JUDGMENT : A.B. Chaudhari, J. 1. Being aggrieved by judgment and order dated 15.05.2012 in Sessions Case No. 132/2009 passed by Additional Sessions Judge, Chandrapur, convicting the appellants for an offence punishable under Sections 302 and 201 of the Indian Penal Code, the present appeal has been preferred by appellants. FACTS: Appellant No. 1-Govardhan is son of appellant No. 2-Budhaji and appellant No. 3.-Sau. Vacchala. Briefly stated, the prosecution case is that the deceased Sharda was married to appellant No. 1-Govardhan on 14.05.2007 at Visapur, Tq. Ballarpur on payment of dowry of Rs. 40,000/- cash, gold chain and ring. After marriage, Sharda went to reside at Awalgaon. She was treated properly for about 1 1/2 years. She gave birth to a daughter-Rohini, who was, at the time of incident, hardly nine months old. Appellant Nos. 1 and 2 started demanding an amount of Rs. 1,00,000/- from her father, who had paid Rs. 20,000/- on two occasions and, thereafter, had shown his inability. Eight days before the incident, appellant No. 1 Govardhan made a telephone call and demanded Rs. 50,000/- for getting employment in the bank. Her parents were unable to satisfy the demand and hence he threatened that he would see Sharda. After eight days, at about 1.00 to 2.00 AM, Anil Dange, brother of the deceased, received a phone call about the death of Sharda due to burning. Anil went to Awalgaon along with relatives and found that the dead bodies of Sharda and her daughter Rohini were lying burnt in the bedroom of the house of appellant No. 1. He noticed that tongue of both the deceased were protruding out and bodies were in burnt condition. He reported the matter to Police vide report Exh.-86 and an offence was registered at Exh.-87. Earlier, to that accused No. 4-Bhaskar Ashtekar had informed the Police that while he was sleeping on the terrace, he noticed smoke from the ventilator of the bedroom where Sharda was sleeping. Therefore, he came out, so also appellant and his father. They broke open the door and found Sharda and Rohini burning on the bed. They threw water and extinguished the fire. Accidental Death Case was registered by police. In the morning of 22.06.2009, spot was inspected and spot panchanama Exh.-69 was prepared. Seizure was carried out and articles were seized. Tongues of both the dead bodies were protruding out. They broke open the door and found Sharda and Rohini burning on the bed. They threw water and extinguished the fire. Accidental Death Case was registered by police. In the morning of 22.06.2009, spot was inspected and spot panchanama Exh.-69 was prepared. Seizure was carried out and articles were seized. Tongues of both the dead bodies were protruding out. Police sent both the dead bodies for post mortem. Dr. Sandip Dadmal (PW8) conducted post mortem and found 80% burn injuries. He found trachea had collapsed and the death was found to be homicidal death by throttling, asphyxia and burning. Investigation was carried out by Waman Hemne (PW12) and spot panchanama Exh.-70 was prepared. Photographs were taken. Writing on the wall with the help of lipstick was duly photographed and sent for report of the handwriting expert. Other material was also seized and, thereafter, chargesheet was filed in the Court. Accused were charged. The trial Judge evaluated the evidence and convicted the appellants as above. Hence, this appeal. ARGUMENTS: 2. In support of the appeal, Dr. De, learned counsel for the appellants, took us through the entire evidence on record, oral as well as documentary, and argued that the prosecution had miserably failed to prove its case beyond any reasonable doubt. Therefore, judgment of conviction of the appellants is clearly illegal. He submitted that admittedly, there is no eye witness to the incident in question and the appellants having been acquitted of the charge of dowry death or demand for dowry and in the absence of any charge under Section 306 of the IPC, the only way out is to acquit the appellants from the offence for which they were charged. He vehemently argued that the writing on the wall with lipstick has been found to be in the handwriting of the deceased Sharda by handwriting expert and not only that the trial Judge has also recorded a finding of fact to that effect. In the wake of the writing on the wall that the deceased Sharda wanted to commit suicide and she had accordingly committed suicide, the trial Court ought to have treated the said writing as dying declaration and believed the same and recorded an order of acquittal. The trial Court, however, incorrectly ignored the said dying declaration within the meaning of Section 32 of the Indian Evidence Act, which is nothing but a perversity. The trial Court, however, incorrectly ignored the said dying declaration within the meaning of Section 32 of the Indian Evidence Act, which is nothing but a perversity. He further argued that the trial Court erred in drawing inference that merely because there was no soot in the trachea or respiratory tract, the burn injuries were post mortem. As a matter of fact, the deceased Sharda having committed suicide, the burn injuries were obviously ante mortem. He then submitted that there is no straight-jacket formula that in the absence of soot in the respiratory tract or trachea, necessarily the injuries could be said to be post mortem. Dr. De relied on certain authorities and scientific data as well. Learned counsel for the appellants then argued that there is a possibility of deceased Sharda committing suicide and that being so the benefit of doubt ought to have been extended by the learned trial Judge to the appellants. The trial Judge, however, refused to extend the benefit of doubt to the appellants. The learned counsel for the appellants then contended that the defence has probabilized the case, the one of suicide and not of homicidal death and no strict proof from the defence is expected. He submitted that the defence of the prosecution witness that the appellants had received burn marks on the palms of the hands while attempting to extinguish the fire was an indicator of the conduct of the appellants not in consonance with the guilt. But the trial Court has not given any importance thereto. Dr. De, then contended that the trial Court wrongly held that there was a throttling of the neck in the absence of any evidence to that effect since the ligature marks were not found, there was no evidence of throttling as stated by the trial Judge. The trial Judge committed error in relying upon the mere fact that the tongue of the deceased Sharda had protruded out but that by itself is not an evidence of throttling. Dr. De then contended that the trial Judge, for no reason, convicted the appellant Nos. 2 and 3 since there is no even remote evidence against them except for the fact that they happen to be the mother and father of appellant No. 1 and nothing more and were residing in the same house. In the absence of any evidence, according to Dr. 2 and 3 since there is no even remote evidence against them except for the fact that they happen to be the mother and father of appellant No. 1 and nothing more and were residing in the same house. In the absence of any evidence, according to Dr. De, the conviction of the appellant Nos. 2 and 3 is clearly illegal and, therefore, they should be acquitted of the charges levelled against them. He relied on the judgments in Archi Nawal Kishore Kujur v. State of Bhiar; 1995 (4) Crimes 855, Ram Kumar. vs. State of Madhya Pradesh 1998 Cri. L.J. 952, Smt. Surjeet Kaur. vs. State of Madhya Pradesh; 1994 Cri. L.J. 1886, Inspector of Customs, Akhnoor J & K. vs. Yash Pal and anr.; 2009 (3) JT 577 : [2009 ALL MR (Cri) 1195l and Asraf Ali vs. State of Assam; 2009 (Supp) AIR (SC) 654: [2008 ALL MR (Cri) 2565 (S.C.)]. 3. Per contra, Mr. R.S. Nayak, learned A.P.P. for respondent-State supported the impugned judgment and order of conviction. The learned A.P.P. argued that the trial Judge has based the order of conviction on the oral as well as documentary evidence and, therefore, no fault could be found out with the impugned judgment of conviction. He, therefore, prayed for dismissal of the appeal. CONSIDERATION: 4. We have heard learned counsel for rival parties. We have perused the entire evidence, oral as well as documentary, tendered by the prosecution before the trial Court. We have seen the reasons given by the learned trial Judge carefully. The first and important contention raised by learned counsel for the appellants about writing made by lipstick by the deceased Sharda, cannot be considered at its face value and must be considered in the light of the evidence, which indicates beyond any doubt that the death of Sharda and her daughter Rohini were homicidal and not suicidal. We, therefore, do not accept the contentions raised by Dr. De, learned counsel for the appellants, that the writing on the wall should be treated as dying declaration and that the deceased Sharda committed suicide. Therefore, the matter must end there. 5. Having thus disposed of the first contention, we proceed to record further reasons. The fact that the marriage between appellant-Govardhan and Sharda had taken place on 14.05.2007 is not in dispute. Therefore, the matter must end there. 5. Having thus disposed of the first contention, we proceed to record further reasons. The fact that the marriage between appellant-Govardhan and Sharda had taken place on 14.05.2007 is not in dispute. So also the fact that the incident took place on 22.06.2007 at about 2.00 A.M. while Sharda and her daughter Rohini have been sleeping in the house of the appellant in one room while in the adjoining room, appellant Nos. 1 and 2 were sleeping is also not disputed. Thus, the custody of deceased Sharda as well as Rohini was with the appellant-accused persons. The intimation about the incident was given by Bhaskar at Exh.-115 on the basis of which Accidental Death was registered. Accused No. 4-Bhaskar is close relative of appellant No. 1 and he reported that he was sleeping on the terrace of the house along with accused No. 3-Vacchala so also sister Kumud Dange and her husband while accused No. 1-Govardhan and accused No. 2-Budhaji, son and father, were sleeping in the first room adjoining the bedroom where the deceased Sharda and Rohini were sleeping. He noticed smoke coming out of the ventilator from the ground floor at about 2.00 A.M. and, therefore, all of them came out from the terrace and broke open the door by kicking to find that the deceased Sharda and Rohini were burning on the bed and they extinguished the fire. The deceased had burnt beyond the recognition and were almost completely burnt. It is true that Bhaskar has been acquitted of the charge of giving false information under section 203 IPC. Abaji Tiwade (PW1) stated in his evidence that he found that the bolt of the door was open and in the cross-examination, he stated that wooden plank of the door was found broken. The case of defence, right from the beginning, is that the door was broken with kicks and that the wooden plank of the door was also found. However, the photographs Article-J and spot panchanama nowhere indicated the said position and the door was completely intact. The photographs do not show even any sign of breaking at any place. We are, therefore, satisfied that the story about breaking open the door and entering into the room in which deceased Sharda was sleeping, is false. 6. However, the photographs Article-J and spot panchanama nowhere indicated the said position and the door was completely intact. The photographs do not show even any sign of breaking at any place. We are, therefore, satisfied that the story about breaking open the door and entering into the room in which deceased Sharda was sleeping, is false. 6. The next question is when admittedly appellant No. 1 and his father appellant No. 2 were sleeping just in the adjacent room, how is it that they did not smell any smoke when accused-Bhaskar claimed to have had the smell of smoke on the terrace? We have perused the statement under Section 313 of the accused persons appellant Nos. 1 and 2 and we do not find any explanation whatsoever about the said fact. The appellants, who were sleeping in the neighboring room adjacent immediately to the room of the deceased and when there was a big fire, how they did not smell any smoke and they have also not explained their conduct after the fire broke out. In our opinion, keeping in mind the provisions of Section 106 of the Evidence Act, it was for the appellants to clarify and explain the said material aspect and on the contrary, as earlier stated, their story about breaking of the door of the bedroom of the deceased Sharda has been found to be false by us as well. The appellants had easy access to the bedroom of the deceased and it is not their case to the contrary. The deceased-Sharda and her daughter were almost completely burnt and the fire had engulfed them so much that their black bodies were found on the bed. Medical opinion is that the tongue of the deceased Sharda was protruding out and was caught in between the jaws which is a clear indication about strangulation first and then setting her on fire. The medical evidence is that there was no soot found in the trachea and the trachea had, in fact, collapsed. Collapsing of the trachea was obviously as a result of throttling and thereafter due to fire both died with asphyxia and neurogenic shock. The submission made by Dr. The medical evidence is that there was no soot found in the trachea and the trachea had, in fact, collapsed. Collapsing of the trachea was obviously as a result of throttling and thereafter due to fire both died with asphyxia and neurogenic shock. The submission made by Dr. De, that there cannot be automatic inference that in absence of any soot in the trachea, the burn injuries are necessarily to be post mortem, does not appeal to us since that is not the only piece of medical evidence we have kept in mind. In the present case, as discussed earlier, the conduct of the appellant No. 1; right from the beginning of the evolution of smoke from the room, which was not sensed by the appellants though the same was sensed by accused No. 4 sleeping on the terrace when there was a huge fire, and the door being opened forcibly by breaking it open and further total silence on the part of the appellants in not explaining in their statement under section 313 Cr.P.C. about the happening of events to the satisfaction of the Court speaks of their guilt, they having the special knowledge about it. It is the case of the prosecution and defence that both, appellant Nos. 1 and 2 were sleeping in the adjacent room when the incident is said to have taken place. That being so. in the light of Section 106 of the evidence Act, it was for them to explain all the circumstances. They have also not explained as to whether there was any shout or cry from the bedroom where the deceased Sharda and Rohini were sleeping. It is difficult to appreciate that neither the deceased nor her daughter Rohini would raise any shout when the fire started and that none of the appellants would hear the same. 7. Having thus discussed, the proof by prosecution about the death of Sharda and Rohini due to throttling and thereafter burning, we find that the appellant Nos. 1 and 2 were sleeping in the room adjoining to the bedroom where Sharda and Rohini were sleeping. The prosecution has throughout alleged that it was appellant No. 1-Govardhan who used to come drunk in the house and use to beat his wife Sharda and used to demand money every now and then from her. 1 and 2 were sleeping in the room adjoining to the bedroom where Sharda and Rohini were sleeping. The prosecution has throughout alleged that it was appellant No. 1-Govardhan who used to come drunk in the house and use to beat his wife Sharda and used to demand money every now and then from her. It is he who had threatened Anil Dange, as is his evidence that he would see Anil's sister i.e. Sharda. There is no material or evidence brought on record by the prosecution about the conduct of appellant No. 2-Budhani that he has committed any offence under section 201 of the IPC. We are, therefore, of the firm opinion that it was only appellant No. 1 who throttled the deceased Sharda. as a result of which, her tongue came out and was caught in between jaws and, thereafter, he burnt her by pouring kerosene and setting her ablaze. As a result of heavy fire broke into the room, both Sharda and Rohini died therein. Thus, appellant No. 1 -Govardhan must be held guilty of murder of deceased Sharda as well as Rohini. 8. Insofar as appellant No. 3 is concerned, it is the case of the prosecution that she was sleeping on the terrace and never participated in the offence in question. We find the trial court ought to have acquitted both accused Nos. 2 and 3 Budhaji and Vacchala since there is no evidence whatsoever against them for commission of any offence. 9. We are therefore, of the opinion that it was only appellant-accused No. 1 Govardhan who committed murder of Sharda as well as Rohini. We are also of the opinion that the appellant Nos. 2 and 3 Budhaji and Vacchala did not commit any offence and, therefore, they must be acquitted of the offence for which they were charged. In the light of the above discussion, we pass the following order: ORDER "(i) Criminal Appeal No. 254/2012 is partly allowed. (ii) The order of conviction and sentence passed by Additional Sessions Judge, Chandrapur in Sessions Case No. 132/2009, convicting appellant No. 1-Govardhan Budhaji Ashtekar, for an offence punishable under Sections 302 and 201 of the Indian Penal Code, is maintained and confirmed. (ii) The order of conviction and sentence passed by Additional Sessions Judge, Chandrapur in Sessions Case No. 132/2009, convicting appellant No. 1-Govardhan Budhaji Ashtekar, for an offence punishable under Sections 302 and 201 of the Indian Penal Code, is maintained and confirmed. (iii) The order of conviction and sentence passed by Additional Sessions Judge, Chandrapur in Sessions Case No. 132/2009, convicting appellant No. 2-Budhaji Janbaji Ashtekar and appellant No. 3-Vacchala Budhaji Ashtekar for offence punishable under Section 201 read with section 34 of the Indian Penal Code is set aside. Appellant No. 2-Budhaji Janbaji Ashtekar and appellant No. 3-Vacchala Budhaji Ashtekar are acquitted of the said charge under section 201 read with section 34 of the Indian Penal Code. (iv) Bail bonds of appellant No. 2-Budhaji Janbaji Ashtekar and appellant No. 3-Vacchala Budhaji Ashtekar stand cancelled. (v) Fine amount, if any paid by appellant Nos. 2 and 3, shall be refunded to them."