JUDGMENT : S. P. SINGH, J.:–The present appeal has been filed against the judgment of conviction, dated 22.04.2013, under Sections 376 and 302 of the Indian Penal Code, passed by the learned Ad hoc Additional Sessions Judge-II, Samastipur, in Sessions Trial No. 278 of 2012/05 of 2013, and the order, dated 23.04.2013, sentencing him to suffer imprisonment for life and pay fine of Rs. 5,000/- (Five thousand) on each count, and, in default, suffer rigorous imprisonment for six months on each count. However, both the sentences have been directed to run concurrently. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:— (i) Deceased Puja Devi, aged about 20 years, daughter of the informant, Ram Lakhan Giri (PW 4) was married, on 07.03.2011, to Raj Kumar Giri, son of the appellant, Bihari Giri. Since the wife of Bihari Giri had died and his son, Raj Kumar Giri, husband of Puja Devi, used to work, as a labour, in Rajasthan, Puja Devi used to live, in her matrimonial house, with her father-in-law, Bihari Giri. (ii) A month before her death, Puja Devi was brought to her parental house by her parents after following necessary ceremony, known as ‘bidaai’. On returning to her parental house, Puja Devi complained to her parents that her father-in-law, Bihari Giri, used to always quarrel on the matter of food and, on hearing the complaint, so made, Puja Devi’s father, Ram Lakhan Giri, went, along with his son, to the house of Bihari Giri at Singhia and requested him not to trouble his daughter. (iii) On 29.08.2011, while Ram Lakhan Giri was in his house, his samdhin (mother of his son, Kishun’s wife), Jasia Devi (P.W.2), a resident of Singhia, made a call and informed Ram Lakhan Giri, at about 10.00 P.M., that Puja Devi had been strangulated to death by Bihari Giri. Soon thereafter, Ram Lakhan Giri, along with his son, Kishun Giri, and others arrived at his daughter’s matrimonial house. On reaching her matrimonial house, they saw dead body of Puja Devi hanging from Banderi (wooden beam) by means of a towel, which stood tied around her neck and her legs were touching the palang (wooden cot). Soon thereafter, Ram Lakhan Giri, along with his son, Kishun Giri, and others arrived at his daughter’s matrimonial house. On reaching her matrimonial house, they saw dead body of Puja Devi hanging from Banderi (wooden beam) by means of a towel, which stood tied around her neck and her legs were touching the palang (wooden cot). On seeing the manner in which his daughter had suffered death, Ram Lakhan Giri was of the view that his daughter had been strangulated to death by pressing her mouth and neck and, thereafter, her body had been hanged from a wooden beam with the help of towel so as to give Puja Devi’s death a colour of suicide. The towel, which was found tied around her neck, belonged to Bihari Giri, who was reported to be absconding. (iv) Ram Lakhan Giri lodged, at Singhia Police Station, on 29.08.2011, an information, in the form of fardbayan, with regard to the death of his daughter. Treating the said fardbayan as First Information Report, Singhia Police Station Case No. 84 of 2011, under Section 302/34 of the Indian Penal Code, was registered against Bihari Giri and another. 3. During investigation, police visited the place of occurrence and held inquest over the said dead body, which was also subjected to post mortem examination, and, having arrested Bihari Giri, who had been absconding and, having completed the investigation, a charge sheet was laid, under Sections 376 and 302/34 of the Indian Penal Code, against accused Bihari Giri. 4. At the trial, when charges, under Sections 376 and 302 read with Section 34 of the Indian Penal Code, were framed against the accused, he pleaded not guilty thereto. 5. The prosecution examined altogether 14 witnesses, who are as follows: P.W. 1 is Anil Giri, P.W. 2 is Jasia Devi, P.W. 3 is Kishun Giri, P.W. 4 is Ram Lakhan Giri, P.W. 5 is Kavita @ Sarita Kumari, P.W. 6 is Tej Narayan Giri, P.W. 7 is Ashok Giri, P.W. 8 is Bishnu Giri, P.W. 9 is Madhukant Giri, P.W. 10 is Hari Om Giri, P.W. 11 is Dr. Rajendra Krishna, P.W. 12 is Vishwanath Prasad Ravi, P.W. 13 is Dr. R.C.S. Verma, and P.W. 14 is Ram Nandan Yadav. 6. Rajendra Krishna, P.W. 12 is Vishwanath Prasad Ravi, P.W. 13 is Dr. R.C.S. Verma, and P.W. 14 is Ram Nandan Yadav. 6. The accused was, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in his examination aforementioned, he denied that he had committed the offences, which were alleged to have been committed by him, the case of the defence being that of denial. The defence did not adduce any evidence. 7. On consideration of materials on record, learned trial Court convicted the accused under Sections 376 and 302 of the Indian Penal Code and passed sentences against him as mentioned above. 8. Aggrieved by his conviction and the sentences passed against him, the accused, as a convicted person, has preferred this appeal. 9. We have heard Mr. Anil Kumar Mukund, learned Counsel for the appellant, and Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor, for the State. 10. Assailing the impugned judgment, learned Counsel for the appellant, submits that the prosecution witnesses have not supported the prosecution’s case at the trial inasmuch as Jasia Devi (PW 2, mother of the wife of the informant’s son), Kishun Giri (PW 3, son of the informant), Ram Lakhan Giri (PW 4, informant), Kavita @ Sarita Devi (PW 5), Tej Narayan Giri (PW 6), Ashok Giri (PW 7), Bishun Giri (PW 8), Madhukant Giri (PW 9) and Hari Om Giri (PW 10), have not given any evidence against the accused-appellant; rather, they have turned hostile. P.W. 12 (Vishwanath Prasad Ravi) is the second Investigating Officer of the case, who submitted charge sheet, P.W.11 (Dr. Rajendra Krishna) has proved post mortem report as the same was prepared in his presence. 11. On the basis of the above facts, learned Counsel for the appellant submits that none other than PW 1 has supported the case of the prosecution. 12. Learned Counsel for the appellant also submits that the prosecution has tried to improve its case during trial inasmuch as PW 1 has sought to develop a story of rape having been committed by accused-appellant, though no one had seen the occurrence and the chain of circumstances is not complete, which could point to the guilt of the accused and the accused alone. 13. 13. Controverting the above submissions made on behalf of the accused-appellant, learned Additional Public Prosecutor, appearing for the State, submits that the evidence of PW 1, in itself, is complete and sufficient to warrant conviction of the appellant under Sections 376 and 302 of the Indian Penal Code. He submits that in view of the evidence on record, which has not been disputed by the defence, the deceased stayed alone in her matrimonial house with her father-in-law (i.e. the appellant), because her husband used to work as a labourer, in Rajasthan, and her mother-in-law was no more alive and the appellant has, therefore, been rightly convicted. 14. According to the prosecution’s case, as can be clearly seen, the said deceased was murdered within 8 (eight) months of her marriage. It is also in the evidence on record that she had come to her matrimonial house only a month prior to the occurrence and after her marriage, she used to live alone in her matrimonial house with her father-in-law, because her husband had been working, in Rajasthan, as a labourer, and her mother-in-law was not alive, she was found hanging from the beam (wooden log) by means of a towel tied around her neck and her legs were touching the palang (cot). The informant, in the first information report, alleged that the appellant often used to quarrel with the deceased on the matter of food. The informant, along with his son, Kishun Giri (PW 3), went to his daughter’s matrimonial house, where he found her dead body hanging from a beam (wooden log) by means of a towel tied around her neck. 15. The case of the defence is that there is no eye witness to the occurrence and the prosecution witnesses did not support the prosecution’s case at trial. 16. It is true that the informant and other witnesses, namely, P.W. 5 Kavita @ Sarita Devi, P.W. 6 Tej Narayan Giri, P.W. 7 Ashok Giri, P.W. 8 Bishun Giri, P.W. 9 Madhukant Giri, P.W. 10 Hari Om Giri, did not support the prosecution’s case inasmuch as they turned hostile save and except Anil Giri (P.W. 1), one of the sons of the informant. 17. Admittedly, there is no eye witness to the occurrence, because occurrence took place inside a room. The case is clearly based on circumstantial evidence. 18. 17. Admittedly, there is no eye witness to the occurrence, because occurrence took place inside a room. The case is clearly based on circumstantial evidence. 18. The issue is: whether the prosecution has been able to prove the case against the appellant beyond all reasonable doubt? It is not in dispute that even though there is no eye witness of an occurrence, conviction can still be sustained on the basis of circumstantial evidence if the chain of circumstances is complete pointing to the guilt of the accused excluding all hypothesis of his being innocent. 19. We have already noticed that since some material witnesses have turned hostile, the case of the prosecution comes to, now, rests substantially upon the evidence of P.W. 1 (Anil Giri), the son of the informant, P.W. 13 is the doctor, who had conducted autopsy on the dead body of the said deceased, Ramnandan Yadav (P.W. 14) is Investigating Officer of the case and P.W. 12 is the second Investigating Officer of the case, who has submitted charge sheet against the appellant. 20. P.W. 13, Dr. R.C.S. Verma, has deposed, in his evidence, that on 30.08.2011, at 4.30 P.M., he conducted autopsy on the dead body of the said deceased and found ante mortem injuries, which were as follows:— 1. Externally:— (i) Rigor mortis present. (ii) Bleeding from mouth and nostrils. (iii) Both eyes deeply congested. (iv) Ante mortem abrasion 5”x1” with surrounding bruise over root of neck in front and both sides. (v) Genital track shows edema and swollen vulvae tearing of posterior commeasure of vagina. (vi) Bruising of pretracheal muscles with haemotoma.” 21. It is in the evidence of the doctor (PW 13) that there was bleeding from genital track (vaginal canal) and vaginal swab taken showed absence of spermatozoa on examination by microscope. 22. On dissection, the doctor (PW 13) found as follows:— (i) Viscera including brain congested. (ii) Deep congestion of intratracheal mucous membrane with mucous mixed with blood found in lumen of trachea. (iii) fracture of several tracheal rings (iv) Both lungs deeply congested. (v) Laceration of posterior commeasure of vagina ½”x ¼” with internal bleeding and tearing with deep congestion of vaginal mucous membranes. 23. According to the doctor (PW 13), time elapsed since death was 36 hours and death of the deceased resulted from serious injuries to her respiratory track causing mechanical asphyxia (throttling) and lack of oxygen. (v) Laceration of posterior commeasure of vagina ½”x ¼” with internal bleeding and tearing with deep congestion of vaginal mucous membranes. 23. According to the doctor (PW 13), time elapsed since death was 36 hours and death of the deceased resulted from serious injuries to her respiratory track causing mechanical asphyxia (throttling) and lack of oxygen. It is in the evidence of the doctor (PW 13) that bruises were writ large all around her neck and that there was bleeding from mouth and nostrils and the eyes were deeply congested. 24. In the opinion of the doctor (PW 13), the death of the victim was caused due to throttling and prior sexual assault was possible. 25. Ram Nandan Yadav (P.W. 14) is the Investigating Officer of the case. He has stated that Officer-in-Charge recorded, in his presence, the fardbayan, which has been proved as Exhibit-4. On the basis of fardbayan, formal First Information Report was drawn by the Officer-in-Charge, Akhilesh Kumar, which has been proved as Exhibit-5. He has further stated that at 10.30 PM, on the fateful evening, information was received, on telephone, that dead body of daughter-in-law of Bihari Giri, tied by a gamacha (i.e. country towel), was hanging from the beam of the house and after recording this information, he (PW 14), along with the Officer-in-Charge and other police personnel, reached the place of occurrence, they saw the dead body of Puja Devi hanging from the beam and inquest was held in presence of witnesses, namely, Kishun Giri (P.W.3) and Anil Giri (P.W.1). The inquest report has been marked as Exhibit-1. In column 4 of the inquest report, it is mentioned that the dead body of the deceased was found hanging from a beam (wooden log) of the room, both hands of the deceased were straight, her right leg was on bed and left leg was on her right leg in turned condition and that her both eyes and mouth were closed. 26. It is in the evidence of the Investigating Officer (PW 14) that he inspected the place of occurrence, which was on the northern portion of one of the rooms of the house of the appellant, Bihari Giri, fitted with wooden door and that close to the wall, there was a wooden cot with bed. 26. It is in the evidence of the Investigating Officer (PW 14) that he inspected the place of occurrence, which was on the northern portion of one of the rooms of the house of the appellant, Bihari Giri, fitted with wooden door and that close to the wall, there was a wooden cot with bed. The dead body of Pooja Devi was hanging from the beam (wooden log) and her legs were touching the said cot. It is also in the evidence of Investigating Officer (PW 14) that he recorded the statements of witnesses, namely, Anil Giri (P.W.1), Bishun Giri (P.W. 8), Kishun Giri (P.W. 3), Santosh Mallick, Jasia Devi (P.W.2), Sarita Kumari (P.W.5), Rajan Kumar Singh and others. PW 14 has deposed that Jasia Devi (P.W. 2) stated before him that the said deceased had informed her that her father-in-law had made advances towards her and one day, he was pressing her belly and, similarly, other witnesses stated that accused Bihari Giri had committed the murder and had, later on, hanged her from the beam trying to project that the said deceased had committed suicide. In his cross-examination, the Investigating Officer (PW 14) has deposed that none of the witnesses has stated that any one of them saw as to who had hanged the dead body from the beam. 27. Learned Counsel for the appellant has submitted that such injuries could be possible if one ties a towel around ones neck and hangs oneself from a beam (wooden log) or from a fan with the aid of the towel. Even assuming that such injuries are possible if one tries to hang oneself by tying neck, but what is noteworthy is the fact that the said deceased had injuries on her body, which could not have been self-inflicted, nor is any suggestion to the said effect has been offered by the defence at the time, when the witnesses, especially the Investigating Officer (PW 14) was being cross-examined. Tearing of commeasure of vagina and bleeding from genital track are indicative of prior sexual assault on the deceased, who died on account of asphyxia, because she was not able to breathe following throttling of her neck. 28. The appellant was alone in the house with the deceased, her husband was away, in Rajasthan, working as a labourer, and there is no suggestion to the effect that the deceased had any extra-marital relationship. 28. The appellant was alone in the house with the deceased, her husband was away, in Rajasthan, working as a labourer, and there is no suggestion to the effect that the deceased had any extra-marital relationship. The report of the doctor does indicate that there was possibility of prior sexual assault on the body of the said deceased. 29. Thus, the plea of the defence that the said deceased had committed suicide is not borne out of the evidence on record, which has gone undisputed. On the other hand, P.W. 1, in his examination-in-chief, states that his sister alone used to live in her matrimonial house with her father-in-law, because her husband, namely, Raj Kishore Giri, used to work in Rajasthan. This witness (PW 1) has also deposed that Puja Devi informed him and others that the accused-appellant had tried to outrage her modesty and when she protested, she was threatened with death, and that the accused had admitted his mistake and assured them that no such mistake would be committed in future. 30. It is in the evidence of PW 1 that he learnt about the occurrence from Jasia Devi (P.W. 2) and soon after receipt of the information of death of his sister, Puja Devi, he (PW 1), along with his father and others, arrived at the place of occurrence, but the appellant was not traceable. 31. In his cross-examination, P.W. 1 has stated that he had made similar statement under Section 161 of the Code of Criminal Procedure before the police. In his cross-examination, P.W. 1 has asserted that he had stated before the police that the appellant used to misbehave with his sister. 32. We find that the defence has not been able to elicit from PW 1 anything, which could discredit his evidence. In fact, material portions of his deposition, in the Court, have gone unchallenged inasmuch as it was note even suggested to the Investigating Officer (PW 14) that PW 1 had not made any such statement, during investigation, as his evidence, now, reflects. The evidence of PW 1 has, thus, remained unshaken in its material particulars.The witness, PW 1, narrated what he had heard from his sister and what he saw, when he reached her matrimonial house. The evidence of PW 1 has, thus, remained unshaken in its material particulars.The witness, PW 1, narrated what he had heard from his sister and what he saw, when he reached her matrimonial house. The medical evidence on record does establish that she suffered from internal bleeding in her vaginal track, which is indicative of attempt of sexual assault on her. In view of the medical evidence, mere absence of spermatozoa would not be sufficient to obviate the possibility of other forms of sexual assault. 33. In the circumstances indicated above, it is clear that though no one had seen the commission of the occurrence, the evidence of P.W. 1, the post mortem report as well as evidence of the Investigating Officer prove the guilt of the appellant and appellant alone and no one else. The defence has not disputed that the appellant was the only person, who had been living with the said deceased, because his wife was dead and his son had been working in Rajasthan. 34. Nothing has been brought on record by the defence to show that any other person had come to the house on the fateful day. Just after the occurrence, the appellant absconded. P.W.1 has given evidence that his sister, in the past, had complained that the appellant tried to sexually assault her and when she protested to his advances, he threatened her with dire consequences. The Investigating Officer, too, in his evidence, has deposed that the appellant has been evading arrest and was absconding. 35. In the light of what have been discussed above, we find that there are sufficient incriminating circumstances, which point to the guilt of the appellant and the appellant alone, and the circumstances do not admit of any other hypothesis including the hypothesis that someone, other than the accused-appellant, had committed the murder and/or attempted to sexually assault the said deceased. 36. Though there was attempt of sexual assault, the medical evidence does not conclusively prove that the deceased was subjected to rape by the appellant and, hence, the charge of rape, under Section 376 of the Indian Penal Code, cannot be held to have been proved; whereas charge, framed under Section 302 of the Indian Penal Code, stands proved beyond reasonable doubt. 37. 37. In the result and for the reasons discussed above, we uphold the conviction of the accused-appellant, under Section 302 of the Indian Penal Code and the sentence passed against him on this count. We, however, hold the accused-appellant not guilty of the offence under Section 376 of the Indian Penal Code. We accordingly set aside the impugned conviction of the appellant as well as the impugned sentence passed against him for his conviction under Section 376 of the Indian Penal Code. We hold the appellant not guilty of the offence under Section 376 of the Indian Penal Code and acquit him accordingly. 38. The conviction of the appellant under Section 302 of the Indian Penal Code and the sentence passed against him, in this regard, stand. 39. In terms of the above observations and directions, this appeal shall stands partly allowed. 40. Send back the Lower Court Records with a copy of this judgment and order. I. A. ANSARI, J.:–1. While completely agreeing with the observations made, and the conclusions reached, by my esteemed brother, Samarendra Pratap Singh, J., I wish to add a few lines for the purpose of clarification of the issues involved and the reasons for our decision. 2. The incriminating pieces, which surfaced from the evidence on record, is that the said deceased used to live with the appellant and no one else lived with them at the relevant point of time. This course of conduct would suggest, in the absence of anything showing to the contrary, that the same state of affairs had continued on the night of the occurrence meaning thereby that the appellant was present alone, in his house, at the time, when Puja Devi suffered sexual assault and also met with homicidal death. When the death of the deceased became public, the appellant absconded. 3. Though the appellant, as an accused, had the right to maintain silence, his silence does not debar the Court from drawing such inferences as may be permissible in the context of the facts emerging from the evidence on record. 4. When the death of the deceased became public, the appellant absconded. 3. Though the appellant, as an accused, had the right to maintain silence, his silence does not debar the Court from drawing such inferences as may be permissible in the context of the facts emerging from the evidence on record. 4. Situated thus, it is clear that when the appellant was alone at his house, at the time, when Puja Devi suffered sexual assault and also met with homicidal death, there remains no escape from the conclusion, and I do conclude, that it was none, but the appellant, who was responsible for the assault on Puja Devi, a hapless and helpless married woman, and it was the appellant, who had intentionally put to death Puja Devi and committed thereby the offence of murder punishable under Section 302 of the Indian Penal Code. 5. Since the sexual assault amounting to rape is not proved to have been committed, I agree with my learned brother, Samarendra Pratap Singh, J., that the appellant ought not to have been convicted under Section 376 of the Indian Penal Code. 6. I, therefore, concur with the findings that the appellant’s conviction, under Section 376 of the Indian Penal Code, deserves to be set aside, but his conviction under Section 302 of the Indian Penal Code stands well proved and his conviction, under Section 302 of the Indian Penal Code, cannot be interfered with in appeal, while his conviction, under Section 376 of the Indian Penal Code, is not sustainable and must, therefore, be set aside and is accordingly set aside. 7. The appeal, thus, stands allowed partly in terms of what have been observed, decided and directed above.