The main legal point established in the judgment is the reliance on circumstantial evidence, house murder principles, and burden of proof under IPC 302 and IPC 306 to establish guilt.

JUDGMENT :

Pritinker Diwaker, J.

1. This appeal arises out of impugned judgment and order dated 29.3.2008 passed by Additional Sessions Judge/Special Judge, Essential Commodities Act, Fatehpur in Sessions Trial No. 498 of 2000, convicting the accused-appellant under section 302 of I.P.C. and sentencing him to undergo imprisonment for life and a fine of Rs. 2,000/-, in case of default thereof, two months simple imprisonment.

2. In the present case, name of deceased is Mobina, wife of accused appellant Mahmood. Their marriage was solemnized about 12 years prior to the date of incident i.e. 4.4.2000 and she died homicidal death on 4.4.2000 in the evening at about 6:00 pm. On 4.4.2000, some unknown person had sent information to PW-1 Dost Mohammad, father of the deceased about the death of the deceased. On the next day i.e. 5.4.2000, PW-1 Dost Mohammad along with some other persons came to the house of accused and found the dead body of deceased. On the basis of his written report Ex. Ka.1, F.I.R, Ex. Ka.3 was registered at 10:30 am on 5.4.2000 under section 306 of IPC against the appellant Mahmood, his elder brother Maqbool, his sister-in-law Nafeesa and his father Badloo. Inquest on the dead body was conducted vide Ex. Ka.9 on 5.4.2000 and the body was sent for postmortem, which was conducted on 6.4.2000 vide Ex. Ka.2 by PW-4 Dr. A.K. Shukla.

3. As per Autopsy Surgeon, following injuries were found on the body of the deceased:

"(i) Contusion 8 cm. x 6 cm. on Rt. side of face and temporal region cut surface shows clotted blood.

(ii) Abrasion 3 cm. x 2 cm. on chin.

(iii) A complete ligature mark on the neck at the level of thyroid cartilage with overlapping on Rt side for about 3 cm. The size of ligature mark is 36 cm. x 2 cm. with the base like a furrow at left ear margins congested and abraded cut surface shows subcutaneous tissues of neck and neck muscles."

4. The cause of death of the deceased was asphyxia due to strangulation as a result of ante-mortem injury No. 3.

5. Charge-sheet was filed against all the four accused persons named in the FIR and while framing charge, the trial Judge has framed charge against all accused persons under section 302 of IPC.

6. During pendency of the trial, accused Badloo, father of the appellant expired and, therefore, Trial Court proceeded with the trial of remaining three accused persons.

7. So as to hold accused persons guilty, prosecution has examined eight witnesses, whereas two defence witnesses have also been examined. Statement of accused persons were also recorded under section 313 of Cr.P.C., in which they pleaded their innocence and false implication.

8. By the impugned judgment, the Trial Judge has acquitted co-accused Maqbool and Nafeesa mainly on the ground that they were residing separately. However, accused appellant has been convicted under section 302 of IPC and sentenced as mentioned in paragraph No. 1 of the judgment.

9. Learned Counsel for the appellant submits:

(i) that there is no eye-witness account to the incident and the appellant has been convicted solely on the basis of weak circumstantial evidence.

(ii) that in the present case, deceased committed suicide as just before the date of incident, she lost her male child and she was under depression.

(iii) that circumstantial evidence does not complete the chain and, therefore, benefit of doubt ought to have been extended to the appellant also.

(iv) that there is no conclusive medical evidence showing the death of the deceased to be homicidal.

10. On the other hand, supporting the impugned judgment, it has been argued by the State Counsel:

(i) that Autopsy Surgen PW-4 Dr. A.K. Shukla has categorically opined the death of the deceased to be homicidal and despite his lengthy cross-examination, accused appellant could not elicit anything adverse from him.

(ii) that symptoms, as defined by the Autopsy Surgeon, clearly indicate the death of deceased to be homicidal.

(iii) that in the house, appellant alone was residing along with the deceased an