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2009 DIGILAW 1091 (JHR)

Mangal Deo Oraon v. State of Jharkhand

2009-08-06

D.N.PATEL, R.R.PRASAD

body2009
Oral Order per D.N. Patel, J.- The aforesaid Criminal Appeal has been preferred by the convict-accused against the judgment and order of conviction and sentence dated 21st January, 2003 and 23rd January, 2003 respectively, passed by the learned 1st Additional District & Sessions Judge, Latehar, in Sessions Trial No. 20 of 2002, whereby, the present appellant-accused has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 5,000/- and in default of payment, to undergo rigorous imprisonment for one year and in such a case, both the sentences have been ordered to run concurrently. Further, though the appellant-accused has been convicted for the offence under Section 201 of the Indian Penal Code, no separate sentence has been awarded. 2. If the prosecution case is unfolded, the facts of the case are as under:- It is the case of the prosecution that on the date of incident i.e. on 15th November, 2001, one Smt. Somariya Devi, who is the wife of the appellant-accused, was murdered and was thrown in a well, nearby the house of the appellant-accused. It is also the case of the prosecution that the appellant-accused had gone at the parental house of the deceased, in search of his wife, and the prosecution witnesses, who are father and brothers of the deceased, conveyed the appellant-accused that the deceased had not come at their house. Thereafter, it appears from the case of the prosecution that the informant (P.W. 6), who is brother of the deceased, had gone in search of his sister at the house of the appellant-accused and there he came to know from the villagers that the dead body of his sister is in a well. Thereafter, the dead body of his sister was brought out of the well and an inquest report (Panchanama) was drawn up and the informant lodged a F.I.R. on 19th November, 2001 at 8.00 p.m. at Manika Police Station, within the district of Latehar. Thereafter, investigation was taken up by the Investigating Officer and statements of the prosecution witnesses were recorded by the Investigating Officer and finally charge-sheet was submitted against the present appellant-accused. Thereafter, investigation was taken up by the Investigating Officer and statements of the prosecution witnesses were recorded by the Investigating Officer and finally charge-sheet was submitted against the present appellant-accused. Thereafter, the case was committed to the Court of Sessions, where it was numbered as Sessions Trial No. 20 of 2002 and after concluding the trial, upon circumstantial evidence, the present appellant-accused has been convicted for the offence under Section 302/201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life, as stated hereinabove, for committing murder of his wife Smt. Somariya Devi. Against this judgment and order of conviction and sentence, the present appeal has been preferred by the appellant-accused. 3. We have heard learned counsel appearing for the appellant-accused, who has mainly submitted that the prosecution has failed to prove charge of murder, beyond reasonable doubts against the present appellant-accused. In fact, the appellant-accused, who is husband of the deceased, is quite innocent and there is no involvement of the appellant-accused, on the contrary the appellant-accused was in search of his wife and, therefore had voluntarily gone at the parental house of the deceased. This conduct of the appellant-accused leads to his innocence and not to his guilt. 4. It is also contended vehemently by the learned counsel for the appellant-accused that no chain of circumstances has been proved, so that it can be said to be a complete chain of circumstances, which leads to one and only one conclusion that the appellant-accused has committed murder of his wife (deceased). On the contrary, no cogent and convincing circumstances have ever been proved by the prosecution. It is submitted by the learned counsel for the appellant-accused that there is no eye-witness of the whole incident and the prosecution witnesses, who have been examined, are the relatives of the deceased and, therefore, they being the highly interested witnesses, their evidences or depositions must be viewed with all circumspection by this Court. It is also submitted by the learned counsel for the appellant-accused that highest case of the prosecution against the present appellant-accused is the blood stains in the house of the appellant-accused, relying upon which the appellant-accused has been punished by the trial court, but, looking to the evidences this circumstance has not been proved at all by the prosecution, much less beyond reasonable doubts. This aspect of the matter has not been properly appreciated by the trial court and hence the judgment and order of conviction and sentence deserve to be quashed and set aside. 5. It is submitted by the learned counsel for the appellant-accused that P.Ws. 1, 3, 5. 6. 7 and 8 are saying about blood stains at the house of the appellant-accused, but, this an improvement. Never they have stated before the police when their statements were recorded by the police. This material improvement ought to have been ignored by the trial court. Bare assertion cannot take place of an evidence. No such sample has ever been collected by the Investigating Officer from the house of the appellant-accused, never the earth was found having blood stains and never it was matched with the blood group of the deceased. In these set of circumstances, the trial court ought not to have relied upon a circumstances that the blood stains were found at the house of the appellant-accused. It is also submitted vehemently by the learned counsel for the appellant that looking to the inquest report (Panchanama) and looking to the depositions, given by P.Ws. 5, 6, 1 and 8, there is a discrepancy from where the dead body was found out. This aspect of the matter has also not been properly appreciated by the trial court which has arrived at a wrong conclusion that the dead body was found from the nearby place of the house of the appellant-accused. This conclusion is dc hors the facts, established by the prosecution witnesses to be read with inquest report (Panchanama) of the dead body. 6. It has also been submitted by the learned counsel for the appellant-accused that the whole case of the prosecution is a got up case against the--appellant-accused. This conclusion is dc hors the facts, established by the prosecution witnesses to be read with inquest report (Panchanama) of the dead body. 6. It has also been submitted by the learned counsel for the appellant-accused that the whole case of the prosecution is a got up case against the--appellant-accused. The alleged incident has taken place, as per the prosecution, on 15th November, 2001, First Information Report was lodged on 19th November, 2001 and despite the provision of Section 157 of the Code of Criminal Procedure, 1913, which provides that within 24 hours the First Information Report ought to be transmitted to the Court of learned Magistrate, so that there may not be a little scope for improvement in the First Information report and to keep such a check upon the police, the aforesaid provisions has been carved out in the Code, 1913, the same was sent to the Court of learned Magistrate on 23rd November. 2001 and that too after the arrest of the appellant-accused without any justifiable reasons. Once the appellant-accused is arrested and thereafter if the F.I.R. is sent to the Court of learned Magistrate, there can be every possibility of changes. modifications improvements etc. in the allegations, made in the First Information Report. No explanation, worth the name, is coming from the prosecution witnesses. This aspect of the matter has also not been properly appreciated by the learned trial court and, therefore, also the impugned judgment and order of conviction and sentence deserve to be quashed and set aside. 7. Learned counsel for the appellant has also submitted that in the present case the Investigating Officer has not been examined and, therefore, as held by the Honoble Supreme Court in the case of Bachan Singh & Anr. vs. State of Bihar, as reported in (2008)12 SCC 23 , the aid of the case diary can be taken by the trial court, 'so that it may become clearer before the trial court whether there is any improvement of the case, especially when the prosecution witnesses i.e. P.Ws. 5, 6, 7 and 8 are deposing about the blood stains. This aspect of the matter has also not been properly appreciated by the trial court. It is also submitted by the learned counsel for the appellant-accused that delay in sending the First Information Report to the learned Magistrate, when it is unexplained,. 5, 6, 7 and 8 are deposing about the blood stains. This aspect of the matter has also not been properly appreciated by the trial court. It is also submitted by the learned counsel for the appellant-accused that delay in sending the First Information Report to the learned Magistrate, when it is unexplained,. goes against the prosecution, as per the decision, rendered by the Hon'ble Supreme Court in the case of Ramesh Baburao Devaskar & Ors. vs. State of Maharashtra, as reported in (2007)13 SCC 501 , and lastly, it is submitted that no circumstance, incriminating to the appellant-accused, has been proved by the prosecution, on the contrary, there ought to have a complete chain of circumstance against the present appellant-accused and all the circumstances must have been proved beyond reasonable doubts. But, here there is not a single circumstance, proved beyond reasonable doubts against the present appellant-accused. The so-called blood stains at the house of the appellant-accused is nothing but a material improvement of the case by the prosecution witnesses. Had any care been taken by the trial court of going through the case diary, as per the aforesaid decision, it could have become clearer that the prosecution witnesses arc adding material facts in their depositions. which is not permissible under the criminal jurisprudence and as a cumulative effect of the aforesaid facts, reasons and decisions, the judgment and order of conviction and sentence, passed by the learned trial court dated 21st January, 2003 and 23rd January, 2003 respectively deserve to be quashed and set aside. 8. We have heard learned A.P.P. appearing on behalf of the State, who has submitted that the prosecution has proved the offence of murder of deceased Somariya Devi beyond reasonable doubts. Said Somariya Devi was the wife of the appellant-accused and both were residing under one roof. It is submitted by the learned A.P.P. that it is the present appellant-accused, who has committed the murder of his wife and with a view to remove the evidence or to destroy the evidence, further an offence under Section 201 of the Indian Penal Code has been committed by the appellant-accused by throwing the dead body in a nearby well. Learned counsel for the State i.e. A.P.P. has also narrated, in detail, that the dead body was found out from the well and it is stated that it was tied by rope etc. Learned counsel for the State i.e. A.P.P. has also narrated, in detail, that the dead body was found out from the well and it is stated that it was tied by rope etc. It is further submitted by the learned A. P.P. that the prosecution witnesses i.e. P.Ws. 5, 6, 7 and 8 have narrated clearly in their depositions about the offence, committed by the present appellant accused and there are several circumstances against the present appellant-accused, namely: (i) The appellant-accused has falsely narrated before the brother and father of the deceased that his wife is missing; (ii) The dead body was found out from the well, which is nearby the house of the appellant-accused: (iii) The appellant-accused was not found at his residence and was found absconding; (iv) There were marks of blood stains in the house of the appellant-accused; (v) The depositions of the prosecution witnesses i.e. P.Ws. 5, 6, 7 and 8 stand unimpeached, because whatever they have stated in their examination-in-chief, has not been taken away or destroyed in their cross-examinations. 9. Looking to the deposition of PW. 9, who is Dr. Dilip Kumar, it appears that the death has taken place, because of throttling, as there was no water in the stomach of the deceased. Thus, the culpable homicide is proved. 10. Learned counsel for the State has also relied upon a decision, rendered by the Hon'ble Supreme Court in the case d Pattu Lal VS. State of Punjab, as reported in 1996 Cri. L.J. 2446 and submitted that if the blood stained articles are found out from the house of the accused and the murder has taken place in the house of the accused, the conviction was upheld by the Hon'ble Supreme Court. State of Punjab, as reported in 1996 Cri. L.J. 2446 and submitted that if the blood stained articles are found out from the house of the accused and the murder has taken place in the house of the accused, the conviction was upheld by the Hon'ble Supreme Court. It has also been submitted by the learned counsel for the State that the prosecution witnesses are rustic witnesses and, therefore, some discrepancies are bound to occur in their depositions but all the discrepancies are not so material and, therefore, they cannot be labelled as major omissions, contradictions and exaggerations and this fact has been properly appreciated by the trial court and, therefore the appellant-accused has been rightly held guilty for an offence of murder of Somariya Devi and has been sentenced to undergo rigorous imprisonment for life as well as' under Section 201 of the Indian Penal Code for destroying the evidence, though no separate sentence has been awarded by the trial court for the offence under Section 201 of Indian Penal Code. 11. Having heard learned counsel appearing for both the sides and looking to the evidence, led before the trial court during course of trial, it appears that: (i) The incident has taken place on 15th November, 2001 at night hours. First Information Report was lodged on 19th November, 2001 at 8.00 p.m. at Manika Police Station within the district of Latehar Looking to the evidence of P.W. 5, who is father of the deceased, namely. Maharaj Oraon, it appears that this witness has stated before the court that the accused had come at the parental house of the deceased Somariya Devi and was searching his wife. This witness has stated to the said accused that Somariya Devi has not come at his residence. Thereafter, the brothers of the deceased had gone in search of their sister/wife of the appellant-accused. It has also been stated by this witness that the Bhabhi of the appellant-accused informed Kedar, Maneshwar and Kuleshwar that she had seen blood stains at the house of the appellant-accused and this fact was conveyed to this appellant, but, Bhabhi of the appellant-accused has never been examined as a prosecution witness. Likewise, Maneshwar and Kuleshwar have also not been examined as prosecution witnesses. (ii) Looking to the deposition of PW. Likewise, Maneshwar and Kuleshwar have also not been examined as prosecution witnesses. (ii) Looking to the deposition of PW. 6, who is brother of the deceased, namely, Kedar Oraon (informant), it appears that he has stated that he had seen blood stains at the house of the appellant-accused. The dead body was found out from the well and the motive is also alleged by this P.W. 6 that the appellant-accused had some illicit relationship with another lady and, therefore, he has committed the murder of the deceased. (iii) Looking to the deposition of P.W. 7, who is also the brother of the deceased, namely, Kartik Oraon, it appears that this witness is also saying the same thing that the blood stains were found at the house of the appellant-accused and the appellant accused was not available at the house. Similar is the version of P.W. 8, Dhaneshwar Oraon, who is uncle of the deceased. (iv) Looking to the deposition of PW. 9, who is Dr. Dilip Kumar, it appears that this witness has stated that the death of the deceased had taken place because of throttling and there was no water in the stomach of the deceased and, thus, culpable homicide is proved by this witness. (v) Looking to the depositions of the prosecution witnesses, it appears that they are close relatives of the deceased. P.W. 5 is the father of the deceased; P.Ws. 6 & 7 are the brothers of the deceased and P.W. 8 is the uncle of the deceased. Therefore, the depositions of these witnesses require close scrutiny. (vi) It is stated by the learned counsel for the appellant-accused that there is a material improvement in the depositions of these witnesses before the trial court, so far as blood stains at the house of the appellant-accused is concerned. Never these witnesses have stated before the police in their statements regarding the blood stains. Learned counsel for the appellant-accused has relied upon a decision, rendered by the Hon'ble Supreme Court in the case of Bachan Singh & Anr. vs. State of Bihar, as reported in (2008)12 SCC 23 , paragraph nos. 6, 8 and 9 thereof are as under: "6. Mr R. Sundaravardan, the learned Senior Counsel appearing for the appellant-accused has raised several arguments before us. vs. State of Bihar, as reported in (2008)12 SCC 23 , paragraph nos. 6, 8 and 9 thereof are as under: "6. Mr R. Sundaravardan, the learned Senior Counsel appearing for the appellant-accused has raised several arguments before us. He has first submitted that the genesis of the occurrence was uncertain and as both sides appeared to have come prepared and determined to fight, injuries had been suffered by members of both groups on this account. It has also been pleaded that the trial court had adopted an extraordinary procedure inasmuch as it had looked into the case diary to find corroboration for the prosecution evidence as the Investigating Officer had not cared to record the statements of the prosecution witnesses and that this procedure was unknown to law and therefore unacceptable in the light of the judgments In Jabeeb Mohammad vs. State of Hyderabad, Sakal Ahir vs. Palakdhari Ahir and Queen empress vs. Mannu. 8. We have considered the arguments advanced by the learned counsel for the parties. Mr. Sundaravardan's argument is based on the observation of the Trial Judge that he had looked at the case diary in terms of Section 172(2) of the Code of Criminal Procedure. A bare perusal of this provision would reveal that a criminal court can send for the police diaries of a case under trial in such court, and may use such diaries, not as evidence of the case, but to aid it in such inquiry or trial. The facts of the case reveal that the 10 could not be examined, as in the meanwhile he had migrated to Pakistan and had died there and it is in this situation that the Trial Judge feeling handicapped on account of the non-examination of the 10 (though the witnesses had been confronted with their previous statements) had a look into the case diary as an additional factor to test the veracity of the witnesses. 9. The cited cases only lay down the principle that statements in a case diary cannot be utilized as evidence to corroborate the statement of the prosecution witness. This is what the trial court had to sayan this aspect: "The learned Advocate for the defence has contended that the IO of the case has not been examined by the prosecution for which the defence of the accused persons has been highly prejudiced. This is what the trial court had to sayan this aspect: "The learned Advocate for the defence has contended that the IO of the case has not been examined by the prosecution for which the defence of the accused persons has been highly prejudiced. It is true that the IO of the case has not been examined but for that the prosecution is not to be blamed because I have been told during the course of argument by the learned Additional Public Prosecutor that in spite of his best efforts the IO could not turn up for his evidence and it was reported that the IO Shri M. Mallik Khan, who was a Muslim gentleman left the country for Pakistan after his retirement and he died over there and besides that, on perusal of the statements of the prosecution witnesses I find that the attention of PW-3 was drawn towards his previous statement before the IO in Para 15 of his cross-examination. And similarly the attention of PW-4 was drawn towards his earlier statement made before the police in Para-12 of his cross-examination. But no such attention was drawn to the first informant, who is PW -5. Likewise, the attention of PW-6 was drawn towards her earlier statement made before the police in Paras-2 and 9 of her cross-examination. The attention of PW- 7 was drawn towards her earlier statement in Para-4 of her cross-examination and that of PW-8 was drawn towards his earlier statement in Paras-12 and 14 of his cross-examination. And I have also perused the case diary in order to appreciate the evidence under Section 172(2) CrPC and found that even if the IO would have been examined no material contradiction could have come out in the statements of the witnesses examined on behalf of the prosecution because on material points all the witnesses examined before the police have stated that accused Chirkut Singh gave a fatal shot to deceased Bacha Singh, whereas accused Jang Bahadur gave a fatal shot to deceased Lakshman Singh. And while describing the alleged PO the IO has fully corroborated this fact that he had found the trail of dragging of deceased Lakshman Singh and Bacha Singh from the Khalihan of one Marua Singh. And while describing the alleged PO the IO has fully corroborated this fact that he had found the trail of dragging of deceased Lakshman Singh and Bacha Singh from the Khalihan of one Marua Singh. Therefore, I feel that non-examination of the IO has never prejudiced the defence of the accused persons." It will be clear from a perusal of the aforequoted paragraph that the prosecution witnesses had been confronted with their previous statements and even if we assume that the trial court was not justified in looking into the case diary, it would not be said to be prejudicial to the accused in the peculiar facts of the case." (vii) Looking to the first Information Report, which is dated 19th November 2001, filed by P.W. 6. it appears that there is no reference of blood stains at the house of the appellant-accused. (viii) It is stated by P.W. b that the Bhabhi of the appellant accused had conveyed to Kedar and other two persons that there were blood stains at the house of the appellant accused and the appellant-accused has washed out those blood stains. Out of these three witnesses, only Kedar has been examined as P.W. 6. So far as P.W. 6 is concerned, he has never stated in his First Information Report about the blood stains at the house of the appellant accused. Thus, what has not been stated in the First Information Report has been added in the deposition before the trial court which is a material improvement. (ix) P.W. 1 has also stated before the court in his deposition that there were blood stains of the deceased Somariya Devi, which was tried to be removed by the appellant-accused by putting earth upon it. Never any sample of blood stained earth has been collected nor it has been sent to the Forensic Science Laboratory for its report by the Investigation Officer. II has also been submitted by the learned counsel for the appellant-accused that this witness also has never stated anything about the blood stains in his statement before the police. Thus, it appears that if the nearby relatives have seen the blood stains at the house of the appellant-accused, such an important aspect of the matter ought not to have gone out of sight at the time of lodging the First Information Report. Thus, it appears that if the nearby relatives have seen the blood stains at the house of the appellant-accused, such an important aspect of the matter ought not to have gone out of sight at the time of lodging the First Information Report. The first Information Report is silent so far as blood stains at the house of the appellant-accused are concerned. Likewise, it is stated by the learned counsel for the appellant-accused that none of these prosecution witnesses i.e. P.Ws. 5, 6, 7, and 8 has stated before the police about the blood stains at the house of the appellant-accused. (x) Looking to the depositions of the prosecution witnesses, especially P.Ws. 5, 6, 7 and 8 and looking to the inquest report (Panchanama) and the place where the dead body was found, it is stated by the learned counsel for the appellant-accused that the dead body was found from a well, which was tied by rope, within Manika Police Station and the inquest report (Panchanama) was prepared at some other place i.e. at Latehar Police Station. (xi) It also appears from the evidence before the trial court that the First Information Report is dated 19th November, 2001 and though as per the requirement under Section 157 of the Code of Criminal Procedure, it must have been sent to the Court of learned Magistrate within twenty four hours, but, it was sent on 23rd November, 2001 and that too after arrest of the accused, which is dated 22nd November, 2001 ,and no explanation, worth the name, is coming on the record for such delay. If there is a delay in sending the First Information Report to the court and if it is unexplained and that too after arrest of the accused, there are all chances of varying the version in the First Information Report. If the delay is not explained by the prosecution, it affects the case of the prosecution. In the present case the Investigating Officer has not been examined. (xii) Looking to over all evidences of the prosecution witnesses it appears that the prosecution has heavily relied upon the factum of blood stains at the residence of the appellant-accused. If the delay is not explained by the prosecution, it affects the case of the prosecution. In the present case the Investigating Officer has not been examined. (xii) Looking to over all evidences of the prosecution witnesses it appears that the prosecution has heavily relied upon the factum of blood stains at the residence of the appellant-accused. Looking to the evidences and the circumstances when the whole case is based upon the circumstantial evidence, the following conditions must be observed: (a) The circumstances from which the conclusion of guilt is to be drawn, must be fully established: (b) The circumstances taken cumulative, should form a chain so complete that there is no escape from the conclusion that in all human probability the crime was committed by the accused and none else; (c) The circumstances should be of a definite tendency and unerringly point towards the guilt of the accused; (d) The circumstantial evidence in order to sustain conviction must be complete incapable of explanation of any other hypothesis except the guilt of the accused persons: (e) The circumstantial evidence should not only be consistent to the guilt of the accused but should be inconsistent with his innocence. (xiii) Looking to the evidence, led before the trial court, so far as blood stains at the house of the appellant accused is concerned, it appears that this fact has not been stated in the First Information Report by P.W. 6, who is the informant and who is one of the brothers of the deceased. Such an important aspect of the matter can never be overlooked at the time of lodging the First Information Report. (xiv) It also appears that as per the deposition of P.W. 5, the first person, who has seen the blood stains is the Bhabhi of the appellant-accused (wife of the brother of the appellant-accused). She has informed Kedar, Maneshwar and Kuleshwar about the blood stains, but, never this Bhabhi of the appellant-accused has been examined as a prosecution witness. Like. wise, Maneshwar and Kuleshwar have also not been examined as prosecution witnesses, though they have visited first in point of time the house of appellant-accused. Kedar Oraon, though has been examined as a prosecution witness, but, has never stated in the First Information Report about the blood stains. Thus, the factum of blood stains at the house of the appellant-accused is not established beyond reasonable doubts. Kedar Oraon, though has been examined as a prosecution witness, but, has never stated in the First Information Report about the blood stains. Thus, the factum of blood stains at the house of the appellant-accused is not established beyond reasonable doubts. (xv) It is also stated by the learned counsel for the appellant-accused that all the prosecution witnesses, especially P.Ws. 5, 6, 7 and 8 have never stated in their statements before the police about the blood stains and there is material improvement during their depositions before the trial court about the blood stains. It is also evident that no earth having blood stains, has been recovered from the scene of occurrence or from the house of the appellant-accused and, therefore, there is no question of sending it to the Forensic Science Laboratory for its report and, therefore, there is also no question of matching the blood group of the deceased. As a cumulative effect of these evidence before the trial court, the factum of blood stains at the house of the appellant-accused is not proved by the prosecution. (xvi) Learned A.P.P. has heavily argued about the motive, alleged by the witnesses. He has also vehemently submitted that when the statement of the appellant-accused was recorded under Section 313 of the Code of Criminal Procedure and when the question was put to the appellant-accused as to how his wife expired or murdered, he has not given correct answer and, therefore, these are also important circumstances in completing the chain of circumstances. We do no accept this contention, mainly for the reasons that if any question is asked to any accused as to how the murder of his wife has been committed, perhaps the whole burden of the prosecution is being shifted by putting this question. Murder has to be proved beyond reasonable doubts by the prosecution. Looking to the answer given by the accused that his wife was suffering from epileptics, it is not going against the appellant-accused, because it is for the prosecution to prove how the murder of the deceased had taken place. In view of these facts, there is no circumstance, proved by the prosecution, which completes the chain and leads to a conclusion that it is the appellant only, who has committed the murder of the deceased. In view of these facts, there is no circumstance, proved by the prosecution, which completes the chain and leads to a conclusion that it is the appellant only, who has committed the murder of the deceased. Learned counsel for the State has relied upon a decision, rendered by the Hon'ble Supreme Court in the case of Pattu Lal vs. State of Punjab, as reported in 1996 Cr.L.J. 2446. (xvii) Looking to the facts of the decided case and the facts of the present case, it appears that they are quite different. In the aforesaid decision, the blood stains were found at the house of the appellant-accused and the murder had taken place in the house itself. Looking to the aforesaid evidence, the facts of the present case are absolutely different and, therefore, the aforesaid decision is of no much helpful to the prosecution. (xviii) It has been held by the Hon'ble Supreme Court in the case of Mulakh Raj & Ors. vs. Satish Kumar & Ors., as reported in (1992)3 SCC 43 , paragraph no. 4 whereof reads as under: "4. The narrative of the facts clearly establishes that the young beautiful lady, aged about 22 (sic 20) years, who had intense and passionate love for the first respondent yearning to have long and happy marital life was exterminated hardly one year and five months after the marriage. As per doctor's evidence, she died of asphyxia, as a result of strangulation, and that 95 per cent burn post mortem injuries were found over the dead body except the feet. Admittedly this was done in the residential home of the respondent. The crucial question whether the theory of suicide propounded by the defence and as accepted by the High Court is true and believable. Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and sentence would follow." (Emphasis supplied) (xix) It has also been held by the Hon'ble Supreme Court in the case of Bodhraj alias Bodha & Ors. VS. State of Jammu & Kashmir, as reported in (2002)8 SCC 45 , paragraph nos. 10 and 15 whereof read as under: "17. A reference may be made to a later decision in Sharad Birdhichand Sarda vs. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (See p. 185, para 153) (1) 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; (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 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 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. In view of the aforesaid decision, the aforesaid five conditions ought to have been appreciated by the trial court when the whole case is based upon the circumstantial evidence. In the present case, the factum of blood stains at the house of the appellant-accused is not proved by the prosecution. Thus, the most important link in the chain is missing. 13. It has been held by the Hon'ble Supreme Court in the case of Raghav Prapanna Tripathi & Ors. vs. State of Uttar Pradesh, as reported in A.I.R. 1963 SC 74, that mere presence of blood stained earth and that too of a human blood does not show that the blood was of the deceased. In the facts of the present case, even if the improved version of the prosecution witnesses i.e. P.Ws. 5, 6, 7 and 8 is believed, then also it is never connected with the deceased. Circumstances upon which the prosecution is relying upon as links to complete the chain are not proved, so as to lead to one and only one conclusion that the appellant-accused has committed murder of the deceased. 14. It has been held by the Hon'ble Supreme Court in the case of Anil Kumar Singh vs. State of Bihar, as reported in (2003)9 SCC 67 , paragraph no. 8 whereof reads as under: "It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion. howsoever strong to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof." (Emphasis supplied) 15. In view of the aforesaid judicial pronouncements and looking to the evidence and the facts of the present case, we are of the view that the prosecution has failed to establish most important link of blood stains at the house of the appellant-accused. In view of the aforesaid judicial pronouncements and looking to the evidence and the facts of the present case, we are of the view that the prosecution has failed to establish most important link of blood stains at the house of the appellant-accused. Even otherwise also, so far as recovery of the dead body is concerned and looking to the inquest report (Panchanama) the depositions of the prosecution witnesses are not tallying. Thus, the prosecution has failed to prove the chain of circumstances against the appellant-accused, which leads to a conclusion that the appellant-accused has committed the murder of the deceased. Bare assertion of a motive is not enough or sufficient for bringing home the conviction. The alleged reply in a statement under Section 313 of the Code of Criminal Procedure when the prosecution asked how the wife of the appellant-accused has been murdered, such an answer is also not a sufficient link, leading to one and only one conclusion that the appellant-accused has committed murder of the deceased. 16. Thus, the prosecution has failed to prove the offence of murder of the deceased Somariya Devi by the appellant accused. Important link of chain of circumstances is not proved by the prosecution and, therefore, chain of circumstances is incomplete. The aforesaid aspect of the matter has not been properly appreciated by the trial court. We, therefore, quash and set aside the judgment and order of conviction and sentence dated 21st January, 2003 and 23rd January, 2003, passed by the learned 1st Additional District & Sessions Judge, Latehar, in Sessions Trial No. 20 of 2002. The appellant is, accordingly, ordered to be released from custody, if his judicial custody is not required for any reason or for any other purposes.