JUDGMENT : A.C. RAO, J. 1. This Criminal Appeal has been preferred by the appellant – original accused under section 374 of the Code of Criminal Procedure, 1973 challenging the legality and validity of the judgment and order of conviction and sentence passed by the Principal Sessions Judge, Navsari (hereinafter referred to as “the Sessions Court”) in Sessions Case No.33 of 2013 dated 9/5/2014, by which the Sessions Court has convicted the appellant - original accused for the offence punishable under section 302 of Indian Penal Code and sentenced him to undergo Life Imprisonment with fine of Rs.2,000/-, and in default of deposit of fine, Court has ordered him to undergo further Rigorous Imprisonment for a period of six months. 2. The case of the prosecution, in nutshell before the Sessions Court was as under:- The complainant Kanubhai Bhikhabhai Koli Patel lodged the FIR on 24/2/2013 before the Police Inspector, Gandevi Police Station inter-alia stating that a small house is prepared in the field in the Pathari Sim wherein Chhayalubhai Dhanjibhai Kukanana is residing with his wife – deceased Sumitraben since last 15 years. Chhayalubhai died before five years and thereafter his wife - deceased Sumitraben was residing with her sons Sunil and witness – Manish. The said Sumitraben had gone to her village Karanjkhed., she returned with the accused herein - and on asking she informed that the said boy – accused herein is resident of her village and she would work in the agricultural field. On asking, she informed that the name of the said boy - accused is Daniyelbhai Madhubhai Kukana Patel, resident of Village Chincholgadh, Sankalpatal Road, Taluka Vaghai, District Dang. He has further stated in the FIR that said Daniyelbhai was working in his agricultural field and he came to know that Sumitraben was residing with her as her Kept (Rakhat). He has further stated in the FIR that on 23/2/2013, deceased Sumitraben and accused Daniyelbhai had come to his another agricultural field to take crop of Cheeku and they after working for whole day, they both had left the agricultural field in the evening at about 5.30 hours. He has further stated in the FIR that on 23/2/2013, deceased Sumitraben and accused Daniyelbhai had come to his another agricultural field to take crop of Cheeku and they after working for whole day, they both had left the agricultural field in the evening at about 5.30 hours. He has further stated in the FIR that on 24/2/2013 at about 2 O'clock, he had come to his agricultural field with witness Gamanbhai – Carpenter from Gandevi in the Tempo to repair the door of his house and on opening the door, he found that the deceased Sumietraben was lying on the ground floor and there was bleeding from his head and there were injuries on her face, both feet as well as behind her head so also on other parts of her body. On asking Manish, the younger son of the deceased Sumitraben informed that at night Daniyel had quarreled with his mother on the aspect of meal. He inflicted axe blows on her mother and run away at night. It is further stated in the FIR that thereafter he inquired about the daughter Sangaben and his husband witness Manishbhai Shankarbhai Halpati, but they were not found. The said FIR came to be registered with Gandevi Police Station vide CR No.I-17 of 2013 for the offence punishable under section 302 of IPC read with section 135 of Gujarat Police Act. 2.01. After registration of the FIR, investigating officer carried out investigation. On completion of the investigation, as there was sufficient evidence against the accused, the investigating officer filed Chargesheet against the accused under section 173(2) of the Code of Criminal Procedure in the court of learned Chief Judicial Magistrate, Gandevi and the Criminal Case was registered. As the case was triable by the court of Sessions. It came to be committed to the Sessions Court and registered as Sessions Case No.33 of 2013. 2.03. Thereafter, the Sessions Court framed Charge against the accused at Ex.6 and also recorded Plea of the accused under section 228(2) of the Cr.P.C. at Ex.7. The accused pleaded not guilty and prayed for trial. Therefore, the trial court conducted the trial in accordance with law. 2.04. The prosecution produced the oral as well as documentary evidence, more particularly, the prosecution examined in all 17 witnesses and produced in all 24 documents. 2.05. The accused pleaded not guilty and prayed for trial. Therefore, the trial court conducted the trial in accordance with law. 2.04. The prosecution produced the oral as well as documentary evidence, more particularly, the prosecution examined in all 17 witnesses and produced in all 24 documents. 2.05. Thereafter, statement of the accused came to be recorded under section 313 of the Code of Criminal Procedure, wherein it was the case of the accused that he is innocent and falsely implicated in the offence. 2.06. After conclusion of the trial, the Special Judge and Additional Sessions Judge convicted the appellant accused for the offence punishable under section 302 of IPC and sentenced him to undergo Life Imprisonment with fine of Rs.2000/- and in default, to undergo further rigorous imprisonment for a period of six months, as stated hereinabove. Being aggrieved and dissatisfied with the said judgment and order of conviction and sentence, the appellant herein – original accused has preferred this Criminal Appeal. Submissions of the appellant - accused :- 3.00. Mr.Neeraj Soni, learned advocate appearing on behalf of the appellant herein – original accused has made the following submissions:- [1] The trial court erred in convicting the appellant for the offence punishable under section 302 of IPC of IPC and sentencing the appellant for life imprisonment. [2] The trial court failed to appreciate that the case against the appellant is not proved beyond reasonable doubt. There is no cogent, convincing, reliable and sufficient evidence to convict the appellant. The trial court has convicted the accused misinterpreting the evidence on record and without appreciating the evidence on record in its true spirit. The conviction and sentence is against the evidence on record, against the provision of law and against settled legal position. [3] The trial court failed to appreciate the fact that the evidence of the child witness is highly unreliable. At the time of recording evidence of the child witness, the trial court has thought it fit not to administer oath to the said child witness. From the cross-examination it is clear that the child witness could not understand anything. Conviction on such evidence of the child witness is illegal. [4] That the daughter of the deceased has not supported the case of the prosecution. She has not stated that the appellant accused was residing with the deceased. From the cross-examination it is clear that the child witness could not understand anything. Conviction on such evidence of the child witness is illegal. [4] That the daughter of the deceased has not supported the case of the prosecution. She has not stated that the appellant accused was residing with the deceased. [5] That even if it is believed the case of the prosecution that the appellant was residing with the deceased, another son named Sunil was residing with the deceased, but the investigating officer has not taken pain to find out where Sunil was and no statement of Sunil is recorded. There are all possibility that Sunil might have committed the crime. [6] The chain of circumstances is not complete. [7] That in the cross examination, the investigating officer has admitted that the child witness has not stated in his statement that the deceased was killed by the appellant herein – original accused and he had seen the incident. Making above submissions, leaned counsel for the appellant prayed to allow this Appeal by quashing and setting aside the impugned judgment and order of conviction and sentence and order to release the appellant forthwith. Contentions of the respondent - State :- 4.00. This Appeal is opposed by Mr.Himanshu Patel, the learned APP appearing for the State. He has made the following submissions :- [1] The prosecution has successfully proved the case beyond reasonable doubt, by leading cogent and convincing evidence. [2] The prosecution witnesses have supported the case of the prosecution. [3] The judgment and order of conviction and sentence passed by the trial court is on true appreciation of evidence and same is not perverse. [4] No error has been committed by the trial court in convicting the appellant for the offence under section 302 of IPC and sentencing him for the life imprisonment. [5] That the evidence of the child witness is reliable and trustworthy and no error has been committed by the trial court in relying on the evidence of the child witness and convicting and sentencing the appellant. [6] That from the deposition of the complainant it is clear that the appellant - accused was residing with the deceased. Even from the evidence of the panch witness it is clear that the accused was residing with the deceased. [6] That from the deposition of the complainant it is clear that the appellant - accused was residing with the deceased. Even from the evidence of the panch witness it is clear that the accused was residing with the deceased. The burden is on the accused to prove his innocence that that is not proved by the appellant and therefore, the trial court has rightly convicted and sentenced the appellant. [7] That blood stains were found from the clothes of the accused. The appellant has not come with a case that it was his blood or he had sustained any injury. [8] That even the weapon axe found from the place of the offence also contains blood-stains of the deceased. [9] As per the case of the prosecution, there was dispute between the deceased and the appellant accused about the meal cooked by the deceased. Learned APP has drawn our attention to the postmortem report, according to which, at the time of postmortem report, stomach of the deceased was empty meaning thereby, the deceased had not consumed any food before 12 hours of the incident. This aspect also supports the case of the prosecution. [10] In support of his submissions, Mr.Patel has relied on the decision of the Hon'ble Supreme Court in the case of Vadivelu Thevar v. The State of Madras reported in AIR 1957 SC 614 . In the said decision, in paragraph Nos. 11 and 12, the Hon'ble Supreme Court has held as under :- “11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after the consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England both before and after the passing of the Indian Evidence Act 1872, there have been a number of statutes as set out in Sarkar's 'Law of Evidence' - 9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. In England both before and after the passing of the Indian Evidence Act 1872, there have been a number of statutes as set out in Sarkar's 'Law of Evidence' - 9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized on S. 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted." Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution” CONCLUSION :- 5.00. Heard Mr.Neeraj Soni, learned advocate for the appellant accused and Mr.Himanshu Patel, learned APP for the respondent State. Considered the impugned judgment and order of conviction and sentence as well as the evidence on record. 6.00. Heard Mr.Neeraj Soni, learned advocate for the appellant accused and Mr.Himanshu Patel, learned APP for the respondent State. Considered the impugned judgment and order of conviction and sentence as well as the evidence on record. 6.00. The entire case of the prosecution hinges on the evidence of minor witness. The minor son of the deceased named Manish Chhayalu is examined at Ex.35. He is eye witness. The said child witness was examined and certain questions were asked. At that time, he was aged about 5 years. The trial court has stated that as the child was minor and was not matured, he was not examined on oath. The said child witness has stated that name of his mother is Sumi, name of his father is Chhayalu, name of another father is Daniyel and he had killed his mother, there was dispute at night, the dispute was for meal, Daniyel has killed his mother. The said child witness has stated that accused Daniyel had caused injuries to his mother on the head and feet and he had run away. The said child witness has identified the accused as well as the muddamal. The said child witness was cross examined. He does not know the name of his school. He does not know the name of his teacher. He does not know the name principal. He does not know even the colour of his clothes. He has stated that the name of master of his mother where his mother was working is Kanubhai. He has stated that nobody has stated tutored him that his name is Kanubhai. He has stated that police uncle had not called him. In the cross-examination, the said child witness has denied that the police uncle had asked him to say in the court that his mother is killed by Daniyel. He had also stated in the cross examination that the axe was not shown to him by the police uncle in the police station. 6.01. Section 118 of the Evidence Act 1872 deals with the competence of a person to testify before the court. Section 4 of the Oaths Act 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years. 6.01. Section 118 of the Evidence Act 1872 deals with the competence of a person to testify before the court. Section 4 of the Oaths Act 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years. Therefore, if the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. The rule was stated in Dattu Ramrao Sakhare v State of Maharashtra, 1997 5 SCC 341 where the Apex Court, in relation to child witnesses, held thus: "5 A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." 6.02. A child has to be a competent witness first, only then is her/his statement admissible. The rule was laid down in a decision of the US Supreme Court in the case of Wheeler v United States, reported in 159 U.S. 523 (1895) wherein it was held thus: "... While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which- will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which- will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous..." 6.03. In the case of Ratansinh Dalsukhbhai Nayak vs. State of Gujarat, reported in 2004 1 SCC 64 , which was subsequently relied upon in Nivrutti Pandurang Kokate vs. State of Maharashtra, reported in (2008) 12 SCC 565 , the Apex Court held thus: "7. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." 6.04. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. Dalsukhbhai Nayak v State of Gujarat (2004) 1 SCC 64 . A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined. 6.05. We do not find any substance in the submission made by Mr.Patel, learned APP that though the complainant is declared hostile, he has admitted in his cross examination that he has stated in the complaint that he had asked Sunil and Sunil had informed him that at night there was quarrel between the appellant and his mother. The appellant had inflicted injury to his mother with axe and ran away at night. The learned APP has also contended that though the daughter of the victim is turned hostile, she has stated that her mother was residing with the appellant in the same house along with her two brothers. She has also stated that his younger brother Manish had told her that there was quarrel between the appellant and her mother and she was beaten by the appellant with small axe. We do not find any substance in the aforesaid submissions, as both the aforesaid witnesses do not have personal knowledge about the incident. They had received information from witness Manish. Their evidence is hearsay evidence and not admissible in evidence. The investigating officer has admitted in his cross examination that Manish has not stated in his statement that there was quarrel between his mother and appellant and appellant had caused injuries with axe. They had received information from witness Manish. Their evidence is hearsay evidence and not admissible in evidence. The investigating officer has admitted in his cross examination that Manish has not stated in his statement that there was quarrel between his mother and appellant and appellant had caused injuries with axe. Further, when the trial court has concluded that the child witness is of young age and is not rational to the primary questions made by the Court and his deposition was taken without administering oath. In such matrix of facts, the trial court ought to have discussed how the trial court found the deposition of the said child witness reliable. 6.06. From the deposition of the child witness, it is clear the child was unable to understand the questions and answer in a coherent and comprehensible manner. He could not recognize colour of his shirt, not remember name of his teacher, name of his principal, name of his school. So his evidence should be consider as wholly unreliable as classified by the Apex Court in above referred case of Vadivelu Thevar (supra). 6.07. The prosecution has examined in all 17 witnesses. The complainant – Kanubhai Bhikhabhai Koli Patel is examined at Ex.14, however, he has not supported the case of the prosecution and he is declared as hostile, however, in cross-examination, he has admitted that the deceased Sumitraben was working in his agricultural field. The complainant does not know from which village the accused belongs to and he had no personal knowledge about the illicit relation between the deceased and the accused. Further, the complainant has not stated in the FIR that since last eight months the deceased had brought the appellant and since then they both were residing in the house situated in his agricultural field. 6.08. The daughter of the deceased Sangaben who is examined at Ex.34 has also not supported the case of the prosecution and she is declared hostile. In fact, after the incident, the complainant called him. However, she has stated in her cross examination that her mother – deceased was residing with the accused Daniyel since last eight to nine months in the agricultural field of Kanubhai – complainant. Even she has stated in her statement before the police that the accused Daniyel who had kept her mother as mistress, had run away after causing injuries to her mother. Even she has stated in her statement before the police that the accused Daniyel who had kept her mother as mistress, had run away after causing injuries to her mother. As per the said witness, her brother Manish had informed her that at night Daniyel had quarreled with his mother on the aspect of meal and he had caused injuries to his mother with axe on head and feet and thereafter he had run away. Thus, the said witness had no personal knowledge about the injuries caused to his mother. She had not stated in her statement before the police that since last 8 to 9 months her mother and deceased were residing together, other parts of her deposition. 6.09. Prosecution witness Gamanbhai Govindbhai Patel who is examined at Ex.36 has not supported the case of the prosecution. However, he has stated in his evidence that when he had gone along with the complainant to repair house, a lady was lying on the ground in bleeding condition and on asking the complainant informed him that she is doing labour work in his field. Thus, the said witness has no personal knowledge about the injuries caused to the deceased. 6.10. The panchas of the panchnama of the body of the accused Ex.27 and panchas of the recovery of the clothes of the deceased Ex.28, have not supported the case of the prosecution. 6.11. Prosecution witness Bhagubhai is examined at Ex.37. He has prepared map of the place of offence. Letter written for the said work is produced at Ex.38. 6.12. Medical Officer Mr.Pragyeshsinh is examined at Ex.42. He has prepared postmortem report. Yadi sent for Postmortem Report is produced on record at Ex.43 and Postmortem Report is produced on record at Ex.44. As pr the P.M. Report, there was injury on the right occipital of head admeasuring 4 x 1 c.m., which was bone deep. The said injury was of spindle shape. There were another injury in the middle of the chest, in the middle of both the artillery auxiliary admeasuring 5 x 3 c.m. There was third injury behind the chest on right side line of posterior auxiliary. and there were fracture in the ribs. The said injury was of spindle shape. There were another injury in the middle of the chest, in the middle of both the artillery auxiliary admeasuring 5 x 3 c.m. There was third injury behind the chest on right side line of posterior auxiliary. and there were fracture in the ribs. There was fourth injury on the right foot thigh above knee admeasuring, admeasuring 3 X 2 c.m. There was fifth injury on the right leg admeasuring 5 x 3 c.m. The six injury was below left thigh admeasuring 2 x 1.5 c.m. The seventh injury was on the 6th left thigh above knee. Eight injury was on the behind the right side of the chest admeasuring and on the abdomen on posterior auxiliary level admeasuring 10 c.m. x 8 c.m. and there were fractures on the ribs. There were other four injuries. There were in all 12 injuries, as per the postmortem report. The injuries were on the vital parts such as head and chest. Even there were fractures of skull, ribs etc. 6.13. As per the Doctor, the deceased had taken food before 6 to 12 hours of the postmortem and the deceased had died before 36 to 48 hours. As per the Doctors, the said injuries were sufficient to cause death of the deceased. As per PM report, the cause of death, is due to hemorrhage in the head due to head injuries and other injuries, and shock. As per the doctor, injuries sustained by the deceased was sufficient to cause death of the deceased. Death Certificate of the deceased is produced on record at Ex.45. As per the FSL Report, the deceased had taken meal before 6 to 8 hours from the time of death of the deceased. 6.14. FSL Officer Mr.Pankajmumar Kanubhai Patel is also examined at Ex.47. He has produced the Report at Ex.48. Another FSL Officer Shobhanaben Jitendrabhai Nanawala is also examined at Ex.51. She has given Serological Analysis report which is produced at Ex.52. 6.15. The case of the accused in the statement recorded under section 313 of the Code of Criminal Procedure is of total denial. He has produced the Report at Ex.48. Another FSL Officer Shobhanaben Jitendrabhai Nanawala is also examined at Ex.51. She has given Serological Analysis report which is produced at Ex.52. 6.15. The case of the accused in the statement recorded under section 313 of the Code of Criminal Procedure is of total denial. The appellant accused has stated in his statement u/s. 313 that he is innocent, he does not know the deceased or Kanubhai Bhikhabhai Patel; he had no relation with the deceased; he had never stayed in the house of the Kanubhai situated in his agricultural field; he has never worked in the agricultural field of Kanubhai. According to the accused, he is innocent and is falsely implicated in the alleged crime. However, he has not examined any witness in support of his case. 6.16. In the case of Hanumant and Ors. vs. State of Madhya Pradesh, AIR 1952 SC 343 , it was observed as under :- "10. .....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 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. 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 " 6.17. It is well-settled that in cases where the prosecution relies on circumstantial evidence to establish its case, such circumstances should be duly proved and the chain of circumstances so proved should be complete. This means that the chain formed must unerringly point towards the guilt of the accused and not leave any missing links for the accused to escape from the clutches of law. This means that the chain formed must unerringly point towards the guilt of the accused and not leave any missing links for the accused to escape from the clutches of law. Further, with respect to conspiracy, it is trite law that the existence of three elements must be shown a criminal object, a plan or a scheme embodying means to accomplish that object, and an agreement or understanding between two or more people to cooperate for the accomplishment of such object. 6.18. In the case of Mulakh Raj v. Satish Kumar, reported in 1992 3 SCC 43 the Court succinctly restated the legal position in paragraph 4 as under:- "4. ......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 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." 6.19. The law on the point is very well settled that in a case based on circumstantial evidence, every circumstance must be fully proved and all the circumstances must form a chain of evidence so complete as to exclude every hypothesis other than the guilt of the accused. It was stated by this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 , thus : "153. It was stated by this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 , thus : "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, (1973) 2 SCC 793 , 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 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 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." 6.20. In the case of Nizam and Another vs. State of Rajasthan, reported in (2016) 1 SCC 550 the law on the point was reiterated while acquitting the accused of the charges under Section 302 read with 201 IPC. Paragraphs 9 and 10 of the decision were:- "9. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj v. State of J&K (2002) 8 SCC 45 , wherein this Court quoted a number of judgments and held as under: (SCC pp. 55-56, paras 10-11) 10. Paragraphs 9 and 10 of the decision were:- "9. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj v. State of J&K (2002) 8 SCC 45 , wherein this Court quoted a number of judgments and held as under: (SCC pp. 55-56, paras 10-11) 10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99 , Eradu v. State of Hyderabad AIR 1956 SC 316 , Earabhadrappa v. State of Karnataka (1983) 2 SCC 330 , State of U.P. v. Sukhbasi (1985) Supp SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P. (1989) Supp (1) SCC 560). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR (1954) SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: (SCC pp. 206-07, para 21): “21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. " 6.21. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. " 6.21. In the case of Trimukh Maroti Kirkan v. State of Maharashtra, reported in (2006) 10 SCC 681 , the Apex Court held as under: (SCC p. 689, para 12) : "12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence." The same principles were reiterated in Sunil Clifford Daniel v. State of Punjab (2012) 11 SCC 205 , Sampath Kumar v. Inspector of Police (2012) 4 SCC 124 and Mohd. Arif v. State (NCT of Delhi) (2011) 13 SCC 621 and a number of other decisions." 6.22. Only evidence against the accused of child witness do not inspire confidence, as discussed above. These circumstances do not form a chain so complete as not to leave any reasonable doubt or exclude every possible hypothesis except the one to be proved, nor are the circumstances sufficient and adequate to hold that the prosecution had established its case beyond any reasonable doubt. Considering the totality of the circumstances, in our considered view, the prosecution has failed to establish the case against the appellant accused. Consequently, the appellant is entitled to benefit of doubt. 7. In the result, this Criminal Appeal is allowed. Considering the totality of the circumstances, in our considered view, the prosecution has failed to establish the case against the appellant accused. Consequently, the appellant is entitled to benefit of doubt. 7. In the result, this Criminal Appeal is allowed. The impugned judgment and order of sentence passed by the learned Principal Sessions Judge, Navsari in Sessions Case No.33 of 2013 dated 9/5/2014 is hereby quashed and set aside and the appellant is acquitted of the offence punishable under section 302 of the Indian Penal Code, 1860, by giving benefit of doubt. The appellant – original accused - Daniyel Mahadubhai Kahadoliya Kuhana is ordered to be released forthwith, if not required in any other case. The appellant accused to furnish Bail Bond of Rs.10,000/- afresh before the trial court as prescribed under section 437(A) of the Code of Criminal Procedure, 1973.