IMPORTANT POINTS
When the circumstances are corroborated by medical report and proved motive, accused has to be convicted.
In case of variance between inquest report and medical report the latter will prevail.

JUDGMENT :

K.M. JOSEPH, J.

1. The appellant, calls in question, his conviction under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for short) by the High Court. Originally, the appellant was accused no.1 before the Trial Court. Accused nos. 2 to 4 were his parents and his brother. They were altogether charged with offence under Section 302 read with Section 34 of the IPC. This is besides being charged under Section 498A of the IPC. The Trial Court convicted all the accused for offences under Section 302 read with Section 34 and Section 498A of the IPC. On appeal filed by the appellant and the other accused, accused nos. 2 to 4 stand acquitted of all the offences. The appellant has also been acquitted of the offence under Section 498A of the IPC. However, the High Court, by the impugned order, had convicted him for the offence under Section 302 of the IPC instead of Section 302 read with Section 34 of the IPC. This is besides a fine.

2. The prosecution case, in short, is that the appellant and the other accused committed murder of the wife of the appellant. As already noticed, the charge was of committing murder under Section 302 read with Section 34 of the IPC.

3. The father of the appellant lodged a complaint wherein it was inter alia alleged that the marriage of the appellant and his deceased wife took place prior to two years as per custom. Half tola gold remained to be provided. Due to poverty, he could not provide half tola gold. The accused maintained the deceased properly for the period of first eight months. Three months prior to the incident, the deceased disclosed to the complainant and his wife that all the accused were maltreating the deceased by insisting her to bring half tola gold, dress and Rs. 5,000/- for business of bakery. They insisted her to bring this from her parents and assaulted her. They did not provide food to her and maltreated her. She was threatened with murder if the demand was not fulfilled. So, deceased decided to stay with her father for two months. Within two months, nobody from the accused came to receive her. The deceased disclosed about the maltreatment to his sister. His sister convinced the deceased and brought her to the house of the accused. Eight days prior to the incident, his sister informed him that accused Javed visited her house and demanded half tola gold, dress and the amount. On 10.03.2005, he received information by phone that deceased was serious and admitted to a hospital at Naldurg. The complaint activised the Police. Investigation was done. Charge-sheet was filed. Charges were framed, as already mentioned. Rejecting the contentions of the appellant and other accused, the Trial Court convicted them. It was found that the deceased had been throttled. The evidence of the Doctor, supported the case of murder. The claim that it was a suicide by the deceased, was rejected.

4. The High Court, however, found only the appellant guilty under Section 302 of the IPC.

5. We have heard Shri D. N. Goburdhan, learned counsel for the appellant who appeared before us and also learned counsel for the State.

6. Counsel for the appellant would submit that the case of the prosecution was one of commission of offence under Section 302 read with Section 34 of the IPC. It was the case of the prosecution that all the accused together committed the act of murder. He would complain that in appeal, when the High Court found it fit to acquit accused nos.2 to 4, the accused cannot thereafter be convicted. He drew our attention to the judgment of this Court in Sawal Das v. State of Bihar, (1974) 4 SCC 193 and Sukhram s/o Ramratan v. State of Madhya Pradesh, 1989 Suppl.(1) SCC 214.

7. He would submit that when the prosecution failed to establish the guilt of accused nos.2 to 4, in the circumstances of this case, it must be taken that prosecution has also failed to establis