JUDGMENT
G.D. Patil, J.
1. The present appeals are directed against the judgment and order dated 24th July 1991 rendered in sessions Trial No. 105 of 1991 by the learned 10th Additional Sessions Judge, Nagpur, whereby the accused-appellant Sundarlal has been convicted for the offence punishable under Part II of Section 304 and Section 201 of the Indian Penal Code and has been acquitted of the offence punishable under Section 302 IPC. The accused Sundarlal has been sentenced to suffer rigorous imprisonment for seven years for the offence punishable under Part II of Section 304 IPC whereas for the offence punishable under Section 201 IPC he has been sentenced to suffer rigorous imprisonment for three years. The accused Sundarlal has preferred Criminal Appeal No. 302 of 1991 challenging his conviction and sentence whereas the State has preferred Criminal Appeal No. 455 of 1991 challenging the acquittal of the accused for the offence punishable under Section 302 IPC.
2. As per prosecution version, accused Sundarlal is resident of village Kandri Mines which comes under the jurisdiction of Manaar out-post which is under Ramtek Police Station. He married with Gita-the deceased – some 10 years before her death. He had two children – one daughter Aruna aged about 9 years and one younger son. Shamlal and Ramabai are parents of Geeta, residing at village Borkhedi – a place situated at one hour’s distance by bus from Kandri Mines. As per prosecution story, accused Sundarlal and his wife Gita had been to Delhi for taking part in some political agitation near about Dasera festival and had returned to Nagpur before Diwali festival of 1990. It is alleged that the relations between two had become some what strained due to squabbling between then and unfaithfulness between them had increased after their arrival from Delhi because the accused did not like his wife’s conduct of staring at one Daroga during the journey. He was suspecting immorality oh her part. During their sojourn at Delhi Shamlal – father of the deceased – had come to Kandri Mines for taking care of the children. After the arrival of the accused and his wife also Shamlal stayed in their house for 2 or 3 days more during which period, it is alleged, there was quarrel in between the accused and Gita and the accused had tried to throttle her by pressing her neck. Complaint was lodged to the police about this incident. Thereafter Shamlal had gone to his village Borkhedi. About 3 or 4 days thereafter the accused came to Borkhedi with his children. On being asked as to why children alone were brought and why Gita had not come, the accused had told that she was busy in work and would be coming after 4 to 8 days. The accused had then gone back. Shamlal and his wife Ramabai enquired with the children about Gita. They told them that they were not aware as to where their mother had gone and that the accused had taken them to village Kaichi for searching their mother. Ramabai then went to village Kandri Mines to search for Gita after about 2 days and then went to Mansar Police Station for giving report, but the Police had told her to bring the children of Gita for lodging the report. Shamlal then went to Kandri with the children and when he visited the house of Gita, he found the police having already arrived there. Shamlal lodged oral report Ex. 30. As per prosecution version, the accused was absconding and ultimately was arrested on 2-11-1990. PW 9 PSI Tripathi visited the house of Sundarlal and from the ugly odour suspected that Gita must have been buried near the house. He first dug at one place where he found hair of lady with little flesh. Then he searched in front of the house within compound known as Badi and found big ditch covered with soil. He got that ditch dug and found legs of human being. Since it was late hours in the evening, he again covered that pit with soil. He then asked Shamlal to lodge another report of occurrence at Kandri Mines and also recorded statements of several persons and secured permission from the Executive Magistrate to dig. On the next day in the morning in the presence of the Executive Magistrate and others he dug the spot and took out the body of Gita from the ditch. The body was completely decomposed and hence post-mortem was conducted on the spot itself. After completing the necessary investigation charge-sheet was filed in the Court of J.M.F.C. Ramtek for the offence punishable under Section 302 and 201 I.P.C. and the matter was then committed to the Court of Sessions at Nagpur.
3. The accused pleaded not guilty to the charges framed against him under Section 302 and 201 I.P.C. and claimed to be tried. The prosecution examined in all 8 witnesses, inter-alia deceased Gita’s parents PW 1 Shamlal and PW 3 Ramabai, her daughter PW 4 Aruna and one Panch witness PW 2 Laxman, PW 7 Gangadhar and PW9 Tripathi, Investigation Officer. The other witnesses are Medical Officers and Police Officers. The defence of the accused was that of total denial, saying that Gita was missing and that he did not know anything as to who killed her and buried her where she was found. He stated that he was searching her since her missing and that he had no strained relations with her. The trial Court, on appreciating the evidence brought on record by the prosecution held that the accused was responsible for causing the injury of fracture of 7th vertebra of the deceased and laceration on neck till Gita died, but held that he had no intention to cause the death. However, attributing knowledge to the accused that his act of causing injuries to the deceased would likely to cause the death, he held him guilty for the offence punishable under Part II of Section 304 I.P.C. He also found that the accused committed an offence punishable under Section 201 IPC by burying the dead body and not disclosing the information to any body with intention to screen himself and accordingly convicted and sentenced him as aforesaid, acquitting the accused of the offence punishable under Section 302 IPC.
4. As already indicated, the State is claiming conviction of the accused for the offence punishable under Section 302 IPC whereas the accused has filed appeal challenging his conviction and sentence imposed upon him for the offence punishable under Section 304 Part II and 201 IPC.
5. Mr. E. W. Nawab, learned counsel for the accused, pointed out at the outset that the evidence brought on record by the prosecution in the instant case is only of the category of circumstantial evidence since though PW 4 Aruna was examined as an eye-witness to the alleged incident of causing injuries by the accused to her mother Gita, resulting into her death, and as to her burying into the ditch by her father, she has been rightly disbelieved by the trial Court on this aspect. Inviting our attention to the 12 circumstances on which the prosecution has relied upon to bring home the guilt of the accused as enumerated in para 8 of the judgment, he submitted that he did not dispute the finding recorded by the trial Court that the prosecution has proved the circumstance that the accused was the husband of Gita, that they were living together, that Gita was missing from 12-10-1990, that body of Gita was found buried in the courtyard of the accused, that there were marks of injuries on the body of Gita. He submitted that the circumstance relied upon by the prosecution that the accused was absconding, has not been accepted by the trial Court itself as having been proved by the prosecution, and rightly so. He further submitted that the trial Court, however, cannot be held to be justified in recording a finding that the prosecution has established the remaining circumstances as enumerated in para 8 of the judgment, the first being the relations between the accused and his wife were strained, second – the accused did not give the information of her missing to anybody, third – the accused did not search her, fourth – nobody else could have buried the body of Gita in the courtyard of the accused; fifth – she had no enemy and sixth – there was ugly odour in the premises of the accused which would have easily led to the discovery of the dead body. In the submission of Mr. Nawab, undisputed circumstance that the accused was the husband of Gita, that they were living together, that Gita was missing from 12-10-1-990, that her dead body was found buried in the courtyard of the accused, and that there were marks of injuries on the body of the deceased, either individually or cumulatively cannot be termed to be totally inconsistent with the innocence of the accused, inasmuch as they cannot be said to be of a definite tenancy unequivocally pointing to the guilt of the accused only and even if taken cumulatively cannot form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Inviting out attention to the evidence on record, Mr. Nawab further contended that the remaining circumstances which have been relied upon by the trial Court for recording the conviction of the appellant-accused cannot be held to have been established by the trial Court and even those circumstances either individually or cumulatively cannot be termed to be of a definite tendency unequivocally pointing towards the guilt of the accused and cumulatively forming a chain so complete that there is no escape from the conclusion that within all probability the crime was committed by the accused and none else. This is even if they are taken into consideration along with the circumstances which are not being disputed as having been established by the prosecution. Mr. Nawab led emphasis on the aspect of giving a stress by the trial Court on the circumstances of the accused living together with Gita and being continuously living with her till the date of her missing and on the aspect of absence of plausible explanation on his part of the facts within his knowledge as regards the incident culminating into the death of Gita and of her burying in the ditch, by contending that the circumstance of the accused being with Gita till the date of her missing ought not to have held to be an incriminating circumstance, particularly when even as per prosecution version the appellant’s father was also present in the house till the disappearance of Gita – the deceased – and when the possibility of he being the offender cannot be ruled out in such a situation. Mr. Nawab submitted that the trial Court has committed an error in recording a contrary finding in this regard, and having regard to the facts and circumstances, the appellant-accused ought to have been held not guilty of the offences for which he has been convicted, giving him at least a benefit of doubt. Mr. Nawab led stress on all these aspects for claiming reversal of the judgment and order passed by the trial Court and submitted that the accused-appellant is entitled to be acquitted of the offences for which he has been convicted and sentenced by the trial Court.
6. The learned APP on the other hand raised submissions in support of the findings recorded by the trial Court, but for on the aspect of nature of offence as has been held to have been proved by the prosecution by the trial Court and submitted that in the facts and circumstances of the case and having regard to the evidence on record the accused-appellant ought to have been held guilty for the offence punishable under Section 302 of the Indian Penal Code and claimed modification of the judgment and order rendered by the trial Court to this extent.
7. At the outset it would be pertinent to refer to the injuries sustained by deceased Gita and to the nature of her death being homicidal or otherwise. PW 5 Dr. Ijaj Ahmed, who conducted the autopsy on the dead body of Gita, deposed that as mentioned by him in his post-mortem report, Ex. 15, he found fracture of vertebra, 7th cervical and laceration of larynx. He further deposed that the body was highly decomposed and hence it was not possible to give an opinion on the point of cause of death. He deposed that the lacerated wound on the larynx might be due to the throttling, whereas the fracture on the 7th cervical vertebra might be due to hard and blunt object and was also possible by rope hanging. It was also possible further even if a person falls on the backside of neck. The post-mortem report clearly mentions that the fracture of the 7th cervical vertebra was ante-mortem. From his cross-examination it appears that he was not sure as to whether the death was due to asphyxia or not. He has also stated in the cross-examination that the fracture of the seventh cervical alone was not sufficient to cause death. It would thus be seen that the doctor has not opined that the death was due to throttling though there appears an injury of throttling or laceration on larynx. In the light of this evidence no definite cause of the death of the deceased Gita can be ascertained. The fact remains that Gita suffered the aforementioned two injuries are ante-mortem. The question is whether the appellant can be held responsible for causing those injuries to Gita.
As already indicated, the only alleged eyewitness to the incident in question is the daughter of the deceased i.e. PW 4 Aruna. The trial Court itself has not believed her testimony on the aspect of murder. She has not witnessed the burying of her mother. The learned APP’s contention that the trial Court is not justified in discarding her testimony as regards the aspect of murder, cannot be accepted. The witness is hardly 8 to 10 years old and was unable to understand the sanctity of oath. The incident of killing of her mother by her father has been told by her for the first time before the Court. May not be to the police, but at least she was expected to inform about the incident to her – grandmother and grandfather, with whom she was continuously living after her father had reached her to them, particularly when her father was not even staying with them during that period. Basically she has also admitted that her grandparents told her to tell all these things before the Court. The trial Court, in the circumstances, cannot be held to have committed any error in not believing her version on the aspect of killing of her mother by her father and the contrary submissions made in this regard by the learned APP are devoid of any substance. The trial Court, however, has posed a question as to whether the other part of the evidence as regards discord and infidelity between her parents can be accepted. The trial Court has believed her on this aspect. Mr. Nawab, learned counsel for the appellant, could not point out as to why at least this version of PW 4 Aruna could not be taken to be reliable, particularly when she has not been shaken in the cross-examination with respect to this part of her version. The trial Court has held that the girl was stating true about the general discord and infidelity between her parents. PW 4 Aruna stands fortified in this regard to some extent by the evidence of PW 7 Gangadhar who, in the view of the trial Court, has no reason to speak against the accused. His evidence, however, reveals that it is of a general nature and is suffering from the vice of omissions on material aspects. But even leaving apart the evidence of PW 7 Gangadhar, as already observed, what PW 4 Aruna at the most can be said to have proved is the general discord and infidelity between her parents. Besides this, PW 4 Aruna has also deposed in her examination-in-chief that her father and grandfather were always quarrelling with her mother. She has deposed that her mother was cooking separately for herself and for the witness and her brother whereas her father and grandfather were cooking separately for them and they were also sleeping separately. She has also deposed that on the relevant day her grandfather was present in the house and she was sleeping with her grandfather. The prosecution witness PW 4 Aruna thus has proved the strained relationship of her father and grandfather with her mother and also his presence in the house on the relevant day. PW 1 Shamlal has deposed about Gita’s return from Delhi and her returning alone to Kandri and return of the accused to his house at Kandri on the same night. Though he deposed that Gita told him that quarrel took place between herself and the accused, as the accused got annoyed because of her looking towards a Daroga, this, however, is omission in his statement before the police. He further speaks of the quarrel between the accused and the deceased 2-3 days after her arrival from Delhi and of catching-hold of neck of Gita and pressing it by the accused. He deposed that he lodged a complaint to the Police Station. The complaint, however, has not been filed on record and no explanation is given about it. It is not necessary to dwell upon this aspect further. The trial Court itself rightly has not believed the evidence as regards this incident as unreliable. All this evidence at the most can be said to be establishing a general discord between the deceased and the accused and that general discord was also in between the deceased and her father-in-law and further that he was present in the house on the relevant day. From the evidence of PW 1 Shamlal and PW 3 Ramabai it is further clear that the accused had reached the children to their house at Borkhedi and that he had explained that the deceased was busy in work and that she would be coming 4 to 8 days afterwards and he had left leaving the children with them. It is pertinent to note that PW 1 Shamlal in his deposition has deposed that the kids told him that the accused had taken them to village Kaichi for searching their mother before bringing them to his house. However, they did not find their mother in that Kaichi area. In his deposition he did not say that PW 4 Aruna ever disclosed to him or his wife Ramabai anything about her father killing her mother. On the other hand he further deposed that he sent his wife to village Kandri. She searched Gita for 2 days and she did not find her and, therefore, had gone to Mansar Police Station for lodging report and that thereafter he had taken the children to the house of the accused at Kandri, where Police had already arrived. PW 3 Ramabai, however, does not speak of her going to village Kandri as deposed to by PW 1 Shamlal. She instead stated that her husband had gone to Mansar for lodging report. PW 3 Ramabai’s evidence also does not reveal that PW 4 Aruna had told the incident in question during her stay with them.
8. The evidence regarding the body of Gita having been found buried in the courtyard of the accused is not necessary to be discussed as this circumstance is not disputed by the learned counsel for the accused and even otherwise it would be suffice to say that the finding in this regard has been reached by the learned trial Court correctly. Further it would be suffice to say that the trial Court has rightly disbelieved PW 2 Laxman on the aspect of extra judicial confession by the appellant allegedly made to Laxman. Laxman had an opportunity to disclose the same to the police during the first two days after discovery of the dead body when he was with the police and to others as well. Disclosure, however, comes for the first time 18 days thereafter, when his statement was recorded by the police on 9-11-1990 and hence it is untrustworthy. It is also not necessary to dwell upon the aspect as to whether the deceased Gita had any enmity with anyone besides the members of the family. Though there is no positive evidence in this regard brought forward on record, as rightly held by the learned trial Court, this aspect becomes one of the circumstances to be considered while considering the complicity of the accused in the absence of positive evidence on record and/or at least some say on the part of the accused in this regard in his statement under Section 313, Cr. P. C. about some one being on enemical terms with the deceased Gita. This is a different aspect which is being dealt with at a latter stage.
9. This is all the material evidence in the instant matter. As already pointed out, the learned trial Court has held certain circumstances as having been proved by the prosecution and on the strength of those circumstances has drawn an inference of the accused being responsible for causing the ante-mortem injuries on the person of Gita, which ultimately resulted into her death.
10. The question before us is as to whether the finding recorded by the trial Court is justified in the facts and circumstances of the case or as to whether it has to be said that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and at least as to whether the appellant-accused is entitled to the benefit of doubt having regard to the facts and circumstances brought on record by the prosecution itself coupled with the plea of not guilty put forth by the accused. As already indicated, since PW 4 Aruna is not believed either by the trial Court or by us on the aspect of she having actually witnessing the incident, this becomes purely a case of circumstantial evidence alone. Out of the circumstances not disputed before us and otherwise also which stand established on record, the circumstances that the accused was husband of Geeta and they were living together and that Gita was missing since 12-10-1990 and further that there were marks of injuries on her body, either independently or together cannot be having a definite tendency of unerringly pointing towards the guilt of the accused only, unless the other circumstances which have been held to have been proved by the trial Court also can be held to have cogently and firmly established by the prosecution and unless further also it is found that those circumstances are also having a definite tendency of unerringly pointing towards the guilt of the accused and cumulatively sufficient to form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused. Now taking the circumstances of strained relationship between the accused and his wife, we have had the evidence of PW 1 Shamlal, PW 4 Aruna and PW 7 Gangadhar . The evidence of these witnesses does not go beyond establishing the general discord and squabbling between the accused and deceased Gita. Such type of relationship in given cases may or may not lead one spouse to go to the extent of killing the other, depending upon the mental frame of the concerned spouse. Such relationship, therefore, even if established, cannot be termed to be one of having a definite tendency of unerringly pointing towards the guilt of the accused only. In other words, this circumstances by itself cannot be termed to be of a character incriminating the accused of the offence like that of murder.
11. In so far as the aspects as to whether the prosecution can be said to have proved that the accused did not give the information of Gita’s missing to anybody and as to Whether the accused did not search her, we are not inclined to accept the finding recorded by the learned trial Court in favour of the prosecution. It is no doubt true that the accused did not give any information about the missing of Gita since 12-10-1990 or thereabout to her parents Shamlal and Rangabai. There is no difficulty in accepting the evidence in that regard given by Shamlal and Ramabai that they were not informed by the accused that Gita was missing and that he had told them that she was busy and would come within 4-8 days, in spite of denial of these things by the accused in his statement. It is also true and even admitted by the accused that a written report was not given about missing of Gita by the accused, though he has stated than they had made oral report to the police and without taking that report in writing the police had directed him to search Gita to relatives and other places. ? considering this suggestion to be a false? even considering the aspect that he has not examined any witness and even not told the names of those persons with whom he made inquiry about Gita, question still remains as to whether it can be positively inferred that he had not informed anybody about missing of Geeta and that he had never searched her since her missing. PW 4 Aruna in her examination-in-chief herself has deposed that on the next day after her arrival at her grandparents’ house at Borkhedi she told her grandmother and father that her mother was not seen in the home and her father had told her that she had gone to Kaichi. PW 1 Shamlal in his examination-in-chief has deposed that the kids told him that the accused had taken them to village Kaichi for searching their mother. He had taken the kids before bringing them to his house, to Kaichi area, which means the area of Manganese mines. But they did not find their mother in that Kaichi area. There is nothing as to why this version given by these two witnesses should not be accepted. The version given by these two witnesses reveals that the accused did attempt the search of his missing wife even before reaching the children to the house of their grandparents. The learned APP has, however, contended that if this is so, why he himself did not disclose anything about the missing of his wife to her parents and instead went on giving false explanation that she being busy, would be coming after some days at Borkhedi.
Mr. Nawab, learned counsel for the appellant, pointing out the version of PW 4 Aruna that besides her father, her grandfather, i.e. Papa, was also always quarrelling with her mother, that on the relevant day her grandfather was present at the house and that she was sleeping with him, contended that may be being under an impression that him father might be responsible for the missing of Gita, the accused might not have disclosed the fact of missing of deceased Gita to her parents with the object of not bringing his father immediately into troubles, with whom he had comparatively more cordial relations than that with Gita during the relevant period. He also further submitted that non-disclosure of missing of Gita to her parents might be also because the accused did not want her parents to be immediately getting perturb. Though we cannot positively say that non-disclosure of Gita’s missing to her parents by the accused must have been because of these reasons as put forth by Mr. Nawab, we also do not see any reason at least for ruling out the possibility of these being the reasons for the non-disclosure of missing of Gita by the accused to her parents. Once this is accepted, non-giving of report in writing to the police by the accused about missing of Gita cannot be held to be a factor as being against the accused’s non-disclosure of missing of his wife. It is no doubt true that the accused did not reveal the names of those persons with whom he made enquiry nor had disclosed the places he searched, nor has examined any person to whom he had contacted during his search for Gita. But this by itself, even having regard to the provision of Section 105 of the Evidence Act read with Section 114 of the Evidence Act, which have been relied upon by the trial Court, in our view, cannot come to the help of the prosecution having regard to the well established proposition that the burden to establish a plea on the accused is not as heavy as it is on the prosecution to prove an offence and that burden is discharged if the Court is satisfied that the version of the accused is reasonably probable or true. The probabilities of the version given by the accused throw a doubt on the prosecution case. The accused need not rebut the prosecution evidence by leading equally balanced evidence. Once the accused shows preponderance of the probabilities in favour of his pleas, he discharges his burden. One cannot also forget here that one of the circumstances on which the prosecution is relying as an incriminating fact, viz. that the accused was absconding, has already been found, and in our view rightly also, by the trial Court as having not been established by the prosecution. We, therefore, are hesitant to record a positive finding that the accused did not give the information of missing of Gita to anybody and that he did not search her. In our view, therefore, these circumstances cannot be availed of for proving the guilt of the accused in the instant matter and in our view, the contrary view in this regard taken by the trial Court cannot be upheld.
12. The circumstance that the body of Gita was found buried in the courtyard of the accused stands fully established by the evidence brought on record by the prosecution, besides the establishment of this fact has also not been disputed by Mr. Nawab, learned counsel appearing for the accused. Coupled with this circumstance, another circumstance which is relied upon by the trial Court is that nobody also could have buried Gita there and further that Gita had no enemy. In relation to the latter two aspects that Gita had no enemy and nobody else could have buried the body as the spot where it was found to have been buried, even the trial Court has, and rightly also, held that there was no direct evidence. The trial Court rightly expected that the prosecution ought to have brought some evidence as regards the enmity on record. This circumstance was put to the accused in his examination under Section 313, Cr. P. C. The accused stated that he did not know about it. The trial Court had drawn adverse inference against the accused and has further concluded that Gita was not having any enemy outside the house who could have killed her. It is difficult to sustain this finding as, in our view, merely because the accused pleaded ignorance about the aspect of his wife having any enmity with anybody else, a positive finding about Gita having no enemy outside the house could not have been recorded by the trial Court. It would not have been difficult for the prosecution to find out from the neighbourers and/or from her parents at least as to whether at least Gita was complaining or saying about her dispute or strained relationship with any person outside the house and if any of those persons if examined before the Court and had stated about no such talk by Gita to them, there would have been at least some piece of evidence to record a finding, may be on the negative aspect of Gita having no enmity with others. Merely because no evidence has come on record about the enmity of Gita with anybody else, it cannot be treated to be a circumstantial evidence against the accused. In any event, probability of absence of knowledge on the part of the accused of Gita having such enmity since cannot be ruled out, the circumstance of absence of evidence about enmity of Gita with anybody else cannot be treated to be a clinching circumstance incriminating the accused with the guilt.
13. In so far as burying of the body in front of the house is concerned, it is true that normally no stranger would have dared to bury the body of deceased Gita in front of her house, particularly when there are neighbourers also, who are living in the neighbouring houses. The accused has stated in his statement under Section 313, Cr. P. C. that he was earning his bread and butter by doing labour at Kandri mines. As already pointed out, prosecution witness PW 4 Arunahas spoken of the presence of her grandfather i.e. Papa at the house during the relevant day. In this background the circumstance of burying the body in front of the house of the accused relied upon as establishing the involvement of the accused in the crime, cannot be termed to be one, pointing towards the guilt of the accused as it becomes an equivocal circumstance on which it is hazardous to base conclusion, even taking into consideration the admission of the accused in his statement under Section 313 of the Code of Criminal Procedure that he was at home till the date of her missing.
14. One more circumstance which has been relied on by the prosecution is that there was ugly odour in the premises of the accused which could have easily led to the discovery of the dead body and since the accused did not discover the dead body and since he has not so informed, this has been treated to be a circumstance against the accused by the trial Court. It has come in the evidence that the accused had left the place with his children almost immediately after the missing of Gita and that then he went on searching his wife, and there is nothing to indicate as to whether he had come back to his house prior to the recovery of the dead body from the ditch by the police. It has also come on record that there are houses in the neighbourhood of the house where the accused was residing and if really ugly odour would have been to such an extent, even the neighbours could have had smelt such ugly odour and would have complained about the same. No evidence in this regard has come on record. This circumstance, in the circumstances, again cannot be termed to be capable of excluding hypothesis that the accused is not guilty of the crime with which he is charged, as the said circumstance cannot be termed to be one clinching the issue.
15. Some of the circumstances relied upon by the prosecution as discussed above thus cannot be held to have been fully established and some of them cannot be held to be unequivocally pointing towards the guilt of the accused. They, therefore, are not sufficient to form a complete chain unerringly pointing towards the guilt of the accused excluding any hypothesis consistent with his innocence, in spite of the proved circumstance of the presence of the accused at the house which by itself in the instant matter cannot be termed to be the (sic) of clinching nature against the accused, particularly having regard to the undisputed presence of his father at the house at the time of missing of Gita. When the prosecution witness itself had stated about the presence of her grandfather i.e. papa at the house during the time of occurrence, the prosecution ought to have recorded his statement at least, which undisputedly has not been done by it, nor he has been prosecuted as an accused and further he has also not been made a co-accused with the appellant-accused in the instant matter. Finding of marks of injuries on the body of the deceased Gita in such a situation cannot be termed to be an unequivocal circumstance attributing authorship thereof to the accused alone and none else. Moreover this circumstance cannot clinch the issue unless it is supported with the presumption that the accused had committed the crime. This would be nothing but putting the cart before the horse.
16. The trial Court has made much capital out of the answer given by the accused to the question put to him under Section 313, Cr. P. C. that the evidence shows that his father has not committed the offence of killing and burying to which the accused stated that it is true. The trial Court found that this positive and firm answer is indicative of the fact that his father was not involved in the offence. We do not see any justification for drawing such an inference from the answer given by the accused. Mr. Nawab contended that either the accused might not be knowing the acts of his father and hence such an answer cannot be taken as a proof of fact and further that even if he was knowing the acts of his father, admitting the guilt of his father since cannot be expected by his son viz. the accused, his answer to the question regarding non-involvement of his father in the affirmative cannot be of any help to the prosecution for absolving the father of the accused from the offence. The other circumstances relied upon by the trial Court about the non-involvement of the grandfather of PW 4 Aruna are the testimonies given by PW 4 Aruna and by the parents of Gita. The trial Court has already disbelieved Aruna on the occurrence aspect. The parents of Gita at the most had raised suspicion against the accused and nothing beyond that. Non-involvement of the father of the accused by these persons in the circumstances, cannot lead to an inference of the father being not a culprit at all. In this regard two more circumstances have been taken into consideration by the trial Court. One is the conduct of the accused and the alleged circumstances pointing only towards the guilt of the accused as an offender. This again is nothing but arguing backwards in the sense that if the accused-appellant is shown to have committed the murder, obviously his father would not be an offender. Such an approach is not even permissible. Secondly the trial Court found that having regard to the age of the father of the accused, he must be unable to dig and bury the dead body without taking help of his son or others. This again is merely a surmise based on no evidence, much less on any evidence, to meet with which the accused had been given any opportunity. It is, in these circumstances, we find it difficult to rule out the possibility of the father’s involvement in the offence and if this is so, the accused would be entitled at least to the benefit of doubt.
17. In the case of circumstantial evidence, where evidence of the accused and the deceased having been last seen together before the murder is relied upon and there is failure of the accused to satisfactorily account for the disappearance of the deceased, the circumstance of the deceased having been last seen alive in the company of the accused is to be considered as a circumstance of incriminating character. But in those cases where two or more persons were last seen with the deceased and the role of each one of them is not explained by the prosecution and/or if he is not made accused or co-accused and/or one or some them is or are acquitted of the charge of murder, the very circumstance that the deceased was last seen in the company of the accused ceases to be an incriminating character and the other accused cannot also be convicted solely on the basis of the circumstance of having last seen together. In Pohalya Matva Valvi v. State of Maharashtra the Apex Court held that where two accused were last seen with the deceased and though both should explain the disappearance of the deceased, one of them is acquitted of the charge of murder, the very circumstance that the deceased was last seen with them ceases to be of an incriminating character and the other accused cannot also be convicted solely on that basis. The Apex Court in the case of Prem Thakur v. State of Punjab , where the accused was seen with others in the company of the deceased, observed that there was nothing unnatural in the appellant being in the company of them, and did not find the circumstance that the appellant was last seen in the company of the deceased, though accepted as proved, sufficient to draw an inference therefrom that the appellant therein had committed the murder. In a decision reported in Kansa Behera v. State of Orissa the Apex Court held that the evidence of last seen together is of no consequence where the weapon of the offence was recovered from another accused who had grudge against the deceased and who had been discharged. Discordial – relationship, as was the case with the accused, in between the deceased and the father of the accused and his presence during the occurrence at the house has been brought on record by the prosecution itself in the instant case. Even assuming that no one else but the members of the family might alone be the culprits, incriminating acts will have to be attributed to the appellant-accused alone or to his father exclusively and/or to both of them jointly. This necessarily includes the possibility of the offence having been committed by the father of the accused only and if such a probability cannot be ruled out, the circumstance of the ace used-appellant having been with the deceased at the time of the occurrence by itself cannot be termed to be a clinching circumstance bringing home the guilt to the accused, in the absence of efforts on the part of the prosecution to explain the role of father of the accused.
18. On the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone, the Apex Court has noted in its judgment reported in Sharad Birdhichand Sarda v. State of Maharashtra that the most fundamental and basic decision of the Supreme Court is Hanumant v. State of Madhya Pradesh and that this case has been uniformly followed and applied by the Supreme Court in a large number of latter decisions upto date. On close analysis of this decision in Hanumant’s case the Supreme Court then spelt out five golden principles, in their words constituting the panchasheel of the proof of case based on circumstantial evidence. Sharad Sarda’s case, the Supreme Court then referred to its decision in Deonandan Mishra v. State of Bihar and laid down as follows, as to what was held by it in Deonandan Mishra’s decision :
It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied :
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and
(3) the circumstance is in proximity to the time and situation.
The Supreme Court then laid down that if these conditions are fulfilled only then a Court can use a false explanation of a false defence as an additional link to bend an assurance to the Court and not otherwise. The Court further observed that there is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the Court. Absence of plausible explanation by the appellant in the instant matter, in the circumstances, is of no use to the prosecution.
19. It is well established that inference of guilt can be justified only where all incriminating facts are found incompatible with innocence of accused. The instant one is not such a case. It is in this view of the matter, we are not inclined to accept the finding recorded by the trial Court as against the accused-appellant. We, therefore, allow Criminal Appeal No. 302 of 1991 filed by the accused-appellant, set aside the judgment and order of conviction as recorded by the learned 10th Additional Sessions Judge, Nagpur against the accused as also the sentence imposed upon the appellant-accused and acquit the appellant accused of the offence with which he was charged. The accused is reported to be in jail. He be set at liberty forthwith, if not required to any other case.
Criminal Appeal No. 455 of 1991 consequently stands dismissed.