Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 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.
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 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 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 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 witness stated that when . he returned with the tabl~ts, the appellant JOSE @ enquired about the admit card and prescription for extending treatment 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 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 the Investigating Officer for the second time, he stated the correct facts.
23. In the cross-examination, the witness was confronted with c 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 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 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 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 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 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!, 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 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.
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 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 suggestive of attempted smothering. He thereafter answered in the affirmative to various leading questions to indicate amongst others that the I in 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.
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 JOSE @ on the rope or on the neck of the deceased. He conceded as well that 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 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 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 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 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 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 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 c c 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- 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 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 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 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.
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 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 JOSE @ next morning.
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 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 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, 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 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.
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.
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 c c the ancestral house but returned early. It dis be I icved 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 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 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 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 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 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 association with the lady Dnrly as alleged by the prosecution. According JOSE @ to him, the narration in the first information report authored by PW! 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.
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 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 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, 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 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 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 c a c 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 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. 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 to the learned state counsel, the testimony of DWI, the son of the 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 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 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, 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 JOSE@ inference, according to the prosecution, is inevitable from the attendant 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 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 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. 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 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.
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 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 c c 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 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 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 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, 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 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 JOSE@ indignation of the deceased for the appellant being away at Jeddah/ 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.
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 c assessment falls short of the requirement in law to return a 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 !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 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 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 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 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.
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 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 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 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 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.
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.
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 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 JOSE @ direct juries in terms not to convict unless they are sure 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. 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 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 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 c 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 that the accused is guilty. (3) the circumstances should be ofa conclusive nature and tendency. (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 (2016] 8 S.C.R. by the accused."
60. As recent as in Sujit Biswas vs. State of Assam (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 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 of Haryana (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 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.