JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 31st of January, 1996 passed in Sessions Trial No.103/95 by the First Additional Sessions Judge, Rajnandgaon. By the impugned judgment, the appellants have been convicted and sentenced in the following manner with direction to run the sentences concurrently:- Conviction Sentence Appellant No. 1 : Pawan Kumar @ Babla u/s 302 IPC u/s 201 IPC u/s 498-A IPC Appellant No. 2 : Smt. Firan Bai u/s 498-A IPC Imprisonment for life R.I. for 5 years R.I. for 2 years R.I. for 2 years 2. The facts; briefly stated, are as under:- Appellant No.1- Pawan Kumar @ Babla is husband of deceased-Fuleshwari Bai @ Guddi. Appellant No, 2- Smt. Firan Bai is her mother-in-law. The deceased was married to appellant No.1 one & half year prior to the date of incident. In the intervening night of 14th & 15th of August, 1994, appellant No.1 and the deceased went to sleep in their room in the house, where they were jointly residing with the parents of appellant No.1 namely-Krishna Prasad Yadav (DW-1 - father-in-law of the deceased) and Smt. Firan Bai (appellant No.2 - mother-in-law of the deceased). In the morning i.e. on 15th of August, 1994, Krishana Prasad Yadav (DW-1) was informed by appellant No.1 that deceased- Fuleshwari Bai was not feeling well. She was suffering from diarrhoea and body pain. He immediately went to the room of appellant No.1 and found that the deceased had already died. Krishna Prasad Yadav (DW-1) then lodged merg intimation (Ex.-P/10-A) at about 6.00 a.m. on 15th of August, 1994. This was recorded by Head Constable. Padmanand Jha (PW-10). The Investigation Officer reached to the place of occurrence, gave notice (Ex.P/1) to the Panchas and prepared inquest (Ex.-P/2) on the dead body of the deceased. The dead body was sent for post-mortem to Primary Health Centre (PHC), Ambagarh Chowki vide requisition Ex.-P/3-A. The post-mortem examination was conducted by a team of two Doctors namely- Dr. Vijay Dhok (PW-5) and Dr. Rajesh Gupta (PW-11). They found following symptoms and injuries on the dead body of the deceased:- (i) Body was cool; stomach was swollen; there was contusion over the lip and the tongue was pressed between the teeth; (ii) Ligature mark of 12 inch x ½ cm below thyroid cartilage, horizontally placed, completely surrounding the neck. Vijay Dhok (PW-5) and Dr. Rajesh Gupta (PW-11). They found following symptoms and injuries on the dead body of the deceased:- (i) Body was cool; stomach was swollen; there was contusion over the lip and the tongue was pressed between the teeth; (ii) Ligature mark of 12 inch x ½ cm below thyroid cartilage, horizontally placed, completely surrounding the neck. The abrasions were present beneath mark having ecchymoses and blood clots. There were lacerations over the tissues: (iii) Froth and blood like stains were coming from nostrils and mouth; (iv) Face was congested and swollen; (v) There was laceration of ½ cm x ½ cm over larynx and trachea. Froth and blood was present over mucus of tracheal tissues; (vi) Contusion 15 inch x 5 inch on the upper portion of both the breast having subcutaneous haemorrhage; & (vii) Abrasions ½ cm x ½ cm on the left cheek. They opined that the injury to the neck could have been caused by nylon rope, or nada made by cloth, or a cloth. The other injuries could be caused by hard and rough objects. Injuries were ante-mortem, and the cause of death of asphyxia due to strangulation. The post-mortem report is Ex.-P/3. In further investigation, site plan Ex.-P/4 was prepared. Another site plan Ex.-P/7 was prepared by Halka Patwari. Appellant No.1 was taken into custody and his memorandum statement (Ex.-P/6) was recorded u/s 27 of the Evidence Act and a patsan rope was seized at his instance vide seizure memo Ex.-P/5. After completion of investigation of merg, a regular F.I.R. (Ex.-P/12) was registered against appellant No.1 on 18.8.94. The rope (Article-A) was sent for its chemical examination to Forensic Science Laboratory (F.S.L.), Sagar vide Ex.-P/14, from where, a report, Ex.-P/15, was received. According to the F.S.L. report blood stains and parts of skin wore found over the rope (Article-A). Though above article was also sent for Serologist Examination. but Serologist report could not be filed. 161 Cr.P.C. statements of Kash iram (PW – 1 - father of the deceased), Tarvina Bai (PW-2 - mother of the deceased) and Bhuneshwar (PW3 - brother of the deceased) were recorded on 28.8.94. They made allegations that the deceased used to tell them that the appellants were treating her with cruelty. Thus charge-sheet was filed against the appellants u/ss 302, 201, 498-A and 304-B IPC. They made allegations that the deceased used to tell them that the appellants were treating her with cruelty. Thus charge-sheet was filed against the appellants u/ss 302, 201, 498-A and 304-B IPC. However, appellant No.1 (husband) was charged u/ss 302, 201 & 498-A IPC and appellant No.2 (mother-in-law) was charged u/s 498-A IPC. The learned Sessions Judge, considering the evidence on record, convicted and sentenced the appellants as aforementioned. 4. Mr. P.K.C. Tiwari, learned Senior Counsel appearing on behalf of the appellants, has argued that there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence; it was a case of suicidal hanging; the finding relating to homicidal death was not correct; there was no legal evidence to hold that the appellants were treating the deceased with cruelty; therefore, the appellants were entitled for acquittal. 5. On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 6. We have heard learned counsel for the parties at length and have also perused the records of the sessions case. 7. Firstly we shall consider the finding relating to homicidal death. 8. The above finding of the Sessions Judge is mainly based on medical evidence. The deceased was found dead in the room of appellant No.1. Inquest was prepared and dead body was sent for post-mortem examination. The two Doctors who performed autopsy on the dead body of the deceased had minutely examined the external injuries found over the dead body. We have already mentioned the injuries found over the dead body of the deceased. Mr. Tiwari has argued that all above injuries and symptoms may also be found in a case of suicidal hanging. We have carefully considered the post-mortem report and the evidence of two Doctors and we are unable to accept the above contention of Mr. Tiwari. Differences between hanging and strangulation has been discussed in CHAPTER 19 of the Modi's Medical Jurisprudence and Toxicology (24th Edition 2011) at pp. 455 & 456. We would like to quote the Table prepared by Author in this regard:- Differences between Hanging and Strangulation.-The differences between hanging and strangulation are given below in tabulated form: Hanging Strangulation 1. Mostly suicidal. 2. Face-Usually pale and petechiae rare. 3. Saliva-Dribbling out of the mouth down on the chin and chest. 455 & 456. We would like to quote the Table prepared by Author in this regard:- Differences between Hanging and Strangulation.-The differences between hanging and strangulation are given below in tabulated form: Hanging Strangulation 1. Mostly suicidal. 2. Face-Usually pale and petechiae rare. 3. Saliva-Dribbling out of the mouth down on the chin and chest. 4. Neck-Stretched and elongated in fresh bodies. 5. External sings of asphyxia, usually not well marked. 6. Ligature mark-Oblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment-like. 7. Abrasions and ecchymoses round about the edges of the ligature mark, rare. 8. Subcutaneous tissues under the mark-White, hard and glistening. 9. Injury to the muscles of the neck-Rare. 10. Carotid arteries, internal coats ruptured in violent cases of a long drop. 11. Fracture of the larynx and trachea-Very rare and may be found that too in judicial hanging. 12. Fracture-dislocation of the cervical vertebrae-Common in judicial hanging. 13. Scratches, abrasions and bruises on the face, neck and other parts of the body-Usually not present. 14. No evidence of sexual assault. 15. Emphysematous bullae on the surface of the lungs-Not present. 1. Mostly homicidal. 2. Face-Congested, livid and marked with petechiae. 3. Saliva-No such dribbling 4. Neck-Not so. 5. External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect). 6. Ligature mark-Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. 7. Abrasions and ecchymoses round about the edges of the ligature mark, common. 8. Subcutaneous tissues under the mark-Ecchymosed. 9. Injury to the muscles of the neck-Common. 10. Carotid arteries, internal coats ordinarily ruptured. 11. Fracture-dislocation of the cervical vertebrae-Rare. 12. Fracture-dislocation of the cervical vertebrae-Rare. 13. Scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body-Usually present. 14. Sometimes evidence of sexual assault. 15. Emphysematous bullae on the surface of the lungs-May be present. On the above authority we find that if the case is one of strangulation, it is mostly homicidal and external signs of asphyxia are very well marked. 14. Sometimes evidence of sexual assault. 15. Emphysematous bullae on the surface of the lungs-May be present. On the above authority we find that if the case is one of strangulation, it is mostly homicidal and external signs of asphyxia are very well marked. About the ligature mark it is stated that in case of strangulation, it is horizontal or transverse and is continuous round the neck, low down in the neck below the thyroid, whereas in hanging, the ligature mark would be oblique non-continuous with some other features. Apart from the above important symptoms, the injuries to the muscles of the neck is very common in strangulation which is rare in hanging. In the instant case, we find that most of the symptoms of strangulation were present over the dead body of the deceased and contrarily symptoms of hanging were lacking. In the instant case, the ligature mark was transverse and was continuous just below the thyroid and tissue were ecchymosed. Had there been hanging, the ligature mark would have been oblique because in case of hanging the entire body weight goes over the ligature and a loop of ligature is formed and its portion which comes in contact with the tissues of the neck causes impression of the ligature and the portion which falls beneath the knot, where the loop is formed, does not have any impression because the ligature does not come in contact with the tissues. All these symptoms are there in the instant case. Apart from the above, the Autopsy Surgeons had also found other external injuries which normally would not come in a case of hanging. The Autopsy Surgeon (PW - 11) has been cross-examined at length and he has denied the suggestion of the defence that it was a case of suicidal hanging. He has reasonably answered to the questions put to him in the cross-examination and ultimately suggestion of suicidal death was completely ruled-out by him. The learned Sessions Judge has taken into consideration the medical evidence as also other circumstances and has recorded the finding that it was a homicidal death and the cause of death was asphyxia on account of strangulation. After going through the entire material available on record, we do not find any infirmity in the above finding recorded by the learned Sessions Judge. 9. Now we shall consider other circumstances. 10. After going through the entire material available on record, we do not find any infirmity in the above finding recorded by the learned Sessions Judge. 9. Now we shall consider other circumstances. 10. The most important circumstance is that the husband (appellant No.1) and wife (deceased) slept in a room in the night and the wife died homicidal death and no acceptable explanation was given by the husband regarding the homicidal death of the wife in the night. 11. In Trimukh Maroti Kirkan Vs. State of Maharashtra1, the Apex Court held that: "..... If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed, above, is insisted upon by the Court. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S. 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house, cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation it would because an additional link in chain of circumstances." 12. Further in State of Rajasthan Vs. Kashi Ram2, the Apex Court held that: "Whether an inference ought to be drawn under Section 106 is a question which must be determined by reference to facts proved. In case of no explanation or false explanation it would because an additional link in chain of circumstances." 12. Further in State of Rajasthan Vs. Kashi Ram2, the Apex Court held that: "Whether an inference ought to be drawn under Section 106 is a question which must be determined by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. The respondent, accused having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by S. 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt." The Court further held that: "...The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted compan1 He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd’s case reported in AIR 1960 Madras 218." 13. So far as evidence in this regard is concerned, it has not been disputed that the appellants, Krishna Prasad Yadav (DW-1) and deceased, only four persons, were the inmates of the house. It has come in evidence that appellant No.1 and the deceased alone were sleeping in the room of the appellant. Krishana Prasad Yadav (DW-1) deposed that in the early morning, when he was returning after answering the call of nature, he saw that his son (appellant No.1) and Pille Babu (PW-4) were speedily going towards his house. Pille was compounder in Govt. Hosptial. He also reached near his house, where he met Krishana Rao (DW-2) and Madhu. When he asked as to what happened, Krishna Rao (DW-2) told that his daughter-in-law (deceased) has committed suicide by hanging. She has been brought down to bed. Pille (PW - 4) told him that she had died. Thereafter he had gone to lodge the report. He admits his signature over portion 'B' to 'B' on the merg intimation (Ex.-P/10-A). However, he denied to lodge such report saying that he had lodged the report of hanging of his daughter-in-law. Padmanand Jha (PW - 10) is the Police Officer who had recorded the merg intimation on the instance of Krishna Prasad Yadav (DW-1). He has proved the merg intimation (Ex.-P/10-A) and has also proved that he had taken the signature of the informant on the merg intimation. We find from the contents of the merg intimation that it was lodged by Krishna Prasad Yadav (DW-1) that his son told him that the deceased was suffering from diarrhea and she was not speaking, who later on was found dead. Therefore, nothing like hanging was mentioned in the merg intimation lodged by father-in-law, Krishna Prasad Yadav (DW-1) which was the first hand information to him from his son (appellant No.1). Therefore, nothing like hanging was mentioned in the merg intimation lodged by father-in-law, Krishna Prasad Yadav (DW-1) which was the first hand information to him from his son (appellant No.1). This shows that the appellant No.1 did not give correct information, rather a correct explanation as to how the deceased died homicidal death in the room in which he alone was sleeping along with the deceased. In fact, appellant No.1 failed to discharge burden cast upon him by Section 106 of the Evidence Act. The facts leading to the homicidal death of the deceased were in special knowledge of appellant No.1. Therefore it is clear that appellant No.1 gave false explanation regarding the homicidal death of his wife (deceased) and the learned Sessions Judge was fully justified in holding it to be an additional link in the chain of circumstantial evidence. 14. The other circumstance is discovery and seizure of rope at the instance of appellant No.1. The two witnesses of discovery and seizure are Durgesh Sharma (PW-12) and Biharilal (PW-6). They have stated that the appellant No.1, while in custody, had given statement relating to the rope and then a rope was seized at his instance vide seizure memo Ex.-P/5. The facts of discovery and seizure have also been proved by the evidence of Investigation Officer, Jagdish Uikey (PW-13). The memorandum (Ex.-P/6) as well as seizure of the rope (Ex.-P/5) bear the signatures of the appellant. Nothing material could be elicited in the cross-examinations of the above witnesses, on 'which, either their testimonies may be discarded or it may be said that they were falsely implicating appellant No.1 attributing the discovery and seizure at his instance. In F.S.L. report, blood stains and parts of skin were also found on the rope seized at the instance of the appellant. Discovery and seizure of the rope and its F.S.L. report were supporting circumstances in light of the facts of the instant case. After going through the entire material available on record, we find that the circumstances set-forth by the prosecution were fully established. They were of conclusive nature and tendency and were not capable of being explained and the chain of circumstantial evidence was also complete. We are of the view that in light of the above circumstantial evidence, the learned Sessions Judge was fully justified in holding the appellant No.1 guilty of the offences punishable u/ss 302 & 201 IPC. They were of conclusive nature and tendency and were not capable of being explained and the chain of circumstantial evidence was also complete. We are of the view that in light of the above circumstantial evidence, the learned Sessions Judge was fully justified in holding the appellant No.1 guilty of the offences punishable u/ss 302 & 201 IPC. 15. Now we shall consider the conviction u/s 498-A IPC. 16. This is mainly based on the evidence of Kashiram (PW-1), Tarvina Bai (PW-2) and Bhuneshwar (PW-3). Kashiram (PW-1) is father of the deceased. He deposed that when the deceased had visited his house in Holi, she was telling that appellant No.1 was demanding Rs. 10,000/- and appellant No.2 was also demanding dowry and they used to assault her on account of demand of dowry. Even they used to harass her in providing meals. She had also told this fact to her mother - Tarvina Bai (PW-2), brother- Bhuneshwar (PW-3) and sister-in-law. Tarvina Bai (PW-2) and Bhuneshwar (PW-3) have also corroborated the evidence of Kashiram (PW - 1). 17. The evidence of above 3 witnesses, that the deceased had told them that she was being treated with cruelty by the appellants has been taken on record with the aid of Section 32 of the Evidence Act. The statements made by the deceased about the cruelty to the witnesses were long prior to her death and, were not about the circumstances leading to the death of the deceased. The statement of a deceased may be admissible in evidence in terms of Section 32 (1) bf the Evidence Act to prove the cause of death or as to any circumstance of the transaction which resulted in h is/her death. In the instant case, as what the deceased had told the witnesses in long past was not relating to the cause of her death, the same cannot be held admissible u/s 32 of the Evidence Act. Section 32 is an exception to the hearsay rule and deals with the statements or declarations, by a person, since dead, relating to his or her death or the circumstances leading to such death. If a statement which otherwise is covered by hearsay rule does not fall within the exception of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. If a statement which otherwise is covered by hearsay rule does not fall within the exception of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. We are of the view that the above evidence of statements of the deceased made to the above 3 witnesses, therefore, was not admissible for returning a finding with respect to the alleged cruelty of the accused persons with the deceased. Therefore, it has to be held that the prosecution has failed to prove, beyond doubt, that the appellants had committed the offence u/s 498-A IPC. 18. For the foregoing reasons, the appeal is partly allowed. Conviction and sentences awarded to appellant No. 1 - Pawan Kumar @ Babla u/ss 302 & 201 IPC are maintained. However, conviction and sentences awarded to both the appellants u/s 498-A IPC are set-aside. The appellants are acquitted of the charges framed u/s 498-A IPC. Appeal Partly Allowed.