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PETITIONER: SAWAL DAS

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT09/01/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH BHAGWATI, P.N.

CITATION:  1974 AIR  778            1974 SCR  (3)  74  1974 SCC  (4) 193

ACT: Indian   Penal   Code   (Act  45  of  1860),   s.   34   and 302--Circumstantial    evidence   Accused   charged    under s.302/34--When  accused may be convicted under s. 302,  when the  others are acquitted under s. 302/34--Offence under  s. 201--Sentence. Evidence Act (1 of 1872) Ss. 103 and 106--Scope of

HEADNOTE: The appellant is the husband of the deceased.  The  evidence in  the  case established that, the  relations  between  the deceased and her mother-in-law; were very strained; that, on the  morning of the murder following a quarrel between  them the appellant went with his wife, the deceased, into a room, into  which  his  father and  mother  then  followed;  that, immediately  thereafter,  cries of the murdered  woman  were heard  to  save her from being killed; and, that,  a  little while later, the appellant and his father conveyed the  dead body of the deceased and disposed it of by burning it at the burning that without informing the relations of the deceased who  were  living  in the town and  without  performing  any funeral rites. On this evidence, rejecting the appellant’s contention  that the  deceased died accidentally of injuries caused by  fire, the  trial  court convicted the appellant, his  father,  and mother for offences under s. 302/34 1. P. C. The trial court also convicted the appellant and his father under s. 201, I. P.  C.  On  appeal, the High Court  acquitted  them  of  the offence  under  s. 302/34 I. P. C. but found  the  appellant ,alone guilty of the offence under s. 302 1. P. C. The  High Court  also found the appellant and his father guilty  under s. 201 1. P. C. and passed a sentence of three years against the  father.   No  separate sentence on  the  appellant  was passed in view of the sentence of life imprisonment for  the offence under s. 302. In appeal to this Court, HELD : (1) The evidence regarding death by burning consisted mostly  of rumours and beliefs.  It was clearly hearsay  and was rightly excluded by the lower courts. (2)  Under  Ss.  103 and 106, Evidence Act,  the  burden  of proving such a plea specifically set up by an accused, which may  absolve  him from criminal liability,  lies  upon  him;

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though,  the quantum of evidence by which he may succeed  in discharging the burden, may be lower than the burden resting upon  the prosecution to establish the guilt of the  accused beyond reasonable doubt.  The best evidence would have  been that of a doctor who could have been called by the appellant on his phone, but no doctor was called. [79B] (3)  But,  neither the application of s. 103 nor of s.  106, Evidence  Act, could, however, absolve the prosecution  from the  duty  of discharging its general or primary  burden  of proving the prosecution case beyond reasonable doubt.  It is only  when  the  prosecution  has  led  evidence  which,  if believed,  will sustain a conviction, or, which makes out  a prima  facie  case that the question arises  of  considering facts of which the burden of proof may lie upon the accused. [79D] (4)  In  the  present  case,  after  the  acquittal  of  the appellant’s  father and mother for murder under Ss.  302/34, 1.  P. C., the individual liability of the appellant has  to be  established  by  the  prosecution  before  he  could  be convicted  under  s.  302 I. P. C.  simpliciter.   There  is nothing  in  the  present case which could  fasten  or  con- clusively  fix the liability for any particular or  separate act  of the appellant which may be said to have  caused  his wife’s death. [79H] K.   G. Patil v. State of Maharashtra, [1964] 1 S.C.R.  678, Sohan Lal v. State of U. P., [1971] S.C.C. 498 and  Yashwant and  Ors.  v.  State of Maharashtra, [1973]  1  S.C.R.  291, followed. 75 A (5) Further, the prosecution has not examined an important witness  namely,. the maid servant, who was on the  varandah at  the time of the occurrence.  Her evidence was  necessary for  unfolding  the prosecution case and hence,  the  prose- cution should not have withheld her evidence whatever may be its  effect upon the case.  The appellant could,  there  ask the  Court to give him the benefit of the presumption  under s. 114 illustration (g), Evidence act and to infer that,  if she had’ been produced, her evidence would have damaged  the prosecution case against the appellant.  Her statement under s.  164,  Cr.   P.  C. could only be  used  as  evidence  to corroborate  or  contradict  her if she had  appeared  as  a witness  at  the trial,and could not be relied upon  by  the prosecution. [80 G, H] Stephan Sneviratne v. The King.  A.I.R. 1936 P. C. 289, 300, referred to. (6)  Therefore, although it must be held that, the  deceased was  murdered it was not possible to find conclusively  that the  person who could have throttled or done some other  act which actually killed the deceased was the appellant and not his father or mother.   (7)  So  far as the case of disposal of the  body  by  the appellant  was  concerned the  circumstantial  evidence  was rightly  believed  and  held to be conclusive  by  both  the Courts below. [82G] (8)  As regards sentence, the appellant deserves the maximum sentence  that  can  be imposed under s. 201,  1.  P.  C.  A distinction  between  the  case of  the  appellant  and  his father, as regards sentence is justified because; (a) It was the  duty  of  the  appellant as  a  husband  to  have  done something  to protect his wife even if   It is  assumed  for the  sake of argument, that the actual death may  have  been brought about by the acts of others, and, (b) the  appellant had  taken a leading part in disposing of the  body  of  the murdered woman. [83B]

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JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION : Criminal Appeal  No.  70 1972. Appeal  by Special Leave from the Judgment and  Order  dated the    16th  September,  1971 of the  Patna  High  Court  in Criminal Appeal No. 90 of 1968. A.   N.  Mulla, S. N. Misra, S. S, Jauhar and  Sudha  Misra, for the appellant. R.   C. Prasad, for the respondent. The Judgment of the Court was delivered by BEG, J.-The appellant before us by special leave, Sawal Das, his father Jamuna Prasad, and his stepmother Kalawati  Devi, were  charged  with offences punishable  under  Section  302 Indian  Penal Code simpliciter on the allegation  that  they had intentionally caused the death of Smt.  Chanda Devi, the wife  of  the appellant, on 28-5-1965,   in their  house  in Mohalla Andi Gola, in Muzaffarpur, in Bihar.  The  appellant Sawal Das, his father Jamuna Prasad, their motor driver Sita Ram, and eight other persons were charged under Section  201 Indian Penal Code for having caused the disappearance of the body  of’  Smt.  Chanda Devi with a view to  concealing  the murder.  Furthermore, Smt.  Kalawati Devi was charged  under Section 302/109 Indian Penal Code for having instigated  the murder  of Chanda Devi.  The   Trial Court had  amended  and converted  the  charges  against the  appellant  and  Jamuna Prasad  and Kalawati Devi into those under  Sections  302/34 Indian  Penal Code and convicted each of them with  the  aid of’  Section 34 Indian Penal Code for the offence of  murder and sentenced: 76 them  to  life  imprisonment.  It  had  also  convicted  the appellant  and  his father under Section  201  Indian  Penal Code,  but it did not pass separate sentences  against  them for  this offence.  The driver Sita Ram was  also  convicted under  Section 201 Indian Penal Code and sentenced to  three years  rigorous  imprisonment.  It acquitted all  the  other accused  persons.   On appeal, the High Court of  Patna  had acquitted the appellant, his father, and his step-mother  of offences punishable under Section 302 /34 Indian Penal Code, but  it  found  the appellant alone  guilty  of  an  offence punishable  under Section 302 Indian Penal Code  simpliciter and  sentenced him to life imprisonment.  It had also  found the appellant and his father guilty under Section 201 Indian Penal  Code,  but, while passing a sentence of  three  years rigorous imprisonment on Jamuna Prasad, it had not passed  a separate sentence on the appellant in view of his conviction under Section 302 Indian Penal Code.  It had allowed appeals of Kalawati Devi and Sita Ram and acquitted them. The   whole   case  against  the  appellant   depends   upon circumstantial  evidence.   There is no eye witness  of  the murder  which  was  alleged to have been  committed  by  the appellant,  his  father, and step-mother conjointly  on  the morning  of 28-5-1965 at about 8.00 a.m. The Sessions  Judge had relied upon the following proved facts and circumstances to  convict  the  three  accused  persons  of  murder  under Sections 302/34 Indian Penal Code 1.   The  relations between Smt.  Chanda Devi and her  step- mother-in-law,  Smt.  Kalawati Devi, who were living in  the same house with their respective husbands and children, were strained so that there were frequent quarrels between them. 2.   The appellant as well as his father Jamuna Prasad  used to  take the side of Smt.  Kalawati in the quarrels  between the murdered wife and her mother-in-law.

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3.   On the morning of the murder, there was a  particularly sharp  quarrel  between the deceased and Smt.   Kalawati  so that Smt.  Kalawati, who was living in a room adjoining that of,  Smt.   Chanda  Devi on the first floor  of  the  house, called  out  to  the appellant that his  "rascal  wife"  was quarrelling with her and informed him as well as Jamuna that either she or Chanda Devi will live in the house henceforth. 4.   The  appellant  and  his  father  Jamuna  Prasad   went upstairs to the Verandah where the quarrel was taking  place and the appellant took or pushed Chanda Devi inside her room followed by the appellant’s father and his stepmother. 5.   Immediately  after  that,  cries  of  atleast  "Bachao" "Bachao",  were heard from inside the room.  No  body  heard the voice of Smt.  Chanda Devi after that. 5.   Immediately  after these cries, the children of  Chanda Devi  were heard crying and uttering words  indicating  that their mother was either being killed or had been killed. 77 7.   A short while after that, the appellant and his  father Jamuna  Prasad were seen bringing a gunny bag with the  help of  their driver, Sita Ram, and another person, and  keeping it  in  the luggage boot of the car which had  been  brought there by the driver. 8.  The  car,  containing the body of  the  deceased  Chanda Devi,was driven fast and taken to what is known as  Pahleza- Ghat,50 miles  away,  to be burnt there at night.   The  car was shown to have crossed Sonepur Bridge at 9.00 p.m. 9.     The relations of the deceased Smt.  Chanda Devi,  who were  living  in the town, were not at all informed  by  the appellant or other members of his family, that she had  died either naturally or accidentally. 10.  No persons who usually performed the funeral  rites  in the  family  were shown to have been informed and there  was no funeral procession of the usual kind. But, some of  those related  to  the  appellant, who  were  co-accused  for  the offence  of illegal disposal of the body, were said to  have followed in a truck. 11.  Some blood’, which was said to have  distintegrated  so much  that its origin could not be determined, was shown  to have been scraped   from the boot of the car as well as from inside the car. The  Trial Court had come to the conclusion that,  upon  the established  circumstances listed above, no other  inference was left open to the Court except that the appellant and his father and step-mother- had conjointly committed the  murder of the deceased Smt. Chanda Devi on the morning of 28-5-1965 and that the appellant and his. father had then hastily  and stealthily  disposed  of the body in order- to  conceal  the commission of the offence. It had also taken into,  account, in  coming to this conclusion, the fact that  the  appellant had  unsuccessfully set up a plea, in his written statement, that Smt. Chanda Devi, who was alleged by him to be  wearing a  Nylon Saree, said to have caught fire accidentally  while she was using a Kerosene stove in  her    room,   died    of extensive burns on her body and collapsed. The.   appellant had alleged that Smt. Chanda Devi was debilitated and kept a bad  health  due  to  frequent  pregnancies  and  was   also suffering    from  Asthma,  a  weak  heart,  and   abdominal complaints. She had given birth to six children. The  Trial Court observed that no Doctor- was called  in  to substantiate  the appellant’s plea. Furthermore, it  pointed out that, as a highly qualified Doctor, Dr. G. B. Sahai, had deposed, normally death would not take place immediately  as a result of accidental burning of  the  kind alleged by  the appellant and that there would have been evidence of rolling

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on  the ground or other acts of the deceased in attempts  to save  herself  in such an event. The Trial  Court  had  also believed  the evidence of the relations of Chanda Devi  that she was enjoying good health so that the bare assertions  of the  appellant  that  she  had a weak  heart  could  not  be accepted. It also observed that no burnt pieces of cloth  or marks  of smoke or soot on the walls or roof of the room  in which  Smt.  Chanda Devi had admittedly died were  shown  to exist. 78 Learned  Counsel for the appellant drew our attention  to  a number  of pieces of evidence, such as a boil on the  finger of  Jamuna,  multiple irregular areas  of  suspected  burns, varying  from 1 to 1/3" in length and-half inch to  3/4"  in width, on the lower third of right fore-arm, ulnar side,  of the  appellant, when he was examined by Dr. J. Nath on  2-6- 1965,  the  statement by a witness that he  saw  some  smoke coming  out of the house at the time of the alleged  murder, the  rumour  of her death by burning  mentioned  by  several witnesses,  which found a place in the information  sent  to the Police on 30-5-1965 by Lallu Prasad, P.W. 28, a relation of the murdered wife, and into another   written information given  by  Hawaldar Gorakhnath Singh, P.W.3, at  the  Police Station, on 28-5-1965, and other similar bits of information and belief deposed to by witnesses. So  far as the information dated 30-5-1965 (Ex. 17)  treated as  F.I.R.  by  the  Police, or  the  information  given  by Gorakhnath  Singh  on  28-5-1965, which,  according  to  the appellant,  ought  to  be treated .as  a  First  Information Report, and other pieces of information and belief given  by the  witnesses  are concerned, it is clear  that  these  are based  on  hear-say which was rightly excluded.   The  Trial Court  pointed out that the appellant and other  members  of his  family  were  the  sources  of  these  false   rumour‘s circulated  by them so as to protect themselves  against  an accusation for murder.  We, therefore, attach no  importance whatsoever  either to the document which the prosecution  or the  one which the appellant placed before us as  the  First Information Report.  These contain nothing more than  rumour and  hearsay  because  those who  could  have  reported  the commission  of  an  ,offence  were  actually  the  offenders interested-  in concealing its commission  and  misdirecting investigation. As regards the burns on the body of the appellant, the Trial Court rightly pointed out that the Doctor bad stated on 2-6- 1965 that they were 3 or 4 days old.  They were not shown to be  connected with .any attempt to extinguish a  fire  which could  have burnt Smt.  Chanda Devi.  The best  evidence  in such  a  case could have been that of a Doctor who,  as  the High Court pointed out, should have been called but was  not called  despite the fact that there was a telephone  in  the house. We  think  that  the burden of proving the  plea  that  Smt. Chanda Devi died in the manner alleged by the appellant  lay upon  the appellant.  This is clear from the  provisions  of Sections  103 and 106 of the Indian Evidence Act.  Both  the Trial Court and the High Court had rightly pointed out  that the  appellant  had  miserably failed to  give  credible  or substantial  evidence  of any facts or  circumstances  which ’Could support the plea that Smt.  Chanda Devi met her death because her Nylon Saree had accidentally caught fire from  a kerosene  stove.  The Trial Court had rightly observed  that the  mere  fact  that some witnesses  had  seen  some  smoke emerging from the room, with a kitchen nearby at a time when food  was likely to be cooked, could not indicate that  Smt.

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Chanda  Devi’s saree bad caught fire.  Neither the  murdered woman  nor  the appellant nor any member of his  family  was shown to have run about or called for help against a fire. 79 Learned Counsel for the appellant contended that Section 106 of  the  Evidence  Act could not be called  in  aid  by  the prosecution  because that section applies only where a  fact relating  to the actual commission of the offence is  within the   special  knowledge  of  the  accused,  such   as   the circumstances  in  which  or the  intention  with  which  an accused  did  a  particular act  alleged  to  constitute  an offence.  The language of Section 106 Evidence Act does not, in  our opinion, warrant putting such a narrow  construction upon  it.   This Court held in Gurcharan Singh v.  State  of Punjab(1),  that the burden of proving a  plea  specifically set  up by an accused, which may absolve him  from  criminal liability,  certainly  lies  upon him.  It  is  a  different matter that the quantum of evidence by which he may  succeed in  discharging his burden of creating a reasonable  belief, that circumstance absolving him from criminal liability  may have  existed,  is lower than the burden  resting  upon  the prosecution  to  establish the guilt of  an  accused  beyond reasonable doubt. Neither  an  application of Section 103 nor of  106  of  the Evidence  Act could, however, absolve the  prosecution  from the  duty  of discharging its general or primary  burden  of proving the prosecution case beyond reasonable doubt.  It is only  when  the  prosecution  has  led  evidence  which,  if believed,  will sustain a conviction, or, which makes out  a prima  facie case, that the question arises  of  considering facts of which the burden of proof may lie upon the accused. The  crucial  question  in the case before us is  :  as  the prosecution  discharged its initial or general  and  primary burden  of  proving  the  guilt  of  the  appellant   beyond reasonable doubt? Perhaps  the Trial Court had adopted a more  logical  course upon  facts and circumstances indicating that the  appellant was one of the three persons whose conjoint actions had,  on the  morning  of 28-5-1965, resulted in the  death  of  Smt. Chanda  Devi.  It may be that the appellant was the  primary or  the  main actor in the actual commission of  the  murder after his step-mother had sought his aid in what appeared to be  an  appeal to him by her to teach his wife a  lesson  so that  she  may not be troubled by her any  more.   But,  the effect of the finding that the appellant went into the  room from which the cries of the murdered woman, to save her from being killed, came immediately afterwards, is diluted by the evidence that Jamuna Prasad and Smt.  Kalawati had  followed him.  The High Court’s view could perhaps find some  support from  the  fact that Jamuna Prasad was  seen  pacifying  and rebuking  the children outside while the appellant may  have been  dealing with his wife in a manner which brought  about her  death.   But  ’ all this is  a  matter  of  conjecture. Lurking but not unreasonable doubts and suspicions seem  to, us to envelope and assail the prosecution case atleast after Jamuna  Prasad and Smt.  Kalawati have been  acquitted.   As the  learned counsel for the appellant has  rightly  pointed out,  after the acquittal of Kalawati and Jamuna Prasad  for murder,  by  the use of Section 34 Indian  Penal  Code,  the individual  and not the conjoint liability of the  appellant has  to  be  established  by  the  prosecution  before   the appellant could be convicted under (1)  A.I.R. 1956 S.C. 460. 80 Section 302 Indian Penal Code Simpliciter.  Beyond the  fact

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that the appellant is the husband of the murdered wife,  who might  be  ordinarily  expected to take  the  initiative  in teaching  her a lesson, especially when Smt.   Kalawati  had invoked  his  aid, and a possibly natural  reluctance  of  a normal  father-in-law  to take the initiative or  a  leading role  in  such a matter, both of which could be  matters  of conjecture or presumption only, there is nothing which could fasten or conclusively fix the liability for any  particular or  separate act of the appellant which may be aid  to  have caused his wife’s death. We find that the High Court had not dealt with the  question whether a distinction could be made between the case of  the appellant  on the one hand and his father Jamuna Prasad  and his step-mother Kalawati on the other quite  satisfactorily, so far as the offence of murder is concerned.  Nevertheless, we  may have agreed with its conclusion, on the evidence  on record,  that the appellant alone was liable for the  murder of his wife Smt.  Chanda Devi and we may not have  disturbed its  finding  of fact but for another feature  of  the  case which  stares one in the face.  We proceed now to deal  with this feature. Even if, as the Trial Court and the High Court had correctly held,  there  is admissible and credible  evidence  of  five witnesses,  Ganesh  Prasad, P.W. 1, Nand  Kishore,  P.W.  2, Radhey Shyam Sharma, P.W.9, Laxmi Narain, PW. 16, and Basdeo Prasad, P.W. 27, who are said to have heard or watched  from outside, from varying distances, Of what was going on in the Verandah,  no eye witness was produced who could prove  what actually  took  place inside the room where the  murder  was committed.  The only evidence given of what could have taken place  inside  the  room  was the  cry  of  "Bachao  Bachao" although  there  is some  understandable  variation  between accounts of witnesses as to whether the murdered woman  also uttered some more words showing that she was being  actually killed.   We also agree with the view that the  evidence  of witnesses  about what the children said or did at that  time is admissible under Section 6 of the Evidence Act.  In  view of  some evidence in the case that the appellant’s  children had refrained from revealing any facts against the appellant or  his father or his stepmother, when they were  questioned by relations or by the Police, it could be urged that  there was  no  point in producing the children.  The  Court  could also  have  rightly decided, in such  circumstances  not  to examine them under Section 540 Criminal Procedure Code’ But, there is no explanation even attempted to show why the  Maid servant  , Geeta Kurmini, who, according to the  prosecution case,  was  also  in  the  Verandah  at  the  time  of   the occurrence,  was  not  produced at the  Trial  although  her statement was recorded under Section 164 Criminal  Procedure Code and was brought on the record (Ex. 12).  This statement could only be used as evidence to corroborate or  contradict Geeta Kurmini if she had appeared as a witness at the trial. The  appellant  could, therefore, quite reasonably  ask  the Court  to give him the benefit of the  optional  presumption under  Section 114 illustration (g) of the Evidence Act  and to  infer  that,  if she had been produced,  it  would  have damaged  the  prosecution case against the  appellant.   Her statement, if it had been there as evidence in the case, may ,very well have shown that it was Jamuna who was taking  the leading 81 part  in  bringing  about the death of  Smt.   Chanda  Devi. There  is  some evidence in the case as to the kind  of  man Jamuna  was.  It shows. that he was not a naturally kind  or gentle  or amiable individual liked by people.   The  normal

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inhibitions of a father-in-law with regard to his  daughter- in-law  , which learned Counsel for the State emphasized  so much, may not really be there at all in this case.   Indeed, we  think  that,  in the circumstances of  the  case,  Geeta Kurmini,  the maid servant, was a witness essential  to  the unfolding  of the prosecution case.  Her evidence could  not be  withheld by the-prosecution whatever may be  its  effect upon  the  case.  We think that the principle laid  down  by Privy  Couneilin  Stephen Sneviratne v. the king  (1),  with regard  to  such  a  witnes, is  applicable  here.   It  was observed there (at page 300)               "Their Lordships do not desire to lay do"  any               rules  to, fetter discretion on a matter  such               as this was is so dependent on the  particular               circumstances  of  each case.  Still  less  do               they  desire to discourage the utmost  candour               and fairness on the part. of those  conducting               prosecutions-  but,  at  the  same  time  they               cannot speaking generally, approve of an  idea               that   a  prosecution  must   call   witnesses               irrespective  of considerations of number  and                             of reliability, or that a prosecution ought  to               discharge  the functions both  of  prosecution               and defence.  If it does so, confusion is very               apt to result. and never is it more likely  to               result than if the prosecution calls witnesses               and  then  proceeds  almost  automatically  to               discredit    them    by     cross-examination.               Witnesses  essential to the unfolding  of  the               narrative  on which the prosecution is  based,               must, of course, be called by the prosecution,               whether  in  the result the  effect  of  their               testimony  is for or against the case for  the               prosecution". Mr.  Mulla, appearing for the appellant, has also drawn  our attention  to K.G. Patil V. State of Maharashtra (2).   This Court  held  there  that,  when two  out  of  three  accused persons,  each  having been charged under Section  302  read with  Section 34 Indian Panel Code, were acquitted, it  must be  assumed  that the two acquitted persons did  not  parti- cipate  in  the  commission of the offence  at  all.  it  is contented  that the natural result of this view is that  the particular act of the individual accused which brought about the death of the murdered person must be established  beyond doubt  before  he is singly and separately  convicted  under Section 302 Indian Penal Code simpiiciter. Our  attention  was also invited to Sohan Lal  v.  State  of U.P.,(3) where it was held by this Court that in the absence of  evidence  to show which act of the  accused  caused  the death  of  the murdered man, it would neither be  proper  to convict  the accused person under Section 302  Indian  Penal Code simpliciter nor under Section 302 read with Section  34 Indian Penal Code, when the High Court had acquitted the co- accused  of charges under Section 302 read with  Section  34 Indian  Penal Code, and the State had not  appealed  against the acquittal. (1) AIR 1936 P. C. 289 @ 300. (2)  [1964] (1) SCR 678. (3)  [1971] (1), S. C.  C. 498., 82 In  the case before us, the High court had actually  altered the  conviction  of the appellant from  one  under  Sections 302/34  I.P.C.  to  one under  Section  302  I.P.C.  thereby implying  that  he  was not guilty  of  :any  offence  under

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Section 302/34 I.P.C. It is true that this Court  explained, in  Yashwant & Ors.  V. State of Maharashtra, (1)  that  the applicability  of Section 34 I.P.C. to a case  depends  upon the  particular  fact  8  and  circumstances  of  the  case. Therefore,  we  have to scrutinize and  pronounce  upon  the particular facts of the case before us. We think that, upon the facts of this case, there could be a reasonable  doubt as to whether Section 34 I.P.C.  could  be applied  to  convict  any of the three  accused  persons  of murder.   After  excluding  the application  of  Section  34 I.P.C. to the case, the evidence does not also appear to  us to  prove conclusively that the appellant must  have  either throttled  the deceased or done some other act, quite  apart ,from the acts of his father and step-mother, which  brought about  the death.  This result follows from the totality  of evidence  and  the presumption from  the  non-production  of Geeta Kurmini which destroys the value of the evidence which weighed so much with the High Court, that the appellant  was doing  something like pushing or taking the  murdered  woman inside her room at the time when she was last :seen alive. The  Trial Court and the High Court relying on the  evidence of  ’some bleeding of the body of the deceased, admitted  by the  appellant.  to  have been carried in  the  car  to  the burning ghat, and the absence of evidence of death caused by burning, came to the conclusion that the appellant must have throttled  the  deceased.  This was  pure  conjecture  after eliminating  the defence case of burning by accident. if  it had been a case of throttling only, it would be difficult to explain  the  cries of murdered woman for  help  which  were heard  by  witnesses on the road unless we assume  that  the murdered  woman cried out, as she may have done, before  the hands   which  choked  her  were  placed  on   her   throat. Therefore, although we may hold, as we do, that this must be a  case  of murder, it is not possible for us to  find  con- clusively  that it was a case of throttling and  of  nothing else  or  that the person who could have throttled  or  done some  other act which actually killed the deceased  was  the appellant and not his father or step-mother. So  far  as the case of quick disposal of the  body  by  the appellant  is  concerned, the  circumstancial  evidence  was rightly  believed  and  held to be conclusive  by  both  the Courts  below.  This evidence was too damaging to  admit  of any doubt that the appellant took the leading part in  doing away with the remains of the body of his wife after she  had been  murdered.  The Trial Court and the High  Court,  while maintaining  the  appellants conviction  under  Section  201 Indian Penal Code, had not fixed his sentence.  It was urged by  Mr.  Mulla before us that the appellant  should  not  be given  more than three years rigorous imprisonment  just  as his father Jamuna had been sentenced to three years rigorous imprisonment  only under Section 201 Indian Penal Code.   It may  be mentioned here that, while special leave  to  appeal was  granted  to the appellant against the judgment  of  the High Court, this Court (1)  [1973] 1 SCR 291. 83 had  refused  to  grant any leave to his  father  Jamuna  to appeal against his conviction under Section 201 Indian Penal Code.   We,  however, think that a distinction  between  the case  of  the appellant and his father is justified  on  two grounds  mainly; firstly, it was the duty of the  appellant, as the husband, to have done something to protect his  wife, even if we assume, for the sake of argument, that the actual death  may have been brought about by the acts of  others  ; and  secondly  the  applicant had taken a  leading  part  in

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disposing of the murdered woman.  We think that the  maximum sentence which can be passed under Section 201 Indian  Penal Code   is   deserved  by  the  appellant  upon   facts   and circumstances  of  this case.  Accordingly,  we  allow  this appeal to the extent that we set aside the conviction of the appellant  under Section 302 I. P. C., but we  maintain  his conviction  under Section 201 1. P. C. and sentence  him  to undergo seven years rigorous imprisonment and to pay a  fine of  Rs.  1,000/-  and, in default of  payment  of  fine,  to undergo  further  rigorous imprisonment for a  term  of  six months. V.P.S. Appeal allowed. 84