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2020 DIGILAW 651 (GAU)

Md Raham Ali v. State Of Assam

2020-09-02

KALYAN RAI SURANA, MIR ALFAZ ALI

body2020
JUDGMENT Kalyan Rai Surana, J. - This appeal under section 374 (2) Criminal Procedure Code is directed against the judgement, order and sentence dated 30.07.2014 passed by the learned Sessions Judge, Kamrup, Amingaon in Sessions Case No. 258 (K A)/2014(New) [50/2007 (Old)], thereby convicting the appellant under section 302/201 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 2000/-, in default to undergo R/I for six months under section 302 IPC and further sentenced to suffer R/I for five years under section 201 IPC and to pay a fine of Rs. 2000/-, in default to undergo R/I for another six months. 2. We have heard Mr. K. Kalita, the learned legal aid counsel for the appellant as well as Ms. S. Jahan, learned A.P.P. for the State. The learned legal aid counsel as well as the learned A.P.P. have submitted their respective written notes of argument, which is kept on record. 3. The prosecution story, as disclosed in the F.I.R. (Ext.1) lodged by one Kurban Ali (PW-1) is that on getting the information about the missing of Mst. Mamiran Nessa (the second wife of the appellant, hereinafter referred to as the victim), he along with five other persons came to the house of the appellant and that his first wife Anowara (PW-7) informed them that the victim had committed suicide and she was buried near the river. Accordingly, on 06.02.2004 information was given to Tulsibari Police Out-Post, but on that day the police and the Magistrate could not find out the dead body. But, on 07.02.2004, on being shown by the PW-7 and the mother of the appellant (PW-6), the dead body of the victim was dug out from the earth. Accordingly, F.I.R. was lodged by PW-1 at Tulsibari Police Out-Post on 07.02.2004. After completion of investigation, the Investigating Police Officer (I/O for short) submitted charge-sheet against the appellant, Rahman Ali and one Javed Ali (absconder), alleging commission of offence under section 302/201 of the Indian Penal Code. While the case against the applicant was committed to the Court of Sessions, Kamrup, Amingaon, the case against Javed Ali was filed after declaring him as an absconder. Charge framed against the appellant was read over and explained and the appellant pleaded not guilty and claimed to be tried. While the case against the applicant was committed to the Court of Sessions, Kamrup, Amingaon, the case against Javed Ali was filed after declaring him as an absconder. Charge framed against the appellant was read over and explained and the appellant pleaded not guilty and claimed to be tried. In course of trial, the prosecution had examined 13 witnesses including the Medical Officer and the I/O. On conclusion of the recording of the prosecution witnesses, the learned trial court recorded the statement of the accused under section 313 CrPC, wherein the appellant pleaded not guilty and declined to reduce any evidence in defence. On conclusion of trial, the applicant was convicted and sentenced as indicated hereinbefore. The learned trial court recorded conviction of the applicant on the basis of circumstantial evidence by arriving at the conclusion that the appellant was in the company of the victim immediately before her death. 4. The learned trial Court had formulated the following two points of determination:- wxyz 1. Whether the accused committed murder by intentionally causing the death of his second wife Mamiran Nessa, as alleged? zyxw wxyz 2. Whether the accused knowing that the murder of his second wife has been committed, concealed her dead body to disappear evidence with intention of screening himself from punishment? zyxw 5. In this case, the prosecution had examined 13 (thirteen) prosecution witnesses, viz., (1) Kurban Ali (PW-1), Chandesh Ali (PW-2), Md. Majibar Rahman (PW-3), Nitai Chandra Das (PW-4), Dr. B.C. Roy Medhi (PW-5), Mst. Gulbahanur Begum (PW-6), Mst. Anowara Begum (PW-7), Md. Abdul Kader @ Kuddush Ali (PW-8), Gunajit Das (PW-9), Abdul Barek (PW-10), Nabin Chandra Haloi (PW-11), Babul Chandra Bora (PW-12), Intaz Ali (PW13). The following documents were exhibited by the prosecution, viz., FIR (Ext.1), Postmortem report (Ext.2), Inquest report (Ext.3), Police forwarding report (Ext.4), Command Certificate (Ext.5), Dead body challan (Ext.6), sketch map (Ext.7), Charge-sheet (Ext.8). After appreciating the evidence on record, especially that of PW-1, PW-2, PW-3, PW-5, PW-6, PW7, PW-8, PW-11, PW-12, and statement of the appellant in his examination under Section 313 CrPC, the learned trial Court had culled out the following adverse circumstances appearing against the appellant:- wxyz i. Absence from the house after the occurrence till the date of arrest for a considerable period. zyxw wxyz ii. zyxw wxyz ii. Did not inform the matter either to villagers or to the police after the incident and maintained indifferent silence about the matter. zyxw wxyz iii. Failed to give any satisfactory explanation about his absence from his house although claimed to be present at his working place at Guwahati in connection with his work. zyxw wxyz iv. Failed to establish/ substantiate the plea that accused was in a different place in connection with his work through cogent evidence, by examining a co-worker in spite of giving ample time and opportunity. zyxw wxyz v. Run away from near his house on seeing police, PW-11, the IO. zyxw wxyz Point of determination no.1 framed by the learned trial Court: zyxw 6. The learned trial Court, while discussing point no.1 had specifically mentioned that in the instant case the prosecution had relied mostly on the circumstantial evidence adverse to the appellant. Thus, as the appellant has been convicted on the basis of circumstantial evidence, and in light of the herein before mentioned finding on the two points formulated by the learned trial Court, we have carefully appreciated the evidence on record. In case of such nature where an accused is convicted on circumstantial evidence, the prosecution must establish a complete chain, which can lead to no other conclusion but to the guilt of the accused. 7. On the perusal of the statement of the witnesses, it is seen that none of the PWs have given any date on and from which the victim was missing. Moreover, none of the prosecution witnesses have stated about any approximate date or month when they had last seen the appellant together with the victim. It is seen that in his examination in chief, Dr. B.C. Roy Medhi (PW-5), who had supervised the post-mortem examination, had stated having found a broad ligature mark round the neck over and below the thyroid cartilage level and opined that death was due to asphyxia as a result of ligature strangulation on the neck and that the ligature mark and the injuries are ante-mortem and homicidal in nature he opined that the time since death was 5 to 7 days. He had exhibited post-mortem report (Ext.2), inquest report (Ext.3), forwarding report of police (Ext.4), command certificate (Ext.5), dead body challan (Ext.6). He also proved the signatures contained in the aforesaid exhibits. His cross-examination was declined. He had exhibited post-mortem report (Ext.2), inquest report (Ext.3), forwarding report of police (Ext.4), command certificate (Ext.5), dead body challan (Ext.6). He also proved the signatures contained in the aforesaid exhibits. His cross-examination was declined. As per the post- mortem report (Ext.2), the post- mortem examination was conducted at 12.30 p.m. on 08.02.2004, as such, as per the said report, the estimated time of death would be between 01.02.2004 to 03.02.2004. As indicated above, none of the prosecution witnesses had given a positive statement of having seen the appellant at the place of occurrence in close proximity to those dates. The PW-1 and PW-2 had categorically stated that they did not see the accused from the time they visited the house of the appellant till he was arrested by the I/O (PW-11) on 17.04.2004. Thus, the first link in the chain to put the appellant at the place of occurrence on the proximity of the commission of crime is found absent. It is seen that although in GDE No. 87 dated 07.02.2004, there is a mention that the appellant told the PW-1 that the victim was missing, from which it can be inferred that the appellant was present at the place of occurrence on 07.02.2004, but the said document was not proved by the prosecution by exhibiting the same, as such, the Court cannot take note of the contents of "not proved" document. Hence, the first two circumstances against the appellant, as culled out by the learned trial Court to the effect that (i) the appellant was absent from the house after the occurrence till the date of arrest for a considerable period, and (ii) that the appellant did not inform the matter either to villagers or to the police after the incident and maintained indifferent silence about the matter do not appear to us to be incriminating circumstantial evidence against the appellant. 8. 8. On point of determination no.1, the other two circumstantial circumstances operating against the appellant as culled out by the learned trial Court are (iii) that the appellant had failed to give any satisfactory explanation about his absence from his house although claimed to be present at his working place at Guwahati in connection with his work, and (iv) that the appellant failed to establish/ substantiate the plea that accused was in a different place in connection with his work through cogent evidence, by examining a coworker in spite of giving ample time and opportunity. In this regard, on a perusal of the statement of the appellant recorded under section 313 CrPC, we find that the appellant had not been confronted with any evidence tendered by any PWs that the appellant was at the place of occurrence on the proximate dates when the victim had died. Therefore, the answer by the appellant to the questions put by the learned trial Court that on the date when the father of the appellant had informed PW-1 that the victim had disappeared from the house, he was at Guwahati doing labour work, or the silence of the appellant- accused or the nonexplanation of his absence from the place of occurrence cannot lead to an inference that the said silence of the appellant was damning and could lead to an inference of guilt of the appellant on the basis of circumstantial evidence. 9. The last circumstantial evidence culled out by the learned trial Court on point no.1 is that the appellant had run away from near his house on seeing police (i.e. PW-11, the I/O). In this connection, it is seen that the said incident when the appellant had purportedly run away after seeing PW-11 was on 17.04.2004, while the dead body was recovered on 08.02.2004. Therefore, this part of the evidence of PW-11 does not place the appellant at the place of occurrence in the first week of February, 2004. Thus, we do not find that this is a circumstantial evidence leading to inference of the guilt of the appellant. wxyz Point of determination no.2 as framed by the learned trial Court: zyxw 10. Therefore, this part of the evidence of PW-11 does not place the appellant at the place of occurrence in the first week of February, 2004. Thus, we do not find that this is a circumstantial evidence leading to inference of the guilt of the appellant. wxyz Point of determination no.2 as framed by the learned trial Court: zyxw 10. In respect of point no.2 regarding disappearance of dead body, it was held by the learned trial Court that the appellant was held to be guilty of murdering his wife and that there was clear evidence that the dead body buried in the river bank was recovered by digging it out, as such, it was inferred that by concealing the dead body by burying it on the river bank, the accused intended to screen himself from legal punishment and, as such, by holding that ingredients of section 201 IPC were present, the appellant was held to be guilty under the said section. 11. In this regard, the PW-1 had stated in his evidence in chief that the villagers questioned the first wife of the appellant on the next day when she said that the dead body of the victim was buried in a hole on the bank of the river. The police was informed and the police came along with the Magistrate and the dead body of victim was disinterred from the hole in his presence and that he recognised the victim''s dead body. He had also stated that in the presence of the mother of the appellant, the first wife of the appellant (PW-7) had pointed out the place where the dead body had been buried. He then went to the police station along with Chandesh Ali (PW-2), Hazarat Ali (not examined) and Ramjan Ali (not examined) and lodged the FIR (Ext.1). 12. The PW-1 had stated in his examination- in- chief that the having failed to meet the appellant, the police questioned the first wife (PW-7) and when the police told that they would take-in the first wife of the appellant, the villagers asked them not to do so. He further stated that the villagers questioned the first wife of the appellant on the next day when she said that the dead body of the victim was buried in a hole on the bank of the river. He further stated that the villagers questioned the first wife of the appellant on the next day when she said that the dead body of the victim was buried in a hole on the bank of the river. The police was informed and the police came along with the Magistrate and the dead body of the victim was extracted from the hole, which was recognized by the PW-1 present. According to him the first wife of the appellant (PW-7) had pointed out the place where the dead body had been buried and that the mother of the appellant was also present at that place. Similarly, PW-2 had also stated in his examination in chief that the first wife and mother of the appellant had stated that the victim had gone missing but in the presence of the member, the mother and the first wife of the appellant confessed that they had buried victim''s dead body and at that at the time he, Hazarat Ali (not examined) and Kurban (not examined) were present with the member. He had stated that PW-7 (first wife of the appellant) showed the place on the river bank where the dead body had been buried and the police recovered the dead body by digging out a hole. It was further stated that the mother of the appellant (PW6) was present then. The evidence tendered by Md. Majibar Rahman (PW-3) does not appear to help the prosecution in any manner. He had stated that he saw the police personnel and other people gathered on the river bank, tying the dead body with a bamboo mat, but he did not ask anybody from where the dead body was recovered and he signed a paper when the police said it was for recovery of the dead body. According to him, he saw the first wife of the appellant (PW-7) standing near her house, which was 60 of the 70 m away from where the dead body had been recovered. In his cross-examination he said that on his arrival he found the dead body wrapped with a bamboo mat and he did not see the dead body and he did not verify whether it was the dead body of the victim (Mamiran) or not and he also told that his statement was not recorded by the police. 13. In his cross-examination he said that on his arrival he found the dead body wrapped with a bamboo mat and he did not see the dead body and he did not verify whether it was the dead body of the victim (Mamiran) or not and he also told that his statement was not recorded by the police. 13. As per the examination in chief of Nitai Chandra Das (PW-4), he heard from Abdul Barek that the appellant had said that his wife had fled away while the villagers had alleged that she had hanged herself he further stated that the appellant''s mother (PW-6) was called by them in the school and on being asked by Abdul Barek (PW-10), the mother of the appellant (PW-6) had said that the victim had died by hanging and that they had then buried the dead body without informing the public and that when they asked the mother of the appellant (PW-6) to show the place, she showed the place where the dead body was buried, which was about 60 meter from the house of the appellant and thereafter he along with Barek (PW-10) had gone to inform the police. He had also stated that later on the police and a Magistrate came to the place of occurrence, but the dead body could not be recovered on that day and it was taken out on the next day. He had stated that he was with the police and the Magistrate on both the days. The villagers identified the dead body to be that of the victim. He had also stated that he had met first wife of the appellant (PW-7) in the place of occurrence and the appellant was absconding when the police and the Magistrate had gone to the place of occurrence. In his cross-examination PW-4 had stated that the appellant''s mother (PW-6) had been summoned to the school as per directive of Abdul Barek (PW-10), member of the Gaon Panchayat. PW-4 had stated that he was the V.D.P. Secretary. Dr. B.C. Roy Medhi (PW-5), had exhibited post-mortem report (Ext.2), inquest report (Ext. 3), forwarding report of police (Ext.4), command certificate (Ext. 5), dead body challan (Ext. 6). He also proved the signatures contained in the aforesaid exhibits. His cross-examination was declined. 14. On a perusal of the evidence of Mst. PW-4 had stated that he was the V.D.P. Secretary. Dr. B.C. Roy Medhi (PW-5), had exhibited post-mortem report (Ext.2), inquest report (Ext. 3), forwarding report of police (Ext.4), command certificate (Ext. 5), dead body challan (Ext. 6). He also proved the signatures contained in the aforesaid exhibits. His cross-examination was declined. 14. On a perusal of the evidence of Mst. Gulbahanur Begum (PW-6), mother of the appellant, nothing material could be extracted by examining her. The said PW-6 had stated that she lived separately from the appellant about 2 (two) miles away and she had also stated that she did not meet the police or the Magistrate and the police did not interrogate her and that the defence declined to cross examine her. In her examination in chief, Mst. Anowara Begum (PW-7), first wife of the appellant had stated that the deceased had died in their house and she had also stated that about 15 days prior to the date of the incident, she was at her mother''s place. She had stated that while in her mother''s house, she got the news that Mamiran was not at home. She did not know about her death and she did not come back to the husband''s house even after receiving the news. She had stated that she came from her mother''s house to her husband''s house one month after the incident and on her arrival, she did not meet her husband and did not know about his whereabouts and on her return from parental house, she did not hear anything about Mamiran (victim). She had further stated that the police did not record her statement. The defence declined to cross examine her. Similarly, nothing incrementing could be elicited by examining Md. Abdul Kader @ Kuddush Ali (PW-8) as he is a hearsay witness as he had deposed to the effect that at the time of incident he was away at work at Guwahati. The defence declined to cross examine him. Gunajit Das (PW-9), was working as an attached Circle Officer at Rangia and had conducted inquest on the dead body of the victim in connection with Tulsibari Out-Post GDE No. 87 dated 07.02.2004. He exhibited the inquest report (Ext.3) and his signature. In his cross-examination he had stated that he did not know down as to who had identified the dead body to be that of Mamiran. He exhibited the inquest report (Ext.3) and his signature. In his cross-examination he had stated that he did not know down as to who had identified the dead body to be that of Mamiran. Abdul Barek was examined as PW - 10. He exhibited his signature in the inquest report as Ext.3(3). In his cross-examination he stated that the Magistrate from Rangia, who asked him to sign Exhibit 3 was not the one who was examined on the same day as PW-9 and a further stated that he did not know how to read English and cannot say if anything had been written on Exhibit 3 when he put his signature on it. 15. The investigating officer of the case, Nabin Ch. Haloi was examined as PW - 11. On 07.04.2004, he was the In- charge of Tulsibari Outpost under Rangia P.S. and on that day, the O/C of Rangia PS gave him the records of the case for investigation. He had stated that S.I. Babul Bora had done the preliminary investigation in the case. He had stated in his examination in chief that on taking up investigation, he went to the place of occurrence and on his way he saw a man running away near the house of the appellant and apprehended him and took the man to his house, but did not find anyone at house, whom he identified as the appellant and after interrogating him he was sent to court. He collected the post-mortem report. He also stated that he could not apprehend the other co-accused Javed Ali. He had stated that he had recorded the statement of witness Anowara Begum (PW-7), drew a sketch map of the place of occurrence and handed over the case diary to the officer in charge on being transferred. In his cross-examination, he had stated that when he visited the place of occurrence, witnesses showed him the actual place of occurrence, whereupon he had to draw the second sketch map on 08.05.2004. He admitted that he sketch map does not indicate the place from where decomposed dead body was recovered. He further stated that he went to the place of occurrence on 07.04.2004 and the incident had taken place on 07.02.2004. He further stated that as the preliminary investigation had been faulty, he had to draw the sketch map and examined the witnesses once again. He further stated that he went to the place of occurrence on 07.04.2004 and the incident had taken place on 07.02.2004. He further stated that as the preliminary investigation had been faulty, he had to draw the sketch map and examined the witnesses once again. The prosecution had examined Babul Chandra Bora as PW-12 he was working as the In- charge of Tulsibari Outpost on 07.02.2004, when he made the GDE No. 87/2007. In his examination in chief, he had stated that the informant had gone to the house of the appellant where he had come to know from the mother and first wife of the appellant that actually Md. Abdur Rahman (neither examined as PW, nor chargesheeted) had, in league with the appellant had kept the dead body buried on the bank of Baralia River and that the mother of the appellant (PW-6) had shown the police and the Magistrate the place where the dead body had been buried, which was later dug out from near Kasarghat on Baralia river. He also stated that the police held inquest on the dead body before sending it away for post-mortem examination. He had further stated that on taking up investigation, he went to the place of occurrence and Namal Chandra Gogoi, O/C of Rangia Police Station and Executive Magistrate Gunajit Das were with him. In his cross-examination he had stated that there was no index numbers of anything in his sketch map. He further stated that in his GDE, it was mentioned that the dead body had already been recovered and that the inquest was made after the recovery of the dead body. He had also stated that witness Kurban Ali (PW-1) did not tell him that the police had dug out the dead body of victim on being shown by Anowara, the first wife of the appellant (PW-7). He further stated that he was present when the dead body was recovered, which was in a decomposed state he denied there is a dead body was in a decomposed state, by looking at the face it could not be determined whose dead body it was. He also stated that the mother (PW-6) and the first wife of the appellant (PW-7) had identified the dead body. He denied the suggestion that he did not properly investigate the case. He also stated that the mother (PW-6) and the first wife of the appellant (PW-7) had identified the dead body. He denied the suggestion that he did not properly investigate the case. The prosecution also examined Intaz Ali as PW-13 who was working as the In- Charge of Tulsibari Out-Post on 26.04.2005, when he received the records. Though he found that the co-accused Javed Ali was yet to be arrested, he could not be arrested as he was absconding, and after completing the investigation, is submitted chargesheet (Ext.8) against the appellant and Javed Ali under section 302/201 IPC. In his crossexamination, the PW-13 had admitted that there are overwriting in the date in Exhibit 3 and Exhibit 5 and that in the post-mortem report "GDE No. 67 dated 06.02.2004" is written. In his examination- in- chief, PW-12, the previous I/O had read out the extract of GDE No. 87/2004 dated 07.02.2004, inter-alia, to the effect that PW-1 had stated that the appellant had informed him that the victim had gone missing and the mother of the appellant (PW-6) had shown the dead body. He had further stated that he prepared the sketch-map of the place of occurrence and that as shown by PW-6 and PW-7, the dead body was recovered. In his cross examination, he had stated that PW-1 did not tell him that the police had dug out the dead body of the victim on being shown by PW-7. PW-13 had submitted that he received the records and on completing the investigation, he had submitted the charge-sheet (Ext.8) and he also exhibited his signature thereon. He further stated that in the GDE, the date was overwritten and that in the post-mortem report "GDE No. 67 dated 06.02.2004" was written. 16. Thus, from the discussion above, we find that the nature of evidence led by the prosecution does not even remotely indicate that any of the PWs had made any statement to implicate the appellant of murdering the victim or for causing disappearance of the dead body of the victim. None of the PWs had stated in their evidence that they had spoken to the appellant and/or that the appellant had given them any false information, leading to inference that he had caused disappearance of the dead body of the victim to conceal his crime. None of the PWs had stated in their evidence that they had spoken to the appellant and/or that the appellant had given them any false information, leading to inference that he had caused disappearance of the dead body of the victim to conceal his crime. The prosecution has not led any evidence on record to suggest even remotely that the appellant and the victim were last seen together on the date of the incident. 17. It is seen that there are three I/O''s in the case, PW-12 (first), PW-11 (second), PW-13 (third). PW-12 was the I/O when the dead body was recovered. However, as per the evidence by PW-11, the first investigation was faulty, as such, he discarded the previously recorded statement of witnesses as well as the sketch map and he proceeded to record fresh statement of witnesses and on the place of occurrence being shown, he drew a fresh sketch map (Ext.7). The contents of the said Ext.7 is found not corresponding to any evidence on record. If the said Ext.7 is to be believed, then the place of occurrence was at place marked ''A'', which is inside a room marked ''B'', depicted to be where the victim was sleeping, however, none of the witnesses had identified any "place of occurrence" in their evidence. Thus, the sketch-map (Ext.7) does not prove the place where the victim was killed or from where the dead body was recovered. 18. Thus, for proving circumstantial evidence against the appellant, the prosecution had introduced four distinct sets of evidence. As per the first set of evidence, PW1 and PW-2 had stated that the villagers had questioned PW-10 and that the dead body was dug-out on being shown by PW-7 and PW-6 was present. PW-4 had stated that PW-6 was called to school and on being asked by PW-10, she said that the victim had died by hanging and that they buried the dead body and that PW-6 had shown the place where the dead body of the victim was buried. The third set of evidence is by PW-10, who did not support the evidence of PW-1 and PW-2 that he or the villagers had questioned PW-6 in school and that he was not present when inquest was made. Moreover, the thumb impression of PW-6 and PW-7 on inquest report (Ext.3) remained not proved by the prosecution. The third set of evidence is by PW-10, who did not support the evidence of PW-1 and PW-2 that he or the villagers had questioned PW-6 in school and that he was not present when inquest was made. Moreover, the thumb impression of PW-6 and PW-7 on inquest report (Ext.3) remained not proved by the prosecution. Moreover, PW-6 and PW-7 did not give evidence to the effect that they had shown the place from where the dead body was recovered and they had also not stated that the victim died of hanging. None of the witnesses had identified the place where the victim was found hanging. Furthermore, PW-7 denied her presence at her matrimonial house from 15 days before the incident and that she returned there after a month of the incident. The PW-6 had stated that she was living separately two miles away and she saw nothing in the appellant''s house and she did not meet the police or the Magistrate and that the police did not interrogate her. Thus, we find that the first two sets of evidence is inconsistent with the third set of evidence. Therefore, if we proceed to either accept both, or reject both, then under both circumstances, the prosecution would miserably fail to successfully make out a chain of event and link such chain so as to cull out circumstantial evidence leading to only conclusion that the crime was done by the appellant and no one else. The fourth set of evidence is the inquest report (Ext.3), which was prepared on 08.05.2004, has introduced a place of occurrence, when there is no evidence by any PWs disclosing about the place of occurrence. 19. No doubt that in this case, the victim had died within one year of her marriage with the appellant, but we find no evidence on record to connect the appellant with the cause of death of Mamiran. We are of the considered opinion that the circumstantial evidence on which the appellant had been convicted is not proved. The learned trial Court has admitted that there is no direct evidence against the appellant in this case. The circumstances from which the conclusion of guilt has been drawn are not found fully established. We fail to find that the circumstances is conclusive in nature so as to exclude every hypothesis but the one proposed to be proved. The learned trial Court has admitted that there is no direct evidence against the appellant in this case. The circumstances from which the conclusion of guilt has been drawn are not found fully established. We fail to find that the circumstances is conclusive in nature so as to exclude every hypothesis but the one proposed to be proved. In the case of Hanumant Govind Nargundkar Vs. State of M.P., (1952) AIR SC 343 : (1952) Supreme(SC) 51 , the Full Bench of the Supreme Court of India had held that "... 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." Therefore, in spite of forceful argument addressed to us by the learned A.P.P., we have not been able to discover any such evidence. Moreover, we have meticulously read over the 6 (six) pages of examination of appellantaccused under Section 313 CrPC, but we have failed to find that the appellant was confronted with any evidence or circumstances showing that he was present at his house in or around the proximity of the time of death of the victim. It is seen that neither was it proved, nor the appellant was confronted with any circumstances to suggest that he had concealed the dead body of the victim and fled away. Hence, we are of the considered opinion that circumstances, which were not put to the appellant while examining him under section 313 CrPC, cannot be used against him and have to be excluded from consideration. 20. For the reasons and discussions above, we are constrained to hold that the finding of circumstantial evidence against the appellant, as recorded by the learned trial Court is not found sustainable. Therefore, the conviction of the appellant for commission of offence under section 302/201 of the Indian Penal Code is also not sustainable on facts and in law. Accordingly, we hold that the appellant Md. Rahman Ali is entitled to be acquitted of all the charges. Therefore, we direct that the appellant be released forthwith, if not required in any other case. 21. Criminal Appeal No. 181/2016 stands allowed. Return back the LCR.