Garja Bir Rai vs State Of Sikkim

Meenakshi Madan Rai, J

The Appellant was convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter, IPC) by the impugned Judgment, dated 31-08-2017, of

the Learned Sessions Judge, Special Division â€" I, Sikkim, at Gangtok, in Sessions Trial Case No.03 of 2016. By an Order on Sentence of the same

date, the Appellant was to suffer simple imprisonment for life and to pay a fine of Rs.50,000/- (Rupees fifty thousand) only, with a default clause of

imprisonment. Dissatisfied thereof, the Appellant is before this Court.

Shorn of details, the facts as per the Prosecution is that, on 14-02-2016, at around 2130 hours, one Hubkey Rai P.W.7, lodged a written Complaint

to the effect that, at around 0600 hours, the same morning, he was telephonically informed by his elder brother, Mandhoj Rai P.W.3, of Machong, East

Sikkim, that their sister Purnimaya Rai (married to the Appellant) was found dead in her home. On reaching the victim‘s house, P.W.7 found some

marks over her neck. Suspecting foul play he reported the matter to the Pakyong Police Station seeking ascertainment of the cause of death.

(a) The Pakyong P.S. registered UD (Unnatural Death) Case No.03 of 2016, dated 14-02-2016, under Section 174 of the Code of Criminal

Procedure, 1973 (hereinafter, Cr.P.C.), and endorsed it to ASI Nim Tenzing Bhutia P.W.20, for investigation. Following an autopsy over the dead

body and based on the opinion of P.W.22 the Doctor who conducted the autopsy, P.W.7 submitted another Complaint, Exhibit 3, accusing the

Appellant (his brother-in-law), of having strangulated the victim to death.

(b) Pursuant to Exhibit 3, the UD Case was converted into Pakyong P.S. Criminal Case No.04 of 2016, dated 14-02-2016, under Sections 302/201 of

the IPC, formal FIR Exhibit 22, drawn up against the Appellant and investigation taken up.

The Prosecution narration is that the Appellant, aged about 60 years, a Government Primary School Teacher was married to the deceased, his

second wife, for the last 25 years, after the demise of his first wife from whom he had one son, aged about 31 years, employed in the Police

Department. From the deceased he had another son, aged about 21 years, a student of Class XI. At the relevant time, both the sons were living

elsewhere. The couple had also adopted a girl P.W.6, about 11 years ago, who was aged about 16 years at the time of the incident and shared their

room. Her alleged illicit relations with the Appellant was the apple of discord between the couple and the motive for the crime. The Appellant and the

deceased quarrelled on 13-02-2016 about the impending marriage of the elder son P.W.11. At 1900 hours, P.W.6 fell asleep but not before having

witnessed both the Appellant and the deceased entering the room, bolting the door and confronting each other. The argument escalated into a scuffle

during which the Appellant strangulated the deceased with a muffler. To conceal the offence he attempted to hang the body from the nearby

―Nebharaǁ tree (Fig tree) and having failed in his effort he returned the dead body to their room. The following morning, i.e., on 14-02-2016, at about

4 a.m., he woke P.W.6 and on her enquiry into the whereabouts of her mother, he told her that she had passed away due to illness on the intervening

night. The Appellant thereafter called his younger brother one Manoj Rai P.W.5, Panchayat of Riwa Machong, informing him of the death, who in

turn informed Tula Bir Rai P.W.23 another brother, both of whom then arrived at the house of the Appellant. The Appellant informed them that the

deceased had died due to acute stomachache during the night. P.W.5 then called Ashok Kumar Rai P.W.24, their cousin, informing him of the death

and requesting him to come to the house of the victim. Thereupon, P.W.5 telephonically informed P.W.3, the brother of the victim. Meanwhile, the

Appellant is alleged to have tutored P.W.23 to concoct a false story that he had spent the night in the Appellant‘s house. The Prosecution case is

also that in September, 2015, the victim had reported to her brother at Riwa Machong that the Appellant had assaulted her concerning his relations

with P.W.6. The victim had requested the biological parents of P.W.6 to take her back, but the Appellant was in disagreement. Charge-Sheet was

accordingly submitted against the Appellant under Sections 302/201 of the IPC.

The Learned Trial Court framed Charge under Section 302 of the IPC and on the plea of ―not guiltyǁ by the Appellant, the Prosecution examined

twenty-seven witnesses to establish their case. On closure thereof, the Appellant was afforded an opportunity under Section 313 of the Cr.P.C. to

explain the incriminating circumstances appearing in the evidence against him, to which, he inter alia responded that he had been falsely implicated by

P.W.7, brothers and relatives of the deceased. The Learned Trial Court on considering the entire gamut of evidence on record concluded that the

Appellant was guilty of the offence under Section 302 of the IPC and pronounced the impugned Judgment and Order on Sentence.

Claiming that the Prosecution case rests entirely on circumstantial evidence, Learned Counsel for the Appellant contended that the Prosecution

ought to have proved that the circumstances were wholly and unerringly consistent with the theory of guilt of the Appellant and excluded any

hypothesis of his innocence. The Prosecution has established no such chain of circumstances, consequently the benefit of doubt ought to be extended

to the Appellant. On this count, support was garnered from the ratio in Jose alias Pappachan vs. Sub-Inspector of Police, Koyilandy and Another

(2016) 10 SCC 519. That, the impugned Judgment of the Learned Trial Court is also based on the resiled Section 164 Cr.P.C. statement of P.W.23 a

hostile Prosecution witness, which is not substantive and can only be utilized for corroborating or contradicting the witness. This aspect was fortified

by reliance on Ram Kishan Singh vs. Harmit Kaur and Another (1972) 3 SCC 28 0and R. Shaji vs. State of Kerala (2013) 14 SCC 266. The

Prosecution has failed to pinpoint the article of clothing used for strangulating the victim as the Investigating Officer (I.O.) himself has testified that

the muffler was not used for the said purpose. That, it has emerged in the investigation that leaves, grass and weeds were found on the bed sheet,

inside the house, clothes and person of the victim which remains unexplained. That, concerted efforts have been made by the Prosecution to conceal

the fact that the death occurred due to suicide as she was found hanging from the ―Nebharaǁ tree (Fig tree) outside the house. No written

instructions were issued to P.W.20 by P.W.27 to conduct an enquiry into the UD Case under Section 174 of the Cr.P.C. and the inquiry was

conducted on verbal instructions. Although P.W.20 was vested with the investigation of the UD Case only, he has encroached into the jurisdiction of

P.W.27 by making seizures of articles but his report is devoid of such entries. His report was submitted before the Police Station and not before the

Executive Magistrate in contravention of law. It is clear that the Prosecution attempt is to falsely implicate the Appellant as two brothers and a

nephew of the deceased are Police personnel and as such are interested witnesses. That, the conviction of the Appellant was based to a large extent

on the medical evidence of P.W.22, who conducted the post-mortem examination and opined that death was due to strangulation. The ocular evidence

of P.W.6 which is contrary to that of P.W.22 and the Prosecution case was singularly ignored without declaring her hostile or cross-examining her to

decimate her evidence, hence her account of the incident stands as credible and trustworthy. Relying on Mohar Singh and Others vs. State of Punjab

AIR 1981 SC 1578 Learned Senior Counsel submitted that where the ocular evidence and the medical evidence are in direct conflict with each other

it would be unsafe and hazardous to maintain the conviction of the Appellant on such evidence. To buttress this point further, reliance was placed on

State of U.P vs. Krishna Gopal and Another AIR 1988 SC 215.4 That, from the Prosecution case it can be culled out that two FIRs had been lodged

in the matter one pertaining to the UD Case and the other after the post-mortem examination was carried out, however, only one FIR is found in the

records of the case and the Prosecution did not deem it worthwhile to furnish reasons for the missing first FIR. Citing the ratio in Narayan Dutta vs.

The State 1980 CRI.L.J. 264 (Calcutta) it was held that the importance of the FIR lies in it being the first recorded statement of the occurrence, when

this is missing, the veracity of the Prosecution case is doubtful. On this aspect, strength was also drawn from Babubhai vs. State of Gujarat and

Others (2010) 12 SCC 254. That, Exhibit 3 is hit by the provisions of Section 162 of the Cr.P.C. being information given after commencement of

investigation pursuant to the lodging of the first FIR. That no motive was fixed on the Appellant for the offence when the FIR was lodged but efforts

were made during the course of trial to foist a motive on him by insinuation of a relationship with his adopted daughter, when infact, she had been

adopted from the age of five years. In this context reliance was placed on Sucha Singh vs. State of Punjab 2009 CRI.L.J. 3444 (SC. )The settled

position of law that where two conclusions are possible one pointing to the guilt of the Appellant and the other to his innocence, the view which is

favourable to the Appellant should be adopted to prevent miscarriage of justice was reiterated by Learned Senior Counsel, as held in State of UP vs.

Jai Prakash 2007 CRI.L.J. 3534 (SC )and Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124. That, suspicion however grave cannot take the

place of proof which has been propounded in Raj Kumar Singh alias Raju alias Batya vs. State of Rajasthan (2013) 5 SCC 72 2and M. Nageshwar

Rao vs. State of Andhra Pradesh (2011) 2 SCC 188. That, the Learned Trial Court was in error in convicting the Appellant as the Prosecution had

failed to establish its case beyond a reasonable doubt, hence the impugned Judgment and Order on Sentence, both dated 31-08-2017, be set aside.

Per contra, Learned Additional Public Prosecutor would contend that P.W.22 who conducted the post-mortem examination has unwaveringly

opined that there was a well-defined transverse ligature mark over the front of the neck of the deceased, coupled with multiple bruises under the

ligature site, indicative of strangulation and struggle by the victim. In this context, Learned Additional Public Prosecutor placed reliance on Mandhari

vs. State of Chattisgarh (2002) 4 SCC 308. That, the hyoid bone of the victim was fractured as occurs in instances of strangulation, thereby ruling out

death by suicide in the instant matter, contrary to the contention of the Appellant. This submission was fortified with reliance on Mulakh Raj and

Others vs. Satish Kumar and Others (1992) 3 SCC 43. An attempt was made to elucidate that in cases of hanging the ligature mark would usually be

oblique and non- continuous, placed high up in the neck between the chin and the larynx, while in strangulation, as in the instant case, the ligature mark

is transverse, continuous, round the neck, low down in the neck below the thyroid. On this count, Learned Additional Public Prosecutor drew support

from the ratio in Ravirala Laxmaiah vs. State of Andhra Pradesh (2013) 9 SCC 283. Learned Additional Public Prosecutor also sought to draw

support from the decision in Gangabhavani vs. Rayapati Venkat Reddy and Others (2013) 15 SCC 298, with regard to the evidence of a medical

witness. That, the medical opinion of P.W.22 that the cause of death of the victim was due to asphyxia as a result of strangulation, homicidal in nature,

ought to be given priority over the ocular evidence of P.W.6, in view of the evidence of P.W.4 and P.W.10 who have stated that P.W.6 and the

Appellant were in an incestuous relationship thereby rendering P.W.6 as an interested witness and her evidence suspect. This relationship was the

motive for the Appellant to do away with the deceased. That, Exhibit 10 reveals that a Complaint was lodged initially by P.W.7 which resulted in the

UD Case, while Exhibit 3 was the FIR pertaining to the offence, consequently Exhibit 3 is not hit by the provisions of Section 162 of the Cr.P.C. As

per P.W.27 the I.O., P.W.22 has opined that the muffler and shawl seized by P.W.20 could cause the death of a person by strangulation, thereby

establishing the Prosecution case on this aspect. That, an attempt was made by the Appellant to simulate the strangulation as a suicide for which

purpose he attempted to unsuccessfully hang the body on a tree, resulting in leaves and grass being lodged in her hair and clothes. That, it is now

settled law that evidence of a hostile witness can also be considered to the extent that it is relevant and undemolished, hence the evidence of P.W.23

Tulabir Rai cannot be ignored in totality. That, in view of the cogent and consistent evidence of the Prosecution witnesses the findings of the Learned

Trial Court ought not to be disturbed.

The submissions made in extenso were heard and afforded careful consideration, in conjunction with meticulous examination of the evidence,

documents and photographs placed before us. We have also perused the impugned Judgment and Order on Sentence.

The Learned Trial Court while convicting the Appellant relied on the medical evidence of P.W.22 and also found the evidence of P.Ws 4, 10 and 3

credible. However, the Learned Trial Court had difficulty in believing the version of P.W.6 as it observed that P.W.6 in her Section 164 Cr.P.C.

statement was silent about having seen the victim hanging from the nearby tree, but deposed so, untruthfully, before the Court to aid the Appellant.

That, both P.W.5 and P.W.23 younger brothers of the Appellant also narrated a false account before the Court, their statements being in contradiction

to their Section 164 Cr.P.C. statements. The Learned Trial Court thus found the evidence of P.Ws 5, 6 and 23 which failed to support the Prosecution

case, unworthy of credence. The Learned Trial Court reproved the conduct of the Appellant on his failure to raise a hue and cry on seeing his wife

allegedly hanging from the tree and therefore found this conduct improbable. The Learned Trial Court also concluded that the report initially lodged by

P.W.7 was an information of the nature contemplated under Section 174 of the Cr.P.C. and cannot be categorized as one under Section 154 of the

Cr.P.C., hence only Exhibit 3 can be treated as an FIR. That, there was substantial compliance of the provisions of Section 174 of the Cr.P.C. That,

overwhelming medical and circumstantial evidence outweigh that of P.W.12 who had stated that his father treated his mother very well. The Learned

Trial Court was also of the opinion that as a general rule hyoid bone does not sustain fracture by any means other than strangulation. That, even the

study report/research article relied on by the Ld. Counsel for the accused suggests that throttling accounts for the highest incidence of ante mortem

fractures of hyoid bones. That, as a general rule in cases of suicidal hanging the neck of the deceased would be stretched and elongated, particularly

in fresh bodies but no such sign existed in the instant matter. That, fingernail abrasions were quite uncommon in cases of suicidal hanging, but

abrasions were found in the instant matter, indicating death by strangulation. The Learned Trial Court was impressed with the Prosecution case of

marital discord between the couple on account of P.W.6 as deposed by P.W.4 and P.W.10 and concluded that the circumstantial evidence left no

manner of doubt that the Appellant alone was the author of the crime.

It is thus to be considered whether the conclusion of guilt of the Appellant, arrived at by the Learned Trial Court was a correct conclusion?

We propose to address the issue pertaining to the FIR in the first instance. According to P.W.7, he lodged an FIR before the Pakyong P.S. at

09.30 a.m. on 14-02-2016 seeking inquiry into the victim‘s death on suspicion of foul play. The Police personnel came to the victim‘s house and

took the body to the STNM Hospital for post-mortem, which was then conducted by P.W.22 Dr. O. T. Lepcha. He opined that the death was due to

strangulation and informed P.W.20, P.W.7 and other relatives of the victim accordingly. Pursuant thereto, P.W.7 lodged Exhibit 3, the second report

before the Pakyong P.S., bearing his signature Exhibit 3(a). P.W.27 would by his evidence vouch for this deposition of P.W.7. From the above

discussions, it emanates that two Complaints were lodged by P.W.7.

In Lalita Kumari vs. Government of Uttar Pradesh and Others (2014) 2 SCC 1 it was inter alia held that if the information discloses commission of

a cognizable offence the registration of an FIR is mandatory under Section 154 of the Cr.P.C. and no preliminary enquiry is permissible in such a

situation. In Madhu Bala vs. Suresh Kumar and Others (1997) 8 SCC 47 6the Supreme Court would discuss what a cognizable offence entails as

follows;

“6. …………… Under Section 2(c) ―cognizable offenceǁ means an offence for which, and ―cognizable caseǁ means a case in which a police

officer may in accordance with the First Schedule (of the Code) or under any other law for the time being in force, arrest without a warrant. Under

Section 2(r) ―police reportǁ means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 of the Code. Chapter

XII of the Code comprising Sections 154 to 176 relates to information to the police and their powers to investigate. Section 154 provides, inter alia, that

the officer in charge of a police station shall reduce into writing every information relating to the commission of a cognizable offence given to him

orally and every such information if given in writing shall be signed by the person giving it and the substance thereof shall be entered in a book to be

kept by such officer in such form as the State Government may prescribe in this behalf. ……….â€​

Disclosure of a cognizable offence is therefore the sine qua non for registration of an FIR.

Bearing the afore-extracted ratiocination in mind, it may be noted that the first Complaint lodged by P.W.7 before the Pakyong Police Station was

apparently a quest to ascertain the cause of death of the victim. It is also worth noting that the first Complaint is admittedly untraceable in the records

of the case. That, there was a first Complaint can only be assumed from the evidence of P.W.7, P.W.20, P.W.27 and Exhibit 9 the final report

pertaining to the unnatural death purportedly prepared by P.W.20 and from Exhibit 10, a requisition by P.W.20 to P.W.22 requesting autopsy of the

dead body of the victim. Presuming candour in the evidence and documents supra, the report first filed by P.W.7 would tantamount to one under

Section 174 of the Cr.P.C., devoid as it was of disclosure of a cognizable offence. Exhibit 3, the second Complaint lodged by P.W.7 after the autopsy

was conducted discloses a cognizable offence and indeed qualifies as an FIR under Section 154 of the Cr.P.C. Therefore, Exhibit 3 cannot be said to

be hit by the provisions of Section 162 of the Cr.P.C. On this point, we are in agreement with the Learned Trial Court. Even if the absence of the first

Complaint raises doubts on the veracity of the Prosecution case this conclusion would not differ since Exhibit 3 would be the only FIR pertaining to the

case.

However, it is relevant to point out here that although the Learned Trial Court observed that the provisions of Section 174 of the Cr.P.C. had been

substantially complied with we cannot bring ourselves to agree with this observation, since neither P.W.20 nor P.W.27 have stated that pursuant to

receiving the Complaint they intimated the Executive Magistrate. It is also not in the evidence of the Prosecution that the report prepared by P.W.20

was forwarded to the District Magistrate or the Sub-Divisional Magistrate as required under Section 174(2) of the Cr.P.C. P.W.15 witness to the

inquest could not enlighten the Court as to why he signed on Exhibit 5, although he identified Exhibit 5(a) as his signature on it. The other witness of

Exhibit 5 is one Sangay Bhutia, Panchayat President, Machong and his signature appears to be Exhibit 5(b), but was not examined. That, having been

said, it is essential to clarify that the Supreme Court while discussing the evidentiary value of a report under Section 174 of the Cr.P.C. in Yogesh

Singh vs. Mahabeer Singh and Others (2017) 11 SCC 195 observed as follows;

“41. Further, the evidentiary value of the inquest report prepared under Section 174 CrPC has also been long settled through a series of judicial

pronouncements of this Court. It is well established that inquest report is not a substantive piece of evidence and can only be looked into for testing the

veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is

suicidal, homicidal, accidental or caused by animals or machinery, etc. and stating in what manner, or by what weapon or instrument, the injuries on

the body appear to have been inflicted. ………..â€​

In Tehseen Poonawalla v. Union of India and Another (2018) 6 SCC 72 the Supreme Court held as under;

“39. The purpose of holding an inquest is limited. The inquest report does not constitute substantive evidence. Hence matters relating to how the

deceased was assaulted or who assaulted him and under what circumstances are beyond the scope of the report. The report of inquest is primarily

intended to ascertain the nature of the injuries and the apparent cause of death. On the other hand, it is the doctor who conducts a post-mortem

examination who examines the body from a medico-legal perspective. Hence it is the post-mortem report that is expected to contain the details of the

injuries through a scientific examination ……………. .â€​

The next argument of Learned Counsel for the Appellant that P.W.20 proceeded to conduct the investigation under Section 174 of the Cr.P.C. as

if he was the I.O. of the case is superfluous, in view of the provisions of Section 175 of the Cr.P.C. which provides that a Police Officer proceeding

under Section 174, may, by order in writing, summon two or more persons as aforesaid for the purpose of the said investigation, and any other person

who appears to be acquainted with the facts of the case. Every person so summoned shall be bound to attend and to answer truly all questions other

than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. If the facts do not

disclose a cognizable offence to which Section 170 of the Cr.P.C. applies, such persons shall not be required by the police officer to attend a

Magistrate's Court. The Section requires the Officer concerned to prepare a report, which without ambiguity requires investigation.

Now, we turn to address the issue as to whether the death occurred by strangulation. The principle of circumstantial evidence is that the

hypothesis of guilt must lead to the accused and none else by a chain of circumstances which are cogent, consistent and reliable. On this aspect, in

Gambhir vs. State of Maharashtra (1982) 2 SCC 351 the Supreme Court observed as follows;

“9. It has already been pointed out that there is no direct evidence of eyewitness in this case and the case is based only on circumstantial evidence.

The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should

be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should 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. The

circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of

the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

……………….â€​

In Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 the Supreme Court held that graver the crime, greater should be the

standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on evidence two

possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly

entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial

evidence.

That, there is no eye-witness to the alleged offence in the instant case requires no reiteration, the Prosecution case is indeed based entirely on

circumstantial evidence. As per P.W.27 the I.O., the Doctor P.W.22, after post-mortem opined that the victim died due to strangulation with a

―gamcha†like cloth. When M.O.III Muffler and M.O.V Shawl were forwarded to P.W.22 by P.W.27, he opined that death could be caused by the

said articles. P.W.20 the I.O. of the UD Case had seized M.O. III Muffler and M.O. V Shawl. Where these articles were seized from or from whose

possession is a question unanswered by P.W.20 or P.W.27. As per P.W.15 a witness to the seizure, M.O.III was on the bed with the two caps M.O.I

and M.O.II and the bed sheet M.O.IV and navy blue shawl M.O.V, but M.O.III has not been identified by the Prosecution as the article of the crime

or linked inextricably to the Appellant. This circumstance also leads us to ponder as to whether the Appellant alleged to have mens rea would have left

the articles used by him in the crime in open view for all to detect. P.W.6 is the only ocular witness. Her testimony before the Court reveals that she

and the Appellant saw the deceased hanging from a nearby tree in the early hours of 14-02-2016. The Appellant then carried the deceased into the

house and kept her body on the cot, she was already dead. He instructed P.W.6 not to tell the Police that the victim had hanged herself. The

Prosecution for reasons unknown did not declare the witness hostile or cross-examine her nor was she confronted with the statements made by her

Section 164 Cr.P.C., where she had stated inter alia that, on the following morning her father woke her up and told her that her mother had passed

away and she saw her father carrying the body of her mother on his shoulder. When she saw her father carrying her mother‘s body, he was inside

the bedroom. No statement of having seen the victim hanging from the tree was made therein, but she has stated so before the Court. Her evidence

before the Court in the aforementioned circumstances thus stood undecimated and her credibility unimpeached. In Laxmibai (Dead) through Lrs. and

Another vs. Bhagwantibuva (Dead) through Lrs. and Others (2013) 4 SCC 9 7the Supreme Court examined the fact of non-cross-examination of

witness on a particular fact and held as under;

“40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the

correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part

of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been

advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a

witness as regards information tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands enlarged by

Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity.

Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon

any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events

provided by him is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide

adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in

dealing with witnesses. …….â€​ [emphasis supplied]

In R. Shaji (supra) the Supreme Court held as follows;

“26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161

CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction.

……………….

So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from

changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness

under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded,

is not at all warranted. …………

Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of

corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-

examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.â€​

Hence the evidence of P.W.6 before the Court being substantive evidence, in contradistinction to her statement under Section 164 Cr.P.C., due

weight has to be conferred to it.

The Prosecution laid great emphasis on the evidence of P.W.22 Dr. O. T. Lepcha, the Medicolegal Consultant who conducted post-mortem on the

victim. Prolix arguments were advanced by both parties as to whether the fracture of the hyoid bone is indicative only of homicidal death or whether it

could also be suggestive of suicide, with the Prosecution asserting that fracture unequivocally indicated strangulation.

Beneficial reference can be made to Page 456 of the Modi A Textbook of Medical Jurisprudence and Toxicology, 24th Edition 2013, wherein the

differences between hanging and strangulation have been tabulated as follows;

Hanging Strangulation

1 Mostly suicidal. 1 Mostly homicidal.

2 Faceâ€"Usually pale and petechiae rare. 2 Faceâ€"Congested, livid and marked with petechiae.

3 Salivaâ€"Dribbling out of the mouth down on the chin and chest. 3 Salivaâ€"No such dribbling.

4 Neckâ€"Stretched and elongated in fresh bodies. 4 Neckâ€"Not so.

5 External signs of asphyxia, usually not well marked. 5 External signs of asphyxia, very well marked (minimal if death due to

vasovagal and carotid sinus effect).

6 Ligature markâ€"Oblique, noncontinuous placed high up in the neck6 Ligature markâ€"Horizontal or transverse continuous, round the neck,

between the chin and the larynx, the base of the groove or furrow beinglow down in the neck below the thyroid, the base of the groove or furrow

hard, yellow and parchmentlike. being soft and reddish.

7 Abrasions and ecchymoses round about the edges of the ligature mark,7 Abrasions and ecchymoses round about the edges of the ligature mark,

rare. common.

8 Subcutaneous tissues under markâ€"White, hard and glistening. 8 Subcutaneous tissues under the markâ€"Ecchymosed

9 Injury to the muscles of the neckâ€"Rare. 9 Injury to the muscles of the neckâ€"Common.

10 Carotid arteries, internal coats ruptured in violent cases of a long drop. 10 Carotid arteries, internal coats ordinarily ruptured.

11 Fracture of the larynx and tracheaâ€"Very rare and may be found that11 Fracture of the larynx trachea and hyoid bone.

too in judicial hanging.

12 Fracture-dislocation of the cervical vertebraeâ€"Common in judicial12 Fracture-dislocation of the cervical vertebraeâ€"Rare.

hanging.q

13 Scratches, abrasions and bruises on the face, neck and other parts of the13 Scratches, abrasions fingernail marks and bruises on the face, neck

bodyâ€" Usually not present. and other parts of the bodyâ€"Usually present.

14 No evidence of sexual assault. 14 Sometimes evidence of sexual assault.

15 Emphysematous bullae on the surface of the lungsâ€" Not present. 15 Emphysematous bullae on the surface of the lungsâ€" May be present.

[emphasis supplied]

At ibid Page 454 while describing death caused by strangulation it is elaborated inter alia as follows;

“(i) Whether death was caused by strangulation.â€"……… Irregularities in the fingernail marks may pinpoint a killer.

…………………………………………

Abrasions and fingernails marks may be produced on the neck by a person gasping for air in an intoxicated condition or in an epileptic or a hysterical

fit.

To arrive at a conclusion that death was due to strangulation, it is necessary, therefore, to note the effects of violence in the underlying tissues in

addition to the ligature mark or bruise marks caused by the fingers or by the foot, knee and other appearances of death from asphyxia. At the same

time, the possibility of other causes of suboxic or asphyxia death should be excluded.â€​

In a study conducted by Dr. Shrabana Kumar Naik, Associate Professor and Dr. D. Y. Patil, Departmental of Forensic Medicine, Medical

College (Deemed University), Pimpri, Pune, Maharashtra, on Fracture of Hyoid Bone in cases of Asphyxial Deaths resulting from constricting force

round the Neck Published in Journal of the Indian Academy of Forensic Medicine - 2005 : 27(3), it has been held as follows;

“……………………………………………………..

DISCUSSION

Sometimes it becomes difficult to differentiate ligature strangulation from hanging especially in case of partial hanging where the ligature mark lies low

in the neck, more or less in a horizontal manner. Therefore, it is only the internal tissue damage as well as damage to the laryngeal cartilages and hyoid

bone decides the actual manner of death. Similarly, in case of grossly decomposed dead bodies where the neck skin are grossly discolored or lost, it is

the internal damage to neck tissue and hyoid bone, which tells the actual cause of death even months and years after death. So importance given to

hyoid bone fracture is justifiable and will remain there where mechanical asphyxia is the mode of deaths.

Though percentage of hyoid bone fracture in manual or ligature strangulation cited by many authors are more or less equal and noncontroversial, the

percentage of hyoid bone fracture in hanging deaths vary greatly from 0% to 68% from author to author

……………………………………………………

Out of total 257 cases of different types of hanging including 4 cases of homicidal hanging, the present author did not found (sic) hyoid bone fracture

in a single case. Though many authors claim that hyoid bone fracture increases with increasing age above 40 years, the present author did not get any

hyoid bone fracture in the 18 cases of hanging victims over the age of 40 years. So incidence of hyoid bone in hanging can be taken as rare or very

few as observed by authors like Smith, Sydney and Fiddes …, J.P.Modi … and J.B.Mukherjee ……………………….

On the other side, out of total 7 cases of ligature strangulation, the present author detected hyoid bone fracture in … (42%) cases where as out of

total 5 cases of throttling, the present author detected hyoid bone fracture in almost all i.e., 4 (80%) cases, which is more or less same as noticed by

most of the previous authors …

CONCLUSION

Taking the present study of Hyoid bone fracture in cases of asphyxial deaths resulting from constricting force round the neck it is concluded that

incidence of hyoid bone fracture is almost nil or rare in cases of hanging where the constricting force act on the neck in a sliding or tangential manner.

fracture after the age of 40 years can be concluded only after taking larger numbers of such cases, which need further continuous study in this regard.

……………………………………….â€​ [empahsis supplied]

In Page 361 of HWV Cox Medical Jurisprudence and Toxicology, Seventh Edition 2008, differences between hanging and strangulation are

enumerated as follows;

Trait Hanging Ligature Strangulation

Face Pale and petechiae are not common It is livid, congested and full of petechiae

Ligature mark Oblique usually seen high up in the neck aboveTransverse, Â completely encircles the neck and

 the thyroid cartilage and incomplete usually below the thyroid cartilage

Base Pale, hard and parchment like Soft and reddish

Subcutaneous Tissue It is white, hard and glistening below the markEcchymoses present below the mark

Neck Stretched and elongated Not so

Hyoid Bone Fracture is common Fracture is rare

Thyroid Cartilage Fracture is rare Fracture is common

Tongue Swelling and protrusion are not so common Are well marked

Saliva Usually runs out of mouth Absent

Bleeding From the nose, From the nose, mouth and ears are common

mouth and the ears are not so common

Involuntary DischargeOf the faeces and urine are not common Are commonly seen

Seminal Fluid Usually seen at the glans penis Rarely seen

[emphasis supplied]

As per Cox the external appearances in strangulation by ligature naturally vary greatly according to the object used and explains at Page 351 as

follows;

“………………………………………….

Apart from the mark due to the ligature and any possible ‗asphyxial‘ changes above, such as congestion, oedema, cyanosis, petechiae and nose

bleeding, certain other marks may be discovered on the skin in cases of ligature strangulation. The most frequent ones are those inflicted by the victim

in an attempt to tear away the ligature and are usually seen as scratches on the skin of the neck near the position of the ligature. They are often

vertical in direction, as the nails of the victim try to pull away after constricting object. However, they are frequently so irregular so as not to show any

vertical pattern. …………………………â€​

At Page 352-353 it is stated as follows;

“………………………………………….

In strangulation by a ligature, the level of the ligature is often such that it is well below the hyoid bone and fractures are thus less frequent than in

manual strangulation where the grip is usually higher. …………………… ………………………………………….â€​ [emphasis supplied]

In Taylor’s Principles and Practice of Medical Jurisprudence, Thirteenth Edition 1984, edited by A. Keith Mant, at Page 305, post-mortem

appearances in strangulation are recorded as follows;

“Post-mortem appearances in strangulation

……………………………………………………………….

General internal appearances. Internally the air passages contain fine froth, often blood stained. The lungs are congested with subpleural petechiae.

Microscopically there is usually intense interalveolar congestion with haemorrhages of varying size, fluid in the alveoli, areas of collapse and

intervening areas of ruptured alveoli. The air passages often contain large areas of desquamated respiratory type epithelium, red blood cells and fluid.

The remaining organs show only congestive changes. Petechiae are usually more common in the brain than elsewhere.

……………………………………..â€​ [emphasis supplied]

On the anvil of the authorative medical literature supra it emerges with clarity that there is no fool proof method to differentiate and distinguish

ligature strangulation from hanging. It is also not established beyond all proof that hyoid bone fracture is completely devoid in all cases of hanging.

Infact the literature in Modi and Cox referred to supra vary with regard to the breakage of the hyoid bone in cases of strangulation.

On this note we may now examine the evidence of P.W.22. He received the body at around 3.30 p.m. and started autopsy at the same time on

14-02-2016 and concluded the same by 04.30 p.m. He would depose as follows;

“……………………. The body was brought with the history of having been found lying on the bed with injuries over the neck. On general

examination of the body I came to the following category-wise findings:-

(1) The hair was dishevelled with many dry leaves stuck on it. The wearing apparel worn by the deceased(greenish woolen sweater) also contained

some vegetations and leaves. (sic)

(2) Rigor mortis was present all over the body. Post-mortem staining was present over the back and fixed. There was generalized cyanosis over the

lips and fingernails.

Ante-Mortem injuries:-

(1) There was a well-defined ligature mark 30 x 8.2 cms over the front of the neck with 03 nos. of linear marks over the said area. The upper border

of the ligature mark extended from the base of the mandible upto 8 to 9 cms below the neck and was interrupted by an area of abrasion (3.3 x 2 cms)

(fingernail abrasion) present over the right side of the neck with the abraded skin directed from upward to downwards. The ligature moved posteriorly

leaving a faint impression over the back of the neck and at no stage did it run upwards. The ligature mark was reddish blue in colour and was

parchmentised.

(2) There were abraded contusion 12 x 3 cms placed vertically over the antero-medial aspect of the right lower leg(medial to the shin bone).

Head and Neck:-

There were multiple bruises under the ligature site and over the fascia and muscles (that were detected on dissection of the skin). There was fracture

of the hyoid bone (left side) with fracture of outer periostium (with normal inner side) over the right side of the hyoid bone which was suggestive of

manual strangulation. The brain was congested.

Lungs:-

Both the lungs were congested and oedematous.

Abdomen:-

The stomach contained around 300 to 400 ml of undigested food materials. The uterus was non-gravid.

Opinion:-

On the basis of my examination and the findings above I came to the following opinion:-

The approximate time since death was 12 to 24 hours and the cause of death was asphyxia as a result of strangulation, homicidal in nature.â€​

The medical literature extracted hereinabove indicates that in cases of strangulation the eyes may be suffused and bulging with dilated pupils, the

tongue protruding, frothy blood tinged fluid from nose and mouth, petechial haemorrhages usually seen in the skin of the eye lid, the face, the scalp and

sometimes larger haemorrhage is present in the eyes, congestion, oedema, cyanosis and likelihood of nail marks of the victim near the position of the

ligature. These symptoms are absent in Exhibit 11. The Doctor has also observed that the ligature moved posteriorly leaving a faint impression over

the back of the neck and at no stage did it run upwards. It is may pertinently be mentioned that the Prosecution having relied on Exhibit 24, these

photographs cannot be overlooked. These do not reveal the back of the neck of the deceased. From Exhibit 11 it can be culled out that the ligature

mark extended from the base of the mandible up to 8-9 cms below the neck and was interrupted by an area of abrasion present over the right side of

the neck, but the Doctor has not opined as to whether the ligature mark itself was indicative of strangulation and why it was so. The argument of the

Prosecution that it was transverse and placed low down in the neck below the thyroid is denuded of support by Exhibit 24 the photographs of the

deceased, as the ligature mark is seen to be oblique on both sides of the neck and placed high in the neck. Neither P.W.20 nor P.W.27 have taken

photographs of the back of the neck of the victim to enable the Court to assess as to whether the ligature was transverse. The Doctor has opined that

there was an area of fingernail abrasion present over the right side of the neck with the abraded skin directed from upward to downwards but has not

opined as to what the abrasion was indicative of, neither was investigation on this count taken up by P.W.27. Although multiple bruises in the ligature

site and over the fascia and muscles were detected on dissection of bone, the Doctor has not explained whether the bruises over the muscles

established strangulation and no other cause. The hyoid bone was found to have been fractured and suggestive of manual strangulation, but no opinion

emerged as to why this was conclusive proof of strangulation. In view of the diverse opinion with regard to fracture of the hyoid bone and its causes,

we are indeed to carefully and cautiously absorb this evidence as it is not established by any expert studies or medical literature that fracture of the

hyoid bone is foolproof conclusion of strangulation and no other cause. Although it was opined that there was abraded contusion 12 x 3 cms placed

vertically over the antero-medial aspect of the right lower leg (medial to the shin bone), the Doctor has not opined as to why an injury over the right

lower leg would be indicative of strangulation. The instant matter can be distinguished from that of Mandhari (supra), the post-mortem report prepared

on autopsy conducted by the Doctor therein showed a ligature mark on the neck of the deceased which was ante-mortem. The opinion of the doctor

was clear and definite that such ligature mark of 5 cm. width in horizontal portion cannot be caused by hanging, but could have been caused by

strangulation, which completely demolished the case of the Appellant that he had found his wife hanging. No specific opinion of ruling out hanging has

been given by P.W.22. P.W.22 has also detected well-defined ligature mark 30 x 12 cms over the front of the neck with three numbers of linear

marks over the said area, but has not opined as to what the linear marks indicated and whether the linear marks were finger marks or nail marks.

Besides the report does not mention that there was cyanosis of the face and merely states that there was generalized cyanosis over the lips and finger

nails.

In Dayal Singh and Others vs. State of Uttaranchal (2012) 8 SCC 263 the Supreme Court held as follows;

“39. …………………… The skill and experience of an expert is the ethos of his opinion, which itself should be reasoned and convicting. Not to

say that no other view would be possible, but if the view of the expert has to find due weightage in the mind of the court, it has to be well authored and

convicting. Dr. C.N. Tewari was expected to prepare the prost-mortem report with appropriate reasoning and not leave everything to the imagination

of the Court. He created a serious doubt as to the very cause of death of the deceased. His report apparently shows an absence of skill and

experience and was, in fact, a deliberate attempt to disguise the investigation.â€​

The evidence of P.W.22 fails to inspire confidence in the absence of specific opinion pertaining to the injuries. Thus in the absence of any

conclusive evidence and bearing in mind the evidence of P.W.6, it cannot be ruled out that the case of the victim who was above fifty years of age fell

in the rare category where the hyoid bone is broken during hanging. Added to this is the admission of P.W.27 the I.O. under cross-examination that he

did not have any evidence to show that any of the articles mentioned in Exhibit 12 had actually caused the death of the deceased. The Learned Trial

Court was impressed by the Prosecution version that as a rule the hyoid bone is not fractured except by strangulation, but it has to be appreciated by

the Courts that the said circumstance is not absolute, there can be exceptions to the rule as has been elucidated hereinabove.

The Learned Trial Court also observed that there was no sign of suicidal hanging as the neck of the deceased would be stretched and elongated

which was not so in the instant matter. We deem it relevant to reiterate that P.W.22 has given no opinion on this aspect of the matter, therefore the

opinion of the Learned Trial Court is sans any expert evidence furnished by the Prosecution.

The evidence of P.W.22 is to be juxtaposed with that of P.W.6 the ocular witness and in our considered opinion more weight attaches to the

unscathed evidence of P.W.6. In Krishna Gopal (supra) the Supreme Court held as follows;

“13. ……………………………………………

It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as

conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye

witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged

making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its

inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency

with the undisputed facts the ‗credit‘ of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative

value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

……………………………………….â€​

In Mohar Singh (supra) the Supreme Court observed as follows;

“6. In view of this glaring inconsistency between the ocular and medical evidence, it will be extremely unsafe and hazardous to maintain the

conviction of the appellants on such evidence. For the reasons, therefore, we are clearly of the opinion that the prosecution case has not been proved

beyond reasonable doubt. The appeals are accordingly allowed and the appellants are acquitted of the charges framed against them. The accused-

appellants will now be discharged from their bail bonds and need not surrender.â€​

In Abdul Sayeed vs. State of M.P. (1975) 4 SCC 497 it was held as follows;

“34. Drawing on Bhagirath case [(1999) 5 SCC 96], this Court has held that where the medical evidence is at variance with ocular evidence,

“it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the

eyewitnesses' account which had to be tested independently and not treated as the „variable‟ keeping the medical evidence as the „constant‟ â€​.

Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as

conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely

prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.

……………………………………â€​ [emphasis supplied]

The Prosecution had alleged that P.W.6 was an interested witness, if this be so the evidence of an interested witnesses requires careful scrutiny,

however if tested and found credible nothing debars reliance on it. In Sachchey Lal Tiwari vs. State of U.P. (2004) 11 SCC 410 the Supreme Court

would conclude that;

“7. ……………………. Murders are not committed with previous notice to witnesses â€" soliciting their presence. If murder is committed in a

dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence

cannot be brushed aside or viewed with suspicion on the ground that they are mere ―chance witnessesǁ. The expression ―chance witnessǁ is

borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in

another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of

explaining their presence. ………………â€​

P.W.6 was the adopted daughter of the couple no proof of incestuous relation between her and the Appellant having been established, we find that

she is a natural witness and cannot be said to be an interested witness. Her evidence as already discussed cannot be wished away by the Prosecution.

That, the Appellant failed to raise a hue and cry was the subject of criticism by the Learned Trial Court, but we find that the Prosecution evidence

nowhere reveals that there were houses in the vicinity of the Appellant‘s house, prompting the Appellant to seek assistance.

Admittedly there were dry leaves, grass and weed on the bed of the deceased as testified by P.W.1, P.W.2 supports this statement and adds that

grass was found on the floor of the room of the deceased. P.W.3 under cross-examination admitted that the Appellant on enquiry by the Police as to

the origin of the dry leaves and grass told the Police that he found the deceased hanging on a tree due to which leaves were found stuck to her

clothes. P.W.7 too testified that some dry leaves and wild flowers were stuck on the clothes of the deceased. The evidence of P.W.15 lends support

to the evidence of the witnesses supra and according to him M.O.III and M.O.V contained dry grass even on the day of his evidence. P.W.17 would

depose about grass on M.O.III and M.O.V and that these articles were piled on the bed at the time of seizure and grass was still attached to it.

P.W.22 the Doctor, found the hair of the deceased dishevelled with many dry leaves stuck on it as also on the sweater worn by the deceased. The

I.O. P.W.27 admits that he visited the concerned tree and that there was grass around the tree. In the teeth of such evidence the Prosecution ought to

have furnished substantial reasons as to how the grass, weed and leaves came about the person, the clothes and the bed sheet of the victim but has

failed in their duty to do so leaving the circumstance open to speculation. In the absence of any explanation we are constrained to fall back and rely on

the evidence of P.W.6 who has stated unfalteringly that she saw the victim hanging from the tree and her father carried the dead body inside.

Addressing the argument advanced by Learned Senior Counsel for the Appellant that the Learned Trial Court has based its decision also on the

resiled Section 164 Cr.P.C. statement of P.W.23 a hostile Prosecution witness we may in this context refer to State of U.P. vs. Ramesh Prasad

Misra and Another (1996) 10 SCC 360 where the Supreme Court observed as follows;

“7. …………………. It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the

prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the

prosecution or defence may be accepted. …………………..â€​

In Mrinal Das and Others vs. State of Tripura (2011) 9 SCC 479 the Supreme Court held as follows;

“67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness

was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting

en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different

times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be

attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses.

Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that

evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not

become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what

extent he has supported the case of the prosecution.â€​

Before the Learned Trial Court P.W.23 went on to depose that the Appellant told him and P.W.5 that the deceased had committed suicide by

hanging on a banyan tree. The witness was declared hostile his deposition being in contradiction to his Section 164 Cr.P.C. statement. When

confronted with his Section 164 Cr.P.C., Exhibit 14, he emphatically denied having stated before the Magistrate that the Appellant had told him that

the victim died due to stomach ache. When cross-examined by the appellant he asserted that the Appellant had told him that the deceased had hanged

herself and denied the version of the stomach ache. Now, merely because the evidence of P.W.23 does not corroborate the Prosecution story his

evidence before the Court cannot be faulted and thrown out in its entirety. The Learned Trial Court in the impugned Judgment at Paragraph 30 has

erroneously relied on the Section 164 Cr.P.C. statement of the witness, overlooking the settled proposition that the deposition before the Court is infact

substantive evidence.

Next, dealing with the question of the article of clothing which was used for the alleged strangulation, the Prosecution has failed in its obligation to

link any specific article to the alleged offence. P.W.22 had opined vide Exhibit 13 that M.O.III and M.O.V could have caused the death, nevertheless,

no efforts at measurement of the articles with the ligature found on the victim‘s neck was initiated by the I.O. to establish this opinion. No evidence

or details were furnished also to establish as to how the I.O. P.W.27 concluded that the Appellant had tried unsuccessfully to hang the body of the

deceased from the tree.

Motive for the offence as per the Prosecution was the incestuous relations between P.W.6 and the Appellant, the Learned Trial court found

credibility on this aspect, in the evidence of P.W.4 and P.W.10. P.W.4 stated that the victim had told her sometime in September, 2015, she had been

physically assaulted by the Appellant when she had found him and P.W.6 in a compromising situation. P.W.10 also vouched for the evidence of

P.W.4 and narrated the same facts. P.W.4 and P.W.10 both sister-in-laws of the deceased evidently did not discuss the matter either amongst

themselves or together with the deceased, neither did they deem it essential to report the matter to the Police. The evidence of P.W.3 the victim‘s

brother on this aspect also remained unsubstantiated. All that they have stated is that the victim refused to lodge an FIR before the Police Station. This

evidence, therefore, in our considered opinion, coming after the death of the victim, cannot in the absence of substantial proof be believed. P.W.21 the

mother of P.W.6 contrary to the evidence of P.W.4, P.W.10 and P.W.3 would testify that in September, 2015, the deceased came to her house and

asked her to call her father-in-law as well and in their presence asked them to take P.W.6 back as the child was in the habit of going out of the house

most of the time and there was some problem due to P.W.6 staying in her house. Her cross-examination elicited that the deceased requested her to

take P.W.6 back as she was reluctant to do household works and visited her friends‘ place while returning from school without permission. The

deceased did not tell her about P.W.6 creating any problem in the family of the Appellant and his wife, the deceased. Consequently we are in

disagreement on this count with the finding of the Learned Trial Court. Besides which we have also taken into consideration the evidence of P.W.11

and P.W.12 both sons of the deceased who have made no allegations of ill-treatment of their mother by the Appellant. In (supra) the Supreme Court

held as follows;

“33. Motive is primarily known to the accused himself and therefore, it may not be possible for the prosecution to explain what actually prompted

or excited the accused to commit a particular crime. In a case of circumstantial evidence, motive may be considered as a circumstance, which is a

relevant factor for the purpose of assessing evidence, in the event that there is no unambiguous evidence to prove the guilt of the accused. Motive

loses all its significance in a case of direct evidence provided by the eyewitnesses, where the same is available for the reason that in such a case, the

absence or inadequacy of motive cannot stand in the way of conviction. However, the absence of motive in a case depending entirely on

circumstantial evidence, is a factor that weighs in favour of the accused as it ―often forms the fulcrum of the prosecution storyǁ.

…………………..â€​ [emphasise supplied]

Having examined and appreciated the entire evidence on record, we deem it necessary to extract the relevant portions of the ratio in Raj Kumar

Singh (supra) wherein the Supreme Court would expound as follows;

“21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ―may beǁ proved

and ―will be provedǁ. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the

reason that the mental distance between ―may beǁ and ―must beǁ is quite large and divides vague conjectures from sure conclusions. In a criminal

case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ―may beǁ

true and ―must beǁ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is

condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ―may beǁ true and

―must beǁ true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of

dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility

of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so

demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely

probable doubt, but a fair doubt that is based upon reason and common sense. …………………â€​

At this juncture it would also be fitting to consider the Section 313 Cr.P.C. statement of the Appellant where he in response to question No.6 has

stated that he and the victim had gone to sleep together and when he woke up at around 3 a.m. he found her missing. When he started looking for her

he found her hanging by a tree. He then brought her dead body inside the house. His adoptive daughter (P.W.6) was also there with him. In Nagaraj

vs. State, Rep. by Inspector of Police, Salem Town, Tamil Nadu 2015 CRI.L.J. 2377 (SC) the Supreme Court held as follows;

“15. In the context of this aspect of the law it is been held by this Court in Parsuram Pandey v. State of Bihar [(2004) 13 SCC 189 ]that Section

313 CrPC is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the

accused, its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most

salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali v. State of Assam [(2008) 16 SCC 328].

……….

Having made this clarification, refusal to answer any question put to the accused by the Court in relation to any evidence that may have been

presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of

guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the

prosecution to prove its case beyond reasonable doubt. Once this burden is met, the statements under Section 313 assume significance to the extent

that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required

to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination

Under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that

may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3)

of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High

Court was not correct in drawing an adverse inference against the Accused because of what he has stated or what he has failed to state in his

examination under Section 313, Cr PC.â€​

[emphasis supplied]

In view of the entirety of the circumstances and on cautious appreciation of the evidence before us, we have no hesitation in holding that, the

propositions pertaining to circumstantial evidence which requires an unbroken chain of links to conclusively connect the crime with the Appellant is

wanting in the instant matter. The Prosecution story is founded on divergent evidence leading to an improbable circumstance. Resultant, the

Prosecution has failed to prove its case beyond a reasonable doubt.

Consequently, the Appellant is entitled to the benefit of doubt.

Appeal allowed.

The conviction and sentence imposed on the Appellant vide the impugned Judgment and Order on Sentence of the Learned Trial Court are set

aside and the Appellant acquitted of the Charge under Section 302 of the IPC.

The Appellant be released forthwith unless required in any other case.

Fine, if any, deposited by the Appellant in terms of the impugned Order on Sentence, be reimbursed to him.

No order as to costs.

Copy of this Judgment be forwarded to the Learned Trial Court for information, along with its records.