JUDGMENT [ENTITY], J.
1. This judgment shall dispose of two appeals being [CASE NUMBER] and [CASE NUMBER]. Accused [ENTITY], his father [ENTITY] and mother Smt. [ENTITY] were all charged under [SECTION] read with [SECTION] of the [ACT] (hereinafter referred to as [ACT]) for having committed the murder of [ENTITY] wife of [ENTITY] at village Saglayana on the night intervening 11.6.2001 and 12.6.2001. In the alternative they were all charged with having harassed and maltreated deceased [ENTITY] on account of demand of dowry and treated her with cruelty and hence committed art offence under [SECTION], [ACT]. Thirdly all the accused were charged with having committed an offence under [SECTION], [ACT] as they had treated the deceased. [ENTITY] with cruelty on account of demand of dowry soon before her unnatural death on the night intervening 11.6.2001 and 12.6.2001.
2. The learned Sessions Judge, [ENTITY] vide his judgment dated 24.7.2002 in [CASE NUMBER] has convicted accused [ENTITY] for the offence under [SECTION], [ACT] and sentenced him to 3 years imprisonment and fine of Rs. 5,000/-. In default of payment of fine the accused [ENTITY] has been directed to undergo simple imprisonment for six months. [ENTITY] has also been convicted under [SECTION] and sentenced to undergo ten years simple imprisonment and fine of Rs. 20,000/-. In default of payment of fine the accused has been directed to undergo simple imprisonment for one year. [ENTITY] has been acquitted for the offence under [SECTION], [ACT]. Accused [ENTITY] and [ENTITY] have been acquitted with regard to all the charges.
3. [CASE NUMBER] has been filed by [ENTITY] against his conviction and sentence and [CASE NUMBER] has been filed by the State against the acquittal of all the three accused.
4. The facts necessary for decision of these appeals are that deceased [ENTITY] was married to accused [ENTITY] on 1st August, 2000. Both of them were living together along with [ENTITY] and [ENTITY] and other family members in one house in Village Saglayana, P.O. Sairi, Tehsil Kandaghat, District [ENTITY], H.P. It is alleged by the prosecution that the accused had been treating the deceased with cruelty and had been repeatedly making demands of dowry from her. The mother, sister and other relatives of the deceased have appeared as prosecution witnesses to support this version. It is the case of the prosecution that the deceased was done to death on the night intervening 11.6.2001 and 12.6.2001 by all the accused in furtherance of common intention.
5. The first question to be decided is whether the death of deceased [ENTITY] was a homicidal death or not? In case it is not a homicidal death then obviously no offence under [SECTION], [ACT] has been committed. However, if it is found that the death of Smt. [ENTITY] is homicidal then the next question will arise, who caused her death? To decide this question it is necessary to consider the medical evidence.
6. PW 13 Dr. [ENTITY] has stated that she is posted as Medical Officer, CHC Sairi. On 12.6.2001 the dead body of Smt. [ENTITY] was brought to her at 8.50 a.m. When she examined the dead body she found that there was a strangulation mark around the neck of the deceased. She has recorded in Ext. PW that [ENTITY] a 20 year old female was brought dead and that she administered injection of hydrocortisone and adrenaline. She found a mark of strangulation (ligature) on the neck of the deceased and therefore referred the matter to IGMC, Shimla for further investigation. She also sent an intimation, Ext. PX, to the Sub-inspector, Police Chowki, Sairi, District [ENTITY], in this regard.
7. PW 15 Dr. [ENTITY] is Associate Professor, Department of Forensic Medicine, Dr. Rajindra Prasad Medical College, Kangra. He conducted the post mortem on the body of the deceased on 13.6.2001. His report is Ext. PZ. He conducted the post mortem along with Dr. [ENTITY], Registrar of Forensic Medicine. In his statement in Court he has Repeated the salient features of his report. Since this report is a vital and important piece of evidence to decide the question whether the deceased was strangulated or committed suicide by hanging herself, the relevant portions of the Post Mortem report Ex. PZ are being reproduced hereunder:
"External appearance.
Dead body of a young female aged around 25 years wheatish complexion length 5'-4" weight around 60 kgs. Hypostasis on the back and dependent parts of the body (more marked on the back) dark purlish blue, fixed. Rigor mortis passed away from all joints except the smaller joints of fingers. Body cooled down to room temperature externally and internally. Face congested, abdomen distended bloating of facial features present. Foul smell present. Blisters (post mortem) present at places marveling present at groin and axilla.
List of ante-mortem external injuries:
1. Prolapse of the vagina seen. Eggs of house fly present on the neck left side. Conjuctiva effused, greenish discolouration present on the abdomen. Blood oozing out from mouth and both nostrils. Cynosis present on lips, finger nails.
Ante mortem external injuries.
1. One bigger and one smaller abrasions present on the front of chest on the area of 8 cm x 3 cm just above and in between the two breasts, brown in colour with underlying contusion.
2. A ligature mark semi circular, incomplete high up in the neck present on the left side of the neck, oblique midline of the neck to midline of the back 25 cm x 1 cm (superficial) dimension. No peculiar pattern of ligature material seen. No impression of knot seen. Ligature mark consistent with the ligature material.
3. An abrasion with contusion 3 cm x 2 cm size present below angle of mandible right side dark brown in colour in the line of ligature mark.
4. No dissection of the neck the ligature mark was brownish har parchmentized marks not well defined, eccymosis in subcutaneous tissue and muscles of neck seen.
5. No evidence dribbling of saliva in the form of dried stain seen on cheeks/neck.
6. Ligature material (a maroon coloured [ENTITY]), brought by police separately in two pieces with no stain marks of blood/semen/saliva on it. With no intact know on either end. It is made up of synthetic material slightly coarse with Gota all around. With no wrinkling and no stretching effect seen. Two pieces of Chunni piece A-122 cm long and piece B 95 cm long having multiple old tears which were marked and attested and resealed.
II CRANIUM AND SPINAL CORD Scalp and vertebrae Normal. Spinal cord No opened as there was no Evidence of injury/pathology. No fracture of hyoid, laryngeal cartilage and tracheal ring, seen. III THORAX 1. Walls, ribs and cartilages Injury on the chest as already described. No fracture seen. 2. Pleurae Congested. 3. Larynx and Mucous membrance reddish brown congested. IV ABDOMEN
4. Stomach contains bulky, semi digested food material (app. 300 ml.) with no peculiar smell mucous membrance noe congested hence viscera preservation's not done.
In our opinion the death took place due to asphyxia secondary to ligature strangulation homicidal in nature.
The time interval between injury and death was immediate (1-2 minutes) and time between death and post-mortem was 36 hours "
8. In his statement the Doctor has clearly opined that the cause of death was strangulation and in no case the death has occurred by hanging. He has also stated that injury No. 3 on the angle of mandible is possible during the process of ligature strangulation alone. He has also opined that the ligature material like Dupatta Ext. P2 could not cause the injury on the front of the chest. He has further stated that the presence of semi-digested material in the stomach suggest that the death has occurred within 2/3 hours after the deceased had taken a full meal. According to him the death has occurred in the night intervening 11th and 12th June, 2001, and after having consumed dinner on 11.6.2001. The post mortem of the deceased started on 13.6.2004 at 2.15 p.m. In the said report it is stated that the time between injury and death was immediate i.e. between 1 to 2 minutes and between death and post mortem around 36 hours. Dr. [ENTITY] has been cross-examined at great length. He has denied the suggestion that the post mortem report Ext. PZ is not in consonance with his rough notes Ext. CQ. He also denied the suggestion that he had prepared the post mortem report Ext. P2 under political pressure. He denied the suggestion that no food material was present in the stomach. He has further denied the suggestion that the injuries on the chest had occurred due to eccymosis. He also stated these injuries could not have been caused while reviving the respiration of the deceased. He has stated that he is a teacher of Forensic Medicine and he has dealt with many cases and at least 50 cases of death where distinction between homicidal and suicidal death was to be drawn.
9. Mr. [ENTITY], learned Counsel appearing on behalf of the accused has contended that the evidence of Dr. [ENTITY] (PW 15) cannot be relied upon. He submits that evidence of expert is only an opinion and conviction cannot be based on the evidence of such a witness and that if the expert has not given the reasons and the factual matrix on the basis of which his opinion is based, the same is of no use and should be discarded. He has relied upon the following judgments of the Supreme Court to support his contention.
10. In [PRECEDENT], the Apex Court has held as follows:
"The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, Court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the Court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject."
11. Similarly in [PRECEDENT], the Apex Court held as under:
"An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions."
12. In [PRECEDENT], the Apex Court held as follows:
"Though opinions expressed in text books by specialist authors may be of considerable assistance and importance for the Court in arriving at the truth, cannot always be treated or viewed to be either conclusive or final as to what such author says to deprive even a Court of Law to come to an appropriate conclusion of its own on the peculiar facts proved in a given case. In substance, though such views may have persuasive value cannot always be considered to be authoritatively binding, even to dispense with the actual proof otherwise reasonably required of the guilt of the accused in a given case. Such opinions cannot be elevated to or placed on higher pedestal than the opinion of an expert examined in Court and the weight ordinarily to which it may be entitled to or deserves to be given."
13. In our opinion these judgments do not further the case of the accused. What is required of the expert witness such as the Doctor in the present case is to give an opinion based on reasoning. He is also supposed to give all the facts which lead to his forming the opinion. It also has to be proved that the witness is an expert in the field. In the present case it has been proved that PW 15 Dr. [ENTITY] is a Professor of Forensic Medicine. He has in his statement clearly stated that he conducted more than 50 cases where he had to judge the difference between homicide and suicide. He can definitely be classified as an expert in his field. For coming to his opinion that the death is homicidal and not suicidal, he has given a number of reasons. The accused have failed to point out how the reasoning given by him is bereft of objectivity. In fact, we have compared the various grounds given by the expert with the judicially accepted Treatise of Medical Jurisprudence i.e. [ENTITY]'s Medical Jurisprudence and Toxicology, 22nd Edition. [SECTION] of this treatise deals with death from Asphyxia and the author has discussed various medico legal questions and different cases where the question was whether death is caused by hanging or by strangulation and the difference between them. At page 270 of this book he has given 16 main differences between hanging and strangulation in a tabular form. We find from the post mortem report that most of the reasons given for strangulation are found in this case such as, (a) the face being congested, (b) no evidence of saliva, (c) neck not stretched and elongated, (d) blood was oozing out from the mouth and both nose, (e) abrasions present on the front of the chest, (f) abrasions around edges of the ligature mark, (g) ecchymoses of the subcutaneous tissues under ligature mark, and (h) the ligature mark was similar to the ligature material. In the light of this evidence it cannot be said that the evidence of the expert is without any basis.
14. The next question is with regard to the timing of the death. The expert witness has clearly stated that the death occurred about 36 hours before the post mortem which was performed on 13.6.2001 at about 2.15 p.m. Even if this estimate is taken to be not exact the difference would be at the most two hours on either side. This would mean that the death occurred on the night intervening 11/12 June, 2001 somewhere between 12.15 midnight to about 4.15 in the morning. This is supported by the evidence that the stomach contained bulky semi digested food and as per the Doctor the death has occurred about 2-3 hours after the consumption of food meal. This also supports the version that death occurred some where around or after midnight. Therefore, in our opinion there can be no manner of doubt that the death in question was homicidal and took place between midnight and 4 a.m. on the night intervening 11/12 June, 2001.
15. The accused have examined one [ENTITY] who states that on 12.6.2001 she had gone to the house of accused to take milk and [ENTITY] deceased had given her the milk. Obviously, the intention of producing this witness is to show that deceased [ENTITY] was alive on the morning of 12.6.2001. If that be so, this would belie and falsify the medical evidence and the case of the prosecution. However, the statement of this witness is not at all reliable. She admits that the distance between her house and the house of the accused is 2/3 minutes on foot. She states that she was not called when [ENTITY] died and she only came to know about the death of [ENTITY] at about 11 a.m. on 12.6.2001. This means that even the neighbours did not know about the death of [ENTITY] which had occurred, according to the accused, some time between 7 and 8 a.m. in the morning. When a hanging takes place in a small village it is but natural that the neighbours would come to know about it. The statement of [ENTITY] does not inspire any confidence whatsoever. Therefore relying on the medical evidence we hold that the death occurred between midnight and 4 a.m. on the night intervening 11th and 12th June, 2001.
16. Now comes the most important question whether it is all the accused or any of them who had caused the death of the deceased. In this behalf it would be pertinent to refer to the inspection report of the Doctor who visited the spot on 14.6.2001. He has specifically stated that there was one ceiling hook in the middle of the room which was about 8 ft. from the floor and 6 1/2 ft. from the top of the bed. The said ceiling hook is made of iron. There were no strain marks on the hook and no cloth fibers on it. It is this hook from which the deceased is alleged to have committed suicide by hanging herself with a dupatta. It would be pertinent to quote the explanation given by accused [ENTITY] when the incriminating circumstances were put to him in his statement under [SECTION], [ACT] In answer to Question No. 26 he has given his explanation, which reads thus:
"This is a false case framed against me. On 12.6.2001 the deceased had a small tiff with me because of her insistence to go to her parents house at Nalagarh despite being her pregnancy. I advised that it would not be proper to go to such a distance at this stage of pregnancy but she still insisted. She was a sensitive lady. In routine I went out from my house and she went inside the room. After some time when I came back, I knocked the door of the room but no response came. As a result we broken the door by giving it kick with leg. On entering the room we found that [ENTITY] had hug herself by the ceiling fan. The dupatta was used for hanging purpose by the deceased was cut by me with darat. Thereafter I brought her to hospital."
17. Therefore, the clear case of the accused [ENTITY] is that on the morning of 12.6.2001 the deceased had a tiff with him since he did not permit her to go to Nalagarh as she was pregnant. He states that thereafter he went out and when he came back he knocked at the door but there was no response. Thereafter, he kicked upon the door and found that [ENTITY] had hung herself from by the ceiling fan. The dupatta used for hanging was cut by the said accused and thereafter [ENTITY] was taken to Hospital. The accused does not deny his presence.
18. The dupatta in question was taken into possession by the police in the presence of [ENTITY] (PW 5). Both pieces were taken into possession vide memo Ext. PB. PW 5 has clearly stated that the dupatta Ext. P2 was in two pieces and has identified the same when the parcel was opened in Court. The relevant portion of the memo Ex. PB reads as follows:
"In presence of under named witnesses, one red coloured '[ENTITY]' (dupatta) with applique (Gota) was found lying on the spot i.e. inside the residential room of Shri [ENTITY], son of Shri [ENTITY], caste [ENTITY], resident of village - Saklayana, Police Station and Tehsil Kandaghat, District [ENTITY]. It (the [ENTITY]) was recovered in two pieces, which was cut from its centre and one of its side was bearing a knot. On measurement it's ([ENTITY]'s) one piece was found 133 cms. and the other one 103 centimetres. 'A' it is stated to had been used by the deceased for the commission of suicide. 'A' this chuni was picked up from the spot and closed in a cloth parcel, which (the parcel) has been sealed with seal bearing inscription 's' "
19. It would be pertinent to point out that this witness has not been subjected to any cross- examination whatsoever. Therefore, the accused has accepted the statement of the witness and the facts that the two pieces of dupatta were recovered. The fact that the dupatta was recovered in two pieces belies the story of the accused that the said dupatta had been used by the deceased to hang herself. In case the deceased would have hung herself by using the dupatta she would have tied the same to the fan or the hook. Even assuming that her husband would have cut the dupatta into two pieces then there was no need to untie and remove that half of the dupatta which was tied to the hook. In that event one half would be around the neck of the deceased and the other half would remain tied to the hook. Why would a person remove the other half of the dupatta has not been explained to us? When a person is in hurry and cuts the ligature into two to take his wife to hospital he would not take the trouble of removing the other half of the ligature from the ceiling fan or hook. As stated by the Doctor no fibers were found on the hook. Therefore, the story put up by the accused [ENTITY] that the deceased had hung herself and he cut the dupatta into two pieces appears to be totally false.
20. Admittedly, the house in which the death took place consists of 5-6 rooms. It is but natural that the husband and wife who were married just about a year ago would be sleeping together in one room. The death has occurred after midnight. The accused [ENTITY] does not deny his presence, therefore, it can reasonably be presumed that at the time of the death accused [ENTITY] alone was present alongwith the deceased.
21. Mr. [ENTITY], relied upon a case titled [PRECEDENT], and urges that many persons were living in the house. According to him, as per the Pariwar register copy of which is Ext. PO as many as 11 persons other than the deceased were living in the house, therefore, it cannot be said that any of the accused alone or all of them together had committed the murder. We do not feel that this authority is applicable to the present case since we have come to the conclusion that the death occurred between midnight and 4 a.m. and at that time it was only the husband and wife who were expected to be sleeping together in one room. Nobody else could be sleeping in that room. Therefore, the needle of suspicion points at the husband, accused [ENTITY] alone.
22. Mr. [ENTITY], learned Counsel has relied upon a case titled [PRECEDENT], and submits that throttling could not have been done by the accused [ENTITY] alone and in the absence of any evidence to the contrary there should be a presumption that he could not throttle her. In our opinion, this judgment does not help the accused because this authority does not lay down a universal rule that one person cannot strangulate another.
23. Mr. [ENTITY] has relied upon [PRECEDENT], and submits that no motive has been proved and the circumstantial case in the present case is not sufficient to hold that it is the accused alone and none else who committed the crime. He submits that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
24. In [PRECEDENT], while dealing with the law of circumstantial evidence the Supreme Court laid down the guidelines for convicting the accused on the basis of circumstantial evidence in paras 152 and 153 which reads as follows:
"125. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in [PRECEDENT], where the following observations were made:
"Certainly it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."
Mr. [ENTITY], learned Counsel has submitted that appeal of acquittal should not be disturbed unless the findings of the Courts below are perverse just because the different view can be taken is not a ground for setting aside the order of acquittal. He has relied upon [PRECEDENT], [PRECEDENT], (supra), in this regard.
25. The law with regard to the jurisdiction of the Appellate Court has been succinctly laid down by the Supreme Court in [PRECEDENT] as under:
"12. There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. As a matter of fact, in an appeal against acquittal, the High Court as the Court of first appeal is obligated to go into greater detail of the evidence to see whether any miscarriage has resulted from the order of acquittal, though has to act with great circumspection and utmost care before ordering the reversal of an acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the wed of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is t o interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is, clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference."
26. In the present case the approach of the Trial Court to the case in hand is rather unusual. Even after taking into consideration the evidence of the Doctor he has not decided whether the death is homicidal or not. The main point which appears to have swayed the Trial Court was that none of the witnesses stated that the deceased was murdered by the accused. For this reason and because of the fact that no foot print or fingerprint of the accused had been taken he acquitted the accused of the offence of murder. He has dealt with no other evidence. The approach to say the least was absolutely perverse and without any reasoning and therefore we have re-appreciated the entire evidence. When there are no eyewitnesses, it is, but obvious, that nobody can state on oath that the accused has murdered the deceased. When the husband and other family members are the accused the non-lifting of finger prints or footprints is meaningless. In a family home the fingerprints and footprints of all the family members will always be found. Therefore we feel that this is a fit case where the evidence should be appreciated in its proper perspective.
27. Mr. [ENTITY] also relied upon [PRECEDENT], [PRECEDENT], and [PRECEDENT]. In our opinion these judgments do not apply to the facts of the present case. He also relied upon [PRECEDENT]. In our opinion this judgment is not applicable since in that case on the basis of post mortem report the cause of the death itself was held to be surrounded by mystery.
28. In the case in hand on the basis of the evidence we are convinced that the deceased died of homicidal death. On the basis of the medical evidence, which we have no reasons to disbelieve, we have also come to the conclusion that the death occurred some times little after mid-night and before 4 a.m. on the night intervening 11th and 12th June, 2001. At that time other than the husband [ENTITY] nobody else was expected to be with her. Further the husband has given a totally false explanation that the deceased was alive on the morning of 12th June, 2001. This statement is false. Similarly his statement that she hung herself is also false.
29. It may be true that the prosecution has failed to show what was the direct cause or motive for the accused [ENTITY] to have murdered his wife. However, what can be inferred from the evidence is that the relations between the husband and wife were getting strained as per the evidence of her relatives. What exactly was the motive for the murder cannot be deciphered. However, there is no principle or rule of law that where prosecution fails to prove motive for the offence it must necessarily result in acquittal of accused. In [PRECEDENT], it has been held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it, as it is almost an impossibility for the prosecution to unreveal the full dimension of the mental disposition of an offender towards the person whom he offended.
30. What was going on in the mind of the accused cannot be proved by any evidence. The reasons can only be deciphered from the circumstances surrounding the case. Motive is the emotion which impels a man to do a particular act and such impelling cause need not necessarily be proportionately grave to do grave crimes. Many murders have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. The absence of any evidence on the point of motive cannot always have such an impact as to discard the other evidence on record which establishes the guilt of the accused, (see [PRECEDENT]).
31. Mr. [ENTITY], learned Additional Advocate General has vehemently contended that the death occurred in the house where all the accused used to live jointly and, therefore, it should be presumed that the mother-in-law and father-in-law were also responsible for the death of deceased. We do not find any force in this submission. The conviction in a criminal case has to be based on legal evidence and cannot be based on surmises and conjectures and we find no reason to interfere with the order of acquittal passed in favour of [ENTITY] and [ENTITY] by the learned Trial Court. Mr. [ENTITY], has relied upon [PRECEDENT]; [PRECEDENT]; [PRECEDENT].
32. There may not be direct evidence against the accused [ENTITY]. However, the following circumstances in our opinion are proved beyond doubt:
(A) That the deceased was murdered by strangulation;
(B) That the murder of the deceased took place somewhere between midnight and 4 a.m. on the night intervening 11th and 12th June, 2001, (C) That at that that it was the accused [ENTITY] alone and none else who could be expected to be with her, (D) That the accused had come out with the false explanation that the deceased committed suicide by hanging and that she was alive on the morning of 12th June, 2001.
33. In our view, these circumstances by themselves are sufficient circumstances to come to the conclusion that it is the accused alone and none else who could have committed the murder of [ENTITY] deceased. The conduct of the accused in coming out with a false explanation is a telltale pointer that points unerringly towards him. In case she was murdered by someone else the husband could have clearly said so. We are, therefore, convinced that it was accused [ENTITY] alone, and none else, who committed the murder of his wife deceased [ENTITY] on the night intervening 11th and 12th of June, 2001.
34. Now the other question to be decided is whether any demand of dowry was made and whether the deceased had been subjected to cruelty or harassment and whether there was a demand for dowry by any of the accused which led to her unnatural death.
35. PW 1 [ENTITY] is the mother of the deceased. She has stated that till the marriage there was no demand of dowry. After the marriage the accused started demanding dowry in the shape of colour TV, Washing Machine etc. and maltreating the deceased. She also alleges that she was informed by her daughter that the deceased was having illicit relations with one [ENTITY]. She states that [ENTITY] had demanded Rs. 10,000/- from her but she only gave him Rs. 5,000/- about 10-15 days before the death of the deceased and [ENTITY] had taken documents of their land for effecting the sale thereof. She has admitted in cross-examination that she has no letter from the deceased with regard to the misconduct of the accused. No complaint was made by her or her daughter to any Panchayat, Court or any other Officer. She has admitted that the documents she had given to the accused [ENTITY] were the photostat copies of the Kishan Book and [ENTITY] Ex PC to PJ.
36. PW 2 [ENTITY] also states that in his presence, 10-15 days before death of [ENTITY], she had come with her husband accused [ENTITY] and demanded some money and that PW 1 had paid Rs. 5,000/- to him. The evidence of PW 3 is not really material except that he also says that he was informed by the deceased that her in-laws were demanding dowry.
37. PW 14 [ENTITY], sister of the deceased also stated that her sister had been complaining that the accused were demanding dowry in the form of colour TV etc. She has also stated that her sister told her that accused [ENTITY] was having an affair with one [ENTITY] and she had produced letters Mark A and B allegedly addressed by [ENTITY] to [ENTITY]. She also states that about a month before the death of deceased accused [ENTITY] had demanded Rs. 10,000/- and her mother had paid Rs. 5,000/- to [ENTITY].
38. From the evidence on record it is clear that there is virtually no evidence to connect accused [ENTITY] and [ENTITY] with the alleged demand of dowry. In fact none of the witnesses has even named them or stated that they have asked for dowry in their presence. There is no other contemporaneous record or evidence to connect them with the demand of dowry. No case is made out against them for demand, of dowry. Even with regard to [ENTITY] accused, though it has come on record that he had asked for some money but it cannot be said that the said amount was demanded only in relation to the marriage. In fact from the evidence what emerges is that after the death of the father of the deceased his property was mutated in favour of his two children and widow. It may be, that the accused was demanding the share of his wife in this land, and, therefore, copies of the [ENTITY] and a Kishan Pass Book were taken by him.
39. The evidence on the aspect of demand of dowry is not at all clear and it cannot be said that accused [ENTITY] was in fact demanding dowry. The prosecution has tried to build up a case that the accused had taken away the copies of [ENTITY] and Kisan Pass Book of his mother-in-law to sell her land. This version cannot be believed. What has been recovered is not the original document but only the photocopies of the revenue record. A sale deed cannot be effected on the basis of such photocopies of the revenue record; A case has also been tried to be built up that the accused [ENTITY] had illicit relations with some other woman and that could have been the motive for murdering the deceased [ENTITY]. However, there is no direct evidence except the statement of PW 1 [ENTITY] and PW 14 [ENTITY] that the deceased before her death had told them about the affair of the accused [ENTITY] with one girl named [ENTITY]. There is no other evidence to prove this allegation. Therefore, it cannot be held that the deceased was having affair with [ENTITY].
40. In [PRECEDENT], the Supreme Court held as follows:
"Prosecution, in case of offence under [SECTION], [ACT] cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused "soon before her death". The word "dowry" in [SECTION] has to be understood as it is defined in [SECTION] of the [ACT]. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage, and the third occasion may appear to be an unending period. But the crucial words are in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of 'dowry'. Hence the dowry mentioned in [SECTION] should be any property or valuable security given or agreed to be given in connection with the marriage."
41. In our view the prosecution has miserably failed to prove that the accused had made a demand for dowry. The charges under [SECTION] and [SECTION], are not proved against any of the accused.
42. Therefore, in view of the above discussion the judgment of the Trial Court in Sessions Trial No. 17-K/7 of 2001 dated 24.7.2002 is set aside. The appeal of the State is partly allowed and the accused [ENTITY] is convicted under [SECTION], [ACT] for causing the murder of his wife [ENTITY]. The appeal of the State with regard to other accused is dismissed. We however come to the conclusion that the prosecution has failed to prove that the death of the deceased [ENTITY] was caused on account of dowry and acquit the accused [ENTITY] for having committed the offences under [SECTION] and [SECTION], [ACT].
43. The aforesaid appeals are, therefore, disposed of by holding that [ENTITY] and [ENTITY] accused are not guilty of any offence and accused [ENTITY] is guilty of an offence under [SECTION], [ACT].
44. Accused [ENTITY] is sentenced to undergo rigorous imprisonment for life for this offence and to pay fine of Rs. 5,000/-. In default of payment of fine, he shall undergo further simple imprisonment for a period of one year.
45. The case property be disposed of in accordance with the directions of the learned Trial Court.