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2019 DIGILAW 549 (MAD)

V. Ganesan v. State of Tamil Nadu

2019-02-28

B.PUGALENDHI, R.SUBBIAH

body2019
JUDGMENT : R.SUBBIAH, J. PRAYER: Appeal is filed under Section 374(2) of the Code of Criminal Procedure against the conviction and sentence, dated 18.01.2017, passed in S.C.No.9 of 2015 by the learned Principal District and Sessions Judge, Theni. The appellant is the sole accused in S.C.No.9 of 2015, on the file of the learned Principal District and Sessions Judge, Theni. He stood charged for the offence punishable under Section 302 of the Indian Penal Code. By Judgment dated 18.01.2017, the Trial Court convicted and sentenced the accused to undergo imprisonment as detailed hereunder :- Conviction Sentence of imprisonment Fine amount 302 IPC To undergo imprisonment for life. Rs.5,000/- in default to undergo simple imprisonment for three months. Challenging the said conviction and sentence, the appellant has come up with this Criminal Appeal. 2. The case of the prosecution, in brief, is as follows:- The deceased, in this case, is one Mr.Dhamburaj. PW-5 is the sister of the deceased. PW-6 is the father of the deceased. At about 07.00 am, on 08.07.2011, when PW-1, the then Village Administrative Officer of Veerapandi Village, was in his office, he heard information that on P.C.Patti - Poothipuram Road, near the southern side of Kottakudi river, an unidentified dead body was found in a decomposed condition. On hearing such information, PW-1 went to the above said place and found a dead body in a decomposed condition. A striped lungi, jatti and a shirt were found on the dead body. In the pocket of the dead body, Ganesh tobacco and Nijam Bakku were also found. The identity of the dead body was not known. Immediately thereafter, PW-1 rushed to PC.Patti Police Station and made a complaint. On receipt of the complaint, PW-16, the then Sub-Inspector of Police registered a case in Crime No.221 of 2011 under Section 174 of the Code of Criminal Procedure. Ex-P1 is the complaint and Ex-P6 is the First Information Report. Then, he forwarded both the documents to the Court and handed over the investigation to the Inspector of Police. 2.1. Taking up the case for investigation, at 09.00 am, on 08.07.2011, PW-19 proceeded to the place of occurrence. PW-1 also accompanied PW-19 to identify the place, where the dead body was found. At that time, the dead body was lying towards western side and both the legs were found in folding condition. 2.1. Taking up the case for investigation, at 09.00 am, on 08.07.2011, PW-19 proceeded to the place of occurrence. PW-1 also accompanied PW-19 to identify the place, where the dead body was found. At that time, the dead body was lying towards western side and both the legs were found in folding condition. A black colour rope was found in his right hand wrist. On his right hand, a tattoo mark was found, branding the name of Thamman. On his left hand, yet another tattoo mark was found, branding the picture of tiger. On his right hand another tattoo mark was found, branding the picture of sword along with snake. On his right side head and right side shoulder, there were injuries. His right thumb finger was found cut and missing. 2.2. PW19, continuing the investigation, prepared an Observation Mahazer [EX-P12] and a Rough Sketch, [EX-P13] showing the place of occurrence in the presence of PW-15 and PW-18. He recovered tobacco pocket, in which it was written as “Ganesh 702” [MO-6]. He also recovered bloodstained mortar with blood and without blood found on the compound wall situate nearby the place of occurrence and the same are marked as MO.8 and MO.9 respectively. From the appearance of the dead body, PW-19 came to the conclusion that the death of the deceased was by homicide and accordingly, he altered the case into one under Section 302 of the Indian Penal Code. Ex-P16 is the alteration report. At 10.00 a.m., PW-19 conducted inquest on the body of the deceased, in the presence of the panchayatars. Ex-P15 is the inquest report. Thereafter, PW-19 examined PW-1, PW-2, PW-15 and PW-18 and recorded their statements. Then, he forwarded the alteration report and all material objects to the Court and the dead body for postmortem. 2.3. On 08.07.2011 at 1.40 p.m., PW-17 - Dr.D.Arunkumar conducted autopsy on the body of the deceased. Ex-P7 is the Postmortem Certificate. He found the following injuries on the dead body of the deceased:- “1. Whole of right side of facial bones and right half of mandible found fractured and missing with the surrounding bruise injuring the underlying muscles. 2. Laceration noted on left side of neck measuring 15 CM X 11 CM X muscle deep with surrounding bruising. He found the following injuries on the dead body of the deceased:- “1. Whole of right side of facial bones and right half of mandible found fractured and missing with the surrounding bruise injuring the underlying muscles. 2. Laceration noted on left side of neck measuring 15 CM X 11 CM X muscle deep with surrounding bruising. Dark red contusion seen on left side of neck measuring about 8 CM X 7 CM X 1 CM, containing about 20 gms of clotted blood. Fracture seen at the left side of thyroid cartilage with surrounding contusion containing about 10 ml of clotted blood. 3. Right Thumb missing - Laceration noted on base of thumb region measuring 3 CM X 2 CM X bone. 4. Multiple abrasions of varying sizes noted over an area of 9 CM X 7 CM over the front of left chest. 5. Multiple abrasions of varying sizes over an area of 8 CM X 9 CM over lateral aspect of left thigh. On dissection of scalp, skull and dura:- Dark red contusion of size 8 CM X 3 CM X scapal deep seen over left temporal area of scalp. Brain -absent. Multiple communicated fractures of varying length seen in the base of skull with surrounding bruising”. PW17 gave opinion that the deceased appears to have died of head and neck injuries. 2.4. On 09.07.2011, PW-19 examined PW-12 and PW-16, and recorded their statements. In order to identify the deceased, PW-19 issued pamphlets containing the images of the deceased in front of Bus Stand, Railway Station and Theatres. PW-19 obtained a list of persons, who were found missing and made comparison. 2.5. On seeing the pamphlets, PW6, PW5 and PW9 went to the Police Station on 22.08.2011 and PW6 informed PW19 that the dead body found in the pamphlet is similar to that of his son Thamburaj, who is missing from 03.07.2011. PW5, sister of the deceased and PW9, a relative of the deceased, had also stated in similar line. They had also stated to PW19 that the deceased was having illicit intimacy with one Rani and the accused, brother of Rani, had quarreled with the deceased previously and therefore, they suspected the role of the accused for the commission of offence. PW19 recorded their statements. 2.6. They had also stated to PW19 that the deceased was having illicit intimacy with one Rani and the accused, brother of Rani, had quarreled with the deceased previously and therefore, they suspected the role of the accused for the commission of offence. PW19 recorded their statements. 2.6. After a lapse of 3 years, PW-20 took up the case for investigation on 30.01.2014 and examined PWs.7 to 9 and 11 on 01.02.2014. On 18.06.2014, PW3, the Village Administrative Officer of Vadakarai, appeared along with the accused and extra judicial confession statement - Ex.P2 given by him, before PW20. The said statement disclosed that the accused killed the deceased on 03.07.2011 on the motive that the deceased was having illicit intimacy with his sister. PW-20 arrested the accused at 12.00 noon. On such arrest, the accused gave a voluntary confession in the presence of PW4 - the then Village Administrative Officer of Veerapandi Village, in which he disclosed the place, where he had murdered the deceased. In pursuance of the same, the accused took the Police and PW4 to P.C.Patti - Poothipuram Road, near the southern side of Kottakudi river and shown the place, where the alleged murder took place. PW-20 took photographs of the place shown by the accused through PW14. PW-20, thereafter, forwarded the photographs and CD (Ex.P3 series) to the Court. He also forwarded the accused to the Court for judicial remand. Thereafter, PW-20 examined PW-3 and PW-4 and recorded their statements. On 18.06.2014, PW-20 examined PW-5 and PW-7 and recorded their statements. On 30.07.2014, on completing the investigation, he laid charge sheet against the accused. 2.7. Based on the above materials, the Trial Court framed the charge, as stated in the first paragraph of this Judgment. When the accused was questioned in respect of the charge, he pleaded innocence. In order to prove the charge, on the side of the prosecution, 20 witnesses were examined, 17 documents and 9 material objects were marked. 2.8. The evidence of the prosecution witnesses are as follows: (a) PW-1, the Village Administrative Officer of Veerapandi Village, speaks about receipt of intimation of an unidentified dead body found in decomposed condition on P.C.Patti - Poothipuram Road, near the southern side of Kottakudi river on 08.07.2011 and lodging of the complaint - Ex.P1. 2.8. The evidence of the prosecution witnesses are as follows: (a) PW-1, the Village Administrative Officer of Veerapandi Village, speaks about receipt of intimation of an unidentified dead body found in decomposed condition on P.C.Patti - Poothipuram Road, near the southern side of Kottakudi river on 08.07.2011 and lodging of the complaint - Ex.P1. (b) PW-2, the Village Assistant of Kodivilarpatti Village, speaks about receipt of intimation of an unidentified dead body and informing the same to PW1 over phone. He would further state that he accompanied PW1 to the place where the dead body was found and to the Police Station. (c) PW-3, the Village Administrative Officer of Silvarpatti Village, speaks about recording of the extra judicial confession statement given by the accused on 18.06.2014 at 10.00 a.m. and production of the accused along with the said statement before PW20. (d) PW-4, the Village Administrative Officer of Veerapandi Village, speaks about confession statement given by the accused in the Police Station and place of occurrence shown by the accused. (e) PW-5, the sister of the deceased, speaks about motive between the accused and the deceased ie., the illicit intimacy between the deceased and Rani, sister of the accused. (f) PW-6, father of the deceased, speaks about motive. He would also state that the accused took the deceased from his house at 7.00 p.m on 03.07.2011 and thereafter, the deceased did not return. (g) PW7, uncle of the deceased, speaks about the motive. (h) PW8, relative of the deceased, speaks about the deceased lastly seen alive with the accused in front of Krishna Theatre at about 9.30 p.m. 4-1/2 years prior to the date of evidence. (i) PW9, another relative of the deceased, speaks about receipt of phone call of the accused by the deceased at 9.00 p.m. 4-1/2 years prior to the date of evidence. (j) PW10, a resident of Poothipuram Village, speaks about watching of an unidentified dead body in decomposed condition along with the Police and the Village Administrative Officer. (k) PW11, a resident of Alagarsamypuram Village, speaks about watching of the accused in Theni bus-stand at about 12.00 midnight. (l) PW12, a Head Constable, speaks about handing over of the complaint to the Court on 08.07.2011 at 11.00 p.m. (m) PW13, a Constable, speaks about handing over of dead body to the hospital for postmortem. (k) PW11, a resident of Alagarsamypuram Village, speaks about watching of the accused in Theni bus-stand at about 12.00 midnight. (l) PW12, a Head Constable, speaks about handing over of the complaint to the Court on 08.07.2011 at 11.00 p.m. (m) PW13, a Constable, speaks about handing over of dead body to the hospital for postmortem. (n) PW14, a Constable, speaks about place of occurrence shown by the accused and photographs taken by him. (o) PW15, who put signature in the Observation Mahazar, turned hostile. He did not support of the case of the prosecution in any manner. (p) PW16, Sub Inspector of Police, speaks about the registration of the complaint Ex.P1 on the basis of the complaint made by PW1. (q) PW17, Doctor, speaks about autopsy conducted by him and his final opinion regarding the cause of death. (r) PW18, who put signature in the Observation Mahazar, did not state anything incriminating against the accused. (s) PW19, an Inspector of Police, speaks about the investigation done by him. (t) PW20, another Inspector of Police, speaks about further investigation done by him and filing of final report. 2.9. When the Trial Court questioned the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. However, he neither choose to examine any witness nor to exhibit any document. His defence was a total denial. Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal. 3.0 The learned counsel appearing for the appellant would submit that this being a case based on circumstantial evidence, the prosecution is bound to prove the circumstances beyond all reasonable doubts, but it failed to prove any of the circumstances against the accused. 3.1. The foremost contention of the learned counsel for the appellant/accused is that the motive for the occurrence has not been established, as, even according to the prosecution, the accused and the deceased were friends. The accused used to visit the house of the deceased frequently. Similarly, the deceased used to visit the house of the accused frequently. 3.1. The foremost contention of the learned counsel for the appellant/accused is that the motive for the occurrence has not been established, as, even according to the prosecution, the accused and the deceased were friends. The accused used to visit the house of the deceased frequently. Similarly, the deceased used to visit the house of the accused frequently. In due course, it is alleged that the deceased had developed illicit intimacy with one Rani, who is the sister of the accused. It is the further case of the prosecution that the accused warned the deceased not to repeat such kind of illicit intimacy with his sister. In spite of such warning, since the deceased continued the same, the accused had decided to do away with the deceased. Accordingly, at 09.45 p.m., on 03.07.2011, the accused took the deceased to Kottakudi River and supplied liquor. When the deceased was in an inebriated condition, the accused attacked him with stone on his head, cheek and neck and also kicked the deceased on his genitalia and murdered him. Referring to the above, the learned counsel would submit that when it is the case of the prosecution that the deceased had developed illicit intimacy with the sister of the accused, in all fairness, the prosecution ought to have examined the said Rani. But, for the reasons best known to the prosecution, the said Rani was not examined. Thus, the motive for the occurrence has not been established. 4. The learned counsel would next contend that the entire case of the prosecution rests on the extra judicial confession alleged to have been given by the accused to PW-3, on 18.06.2014, ie., after lapse of three years, whereas the deceased was found missing from 03.07.2011 onwards, the date on which it was alleged that the deceased was done to death. Thus, according to the learned counsel, after lapse of three long years, the accused would not have chosen to give extra judicial confession. It is unbelievable that the accused would have chosen to give such a confession to PW3, who is a total stranger to him. Moreover, such extra judicial confession, being a weak piece of evidence, no reliance could be made on the same. 5. It is unbelievable that the accused would have chosen to give such a confession to PW3, who is a total stranger to him. Moreover, such extra judicial confession, being a weak piece of evidence, no reliance could be made on the same. 5. Insofar as the last seen theory projected by the prosecution is concerned, the learned counsel for the appellant would submit that the alleged occurrence took place on 03.07.2011, on which date, it was alleged by PW6 that the accused took the deceased at 7.00 p.m. and thereafter, the deceased did not return back home. PW-8, in his evidence, had stated that four and half years prior to the occurrence, he saw the deceased in the company of the accused in front of Krishna Theatre. From the above, the learned counsel would submit that even assuming for a moment that the deceased was lastly seen alive in the company of the accused on 03.07.2011, as it is alleged by the prosecution, the deceased was found dead only on 08.07.2011. But, after 03.07.2011, it is not known as to what had happened to the deceased and there was no plausible explanation offered by the prosecution for the same and thus, there is every possibility and likelihood of any person other than the accused, meeting or approaching the deceased in the intervening period either at the place of incident or before the commission of crime. Therefore, the benefit of doubt may be extended in favour of the accused. Thus, the learned counsel for the appellant would pray for acquittal of the appellant. 6. Per contra, the learned Additional Public Prosecutor would submit that there are no reasons to disbelieve the extra judicial confession given by the accused. He would further submit that there are overwhelming evidences to come to the conclusion that the said extra judicial confession [EX-P2] is a voluntary statement made by the accused. He would further submit that in the extra judicial confession, the accused had given a detailed narration of the entire occurrence as to how he took the deceased and as to how he killed the deceased. 7. Regarding the last seen theory projected by the prosecution, it is submitted by the learned Additional Public Prosecutor that PW-6 and PW-8, in one voice, have clearly stated that they lastly saw the accused in the company of the deceased. 7. Regarding the last seen theory projected by the prosecution, it is submitted by the learned Additional Public Prosecutor that PW-6 and PW-8, in one voice, have clearly stated that they lastly saw the accused in the company of the deceased. The accused has not given any explanation to the same. He would further submit that from these evidences, the prosecution had clearly established that it was this accused, who committed the murder of the deceased. Therefore, according to the learned Additional Public Prosecutor, the conviction and sentence recorded by the Trial Court on the accused does not require any interference at the hands of this Court. 8. We have considered the above submissions made by the learned counsel appearing for the accused and the learned Additional Public Prosecutor appearing for the respondent and perused the materials available on record, including the Judgment rendered by the Court below. 9. This is a case based on circumstantial evidence. It is too well settled that in a case based on circumstantial evidence, the prosecution is required to prove the circumstances projected by it beyond reasonable doubts and the proved circumstances should establish a close link with each other and form a complete chain unerringly pointing to the guilt of the accused and there should not be any other hypothesis, which will be inconsistent with the guilt of the accused. Keeping this broad principles in mind, let us now examine the circumstances projected by the prosecution so as to see whether such circumstances have been proved and the proved circumstances formed a complete chain. 10. In order to bring home the guilt of the accused, the prosecution relies only on two circumstances. The first one is the extra judicial confession said to have been given by the accused to PW-3. The second circumstance is that the deceased was lastly found in the company of the accused. 11. Before going into the above circumstances, this Court is of the view that it would be appropriate to look into the motive suggested by the prosecution. Even according to the case of the prosecution, the accused and the deceased were friends and the accused frequently visited the house of the deceased and the deceased frequently visited the house of the accused. Even according to the case of the prosecution, the accused and the deceased were friends and the accused frequently visited the house of the deceased and the deceased frequently visited the house of the accused. But, it is alleged that the deceased had illicit intimacy with the sister of the accused, which, according to the prosecution, resulted in the death of the deceased. When that be so, in all fairness, the sister of the accused should have been examined to prove the motive alleged by the prosecution. However, for the reasons best known to the prosecution, the sister of the accused was not examined to prove the alleged motive between the accused and the deceased. Further, the prosecution has suggested the said motive mainly relying upon the evidences of PW5, PW6 and PW7 who are none other than the sister, father and uncle of the deceased respectively and the same was not corroborated by any independent witnesses. It is seen that PW5 to PW7 had disclosed their suspicion over the accused only through their statements recorded under Section 161 Cr.P.C. after three years from the date of occurrence, which shows that the motive was, later on, cooked up. More over, simply because it was alleged that there was some enmity between the accused and the deceased, on that score, we cannot rush to the conclusion that the accused had committed the crime, as the motive is always a double edged weapon. Thus, in our considered view, the motive for the occurrence has not been established by the prosecution. 12. Regarding the extra judicial confession alleged to have been given by the accused, it is stated by PW3 - the then Village Administrative Officer of Periyakulam Vadakarai Bit-1 Village that at 10.00 a.m. on 18.06.2014 when he, along with the Village Assistant, was in the Office, the accused came there and informed that on 03.07.2011 he murdered the deceased. PW3 had further stated in his evidence that the said extra judicial confession statement was recorded and marked as Ex.P2 and then, about 11.00 a.m. he appeared before PW-20 - the then Inspector of Police, P.C.Patti Police Station and produced the accused along with the extra judicial confession statement - Ex.P2. On the disclosure statement made by the accused that the deceased was murdered by him, PW-20 arrested the accused at 12.00 noon. On the disclosure statement made by the accused that the deceased was murdered by him, PW-20 arrested the accused at 12.00 noon. PW4 - the then Village Administrative Officer of Veerapandi Village, had stated in his evidence that on 18.06.2014 at 12.00 noon, the accused gave a voluntary confession, in which he disclosed the place, where he had murdered the deceased. In pursuance of the same, the accused took the police and the witnesses to P.C.Patti - Poothipuram Road, near the southern side of Kottakudi river and shown the place, where the alleged murder took place. PW-20 took photographs of the place shown by the accused through PW14. 13. Assuming for a moment that the death of the deceased was by homicide which was caused by the act of the accused, it is unbelievable that on 18.06.2014, ie., after lapse of three years, the accused had chosen to appear before PW-3 and given confession statement voluntarily. Admittedly, the identity of the dead body was not known till 22.08.2011, the date on which PW-6 appeared before the PC.Patti Police Station and asserted that the dead body found in decomposed condition was that of the deceased and he was found missing from 03.07.2011. Even according to the case of the prosecution, the accused and the deceased were friends. If really the accused was the real perpetrator of the crime and if really PW-6, the father of the deceased, had any suspicion that the deceased would have been done to death by the accused, since according to the prosecution, the deceased had illicit intimacy with the sister of the accused and the deceased was lastly found in the company of the accused, in all fairness, PW-6, in our considered view, would have made a complaint against the accused and seen that the accused had been arrested. The above unnatural conduct of PW-6 makes his version doubtful. More over, PW3 was a Village Administrative Officer of some other Village and she is a total stranger to the accused. PW3 has not stated that she knew the accused. Therefore, it is also unbelievable as to how the accused believed PW3, who is a total stranger to him and gave confession before her. Thus, from the above, it is presumable that Ex-P2 is a prepared document only in order to strengthen the case of the prosecution. PW3 has not stated that she knew the accused. Therefore, it is also unbelievable as to how the accused believed PW3, who is a total stranger to him and gave confession before her. Thus, from the above, it is presumable that Ex-P2 is a prepared document only in order to strengthen the case of the prosecution. Since such an extra judicial confession, by its very nature, is a very weak piece of evidence, the Court should look for corroboration from independent sources. Here, in this case, we find no such corroboration from any other independent source. Therefore, it is not safe to sustain the conviction based on the so called Extra Judicial Confession. 14. Now, turning to the last seen theory projected by the prosecution, in the case on hand, PW6, who is the father of the deceased, has stated in his evidence that the accused came to his house and took the deceased at 7.00 p.m. and therefore, he did not return. PW7 has stated in his evidence that he went along with PW6 to the Police Station and stated that the accused would have caused the death of the deceased. But, the then investigating officer - PW19 has categorically admitted in his cross examination that PW6 has not stated before him that the deceased went, along with the accused, on the date of missing at 7.00 p.m. and that he has not disclosed anything to him. Had it been true that the accused took the deceased on the date of missing at 7.00 p.m., definitely, PW6 would have informed to PW19 about the same and PW19 immediately enquired the accused, because it is a vital information in a case of this nature. Even assuming that PW6 had informed the above incident to PW19, but no action was taken by PW19, the conduct of PW6 keeping silent for three years and not taking any action against the accused, gives an impression that the version of PW6 is not true. PW7 is none other than the close relative of the deceased. Even assuming that PW6 had informed the above incident to PW19, but no action was taken by PW19, the conduct of PW6 keeping silent for three years and not taking any action against the accused, gives an impression that the version of PW6 is not true. PW7 is none other than the close relative of the deceased. Though PW6, who is the father of the deceased, has stated in his evidence that the accused took the deceased on the date of missing on ie., on 03.07.2011 at 7.00 p.m., PW7 went one step ahead and stated that after identifying the dead body of the deceased, they informed the Police that the accused would have caused the death of the deceased. Thus, the evidence of PW6 and PW7 are contradictory to each other and their evidences cannot be relied upon. 15. Further, PW8 has stated in his evidence that he saw the deceased alive with accused at 9.30 p.m. and that they were talking each other near Krishna Theatre and that on the next day, when PW6 enquired about the deceased, he informed about his watching. PW9 has stated in his evidence that at about 9.00 p.m. he saw the deceased and while he was talking with the deceased, the deceased received a phone call and when he enquired as to who was the caller, the deceased replied that it was the accused, who called him to Theni and then, he left the place. 16. Even based on the evidences of PW6, PW8 and PW9, if we come to the conclusion that the deceased was lastly seen alive with the accused on 03.07.2011, simply because the deceased was lastly found in the company of the accused, we cannot be safely concluded that it was this accused, who had committed the murder of the deceased. Further, in this case, it is seen that the dead body of the deceased was found at 07.00 a.m., on 08.07.2011 ie., after five days from the date of missing. The doctor (PW-17), who conducted postmortem, has stated in his evidence that the death of the deceased could have been occurred three days prior to postmortem examination. Thus, in the interregnum period, ie., between the date of missing and the date on which the dead body was found, there is every possibility that the occurrence would have occurred at the instance of others. Thus, in the interregnum period, ie., between the date of missing and the date on which the dead body was found, there is every possibility that the occurrence would have occurred at the instance of others. Absolutely, there is no evidence that the accused had any exclusive knowledge as to how the death of the deceased was caused and by whom. It is the settled law that when the time gap is so long, it would be unsafe to base the conviction on the last seen theory and there is every possibility and likelihood of any person other than the accused, meeting or approaching the deceased in the intervening period either at the place of incident. 17. In a case, where the other links have been satisfactorily made out and the circumstances pointed to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link, which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis for conviction. In the case on hand, as we have already pointed out, the other circumstances relied upon by the prosecution have not been proved and that the circumstance of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Due to missing links in the chain of circumstances, which lead to only hypothesis of guilt against the accused, we cannot rush to convict the accused. Our view is also fortified by the Judgment of the Hon’ble Supreme Court in Ganpat Singh Vs. State of Madhya Pradesh, reported in 2018 (2) SCC (Crl) 159, wherein it has been held as follows:- “The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was lastly seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was lastly seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt of those cases”. 18. In Rambraksh alias Jalim Vs. State of Chattisgarh reported in 2017 (3) SCC (Crl) 716 : 2016 (12) SCC 251 , the Hon’ble Supreme Court has held that it is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was lastly seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen theory alone would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. 19. In the case on hand, various links, which we have pointed out in this Judgment, have not been satisfactorily made out to prove the guilt of the accused. Thus, in our considered view, there is every possibility and likelihood of any person other than the accused, meeting or approaching the deceased in the intervening period either at the place of incident or before the commission of crime. In this regard, we may usefully refer to a Judgment of the Hon’ble Supreme Court in Sawal Vs. State of Bihar reported in AIR 1974 SC 778 , wherein the Supreme Court has held as follows:- “Neither an application of Section 103 nor 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. State of Bihar reported in AIR 1974 SC 778 , wherein the Supreme Court has held as follows:- “Neither an application of Section 103 nor 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused”. 20. In the instant case, the prosecution has not discharged even the initial burden of establishing the prima facie guilt of the accused beyond all reasonable doubts. As Section 106 of the Indian Evidence Act is an exception to Section 101 of the Act, it is not attracted, unless the initial burden of the prosecution is discharged. Thus, the last seen theory projected by the prosecution, in our considered view, has not been clearly established. 21. While dealing with the circumstantial evidence, there is always a danger that conjecture or suspicion lingering on the mind may take the place of proof. Suspicion, however, strong cannot be allowed to take the place of proof and, therefore, the court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. The Supreme Court in the case of Sheila Sebastian v. R.Jawaharaj and another, reported in (2018) 7 SCC 581 , in Paragraph No.28, has observed as under: “Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof.” 22. The Supreme Court in the case of Jaharlal Das v. State of Orissa, reported in (1991) 3 SCC 27 , has observed in paragraph No.9 that caution must be borne in mind that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however strong cannot be allowed to take the place of proof. 23. 23. From the foregoing discussions, in our considered view, though the prosecution can be held to have created a suspicion against the accused in this case, the suspicion, however, strong it may be, shall not take the place of proof. There are lot of doubts and improbabilities in the case of the prosecution. Under Article 21 of the Constitution of India, depravation of life and liberty of an individual can be made only by following the procedure established by law. The Court cannot convict an accused on mere surmises, conjecture and suspicion. The prosecution is expected to prove the guilt of the accused beyond all reasonable doubts. In this case, as we have already pointed out, at the most, it can be said that the prosecution has succeeded in creating a suspicion against the accused, but it has miserably failed to prove the case against the accused beyond reasonable doubts and thus, we are bound to give the benefit of doubt to the accused and to acquit him. 24. In the result, this Criminal Appeal is allowed and the conviction and sentence, dated 18.01.2017, imposed on the appellant in S.C.No.9 of 2015, by the learned Principal Sessions Judge, Theni, are set aside and the appellant is acquitted from the charge. Fine amount, if any, paid by the appellant shall be refunded to him. Bail bond executed by the appellant and the sureties shall stand terminated.