JUDGMENT : MIR ALFAZ ALI, J. 1. This jail appeal is directed against the judgment and order dated 25.05.2016, passed by the learned Sessions Judge, Darrang, Mangaldai in Sessions Case No. 64(DM)/2014. By the said judgment, the accused appellant was convicted under Section 302 IPC and sentenced to imprisonment for life and fine of Rs. 5,000/- with default stipulation. 2. We have heard Mr. S. Agarwal, learned Amicus Curiae and Mr. M. Phukan, learned Addl. PP, Assam for the State respondent, who have also taken us through the evidence and materials available on record. 3. As per the prosecution case, on 23.9.12 at about 9.30 am in the morning, the victim Runu Kalita went to the river for washing clothes. As she did not return for long time, her son and other relatives went to look for her and found her body lying on the bank of the river with her hands and legs tied. PW-1, the husband of the victim, lodged an FIR (Exhibit-1), alleging that the appellant killed the victim by strangulation. On the basis of the said FIR, police registered Mangaldoi PS Case No. 587/2012, under Section 302 IPC. During investigation, inquest report was prepared by the I/O and autopsy was done by Dr. Alakananda Goswami. 4. PW-10, the Doctor who conducted post-mortem examination found the following injuries: A female dead body with eyes and mouth closed, rigor mortise positive with following injuries: Bluish coloured are below right eye, 1 inch x 1 inch area, bluish coloured injury mark over right side of neck 1 inch x 1 inch and left side 1 inch x 1 inch, bluish coloured injury mark of the right breast 2 inches x 2 inches, abrasion present over back, right side and left side. Injuries are ante-mortem. In the opinion of the doctor, cause of death is due to asphyxia due to throttling." 5. On completion of investigation, police submitted charge-sheet against the appellants under Section 302 IPC and eventually the appellant stood trial for the offence of murder. 6. The prosecution examined 10 (ten) witnesses to establish the charge against the accused appellant. Defence did not adduce any evidence. On appreciation of evidence, learned trial Court convicted the accused appellants under Section 302 IPC and awarded sentence as indicated above. 7. The medical evidence clearly indicated the homicidal nature of death of the victim. 6. The prosecution examined 10 (ten) witnesses to establish the charge against the accused appellant. Defence did not adduce any evidence. On appreciation of evidence, learned trial Court convicted the accused appellants under Section 302 IPC and awarded sentence as indicated above. 7. The medical evidence clearly indicated the homicidal nature of death of the victim. In fact, the factum of homicidal death of the victim has not been in dispute. Therefore, the only question remained, as to who caused the death. The record and the impugned judgment revealed that there was no eye witness of the occurrence and the learned trial Court recorded the conviction and sentence of the appellant on the basis of circumstantial evidence which can be summarised as under: a. The accused was found near the place of occurrence. b. Accused's conduct was suspicious as he could not respond properly to the queries made by PW-5 & PW-6 regarding the whereabouts of the victim. c. There was no other person present near the place of occurrence. d. The accused failed to prove the plea of alibi taken during examination under Section 313 Cr.P.C. 8. Since the entire prosecution case is based on circumstantial evidence, let us now turn to the evidence brought on record to see, how far the circumstances relied by the learned trial Court has been established. 9. PW-1, the husband of the victim testified that at the time of occurrence, he was in his house. His wife went to the river to have bath. When she did not return for a considerable time, he went to search for her. Seeing him, the appellant ran away from the place of occurrence and he noticed his wife (victim) lying dead on the ground. According to him, the victim went out from the house at about 10.00 a.m. FIR was also lodged by this witness (PW-1) himself, wherein he stated, that at the time of the occurrence, he was not at home and he was informed about the occurrence by the neighbourhood people. He also admitted to have not stated in his previous statement before police that he had seen the accused Maheswar Medhi running away from the place of occurrence. 10. PW-2 stated that on hearing commotion towards the river side, he went out. When he was about to reach the place of occurrence, the accused appellant left the place. He also admitted to have not stated in his previous statement before police that he had seen the accused Maheswar Medhi running away from the place of occurrence. 10. PW-2 stated that on hearing commotion towards the river side, he went out. When he was about to reach the place of occurrence, the accused appellant left the place. During cross-examination he admitted that PW-6 and PW-3 reached the place of occurrence before him. He also admitted during cross-examination that he did not see the accused at the place of occurrence and admitted to have come to know from PW-5 & PW-6, that accused ran away from the place of occurrence. The testimony of PW-1 & PW-2 that they have seen the appellant near the place of occurrence was evidently belied by themselves and as such, no credibility, in our considered view, can be attached to the oral testimony of these two witnesses, regarding presence of the appellant at or near the place of occurrence. 11. PW-3, PW-4, PW-7 & PW-8 came to know about the occurrence later on and they have no personal knowledge about the occurrence, as revealed from their testimony, and as such, the oral testimony of these four witnesses does not appear to be of any use. In fact, learned trial Court also did not rely on the oral testimony of these witnesses. 12. PW-9 was the I/O and PW-10 was the doctor. Therefore, we are left with only the testimony of PW-5 & PW-6, upon which, learned trial Court heavily relied, for attributing culpability to the appellant. 13. PW-6, who happens to be the son of the victim, deposed, that his mother went to the river for having bath at 10.30 a.m. When she did not return for a long time, he accompanied by PW-5, went to search for his mother. On reaching the river bank, he did not find his mother and from the river bank he noticed, that the appellant was coming out from the nearby jungle. He asked the appellant about his mother's whereabouts, which he could not answer properly. On reaching the river bank, he did not find his mother and from the river bank he noticed, that the appellant was coming out from the nearby jungle. He asked the appellant about his mother's whereabouts, which he could not answer properly. During cross-examination he stated, that his mother went to the river at 9.30 a.m. The statement of this witness was recorded under Section 164 Cr.P.C., which has been proved as Exhibit-5, wherein also, he stated that his mother went to the river at 9.30 a.m. In his statement so recorded under Section 164 Cr.P.C., he stated, that on reaching the bank of the river, he found that the clothes, which were taken by his mother for washing were lying there, but his mother was not there; then he started shouting and at that point of time, he saw the appellant running away from the place of occurrence. 14. PW-5 stated that he accompanied PW-6 and while they were proceeding to the river bank, on the way, they met the appellant, who was coming from the opposite direction. They asked about the victim, but the appellant could not answer properly. In his cross-examination he stated that the victim went to the river at 10.30 a.m. Statement of this witness was also recorded under Section 164 Cr.P.C., which has been proved as Exhibit-4. In his previous statement recorded under Section 164 Cr.P.C., he stated that the victim went to the river at 9'o clock. He also stated in his statement under Section 164 Cr.P.C., that while they were going to the river, they found the appellant coming from the opposite direction. It is on the basis of the oral testimony of these two witnesses, learned trial Court came to a conclusion that accused was present at the place of occurrence. 15. A dispassionate scrutiny of the oral testimony of these two vital witnesses makes it appear, that though, they were evidently together, both of them stood contradicted against each other, on materials facts. According to PW-5, when they were going to the river bank, the accused appellant was coming from the opposite direction and they met the appellant on the way. A dispassionate scrutiny of the oral testimony of these two vital witnesses makes it appear, that though, they were evidently together, both of them stood contradicted against each other, on materials facts. According to PW-5, when they were going to the river bank, the accused appellant was coming from the opposite direction and they met the appellant on the way. Whereas, the PW-6 gave a different version, whereas, he not only contradicted PW-5, he also stood contradicted with his own version recorded under Section 164 Cr.P.C. In his deposition in Court, he stated that as soon as they arrived at the bank of the river, he noticed that the accused was coming out of a jungle near the river, whereas in his statement recorded under Section 164 Cr.P.C., he stated, that on arriving at the bank of the river, he noticed the clothes which were taken by his mother for washing, but his mother was not there. He then, started shouting and at that point of time, the appellant ran away from the place of occurrence. 16. In view of the above self contradictory and mutually destructive evidence of PW-5 & PW-6, no credibility can be attached to these two witnesses also. Apparently, learned trial Court heavily relied on the circumstance, that the accused was at the place of occurrence, on the basis of the oral testimony of these two witnesses. However, the infirmity in the oral testimony of the PW-5 & PW-6 as indicated above, in our considered opinion, rendered their testimony totally unworthy of trust, and as such, the circumstance that the appellant was present at the place of occurrence, can by no stretch of imagination be held to have been established beyond doubt. 17. It is also found from the impugned judgment that the learned trial Court put a reverse burden on the appellant on the basis of the said circumstances, i.e., the appellant alone was at the place of occurrence, and had drawn an adverse inference against the appellant, with the observation that he could not explain, as to how death of the deceased was caused. Learned trial Court observed that on the facts and circumstances, the appellant was under obligation to explain, as to how death of the victim was caused. Learned trial Court observed that on the facts and circumstances, the appellant was under obligation to explain, as to how death of the victim was caused. We are unable to accept this finding of the learned trial Court for the simple reason, that the circumstances itself, upon which, such an adverse inference was drawn, was not even proved. It is not the case, where the occurrence took place in privacy or inside the house, where there was no possibility of presence of any other person, except the accused. Exhibit-8, the sketch map prepared by the I/O shows that the body of the victim was found on the bank of the river, in a bush, and the evidence of PW-5 & PW-6 was that the dead body was not visible from some distance. The Exhibit-8 sketch map, also makes it appear, that the place where the body was at under the bush was at a little distance from the path, through which the PW-5 & PW-6 were going to the river. In view of the above facts, there was no reason to put a reverse burden on the accused/appellant, only on the ground that he could not explain or could not answer to the queries, when PW-5 & PW-6 asked about the whereabouts of the victim. 18. It is to be borne in mind, that in a criminal trial, entire burden is upon the prosecution to prove the guilt of the accused, and the accused has a right to keep mum. Therefore, before putting a reverse burden on the accused under Section 106 IPC of the Evidence Act, the prosecution has to discharge its burden to establish a particular incriminating fact, which, if not explained, would attribute culpability to the accused. In the present case, as we have noticed from the evidence of PW-5 & PW-6 and also Exhibit-8, that there was no reason for presuming, even remotely that accused appellant was with the victim at the relevant time. It is also an important point to be taken note of, that the time of death was also not certain. In the present case, as we have noticed from the evidence of PW-5 & PW-6 and also Exhibit-8, that there was no reason for presuming, even remotely that accused appellant was with the victim at the relevant time. It is also an important point to be taken note of, that the time of death was also not certain. According to PW-1, the victim went to the river at about 10.00 am, according to PW-5, the victim went to the river at about 9.00 am and according to PW-6, the victim went at 9.30 a.m. According to PW-5 & PW-6, they came across and found the accused coming from the river side at 10.30 a.m. When the evidence was totally inadequate to establish the circumstances, that the accused was with the deceased at the relevant point of time, in our considered opinion, the accused did not owe any explanation as to the death of the victim. In the above facts and circumstances, we are of the considered opinion that learned trial Court fell in grave error, in taking an adverse presumption against the appellant by wrongly putting reverse burden on him. 19. It is settled position of law that in order to prove a criminal case by circumstantial evidence, the circumstances relied upon, must be conclusive and solid and chain of circumstance must be such, that it leads to the conclusion, which is consistent only and only with the hypothesis of the guilt of the accused. Therefore, in a case resting on circumstantial evidence, firstly the circumstances relied upon has to be proved conclusively beyond doubt and secondly there must be a chain of the proved circumstances, which unerringly leads to the conclusion, that it was none but the accused, who committed the crime. 20. In Sharad Birdhichand Sara Vs. State of Maharashtra reported in AIR 1984 (SC) 1622 , the Apex Court, while dealing with the nature of proof for establishing a criminal charge which rests solely on the circumstantial evidence, laid down the following golden principles: "152. 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. 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 be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with me hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for 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 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 21. Having regard to the evidence as discussed herein above, we are of the considered view that not to speak of establishing a chain of circumstances for leading to a definite conclusion, consistent only with the hypothesis of the guilt of the accused, even the primary circumstances relied by the learned trial Court for its conclusion, has not been proved or established beyond doubt in the present case. 22. The appellant in his examination under Section 313 Cr.P.C. stated that at the time of occurrence he was at Mangaldoi. However, he did not adduce any evidence in support of such plea. 22. The appellant in his examination under Section 313 Cr.P.C. stated that at the time of occurrence he was at Mangaldoi. However, he did not adduce any evidence in support of such plea. Failure of the accused to adduce defence evidence, in support of such plea of alibi was also presumed as an adverse circumstance against the appellant by the learned trial Court As regards the plea of alibi, it is suffice to say, that unless prosecution establish its case, accused may not adduce any evidence to substantiate his defence plea. Therefore, learned trial Court is also found to have fallen in error by taking an adverse presumption against the accused for not producing evidence in support of his plea of alibi. 23. In view of the above evidence, we are of the considered opinion, that the prosecution evidence was grossly inadequate to bring home the guilt of the accused and as such, the conviction recorded and sentence imposed on the appellant by the learned trial Court are not sustainable. Accordingly, the conviction and sentence of the appellant are set-aside. The appellant be set at liberty, if not required in any other case. 24. A copy of this judgment be forwarded to the Superintendent of the Central Jail, Guwahati. 25. Appreciating the assistance rendered by Mr. S. Agarwal, learned Amicus Curiae, we hereby provide that he will be entitled to fees as Legal Aid Counsel, as per the norms fixed by the Legal Services Authority Regulation. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Mr. Agarwal. 26. Send down the LCR along with a copy of this judgment.