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2022 DIGILAW 1313 (GAU)

Vanlalhlua v. State of Mizoram

2022-11-30

MARLI VANKUNG, NELSON SAILO

body2022
JUDGMENT : Nelson Sailo, J. Heard Mr. Johny L. Tochhawng, learned counsel for the appellant and Mr. C. Zoramchhana, learned Public Prosecutor for the State. 2. This is an appeal directed against the Judgment and Order dated 23.11.2020 passed by the Addl. District & Sessions Judge in SC No. 98/2014 arising out of Criminal Trial No. 1267/2014 convicting the appellant under Section 302 of the Indian Penal Code (IPC). The appeal is also directed against the Order of Sentence dated 25.11.2020 by which the appellant on being convicted under Section 302 IPC was sentenced to undergo life imprisonment and to pay fine of Rs. 50,000/-and in default, to undergo a further imprisonment of six months. 3. The case of the prosecution in brief is that the dead body of one Smt. Vanlalsiami (hereinafter referred to as the deceased) was found amongst the shrubs in Bawngkawn Brigade area on 04.07.2014 at around 9.00 am with her throat slit apparently by a sharp weapon. As a result, one Mr. Rosanga, who is the elder brother of the deceased, lodged an FIR before the Bawngkawn Police Station on 04.07.2014 and the same was registered as Bawngkawn PS case No. 134/2014 dated 04.07.2014 under Section 302 IPC. Following the registration of the case, the police conducted investigation and subsequently, filed the charge sheet against the appellant and his brother Sh. Vanlalchhuanga on 02.10.2014. Thereafter, charge under Section 302 IPC was filed against the two accused persons and to which, they pleaded to be not guilty and claimed for trial. As a result, trial against the two accused persons commenced. 4. During trial, the prosecution examined as many as 13 prosecution witnesses and the defence examined three defence witnesses. Upon completion of the examination of prosecution witnesses, the appellant and the co-accused were examined under Section 313 of the Code of Criminal Procedure, 1973 (CrPC). The reply given by the accused persons to the questions put to them were basically that of denial. Thereafter, upon hearing the rival parties, the learned Trial Court vide the impugned Judgment and Order dated 23.11.2020 and the Order of Sentence dated 25.11.2020 convicted and sentenced the appellant as already stated in the preceding paragraphs. As for the co-accused Sh. Vanlalchhuanga, he was acquitted from the charge by the Trial Court. 5. Mr. Thereafter, upon hearing the rival parties, the learned Trial Court vide the impugned Judgment and Order dated 23.11.2020 and the Order of Sentence dated 25.11.2020 convicted and sentenced the appellant as already stated in the preceding paragraphs. As for the co-accused Sh. Vanlalchhuanga, he was acquitted from the charge by the Trial Court. 5. Mr. Johny L. Tochhawng, learned counsel submits that there was no witness to the alleged crime and that the appellant was convicted and sentenced under Section 302 IPC solely on the basis of circumstantial evidence. He submits that three articles were seized from the appellant viz; track pants, sneaker and his blood samples, which were marked as Exhibit-A, Exhibit-B and Exhibit-C respectively. The said articles were sent for forensic examination and upon such examination, it was found that Exhibit-A and Exhibit-B were found to have blood stains of human origin but the stains were insufficient for blood grouping. In so far as Exhibit-C was concerned, it was found to be of blood Group-B. 6. The learned counsel further submits that the articles seized from the co-accused were blood swab collected from his right foot, slipper, boxer shorts with blood stain, water suspected to contain blood, his blood sample and the blood sample of the deceased. The articles were all marked as Exhibits-A, B, C, D, E and F respectively. The exhibits were then sent for forensic examination and the result of the examination was that the stains from Exhibit-A and Exhibit-B were blood of human origin belonging to Group-A. No blood was detected from Exhibit-C but traces of blood was detected from Exhibit-D (water), but the same was too diluted for blood grouping. As for Exhibit-E and Exhibit-F, they both belonged to blood Group-A. 7. The learned counsel submits that the blood Group of the appellant is Group ‘B’ while the blood Group of the co-accused is blood Group ‘A’ and similar to the blood group of the deceased. Since the appellant and the co-accused lived in the same house, the blood stains found in the track pants and sneakers of the appellant could very well be the blood stains originating from the co-accused. The learned counsel submits that in order to ascertain as to whether the blood stains found to be belonging to Group-A came from the deceased, the same was sent for DNA profiling at Narsingarh in the State of Manipur. The learned counsel submits that in order to ascertain as to whether the blood stains found to be belonging to Group-A came from the deceased, the same was sent for DNA profiling at Narsingarh in the State of Manipur. But no results were received on the DNA test. Therefore, in the absence of a report with a finding that the blood stains found in the articles seized from the appellant belonged to the deceased, the appellant could not have been convicted on the charge framed by the Trial Court. 8. The learned counsel further submits that the learned Trial Court took a view that since there was a quarrel between the deceased and the appellant just before the deceased left the house on 03.07.2014, there was mens rea to support to the circumstantial evidence appearing against the appellant and therefore, warranting his conviction. He submits that the mere fact of there being a quarrel between the appellant and the deceased in absence of any evidence duly proved, the same cannot be the basis of the conviction and the learned Trial Court has therefore clearly committed an error in passing the impugned judgment & order. He submits that in order to convict a person on a basis of circumstantial evidence, the prosecution must establish the entire change of circumstances connecting the accused to the crime and leading to the only conclusion that it was the accused person and nobody else who had committed the crime. Only then, will a conviction on the basis of circumstantial evidence be sustainable. 9. The learned counsel also submits that the learned Trial Court heavily relied upon the so-called confessional statement/judicial statement of one Sh. Zodinpuia, who was also put in the Police Lock-up alongwith the appellant. He submits that although the Judicial Magistrate, who recorded the statements of Sh. Zodinpuia was examined during trial as PW12, but in his cross examination, PW12 stated that he did not send the statements recorded by him to the Magistrate competent to try the case and therefore, the same being in violation of Section 164(6) of the CrPC, no reliance can be placed on such an evidence. Moreover, Sh. Zodinpuia was not examined as a witness during the trial and therefore, no reliance can also be put on his recorded statements without the appellant being afforded a chance to cross examine him. Moreover, Sh. Zodinpuia was not examined as a witness during the trial and therefore, no reliance can also be put on his recorded statements without the appellant being afforded a chance to cross examine him. Moreover, the appellant in his examination under Section 313 CrPC denied of having made any confession to Sh. Zodinpuia. Under the circumstance, the Court can presume the existence of certain facts, such evidence which could, if produced, be unfavorable to the person who has withheld it in terms of Section 114(g) of the Indian Evidence Act, 1872. 10. The learned counsel further submits that the learned Trial Court was of the view that since the track pants of the appellant with blood stains was soaked in a bucket of water in the bath room of the appellant, the appellant was therefore trying to annihilate, any clue to his crime by cleaning his clothes immediately after the incident and thus came to the conclusion that the appellant was the perpetrator of the crime. He submits that presuming but not admitting that the blood stains in the jumper match the blood group of the deceased but there is no conclusive proof that it belonged to the deceased since no report was received back on DNA profiling requisitioned. Therefore, the learned Trial Court could not have convicted the appellant on the basis of mere presumption. 11. The learned counsel also submits that the conclusion reached by the learned Trial Court that the appellant was in an angry mood coupled with the fact that he was in a state of intoxication and under the influence of illicit drug and liquor and therefore, there was every possibility that he was the one who murdered the deceased is only a mere presumption and not supported by any proof. Therefore, the impugned Judgment and Order convicting the appellant cannot be sustained. The learned counsel in support of his submission has relied upon the following authorities:- i) State of Gujarat Vs. Kishanbhai & Others, (2014) 5 SCC 108 . ii) Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, (2019) 12 SCC 460 . iii) Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 . iv) Paramjeet Singh Alias Pamma Vs. State of Uttarakhand, (2010) 10 SCC 439 . v) Anwar Ali & Another Vs. State of Himachal Pradesh, (2020) 10 SCC 166 . 12. Mr. ii) Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, (2019) 12 SCC 460 . iii) Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 . iv) Paramjeet Singh Alias Pamma Vs. State of Uttarakhand, (2010) 10 SCC 439 . v) Anwar Ali & Another Vs. State of Himachal Pradesh, (2020) 10 SCC 166 . 12. Mr. C. Zoramchhana, learned Public Prosecutor, appearing for the State on the other hand submits that after the dead body of the deceased was discovered in the morning of 04.07.2014, it was the brother of the deceased Sh. Rosanga, who came to identify the body. As for the appellant, who is the husband of the deceased and the co-accused person, who is his younger brother, they were nowhere to be seen. Suspecting them to be the perpetrator of the crime, the appellant in particular was arrested only the next day of discovery of the body i.e. in the afternoon of 05.07.2014. Being the husband of the deceased, he ought to have rushed to the spot or even to the Police Station to identify the body. The same having not been done, adverse presumption would naturally have to be drawn against the appellant. Therefore, the observations and findings of the learned Trial Court is only justified. 13. The learned Public Prosecutor further submits that three articles were seized from the appellant and amongst others, the clothes, track pants of the appellant which was dipped in water in a bucket was found to contain traces of blood of human origin. Likewise, the blood stains found in the jumper jacket of the appellant matched the blood group of the deceased. As per the FSL report dated 11.07.2014 (Exhibit P-8), it is clear that it was the appellant who had committed the crime. He further submits that there is nothing on record to show that the appellant and his brother and the co-accused shared their belongings including the bathroom. Therefore, merely, because the blood group of the deceased and the co-accused matched, no presumption can be drawn that the blood stains found in the clothes of the appellant belonged to the co-accused and not the deceased. Therefore, merely, because the blood group of the deceased and the co-accused matched, no presumption can be drawn that the blood stains found in the clothes of the appellant belonged to the co-accused and not the deceased. Referring to the examination of the appellant under Section 313 CrPC, more particularly, the answer to question No. 7, the learned Public Prosecutor submits that the appellant while admitting that there was blood stain in his jumper jacket did not offer any explanation as to whose blood it was. In fact, it was a golden chance for him to explain as to how his clothes got stained with blood. Having failed to give any explanation in this regard, it is only clear that the blood stains came from the deceased. The learned Public Prosecutor also submits that likewise, there was no explanation from him against the question No. 34. 14. The learned Public Prosecutor submits that as regard the habit of the co-accused in taking intoxication, the same was not a presumption of the learned Trial Court but gathered from the statements given by the case I.O in his cross examination during trial. According to the case I.O, the appellant himself told him that he was in the habit of taking intravenous drug injection. Therefore, the appellant in collusion with his brother, the co-accused in all probability had committed the murder. He further submits that the evidence of PW6, i.e., the step daughter of the appellant also goes to show that the appellant was heavily intoxicated on the night of 03.07.2015 and coupled with the fact that the appellant failed to go and identify the body of the deceased, his wife showing his guilt. As such, he submits that the prosecution has been able to prove the case against the appellant and therefore, no interference on the impugned Judgment and Order and the Order of Sentence is called for. He also submits that in respect of there being no DNA test report, the same cannot be the ground for vitiating the conviction of the appellant, inasmuch as scientific evidence alone cannot be considered to be a sure test. It is only a test which is being promoted in recent times over and above other evidence. In this connection, the learned Public Prosecutor relies upon the case of Dharam Deo Yadav Vs. State of Uttar Pradesh, (2014) 5 SCC 509 . 15. It is only a test which is being promoted in recent times over and above other evidence. In this connection, the learned Public Prosecutor relies upon the case of Dharam Deo Yadav Vs. State of Uttar Pradesh, (2014) 5 SCC 509 . 15. We have heard the learned counsel for the rival parties and we have perused the materials available on record including the Lower Court Record. As may be seen, the appellant was convicted under Section 302 IPC and sentenced to life imprisonment and to pay a fine of Rs. 50,000/-with a default clause. The conviction and sentence has been put to challenge by him through the instant appeal and therefore, this Court is called upon to examine as to whether the conviction and sentence of the appellant can be sustained from the evidence led by the prosecution during the trial. 16. PW1, Sh. Rosanga in his examination-in-chief deposed that on 04.07.2014, while he was in the house of his friend, his sister-in-law informed him over phone that one dead body of a woman was found on the way leading to Bawngkawn Brigade Field and the body looked like that of his sister. He was therefore, asked to come to a Police Station where the body was evacuated by the Police. He then rushed to the Police Station and on reaching, he confirmed that it was his sister. Post Mortem of the body was thereafter conducted and he requested the Police personnel to hand over the body to him as his sister and her husband were not in good terms at the relevant time. According to him, his sister had called him up earlier and told him that she no longer wanted stay with her husband and so asked him fetch her. PW1, however, told her that misunderstandings often happen between husband and wife in every family and therefore, he asked her to remain strong and be patient. He also stated that the appellant on being a suspect he was already in Police custody at around 1.00 pm. PW1 in his cross examination reiterated what he stated in his examination-in-chief. 17. PW2, H. Lalthianghlima in his examination-in-chief stated that he was the Chairman of Brigade Welfare, Bawngkawn. On 04.07.2014, he went to the place of occurrence and found many people already gathered there, including the police. PW1 in his cross examination reiterated what he stated in his examination-in-chief. 17. PW2, H. Lalthianghlima in his examination-in-chief stated that he was the Chairman of Brigade Welfare, Bawngkawn. On 04.07.2014, he went to the place of occurrence and found many people already gathered there, including the police. The police seized one red slipper, underpants and one empty sack of Arham rice stained with blood and he was asked to put his signature on the seizure memo. On being cross examined, he reiterated what he stated in his examination-in-chief. 18. PW3, K. Lalrothanga, in his examination-in-chief stated that on the date of the incident while he was coming back from Bawngkawn towards Bawngkawn Brigade Field Veng, he saw Zampuii in a terrified state. When he asked her why she looked so terrified, she pointed toward the road side between the bushes and said that she saw one body lying motionless and that she was afraid to verify whether the said person was alive or dead. Smt. Zampuii had already informed Sh. Lalthianghlima before he reached the place about the discovery and no sooner the police arrived, it was confirmed that it was the body of a woman. One slipper lying under the bushes and one Arham Rice bag was seized by the Police and he was asked to put her signature on the seizure memo. In his cross examination, he reiterated what he stated in his examination-in-chief. 19. PW4, K. Lalmuankima in his examination-in-chief stated that he knew the accused person present in the Court and that he was the Local Council Member of Bawngkawn Local Council. When he was informed about the incident, he went to the place of occurrence and by the time he reached the place, the body was already evacuated to Bawngkawn Police Station. The body was later brought to the house of the appellant’s mother which was in the same building where the appellant resided. The Police came to the house of the appellant and in their presence, they seized some materials from the house of the appellant, namely, one jumper stained with blood and he put his signature in the seizure memo. In his cross examination, he stated that he did not know as to whether the blood stain in the jumper was human blood or animal blood. 20. In his cross examination, he stated that he did not know as to whether the blood stain in the jumper was human blood or animal blood. 20. PW5 Smt. Lalhmangaihsangi in her examination-in-chief stated that the deceased was known to her and was her good friend. She often came to her house and shared her problems with her. Sometimes when she quarrelled with her husband, she used to stay back in her house for two or three days. As a friend, she advised her that such kind of problem was common in every household and asked her to go back home. On the day of the incident, while she was at home, she heard a rumour that a dead body of a woman was found on the way to Brigade Field. She did not go to the place of occurrence as she had to go for work in the garden. While she was in a garden at around 12.00 -12.30 pm, she was informed over phone that the body found was her good friend, Vanlalsiami, the deceased. She was asked by the Police to come to the Police Station and when she reached, the Police recorded her statements and sent the body found for post-mortem. She stated that although, the appellant and the deceased lived together in a separate floor, the dead body of the deceased was kept in the house of the mother of the accused, which was in the same building as it was more convenient. She then heard that the appellant and the co-accused were arrested by the Police as suspects. In her cross examination, she stated that it was the fact that she never saw the deceased having sustained serious injuries when she came to her house after an argument with her husband. She also stated that whenever the deceased came to her house after quarrelling with her husband, she used to return back the next day. 21. PW6 Smt. Linda Zothanpuii in her examination-in-chief stated that the deceased is her mother and the appellant is her stepfather and they lived in the same house. She could not remember the exact date but one morning at around 9.00 am, she came to know that the dead body of a woman was found on the way to Brigade Field, Bawngkawn. She could not remember the exact date but one morning at around 9.00 am, she came to know that the dead body of a woman was found on the way to Brigade Field, Bawngkawn. Her mother did not come home the other night, but, she could not imagine that it could be her mother. However, as someone told her that the body found looked like her mother she therefore, decided to verify the dead body which was already taken to Bawngkawn Police Station by that time. On reaching, she found that it was indeed her mother and the Police recorded her statements. She stated that on the previous night of the incident before her mother left the house, she had a quarrel with her stepfather and that her stepfather came home heavily drunk and from his appearance, it seems that he had even consumed drugs. Her mother left the house at night in anger. Below their house, the mother of her step-father resided and she told her not to worry and that her mother would come back. PW6 also stated that she joined her mother and her stepfather in the month of June, 2014 and that her mother was killed in the month of July. She also stated that she did not know much about their relationship but as far as she could recollect during her stay in the house, the first time her mother and her stepfather had a big quarrel was on the night of 03.07.2014. In her cross examination, PW6 stated that although she tried to call her mother over phone on the night of the incident, she could not do so as the phone was switched off. 22. PW7, Sh. Vanlalfaka in his examination-in-chief stated that he and the deceased got married in the year 1989 and they have three children out of their marriage but they get divorced in the year 1999. Since then, the children were all living with him. He said he was recruited in the 3rd Battalion MAP in the year 1991 and was posted to various places. He retired in the year 2012 in the rank of Havilder. Having been posted to Bawngkawn Police Out Post while in service, he often visited the Police Station after his retirement. Since then, the children were all living with him. He said he was recruited in the 3rd Battalion MAP in the year 1991 and was posted to various places. He retired in the year 2012 in the rank of Havilder. Having been posted to Bawngkawn Police Out Post while in service, he often visited the Police Station after his retirement. Sometime in the month of July when he visited the Police Station, his friends in the Police Station happened to discuss about the incident which happens to his ex-wife. He then told his friend that his children often used to visit their mother after they divorced as they missed her and that his ex-wife also told him that her husband, the appellant used to scold her as he got jealous of her children. He therefore stated that the appellant might have been angry with the deceased and therefore, killed her. In his cross examination, PW7 reiterated what he stated in his examination-in-chief besides saying that he does not have any ill feeling towards the appellant for being the second husband of his ex-wife. 23. PW8, Vanzampuii in her examination-in-chief stated that on 04.07.2014 between 8.30 am to 9.00 am in the morning, she went out near the Brigade Field to check out their water pipe where she saw one slipper lying near the bush. As she went closer, she saw a body lying motionless wearing red clothes. As she was afraid to verify, she informed Lalthianghlima over phone. Since he did not reach immediately, she went toward the main road where she met K. Lalrothanga (PW3). She then told him what she had seen and then she went home. She was later informed by PW3 that the body lying motionless was a body of a woman and she was already dead. In her cross examination, she stated that in her statement before the Police, she had said that when she saw the body of a woman lying on the ground, she did not pay much attention because the place was often used by drug addicts and they used to sleep there after being intoxicated. 24. PW9, Dr. Lalringmaia in his examination-in-chief stated that he had conducted the post-mortem examination on the dead body of the deceased and that his findings were recorded in the report which he exhibited as Exhibit-P4 and P4(a). 24. PW9, Dr. Lalringmaia in his examination-in-chief stated that he had conducted the post-mortem examination on the dead body of the deceased and that his findings were recorded in the report which he exhibited as Exhibit-P4 and P4(a). In his cross examination, he stated that he did not find any symptom of poisoning on the deceased and that as per his report; the cause of death was due to haemorrhagic shock as a result of cut throat injury on the neck. 25. PW10, Sh. Rosangzuala in his examination-in-chief stated that on receiving a telephonic requisition from Bawngkawn Police Station on 04.07.2014, he alongwith Lalchhanzova, Asst. Director (Serology), FSL, Aizawl visited the place of occurrence. On reaching the spot, they found a large amount of blood covered with freshly pulled plants and a pair of pink slippers. A female dead body was found lying on her back in such a way that the body was stopped by a tree from rolling down the slope. An empty bag of rice stained with blood was also found near the dead body. The dead body was carefully examined and the observations were recorded in the Crime Scene Visit Report dated 10.07.2014. On the same day, the residence of the deceased and its surroundings was carefully examined and a pair of trousers (track pant) soaked in a bucket of water was found inside the bathroom. They collected the trousers alongwith the water. Suspected blood stain was also found on the right foot and inside the right slipper of the co-accused. The suspected stains were swabbed and collected alongwith the slipper. Photographs of the scene of crime and evidences were taken and kept in the laboratory for further reference and the Crime Scene Visit Report/Reconstruction was submitted and were exhibited as Exhibit P-5 and his signature as Exhibit P-5(a). 26. PW11, Lalchhanzova, Asst. Director, FSL, Aizawl made similar narration like PW10 in his examination-in-chief. PW12, Mr. Thomas Lalrammawia, Judicial Magistrate 1st Class, Champhai in his examination-in-chief deposed that he had recorded the statement of Zodinpuia, who was kept in the Police Lock-Up alongwith the appellant. He exhibited the statement of Zodinpuia, his signature and the signature of Zodinpuia as Exhibit P-9, P-9(a) and P-9(b) respectively. PW12, Mr. Thomas Lalrammawia, Judicial Magistrate 1st Class, Champhai in his examination-in-chief deposed that he had recorded the statement of Zodinpuia, who was kept in the Police Lock-Up alongwith the appellant. He exhibited the statement of Zodinpuia, his signature and the signature of Zodinpuia as Exhibit P-9, P-9(a) and P-9(b) respectively. In his cross examination, he stated that he did not send the statements recorded by him to the Magistrate competent to try their case since the final report of the police had not been submitted to the Court. 27. PW13, Inspector, H. Lalchawimawia, who was the case I.O, in his examination-in-chief stated that on 04.07.2015 at around 8.50 am in the morning, he received a telephonic information that the body of an unidentified woman was found at Bawngkawn Brigade area. He rushed to the spot and conducted inquest on the detained body. He also drew a sketch map of the crime scene. While conducting inquest, the officer from FSL had arrived and they collected blood samples. Thereafter, the body and all the materials were handed over to him and he took them to Bawngkawn Police Station. At the Police Station, they called the appellant to the police station and he identified the body to be that of his wife. He then made a requisition and forwarded the dead body to Aizawl Civil Hospital for post-mortem examination and he went to the house of the appellant and seized the apparel he was wearing the previous night i.e. jumper jacket, track pants and sneakers. The track pants had been soaked in a bucket full of water. But they took the track pants out and also the water from the bucket in a bottle. They detained the appellant and the complainant came to the Police Station at about 10.00 pm and submitted the FIR. The report of the examination of blood sample of the deceased during the course of investigation revealed that her blood Group was ‘A+ve’. Similar was the blood Group of the co-accused person but the blood group of the appellant was ‘B+ve’. The samples from the sneakers, track pants soaked in water and samples of the water could not be properly verified but the samples taken from the jumper jacket of the appellant showed that it was ‘A+ve’ blood and it matched the blood group of the deceased. The samples from the sneakers, track pants soaked in water and samples of the water could not be properly verified but the samples taken from the jumper jacket of the appellant showed that it was ‘A+ve’ blood and it matched the blood group of the deceased. The blood group of the blood from the feet of the co-accused was also ‘A+ve’. Since the appellant had ‘B+ve’ blood, the blood on his jumper jacket clearly was not his blood. In his cross examination, PW13 besides reiterating what he stated in his examination-in-chief stated that the co-accused at the time of his arrest told him that he was in the habit of taking intravenous drug injection. There was some blood on his feet but it was not so much. He also stated that since the blood from the track pants of the appellant and from the water in which the track pants were soaked was too diluted, blood grouping could not be done. The result or report of the DNA profiling requisition from Tripura was not been received back till the time of submitting the charge sheet. 28. As already stated hereinabove, the question put to the appellant in his examination under Section 313 CrPC was basically that of denial. He did not offer any explanation as to how the blood appeared on his jumper jacket and whose blood the same was. The appellant in his defence examined three defence witnesses. 29. DW1, Vanlalmuanpuia in his examination-in-chief stated that the appellant was his father and the co-accused was his uncle while the deceased was his mother. On the night of the incident, his parents were upstairs while he was watching TV on the floor below with his uncle the co-accused. While he was watching TV, he fell sleep and his uncle put him to bed at about 10.00 pm. The next day, he woke up at about 6.30 am while his uncle the co-accused was sleeping on the bed. He went to play football and thereafter went to school. While at school, he learnt about the incident from his teacher. 30. DW2, Tlangthankhumi, in her examination-in-chief deposed that both the accused persons were her sons and she was residing with the co-accused in the lower floor of the building where the appellant too reside. The appellant had two children. He went to play football and thereafter went to school. While at school, he learnt about the incident from his teacher. 30. DW2, Tlangthankhumi, in her examination-in-chief deposed that both the accused persons were her sons and she was residing with the co-accused in the lower floor of the building where the appellant too reside. The appellant had two children. On the night of the alleged incident, both the children came downstairs to watch TV. The other two children of the deceased likewise also came downstairs. 31. DW1 then informed her that his parent were quarrelling and requested her to go upstairs to stop them. However, she did not go upstairs as she found it to be pointless since the couple were habituated to drinks. Later, she went up and came to learn that the reason for the couple quarreling was because the deceased did not bring liquor home. The deceased had already left the house when she had gone up to the floor and the appellant had also gone out to drink liquor. She did not know when he had returned but when she went upstairs at about 10.30 pm, the appellant had come home by then. The next morning at about 10.00 am, she went upstairs and the appellant was at home while the co-accused was sleeping downstairs with DW1. The appellant was interrogated and tortured by the Police but he did not confess anything. So when he went to deliver food to the appellant, she saw that he had sustained multiple injuries and he stated that in the event he did not survive the torture, she should tell his children that he did not assault his wife, the deceased. Therefore, she did not believe the appellant to be capable of murdering his wife. In her cross examination, DW2 reiterated what she stated in her examination-in-chief. 32. DW3, who is the appellant, in his examination-in-chief stated that the deceased was his wife and that she was earlier married to another man and had three children. Thereafter, from his marriage with her, they had two children. The three children from the earlier marriage were looked after by them and one was pursuing studies at Chennai. The other two and the two children from his marriage with his wife were residing with them. On 03.07.2014, the deceased had returned home late and they entered into an argument. Thereafter, from his marriage with her, they had two children. The three children from the earlier marriage were looked after by them and one was pursuing studies at Chennai. The other two and the two children from his marriage with his wife were residing with them. On 03.07.2014, the deceased had returned home late and they entered into an argument. The deceased left the house in anger and he did not see her thereafter on the night of 03.07.2014. On 04.07.2014, his neighbour Thanga informed him that there was a dead body at Bawngkawn Police Station and requested him to inquire whether it was the body of his wife. The neighbor accompanied him to the Police Station where he identified the body as his wife. DW3 further stated that after watching news on a TV on 03.07.2014, he had gone to the neighboring house to search for liquor and since there was no liquor, he returned home at about 11.00 pm and went to sleep. He did not go out of the house thereafter. The police recorded his statement since he said that he had entered into an argument with the deceased. In his cross examination DW3 stated that he had returned home at about 10 pm but went out again and returned home at about 11.00 pm and thereafter, he went to bed and did not go out again. 33. From an overall appreciation of the evidence led during the trial by both the prosecution as well as the defence, it can be seen that there was no eye witness to the commission of crime which led to the death of the deceased. From the evidence of DW1, DW2 and DW3, it can be seen that there was some misunderstanding and quarrelling between the appellant and the deceased on the night of 03.07.2014, whereafter, the deceased left the house and did not return back home. There is also an evidence to the fact that the appellant and the deceased used to often have a quarrel as can be seen from the evidence of PW1, PW5 and PW7. PW6 who is the daughter of the deceased from her earlier marriage had also stated that on the night of the alleged incident, she had witness a big quarrel between her mother and her stepfather. PW6 who is the daughter of the deceased from her earlier marriage had also stated that on the night of the alleged incident, she had witness a big quarrel between her mother and her stepfather. However, the fact of the deceased and the appellant having entered into the quarrel on 03.07.2014 by itself is not sufficient for establishing that it was the appellant, who had committed the offence of murdering his wife. 34. In the course of investigation, the police had seized track pants, sneakers and blood samples of the appellant and sent them for examination in the Forensic Science Laboratory. As per the report received, the blood stains in the track pants and in the sneakers were found to be blood of human origin but the same was not sufficient for blood grouping. As per the blood group of the appellant, it was found to be that of Group B. Further, the jumper jacket of the appellant which was seized by the police and the blood stains found were also examined by the Forensic Science Laboratory and as per the report received, the blood stains were found to be of human origin and belonging to blood group ‘A’. The evidence on record goes to show that blood group of the co-accused as well as of the deceased is Group A. But at the same time, there is no explanation as to how the blood stains in the jumper jacket of the appellant belonging to blood Group A got there. In other words, there is no explanation as to whether the stains of blood came from the co-accused or from the deceased person. This could have been found out through scientific examination by DNA profiling. Although, a requisition for DNA profiling was made to the Forensic Science Laboratory in Narsingarh in the State of Manipur, but no results have been sent back from the said laboratory. In absence of such a report, two views can possibly be drawn or taken. One view is that the blood could be belonging to the deceased person and the other, it could belong to the co-accused person. It may be noticed that the co-accused person is not a stranger and a resident of the same building where the appellant and the deceased resided with their children. One view is that the blood could be belonging to the deceased person and the other, it could belong to the co-accused person. It may be noticed that the co-accused person is not a stranger and a resident of the same building where the appellant and the deceased resided with their children. The law is settled that when two views are possible, one in favour of the accused and the other against the accused, the one favouring the accused should be adopted. 35. It may further be noticed that the nature of injury caused to the deceased which ultimately resulted in her death admittedly was the cut on her throat which appeared to be caused by a sharp object such as a knife or a machete. However, no such weapon was recovered during the investigation. Had the weapon used in the crime been recovered, there would have been chances of connecting or relating the same to the person, who owned it. However, without recovery of such weapon, the same is not possible. 36. The importance of having DNA profiling of the blood sample has been reflected by the Apex Court in the case of State of Gujarat Vs. Kishanbhai & Others (Supra). In the given facts of that case, the blood group of both the accused and the victim were found to be ‘B+ve’, and the Apex Court held that in the absence of any DNA profiling of the blood samples, no inference can be drawn that the blood stains in the clothes of the accused person was that of the victim. 37. In the case of Rajendra Pralhadrao Wasnik Vs. State of Maharashtra (Supra), the Apex Court in the given facts of the case held that for the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-A CrPC. The Apex Court opined that the Court was not going to the extent of suggesting that if there was no DNA profiling, the prosecution case cannot be proved but it was of the view that where DNA profiling has not been done or is held back from the trial Court, an adverse consequence would follow for the prosecution. The Apex Court opined that the Court was not going to the extent of suggesting that if there was no DNA profiling, the prosecution case cannot be proved but it was of the view that where DNA profiling has not been done or is held back from the trial Court, an adverse consequence would follow for the prosecution. The Apex Court also referred to its earlier decision rendered in Selvi & Others Vs. State of Karnataka, (2010) 7 SCC 263 , wherein it was observed that the matching of DNA samples is emerging as vital tool for linking suspect to specific criminal acts. 38. The Apex court on circumstantial evidence in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (Supra) laid down the conditions to be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence. They are:-i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established, ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused i.e. to say, they should not be explainable on any other hypothesis except that the accused is guilty, iii) the circumstances should be of an conclusive nature and tendency, iv) they should exclude every possible hypothesis except the one to be proved, v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. The above principles was also appreciated and adopted by the Apex Court in its subsequent decision rendered in Paramjeet Singh Alias Pamma (Supra) and Anwar Ali & Another (Supra). 39. Applying the above ratio to the present case, it may be seen that the evidence led by the prosecution cannot be said to be that of a conclusive nature and a chain of evidence so complete so as not to leave any reasonable ground to come to the conclusion that it was the appellant and only the appellant who had committed or who could have committed the crime resulting to the death of the deceased. This apart, as already noticed herein above, there is enough room to come up with two views. This apart, as already noticed herein above, there is enough room to come up with two views. The blood stain appearing in the jumper jacket of the appellant could be or could not be the blood of the deceased. In the absence of the result from the DNA profiling, it cannot be presumed that the same belonged to the deceased. Therefore, in such circumstance, the appellant will have to be given the benefit of doubt. Suspicion no matter how strong cannot take the place of proof by leading evidence. The burden of proof is always upon the prosecution and the same never shifts. Likewise, defective or weak defence cannot be used against the defence by the prosecution to prove its case against the accused. The standard of proof is also proof beyond reasonable doubt. 40. Thus, upon due consideration of the matter in its entirety, we are of the considered view that the prosecution has been unable to establish their case and prove that it was the appellant who had committed the crime. Accordingly, we find that the appellant is entitled to be given the benefit of doubt and as such, the impugned judgment and order of conviction and the order of sentence are hereby set aside. The appellant is directed to be set at liberty forthwith unless he is wanted in connection with any other case. 41. The criminal appeal accordingly stands disposed of.