JUDGMENT : ( 1. ) IN this appeal, the appellant Chandrabhan has challenged his conviction under section 302 of the Indian Penal Code for committing the murder of Sanatkumar on 19-4 1976 for which he was sentenced to undergo imprisonment for life. The appellant was also charged under section 377 of the Indian Penal Code for committing carnal intercourse against the order of nature with the deceased, but he was acquitted of the same. ( 2. ) BHAGWANDAS (P. W. 8) is a teacher in the Muktanand Sanskrit vidyalaya at Kandeli, Narsimhapur. The deceased Sanatkumar was a student of this Institution for the last three years. Hiralal (P W. 2) was a College student and lived in the room which was also occupied by the appellant. Hiralal and the appellant Chandrabhan had one key each of the same lock. Onkar (P. W. 9) was also a College student having secured supplementary in the examination. Jivanlal (P. W. 10) is the friend and Ramdayal (P. W. 12) is the brother-in-law of Onkar (P. W. 9 ). Bhawani Prasad (P. W. 3) is the cousin of Hiralal (P. W. 2 ). ( 3. ) THE room occupied by the appellant and Hiralal (P. W. 2) was 10x 10. From this room there is a Pan Thela of Kalloo at a distance of 93. From this room, there is a Chabutra of Shankarji at a distance of 26. Nearby, there is a mercury tube the light of which falls on the Chabutra and the surrounding area. The Sanskrit school is at a distance of 470 from the room of Hiralal (P. W. 2 ). ( 4. ) ON 18-4-1976, Hiralal (P. W. 2) had gone to Village Deori to bring his sister, leaving the appellant in this room. Thereafter on 19-4-1976, the deceased was seen in the company of the appellant at the Pan Thela of kalluram (P. W. 5) and then at other places ultimately reaching the room of the appellant. It is alleged that while inside the room, the appellant committed carnal intercourse with the deceased against the order of nature with the result that the deceased attempted to raise a hue and ( cry to prevent which, the appellant strangulated him and thereafter, after wrapping his dead body into clothes, placed it on the cycle and slipped away alone being noticed by Gulab (P. W. 6) and others. There after the appellant contacted Onkar (P. W. 9 ). At that time, the appellant was nervous. He took Onkar (P. W. 9) to hit room, asked him to write the letter Ex. P-3 and thereafter made an extra judicial confession to him that he had committed carnal intercourse with the deceased with the result that he began to shout and, therefore, he pressed his throat and killed him. On being questioned by Onkar (P. W. 9) as to why he had made him to write the letter Ex. P-3 the appellant stated that he had done so because the letter being not in his handwritings will not connect him with the. murder of Sanatkumar. Thereafter the appellant and the deceased were not seen, but the room of Hiralal (P. W. 2) was closed from outside. ( 5. ) ON 22-4-1976, Hiralal (P. W. 2) returned back from home and came to his room along with Bhawaniprasad (P. W. 3) and opened the doors. A foul smell emanated from inside the room. He saw blood inside the room with the articles scattered. He also saw that a bundle was kept on the cycle. He went to the police station and lodged a report which was recorded in the roznamcha sanha No. 1137, dated 22-4-1976 of which Ex. D 1 is the true copy. ( 6. ) SUB-INSPECTOR Maheshkumar Dube (P. W. 25) went to the room, took the photographs of the place of occurrence and found the letter Ex. P-3 lying inside the room which he seized as per seizure memo Ex. P-2. He seized the cycle, coconut rope tied over the dead body of Sanatkumar with other clothes as per seizure memo. Ex. P-1 He also seized the letter Ex. P-4 dated 19-4-1976 written by the appellant to Hiralal (P. W. 2) as per seizure memo. Ex. P-5. From Onkar (P. W. 9), a copy was seized as per seizure memo Ex. P-6 on 26-4-76. ( 7. ) AN inquest was held over the dead body of Sanatkumar as per inquest report Ex. P-23. ( 8. ) DR. B. M. Agrawal (P. W. 18) performed the autopsy on the dead body of Sanatkumar on 23-4-1976 and as per report Ex. P-29, found that the body was in an advanced stage of decomposition, Rigor mortis had passed off completely. Tongue was swollen and protruding between the teeth. P-23. ( 8. ) DR. B. M. Agrawal (P. W. 18) performed the autopsy on the dead body of Sanatkumar on 23-4-1976 and as per report Ex. P-29, found that the body was in an advanced stage of decomposition, Rigor mortis had passed off completely. Tongue was swollen and protruding between the teeth. Eyeballs were swollen and completely out of sockets. Scrottum was ballooned up. There were no pubic or axillary hair There were blisters all over the body and skin had peeled off at places. Skin was completely peeled off from right leg. Blood-like fluid was coming out from both eyes. There were subcutaneous ecchymosis and little blood-clots on the neck. In the opinion of Dr. Agrawal, death occurred due to strangulation three or four days prior to his examination of the dead body. Dr. Agrawal had also consulted Dr R. H. Tiwari (P. W. 23)who stated on the basis of the positive findings in the post mortem examination that death occurred due to strangulation. ( 9. ) DR. Hariom (P. W. 17) examined the appellant on 29-4-1976 and as per report Ex. P-28, opined that the appellant was fit to have sexual intercourse. Dr. Hariom advised ossification test for determination of the age of the appellant. ( 10. ) DR. G. N. Phadke (P. W. 19) took the skiagrams of the appellant on 30-4-1976 and as per report Ex. P-30, opined that the appellant was over 19 years and below 25 years of age. ( 11. ) EX P-40, the report of the State Examiner of questioned documents, after comparison of the specimen handwritings, disclosed that the letter Ex. P-3 was written by Onkar (P. W. 9) and the letter Ex. P-4 by the appellant. ( 12. ) EX. P-104, report of the Chemical Examiner, shows that the earth seized from the spot, open shirt and paijama seized from the appellant were stained with blood. Since the clothes of the appellant were not fit for Serological examination, they were not sent to the Serologist. Ex. P-105, report of the serologist, shows that the open shirt and paijama of the deceased were stained with human blood, while blood-stains on the earth were disintegrated and their origin could not be determined. ( 13. ) THE appellant abjured his guilt and disowned everything. Ex. P-105, report of the serologist, shows that the open shirt and paijama of the deceased were stained with human blood, while blood-stains on the earth were disintegrated and their origin could not be determined. ( 13. ) THE appellant abjured his guilt and disowned everything. He stated that he was falsely implicated by Hiralal (P. W. 2) and Onkar (P. W. 9) and that he was at Narsimhapur on 19-4-1976. ( 14. ) THE points for decision in this appeal are : (i) Whether Sanatkumar is dead and whether he met with a homicidal death ? (ii) Whether the circumstances relied upon by the prosecution are sufficient to connect the appellant with the murder of Sanatkumar ? ( 15. ) THERE is ample evidence on record to establish that Sanatkumar who was seen alive on 19-4-19"6, was thereafter not seen alive and his dead body was found tied on the bicycle in the room of Hiralal (P. W. 2 ). An inquest was held over his dead body as per inquest report Ex. P-23. Bhagwandas (P. W. 8) who is a teacher in the Sanskrit school of which the deceased was a student, saw the dead body and recognized it to be that of Sanatkumar. We have, therefore, no doubt that Sanatkumar is dead. ( 16. ) SHRI Rajendersingh, Advocate for the appellant, however, contended, that the death of Sanatkumar was not homicidal. He stated that the features found on the dead body were the result of putrefaction and he relied on the observations of Modis Medical Jurisprudence and Toxicology, 19th edition, at page 128 as under:- "from eighteen to thirty-six or forty-eight hours after death, the gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distorted, the eyes are forced out of their sockets, the tongue is protruded between the teeth, and the lips become swollen and everted. A frothy, reddish fluid or mucus is forced from the mouth and nostrils. " In this connection, we have to read the opinion of Dr. Agrawal (P. W. 18 ). In para 4 of his opinion, he has stated that the tongue was swollen and had protruded out. It was in between the teeth. Eyes were swollen and were out of the sockets. " In this connection, we have to read the opinion of Dr. Agrawal (P. W. 18 ). In para 4 of his opinion, he has stated that the tongue was swollen and had protruded out. It was in between the teeth. Eyes were swollen and were out of the sockets. Though there was no external enjury, he found signs of pressure on the neck with ecchymosis. He also found small particles of blood collected at this place. In his opinion, death occurred due to asphyia three or four days prior to the examination as a result of pressure on the throat. In cross-examination, he stated that ecchymosis alone is not the conclusive factor to determine whether the death occurred due to strangulation or throttling. In para 14, he gave a positive opinion that death occurred due to pressure on the neck and resultant suffocation. No doubt his opinion is somewhat vascillating, yet there is absence of mention that there was possibility of the death due to pressure on the throat. No such possibility has been mentioned in the post mortem report. Thus the symptoms found by him in the post mortem, i. e. the protruding of the tongue, coming out of the eye balls from the sockets and ecchymosis on the neck with small particles of blood collected there all indicated that death occurred due to throttling or strangulation. ( 17. ) IN Modis Medical Jurisprudence and Toxicology, 19th edition, page 150, it is mentioned that very often there are abrasions and ecchymosis in the skin adjacent to the marks. In some cases, the mark in the neck may not be present at all, or may be very slight, if the ligature used is soft and yielding like a stocking or scarf, and if it is removed soon after death. A careful search of the neck may reveal minute fibres and any other material from the ligature. In our case, there is not only the protruding of the tongue and the coming out the eye balls from the sockets, but there is flowing of blood like liquid out of both the eyes and there were small particles of blood collected near the place of ecchymosis indicating pressure on the throat. ( 18. ) WITH all his vascillation in para 14, Dr. ( 18. ) WITH all his vascillation in para 14, Dr. Agrawal (P. W. 18) made a categorical statement that death occurred due to suffocation and in answer to question No. 15, he stated that, he was definite that death occurred due to suffocation and on no other cause. ( 19. ) NO doubt there is discrepancy whether Dr. Agrawal consulted dr. Tiwari, Civil Surgeon (P. W. 23) or not, but it is apparent that Dr. Tiwari (P. W. 23) saw the findings of the post mortem examination and in para 4, opined that the deceased died because of suffocation caused by pressure on the neck. In para 8 of his deposition, Dr. Tiwari has given reasons for his opinion. ( 20. ) TAKING the two opinions together in the light of the observations of modi, we are of the view that the deceased died of throttling or strangulation and thus his death was homicidal. We are definitely of the view that the deceased did not meet his end either in natural way or by accident, but his end came due to violence. ( 21. ) THERE is no eye witness to the Occurrence and the case purely depends for its success on circumstantial evidence. We will first state the law regarding circumstantial evidence. In Deonandan Mishra v. State of Bihar, AIR 1955 SC 801 . , it is held as under: "where there is no eye witness to the murder and the case against the accused depends entirely on circumstantial evidence, the standard of proof required to convict the accused on such evidence is that the circumstances relied upon must be fully established and the chain of evidence furnished by these circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. It is true that in a case of circumstantial evidence, not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. It is true that in a case of circumstantial evidence, not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation and he offers no explanation which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. " ( 22. ) IN Khashaba Maruti Shelke v. The State of Maharashtra, AIR 1973 SC 2474 . it is held as under: "in order to base the conviction of an accused on circumstantial evidence, the Court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused. If, however, the circumstantial evidence admits of any other rational explanation in such an event, an element of doubt would creep in and the accused must necessarily have the benefit thereof. The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused. " Also see Chandmal and another v. State of Rajasthari, AIR 1976 SC 917 . and The State of Punjab v. Bhajansingh and others, AIR 1975 SC 258 . ( 23. ) KEEPING in view the law as stated above, we will proceed to discuss the various circumstances relied upon by the prosecution to connect the appellant with the murder of Sanatkumar. These circumstances mainly consisted of the movements of the. appellant with the deceased in the evening and night of 19-4-1976, then the entry of the appellant and the deceased together in the room and thereafter the appellants coming out alone from the room. ( 24. ) WE will refer to the evidence of Hiralal (P. W. 2) who was the occupant of the room along with the appellant. He stated that he had gone away to bring his sister on 18-4-1976 leaving behind the key of the room with bhawaniprasad (P. W. 3 ). ( 24. ) WE will refer to the evidence of Hiralal (P. W. 2) who was the occupant of the room along with the appellant. He stated that he had gone away to bring his sister on 18-4-1976 leaving behind the key of the room with bhawaniprasad (P. W. 3 ). Thereafter, when he came on Thursday, he found foul smell emanating from the room with blood lying inside. He, therefore, went to the police station and lodged the report which was recorded in the roznamcha sanha of which Ex. D-1 is the true copy. ( 25. ) IT is pertinent to note that in this report Ex. D-1, Hiralal (P. W. 2)did not mention that the letter Ex. P-3 was found lying inside the room, though in para 5, he stated that it was lying near the door. In para 11, he admitted that when he opened the door, there was no letter lying and that explains the significant omission in his report Ex. D-1 about existence of the letter inside the room. It is, therefore, clear that the letter Ex. P-3 was subsequently inserted in the room. ( 26. ) WE are, however, doubtful whether Hiralal (P. W. 2) had really left the room and had gone to bring his sister. In para 9, he admitted that there was a gap of 6 or 7 days in his examination and, therefore, he went to the village, a conduct highly unnatural, because during the intervening gap, a student will stay in his room to prepare himself for studies, rather than move about and that too without informing his parents. Though he stated that he had gone to the bus stand, yet he did not get the bus, returned back and found the appellant inside the room, but this fact is missing in his report Ex. D-1. His statement that he had gone to Deori to bring his sister appears to be false, because in para 14, he admitted that he had not brought his sister. ( 27. ) THE witness had explained that he had given the key of the room to bhawaniprasad (P. W. 3) and, therefore, he went to Bhawaniprasad and brought him to the room to open it. ( 27. ) THE witness had explained that he had given the key of the room to bhawaniprasad (P. W. 3) and, therefore, he went to Bhawaniprasad and brought him to the room to open it. The reason given for this was that he was very hungry and had brought Bhawaniprasad (P. W. 3) who is his cousin, to cook the meals in his room. In para 11 he admitted that Bhawaniprasad was cooking meals in his house and, therefore, if he was very hungry, he would have asked him to provide food for him rather than bringing him to his room to prepare food there. ( 28. ) READING the evidence of Hiralal (P. W. 2), we do not feel inclined that he had left Narsimhapur on 18-4-1976, or that he was absent from narsimhapur on 18-4-1976. ( 29. ) IT is pertinent to mention here that in Ex. D-1,1 there is a reference to a pair of chappals lying inside the room. These chappals were seized as per seizure memo, Ex. P-2. The prosecution led no evidence as to who was the owner of these chappals. They could even belong to Hiralal (P. W. 2) and if evidence was led on this point, it could have disproved the absence of Hiralal (P. W. 2) on 19-4-1976. Even otherwise, in the letter Ex. P-3, there is reference to one Ramgopal who is said to be the real culprit. There has been no investigation whether these chappals could belong to Ramgopal or not. In Ex. D-6, case diary statement of Bhagwandas (P. W. 8), there is reference that this ramgopal was also absent from 19-4-1976. Since the letter Ex. P-3 placed the responsibility for the murder of Sanatkumar on Ramgopal and since he was also absent on 19-4-1976, it was incumbent on the prosecution to investigate whether the chappals found inside the room belonged to Ramgopal or whether ramgopal had any relation with the incident on the relevant night. ( 30. ) BHAWANIPRASAD (P. W. 3) stated that on 19-4-1976, the deceased sanatkumar was telling him that he would like to go to picture. Sanatkumar used to sleep on the chabutra. His evidence in para 3 does not prove the presence of the deceased near the Chabutra at about 9 or 9. ( 30. ) BHAWANIPRASAD (P. W. 3) stated that on 19-4-1976, the deceased sanatkumar was telling him that he would like to go to picture. Sanatkumar used to sleep on the chabutra. His evidence in para 3 does not prove the presence of the deceased near the Chabutra at about 9 or 9. 15 p. m. Then he stated that he accompanied Hualal (P. W. 2) to the room and on opening the doors, a cycle with a bundle was seen inside the room with foul smell emanating from there. In para 7, he admitted that he remained at the police station for three days. Hiralal (P. W. 2) was also with him. They were interrogated at the police station. He admitted that the Police Sub-Inspector made enquiries from the people of the Mohalla about the incident, but none disclosed anything. This shows that his evidence is practically nil in regard to the appellant being seen with the deceased that evening. ( 31. ) SHRIRAM (P. W. 4) stated that the deceased went to the cinema with him at about 6 p. m. from where they returned at about 9-30 p. m. Thereafter the deceased told him that he was going to the house of the appellant. This statement is clearly false, because in cross-examination, he admitted that his teacher was enquiring from him where the deceased had gone and he replied that he had gone home. He admitted that he repeated the statement to the teacher that Sanatkumar had pone home. This statement falsified his earlier statement that the deceased told him that he was going to the house of the appellant. If this was correct, then there is no obvious explanation why shriram told the teacher that the deceased had gone home and why he did not disclose that the deceased went away after saying that he was going to the house of the appellant. ( 32. ) KALURAM (P. W. 5) runs a Pan Thela. He stated that on 19-4-1976, at 10 p. m. , the appellant came to his Pan Thela for betal leaves and bidis. At the same time the deceased also came there and the appellant offered a betal leaf to him. Thereafter talking together, they went inside the room of the appellant and were studying till he closed his Pan Thela. Next morning, he saw the room locked. At the same time the deceased also came there and the appellant offered a betal leaf to him. Thereafter talking together, they went inside the room of the appellant and were studying till he closed his Pan Thela. Next morning, he saw the room locked. In para 5, he stated that he remembered this fact because of the unusual event of death of Sanatkumar. In para. 6, he admitted that he did not tell the police that he had seen the appellant and the deceased on 19-4-1976 going into the room of the appellant. He gave a funny explanation that be himself was afraid that he may not be involved in the incident and, therefore, kept his shop closed for 2 or 3 days. He was confronted with his case diary statement Ex. D-4, portion A to A where he stated that he was nervous and, therefore, he had disclosed nothing. ( 33. ) THUS immediately after the dead body was discovered inside the room and inspite of interrogation by the police, he did not disclose at the earliest opportunity that he had seen the appellant and the deceased going together inside the room. His statement that be had seen the deceased and the appellant going inside the room is patently false. His further statement that he kept his shop closed because of fear is again false, because he had not stated like this to the police, (Ex. D-4 ). His statement also becomes unreliable, because the dead body was discovered on 22-4-1976 and in spite of arrival of the police that day and interrogation, he kept mum for two days. The facts as discussed above, make his evidence totally unreliable and we are not prepared to accept that he had seen the appellant and the deceased going inside the room in the night of 19-4-1976. ( 34. ) GULAB (P. W. 6) stated that at about 11 or 11-15 p. m. on 19-4-1976, he saw light burning inside the appellants room and at that time the door was closed. Then someone extinguished the light and put on a lock. Then he saw the appellant with a bag passing by his side and on being questioned, he kept mum. ( 35. ) THE incident as alleged by the prosecution consisted of the culprit having carnal intercourse with the deceased who raised a hue and cry and then was throttled. Then someone extinguished the light and put on a lock. Then he saw the appellant with a bag passing by his side and on being questioned, he kept mum. ( 35. ) THE incident as alleged by the prosecution consisted of the culprit having carnal intercourse with the deceased who raised a hue and cry and then was throttled. Thereafter the dead body was tied in a bundle with a rope and placed on the cycle and it is preposterous to think that all this was going on when the light was on and the door was open. Moreover, the Chabutra was only at a distance of 26 and any hue and cry or any unusual activity inside the room would have attracted the attention of the witness when the light was on and when the door was open. ( 36. ) IN cross-examination, Gulab (P. W. 6) stated that the Sub-Inspector recorded his statement Ex. D-5 in which at portion A to A, he admitted that because of fear, he disclosed this fact to none and, therefore, his statement in para. 6 that he had disclosed what he had seen to Baboolal and Kalloo is definitely false. Para 7 of his deposition disclosed that no statement was recorded on 22 4 1976 which falsified his assertion that he had disclosed about this immediately after the dead body was found out. Ex. D-5 shows that his statement was recorded on 24-4-1976 and thus for two intervening days, he disclosed nothing. In para 8, he could not explain why thers is omission that the room closed on 19-4-1976 was opened on 22-4-1976. He even did not tell the police that Hiralal (P. W. 2) had not come to the room from 19-4-1976 to 22 4-1976. ( 37. ) SCRUTINISING the evidence of Gulab (P. W. 6) as a whole, we are not inclined to believe that he had seen the appellant emerging out of the room with a bag in his hand. ( 38. ) SOHANLAL (P. W. 7) stated that someone extinguished the light from the room of Byohar Saheb and one man began to pass by the Chabutra when gulab (P. W. 6) called him and then he learnt that he was the appellant. Though in para 2 he stated that he had recognised the face of the appellant, yet he admitted that he had never seen him before. Though in para 2 he stated that he had recognised the face of the appellant, yet he admitted that he had never seen him before. In para 6, he admitted that he had disclosed to none that on 19-4-1976, he had seen the appellant going away or that Gulab (P. W. 6) had given him a call. He also disclosed to none this fact till he was called at the police station and was interrogated either on 23rd or 24th April 1976. In para 7, he contradicted his statement in para 6, that he was called at the police station either on 23rd or 24th April 1976, because he stated that he, Kalloo and Gulab were called at the police station 8 days after the dead body was found out and then he had disclosed everything to the police. We find no explanation why Gulab (P. W. 6) or sohanlal (P. W. 7) did not disclose immediately that they had seen the appellant emerging out of the room or passing by the side of the Chabutra without giving any reply to the call of Gulab (P. W. 6 ). ( 39. ) ONKAR (P. W. 9) is the star witness of the prosecution. He stated that he had gone to attend the second show with Jiwan (P. W. 10 ). The appellant met him at the Pan Thela near the cinema and was nervous. Then the appellant called him and took him to his room. Jiwanlal (P. W. 10) went away to his room and Ramdayal (P. W. 12) opened the door. The appellant then asked him to write a letter and as dictated by the appellant, he wrote the letter ex. P-3. After this the appellant made an extra judicial confession that he had committed carnal intercourse with Sanatkumar who began to shout and, therefore, he had killed him after pressing his throat. ( 40. ) WE find no explanation from the evidence of Onkar (P. W. 9) as to why the appellant approached him in the dead hour of night and asked him to write the letter Ex. P-3. In para 6, he admitted that if he had known about the commission of murder, he would not have written the letter. He admitted that out of fear, he neither refused to write the letter, nor made a hue and cry. ( 41. P-3. In para 6, he admitted that if he had known about the commission of murder, he would not have written the letter. He admitted that out of fear, he neither refused to write the letter, nor made a hue and cry. ( 41. ) THE extra judicial confession appears to be highly improbable, because the appellant got the letter Ex. P-3 written throwing the entire blame on Ramgopal and thereafter it does not stand to reason that he would implicate himself by making the extra judicial confession. In Ex. D-7, there is no reference to the statement attributed to the appellant that he had pressed the throat of the deceased. He admitted in para 4 that he had not disclosed about the writing of the letter Ex. P-3 or about the extra-judicial confession to Ramdayal who is his brother-in-law and Jiwanlal (P. W. 10) who is his friend. He even did not not disclose this fact to his brother who is a kotwar and is expected to make a report. In para 5, he admitted that he had not disclosed about this incident to anyone till he disclosed it to the police. In para 6, he admitted that he had not disclosed about this even to his parents. ( 42. ) IN para 7, Onkar (P. W. 9) stated that the police approached him, interrogated him and brought him to the police station where he was interrogat ed for about an hour. He admitted that he had informed the Sub-Inspector that the appellant had admitted before him that he had come after committing the murder, but such an important statement was not recorded by the Sub-Inspector. Though he admitted that he had told the Sub Inspector about the writing of the letter Ex. P-3, the Sub-Inspector did not record his statement. There is no explanation why the police did not record his statement immediately and recorded it on 26-4-1976. ( 43. ) ON reading the statement of Onkar (P. W. 9), we are convinced that the appellant had made no extra-judicial confession before him. The writing of the letter on 19-4-1976 in the evening also appears to be false, because firstly, after committing murder in the night, the appellant would not go to any person to make an admission of guilt. ) ON reading the statement of Onkar (P. W. 9), we are convinced that the appellant had made no extra-judicial confession before him. The writing of the letter on 19-4-1976 in the evening also appears to be false, because firstly, after committing murder in the night, the appellant would not go to any person to make an admission of guilt. Secondly, he will not get a letter of this type written from a stranger, thus creating evidence against himself. Thirdly, Ramdayal, the room partner, was also sleeping there and in his presence, such a disclosure would be highly unnatural. Moreover, the suppression of such important facts for about 4 days and their non-disclosure even to the Kotwar is a circumstance which completely destroyed the reliability of his evidence. ( 44. ) AS discussed above, the letter Ex. P-3 was not found immediately after the door was opened and there is possibility that it was subsequently prepared and thrown into the room. We are not inclined to accept the evidence of Onkar (P. W. 9 ). ( 45. ) JIWANLAL (P. W. 10) stated that the appellant and Onkar (P. W. 9)met him at midnight and came upto his quarter. Then he went to his room and the appellant, after waking up Ramdayal, went inside the room. It is strange that" he and Onkar went to cinema that very night and never before. Para 5 of his deposition shows that Onkar was also suspected of having a hand in the murder of Sanatkumar. He admitted that the police questioned Onkar who replied that he had not committed the murder and knew nothing. He further stated that the police showed him the letter Ex. P-3 and Onkar (P. W. 9) admitted that he had written this letter. At that time, Onkar did not disclose in his presence that the letter was written at the instance of the appellant who had come to his room. He admitted that prior to interrogation, he had disclosed to none about the incident. His evidence also disproved that the appellant and onkar (P. W. 9) had come together to the room and also disproved the circumstances under which Onkar is alleged to have written the letter Ex. P-3. ( 46. ) SUMERSINGH (P. W. 11) stated that the appellant came to him and enquired about Onkar and he told him that he had gone to the picture. P-3. ( 46. ) SUMERSINGH (P. W. 11) stated that the appellant came to him and enquired about Onkar and he told him that he had gone to the picture. This was on 19-4-1976 at about 11. 45 p. m. His evidence only shows that the appellant may have come to enquire about Onkar (P. W. 9 ). ( 47. ) RAMDAYAL (P. W. 12) admitted that Onkar (P. W. 9) lived with him. Then he stated that on 19-4-1976, Onkar and Jiwanlal had returned from picture along with the appellant Thereafter the appellant and Onkar had entered inside the room. Ramdayal (P. W. 12) admitted that he is the brother-in-law of Onkar (P. W. 9 ). His evidence in para 4 totally disproved the evidence of onkar. According to Onkar, the appellant had come to him with a specific object, i. e. of getting the letter (Ex. P-3) written from him in which there was an avowed attempt to throw the blame on Ramgopal and thereafter making an extra judicial confession. Though Ramdayal is the close relation of Onkar, he did not inform him why the appellant had paid a nocturnal visit at an unusual hour of the night. If Onkar (P. W. 9) was making a truthful statement, it was but natural for him to disclose what happened in the night with the appellant to his closest relations. ( 48. ) WE have scrutinised the circumstances relied upon by the prosecution which mainly consisted of the movements of the appellant, his association with onkar (P. W. 9) and the writing of Ex. P-3 at his instance. We find that the mere movements of the appellant in the night could not provide a conclusive link. The letter Ex. P-3 was not found immediately on opening the door, but appears to have been introduced later on at the instance of Onkar (P. W. 9 ). Perhaps Onkar (P. W. 9) himself was a suspect and may have written the letter subsequently to save his own involvement in the affair. We have also discussed earlier that it has not been established conclusively that Hiralal (P. W. 2) was absent from Narsimhapur on 19-4-1976. Likewise we have discussed that the prosecution did not attempt to establish the identity of the chappals found inside the room. No incriminating articles were seized from the possession of the appellant. ( 49. We have also discussed earlier that it has not been established conclusively that Hiralal (P. W. 2) was absent from Narsimhapur on 19-4-1976. Likewise we have discussed that the prosecution did not attempt to establish the identity of the chappals found inside the room. No incriminating articles were seized from the possession of the appellant. ( 49. ) THE main plank of the prosecution version was that the appellant took the deceased inside the room with a view to commit carnal intercourse with him. There was no intention of committing his murder at that time and the murder came off because the deceased attempted to raise a hue and cry. We find from the prosecution evidence that everything took place when lights were on and the doors were open and though there were many persons on the chabutra, hardly at a distance of few feet, none of them heard any shrieks. Moreover, there is total absence of marks of injuries on the anus of the deceased and the Sessions Judge himself, in para 61 of the judgment, disbelieved that there was any carnal intercourse with the deceased. Besides this, in para 56, the sessions Judge excluded the letter written by the appellant to his friend h. L. Dube as being of any importance. ( 50. ) IN view of the above, we are of the view that the circumstantial evidence falls short of proof and does not provide a continuous and conclusive chain to lead the Court to the inescapable conclusion, that the appellant alone was the culprit. Ex. P-1, the seizure memo shows that the body of the deceased was tied with dulai, dari, paijama, bush shirt, lungi etc. The ownership of these clothes could be ascertained and if traced to the appellant, would have been another incriminating circumstance against him. If these articles belonged to the occupant of the room, then it could be urged that the appellant was not the person who had used another mans articles. This proof is missing in this case. ( 51. ) THE following observations from State of Punjab v. Jagirsingh, Balitsingh and Karamsingh, AIR 1973 SC 2407 . will be helpful in appreciating the circumstantial evidence : "a criminal trial is not like a fairy tale wherein one is free to give flight to ones imagination and phantasy. This proof is missing in this case. ( 51. ) THE following observations from State of Punjab v. Jagirsingh, Balitsingh and Karamsingh, AIR 1973 SC 2407 . will be helpful in appreciating the circumstantial evidence : "a criminal trial is not like a fairy tale wherein one is free to give flight to ones imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not, at the same time, reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. " ( 52. ) THE totality of circumstances relied upon by the prosecution consisted of the movements of the deceased with the appellant and their entry into the room occupied jointly by Hiralal (P. W. 2) and the appellant. The prosecution witnesses who testified to these facts do not disclose them for a sufficiently long time. Persons sleeping on the Chabutra did not hear any noise. The doors were wide open. On the appellants coming out, witnesses saw no blood-stains on his clothes which would have been natural in this case. The letter Ex. P-3 was not found immediately inside the room as is clear from the evidence of hiralal (P. W. 2) para 11, and total omission of it in Ex. D-1. There is total absence of proof of carnal intercourse against the order of nature which according to the prosecution, led to the throttling or strangulation of the deceased. This is introduced through Onkar (P. W. 9) who himself was suspected in the crime, as is clear from para 5 of the evidence of Jiwanlal (P. W. 10 ). D-1. There is total absence of proof of carnal intercourse against the order of nature which according to the prosecution, led to the throttling or strangulation of the deceased. This is introduced through Onkar (P. W. 9) who himself was suspected in the crime, as is clear from para 5 of the evidence of Jiwanlal (P. W. 10 ). It is also highly suspicious and not explainable on the test of probabilities that a person who had successfully achieved his object, would search out a person to write a letter and then leave it into the room. ( 53. ) IN the aforesaid circumstances, we are of the view that the circumstances are not conclusive and unless one permits the human mind to fill in the missing gaps, then number of facts as discussed above, would need explanation so as to avoid the suspicion taking the place of legal proof. ( 54. ) WE are, therefore, of the view that the circumstantial evidence does not displace the innocence of the appellant and is not conclusive to fasten the guilt on the appellant. We are, therefore, of the view that the appellant was wrongly convicted under section 302 of the Indian Penal Code. ( 55. ) FOR the reasons given above, the appeal succeeds and is allowed. Conviction of the appellant Chandrabhan under section 302 of the Indian Penal code and sentence of imprisonment for life thereunder are set aside and he is acquitted of the offence charged with. He shall be released forthwith unless required to be detained in any other case. Appeal allowed.