after observing necessary paraphernalias. He has also stated in Court that while taking photographs he had noticed ligature and nail marks on the neck of the deceased. The photographs also reveal ligature mark on the neck and nail marks on cheeks. The evidence of P.W.io and P.W.12 as well as the postmortem report Ext.7 and the photographs-Ext. 10 clearly establish that the death of Puspalata was a homicidal one. The learned 2nd Add). Sessions Judge has discussed the evidence in this aspect and the conclusions arrived at by him appears to be just and proper. This Court is therefore not inclined to interfere with the said finding. 10. The only other question which needs to be determined is as to who was the author of such crime, Admittedly all the witnesses including the so-called eyewitnesses to the occurrence, whose statements were recorded by the learned Magistrate u/s 164 of Code of Criminal Procedure have backed out and did not support the prosecution case. They were declared hostile and were cross-examined at length but them in vain. Be that as it may, fact remains, the dead body of Puspalata was found lying on the cot in the third room of the accused persons. They have not given any possible explanation. The statement given by them u/s 313 Code of Criminal Procedure also do not throw any light with regard to presence of the dead body in their own house. Admittedly at the relevant time all the accused persons were the occupants of the house. They have not given any possible explanation. The statement given by them u/s 313 Code of Criminal Procedure also do not throw any light with regard to presence of the dead body in their own house. Admittedly at the relevant time all the accused persons were the occupants of the house. The fact that the body of Puspalata was found inside the house of the Appellants is a very telling circumstance against them. The Appellants owed a duty to explain how a homicidal death happened in their house. In the absence of any such explanation, the implication of the said circumstance would definitely be adverse to the Appellants. (See State of Andhra Pradesh Vs. Gangula Satya Murthy, ) Even otherwise in the absence of any explanation coming from the Appellants this Court may also presume u/s 114 of the Evidence Act that the accused persons had committed the offence. 11. P.W.4 was a thirteen years old boy. He is the son of the deceased Puspalata and Appellant No. 1-Santosh. He was reading in Class-IX. Though he did not support the prosecution case and was declared hostile, but then, from his statement it appears that on the night of occurrence he along with his sister Pratima and his cousin brother Pinku, after taking meal slept with Bhagyalaxmi and by that time their mother Puspalata was alive. The said fact is also corroborated by P.W.5. The dead body was found in the 3rd room of the house. No explanation is coming forward from the accused persons. In the above circumstances, the presumption u/s 114 of the Evidence Act is available to the prosecution. 12. After analyzing the entire evidence and other materials this Court finds that admittedly nail marks were found on the left side cheek of the deceased. The prosecution has not established who was the author of said nail marks. There is no evidence to reveal that the dead body was found in the room occupied by the Appellants. In the absence of such cogent evidence and as no other materials are available to connect Appellant No. 2-Ganesh Patro and Appellant No. 3-Bishnudevi Patro with the alleged crime, this Court feels that they are entitled to a benefit of doubt. That apart Ganesh and Bishnudevi would be aged about 72 and 65 years respectively in the meanwhile. In the absence of such cogent evidence and as no other materials are available to connect Appellant No. 2-Ganesh Patro and Appellant No. 3-Bishnudevi Patro with the alleged crime, this Court feels that they are entitled to a benefit of doubt. That apart Ganesh and Bishnudevi would be aged about 72 and 65 years respectively in the meanwhile. Taking into consideration their age and in the absence of any evidence directly connecting them with the alleged crime this Court feels that it is a fit case where Appellant nos.2 and 3 are entitled to a benefit of doubt and accordingly this Court sets aside the conviction and sentence passed against them under Sections 302/34 I.P.C. and acquits them u/s 235 of Code of Criminal Procedure 13. Appellant No. 1-Santosh Kumar Patro is the husband. The dead body was found from room No. 3 which was usually occupied by him. He has not come up with any explanation and as such this Court has no hesitation to hold that the prosecution was able to establish the guilt against him. He has remained in custody for more than 11 years in the meanwhile. That apart it appears that on the date of occurrence there was altercation between the family members which led to the incident. There was neither any premeditation to murder Puspalata nor was there any mens rea. The incident occurred in a spur of the moment in the heat of passion. Considering all the facts and in view of the discussions made above this Court while setting aside the conviction of Appellant No. 1 u/s 302 I.P.C. convicts him u/s 304, Part-ll I.P.C. and sentences him to undergo R.I to the period of imprisonment already undergone. With the aforesaid modification the Criminal Appeal is disposed of. S.C. Parija, J. 14. I agree.