JUDGMENT A. Hazarika, J. 1. Being aggrieved by the judgment and order of conviction, passed by the learned Sessions Judge, Nagaon, on 14.6.2004 in Sessions case No. 155/2000, convicting the accused Appellant under Section 302 Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 2000/-, in default, rigorous imprisonment for another six months and also convicting the accused Under Section 448 IPC by sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default, rigorous imprisonment for another one month, the accused Appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure 1973, questioning the legality and validity of the judgment and order of conviction. 2. The conspectus of the prosecution case, in briefs as under. On 7.9.1998, at around 5 P.M. when no member of the family was present in the house except the deceased, the accused entered into the house and killed her and left after hanging. The mother of the deceased examined as P.W. 1, when returned from the 'Namghar', (community prayer house) saw Arun, the accused, running away from inside the house through the rear door of the house and on entering the inner room in the north, she found her daughter hanging, which culminated in lodging the F.I.R. by the brother of the deceased who is examined as P.W. 2 by the prosecution. On receipt of the aforesaid F.I.R., the Officer-in-charge, Khatowal Police Station, registered a case being Khatowal P.S. Case No. 34/98 under Section 302 I.P.C. The Investigating Officer investigated the case. During investigation, the witnesses were examined under Section 161 of the Code of Criminal Procedure, he drew a sketch map of the place of occurrence, made inquest on the dead body and arrested the accused and sent the dead body for post mortem examination. On completion of investigation, he had submitted the charge sheet. Since the case is triable by the Court of Sessions, it was trasmitted to the learned Court of Sessions, Nagaon, who had framed the charge under Section 302 / 448 I.P.C. against the accused and the charge was read over to the accused to which, the accused pleaded not guilty. 3. During the trial, the prosecution examined altogether 8 (Eight) witnesses, including the Doctor and the Investigating Officer to substantiate the charge. 3. During the trial, the prosecution examined altogether 8 (Eight) witnesses, including the Doctor and the Investigating Officer to substantiate the charge. P.W. 1, Smti, Premalata Nath Devi deposed that, on the day of occurrence, she had gone to 'Namghar' at noon, leaving her daughter alone at home and returned home at 5 P.M. On her return, she found the front door of the house closed from inside. She called out but did not get any response. She then went to the rear door of the house and called out. At that, the accused opened the door and ran away. Going inside, she had found water lying at the doorway. On entering the house, she found her daughter Tutumoni, the deceased, lying unconscious, leaning against the wall next to the bedstead. The deceased had a yellow 'Churni' tied around her neck and her mouth was gagged with a blouse. She was unconscious. Thereafter, she raised a commotion. Neighbouring people came. Blood was flowing out her genitalia. P.W. 1 has further stated that, the accused hails from their village. They have no visiting terms with the accused. However, she saw the accused on the road occasionally. They had no quarrel with the accused. During cross examination, P.W. 1 had stated that, they had no dispute with the accused involving the deceased. There was no arbitration involving them. The deceased had no relation with the accused. She had never found the accused in their home previously. She had stated that, when her statement was recorded by the police, she had told that, a couple of months ago, she had told Arun's parents about his developing love affair with her daughter. When she had seen the occurrence, she came out shouting and became unconscious. She regained consciousness on the next day. Till that time, her daughter had been hanging. Police came at about 8 A.M., the next day and her daughter had still been hanging from the rafter. The police took the dead body down. She had further stated that, her daughter had never gone to stay in Arun Nath's house, the accused. However, her daughter had gone to Arun Nath's house sometime one month proceeding her death, to lodge a complaint there and she came back when her complaint yielded nothing. The other suggestions put to her, had been denied. 4. She had further stated that, her daughter had never gone to stay in Arun Nath's house, the accused. However, her daughter had gone to Arun Nath's house sometime one month proceeding her death, to lodge a complaint there and she came back when her complaint yielded nothing. The other suggestions put to her, had been denied. 4. The prosecution examined Shri Prabin Nath as P.W. 2, the brother of the deceased, who had lodged the F.I.R. This witness had stated that, while returning home in the afternoon, a man informed him that his sister had died. On reaching the home he had found a lot of man gathered in the courtyard. He met his mother P.W. 1 there, who told him that, Arun, the accused, killed his sister and had gone away by the rear door by pushing her away. Thereafter, he lodged the F.I.R. with Khatowal police station. Police came at night and seized a blouse and a yellow 'Churni' belonging to his sister. P.W. 2 had signed in the seizure list. Ext. 1(1) is his signature. In cross examination, he had stated that, he had no quarrel with the accused. However, he had heard about six months ago that, Arun, the accused had an affair with his sister and since then he had not talked to the accused. He further deposed that, though police came at night, they went away without taking the body down. Police took the body down about 9 A.M., the next day. The suggestions made to him by the prosecution house been denied. 5. Shri Tholok Chandra Nath has been examined as P.W. 3 who deposed that, at the time of occurrence, he had been cleaning jute fibres in a drain along the road in front of Tutumoni's (deceased) house and the time was about 5 P.M. At the time of commotion over the death of Tutumoni, the accused came there and asked him what has happened in their house. When P.W. 3 said he had no idea, the accused went away towards his own house along the road. At that time, the accused was wearing a 'lungi'. He has further deposed that, on hearing the commotion, he went to the house of the deceased and found a pool of water inside the house. He has found a pair of underpants lying on the water. At that time, the accused was wearing a 'lungi'. He has further deposed that, on hearing the commotion, he went to the house of the deceased and found a pool of water inside the house. He has found a pair of underpants lying on the water. The deceased was hanging straight along the wall adjacent to the bed inside with an 'orna' around her neck. However, her legs were touching the ground. The knot on the neck was towards the ear. He has found the mother of the deceased shouting inside the room and crying to the effect that Arun Nath drunk blood. In cross examination, P.W. 3 has stated that, the deceased was the daughter of his wife's elder brother. P.W. 3 stated that, when Arun Nath had called him, he was working with his head down. He has admitted that, when his statement was recorded by the police, he did not tell that, the accused had come wearing 'lungi' or that, Tutumoni's neck had been tied with an 'orna' or that,. Tutomoni's mother had been shouting that, Arun Nath had drunk the blood of her daughter. The other suggestions have been denied by P. W. 3. 6. The prosecution has examined Pradip Nath as P.W. 4, who has deposed that, hearing the sound of weeping from Tutu Devi's house, he was proceeding towards that, when he met P.W. 2 on the way. P.W. 2 told him that, he was going to P.W. 4 and said that, Tutu had died by hanging. Hearing the news, he went to Tunumoni's house and found her dead standing against the wall. Her legs were touching the ground. He met the mother of the deceased, P.W. 1, who told him that even after calling Tutu for several times, she did not get any response and having found the front door closed, she reached the rear door and was about to enter the room, the accused Arun Nath had pushed her away and ran away by the yard. On her request, P.W. 4 wrote the 'ejahar' P.W. 4 is the witness of the seizure list (vide Ext. 2), Ext 2(1) in his signature. The police sent him to the court and his statement was recorded by a Magistrate. On her request, P.W. 4 wrote the 'ejahar' P.W. 4 is the witness of the seizure list (vide Ext. 2), Ext 2(1) in his signature. The police sent him to the court and his statement was recorded by a Magistrate. In cross examination, he has deposed as under: It is not true that my statement that when, on the day of occurrence I had arrived (at the place of occurrence) after hearing the commotion, Tutu's mother Premalata had told me that having found the front door closed, when she had gone to the rear of the house, Arun Nath had come out from inside the house and had gone away, showing her aside is not true. The other suggestions put to him, has been denied. 7. The prosecution has examined Shri Padum Nath as P.W. 5. In his deposition, he has stated that, some three years ago, in the afternoon, he had gone to the field and on his way, he had heard a commotion in the house of his paternal uncle, Deben Nath and accordingly he went there and saw the daughter of his paternal uncle, Tutumoni, had been hanging inside the house and her legs had been touching the ground. On question to P.W. 1, she told him that Arun Nath had killed her daughter. In cross examination, he has stated that, he had found Tutumoni tied with a 'Chumi' and she had been hanging from the 'Marali' (rafter). He has further stated that, she had been hanging at a place between the bed and a raised platform. The other suggestions have been denied by him. 8. As a prosecution witness, Shri Pabitra Nath has been examined as P.W. 6, who has stated that, he was not at home when the occurrence took place and he came to the residence at 6:30 P.M. and then only he came to know that, Tutumoni had died. Accordingly, he went to their house and saw, she was hanging. Her legs had been touching the ground and he was the witness of the seizure list. In cross examination nothing has been brought to substantiate the innocence of the accused. 9. Accordingly, he went to their house and saw, she was hanging. Her legs had been touching the ground and he was the witness of the seizure list. In cross examination nothing has been brought to substantiate the innocence of the accused. 9. Doctor has been examined as P.W. 7 by the prosecution, who has performed the postmortem examination and found the following: "One non continuous oblique ligature mark high up in the neck below and behind the right ear and perchentization of underlying skin cynoses face and nail beds." In the opinion of the Doctor, death was due to asphyxia as a result of hanging. In cross examination, he deposed that he had found no external and internal injuries on the body of the deceased. 10. The Investigating Office has been examined as P.W. 8, who had submitted the charge sheet after completing the investigation as required under the law. P.W. 8 deposed that, on 7.9.98, he was the O/C, Khatowal Police Station. After receipt of the F.I.R., he registered a case and went to Katani village, where the occurrence took place. He went to complainant's house and found a girl, named Tutu Devi was hanging from the bamboo "Marali" inside the house. He drew a sketch map, held inquest on the dead body, seized about five feet long and two feet wide, yellow "Churni", an old house, prepared the seizure list, arrested accused Arun Nath, recorded the evidence of witnesses present there and after completion of investigation, submitted the charge sheet. In the cross examination, he has stated that, a 'Churni' had been used in the hanging. He had found her hanging 7 ½ feet above the ground and he had measured the height. When he was confronted with the statement made by the prosecution witnesses he has denied the same which was contrary to 161 statement recorded under the Code of Criminal Procedure. 11. Advancing the argument on behalf of the Appellant, Sri F.H. Laskar, Advocate, took us to the evidence of the Doctor, P.W. 7 as well as to the post mortem report and has referred the evidences of other prosecution witnesses which is contrary to medical report He has further argued on the discrepancies in the evidence of P.W. 2 and P.W. 4 in regard to filing of First Information Report. He has also took us to the evidences of all the prosecution witnesses in regard to touching of legs to the ground of the deceased when she was hanging. In regard to touching of legs, P.W. 1 who was the first witness to have seen the occurrence is silent about the same. The evidence as led by the prosecution would reveal that, there was no eyewitness to the occurrence and the prosecution version rests on the circumstantial evidences which could not prove the guilt of the accused beyond all reasonable doubt, more so, when no independent witness was examined by the prosecution to prove the guilt of the accused and the other witnesses being highly interested witnesses, it would be unsafe to rely on the evidence as produced by the witnesses. The cause of death is hanging and it would be improbable for the accused to hang the deceased after killing her and hence prayed for acquittal of the deceased. 12. On the other hand Shri D. Das, learned P.P., appearing for the prosecution has argued that the prosecution has established the chain of circumstances for which the presumption goes against the accused, more so, in view of the evidence of the P.W. 1, who has seen the accused running away from the rear door after pushing her away and subsequently came near to the house of the deceased and therefore urged that, the prosecution has established the guilt of the accused beyond all reasonable doubt and prayed for dismissing the appeal. 13. The learned Sessions Judge relied on the following circumstances, while arriving at the guilt of the accused Appellant for the commission of the offence Under Section 302 I.P.C. (i) The accused came out of the house and fled away to his own house. (ii) The deceased was found hanging. (iii) Her legs were found touching the ground which ruled out the theory of suicide. (iv) The death was due to asphyxia as a result of hanging. There was no plausible explanation on the part of the accused for his presence at the place of occurrence. 14. This Court has considered the argument advanced by the parties and has gone through the evidence of the prosecution witnesses. (iv) The death was due to asphyxia as a result of hanging. There was no plausible explanation on the part of the accused for his presence at the place of occurrence. 14. This Court has considered the argument advanced by the parties and has gone through the evidence of the prosecution witnesses. Admittedly, there is no eye witness and the entire story depends on circumstantial evidence and thus this Court is to see as to whether the prosecution has established the guilt of the accused. All the prosecution witnesses, if meticulously examined would reveal the following: a) P.W. 1 has stated that, on her return she had found that, the front door of her house was closed from inside, She called out but there was no response. Thereafter, she went to the rear of the house and called out. At that time the accused opened the door, pushed her aside and ran away. Going inside, she found her daughter lying unconscious against the wall next to the bedstead. She had a yellow 'Chumi' tied around her neck and her mouth was gagged with a blouse. She was unconscious then. b) P.W. 2 has stated that, on receipt of the information, he came home and found a lot of man gathered in the courtyard. He met his mother who told him that, Arun had killed Tutumoni and had gone away by the rear door by pushing her. c) P.W. 3 has stated that when there was a commotion on the death of Tutumoni, the accused came there and asked him what had happened in their house. At that time the accused was wearing a 'lungi' and thereafter, P.W. 3 went to the house of the deceased and found the deceased was hanging and her legs were touching the ground. d) P.W. 4 has stated that, he met P.W. 2 on the way and he told him that, Tutu had died by hanging and found her dead against the wall and her legs were touching the ground. e) P.W. 5 and P.W. 6 have corroborated P.W. 3 and P.W. 4 on the point of death by hanging and touching of the legs on the ground. 7) P.W. 7, the Doctor has opined that, death was due to asphyxia as a result of hanging and he has not found any external or internal injuries. e) P.W. 5 and P.W. 6 have corroborated P.W. 3 and P.W. 4 on the point of death by hanging and touching of the legs on the ground. 7) P.W. 7, the Doctor has opined that, death was due to asphyxia as a result of hanging and he has not found any external or internal injuries. g) The Investigating Officer who was examined as P.W. 8, has stated that, Tutumoni was hanging 7½ feet above the ground when measured. 15. The evidences of P.W. 1 contradict the evidences of P.W. 3, P.W. 4, P.W. 5 and P.W. 6 on the material point in regard to cause of death vis-a-vis hanging. P.W. 2, who is the brother of the deceased is silent on the point of cause of death though in the F.I.R., accusation was made against the accused stating that, after killing his sister, the accused had hanged her, which also contradicts the opinion of the Doctor, more so, when the Doctor did not find any injury, external or internal, on the person of the deceased. The witnesses examined, would reveal that all are interested witnesses. Though some independent witnesses were present after the occurrence, the prosecution has failed to examine any independent witness in regard to cause of death and subsequent hanging of the deceased by the accused. 16. Now, the question is, whether the above pieces of circumstances established by the evidence on record only point towards the guilt of the accused. The submission of the learned Counsel for the Appellant is that, P.W. 1, the first person to witness the occurrence, materially contradicts the other P.Ws., apart from medical evidence. Therefore the circumstances established by the prosecution do not form complete chain so as to implicate the Appellant in the alleged crime. Moreover, it is humanly impossible to kill a person by strangulation and thereafter hang her 7½ feet above the ground and therefore submitted that, it is a case of acquittal if we accept the story of prosecution. 17. The law regarding circumstantial evidence is well settled when a case rests only upon the circumstantial evidence. Such evidence must satisfy the following tests. 17. The law regarding circumstantial evidence is well settled when a case rests only upon the circumstantial evidence. Such evidence must satisfy the following tests. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be 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 inconsistent with his innocence. 18. Furthermore, it is necessary to distinguish between facts which may be called primary or basic facts on 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 appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect 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 facts are inconsistent with the innocence of the accused and are consistent only with his guilt. The above observation has been made by the Apex Court in Kishore Chand v. State of Himachal Pradesh, reported in AIR 1990 SC 2140 . 19. The above observation has been made by the Apex Court in Kishore Chand v. State of Himachal Pradesh, reported in AIR 1990 SC 2140 . 19. The above decision has further been supported in a case decided by the Apex Court reported in (2002) 6 SCC 715 : AIR 2002 SC 3064 (Mohibur Rahman v. State of Assam) relevant paragraph 3 of the judgment is reproduced below: It is well settled by a catena of decisions of this Court that in order to find conviction on circumstantial evidence each of the incriminating pieces of circumstantial evidence should be proved by cogent and reliable evidence and the court should be satisfied that the proved pieces of circumstantial evidence taken together forge such a chain wherefrom no inference other than of guilt can be drawn against the accused person or in other words, the proved pieces of circumstantial evidence should not be capable of being explained on any hypothesis other than guilt of the accused. 20. The above decisions make it clear that, in order to base a conviction on circumstantial evidence, the first requirement is the establishment of primary or basic facts and the second requirement is that, the proved pieces of circumstances taken together must forge such a chain, from which no inference other than the guilt of the accused can be drawn. The circumstances leading to the alleged guilt of the accused in this case had not been proved by the prosecution witnesses as enunciated above. Therefore, the basic facts established by evidence on record, leads to only inference i.e. the Appellant has not committed the crime. The record of examination of the Appellant under Section313 of the Code of Criminal Procedure coupled with the part of cross examination of P.W. 1 and P.W. 2 would lead to the facts that there were some affairs between the accused and the deceased and the accused has satisfactorily explained the answer put to him, which cannot be termed as contrary to the material on record and no adverse inference can be drawn against the accused. The prosecution having failed to establish the guilt of the accused beyond all reasonable doubt, benefit of doubt would go in favour of the accused. 21. In the present case, the prosecution has Med to establish the guilt of the accused either by direct evidence or by circumstantial evidence beyond all reasonable doubt. The prosecution having failed to establish the guilt of the accused beyond all reasonable doubt, benefit of doubt would go in favour of the accused. 21. In the present case, the prosecution has Med to establish the guilt of the accused either by direct evidence or by circumstantial evidence beyond all reasonable doubt. The circumstances relied upon by learned Sessions Judge in convicting the accused Appellants Under Section 302 IPC are not based on basic principles of law relating to circumstantial evidence and we are of the opinion that those are not sufficient to arrive at the finding of guilt of the accused Appellant Under Section 302 IPC and as such this Court has no hesitation to set aside the judgment and order convicting the accused under Section 302 / 448 I.P.C., sentencing him to suffer rigorous imprisonment for life under Section 302I.P.C. and to pay a fine of Rs. 2000/-, in default, rigorous imprisonment for another six months and the conviction under Section 448 I.P.C. sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 2000/-, in default rigorous imprisonment for another one month. 22. In the result, the appeal is allowed by setting aside the conviction and sentence rendered by the learned Sessions Judge, Nagaon, under Section 302 / 448 I.P.C. in sessions case No. 155/2000 and the accused Appellant be set free forthwith, unless required in any other case. Appeal allowed