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2023 DIGILAW 473 (BOM)

Dinesh Devidasrao Tatte v. State Of Maharashtra

2023-02-10

ROHIT B.DEO, URMILA JOSHI-PHALKE

body2023
JUDGMENT URMILA JOSHI-PHALKE, J. - Heard finally with the consent of learned Counsel for the parties. 2. By way of this appeal, the appellant had challenged the judgment and order of sentence passed by the Additional Sessions Judge, Amravati in Sessions Trial No.226/2012 dtd. 25/09/2019 by which present appellant-accused No.1 is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000.00 in default of payment of fine accused to suffer rigorous imprisonment for one year. 3. Facts of the prosecution case in brief are as under : A] On 15/07/2012, the brother of the deceased namely Sudhir Pandurangji Bele had lodged the report contending that the deceased Surekha is his sister. Her marriage was solemnized with the accused/appellant and from the said wedlock she begotten two sons. It is further alleged that the present appellant/accused along with acquitted accused, his parents demanded Rs.50, 000.00 from the parents of the deceased and on that count she was ill-treated and harassed by assaulting her. Prior to 5 - 6 months of incident, appellant/accused has beaten deceased Surekha due to which she was hospitalized in the Dr. Punjabrao Deshmukh Medical College and Hospital, Amravati. 4. On 13/07/2017 at about 6.00 p.m. he received a telephonic call from deceased Surekha and she disclosed that present appellant/accused and his parents demanding from her, her ornaments for selling it. But she refused to deliver the same and on that count all the three accused assaulted her and she was being harassed by accused persons on that count from last 2-3 days. She had also raised the apprehension of insecurity in the house. On getting such information from the deceased he consoled her by assuring her that they all are coming at Morshi to attend marriage on 15/07/2012, at that time they would convince her husband and in-laws. 5. However, on 14/07/2012 at about 5.00 p.m. he received a telephonic call from father of the appellant/accused on his mobile phone and informed that deceased Surekha had committed suicide by hanging herself in the bedroom of their house. She was admitted to the hospital but she succumbed to the death. On receipt of such information he along with his parents, wife and other relatives reached at Morshi Sub-District Hospital. He saw dead body which was kept in a mortuary. None of the accused were present in the hospital. She was admitted to the hospital but she succumbed to the death. On receipt of such information he along with his parents, wife and other relatives reached at Morshi Sub-District Hospital. He saw dead body which was kept in a mortuary. None of the accused were present in the hospital. On receiving such information, he approached to the police and lodged the report. On the basis of said report, police have registered the offence vide Crime No.137/2012 at Morshi police station under Sec. 498-A, 306, 304B read with Sec. 34 of the Indian Penal Code (hereinafter referred to as 'the IPC' for short). 6. Initially, the report was registered as an accidental death. During the inquiry under Sec. 174 of the Code of Criminal Procedure, the Investigating Officer has visited alleged spot of incident and drawn the spot panchnama, inquest panchnama. The dead body of the deceased was forwarded to post-mortem examination. The cloths of the deceased are seized. The investigating Officer has also seized one dupatta and one black colour mobile phone at the time of spot panchnama. After registration of the crime, the accused along with his parents was arrested by drawing arrest panchnama. The incriminating articles are forwarded to chemical analysis. After completion of investigation, the investigating officer has filed charge-sheet against the accused. 7. After filing of the charge-sheet learned Magistrate has committed the case to the Court of Sessions for trial. The Sessions Court has framed the charge against the accused vide Exhibit 15. The contents of the charge are read over and explained to the accused. They pleaded not guilty and claimed to be tried. To substantiate the charge, prosecution examined in all five witnesses as follows : (i) PW-1 - Sudhir Pandurangji Bele (Exhibit 43) - Informant (ii) PW-2 - Pushpa Gajananrao Wankhade (Exhibit 59) (iii) PW-3 - Dr. Manisha Swarupsingh Chavan (Exhibit 75) - Medical Officer (iv) PW-4 - Dr. Mahesh Krushnaswami Kurtkoti (Exhibit 89) - Medical Officer (v) PW-5 - Madhukar Ganpatrao Kamble (Exhibit 97) 8. Manisha Swarupsingh Chavan (Exhibit 75) - Medical Officer (iv) PW-4 - Dr. Mahesh Krushnaswami Kurtkoti (Exhibit 89) - Medical Officer (v) PW-5 - Madhukar Ganpatrao Kamble (Exhibit 97) 8. Besides the oral evidence, prosecution also relied upon the following documents : Charge (Exhibit 15), Arrest Panchnama (Exhibits 27 to 29), Chemical Analyzer Report (Exhibits 32 and 33), Inquest panchnama (Exhibit 40), Report lodged by PW-1 (Exhibit 46), FIR (Exhibit 47), Spot panchnama (Exhibit 52), Seizure Memo (Exhibit 53), Medical Certificate of accused (Exhibit 76), Medical Fitness Certificate (Exhibit 77), Postmortem report (Exhibit 91), Requisition to Chemical Analyzer (Exhibit 99), Map of Spot Occurrence (Exhibit 104), Special Report to S.D.P.O. (Exhibit 118) and Death intimation (Exhibit 119). 9. After recording the evidence, the incriminating evidence is put to the accused for seeking their explanation. The defence of the accused is of total denial and of false implication. The defence of the accused is that the deceased has committed suicide by hanging herself. Accordingly, their statement under Sec. 313 of the Code of Criminal Procedure was recorded. After hearing both the sides, learned trial Court pleased to convict the accused No.1 of the offence punishable under Sec. 302 of the IPC and acquitted the co-accused i.e. parents of the present appellant/accused under Sec. 302 and 498A of the IPC. The appellant is acquitted of the offence punishable under Sec. 498A of IPC. 10. Being aggrieved and dissatisfied with the judgment and order of sentence, present appeal is preferred by the appellant on the ground that learned trial Court had not considered the evidence on record. Entire case of the prosecution is based on circumstantial evidence. The prosecution miserably failed to prove the chain of the circumstances on which the prosecution placed reliance on. 11. It is further submitted by Shri Ghurde, learned Counsel for the appellant that the evidence of PW-1 and 2 who are the brother and sister of the deceased nowhere establishes that deceased was ill-treated by the accused and his parents. The allegations made by PW-1 and 2 are vague in nature and no specific instances are stated by them. The evidence regarding the illegal demand by the accused is also not proved. He further submitted that the evidence adduced by the prosecution to prove the homicidal death of the deceased is not sufficient to warrant the conviction against the accused. The allegations made by PW-1 and 2 are vague in nature and no specific instances are stated by them. The evidence regarding the illegal demand by the accused is also not proved. He further submitted that the evidence adduced by the prosecution to prove the homicidal death of the deceased is not sufficient to warrant the conviction against the accused. The evidence of PW-4 i.e. Medical Officer nowhere establishes that the cause of death of the deceased is by strangulation and not by hanging. The specific defence of the accused is that deceased had committed suicide which is substantiated by the accused on the basis of documents on which the prosecution is relied upon. The spot panchnama clearly shows that when the police visited the alleged spot of incident, the dead body of the deceased was already removed to the hospital. The investigating officer has observed that the alleged incident occurred in a bedroom of the deceased wherein they have witnessed one dupatta lying on the bed. They have also observed that one steel container lying in the room. The deceased has committed suicide by keeping the said steel container on the bed by hanging herself with the help of said dupatta. The Investigating Officer has also seized the said articles from the spot of incident. The medical jurisprudence on which the defence has placed reliance on shows that the injuries observed on the person of the deceased establishes that death of the deceased is due to hanging and not by strangulation. However, learned trial Court had not considered the same. He further submitted that in case of hanging and strangulation the dissection of the neck is must. There are certain characteristics which required to be mentioned in postmortem report for which the said exercise is necessary. The medical Officer had not mentioned in his post-mortem report that hyoid bone was fractured or ruptured or it was intact. He has not mentioned the position of larynx and trachea, whether it was fractured or not. Thus, the evidence of Medical Officer shows that he had conducted the postmortem without dissection of the neck. Thus, the prosecution has not been able to prove the guilt of the accused persons beyond reasonable doubt. On the other hand, story put forth by the defence is on the basis of probability. Thus, the evidence of Medical Officer shows that he had conducted the postmortem without dissection of the neck. Thus, the prosecution has not been able to prove the guilt of the accused persons beyond reasonable doubt. On the other hand, story put forth by the defence is on the basis of probability. The defence has probabilized that the deceased has committed suicide by hanging herself, therefore, appellant/accused is not responsible for her death and hence he be acquitted from the charges. 12. On the other hand, learned Additional Public Prosecutor Shri N.S. Rao submitted that the evidence of PW-1 and PW-2 who are the brother and sister categorically stated that the deceased was ill-treated and harassed by demanding illegal demands. Prior to the incident, PW-1 - Sudhir Bele received the phone call of deceased wherein she had expressed her apprehension of insecurity and subsequent to that she was reported to be dead. Thus, the evidence of PW-1 and PW-2 is sufficient to show that the deceased was harassed by demanding illegal demands. The death of the deceased was caused in matrimonial house wherein accused was residing along with other family members. As the dead body of the deceased was found in the bedroom in view of Sec. 106 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act' for short) the burden is on the accused to explain the circumstances which are within his special knowledge. The appellant has not explained the same. The defence raised by the accused that she had committed suicide is not supported by the spot panchnama as the steel container on which the defence has placed reliance on and was found to be kept in order. As per the contention of defence she has latched the door inside and thereafter committed suicide by hanging herself however, the latch of the door was not found broken when the spot panchnama was drawn. Thus, the contention of the defence that she committed suicide by hanging herself is not supported by the evidence on record. Thus, the prosecution has proved the fact that the death of the deceased is occurred in the matrimonial house. The medical evidence shows that death of the deceased is due to the strangulation. The circumstances which are within the special knowledge of the accused are not explained by the accused. Thus, the prosecution has proved the fact that the death of the deceased is occurred in the matrimonial house. The medical evidence shows that death of the deceased is due to the strangulation. The circumstances which are within the special knowledge of the accused are not explained by the accused. In view of that the learned trial Court has rightly convicted the appellant/accused. Appeal has no merits and liable to dismissed. 13. After hearing both the sides and after perusal of the evidence, the first and foremost question which arises for consideration is that whether the prosecution succeeded to prove the charge against the accused on the basis of circumstantial evidence. To prove the homicidal death of the deceased, prosecution mainly relied upon the evidence of PW-4 - Dr. Mahesh Krushnaswami Kurtkoti examined vide Exhibit 89. PW-4 - Dr. Mahesh testified that on 14/12/2012 he was serving as a Medical Officer at Sub-District Hospital, Morshi. He received a letter from the Morshi police station for conducting post-mortem of deceased which is at Exhibit 19. He has conducted the post-mortem examination with the help of Dr. Santosh Daberao and Dr. Manisha Chavan. On examination, he found that rigor mortis was present all over the body. The death occurred within 12-24 hours approximately. He has noted following external injuries on the person of the deceased which are : (i) abrasions on right sub-clavicular region and there were imprint abrasions thyroid cartilage on neck approximately 7 inch in length and 1 c.m. in breadth. The injuries are antemortem in nature. Said injuries were found below right collar bone. Such injuries are possible due to strangulation by hand. He explained that imprints means marks of fingers of hand. The imprint abrasions are possible because of single handed compression or due to the pressure over particular part. If there is pressure below thyroid cartilage, then it may be possible. Below thyroid cartilage, there is wind pipe, which is also known as trachea. He further deposed that lungs were found congested as well as pericardium, liver, spleen and kidneys. This congestion is possible due to strangulation. He opined that the death occurred due to cardio respiratory arrest due to strangulation and final out come was reserved for chemical analysis. Accordingly, he issued the post-mortem notes which are in his handwriting at Exhibit 91. 14. This congestion is possible due to strangulation. He opined that the death occurred due to cardio respiratory arrest due to strangulation and final out come was reserved for chemical analysis. Accordingly, he issued the post-mortem notes which are in his handwriting at Exhibit 91. 14. During his cross-examination, it is elicited that the postmortem report is in his handwriting. The various propositions of Modi's Medical Jurisprudence are put to the Medical Officer. He admits that in hanging and strangulation the dissection of neck is must. There are certain characteristics which are required to be mentioned in postmortem report for which the said exercise is necessary. He had not mentioned in his post-mortem report that the hyoid bone was fractured or ruptured or it was intact. He has not mentioned the position of larynx and trachea, whether it was fractured or not. He has not mentioned scratches, abrasions, bruises on face, mouth and ears. He has also not mentioned the abrasions and ecchymosed around about the edges of the ligature mark. He denied that in case of strangulation the fracture of larynx, trachea and hyoid bone is must. In further cross-examination he admits that if fingers are used during throttling, then impression of tips of fingers and thumb are usually found on either side of wind pipe. He further admitted that thin linear or crescentic marks produced by the finger nails are occasionally present, if the finger tips are pressed deeply into the soft tissues of the neck. When both hands are used to grasp and compress the throat, the thumb mark of one hand and the finger marks of the other hand are usually found in either side of the throat. He also admitted the possibility of abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of the body, if there has been a struggle. Similarly, fractures of the ribs and injuries to the thoracic and abdominal organs. He further admitted that when considerable force is used the larynx and trachea are congested and contain frothy mucus. Thus, general cross-examination is carried out regarding the appearances after use of force while strangulating anybody. 15. To substantiate the fact that the deceased was strangulated by the accused and during struggle by the deceased, deceased has caused some injuries to the accused. The prosecution placed reliance on the evidence of Dr. Thus, general cross-examination is carried out regarding the appearances after use of force while strangulating anybody. 15. To substantiate the fact that the deceased was strangulated by the accused and during struggle by the deceased, deceased has caused some injuries to the accused. The prosecution placed reliance on the evidence of Dr. Manisha Chavan examined vide Exhibit 75. She testified that she has examined the accused on 15/07/2012. On examination she found following injuries on his person which are as follows : 1. 3 cm Linear nail mark present, over left side shoulder. 2 cm Linear nail mark present, over left side shoulder. 3 cm Linear nail mark present, over left side shoulder. 2. 2 cm Linear nail mark present, over right side shoulder. 3 cm Linear nail mark present, over right side shoulder. 3. 1 cm Nail mark present on sternum region. 0.5 cm Nail mark present on sternum region. 4. 2 cm Nail marks present on left side chest region. 2 cm Nail marks present on left side chest region. 5. 1 cm Nail marks present below left side eye region. 16. She stated that accused has sustained the injuries on sternum. Sternum means the middle portion of chest. The above said injuries were on front portion of the body. Such kind of injury could have been occurred due to assault. These facts are confirmed during the crossexamination as PW-3 admitted that the injuries sustained to the injured on his accessible part of the body. She has not taken nail's sample of the injured. She denied that these types of injuries are possible due to itching if someone has used his own nails. She further denied that these injuries are possible if someone has scrubbed by his own nails. Thus, the defence of the accused that these injuries are self inflicted due to the scratching are denied by PW-3. 17. The defence of the accused is that the deceased died as she had committed suicide by hanging. The cross-examination was carried out by the defence to wash out the case of strangulation. Whether the deceased died due to manual strangulation or hanging is to be ascertained from material evidence on record. 18. As per the medical jurisprudence, there are differences between hanging and strangulation which have been highlighted by Modi in medical jurisprudence and toxicology. 19. The cross-examination was carried out by the defence to wash out the case of strangulation. Whether the deceased died due to manual strangulation or hanging is to be ascertained from material evidence on record. 18. As per the medical jurisprudence, there are differences between hanging and strangulation which have been highlighted by Modi in medical jurisprudence and toxicology. 19. As per medical jurisprudence, there are differences between hanging and strangulation as follows : 20. The throttling is defined as a form of strangulation effected by hand, and is therefore often referred to as manual strangulation. In case of strangulation, autopsy appearances may be divided into external appearances, injuries on the neck and, internal appearances. The extent and character of these signs will depend in large measure upon the pace and course of the asphyxial process. Signs of asphyxia may be very slight if death has supervened quickly from cardiac inhibition due to pressure on carotid sinus or vagus nerve. When the constricting force has been considerable, the signs are well marked. In addition, tongue may be bruised, bitten by teeth, and protruding. There may be injuries on the fact, chest, etc, indicating a struggle. The face and eyes may show multiple petechial haemorrhages. The situation and extent of bruised area on neck will depend upon the relative position of the assailant and victim, manner of grasping the neck, and amount of pressure exercised on the throat. The bruises (ecchymoses) are often found on the front or sides of the neck, chiefly about the larynx, and above it. The conformation of neck injuries indicate the way in which the hands have been applied to the neck. When only one hand is used to throttle, there may be a single bruise on one side due to pressure of the thumb and obliquely directed multiple bruises, one below the other, on the opposite side, due to pressure of finger pads or finger tips. Their shape may be oval or round depending upon the size of the finger tips but continued bleeding into the contused area usually increases the size, merging the bruises together. When both hands are used, the bruising pattern depends upon the relative position of thumbs and fingers, and the degree of pressure applied to the throat. Strangulation is defined as a form of violent asphyxia caused by constricting the neck by some means other than body weight. When both hands are used, the bruising pattern depends upon the relative position of thumbs and fingers, and the degree of pressure applied to the throat. Strangulation is defined as a form of violent asphyxia caused by constricting the neck by some means other than body weight. The means used may be a ligature, the hand (throttling), the elbow (mugging or choke-hold), or some hard object, such as a stick. In ligature strangulation, injuries to deeper tissues of neck are more common than in hanging, as a result of considerable force which is used. Homicidal strangulation is a common form of murder. In fact, strangling should be assumed to be homicidal until the contrary is proven to be more likely under circumstances. A suspicion of homicide should arise when knot is tied on the back of neck, mouth is gagged, limbs are tied, other injuries are found on the body, and signs of struggle are present. Homicidal strangulation may be committed with such silence that even persons in close vicinity may not be aware of the act since sudden and violent compression of windpipe renders a person powerless to raise an alarm or call for assistance. 21. In the light of above conditions laid down in Medical jurisprudence, it is to be ascertained whether the death of the deceased is caused by strangulation or hanging. 22. In case of hanging, usually ligature is found in position, above thyroid cartilage, mark incomplete, directed obliquely upward with a gap indicating position of the knot with no damage to the skin in the gap. Whereas, in case of strangulation, ligature may not be with the body but when found, usually completely encircles the neck horizontally below thyroid cartilage. There may be more than one turn of ligature and there is always some damage to skin underneath. 23. Admittedly, the entire case of the prosecution is based on the circumstantial evidence. The law is settled regarding the circumstantial evidence that : (i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. (ii) Though circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused. (iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (ii) Though circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused. (iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of a guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence. 24. According to Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum of probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted". 25. In the present case, prosecution mainly relied upon the circumstances that : (i) Accused No.1 was harassing deceased Surekha under the influence of liquor and she was found dead in her bedroom which was shared by her along with accused No.1. (ii) As per the prosecution case, prior to the incident deceased has informed to her brother and sister and expressed her apprehension regarding her insecurity in the house. (iii) Injuries are found on the person of the accused. (iv) Though accused raised the defence that the deceased died due to the suicidal death however, scene of crime nowhere indicates that the deceased had committed suicide. (v) Accused failed to establish that he suffered the injuries which are self inflicted or while working in the field. (iii) Injuries are found on the person of the accused. (iv) Though accused raised the defence that the deceased died due to the suicidal death however, scene of crime nowhere indicates that the deceased had committed suicide. (v) Accused failed to establish that he suffered the injuries which are self inflicted or while working in the field. (vi) Accused failed to explain the circumstances in which death of the deceased is occurred when dead body of the deceased was found in the bed room. 26. To prove the alleged circumstances regarding the alleged ill treatment at the hands of the accused and in-laws the implicit reliance was placed on the evidence of PW-1 - Sudhir Pandurangji Bele who is the brother of the deceased and PW-2 - Pushpa Gajananrao Wankhade. The evidence of both these witnesses shows that deceased was ill-treated by the accused and his parents for demand of Rs.50, 000.00 and for the ornaments of the deceased. 27. As per the evidence of PW-1 on 13/07/2012 he received a telephonic call from his sister i.e. deceased and she expressed the apprehension to her life at the hands of the accused and on 14/07/2012 he received a telephonic call that the deceased has committed suicide. Both the witnesses are cross-examined at length. But their evidence regarding the demand is vague in nature. No time, place was narrated by both the witnesses regarding the demand of money by the accused and his parents. Even the evidence regarding the fact that the deceased was assaulted by the accused No.1 on the instigation of his parents and she was admitted in Dr. Punjabrao Deshmukh Medical College and Hospital, Amravati is not proved by the prosecution by adducing relevant documents. The evidence of both these witnesses that PW-1 has received a phone call of deceased on earlier day of the incident is also not supported by the prosecution. 28. Prosecution has failed to adduce any evidence by examining Nodal Officer or phone call record by placing said record. Thus, the evidence of prosecution witnesses regarding the ill-treatment at the hands of the accused is vague in nature and not supported by any independent evidence. The learned trial Court had rightly discarded the evidence of these witnesses regarding the ill-treatment and acquitted the co-accused who are the parents of the deceased. Thus, the evidence of prosecution witnesses regarding the ill-treatment at the hands of the accused is vague in nature and not supported by any independent evidence. The learned trial Court had rightly discarded the evidence of these witnesses regarding the ill-treatment and acquitted the co-accused who are the parents of the deceased. Therefore, the only question remain regarding the death of the deceased in the matrimonial house. The prosecution has come with a case that deceased died in a matrimonial house when she was residing along with the present appellant/accused and the dead body was found in the bedroom. It is attempted to bring on record by the defence that the deceased has committed suicide by hanging herself by latching the door from inside. She put the steel container on bed and by wrapping the dupatta around her neck hanged herself. It is the defence of the accused that after hearing noise of falling of the said steel container they rushed towards the bedroom and removed her from the hanging position and removed her to the hospital but she succumbed to the death. The evidence regarding the spot panchnama shows that the steel container was shown kept in order in the bedroom. There were no signs that said container was used by the deceased by keeping it on her bed. Admittedly, the dupatta was found lying on the bed but nothing is on record to show that the deceased herself has wrapped the said dupatta and hang herself and while removing her, the family members removed the said steel container and kept in order and also removed the dupatta and kept it on bed. It is highly improbable and unacceptable that after noting the said incident, the family members would keep the steel container in order by keeping it at one corner and also will remove the dupatta from the hook and keep it on the bedroom. The medical evidence which is on record sufficiently shows that the deceased died due to the strangulation. 29. The evidence of PW-4 - Medical Officer deposed that the injuries which were found on the person of the deceased were antemortem. The injuries were found below right collar bone. Such injuries are possible due to strangulation by hand. He clarified that imprints means marks of fingers of hand. 29. The evidence of PW-4 - Medical Officer deposed that the injuries which were found on the person of the deceased were antemortem. The injuries were found below right collar bone. Such injuries are possible due to strangulation by hand. He clarified that imprints means marks of fingers of hand. The imprint abrasions are possible because of single handed compression or due to the pressure over particular part. If there is pressure below thyroid cartilage, then it may be possible. Below thyroid cartilage, there is wind pipe, which is also known as trachea. He explained that the death occurred due to cardio respiratory arrest due to strangulation and final out come was reserved for chemical analysis however, after chemical analysis no poison or any stupefying substance was detected during analysis. In spite of the fact, the accused was present in the house he failed to furnish any explanation as under what circumstances his wife was found dead. In the present case, the learned defence Counsel had elicited various admissions during the cross-examination to discredit the evidence regarding the cause of death of the deceased. On reappreciation of the evidence on record, it appears that it is attempted to bring on record that the Medical Officer had not observed that hyoid bone was fractured or ruptured or it was intact. He also admitted that the position of larynx and trachea, whether it was fractured or not it also not mentioned. 30. Hon'ble Apex Court in the case of Ponnusamy Vs. Tamil Nadu AIR 2008 SC 2110 has observed that : "It is true that the autopsy surgeon, PW-17, did not find any fracture on the hyoid bone. Existence of such a fracture leads to a conclusive proof of strangulation but absence thereof does not prove contra. In Taylor's Principles and Practice of Medical Jurisprudence, 13 th Edition, pp. 307-08, it is stated :- "The hyoid bone is 'U' shaped and composed of five parts : the body, two greater and two lesser horns. It is relatively protected, lying at the root of the tongue where the body is difficult to feel. The greater horn, which can be felt more easily, lies behind the front part of the strip muscles (sternomastoid), 3 cm below the angle of the lower jaw and 1.5 cm from the midline. The bone ossifies from six centres, a pair for the body and one for each horn. The greater horn, which can be felt more easily, lies behind the front part of the strip muscles (sternomastoid), 3 cm below the angle of the lower jaw and 1.5 cm from the midline. The bone ossifies from six centres, a pair for the body and one for each horn. The greater horns are, in early life, connected to the body by cartilage but after middle life they are usually united by bone. The lesser horns are situated close to the junction of the greater horns in the body. They are connected to the body of the bone by fibrous tissue and occasionally to the greater horns by synovial joints which usually persist throughout life but occasionally become ankylosed." It is further observed by the Hon'ble Apex Court in the said judgment that : "our own findings suggest that although the hardening of the bone is related to age there can be considerable variation and elderly people sometimes show only slight ossification. From the above consideration of the anatomy it will be appreciated that while injuries to the body are unlikely, a grip high up on the neck may readily produce fractures of the greater horns. Sometimes it would appear that the local pressure from the thumb causes a fracture on one side only. While the amount of force in manual strangulation would often appear to be greatly in excess of that required to cause death, the application of such force, as evidenced by extensive external and soft tissue injuries, make it unusual to find fractures of the hyoid bone in a person under the age of 40 years. As stated, even in older people in which ossification is incomplete, considerable violence may leave this bone intact." It is further observed by the Hon'ble Apex Court in the said judgment that : "in 34 cases of manual strangulation the hyoid was fractured in 12 (35%) as compared with the classic paper of Gonzales who reported four fractures in 24 cases. The figures in strangulation by ligature show that the percentage of hyoid fractures was 13. Our own figures are similar to those of Green." 31. In the case of Ravirala Laxmaiah Vs. State of A.P. 2013 ALL MR (Cri) 2663 (S.C.) Hon'ble Apex Court has referred the Journal of Forensic Sciences, Vol. The figures in strangulation by ligature show that the percentage of hyoid fractures was 13. Our own figures are similar to those of Green." 31. In the case of Ravirala Laxmaiah Vs. State of A.P. 2013 ALL MR (Cri) 2663 (S.C.) Hon'ble Apex Court has referred the Journal of Forensic Sciences, Vol. 41 under the title - Fracture of the Hyoid Bone in Strangulation: Comparison of Fractured and Unfractured Hyoids from Victims of Strangulation, it is stated that : "The hyoid is the U-shaped bone of the neck that is fractured in one-third of all homicides by strangulation. On this basis, post-mortem detection of hyoid fracture is relevant to the diagnosis of strangulation. However, since many cases lack a hyoid fracture, the absence of this finding does not exclude strangulation as a cause of death. The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of the victim, nature of the instrument (ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone. We compared the case profiles and xeroradiographic appearance of the hyoids of 20 victims of homicidal strangulation with and without hyoid fracture (n = 10, each). The fractured hyoids occurred in older victims of strangulation (39 14 years) when compared to the victims with unfractured hyoids (30 10 years). The age dependency of hyoid fracture correlated with the degree of ossification or fusion of the hyoid synchondroses. The hyoid was fused in older victims of strangulation (41 12 years) whereas the unfused hyoids were found in the younger victims (28 10 years). In addition, the hyoid bone was ossified or fused in 70% of all fractured hyoids, but, only 30% of the unfractured hyoids were fused. The shape of the hyoid bone was also found to differentiate fractured and unfractured hyoids. Fractured hyoids were longer in the anterior-posterior plane and were more steeply sloping when compared with unfractured hyoids. These data indicate that hyoids of strangulation victims, with and without fracture, are distinguished by various indices of shape and rigidity. On this basis, it may be possible to explain why some victims of strangulation do not have fractured hyoid bones." 32. Shri Ghurde, learned Counsel for the defence vehemently submitted that PW-4 has admitted that he has not mentioned whether hyoid bone was fractured or not. On this basis, it may be possible to explain why some victims of strangulation do not have fractured hyoid bones." 32. Shri Ghurde, learned Counsel for the defence vehemently submitted that PW-4 has admitted that he has not mentioned whether hyoid bone was fractured or not. He gave a reference of medical jurisprudence and emphasized that hyoid bone of the thyroid cartilage not shown as a fractured though it is a case of strangulation. The cause of death given by the Medical Officer shows that the death of the deceased is due to strangulation. In view of the references given in the judgment of Ponnusamy (supra) and Ravirala Laxmaiah (supra) wherein difference between hanging and strangulation is discussed and the Hon'ble Apex Court held that a bare perusal of the opinion by itself does not lead to the conclusion that fracture of hyoid bone is must in all the cases. In view of the observation of the Hon'ble Apex Court, we have no hesitation to held that merely because hyoid bone is not observed as a fracture by the medical witness and that itself does not lead to the conclusion that the death is not due to strangulation. 33. It is established that the death of the deceased is caused in a matrimonial house in her bedroom. In such circumstances, accused who is the husband has to explain the said circumstances. As already observed that the defence has raised the defence that she had committed suicide but the defence is not supported by any other material to show that the deceased had committed suicide. It would be relevant at this juncture to examine some provisions of the Evidence Act governing burden of proof and some legal principles as held by the Hon'ble Apex Court. Sec. 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This is an exception to the general rule contend in Sec. 101 namely that burden is on the person who asserts a fact. The principle underlying Sec. 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the opposite party. 34. Learned Additional Public Prosecutor placed reliance on Javed Abdul Rajjaq Sheikh Vs. The principle underlying Sec. 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the opposite party. 34. Learned Additional Public Prosecutor placed reliance on Javed Abdul Rajjaq Sheikh Vs. State of Maharashtra (2019) 10 SCC 778 wherein also it is held that : "in case of hanging, fracture of larynx and trachea is very rare and that too it may be found in judicial hanging. On the other hand, fracture on larynx, trachea and hyoid bone indicates strangulation. In the said judgment Hon'ble Apex Court held that : "though it is true that the appellant took deceased to the hospital this does not implied that appellant was innocent. Having regard to the other evidence pointing it to be case of throttling. 35. He further relied upon Kalu alias Laxminarayan Vs. State of Madhya Pradesh (2019) 10 SCC 211 wherein it is held that : "the prosecution has been able to successfully establish a case for a homicidal death inside the house where the deceased resided with the appellant alone. Manner in which the deceased met a homicidal death in the matrimonial home, was a fact specifically and exclusive to his knowledge. It was not the case of appellant that there had been an intruder in the house at night. Once the prosecution established a prima facie case, appellant was obliged to furnish some explanation under Sec. 313, Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased." He submitted that no explanation is put forth by the accused. On the contrary, the injuries sustained by the accused points out that there was struggle by the deceased and while struggling she caused the injuries to the accused. The defence of the accused is that he sustained injuries which are self inflicted is denied by PW-3 - Dr. Manisha. 36. On the other hand, Shri Ghurde, learned Counsel placed reliance on Nagendra Sah Vs. The State of Bihar in Criminal Appeal No.1903/2019 decided on 14/09/2021. The facts of the cited case shows that the deceased and the appellant/accused were residing together at the time of death. Manisha. 36. On the other hand, Shri Ghurde, learned Counsel placed reliance on Nagendra Sah Vs. The State of Bihar in Criminal Appeal No.1903/2019 decided on 14/09/2021. The facts of the cited case shows that the deceased and the appellant/accused were residing together at the time of death. Deceased died on account of throttling of her neck. The burn injuries are undoubtedly ante post-mortem injuries. Hon'ble Apex Court in the said judgment held that Sec. 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference. It is further held by the Hon'ble Apex Court that when a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Sec. 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In the cited case the circumstances established by the prosecution was not sufficient to lead inference regarding the guilt of the appellant-accused. 37. He further relied upon Satish Nirankari Vs. State of Rajasthan (2017) 8 SCC 497 wherein also case was based on circumstantial evidence. Chain was not established. Attempt to commit suicide by appellant and deceased due to opposition to their love affair by consuming poison not successful. Deceased found to have committed suicide later by hanging herself. The facts of cited case are not identical with the present case. In the cited case, both the appellant and deceased decided to commit a suicide and she consumed poison. It is observed by the Hon'ble Apex Court that if appellant's intention was to commit murder, he would not have directed his brother - Ashok to call for deceased's parents, which he admittedly did. The appellant also consumed poison and was in hospital for 50 days. Thus, the circumstances and the chain of the circumstances not established. He further relied upon the judgment of this Court in the case of Nitin Digamber Kothawade Vs. The appellant also consumed poison and was in hospital for 50 days. Thus, the circumstances and the chain of the circumstances not established. He further relied upon the judgment of this Court in the case of Nitin Digamber Kothawade Vs. The State of Maharashtra in Criminal Appeal No.229/1997 decided on 16/04/2015 wherein also this Court disbelieved the evidence of the prosecution. As there is no sufficient and convincing evidence on record as to the cause of the alleged ill-treatment or the evidence relating to the actual harassment on the said cause. In the case in hand, admittedly, there is no eye witness of the occurrence of the incident and the case of the prosecution rest on circumstantial evidence. The principle based on circumstantial evidence is that the circumstances from which inference of guilt is sought to be drawn must cogently and firmly established that those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused that the circumstances taken cumulatively should form chain of circumstances so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. 38. In the present case, the accused is also facing the charge that he committed the murder of the deceased by strangulation. Admittedly, the evidence adduced by the prosecution is not sufficient to prove the ill-treatment however, the fact remains that the death of the deceased is occurred in the matrimonial house that is also in the bedroom. Admittedly, the alleged incident occurred in the matrimonial house of the deceased wherein the deceased was residing along with the accused, his parents and other three brothers. The alleged incident has occurred in the bedroom which is the private place of deceased and the accused. The death of the deceased occurred when the deceased was in the company of the accused. It is well settled that if an offence takes place inside the privacy of the house, in view of Sec. 106 of the Evidence Act, burden is on the accused to give an explanation regarding the fact which is especially within the knowledge of the accused. 39. It is well settled that if an offence takes place inside the privacy of the house, in view of Sec. 106 of the Evidence Act, burden is on the accused to give an explanation regarding the fact which is especially within the knowledge of the accused. 39. It is observed by the Honourable Apex Court in the case of Trimnukh Maroti Kirkan vs. State of Maharashtra, 2006 ALL MR (Cri) 3510 (SC), if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. The Honourable Apex held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The Honourable Apex Court also referred the decision in the case of Stirland Vs. Director of Public Prosecution (1944) 2 ALL ER 13 (HL) and observed that the law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Sec. 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The burden would be of a comparatively lighter character. In view of Sec. 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 40. In the present case, though the death has occurred in the house i.e. also in the bed room, the defence of the accused that she committed suicide by hanging herself is not supported by the panchnama. The spot panchnama nowhere shows that the deceased has put the steel container on bed and wrapped the dupatta and hang herself by hanging the said dupatta to the hook of the roof. As per the spot panchnama the steel container was found to be kept in order. It is difficult to accept that after the incident, the family members who had present in the house have kept the said steel container in order. The accused has admitted his presence in the house and also not disputed the nail mark injuries on his body. It becomes boundand duty of the accused to explain the circumstances under which the death of the victim was occurred. The defence has tried to explain the circumstances by saying that the deceased Surekha committed suicide by placing steel drum on bed and hanged herself by means of dupatta which was fixed on the hook of ceiling of their house. The steel drum fell down and its noise was heard by Meenatai Pinjarkar who raised alarm due to which their family members and said Meenatai went in room and immediately brought her down and then shifted her to hospital. However, the spot panchnama nowhere depict the above said picture as stated in their defence. The spot panchnama completely washes out the defence of the accused persons which is the additional link in the chain of circumstances as put up by the prosecution. 41. As observed by the Hon'ble Apex Court that false defence taken by the accused in the statement under Sec. 313 of the Cr.P.C. is an additional circumstance against the accused. The spot panchnama completely washes out the defence of the accused persons which is the additional link in the chain of circumstances as put up by the prosecution. 41. As observed by the Hon'ble Apex Court that false defence taken by the accused in the statement under Sec. 313 of the Cr.P.C. is an additional circumstance against the accused. From the scene of the offence and injury on the neck of the deceased which was horizontal in nature, only inference can be drawn that the deceased was strangulated. The Medical Officer deposed that imprint abrasion on the neck appears that of a marks of fingers of hand wherein such injuries are possible due to strangulation by hand. The evidence as corroborated by the inquest panchnama which indicates that the deceased was strangulated. The distinction between strangulation and throttling shows that strangulation is a defined as the compression of the neck by a force other than hanging. Ligature strangulation is a violent form of death which results from constricting the neck by means of ligature or by other means without suspending the body. When constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging. Having considered the conclusion in the postmortem and the deposition of the Medical Officer and analysed in the light of principles laid down in the light of Modi's medical jurisprudence and toxicology as well a the other evidence on record, the trial Court has noted that spot panchnama depict and falsifies the story of defence of hanging. The trial Court has concluded that the theory of hanging is uncompatible as the spot panchnama does not support the same. It is the case of the appellant/accused that the appellant took the deceased to the hospital but it is not sufficient to draw an inference that the appellant/accused was innocent. 42. As observed earlier that though the death has occurred in the house wherein the deceased and the accused along with other inmates were residing. It is the case of the appellant/accused that the appellant took the deceased to the hospital but it is not sufficient to draw an inference that the appellant/accused was innocent. 42. As observed earlier that though the death has occurred in the house wherein the deceased and the accused along with other inmates were residing. The alleged incident has taken place in the bed room which is the private place of the husband and wife, in such circumstances, it is the accused who has to explain in what circumstances the death of the deceased occurred. Where the question of burden of proof, where the facts are within the personal knowledge of the accused and the provision of Sec. 106 of Evidence Act comes into play. It is true that the guilt of the accused must be proved beyond all reasonable doubt. However, where the incident occurred inside the house in a secrecy, then after proving material facts a burden shifts on the accused to give an explanation regarding the nature and circumstances in which the death of the deceased has occurred. In a case based on circumstantial evidence, when no eye witnesses account is available, the another principle of law which must be kept in mind that when incriminating circumstances are put to the accused and the accused either offers an explanation which is found to be untrue or offers no explanation, the same becomes an additional link in the chain of circumstances to make it complete. By applying these principles, if evidence of the prosecution in the present case adduced is considered, the prosecution has proved that : (i) the death of the deceased had occurred in the matrimonial house i.e. in the bed room which is the private place of the deceased and the accused. (ii) The medical evidence shows that the death of the deceased is by strangulation and external injuries are found on her person for which the accused has not assigned any explanation. (iii) The facts which are exclusively within the knowledge of the accused that how the death of the deceased occurred not explained. (iv) The injuries found on the person of the accused which according to the accused are self inflicted or occurred or caused while working in the agricultural field is denied by the medical officer and no explanation is put forth by the accused when the said injuries are caused. (iv) The injuries found on the person of the accused which according to the accused are self inflicted or occurred or caused while working in the agricultural field is denied by the medical officer and no explanation is put forth by the accused when the said injuries are caused. (v) The facts which are exclusively within the knowledge of the accused that how the death of the deceased occurred not explained. 43. In the earlier part of the judgment, the evidence is discussed in detailed. The evidence on record shows that there is no reason for the deceased to commit suicide. The death of the deceased was occurred in a matrimonial house which is homicidal one. The medical evidence shows that it is due to the manual strangulation. The accused in his statement did not offer any explanation as to how she received the injuries when her death is caused in the bed room. The injuries on his person are also not explained. 44. As circumstances enumerated above unerringly points out that it is the accused who is the author of the crime and this inference is in the light of the circumstances which are inconsistent with his innocence thus, appeal has no merits and liable to be dismissed. 45. In view of the above observations, the appeal stands dismissed.