JUDGMENT
Koshy, J.
1. One Sarojini, a divorcee aged about 50 years, who was living alone, was murdered in the night of 27.4.1991. The appellant/accused was charge sheeted alleging that he has trespassed into the house of Sarojini in the night, stolen her chain and studs and killed her and, hence, committed offences under Sections 302, 450, 461 and 380 of the Indian Penal Code. Originally he was acquitted by the Sessions Court by judgment dated 7.4.1993. The trial Judge who examined the witnesses came to the opinion that the prosecution was not able to prove the case beyond shadow of doubt, but this Court suo motu in revision, Crl.R.C.No. 60 of 1993, remanded the matter for fresh consideration. Thereafter, he was convicted under Sections 302, 450, 461 and 380 IPC by judgment dated 18.12.1999. This appeal is filed by the accused against that judgment.
2. The prosecution case was correctly summarised by the Sessions Judge as follow:
“Deceased Sarojini is a divorcee aged about 50 years on the date of her death on 27.4.91. She remained a divorcee for a period about 3 decades prior to her death. her brother along with his family was residing in the adjacent house. She was employed as a house-maid in the house of PW14. Deceased Sarojini was a strong willed and independent woman. She did not want to reside with her brother and sister-in-law (PW2). She was hence residing in a small makeshift hut adjacent to the house of PW2 all alone. She used to go for work in the house of PW14 and return every night to her residence. She used to have her food in the house of her employer. She would return in the night to sleep in her hut. No other person was living with her.
On the night of 26.4.1991 Sarojini had come back from her place of work and had retired for the day. Her sister-in-law PW2 had seen her at about 8 p.m. and later at about 10 p.m. Initially Sarojini had asked her whether she had taken a pot from her house. PW2 answered in the affirmative and returned the pot. Later in the night PW2 had seen her getting into her house from outside probably after answering the call of nature.
Next morning – 27.4.91 PW2 observed that Sarojini had not swept the court-yard of her house as usual. She felt that probably Sarojini had gone to the house of her employer earlier on that day. But when she made enquiries, she came to know that Sarojini had not reached the house of her employer also. When PW2 went to the house of Sarojini and peeped inside, she found that Sarojini was lying dead with injuries inside the hut. It was a ghastly sight and MO23 photographs with MO24 negatives can give us a picture of what it looked like when PW2 peeped in. Sarojini was lying dead with injuries inside the house. The scene bore indications to suggest that a push and pull had taken place there box which was available there had been broken upon and articles were strewn around. Deceased Sarojini was practically naked. Old newspapers and clothes were heaped on her to cover her up.
Information went around. It was observed that Sarojini was not wearing any ornaments. She used to wear MO1 gold chain and MO2 series of studs. They were found missing. The broken box also suggested that some miscreant had entered the house with the intention to commit theft. The nature of injuries suggested a sexual assault also. MOs. 1 and 2 as stated earlier, are the ornaments which the deceased used to wear. She had purchased MO1 recently after giving an old ornament of her and some further amount. The purchase was made from the shop where PW6 is an employee…”
3. PW1, a nephew of the deceased Sarojini, went to the police station and gave Ext.P1 First Information Statement. In the above statement there was no suggestion regarding the accused. The accused was engaged in the work of road laying/repair. There is no eye witness to the incident and the prosecution tried to prove the case on the basis of circumstantial evidence. It is well settled that to prove a case on the basis of circumstantial evidence every link of the chain has to be established by the prosecution and circumstance is such that only possible hypothesis is the guilt of the accused and no other conclusion is possible. Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) laid down the conditions to be satisfied before an accused can be convicted on the basis of circumstantial evidence. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established the circumstances concerned “must or should” and not “may be” established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, that should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
The circumstantial evidence in order to sustain conviction must be complete and must be incapable of explanation on any other hypothesis than that of the guilt of the accused, as held by the Supreme Court in Jaswant Singh v. State (Delhi) Administration) (AIR 1979 SC 190).
4. The following circumstances are enumerated by the Sessions Judge to convict the accused:
1) Deceased Sarojini was residing alone in the house.
2) She was alive till about 10.30 p.m. on the previous night and her death had taken place by the next morning.
3) She succumbed to the injuries which are found on her person described in Ext.P3 P.M.certificate.
4) MOs. 1 and 2 gold ornaments belonging to the deceased were found missing from her person/house.
5) The data available at the seen suggested that there was an attempt to commit theft/robbery from the house of the deceased.
6) The accused was found available near the scene of occurrence at about the time when the death could have taken place.
7) The accused had absconded to Bangalore immediately after the commission of the crime.
8) MO14 button which was fund at the scene of occurrence compares favourably with the other buttons which were available in the shirt, MO4 worn by the accused immediately prior to the time when death of the deceased must have taken place.
9) After the arrest of the accused on 3.5.91, MO4 seized from his possession had one button like MO14 missing in it and MO14 was recovered form the premises.
10) There were blood-stains on MOs. 4 and 5 clothes seized from the accused after his arrest and the accused was found wearing them at about the time of occurrence.
11) After the occurrence, the accused through PW17 had pledged MOs. 1 and 2 with PW16 under Exts.P9 and P10.
12) After arrest of the accused, MOs. 4 and 5 as well as Exts. P9 and P10 were seized on the basis of confession statement given by the accused to PW20 under Section 27 of the Evidence Act.
13) MOs. 1 and 2 were seized from, the possession of PW16 by the after the arrest of the accused.”
5. Now we may examine whether these circumstances are established by the prosecution. PW2 is the sister-in-law of the deceased. She stated that she saw the deceased Sarojini on 26.4.1991 night at around 8.30 p.m. She was sitting inside her house. They were residing nearby. After PW2 and her husband went for sleep by 10’c clock they heard the accused calling his neighbour Sathi. She identified the accused by sound. Thereafter, accused went to the house of Mohammedali and she heard the sound of quarrelling between accused and Mohammedali. It was at 10.30 p.m. She saw the deceased Sarojini closing the door and she saw her alive last at that time. Thereafter, rain and thunder came. She went inside the house and slept. Early morning Sarojini used to sweep the court-yard of the house every day before going for work. She was working as a domestic servant at the house of Mohammedali and Lathief. In the next day morning it was noticed by PW2 that Sarojini has not swept the court-yard and door was not fully closed. PW2 along with Mohammedali went to the house of Lathief and asked whether Sarojini came there. Lathief confirmed that she did not come there for work. PW2 came back and entered the house of Sarojini. Then she saw that Sarojini lying dead and MO1 chain and MO2 studs were not there. She identified MO1 chain and MO2 studs as that of Sarojini. Her husband, brother of the deceased was not examined. Even Mohammedali who came to the place was also not examined. According to her, when she woke up since the courtyard was not swept by Sarojini, she immediately went with Mohammedali to the house of Lathief. She or prosecution did not explain how Mohammedali came in the early morning in front of the deceased’s house and in front of PW2’s house.
6. PW3 who was residing in Theevandi colony was examined to show that accused with his dog came to Asokan’s house at about 11 P.M. on 26.4.1991 and there was quarrel with Asokan (PW13). Hearing the sound he went there. When he interfered, accused started to quarrel with him. Accused abused him and PW3 also assaulted him. Accused fell down. Accused threatened him to kill. Then mother and sister of the accused came and took him away. PW3 deposed as follows:
This evidence was adduced to show the presence of the accused in that area on that day. But deceased was not staying in Theevandi Colony, but in a nearby colony called ‘Abhala Colony’. Mother and sister of the accused who already came there were not examined. If mother and sister came there and accused gone with them, murder by the accused seem to be remote.
7. PW4 deposed that on 26.4.1991 accused sold a cycle to him for Rs. 250/-. That evidence was adduced only to explain that on 26.4.1991 he was present in the locality. As far as PW5 is concerned he deposed that accused boarded a bus at about 12.30 p.m. on 27.4.1991. The accused was sitting behind him. He deposed that he was going to his wife’s house. He boarded from Kuzhikattussery. He was a metal crusher worker. He did not go for work on that day. He is not aware who else were travelling in the bus, but he noticed the accused. He was examined to prove that the accused left the place on 27.4.1991. PW6 who is an employee in a jewellery was examined to prove that MO1 chain was purchased by the deceased from the jewellery where he is working. The scene mahazar was prepared by PW20. PW7 is the Civil Surgeon working in the Government Hospital, who took sample of hair of the accused, which was marked as MO3. From the inquest report (Ext.P13) it can be seen that three hairs were seen inside the hand of the deceased between fingers. To compair that hairs with that of the accused, sample of hairs were taken from the accused and that was marked as MO3. The hair taken out from the deceased was marked as MO22. Ext.P13 inquest report also shows that body was practically naked and blood was seen at the pelvis region. PW8 issued the postmortem report. We shall deal with the postmortem report later.
8. PW17 is stated to be a friend of the accused who was living in Bangalore. According to him, the accused worked in his shop during 1984-85. On 25.4.1991 accused went to his shop and accused had a bag with him. Accused told him that he has got stud and chain of his wife which are damaged and he wanted to pledge it, but marvady did not gave him money. Therefore, PW13 went to PW16 and it was pledged therein. When police came it was taken out and from the bag MO4 and MO5 were recovered and that MO4 and MO5 were taken out by PW17. He handed over the shirt and lunki to the police. PW16 is the pawn broker. He stated that on 29.4.1991 it was pledged by PW17 and he also identified MOs. 1 and 2. PW13 is Asokan who was examined to prove that accused quarrelled with him at about 10.30 in the night and to show the presence of the accused at that time. The deceased was stated to be working in the houses of Mohammedali and Lathief. Neither Mohammedali nor Lathief were examined even though the witnesses deposed that there was a quarrel between Mohammedali and accused. On 27th morning when it was noticed by PW2 that the courtyard was not swept by the deceased. She deposed that she along with Mohammedali went to the house of Lathief. Mohammedali was not examined by the prosecution. Why Mohammedali came to that courtyard is also not known and this is a weak point on the prosecution. PW17 deposed that accused came to Bangalore on 25.4.1991 with the bag containing MO1, MO2, MO4 and MO5, but the murder took place on 26.4.1991 night. It is another weak point of the prosecution. The date 25.4.1991 was stated by PW17 on two occasions. No effort was made by the prosecution to correct it, if it was a mistake. PW16’s evidence would show that PW17 alone went there to pledge MOs. 1 and 2. Accused did not take MOs. 4 and 5 from the bag, but it is PW17 who took the shirt and lunki from the bag of the accused and handed over to the police. Therefore, recovery of MO1, MO2, MO4 and MO5 were not admissible in evidence under Section 27 of the Evidence Act. It is also difficult to believe that blood stained clothes were taken by the accused in the bag on the way to Bangalore and kept in tact for a week waiting for the arrival of police to arrest him on 3.5.1991. The confession statement of the accused which lead to the alleged recovery of MO1, MO2, MO4 and MO5 was also not produced and marked in evidence. See Jackaran Singh v. State of Punjab (1995 Crl.L.J. 3992 (SC)). Further, there is no evidence to show that MO4 shirt and MO5 kaili belonged to the accused. The chemical examination report also shows that it cannot positively be stated that MO14 button recovered at the time of inquest is the button from MO4 shirt, eventhough there is some similarly between the buttons. It is true that MOs. 4 and 5 were blood stained. There is no evidence to prove that they were used by the accused on the date of murder and the blood stains were that of the deceased as the chemical examiner deposed that there was no sufficient blood to identify the blood group. The evidence of PW16, PW17 and recovery only proved that MO1 and MO2 were pledged by PW17 with PW16 and MO4 and MO5 were taken out from a bag by PW17 from a bag found in his shop and it will not connect the accused with the crime by any legally admitted evidence.
9. It was argued by the prosecution that accused pleaded full innocence and no explanation was given by the accused how he obtained MO1 and MO2. We have already held that recovery of MO1, MO2, etc. was not proper. It is true that a false explanation given by the accused can be given as an additional link. Here there is no false explanation. As held by a Three Member Bench of the Supreme Court in Sharad’s case (supra), a false explanation or false defence only gave an assurance to the Court for conviction, if all other circumstances are proved. In that decision in para 150 the Apex Court held as follows:
“150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.”
In Shankarlal Gvarasilal Dixit v. State of Maharashtra (AIR 1981 SC 765) the Apex Court observed as follows:
“Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”
10. The chemical examiner in his report submitted that the MO22 hairs recovered from the handed of the deceased at the time of inquest are not the hairs of the accused and they were not tallying with MO3 hairs taken from the accused. This is a very weak point in the prosecution case. This circumstance was not noticed by the Sessions Court. Therefore, the link in the circumstantial evidence is broken and it cause a serious doubt. MO22 hairs were taken from the hands of the dead body at the time of inquest. It was not tallying with MO3 hairs of the accused. Death was supposed to be after midnight. Thus at the time of death a person other than the accused had contacted with the deceased. It is true that if presence of the accused in the place of occurrence around the time of commission is admitted and his departure or abscondence from the place in the early morning on the next day, will create strong suspicion against the accused. But mere suspicion cannot replace conclusive proof. Here according to PW17, accused came to Bangalore on 25.4.1991, a day prior to the commission of offence allegedly with the bag containing MO1, MO2, MO4 and MO5. It is true that if the recovery of MO1 and MO2, ornaments said to be used by the deceased, was proved, it is for the accused to give a reasonable explanation, otherwise a presumption can be taken. Here as we have already stated recovery was not proved. It was also not proved that MO4 and MO5 blood stained shirt and kaili belonged to the accused. But in this case, even if the case of the prosecution is accepted, an important fact to be noticed is that the accused did not break open the door and entered the house. PW2 saw the deceased closing the door of her house in the night. There is no evidence that accused broke open the door and entered the house. PW2 on the next morning saw that the house of the deceased was not fully locked and it was half opened as per the police statement. Accused was unarmed. The postmortem report shows that the death was due to blunt injuries. There is no case for the prosecution that there was na intention to murder her. Therefore, even if the prosecution case and circumstantial evidence are admitted the offence will come only under Section 304 Part II. The accused has undergone more than five years imprisonment. But in this case, we are of the view that since the hairs recovered from the hands of the deceased at the time of inquest are not tallying with the hairs of the accused, possibility of presence of another person cannot be ruled out. Last seven circumstances mentioned by the Sessions Judge were also not proved satisfactorily by the prosecution. In Kali Ram v. State of Himachal Pradesh (AIR 1973 SC 2773 at page 2782), the Supreme Court made the following observations:
“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.”
The Supreme Court in Shivaji Sahebrao Bobade v. State of Maharashtra ((1973) 2 SCC 793: (AIR 1973 SC 2622) the following observations were made:
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
Here in this case, it is not possible from the evidence adduced to hold that only hypothesis points out the guilt of the accused and there is no other possibility. Therefore, benefit of reasonable doubt is given and the accused is acquitted.
11. In the result, the conviction and sentence are set aside and the accused is acquitted by giving the benefit of doubt. He should be released from prison forthwith, if he is not required in any other case.
The Criminal Appeal is allowed.