B.R. Gavai JUDGMENT
Navin Sinha, J.
1. The Appellant, husband of the deceased, is aggrieved by his conviction Under Section 302 of the Indian Penal Code (in short, 'IPC') affirmed by the High Court. There is no eye witness and the case rests only on circumstantial evidence.
2. The deceased was married to the Appellant approximately six to seven years back. Both of them were living alone in the house with their minor child. On 14.10.1994, late in the evening, the family members of the deceased, who resided about 35-40 kms. away, received a telephone call that their daughter had died. They came the next morning at 06.00 AM and found the body of the deceased in the middle room of the house, lying on the ground covered with a white sheet. The first information report was lodged at about 07.00 AM, the inquest report was prepared same day as also the post mortem was done in the afternoon. The police after completing investigation submitted charge sheet Under Section 306 and 498A, Indian Penal Code. During the course of the trial, considering the nature of evidence that emerged, the Sessions Judge also added Section 302, Indian Penal Code in the charges. The Sessions Judge held the charge Under Section 302 to be established as the deceased had been strangulated to death. The High Court in appeal opined that the deceased had been hanged to death. Both the courts have unanimously held that the deceased did not commit suicide but that it was a homicidal death.
3. Learned senior Counsel Shri Vinay Navare, appearing for the Appellant, submitted that the deceased had committed suicide. The conviction of the Appellant Under Section 302 Indian Penal Code was not justified. The Appellant has been acquitted of the charge Under Section 498A. It was impossible for the Appellant to have alone forcibly hanged the deceased from a height of 11 feet. The fact that the body was found lying on the ground in the house, does not detract from the Appellant's defence that she was brought down from the noose after she committed suicide and the body laid on the ground. If the Appellant had strangulated the deceased, nothing prevented him from concealing the dead body or cremating her in the night itself. His conduct is not conducive of his guilt. The mere fact that the deceased died in unnatural circumstances inside the matrimonial home cannot by itself be sufficient to shift the onus on the Appellant Under Section 106 of the Indian Evidence Act, 1872 (hereinafter called as "the Act"). The onus first lies on the prosecution to establish a prima facie case of a homicidal death ruling out all possibilities of a suicide. Reliance was placed on Shambu Nath Mehra v. The State of Ajmer,