JUDGMENT Kuldip Chand Sood, J.—This appeal of Singhu appellant (hereinafter referred to as the Accused), against his conviction for the offence punishable under Section 302 of the Indian Penal Code, is directed against the judgment of learned Sessions Judge, Chamba Division at Chamba, dated May 26, 1998. 2. Raghu deceased was resident of village Ledru in Tehsil Churah of District Chamba. Ahli Devi (PW1) is widow of deceased Raghu. Dead body of Raghu was found 50 yards away from the road at village Dalua Panihar. The matter was reported to the Police at O.P.C. Tarela. The Incharge of the Police Post, in turn, informed Police Station, Tissa and formal F.I.R. (Ext. PG) was recorded on February 22, 1997 after SI/SHO returned from the spot. 3. Prosecution case, in brief, is that Raghu left his house on February 18, 1997 for village Shawanl to collect shawls from one Bhagdei, a weaver, which is at a distance of five miles from village Ledru. Raghu did not return back. Next day, Ahli Devi, widow of the deceased alongwith her son, went in search of Raghu but he was not found. It was on the next morning that she alongwith her son Bhag Singh found the dead body of her husband 50 yards below the road at Dalua Panihar. On the report of Ahli Devi, Police came to the spot where photographs of the dead body were taken. The dead body was sent for post mortem after inquest. Certain articles, including clothes were taken into possession by the Police. Samples of blood stained earth were lifted from the spot and sealed in separate packets. The post mortem of dead body of Raghu disclosed that he died because of asphyxia due to throttling. Accordingly a case under Section 302 of the Indian Penal Code was registered. The prosecution story is that the accused was having illicit relations with Ahli Devi wife of the deceased, therefore he killed him. 4. Dr. Kamal Kumar (PW 12) performed the post-mortem on the dead body on February 21, 1997 at Civil Hospital, Tissa and found the following injuries : 1. Multiple scratches abrasion seen over the scalp and legs of bearing size 1 cm x 4 cm anti-mortem in nature. 2. Grazes seen on the lateral side of right guiteral region 3/ 5 cms. 3. Marks of ligature on neck-Nil. 4. Multiple scratches abrasion seen over the scalp and legs of bearing size 1 cm x 4 cm anti-mortem in nature. 2. Grazes seen on the lateral side of right guiteral region 3/ 5 cms. 3. Marks of ligature on neck-Nil. 4. Rigor mortis developed in neck upper limbs ankle, loose skin over abdomen and arms. Hypostaches blue on right side face, ear, back, buttocks, right legs (thighs and calf). II. Crantium and spinal cord. Brain congested, bluish in colour. III. Thorax. 1. Walls, ribs and cartilages, paricardium, heart and large vessles-normal. Lungs, right and left were congested. Pleurae Sub-plaeurae haemorrahage seen. Laryanx and trachea muscles overlying bruise slightly. Laryanx and trachea congested, Pharyx showed haemorrhage. IV. Abdomen. 1. Walls, peritoneum, liver, spleen, kidney and organs of generation external and internal were normal. Mouth, pharynx and oesophagus Mouth open, nose flattened, Pharynx congested shows haemorrage oesophenfus normal. Stomach and its contents-full of semi-digested food, greenish pale, cold, smelling of alcohol. Small intestines and their contents green in colour in approximate 3 ft. length from ilbecaecal junction contained semi-solid digested food material-Large intestines and their contents-contained fiscal matter. Bladder-contained 300 cc of urine. V. Muscles, bones Joints-Normal. It is the case of the prosecution that on February 18, 1997, accused and deceased Raghu took liquor in the house of accused in village Shawanl and both of them left for village Ledru. At Dalua Panihar, accused killed Raghu by throttling him. Thereafter, accused came alone to the house of Raghu and stayed there for night. Accused had sexual intercourse with Ahli Devi, wife of deceased and left next day morning. 5. According to Dr. Kamal Kumar (PW 12), Raghu died due to mechanical asphyxia on account of throttling. 6. Accused was tried by learned Sessions Judge, Chamba in Sessions Case No. 32 of 1997 and convicted him vide his impugned judgment, noticed above. The accused has been sentenced to imprisonment for life and pay fine of rupees 5,000/-. In case of default in the payment of fine, accused is to suffer further rigorous imprisonment for a period of one year. 7. Feeling dis-satisfied, the accused Singhu has filed the present appeal from jail. 8. Shri Deepak Gupta, Advocate, was appointed as counsel for the accused-appellant. 9. We have heard Mr. Deepak Gupta, learned Counsel for the accused and Mr. B.P. Sharma, learned Additional Advocate General and gone through the record. 10. 7. Feeling dis-satisfied, the accused Singhu has filed the present appeal from jail. 8. Shri Deepak Gupta, Advocate, was appointed as counsel for the accused-appellant. 9. We have heard Mr. Deepak Gupta, learned Counsel for the accused and Mr. B.P. Sharma, learned Additional Advocate General and gone through the record. 10. It may be noticed at the outset that there is no direct evidence. The prosecution case is built entirely on circumstantial evidence. There is no eye witness. The circumstances on which the prosecution rely and accused has been convicted by the learned Sessions Judge are : (1) Motive to kill Shri Raghu. (2) Raghu deceased was last seen in the company of the accused. (3) Conduct of the accused immediately after occurrence. (4) Raghu died of asphyxia due to throttling. (5) Recovery of incriminating articles at the instance of the accused. 11. We hardly need to emphasis that when a conviction is sought, particularly for an offence so heinous as murder, on the basis of circumstantial evidence, then prosecution must prove those circumstances with cogent and unimpeachable evidence. The following conditions, as pointed out by the Apex Court in Sharad Bidhi Chand Sardeca v. State of Maharashtra (AIR 1984 S.C. 1622), must be fulfilled before a case against an accused based on circumstantial evidence can be said to be established: (a) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (b) the facts so established should be consistent only with the hypothesis of the guilt of accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (c) the circumstances should be of a conclusive nature and tendency; (d) they should exclude every possible hypothesis except the one to be proved; and (e) 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. 12. The evidence on record may now be examined to see whether or not the circumstances relied upon by the prosecution are established. If established, whether such circumstances, are consistent with the guilt of the accused and are of conclusive nature and tendency. (1) Motive. 12. The evidence on record may now be examined to see whether or not the circumstances relied upon by the prosecution are established. If established, whether such circumstances, are consistent with the guilt of the accused and are of conclusive nature and tendency. (1) Motive. It is the case of the prosecution that accused had illicit relations with Ahli Devi wife of the deceased and that accused had told Ahli Devi that she should kill her husband Raghu or the accused would kill him. Therefore, accused had the necessary motive to kill Raghu. Learned Sessions Judge has recorded that the only inference from the conduct of the accused as is deducible from the evidence of Ahli Devi is that accused had illicit relations with Ahli Devi and, therefore, had strong motive to kill Raghu. 13. We have closely looked into the evidence of Ahli Devi. From her statement, it cannot be said or concluded that she had illicit relations with the accused. Learned Sessions Judge, as urged by the learned Counsel for the accused, has picked up two sentences of the statement of Ahli Devi to conclude that she had illicit relations with the accused. It is the evidence of Ahli Devi that on the relevant date, her husband had gone to village Shawanl. He did not return back. However, on the same night, at about 8.00 p.m., accused Singhu came to her house. She was sleeping in her house with her three grown up children. Accused told her that he had gone to the house of one Zalam and he was feeling cold. She enquired about her husband on which accused informed her that he had met him in the morning of that day and thereafter he did not meet him. She states, "accused had sexual intercourse with me forcibly on that night when he stayed in my house when my husband did not come back from village Shawanl. Prior to that, he did not have any sexual intercourse with me. Prior to the said occurrence, the accused used to tell me that I should kill my husband but I had refused. The accused used to say that he will kill my husband." 14. This witness, in her cross-examination, however, takes a U-turn and states that accused tried to catch hold of her but did not do anything with her on that night. The accused used to say that he will kill my husband." 14. This witness, in her cross-examination, however, takes a U-turn and states that accused tried to catch hold of her but did not do anything with her on that night. In other words, he did not have any sexual intercourse with her. Even prior to that night, accused, according to her, did not have sexual intercourse with her. She admits that her eldest daughter is married. Her elder son is 14 years of age, second daughter is 17 years of age and third one is nine years of age. It is her further evidence that on that night, she was sleeping in her house alongwith three children. She admits that she and her children were sleeping in the same room. In her own words "I and my three children slept in one room. Accused had also slept in the same room/ It is. difficult to imagine that accused would try to molest or commit forcible sexual intercourse with a lady in the presence of her grown up children. It is significant to note that Ahli Devi does not say a word about any illicit relations between her and the accused. She states, "prior to that, he did not have any sexual intercourse with me." No reliance can be placed on the evidence of this witness. In her examination-in-chief though she states that accused had forcible sexual intercourse with her but in her cross-examination, she tells us "at night, when I came out of the room to answer the call of nature, the accused followed me and tried to get hold of me but I escaped from his clutches and came inside the room. He also came with me in the room. Thereafter he did not do anything with me on that night. I did not call my children when the accused tried to catch me." The evidence of this witness does not inspire confidence. The other witness PW 2 merely states that accused used to work as Lohar and in that connection, he used to visit the house of Raghu for sharpening the implements etc. and he used to visit the house of Raghu also in his absence. The other witness PW 2 merely states that accused used to work as Lohar and in that connection, he used to visit the house of Raghu for sharpening the implements etc. and he used to visit the house of Raghu also in his absence. Learned Sessions Judge has recorded that the conduct of the accused that he spent the night, with Ahli Devi, wife of deceased Raghu, on which Raghu was killed, would be indicative of the fact that he had strong motive to kill Raghu. From, the evidence of Ahli Devi and Shri Chhaba, by no stretch, it can be concluded that accused had illicit relations with Ahli Devi and therefore he had a motive to kill her husband deceased Raghu. We have already said that statement of Ahli Devi does not inspire confidence. There is no other evidence to show that accused visited the house of Raghu on the night of occurrence. The prosecution has not been able to establish that accused had illicit relation with the wife of the deceased and therefore motive to kill the deceased. (Emphasis supplied) (2) Raghu deceased was last seen in the company of the accused. 15. The case of the prosecution is that on the morning of February 18, 1997, Raghu left his village Ledru for village Shawanl, in which accused lives, to bring shawls from one Bhag Dei. Raghu did not return back. According to prosecution story, Raghu took liquor with the accused in his house on that day and thereafter, both of them left the house of the accused at about 4.00 p.m. for village Ledru. Both of them were in inebriated condition. To prove this, Prosecution rely upon the evidence of Bhagat Ram (PW 4), Shiv Dayal (PW 5), Beli Ram (PW 11) apart from the statement of Ahli Devi (PW 1). It is the evidence of Ahli Devi (PW 1) that when her husband did not return back next day morning, she accompanied by her son Bhag Singh, came to village Shawanl in search of her husband Raghu. On the way, they found a muflar of her husband lying below the path and an umbrella of the accused. They came to the house of the accused. Accused was not in his house. Accused reached at his house at about 7.00 p.m. from his Ghrat. On the way, they found a muflar of her husband lying below the path and an umbrella of the accused. They came to the house of the accused. Accused was not in his house. Accused reached at his house at about 7.00 p.m. from his Ghrat. Accused told her that he had seen foot prints on the snow near Dalua Panihar and that she should search, for her husband, at that place. She spent the night in the house of the accused. On the next morning, she, her son Bhag Singh, Baldev Singh and Beli Ram came to Dalua Panihar and found dead body of Raghu at Dalua Panihar at a distance of 50 yards below the path. Bhagat Ram (PW 4) is resident of village Bundheli. It is his evidence that in February, 1997, accused visited his house at about 8.00 a.m. and told him that he was required by the police in connection with the murder of Raghu and that at that time, accused told him that Raghu and he had come back from village Shawanl for village Ledru. Both of them were drunk and he helped Raghu in crossing dangerous road by holding him from his hand and both of them came together upto Dalua Panihar. Thereafter, Raghu was not able to walk being under intoxication and he left Raghu there. Shiv Dayal (PW 5) is resident of village Nikhanju. It is his evidence that accused and one Kasore came to his house on the evening 20th Falgun, Accused told him that he was going to the Police in connection with the case of Raghu as a case has been made against him. Accused spent the night in his house. All three of them took liquor. During night, accused told him that Raghu had taken liquor in his house and he had accompanied Raghu towards his (Raghus) village and on the way, he helped Raghu in crossing difficult portion of the path and both of them again took liquor at Dalua Panihar. Raghu became intoxicated and was unable to walk. He carried Raghu on his back for some distance. Thereafter, he was unable to carry Raghu and left him in the path and he himself returned to village Ledru. There is nothing material in the cross-examination of the witnesses on this aspect of the case. Raghu became intoxicated and was unable to walk. He carried Raghu on his back for some distance. Thereafter, he was unable to carry Raghu and left him in the path and he himself returned to village Ledru. There is nothing material in the cross-examination of the witnesses on this aspect of the case. Similarly, it is the evidence of Beli Ram (PW 11) that on February 18, 1997, deceased Raghu visited his house at 10.00 a.m. He remained in his house till 2.00 p.m. Thereafter, he left for the house of Singhu accused. He saw accused and deceased leaving the house of the accused at about 4.30 p.m. This witness is resident of village Shawanl where accused lives. On the next day, Singhu returned back and went to his Gharat. Smt. Ahli Devi wife of the deceased Raghu and her son, according to this witness, also came to his house and told him that she had come to enquire from Singhu accused about the whereabouts of Raghu. In the evening, when accused returned from the Gharat, accused told Ahli Devi that on the previous day, her husband had accompanied him and he had left him on way to Koprodhar two and half kms. from village Shawanl. The witness clarifies that path of village Koprodhar bifurcates from the main path, at Dahua Panihar. 16. Learned Counsel for the accused points out contradictions in the statement of Ahli Devi (PW 1) and Beli Ram (PW 11). He contends that according to Ahli Devi, accused informed her that he had seen foot prints on the snow near Dalua Panihar and that she should search for her husband at that place, whereas, Beli Ram states that accused en inquiry from Ahli Devi had informed that he left deceased Raghu at the bifurcation to village Koparadhar at Dalua Panihar. The contradiction is not material in view of the overwhelming evidence discussed above. The testimony of Beli Ram (PW 11) that he saw accused going alongwith the deceased Raghu at 4.30 p.m. is not disputed in the cross-examination. The combined reading of evidence of Bhagat Ram (PW 4), Shiv Dayal (PW 5), and Beli Ram (PW 11) proves that accused was in the company of deceased Raghu till about 7.00 p.m. It is also the case of the prosecution that both of them had taken liquor in large quantity and were in drunken condition. The combined reading of evidence of Bhagat Ram (PW 4), Shiv Dayal (PW 5), and Beli Ram (PW 11) proves that accused was in the company of deceased Raghu till about 7.00 p.m. It is also the case of the prosecution that both of them had taken liquor in large quantity and were in drunken condition. The accused has admitted before the witnesses that he left deceased Raghu at Dalua Panihar as Raghu was unable to walk any further. Therefore, the fact that deceased was last seen in the company of the accused is established. However, this circumstance in itself cannot be said to be incompatible with the innocence of the accused. 17. The deceased and accused apparently had cordial relations. The First Information Report Ext. PF specifically mentions that deceased Raghu and accused were relatives and friends. It is undisputed that both of them left together, hand in hand, for village Ledru after taking liquor in the house of accused. It was not, in the circumstances, unnatural for the accused to be in the company of the deceased on the evening of the night deceased died. (3) Conduct of the accused immediately after occurrence. 18. The following conduct of the accused, according to the prosecution, points towards the guilt of the accused: (a) When accused visited the house of Ahli Devi on the night of February 18, 1997, she enquired about the whereabouts of her husband but accused lied and told her that he had not seen him. However, on the next morning, accused informed her that Raghu had come with him upto Dalua Panihar and thereafter he had gone to answer the call of nature and did not turn up. On further enquiry from Ahli Devi to the effect if her husband has been killed, accused told her that nothing can be done if her husband has been killed. (b) When accused visited the house of Bhagat Ram (PW 4), he was shivering with fear of the Police. (c) Accused gave different explanations to different persons as to why Raghu could not accompany, the accused from Dalua Panihar to Ledru. (d) Accused visited the house of Raghu inspite of the fact that he had left him at Dalua Panihar. (e) Accused could not be arrested by the Police till February 28. 1997. 19. (c) Accused gave different explanations to different persons as to why Raghu could not accompany, the accused from Dalua Panihar to Ledru. (d) Accused visited the house of Raghu inspite of the fact that he had left him at Dalua Panihar. (e) Accused could not be arrested by the Police till February 28. 1997. 19. (a) So far evidence of Ahli Devi (PW 1) is concerned, we have already said that her evidence cannot be relied upon as it does not inspire confidence. There is no other evidence to corroborate the statement of Ahli Devi that accused visited her house on the night of occurrence. None of the three grown up children, who were present in the house, has been examined. This witness has been changing her stand in the witness box. Learned Sessions Judge has taken the evidence of this witness at face value without adverting to the cross-examination. It is true that this witness states that on inquiry by her, accused told her that he met her husband in the morning and thereafter, had not met him. However, on the next morning, when she further enquired, he told her that husband had come with him from village Shawanl upto Dalua Panihar. When this witness again asked the accused if her husband had fallen down on the way or he had been killed, accused told her that if her husband had been killed, then nothing can be done. It is difficult to believe this witness. There was no reason for this witness to have asked the accused if her husband had fallen down on the way or he had been killed. In cross-examination, she states, "I had also told the police that accused had told on the morning that he could not do anything if my husband had died." She was confronted with her statement before Police Ext. DA wherein it is not so recorded. She also states that she told the Police about the accused having informed her that when he and her husband were coming from village Shawanl, her husband left to answer the call of nature near Dalua Panihar. The witness was confronted with, her statement Ext. DA where it is not so recorded. Ahli Devi indeed has improved her statement. She has given different versions at different times. 20. The witness was confronted with, her statement Ext. DA where it is not so recorded. Ahli Devi indeed has improved her statement. She has given different versions at different times. 20. We hardly need to emphasis that a witness who makes different statements at different times has no regard for truth and the Court, without corroboration, would not act on the testimony of such witness (See: Karuppanna Thevar and others v. State of Tamil Nadu, (1976) 1 Supreme Court Cases 31. 21. There is no credible and acceptable evidence to prove that accused visited the house of Ahli Devi on the night of occurrence. 22. (b). It is the evidence of Bhagat Ram (PW 4) that the accused was required by the Police in connection with the murder of Raghu and, therefore, he had sent for the accused. Accused Ccime to his house and he asked the accused to go to the Police and tell them as to what he had done. It is at that point of time, according to this witness, accused was "shivering with the fear of the police.” The witness assured the accused that he would not be beaten and advised him to speak the truth and it is in this background that he told this witness that deceased was in a drunken condition and he helped him in crossing the dangerous part of the road by holding him from his hand and they came together upto Dalua Panihar. Raghu was unable to walk any further because of intoxication and left him there. Mere fact that accused was scared and shivering when he was told that he was wanted by the Police would not be indicative of the guilt of the accused. This circumstance is not of conclusive nature or tendency. Any normal person would be scared if he is called by the Police. 23. (c). The case of the prosecution is that accused told Bhagat Ram (PW 4) that he left Raghu at Dalua Panihar as he was unable to walk any further due to intoxication, whereas, he told Shiv Dayal (PW 5) that as Raghu was unable to walk due to intoxication so he carried him on his back and after some distance, he was unable to carry Raghu and he threw him on the path. But then witness immediately say that in fact accused told him that he left Raghu on the path. But then witness immediately say that in fact accused told him that he left Raghu on the path. According to PW 11, Beli Ram, accused in his presence told Ahli Devi that he left the deceased on the bifurcation to village Kopradhar at Dalua Panihar. There is no contradiction in all the three statements. The fact remain that accused, according to all these witnesses, told them that he left the deceased at Dalua Panihar as deceased was unable to walk any further due to intoxication. It is true that PW 5 states that accused told him that when he was unable to carry the deceased any further, he threw him on the path but he immediately corrected himself to say that accused in fact told him that he left the deceased on the path at Dalua Panihar. No adverse inference can be drawn from the evidence of these three witnesses on this aspect of the case. 24. (d). We have already discussed the evidence of Ahli Devi and observed that her evidence cannot be relied upon to show that accused visited the house of deceased on the night of occurrence. 25. (e) Relying upon the evidence of PW 10, learned Sessions Judge has held that accused was found missing immediately after the occurrence as he could not be arrested till February 28, 1997. We are constrained to observe that learned Sessions Judge has misread the evidence. It is the evidence of Bhagat Ram (PW 4), President of Gram Panchayat Bandhuri that he had sent for the accused after the occurrence. The accused responded to summons and visited his house. Bhagat Ram told him that he is required by the police in connection with the murder of Raghu. He also assured him that the Police will not give him beatings and he should go to the Police. PW 5 Shiv Dayal categorically states that on February 20, 1997, the accused visited his house and told him that he was going to the Police as a case has been made against him for the death of Raghu. He spent the night in the house of Shiv Dayal and left next day morning. By no stretch of imagination, it can be said that accused had absconded immediately after the death of Raghu. In fact, if these two witnesses are to be believed, accused went to the Police Station on February 21, 1997. He spent the night in the house of Shiv Dayal and left next day morning. By no stretch of imagination, it can be said that accused had absconded immediately after the death of Raghu. In fact, if these two witnesses are to be believed, accused went to the Police Station on February 21, 1997. Statement of ASI Sher Singh (PW 10) that he arrested the accused on February 28, 1997 would not lead to the conclusion that the accused was absconding. In cross-examination, this witness was asked that where did he search for the accused, he could only say that he searched for the accused in village Ledru in the house of deceased Raghu. He could not name any person in whose house he searched for the accused. 26. It may be noticed that in the First Information Report lodged with the Police by Smt. Ahli Devi wife of Raghu (Ext. PF), it is specifically mentioned that Raghu, on February 18, 1997, had gone to village Shawanl and returned back from Shawanl on the evening of that day alongwith the accused. Both of them were in drunken condition they left village Shawanl at 5.30 pirn. The path was covered with snow. When they reached a place known as Nahod Charagah in the darkness, Singhu separated from Raghu and the death of Raghu appears to have occurred due to cold as no marks of injuries were found. The relevant portion of the F.I.R. reads: "The brief facts of the case are that on 18.2.1997, Raghu (deceased) son of Jassa, Caste Arya, r/o Laderu had gone to village Showl to bring a shawl which he had given for weaving and from there (village Shawal), he had come back with his relative Shri Singh son of Dibru, r/o. Showl in the evening. Both of them were in drunken condition. They proceeded from village Showl at about 5.30 p.m. While passing through the path covered with snow, when they reached at place Nahod Charagah in the darkness, Singhu the companion of Raghu. (deceased) separated from him. From the spot circumstances, the death of Raghu appears to have been occurred due to cold, because on inspection of the dead body of Raghu, no marks of injuries were found..... (deceased) separated from him. From the spot circumstances, the death of Raghu appears to have been occurred due to cold, because on inspection of the dead body of Raghu, no marks of injuries were found..... The near relatives of the deceased have expressed that there was no enmity between Singhu and Raghu (deceased) rather they were having friendly relation and they have not expressed any foul play in it (Emphasis supplied) 27. Apparent as it is, all the relatives of the accused including his wife, were of the view that Raghu died due to cold. They had no doubt of any foul play least on accused. According to them, accused and deceased were on friendly terms. Even Ahli Devi did not disclose that accused had told her that he would kill her husband. In this view of the matter, there was no reason for the accused to have absconded. 28. The conduct of the accused, as discussed above, cannot be said to be inconsistent with his innocence or. 29. Raghu died of asphyxia due to throttling. According to Dr. Kamal Kumar (PW 12) who conducted the post mortem on the dead body of Raghu, deceased Raghu died of asphyxia due to throttling. From this opinion of the Doctor, it is sought to be proved that deceased Raghu was done to death by the accused by throttling. This is a neutral circumstance and cannot be said to be consistent only with the hypothesis of the guilt of the accused. The fact that deceased died of asphyxia due to throttling would not mean that it was accused who throttled him. The circumstance is compatible both with the innocence as well as guilt of the accused. 30. This apart, the opinion of Dr. Kamal Kumar that accused died of mechanical asphyxia due to throttling is open to doubt. Learned Counsel for the accused contends that medical evidence on record do not support the prosecution theory of strangulation as there were no marks on the neck or throat of the deceased. Had Raghu been strangulated, there would have been clear marks and injuries, visible to naked eye, on the neck of the deceased. 31. Dr.Kamal Kumar, in his cross-examination states that his opinion regarding the cause of death is based on the following symptoms, he observed during the post mortem of the dead body: (a) larynx and treaches were congested; (b) Pharynx showed haemorrhage. 31. Dr.Kamal Kumar, in his cross-examination states that his opinion regarding the cause of death is based on the following symptoms, he observed during the post mortem of the dead body: (a) larynx and treaches were congested; (b) Pharynx showed haemorrhage. There was congestion in both the lungs. (c) There was bleeding in the nose sub-plaurea haemorrhage was present. (d) Viscera sings. 32. Now throttling, or manual strangulation, is that form of death which is caused by compression of the throat, the constricting force is the finger and the hand or hands of the assailant or finger and palms, on the throat. There is always extensive brusing of the tissues, which is usually accompanied by fracture of the laryngeal structures and hyoid bone. In the present case, Dr. Karnal Kumar (PW 12) did not find any ligature mark on the neck. In his post mortem report, he notices : "Marks of ligature on neck-nil." 33. In Fields Expert Evidence, third Edition-2000, throttling has been explained at page-301 in following terms: "As a rule there is extensive bruising of the tissues, which is frequently accompanied by fracture of the laryngeal structures, and, commonly the hyoid bone. Further, there may be bruising or laceration of the tongue as the result of its having been pressed against, or caught between the teeth. In some cases, there may be practically no evidence of bruising on the surface of the neck, although fairly extensive bruising of the hyoid bone." 34. Dr. Kamal (PW 12) did not find any bruising of the laryngeal structures. No fracture or bruising "of the hyoid bone was found by him. Faced with the situation, Dr. Kumar in his cross-examination states that there were signs of pressure on the muscle of neck but then this explanation is not supported by the post mortem report which specifically notices that there were no marks on the neck. In fact, Dr. Kamal Kumar had not said anything about the hyoid bone. It is observed in the Fields Expert Evidence that individual dissection of the muscles of the neck in situ should be made in case where strangulation is suspected and fracture of hyoid bone is a common occurrence and if such fracture is found, it would be indicative of the fact that considerable violence has been applied to the neck. Such a fracture occurs easily in middle aged persons. 35. Such a fracture occurs easily in middle aged persons. 35. Modi in his Medical Jurisprudence and Toxicology, Twenty-first-Edition, observes : "If the fingers are used (throttling) marks of pressure by the thumb and finger tips are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side obliquely downwards and outwards, and one below the other, but are sometimes, found clustered together, so that they cannot be distinguished separately. These fingertip bruises, each disc-shaped and 1-2 cm in diam, look like red bruises (six penny bruises) if examined soon after the death, but they look brown, dry and parchment-like sometimes after death." Now, in the present case, no such marks were observed by Dr. Kamal Kumar who conducted the post mortem. 35. As noticed earlier, Dr. Kamal Kumar concluded that death of Raghu Ram occurred due to throttling as Iyrynx and trachaea were congested, phrynx showed hemorrahage and there was congestion in both the lungs. 36. Now such post mortem appearance also takes place in alcoholic deaths. In such cases, congestion in brain and internal organs is usually found. Modi in his Medical Jurisprudence and Toxicology, Twenty-first-Edition in Chapter XXXIII relating to Cerebral Poisons under the head "Alcohol (Ethyl Alcohol, Grain Alcohol) observed in respect of alcohol poisoning: "Alcoholic odour is perceptible in the stomach, lungs, and brain, unless putrefaction has set in....The liver, lungs and brain are usually congested and the blood is generally fluid and dark," (Emphasis supplied) 37. In the present case, Dr. Kamal Kumar (PW 12) found that brain as well as lungs were congested. Dr, Kamal Kumar admits in his cross-examination that bleeding which was noticed in the nose and sub-haemorrhage can be caused on account of other reasons. 38. The possibility that deceased might have died due to alcoholic poisoning cannot be entirely ruled out particularly when, according to the prosecution itself, deceased and accused took large quantity of alcohol right from afternoon till late in the evening. In any event, as pointed out earlier, this circumstance is neutral and cannot be said to be in consonance only with the guilt of the accused. (5) Recovery of incriminating article 39. In any event, as pointed out earlier, this circumstance is neutral and cannot be said to be in consonance only with the guilt of the accused. (5) Recovery of incriminating article 39. It is the case of the prosecution that dead body of Raghu was found lying 50 yards below the main path. One umbrella (PI) belonging to the accused and a maflar (P2), coat (P3), one sock (P4) belonging to the deceased Raghu and empty liquor bottle (P5) were found near the dead body. The recovery of empty bottle of liquor, maflar, coat and sock of the deceased from near the dead body of the deceased is of no significance as this recovery from near the dead body is not a circumstance against the accused. 40. So far recovery of umbrella (PI) belonging to the accused is concerned, it is to be noticed that according to Ahli Devi (PW1), she found umbrella of the accused lying near the maflar of the deceased. She took that umbrella to Smt. Dei wife of the accused who identified that umbrella to be that of her husband (accused). It is her evidence that umbrella was taken into possession by the police from her. No such umbrella was produced in the Court. What was produced in the court was handle of umbrella (PI). In her own words, "I have seen the handle of umbrella Ext. PI and it is the same. The cloth of the umbrella had been taken by the wife of the accused." The wife of the accused Dei has not been examined to show that the so called umbrella which was lying near the dead body belonged to the accused. There is no evidence to connect the handle of the umbrella Ext. PI with the accused. Perusal of seizure memo of umbrella Ext. PA shows that Ahli Devi had handed over, to the police, a broken iron stick with grey plastic handle and told the police that this was found lying in the place where the two paths, namely, Junwas Gaunwala and Kaproath Kharkua meet at Charagah. She kept the stick for herself, in order to walk with its help. The handle of umbrella (PI) is not identified to be the handle of the umbrella which may belong to the accused. This circumstance thus is not proved. 41. She kept the stick for herself, in order to walk with its help. The handle of umbrella (PI) is not identified to be the handle of the umbrella which may belong to the accused. This circumstance thus is not proved. 41. There is no other evidence on record to connect the accused with the commission of offence. The only circumstance proved on record is: "deceased was last seen in the company of the accused." 42. This circumstance alone is not sufficient to convict the accused for the murder of deceased Raghu. It is the own case of the prosecution that deceased Raghu and accused took liquor in the house of the accused and thereafter they together left for village Ledru at about 4.30 p.m. Therefore, it was natural for the accused to be in the company of the deceased. No adverse inference from this circumstance can be drawn. The circumstance does not lead to the conclusion that accused committed the murder of Raghu. In any event, this circumstance alone does not lead to the only conclusion that accused killed Raghu. Moreso, when factum of homicidal death of deceased is open to doubt. 43. In Prem Thakurv. State of Punjab, (1982) 3 Supreme Court Cases 462, there was no direct evidence to connect the accused with the murder. One of the circumstance relied upon was that deceased was last seen in the company of the accused on the evening preceding to the recovery of the dead body. In this context. Their Lordships of the Apex Court observed: "The circumstance that the appellant was last seen in the company of the deceased can be accepted as proved but no inference can arise therefrom that the appellant had committed their murder. The appellant was working with the deceased and others and there was nothing unnatural in the appellant being in the company of his companions on the evening before the murders were committed." 44. At best the evidence led by the prosecution raises suspicion against the accused but suspicion is no substitute for proof. Reference may be made to Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, the Apex Court in para 9 of the judgment observed : "9. At best the evidence led by the prosecution raises suspicion against the accused but suspicion is no substitute for proof. Reference may be made to Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, the Apex Court in para 9 of the judgment observed : "9. It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion howsoever strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused." 45. In the present case, there is no evidence against the accused apart from conjecture and suspicion. We have no hesitation to conclude that prosecution has failed to prove any case against the accused. 46. No other point is urged before us. 47. In result, appeal is accepted. The prosecution fails and is dismissed. The conviction of the accused set-aside. He stands acquitted. Accused be released forthwith if not required in any other case. The fine if realized be refunded back to him. Appeal allowed. -