JOSE @ PAPPACHANversusTHE SUB-LNSPECTOR OF POLICE, KOYILANDY & ANOTHER

                        [2016] 8 S.C.R. 115



                      JOSE @ PAPPACHAN                                   A
                                 v.
     THE SUB-lNSPECTOR OF POLICE, KOYILANDY &
                     ANOTHER
                 (Criminal Appeal No. 919 of2013)                        B
                        OCTOBER 03, 2016
   [PINAKI CHANDRA GHOSE AND AMITAVA ROY, JJ.]
       Penal Code, 1860: s.302 - Death of appellant's wife by
hanging - Prosecution case that appellant alo11g with his brother        c
murdered his wife - Conviction of appellant only u/s.302 - Acquilla/
of appellant and brother-accused u/s.498-A - Conviction
challenged by appella11t - Held: The evidence of witnesses when
considered in conjunction with the testimony of the doctor did not
link the appellant directly or indirectly with the actual act leading
to the unnatural death of the deceased - The circumstantial evidence     D
adduced by the prosecution fell short of the require111e11t i11 law to
return a .finding of guilt against the appellant ll'ithout any element
of doubt whatsoever - The fact that both the accused persons were
exonerated of the charge of cruelty u/s. 498A and that the co-
accused, who allegedly had assisted the appellant in the
                                                                         E
perpetration of the crime had been fully acquitted by the courts
below of all the charges also weakens the prosecution case - The
 facts and circumstances admit of a reasonable doubt in favour of
appellant - Benefit of doubt grarited to him.
      Criminal jurisprudence: Suspicion of commission of crime -
                                                                         F
Held: Suspicion however grave cannot take the place of proof -
Prosecution in order to succeed on a criminal charge cannot afford
to lodge its case in the realm of "may be true" but has to essentially
elevate it to the grade of "must be true".
      Allowing the appeal, the Court
                                                                         G
     HELD: 1. Admittedly there is no eye-witness to the incident.
The testimony of PWs 1, 6 and 7 would evince that when the
persons sent by the appellant had reached the house of the
appellant to fetch the medical records of his brother, they found
the door open and when the deceased did not respond to their
                                                                         H
                                 115
116            SUPREME COURT REPORTS                      [2016] 8 S.C.R.


A     call, they entered through the door and found her in a hanging
      posture with movements, whereupon they raised alarm for which
      the appellant and others rushed to the place and the body of the
      deceased was brought down by cutting the saree. Though the
      conduct and the movements of the appellant prior thereto had
      been somewhat unusual and disoriented, the same per se does
B
      not irrefutably establish his culpability. The medical evidence also
      does not decisively establish the case to be of homicidal hanging.
      The unchallenged expositions of the doctor performing the post-
      mortem examination highlighting the absence of the characteristic
      attributes attendant on death due to homicidal hanging following
c     strangulation further reinforce the possibility of suicide. The
      absence of definite medical opinion about the homicidal death of
      the deceased is a serious set back to the prosecution. [Paras 45,
      47 and 48] [132-G; 133-E-G]
         2. The evidence of the witnesses when considered in
D conjunction with the testimony of the doctor does not link the
  appellant directly or indirectly with the actual act leading to the
  unnatural death of the deceased. In absence of any persuasive
  evidence to hold that at the relevant time the appellant was
  present in the house, it would also be impermissible to cast any
  burden on him as contemplated under Section 106 of the Evidence
E Act. The consistent testimony of the appellant and his son to the
  effect that after alighting from the bus on their return from Pota,
  the deceased was made to accompany DWl back home while the
  appellant did go in search of labourers for works in his compound
  on the next day and that thereafter till the time DWl had departed
F for his ancestral house, the appellant did not return home,
  consolidates the defence plea of innocence of the appellant. This
  version of the appellant and his son is in accord with the statement
  made by the appellant under Section 313 Cr.P.C. as well. The
  reasoning of the courts below to dismiss the testimony of DWl
  as untrustworthy on the ground that he feigned ignorance about
G the lady with whom his father allegedly had extra marital affairs
  and towards the appellant and thus insensitive to the death of his
                                                                   1
  mother cannot be accepted. This witness at the time of his
  deposition was a major with the required maturity in the life's
  perspectives, and expectedly would not have lied for the appellant,
H
 JOSE @ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                    117
                   KOYILANDY

his father, only to see him through, though knowing him to be the    A
real perpetrator of the crime. This is more so when the deceased
was his own mother. [Paras 49, 50)(133-H; 134-A-E]
       3. The prosecution plea that the appellant had resigned from
the service in the police depa11ment to move out to Jeddah/Saudi
Arabia with the intention to perpetuate his illicit association with B
the lady thereat and that in a way he had deserted the deceased
and the children, is also not borne out definitively by the materials
on record. On the other hand, a plain perusal of the letters written
by the deceased to the appellant while he was abroad, do not
reveal anguished outbursts of a wife otherwise expected in such C
a situation or any fervent insistence for early return. Instead the
contents thereof reveal narration of mundane happenings of day
to day life, emphasis on the need for his required stay thereat for
enhanced savings together with somewhat intimate feelings
expected of a married couple physically estranged by compulsion
of circumstances. The letters for the least, do not suggest any D
 bitterness, disappointment, frustration and seething indignation
of the deceased for the appellant being away at Jeddah/Saudi
 Arabia and allegedly with the lady. Instead there are traces of
 cheer for his expected return in near future. The authenticity of
 these letters and also of the records relied upon by the defence
 to demonstrate that the appellant while abroad used to remit E
 money for the sustenance of the family, has not been impeached.
 On an overall consideration of the evidence available on record,
 it would be wholly unsafe to hold the appellant guilty of the charge
 of murder of his wife. The circumstantial evidence adduced by
 the prosecution falls short of the requirement in law to return a F
 finding of guilt against the appellant without any element of doubt
 whatsoever. The fact that both the accused persons had been
 exonerated of the charge of cruelty under Section 498A IPC and
 that the co-accused, who allegedly had assisted the appellant in
 the perpetration of the crime had been fully acquitted by the courts
 below of all the charges also takes away the wind from the sails G
 of the prosecution. [Paras 51, 52][134-F-H; 135-A-D]
      4. In a criminal prosecution, the court has a duty to ensure
that mere conjectures or suspicion do not take the place of legal
proof and in a situation where a reasonable doubt is entertained
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118           SUPREME COURT REPORTS                        [2016] 8 S.C.R.


A in the backdrop of the evidence available, to prevent miscarriage
  of justice, benefit of doubt is to be extended to the accused. Such
  a doubt essentially has to be reasonable and not imaginary, fanciful,
  intangible or non-existent but as entertainable by an impartial,
  prudent and analytical mind, judged on the touch stone of reason
  and common sense. It is also a primary postulation in criminal
B
  jurisprudence that if two views are possible on the evidence
  available, one pointing to the guilt of the accused and the other
  to his innocence, the one favourable to the accused ought to be
  adopted.The facts as obtained in the present case present a jigsaw
  puzzle in which several frames are missing to permit an
c unreserved opinion of the complicity of the appellant. The
  evidence adduced by the prosecution constituting circumstantial
  evidence in support of the charge docs not furnish an unassailable
  basis to hold the appellant guilty of the charge of murder levelled
  against him. The facts and circumstances admit of a reasonable
  doubt in his favour. The circumstances brought forth by the
D
  prosecution do not rule out in absolute terms the hypothesis of
  the innocence of the appellant. It is wholly unsafe to maintain
  his conviction as recorded by the courts below. Therefore he is
  extended benefit of doubt to him. (Paras 53, 54,62 and 63)(135-
  E-H; 138-E-F]
E
           Sharad Birdhichand Sarda v. State of Maharashtra
           (1984) 4 SCC 116 : 1985 (1) SCR 88; R. Rajendran
           Nair _v. State qf Kera/a (1998) SCC (Crl.) 254; Sujit
           Bi.~was v. State qf Assam (2013) 12 SCC 406 : 2013 (3)
           SCR 830; Dhan Raj @ Dhand v. State of Haryana
F          (2014) 6 SCC 745 : 2014 (7) SCR 476 - referred to.
                            Case Law Reference
            1985 (1) SCR 88                  referred to      Para 43
            (1998) sec (Crt.) 254            referred to      Para 43
G           2013 (3) SCR 830                 referred to      Para 60
            2014 (7) SCR 476                 referred to      Para 61
            CRIMINAL APPELLATE JURfSDICTION: Criminal Appeal No.
      919 of2013.
H          From the Judgment and Order dated 2 l .1 l.20l2 of the High Court
 JOSE @ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                            119
                   KOYILANDY

ofKerala at Ernakulam, in Criminal Appeal No. 668 of2008.                    A
       Basant R., Raghenth Basant, M. F. Philip, KartikAshok,Abhishek
Tiwari (For Senthil Jagadcesan), Advs. for the Appellant.
      G. Prakash, Jishnu M. L., Mrs. Priyanka Prakash, Mrs. Beena
Prakash, Manu Srinath, Nishe Rajen Shonker,Advs. for the Respondents.
                                                                             B
      The Judgment of the Court was delivered by
      AMITAVA ROY, J. 1. The appellant stands sequentially
convicted by the both the Courts below under Section 302 of the Indian
Penal code (for short, hereinafter to be referred to as "IPC") and
resultantly sentenced to suffer imprisonment for life and also to pay fine   c
of Rs. 10000/-.
       2. At the trial. he along with his brother Benny Joseph, were
indicted under Sections 498A/Section 302 lPC read with Section 34
lPC for having murdered his wife Neena. The Trial Court however
acquitted both of them of the charge under Section 498A !PC. The co-         D
accused was also acquitted of the other charge. To reiterate, the
conviction of the appellant under Section 302 !PC having been sustained
by the High Court, he seeks panacean intervention in the instant appeal.
      3. We have heard Mr. Basant R., learned senior counsel for the
appellant and Mr. G. Prakash, learned counsel for the respondents.
                                                                             E
       4. To appropriately outline the factual premise, apt it would be at
the threshold to present the fascicule of the rival projections.
       5. The appellant was a police constable at the time of marriage
with the deceased on 19 .6.1986 as per their customary rites whereafter
they set up their matrimonial home to start with at their family house and f
thereafter at the places of his postings in service. Allegedly, he developed
an extra-marital relationship with one lady named Darly for which he
used to ill-treat and harass his wife both physically and mentally whenever
she used to express her reservations and objections to such alliance.
According to the prosecution, under the influence of the said lady, the
appellant even resigned from his job and proceeded for Jeddah in the G
year 1997 where he and the said Darly lived as husband and wife. It is
alleged that in order to legalise the relationship, the appellant plotted to
eliminate the deceased and with that end in view, returned to India on
22.8.2000. He thereafter accompanied Neena, the deceased, for a
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120            SUPREME COURT REPORTS                           [2016] 8 S.C.R.


A     spiritual retreat to "Potta Divine Retreat Centre" but abruptly cut sho11
      their stay thereat and returned home on 19.9.2000. The accusation is
      that after their return on that date, sometime in between 6.30 to 8.30
      p.m., the appellant smothered the deceased inside the room of his house,
      strangulated her by using a plastic rope and then hanged her from a
      hook of the roof of the work area of the house by using a saree and thus
B
      brutally murdered her. The prosecution has imputed that in this heinous
      act, the co-accused his brother, who since has been acquitted, had assisted
      him.
              6. The information of this i11cident was lodged by Mr. Cheriyan@
      Papputy with the Koonachundu Police Station whereafter the the
c     appellant and the co-accused, his brother were arrested on 21.9.2000
      and 15.11.2000 respectively. On the closure of the investigation, charge-
      sheet was laid against both the accused persons under Sections 498A/
      302 read with Section 34 IPC and eventually, the case was committed
      for trial to the Sessions Court, Kozhikod.
D            7. The accused persons denied the charge and claimed to be tried,
      whereafter the prosecution examined 25 witnesses including the doctor,
      who performed the post-mortem examination on the dead body as well
      as the investigating officer. Several documents were also proved and
      exhibited. The accused persons were examined under Section 313 Cr.P.C.
 E    They stood by their denial and refuted the correctness of the incriminating
      circumstances with which they were confronted. They also examined
      three witnesses in defence.
             8. The Trial Court, to reiterate, on a scrutiny of the evidence of
      the record and after analysing the rival contentions, acquitted both of
 F    them of the charge under Section 498A but held the appellant guilty of
      the offence of murder of his wife Neena and convicted him under Section
      302 JPC and sentenced him as above. The co-accused was exonerated
      of the charge under Section 302 IPC as well. The appellant failed to
      secure his acquittal before the High Court, which by the verdict impugned,
      has sustained the determination of the Trial Court.
 G
             9. Before adverting to the evidence adduced, it would be expedient
      to notice the defence plea for a purposeful appreciation thereof.
          10. It is the assertion of the appellant that being compelled by
   financial distress and with the consent and approval of the deceased, he
 H had gone to Saudi Arabia on 12.9.1997 in search of better pastures,
 JOSE@ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                               121
          KOYILANDY [AMITAVA ROY, J.]

after resigning from his service from the State Police Department. He          A
claimed that his relationship with his wife had always remained very
fond and affectionate and that out of the wedlock, they had two sons. To
endorse this contention, he referred amongst others to the letters written
by the deceased in particular to him while he was abroad. He maintained
that he used to remit finances for the sustenance of the deceased and
                                                                               B
the children and that on his return to the country, he on the request of the
deceased had accompanied to a divine retreat on 16.9.2000 to Potta,
wherefrom they returned on 19.9.2000.
       11. According to him, they alighted from the bus from Potta at
their destination at about 7 .30 pm. when they saw their elder son going -
for purchase of house hold a1ticles. He then sent the deceased home
                                                                           c
with his son and he went in search for labourers to work on his property
on the next day. He mentioned that in the process, he met Mullakkara
Kunhumon, Sainaba, Jameela and Palliparambil Thankan and finalised
with them for such work. According to him, he thereafter with Thankan
went to the house of Edattankuzhi Jose and Cheriyan@ Papputty but D
found that Jose was away for a meeting. He thereafter proceeded
towards his house and on the way was pushed down by two persons
hurriedly coming from the opposite direction. On his hue and cry, persons
from the locality rushed to the place and searched for these two persons,
but in vain. As in the process, the co-accused, his brother suffered
chest pain, the appellant requested Joy (PW7) and Cheriyan @ Papputty E
(PW I) to bring the necessary medical documents from his wife.
       12. These two persons after reaching the house of the appellant,
raised alarm and on hearing the cry, he (appellant) along with Anikkal
Babu and Thankan, who were present there, rushed to his (appellant)
house whereupon they saw Neena in a hanging posture from a hook in              F
the roof of the work area of the house and that Joy and Cheriyan @
Papputty were holding her legs to lift the body upwards. The appellant
thereafter took a knife (koduval) from his kitchen and brought down the
body by snapping the saree by which the body was hanging. They then
rushed Neena to the Medical College Hospital where she was declared            G
to be dead. The appellant while insisting that he was innocent, laid the
blame on the relations of the deceased to have foisted a false case
against him.
      13. As referred to hereinabove, the First Information Report was
lodged by Cheriyan @ Papputty at 9.30 a.m. on the next day i.e.                H
122            SUPREME COURT REPORTS                           (2016] 8 S.C.R.



A     20.9.2000, his version being that about 10 P.M. on 19.9.2000, while
      Benny (co-accused and brother of the appellant) was sitting in the tea
      shop of Pulluparambil Mathew (PW6), he suffered an epileptic attack
      for which he along with Mathew, on being requested by the appellant,
      went to his house to secure the medical papers from Neena. It was
      mentioned that when they reached the house, they found the door open
 B
      with a lantern lit inside. As on their calls, the deceased Neena did not
      respond, they entered the house and found her in a hanging position
      from the hook on the ceiling at the work area at the rear side of the
      house and that she was struggling for life. They having raised alarm by
      that sight, the appellant and his neighbourers including Kunjumon, Regi
 c    and Thankan arrived at the spot, whereafter the appellant cut the saree
      by which Neena was hanging and took her in a jeep to a Medical College
      Hospital where she was declared dead.
              14. In course of the investigation, the police conducted the inquest
      of the dead body and in the process also recorded the statement of PW6
 D    Mathew who was present. His statement, as recorded on the date of
      the inquest i.e. 20.9.2000, is to the effect that on 19.9.2000 at about 9
      p.m., while he was preparing to sleep, the appellant loudly called him as
      well as his brother Benny to come hurriedly. When the witness reached
      the place from where the appellant had shouted, he found the appellant
      asking somebody to stop and also abusing someone. When enquired,
 E
      the appellant, stated to have seen two persons who had pushed him
      down and had ran away. They thereafter engaged themselves in search
      of the persons refereed to by the appellant but in vain. According to the
      witness, the appellant's brother Benny started feeling sick for which
      Kunjumon, who was present, was asked by the appellant to cal 1a jeep to
 F    take him to the hospital. The appellant simultaneously asked the witness
      to go to his house and fetch the medical prescription from his wife Neena.
      The witness along with PW! Cheriyan @ Papputty then went to the
      house of the appellant and when Neena did not respond to their calls,
      they open the door which was not bolted and on reaching the kitchen
      area, they found the deceased in a hanging position from a hook atop the
 G    kitchen veranda by a saree, but was gasping for breath. On seeing this,
      both of them loudly raised alarm and raised Neena upwards by holding
      her legs. The witness further stated that by that time, the appellant and
      others came running by hearing their cries and the appellant brought a
      knife from the kitchen, cut the saree, brought down the body and then
 H
 JOSE @ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                                 123
            KOYILANDY [AMITAVA ROY, J.]

they took Neena thereafter in a jeep to Thalayada Hospital where the              A
nurse there recommended that she be taken to the Medical College
Hospital, They did so, but the doctor there declared her to be dead.
       15. The version in the FIR and the version of the informant, PW 1
Cheriyan @ Papputty and PW6 Mathew, made at the earliest point of
time after the incident, to start with, appear to be substantially consistent.    B
       16. PW! Cheriyan @ Papputty testified that at 9.30 p.m. on
19.9.2000, he had gone to sleep after dinner, when he was awakened by
PW7 Joy to be told that Neena had committed suicide. PW7, according
to the witness, then was accompanied by the appellant and PW6 Mathew.
He confirmed that prior to the date, the appellant and Neena had gone             c
together for retreat at Potta, leaving their children at their ancestral house.
On being questioned, the appellant divulged that they had returned the
same evening as Neena was adamant to come back.
       17. The witness stated that on getting the news, he along with
those present, including the appellant, ran to his house and on the way,          D
the appellant stopped a car that was passing and sent in it, the co-accused
Benny, his brother. The appellant thereafter sent Joy to bring a jeep.
When they reached the work area of the back of the house of the
appellant, they found Neena hanging from the hook attached to the
ceiling by a saree. The appellant brought a knife from the kitchen, cut
the saree and brought the body down with the help of others. The                   E
witness stated that in the meantime, Joy had come with the Jeep. They
all carried Neena firstly to a private hospital where a nurse, on being
told that it was a case of suicide, advised that the patient be taken to the
Medical College Hospital. When they reached the hospital, the doctor
on examining the Neena declared her to be brought dead.                            F
       18. The witness mentioned about the injuries above the nose and
side of the eyebrow and also swelling on the forehead of the Neena.
When the witness asked about the injuries, the appellant told him that
those might have been caused in the process of cutting the saree to
bring the body down. The information about the incident was lodged on             G
the next day by him and he proved the same as Ex. P-1. The witness
also confirmed that the appellant had later married one lady named Darly
and that he had been living with her thereafter.
       I 9. In the cross-examination, this witness disclosed that about 3/
1/2 years before the incident, the appellant had resigned from his service
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124            SUPREME COURT REPORTS                           [2016] 8 S.C.R.



A     in the police department and had gone to the Gulf leaving behind Neena
      and children in the house built by him. He also mentioned about the
      ancestral house of the father of the appellant about 200 meters away
      from his house. The witness admitted as well that the co-accused Benny,
      brother of the appellant, had been then suffering from epilepsy and on
      the date of the incident as well, he had a bout of attack thereof.
 B
             20. In the course of the cross-examination, this witness was sought
      to be discredited by referring to his earlier statements made in the course
      of the investigation. This was, as imputed by the defence as the principal
      witnesses PWI Cheriyan, PW6 Mathew and PW7 Joy had been
      examined twice by the police, the last being on 22.1.2004 on the eve of
 c    submission of the charge-sheet, with an endeavour to highlight that the
      earlier statements had been tailored as desired and suggested by the
      appellant. Noticeably, the time lag between the date of the incident and
      that of the second recording of the statement of these witnesses on
      22.1.2004, is nearly four years.
 D          21. PW6 Mathew deposed on oath that at the relevant time, he
      was running a tea shop in the locality which was very near the house
      where the appellant and the deceased used to reside. According to this
      witness, on the date of the incident at about 7 p.m., he had closed his
      shop to attend a meeting from where he returned at about 8.30 p.m. He
 E    found present at the shop, Jose, (nephew of the appellant) along with
      others. After some time they dispersed therefrom.
            22. According to the witness, later in the evening, when he had
      gone to sleep, the appellant came to his house at about 9 p.m. and called
      him. He also called his brother Benny and seemed to shout abuses at
 F    someone. The witness along with Jose ran towards the appellant and
      by that time, they reached the place, they found others gathered as well.
      The appellant disclosed to him that while he was returning to his house,
      he was pushed down by two persons on the way. The group assembled
      there, then tried to search for these persons but could not trace them.
      At that time, Benny, the brother of the appellant developed chest pain
 G    and he was taken to the shop of the witness. The appellant then requested
      the witness to go to his ancestral house to fetch tablets for Benny
      whereupon he along with Jackson did so. While passing by the front of
      the house ofappellant, they noticed thatthe lantern inside was lit butthe
      door was open. They did not see any movement in the house. The
 H    witness stated that when . he returned with the tabl~ts, the appellant
 JOSE @ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                             125
            KOYILANDY [AMITAVA ROY, J.]

enquired about the admit card and prescription for extending treatment        A
to Benny. On the request of the appellant thereafter, the witness along
with Joy PW7 went to the house of the appellant and when they reached
there, they called out for Neena, but she did not respond. On this, they
entered the house and found Neena hanging from hook in the roof of the
work area at the rear end of the house. He and Joy thereafter ran back
                                                                              B
to the shop to inform about the incident, whereupon the appellant and
PW! accompanied them back to the house. The appellant asked Joy
PW7 to bring a jeep to take Neena to the hospital. They then retrieved
the body and took Neena to the hospital where she was declared dead.
The witness mentioned that he had given the earlier statement as per
the instructions of the appellant and that when he was interrogated by        c
the Investigating Officer for the second time, he stated the correct facts.
      23. In the cross-examination, the witness was confronted with
the earlier statement that when he and PW6 had first seen Neena
hanging, she was struggling and that they raised her upward and raised
alarm on listening which the appellant and others had come running. He        D
however denied the suggestion that he had departed from the earlier
statement on being influenced by the family members of the Neena.
       24. PW7 Joy was a taxi driver at the relevant time and had a jeep.
This witness stated as well that at about 10 p.m. in the fateful night,
while he was sleeping in his house, two persons namely; Kunjumon and           E
Palliparambil called him and on being asked, requested him to come
with his jeep as Benny, brother of the appellant was unwell. On this, the
witness reached the shop by PW6 Mathew with his jeep and found
Benny sitting on the bench with the support on the desk. He met the
appellant who told him that Jackson and Mathew had gone to fetch
tablets for Benny and on their return, he (Benny) would be taken for          F
medical treatment. The witness further stated that when Jackson and
Mathew returned with the medicines, the appellant enquired of them
about the admit card and prescription which they stated had not been
brought. On this, the appellant requested them to get those papers from
his house, whereupon the witness and PW6 proceeded towards the house          G
of the appellant. This witness stated that on reaching the house of the
appellant, they saw the front door thereof to be halfopen but the kerosene
lantern inside was alight. As Neena did not respond to their calls, the
witness and PW6 entered the house and eventually found Neena hanging
from the roof of the service area with a saree. The witness stated that
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126             SUPREME COURT REPORTS                           [2016] 8 S.C.R.



A     they ran back, by seeing this to the shop of Mathew where they informed
      the appellant about the incident. On hearing this, the witness, PW! and
      PW6 rushed to the house of the appellant. On the way, the appellant
      stopped a car and sent Benny together with Jackson and others to the
      Medical College Hospital. The witness stated that at that point of time,
      the appellant asked him to bring the jeep to his house whereafter PW!,
B
      the appellant and others took Neena in his jeep to the hospital where she
      was declared dead. This witness admitted that the Investigating Officer
      had recorded his statement twice. He conceded that in the earlier
      statement, he disclosed that it was PW! who had first seen Neena in a
      hanging position. He added that such a statement was made on the
C     instruction of the appellant.
            25. In cross-examination, this witness stated that his first statement
      was recorded on 22/23.9.2000 at the Police Station and by then the
      appellant had been arrested on 21.9.2000. This witness too was
      confronted with his earlier statements.
D            26. PW20 Dr. Hitesh Sankar had conducted the post-mortem
      examination on the dead body and recorded swelling on the left side of
      the forehead together with dried blood stains on the upper part of the
      nose. Apart from pressure abrasion on the neck and fracture of the
      greater horn ofhyoid bone of the left side, he deposed about contusions
E     and abrasions on the forehead, eye brow, nose and jaw. He mentioned
      about scalp contusions as internal injuries.
              27. In his opinion, as expressed in his examination in chief, the
      findings in the post mortem were consistent with death due to
      strangulation fol lowed by hanging and further that the facial injuries were
 F    suggestive of attempted smothering. He thereafter answered in the
      affirmative to various leading questions to indicate amongst others that
      the Iin ear abrasion under the neck could be caused by applying a plastic
      rope as per the material exhibit shown to him. He also responded to
      one of the leading queries that the fracture of thyroid bone could be due
      to strangulation.
G
             28. In his cross-examination, the witness however in categorical
      terms conceded that he could not say as to whether it was a case of
      suicidal or homicidal hanging. The witness conceded that he had not
      noticed any blood stain on the material exhibit i.e. plastic rope or any
      stretch mark thereon. He also admitted of not noticing any fibre particle
H
 JOSE @ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                           127
            KOYILANDY [AMITAVA ROY, J.]

on the rope or on the neck of the deceased. He conceded as well that        A
there was no contusion/laceration on the inner aspect of the lips which
are normal feature in the case of smothering. He .also negatived the
presence of other attendant signs in case of death due to asphyxia
preceded by smothering. He however affirmed that the ligature mark
or the abrasion found on the neck was suggestive of hanging. He admitted    B
as well that hyoid and thyroid fracture could be caused due to pull up of
heightened noose moving up during hanging. He admitted of not having
mentioned any injury of nail mark in the post-mortem certificate.
       29. Apart from the fact that the nylon rope Ex.M04 and the broken
pieces of glass bangles had been recovered and seized from under a cot
in the dining room, away from the site of hanging, the report of the
                                                                            c
chemical examiner Ex.P20 did not disclose any blood stain on the plastic
rope. Though was indicated presence of hairs of human origin on the
said rope, it was clarified that no definite opinion could be given as to
whether the hairs belonged to a male or a female. To reiterate, the
doctor, PW20 also had affirmed that he did not notice any blood stain on    D
the nylon rope and instead added that neither was there any stretch
mark thereon nor did he notice any fibre particle thereof on the neck of
the deceased.
        30. Though the prosecution had examined several other witnesses,
their testimony being not of any decisive relevance would not be dilated    E
upon. The Investigating Officer of the case, however, in his evidence
amongst others admitted that the nylon rope and the bangle pieces were
recovered from the dining room. This also finds support from the seizure
list Ex. P-4.
       31. The appellant in his statement under Section 313 Cr.P.C., in     F
reply to the incriminating circumstances laid before him, stated that he
had resigned from police service as per the wishes ofNeena and due to
financial stringency and had gone to Saudi Arabia on 12.9.1997 and had
returned on 21.8.2000. According to him, there was an abiding and
affectionate relationship between the couple and that they had two sons
Akhil and Nikhil. He referred to the letters written by Neena to him        G
while he was abroad, amongst others to demonstrate the veracity of his
statement about the warm relationship which he shared with Neena.
He also asserted to have sent money to Neena and the children for their
sustenance and also referred to the relevant documents in endorsement
thereof. He mentioned about their visit to Potta on 16.9 .2000 and their    H
128            SUPREME COURT REPORTS                         [2016] 8 S.C.R.



A     return on 19.9.2000. He narrated the defence version as adverted to
      herienabove and claimed that death ofN eena had occurred due to suicide
      committed by her and denied the charge levelled against him and his
      brother Benny. He however admitted that after six years of the incident,
      on the insistence of his parents, he had married with one lady named
      Anna. He alleged that the prosecution had been launched by her in-
B
      laws who were hostile towards him.
         32. The appellant in his defence, examined his son Akhil as OW I,
  who at the relevant time, had finished his studies and was working in the
  production section at Fortune Hotel, Kozhikode. He deposed on oath
  that during his academic years, he resided with his mother and his younger
c brother named Nikhil. He stated that the appellant, his father was
  initially in the police service from where he resigned and went to Gulf
  for work in the year 1997 and had returned in August, 2000. He deposed
  that during the time his father was away, he used to stay with his mother
  and younger brother in their house at Edattankuzhiyil. He confirmed
D that the relationship between his mother and father was very cordial.
  He denied the appellant's association with a lady named Darly and as a
  matter of fact expressed ignorance about her. The witness admitted
  that the appellant used to send money while he was away by drafts and
  that he along with his mother used to go to the bank for that purpose.
  He also affirmed that the appellant used to be in touch with them through
E letters and phone calls. The witness proved two letters marked Ex 04
  & D4A which he admitted to have been written by his mother to the
  appellant. He testified that as well that even after the return of the
  appellant from the Gulf, his dealings with the mother and vice versa
  were warm and endearing.
 F           33. This witness endorsed the'fact as well that he met his parents
      on 19.9.2000 at about 7.30 p.m. when they alighted from the bus from
      Potta and were proceeding towards their house. He stated that at that
      point of time, he was also returning home with some household articles
      and thus he accompanied his mother back home while his father, the
 G    appellant went in search of labourers for the next day work in his
      compound. The witness stated that on their return, his mother prepared
      snacks, whereafter she told her to carry some articles to the ancestral
      house and accordingly he did so. The witness however added that
      though he waited for his parents to come to the ancestral house, they
      did not do so and he came to learn about the death of his mother in the
H
  JOSE @ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                               129
             KOYILANDY [AMITAVA ROY, J.]

next morning.                                                                    A
       34. In cross-examination, though this witness categorically denied
the suggestions put on behalf of the prosecution to project him to be
untruthful, he disclosed that on the date of the incident, he found his
mother to be under some mental stress. He however, in definite terms,
denied that when he met the appellant and his mother together for the            B
last time, there did not appear to be any strained feelings between
them.
        35. The testimony of the appellant on oath as DW2 is the
 replication of the defence version as already outlined and does not call
 for reiteration. He however proved the two letters dated 28.2.2000 and          c
 7.G.2000 written by the deceased to him and marked as Ex. 04 and
 D4A. He however mentioned that Neena was not happy for the early
 return from the divine retreat and repeated that having disembarked
 from the bus at 7.30 p.m., he sentNeena with his elder son Akhil back
 home, while he went in search of labourers for~the next day's work. He
 stated that while he was proceeding towards his house later in the evening,     D
 two persons came from the optJOSite direction, whom he failed to identify,
  pushed him down for which he suffered injuries on his hand. He thereafter
 shouted to attract people so as to apprehend these persons, but in vain.
· lk referred to the illness of his brother at that point of time and repeated
 the facts pertaining to the events that occurred thereatler leading to the       E
 discovery that Neena had hanged herself from the hook of the ceiling
 of the work area of their house.
      36. In cross-examination, amongst others, he admitted to have
brought down Neena by cutting the noose with the help of other persons.
He admitted as well his second marriage with Anna @ Darly.                        F
       37. DW3 Babu stated about the search made in the evening of
the date of the incident of the persons, who according to the appellant,
had pushed him down on his way to his house. He also stated about the
chest pain of Benny, brother of the appellant while the search was in
progress.                                                                        G
       38. As the i1npug11edjudgement would disclose, the High Com1
took note ·amongst others of the factum of second marriage of the
appellant with the lady Anna @ Darly as stated to be proved by the
evidence adduced. It also took note of the fact that the couple had gone
for the divine retreat for a week by arranging the stay of the children at
                                                                                 H
130            SUPREME COURT REPORTS                           [2016] 8 S.C.R.



A     the ancestral house but returned early. It dis be Iicved the testimony of
      D\V 1, the son of the appellant, construing it to be parti~an in favour of
      the appellant in order to save him, in the circumstances. His testimony
      was discarded as not of a prudent son otherwise cxp~ctcd to be sensitive
      to the death of his mother. The High Court denounced the OW I to be
      untruthful, for having expressing his ignorance about the second wife of
B
      the appellant Anna@ Darly. It thus concluded that sans the evidence of
      DWI, there is nothing on record to demonstrate that the appellant did
      not accompany his wife to the house that evening, whereafter she was
      not found alive.
               39. Apart from the "last seen together" index, the High Court
c     accepted the other perceived incriminating circumstances against the
      appellant namely his illicit intimacy with Anna@ Darly, absence of
      explanation of his whereabouts after 7 P.M .. till his presence in the shop
      of PW6 Mathew, r~covery of broken bangles of the deceased from the
      dining room indicating a struggle, nail mark found on the forehead of
[)    the appella11t suggesting resistance from the deceased and want of
      sat is factory explanation as to under what circumstances the deceased
      was found hanging in the house of the couple.
             40. The High Court rejected the defence story of two persons
      pushing the appellant down on his way to his house in the evening and
 E    also commented on his conduct of not rushing to the house as a prudent
      husband and instead arranging forthe conveyance of his brother to take
      him to the hospital even after being told that his wife had been found
      hanging in the house. On a consideration of the totality of the
      circumstances, the High Colll1 thus deduced that the death of Neena
      was l:omicidal and ~1ffirmed the conviction of the appellant as recorded
 F    by theTrial Court.
         41. In ,l;is cuntcntious backdrop, Mr. Brrs:111t has emphatically
  urged that in the absence of any eye witness of the occurrence and a
  convincing and complete chain of circumstantial evidence unerringly
  attesting the guilt of the appellant, his conviction for murder, in the teeth
G of the acquittal of the co-accused Benny, his brother, is patently illegal.
  Asserting that the evidence as a whole does unmistakably demonstrate
  that the deceased had committed suicide, the learned senior counsel has
  urged that the acquittal of the appellant and his co-accused of the charge
  under Section 498A !PC also belies the imputation of his extra-marital
H association with the lady Dnrly as alleged by the prosecution. According
 JOSE @ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                             131
            KOYILANDY [AMITAVA ROY, J.]

to him, the narration in the first information report authored by PW! A
and the statement of PW6 in the inquest report at the earliest point of
time though authenticate the correct state of affairs, the attempt on the
part of the investigating agency to improve thereon by re-recording of
the statements of these witnesses along with that of PW? was only to
frame the appellant in particular at the behest of his in-laws.
                                                                              B
       42. In any view of the matter, Mr. Basant has urged that the
interrogation of these witnesses after time lag of almost four years and
too on the eve of submission of the charge-sheet, lays-bare the stratagem
of the investigating agency to prosecute him on otherwise unfounded
allegations. The learned senior counsel has insisted that not only the
testimony of PW!, PW6, PW? and PW20, the doctor who had perfonned
                                                                          c
the post-mortem examination is consistent with the innocence of the
appellant, it is apparent from the documentary evidence more
particularly the letters Ex. 04 and D4A written by the deceased to him
that there was a subsisting loving and affectionate relationship between
them till the demise of the former. He has argued that the medical D
evidence having failed to convincingly prove that the deceased had died
of homicidal hanging, the seizure of the nylon rope and broken pieces of
 bangles from under the cot of the adjoining dining room pales into
insignificance. It has been urged that the evidence of the son of the
appellant, who was a major at the time of his deposition with the desired
 maturity of understanding, overwhelmingly establishes his innocence, E
there being no persuasive reason forthe witness to lie in his favour and
against his mother.
       43. According to Mr. Basant, the courts below grossly erred in
discarding his evidence being unworthy of credit, branding him to be
insensitive to the death of his mother and pretentious in faking ignorance     F
of the lady named Anna @ Darly and her alleged extra-marital
relationship with the appellant, The learned senior counsel has maintained
that in absence of any concrete evidence of the alleged illicit nexus
between the appellant and the lady named Anna @ Darty, his marriage
with her did not ipso facto establish the imputation. Mr. Basant has           a
urged that the circumstantial evidence relied upon by the prosecution is
incoherent and insufficient in form, continuity and content and falls short
of the legally prescribed standards to return a finding of guilt on the
basis thereof. Reliance has been placed on the decisions of this Court
in Sl"'r"d Birdltic/1mul S(lr</(I vs. S/(l/e of Mallaraslttr" (1984)4
                                                                               H
132             SUPREME COURT REPORTS                          [2016] 8 S.C.R.



A     SCC 116 and R. Rajemlran Nair vs. State of Kera/a (] 998) SCC
      (Crl.) 254
              44. In refutation, the learned counsel for the respondents has
      maintained that the circumstantial evidence available on the record does
      amply establish the complicity of the appellant in the gruesome murder
8     of the deceased, his wife by strangulation with the aid of a nylon rope
      seized and then suspending her from the roof of the work area by using
      a saree as a ligature. The guilt of the appellant, according to the learned
      state counsel, inter alia is unerringly deducible from his unusual conduct
      of not rushing back home even after being informed of the incident and
      instead in arranging for a conveyance for his brother to the hospital.
c     Further, he did not act as a prudent husband, even if his story of being
      pushed down by two strangers is believed in not hurrying back to his
      house to ensure the safety of his wife, the deceased. It has been argued
      that deceased was seen alive last in the company of the appellant when
      they alighted from the bus at 7.30 p.m. in the same evening. According
D     to the learned state counsel, the testimony of DWI, the son ofthe appellant
      is wholly untrustworthy, it being partisan and untruthful and in that view
      of the matter, the mishap having occurred inside the house in which the
      couple used to live, the appellant, in absence of any explanation for the
      episode, has been rightly held to be guilty of the offence charged by both
      the courts below. It has been argued that the medical evidence fully
E
      substantiates the charge of murder level led against the appellant and the
      prosecution having been able to prove that the motive therefor being to
      eliminate the deceased in order to facilitate the consummation of the
      otherwise illicit relationship of his with Anna@Darly, no interference
      with his conviction is warranted in the facts and circumstances of the
F     case. The fact that the appellant eventually married the said lady, amply
      establishes the charge as well, he urged.
             45. The arguments exchanged have received our anxious
      consideration cumulatively with the evidence on record. Admittedly there
      is no eye-witness to the incident. The endeavour of the prosecution,
G     however has been to demonstrate that after the couple had returned
      from Pota in the evening of the date of the episode, they returned home
      and thereafter the appellant had committed the murder of his wife Neena
      by first strangulating her with the nylon rope that was recovered from
      under the cot in the dining room and then had hanged her from the hook
      of the roof of the service area by using a saree as a ligature. This
H
 JOSE@ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                                133
          KOYILANDY [AMITAVA ROY, J.]

inference, according to the prosecution, is inevitable from the attendant       A
facts and circumstances. The quality and the decisiveness of such
evidence, therefore, would be of determinative relevance.
       46. Aside the aspect that PW s I, 6 and 7 had been examined
twice by the investigating agency at the interval of almost four years,
we have been left unconvinced by the peripheral variations in their B
statements so as to infer the complicity of the appellant on the basis of
their attempted departure from their versions recorded at the earliest
point of time. Though these witnesses have been sought to be discredited
by the prosecution vis-a-vis their earlier statements allegedly made at
the behest of the appellant, the essence of their testimony qua the incident
and the attendant facts and circumstances has remained the same barring
                                                                             c
a few inconsequential inconsistencies. Noticeably, there is no reason
forthcoming for re-examining these witnesses after almost four years
and on the verge of the submission of the charge-sheet. The plea of
false implication at the instance of the inimical members of the family of
the deceased in this context thus assumes significance.                      D
       4 7. Suffice it to recount that the testimony of PW s I, 6 and 7
would evince that when the persons sent by the appellant had reached
the house of the appellant to fetch the medical records of his brother
Benny, they found the door open and when the deceased did not respond
to their call, they entered through the door and found her in a hanging          E
posture with movements, whereupon they raised alarm for which the
appellant and others rushed to the place and the body of the deceased
was brought down by cutting the saree. Though the conduct and the
movements of the appellant prior thereto had been somewhat unusual
and disoriented, the same per se in our estimate does not irrefutably
establish his culpability.                                                       F

       48. The medical evidence as elaborated hereinabove also does
not decisively establish the case to be of homicidal hanging. The
unchallenged expositions of the doctor performing the post- mortem
examination highlighting the absence of the characteristic attributes
attendant on death due to homicidal hanging following strangulation further      G
reinforce the possibility of suicide. The absence of definite medical opinion
about the homicidal death of the deceased in our comprehension is a
serious set back to the prosecution.
       49. The evidence of the eye-witnesses when considered in
                                                                                 H
134           SUPREME COURT REPORTS                         [2016] 8 S.C.R.


A conjunction with the testimony of the doctor does not link the appellant
  directly or indirectly with the actual act leading to the unnatural death of
  the deceased. Jn absence of any persuasive evidence to hold that at the
  relevant time the appellant was present in the house, it would also be
  impermissible to cast any burden on him as contemplated under Section
  106 of the Evidence Act. The consistent testimony of the appel !ant and
B
  his son to the effect that after alighting from the bus on their return from
  Pota, the deceased was made to accompany DWI back home while the
  appellant did go in search oflabourers for works in his compound on the
  next day and that thereafter till the time DWI had departed for his
  ancestral house, the appellant did not return home, consolidates the
c defence plea of innocence of the appellant.
          50. This version of the appellant and his son is in accord with the
   statement made by the appellant under Section 313 Cr.P.C. as well.
   Though the courts below have dismissed the testimony of DWI as
   untrustworthy, he having feigned ignorance about the lady Darly with
D whom his father allegedly had extra marital affairs and was construed
   to be partisan towards the appellant and insensitive to the death of his
  'mother, we are unable to lend our concurrence to these reasonings.
   This witness atthe time of his deposition was a major with the required
   maturity in the life's perspectives, and in our assessment expectedly
   would not have lied forthe appellant, his father, only to see him through,
E
   though knowing him to be the real perpetrator of the crime. This is more
   so when the deceased was his own mother.
         51. The prosecution plea that the appellant had resigned from the
  service in the police department to move out to Jeddah/Saudi Arabia
  with the intention to perpetuate his illicit association with the lady Darly
F thereat and that in a way he had deserted the deceased and the children,
  is also not borne out definitively by the materials on record. On the
  other hand, a plain perusal of the letters Ex. D4 and Ex.D4A written by
  the deceased to the appellant while he was abroad, do not reveal
  anguished outbursts of a wife otherwise expected in such a situation or
G any fervent insistence for early return. Instead the contents thereof
  reveal narration of mundane happenings of day to day life, emphasis on
  the need for his required stay thereat for enhanced savings together
  with somewhat intimate feelings expected of a married couple physically
  estranged by compulsion of circumstances. The letters forthe least, do
  not suggest any bitterness, disappointment, frustration and seething
H
 JOSE@ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                               135
           KOYILANDY [AMITAVA ROY, J.]           .

indignation of the deceased for the appellant being away at Jeddah/ A
Saudi Arabia and allegedly with the lady, Darty. Instead there are traces
of cheer for his expected return in near future. The authenticity of
these letters and also of the records relied upon by the defence to
demonstrate that the appellant while abroad used to remit money for the
sustenance of the family, has not been impeached.
                                                                               B
       52. On an overall consideration of the evidence available on record,
it would be, in our view, wholly unsafe to hold the appellant guilty of the
charge of murder of his wife by strangulating her with the nylon rope as
seized and then hanging her from the roof with the saree to complete the
act. The circumstantial evidence adduced by the prosecution in our
assessment falls short of the requirement in law to return a finding of
                                                                               c
guilt against the appellant without any element of doubt whatsoever.
The fact that both the accused persons had been exonerated of the
charge of cruelty under Section 498A !PC and that the co-accused,
who allegedly had assisted the appellant in the perpetration of the crime
had been fully acquitted by the courts below of all the charges also           D
takes away the wind from the sails of the prosecution.
       53. It is a trite proposition oflaw, that suspicion however grave, it
cannot take the place of proof and that the prosecution in order to
succeed on a criminal charge cannot afford to lodge its case in the realm
of"may be true" but has to essentially elevate it to the grade of"must be       E
true". In a criminal prosecution, the court has a duty to ensure that
mere conjectures or suspicion do not take the place oflegal proofand in
a situation where a reasonable doubt is entertained in the backdrop of
the evidence available, to prevent miscarriage ofjustice, benefit of doubt
is to be extended to the accused. Such a doubt essentially has to be
reasonable and not imaginary, fanciful, intangible or non-existent but as       F
entertainable by an impartial, prudent and analytical mind, judged on the
touch stone ofreason and common sense. It is also a primary postulation
in criminal jurisprudence that if two views are possible on the evidence
available, one pointing to the gui It of the accused and the other to his
innocence, the one favourable to the accused ought to be adopted.               G
      54. The facts as obtained in the present case present a jigsaw
puzzle in which several frames are missing to permit an unreserved
opinion of the complicity of the appellant.
       55. The inalienable interface of presumption of innocence and the
                                                                               H
136             SUPREME COURT REPORTS                            [2016] 8 S.C.R.



A       burden of proof in a criminal case on the prosecution has been succinctly
      . expounded in the following passage from the treatise "The Law of
        Evidence" fifth edition by Ian Dennis at page 445:
             "The presumption of innocence states that a person is
             presumed to be innocent until proven guilty. In one sense
B            this simply restates in different language the rule that the
             burden of proof in a criminal case is on the prosecution to
             prove the defendant's gui It. As explained above, the burden
             of proof rule has a number of functions, one of which is to
             provide a rule of decision for the factfinder in a situation of
             uncertainty. Another function is to allocate the risk of
C            misdecision in criminal trials. Because the outcome of
             wrongful conviction is regarded as a significantly worse
             harni than wrongful acquittal the rule is constructed so as
             to minimise the risk of the former. The burden of
             overcoming a presumption that the defendant is innocent
 D           therefore requires the state to prove the defendant's guilt."
             56. The above quote thus seemingly concede a preference to
      wrongful acquittal compared to the risk of wrongful conviction. Such is
      the abidingjurisprudential concern to eschew even the remotest possibility
      ofunmerited conviction.
 E           57. This applies with full force particularly in fact situations where
      the charge is the sought to be established by circumstantial evidence.
      These enunciations are so well entrenched that we do not wish to burden
      the present narration by referring to the decisions of this Court in this
      regard.

 F           58. Addressi1rg this aspect, however, is the following extract also
       from the same treatise "The Law of Evidence" fifth edition by fan
       Dennis at page 483:
              "Where the case against the accused depends wholly or
              partly on inferences from circumstantial evidence,
            . factfinders cannot logically convict unless they are sure
 G
              that inferences of guilt are the only ones that can reasonably
              be drawn. If they think that there are possible innocent
              explanations for circumstantial evidence that are not "merely
              fanciful", it must follow that there is a reasonable doubt
              about guilt. There is no rule, however, that judges must
 H
 JOSE @ PAPPACHAN v. THE SUB-INSPECTOR OF POLICE,                          137
            KOYILANDY [AMITAVA ROY, J.]

      direct juries in terms not to convict unless they are sure           A
      that the evidence bears no other explanation than guilt. It
      is sufficient to direct simply that the burden on the
      prosecution is to satisfy the jury beyond reasonable doubt,
      or so that they are sure.
                                                                           B
      The very high standard of proof required in criminal cases
      minimises the risk ofa wrongful conviction. It means that
      someone whom, on the evidence, the factfinder believes is
      "probably" guilty, or "likely" to be guilty will be acquitted,
      since these judgements of probability necessarily admit that
      the factfinder is not "sure". It is generally accepted that          c
      some at least of these acquittals will be of persons who are
      in fact guilty of the offences charged. and who would be
      convicted if the standard of proof were the lower civil
      standard of the balance of probabilities. Such acquittals
      are the price paid for the safeguard provided by the "beyond
                                                                           D
      reasonable doubt" standard against wrongful conviction."


       59. A reference in the passing however to the of quoted decision
in Slumul Birdlticlumd Sarda (supra) construed to be locus classicus
on the relevance and decisiveness of circumstantial evidence as a proof    E
of the charge of a criminal offence would not be out of place. The
relevant excerpts from paragraph 153 of the decision is extracted herein
below.
      "153.(2) The facts so established should be consistent
      only with the hypothesis of the guilt of the accused ... they
      should not be explainable on any other hypothesis except             F
      that the accused is guilty.

      (3) the circumstances should be ofa conclusive nature and
      tendency.
                                                                           G
                *              *               *
      (5) there must be a chain of evidence so complete as not
      to leave any reasonable !!round for the conclusion
      consistent with the innocence of the accused and must show
      that in all human probability the act must have been done
                                                                           H
138             SUPREME COURT REPORTS                           (2016] 8 S.C.R.


A            by the accused."
             60. As recent as in Sujit Biswas vs. State ofAssam (2013) I 2
      SCC 406, this Court also in the contextual facts constituting circumstantial
      evidence ruled that in judging the culpability of an accused, the
      circumstances adduced when collectively considered must lead to the
8     only irresistible conclusion that the accused alone is the perpetrator of a
      crime in question and the circumstances established must be of a
      conclusive nature consistent only with the hypothesis of the guilt of the
      accused.
         61. In Dlla11 Raj@ Dlumd vs. State ofHaryana (2014) 6 SCC
C 745, one of us (Hon. Ghose,J.) while dwelling on the imperatives of
  circumstantial evidence ruled that the same has to be of highest order
  to satisfy the test of proof in a criminal prosecution. It was underlined
  that such circumstantial evidence should establish a complete unbroken
  chain of events so that only one inference of guilt of the accused would
  ensue by excluding all possible hypothesis of his innocence. It was held
D further that in case of circumstantial evidence, each circumstance must
  be proved beyond reasonable doubt by independent evidence excluding
  any chance of surmise or conjecture.
             62. Judged on the above parameters, we are of the unhesitant
      opinion that the evidence adduced by the prosecution constituting
 E    circumst.antial evidence in support of the charge does not furnish an
      unassailable basis to hold the appellant guilty of the charge of murder
      levelled against him. The facts and circumstances admit ofa reasonable
      doubt in his favour.
          63. The circumstances brought forth by the prosecution do not
 F rule out in absolute tenns the hypothesis of the innocence of the appellant.
   We thus consider it to be wholly unsafe to maintain his conviction as
   recorded by the courts below. We are therefore inclined to extend benefit
   of doubt to him. The conclusions drawn by the courts below are not
   tenable on the basis of the evidence available. The appeal is thus al lowed
   and the conviction and sentence recorded by the courts below is hereby
 G set aside. The appel !ant be released from the jai I forthwith if he is not
   required in any other case.


      Devika Gujral                                                  Appeal allowed.

 H