JUDGMENT : S.N. Agnihotri, J. 1. Being aggrieved with the judgment and order dated 22.02.1984 in Sessions Trial No.487 of 1981, under section 302 read with section 34 I.P.C. arising out of case Crime No. 347 of 1981, P.S. Harbans Mohal, District Kanpur, appellants preferred instant appeal, whereby learned Sessions Judge (non metropolitan area), Kanpur hold guilty appellants Shri Mool Chand, Smt. Padmawati, Shri Ashok Kumar Jain and Shri Raj Kumar @ Rajju and punished all of them with imprisonment of life. 2. During the pendency of appeal appellant Mool Chand Jain died against whom appeal was abated as per order dated 08.07.2016. 3. The factual matrix of the case is that complainant Shri Vishwa Nath Agarwal had married his daughter Smt. Radha Devi with accused Shri Ashok Kumar Jain about seven years earlier from her death. Accused Mool Chand (father in law), Smt. Padmawati (mother in law), husband Ashok Kumar Jain and brother in law Raj Kumar @ Rajju were not satisfied with the dowry given at the time of wedding and were asking more from deceased Smt. Radha Devi, complainant and his family members and were subjecting cruelty to her. On 31.08.1981 one Shri Brajesh Chandra Pandey PW5 had informed to complainant Shri Vishwa Nath Agarwal at about 7.00 P.M. that his daughter Smt. Radha Devi was badly beaten so many times in the day by the appellants and consequently she died. Upon receiving information from Shri Brajesh Chandra Pandey, PW5 complainant came at the house of appellants/accused and requested to open the door but appellants threatened to complainant, hurled abuses and said that run away immediately otherwise his fate will be same like his daughter. After the threat of appellants, complainant got scribed Exhibit Ka-1 from Shri Brajesh Chandra Pandey PW5, with allegations that he has been informed by Shri Brajesh Chandra Pandey that appellants murdered his daughter by beating which has been seen by Dr. Deshbandhu Bajpai, Shri Manoj Bajpai, Shri Anup Kumar Gupta and other persons of the Mohalla. Accused persons closed his house from inside and not opened the door and are intending to dispose of the dead body. The house of the appellants was being watched by several peoples of the locality, so that they could not dispose of the dead body. 4. The F.I.R. was recorded which is Exhibit Ka-2. Accused persons closed his house from inside and not opened the door and are intending to dispose of the dead body. The house of the appellants was being watched by several peoples of the locality, so that they could not dispose of the dead body. 4. The F.I.R. was recorded which is Exhibit Ka-2. The investigation was taken over by Shri Bhullan Ram, Sub Inspector P.W.-8, who recorded the statement of complainant at the Police Station and visited the place of occurrence along with other police officials. The police force of out post Harbans Mohal and Shutar Khana was also present at spot. The house of the accused persons was closed from inside which was got opened, where police found the dead body of Smt. Radha Devi lying on the floor in a room which was in the possession of the accused persons. The accused persons Mool Chand, Smt. Padmawati, Ashok Kumar and Raj Kumar @ Rajju were taken into police custody. Two photographs of the dead body Exhibit 1 and 2 were taken. Thereafter, the inquest report Exhibit Ka-6 was prepared in which it is recorded that the eyes and mouth of the dead body were closed. On the left side of the throat, there were marks of injury. There were bruises on the left and right arm and wrist. Investigator prepared photo of dead body Exhibit Ka-7, challan of dead body Exhibit Ka-8, letter to C.M.O. Exhibit Ka-10 and Reserve Inspector of Police Exhibit Ka-9 and site plan Exhibit Ka-11. Dead body was sealed and sent to mortuary which was firstly brought to the Police Line. Entry was made in the General Diary on 01.09.1981 at 00:35 a.m. 5. The post mortem of the dead body of Smt. Radha Devi was performed by Dr. Wasim Iqbal PW6 on 01.09.1981 at 12:05 p.m. which is Exhibit Ka-4. As per opinion of the Medical Officer, the deceased was about 25 years of age and death had taken place about one day earlier. Rigor mortis was passed off from the upper extremity whereas it was present in the lower extremity. Eye lids and mouth were closed. Lips were cynoised. There were 8 antemortem injuries on the dead body of Smt. Radha Devi which are;- 1. Contusion 6 cm. X 3 cm. on the left side of neck, 4 cm. Below the left ear. 2. Eye lids and mouth were closed. Lips were cynoised. There were 8 antemortem injuries on the dead body of Smt. Radha Devi which are;- 1. Contusion 6 cm. X 3 cm. on the left side of neck, 4 cm. Below the left ear. 2. Abraded contusion on the right side of neck, 2 cm. X ¼ cm, 3 cm. Below right ear. 3. Contusion 3 cm. X ½ cm. on the neck, 3 cm. below right ear on the neck. 4. Contusion ½ cm. X ½ cm. on the right side of neck, 3 cm. Below lower jaw. 5. Abraded contusion ½ cm. X ½ cm. on middle of right upper jaw. 6. Linear abrasion 6 cm. X 1 cm. medial to right scapula. 7. Multiple abrasions in an area of 4 cm. X 7 cm. on left scapula. 8. Linear abrasion 3 cm. X 1 cm. on left side of lower back just below iliac crest. 6. On internal examination membrances of brain and pleura were found congested. Blood clots were present under injury nos. 1 and 3. Trachea was congested. Left cornua of thyroid was fractured. Both lungs and pericardium were congested. Right chamber of the heart was full of blood while left one was empty. Pharynx and oesophagus were congested. There were two ounce of watery fluid in stomach. Small intestine was half full. Large intestine was also half full. Gall bladder was also half full. Spleen was congested. Both kidneys were congested. Bladder and uterus were empty. In the opinion of Dr. Wasim Iqbal, the cause of death was asphyxia resulting from throttling. 7. After completing the investigation the investigator Shri Bhullan Ram submitted charge sheet Exhibit Ka-12 against all the four appellants/accused persons under section 302 I.P.C. Charge was framed against the accused persons under Section 302 read with Section 34 I.P.C. 8. In their statement under Section 313 Cr.P.C. accused persons denied all allegations leveled against them and Shri Mool Chand stated that there was enmity with police. Complainant and witnesses entangled him in a false case. Accused Smt. Padmawati stated that Smt. Radha Devi had committed suicide. Accused Shri Ashok Kumar Jain and Shri Raj Kumar @ Rajju stated that the witnesses deposed against him due to enmity. 9. To substantiate its case prosecution, examined nine Prosecution Witnesses (for brevity ''PW'). Complainant and witnesses entangled him in a false case. Accused Smt. Padmawati stated that Smt. Radha Devi had committed suicide. Accused Shri Ashok Kumar Jain and Shri Raj Kumar @ Rajju stated that the witnesses deposed against him due to enmity. 9. To substantiate its case prosecution, examined nine Prosecution Witnesses (for brevity ''PW'). PW1 Shri Vishwa Nath Agrawal, PW2 Shri Manoj Kumar Bajpai, PW3 Dr.Desh Bandhu Bajpai, PW4 Km.Sudha, PW-5 Shri Brajesh Chandra Pandey, PW6 Dr.Wasim Iqbal, PW7 Dr. K.I Mathrani, PW8 Shri Bhullan Ram and PW9 Constable Shri Jagdish Prasad Mishra. One Court witness Shri Anup Kumar Gupta was examined at the behest of the Court. 10. Appellants did not examined any witness in defence. 11. Before entering into the merit of the case we would like to refer the summary of the evidence of the witnesses. 12. PW1 Shri Vishwanath Agarwal, complainant who is the father of the deceased Smt. Radha Devi, proved that his daughter was married with Shri Ashok Kumar Jain about seven years before her death. Appellants were not satisfied with the dowry which was given at the time of marriage and were demanding scooter. Since he failed to satisfy the demand, appellants/accused were harassing physically and mentally to his daughter Smt. Radha Devi. On the date of incident 31.08.1981 appellants/ accused beaten his daughter so many times due to which Smt. Radha Devi died. He was informed by PW5 Shri Brajesh Chandra Pandey that he has been informed by Dr. Desh Bandhu Bajpai that accused persons killed her daughter and the mob surrounded the house of the appellants. Upon receiving information from Shri Brajesh Chandra Pandey he rushed to the house of the appellants and found that the house was closed from inside. He tried to get open the door but appellants threatened to him and said that he would also meet the same fate like Smt. Radha Devi and hurled abuses. Witness got scribed F.I.R. Exhibit Ka-1 from Shri Brajesh Chandra Pandey, presented it in the office of P.S. Harbans Mohal, where the F.I.R. was lodged and the state machinery was set in motion. It is further proved by this witness that the inquest report of the dead body of Smt. Radha Devi had been prepared in his presence. Witness got scribed F.I.R. Exhibit Ka-1 from Shri Brajesh Chandra Pandey, presented it in the office of P.S. Harbans Mohal, where the F.I.R. was lodged and the state machinery was set in motion. It is further proved by this witness that the inquest report of the dead body of Smt. Radha Devi had been prepared in his presence. In the cross examination witness reiterated the facts deposed in his examination in chief and stated that Smt. Radha Devi told him as well as his family members and neighbours that her-in-laws were demanding scooter in dowry and since she has no issue that's why they were addressing and calling her barren and hussy. It is also informed by Smt. Radha Devi that the in laws are harassing her mentally and physically. 13. PW2 Shri Manoj Kumar Bajpai has stated on oath that on fateful day, he was present in his house with court witness Shri Anup Kumar Gupta, due to the presence of other guest in his house, he was in the projection of his house situated on second floor with Shri Anup Kumar Gupta. Where they had seen that the appellants/accused were beating to Smt. Radha (deceased) and Smt. Radha was trying to come out in the open part of the house of the appellants. The appellants/accused dragged her inside the room, they had heard the shrieks of Smt. Radha. When she had been dragged inside the room, the shrieks of smt. Radha were not heard. 14. PW2 further stated on oath that after some time appellant Ashok Kumar came to clinic of his uncle Dr. Deshbandhu Bajpai and requested him to attend his mother who was ill. Doctor Deshbandhu Bajpai had gone to the house of appellants and after sometime doctor came back and told them that Smt. Radha was lying dead on the floor in the house of appellants. Accused Ashok Kumar requested him to attend his mother with pretext that she was suffering with heart disease, upon enquiry, the mother of appellants Smt. Padmawati said that Smt. Radha had committed suicide and smeared her face with black. She has also asked Dr. Deshbandhu Bajpai to issue a certificate that Smt. Radha died due to heart attack. Dr. Deshbandhu Bajpai refused to issue required certificate. There upon all appellants tried to tempt Dr. Deshbandhu Bajpai by offering to pay Rs. She has also asked Dr. Deshbandhu Bajpai to issue a certificate that Smt. Radha died due to heart attack. Dr. Deshbandhu Bajpai refused to issue required certificate. There upon all appellants tried to tempt Dr. Deshbandhu Bajpai by offering to pay Rs. 5,000/- or 6,000/- for this purpose and appellants/accused closed door of their house. Upon sensing danger Dr. Bajpai made a pretext that he has no letter head pad with him and that is in his clinic, come to his clinic where he would issue required certificate. Receiving this information from Dr. Bajpai, PW5 Shri Brijesh Kumar Pandey went to inform PW1 Shri Vishwa Nath Agarwal regarding the death of his daughter Smt. Radha. 15. PW3 Dr. Deshbandhu Bajpai supported the statement of PW2 Shri Manoj Kumar Bajpai regarding his visit to the house of accused-appellants and offering money to the witness for issuing fake certificate, as desired by them. 16. PW4 Km. Sudha is the sister of deceased Smt. Radha who testified that accused were demanding scooter in dowry and were subjecting to cruelty to her sister (deceased) Smt. Radha. She further stated that whenever her sister Smt. Radha came her maternal house, she intimated the members of the family and other persons of the vicinity that appellants/accused are demanding scooter in dowry and were harassing and subjecting her to cruelty, mentally and physically. It is also stated by the witness that there was no issue of the deceased that's why the appellants were addressing and calling her sister Hussy and Barren. 17. PW4 further stated that whenever her brother-in-law/appellant Ashok Kumar visited her parents' house he asked to give scooter in dowry and threatened that consequences would not be better. The witness took it as mockery and was not aware of this fact that the accused-appellant Ashok Kumar was saying it seriously. 18. Witness proved letter Exhibit Ka-2 which is written by deceased and Exhibit Ka-3 written by accused-appellant Ashok Kumar. In cross-examination she narrated that due to depression she did not stated this fact to investigator that there were few letters with their family, written by deceased Smt. Radha and appellant Ashok Kumar. 19. PW5 Shri Brijesh Kumar Pandey has narrated that he is familiar with accused-appellants. In cross-examination she narrated that due to depression she did not stated this fact to investigator that there were few letters with their family, written by deceased Smt. Radha and appellant Ashok Kumar. 19. PW5 Shri Brijesh Kumar Pandey has narrated that he is familiar with accused-appellants. On 31.08.1981 at about 06:30 p.m. he was passing through the place of incident where he met Shri Manoj Kumar Bajpai- PW2, who told him that an incident happened at that very time, he saw that Dr. Deshbandhu Bajpai came down from the house of accused-appellants and intimated that on request of accused-appellant Ashok Kumar he had visited his house to see his mother but when he reached there he found the dead body of Smt. Radha lying on the floor. This information was passed by this witness to complainant/PW1 Sri Vishwa Nath Agarwal, father of the deceased and came back with him at the house of appellants. Shri Vishwa Nath Agarwal tried to get open the house of appellants. Appellants threatened to PW1 Shri Vishwa Nath Agarwal and told him to away from there otherwise he would meet same fate, like his daughter. Thereafter Shri Vishwa Nath Agarwal came down and got scribed application Exhibit Ka-1 from PW5 under his direction and dictation. 20. PW6 Dr. Wasim Iqbal performed postmortem examination of the dead body of Smt. Radha on 01.09.1981 at about 12:05p.m. According to him the deceased was about 25 years of age. In the opinion of this witness the deceased died due to asphyxia by throttling. Injury nos. 5, 6, 7 and 8 might be caused through friction. Death of the deceased could be at 06:30p.m. on 31.08.1981. Witness proved postmortem report Exhibit Ka-4. As per opinion of the Doctor, injury nos. 1, 2, 3 and 4 were sufficient to cause death in the normal course of nature. 21. In the cross-examination, PW6 Dr. Wasim Iqbal did not support the prosecution version and narrated that in the case of throttling, there might and might not be found nail marks. Since there were no finger or nail marks, thats why it could be a matter of suicide. Doctor further stated that he is not sure that the death of Smt. Radha was result of suicide or homicide. Since there were no finger or nail marks, thats why it could be a matter of suicide. Doctor further stated that he is not sure that the death of Smt. Radha was result of suicide or homicide. Further he stated that he could not said that this death could not be the result of the suicide because there was no sign which could be attributed that this was a case of homicide. 22. Since PW6 Dr. Wasim Iqbal did not support prosecution version in his cross examination in toto, thats' why learned Sessions Judge summoned Dr. K.I. Mathrani, Professor and Head of Department of Forensic Science in G.S.V.M Medical College,Kanpur as an expert witness at the behest of complainant to reinforce the opinion and evidence of Dr. Wasim Iqbal, PW6. Dr. K.I. Mathrani deposed that the death of Smt. Radha was certainly result of violent asphyxia by throttling. Dr. K.I. Mathrani further narrated on oath that the photo copy of the Postmortem Report was referred to him that is why he falls in felony and read thyroid bone as hyoid bone. Thus wherever he has used word hyoid bone be read as thyroid bone. Dr. Mathrani further stated that he was of definite opinion that it was a case of violent asphyxia caused by throttling. He further stated that suicidal throttling was totally impossible and gave reasons that it is not possible for any one to continue a firm grip of the throat after unconsciousness supervenes, hence throttling by himself/herself cannot be possible. The witness further opined that injury no. 1 could be co-related with the thumb and injury no. 3 with middle finger and injury no. 2 and 4 with middle finger or ring finger or vice versa. Presence of blood clots beneath injury no. 1 and 3 suggested excessive pressure used at the time of throttling. Dr. Mathrani further opined that presence of nail marks in the matter of throttling were not necessary. Injury no. 5, 6, 7 & 8 could be caused by fallen on hard substance, due to struggle by the deceased or by dragging on the hard surface just like earth. 23. Dr. Mathrani further opined that presence of nail marks in the matter of throttling were not necessary. Injury no. 5, 6, 7 & 8 could be caused by fallen on hard substance, due to struggle by the deceased or by dragging on the hard surface just like earth. 23. PW8 Shri Bhullan Ram Investigating Officer (for brevity I.O.) stated on oath that on that very fateful day i.e. on 31.08.1981, he was posted at the Police Station Harbans Mohal and this case was registered in his presence and he started the investigation at once. He recorded the statement of PW1 Shri Vishwa Nath Agarwal at Police Station and visited place of occurrence along with Inspector Shri Satish Chandra Sharma. The appellants/accused were residing on the second floor. On the request of the police officials, door was opened by appellants. After entering into the house, I.O. had taken into custody the appellants/accused Sarv Shri Mool Chand, Ashok Kumar, Raj Kumar and Smt. Padmawati, whose statements were also recorded. The dead body of Smt. Radha Devi was lying on the floor in a room. Two photographs were prepared. Thereafter prepared inquest report and other relevant papers for the postmortem of the dead body of Smt. Radha Devi at the place of incidence and later on recorded the statement of witnesses Shri Manoj Kumar Bajpai and Shri Brajesh Chandra Pandey. He also prepared site plan with the help of Shri Manoj Kumar Bajpai and Shri Jagdish Prasad. 24. In the cross examination, witness supported statement made in his examination-in-chief and deposed that after completion of the investigation, he had submitted charge sheet Exhibit Ka-12 on 15.09.1981. This witness was subjected to cross examination but nothing could be extracted in favour of the appellants/accused. 25. PW9 Shri Jagdish Prasad Mishra Constable deposed that on 31.08.1981, he had recorded First Information Report Exhibit Ka-13, in pursuance of Exhibit Ka-1, application submitted by PW1 Shri Vishwanath Agrawal and this fact was entered in the General Diary No.42. The true copy of the General Diary is Exhibit Ka-14. It is also proved by this witness that the fact of arrest of appellants/accused was also recorded by him in General Diary which is Exhibit Ka-15 on record. The special report of this case was forwarded to the higher authorities and this fact was recorded in General Diary which is Exhibit Ka-16. 26. It is also proved by this witness that the fact of arrest of appellants/accused was also recorded by him in General Diary which is Exhibit Ka-15 on record. The special report of this case was forwarded to the higher authorities and this fact was recorded in General Diary which is Exhibit Ka-16. 26. Learned Sessions Judge examined court witness Shri Anup Kumar Gupta who has stated on oath that on that very fateful day i.e. on 31.08.1981, he had visited the house situated of Shri Manoj Kumar Bajpai at about 6.00 or 6.30p.m. I myself and Shri Majoj Kumar Bajpai were standing on the projection of the house at second floor, where he heard the skirmishes from the house of opposite direction, in which the deceased was residing with her in laws. He also observed that after a few minutes, all windows were closed of that very house after that he had seen nothing. 27. Witness further stated on oath that appellant-accused Shri Ashok Kumar came to Dr. Deshbandhu Bajpai and said that "his mother is ill. Please attend her." Thereafter, Dr. Deshbandhu Bajpai accompanied to accused Ashok Kumar to the house of appellant/ accused. After 15 minutes Dr. Deshbandhu Bajpai came back and told that the appellants/accused closed his door and were asking certificate of this purpose that the deceased was died due to heart attack. 28. The witness was further examined by prosecution in which he stated that Dr. Deshbandhu Bajpai told him in the presence of other persons that accused appellants were giving him Rs. 5000/- for issuing a false certificate. Witness further stated that when he was on the projection of the house of Shri Manoj Kumar Bajpayee, he had heard the skirmishes and noise of a lady and he had also seen that appellants/accused were pushing and dragging away to Smt. Radha in the rear room. He admitted that the younger brother of appellant/accused Shri Mool Chand was the class fellow of his father. In the cross examination by accused persons, witness admitted that if the window of courtyard closed then nothing could be seen inside the house of appellants. He admitted that Dr. Bajpai did not told him that he had seen beating to deceased by the appellants/accused. 29. In the cross examination by accused persons, witness admitted that if the window of courtyard closed then nothing could be seen inside the house of appellants. He admitted that Dr. Bajpai did not told him that he had seen beating to deceased by the appellants/accused. 29. We have heard Shri Raghvendra Dwivedi, learned counsel for the appellants/accused and Shri Mahendra Singh Yadav, learned A.G.A. with learned counsel for the complainant and gone through the entire evidence tendered by prosecution and the documents available on record. 30. Learned counsel for appellants/accused submitted that the deceased Smt. Radha Devi died due to hanging by herself. There is not even a single iota of evidence to suggest that she died due to throttling by the appellants. 31. Learned counsel for for the appellant further submitted that the appellants/accused were residing, in a rented house in which so many families were residing but none of them came forward to support the case of prosecution. He further submitted that PW6 Dr. Wasim Iqbal who conducted autopsy of the dead body of Smt. Radha Devi, did not deposed that the death of Smt. Radha Devi was caused due to throttling. The evidence of PW7 Dr. K.I. Mathrani is not worth reliable because he has given his opinion at the request and instance of learned Advocate Shri Tilak who was representing to the complainant. Thus there is nothing on record to hold guilty appellants/accused, and learned Sessions Judge has committed a manifest error and due to oversight, he hold guilty and punished the appellants/accused in the crime which they have never committed. 32. Per contra, learned A.G.A. and Learned counsel for the complainant has submitted that there is sufficient evidence on record to hold guilty, the appellants/accused for committing the murder of Smt. Radha Devi by throttling her. The statement of PW6 Dr. Wasim Iqbal is reliable with the help of PW7 Dr. K.I. Mathrani's statement. Other witnesses PW1 Shri Vishwa Nath Agarwal, father of the deceased complainant and PW4 Km. Sudha, sister of deceased fully corroborated the statement of each other and the case of the prosecution. PW2 Shri Manoj Kumar Bajpai and PW3 Dr. Deshbandhu Bajpai proved that they had seen beating to deceased by the appellants on the date of death of Smt. Radha Devi. Sudha, sister of deceased fully corroborated the statement of each other and the case of the prosecution. PW2 Shri Manoj Kumar Bajpai and PW3 Dr. Deshbandhu Bajpai proved that they had seen beating to deceased by the appellants on the date of death of Smt. Radha Devi. PW3 further proved that when he had visited the house of the appellants at the request of accused Ashok Kumar he found lying dead body of Smt. Radha lying on the floor of room of the appellants. Thus, learned Sessions Judge has rightly held guilty to the accused appellants and there is nothing on record which suggest that the appellants have not committed murder of Smt. Radha Devi by violent Asphyxia. 33. First of all, we may state that the prosecution adduced direct as well as circumstantial evidence against the appellants/accused. The direct evidence tendered by the prosecution is that the deceased was married with accused Shri Ashok Kumar Jain about seven years earlier from her death and she was residing in the house of her in- laws with her husband accused Shri Ashok Kumar Jain and other three accused were also residing and the death of Smt. Radha Devi had occurred in the house of appellants/accused in their presence. 34. It is admitted fact that Smt. Radha's death was homicidal. The only point involved to be determination whether she committed suicide or she was murdered by the appellant/accused by throttling. 35. The prosecution alleged that the motive behind the murder was that the accused persons were not satisfied with dowry given at the time of marriage and were demanding scooter in dowry from Smt. Radha Devi. Accused Shri Ashok Kumar Jain so many times demanded scooter from the maternal family members of Smt. Radha Devi. PW1 Shri Vishwa Nath Agarwal stated on oath that whenever deceased Smt. Radha Devi came at his house, she used to tell her mother, sister and other friends as well as to witness that accused/appellants were demanding scooter in dowry and were harassing her mentally and physically. It was also stated by this witness that the fact of demand of dowry was communicated to him by his wife and Smt. Radha Devi (deceased) herself also told him about her plight. Witness further stated that he had pacified/ consoled to Smt. Radha Devi that everything would be set at right in future because that was her house. 36. It was also stated by this witness that the fact of demand of dowry was communicated to him by his wife and Smt. Radha Devi (deceased) herself also told him about her plight. Witness further stated that he had pacified/ consoled to Smt. Radha Devi that everything would be set at right in future because that was her house. 36. PW4 Km. Sudha supported the statement of PW1 Shri Vishwa Nath Agarwal and stated on oath that whenever her sister deceased Smt. Radha Devi came her parental house, she told to her and other persons of the family and the neighbours that in-laws of her husband's family including her husband were demanding scooter in dowry and were harassing her mentally and physically. Witness further stated on oath that when her brother-in-law, the husband of Smt. Radha Devi, appellant Ashok Kumar visited the house of her in-laws demanded scooter in the dowry and said to the witness that "provide a scooter from her parents, otherwise the consequence would not be better". It is also stated by this witness that she was thinking it mockery but later on accused/appellants when murdered her sister, she learnt that the accused Ashok Kumar Jain was saying correct. It is also stated by PW4 Km. Sudha that her sister was issue-less after elapsing a period of more than seven years from her marriage that is why the family members of her in-laws were addressing and calling her ''hussy and barren'. Thus she was subjected to cruelty on these two counts stated above. 37. The statement of these two witnesses Shri Vishwanath Agarwal and Kr. Sudha Agarwal disclosed that there was a persistent demand of scooter in dowry and Smt. Radha Devi was subjected to cruelty due to her failure to give birth to a child and non fulfillment of demand of scooter. 38. The perusal of the statement of these two witnesses clearly elucidate that there was a strong motive for the elimination/murder of Smt. Radha Devi. 39. As per submissions of learned counsel for the appellant that there were no direct evidence against the appellants that they have murdered Smt. Radha Devi. 40. We are not in agreement with the submission of learned counsel for the appellants because PW2 Shri Manoj Kumar Bajpayee and court witness no. 39. As per submissions of learned counsel for the appellant that there were no direct evidence against the appellants that they have murdered Smt. Radha Devi. 40. We are not in agreement with the submission of learned counsel for the appellants because PW2 Shri Manoj Kumar Bajpayee and court witness no. 1 Shri Anoop Kumar Gupta deposed against appellants accused that on 31.08.1981 at about 06:15 p.m., when they were present at the projection of the house of PW2 situated at second floor opposite to the house of appellants from where they had seen that accused persons were beating to Smt. Radha Devi in their courtyard and Smt. Radha Devi was trying to run outside and thereafter appellants dragged and pushed away to Smt. Radha Devi from the courtyard to a rear room and closed the windows of courtyard, after that they had seen nothing. Thus, the statement of these witnesses shows and proves that on the fateful day at the time of 6:00 pm or 6:15 pm when they were standing on the projection of the house of PW2 on the second floor opposite to the house of accused, they had seen accused persons beating to Smt. Radha Devi in the courtyard and Smt. Radha Devi was trying to run away or to freed herself from the clutches of the appellants/accused. Taking notice that they were being seen by the witnesses, appellants accused closed the window of their courtyard and they dragged and pushed away to Smt. Radha Devi in the rear room of his tenanted house. Thereafter, the witnesses came down from second floor projection. These two witnesses also deposed on oath that when they came down from the second floor, accused Ashok Kumar Jain came to PW3 Dr. Deshbandhu Bajpai and requested him to visit his house to see his mother, who is ill. On the request of accused Shri Ashok Kumar Jain, PW3 Dr. Deshbandhu Bajpai visited the house of accused persons where he found Smt. Radha Devi lying on the floor, when doctor inspected to Smt. Radha Devi, he found her dead. On enquiry the appellant/accused Smt. Padmawati told him that the daughter in law Smt. Radha Devi hanged herself and blackned their face. Accused persons insisted to issue a certificate that Smt. Radha Devi died due to heart failure, when witness Dr. On enquiry the appellant/accused Smt. Padmawati told him that the daughter in law Smt. Radha Devi hanged herself and blackned their face. Accused persons insisted to issue a certificate that Smt. Radha Devi died due to heart failure, when witness Dr. Deshbandhu Bajpai refused to do so, appellants/accused closed the door of their house and virtually confined to Shri Bajpai and also offered to pay Rs. 5,000/- or Rs. 6,000/- in lieu of issuing required false certificate. Sensing the danger witness Dr. Bajpai asked appellants/accused that please called relatives of deceased Smt. Radha Devi and he had no letter pad at this time, please come at his clinic where he would issue the required certificate. Then accused/appellants permitted PW3 Dr. Deshbandhu Bajpai to go his clinic but none accused accompanied him for getting required certificate. 41. Shri Deshbandhu Bajpai PW3 further stated on oath that when he came down, he narrated this incident to Shri Manoj Kumar Bajpai, Shri Anoop Kumar Gupta and Shri Brijesh Chandra Pandey who were present on the road near the house of incident. 42. Thus from the evidence of PW2, PW3 and CW1, it is vividly and beyond doubt proved by the prosecution that PW2 Shri Manoj Kumar Bajpai and CW1 Shri Anoop Kumar Gupta had seen beating to deceased Smt. Radha Devi by the appellants/accused in the courtyard of their tenanted house and thereafter, they have also seen to dragging and pushing Smt. Radha Devi in the rear room of the tenanted house. After few minutes the skirmishes and shrieks were stopped. 43. The evidence of PW3 Dr. Deshbandhu Bajpai proved beyond doubt that when he visited the house of appellants/accused on the pretext of attending to accused Smt. Padmawati by the accused Shri Ashok Kumar Jain, he found Smt. Radha Devi lying dead on the floor instead of accused Smt. Padmawati for which the appellants accused persons insisted to issue a certificate regarding this fact that Smt. Radha was died due to cardiac arrest. Moreover the murder took place in the four corner, waled house of the appellants, there couldnot be an eye witness. As far as the question of neighbour's evidence arises, it is well known fact that social fabric of the society in our country is so torned, that none come forward to assist the prosecution in the matter of heinous crime. Moreover the murder took place in the four corner, waled house of the appellants, there couldnot be an eye witness. As far as the question of neighbour's evidence arises, it is well known fact that social fabric of the society in our country is so torned, that none come forward to assist the prosecution in the matter of heinous crime. Thats why if there is no witness from the building in which the appellants were residing, it could not adversely affect the case of the prosecution. 44. It is contended by learned counsel for the appellants/accused that the medical evidence did not prove that whether the death of Smt. Radha Devi was homicidal or suicidal, that's why accused persons be given benefit of doubt. \ 45. The submission made by learned counsel for the appellants/accused countered by the learned A.G.A. and learned counsel for the complainant and submitted that PW6 Dr. Wasim Iqbal was a novice in the work of post mortem that's why he failed to take notice about the injuries and he did not mention in his report that there were blood clots beneath the injuries which were found on the body of Smt. Radha Devi at the time of post-mortem. To remove doubt and clouds from the report and statement of PW6 Dr. Wasim Iqbal, prosecution examined PW7 Dr. K.I. Mathrani who supported the post-mortem report Exhibit ka-4 and proved that it is a clear cut case of violent asphyxia caused by throttling. 46. It is also proved by PW7 Dr. K.I. Mathrani that he had practically as well as theoretically acquired knowledge in forensic science because he is a professor of G.S.V.M. Medical College, Kanpur and enjoying the reputation for the same. It is further proved by this witness that he had not charged even a single penny from the complainant and had issued his certificate in the academic interest and he thoroughly observed and pondered upon the report of post-mortem prepared by PW6 Dr. Wasim Iqbal who had admitted in his cross examination that it was his first post-mortem that's why he could not observed and took notice of so many facts which were essential to be mention in the post-mortem. 47. Since Dr. K.I. Mathrani was a professor and head of forensic science in G.S.V.M. Medical College, Kanpur and he taught so may Drs. 47. Since Dr. K.I. Mathrani was a professor and head of forensic science in G.S.V.M. Medical College, Kanpur and he taught so may Drs. regarding forensic science, he has also gone through the various books on forensic science authored by renowned personalities including Dr. Modi and Parik and according to Dr. Modi, he has founded his opinion that the death of Smt. Radha Devi was caused due to violent asphyxia caused by forceful throttling. 48. From perusal of the evidence of Dr. K.I. Mathrani, who was subjected to hectic cross examination, we are of the opinion that there is nothing in his statement due to which his testimony be discarded. Moreover, PW7 Dr. Mathrani is a reputed Doctor that's why it cannot be said that he had deposed against the appellants/accused due to ill will, enemosity, extraneous consideration or financial gain. Thus, from the evidence of PW7 K.I. Mathrani, it is proved that Smt. Radha Devi was died due to violent asphyxia caused by throttling. 49. Now the question arises, who had throttled the neck of Smt. Radha Devi, from the evidence of the prosecution, it is proved beyond doubt that Smt. Radha Devi was lastly seen alive in the company of all four appellants/accused on 31.08.1981 at about 06:00 p.m. or 06:15 p.m. by the witnesses PW2 Shri Manoj Kumar Bajpayee and CW1 Shri Anoop Kumar Gupta. These two witnesses also had seen that the appellants/accused persons were beating to Smt. Radha Devi in the courtyard of their tenanted house which was seen by these two witnesses from the windows opened in the roadside. These two witnesses also seen that Smt. Radha Devi was trying to free herself from the clutches of the appellants/accused and to run away outside, the accused persons dragged and pushed away her in the rear room of the tenanted house and the windows of the courtyard were closed by the appellants/accused. Later on the voice and shrieks were stopped coming out. 50. It is also proved by the prosecution that after recording of the F.I.R., when the police visited at the house of incident with complainant and other witnesses at 08:50p.m. on the same day, the body of Smt. Radha Devi was found in the house of appellants/ accused where all these four appellants/accused were present and were taken into custody of the police. There is no explanation from the side of the accused persons that how Smt. Radha Devi was died in their house in their presence. Accused persons advanced a false plea that Smt. Radha Devi committed suicide by hanging herself but no sign was found on the body of Smt. Radha Devi to suggest that Smt. Radha Devi died by hanging herself. There was no ligature mark on the neck of Smt. Radha Devi as per post-mortem report Exhibit Ka-4. The false explanation which was advanced by the accused persons shows that they have not come forward to disclose the real cause of death of Smt. Radha Devi which was in their special knowledge. Appellants did not say that any other person except them intervened in their house and committed the murder of Smt. Radha Devi that is why the only and only the inference could be drawn that the appellants/accused are the author of the murder of Smt. Radha Devi. There was a strong motive for the murder of Smt. Radha Devi because she had no child and the demand of scooter was not fulfilled by her parents. 51. It was further submitted by the learned counsel for the appellants that the evidence of PW7 Dr. K.I. Mathrani does not prove the fact that Smt. Radha Devi died due to strangulation, because there were no thumb or finger marks on her neck and Dr. Mathrani's opinion founded only on guess work. 52. We have thoroughly considered and pondered on the submissions of learned counsel and find that there is no substance in the argument, because PW6 Dr. Wasim Iqbal, who conducted post mortem of the dead body of Smt. Radha Devi did not find any ligature mark on her neck rather in the court he firstly opined that the death of Smt. Radha Devi was caused by violent strangulation, but Dr. Wasim Iqbal in his cross examination by counsel for the appellants he stated which he had not recorded in the post mortem report. When PW6 Dr. Wasim Iqbal had not supported his document post mortem Exhibit Ka-4 for which he was legally and morally duty bound then the complainant approached to PW7 K.I. Mathrani and had sought his opinion who issued report Exhibit Ka-5 with assertion that the death of Smt. Radha Devi was caused due to violent asphyxia created by throttling. 53. The evidence of PW7 Dr. 53. The evidence of PW7 Dr. K.I. Mathrani was challenged on so many grounds in the Trial Court by the accused persons, but all the challenges were repel by the learned Sessions Judge with reasoned order. We have also perused the report and the evidence of Dr. K.I. Mathrani with extreme cautious and find that the report and evidence of PW7 Dr. K.I. Mathrani is worth reliable and there is nothing on record which suggest that the report of Dr. K.I. Mathrani was procured due to some pressure, extraneous consideration or any other reasons. Dr. K.I. Mathrani unequivocally supported his report and stated on oath that the death of Smt. Radha Devi was the result of violent Asphyxia. 54. At this juncture learned Counsel for the appellants submitted that as per evidence of PW7, the strangulation was committed by a left handed person and prosecution utterly fails to prove that who in four accused persons was left hander, that's why, the appellants/accused could not be held guilty. We are afraid of to accept the submission of learned counsel for the appellants because this crime was committed under the four corner walled house in which all the four accused persons were residing with Smt. Radha Devi. Smt. Radha Devi was their daughter-in-law, wife or sister-in-law. Since, this offence was committed inside a closed house that's why only the accused persons had special knowledge regarding the cause of death of Smt. Radha Devi. 55 The Hon'ble Apex Court in (2013) 9 Supreme Court Cases 283 Ravirala Laxmaiah versus State of Andhra Pradesh in paragraph 20, 21, 22, 23 & 24, which are quoted below, opened that- "20. It is a settled legal proposition that in a case based on circumstantial evidence, where no eye-witness's account is available, the principle is that: "6. when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete." (Vide: State of U.P. v. Dr. when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete." (Vide: State of U.P. v. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 ; Gulab Chand v. State of M.P., AIR 1995 SC 1598 ; State of Tamil Nadu v. Rajendran, AIR 1999 SC 3535 ; State of Maharashtra v. Suresh, (2000) 1 SCC 471 ; and Gandesh Lal v. State of Rajasthan, (2002) 1 SCC 731 ). 21. In Neel Kumar @ Anil Kumar v. State of Haryana, (2012) 5 SCC 766 , this Court observed : "30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal, AIR 2010 SC 773 )" 22. In cases where the accused has been seen with the deceased victim (last seen theory), it becomes the duty of the accused to explain the circumstances under which the death of the victim has occurred. (Vide: Nika Ram v. The State of Himachal Pradesh, AIR 1972 SC 2077 ; Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 ; and Ponnusamy (supra). 23. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , this Court held as under: "Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime." (See also: Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10 ) 24. v. State of Punjab & Anr., (2012) 1 SCC 10 ) 24. In view of the above discussion, we reach the inescapable conclusion that appellant had been doubting the character of his wife and therefore, had adequate motive to eliminate her. In spite of the fact that he had been in the same room, he failed to furnish any explanation as under what circumstances his wife was found dead. Particularly, in view of the fact that the courts below had excluded the theory of suicide. The same conclusion stands fully fortified by the fact that the saree of deceased was lying in the corner of the room and the version given by the appellant that he had found his wife hanging with a saree around her neck and he cut the same by knife stands fully falsified as in such a fact-situation, part of the saree should have been found hanging with the ceiling of the room. The conduct of the appellant that he had given a false information to his in-laws and while dead body was lying in his house he stayed in a Krishna Guest House; further that he had absconded from the city itself, suggest that he is guilty of the offence." 56. In a similar case, (2014) 4 Supreme Court Cases 42 Joshinder Yadav versus State of Bihar Apex Court enunciated law in paragraphs 9, 16, 17, 18, and 19 which are quoted below that – 9. We have already referred to the evidence of father of Bindula Devi PW-9 Debu Yadav. He has given a graphic account of the harassment and ill- treatment meted out to the deceased by the accused. They were not happy with a bullock, a cow and a buffalo which were given as dowry. They asked for a watch and a cycle. That was also given. They asked for more. PW-9 Debu Yadav transferred 2 kathas of land to Bindula Devi. The accused wanted to sell it or wanted it to be transferred in their names and since Bindula Devi did not agree to that they continued to torture her. Her son was sent to her father so that he would be brought up by him, but she was kept in the matrimonial house obviously to work. PW-10 Sachindra Yadav the brother of Bindula Devi has corroborated his father. Her son was sent to her father so that he would be brought up by him, but she was kept in the matrimonial house obviously to work. PW-10 Sachindra Yadav the brother of Bindula Devi has corroborated his father. It is distressing to note that all the other witnesses, that is PW-2 to PW-7 turned hostile. In the facts of this case, it is indeed a pointer to the guilt of the accused. They won over the prosecution witnesses. We note with some anguish the following sentences uttered by PW-9 Debu Yadav in his cross-examination probably as an answer to the usual question about there being no independent witness to depose about cruelty. He stated "whenever my daughter visited my house, she used to complain that she is being tortured and assaulted there. Who else can be a witness to this fact?" Having perused the evidence of PWs-9 and 10 we have no manner of doubt that Bindula Devi was subjected to cruelty and harassment for dowry by the accused. Evidence of these witnesses is straightforward and honest. There is no exaggeration. In the cross-examination their evidence has not suffered any dent. Implicit reliance can be placed on them. 16. In our opinion, the prosecution having established that the accused treated the deceased with cruelty and that they subjected her to harassment for dowry, the accused ought to have disclosed the facts which were in their personal and special knowledge to disprove the prosecution case that they murdered Bindula Devi. Section 106 of the Evidence Act covers such a situation. The burden which had shifted to the accused was not discharged by them. In this connection, we may usefully refer to the judgment of this Court in Shambhu Nath Mehra v. State of Ajmer where this Court explained how Section 101 and Section 106 of the Evidence Act operate. Relevant portion of the said judgment reads thus: "(10) Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. ''101. Burden of proof- ''Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist'. Illustration (a) says - ''A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. ''101. Burden of proof- ''Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist'. Illustration (a) says - ''A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime'. (11) This lays down the general rule that in a criminal case, the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are ''especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience." 17. In Balram Prasad Agrawal v. State of Bihar, the prosecution had established the cruel conduct of the accused i.e. her husband and members of his family and the sufferings undergone by the deceased at their hands. The unbearable conduct of the accused ultimately resulted in her death by drowning in the well in the courtyard of the accused's house. This Court observed that what happened on the fateful night and what led to the deceased's falling in the well was wholly within the personal and special knowledge of the accused. But they kept mum on this aspect. This Court observed that it is true that the burden is on the prosecution to prove the case beyond reasonable doubt. But once the prosecution is found to have shown that the accused were guilty of persistent conduct of cruelty qua the deceased spread over years as was well established from the unshaken testimony of father of the deceased, the facts which were in the personal knowledge of the accused who were present in the house on that fateful night could have been revealed by them to disprove the prosecution case. This Court observed that the accused had not discharged the burden which had shifted to them under Section 106 of the Evidence Act. While coming to this conclusion, this Court relied on Shambhu Nath Mehra. 18. In the present case, the deceased was admittedly in the custody of the accused. She disappeared from their house. This Court observed that the accused had not discharged the burden which had shifted to them under Section 106 of the Evidence Act. While coming to this conclusion, this Court relied on Shambhu Nath Mehra. 18. In the present case, the deceased was admittedly in the custody of the accused. She disappeared from their house. As to how her dead body was found in the river was within their special and personal knowledge. They could have revealed the facts to disprove the prosecution case that they had killed Bindula Devi. They failed to discharge the burden which had shifted to them under Section 106 of the Evidence Act. The prosecution is not expected to give the exact manner in which the deceased was killed. Adverse inference needs to be drawn against the accused as they failed to explain how the deceased was found dead in the river in one foot deep water. 19. Pertinently, the post-mortem notes do not indicate presence of huge amount of water in the dead body. According to PW-12 Dr. Mandal, in a case of drowning, if immediate death is caused, then, there will be negligible quantum of water in the stomach. From the evidence of PW-12 Dr. Mandal, it appears that the death of Bindula Devi occurred immediately after she was drowned in the water because there was not much water in her stomach. It is also pertinent to note that Bindula Devi was pregnant. Her uterus contained full term dead male baby. She could not have, therefore, offered any resistance. It appears that, therefore, there were no injuries on the dead body. The whole operation appears to have been done swiftly and skillfully. But in any case, as stated hereinabove, it is not for the prosecution to explain in what manner Bindula Devi was done to death by the accused because Bindula Devi was staying in the house of the accused prior to the occurrence and she disappeared from that house. All the circumstances leading to her unnatural death were within the special and personal knowledge of the accused which they chose not to disclose. Instead, they gave a totally false explanation that when Bindula Devi had gone for bath, she slipped, got drowned in the water and died. This story is palpably false. All the circumstances leading to her unnatural death were within the special and personal knowledge of the accused which they chose not to disclose. Instead, they gave a totally false explanation that when Bindula Devi had gone for bath, she slipped, got drowned in the water and died. This story is palpably false. The false explanation offered by the accused further strengthens the prosecution case as it becomes an additional link in the chain of circumstances." 57. In the circumstances and facts discussed in foregoing paragraphs noted above any death occurred otherwise than in normal course in the house of accused, then it is the obligation/duty of the persons who were residing with the deceased to explain how the deceased died. The case in hand, prosecution proves that Smt. Radha Devi was residing with all four appellants/accused in their house and soon before her death, PW2, PW3 and CW1 had seen beating to Smt. Radha Devi in the courtyard and perceiving the fact that this act is being seen by someone. They dragged and pushed away to Smt. Radha Devi in the rear room of his tenanted house and closed the windows of his courtyard. After some time, the shrieks and voice/noise of Smt. Radha Devi stopped coming out and accused Ashok Kumar Jain came in the clinic of PW3 Dr. Deshbandhu Bajpai and requested to attend her mother with pretext that she was suffering from heart attack and when Dr. Bajpayee visited the house of accused persons, he found Smt. Radha Devi lying on the floor, when he inspected/attended her, he found her dead. These facts have been proved by the prosecution beyond doubt. Now it was the obligation of the appellants under Section 106 Evidence Act to prove that in which circumstances Smt. Radha Devi died in their presence and in their house. It was in the special knowledge of the accused persons which they retained and refrained from disclosing that's why the only and only inference can be drawn that the accused/appellants are the perpetrator and author of the death of Smt. Radha Devi. 58. We find no error or infirmity in the judgment of learned Sessions Judge, hence confirmed. Appeal is devoid of merit. Hence, liable to be dismissed. Consequently appeal dismissed. Let the appellants be taken into custody forthwith to serve out remaining period of sentence. 59. 58. We find no error or infirmity in the judgment of learned Sessions Judge, hence confirmed. Appeal is devoid of merit. Hence, liable to be dismissed. Consequently appeal dismissed. Let the appellants be taken into custody forthwith to serve out remaining period of sentence. 59. Let the judgment be notified to learned Sessions Judge within 15 days for compliance. Learned Sessions Judge to submit report of compliance within 30 days thereafter.