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2005 DIGILAW 270 (KER)

Thankappan v. State Of Kerala

2005-04-07

J.B.KOSHY, M.SASIDHARAN NAMBIAR

body2005
Judgment :- Sasidharan Nambiar, J. Appellant was the accused in S.C.No.36/98 on the file of III Additional Sessions Judge, Thrissur. He was convicted and sentenced to imprisonment for life for the offence under Section 302 I.P.C., rigorous imprisonment for seven years for the offence under Section 392 of I.P.C. and rigorous imprisonment for four years for the offence under Section 201 I.P.C. Charge against the appellant was that he brought deceased Lysamma to Athirappally water falls on 27-1-1995 and intentionally caused her death by administering poison through mouth and also committed theft of her gold ornaments and also threw her dead body in Athirappally river, with an intention to cause disappearance of the evidence and thereby committed offence under Sections 302, 392 and 201 I.P.C. Appellant pleaded not guilty. Prosecution examined 25 witnesses and marked Exts.P-1 to P-19 and identified M.Os. 1 to 19. On the side of the appellant, Exts.D-1 and D-2 portions of the statements of P.Ws. 7 and 14 recorded-by PW. 23 the investigating officer under Section 161 Cr. P.C. were confronted and marked. Though appellant was called upon to enter on his defence and adduce evidence, he did not adduce any evidence. On these evidence, learned Additional Sessions Judge found appellant guilty and convicted and sentenced him as stated earlier. 2. Prosecution case in brief is as follows: Lysamma a spinster, aged 26 years was working in Amina Press, Poothole. On the morning of 27-1-1995, as usual, she had gone to the Press. But she did not return back in the evening. Her whereabouts were not known to P.W. 3, her mother, P.W. 2 and 4 the brother and sister. Though P.W. 2 and others made enquiries in the houses of their relatives and friends they could not get any information. On the evening of 1-2-1995 at 5.30 p.m. Markose the brother of P.W. 2 finished information about the missing of Lysamma. Ext. P-2 First Information Report was recorded by P.W. 21, the then Sub Inspector of Police, Viyyur Police Station and Crime 23/95 was registered under the caption women missing. On 13-2-1995 at about 12.30 p.m. P.W.1 Parameswaran, Watcher of Vazhachal Forest Division found the dead body of a lady in a partially decomposed stage at Karikkappara. The body was lying in the river among the rocks. P.W.1 furnished Ext. On 13-2-1995 at about 12.30 p.m. P.W.1 Parameswaran, Watcher of Vazhachal Forest Division found the dead body of a lady in a partially decomposed stage at Karikkappara. The body was lying in the river among the rocks. P.W.1 furnished Ext. P-1 First Information Statement which was recorded by P.W. 20, the Head Constable and registered the case. Getting information about finding of the dead body of a lady at Athirappally river, P.W. 2 the elder brother along with other relatives reached there and identified the dead body as that of Lysamma. P.W. 23, the Circle Inspector of Chalakudy Police took over the investigation. Appellant was the son of the sister of the mother of P.W.3. Since seven years before the date of occurrence, appellant was staying in the house of P.W.3. P.W.3 had six children three sons and three daughters. Except the youngest daughter Lysamma all were married. Along with P.W.3, her husband and Babu youngest son and his wife, child and Lysamma were residing. PW.2 the eldest son was residing in a nearby house. Deceased Lysamma was six months pregnant at the time of her death. According to prosecution, appellant was responsible for her pregnancy and he was planning to avoid deceased Lysamma and had gone to the house of P.W.8 with a proposal to marry his daughter and appellant had the motive to cause the death of Lysamma so as to enable him to marry another lady and intended to avoid Lysamma forever. According to prosecution, Lysamma was taken by appellant to Athirappally and administered poison and caused her death and also committed robbery of her ornaments which were later recovered on the information furnished by the appellant. 3. There was no direct evidence and prosecution is solely relied on the circumstantial evidence. The circumstantial evidence relied on by the prosecution and accepted by the learned Additional Sessions Judge were: (i) Appellant and deceased were last seen together at Vazhachal by P.W.5 and P.W.10. (ii) Recovery of M.O.5 bag of deceased under Ext. P-8 recovery mahazar by P.W.23, on the information furnished by the appellant. (iii) Recovery of M.O.12 empty container of insecticide Sumicidin 20 E which was administered to Lysamma to cause her death, on the information furnished by appellant. (iv) Recovery of M.Os.1, 2 and 11 gold ornaments of the deceased under Ext. P-11 recovery mahazar by P.W. 23, on the information furnished by appellant. (iii) Recovery of M.O.12 empty container of insecticide Sumicidin 20 E which was administered to Lysamma to cause her death, on the information furnished by appellant. (iv) Recovery of M.Os.1, 2 and 11 gold ornaments of the deceased under Ext. P-11 recovery mahazar by P.W. 23, on the information furnished by appellant. (v) and the motive. 4. Learned Additional Sessions Judge accepted evidence of P.W.5 and P.W.10 and held that appellant and deceased were last seen together on 27-1-1995 and thereafter her dead body was found and therefore it is a strong circumstance against the appellant. The learned Additional Sessions Judge also accepted the recovery of M.O.5 bag, M.Os. 1, 2 and 11 ornaments of the deceased on the information furnished by the appellant and also on the recovery of M.O.12 empty container of insecticide which was used as the poison to cause the death of Lysamma. The learned Additional Sessions Judge also found that prosecution has established the motive and therefore accepting the circumstantial evidence found appellant guilty of all the offences and convicted and sentenced him as stated earlier which is challenged in the appeal. 5. Appellant would contend that the learned Additional Sessions Judge did not properly appreciate the evidence and the last seen theory should not have been relied on the unsatisfactory evidence and recoveries under Exts.P-5, P-7, P-8 and P-11 mahazars were artificial and should not have been relied on and evidence of P.W. 5 and P.W. 10 would not establish that appellant was last seen with the deceased as found by the learned Additional Sessions Judge and therefore the conviction and sentence is unsustainable. Learned Counsel appearing for appellant had taken us through the depositions of prosecution witnesses and argued that P.W. 5 and PW. 10 did not depose that they had seen appellant with the deceased as found by the learned Additional Sessions Judge and therefore the conviction based on the last seen theory is unsustainable. Learned Counsel also argued that the evidence of prosecution witnesses establish that M.O.5 bag was not recovered on the information furnished by the appellant and instead it was with the police even at the time of preparing inquest. It was also argued that Ext. Learned Counsel also argued that the evidence of prosecution witnesses establish that M.O.5 bag was not recovered on the information furnished by the appellant and instead it was with the police even at the time of preparing inquest. It was also argued that Ext. P-18 post-mortem certificate with the evidence of P.W. 25 would establish that ornaments worn by the deceased were there in the dead body and therefore recovery of M.Os.1, 2 and 11 should not have been relied on by the learned Additional Sessions Judge and prosecution has not succeeded in establishing that appellant committed the offences and therefore conviction is unsustainable. The learned Public Prosecutor argued that learned Additional Sessions Judge had analyzed the evidence in the proper perspective and found the evidence convincing and reliable and there is no reason to interfere with the appreciation of evidence and therefore the conviction and sentence is only to be upheld. 6. Before considering the sufficiency of the circumstantial evidence relied upon by the learned Additional Sessions Judge, it is necessary to bear in mind the five golden principles which constitute the purchasal of the proof of a case based on circumstantial evidence as declared by the Apex Court. The fundamental and basic decision of the Apex Court is in Hanumant v. State of Madhya Pradesh A.I.R. 1952 S.C. 343 Apex Court laid down the principle as follows: It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. This decision was followed in Tufail v. State of Uttar Pradesh (1969) 3 S.C.C. 198 and in Ramgopal v. State of Maharashtra A.I.R. 1972 S.C. 656. This decision was followed in Tufail v. State of Uttar Pradesh (1969) 3 S.C.C. 198 and in Ramgopal v. State of Maharashtra A.I.R. 1972 S.C. 656. Analyzing the decisions, a later Bench of the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra A.I.R. 1984 S.C. 1622 has laid down the conditions to be fulfilled before a case against an accused can be said to be fully established basing on circumstantial evidence as follows: "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 S.C.C. 793: (A.I.R. 1973 S.C. 2622) where the following observations were made: certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions". (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for that 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. These golden principles were followed in all the subsequent decisions of the Apex Court. These golden principles were followed in all the subsequent decisions of the Apex Court. Therefore if appellant is to be convicted basing, on the circumstantial evidence, the circumstance from which the conclusion of guilt is to be drawn should be fully established and the facts so established should be consistent only with the hypothesis of the guilt of the accused and the circumstances should be of a conclusive nature and tendency and should exclude every possible hypothesis except the one to be proved and the chain of evidence must be 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. Therefore the circumstantial evidence must be of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then an accused is entitled to the benefit of doubt. In applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. Apex Court had considered this aspect in M.G. Agarwal v. State of Maharashtra A.I.R. 1963 S.C.200. It was held: It is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. Apex Court in State of U.P. v. Ashok Kumar Srivastava A.I.R. 1992 S.C. 840 has cautioned the courts regarding application of circumstantial evidence as follows: This Court his, time out of number, observed 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. But this is not to say that the prosecution must meet any and every hypothesis put forward by the, accused, however, far fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. The circumstances ought to justify the inference of guilt from the incriminating facts and circumstances which are incompatible with the innocence of the accused or guilt of any other person. 7. Prosecution case is that appellant caused the death of Lysamma by administering poison. It is therefore necessary to bear in mind the mode and manner of proof of cases of murder by administrating poison as laid down by the Apex Court in Ranigopal's case A.I.R. 1972 S.C. 656. The Apex. Court has held: Three questions arise in such cases, namely (firstly) did the deceased die of the poison in question? (secondly) had the accused the poison in question in his possession? The Apex. Court has held: Three questions arise in such cases, namely (firstly) did the deceased die of the poison in question? (secondly) had the accused the poison in question in his possession? and (thirdly) had the accused an opportunity to administer the poison in question to the deceased? It is only when the motive is there and these facts are all proved that the Court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death. Analyzing the said decision, Apex Court in Sarada's case A.I.R. 1984 S.C. 1622 held that in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased. Unfortunately these aspects were not properly considered by the learned Additional Sessions Judge. Therefore we find it necessary to analyze and reappraise the evidence in the proper perspective. 8. Learned Additional Sessions Judge relied upon the last seen theory basing on the evidence of P.W. 5 and P.W. 10. PW. 5 is an attestor to Ext. P-3 inquest report prepared by P.W. 23. He was having a small business at Athirappilly. P.W. 5 has a case that he had seen accused walking towards Vazhachal along with a lady who was Possessing M.O. 5 bag. M.O. 5 was identified as the bag belonging to deceased Lysamma by P.Ws.2 to 4 brother, mother and sister of the deceased. Learned Additional Sessions Judge holding that M.O. 5 vanity bag belong to the deceased and relying on the evidence of P.W.5 held that appellant was last seen with the deceased at Vazhachal and it is therefore for the appellant, to explain as to what happened to deceased Lysamma. As rightly argued by learned counsel appearing for the appellant, evidence of PW 5 was not properly appreciated by the learned Additional Sessions Judge. P.W. 5 had not identified the deceased and had only identified M.O. 5 bag as a bag which he had seen in the possession of a lady who was walking towards Vazhachal with the appellant. As rightly argued by learned counsel appearing for the appellant, evidence of PW 5 was not properly appreciated by the learned Additional Sessions Judge. P.W. 5 had not identified the deceased and had only identified M.O. 5 bag as a bag which he had seen in the possession of a lady who was walking towards Vazhachal with the appellant. He did not depose as to when he had seen appellant walking towards Vazhachal with that lady. Prosecution has not made any attempt to get the alleged lady identified by P.W. 5 even by showing her photograph. Therefore even if the evidence of P.W.5 as such is believed, it will not establish that appellant was found with the deceased on 27-1-1995 as claimed by the prosecution. P.W. 5 did not mention any reason much less specific reason to specifically recollect M.O.5 bag. Prosecution has no case that there is anything special to M.O.5 to enable P.W.5 to either recollect its possession by a lady or its identification subsequently from court. We would have accepted the case if M.O.5 was a rare bag, which by a cursory glance would be implanted in the minor of a person who happened to see it. M.O.5 is an ordinary vanity bag which is readily available in the market which could be possessed by any lady. In such circumstance, unless there is any special reason for PW. 5 to recollect its possession by a lady or to identify M.O.5, we find it difficult to rely on the evidence of P.W.5 to hold relying on his evidence that he had found the deceased along with the appellant at Vazhachal at a distance of 30 ft. away from the spot where P.W.5 was standing at that time. Even though P.W.5 was an attestor to Ext. P-3 inquest report and had seen the dead body wearing Churidar at the time of inquest, P.W.5 did not depose that the Churidar he found on the dead body was the dress worn by that lady who was walking along with the appellant on that day. Therefore it is impossible to rely on the evidence of P.W. 5 to hold that appellant was found with the deceased at Vazhachal and that was the last time anybody had seen the deceased alive. In fact P.W.5 did not identify the deceased as the lady with M.O.5 bag at all. 9. Therefore it is impossible to rely on the evidence of P.W. 5 to hold that appellant was found with the deceased at Vazhachal and that was the last time anybody had seen the deceased alive. In fact P.W.5 did not identify the deceased as the lady with M.O.5 bag at all. 9. P.W. 10 is the owner of a bunk shop at Athirappilly junction. Her evidence was that she had seen the appellant at Athirappilly junction. Her evidence was that along with a lady, appellant had come there and purchased a frooty from her shop and thereafter proceeded towards Vazhachal side. Though PW. 10 deposed that appellant was found perplexed at the time of purchase of frooty, she has no case that the lady was deceased Lysamma. She did not depose anything to fix the identity of the lady who was allegedly accompanying appellant at the time. Learned Additional Sessions Judge accepted the evidence of PW.10 and relying on her evidence held that deceased was last seen with the appellant at Athriapally junction and was found proceeding towards Vazhachal. As rightly argued by the learned counsel appearing for the appellant PW. 10 did not identify the lady as the deceased. P.W. 10 deposed that she had gone to the place where the dead body of Lysanuna was found. But she has no case that it was the deceased Lysamma, who was found walking along with the appellant at the time when he allegedly purchased frooty. Evidence of PW 10 establishes that she used to sell about 24 packets of frooty a day and the business depends upon the number of tourists visiting Athirappilly. P.W. 10 also depose that she cannot identify all persons who had purchased frooty, from her shop. Therefore unless there is any special reason, it is impossible to rely on the evidence of P.W. 10 to hold that she had found appellant at Athirappilly Junction or that appellant had purchased frooty from her shop. P. W. 10 also did not depose when she had seen appellant purchasing frooty much less on 27-1-1995. Therefore as P.W. 10 did not identify the deceased as the lady who was allegedly found with appellant at the time of purchase of frooty on her evidence, we find it impossible to hold that deceased was last seen with the appellant. P. W. 10 also did not depose when she had seen appellant purchasing frooty much less on 27-1-1995. Therefore as P.W. 10 did not identify the deceased as the lady who was allegedly found with appellant at the time of purchase of frooty on her evidence, we find it impossible to hold that deceased was last seen with the appellant. Moreover, even the evidence of P.W. 10 that appellant purchased frooty from her shop appears too artificial to be believed as she did not given any special reason for recollecting that fact. Even if her version is accepted, her evidence will not establish that appellant had purchased frooty on 27-1-1995 so as to arrive at a finding that deceased was last seen with the appellant. Unfortunately learned Additional Sessions Judge did not appreciate the evidence in the proper perspective. On analysing the evidence, we find that evidence of P.W.5 and P.W. 10 do not inspire confidence and cannot be relied on to hold that deceased was last seen with the appellant at Athirappilly Junction. There is absolutely no credible and acceptable evidence to prove that appellant was found with the deceased at Athirappilly. Though P.W. 12 a Receptionist of Preetharn Lodge, Thrissur was examined to prove that appellant had taken a room on rent in that Lodge on 16-1-1995 and vacated it on 18-1-1995, it does not connect the appellant with deceased Lysamma, as prosecution has no case that deceased was with the appellant on any day between 16-1-1995 and 18-1-1995. Therefore we find that prosecution has not conclusively established that deceased was last seen with the appellant. Therefore the last seen theory cannot be invoked in this case. 10. The finding of the learned Additional Sessions Judge on the cause of death of Lysamma was not disputed. After receiving Ext.P-16 report of chemical analysis of viscera of the deceased collected at the time of autopsy P.W.25, the Assistant Professor of Forensic Medicine, Medical College, Kozhikode who conducted the autopsy deposed that death was caused due to toxic organo floro compound poisoning. Evidence of P.W.25 corroborated by Ext.P-18 establish that there were no external injuries to the skull bone, brain, neck structures and other long bones. There were numerous post-mortem injuries due to attack of aquatic animal and the body was found in a state of decomposition. Evidence of P.W.25 corroborated by Ext.P-18 establish that there were no external injuries to the skull bone, brain, neck structures and other long bones. There were numerous post-mortem injuries due to attack of aquatic animal and the body was found in a state of decomposition. There was post-mortem delivery of foetus which was found lying close to external genitalia and in between the thighs. Evidence of P.W.25 with Exts.P-18 and P-19 conclusively establish that cause of death of Lysamma was toxic organo chloro compound poisoning. Ext.P-16 establish that organo chloro compounds are commonly used as insecticide. 11. Though prosecution had examined P.W.9 to prove that appellant had purchased Sumicidine an insecticide from her shop at the time of evidence, P.W.9 turned hostile to the prosecution. In cross-examination by the learned Public Prosecutor, P.W.9 deposed that Surnicid in is an insecticide used by agriculturists and it was being sold in her shop. But she did not support the prosecution case that appellant had purchased it from her shop. When insecticide is to be sold under a cash bill and RW9 used to issue cash bill for such sales, even according to prosecution case no such bill was issued to appellant evidencing the alleged sale. There is absolutely no evidence to prove that appellant was in possession of poison or insecticide which caused the death of Lysamma. The learned Additional Sessions Judge had found that appellant had first added sleeping pills into the frooty mango drink purchased by appellant from the shop of P.W. 10 and after the deceased slept due to the effect of sleeping pills, insecticide poison contained in M.O.12 bottle was administered to the deceased through her mouth. There is absolutely no evidence on these aspects. None of the witnesses spoke about it. There is no evidence to prove that sleeping pills was added in M.O. 13 frooty mango drink. In fact M.O. 13 was sent for chemical analysis. Ext.P-16 does not support the prosecution case that it contained sleeping pills. There is absolutely no evidence except the allegation that appellant poured insecticide into the mouth of the deceased while she was lying due to the effect of sleeping pills. M.O. 12 was recovered by P.W.23 under Ext.P-9 mahazar. P.W. 16 the attesting witness to Ext.-9 mahazar turned hostile to the prosecution. There is absolutely no evidence except the allegation that appellant poured insecticide into the mouth of the deceased while she was lying due to the effect of sleeping pills. M.O. 12 was recovered by P.W.23 under Ext.P-9 mahazar. P.W. 16 the attesting witness to Ext.-9 mahazar turned hostile to the prosecution. Though P.W.23 claimed that M.O.12 was recovered on the information furnished by appellant as is clear from the evidence M.O. 12 was available at the scene where the dead body was found and no credibility could be given to the alleged recovery of M.O. 12 under Ext.P-9 mahazar. Therefore recovery of M.O. 12 also does not connect appellant with the death of Lysamma especially when there is no evidence to prove that appellant had purchased or was possessing M.O. 12 or any other similar insecticide. 12. It is also not known why M.O. 12 empty bottle of the insecticide had to be concealed in a place near to the scene where the dead body was found. Even if M.O. 12 was found near the dead body like M.O. 13 empty packet of frooty, it would not have made any difference to the appellant or the real culprit. Therefore the case of concealment of M.O. 12 does not appear to be probable. 13. What remains is only the recoveries of M.Os. 1, 2 and 11 ornaments under Ext.P­11 mahazar by P.W.23. The learned Additional Sessions Judge relied on the recovery and held that as they belong to the deceased, it connects appellant with the murder. As rightly canvassed by the learned counsel appearing for the appellant, Ext.P-18 post-mortem certificate with the evidence of P.W.25 establish that when the autopsy was conducted, ornaments worn by the deceased were there on her body. The relevant portion of Ext.P- 18 reads: "She was also wearing designed metal ear rings beaded neck chain red, black and golden coloured consisting of large beads and small beads." Therefore it is clear that when Lysamma died, she was wearing designed metal ear rings and also a neck chain which were found intact in the dead body. At the time of evidence, the said ornaments found on the body were not seen marked or identified. P.W.3, the mother, was residing with the deceased, when deceased left the home for the last time on the morning of 27-1-1995. At the time of evidence, the said ornaments found on the body were not seen marked or identified. P.W.3, the mother, was residing with the deceased, when deceased left the home for the last time on the morning of 27-1-1995. But P.W.3 did not disclose the details of the ornaments the deceased was wearing at that time. If the deceased was wearing designed metal earnings found on the dead body, it is not explained why deceased should carry M.O.2 golden earnings with pendant with her. So also when she was wearing a chain on the neck as evidenced by Ext.P-18 report, it is not clear and it was not explained why deceased was carrying M.O. 11 gold chain with her. Moreover, according to prosecution M.O. 11 did not belong to the deceased but to P.W.7. According to P.W.7, deceased had borrowed M.O.11 from her on 25-1-1995 representing that she has to attend a marriage on 26-1-1995 and thereafter P.W.7 did not see the deceased. According to prosecution, M.O.11 was recovered from the shop of P.W. 18 under Ext. P-11 recovery mahazar. Learned Additional Sessions Judge relied on the said recovery as well as the recovery of M.O.5 vanity bag under Ext.P-8 recovery mahazar and P.W. 15 one of the attestors to Ext.P-8 recovery mahazar. The question is how far the recovery could be relied on and how far it connects appellant with the offences? 14. As per the evidence of P.W.23, M.O.5 was recovered under Ext.P-8 recovery mahazar at 7.30 am on 18-2-1995. Evidence of P.W.23 was that appellant was arrested at 6 p.m. on 17-2-1995 and on questioning appellant, he made a confession about M.Os. 5, 1, 2, 11 and 12 and on the morning of 18-2-1995 as led by the appellant, they reached the place near the scene where deadbody of the deceased was found and as pointed out by the appellant M.Os. 1, 2 and 11 ornaments, M.O.5 bag, and M.O. 12 empty bottle of insecticide and M.Os.9 and 10 dresses were recovered. P.W. 23 admitted that he took over the investigation on 15-2-1995. Immediately he was convinced that appellant had murdered the deceased. P.W.23 also deposed that though appellant was questioned on 15-2-1995 immediately after the burial, he was arrested only on the evening of 17-2-1995. P.W. 23 admitted that he took over the investigation on 15-2-1995. Immediately he was convinced that appellant had murdered the deceased. P.W.23 also deposed that though appellant was questioned on 15-2-1995 immediately after the burial, he was arrested only on the evening of 17-2-1995. Evidence would establish that appellant was also present at the time of cremation and was taken into custody by the Police which was partly admitted by P.W.23. Though P.W.23 deposed that he arrested appellant only on the evening of 17-2-1995, the defence case that appellant was under the custody of the Police from the date of burial and was tortured till the time of arrest is probabilised. Recovery affected by P.W.23 has to be appreciated in that background. Though P.W.23 claimed that M.O.5 was recovered at 7.30 a.m. on 18-2-1995. Evidence of PW.6, the attesting witness to Ext.P-3 inquest report would establish that M.O.5 bag was there with the Police even on the date when the inquest was prepared. It was unambiguously stated by P.W. 6 that he had found the Police taking M.O.5 from the scene of occurrence. If that be the case, no value could be attached to the recovery of M.O.5 under Ext.P-8 as its recovery could not have been on the information furnished by the appellant. The evidence of P.W. 15, the attesting witness to Exts.P-7 and P-8 mahazars also do not establish that they had seen the appellant taking either M.O.5 or M.Os. 9 and 10 from any concealed place. He only deposed he had seen appellant handing over them to the Police. When M.O.5 was available with the Police, even on the date when the dead body was found as is clear from the evidence of P.W.6 recovery of M.O.5 as claimed by P.W.23 cannot be believed or relied on. If recovery of M.O.5 is a false recovery, that would definitely affect the further recoveries evidenced by Exts.P-9 and P-11 on the same day. M.O. 12 was recovered under Ext.P-9 recovery mahazar. Evidence of P.W. 16 the attestor to the recovery mahazar also establish that he had seen M.O. 12 bottle in the water even before the Police had come there. When a dead body in a partly decomposed stage was found among the rocks in the river, it cannot be expected that Police will not search the scene especially to find out the clue, if any, for the death. When a dead body in a partly decomposed stage was found among the rocks in the river, it cannot be expected that Police will not search the scene especially to find out the clue, if any, for the death. If any such search was effected, M.O.5 vanity bag and M.Os.9 and 10 dresses and M.O. 12 would have definitely been found out by the Police. Therefore no value could be given to the recovery effected by P.W.23 under Exts.P-7, P-8 and P-12 mahazars. 15. What remains is only the recovery of M.Os. 1, 2 and 11 ornaments. Evidence of P.W.23 is that as led by the appellant, he along with the appellant, reached the shop at 1.35 p.m. on 18-2-1995 and in the presence of P.W.17 M.Os. 1, 2 and 11 were recovered under Ext.P-11. As stated earlier, though P.Ws. 2 to 4 had identified M.Os. 1 and 2 as the ornaments belonging to the deceased, there is no evidence to prove that these ornaments were with the deceased when she was last seen leaving her house by P.W.3. Though P.W. 18 supported the prosecution case and deposed that he had purchased M.Os. 1, 2 and 11 from appellant and produced them before P.W.23 as the appellant wanted them to be produced, an analysis of the evidence of P.W. 18 does not satisfy that he is a credible and trustworthy witness. If we are to believe P.W. 18, after purchasing M.Os. 1, 2 and 11, he had displaced all these ornaments for sale in his shop. When P.W.23 reached the shop on 18-2-1995 along with the appellant, appellant pointed out each of the ornaments which were displaced at different places in the shop and he produced them. Evidence of P.W.18 was that he is maintaining a register where he used to enter the details of the purchase of gold ornaments. According to him, the register would show the date of purchase and the details of the ornaments purchased, the price paid as well as the person from whom it was purchased. If that be the case, that register is the best evidence to establish that M.Os.1, 2 and 11 were sold by the appellant and purchased by P.W.18. It is not explained why the register was not seized by the Police and why it was not produced. If that be the case, that register is the best evidence to establish that M.Os.1, 2 and 11 were sold by the appellant and purchased by P.W.18. It is not explained why the register was not seized by the Police and why it was not produced. It could only be because there was no such register and P.W. 18 is trying to justify his actions with an imaginary register. As rightly pointed out by the learned counsel appearing for the appellant, P.W. 17 attestor to Ext.P-11 mahazar is a resident near to the residence of the deceased far away from the shop of P.W 18. Though P.W. 17 deposed that he had come near to the shop of P.W 18 on that day, it appears too artificial to be believed. Moreover, if M.O. 11 ornament was obtained on loan by the deceased on 25-1-1995 as claimed by P.W.7 and that fact was informed to P.W.3 when P.W.7 came to her house after the deceased was found missing. If so that fact would have been definitely mentioned in Ext.P-2 report whereby the missing of the deceased was reported to the Police. Appreciating the entire evidence in the proper perspective, we find that that recovery of M.O.5, M.O. 12 or M.O. 1, 2 and 11 as claimed by the prosecution is not trustworthy or reliable. Therefore the recovery also will not help the prosecution to connect the accused with the death of the deceased. 16. Moreover as held by apex court in various decisions including Baiju v. State of M.P.1978 (1) S.C.C. 588, Earabhadrappa v. State of Karnataka 1983 (2) S.C.C. 330, Gulab Chand v. State of M.P 1995 (3) S.C.C. 574, Mukund alias Mishra v. State of Madhya Pradesh A.I.R. 1997 S.C. 2622, A. Devendran v. State of T.N. 1997 (11) S.C.C. 720 and Ganesh Lal v. State of Rajasthan 2002 Crl.L.J.1967 it is settled law that recovery of stolen property from the possession of an accused enables a presumption as to Commission of offence other than theft or dacoity being drawn against the accused so as to hold him a perpetrator of such offence only on the following tests being satisfied. (i) The offence of criminal misappropriation, theft or dacoity relating to the articles recovered from the possession of the accused and such other offences can reasonably be held to have been committed as an integral part of the same transaction; (ii) The time-lag between the date of Commission of the offence and the date of recovery of articles from the accused is not so wide as to snap the link between recovery and Commission of the offence; (iii) Availability of some piece of incriminating evidence or circumstance, other than mere recovery of the articles, connecting the accused with such other offence; (iv) Caution on the part of the Court to see that suspicion, however strong, does not take the place of proof. The only evidence before the court is that deceased Lysamma was last seen when she left the house in the morning of 27-1-1995 to Amina Press where she was working. Her dead body was found only on the afternoon of 13-2-1995. There is absolutely no evidence to find out exactly when the death occurred. Evidence of P.W.25, the doctor would only indicate that death might have occurred seven days prior to the date of autopsy conducted by him on 14-2-1995. There was no evidence to prove that M.Os. 1, 2 or 11 were with the deceased when she left the house on the morning of 27-1-1995. Hence recovery of M.Os. 1, 2 and 11 effected by P.W.25 cannot be taken as an incriminating evidence and circumstances to connect appellant with the murder of deceased Lysamma. 17. Analyzing the evidence in the proper perspective we find that except the evidence of a motive alleged by prosecution namely, to remove deceased Lysamma from the scene as she was impregnated by him, and he was preparing to marry another woman, there was no evidence to prove that appellant had the poison in his possession which caused the death of Lysamma. So also no acceptable and credible evidence was adduced by prosecution to prove that appellant had an opportunity to administer the poison to the deceased. Therefore, prosecution has not succeeded in establishing the tests formulated by apex Court in Sarath's case [Sharad v. State of Maharasthra A.I.R. 1984 S.C. 1622. There is no acceptable evidence to conclusively hold that death of Lysamma was in fact a homicide and not a suicide. It may or may not be a suicide or homicide. Therefore, prosecution has not succeeded in establishing the tests formulated by apex Court in Sarath's case [Sharad v. State of Maharasthra A.I.R. 1984 S.C. 1622. There is no acceptable evidence to conclusively hold that death of Lysamma was in fact a homicide and not a suicide. It may or may not be a suicide or homicide. Prosecution has failed to establish sufficient circumstances, consistent only with the hypothesis of guilt of appellant so that the circumstances should not be explainable on any other hypothesis except the hypothesis that appellant was guilty. No circumstance having a conclusive nature and tendency excluding every other possible hypothesis except that appellant was the perpetrator of the crime was established. Moreover, when on the evidence two possibilities are available or open, one which goes in favour of prosecution and the other which benefits the accused, appellant is undoubtedly entitled to the benefit of doubt. Therefore, we have no hesitation to hold that prosecution has failed to establish that appellant has caused either the death of deceased Lysamma or committed theft of her gold ornaments. Consequently, we set aside the conviction and sentence passed by learned Additional Sessions Judge. 18. Appeal is allowed. Conviction and sentence passed by the learned Additional Sessions Judge in S.C. 36/1998 is set aside. Appellant/accused is found not guilty of the offences charged. He is acquitted. Bail bond executed by him stands cancelled. He is set at liberty. He is to be released from prison forthwith, if not wanted in any other case.