JUDGMENT : Heard the learned counsel for the appellant and the learned Additional Advocate General. 2. The appellant was the accused before the Court below and was accused of offence punishable under Section 302 of the Indian Penal Code, 1860. The accused having been convicted, the present appeal is filed. 3. It was the case of the prosecution that the complainant Mohan was the husband of the accused. He had sold land belonging to him for a sum of Rs.6,40,000/-. Out of that amount a sum of Rs.3,20,000/-was said to have been kept with his maternal uncle, Babu PW-3. It is alleged that the accused did not approve of the same and especially when the same was not returned by PW-3, the brother of Ramkabai her mother-in-law, and since she desired that the amount should be kept with her parents’ family. This it is stated was a rankling controversy, over which the accused had constantly picked up quarrels with Ramakabai, her mother-in-law. It is in this background, it is alleged, that on 28.06.2008 at about 7.30 p.m., the accused with an intention to cause the death of Ramakabai had throttled her and thereafter had tied a rope around her neck and hung her on a nail embedded in the wall in the pooja room of their house. This, it was alleged, was witnessed by PW-2 who tried to intervene and prevent the throttling, but to no avail and though she had screamed for help, none had come to their rescue. Thus it was alleged that the murder had been committed by the accused in the presence and was actually witnessed by PW-2. Thereafter, PWs-7 and 8 are said to have come into the house and noticed that Ramakabai was hanging suspended from the nail on the wall and accordingly had immediately brought her down and laid her body on the floor. It is thereafter that the complainant is said to have returned home, as he had gone out of town, at about 7.45 p.m. and on being informed of the sequence of events, he had remained in a quandary as to whether or not to take immediate action and it is only on the next day after a clear 12 hours of the incident, that a complaint was lodged and the accused was arrested and after further steps having been taken the case was committed to the Court of Sessions. The accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 18 witnesses and had marked several exhibits and material objects and after having recorded the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, the Court below had framed the following points for consideration: “1. Whether the prosecution proves that on 28-06-2008 at about 7.30 p.m. in the house of the complainant at Mokin Tanda the accused committed murder of Ramkabai by pressing and squeezing her neck and thereafter tying Nylon rope around her neck and tied the same to the nail which was embedded to the wall and thereby committed an offence under section 302 IPC? 2. What order ?” 4. The Court below had answered point No.1 in the affirmative and convicted the accused. It is that which is under challenge in the present appeal. 5. The learned counsel for the appellant would point out that the trial Court itself has recorded five aspects which were required to be established by the prosecution in bringing home the charges against the appellant namely, that Ramakabai was dead as on the material date, time and place and that it was a homicidal death and neither accidental nor on account of suicide and that such death was caused by the accused throttling her and it was with an intention to cause death and thereafter the accused had tied a nylon rope around the neck of the deceased and hung the body on a nail embedded in the wall. In addressing these aspects, the trial Court has opined that there was sufficient material to demonstrate that the accused had the motive and animosity against the deceased to commit such murder. It was also accepted by the Court below that on the sole testimony of PW-2, who was said to be an eye-witness, the commission of murder could also be held established. But in answering the question whether the death of Ramakabai was homicidal and not suicidal, the reasoning of the Court below and the manner in which the evidence has been weighed is found to be wanting. In that, the medical practitioner, in his opinion as to the cause of death, had clearly stated that cause of death was on account of hanging. There was no indication of the deceased having been throttled first and then hung on the wall. In that, the medical practitioner, in his opinion as to the cause of death, had clearly stated that cause of death was on account of hanging. There was no indication of the deceased having been throttled first and then hung on the wall. In this regard, the learned Counsel has drawn attention to the commentary on medical jurisprudence by Jhala and Raju’s Medical Jurisprudence, sixth edition and has referred to the relevant portion relating to hanging which reads as follows: “Hanging. – xxx Ordinarily, asphyxia from hanging is the mode of death when a ligature is tied round the neck and the body is allowed to hang. This is not possible through an agency other than self. xxx Further, being just two inches above the ground is enough to achieve asphyxia from hanging and that also within a short time. This could be achieved by bending of the legs. Hence in all established cases of death from hanging the presumption is of suicide. Homicidal hanging is relatively unknown. Hanging occurring accidentally is also rare enough not to be considered. It is because of this strong presumption that in villages very often an attempt is made to mislead investigation by hanging the body. It is for these reasons that it is incumbent on the medical men to decide whether the body was hanged before death and death did occur from hanging. xxx In cases of hanging, the basic presumption being that of suicide, the investigation starts with a feeling of handicap in pinning down incriminating element and factors. The post-mortem is ordered only to complete the formality. It is in these cases that the matter takes a serious turn when the hanging is found to have not been ante-mortem and another cause of the unnatural death has to be found. It is necessary to understand the mechanism of hanging to know the signs likely to be found on post-mortem examination. xxx The amount of weight required to constrict the body is considerably less and hence the body need not be completely freely suspended to produce asphyxia and death. Even a tension of 3.5 kg is sufficient to occlude the carotid artery. xxx It is for these reasons cyanosis results immediately and man may become unconscious immediately from cerebral anaemia. This leaves his no chance to withdraw his action. Even a tension of 3.5 kg is sufficient to occlude the carotid artery. xxx It is for these reasons cyanosis results immediately and man may become unconscious immediately from cerebral anaemia. This leaves his no chance to withdraw his action. xxx Thus it is not practicable for a person to hang himself from low-level mosquito curtain cross bars (however strong) because of low anchorage. xxx The mark produced by the ligature is a very important sign. xxx A thin and somewhat rough ligature embraces and compresses the neck effectively. The thinner the ligature, tighter is the knot and there is more sustained suspension. The mark in such case would be deeper. xxx Hence the ligature mark automatically assumes a position above the thyroid cartilage or Adam’s apple. Apart from the position of the ligature mark, there is one other characteristic which not only indicates hanging but suggests its ante mortem nature. xxx xxx The ecchymosis detected on either side of a ligature mark when cut across, is a confirmatory sign of ante-mortem hanging. This has to accompany abraded mark and not ecchymosis alone. xxx As a useful routine, in circumstances where any other unnatural cause of death cannot be found, signs suggestive of hanging should be accepted and hanging presumed to be the cause of death. xxx As regards whether death by hanging could be of homicidal nature, it is considered as unlikely as impossible. xxx xxx It can be achieved by many persons participating and hanging a victim from a tree or similar high position with a rope. xxx Throttling as already referred above is a type of strangulation where the constricting force is the digital pressure. In this variety, local signs of pressure, nail marks and internal damage of localised distribution are the main features. xxx The nail mark inflicted by the thumb is deeper and larger and so also the compression area is larger as compared to those caused by the fingers. xxx xxx Mugging and gagging.-There are two more ways prevalent in moffusil India. These are mugging and gagging. Mugging is achieved by compressing the windpipe and larynx against a forearm. Gagging is a way by which a material, paper or cloth is stuffed in the mouth to occlude the throat and hence the respiratory passage. xxx xxx xxx Symptoms of strangulation are essentially attributable to pressure exerted. These are mugging and gagging. Mugging is achieved by compressing the windpipe and larynx against a forearm. Gagging is a way by which a material, paper or cloth is stuffed in the mouth to occlude the throat and hence the respiratory passage. xxx xxx xxx Symptoms of strangulation are essentially attributable to pressure exerted. Usually strangulation is a process which takes longer time than hanging. Mainly symptoms are due to pressure on vagus nerves and veins in the neck. In case where there is sudden vagal inhibition, there is sudden loss of consciousness and arrest of respiration and stoppage of pulse. Sometimes in such cases death ensures. These cases do not present any autopsy features. xxx xxx In case of throttling by digital pressure, ecchymosis of conjunctiva is a very common feature. xxx" 6. It is therefore contended that the Court below has inspite of medical evidence to indicate that there is no sign of the deceased having been throttled and that there was only a ligature mark, which was indicative of suicidal hanging, has proceeded to surmise that the medical practitioner’s evidence was debatable and it was a mere opinion and in the face of the testimony of the eye-witness and having regard to the clear motive that was established, there could be no doubt that the death was clearly homicidal and that the deceased had been throttled first and thereafter she was hung on the wall as stated by PW-2. The learned Counsel would submit that this reasoning of the Court below is completely opposed to the authorities on medical jurisprudence as for instance the authority now cited. He would contend that the conclusion of the Court below that the death has been caused on account of throttling by the accused and thereafter she has deliberately made it seem that death was by hanging and suicidal and accordingly having convicted the accused is a grave miscarriage of justice, as the Court below has not properly assessed the evidence in coming to such a conclusion in the absence of incriminating evidence in this regard. 7. While, the learned Additional Advocate General would seek to justify the judgment of the Court below and would also canvass that the medical opinion is not categorical to state that death was only by suicidal hanging and medical practitioner has himself stated that it could be possibly by suicidal hanging. 7. While, the learned Additional Advocate General would seek to justify the judgment of the Court below and would also canvass that the medical opinion is not categorical to state that death was only by suicidal hanging and medical practitioner has himself stated that it could be possibly by suicidal hanging. Therefore, when there is room for doubt as to death being either suicidal or throttling, in the face of positive and direct evidence of PW-2, the Court below having concluded that it was indeed by throttling that the deceased had been killed, there can be no two opinions and the Court has rightly convicted the accused. He would also point out that the complainant is none other than the very husband of the accused and it is unimaginable that a husband would bring a complaint against his wife, unless he was totally convinced as to the manner in which the death was occasioned and there was no need to suspect the bonafides of PW-2 who, though related to the deceased, has stated the manner in which the act has been committed and hence the Court below was fully justified in coming to its findings and hence seeks that the conviction be affirmed. 8. The learned Counsel for the appellant has, apart from attacking the correctness of the judgment on the basis of the incorrect assessment of the medical evidence and the lack of incriminating material to show that there was homicidal death, has sought to draw attention to other aspects namely, the doubt as to the manner in which the alleged murder was committed. We find that it may be sufficient if the ultimate finding of the Court below that the deceased was killed in the manner as alleged by PW-2 is established with reference to the material evidence, is addressed. 9. It is the categorical statement of PW-2 that she came upon the scene when the accused was throttling the deceased and inspite of her intervention and her efforts to seek help by screaming, the accused completed her act of throttling the deceased and in her presence had tied a rope around the neck of the deceased and had hung her up on the nail in the pooja room of their house. It is thereafter that PWs-7 and 8 had also come into the house and they had seen the deceased hanging on the wall and had brought the body down and laid it on the floor. It is also the case of the prosecution on the same line that the deceased was throttled and then hung on the wall so as to make it seem that it was a suicidal hanging. 10. In this regard, the deceased was said to be of a height of 4 feet 7 inches and the nail on which she was found hanging was 5 feet above the ground and it was a large nail that was embedded in the wall. According to PW-1 there was yet another nail which was in line with the nail on which the deceased was hanging and the intention was to keep a wooden plank on both the nails in order to store materials. Therefore it was a large nail well embedded in the wall and capable of bearing the weight of the deceased. The question whether the signs and symptoms found on the postmortem of the dead body and the medical report would be in consonance with the indications that would be apparent, as per several authorities, were found on the deceased. In this regard we may refer to Modi’s Medical Jurisprudence and Toxicology, Twenty-third edition, in dealing with the subject ‘Hanging’ which is stated at Chapter 18 in page 565. Hanging is defined as a form of death, produced by suspending the body with a ligature round the neck, the constricting force being the weight of the body (or a part of the body weight). In hanging from a high point of suspension, the victim is either fully suspended, with his feet clear off the ground or he is suspended in a standing posture with his knees slightly flexed. In hanging from a low point of suspension (partial hanging), a comparatively little force, about 4.5 kg is enough to occlude blood vessels of the neck. The term ‘partial hanging’, is used for such cases in which the bodies are partially suspended, or for those in which the bodies are in a sitting, kneeling, reclining, prone, or any other posture. In all such cases, death is inevitable from slow asphyxia, if there is enough force upon the ligature to constrict the neck. 11. The term ‘partial hanging’, is used for such cases in which the bodies are partially suspended, or for those in which the bodies are in a sitting, kneeling, reclining, prone, or any other posture. In all such cases, death is inevitable from slow asphyxia, if there is enough force upon the ligature to constrict the neck. 11. Similar is the opinion expressed in Dr. K.S. Narayan Reddy’s Medical Jurisprudence and Toxicology, Chapter 24, at page 378, wherein it is stated that the whole weight of the body is not necessary, and only a comparatively slight force is enough to produce death. In ‘partial hanging’ the bodies are partially suspended, the toes or feet touching the ground, or are in a sitting, kneeling, lying down, prone or any other posture. The weight of the head (5 to 6 kg) acts as the constricting force. 12. As regards the postmortem appearances it is stated under several heads as to the external appearance, namely, the external appearances are due to the ligature on the neck and those, peculiar to the mode of death. In both hanging and strangulation, the ligature mark depends on the nature of ligature used and the attempt of suspension of the body after death. The mark is usually situated above the thyroid cartilage between the larynx and the chin, and is directed obliquely upward following the line of the mandible (lower jaw) and interrupted at the back or may show an irregular impression of a knot, reaching the mastoid processes behind the ears towards the point of suspension. The mark varies according to the nature of the material used and the period of suspension after death. Sometimes, the pattern of the ligature material is impressed on the skin and characteristic diagonal marks of the strands of the rope are seen. As stated in Modi’s Medical Jurisprudence and in Narayan Reddy’s work on postmortem appearances, are similarly indicated. 13. In so far as throttling is concerned, Modi’s Medical Jurisprudence at page 578, indicates that if fingers are used (throttling), marks of pressure by the thumb and the fingertips are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side, obliquely downwards and outwards, and one below the other. The thumb mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side, obliquely downwards and outwards, and one below the other. However, the marks are sometimes found clustered together, so that they cannot be distinguished separately. These fingertip bruises, each disc-shaped and 1-2 cm in diameter, look like red bruises (six penny bruises) if examined soon after death, but they look brown, dry and parchment-like sometimes after death. Further, that the linear or crescentic marks produced by the fingernails are occasionally present, if the fingertips are pressed deeply into the soft tissues of the neck. When both hands are used to grasp and compress the throat, the thumb mark of one hand and the finger marks of the other hand are usually found on either side and several finger marks on the opposite side. If the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck, as well as on its back. Similarly, in Narayan Reddy’s work in dealing with throttling or manual strangulation, identical indications are noted. This is in line with the authority produced by the learned Counsel for the appellant in Jhala and Raju’s Medical Jurisprudence. 14. In the case on hand the medical practitioner in his postmortem report has not noticed any other kind of injuries apart from the ligature mark. Therefore, the assertion that the deceased was throttled before she was hung is not readily acceptable and certainly opposed to the medical evidence on record. 15. Incidentally, in Modi’s Medical Jurisprudence it is also observed that homicidal hanging, though rare, has been recorded. Usually, more than one person is involved in the act, unless the victim is a child or very weak and feeble, or is rendered unconscious by some intoxicating or narcotic drug. In a case, where resistance has been offered, marks of violence on the body and marks of a struggle or footprints of several persons at or near the place of the occurrence are likely to be found. In the present case on hand, the deceased was conscious when the appellant allegedly started throttling her. In a case, where resistance has been offered, marks of violence on the body and marks of a struggle or footprints of several persons at or near the place of the occurrence are likely to be found. In the present case on hand, the deceased was conscious when the appellant allegedly started throttling her. There would have been resistance and PW-2 was also seeking to prevent the act and there were also possibilities of the clothes of the deceased being disarrayed and injuries having been caused on other parts of her body. There is no such indication. 16. While dealing with the Simulated Suicidal Hanging it is observed in Modi’s Medical Jurisprudence that the diagnosis in such a case would depend on: (i) an unacceptable distribution of post-mortem staining; (ii) injuries, which could not have been self inflicted; (iii) examination of the scene of hanging including Beam or branch of tree; and (iv) evidence from ligature. When a dead body is suspended, the rope is usually tied first around the neck and next around the (beam) or branch of tree. If the branch is examined in such an event, there may be evidence that the rope has moved from below to upwards due to body being hauled up, rather than vice versa, which is the usual finding in genuine suicidal hanging. Fibres from the rope on fignernails and hands of the victim may be found in true suicidal hanging. Direction of fibres of a rope may also indicate in which direction the body was pulled up. Such a rope should be examined for presence or absence of any paints similar to one on the beam/door. 17. The above aspects have not been addressed in the course of investigation in the present case on hand and if there was no sign of throttling as would be indicated as stated by the authorities, it is not at all acceptable that the Court below has proceeded to hold that the evidence of PW-2 should be accepted and the opinion of the medical practitioner should be trashed as being a debatable opinion and the Court below proceeding to hold that the deceased was certainly throttled is not supported by any medical evidence and would be totally unacceptable as could be seen from the reasoning of the Court below. In this regard the Court has been swayed by the argument of the public prosecutor that the medical officer’s opinion was only an opinion of an alternative possibility and that it was not binding on the Court and that when in comparison with the medical evidence and the ocular evidence, if ocular evidence is cogent and acceptable about the very manner in which the death has taken place, the medical evidence ought to be discarded and that the evidence of the medical officer is not sacrosanct, is the reasoning which does not appeal to us. 18. The medical officer had been examined as PW-10 and it was his opinion that the cause of death is cardio respiratory arrest due to asphyxia as a result of hanging. He has not stated that it could be suicidal hanging in the alternative. It was a suggestion to which the medical practitioner had stated that because there are no other injuries found on the dead body, hanging could be a suicidal hanging. The Court below has further fortified its reasoning by claiming that the absence of injuries was not unusual. It was the case of the prosecution that the deceased was throttled to death and therefore the Court below while negating the medical evidence has not chosen to rely upon any authority to express an opinion that in the case of throttling there would be no sign of any injury. This is clearly opposed to authoritative opinions of atleast three authorities of medical jurisprudence and toxicology and there is no indication of any such authorities being discussed or brought to the attention of the Court below. This is a sorry state of affairs. On the mere assertion of PW-2, the Court below having negated and trashed the medical evidence and proceeded to express its own opinion that there was throttling and hence there could be no sign of injury. Going by the reasoning of the Court below, the Court below having come to the conclusion that the case of the prosecution should be accepted is not acceptable to us. 19. Accordingly, the prosecution has failed to prove that there was homicidal death of the deceased. Going by the reasoning of the Court below, the Court below having come to the conclusion that the case of the prosecution should be accepted is not acceptable to us. 19. Accordingly, the prosecution has failed to prove that there was homicidal death of the deceased. Though the deceased was hanging off the ground, as noticed that hanging could take place in several different ways, even a person sitting on the floor could have died by slow asphyxia and by partial hanging, the death of the deceased being suicidal cannot be ruled out. It is certainly not death by throttling as held by the Court below. Therefore, prosecution has failed to establish its case beyond all reasonable doubt. It is also noticed that the charge framed is to the following effect: “That you on 28.06.2008 at 7.30 p.m., at Mokin Tanda, in the house of complainant, intentionally committed murder of Ramakibai, by pressing and squeezing her neck and tying a Nylon Rope around her neck and hanging the same to the Nail, which was affixed to the Wall in the room and thereby committed an offence punishable U/s.302 of Indian Penal Code and within the cognizance of this Court.” The finding ultimately arrived at by the Court below is completely divergent and without reference to any medical authority and cannot be sustained. 20. Hence, the appeal is allowed. The judgment of the Court below is set aside. The accused is acquitted and shall be set at liberty.