JUDGMENT : Sadhana S Jadhav, J. The appellants herein are convicted for the offence punishable under Section 498-A read with 34 of Indian Penal Code and they are sentenced to suffer R.I. for two years and to pay fine of Rs.500/- each, in default, to suffer R.I. for three months in Session Case No. 190 of 1996 passed by Additional Sessions Judge, Nashik vide Judgment and Order dated 29th September 1997. Hence, this Appeal. 2. Such of the facts necessary for the decision of this appeal are as follows:- 3. That, the daughter of Tukaram Kalu Lorder of Brahmanvada was married to the appellant no.1 in the year 1992. The appellant nos. 2 and 3 are the parents of the appellant no.1. 4. On 21st May 1996, PW-7 Kacharabai received a message from her brother i.e. Vithu Kashiram that their daughter Jijabai has expired in her matrimonial home. On the same night she went to Zarvad by S.T. Bus. The accused were present in the house, soon after, PW-7 Kacharabai reached the house they had left the house. Tukaram and others had returned to the village. PW-7, being a mother stayed in the said house. On the next day in the morning Tukaram and their relatives returned to the house of the appellant. They saw the dead body. They had seen ligature marks on her neck, breast and cheek portion which was blackish and bluish in colour. They approached the police station and Tukaram lodged a report on 22nd May 1996 in the morning at about 11.05 a.m. alleging therein that their daughter had died in her matrimonial house. The police had registered A.D. No. 22 of 1996 (Exhibit-29). 5. Pw-10, Ramesh Pawar along with the police had been to the spot. He held inquest panchnama in presence of the panch witnesses. He found that the dead body was wrapped in a quilt and had become blackish and bluish. The tongue was protruding and there was a ligature mark on the neck of the deceased. The dead body was sent for Post-mortem. The Post-mortem was conducted on the dead body on 22nd May 1996 at about 5.50 p.m. Rigor Mortis was absent in upper extremities and was present in lower extremities. There were signs of decomposition, eyelids were contused. The cause of death was asphyxia due to strangulation. The dead body was sent for Post-mortem. The Post-mortem was conducted on the dead body on 22nd May 1996 at about 5.50 p.m. Rigor Mortis was absent in upper extremities and was present in lower extremities. There were signs of decomposition, eyelids were contused. The cause of death was asphyxia due to strangulation. The Doctor had opined that the death must have occurred 24-36 hours before performing autopsy. On the very same day the accused were arrested in the adjoining village i.e. Borichiwadi by PW-10. After receiving Post-mortem notes, the P.I. of Ghoti Police Station, PW-10 lodged F.I.R. on behalf of the State, alleging therein that the deceased Jijabai has died a homicidal death. On the basis of the said report Crime No. 35 of 1996 was registered against the accused for the offence punishable under section 302 and 498 (A) of Indian Penal Code. The case was committed to the Court of Sessions Judge, Nashik and registered as Sessions Case No. 190 of 1996. 6. At the trial, the prosecution has examined as many as 10 witnesses to bring home the guilt of the accused. 7. The case rests upon evidences of PW.7- Kacharabai Korde, the mother of the deceased, PW.6- Tukaram Korde who happened to be the father of the deceased and had reported to the police station and on the basis of his report A.D. No. 22 of 1996 was registered. PW.9- Vidya Wagh and PW.10- Ramesh Pawar who is the Investigating Officer. 8. The learned Sessions Court has acquitted the accused of the offence punishable under section 302 read with 34 of Indian Penal Code and has convicted them for the offence under Section 498 (A) read with 34 of Indian Penal Code. 9. Pw.6-Tukaram Korde has deposed before the Court that in one year after marriage Jijabai was treated well and thereafter, she was meted with ill treatment. The Deputy Sarpanch of their village had taken Jijabai to her matrimonial home. Jijabai used to be driven out of the house on many occasions. She had given birth to a daughter. She used to visit her maternal house on every occasion after being assaulted by the accused. On receiving the message from Vitthal Nimbekar they had gone to Zarvad. All the accused were present in the house. They saw the dead body. Jijabai used to be driven out of the house on many occasions. She had given birth to a daughter. She used to visit her maternal house on every occasion after being assaulted by the accused. On receiving the message from Vitthal Nimbekar they had gone to Zarvad. All the accused were present in the house. They saw the dead body. His wife stayed with the dead body and the father had to return home to get the other relatives, since Brahmanwadi is in a remote place which is not easily accessible. On the next day they noticed that there were blackish and blueish marks on her breast, neck and cheeks. Therefore, he was constrained to lodge a report. He has specifically stated that the accused persons have killed his daughter. In the cross-examination he has admitted that he had not stated in the report that his daughter was ill treated by the accused persons. He has denied the suggestion that his daughter was suffering from vomiting and loose motion and therefore his wife had been to Zarvad to look after her daughter. He has denied the suggestion that the accused persons had left the house prior to the visit of his wife. 10. Pw.7-Kacharabai who happens to be the mother of the deceased. Her evidence is corroborating the evidence of her husband Tukaram Korde. According to her, she has seen the ligature marks on the neck, blackish and blueish marks on the body of the deceased. The defence has not been able to shatter her sterling testimony by way of cross-examination. 11. Pw.9-Vidya Wagh has specifically stated that she had found that body was decomposed. The skin was peeled therefore external injuries were not visible. The skin was peeled around the neck. The neck vessels were ruptured. Fracture in second right rib at sternal junction and blood clots in front of trachea. Tongue was protruding. She opined that the cause of the death was asphyxia due to strangulation. The Post-mortem notes were also signed by Dr. Nagaonkar. On the same day she had examined the accused persons and she had found abrasion on the right shoulder of accused no.1 and abrasion on the lateral to the eye and shoulders of the accused no.2 and abrasion over the left shoulder of accused no.3. The age of all the injuries are within 24 hours. Post-mortem report is at Exhibit-33. 12. The age of all the injuries are within 24 hours. Post-mortem report is at Exhibit-33. 12. Pw.10-Ramesh Pawar, the Investigating Officer who had recorded A.D. No. 22 of 1996 and thereafter, had lodged the F.I.R. against the accused persons, arrested the accused persons at Borichiwadi. He has recovered rope of the instance of accused no.1. He has specifically stated that village Borichiwadi is only 3 kms. from village Zarvad and village Zarvad is about 25 kms. from village Brahmavade. That village Zarvad is an interior place and it is not easily accessible. That, accused no.2 is the Police Patil of that village and he had failed to report the incident to the police station. He has denied the suggestion that it had transpired during the investigation that Jijabai was ill prior to the registration of A.D. No. 22 of 1996 and that her mother had come to look after her. He has also denied the suggestion that he had arrested accused on 22nd May 1996 while they were returning from Borichiwadi. The reasons assigned by the learned Sessions Judge for acquitting the accused of the offence punishable under section 302 of Indian Penal Code are perverse. However, the State has not chosen to file an appeal against acquittal and no notice of enhancement was issued at the time of admission and therefore, the acquittal under section 302 of Indian Penal Code cannot be considered at this stage. 13. In fact, Jijabai was married to accused no.1 just 4 years prior to the incident. There is evidence on record to show that when the parents of the deceased reached the house of the accused they quietly left the house without assigning any reason for the death of Jijabai. In fact, this is a case of custodial death. The medical evidence clearly establishes that Jijabai had died a homicidal death. There were injuries on her body. There was a fracture of her ribs. The Doctor has further opined that Jijabai had died 24 to 36 hours prior to registration of F.I.R. i.e. when the accused were present in the house. The medical evidence would clearly establish that Jijabai had died a brutal homicidal death at the hands of the accused persons. However, the findings that there is no eye witness to the incident and therefore, there is no direct evidence that the accused have caused homicidal death cannot be appreciated. 14. The medical evidence would clearly establish that Jijabai had died a brutal homicidal death at the hands of the accused persons. However, the findings that there is no eye witness to the incident and therefore, there is no direct evidence that the accused have caused homicidal death cannot be appreciated. 14. The statement of the accused no. 1 under section 313 of Code of Criminal Code shows that the defence of the accused is that they had left on Saturday for village Borichiwadi to celebrate Bohoda festival. They were arrested by the police when they were returning home and that PW.7 i.e. his mother-in-law had been to the house and they have been falsely implicated in the present case. The said explanation is neither plausible nor reasonable and would not discharge the accused of any explanation under section 106 of Indian Penal Code. The accused has failed to establish their plea of alibi. In fact, village Borichiwadi is hardly 3 kms. from village Zarvad. In fact, was a clear case which spelt of offence punishable under section 302 of Indian Penal Code. Moreover, there were marks on the person of the accused persons. It appears that the accused had sustained injuries while they were facing resistance from Jijabai. All injuries were on shoulders and face. 15. It is in these circumstances, that the accused-appellants do not deserve any leniency at the hands of this Court. Learned APP has submitted that the appellant no. 2 has expired on 13th September 2002. The appellant no. 1 has undergone the sentence of 16 months as under-trial prisoner. The accused no.3 was in jail for 15 days as undertrial prisoner. In view of this, the sentence as far as appellant no. 3 is concerned, deserves to be modified. Hence, the following order:- ORDER (i) The appeal is dismissed and disposed of accordingly. (ii) The appellant No.1 to surrender before the Additional Sessions Judge, Nashik within four weeks to serve the rest of the sentence. The appellant no. 3 is sentenced to one year R.I. and fine of Rs. 1000 instead of R.I. for two years. (iii) The appeal of the appellant no. 2 stands abated. (iv) In the eventuality, the appellant no.1 does not surrender within four weeks, the learned Sessions Judge, Nashik shall issue non-bailable warrant and arrest the accused in accordance with law.