A. R. TIWARI, J. ( 1 ) THIS appeal, under Section 374 of the Code of Criminal Procedure, is directed against the judgment rendered by I Additional Sessions Judge, Ratlam in Sessions Trial No. 105 of 1986 on 23. 6. 89 thereby convicting the appellants under Section 302 IPC and sentencing each of them to suffer imprisonment for life and to pay fine of Rs. 1,000/- and in default to suffer S. I. of three months. ( 2 ) THE facts of the case may be stated briefly. Deceased Krishnadevi was the married wife of accused Ashok Kumar. At the time of incident, Ashok Kumar, was in service as a teacher and was living in village Chandragarh with his wife Krishnadevi and their minor children. Appellant Sherbano, at the relevant time was posted there as a nurse and was also living in village Chandragarh. It is stated that the accused, Ashok Kumar, has illicit relations with accused Sherbano and because of this. Ashok Kumar used to quarrel with his wife, deceased Krishnadevi. To get rid of from his wife, deceased Krishnadevi, on the date of incident i. e. in the night intervening 27128th March, 1986, both of the accused persons committed murder of said Krishnadevi. When Krishnadevi breathed her last, her body was burnt. On 28th March, in the morning both the appellants alongwith the minor children of Ashok Kumar were seen by witness Laxminarayan Soni (PW 12) leaving Chandragarh. House of the accused was locked from the outside. On 29th March, 1986, in the morning some foul smell was coming out of the house of accused Ashok Kumar. The information about the same was given to Sarpanch Rakma (PW 10) by Laxminarayan. Rakma and Laxminarayan went to Police Chowki. Chandragarh and informed the aforesaid facts to the Police. On getting information from Sarpanch Rakma (PW 10) and Laxminarayan (PW 12), Police went to the house of the accused and opened the door. After opening the door, the Police and the witnesses found dead body of Krishnadevi inside the house having burn injuries on all over the body. The body was covered with bed sheet. The inquest panchnama was prepared by the Police and the dead body was sent for post mortem examination. ( 3 ) DURING the course of investigation, both the accused persons were taken into custody on 1. 4. The body was covered with bed sheet. The inquest panchnama was prepared by the Police and the dead body was sent for post mortem examination. ( 3 ) DURING the course of investigation, both the accused persons were taken into custody on 1. 4. 86 and both the accused persons were medically examined by Dr. Chhaganlal Gaikwad (PW 19) on 2. 4. 86. After completion of investigation challan was filed against the accused persons before the Magistrate at Ratlam. The case was committed to the Court of Sessions and Additional Sessions Judge framed the charge under Section 302 and in the alternative under Section 302/34 IPC against both of the accused persons. The accused denied the charge and pleaded not guilty. The prosecution examined as many as 28 witnesses, whereas in defence, the accused persons examined only one witness Laxminarayan Sharma (D. W. 1 ). On appreciation of the evidence, learned Additional Sessions Judge found both the accused persons guilty under Section 302 IPC and sentenced them as above. Aggrieved by the judgment of conviction and sentence, the appellants have filed this appeal. ( 4 ) WE have heard Mr. N. S. Purohit, learned Counsel for appellant-Sherbano and Shri Ahasan Mohammed, learned Counsel for appellant Ashok Kumar. We also heard Mr. Y. S. Raghuwanshi, learned Government Advocate for the respondent. ( 5 ) MR. Purohit submitted that conviction is not based on firm foundation and deserves to be vacated. Mr. Ahasan Mohammad also adopted the submissions of Mr. Purohit and submitted that appellant Ashok Kumar also deserved to be acquitted. Mr. Raghuwanshi, learned Government Advocate, on the other hand, supported the judgment and submitted that the conclusion is properly supported by circumstantial material. ( 6 ) WE proceed to examine the worth of rival contentions. ( 7 ) PROSECUTION was required to establish two things: (i) That Krishnadevi died a homicidal death. (ii) That appellants did her to death. ( 8 ) IN the context of these two things, it is to be scrutinised whether the judgment under challenge is sustainable on facts and in law. ( 9 ) INDISPUTABLY, there is no eye-witness account in the case and fate inevitably hinges only on circumstantial evidence. It is aptly said that men may tell lies, but circumstances do not. ( 8 ) IN the context of these two things, it is to be scrutinised whether the judgment under challenge is sustainable on facts and in law. ( 9 ) INDISPUTABLY, there is no eye-witness account in the case and fate inevitably hinges only on circumstantial evidence. It is aptly said that men may tell lies, but circumstances do not. Hence we have to see meticulously as to what are those circumstances which can be termed as truth- teller and be taken as pointer to goal alone. ( 10 ) THE conclusion of the Sessions Court seems to depend on six circumstances catalogued below: (a) Illicit relationship between the appellants and thus inbred impulse to liquidate the legally wedded wife. (b) Presence of dead body in the house in occupation of the appellant Ashok Kumar with lock from outside. Locking the house on 28. 3. 86 and leaving it with children. (c) Possibility of murder and thereafter attempt to bum dead body to give it a colour of accidental or suicidal death. (d) Burn injuries found on persons of the appellants as recorded in reports Exs. P-36 and P 37. (e) Artificiality of defence plea. (f) Frequent quarrels. ( 11 ) WE will examine these circumstances. Circumstantial evidence must satisfy three tests. In (Gambhir v. State of Maharashtra), it is laid down that: When a case rests upon the circumstantial evidence, such evidence must satisfy three tests:- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and finally established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be in consistent with his innocence. ( 12 ) CAUTIOUS approach is the mandate of law. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be in consistent with his innocence. ( 12 ) CAUTIOUS approach is the mandate of law. In (State of U. P. v. Ashok Kumar Shrivastava), it is indicated that: While appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. ( 13 ) IT is well established rule in Criminal Jurisprudence that circumstantial evidence is acceptable only when it is of such a character that it is wholly inconsistent with the innocence and is consistent only with the guilt. That is the light thrown in the case of M. G. Agarwal v. State of Maharashtra. Firstly all facts, circumstantial in nature, must be proved and secondly those facts must unerringly lead to the inference of guilt and guilt alone without its and buts. ( 14 ) THERE is always the danger in a case depending upon circumstantial evidence that conjecture or suspicion, lingering on mind, may take the place of proof. Baron Alderson in Reg v. Hodge, addressed the warning to the jury in the following terms: The mind was apt to take pleasure in adopting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matter, to over-reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. This warning was approved and Apex Court laid down some rules for guidance in classic terms in Hanumant v. State of M. P. . It was ruled in case of Palvinder Kaur v. State of Punjab that the Court should safeguard itself against the danger of basing its conclusion on suspicious, however strong they may be, and against abandonment of caution. ( 15 ) BEFORE seeing worth of circumstances, it is first necessary to find whether death is proved to be homicidal in nature. Autopsy was conducted by team of three doctors. Their postmortem report (Ex. P-1) records opinion as under: No definite opinion regarding mode and cause of the death can be given till viscera analysis report. Duration of death more than 48 hours. Presence of blood on certain articles (clothes) is confirmed by report (Ex. P-45) of Chemical Examiner. Report of Forensic Science Laboratory, Sagar, dated 25. 7. 86 manifested that Key (Art. E) locked and unlocked the lock (How was the comparison possible after breaking over the lock? ). PW 1 Dr. Harsh Kumar Dubey deposed in para 5 that cause of death was unknown. ( 16 ) PW 1 Dr. Harsh Kumar Dubey attempted to negative the case of death by bums on the observation of absence of inflammatory signs and opined that she may have been burnt when breathing last (Para 6 ). The Sessions Court laid great stress on this to hold that death was not suicidal and not by burns (Para 25 ). It was overlooked that in post-mortem Report (Ex. P-1), dated 30. 3. 86 the description was that Burns appear to be post mortem except for the presence of suspected carbon. Manifestly, the opinion is not definite and evidently inconclusive. Precisely, this is the reason why in assessing the cause of death and mode, the team of Doctors opined TNo definite opinion. In this backdrop, how and on what other material, Sessions Court could record definitely that death was not suicidal? ( 17 ) THE Court below concluded as under: It is in Ex. P-1 that no definite opinion can be given till the viscera analysis report. Report dated 19. 5. 86 stated that no chemical poison could be detected in Articles B, C, E, i. e. viscera. Even when examined in Court, PW 1 Dr. Harsh Kumar Dubey deposed that he was unable to state the cause of death. P-1 that no definite opinion can be given till the viscera analysis report. Report dated 19. 5. 86 stated that no chemical poison could be detected in Articles B, C, E, i. e. viscera. Even when examined in Court, PW 1 Dr. Harsh Kumar Dubey deposed that he was unable to state the cause of death. ( 18 ) THERE is thus no cogent and convincing evidence to prove that death was homicidal. That being so, scrutiny of other evidence becomes inconsequential. Yet we examined the circumstances as relied upon. ( 19 ) VISHNUPRASAD (PW 2) and Prakash Kandare (PW 3) are formal witnesses. Madanlal (PW 4) does not advance the prosecution case. Yogendra Sharma (PW 5) is examined to prove the photographs. Mehboob Khan (PW 6) attempted to prove seizure of clothes. Vishnuprasad s/o Permanand (PW 7) deposed about foul smell coming from the house of the appellant-Ashok Kumar. Arjunsingh (PW 8) deposed on the basis of information received from other persons that appellant Ashok Kumar had gone out. Mohandas (PW 9), Rakma (PW 10), Gautam (PW 11), Laxminarayan (PW 12), Kodarji (PW 13 hostile), Rakrna sb Kodarji (PW 15) and Kalu (PW 16) are examined to prove certain circumstances which do not complete the chain. Prakash Pathak (PW 14) deposed that he had seen dead body and that Panchanama was prepared. Kalu (PW 16) stated that he was informed by Sarpanch about foul smell. Ravji (PW 17) stated that lock of the house in question was opened in presence of the Panchas. Chhaganlal (PW 9) was examined to prove bum injuries on the person of the appellant Ashok Kumar. (PW 24), brother of the deceased, tried to prove strained relations between the deceased and appellant Ashok Kumar. Lalchand (PW 25) was declared hostile. Jailal (PW 26), Pushpendra Singh (PW 27) and Rakesh Chandra Vyas (PW 28) are also formal witnesses. Laxminarayan (PW 1) was examined in disproof of charge. ( 20 ) ACCORDING to Dehatmalish (Ex. P-2) the lock was broken (Ex. P-29) and dead body, covered by chadder, was found in the room used as a Kitchen (Ex. P-30 ). Million dollar questions are- (a) Whether it was a case of homicidal death? (b) What is the manner of death i. e. death first and burn afterwards? (c) Who covered the body by chadder? (d) Who locked the house? P-29) and dead body, covered by chadder, was found in the room used as a Kitchen (Ex. P-30 ). Million dollar questions are- (a) Whether it was a case of homicidal death? (b) What is the manner of death i. e. death first and burn afterwards? (c) Who covered the body by chadder? (d) Who locked the house? (e) Why appellants or any one of them were not arrested to recover key of the lock? (f) How could PW 12 Laxminarayan, named in F. I. R. , suspect it to be a case of murder? Does the needle of suspicion not fall on him for reasons not brought to light? (g) When appellants had returned to the house on the night of 29. 3. 86 at 9. 00 p. m. on preparation of Panchnama of dead body (Para 13 of PW 12 Laxminarayan), then why no attempt was made to recover from them or him or her the key which could have furnished live link with the incident occurring inside the house? Later story of seizure of key and other articles (Exs. P-41. P-42 and P43) is not corroborated by PW 28 Rakesh. (h) Why no proper investigation was done to rule out the possibility of suicide? (i) Why arrest was delayed till 1. 4. 86 (Ex. P-40) (j) Instead of breaking open the lock, why was the house/lock not sealed till arrest and seizure of key? These are questions galore with no satisfactory answers. ( 21 ) PRAHLAD Parasar, Officer-in-charge of Police Station Bajna died during the trial. Report Ex. P-2 was proved by Constable Jailal (PW 26 ). Appellant Ashok Kumar was a teacher and appellant Sherbano was the nurse in Chandragarh. Investigator died and thus could not be examined. Hence various steps taken in investigation could not be tested on the anvil of cross-examination. ( 22 ) APPELLANT Ashok Kumar took the defence that his wife committed suicide on 28. 3. 86 and he attempted to save her and received bums. He informed appellant Sherbano and found none in Police Chouki. He thus proceeded to Police Station Bajna (Para 16 ). Appellant No. 1 stated that she was informed by Ashok Kumar that deceased committed suicide (Para 19 ). Sessions Court did not accept the defence plea in toto. They were not arrested till 1. 4. 89. (para 11 of the Judgment ). He thus proceeded to Police Station Bajna (Para 16 ). Appellant No. 1 stated that she was informed by Ashok Kumar that deceased committed suicide (Para 19 ). Sessions Court did not accept the defence plea in toto. They were not arrested till 1. 4. 89. (para 11 of the Judgment ). ( 23 ) ILLICIT relationship may raise suspicion but is by itself not enough to prove the charge. Postmortem Report (Ex. P-I) fixes the time of death as more than 48 hours. Now what does this mean? What is the meaning of more and how this obscurity is removable? No evidence is offered to clarify this. Now if it can be assumed on the basis of reports, Exs. P-36 and P-37, and locked state of house that appellants were present at the time of incident and they attempted to save the victim and in the process received injuries then it needs to be appreciated that saver cannot be the killer. Any attempt to save or make arrangement for treatment would show the innocent mind. In (Chandrasen and Another v. State of M. P. , it is held that: The other circumstance is that Chandra Sen, after opening the door, immediately rushed at the odd hour of the night to bring a rickshaw, so that he could take the deceased to the hospital. If, in fact, they wanted to see Rajendra Kumar murdered, they would not have done all the acts mentioned above as if Rajendra Kumar would have lived, he could have given evidence against these two appellants. 1979 All. Cr. Rulings 273 relied on. ( 24 ) DW 1 Laxminarayan pledged his oath to say that the appellant Ashok Kumar had come to him and had told that deceased had committed suicide and that they took steps, without success, to lodge the report. The Court below found that death did not occur due to bum. Other marks of injury were, however, not found. Then what is the manner of ending the life? How is the possibility of accidental or suicidal death ruled out? May be, appellant Ashok Kumar later covered the body with Chadder and fearing unmerited accusation, reached his wits end and after locking the house, with dead body in, went out to contact and seek support from relations like DW 1, but may not be so. How is the possibility of accidental or suicidal death ruled out? May be, appellant Ashok Kumar later covered the body with Chadder and fearing unmerited accusation, reached his wits end and after locking the house, with dead body in, went out to contact and seek support from relations like DW 1, but may not be so. The burden is on the prosecution to travel the distance between May and Must. ( 25 ) PRESENCE of dead body in the house thus by itself is not the clinching circumstance. The assumption that it is a case of murder and burning of body thereafter is ex-facie conjectural. Burn injuries on hands do not indicate necessarily the complicity but at the most an urge to save the victim. Frequent quarrels, even if true, would not lead one to the pointer of guilt. Artificiality of defence, even when assumed, is not the assurance of veracity of version of prosecution story. ( 26 ) CASE law also indicates that circumstantial evidence, giving rise to grave suspicion is not sufficient to base conviction. In (Ratanlal v. State), the husband was found missing soon after the incident of death of his wife in the house, yet this was considered to be a point for suspicion and not as an indicator of authorship of crime. In (Kailashibai v. State), one of the factors leading to the demolition of conviction was that there could be doubt even about the cause of death. In (Rom Singh v. State) it was held that illicit relationship may also be a cause of false implication. In (Gwalinbai v. State), it is held that in circumstantial evidence, chain of events must be complete. ( 27 ) MAY be, tortured by the disloyalty of her husband, the wile, victim of circumstances, ejected to end her life by suicide which act seems to have puzzled and perplexed the husband. ( 28 ) AS held in 1985 (I) SCR 98812; moral conviction is not enough. Case is required to be proved by the cogent evidence. It is aptly observed in some cases that fouler the crime, higher the degree of proof. ( 28 ) AS held in 1985 (I) SCR 98812; moral conviction is not enough. Case is required to be proved by the cogent evidence. It is aptly observed in some cases that fouler the crime, higher the degree of proof. ( 29 ) ON our assessment, we find that (1) there is no proper proof of death being homicidal in nature; and (ii) circumstances, pressed into service, do not complete the chain and are not shown to be sufficient to sustain the conviction, We are of the view that Sessions Court operated against the warning of Baron Alderson and did not safeguard itself against the, danger of basing conclusion on suspicions. This misleading has vitiated the vision and course of conclusion. When vision is bad, voice becomes worse. We have to correct it on the lines suggested by Burger, CJ, of American Supreme Court, ( 30 ) EXCEPT story of alleged illicit affair and report Ex. P-37, there is no other piece of evidence against the appellant No. 1 and as regards the appellant No. 2, the case seems to be one of strong suspicion against him but in criminal jurisprudence suspicion is no substitute of proof and there is a great distance between may be true and must be truet and this is required to be traveled by proper evidence. That evidence is just not on the record, In the Welter of agitated controversy, we find that truth is buried under deep debris and entire episode is shrowded in mystery. We do not have benefit of dying declaration or other clinching evidential material. Mere moral belief cannot yield legal indictment. The story as projected and portrayed, may be true but surely, in our view, does not fall in the category of must be true. And it is this situation where Criminal Jurisprudence does not sanction the course of verdict of guilt, when two inferences are possible and permissible, benefit belongs to the persons charged of offence. ( 31 ) IN the result, we hold that the appellants are entitled to receive benefit of reasonable doubt. Doubt here is not farfetched or fanciful. Accordingly we allow this appeal, set aside the conviction and sentence and acquit both the appellants of the charge under Section 302 IPC. They are reported to be on bail. Their bail bonds shall stand discharged. Record of the Trial Court be now returned. Appeal allowed. Doubt here is not farfetched or fanciful. Accordingly we allow this appeal, set aside the conviction and sentence and acquit both the appellants of the charge under Section 302 IPC. They are reported to be on bail. Their bail bonds shall stand discharged. Record of the Trial Court be now returned. Appeal allowed. .