G. B. PATNAIK, J, J. ( 1 ) THE appellant having been convicted for the commission of offence under section 498a as well as under section 302, I. P. C. and sentenced to imprisonment for life for his conviction under section 302, I. P. C. and no separate sentence having been passed for his conviction under section 498a, I. P. C. has preferred this appeal. It is alleged by the prosecution that on 10. 4. 1986 the appellant killed his wife, the deceased, and threw her dead body in the river Kathajori near Khananagar in the Cuttack town and thereby committed the offence under section 302, I. P. C. It is further alleged that the appellant subjected the deceased who was his wife to cruelty and there by committed the offence under section 498a, I. P. C. ( 2 ) THE prosecution case, in a nutshell, is that the appellant and the deceased were the husband and wife, respectively and they were not pulling on well with each other. P. W. 9 is the sister of the appellant and P. W. 1 is the husband of P. W. 9 and both of them are staying it Cuttack. The deceased was staying with them in their house. The appellant was serving in a private Company. He was also staying in the house of P. W. 1 along with his wife, the deceased. On the date of occurrence, the appellant took his wife from the house of P. W. 1 at 4. 30 P. M. and did not return during the night. So a police station diary entry was made to that effect by P. W. 1. On the next day early morning the said P. W. 1 received information that a dead body of a female was floating in the river Kathajori near Khananagar. He, therefore, went there and could identify the dead body to be that of the deceased Sarojini. He, therefore, went to the Police Station at 7. 30 A. M. on 11/4/1986 and reported the matter. The police then held inquest over the dead body and sent the dead body for post mortem examination. On receipt of the post mortem report, as it was found that the death of the deceased was homicidal in nature, the Deputy Superintendent of Police (P. W. 50) drew up an F. I. R. on his own information (Ext. 1) and started investigation. On receipt of the post mortem report, as it was found that the death of the deceased was homicidal in nature, the Deputy Superintendent of Police (P. W. 50) drew up an F. I. R. on his own information (Ext. 1) and started investigation. On completion of investigation, the charge sheet was filed and on being committed the accused-appellant stood his trial. ( 3 ) THE defense plea was one of denial. ( 4 ) PROSECUTION examined 53 witnesses in all and the defense examine none. ( 5 ) ON the basis of the opinion of the Doctor as indicated in the post-mortem report (Ext. 22), the learned Sessions Judge came to the conclusion that the deceased met a homicidal death. Mr. Dhal appearing for the appellant does not assail the conclusion of the learned Sessions Judge with regard to the homicidal death of the deceased. We have ourselves examined Ext. 22, the Post mortem report. The Doctor has clearly indicated in the said report that the death is due to drowning but on examining the dead body small abrasion spread over the front and right side of the neck of different size had been found. After his to pathological examination of the injuries the Doctor opined that the injuries were ante mortem in nature. The said his to pathological report is Ext. 23. In the premises, as aforesaid, we have no hesitation to confirm the finding of the learned Sessions Judge that the deceased met a homicidal death. ( 6 ) ADMITTEDLY there is no eye witness to the occurrence and the prosecution case hinges upon circumstantial evidence. The learned Sessions Judge relying upon the circumstances established in the case came to the conclusion that it was the accused-appellant who committed the murder of his wife and accordingly convicted him under section 302, I. P. C. On scanning the prosecution evidence, the learned Sessions Judge catalogued the circumstances established in the case in paragraph 13 of the impugned judgment and ultimately same to the conclusion that the said circumstances unerringly point towards the guilt of the accused. The question for consideration in this appeal, therefore, is whether all or how many of the circumstances catalogued have been established by the prosecution through cogent and reliable evidence and the circumstances thus established whether complete the links in the chain so as to bring home the charge of murder against the accused-appellant. It would, therefore, be profitable to extract the circumstances catalogued by the learned Sessions Judge in paragraph 13 of the impugned judgment. TI 13. (a) That the accused and the deceased were husband and wife and their relationship was not good; (b) That the accused used to ill-treat and assault the deceased and wanted to do away with the life of the deceased. (c) That the accused had, a romantic relation with Kalpana Mohapatra (P. W. 16) during the life time of the deceased and gave one gold ring (M. O. I) belonging to the deceased to P. W. 16 and after the death of the deceased he is living with P. W. 16 under the same roof; (d) That the accused and the deceased had a quarrel on the day before the death of the deceased; (e) Although P. Ws. 2 to 7 denied to have seen the accused and the deceased, the very statement of the accused and his friend (P. W. 45) prove that the accused and the deceased were seen together on the bed of river Kathajori at 9. 30 P. M. in the night of 10/4/1986; (f) That the deceased was never seen again after she was with the accused in the night of occurrence and the accused has not offered any explanation where he left the deceased and what happened to her; (g) The full pant of the accused was wet at about 10 to 11 P. M. in the fateful night; (h) That the dead body of the deceased Sarojini was found floating in the water of river Kathajori on 11/4/1986 and the opinion of the doctors was that the death of the deceased was due to homicidal drowning; G) That the accused told P. W. 45 that he left the deceased at the house of P. W. 1, P. Ws. 1 and 9 say that the deceased never returned and so, they lodged a report in the Police Station. 1 and 9 say that the deceased never returned and so, they lodged a report in the Police Station. The prosecution also had sought to be relied upon the alleged extra judicial confession said to have been made by the accused to P. W. 35 but the learned Sessions Judge on scrutiny of the evidence of P. W. 35 discarded the extra judicial confession from consideration. In this Court also the learned Counsel for the State does not rely upon the said extra-judicial confession alleged to have been made by the accused to P. W. 35. ( 7 ) BEFORE considering the circumstances said to have been proved against the accused, it would be appropriate to notice the law relating to circumstantial evidence. For basing conviction on circumstantial evidence it is necessary that all the incriminating facts and circumstances should be fully established by cogent and reliable evidence and the facts and circumstances so established should unmistakably point to one and one conclusion only that the accused person and none other perpetrated the alleged crime. See Hukum Singh v. The State of Rajasthan. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. In a case based on circumstantial evidence no presumption against the accused can be raised unless the circumstances proved are completely incompatible with the innocence of the accused. See Naresh Kumar v. The State of Maharashtra. Further when the evidence against the accused is of circumstantial nature, all the links in the chain must be conclusively established by cogent and unimpeachable evidence. See Karam Singh and others v. State3, Pohalya Motya Valvi v. State of Maharashtrt It has been held by the Supreme Court in several cases that the cumulative effect of the circumstances established should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence. See Mohan Lal Pangasa v. The -State of UP5 and Umedbhai Jadavbhai v. The State of Gujarat6. Bearing in mind the aforesaid principles we will now examine the circumstances found out by the learned Sessions Judge to have been proved in this case and for consideration as to whether those circumstances bring home the charge of murder-against the accused. See Mohan Lal Pangasa v. The -State of UP5 and Umedbhai Jadavbhai v. The State of Gujarat6. Bearing in mind the aforesaid principles we will now examine the circumstances found out by the learned Sessions Judge to have been proved in this case and for consideration as to whether those circumstances bring home the charge of murder-against the accused. ( 8 ) THE first circumstance according to the learned Sessions Judge, is that the accused and the deceased were the husband and wife and their relationship was not good. It is undisputed that they were husband and wife. P. Ws. 1 and 9. who, are the brother-in-law and sister of the accused, have been relied upon for establishing the ill-feeling between the accused and the deceased. P. W. 1 in his evidence stated that the accused and his wife were on very good terms during their subsistence of marriage. The prosecution being permitted by the Court to put leading questions to the witnesses, he has stated that on 9/4/1986 there was some altercation of words between the accused and his wife Sarojini and in the cross-examination by the defense, the witness has stated that the altercation that took place between the accused and Sarojini was an ordinary altercation which usually and frequently takes place between the husband and the wife. This evidence cannot be said to be sufficient for coming to the conclusion that the relationship between the accused and his wife was not good. P. W. 9 is the sister of the accused-appellant. Her evidence does not disclose about any ill-feeling between the accused and his wife. The prosecution on being permitted to put leading questions under section 154 of the Evidence Act to the witness that she has stated before the 1. 0. about the ill-behavior of the accused towards the deceased to which the witness denied, that cannot obviously be taken to be the evidence in the case and, therefore, there is no evidence of P. W. 9 indicating the ill-feeling between the accused and the deceased. P. Ws. 13, 14, 22, 23, 24 and 26 who are all the relations of the deceased, however, deposed that the accused and the deceased were not pulling on well with each other. P. Ws. 13, 14, 22, 23, 24 and 26 who are all the relations of the deceased, however, deposed that the accused and the deceased were not pulling on well with each other. Though these witnesses have not pointedly indicated about the continuous ill-treatment of the deceased by the accused and had narrated about some incident, on scrutiny of the evidence, we are prepared to accept the prosecution case that the first circumstance has been established by the prosecution. ( 9 ) THE second circumstance which the learned Sessions Judge has accepted to have been established is that the accused wanted to do away with the life of the deceased. This circumstance is sought to be established through the letters Exts. 3 and 11 wherein the deceased had written that she was having a bad time with her husband. The prosecution also relies upon the evidence of P. W. 24 who stated that the deceased had told her once that the accused had given her poison. P. W. 24 happens to be the sister of the diced. She has stated in her examination-in-chief that the deceased told her that while they were sleeping in the bed room, her husband; the accused, administered her oath not to disclose any where the thing he proposed to do- in respect of her and on oath being taken by her that she would comply with the request of the accused and would not disclose anything anywhere, the accused gave her poison to take and being oath bound she took poison. This statement is hardly believable as no man howsoever oath bound may be would take poison on being given. Further this witness in cross-examination admitted that she did not disclose this to her parents or to any members of the family as the deceased forbidden to disclose the same. It is difficult for us to accept the evidence of this witness and consequently it must be held that this circumstance has not been established by the prosecution. ( 10 ) THE next circumstance relied upon by the prosecution is that the accused had a romantic relationship with Kalpana Mahapatra (P. W. 16) and he had given the gold ring belonging to the deceased to P. W. 16 and after the death of the deceased the accused was living with P. W. 16. ( 10 ) THE next circumstance relied upon by the prosecution is that the accused had a romantic relationship with Kalpana Mahapatra (P. W. 16) and he had given the gold ring belonging to the deceased to P. W. 16 and after the death of the deceased the accused was living with P. W. 16. That the accused had any romantic relationship with P. W. 16 is denied by P. W. 16 herself. But as some postal pass book belonging to the accused as well as the gold ring belonging to the deceased was recovered, the learned Sessions Judge jumped to the conclusion that they had romantic relationship. P. W. 16 in her evidence had stated that the accused was a friend of her uncle and used to visit her house. P. Ws. 51 and 52, no doubt, in their evidence had stated that the accused was staying with P. W. 16 along with the parents and sister of P. W. 16 at Jobra but their evidence in our considered opinion can hardly be said to be sufficient to establish that the accused had a romantic relationship with P. W. 16. In the premises, as aforesaid, even though we hold that the gold ring belonging to the deceased was recovered from the house of P. W. 16 and the accused some times used to live with P. W. 16 but the prosecution is totally insufficient to hold that the accused had any romantic relationship with P. W. 16. ( 11 ) THE next circumstance relied upon by the prosecution is that the accused and the deceased had a quarrel on the date before the death of the deceased. The only evidence led by the prosecution in this regard is that of P. W. 35 who stated in his evidence that P. W. 1 told him that the accused had some exchange of words with the deceased on 9. 4. 1986 and since that date he was not visiting his house. P. W. 1 has been examined in this case and he never stated in his evidence about the alleged quarrel nor that he had stated so to P. W. 35. Even P. W. 9, the sister of the accused did not state so in her evidence. 4. 1986 and since that date he was not visiting his house. P. W. 1 has been examined in this case and he never stated in his evidence about the alleged quarrel nor that he had stated so to P. W. 35. Even P. W. 9, the sister of the accused did not state so in her evidence. Consequently there is not an iota of evidence on which it can be said that the prosecution has been able to establish that the accused and the deceased had a quarrel on the date before the death of the deceased. The said circumstance, therefore, has not been established by the prosecution. The learned Sessions Judge committed gross error in relying upon the said circumstance. ( 12 ) THE next circumstance relied upon by the learned Sessions Judge is that the accused and the deceased were seen on the bed of the river Kathajori at 9. 30 P. M. on the night of 10. 4. 1986. Though the prosecution sought to establish the aforesaid circumstance through the evidence of P. Ws. 2 to 7 but their evidence does not disclose the same. In fact, the learned Sessions Judge ,has indicated that P. Ws. 2 to 7 denied to have seen the accused and the deceased on the bank of river Kathajori at 9. 30 P. M, on the night of 10. 4. 1986. But relying upon the statement of the accused and his friend P. W. 46, the learned Sessions Judge has held that the said circumstance has been established. We have examined the statement of the accused and we do not find any where the accused has admitted to be in the company of the deceased on the bed of the river Kathajori at 9. 30 P. M. Obviously, the learned Sessions Judge has committed an error of record to that effect. We have also examined the evidence of P. W. 46 but his evidence also does not disclose that he saw the accused and the deceased on the bank of the river Kathajori at 9. 30 P. M. His evidence merely discloses that he was in the company of the accused and the deceased on the Bank of river Kathajori at 4 P. M. and he parted their company at that time. 30 P. M. His evidence merely discloses that he was in the company of the accused and the deceased on the Bank of river Kathajori at 4 P. M. and he parted their company at that time. The learned Sessions Judge obviously committed gross error of record in coming to the conclusion with reference to the evidence of P. W. 46 that the accused and the deceased were seen on the bank of river Kathajori at 9. 30 P. M. This circumstance, therefore, has not been established by the prosecution. The prosecution, however, has established through the evidence of P. W. 46 that the accused and the deceased came together from the house of P. W. 1 on 10. 4. 1986 at 4 P. M. and P. W. 9 in her evidence has stated that on 10/4/1986 at 3 P. M. when she woke up after a nap she found the deceased Sarojini to be absent. ( 13 ) THE next circumstance that has been relied upon by the prosecution is that the deceased was never found again and this of course has been established through the evidence of P. W s. 9 and 1. ( 14 ) THE next circumstance that has been relied upon is that the full pant of the accused was wet at 10 to 11 P. M. on the fateful night. This is established through the evidence of P. W. 45 who stated that on 11/4/1986 between 10 to 11 P. M. his nephews friend came and slept on the terrace of the house after changing his dress. The lower part of his pant was wet and the wet portion would be 6 on the bottom side. Even if his evidence is accepted, it cannot be said that the pant of the accused was found to be wet on the fateful night, as the fateful night was the 10th of April, 1986 and not 11/4/1986. It would be appropriate to extract the relevant portion of his evidence. On 9/4/1986, night a boy had come in search of my nephew Prasana to my house. The friend of Prasana halted in that night in my house. On 10/4/1986 he left our house. On 11/4/1986 he again came to our house between 10 P. M. and 11 P. M. My nephew and his friend slept on the terrace of the house after changing his dresses. The friend of Prasana halted in that night in my house. On 10/4/1986 he left our house. On 11/4/1986 he again came to our house between 10 P. M. and 11 P. M. My nephew and his friend slept on the terrace of the house after changing his dresses. After they went to the terrace for sleeping I found that a money purse belonging to the friend of my nephew had fallen down on the floor. I collected it and found that there was money in it. There was traces of water and sand on the money purse. The friend of my nephew had hung down his full pant on the cross pieces of the cot. Below it news paper lay. Over the news paper some sand had fallen. I felt the lower portion of the full pant and it was wet with water. Thus according to the witness the accused went to his house on 11/4/1986 between 10 P. M. and 11 P. M. and it is then he could see the full pant of the accused to be wet. But the entire prosecution story is that the accused killed the deceased on 10/4/1986. Therefore the finding that the full pant of the accused to be wet on 11/4/1986 between 10 P. M. and 11 P. M. cannot be said to be an incriminating circumstance against the accused. That apart we also fail to see how this fact can at all be an incriminating circumstance. Therefore, the said circumstance should be excluded from consideration. ( 15 ) THE next circumstance is that the dead body of Sarojini was found floating in the river Kathajori on 11. 4. 1986 and the opinion of the Doctor that the death was due to homicidal drowning. This circumstance has of course been established through the evidence of P. W. 1 who on coming to learn about the floating of a dead body went to the spot and identified the same to be that of Sarojini and the post-mortem report (Ext. 22) to the effect that the death was by a homicidal drowning. This circumstance has of course been established through the evidence of P. W. 1 who on coming to learn about the floating of a dead body went to the spot and identified the same to be that of Sarojini and the post-mortem report (Ext. 22) to the effect that the death was by a homicidal drowning. ( 16 ) THE next circumstance that has been relied upon by the learned Sessions Judge to bring home the charge is that when P. W. 46 asked the accused with regard to the whereabouts of the deceased on the night of 10/4/1986, the accused had replied that he had left the deceased in the house of P. W. 1, which is a false explanation as P. Ws. 1 and 9 stated in their evidence that the deceased never came back to their house. Undoubtedly P. W. 46 in his evidence has stated so. P. Ws. 1 and 9 also have stated in their evidence that the deceased did not come to their house during the night of 10/4/1986. Therefore, this circumstance must be stated to have been established but the circumstance thus established, as discussed above, did not complete all the links in the chain of circumstances so as to conclusively establish the guilt of the accused. Broadly speaking, the prosecution has been able to establish that on 9/4/1986 the accused and the deceased left the house of P. W. 1 and were seen together at 4. 30 P. M. on the bank of river Kathajori and the deceased never returned to the house whereas the accused went to the house of his friend P. W. 46 at 11 P. M. and slept there and to his friend's query he had replied that he had left his wife in the house of P. W. 1 and on the next day, the dead body of the deceased was found floating in the river Kathajori. These facts do not lead to an irresistible inference that it is the accused who must have murdered the deceased. At the most the prosecution has raised an aura suspicion against the accused but has failed to prove the charge beyond reasonable doubt and, therefore, in our considered opinion the accused-appellant is entitled to be acquitted of the charges leveled against him. At the most the prosecution has raised an aura suspicion against the accused but has failed to prove the charge beyond reasonable doubt and, therefore, in our considered opinion the accused-appellant is entitled to be acquitted of the charges leveled against him. We would accordingly set aside the conviction and sentence passed against the accused-appellant under section 302, I. P. C. ( 17 ) SO far as the conviction under section 498-A, I. P. C. is concerned, the prosecution relies on the letters Exts. 3, 11 and 12 as well as the evidence of P. Ws. 13, 14, 22 and 26 to establish the charge under section 498-A, I. P. C. What is required to be-proved is that the accused must be the husband and the said husband subjects his wife to cruelty and cruelty has been defined in the explanation attached thereto. Clause (a) to the explanation states that the conduct of the accused must be of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health and clause (b) of the explanation states that the harassment of the woman must be with a view to coercing her to meet any unlawful demand for any property or valuable security. We have carefully scrutinized the evidence of P. Ws. 13, 14, 22 and 26 as well as the letters Exts. 3, 11 and 12 and we do not find an iota of materials therein to establish the ingredients of offence under section 498-A, I. P. C. The learned Public Prosecutor also fairly conceded that this charge has not at all been established by the prosecution evidence. We would, therefore, set aside the conviction of the appellant under section 495-A, of the I. P. C. also. In the result the conviction of the appellant both under section 302, I. P. C as well as under section 498-A, I. P. C are set aside and the sentence passed there under are also set aside. The appellant is directed to be set at liberty forthwith. This Criminal Appeal is allowed. Appeal allowed.