Palekar, J.

1. This is an appeal by special leave by the State from an Court of acquittal passed by the High Court of Bombay. The respondent Manglya Dhayu Kongil had been convicted under Section 302 and Section 376 r/w 511, I.P.C. by the Second Additional Sessions Judge, Thana on April 27, 1968 and sentenced to death for the first offence. The High Court has acquitted him in appeal and hence the present appeal by the State.

2. The victim of the crime was an unmarried woman named Kamlabai Gangadhar Vaidya. She was about twenty six years old. She was working as a field Worker in the Family Planning Department and was attached at the material time, to the Medical Dispensary at Kudus - a village in the interior of Thana District. This village has several hamlets, far flung from each other. Each hamlet consisted of a few huts belonging to Adivasi residents of the village. One such was Malanpada. The respondent is a resident of Malanpada. His father and brother Janu lived in one hut and the respondent himself lived in another hut. The deceased Kamlabai used to reside in another village named Chinchghar which is four furlongs away from Kudus. For the purpose of her work she had to visit several hamlets round about. A vasectomy camp was to be held at the Taluka place, Wada. 10 miles away on the 30th January, 1968 and Kamlabai had been instructed to collect as many cases as she could get for vasectomy or for insertion of loops. On the afternoon of January 26, 1968 at about 4.00 or 4.30 p.m. she was going to one of the hamlets to see one Pandu and his wife for telling them about the vasectomy camp. At that time she was accompanied by the respondent, the latter being her guide to the several houses. Their way lay along a foot track which passed near the cattleshed of one Balu Bhau Patil, P.W. 1. With Balu Bhau Patil, there were some other persons including Dagdu, P.W. 6, the uncle of the respondent. Dagdu asked Kamlabai where she was going, and the latter told him that she was going to Pandu and his wife to book their cases. This Pandu happened to be in the service of Dagdu who knew that Pandu and his wife were not at home. So he told Kamlabai that Pandu and his wife were away and she would not be able to find them. Thereupon Kamlabai turned back and went towards the West with her guide the respondent. She had turned back either to go to Kudus or to some other place in order to book more cases. Their way to the West was through the hilly jungle area known as Aricha Dongar. The place is full of trees and bushes. Perhaps that was a short cut. Sometimes after they had departed, witness Balu Bhau Patil proceeded to another field of his which was to the North of the hill. He had gone there to fetch his bullocks. On the way he heard the cries of a female coming from the direction in which the respondent and Kamlabai had gone. The female was crying "Manglya leave me, why are you catching me. So Balu Bhau proceeded in the direction of the cries and from a distance of about 40 or 50 paces he saw that Manglya, the respondent, was molesting Kamlabai. Kamlabai was lying on the ground and the respondent was attempting to lift her legs. Balu Bhau shouted to the respondent that he should leave the lady. The respondent then left her. He then picked up a stone with a view to throw it at Balu Bhau. So Balu Bhau rushed away from the place. Since the house of the respondents father was at the foot of the hill hardly a furlong away, he ran towards that side to request the father to do something to prevent further molestation of the lady. At the house of respondents father he met respondents elder brother Janu Kongil and told him what was happening. Janu Kongil then went away in the direction indicated by Balu Bhau. Another Adivasi Ziparya who was living close by asked Balu Bhau what the matter was. On being told by him. Ziparya also went that side. Balu Bhau himself did not go because he felt tried by the effort.

3. While Balu Bhau remained below near the huts, his nephew Ganpat, P.W. 5 and Ziparyas brother Janu Marad came to him and asked him what the matter was. He told them what had happened. Then he waited for sometime for Janu Kongil and Ziparya to return. But since they did not return, the three of them namely Balu Bhau, Ganpat and Janu Marad went towards the place where Balu Bhau had seen the molestation of the lady. On going to the spot however, they did not see anybody. So they returned to the huts. Ganpat went to Kudus village to contact the Dispensary Doctor Choudhary, P.W. 9. He met Dr. Choudhary and told him what Balu Bhau had told him. Then he returned to the huts. In the meantime Ziparya returned. He called Balu Bhau inside the hut and told him that the woman was dead and they were in for trouble. Then guided by Ziparya, they again went up the hill and there some distance away from the place where Balu Bhau had seen the molestation, they saw the dead body of Kamlabai under a teak tree near the bushes. Balu Bhau then went to inform the Sarpanch of the village Kudus. But he was told there that the Sarpanch was not at home. So Balu Bhau went to his house.

4. Dr. Choudhary, P.W. 9 who had been already informed by Ganpat, made enquiries to ascertain whether Kamlabai had returned and on finding that she had not returned went to the Taluka town, Wada, and contacted police Sub-Inspector Pagare. P.W. 16 and gave him a report in which he merely mentioned that Kamlabai had been missing. This was at about 6.30 p.m. The Sub-Inspector came to Kudus village of about 7.30 p.m. and started making a search for the lady. During the course of the enquiries he came to know that Balu Bhau Patil had some information in the matter. So he called him and recorded his statement at about 10.30 p.m. That statement is Ext. 32 and is treated as the First Information Report in this case. Then in the company, of Balu Bhau, P.S.I. Pagare and party went to the place where the dead body of Kamlabai was lying. He saw the dead body and then kept a watch at the place because further investigation could not be made at night.

5. Next morning P.S.I. Pagare made an inquest panchnama. Ext. 5 and a scene of offence Panchnama Ext. 6 and searched for the respondent. The respondent was not found in the village. The P.S.I. made preparations for sending the body for post-mortem examination to Wada. But it appears that the villagers insisted that the post-mortem examination may be made in the village itself and the Wada Medical Officer Dr. Khatri, P.W. 11 may be called to the village. Accordingly, Dr. Khatri under whose control Kamlabai was working, came to Kudus and performed the post-mortem examination. The reluctance of the villagers to the post-mortem examination being made at Wada seems to have stemmed from the fact that nobody knew where her near relations were living and the villagers, with whom the deceased was quite popular, wanted to give her a decent funeral at Kudus itself. The evidence shows that hundreds of villagers attended the cremation.

6. Dr. Khatri after performing the post-mortem examination noted a number of injury marks on the face, neck and other parts of the body and was of the opinion that the cause of death was asphyxia due to throttling. He had noted, in all, about 11 injuries the first three of which are (1) marks of fingers with skin abrasion on right side of the neck with sub-cutaneous haemorrhage 1" x 1", (2) marks of fingers on right chin 1 1/2" x 1 1/3", with sub-cutaneous haemorrhage, (3) marks of fingers with sub-cutaneous haemorrhage on left side of the neck three number 1" x 1 1/2" each. Injury No. 11 was haemorrhage under the skin of the neck. In the opinion of Dr. Khatri the first three injuries referred to above were possible by the pressure of the fingers on the neck. In the post-mortem examination the womans body is described as thin. It is, therefore, clear that the victim was of thin built.

7. It is already stated that the accused had absconded from the village. Next morning at about noon he was caught in Hotel near Ambadi Naka which is six miles away from village Kudus. At the time of the arrest, Sub-Inspector Pagare found that there was an abrasion on the respondents left knee and this is confirmed by the Medical Officer Khatri, P.W. 11 who says that when he examined the respondent on the evening of January 27, 1968 there was one skin abrasion on the left knee joint 1/2" x 1/2". On the next day i.e. on January 28, 1968 the respondent was produced before the Judicial Magistrate who remanded him to Magisterial custody for seven days. The Investigating Officer had learnt that the respondent was wanting to make a confessional statement and so on January 29, 1968 he sent a memo to the Taluka Magistrate Mr. Vishwasrao Bhagwantrao Ahirrao, P.W. 10 that the respondent was in judicial custody and that after procuring his presence before him the Taluka Magistrate may record his confession. The Investigating Officer also wrote to the Judicial Magistrate First Class, Jawhar to make the respondent available to the Taluka Magistrate Mr. Vishwasrao Bhagwantrao Ahirrao for recording his confession. The Judicial Magistrate forwarded the respondent to the Taluka Magistrate on January 30, 1968, who after observing the necessary formalities, recorded the confession on January 31, 1968. In this confessional statement the respondent admitted that going with Kamlabai through the jungle he tried to criminally assault the woman and since she started crying he throttled her.

8. When charged for the murder, the respondent pleaded not guilty. He made a long statement when questioned under Section 342 Criminal Procedure Code. He denied that he had made any confession though he admitted that he had signed the same. He said his signature was taken to the confession without the same being read over to him. He however admitted that he was with Kamlabai at the material time on January 26, 1968 and that they had intended to go to the house of Pandu. On the way he had met Balu Bhau Patil and Dagdu and when Dagdu told her that Pandu was not at home they turned back to go to the West. After they had walked about half a furlong, Kamlabai complained that she was feeling giddy and sat down. He asked her what the matter was and she replied that Dr. Choudhary had given her an injection and that seems to have affected her. He advised her to go with him slowly. But she did not open her eyes. Within a short time he saw witness Balu Bhau Patil and he called him to come near. He requested Balu Bhau Patil to see what was wrong with the woman. Balu Bhau tried to speak to her but she said nothing. He thereupon asked Balu Bhau to wait there near the lady and told him that he would go to inform the Doctor. So leaving her in charge of Balu Bhau, he went to the Dispensary at Kudus. On reaching there, he learnt that Dr. Choudhary had gone to the Taluka town, Wada. He waited there for him and when after a long time the Doctor returned, he informed the Doctor that the woman had fainted and had fallen at a particular place. The Doctor asked him what was wrong. Thereupon respondent told him that he had given her an injection. On hearing that, the Doctor started and asked him as to who told him that he had given her an injection. He replied that Kamlabai had herself told him. Thereupon Dr. Choudhary according to respondent, took out a ten rupee note from his pocket, gave the same to him and asked him not to speak about his giving any injection to her. The Doctor also asked him that he should meet him at Ambadi Naka at 1.00 p.m. on the next day and give a statement to the police as instructed by him. Then he went to his house at Malanpada and there he learnt that witness Balu Bhau Patil was shouting that the woman had died. The respondent, however, did not go to the hill to see her. Next morning as required by the Doctor he went away and waited for the Doctor at the Ambadi Naka till 1.00 p.m. but instead of the Doctor coming to meet him a constable came there and caught him.

9. The learned Sessions Judge accepted the prosecution evidence as substantially true. He also held that the confession made by the respondent was voluntary and true. He rejected the story put forward by the respondent in his statement under Section 342 Criminal Procedure Code. Finding that there was no extenuating circumstance in the case he sentenced the respondent to death under Section 302, I.P.C.

10. In appeal the High Court felt a doubt as to whether the cause of death was throttling. It was of the opinion that Asphyxia due to poisoning had not been eliminated and in its opinion, the Medical evidence was not sufficiently strong and conclusive to be relied upon without hesitation. On merits it held that the confession could not be made on the basis of conviction and observed as follows :

"The only facts which are firmly established on the record are that on the 26th January 1968 at about 4 or 4.15 p.m. the accused was in the company of the lady, and within a relatively short time thereafter the dead body of the lady was found in the vicinity of the place where the accused and the deceased were seen together and the death of the lady was homicidal and very probably as a result of throttling. These facts may no doubt throw a certain amount of suspicion on the accused and point out to the possibility that the accused may have something to do with the death of the lady, but in the absence of other evidence either direct or circumstantial which will in a positive and unmistakable manner connect him with the offence it will not be possible to convict him."

Accordingly holding that the offence had not been proved beyond reasonable doubt, the High Court acquitted the respondent.

11. It is contended before us on behalf of the State that the High Court improperly raised a doubt with regard to the cause of death when there was conclusive evidence that death was due to throttling. It is submitted that this doubt with regard to death being due to poisoning had no basis whatsoever in the evidence. Having entertained a doubt with regard to the cause of death, the High Court, it was submitted manoeuvred itself into a situation in which its approach to the evidence on merits could not be other than negative with the result that the High Court misapprehended the prosecution case and evidence resulting in grave miscarriage of justice.

12. We are satisfied on a perusal of the evidence that the High Court was entirety unjustified in raising a doubt with regard to the cause of death. There was nothing in the evidence even remotely to suggest that this was a case of poisoning. The deceased Kamlabai was a field worker in the Family Planning Department and she was busy on that day contacting couples with a view to persuading them to attend the Vasectomy camp on January 30, 1968. She took the respondent as a guide in the afternoon to go to the hut of one Pandu. She had walked a long distance from the village and at about 4.15 or 4.30 p.m. she had met Balu Bhau. P.W. 1 and Dagdu Aba Choudhary P.W. 6 near the cattle shed in Malanpada and it is they who told her that Pandu and his wife were not at home. Thereafter Kamlabai and the respondent turned back and went in the western direction by a footpath which passed through "Aricha Dongar" i.e. the hill of Ari which is full of jungle trees and bushes. They did not notice that there was anything wrong with the woman at the time. And this is important because if any poison was working in the womans system since morning as suggested so as to cause death within half an hour thereafter, they could not have failed to see something abnormal about her. Dr. Khatri P.W. 11 who performed the post-mortem examination next morning found that there were not less than 11 injuries on her body.

13. According to the Doctor all these injuries were ante-mortem and the first three which are already described were possible by the pressure of the fingers on the neck. The forth was a skin abrasion on the left side of the nose extending on the left side of the face and was about 3" in length. The fifth injury comprised two abrasions 1" away from the mouth. The sixth injury consisted of five abrasions on the right elbow. The seventh was an abrasion near the eye. The eighth was an abrasion on the right leg 6" above the ankle joint. The ninth was an abrasion on the left ankle joint. The tenth was an abrasion on both joints and was 2" in length and the eleventh injury, was a haemorrhage under the skin of the neck. On opening the body, he found that the brain, pluera, the right lung, left lung, pericardium and half of the heart were congested. There was white froth in the larynx trachea and bronchi. The lungs were blackish. The Bucal cavity, the pharynx, liver, the pancreas the spleen and kidneys were congested. Having regard to these indications the Medical Officer found no difficulty in coming to the conclusion that cause of death was due to Asphyxia due to throttling. In his cross-examination, he stated that there was sub-cutaneous haemorrhage to the wind pipe though there was no injury to the hyoid bone. In this opinion that bone is not fractured by the pressure of fingers. He further stated that there was a haemorrhage under the muscles of the neck and there was no mark of any injection on the body of the lady. It was not suggested to the Medical Officer that Asphyxia in this case could have been the result of some poison. No opportunity was given to him to explain if there would or would not be other visible indications if it was a case of poisoning. In the Trial Court it was not disputed at the time of the arguments that death was due to throttling. But the point seems to have been taken up for the first time in the High Court, the contention being based upon the story put forward by the respondent. In that statement, as already seen, the respondent put forward the story that the deceased had told him that Dr. Choudhary of Kudus Dispensary had given her some injection and that was probably the reason why she was feeling giddy. He further suggested that when he met Dr. Choudhary in the evening he told him what he had learnt from the deceased and this made the Doctor start. It was also alleged that Dr. Choudhary gave him a currency note of Rs. 10/- as hush money and to keep quiet about it. The suggestion was that Dr. Choudhary must have administered some poisonous injection in the morning and that must have been the cause of death. There was no basis in the evidence for this tall story told by the respondent. Dr. Khatri was asked on behalf of the respondent as to whether there was any mark of injection on the body of the lady and he replied that there was no such mark. Dr. Choudhary, P.W. 9 was examined in this case and he denied that he given any injection on the morning of January 26, 1968 to her. As a matter of fact he had not met her on the morning of January 26, 1968. There was absolutely no basis, therefore, for arguing that death might be due to poisoning. If as suggested by the respondent death was due to some poison working in her system that afternoon, it is impossible to account for the various injuries which unmistakably show physical violence and signs of throttling. The respondent stated that he had called Balu Bhau, P.W. 1 to the scene when the deceased was feeling giddy and had gone away to inform Doctor Choudhary after keeping Balu Bhau near the ailing woman. But no suggestion to that effect was made to either witness in their cross-examination. The whole story of the respondent is a tissue of lies and it is rather surprising that the High Court should have unnecessarily drawn on its own medical knowledge that Asphyxia is also possible in case of poisoning and that possibility had not been completely eliminated by the medical evidence.

14. The High Court appears to have thought from the contents of the post-mortem examination report that Dr. Khatri did feel that the contents of the viscera were necessary to be examined with a view to detect if there was any poison. There is no basis for this in the evidence. Dr. Khatri has nowhere stated that he had kept the viscera with a view to examine its contents for poison. The High Court seems to have come to this conclusion from the forwarding report made to the Police Sub-Inspector by the Medical Officer which reads as follows :

"Viscera has been preserved. It may please be stated immediately whether examination by the Chemical Analyser is necessary or it is to be destroyed."

From this, it appears, the High Court concluded that the Medical Officer had his own doubts and that was the reason why the viscera had been preserved. With respect the High Court has completely misread the report. There is a regular printed form prescribed by the Government for recording the results of post-mortem examinations. That form is divided into three parts. The first part deals with the general particulars. The second part deals with the external examination of the dead body and the third part deals with the internal examination. On one side of the form there are 22 printed paragraphs to help the Medical Officer in properly examining the body and nothing down his observations in the blank portion opposite these paragraphs. At the end of the 22nd paragraph the Medical Officer has to give his opinion as to the probable cause of death and against this printed matter the Medical Officer performing the post-mortem examination has to give his opinion. The opinion recorded in this case is Asphyxia due to throttling. In the previous column or para 21 the following item is in print :"State which viscera (if any) have been retained for chemical examination and also quote the numbers on the bottles containing the same."

Now, if a Medical Officer, during the course of his examination, has reason to believe that it is a case of poisoning he must indicate here against this printed column which viscera is retained and in what bottles. In the present case we find that the Medical Officer has merely stated Nil against this column which means that he had not felt it necessary that any viscera was to be retained for chemical analysis. In the case of suspected poisoning the Medical Officer never gives his opinion below column 22 until the viscera is sent to the Chemical Analyser and his report is obtained. In the present case, not only does the report clearly show that Doctor Khatri did not suspect any poisoning but he has given a positive opinion after the post-mortem examination that death was due to Asphyxia because of throttling. Now the writing on which the High Court relied for thinking that the Doctor had his own suspicions, comes not in the post-mortem examination report but in that portion below the report which contains his communication to the Investigating Officer. It is to be found in the forwarding part of the report. That portion is also printed and nobody attaches any importance to the same when the Medical Officer has given a definite opinion about the death below column No. 22. That printed matter about the viscera being preserved is retained in the forwarding part of the report out of abundant caution because even if the medical officer has already formed his opinion about the cause of death the Investigating Officer may have his own views as regards the cause of death having regard to the investigation made by him. Though the Medical Officer might be of the view that the viscera need not be preserved for the detection of any poison and death was due to some cause unconnected with poison, the Investigating Officer, in the course of investigation, may feel that the cause of death of poisoning has to be eliminated. The printed matter with regard to the preservation of the viscera is indirectly a notice to the Medical Officer that he has to preserve the viscera till the Investigating Officer feels that it was no longer necessary to preserve it. Therefore, out of abundant caution every post-mortem report form as used in Maharashtra, contains this para about the preservation of the viscera, the idea simply being that in spite of the Medical Officer not suspecting any poison he was not at liberty to destroy the viscera until he finally hears from the Investigating Officer that the viscera might be destroyed. In our opinion, the High Court completely misunderstood the printed matter with regard to the preservation of viscera and without any warrant thought that the Medical Officer Dr. Khatri had himself suspected some poisoning and had, therefore, preserved the viscera. In our opinion death in the present case was caused by throttling and the marks on the face and the neck leave no doubt whatsoever that the deceased Kamlabai was throttled to death. In this connection, it may be remembered, that Kamlabai though about 26 years old, was thin of built. That is how she has been described in the post-mortem notes and also by Dr. Choudhary, P.W. 9 in his evidence.15-23. It is true that there is no direct evidence as to throttling. No body says that he had seen the respondent actually throttling Kamlabai. But the circumstantial evidence, in our opinion, is so ample and satisfactory that we are constrained to observe that the High Court must have persuaded itself to give the benefit of doubt to the respondent because of the unwarranted doubt it entertained regarding the cause of death. We have here a body of evidence which is absolutely disinterested.

After discussing the prosecution evidence in Paras 15 to 23 the judgment proceeds.

24. There is one more important piece of evidence and that is the confession of the respondent. The respondent was arrested on the 27th at Ambadi Naka some 6 miles away from Kudus and when brought before the P.S.I. It was noticed that he had a fresh skin abrasion on the left knee joint. It is quite possible that such an injury could be caused in a variety of ways. It is equally probable that during the struggle with the woman or when he was sitting on the chest of the woman while throttling, the knee might have rubbed against the earth. The injury however, is of no great importance. But the same in our opinion, cannot be said about the confession. After his arrest he was produced before the Judicial Magistrate at Wada, next day i.e. on the 28th January and he was not remanded to police custody but to judicial custody. On the 29th the Investigating Officer Pagare wrote to the Taluka Magistrate Mr. Ahirrao that the respondent, who was in judicial custody, was willing to make a confession and he should, therefore, record his confession. The practice in Maharashtra is for Executive Magistrate to record confessions. Recording of confessions is not normally done by judicial Magistrates. Mr. Ahirrao, P.W. 10 after receiving the memo from the P.S.I. wrote to the Judicial Magistrate and procured the respondents presence before him at 10.00 a.m. on January 30, 1968. He observed all the necessary preliminaries in order to ascertain whether the respondent was going to make a voluntary statement and, on being satisfied, he sent him back to the Sub-Jail giving him opportunity for further reflection. On the next day i.e. on 31st January he was again produced before Mr. Ahirrao at about noon and since he was willing to make a voluntary statement Mr. Ahirrao recorded the statement which was duly signed by the respondent after being read over to him. Mr. Ahirrao in his evidence says that he was convinced that the respondent had made the confession voluntarily. In this confession which is as Ext. 20 the respondent stated that on the afternoon of January 26, 1968 he was accompanying Vaidyabai i.e. to say Kamlabai for showing the houses which she wanted to visit and they were moving from one hamlet to another. On the way they had to go through the trees. When they were in the trees be tried to commit forcible rape on the woman and when she began to cry he throttled her. If the statement is accepted as both voluntary and true the court would be entitled to base its conviction thereon. Though the Sessions Judge accepted this confession as voluntary and true the High Court does not appear to have been fully satisfied. It described the confession as very short and concise and observed that its very brevity raises a certain amount of suspicion. It is true that the confession is a brief confession. But the incident was also a brief incident. The respondent and the young woman were going through the jungle and they were alone together at the time. On a certain sexual impulse he decided to criminally assault her and the whole incident must have been over throttling and all in less time than was required to record his statement. He has referred to the fact that he was her companion at the time. He has also referred to the fact that he was moving with her from one hamlet to another because she wanted to visit the houses. He has also mentioned the fact that both of them were going through the trees by which he clearly indicated that they were going through the jungle of Aricha Dongar. He tried to commit rape and as she began to cry, he says, he throttled her. What the respondent has stated is amply corroborated by the evidence already discussed. Therefore, there cannot be any doubt with regard to the truthfulness of the statement. As to whether it was a voluntary statement or not, we do not feel the slightest doubt that it was voluntary. Except for the day of his arrest, he was not in police custody. He was remanded to judicial custody on the 28th and was produced for his confession before Mr. Ahirrao on the 30th on which day in answer to questions put by Mr. Ahirrao he informed him that he was going to make a voluntary statement. A days time for reflection was given and on the 31st this statement has been recorded. He was specifically asked about this confession in the committing court. He merely replied that he will state whatever he has to say in the Sessions Court. He was asked about his signature on the confession. He admitted that he had signed it. The point to be noted is that he did not retract his confession in the Committing court nor did he remotely suggest that there was any pressure on him from any quarter to make the confession. In the Sessions Court also he does not allege that he was under any pressure. In his replies to questions put to him under Session 342 Criminal Procedure Code he took the stand that he had not made such a statement and that he was merely made to sign a writing by Mr. Ahirrao, who did not read over the writing to him. There is no suggestion also here that there was any pressure from any source for making that statement. We are, therefore, satisfied that the confession was also voluntary and we agree with the learned Sessions Judge in this respect. The High Court suspected the confession not merely because it was brief but also because the High Court expected the respondent to satisfy his sexual impulse. The High Court observes :"Now, it may be that while they were passing through Aricha Dongar, a sudden impulse to commit the offence might have come over the accused. But if he was working under the influence of the said impulse, we do not see why he did not satisfy it. The confessional statement gives no indication whatsoever as to why he should have given up the attempt to ravish her and strangle her. The only reason that the confessional statement gives is that as she cried, he throttled her. Now, if a person who is overcome by lust and wants to satisfy the lust by ravishing a woman whom he has found helpless in a lonely place, it is difficult to see why he will stop at satisfying his lust simply because the woman starts crying. It may be that after satisfying the lust, in order be that the woman should not involve him in crime by giving information about the offence committed by him he may strangle her and silence her for good. The mere crying of the woman does not appear to be a probable reason for the accused to give up his attempt to rape and proceed to strangle her instead."

25. In our opinion such an approach is entirely unjustified. There can be very little doubt that he wanted to revish her. His attempt was frustrated by the timely arrival of Balu Bhau and the lady running away from the place crying. He did not throttle her because he felt pity on seeing her crying. He throttled her because the crying indicated that there was future trouble for him. Indeed he would have ravished her but for the arrival of Balu Bhau. He was frustrated in his attempt. On top of it the woman was crying which foreboded bad days for him and that was why he throttled her.

26. In our opinion, there is considerable force in the submission made on behalf of the State that the High Court adopted a negative approach to the evidence in this case after improperly entertaining a doubt about the cause of death. There has been grave miscarriage of justice, and, therefore, the judgment of the High Court is liable to be reversed. The respondents conviction by the learned Additional Sessions Judge under Sections 302 and 376 r/w 511, I.P.C. was correct and is confirmed.

27. This was pre-eminently a fit case for the imposition of the sentence of death. The only question is whether this court should do it now. The trial of the respondent was over in April, 1968 and he was sentenced to death by the Additional Sessions Judge on 27-4-1968. We are not in 1972. In the interval the High Court had acquitted him and set him free. We, therefore, think that he should be sentenced to imprisonment for life for the offence under Section 302, I.P.C. The sentence imposed by the Additional Sessions Judge for the offence under Section 376 r/w 511, I.P.C. is confirmed. The sentences shall run concurrently.

28. Appeal allowed.