Sathish Kumar vs State

M. Vijayaraghavan, J.—These two appeals arise out of conviction and sentence awarded by the learned District and Sessions Judge. Karur in S.C. No. 14 of 2010. dated 07.12.2010 individually by A1-Sathishkumar and A-2 Praveen. The Appellant in both the Criminal Appeals, who are arrayed as A-1 and A-2 have been tried and convicted for the offences under Sections...............302 r/w 34 I.P.C., and Section 392 r/w 397 I.P.C. The accused are sentenced to undergo life imprisonment for the offence u/s 302 r/w 34 I.P.C. and to pay a fine of Rs. 1000/- each and in default to undergo two months rigorous imprisonment and to undergo rigorous imprisonment for seven years for teh offence u/s 392 read with 397 I.P.C. and to pay a fine of Rs. 500/- each in default to undergo rigorous imprisonment for one month. Both the sentences are ordered to run concurrently.

The brief case of the prosecution as educed through the witnesses before the trial Court, is as follows:

(i) P.W. 1-Sankar, the son of Kunjammal as well as the complainant, who is not able to speak and through his sign with the help of Government Deaf School teacher Selvam, is able to identify the complaint given by him and thereby the said complaint is marked as Ex. P.1. P.W.2-Sivakami elder sister of P.W. 1 is well known about P.W. 1, who is not able to speak and write not by birth, but due to the occurrence took place in the middle of his life. P.W.2 and her younger sister and five younger brothers were born to her parents and they used to visit their mother, who was lonely residing at door No. 163-B, Sundar Gate, Kauvery Nagar first street. The deceased Kunjammal used to wear nose ring, five sovereign gold chain M.P./1, one pair ear stud-M.0.2 and this fact was known to P.W.2 and at the time of visit of P.W.2''s son Ganesan, the deceased was wearing M. Os. 1 and 1 as well as the nose ring. After receipt of the death information of P.W.2''s mother, on the next day, P.W.2 visited his mother''s house and found bloodstain on her mother''s body and the gold ornament on ears and neck were missing except nose ring and also found that the first accused was not there. At the time of P.W.2''s brother Sankar, his wife and children were present and as soon as P.W.2 entered, they left the house. P.W.2 came to know that the death occurred to her mother was not natural, but her mother was murdered.

(ii) On 25.07.2009, when P.W. 8-Kathirvel-Sub-Inspector of police, was working at Pasupathipalayam police station, P.W.1 Sankar came and gave complaint and based on which P.W.8 registered F.I.R.-Ex. P10 in crime No. 632 of 2009 under Sections 302 and 380 I.P.C. and sent F.I.R. and the complaint to the learned Judicial Magistrate No. 1, Karur through Head Constable No. 742-Chithamparam-P.W.12 and sent a copy to higher police officials as well as to the Inspector of Police. P.W. 12-Chithamparam-Head Constable handed over the F.I.R and complaint to the learned Judicial Magistrate on the same day evening at 7.30 hours, went to the occurrence place and in the presence of Loganathan- P.W. 3 and............Selvaraj--P.W.11, prepared observation Mahazar as well as Rough Sketch-Ex. P25 and sent intimation to the Mobile Finger Print Expert to come over to the occurrence place. P.W.6-Samiyappan, Inspector of Police working in the Karur Finger print Special Wing on 25.07.2009. night at 7.30 hours, went to the occurrence place at the request of the Inspector of Police and took six finger Prints photos. Out of which, four relate to the deceased and the rest relate to third person and the same were marked as P1 and P2 and on 27.06.2009, P.W.6 received the two suspected persons finger prints and on examination, the same tallied with the finger prints took at the occurrence place. The suspected person namely Sathish Kumar''s finger print tallied with P.1, which was taken from the cot and the suspected person Praveen''s finger printing tallied with P.2, which was taken from the bureau and the report of P/ W. 6 is Ex.P8 and the examination report of A-1 and A-2 are Exs. P11 and P12.

(iii) P.W. 14, thereafter conducted inquest on the dead-body in the presence of panchayatars and witnesses and prepared the inquest report Ex.P26 and also examined the witness Sankar and recorded his statement and at that time, the said Sankar was not able to talk fluently. Thereafter, sent the body to conduct postmortem through constable Krishna- P.W.13. P.W.13, on 25.07.2009, night at 11.05 hours, received the dead-body as well as requisition to conduct post-mortem and handed over the same to the Karur Government Hospital and thereafter, after concluding he post-mortem and seized the belongings on the dead-body, handed over the belongings namely Jacket- M.O.5, Petticoat-M.0.6 and Saree- M.O.7, alongwith report Ex.P.24 to the Inspector as well as handed over the dead-body to the relatives for burial and also handed over internal organs of the dead-body to Forensic Laboratory, Trichy for test. P.W.5 - Doctor Malarvizhi on 25.07.2009 night at 11.40 hours, received the dead-body along with requisition of the Inspector-Ex.P4 and on the next day morning at 6.30 hours started inquest and the body was in a decomposed position and noted blood clot on face chest and two nose and also abrasion on the right hand measuring 2 x 2 cm and also noted several abrasions in different sizes, on the left hand and found bleeding from the nose and the tongue was outside and sent internal organs to viscera test as well as hyoid bone for test and received the report from the laboratory with regard to the internal organs as well as hyoid bone viz., Ex. P5 and P6 respectively and after the receipt of the reports, she gave final opinion that the deceased would appear to have died due to Asphyxia. The post-mortem certificate is Ex.P7 and she has also admitted the suggestion that the death occurred due to pressing of a person''s nose as well as mouth with hand and also admitted the suggestion that the abrasions on the left hand would be possible due to struggle for life when a person stopped breathe through nose and also gave opinion that the first injury noted on the upper chest as welt as face and two hands are possible due to unnatural death.

(iv) P.W.10--Thangaraj, the Village Administrative Officer on request made by the Sub-Inspector of police, Pasupathipalayam Police Station on 27.06.2009 afternoon at 1.30 hours went to the industrial estate bus-stop and wherein, he found that the accused Nos. 1 and 2 were standing and the Inspector of Police - Mohandoss, examined them in his presence and the first accused gave voluntary confession and mahazar for seizure of key-chain--M.0.3 is Ex.P 16 and the second accused also gave confession and the seizure mahazar for 5 1/2 sovereign gold chain - M.O. 1 is Ex. P18 and seizure mahazar for one pair ear stud-M.O.2 is Ex. P19 and while examining the first accused, he produced white color B.PL. cell-phone--M.0.4 and the same was recovered under mahazar- Ex. P20 mahazar and mahazar for seizure of cell-phone from the second accused is Ex.P21. The admissible portion of the confession given by the first accused as spoken by P. W. 14 - Investigation Officer is Ex.P28 and the admissible portion of the confession given by A-2 is Ex. P29 and Ex. P32 and based on Exs. P29 and Ex. P32, P.W.14 seized the pledge receipt and on the date on occurrence i.e., on 25.07.2009 from the occurrence place, the broken lock MO-8 as well as Nokia Cell- Phone-M/O.9 were seized under mahazar- Ex. P13.

(v) Furthermore, P.W.-14, seized the red-colour Cell-phone M.O.-10 from the second accused. Since the second accused sustained injury on his hand due to bitting of the deceased Kunjammal, he sent him under memo-Ex. P31 to the Government Hospital and in turn, P.W.7, Dr. Ramasamy on 26.07.2009 night at 9.30 hours, examined Praveen who was brought under medical memo from the Pasupathipalayam Police Station and found abrasions on the left side fingers and issued Accident Register copy-Ex. P9. P.W.9--the then Head Clerk, Judicial Magistrate court No. I, Karur, on 28.07.2009, received requisition for sending internal organs as well as bone for chemical analysis test and on the basis of the request of the Inspector of Police Ex. P13, the same was sent under letter of Judicial Magistrate No. I, Karur, under Ex. P14. P. W. 14-the Investigation Officer after sending the seized material objects to the learned Judicial Magistrate Court and after examining the witnesses and completed the investigation, filed the final report as against the accused under Sections 450, 302 r/w and 394 r/w 397 I.P.C.

During trial, in order to prove the charge against the accused, on the side on the prosecution, 13 witnesses were examined and 39 documents were marked besides M. Os. 1 to 10.

When the accused were examined about the incriminating evidences adduced against him u/s 313(1)(b) Cr.P.C, the same was denied. Though the accused intended to examine witnesses, later they did not choose to examine any witnesses.

After full-fledged trial, the learned Sessions Judge, Karur District, Karur, convicted the accused under Sections 302 r/w 34 I.P.C., and Section 392 r/w 397 I.P.C. and awarded sentences and fine as referred to above.

Aggrieved over the same, the appellant/accused Nos. 1 and 2 preferred these appeals before this Court.

This Court heard the submissions of the respective learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the respondent/State.

The point arises for consideration is,

Whether the conviction and Sentences under Sections................302 r/w 34 I.P.C., and Section 392 r/w 397 I.P.C., awarded by the learned Sessions Judge, are not sustainable and liable to be set aside?

The whole case of the prosecution is rest on the circumstantial evidence. To prove the factum of complaint give to Pasupathipalayam police, by the son of the deceased Kunjammal, after ascertaining the facts that the complainant Sankar''s mother Kunjammal was found alive at her residence at Door No. 163-B, Kauvery Nagar, at the time of his visit on the previous date of occurrence i.e., on 24.07.2009, evening at 6.45 p.m., and thereafter on the next day i.e., on 25.07.2009. the door was locked and subsequently at 5.00 p.m.. found that Kunjammal was murdered and her belongings on the body i.e. her gold ornaments were also missing, the cited witness complainant Sankar was examined as P.W.1.

The learned counsel for the appellants in both the appeals submitted that though the said complainant-Sankar, who was not able to speak, was examined in chief in part before the trial Court and Ex.P1-Complaint give by him is also marked after recording his signs only, the prosecution has miserably filed to take steps to fully examine the accused through the assistance of the expert and to give opportunity to the defence counsel to cross-examine the witness and hence, mere marking of the complaint as Ex.P1 through signs of P.W. 1, shall not be a valid evidence in all probabilities and the complaint which is the basic document on which, the F.I.R was registered shall be rejected in total.

A careful perusal of the evidence of P.W. 1, who was examined part in chief, shows that on the date of examination before the trial Court i.e., on 15.09.2010, since P.W.1 was not able to speak, one Selvam, the teacher working in Deaf School was summoned and since his assistance was not fruitful and in order to get the assistance of an Expert, to speak about the evidence of this witness, the case was adjourned even after marking the complaint as Ex.P1 through sings of P.W.1.

Furthermore, the learned counsel for the appellant cited the judgment of the Division Bench of the Rajasthan High Court in a case namely Darshan Singh alias Darshan Lal Vs. The State of Rajasthan, , where in it was held that the evidence of witness recorded through the assistance of her father by the court, without getting the assistance of the Expert, is inadmissible and the conviction cannot be sustained on the testimony of such witness. Relevant Paragraph No. 14, is re-produced hereunder:

...14. In the instant case, the learned trial Court did not make any effort to ascertain prelims like her intelligence, the understanding of oath, capacity to communicate by writing irrespective of the fact that application was made by the witness herself to arrange for an expert, no efforts were made in this direction. Instead he on his own by deciphering the gesture of the witness proceeded to record the statement. There is nothing to show to what extent her father P.W. 1 Jaswant Singh extended assistance in recording of her statement. It appears that her statement has been recorded with his assistance, on this count alone her statement cannot be admitted in evidence. It is not in dispute that P.W.1 Jaswant Singh participated during the investigation and also appeared as a witness in the same trial. It appears from her statement that she had written telephone number of her father on a paper in English. If, it is so, she could have been asked to give her statement in writing, otherwise with the help of expert. We are of the view that the learned Judge having not taken the requisite precautions in recording the statement of a deaf and dumb witness, rendered the statement inadmissible. Thus, the conviction of the appellant cannot be sustained on the testimony of P.W.16 Mst. Geeta.

As rightly pointed out above, in the case on hand except in mere marking of Ex. P1 - complaint in chief through P. W. 1 nothing culled out from the mouth of P.W. 1 of course through the assistance of the expert witness. After referring the judgment cited, we hold that such a piece of evidence on record is inadmissible.

No doubt, P.W. 2-Sivakami, the daughter of the deceased Kunjammal, has deposed that she visited her mother''s residence at Door No. 163-B Kauveri Nagar, I-Street, on the previous date of occurrence i.e., on 24.04.2009 evening at 7.00 p.m., and found that her mother was wearing M.O-1 and M.O-2 chain and stud and also came to know that her mother was murdered and the death not occurred to her naturally.

On the side of the prosecution, one retired Inspector, who was in service on 25.7.2009 in Finger Prints Expert Wing at Karur, was examined as P.W-6 and he deposed that on the date of occurrence, at the request of the Inspector of Police, night at 7.30 hours, he went to the occurrence place and recorded six finger prints found in the steel cot and steel bureau and also took photographs and out of which, four related to the deceased and the two related to third parties and noted same as P-1 and P-2 Furthermore, this witness on 27.06.2009, received the finger prints of two suspected persons from the Pasupathipalayam Police Inspector and on comparison, he found that the finger prints tallied with the accused and he also prepared report Ex. P8. The finger print recorded from the cot i.e., P-1 tallied with the finger print of Sathishkumar and the finger print recorded from the bureau tallied with the finger print of Praveen and through him the finger print report for the first accused and the second accused were marked as Ex. P11 and P12.

In the Cross-examination, P.W.6 very categorically admitted that the characteristic and the reasoning report even though available, the same could not be marked in this case since the copy of the same are not furnished to the accused. It is also not disputed that the said opinion and reasoning report, with regard to the accused Nos. 1 and 2, are not furnished to the accused and even though on the subsequent hearing i.e., on 30.09.2010, before the trial Court, PW6 was recalled and examined and the above said reasoning and opinion sheet with regard to A-1 and A-2 were marked as Ex. P11 and Ex. P12.

It is not the case of the prosecution that on the date of the arrest of the accused Nos. 1 and 2 26.07.2009, the finger prints of the accused A-1 and A-2 were obtained after due permission from the Magistrate or in the presence of independent witnesses. The Investigation Officer in this case, who was examined as P.W. 14-namely Mohandoss very categorically deposed that on 25.07.2009, while he was working as Inspector at Pasupathipalayam Police Station, after receipt of the F.I.R., from the Sub-Inspection of Police Kathirvel, started investigation in this case and went to the occurrence place and also made a requisition to the Finger Print Expert to come to the occurrence place and they have also in rum collected the finger prints from the occurrence place. Nowhere, the Investigation officer has deposed that on the date of arrest of the accused Nos. 1 and 2, i.e., on 26.07.2009, he obtained finger prints in the presence of the witnesses or he written order from the Judicial Magistrate. The learned counsel for the appellant submitted that as per the provisions of Section 6 of the Identification of Prisoners Act, 1920, the order of the Magistrate is required to get the accused''s specimen finger print or photographs and there is clear violation of the above provision and cited the Judgment of the Madras High Court in a case namely K. Dhanasekaran v. State. (2003) MLJ (Crl.) 217. The relevant Paragraph No. 8 is reproduced hereunder:

..8. It is clear that in the light of the observation made in order to dispel suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence, it is desirable to get the specimen signatures from the accused before or under the order of a Magistrate. Admittedly, in our case, the Inspector has not obtained permission or any order from the Magistrate concerned to get the signature from the accused as well as P.W.1 for sending the same to expert''s opinion.

Moreover, the learned counsel for the appellant, submitted that the Finger Prints photographs taken as well as the reasoning and opinion sheet for the conclusion arrived at by the Expert, which are marked as Exs. P11 and P12, were not supplied to the accused ant thereby due opportunity was not given to the accused and furthermore, added that the report of the Finger Print Expert Ex. P8 filed subsequently, without furnishing copies of reasoning and opinion sheet Ex. P11 and P12, is not a valid evidence and cited the judgment of the Division Bench of the Gujarat High Court in Pravinkumar Lalchand Shah v. State of Gujarat and another, 1982 Cri. L1 Page 763 and the judgment of the Division Bench of our High Court in a case namely Rajendran v. State by Ramanayakenpalayam Police Station. 1993 MLJ (Cri.) 339.

In 1982 Cri. L.J. page 763 (cited Supra), it was held as follows:

.. 17. In view of the decisions quoted above, we feel that it should not be the prosecution alone who should have the benefit of scientific method and we feel that the accused also must have that benefit and in order to have that benefit and to give him fair opportunity of defending himself, we consider that the enlarged photographs area must and we also consider that because the State handwriting expert has based his opinion and the reasons for his conclusion after perusing the enlarged photographs and also that because the enlarged photographs will be necessary to aid the accused and also the Court for coming to the proper conclusion about the handwriting, those enlarged photographs can be said to be the documents on which the prosecutions proposes to rely and therefore we think that those documents must be available to the accused before the State handwriting expert steps into the witness box or at least to be available to the accused free of cost during the trial to get help from his expert, we are conscious that the duty of giving copies to the accused is now on the Court and a time may come when the Court will be required to give copies but he Court will be doing it with the assistance of the State and the state should never consider the question of expenses while affording an opportunity to the accused to defend himself properly. We are observing this mainly because at some stage during the trial in the lower court it was stated that the enlarged photographs would cost as much as Rs. 2,000 and the State would be required to spend for that. This can never be a consideration before a Court who the question of sufficient opportunity to the accused to defend himself in involved. Nor should the court deter from coming to as judicious conclusion on the point of dispute merely because the agency of the court would be required to supply those copies. The entire Endeavour shall have to be made by the state to facilitate the observance of the procedure enacted by the Criminal interpretation made by the Court from time to time.

In 1993 MLJ (Cri.) 399 (cited supra), it was held as follows.:

...25. And above all F.P. Expert''s report Ex. P23 is bereft of any details. In fact, contrary to the claim of PW. 14 F.P. Expert, it is not a report at all. This only purports to be a communication dated 20.08.1985 from single Digit Finger Print Expert who compared the photographed chance prints developed at the scene of crime concerned, reports that the chance prints developed on an ever silver tumbler are found identical with the right ring and left index finger prints respectively of the above side accused Rajendran, whose finger print slips were received by the bureau. The chance print developed on the door of the inner locker of the steel bureau is also found identical with the left thumb finger print of the same accused. The F.P. slips of Rajendran are retained here." This letter does not furnish any further date as to how the Expert had arrived at his conclusion. The report of the F.P. Expert without furnishing the reasons for his conclusion, is of no value.

In the Public Prosecutor v. Virammal, is L.W. 663, a Division Bench of this court disapproved the attitude of the lower Court which was in effect a refusal to exercise its own judgment on the finger prints at all under an attempt to discredit the evidence of the F.P. Expert of general grounds. It pointed out that that attitude and refusal may have been due to its reluctance to enter into what is generally described as the ''science'' of fingerprints or to come to close quarters with the evidence of a person described as ''an expert''. But in face there is nothing in the so-called science of finger prints or the qualifications of an expert in it, which need have deterred the lower Court form applying its own magnifying glass or its own eyes and its own mind to the evidence and verifying the result submitted to it by the witness. Horwill, J. has held in The Crown Prosecutor Vs. Gopal alias Malayalathan, that the Court is not bound to accept the evidence of a F.I.P. Expert even though there are no special reasons for not accepting it. It is certainly proper for the Court to satisfy itself by personal examination that the finger impressions of the accused and the disputed impressions of the accused and the disputed impressions are identical. While dealing with the evidence of an expert witness the Court should ask the expert to explain in Court the reasons for his opinion. It is only after hearing those reasons in detail that the Court would be in a position to express a sound opinion whether or not the expert''s opinion is satisfactory. In Chandrasekar alias Chandran v. State, 1989 L.W. (Crl.) 314, Arunachala, J. found that the opinion offered by a F.P. Expert had been done in a haphazard manner without application of mind on all the important features which could form the basis of rendering a safe and acceptable opinion. This passage occurring in the judgment of the learned Judge may be usefully extracted:

H. R. Hardless in his book on ''Handwriting and Thumb Print Identification and Forensic Science " published in 1970 has observed that the core and delta cure the important features in an impressions and the ridges in all impressions forms patterns. M.K. Mehta in is book on "The Identification of Thumb Impression and the Cross Examination of Finger Prints Experts'' published in 1959, has definitely stated that to begin with the patterns should be examined first, for, if the patterns are different it is conclusive proof that the impressions are different. The same author has also observed that it was not uncommon for Experts to manipulate the difference in such a manner, especially in blurred impressions, as to lead to the findings recorded by them. H.R. Hardless in his book (quoted above), on the aspect of ''Points which prove Non-Identity'' of two impressions and about the differences in configuration of ridges within the pattern area, emphasizes the need for both the impressions being clear and not blurred. As regards the non-identity, according to Hardless, even one major point of difference would be sufficient to exclude the identity and one of the major points of difference is the presence of a ridge characteristic in one print while in the other impression such characteristic is absent.

Sec. 45 of the Evidence Act envisages the Court to form an opinion as to identity of a finger impression and for that purpose the opinion upon that point of persons specially skilled in questions as to identity of finger impressions are relevant. And it goes without saying that no such conclusions are possible without the Expert indicating the reasons for his opinion. So in the absence of reasons, Ex. P-23 serves no purpose.

In the above judgment cited, it was held that necessary chance print collected from the scene of occurrence and as well as development photographs at the expenditure of the state is required to be supplied to the accused to effectively defend the case by the accused and moreover, the more report without furnishing the reasoning or opinion sheet has no evidential value.

It is not disputed that in the present case, reasoning sheet as well as opinion sheet were not furnished to the accused and also as rightly pointed out that the Finger Prints of the accused Nos. 1 and 2 were not obtained after due orders obtained from the concerned Magistrate and hence, it is to be held that failure on the part of the prosecution in this aspect seriously prejudiced the valuable right of the accused and the fingerprints obtained from the accused without following the provision as contained u/s 8 of Identification of Prisoners Act, 1920, ware fatal to the case of the prosecution.

Based on Ex. P1 complaint given by P.W. 1, the Sub-Inspector of Police P.W. 8-Kathirvel on 25.07.2009, registered F.I.R., E.P. 10, on the file of Pasupathipalayam Police Station in Crime No. 623 of 2009 under Sections 302 and 380 I.P.C., and based on the F.I.R. registered, P.W. 14, the Investigation Officer, arrested A-1 and A-2 on 26.07.2009 at 1.00 p.m., near industrial estate bus-stop.

It is also the case of the prosecution that on the basis of the voluntary confession given by A-1 in the presence of Village Administrative Officer and Village Assistant, recovery of material objects were seized and to prove that voluntary confession was given by A-1 and A-2, the confession attesting witness - Thangaraj was examined as P.W. 10. P.W.10-Thangaraj though deposed that on 26.07.2009 afternoon at 1.30 hours in his presence as well as Village Assistant''s presence, the Inspector of Police, enquired the present accused A-1 and A-2 at industrial estate bus-stand, this witness did not whisper anything about the voluntary confession given by both A-1 and A-2 and the admissible portion of such provision given by A-1 and A-2, which lead to recovery of material objects. Mere marking of athatchi mahazar Ex. P16 for recovery of M.O.2-Key with key-chain and athatchi mahazar for seizure of M.O.1-5 1/2 sovereign gold chain- Ex. P18, athatchi mahazar- Ex. P19, for seizure of gold stud-M.O.2. and athatchi mahaar -Ex. P20 for seizure of cell phone from the first accused and athatchi mahazar Ex P21 for seizure of cell phone from second accused, shall in no way support the case of the prosecution.

No. doubt, there is solitary evidence of P.W. 14, the Investigation Officer, to prove the voluntary confession of the accused, which were marked as Ex. P28 (A-1) and Ex. P29 and E.P. 32 (A-2). Another cited attesting witness namely subbaiah was also not examined on the side of the prosecution, to establish and to prove that the present accused while examination by Investigation Officer gave voluntary confession and based on such independent valuable evidence of confessions, such recoveries were made.

The learned counsel for the appellant pointing out the above solitary evidence of the Investigation Officer P.W. 14 about the said voluntary admissible portion of confession given, submitted that in a case which rest on the circumstantial evidence, the chain of evidence in connecting the accused shall be complete and there shall not be any break and even the mere recovery of the material objects, shall nor conclude the offence committed by the accused and cited the judgment of the Honourable Supreme Court in a case namely Mustkeem @ Sirajudeen v. State of Rajasthan, (2012) 1 MIJ (Crl) 151 (SC)

For better appreciation of the decision arrived at in the cited judgment, the following paragraphs are re-produced hereunder:

...24. In fact, the recovery of the weapons on disclosure of the appellants itself becomes doubtful. The witness of Recovery Memo P.W. 1- Mohd. Ayub Khan was declared hostile and another witness P.W. 10-Chittar admitted that signatures were obtained on the memos and annexure at the police station itself. It is also pertinent to mention here that P.W. 1 -Mohd. Ayub Khan was residing 4 Kms. Away from the place of recovery and P.W. 10- Chittar was residing 8 kms. away from the place of recovery and were also declared hostile. Prosecution filed to establish as to why none of the local persons were called to be the witness. The conduct of the prosecution appears to be extremely doubtful and renders the case as concocted, to falsely implicate the appellants. Recovery memos also reflect that there were overwriting on the same which has not been explained by P.W. 16-Diwakar Chaturvedi (Investigating Officer). He admitted that memos and annexures were prepared in his own handwriting but also admitted in his cross-examination that the same were in a different handwriting. This lacuna should have been explained by the prosecution more so when the whole case rested only on circumstantial evidence. Thus looking to the matter from all angles we are of the considered opinion that it would not be safe and proper to hold the appellants guilty for commission of offence.

It is too well settled in law that where the case rest squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocuous of the accused or the guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be decided on the touchstone of law relegating to circumstantial evidence, which has been well settled by law by this Court.

In a most celebrated case of this Court Sharad Birdhichand Sarda Vs. State of Maharashtra, , some cardinal principles regarding the appreciation of circumstantial evidence have been postulated whenever the case is based on circumstantial evidence following the features are required to be compiled with. It would be beneficial to repeat the same salient features once again which are as under:

(i) This Circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ''may be'' fully established,

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(iii) The circumstance should be of a conclusive nature and tendency.

(iv) They should exclude every possible hypothesis except the one to be proved, and

(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Furthermore, to establish the case of the prosecution, the cited witness namely Nagaraj was examined to prove that A-2 pledged the stud at 25.07.2009. But, this witness did not whisper anything about the pledge made by A-2 as well as identification of A-2 and the recovery of such golden studs from the shop and thereby, he was treated as hostile. Even then, in the cross-examination, nothing called out to support the case of the prosecution.

No doubt the doctor who conducted postmortem on the body of Kunjammal at the request of the Inspector of Police, has deposed that she has noted these injuries on the body and through her post-mortem certificate was also marked as Ex. P7 with the opinion that the deceased would appear to have died due to asphyxia. Absolutely, there is no evidence to connected the accused with the crime as well as the material objects seized i.e., god ornaments and in the light of the same, the above expert opinion shall in no way support the case of the prosecution.

The salient features as pointed out in the judgment 1 to 5, are missing in this case can moreover in the light of no valid evidence to connect the accused to the valuable material objects seized and marked as M.Os. 1 and 2, we hold that the prosecutions has miserably filed to establish the case on hand, which raised on the circumstantial evidence. In the result, these Criminal Appeals are allowed and the conviction rendered against the appellants/accused Nos. 1 and 2 u/s 302 r/w 34 I.P.C., and Section 392 r/w 3971. P.C., as well as the sentences awarded there under by the trial Court in S.C. No. 14 of 2010, dated 07.12.2010, are set aside. The appellants/accused Nos. 1 and 2, are acquitted of the charges levelled against them and they are directed to be set at liberty forthwith unless their presence is required in connection with any other case. The fine amount if any paid by them will be refunded to them.