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2013 DIGILAW 474 (GAU)

Prasanta Dutta v. State of Assam

2013-07-20

ANIMA HAZARIKA, P.K.SAIKIA

body2013
1. This appeal is directed against the judgment dated 7.12.2012, passed by learned Sessions Judge, Jorhat in Session Case No.77(JJ)/2010 convicting accused /appellant Shri Prashanta Dutta of offence under section 302 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5,000, in default, RI for another 3 months. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, Shri Prasanta Dutta, hereinafter referred to as the accused person, preferred this appeal citing several infirmities in Judgment, impugned. 3. The facts which have emerged from the judgment, under challenge, in brief, are that on the night intervening 7th and 9th October 2008, one Abhijit Baruah, nephew of Shri Ajay Baruah, resident of Kenduguri, Bamungaon, Jorhat was kidnapped by a group of miscreants from a place, quite close to the Puja Pandal, Kenduguri. It was stated that Abhijit Baruah was taken away in an auto-rickshaw, named "Parinita". However, body of said Abhijit Baruah was found on the N.H. 37 near Padumoni village with several cut wounds thereon. 4. An FIR to that effect being lodged with O/C Jorhat Police Station on 9th October, 2008, Police registered a case vide Jorhat P.S Case No 535/ 2008 under section 365/302/34, IPC and ordered one Sri. Biswajit Gogoi, SI of police to take up investigation. Being so entrusted with the investigation, Sri Gogoi visited the place where the dead body was found, prepared a sketch map thereof, conducted an inquest on the dead body, sent the same to hospital for post mortem examination, arrested the accused person during the course of investigation, did other needful and on conclusion of investigation, Sri Gogoi submitted a charge sheet under section 364/302, IPC against the accused person and sent him to the court to stand his trial. 5. The learned Magistrate, before whom charge sheet was so laid, committed the case to the Court of Sessions at Jorhat since the offence under section 302, IPC is exclusively triable by Court of Session. On receipt of the case on commitment, and after hearing the learned counsel for the parties, learned Sessions Judge, Jorhat framed charges under section 364/302, IPC and charges, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 6. On receipt of the case on commitment, and after hearing the learned counsel for the parties, learned Sessions Judge, Jorhat framed charges under section 364/302, IPC and charges, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 6. During trial, the prosecution has examined as many as 8 witnesses including the Medical Officer and the I/O. Statement of the accused person under section 313, Cr.PC was recorded. His plea was of denial. He, however, declined to adduce any evidence of his own. The learned Sessions Judge, on conclusion of trial and on hearing the arguments, advanced by the learned counsel for the parties, while acquitting the accused of offence under section 364, IPC, held him guilty of offence under, section 302, IPC, convicted him thereunder and sentenced him as aforesaid. It is that judgment which has been assailed in the present appeal. 7. Mr. S.S.S Rahman, learned counsel for the appellant, has submitted that the judgment rendered by learned Sessions Judge in Sessions case No. 77(JJ) of 2008 is unsustainable in law due to several serious infirmities. In that connection, it has been pointed out that though the learned trial court held that prosecution had proved that the deceased was last seen alive in the company of accused person at about 2/2.30 p.m. on the night in question, yet, it totally ignores the fact that the prosecution had rendered several stories totally contradictory to one another on such a vital claim. 8. It has also been contended that learned trial court placed enormous reliance on the statement of accused person recorded under section 313, Cr.PC, particularly on his statement that he was with the deceased on the aforesaid night at about 2/2.30 a.m. in convicting accused of offence under section 302, IPC. But such reliance is not permissible under the law, more so, when prosecution fails to prove its case on its own. This cardinal principle of jurisprudence was given a complete goby by the trial court in handing down a verdict of guilt against the accused person and in doing so, learned trial court bridges the gap in prosecution case with the alleged lapses/shortcomings in the defence case. 9. This cardinal principle of jurisprudence was given a complete goby by the trial court in handing down a verdict of guilt against the accused person and in doing so, learned trial court bridges the gap in prosecution case with the alleged lapses/shortcomings in the defence case. 9. Further, the conclusion of learned trial court that accused could not explain his conduct between the time when he was reportedly seen with the deceased on the night of 8th of October, 2008 and time when the body of deceased recovered on the road near Padumoni village is founded more on conjecture than on facts. To put it differently, in spite of accused explaining his conduct during the period aforesaid, learned trial court wrongly held that the accused could not explain his conduct during the period aforementioned. Mr. S.S.S Rahman, learned counsel for the appellant, therefore, submits before this court to acquit the accused of offence under section 302, IPC on setting aside the judgment of the court below. 10. Controverting the argument, so advanced from the side of appellant, Sri D. Das, learned Additional P.P. submits that the judgment, rendered by trial court is founded on indisputable evidence which unmistakably demonstrates that the accused, and none else, was the author of the crime in question. He, therefore, urges this court to dismiss the appeal affirming the judgment of the trial court. 11. We have considered the rival submissions having regard to the judgment in question, evidence on record as well as statements of the accused person, recorded under section 313, Cr.PC. It needs to be stated here that nobody saw how the deceased got killed on the night intervening 7th and 9th October, 2008 which is why the prosecution case has founded its case, under consideration, entirely on the circumstantial evidence and as such, such a case needs to satisfy that tests, laid down for a case, based on circumstantial evidence. 12. in this connection, we may peruse profitably, the decision rendered by hon'ble Supreme Court in the case of Sharad Birdhichand Sada v. State of Maharashtra, (1984) 4 SCC 116 . The relevant part thereof is reproduced below : "153. 12. in this connection, we may peruse profitably, the decision rendered by hon'ble Supreme Court in the case of Sharad Birdhichand Sada v. State of Maharashtra, (1984) 4 SCC 116 . The relevant part thereof is reproduced below : "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (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 Sahabrao Bobade v. State of Maharashtra where the following observations were made: [SCC para 19,p.807:SCC(Crl.)p.l047] 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) To 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 claim 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." 13. Before proceed further, we find it necessary to have a brief review of evidence on record and the evidence of the Doctor is first taken up for consideration. The Doctor who performed autopsy on the body of the deceased at Jorhat Civil Hospital on 9.10.2008 was one Dr. Buddha Deb Dutta. He was examined as PW7. According to him, on examining the body of one Abhijit Baruart he found the following : A healthy male dead body. Rigor mortis present: Injuries : 1. Black eyes both present. : 2. Bleeding from nose present. 3. Buddha Deb Dutta. He was examined as PW7. According to him, on examining the body of one Abhijit Baruart he found the following : A healthy male dead body. Rigor mortis present: Injuries : 1. Black eyes both present. : 2. Bleeding from nose present. 3. One lacerated wound with bleeding (2” x ½” x ½”) present over left frontal region of scalp. 4. Laceration of left ear with separation into three pieces and external laceration on left mastoid region with bleeding. Size – 2” x ½” x ½”. 5. One lacerated wound on left parietal region of scalp. Bleeding present. Size – 3”x ½” x ½”. 6. One lacerated wound over right parietal region with bleeding. Size - 2” x ½” x ¼”. All the injuries are ante-mortem in nature. The doctor opined that dead of the deceased was due to coma as result of injuries sustained. The doctor stated that Exhibit-5 (post mortem report) was prepared by him and Exhibit-5(1) is his signature in the aforesaid post mortem report. During his cross-examination, the doctor disclosed that those injuries might be caused due to accident. 14. So situated, let us consider the testimony of one Sri. Manjit Sahu who as examined as PW 3. Undoubtedly, the star campaigner from the side of prosecution is said Manjit Sahu. According to him, on the fateful night, he along with the accused was enjoying Durga Puja at Kenduguri Puja Pandel. While they were so enjoying Puja, the deceased Abhijit Baruah came to them and requested to give him a cigarette. On being so requested, he along with the accused and the deceased went to nearby shop to purchase cigarettes. They went to such place in the auto-rickshaw of the accused person. 15. On their arrival at such place, they found the shop closed. Having found the shop closed, they retreated therefrom and started proceeding towards their houses. As soon as they reached a place in front of his house, the accused and the deceased dropped him down there. After dropping him on the road in front of his house, the accused and the deceased left such place. Next day, in the morning, at about 10:00 a.m., he came to know that Abhijit was no more. In that connection; he had rendered a statement before the Magistrate during the course of investigation which he proved as Ext 3. After dropping him on the road in front of his house, the accused and the deceased left such place. Next day, in the morning, at about 10:00 a.m., he came to know that Abhijit was no more. In that connection; he had rendered a statement before the Magistrate during the course of investigation which he proved as Ext 3. In cross-examination, he has admitted that he did not know how Abhijit met his death. 16. PW 2 is Shri Manto Dutta @ Bhabesh. According to him, the deceased Abhijit @ Babu died in 2008. On the Navami night of (Durga Puja), 2008, he was at his hotel which was situated at N.H 37 Jorhat. At about 2/2.30 a.m., he saw the deceased and Manjit Sahu sitting in an auto-rickshaw. Since it was quite late at night, he advised them to go home. They paid heed to his advice and left the shop. Next day, in the morning, he heard hue and cry coming out from the house of one of the relatives of the deceased Abhijit. 17. On making an enquiry, he came to know that Abhijit was no more. In that connection, he also rendered the statement before the Magistrate -during the course of investigation which he proved Ext.2. In his cross-examination, he has stated that when he met deceased in his hotel on the night aforesaid, there was a bike in front of his hotel. He found both the deceased and Manjit Sahu inside the auto-rickshaw but he did not know who owned the auto-rickshaw in which Manjit Sahu was sitting on that fateful night. 18. The informant who lodged the FIR was examined as PW1. According to him, the incident in question occurred on the night of Dusshami 2008. On 9th October, 2008, when he was in his shop, one Rajib Baruah informed him over phone that a person was lying dead on the road at Padumoni village. Being so informed, he came to such place aforesaid and found his nephew Abhijit lying dead there. He, therefore, lodged an FIR which he proved as Ext 1. He was, however, declared hostile. 19. PW-5, Sri Dhurbajit Baruah. He is found saying that one day, he got the information that the dead body of Abhijit Baruah was lying at the A.T. Road Jorhat. He, therefore, lodged an FIR which he proved as Ext 1. He was, however, declared hostile. 19. PW-5, Sri Dhurbajit Baruah. He is found saying that one day, he got the information that the dead body of Abhijit Baruah was lying at the A.T. Road Jorhat. Being so, informed, he went to such place and saw the police conducting an inquest on the body of the deceased. He proved the inquest report as Exhibit- 4. 20. PW-4 is also witness to the inquest, conducted on the body of the deceased at the place where the dead body was found on 9th of October, 2008. He proved the inquest report as Ext. 4. PW-6, Sri Ranjit Barthakur is a hearsay witness and did not divulge any material information in respect of the matter under scrutiny. 21. PW-8, Sri Biswajit Gogoi is the I.O. In his evidence, he has stated that on receipt of telephonic information from A.S.I. Manoram Nath, Shri Shyamal Bania, the I/C, the Bhogdoimukh Police Outpost, entered such information in the General Diary (G.D.) and directed him to visit the spot. Accordingly, PW-8 visited the place where the dead body was found lying, conducted an inquest over the dead body and prepared a report in that connection which he proved as Ext-4. He then sent the dead body to Jorhat Civil Hospital for post mortem examination and also prepared the sketch map of the placp of occurrence. 22. In the meantime, an FIR was lodged by Sri Ajay Baruah which was sent to Jorhat P.S. for registration of a case and accordingly Jorhat P.S. Case No. 535/2008 under section 365/302/34 of IPC was registered. After the registration of the case, the investigation was formally entrusted upon him. During the course of investigation, he seized an auto-rickshaw named “Parinita" from the father of accused person on the strength of seizure-list which was proved as Exihibit-6. On the conclusion of investigation, he submitted charge sheet against the accused person. 23. During his cross-examination, he admitted that the dead body was found near National Highway at Padumoni area and that he interrogated Sri Manjit Sahu but he was not made an accused in the case under consideration. He denied the suggestion that the deceased met his death due to accident. 23. During his cross-examination, he admitted that the dead body was found near National Highway at Padumoni area and that he interrogated Sri Manjit Sahu but he was not made an accused in the case under consideration. He denied the suggestion that the deceased met his death due to accident. The suggestion that the auto-rickshaw was seized from the house of the accused person, and that too, from his father, was admitted by the PW.8. 24. Above being the evidence on record, it is to be seen how far such evidence makes out the allegation, brought against the accused person. The learned trial court, we find, concluded that the prosecution has successfully proved certain circumstances and such circumstances together with the admission which the accused made while being examined under section 313, Cr.PC very firmly established that the accused, and none else, was the author of the crime under scrutiny. The circumstances, referred to the above, are : (i) The accused was seen with the deceased was seen alive for the last time - in the company of the accused at about 2/2:30 p.m. on the night of 8.10.2008. (ii) His dead body was found on the NH-37 near Padumani at about 7:00 a.m. next morning. (iii) Auto-rickshaw of the accused was seized by police on 9.10.2008 from his house. (iv) It was seized from the father of the accused person. (v) The accused did not go to the Police Station soon thereafter to enquire as to why life auto was seized by Police. (vi) He surrendered before the court only on 7.11.2008. (vii) The auto-rickshaw, named Parinita, was used by the accused and the deceased on the night in question. (v) The auto-rickshaw; aforesaid was owned by the accused. 25. Now the question is whether on the materials available on record, the prosecution could be said to have proved the hypothesis which is known as "the last seen theory" and if so, whether such circumstances, aforesaid, together with his alleged inability to explain Ws conduct 2/ 2.30 a.m. on the night of 8th October, 2008 till the discovery of body of the deceased on the morning of 9th October, 2008 conclusively prove that accused and none else committed the murder of deceased as concluded by the learned trial court. 26. 26. In order to get answers to those queries, we need to know if the prosecution could actually establish the hypothesis which is commonly called as “last seen theory" over which learned trial court as well as prosecution has placed enormous importance in recording a verdict of guilt against the accused person. 27. Since the FIR sets the law in motion, it occupies a pivotal position in shaping the prosecution case. The case under consideration is no exception to such a rule. In the instant case, the FIR reveals that on the fateful night at about 2:00 a.m. some unknown miscreants forcibly lifted a deceased from Puja Pandal, Kenduguri, Jorhat: However, his dead body with various cut marks thereon was found on the road near Padumoni village next day in the, morning. 28. Unfortunately, the story, told in the FIR has been given a complete goby by PW-3, the star campaigner from the prosecuting side, since, while propagating the prosecution case before the court of law, he introduced a totally different story about the disappearance of Abhijit Baruah on the night aforesaid. In his evidence, PW-3 is found saying that on the night in question, when he was gossiping over some with the accused near Puja Pandal, Keriduguri, the deceased came there and requested them to give him a cigarette. As they did not have cigarettes, all of them went to nearby shop but only to find such shop closed. 29. Once they found the shop closed, they made a retreat therefrom in the auto-rickshaw of the accused person. When they arrived at a place near the house of the PW-3, the accused and the deceased dropped him down on the road in front of his house. After dropping the PW-3, the other two persons left such place. Thus, PW-3 not only replaced the story, incorporated in the FIR but it also gives a completely new twist to the case vis-a-vis disappearance of deceased on the night of 8th October, 2008. 30. The prosecution case that the deceased was seen alive for the last time in the company of accused person on or about 2/2:30 a.m. on the night of 8th October, 2008 suffers serious setback for other reasons as well. 30. The prosecution case that the deceased was seen alive for the last time in the company of accused person on or about 2/2:30 a.m. on the night of 8th October, 2008 suffers serious setback for other reasons as well. PW-2, other important prosecution witness, is also found saying that on the night in question, he found the accused and Manjit sitting in an auto-rickshaw in front of his hotel. Having seen them sitting at such place at dead of the night, he advised them to go home. On the advice, all of them left such place hurriedly. 31. Therefore, the testimony, so rendered by PW 2, adds one more dimension to the prosecution case and it instead of strengthening the case makes it more and more doubtful since the story, told by the PW 2 before the court hardly matches the story, recorded in the FIR. It is also not in conformity with the story, told by PW 3 before the court during trial. Such an account, rendered by PW 2, makes an already twisted prosecution case more and more messy. 32. The last seen theory receives more and more setback and this time, it comes from the statement of the PW2 and PW3 which they rendered before the Magistrate during the course of investigation. Such statements of PW 2 and PW 3 were proved as Ext 2 and Ext. 3 respectively. In his statement, PW 2 had stated that on the night in question at about 1.30 a.m., Manjit and Babu (the deceased) came to his hotel and made a request to serve them wine. In his statement tinder section 164, Cr.PC, PW-3 even went to the extent of saying that he found smell of alcohol in the mouth of the deceased when he met him on the night of 8th October, 2008. 33. These fundamentally different versions on a point as important as the deceased having been seen alive for last time in the company of the accused person on the night of the 8th October, 2008, make the entire prosecution case profoundly doubtful and these doubts increase manifolds since the author of the FIR refused to own up the story, recorded therein. These revelations, now, require us to conclude that the prosecution could not conclusively establish that the deceased was seen alive for last time in the company of the accused sometime before his death. 34. These revelations, now, require us to conclude that the prosecution could not conclusively establish that the deceased was seen alive for last time in the company of the accused sometime before his death. 34. Even if we assume for the sake of argument that the prosecution has proved that the deceased was last seen in the company of the accused person on or about 2:00 p.m. on the night of 8th October, 2008, yet, it hardly makes out the allegation leveled against the accused person. To place reliance on the last seen theory, it needs to be shown that the time gap between the deceased last seen alive in the company of the accused person and his death was so small that it must invariably rule out the role of any other person except the accused in extinguishing the life of the deceased. 35. Coming back to our case, we have found that the evidence on record reveals that the dead body of Abhijit was found on the N.H. 37 near Padumoni at about 7:00 a.m. In his report, the Doctor who conducted autopsy on the body of the deceased did not specify the time of death of the deceased. Thus, one may conclude that the gap between the deceaseds' last seen alive in the company of the accused and his probable time of death was more or less 5 hours. 36. A gap of 5 hours, in the facts and circumstances of the case under consideration cannot be said to be a small duration in order to raise an irrefutable conclusion that the accused, and no one else, was the author of the crime in question, more so, when the incident in question occurred on the Navami night of Durga Puja when there are so many persons found available in most of the localities throughout the night and when there is undeniable evidence on record to show that on such a night, the accused along with other kept on moving from place to place in search of cigarettes and wine. 37. We may note here that the PW 2 noticed one more motor cycle in front of the hotel when the boys aforesaid having parley at such place at a that point of time. The evidence rendered by PW 2 makes it clear. 37. We may note here that the PW 2 noticed one more motor cycle in front of the hotel when the boys aforesaid having parley at such place at a that point of time. The evidence rendered by PW 2 makes it clear. Prosecution could not show that the said motor cycle was owned by any of, the aforesaid persons, namely, the accused/the deceased/PW 3. Thus, the presence of one more person in that group of the boys on the night in question cannot be ruled out. This only makes the prosecution b case more and more suspicious. 38. One more factor that deserves discussion here is that the doctor opines that the death of the deceased may be due to accident as well. We have already found that on the night of 8th October, 2008, the deceased consumed alcohol. The statements, found recorded in Ext. 2 and Ext. 3 make such position more than clear. Thus, the deceased's meeting his death due to some vehicular accident on the night aforesaid also cannot be ruled out. Such a finding gets more weight due to the failure of the prosecution to prove the motive of the accused in killing the deceased. 39. The judgment of the trial court is found unsustainable for other reasons as well. The learned trial court concluded that the accused could not explain how he .conducted himself after he dropped the PW 3 on the road in front of his house on the night of 8th October, 2008. Nor could he explain how the deceased got killed although he was with him till 2:00 a.m. on the aforesaid night. We may note here that such a decision profoundly influenced the trial court in concluding that the accused alone was the author of the crime under scrutiny. 40. But the finding of the trial court that the accused could not explain his conduct between the periods aforesaid is not based on facts on record. On the perusal of the evidence on record, we have found that while being examined under section 313, Gr.PC, the accused informed the court that when they found the shop closed, they returned therefrom, dropped PW 3 on the road in front of his house wherefrom he along with the deceased proceeded further and thereafter, he dropped the deceased near Salonjini School and after dropping the deceased at such place, he returned home. 41. 41. Such explanation, however, cannot easily be brushed aside for reasons more them one. They are : (a) On the night of 8th October, 2008, when the PW.3 and the accused was gossiping on some matters at the Puja Pondal, Kenduguri, the deceased came to them and asked for cigarettes. Since they could not give him cigarettes, all of them left such place in order to procure cigarettes. Thus, the accused person and PW.3 met the deceased at Puja Pondal at Kenduguri, not by design but by chance only. This strongly suggests that the accused cannot have any design to extinguish life of deceased on the night of 8th October, 2008 and as such, the accused seems to be as innocent as PW3. (b) The evidence of witnesses, more particularly PW2 and PW3, reveals that on the Navami night of the Durga Puja in 2008, the accused, deceased and the PW3, all moved from place to place in jovial mood and in a very friendly manner as well. The very friendly behavior of the accused person and his associates towards the deceased on the night of 8th October, 2008 is found to be totally mismatched with the allegation made against the accused person. In above view of the matter, it cannot be said that the accused did not explain his conduct after dropping the deceased near Salojani School on the aforesaid night at about 2/2:30 a.m. 42. We have already found that the prosecution could not establish that the deceased was last seen alive in the company of the accused at about 2/2.30 a.m. on the night intervening 7th and 9th October, 2008. When the prosecution could not prove such a fundamental claim on its own, it cannot make out its case with the aid of the statement of accused person under section 313, Cr.PC. Such reliance is not permissible. 43. In this context, we can peruse that decision of Allahabad High Court in the case of Miss Hardevi Malkani v. State and Anr., AIR 1969 All. 423 . The relevant part is reproduced below : "21. Reliance has been placed on the case of Mohideen Abdul Kadir v. Emperor, (1904) ILR 27 Mad. 238. His Lordship the Chief Justice of the Madras High Court relying on an earlier decision in Basant Kumar Ghatak v. Queen Empress, (1903) ILR 26 Cal. 423 . The relevant part is reproduced below : "21. Reliance has been placed on the case of Mohideen Abdul Kadir v. Emperor, (1904) ILR 27 Mad. 238. His Lordship the Chief Justice of the Madras High Court relying on an earlier decision in Basant Kumar Ghatak v. Queen Empress, (1903) ILR 26 Cal. 49 took the view that a gap in the evidence of the prosecution cannot be filled by any statement made by the accused in his examination under section 342 of the Code of Criminal Procedure. I am in respectful agreement with the view taken in that case and I am of the opinion that even where a matter had been admitted by the accused in his or her statement under section 342, Cr.PC, the prosecution had to prove such facts, for want of proof of which, the prosecution must fail. I have, therefore, to examine the evidence on the record in this case in order to find out if Ex. Ka. 2 has been proved according to law or not." 44. Similar view has been expressed by the Apex Court of the country in the case of Banamali Samal v. State of Orissa,(1979) 3 SCC 408. The relevant portion is reproduced below : "It would appear from the answers given by the appellant that he nowhere admitted that he gave stab blows to the deceased although he says that there was enmity between him and the deceased. In answer to the other questions, the accused says that when the deceased fell down he left the place. He did not see if he was stabbed. In fact in a direct question that the accused himself had stabbed the deceased and caused the fated injury, the appellant clearly denied this. In this state of the evidence the High Court should not have convicted the appellant on the basis of a statement of the accused, which never existed. The High Court further held that the evidence is corroborated by PWs 2 and 4. But this is not so. In the circumstances it is manifest that there is no legal evidence to show that the appellant caused stab injury to the deceased. Mr. Desai appearing for the respondent was not in a position to support the judgment of the High Court. But this is not so. In the circumstances it is manifest that there is no legal evidence to show that the appellant caused stab injury to the deceased. Mr. Desai appearing for the respondent was not in a position to support the judgment of the High Court. For these reasons, the appeal is allowed, the judgment of the High Court is set aside and the appellant is acquitted of the charges framed against him. Conviction under section 172 is also set aside." 45. Coming back to our case, we have already found that the learned trial court concluded that prosecution has proved its case and while doing so, it placed huge reliance on the statement of the accused made under section 313, Cr.PC ignoring blissfully the fact that the prosecution on its own could not make out the charge, brought against the accused person. This is another reason which requires this court to set aside the judgment, impugned in this appeal. 46. We have, now, found that evidence on record projects at least three hypothesis regarding the death of the deceased on the night of 8th October, 2008. Those hypothesis are : (i) The deceased might be killed by accused person or (ii) He might be killed by third person or (iii) He might have met his death due to vehicular accident. Since there are several possibilities regarding the death of the deceased, which are indicated above, it cannot be said that the prosecution has not made out a charge, leveled against the accused person on satisfying the tests laid down in respect of a case based on circumstantial evidence. 47. In view of what we have discussed hereinbefore and what have emerged therefrom, we are of the opinion that the prosecution could not make put the charge under section 302, IPC against the accused person beyond all reasonable doubt and as such, he deserves to be acquitted of offence under section 302, IPC. 48. In the result, we allow the appeal and consequently, the judgment of the trial court is set aside. 49. The accused stands acquitted of offence under section 302, IPC. He is ordered to be set at liberty forthwith if his further detention is not required in connection with any other case(s). 50. Return the LCR forthwith.