ORDER
P. Sathasivam, J.
1. Accused in Sessions Case No. 12/95 on the file of Sessions Judge, South Arcot Vallalar Division, Cuddalore, against the conviction under Section 302 read with Section 34, IPC and sentence of imprisonment for life, have preferred the above appeal.
2. For convenience, the appellants are referred as accused as arrayed in the trial Court. On 23.11.1991 at about 12.00 hours one Paramasivam, Village Administrative Officer, Ezhuthur lodged a complaint that an unknown lady aged about 25 years old was found murdered by cutting her throat and all over her face near Ezhuthur lake, Based on his complaint, a case in Ramanatham Crime No. 394/91 under Section 302, IPC was registered and investigated. After investigation, accused 1 and 2 were charge sheeted for an offence under Section 302 read with 34, IPC. Before the learned Sessions Judge, the prosecution has examined 20 witnesses as P.Ws. 1 to 20, marked Exs.P-1 to P-30 and M.Os.1 to 19 series in support of their case. Accepting the prosecution case, the learned Sessions Judge found accused 1 to 2 guilty Section 302 read with 34, IPC, convicted and sentenced each to imprisonment for life; hence the present appeal.
3. The case of the prosecution is briefly stated hereunder:
(i) A-1 is the husband of the deceased and A-2 is the son of A-1’s maternal aunt. P.W.11 is the mother of the deceased and she belongs to Meensuritti Village, Jayankondam Taluk. A-1 belongs to Koovathur Village. A-1 married P.W.11’s daughter deceased Kolanji about 1- years back. They have lived together and they have one son and one daughter. A-1 is a drunkard and had an intention to marry his sister’s daughter by keeping her in his house itself. A-1 used to beat the deceased, some times he sent to her parents’ house and after compromise, she was sent back to A-1’s house. Few days prior to the occurrence, A-1 beat Kolanji and sent her to her mother’s house. Thereafter, A-1 and A-2 came to P.W.11’s house at Meensuritti to take her back. A panchayat was held in the presence of P.W.12 and others, and pursuant to the decision taken in the panchayat, P.W.11 sent her daughter along with the accused. After 10 days, P.W.11 and her husband went to Koovathur to see their daughter Kolanji, who was not there. On enquiry, they were told that the accused and the deceased had gone for cutting bamboo sticks for making baskets. Then they returned to their village and informed the matter to P.W.12, one of the panchayatdars and requested him (P.W.12) to go to Koovathur and see their daughter. As requested by them, P.W.12 proceeded to Koovathur, there he found the door of the house of the deceased Kolanji was locked. He returned back and informed the fact to P.W.11 and her husband. Three days later, the father of the deceased gave a complaint about the missing of her daughter in Andimadam Police Station. P.W.7, Head Constable attached to Andimadam Police Station, registered the complaint in Crime No. 446/91 and sent it to the Court and higher officials. Ex P-12 is the copy of the printed F.I.R.
(ii) It is the further case of the prosecution that on the date of Karthigai Deepam in the year 1991, the deceased and the accused went to the house of P.W.13 and requested her to look after their children, as they were going to cut bamboo sticks. At that time, the deceased was wearing red colour saree and red colour blouse.
(iii) P.W.14-Mani, blacksmith, saw together when both the accused and the deceased who came to his smith; A-1 gave 3 knives to him for sharpening. Accordingly he sharpened the knives and received Rs. 15 towards charges for sharpening M.O. 16 is one of the knives which he sharpened. He identified the deceased in photo-M.O.4. P.W.15 saw the accused and the deceased on the day of Karthigai Deepam. They prepared and ate food in the grain yard (kalam) near his house and left the place.
(iv) It is the further case of the prosecution that there was an exchange of lawyer’s notice about their matrimonial dispute. Ex.P-10 is the notice dated 21.3.91, issued by one Srinivasaraghavan, Advocate on behalf of the 1st accused to the deceased Kolanji for restitution of conjugal rights. P.W.6 issued a reply notice dated 1.4.19-Ex.P-11 to the counsel for A-1. A-1 confessed to P.W.8 that he had murdered his wife and requested him to save his life, for which he replied to go and see an Advocate. P.W.1 went to Ramasamy Reddiar’s ‘Velan thope’ to send out bullocks from the field, there he saw a dead body of women lying on the field with cut injuries on her face and neck. At that time, she was wearing red colour saree (M.O.1) and red colour blouse (M.O.2). He informed the matter to Ramasamy Reddiar, who, in turn, informed the same to P.W.9-menial.
(v) The Doctor who examined the accused Manikundu-A1 on 25.1.92 at about 5 P.M. in the Headquarters hospital, Cuddalore, was examined as P.W.3. He found on him three injuries. He opined that the injuries could have been caused by teeth biting. He also stated that the injuries had also been caused by human teeth bite.
(vi) Dr. Maheswari, Medical Officer attached to Primary Health Centre, Pennadam, who conducted autopsy on the dead body of the deceased on 24.11.91 at about 10 A.M., was examined as P.W.4. She found the following injuries.
“1. Cut injury over the front of the neck at its middle extending from the lateral angle of the left mandible extending to the right side of underneath the lobule of right ear. Trachea cesophagus large vessels and nerves are cut across. All internal organs are in a highly putrifactive state. All are covered maggots. Hyoid Bone Fracture.
2. Abrasion over the dorsum of left hand 3 x 2″.
3. Abrasion over the left hand at the web space between the 2nd and 3rd fingers. Multiple blisters are seen over the forearms over the abdomen on both sides and over the back.
4.Blackish contusion is seen over the left thigh laterally 7 x 3″. Ex.P-7 is the Postmortem certificate issued by her.
(vii) P.W.5, Scientific Officer in the Physics Division in the Forensic Science Department, Madras, has deposed that their office had received a requisition-Ex.P-8, from the Judicial Magistrate, Tittagudi to conduct super imposition test on the skull preserved by the doctor in Cr.No. 394/91 of Ramanathan Police. Already their office received the skull sent through the Judicial Magistrate, Tittakudi along with photo of the deceased Kolanji with her child in her arms-M.O.4. He along with his Assistant Director conducted superimposition test by comparing item No. 1 skull as well as item No.2-photo. They have given their opinion to the effect that skull-item No. 1 could have belonged to the female individual as found in M.O.4. They have submitted their report-Ex.P-89.
(viii) One Kadirvelu, the then Inspector of Police, Tittagudi was examined as P.W.20. On getting information through V.H.F., from P.W.18 on 23.11.01 at 12.05 P.M., he proceeded to Ramanthan Police Station at 12.30 P.M. and took up investigation in this case. He visited Ezhuthur Village at 1 P.M. on the same day. After inspecting the place where the dead body was found, he prepared observation mahazar-Ex.P-13 in the presence of P.W.9 and one Periasamy. He drew a rough sketh-Ex.P-20. He arranged for a photographer to take photos of the deceased and M.O.3 series are the photos. The negatives are M.O.19 series. He conducted inquest between 3 P.M. and 5 P.M. in the presence of panchatdars. Ex. P-21 is the inquest report. He examined P.Ws.1, 2 and others. He recovered bloodstained earth-M.O.8, and sample earth-M.O.9 under Ex.P-14 mahazar in the presence of the same witnesses. He entrusted the body to P.W.16 for postmortem along with his requisition-Ex.P-5. He recovered M.Os.1, 2, 17 and 18 under Form No. 95. He sent requisition Exs.P-22, 23 and 24 to Court for sending the material objects for chemical analysis. With the permission of the Court, he took the custody of the accused. He enquired A-1 on 29.12.91 at about 11.30 A.M. At that time he (A1) gave a confessional statement, the admissible portion of which is Ex.P-16. P.W.10 and one Govindan attested the same. At about 4 P.M. both the accused took P.W.20 and other witnesses to Govindan’s land where A-1 took an ever-silver plate-M.O.14, one Aluminium kndu-M.O.15, which were recovered under Ex.P-17 mahazar in the presence of one Dhanavel and Govindan. On the same day at 4.30 P.M. A-1 also produced a knife-M.O.16 from a canal near Govindan’s land. The same was recovered under Ex.P-18 mahazar in the presence of P.W.10 and Govindan who attested the same. On 9.2.92 one Kaliaperumal, husband of P.W.11 handed over the photos-M.O.4 of the deceased to him, and he recovered the same under Forum No. 95-Ex.P-30. After completing the investigation, he filed charge sheet against the accused on 22.6.94.
4. After taking us through the entire materials placed before the learned trial Judge and the conclusion arrived at by him, Mr. M.G.L. Sankaran, learned counsel for the appellant/accused has raised the following contentions:
(i) The prosecution has not proved the alleged motive for the occurrence;
(ii) The last seen theory has not been substantiated;
(iii) Since P.W.8, before whom A-1 is said to have given extra judicial confession, turned hostile, the recovery of various Material Objects are highly doubtful.
(iv) Though the prosecution in the absence of eye witnesses, has relied on circumstantial evidence, the learned trial Judge ought to have held that the charge against the accused has not been proved beyond reasonable doubt.
5. On the other hand, learned counsel appearing for the Public Prosecutor contended that motive was established by the evidence of P.Ws. 11 and 12, and that last seen theory was also proved by placing legal evidence. He further contended that the recovery of Material Objects were properly done and the learned trial Judge rightly accepted the prosecution case and found the accused guilty; hence there is no merit in the appeal.
6. We have carefully considered the rival submissions.
7. At the foremost, let us consider whether the prosecution has established the alleged motive for the occurrence, which was spoken to by P.Ws. 11 and 12. P.W.11 is none-else than the mother of the deceased and mother-in-law of 1st accused. A-2 is A-1’s cousin brother. According to P.W.11, the marriage between the deceased and A-1 was performed 10 years back and through the wed-lock two children were born to them. A-1 is a drunkard. He planned to marry his sister’s daughter as 2nd wife. Prior to the occurrence, he was keeping her in his house itself and began to ill-treat the deceased. She further deposed that frequent quarrels between the deceased and the first accused arose and the deceased used to come to her mother’s (P.W.11s) house and they would mediate the matter and send her back to her husband. She further deposed that 31/2 years prior to the occurrence, A-1 beat the deceased and drove her to her (P.W.11’s) house. P.W.12, one of the panchayatdars, and others pacified both and mediated the matter and sent back the deceased with A-1. After 10 days, as P.W.11’s husband was to go to Ayyappan temple, he wanted to see his daughter; accordingly he along with P.W.11 went to their daughter’s house, and they saw the house of the deceased was locked. P.W.11 was told that the deceased along with A1 and A2 had gone for eking out their livelihood by selling baskets in other villages. On their request, P.W.12 and others went to the house of the deceased to see her, but her house was locked. They informed it to P.W.11 and her husband. Thereafter, the husband of P.W.11-Kaliaperumal made a complaint to Andimadam Police Station. After three days, Ramanatham Police came to her house and showed photographs-M.O.3 series of a dead body of a female. P.W.11 identified the figure found in the photos as that of her daughter. She also handed over photos of the deceased-M.O.4, which was taken while she was alive, to the police. The other witness to speak about the dispute between A-1 and the deceased is P.W.12, a native of Meensuritti Village. He also narrated the dispute between A-1 and the deceased happened prior to the occurrence and when the deceased came to her parents’ house, it was he who pacified her and sent her back along with her husband-A-1. On the request of P.W.11 that their daughter was not found in her house, and in order to fulfill their anxiety, P.W.12 went to Koovathur and found that her daughter was not there and her house was locked. He informed the fact to P.W.11. Another witness to speak about the mis-understanding persisted between A-1 and the deceased is P.W.13. She is a resident of Koovathur and neighbour of A-1. She corroborates the evidence of P.Ws.11 and 12 and she also saw the deceased along with the 1st and 2nd accused wearing in red colour saree and red colour blouse. She also stated that a day prior to Karthigai Deepam i.e., 3 1/2 years prior to the date of her evidence, the deceased along with the accused came to her house and requested her to take care of her two children. Though P.Ws. 11, 12 and 13 say that prior to the occurrence, A-1 and the deceased used to quarrel with each other, on the advice of the panchayatdars, particularly on the advice of P.W.11, the deceased returned back with her husband-A-1. The perusal of the entire evidence do not impress us to accept the case of the prosecution for the following reasons. Even according to P.Ws.11 and 12, except one incident they were not able to say whether quarrel between A-1 and the deceased existed several times. Admittedly, A-1 and the deceased existed had two children, one male and a female. Unless a good relationship existed between them, it would not be possible for the wife-deceased to beget two children. Another point to be noted is that though P.W.13 has stated that a day prior to Karthigai Deepam, the deceased along with the accused came to her house and made a request to take care of their two minor children, it is not clear why the deceased had not taken any effort to entrust the children with her mother-P.W.11 who is residing in Meensuritti, a neighbouring village, when the bus fare Koovathur to Meesuritti being Rs. 3. It is not the case of the prosecution that Koovathur village is not far away from Meensuritti village. Inasmuch as P.W.13 is not a close relative of the deceased, it is highly doubtful whether it would be possible to entrust her two minor children with her. P.W.13 also admitted that the mother of A-1 is residing in the same village i.e., Koovathur. In cross examination, P.W.13 admitted that whenever A-1 left his house on livelihood, he used to entrust his two minor children to his mother. P.W.13 has also admitted that she was facing a criminal case under Prevention of Immoral Traffic Act. On the date of her evidence, she was facing a case in Vridhachalam Court. In such a circumstance, we are of the view that the evidence of P.W.13 is highly unreliable and it is also very much doubtful whether the deceased had entrusted her minor children with P.W.13, more particularly in the light of her evidence in cross examination that A-1 had been in the habit of entrusting his children whenever he left his house for livelihood. As observed earlier, though P.Ws.11 and 12 have stated about the quarrel between A-1 and the deceased prior to the occurrence, in the light of the evidence of P.W. 13 and other circumstances, referred to above, we are of the view that the evidence of P.Ws. 11, 12 and 13 are not beneficial to the prosecution case, unless they are supported by other evidence. In this regard, it is relevant to refer a decision of the Apex Court in State (Delhi Admn.) v. Gulzarilal, . Their Lordships have held that in cases where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in order to tilt the scale against the accused. They further held that it is also well settled that the accused can be convicted on circumstantial evidence only if the circumstances are wholly inconsistent with the innocence of the accused. In the light of our conclusion that the evidence of P.Ws. 11, 12 and 13 are unreliable, we are of the view that prosecution has failed to establish strong motive for the occurrence. It is also relevant to note that the motive as alleged by the prosecution has not even been mentioned in the First Information Report-Ex.P-1. In Ashok Yadav v. State of M.P., 1997 SCC (Cri) 317. Their Lordships of the Supreme Court had held that if there is no mention of motive in the complaint/F.I.R., it is to be presumed that motive was not been proved. In the instant case, as observed earlier, absolutely there is not reference or mention in Ex.P-12, which is the complaint given in Andimadam Police Station by Kaliaperumal, the husband of P.W.11 and father of the deceased, regarding the motive and even if we accept the evidence of the witnesses spoken to, it is much too feeble a motive.
8. Next we shall consider whether prosecution has established the last seen theory, namely A-1 and the deceased were seen alive together prior to the occurrence. In so far as the claim that A-1 and the deceased were seen together was spoken to by P.Ws. 13, 14 and 15, let us consider whether they proved the case of the prosecution that the accused and the deceased were seen together prior to the occurrence. As stated earlier, P.W.13 is a resident of Koovathur. She knows the deceased as well as the 1st accused. She is residing opposite to the house of A-1. After panchayat, the deceased was taken to the house of A-1. One day prior to Karthigai festival i.e., 3 1/2 years prior to the date of her deposition around 8 A.M. she saw the 1st and 2nd accused and the deceased. At that time, according to her, the deceased was wearing a red colour saree and a red colour blouse and all the three informed her that they are going for cutting baboo sticks for making baskets and selling them, for which A-1 entrusted his two children to P.W.13. We have already observed that even according to P.W.13, A-1’s mother is also residing in the same village and neither A-1 nor his wife made any attempt to entrust their children with her (mother). Likewise, no efforts were also taken to entrust their children to the mother of the deceased, who is residing in Meensuritti, a neighbouring village. By referring these two aspects, we observed that entrustment of the minor children with P.W.13, who is not their relative, is highly doubtful. In cross examination, P.W.13 has admitted that the accused and the deceased often go out for cutting bamboo sticks and at no point of time they informed her, In such a circumstance, there is no explanation why the first accused and the deceased informed P.W.13 about their going out for their livelihood.
9. The other witness examined by the prosecution to substantiate the last seen theory is P.W.14. He is a resident of Tittagudi which is a different village and he is a black-smith by profession. According to him, 31/2 years from the date of his evidence, on the date of Karthigai Deepam, the accused came to his smith along with a lady and entrusted him with three knives for sharpening. They paid Rs. 15 as charges for the same. He identified M.O.16 is the knife which he sharpened also identified that it was the lady found in M.O.4 photo, which he saw with the accused. In cross examination, he admitted that he was doing the business of black-smith for nearly 30 years and persons going for cutting bamboo sticks used to sharpen their knives one or two times in a month. He admitted that he had not seen A-2 except the day on which all the three came for sharpening their knives. He also admitted that he had not seen A-1’s wife (deceased) at any point of time. According to him, only on one occasion i.e., the date on which they came for sharpening, he saw them. Though he claims that the people doing similar work used to come and sharpen their knives one or two times in a month, he admitted that except on one occasion, he has not seen the 1st accused at any time. He also confessed that except one occasion, he had not seen the deceased also. In those circumstances, we are of the view that P.W.14 is brought up only to speak about the case of the prosecution in respect of the alleged occurrence and not speaking the truth.
10. The other witness relating to the claim that accused and the deceased were seen together is P.W.15. He is a resident of Nangoor Village. He is having a ‘kalam’ next to his house. 31/2 years ago i.e., on the Karthigai Deepam festival, he saw the accused and the deceased in his village and they cooked food in his ‘kalam’. In cross examination, he admitted that he is an agriculturist and several coolies similar to the accused and the deceased used to come, cook food and stay in his ‘kalam’. On the Karthigai Deepam festival day 20 to 30 persons were cooking in his kalam and he saw the accused and the deceased in the midst of other coolies. He fairly confessed that he is not aware of them prior to the said occurrence and do not know their names, their whereabouts etc. inasmuch as even according to P.W.15, 20 to 30 workers used to come and stay in his kalam and in the absence of any particular reference to the accused and the deceased, his evidence is also highly improbable and it cannot be construed that he identified the accused and the deceased, particularly in the midst of others. Though P.W.20 has enquired P.Ws.14 and 15 on 10.12.91, admittedly P.W.13 was examined only on 14.12.91. On a careful analysis of the entire evidence of P.Ws, 13, 14 and 15, it failed to impress us with regard to last scene theory and we are of the view that there is no occasion to see the accused and the deceased as alleged by the prosecution. Admittedly, no identification parade was conducted to identify the accused. In those circumstances, we are unable to rely on the evidence of P.Ws. 13,14 and 15 in support of the case of the prosecution relating to the claim that they saw the accused and the deceased together prior to the occurrence.
11. It has been consistently laid down by this Court as well as the Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the intention of the accused or the guilt of any other person. As observed in State of Haryana v. Jagbir Singh and Anr., 2003 (7) Supreme 117, the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. It is also settled law that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
12. Now we shall consider extra judicial confession said to have been given by the accused to P.W.8 on 25.11.91 after the commission of the offence. P.W.8 is a native of Koovathur village, before whom, according to the prosecution, the accused made a confessional statement. It is settled law that extra judicial confession is a very weak piece of evidence. Here, though a claim was made that the first accused made a confessional statement to P.W.8, admitting his guilt, he turned hostile and has not supported his earlier statement made under Section 162, Cr.P.C. Inasmuch as P.W.8 turned hostile not supporting the case of the prosecution, the subsequent recoveries made are also highly doubtful. Though the inspector of Police has recovered M.Os. 14,15 and 16 near the body of the deceased, in the land of Ramasamy Reddiar, P.W.2 who saw the dead body in the said land in cross-examination has fairly admitted that those M.Os., namely, M.Os. 14, 15 and 16 were not found near the same. He confessed that
whereas P.W.10, a resident of Tittagudi has stated that M.Os. 14 and 15 were recovered in the land of Govindasamy which is next to the land of Ramasamy Reddiar. P.W.9, Village Menial of Ezhuthur Village, in cross-examination has accepted that when the Inspector of Police visited the place where dead body was lying, M.Os. 13, 14 and 15 were not there as he did not see anything in that place. The above inconsistent statement by witnesses show that M.Os. were not recovered in the place and in the manner as alleged by the prosecution.
13. P.W.3, Civil Surgeon attached to Government Headquarters Hospital, Cuddalore, examined A-1 at about 5 P.M. on 21.5.92 and found on him 3 curved healed adjacent each other lacerated scar seen on the dorsum and both sides of the left index finger of the middle pahalans. According to him, the injury could have been caused by teeth biting. The injuries nay also be caused by human teeth bite. Though it is admitted that A-1 was treated by a private doctor, he was not examined. Even according to P.W.3, the injuries are completely healed. In those circumstances, in the absence of details as to the treatment given by the private doctor, it cannot be presumed that the injuries found on A-1 were due to human teeth bite as alleged by the prosecution.
14. The Doctor who conducted autopsy on the dead body of the deceased was examined as P.W.4. We have already referred to the injuries noted by him in the postmortem certificate-Ex.P-7. It is true that according to him, the external injury No. 1 corresponds to internal injury mentioned in the postmortem certificate which is fatal one. In the chief examination though she stated that external injury No. 1 is possible by using weapon like a sharp edged knife-M.O.16, in cross-examination, she fairly admitted that she had not noted the measurement of injury No. 1 in Ex.P-7, for which she explained that because the body was blooded she was not able to measure the injury. She also admitted that from Ex.P-7 she cannot say the nature of the injuries. She further confessed that since she had not noted the measurement of the injuries, she cannot exactly say whether these injuries could have been caused by the knife which was shown to her in the Court. She admitted that flies and maggots will be found on the dead body between 8 and 24 hours after the death and maggots and flies have to be examined to fix the exact time of death. She also admitted that she had not mentioned in Ex.P-7 with regard to preservation of skull. Finally she admitted that the body was not in a position to be identified.
15. The Scientific Officer in the Forensic Science Department, Madras, was examined as P.W.5. It is seen that on the basis of the request of the investigation officer, the Judicial Magistrate, Tittagudi gave a requisition to the Director of Forensic Science, Madras to conduct super imposition test on the skull preserved by P.W.4-Doctor in Crime No. 394/91 of Ramanatham Police. The skull was sent along with the photo of the deceased Kulanji with her child in her arms. The photo of Kolanji is M.O.4. P.W.5 deposed that he along with Dr. G.J. Srinivasan, Assistant Director, conducted super imposition test by comparing the skull-item No. 1 with the photo-item No.2. According to him, by using electronic skull identification device, they conducted superimposition examination. M.O.7 is the photo got by them by using the above said superimposition test with the help of M.Os. 5 and 6. He gave his opinion to the effect that the skull-item No. 1 could have belonged to the female individual seen in M.O.4. His report is Ex.P-9. Though P.W.5 has stated that the superimposition test was conducted by himself and their Assistant Director-Dr. G.S. Srinivasan who also signed in the report, he was not examined by the prosecution. A perusal of the report and the evidence of P.W.5 at the most show that the skull-item No. 1 belonged to the female individual. In the light of the evidence of P.W.4-Doctor who conducted postmortem, in the absence of details regarding the nature of injuries and his opinion that he cannot exactly say whether those injuries could have been caused by the knife which has been shown to him in the Court, merely on the basis of the report of superimposition test, we cannot presume that the skull sent for scientific examination belonged to the deceased. It is relevant to note that though prosecution has recovered the knife-M.O.16, admittedly, the same was not sent for chemical examination. It is also relevant to note the blood group. Though saree, blouse and earth, M.Os. 1, 2 and 8 respectively there is a reference of human blood, in the absence of the fact that M.O. 16-knife which was alleged to be used for murdering the deceased, had not been sent for chemical examination and in the absence of any such blood-stain in the other M.Os., we are of the view that presence of human blood in the saree and blouse does not prove the case of the prosecution as claimed. As observed earlier, when the entire prosecution case rests on circumstantial evidence, it requires very high decree of probability. In other words, the evidence must be of such a nature as to exclude any other inference except that of guilt and it requires very high degree of probability and inference should be verified with scrupulous accuracy. As observed in Kuldip Singh v. State of Punjab, 2002 SCC (Cri) 1534, when the prosecution relies on circumstantial evidence in order to prove the guilt incriminating circumstances must be established by cogent and reliable evidence. We have already referred to various factors relied on by the prosecution are not impressed on us, more particularly in the absence of establishing the link on all aspects. Inasmuch as the extra-judicial confession made to P.W.8 cannot be accepted since P.W.8 has not supported the same before the court since he retracted, he was treated as hostile witness. It is settled law that extra judicial confession and recovery of dead body on the voluntary statement made by the accused the evidence must be reliable, acceptable. In the light of the statement of P.W.8 not supporting his statement made under Section 161, Cr.P.C. all subsequent actions including recoveries cannot be relied on in the absence of any other material. The reading of the entire prosecution witnesses and the materials placed created considerable doubt and we are of the view that the prosecution has failed to establish various circumstances in the circumstantial chain. After giving our careful consideration, we are not able to agree with the conclusion arrived at by the learned Sessions Judge. The circumstances relied on by the prosecution are not sufficient to establish the guilt of the accused. It is well settled that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by individual witness and the circumstances so established must form of a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. Among the circumstance relied on by the prosecution in the light of these principles, we find that the circumstances are not incriminating. In Inderjit Singh v. State of Punjab, 1991 Cri.L.J. 2191, the Supreme Court has held that the only circumstances, namely that the accused was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. In our case, even the last seen theory has not been proved beyond reasonable doubt. Though the death of the deceased was homicidal, since there is no direct witness connecting any of the accused with the crime, we should fall back on the circumstantial evidence and we are of the view that the circumstances relied on by the prosecution are hardly sufficient to establish the guilt of the accused.
16. In the light of what is stated above, we hold that the prosecution has failed to establish the guilt beyond reasonable doubt. Though prosecution has relied on circumstantial evidence, the same has not been established and there are many missing links in the circumstances. The learned Sessions Judge failed to consider all these aspects and we are unable to concur with the conclusion arrived at. Accordingly, the conviction and sentence imposed on the accused/appellants are set aside and the Criminal Appeal is allowed. Their bail bonds shall stand discharged.
