SMT. GARGI versus STATE OF HARYANA

14. Having taken note of the point arising for determination and the basic principles to be kept in view while dealing with this case based on circumstantial evidence, when we examine the record, several shortcomings and loopholes in the investigation and in prosecution evidence manifest themselves at once. Before analysing the evidence adduced on record, it appears rather necessary to take note of such features of shortcomings, which are apparent on the face of record and have a material bearing on the questions involved.

15. In the present case, the very approach of the investigating agency had been shrouded in so much of unexplained obscurities that a question perforce arises if there had been a fair and unbiased investigation of the crime in question? 15.1. The manner of dealing with this case by the investigating agency, right at the inception, has left a few serious questions unanswered i.e., as to when did the police receiveinformation about dead body of the husband of the appellant, by what mode, and through whom? PW-9 in his testimony before the Court conveniently stated that such an information was received through “telephonic message” but did not state the particulars of such informant. No entry in the roznamcha or general diary has been produced to show that such an information was duly entered in the record before proceeding for investigation. Significantly, in the first note drawn up in the matter at 5.30 a.m. on 02.05.1997 (EX. PH/1), PW-9 only stated that ‘the information was received at the police station’.

The fact that it had been a telephonic information is conspicuously 6ibid., page 598 7 This has been stated with reference to ¶514 in Criminal Law by C.S.Kenny wherein, it is cautioned that: though ‘circumstances cannot lie’, they can mislead. They may even have been brought about for the very purpose of misleading, as when Joseph’s silver cup was placed in Benjamin’s sack, or when Lady Macbeth ‘smeared the sleeping grooms with blood’. missing in Ex.PH/1. This aspect has got a material bearing in the matter because the defence witness DW-3 specificallytestifiedto the fact that he was the first person informed by the appellant about the demise of TirlokiNath; and that he went to the police station at about 9.30 p.m. on 01.05.1997 and divulged the information. He further asserted having accompanied the police to the site and having conveyed the information to PW-7. 15.2. It is also noteworthy that as per PW-7, he got the information from one T.R.

Malhotra at about 11.30 p.m. who, in turn, had received the information on telephone from a colleague of the deceased. Neither any enquiry was made from the said T.R. Malhotranor any other effort wasmade to find out the colleague of the deceased who had telephoned him. 15.3. In the face of such a gap in the prosecution evidence, there appears no reason to disbelieve the testimony of DW-3Surinder Kumar Bhat as regards the time of information to police and himself being the informant. In such a scenario, it remains absolutely inexplicable as to why the information given by DW-3 was not reduced in writing and the proceedings were not conducted on that basis. This question magnifies itself to tougher questions for the prosecution as to the time when PW- 9 ASI Amar Singh reached the site and with whom. From the evidence on record and surrounding facts, it appears that the said ASI had reached the site at around 10.30 p.m. accompanied by DW-3 Surinder Kumar Bhat.

The toughness of these questions further amplifies into the harder, and unanswered, question for the investigating agency as to why for a long period of about 4 to 5 hours at the site, the ASI (PW-9) did not carry out any investigation and did not record any statement. 15.4. It is not the case of prosecution that the ASI (PW-9) was prevented by any reason to immediately attend on his duties after reaching the site. It is also not the case that he attempted to make any enquiry from any person until arrival of the complainant and other family members of the deceased.Even if it be assumed that the other family members of the deceased were on the way and the ASI knew about this fact, nothing had prevented him from attending on his duties of investigation. Strangely enough, even the first panchnama was prepared only after reaching of the complainant. It is also not clear as to why the statements of the children of the deceased were not taken when his daughter, 16 years of age, was very much present at the site.

It is also not explained as to why in this kind of matter, carrying suspicious overtones, PW-9 did not make any enquiry from any of the neighbours, who were available at the site; and from the tenant,who was residing at the ground floor of the same building and whose washroom was allegedly being used by the deceased (as per the assertion of PW-8)?It is difficult to say that the conduct of this Investigating Officer (PW-9) had been totally free from doubt. 15.5. Apart from the above-noted omissions at the very initial stage, we find absolutely no reason that the Investigating Officer PW-10,even after allegedly making enquiries in the locality regarding the character of the appellant from 5-10 persons, neither mentioned this fact in the investigation report nor recorded the statement of anyone of them. This Investigating Officer further stated to have joined the children of the appellant in the investigation but did not record their statements either.

This Officer also did not bother to take the statement of the tenant, whose testimony would have been of immense significance, looking to the nature of accusations as also the factors related with the building in question. 15.6. Moreover, in this matter, where it was prima facie appearing that the clues available at the site might play a significant role in reaching to the real culprits, it is also intriguing to notice that the Investigating Officer did not take even elementary care to obtain fingerprints from the material objects and to get them analysed properly. The Investigating Officer (PW-10) has stated, rather with impunity, that he did not take any fingerprints at all, even while admitting that the fingerprint expert did visit the site. It is not stated that the so-called expert expressed inability to collect such prints for any reason. It is left only for one to wonder as to for what purpose did the so-called fingerprint expert visit the site, if no prints were to be taken at all! 15.7.

The above-mentioned unexplained shortcomings,perforce, indicate that in this case, the investigation was carried out either with pre-conceived notions or with a particular result in view. It is difficult to accept that the investigation in this case had been fair and impartial. From another viewpoint, on the facts and in the circumstances of this case, the omissions on the part of investigating agency cannot be ignored as mere oversight. These omissions, perforce, give rise to adverse inferences against the prosecution.

16. In this case, it is also interesting to notice that though the prosecution had cited the other relations of the deceased as witnesses, including his mother and brother-in-law (husband of PW-8 – who had otherwise signed the inquest report)but did not examine them before the Court. Withholding of relevant witnesses could only lead to further adverse inference that if examined, they would not have supported the prosecution case. This is apart from the fact that the investigating agency avoided to include any independent witness in the investigation and did not carry out necessary enquires from the persons other than in-laws of the appellant.

17. Hereinabove, we have only indicated a few broad aspects of shortcomings and lacunae in the prosecution case which is otherwise resting on circumstantial evidence and on the theory propounded by the brother of deceased (PW-7),as supported by his sister (PW-8). The upshot of the discussion foregoing is that the propositions projected by the prosecution require deeper scrutiny to find if the case against the appellant is established beyond reasonable doubt; and if the elements of adverse inferences do not materially affect the prosecution case. Homicide or suicide

18. As noticed, the first question that concerns us in this matter is as to whether death of TirlokiNath was suicidal or it had been a matter of homicide. The Trial Court as also the High Court have returned concurrent findings that it had been a matter of homicidal death. Both the Courts came to this conclusion essentially with reference to the medical opinion that the cause of death was asphyxia due to strangulation; and also with reference to some of the surrounding factors that the feet of the hanging dead bodywere touching the floor;the knees were bent; the slippers were not removed; and the room in question was wide open. Assailing such findings, it is contended on behalf of the appellant that as per medical jurisprudence, scratches, abrasions, bruises etc. are usually present and hyoid bone would be usually found brokenin case of strangulation but, in the present case, there were no such marks nor hyoid bone was broken. 18.1.

We have closely examined the testimony of PW- 1Dr.UshaBansal, who was one of members of the board that had conducted post-mortem. We have also taken into account the features noticeable from the site plan, the inquest report and the photographs placed on record. Having examined the relevant material, we find nothing of infirmity in the findings of the Trial Court and the High Court that it had beena case of strangulation, as could be seen from the post-mortem report that the dead body carried “well defined depressed ligature mark measuring 3 cm. wide seen encircling the neck around thyroid cartilage with a knot present on left side of neck and this ligature mark was anti-mortem in nature”. The other ligature mark was on the left side of the neck measuring 1.5 cm wide and that was post-mortem in nature. The board had undoubtedlybeen of the opinion that the cause of death was”asphyxia due to strangulation”.With such categorical medical opinion coupled with all therelevant features surrounding the suspended dead body in the room in question, it is difficult to say that it had been a case of suicide merely because hyoid bone was not broken or because the marks of resistance like abrasions/scratches were not reported.The presence of marks of resistance would depend on a variety of factors, including the method and manner of execution of the act of strangulation by the culprits; and mere want of such marks cannot be decisive of the matter.

Equally, it is not laid down as an absolute rule in medical jurisprudence that in all cases of strangulation, hyoid bone would invariably be fractured. On the contrary, medical jurisprudence suggests that only in a fraction of such cases, a fracture of hyoid bone is found.8 In other words, absence of fracture of hyoid bone would not lead to the conclusion that the deceased did not die of strangulation. 18.2. For what has been discussed in preceding paragraphs, we have no hesitation in affirming the findings in the impugned judgments that the deceased TirlokiNath was done to death by strangulation and thereafter, his dead body was hanged from the ceiling fan in the room. 8Modi: A textbook of Medical Jurisprudence and Toxicology, 26th Edition page 529 where it is also noted: “In the Journal of Forensic Sciences Volume 41 under the Title – Fracture of the Hyoid Bone in Strangulation: Comparison of Fractured and Unfractured Hyoids from Victims of Strangulation, it is stated: The hyoid is the U-shaped bone of the neck that is fractured in one-third of all homicides by strangulation. On this basis, post-mortem detection of hyoid facture is relevant to the diagnosis of strangulation. However, since many cases lack a hyoid fracture, the absence of this finding does not exclude strangulation as a cause of death. The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of the victim, nature of the instrument (ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone…………”

19. However, the question still remains as to whether the circumstances brought on record establish beyond reasonable doubt that such ghastly act of killing TirlokiNath and hanging his dead body was carried out by the appellant so as to maintain her conviction under Section 302 IPC?

20. Before examining the circumstances brought on record by the prosecution, we may observe in the passing that the Trial Court as also the High Court have proceeded on the lines that once it was established that the deceased TirlokiNath was killed by way of strangulation and the killer/s suspended his dead body from the fan so as to mislead; and since the dead body was found in the very house he was residing with the appellant who could not explain the reason of his death,she was to be held responsible for the crime. In other words, the Trial Court and the High Court have assumed that as soon as the conclusion about the homicidal death of TirlokiNath in his own room is reached, all other aspects of the prosecution story about so-called strained relations of the deceased and the appellant, and the alleged threat perception of the appellant ipso facto come into operation; andthe finding on homicidal death itself has been taken asthe answer to other question as to whether homicide was to be imputed on the appellant or not. In our view, while examining the question as to whether the death in question was homicidal or suicidal, there was no justification to mix up the other circumstances projected by the prosecution, which indeed required separate assessment and analysis. Be that as it may, appropriate now it would be toexamine the circumstances put forthin this case to find if the prosecution has been able to bring home the guilt of the appellant beyond reasonable doubt. Alleged last statement of deceasedand motive of appellant

21. The main plank of prosecution case against appellant has been that the relations between the deceased and the appellant were too strained; the appellant was having illicit relations and was ill-treating the deceased; the deceased had expressed even threat to his life at thehands of the appellant; and the deceased was all set to move out of the company of the appellant. These factors, imputing motive on the appellant to kill her husband (and even deceased perceiving threat to his life at the hands of the appellant), have been held proved by the Trial Court and the High Court with reference to the testimony of PW-7 Brij Bhushan (brother of the deceased) and PW-8 RadhaPuri (sister of the deceased). As noticed, the Trial Court as also the High Court have relied upon these two witnesses and have accepted their assertionsin toto. However, a close look at the testimony of these witnesses and the assessment of their evidence with reference of other factors on record bring forth several doubts, which have not been dispelledand which do operate against the prosecution.

22. Though learned counsel of the appellant has attempted to suggest, with reference to additional documents placed on record, that PW-7 carried questionable antecedents and had been a proclaimed offender but we are ignoring such submissions for the reason that these aspects were not specifically put to the witness in his cross-examination. However, the question is as to whether his testimony inspires such confidence that all the facts and the circumstances suggested by him, and all his assertions, be accepted on their face value? In our view, the answer to this question could only be in the negative. 22.1. The Trial Court and the High Court have proceeded on the assumption that PW-7 being the brother of deceased, would not be interested in shielding the real culprit and to unnecessarily throw the accusation on the appellant but, in our view, such an approach had been fundamentally incorrect.In overall comprehension of the statement made by this witness, a few relevant factors are immediately noticeable that, after having served in Navy for about two years from 1978 to 1980, he had never been in a settled job or occupation.

He served in different establishments; also opened a grocer’s shop that was closed; again served in some more establishments; and then, established a factory that too was closed with about half of the amount of loan repaid and remaining being due. Significantly, the ancestral house of the family was sold by this witness and the proceeds were utilised by him in opening the grocer’s shop, which was closed by him because he ‘did not like that business’. He had taken loan for establishing the factory and it had been the case of the appellant that he was pressurising her to stand as a guarantor andupon her refusal, the deceased TirlokiNath stood as a guarantor. DW-3 Surinder Kumar Bhat, a colleague of the deceased,testified to the fact that the deceased remained disturbed for his younger brother (PW- 7) regularly demanding money from him; and has narrated in detail the efforts that were made by the deceased in helping PW-7 BrijBhushan getting some employment and he even asked for a loan from the society managed by DW-3.

In the given state of affairs, this much is clear that the testimony of PW-7 is required to be approached with extra care and caution. 22.2. On a closer look at the record, it is noticed that some material improvements were made by PW-7 while deposing in the Court over the initial version, on the basis whereof FIR was registered by PW-9. For example, in the Court statement, this witness alleged that the deceased was apprehending murder by the appellant with the help of her brothers while improving over the expression that the deceased was ‘fed up and frightened’, as occurring in the initial version. Further, the initial allegation that the appellant was not providing food to the deceased‘at proper time’ was improved in the Court statement to the effect that she was not providing food to the deceased. 22.2.1. Even if the aforementioned aspects are left aside for a moment and it be assumed that the deceased met PW-7 on 28.04.1997 and stated all his apprehensions as also the plan to leave Panchkula with luggage, it remains entirely inexplicable that such a concerned brother of the deceased did not accompany him to Panchkula for safety and support; anddid not share the apprehensions stated by the deceased with other members of the family;andeven did not enquire about the welfare of his brother for next three days.Obviously, the conduct of this witness had not been altogether free from doubt and his statement cannot be accepted without proper corroboration. Now, the attempted corroboration is suggested only with reference to the statement of the sister of this witness viz., PW-8 RadhaPuri. However, her testimony carries excessive features of doubts, as would occur infra.

23. It is evident on the face of the record that in her testimony, PW-8 RadhaPuri made several improvements over the statement made during investigation. The allegations that upon reaching the spot, she saw the appellant and her brothers ‘enjoying tea’were not made in her police statement. The witness had gone to the extent of stating that the deceased was attacked by his wife and children on two-three occasions though no such allegation appeared in her initial version during investigation. It is more than apparent that the efforts on the part of this witness PW-8 had been to level accusations not only against the appellant but even against the children of the appellant, particularly her daughter,by suggesting that the said daughter questioned her presence on the spot though such had not been the case of the prosecution. As regards the plot at AmbalaCantt., this witness gave out vacillating answers where she first of all stated want of knowledge; then stated that the plot was in the name of mother; and again stated her inability to say exactly in whose name it was. Leaving aside these aspects, the noteworthy feature emerging from her statement is the admission of the fact that the ancestral house was sold by Brij Bhushan (PW-7).

24. A combined look at the testimony of PW-7 and PW-8 brings to the fore one of the significant facts that there had been an ancestral house belonging to the familythat was sold by PW-7alone and the sale proceeds were utilised by him to open a grocery shop, one of the multiple ventures he had tried, mostly resulting in closure or failure. The appellant had been categoric in her assertion that the property and money had been at the root of discord in the family and the same had been the cause for the family of the deceased implicating her. DW-3 has also testified to the effect that the deceased had his tense moments because of money demands of his brother i.e., PW-7. Unfortunately, the Trial Court as also the High Courthave totally overlooked these factors and features hovering over the prosecution story.

25. Going further deep into the prosecution story, it is clear that there is no direct and cogent evidence on record that the appellant was involved in illicit relations or was forcing the deceased to transfer the property. It had not been the assertion of PW-7 or PW-8 that the alleged illicit relations of the appellant and/or her pressurising the deceased to transfer the property had been the matters of their personal knowledge. No particulars of any person having illicit involvement with the appellant are to be found on record.Such assertions have been made by these witnesses on the basis of the statements allegedly made by the deceased to each of them individually and at different point of time. The High Court and the Trial Court have readily accepted the suggestions of PW- 7 and PW-8 that the deceased made the statements to them as alleged; and have even labelled the statement allegedly made to PW-7 as being the dying declaration of the deceased.

Strictly speaking, the alleged statement made to PW-7 could not have been taken as a ‘dying declaration’ for the reason that at time of making of such statement, the deceased was not labouring under his imminent death and he was not recounting the circumstance of the transaction relating to his death. For the sake of arguments, and on the broad phraseology of the first part of Section 32 (1) of the Indian Evidence Act9, even if it be assumed that the statement made by the deceased, before the cause of death had arisen, or before he had any reason to anticipate his killing, may also be taken as admissible10, such an alleged statement cannot be directly acted upon without concrete corroboration. In the present case, what to say of corroboration, even making of such statement by the deceased appears to be doubtful. 25.1. The other prosecution witnesses have not even remotely indicated any traces of discord in the relations of the deceased and the appellant for any reason whatsoever.

The appellant has specifically refuted such allegations in her statement under Section 313 CrPC. The defence witness DW-3 Surinder KumarBhat, who had been the colleague of the deceased and was living nearby, has been categorical that the deceased and the appellant were maintaining good relations and that the appellant was enjoying a good reputation. Nothing has occurred in his cross-examination to discredit this witness as untrustworthy. Another noteworthy factor emerges from the testimony of DW-4 Akhilesh Bhatnagar, Assistant, Oriental Insurance Company, Chandigarh. He has proved the hotel expenses bills paid by the employer of the deceased for his stay at Karnal from 14.01.1997 to 01.02.1997. If that were so, the assertion of PW-8 RadhaPuri that the deceased made some statement to her at Yamuna Nagar on 25.01.1997 becomes doubtful. As noticed, though the husband of PW-8 (with whom she allegedly conferred about the alleged statement of the deceased) was cited as prosecution witness but was not examined in the Court.

26. We may, in the passing also point out another glaring factor in relation to the testimonies of PW-7 and PW-8. It is but apparent that PW-7, even before reaching the spot of crime, had already concluded 932. Cases in which statement of relevant fact by a person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense, which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) when it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. 10 Vide PakalaNarayana Swami v. The King-Emperor: AIR 1939 PC 47 that his brother had been murdered. In his words: ‘I gave telephonic messages to my relatives regarding the murder of my brother’. PW- 8 has directly contradicted him while saying:‘On 1.5.97, I came to know through my brother BrijBhushan that TirlokiNath had committed suicide. He told that as per the information, the neighbourers at Panchkula told that TirlokiNath had committed suicide.’Another feature of the case is that as per the site sketch prepared by PW- 3ManoharLal, (Ex. PD), there was a bathroom-cum-toilet of 10 feet x 3 feet size, attached with the room in question where the deceased was putting up, as per the witnesses PW-7 and PW-8. It clearly belies the suggestion that the deceased was forced to use the washroom of the tenant at the ground floor.

27. For what has been discussed hereinabove, strong elements of doubts surface on record as regards reliability of these two witnesses PW-7 and PW-8. In the given circumstances, it is difficult to accept that the prosecution has been able to establish by cogent and reliable evidence that the appellant was involved in illicit relations or was pressurising the deceased to transfer the property in her name and that there had been strong acrimony between the deceased and the appellant. It is also difficult to accept, for want of cogent corroborative evidence, if the deceased had made any alleged statements about discord with his wife and threat perceptions to PW-7 and PW-8. In the given circumstances, the possibility of levelling of imputations on the appellant for intentions other than bringing the real culprit/s to the book is not ruled out altogether. Last seen theory: Proof and effect 28. The prosecution has relied upon another circumstance that the deceased was lastly in the company of the appellant and she had failed to explain his whereabouts as also the circumstances leading to his death. 28.1.

Insofar as the ‘last seen theory’ is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act11 directly operates against the appellant. In our view,such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:- “10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused……” 28.2.

On the facts of the present case, it emerges that as per the version of PW-7, the deceased was lastly in his company on 28.04.1997 when he allegedly expressed his dejection and fear as also his plan to return with luggage. The appellant has pointed out that the deceased was with her in the morning of 29.04.1997 when he pointed out his tour programme commencing that day with scheduled return on 03.05.1997. It is not in dispute that the deceased was regularly on tour for longer durations of about two weeks in connection with his duties. The dead body was recovered on 01.05.1997 and as per post-mortem report, the probable time that had elapsed between death and post-mortem (on 02.05.1997 at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, it cannot be assumed by way of arithmetical calculation that the deceased might have met with his end on 29.04.1997. The possibility of it being a day later is not ruled out. 28.3.

In the given set of circumstances, the last seen theory cannot be operated against the appellant only because she was the wife of the deceased and was living with him. The gap between the point of time when the appellant and deceased were last seen together and when the deceased was found dead had not been that small that possibility of any other person being the author of the crime is rendered totally improbable. In SK. Yusuf (supra), this Court has said:- 11106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. “21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.” Subsequent conduct of the appellant and other circumstances 29.

The Trial Court and the High Court have readily, and rather heavily,reliedupon an assertion made by PW-8 in her statement that upon her reaching the site, the appellant was ‘enjoying tea’ with her brothers and other relations on the first floor; and was not found stressed or perplexed or saddened. This part of the assertion on the part of PW-8 has its own shortcomings. Such an assertion was not made by her in the police statement; and is not even remotely corroborated by any other prosecution witness including PW-7. Moreover, it had been too unrealistic on the part of the Trial Court and the High Court to observe that the appellant ought to have been found sitting with the dead body. Admittedly, the corpse was emitting foul smell and DW-8 reached the spot at about 4.30 in the morning though the appellant had noticed the dead body the previous evening and had taken steps for informing the concerned through DW-3, Surinder KumarBhat.

In the given circumstances, no fault could be foisted on the appellant if she did not remain with the dead body all through and until arrival of PW-8. The expression ‘enjoying tea’ was coined by this witness PW-8 alone and for want of corroboration and for omission of such a fact in the police statement, there appears no reason to accept the same. If at all anything of subsequent conduct of appellant is to be taken into consideration, it is evident that she attendedher office on 30.04.1997 and 01.05.1997. It is not the case of the prosecution that during these two days, any abnormality in her behaviour was noticed by anyone. The appellant neither concealed herself nor altered the scene of crime in any manner and there had not been any evidence about any oddity in her manners and demeanour.

30. Another circumstance taken against the appellant had been that she allegedly did not send any information to the brothers and other relations of the deceased immediately after noticing his death. Such observations and findings have been recorded against the appellant while totally overlooking the statement of DW-3. In this regard, it gets perforce reiterated that the prosecution has not produced any evidence which could displace the statement of DW-3 that he indeed informed the police at the asking of the appellant at about 9.30 p.m. on 01.05.1997 and did also inform the brother of the deceased. As noticed, PW-9 ASI Amar Singh did not specify as to how the information was received by him. Moreover, the person said to have divulged the information to the witness PW-7 was never examined. Given such omissions in the prosecution case, we find no reason to discard the testimony of DW-3. Once his testimony is accepted, several blocks of the prosecution story are knocked to the ground.

Effect of the acquittal of co-accused persons 31. There is yet another lacuna in the prosecution case that has magnified itself with acquittal of the co-accused, brothers of the appellant. It cannot be denied that if the appellant had been the killer, she, by herself, could not have hanged the dead body by the ceiling fan; and the act had definitely been performed by more than one person. That being the position, the Trial Court readily accepted the case against the brothers of the appellant as conspirators without cogent and convincing evidence. The High Court rightly acquitted them for want of evidence and even observed that the prosecution had failed to book the real culprit in place of the brothers of the appellant. However, the High Court yet considered it proper to maintain the conviction of the appellant as the principal culprit while failing to consider that an important link in the prosecution story was snapped as soon as brothers of the appellant were acquitted. 31.1.

We would hasten to observe that merely for the reason of acquittal of co-accused, another accused in a criminal case may not be acquitted if cogent evidence against him is available and his case could be segregated from the case against the acquitted co-accused. However, on the basic facts of the present case, it is evident that the gruesome act in question had not been the handiwork of one person and it would be rather preposterous to assume that the appellant hanged the dead body by ceiling fan all by herself. In the given circumstances,when the alleged collaborators of the appellant are acquitted, the already existing clouds of doubts on the prosecution story getcongealed. The High Court has proceeded with over-simplification of the matter by leaving the missing link as merely a fault of the investigating agency. In our view, as soon as the brothers of the appellant were acquitted, the High Court ought to have examined the consequence of such acquittal that an important link in the prosecution theory was snapped and it was difficult to conclude that the prosecution has established its case against the appellant beyond all reasonable doubts.

The prosecution case not established beyond reasonable doubt 32. Thus, as regards the circumstances relied upon by the prosecution, the position obtainable from the material placed on record and the surrounding factors is that (a) the death of deceased TirlokiNath was homicidal in nature and had not been suicidal though it was sought to be projected as suicide by the culprits by hanging the dead body from a ceiling fan in his room; (b) there is no cogent and convincing evidence on record to come to a definite conclusion that the relations of the deceased and the appellant were strained or that the appellant was indulgent in illicit relations or she was insisting for transfer of property in her name; (c) it is also difficult to come to a definite conclusion that the deceased had expressedimminent danger to his life at the hands of the appellant;and (d) even if the deceased was last seen alive in the company of the appellant, the time gap between such last seen and finding of his dead body had been of about 2 to 3 days.

33. Apart from the factors above, there are several other loopholes whereby the alleged circumstances sought to be relied upon by the prosecution lose their worth and force. As noticed, the investigating agency and the prosecution had not been forthright. The relevant aspects pertaining to the crime in question were not properly investigated and even the relevant witnesses were not examined. Moreover, as noticed,the prosecution case was framed in the manner that the appellant committedthe crimewith the help of her brothers who have been acquitted. 33.1. In the given circumstances, the fact that the staircase from the ground floor was directly leading to the room in question where the dead body was found,acquires immense significance. Even if it be assumed that the deceased was putting up in the said room, some person or persons reaching there directly from the ground floor and carrying out the crime is not ruled out. In the alternative, some person or persons having executed the crime at some other place and then having brought the dead body and hanged it in the room in question is also the possibility which cannot be brushed aside as entirely improbable.

34. In the given circumstances, when the prosecution has not been able to remove the aforesaid doubts and the motive as imputed on the appellant does not appear existing, the benefit of doubt, obviously, goes to the appellant. CONCLUSION 35. For what has been discussed hereinabove, we are clearly of the view that the Trial Court and the High Court have approached the case from an altogether wrong angle and have overlooked the major flaws and shortcomings in the prosecution case. In the given set of facts and circumstances, even if the prosecution has been able to create some suspicion against the appellant, it would be unsafe to accept that the implicating circumstances have been established by cogent evidence and such circumstances form a complete chain that rules out any other hypothesis except guilt of appellant. Hence, the conviction of the appellant cannot be sustained; she is entitled to the benefit of doubt.

36. Consequently, this appeal is allowed in the manner that the impugned judgment and orders convicting the appellant for the offence punishable under Section 302 IPC are set aside; the appellant is extended the benefit of doubt and is, accordingly, acquitted. Her bail bonds are cancelled and sureties are discharged. Ankit Gyan Appeal allowed.