JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment dated 13/02/2014 passed by learned Sessions Judge, Bastar Place – Jagdalpur in Sessions trial No. 78/2012 whereby the appellant has been convicted for offence punishable under Section 302 of IPC and he has been sentenced to life imprisonment till death with fine of Rs. 2000/-. 2. Case of the prosecution, in brief, is that the appellant herein, with the intention of causing death of his wife Manbati, strangulated her and assaulted her with tangiya (axe) by which she suffered grievous injuries and died and he, thereby, committed the aforesaid offence. 3. Further case of the prosecution is that on 24/02/2012 at about 12:30 PM, Banmali Kashyap (P.W.-3) lodged a report that on 19/02/2012, his daughter Manbati and son-in-law (appellant) came to his house at Village Aadawal along with their 4 years old son Suraj and told him that both of them were going to Sumalwada temple on the eve of Mahashivratri and left their son with him and told him that they will return shortly to take their son back, but they did not return to take their son as they had informed earlier. After a period of 5 days, on 24/02/2012, Kotwar of village Bilouri Santoram Kashyap (P.W.-6) and Upsarpanch Girdhar Sinha (P.W.-11) went to Village Aadawal and informed Banmali Kashyap (P.W.-3) that the house in which his daughter and son-in-law used to reside has been locked from outside and a foul smell is coming from inside and they suspect that something has happened to his daughter. Thereafter, Banmali Kashyap (P.W.-3) accompanied them and went to his daughter's house and found that the house was locked from outside. He along with other villagers went to the roof and when he removed the stones, he saw that the dead body of his daughter Manbati was lying inside the room and flies were buzzing around her. He called the Police and informed about the same at Police Station Frezerpur. Police reached on the spot and broke the lock and entered inside the house and found that dead body of Manbati was lying on the floor and she was covered with a blanket. He called the Police and informed about the same at Police Station Frezerpur. Police reached on the spot and broke the lock and entered inside the house and found that dead body of Manbati was lying on the floor and she was covered with a blanket. When they removed the blanket, they found that she had been assaulted with a sharp edged weapon in her ribs and back and the appellant herein was found absconding. 4. Pursuant thereof, dehati nalishi was registered at Police Station Frezerpur vide Ex. P/3 and after issuing summons to the witnesses under Section 175 of CrPC vide Ex. P/4, inquest was conducted vide Ex. P/5. The dead body of Manbati was sent for postmortem to Maharani Hospital, Jagdalpur which was conducted by Dr. Sanjay Basak (P.W.-7) and as per the postmortem report (Ex. P/12), cause of death could not be specifically ascertained as the body had decomposed and it had been damaged by maggots and it had turned blackish in colour. From the spot, door handle, lock, plain soil as well as blood stained soil were seized vide Ex. P/11 and after taking the appellant into custody, his memorandum statement was recorded vide Ex. P/7 and at his instance, bloodstained axe was seized vide Ex. P/8 and the said seized articles were sent for FSL. On 25/05/2012, the Station House Officer, Police Station Frezerpur had made a query to Dr. Sanjay Basak (P.W.-7) as to whether the deceased could have died on account of the injuries suffered by her in her ribs and stomach to which the Doctor had replied in affirmative vide query report (Ex. P/15). Thereafter again on 28/05/2012, query had been made by the S.H.O. as to whether deceased had died due to strangulation to which the Doctor had replied vide query report (Ex. P/13) that tongue of the deceased was protruding and it was bitten by her teeth, however, since her body had decomposed and it had been damaged by maggots, no mark on her neck was visible and as such, no definite opinion can be given. Again on 29/05/2012, query was made by the S.H.O. as to whether the injuries suffered by the deceased could have been caused by the bloodstained axe seized at the instance of the appellant and the Doctor had replied in affirmative vide Ex. P/16. Again on 29/05/2012, query was made by the S.H.O. as to whether the injuries suffered by the deceased could have been caused by the bloodstained axe seized at the instance of the appellant and the Doctor had replied in affirmative vide Ex. P/16. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC and he was committed to the Court of Sessions for trial in accordance with law. 5. In order to bring home the offence, prosecution examined as many as 14 witnesses and brought on record 28 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence. 6. Learned trial Court, after appreciation of oral and documentary evidence on record, proceeded to convict the appellant for offence punishable under Section 302 of IPC and sentenced him as aforesaid. 7. Mr. Manoj Kumar Jaiswal, learned counsel for the appellant, would make a two-fold submission :- i) that, prosecution has failed to establish that death of deceased Manbati was homicidal in nature in view of the fact that the dead body was in a decomposed state and it could not be specifically ascertained and proving the death of deceased to be homicidal in nature is sine qua non for convicting an accused for offence punishable under Section 302 of IPC. ii) that, prosecution has further failed to prove that appellant is the author of the crime in question as there is no legal evidence available on record to connect him with the said offence, therefore, the instant appeal be allowed by setting aside the impugned judgment of conviction and order of sentence and the appellant be acquitted of the charge levelled against him. 8. Per contra, Mr. Sudeep Verma, learned State counsel, would submit that pursuant to the statement of Dr. 8. Per contra, Mr. Sudeep Verma, learned State counsel, would submit that pursuant to the statement of Dr. Sanjay Basak (P.W.- 7), it is duly established that death of deceased Manbati was homicidal in nature and furthermore, it is the appellant who came along with his wife Manbati and their minor son Suraj to his fatherin- law's house on 19/02/2012 and handed over their child to him and thereafter, left his house along with deceased Manbati and then on 24/02/2012, her dead body was recovered from her house, as such, the appellant was required to give an explanation in this regard in his statement under Section 313 of CrPC in light of the decision rendered by this Court in the matter of Ram Gopal S/o Mansharam v. State of Madhya Pradesh2023 LiveLaw (SC) 120. Therefore, the appellant has rightly been convicted for offence punishable under Section 302 of IPC and the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 10. Upon hearing learned counsel for the parties and after going through the record, the following two questions arise for consideration :- i) Whether the death of deceased Manbati was homicidal in nature and whether it has been proved by the prosecution ? ii) Whether the appellant is the author of the crime in question ? Answer to Question No. 1 :- 11. The appellant has been convicted by the trial Court for offence punishable under Section 302 of IPC holding that the death of deceased Manbati was culpable homicide under Section 299 of IPC which amounts to murder under Section 300 of IPC and is punishable under Section 302 of IPC. For holding an accused guilty of murder, prosecution has to first prove that it is culpable homicide. An accused will come under the mischief of Section 299 only when the act done by him has caused death. 12. At this stage, it would be relevant to notice Sections 299, 300 and 302 of IPC, which provide as under :- “299. For holding an accused guilty of murder, prosecution has to first prove that it is culpable homicide. An accused will come under the mischief of Section 299 only when the act done by him has caused death. 12. At this stage, it would be relevant to notice Sections 299, 300 and 302 of IPC, which provide as under :- “299. Culpable homicide – Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” “300. Murder – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or – Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or - Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” “302. Punishment for murder. - Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.” 13. Homicide is the killing of a human being by a human being. It is either lawful or unlawful. (A) Lawful homicide, or simple homicide, includes several cases falling under the General Exceptions (Chapter IV). (B) Unlawful homicide includes :- (i) Culpable homicide not amounting to murder (Section 299). (ii) Murder (Section 300). (iii) Rash or negligent homicide (Section 304-A). (iv) Suicide (sections 305 and 306). (See: The Indian Penal Code by Ratanlal & Dhirajlal, 35th Edn., Vol. 2, p. 1347) 14. (B) Unlawful homicide includes :- (i) Culpable homicide not amounting to murder (Section 299). (ii) Murder (Section 300). (iii) Rash or negligent homicide (Section 304-A). (iv) Suicide (sections 305 and 306). (See: The Indian Penal Code by Ratanlal & Dhirajlal, 35th Edn., Vol. 2, p. 1347) 14. Halsbury, (Halsbury's Laws of England, 4th Edn, vol II, para 1151, p 613) classifies homicide as follows :- “The term “homicide” is used to describe the killing of human being by a human being. Such a killing may be lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide pact, and infanticide.” 15. “Homicide” as derived from latin literally means, the act of killing a human being. Under Section 299 of the IPC, homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 of the IPC which consists of two parts. (See: Chenda @ Chanda Ram v. State of Chhattisgarh 2014 CrLJ 172 ) 16. In the matter of Reaz-ud-din Shaikh v. Emperor, (1910) 11 CrLJ 295 : HS Gaur Penal Law of India, 10th Edn. Vol. 3, pp 2214-2235, it has been explained by Shuarf-ud-din, J., as under :- “.... all murder is culpable homicide, but all culpable homicide is not murder …. subject to the five exceptions to Section 300, Indian Penal Code, every act that falls within one or more of the four clauses of section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide in Section 299, Indian Penal Code. Every act that falls within any one or more of the sets of circumstances described in the five exceptions of that section, is by that fact taken out of section 300, Indian Penal Code but the act notwithstanding continues to be within Section 299 and since it is not murder, it is culpable homicide not amounting to murder. Every act that falls within section 299 and does not fall within Section 300, since it is not murder, is culpable homicide not amounting to murder.” 17. Every act that falls within section 299 and does not fall within Section 300, since it is not murder, is culpable homicide not amounting to murder.” 17. It is well settled law that in order to convict an accused under Section 302 of the IPC, the first and foremost aspect to be proved by the prosecution is the homicidal death and if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of IPC. (See : Madho Singh v. State of Rajasthan, (2010) 15 SCC 588 and Chandrapal v. State of Chhattisgarh, 2022 SCC Online SC 705) 18. Similarly, in the matter of Shobhau alias Shubhau v. State of M.P., 1998 CrLJ 3934 , it has been held by the Madhya Pradesh High Court that to prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon the prosecution. In the absence of legal proof of the death being homicidal, because of the serious lacuna or not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of the offence under Section 302 of the Indian Penal Code. 19. The Supreme Court in the matter of Rupinder Singh Sandhu v. State of Punjab and others, (2018) 16 SCC 475 has held that to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. In the matter of M.B. Suresh v. State of Karnataka, (2014) 4 SCC 31 , it has been by the Supreme Court that for holding an accused guilty of murder, the prosecution has first to prove that it is a culpable homicide. Culpable homicide is defined under Section 299 of the Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death. 20. Culpable homicide is defined under Section 299 of the Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death. 20. In the matter of The State of Punjab v. Bhajan Singh and others, (1975) 4 SCC 472 wherein the decomposed dead body was dug out of burial and the Doctor was unable to find out reason of death, their Lordships of the Supreme Court have held that the accused cannot be made to suffer because of omission on the part of the doctor conducting the post-mortem to send the decomposed body to an anatomy expert for examining the hyoid bone and cervical vertebra of the decomposed body in order to find out as to whether the death was due to strangulation and observed in paragraph 14 of the report as under :- “14. The learned Sessions Judge in the curse of his judgment has observed that the doctor who performed post mortem examination was careless inasmuch as he failed to send the two dead bodies to the Professor of Anatomy who might have been in a position to express opinion after examining the hyoid bone and cervical vertebra as to whether the death of the two deceased persons was due to strangulation. Although it may be that it would have been more appropriate on the part of the doctor to have sent the dead bodies to an anatomy expert, the fact that the doctor did not do so cannot be a ground for drawing an inference adverse to the accused. The accused cannot be made to suffer because of that omission of the doctor. It would indeed be contrary to all accepted principles to give benefit of that omission to the prosecution. The onus in a criminal trial is upon the prosecution to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution would be entitled to get the benefit of that.” 21. The onus in a criminal trial is upon the prosecution to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution would be entitled to get the benefit of that.” 21. Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra), it is quite vivid that in the instant case, dead body of deceased Manbati was subjected to postmortem which was conducted by a panel of Doctors but in order to prove the postmortem report (Ex. P/12), Dr. Sanjay Basak (P.W.-7) has been examined on behalf of the prosecution. In his statement before the Court, he has clearly stated that upon external examination, he found that the dead body was in an advanced stage of decomposition, the entire body was filled with maggots, it was smelling badly and the body had swollen and turned blackish in colour. He has further stated that her tongue was protruding and it was bitten by her teeth and below her stomach, on the left side, 4x3 inch contusion was present in her body which was also filled with maggots. Upon internal examination, the Dr. Sanjay Basak (P.W.-7) found that internal organs were congested and were filled with maggots and her viscera was taken out and was preserved in order to send it for chemical examination. He has further stated that as per the opinion of the panel of doctors, since the dead body had been decomposed and it had been damaged by maggots, it was not possible to find out the correct reason for her death, however, her death had certainly occurred prior to 5-7 days from the date of postmortem. Similarly, on 28/05/2012, the Station House Officer had made a query from the Doctor (P.W.-7) as to whether the deceased had died due to strangulation and as per the query report (Ex. P/13), Dr. Sanjay Basak (P.W.-7) had opined that tongue of the deceased was protruding and it was bitten by her teeth, however, since the dead body had been decomposed, no such mark was visible in the neck and as such, it is not possible to give a definite opinion. P/13), Dr. Sanjay Basak (P.W.-7) had opined that tongue of the deceased was protruding and it was bitten by her teeth, however, since the dead body had been decomposed, no such mark was visible in the neck and as such, it is not possible to give a definite opinion. Thereafter again on 29/05/2012, query had been made as to whether the injuries suffered by the deceased could have been caused by the blood-stained axe seized at the instance of the appellant to which the Doctor had opined vide query report (Ex. P/16) that the injuries suffered by the deceased could have been caused by the said axe, however, he advised to send the said axe for FSL in order to find out whether it was stained with human blood and though the said seized axe was sent for FSL but for the reasons best known to the prosecution, no FSL report has been brought on record. 22. True it is that since the dead body had decomposed, no definite opinion could have been expressed by Dr. Sanjay Basak (P.W.-7) with regard to the cause of death and nature of death, however, in order to ascertain these things, the dead body should have been sent to the Professor of Anatomy to examine hyoid bone and cervical vertebra and to record a finding as to whether the deceased died on account of strangulation, as held by their Lordships of the Supreme Court in the matter of Bhajan Singh (supra) and despite specific query having been raised by the investigating authorities in this regard and the Doctor not being able to give a definite opinion, yet nothing has been done to ascertain the cause of death and nature of death of deceased Manbati. Therefore, it is failure on the part of the prosecution in not sending the dead body to the Professor of Anatomy to find out the exact reason behind the death of the deceased, whether it was strangulation or otherwise. The Supreme Court in Bhajan Singh (supra) has clearly held that accused cannot be made to suffer because of the omission of the doctor and if there is any gap or lacuna in the prosecution evidence, the benefit has to be extended to the accused and not to the prosecution. The Supreme Court in Bhajan Singh (supra) has clearly held that accused cannot be made to suffer because of the omission of the doctor and if there is any gap or lacuna in the prosecution evidence, the benefit has to be extended to the accused and not to the prosecution. As such, we are of the considered opinion that prosecution has failed to establish that death of deceased Manbati was homicidal in nature. Answer to Question No. 2 :- 23. The trial Court has relied upon the incriminating circumstance of last seen together of appellant and the deceased and held the appellant to be the author of the crime in question by recording a finding that on the date of the offence, appellant and his wife Manbati (deceased) came to the house of Banmali Kashyap (P.W.- 3) and left their minor son with him promising that they were going to Sumalwada temple to see Mahashivratri fair and they will come back shortly to take their son, but surprisingly, they did not return and on 24/02/2012, dead body of Manbati was recovered from her house which was locked from outside and the appellant was absconding and he has offered no explanation in this regard in his statement under Section 313 of CrPC. 24. Their Lordships of the Supreme Court in the matter of Ram Gopal (supra), after considering their earlier decision rendered in the matter of Rajender v. State (NCT of Delhi), (2019) 10 SCC 623 and Satpal v. State of Haryana, (2018) 6 SCC 610 , have held that once the theory of last seen together was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased and if the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence. 25. forming a chain of circumstances is established, the conviction could be based on such evidence. 25. In the instant case, true it is that no such explanation has been furnished by the appellant in his statement under Section 313 of CrPC as to how his wife Manbati died in a suspicious circumstance in his house after they had left the house of Banmali Kashyap (P.W.-3) on 19/02/2012 and her dead body was recovered on 24/02/2012 from their house which was locked from outside, which he was obliged to do, and this is a strong incriminating circumstance against the appellant as he was required to explain as to how his wife was found dead in his house. Furthermore, though recovery of blood-stained axe is said to have been made at the instance of the appellant pursuant to his memorandum statement vide Ex. P/8 and though it was sent for FSL in order to ascertain as to whether it was stained with human blood, but for the reasons best known to the prosecution, no FSL report has been brought on record to demonstrate the axe as a weapon of offence and to complete the chain of circumstances as held by the Supreme Court in Ram Gopal (supra). Furthermore, the Supreme Court in the matter of Bhajan Singh (supra) has clearly held that the onus in a criminal trial is upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Conclusion :- 26. In view of the aforesaid legal analysis, we are of the considered opinion that the prosecution has failed to prove that the death of deceased was homicidal in nature, which is sine qua non for convicting an accused for offence punishable under Section 302 of IPC and though the appellant has failed to furnish explanation in his statement under Section 313 or CrPC as to how his wife Manbati died and her dead body was found in his house in a suspicious circumstance, but since the death of Manbati could not be proved to be homicidal in nature, the appellant is entitled for acquittal on the basis of benefit of doubt. As such, the impugned judgment of conviction and order of sentence is hereby set aside and we hereby acquit the appellant from the charge levelled against him. As such, the impugned judgment of conviction and order of sentence is hereby set aside and we hereby acquit the appellant from the charge levelled against him. Since he is in jail, we direct that he be released forthwith, if his detention is not required in any other case. 27. Accordingly, this criminal appeal stands allowed.