The prosecution must establish homicidal death for a murder conviction, and failure of the accused to explain circumstances can lead to a presumption of guilt.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

1. Sole appellant is before this Court in appeal against the judgment of conviction and sentence under Section 302 and 201 of the IPC.

2. Informant of the case is the father of the deceased, who was married to the appellant two years before the incidence. As per the FIR dated 02.01.2007, deceased was at her parental home and the appellant took her from there on 27.12.2006 at 5.30 in the morning on the pretext of getting her treated. At that time, his daughter was carrying a pregnancy of four months. On 01.01.2007, it was rumored that his daughter’s dead body was in a well in Village Manjhigama. The dead body was in a decomposed condition. It was suspected that the appellant had committed her murder and thrown the dead body in the well.

3. On the basis of the fardbeyan, Manjhiyaon P.S. Case No. 02/07 was registered under Sections 302, 201/34 of the IPC against the appellant. Police on investigation, submitted charge sheet and the appellant was put on trial. Altogether nine witnesses have been examined on behalf of the prosecution and relevant documents including post mortem examination report and FIR, have been adduced into evidence and marked as Exhibit 1-7.

4. Judgment of conviction and sentence is assailed on the ground that the prosecution has failed to prove the homicidal death which is fundamental ingredient for offence under Section 302 of the IPC. In the present case, as per the post-mortem examination report, the cause of death could not be ascertained and therefore, the homicidal death has not been proved by the prosecution. Specific plea of defence is that death was accidental and suggestion to this effect was given to the mother of the deceased (PW-3). Allegation of previous harassment is not substantiated as no complaint was lodged in this regard before any competent authority.

5. Learned A.P.P. has defended the judgment of conviction and sentence.

6. It is not in quarrel that the deceased was the legally married wife of the appellant. Evidence of the dead body of the deceased being found in a well in a decomposed state, is also beyond reproach. These facts have come in evidence, both, oral and documentary.

7. The Doctor (PW-6), who conducted post-mortem on 03.01.2007 examination on the dead body, found the following:

(i) Body was swollen, foul smelling, tongue protruded.

(ii) Bleeding of skin was found at place.

(iii) Blood mixed froth coming from both the nostrils and nose.

(iv) On dissection, trachea was found to be congested, lungs, liver spleen and kidney all were congested and decomposition started. Rectum and bladder was empty, semi digested ‘bhat dal’ was present in the stomach.

(v) No ante mortem injuries were detected on the body.

(vi) Part of viscera was preserved for chemical analysis

(vii) No definite opinion could be given regarding cause of death as the dead body was in a decomposing state.

8. There cannot be any dispute with the legal proposition urged on behalf of the appellant that prosecution in order to succeed in a case under Section 302 of the IPC, has to establish the homicidal death which is its fundamental ingredient. It need however to be noted that post-mortem examination report being in the nature of an expert opinion, and not a substantive piece of evidence, cannot be said to be the only mode to establish homicidal death. Such an evidence assumes significance when there is reasonable doubt as to its cause. Hon’ble Supreme Court in appropriate cases has accepted homicidal death in the absence of post-mortem report [Kehar Singh & Others vs. State (Delhi Administration), (1988) 3 SCC 609; Banwari Ram & Others vs. State of U.P. (1998) 9 SCC 3]. As per the characteristics signs of drowning noted by Modi (a text book of Medical Jurisprudence and Toxicology, 27th Edition, Page 606) includes the following:

(a) The bulky and oedematous water-logged lungs, which exude cupoious, frothy blood-stained fluid on section.

(b) The presence of water, mud or weeds in the stomach or sma