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2014 DIGILAW 433 (HP)

Sulender v. State of H. P.

2014-04-22

DHARAM CHAND CHAUDHARY, SANJAY KAROL

body2014
JUDGMENT Dharam Chand Chaudhary, Judge Convict Sulender, hereinafter referred to as “the accused”, a permanent resident of Jharkhand, is in appeal before this Court against the judgment, dated 21.5.2008, passed by learned Additional Sessions Judge, Fast Track Court, Shimla, in Sessions Trial No.17-R of 2008/07, whereby he has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and pay Rs.20,000/- fine. There is a charge against him of committing murder of Smt. Devki, his own wife, on 27.6.2006 at Nalwa (Gumna), Tehsil Chirgaon, District Shimla. 2. Admittedly, PW-5 Krishan Kumar, a contractor, was executing the construction work of a school building at Devidhar. He had engaged labourers hailing from Jharkhand State. Accused and his wife Devki were also working as labourers on the construction work of school building. The labourers were residing in the temporary sheds constructed by PW-5 at the site of construction. 3. Report Ext. PW15/A, the accused made on 27.6.2006 to the police of Police Station, Chirgaon, tells us that he woke up early in the morning at about 6 a.m. and accompanied by his wife the deceased went outside in open to answer the call of nature, leaving behind minor daughter Mangra, sleeping alone in the Dera. While his wife, the deceased, was standing on the road, he went in the valley side. In the process of easing out, he heard “E-Jee” call given to him by his wife. When he came back to the road, found his wife not available there. He searched her here and there i.e. on the road, river and forest side also, however, when failed to trace her out, returned to his Dera. When there also she was not found present, he disclosed the factum of his wife having gone missing to his co-labourer. In the report, he disclosed the age of his wife 23 years, height 5’, colour black, slim body and wearing green coloured printed Sari and blue coloured Chappal. PW-4 Pyare Lal, Clerk of the contractor (PW5), was also with the accused. After lodging the missing report, they were asked by the police to come to Police Station on the next day. 4. Prosecution story, however, is altogether contrary to Rapat Ext. PW-4 Pyare Lal, Clerk of the contractor (PW5), was also with the accused. After lodging the missing report, they were asked by the police to come to Police Station on the next day. 4. Prosecution story, however, is altogether contrary to Rapat Ext. PW15/A, because the prosecution has claimed that on the fateful day the accused had taken his wife in the wee hours to jungle at the pretext to have sexual intercourse with her. In the jungle she was made to lie down, however, instead of performing sexual intercourse, he assaulted her with knife at her stomach, head and forehead and thereby caused her death. Thereafter he folded her petticoat and Sari towards her waist, the blouse towards neck and covered the dead body with a shawl. He kept one open umbrella on the dead body and left for his Dera at Devidhar. On the way, he was spotted by PW-13 Brahma Nand, around 7.15 p.m. at a place about 500 metres from the place of occurrence. 5. However, learned trial Court while holding the accused guilty for the commission of the offence, has arrived at a conclusion that at the place where the accused as per his version had gone to loo, no human excreta or urine could be detected and the place where the deceased was made to stand on the road, was visible upto a distance of 200-250 metres from the place where he was sitting to answer the call of nature. Learned trial Court, therefore, acting upon the statement of PW-13 Brahma Nand that the accused was seen walking briskly, recovery of clothes stained with soil, which on analysis was found to be that of the place of the occurrence, recovery of weapon of offence pursuant to the disclosure statement the accused made while in custody and the extra judicial confession he allegedly made before PW-1 Surinder Singh, the complainant and PW-4 Pyare Lal, Clerk of the contractor, convicted the accused. 6. Prosecution has examined as many as 16 witnesses in all. PW-1 Surender Singh, is the Ward Member of Gram Panchayat, Todsa. He tells us that on 27.6.2006, in the evening he was informed by one Ashwani Kumar qua a dead body lying at Nalwa in the field of PW-14 Parkash Dev. 6. Prosecution has examined as many as 16 witnesses in all. PW-1 Surender Singh, is the Ward Member of Gram Panchayat, Todsa. He tells us that on 27.6.2006, in the evening he was informed by one Ashwani Kumar qua a dead body lying at Nalwa in the field of PW-14 Parkash Dev. Being night hours, he, however, could visit the spot alongwith others on the next day, i.e. 28.6.2006 around 8-9 a.m. and found a dead body of some woman lying there. He informed the police through cell phone. 7. PW-2 Savitri is a witness, who had noticed the dead body on 27.6.2006 around 7 p.m., on way back from fields to the house and informed her husband PW-3 Thakur Sain. 8. PW-3 Thakur Sain also tells us that he was informed about the dead body by his wife Smt. Savitri. Since he was not having telephone, therefore, he asked Ashwani Kumar to inform PW-1 Surinder Singh, the Wad Member. He is also a witness to the disclosure statement Ext. PW1/F and the memo. Ext. PW1/G, whereby knife Ext. P1 was recovered. 9. PW-4 Pyare Lal was working as Munshi (Clerk) with the contractor PW5 Krishan Kumar. According to him, on the information given by the accused that his wife was missing, she was searched here and there by the accused and other labourers, however, when could not be traced out, report Ext. PW15/A, was lodged in the Police Station. After entering the report, police told them to come again on the next day. When next day, they went to Police Station, came to know that a dead body was lying at a place 1 kilometre below village Gumna. Thereafter they went to that place with the police situated at a distance of 2 ½ - 3 kilometers and identified the dead body to be that of the wife of the accused. He also tells us about the accused allegedly having confessed before him that he had killed his wife, the deceased, firstly by stone and then by strangulating her and when she did not die, then by stabbing her with a knife. This all the accused allegedly disclosed in the cremation ground when dead body of his wife was being consigned to flames. 10. This all the accused allegedly disclosed in the cremation ground when dead body of his wife was being consigned to flames. 10. PW-5 Krishan Kumar, Contractor has stated that the construction work of school building at Devi Dhar was in progress and he had engaged the accused, his wife and other persons as labourers on the said work. He also tells us that his Clerk PW-4 Pyare Lal had informed him that wife of the accused was missing. 11. The next material witness is PW-13 Brahma Nand, who states that on 27.6.2006 around 7-8 a.m. he was grazing cattle at village Todsa. He noticed the accused having covered himself with a grey coloured blanket and walking briskly. On inquiry, the accused told that he hails from Jharkhand and was going to Devidhar. PW-14 Parkash Dev is the owner of the field where the dead body of deceased Devki was lying. 12. PW-16 SI Pritam Singh is the Investigating Officer. He, while in the witness box, has stated that on receipt of a telephonic information that a dead body of a female is lying in a field in village Gumna, he rushed to the spot alongwith other staff, recorded statement Ext. PW1/A of PW1 Surinder Singh, got the photographs of the dead body clicked and prepared map Ext. PW16/A, showing the location of the place from where the dead body was recovered. He also took into possession the Chappals, blood stained soil, shawl and umbrella etc. vide recovery memos. Ext. PW1/B, PW1/C, Ext. PW1/D and PW1/F. He also recorded the disclosure statement Ext. PW1/F made by the accused and pursuant thereto recovered knife Ext. P1 at his instance. He got the postmortem of the dead body conducted at CHC, Sandasu, obtained the opinion of the doctor qua cause of death of the deceased and on receipt of reports Ext. PX to PZ from the FSL, prepared report under Section 173 Cr. P.C. and presented the same in the Court. 13. The evidence, as has come on record by way of testimonies of remaining prosecution witnesses, is formal in nature, as PW-6 Amar Chand is the Patwari, who has prepared Tatima Ext. PW6.B and Jamabandi Ext. PW6/C on the application Ext. PW6/A made by the police. PW-7 Kishori Lal is a witness to the spot. 13. The evidence, as has come on record by way of testimonies of remaining prosecution witnesses, is formal in nature, as PW-6 Amar Chand is the Patwari, who has prepared Tatima Ext. PW6.B and Jamabandi Ext. PW6/C on the application Ext. PW6/A made by the police. PW-7 Kishori Lal is a witness to the spot. He has deposed nothing except for the condition of the dead body in which the same was lying on the spot. As per his version, white coloured fluid was also noticed in the vagina of the deceased. PW-8 Dr. Manoj Mitan, has conducted postmortem examination vide postmortem report Ext. PW8/B and the cause of death in his opinion was as follows : “the deceased died of hypovolemic shock as a result of blood loss as a result of rupture liver and perforation aorta which occurred due to penetrating injuries (multiple) to the liver and aorta.” 14. PW-9 Shamsher Singh is photographer and he has taken photographs Ext.PW9/A to PW9/C. PW-10 Nihal Singh had deposited the sealed parcels in FSL Junga. PW-11 H.C. Tenjain Chering was MHC at the relevant time. He has recorded FIR Ext. PW11/A on the basis of Ext. PW1/A and also retained the case property in the Malkhana, which later on was sent to FSL for analysis. PW-12 Constable Rajesh Kumar had brought Rukka for the registration of the case and after getting the postmortem of the dead body conducted, brought six parcels handed over to him by the Medical Officer. CHC, Sandasu, to the Police Station. PW-15 Constable Ramesh Chand has entered the missing report Ext. PW15/A lodged by the accused and Rapat Rojnamcha Ext. PW15/B on the receipt of information from PW1 qua dead body of a female lying at Nalwa. 15. On the other hand, the accused in his statement under Section 313 Cr. P.C., has admitted that the deceased was his wife and also that Report Ext. PW15/A was lodged by him in Police Station, Chirgaon qua missing of his wife. He has also admitted that he was working alongwith his wife as labourer with Krishan Kumar, Contractor and stated that he is innocent. However, opted for not to produce any evidence in his defence. 16. PW15/A was lodged by him in Police Station, Chirgaon qua missing of his wife. He has also admitted that he was working alongwith his wife as labourer with Krishan Kumar, Contractor and stated that he is innocent. However, opted for not to produce any evidence in his defence. 16. At the end of the trial, learned trial Judge has convicted the accused under Section 302 IPC for causing murder of his wife on the basis of circumstantial evidence and sentenced him, as pointed out at the very outset. 17. The circumstances pressed into service to bring the guilt home to the accused are as under : (i) the accused and the deceased were last seen together in the early morning going to the side of jungle; (ii) the accused was found walking briskly on the way to Dera from the place of occurrence; (iii) The clothes taken into possession were found stained with the same soil as was available on the spot; (iv) extra judicial confession the accused made at the time of cremation of his wife before PW-4 Pyare Lal; and (v) disclosure statement Ext. PW1/F, the accused made while in custody and recovery of weapon of offence i.e. knife Ext. P1, pursuant to the statement so made by him. 18. Shri Hamender Chandel, learned defence counsel has very ably argued that learned trial Judge has gone wrong in convicting the accused on the basis of evidence, which is neither cogent nor reliable and rather contradictory in nature. Also that the present being a case of circumstantial evidence, motive to kill the deceased assumes considerable significance and as the motive for which the accused has killed his wife is not proved, no findings of conviction could have been recorded against him. According to learned counsel, if the relations of the deceased with other person, as has come on record, were there, the police could have investigated this aspect of the matter and produced evidence to substantiate its case. As per the own case of the prosecution, semen was detected in the private part of the deceased (though on the vaginal slide no semen could be detected, when analyzed in the laboratory) who subjected her to sexual intercourse, should have been investigated and investigation taken to its logical end. As per the own case of the prosecution, semen was detected in the private part of the deceased (though on the vaginal slide no semen could be detected, when analyzed in the laboratory) who subjected her to sexual intercourse, should have been investigated and investigation taken to its logical end. It has, therefore, been urged that the Court below has convicted the accused merely on the basis of conjectures and surmises and as such, he deserves to be acquitted of the charge. 19. On the other hand, learned Additional Advocate General, while repelling the arguments addressed on behalf of the accused and supporting the impugned judgment, has urged that cogent and reliable evidence available on record is sufficient to connect the accused with the commission of offence. Therefore, according to learned Additional Advocate General, learned lower Court has not committed any illegality or irregularity while convicting the accused. 20. Having gone through the record and also taking into consideration the rival submissions, admittedly, the present is not a case of direct evidence and the case rather hinges upon the circumstantial evidence. Learned trial Judge in para 47 of the impugned judgment has taken note of few facts allegedly proved on record and convicted the accused. This Court, however, has detailed the circumstances, which emerge on record from the perusal of the evidence. 21. It is well settled that in a case, which hinges on circumstantial evidence, circumstances on record must establish the guilt of the accused alone and rule out the probabilities leading to presumption of his innocence. The law is no more res integra, because the Hon’ble Apex Court in Hanumant Govind Nargundkar Vs. State of M.P, AIR 1952 SC 343 , has laid down the following principles ““It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 22. The five golden principles, discussed and laid down, again by the Hon’ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 , are as follows : (i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established, (ii) 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, (iii) the circumstances should be of a conclusive nature and tendency, (iv) they should exclude every possible hypothesis except the one to be proved, and (v) 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. Circumstance No.1. 23. The report under Section 173 filed against the accused discloses that on 27.6.2006, the accused and deceased were noticed going together around 4.30 a.m. from Dera by their co-labourer Vikas and his wife Pyari Devi. The list of witnesses reveals that both Vikas and Pyari Devi were cited as witnesses, however, not examined. Therefore, except for Ext. PW15/A, there hardly remains any evidence to show that the accused and the deceased had gone together at 4.30 a.m. The accused has admitted having lodged Rapat Ext. PW15/A qua missing of his wife in the Police Station. As per this report, the accused alongwith his wife went outside from Dera around 6 a.m. to answer the call of nature. The name of any specific place, however, does not find mention in the rapat where they had gone to answer the call of nature. 24. PW15/A qua missing of his wife in the Police Station. As per this report, the accused alongwith his wife went outside from Dera around 6 a.m. to answer the call of nature. The name of any specific place, however, does not find mention in the rapat where they had gone to answer the call of nature. 24. On the other hand, the dead body was found at a place 4-5 kilometres away from Dera. There is no evidence that the accused and his wife had gone to such a distant place to answer the call of nature. The prosecution story that it is the accused who had taken the deceased to that place is without any basis, because had it been so, they both would have been seen by someone, particularly when they reached there after covering the distance of 4-5 kilometres. No doubt, deceased Devki died in an unnatural death i.e. on account of hypovolemic shock as a result of blood loss due to rupture of liver and perforation of aorta which occurred because of penetrating injuries (multiple) to the liver and aorta, as has been opined by PW-8 Dr. Manoj Mitan, however, it is doubtful that it is her husband, the accused alone, who killed her. It is his co-labourers, including Vikas and his wife Pyari Devi, who could have thrown some light qua the strained relations, if any, between the accused and the deceased or relations of deceased with someone else. However, no fellow labourer has been examined. Even Vikas and Pyari Devi, who were cited as witnesses have also not been examined, as the prosecution failed to produce them despite opportunities granted and as such, the evidence of the prosecution was closed on 8.4.2008 by the order of the Court. The last seen theory, as pressed into service in order to bring the guilt home to the accused is, therefore, not at all established. As such, no case on this score is made out against the accused. Circumstance No.2 25. In order to prove this aspect of the matter, reliance has been placed on the sole testimony of PW-13 Brahma Nand. No doubt, this witness tells us that on 27.6.2006 around 7-8 a.m., he spotted one person walking briskly having covered himself with a grey coloured blanket and by appearance, he seemed to be a resident of Bihar State. In order to prove this aspect of the matter, reliance has been placed on the sole testimony of PW-13 Brahma Nand. No doubt, this witness tells us that on 27.6.2006 around 7-8 a.m., he spotted one person walking briskly having covered himself with a grey coloured blanket and by appearance, he seemed to be a resident of Bihar State. On inquiry, as to where he was going, said person replied that he was on his way to his Dera at Devidhar. Even if the accused was found to be walking briskly, how it can be a circumstance leading to the only conclusion that he was returning to Dera after committing the murder of his wife. He may be walking briskly to Dera, on account of missing of his wife, so that he could locate her in the Dera and if not available, to inquire from his co-labourers about her whereabouts or to inform them qua she having gone missing. Therefore, this circumstance, in our opinion, even if taken as proved against the accused, has no positive importance and cannot also be treated as a towering circumstance, warranting conviction of the accused. Thus, this circumstance is not of conclusive nature nor consistent with the hypothesis of the guilt of the accused alone. Learned trial Court, therefore, was not at all justified in relying upon this circumstance while recording the findings of conviction against him. Circumstance No.3 26. In the given facts and circumstances, when on 28.6.2006, the accused, as per the evidence available on record was on the spot with the police where the dead body was lying, it can reasonably be believed that alongwith others he may have lifted the dead body from that place and in that process it was quite obvious that the stains of the soil of the place where dead body was lying appeared on his clothes and also the blanket, which as per prosecution story was taken into possession on 30.6.2006, vide recovery memo. Ext. PW4/A. Had the clothes of the accused been taken into possession well before his going to the place where the dead body was lying, the things would have been somewhat different. Ext. PW4/A. Had the clothes of the accused been taken into possession well before his going to the place where the dead body was lying, the things would have been somewhat different. However, when he was present on the spot with the police on 28.6.2006 itself and his clothes were taken into possession thereafter on 30.6.2006, the presence of stains of soil of that place is hardly of any help to the prosecution case nor can be treated as a circumstance connecting the accused with the commission of murder of his wife, the deceased. Learned trial Court, therefore, has gone wrong to record the findings of conviction against the accused on this score also. Circumstance No.4 27. Interestingly, extra judicial confession has been made by the accused before PW5 Pyare Lal at the time of funeral of the deceased. Nothing has come on record as to on what date and place the dead body of the deceased was cremated, after its postmortem. It has come in the statement of PW-4 that he was asked by the police to enquire from the accused about the circumstances, leading to the death of his wife on the pretext that he has not disclosed anything in this behalf to the police. Whether the police official, who asked PW-4 to enquire about the circumstances leading to death of his wife from the accused, was Investigating Officer or SHO or any other police officer/official, nothing has come on record. Even the police had no occasion to enquire the cause of death of the deceased from the accused, unless and until asked to join interrogation or taken into custody. As per the prosecution case, the accused was arrested on 30.6.2006. Statement of PW-4, however, reveals that the accused was arrested on 29.6.206, i.e. next day of the recovery of the dead body. In order to infer that PW4 was really asked by the police to enquire about the cause of death, there should have been cogent and reliable evidence produced to show as to on what date and place the dead body was cremated. The story to this effect, therefore, seems to be engineered and fabricated in connivance with PW-4 Pyare Lal to the reasons best known to said Pyare Lal and the Investigating Agency. The story to this effect, therefore, seems to be engineered and fabricated in connivance with PW-4 Pyare Lal to the reasons best known to said Pyare Lal and the Investigating Agency. Otherwise also, it is well settled at this stage that confessional statement is made only before a person either in close relations or in friend circle. PW-4 being Munshi (Clerk) of a contractor is neither a relative of the accused nor can be treated in his close friend circle, that too when the accused hails from Jharkhand, a different State. The accused, therefore, would have never confessed the guilt, had he committed the murder of the deceased. Otherwise also, extra judicial confession is a weak type of evidence and can only be relied upon against the accused alongwith other evidence, if made voluntarily. In the case in hand, the alleged statement was, however, made by the accused on the asking of PW-4 at the instance of the police. Therefore, findings of conviction could have not been recorded against the accused on this score also. Circumstance No.5 28. As per the prosecution case, it is on 27.6.2006, the accused while in custody has made disclosure statement Ext. PW1/F in the presence of PW1 Surinder Singh and PW3 Thakur Sain. The disclosure statement is alleged to have been recorded in the Police Station on 30.7.2006. PW1 one of the marginal witnesses thereto, however, stated that he never visited the police station on that day and rather called by the police to the place from where dead body was recovered. No doubt, PW3 states that the accused made the disclosure statement in his presence, however, he failed to tell whether he made the statement in the police station or on the way towards tower side. In his cross-examination, he admits that the accused did not produce any ‘Chhuri’ in his presence. 29. The other piece of evidence is the recovery memo. Ext. PW1/G and also the map Ext. PW16/A. Photographs Ext. PW-16/D to 16/F are also stated to be of the place of recovery of Chhuri. No doubt in photographs Ext. PW16/E and PW16/F, the accused seems to have been shown searching out the ‘Chhuri’ in a shrub (grass) not so thick and big in size. In photograph Ext. Ext. PW1/G and also the map Ext. PW16/A. Photographs Ext. PW-16/D to 16/F are also stated to be of the place of recovery of Chhuri. No doubt in photographs Ext. PW16/E and PW16/F, the accused seems to have been shown searching out the ‘Chhuri’ in a shrub (grass) not so thick and big in size. In photograph Ext. PW16/D, the so called ‘Chhuri’ is in his hand, however, the photographs do not suggest that he had taken out the Chhuri from the grass in which he was shown to be searching out the same. Photographs Ext. PW16/D reveals that this is not a Chhuri and rather something like iron blade. 30. The disclosure statement having been made by the accused while in custody and recovery of weapon of offence pursuant thereto is again a weak type of evidence and should be relied upon with all care and caution. In view of the evidence qua this aspect of the matter available on record, it is highly doubtful that the statement Ext. PW1/F was made by the accused voluntarily and without any pressure of any kind. The place from where Chhuri Ext. P1 is alleged to have been recovered, is an open place. Therefore, it cannot be believed that it is the accused, who alone had concealed the Chhuri at that place. Even blood was also not found on Chhuri Ext. P7. Therefore, on this score also, the conviction of accused is unwarranted. 31. Additionally, it is not at all proved as to why the accused would have killed his own wife. As pointed out at the outset, the prosecution was required to plead and prove the motive behind it, however, no efforts to this effect have been made. Therefore, it cannot be believed that it is the accused, who alone has killed the deceased. The identification of the spot where the accused allegedly went to answer the call of nature while in custody should have not been relied upon without any corroboration. Whether the accused answered the call of nature only at that place is not at all proved beyond all reasonable doubt. When semen was seen in private part of the deceased, learned trial Court has gone wrong while holding that there was no evidence of sexual intercourse having been committed with the deceased. Whether the accused answered the call of nature only at that place is not at all proved beyond all reasonable doubt. When semen was seen in private part of the deceased, learned trial Court has gone wrong while holding that there was no evidence of sexual intercourse having been committed with the deceased. There is no evidence that the accused admitted his guilt before PW-1 also, as the witness has not stated so while in the witness box. Learned trial judge was not justified in treating the Rapat Ext. PW15/A as false, because not only PW-4, but the accused had also lodged missing report of the deceased with the police. PW1 Surinder Singh, PW2 Savitri, PW3 Thakur Sain, PW7 Kishori Lal, PW13 Brahma Nand and PW14 Parkash Dev, as a matter of fact, are the witnesses to the recovery of dead body. Their testimony, therefore, does not connect the accused with the commission of the alleged offence. 32. The evidence of the remaining witnesses, including the Investigating Officer, is formal in nature. Their version would have been relevant had the prosecution been otherwise able to prove that it is the accused who alone has murdered his wife. The scientific evidence as has come on record by way of report of the Forensic Science Laboratory also does not connect the accused with the commission of the alleged offence, except for the presence of stains of soil of the spot on his clothes, which aspect of the matter has been discussed in this judgment hereinabove and there is no cogent and reliable evidence to record the findings of conviction against the accused. 33. Therefore, looking to the present case from any angle, the circumstances from which the conclusion qua the guilt of the accused could have been drawn are neither fully established nor conclusive or complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused nor established that in all human probability the act must have been done by the accused. The conclusion to the contrary drawn by learned trial Judge, therefore, is neither legally nor factually sustainable. Consequently, the involvement of the accused in the commission of alleged offence is not at all established beyond all reasonable doubt. Learned trial Judge rather has failed to appreciate the evidence available on record in its right perspective. 34. The conclusion to the contrary drawn by learned trial Judge, therefore, is neither legally nor factually sustainable. Consequently, the involvement of the accused in the commission of alleged offence is not at all established beyond all reasonable doubt. Learned trial Judge rather has failed to appreciate the evidence available on record in its right perspective. 34. The upshot of the discussion hereinabove would be that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. The accused, therefore, is entitled to benefit of doubt and ultimately acquittal. 35. In view of what has been stated hereinabove, the present appeal succeeds and the same is accordingly allowed. The impugned judgment of conviction and sentence of the accused is quashed and set aside and he is acquitted of the charge. The accused, who is in jail and serving out the sentence imposed upon him by learned trial Court, be set free forthwith, in case he is not required in any other case. The fine amount, if deposited by him be also refunded against proper identification and receipt. The appeal stands disposed of accordingly.