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2023 DIGILAW 1061 (KER)

Xavier @ Panicker Kunjumon v. State Of Kerala

2023-12-20

JOHNSON JOHN, P.B.SURESH KUMAR

body2023
JUDGMENT : Johnson John, J. The appellant, who is the accused in S.C. No. 551 of 2016 on the file of the First Additional Sessions Court, Ernakulam, faced trial for the offence punishable under Section 302 IPC on the allegation that on 07.03.2016, at 3.30 pm., because of previous enmity and while consuming liquor along with the deceased and others in a shed in the possession of the deceased situated near ESI Hospital, Ernakulam North, the accused quarelled with the deceased and struck on the chest and various parts of the body with a brick causing fracture to the bone and injuries to internal organs and subsequently, the victim succumbed to his injuries while undergoing treatment in Medical College Hospital, Kottayam at 2 p.m. on 22.03.2016. 2. Exhibit P10 FIR was registered under Section 174 Cr.P.C. on 23.03.2016 on the basis of Exhibit P1 First Information Statement of PW1, who is the younger brother of the deceased. After completion of the investigation, final report was filed by PW17 Inspector of Police, Ernakulam Town North and after committal, the case was taken on file as S.C. No. 551 of 2016. 3. The trial of the case was conducted before the First Additional Sessions judge, Ernakulam and from the side of the prosecution, PWs 1 to 17 were examined and MO1 was marked. From the side of the accused, DW1 examined and Exhibits D1 to D9 were marked. 4. After considering the oral and documentary evidence on record and after hearing both sides, the learned Additional Sessions judge-I, Ernakulam, by the impugned judgment dated 29.05.2020, convicted the accused and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- and in default to pay fine, to undergo rigorous imprisonment for a further period of six months for the offence punishable under Section 302 of IPC. 5. Heard Sri. Dinesh Mathew J. Murikan appearing for the appellant and Sri. Alex M. Thombra, Sr. Public Prosecutor. 6. The point that requires consideration is whether the conviction and sentence imposed on the appellant for the offence under Section 302 IPC is legally sustainable. 7. 5. Heard Sri. Dinesh Mathew J. Murikan appearing for the appellant and Sri. Alex M. Thombra, Sr. Public Prosecutor. 6. The point that requires consideration is whether the conviction and sentence imposed on the appellant for the offence under Section 302 IPC is legally sustainable. 7. The main arguments advanced on behalf of the appellant accused are that: (i) there is inordinate delay in registering the FIR and the same is not explained by the prosecution; (ii) the evidence of PW8 and the alleged cause of injury in Exhibit P6 wound certificate does not tally with the prosecution case regarding the date, place, time of occurrence and the assailant; (iii) PW1, the younger brother of the deceased, has no case in Exhibit P1 FIS that he witnessed the occurrence and therefore, his evidence before court that he witnessed the occurrence is not at all reliable; and (iv) the recovery of MO1 on the basis of the alleged disclosure statement of the accused is not at all reliable and the prosecution has not explained the delay in registering the FIR and producing MO1 before court. It is also argued that there are serious omissions and contradictions in the evidence of the material witnesses and that the court below relied upon assumptions and presumptions for finding the accused guilty of the offence charged against him. 8. In Exhibit P1 FIS given by PW1, it is stated that the deceased was living in a shed constructed in a puramboke property near Ernakulam North Railway Station and that PW1 came to know from the nearby autorickshaw drivers that on 07.03.2016, during day time, one Panickar @ kunjumon, who used to consume liquor with deceased, had quarreled with the deceased after consuming liquor and on the next day morning, i.e., on 08.03.2016, the deceased informed PW1 that he is suffering from body pain and he needs to go to a hospital and therefore, PW1 took his brother to the General Hospital, Ernakulam. But, when PW1 was examined before court, he deposed that he and his friends were consuming liquor in the shed of his brother from the morning of 07.03.2016 and that the accused was also with them and in the afternoon, he and the accused went to purchase another bottle of liquor and on their return, one Ravi also joined them. But, when PW1 was examined before court, he deposed that he and his friends were consuming liquor in the shed of his brother from the morning of 07.03.2016 and that the accused was also with them and in the afternoon, he and the accused went to purchase another bottle of liquor and on their return, one Ravi also joined them. It is stated that all of them again consumed liquor in the shed and the deceased also consumed liquor and there was some problem between the accused and the deceased on the previous day and they used to quarrel frequently. According to PW1, in the afternoon, his elder brother and the accused started quarrelling under the influence of liquor and then the accused took a brick and hit on the ribs and shoulder of his brother and when his brother fell down, the accused again hit him and he has not intervened because of his fear that the accused will also attack him. 9. The evidence of PW1 shows that after the said incident, he and others left and on the next day, when he reached the house of his brother, his brother told him that he suffers from body pain and accordingly he took his brother to the Government hospital, Ernakulam and from there, the injured was taken to the Medical College Hospital, Kottayam and admitted there in the ICU at about 12.10 p.m. and thereafter, the witness returned. Subsequently on 22.03.2016, PW1 came to Know about the death of his brother and accordingly he reached the Medical College Hospital, Kottayam and he also identified his signature in the FIS recorded on 22.03.2016. 10. In chief examination, PW1 stated that there used to be small issues between the accused and his brother and therefore, he has not given undue importance to the occurrence on 07.03.2016 and apart from the said statement of PW1 in chief examination, there is no other satisfactory explanation for the delay in giving the FIS to the police. 11. In cross examination, PW1 admitted that he has given a statement to the police that he came to know from the autorickshaw drivers that there occurred a quarrel between his brother and the accused after consuming liquor on 07.03.2016. However, he denied the suggestion of the defence that he has not witnessed the actual occurrence. 11. In cross examination, PW1 admitted that he has given a statement to the police that he came to know from the autorickshaw drivers that there occurred a quarrel between his brother and the accused after consuming liquor on 07.03.2016. However, he denied the suggestion of the defence that he has not witnessed the actual occurrence. In another part of the cross examination, PW1 stated that after he left the place, he had not seen his brother on that day. He would say that after the occurrence, he and others walked out of the shed and thereafter, on that day, he has no occasion to see his brother and it is not known to him whether his brother has gone to Manapattyparambu on that day. PW1 would say that his brother has some friends near North; but, he denied the suggestion that there occurred a quarrel between the deceased and two others in front of PVS Hospital and that the deceased sustained the injuries in that incident. 12. PW16 was the Additional Sub Inspector of Ernakulam Town North Police Station, who reached Kottayam Medical College Hospital on 22.03.2016 at 2 p.m., and recorded Exhibit P1 FIS of PW1 and subsequently, registered Exhibit P10 First Information Report under Section 174 Cr.P.C. PW16 also deposed that subsequently in his investigation, it is revealed that an offence under Section 302 IPC is committed and hence filed Exhibit P11 report before the court. In cross examination, PW16 admitted that as per Exhibit P1, the informant has only hearsay knowledge and in column No. 7 of the FIR, the details of the suspected accused was recorded as unknown. It is known to PW16 that the deceased availed treatment from Ernakulam General Hospital on 08.03.2016. But, it is not known to PW16 whether any intimation was received in the Police Station during the period from 08.03.2016 to 23.03.2016 from General Hospital, Ernakulam. 13. When a specific suggestion was made to PW16 in cross examination that he filed Exhibit P11 report to add Section 302 IPC only as per the direction of the Circle Inspector, the witness answered that the same is not known to him. However, he added that he has not recorded the statement of any witness in this case and that at the relevant time, he had just joined the service after training. 14. However, he added that he has not recorded the statement of any witness in this case and that at the relevant time, he had just joined the service after training. 14. PW8 Jameela deposed that the deceased was her husband and he was in the habit of consuming alcohol. She stated that on the date of occurrence, her husband and the accused along with their friends and the younger brother of her husband consumed liquor in a shed in front of their house from morning till the evening, and the accused Kunjumon has not left the house even after the onset of night. She would say that while she was about to go for sleep, she heard a noise from the way near the house and then the accused Kunjumon threatened her and out of fear, she ran away from the house and on the next day morning, she came to know from her sister in law that her husband is admitted in hospital. PW8 deposed that she and her mother reached the Medical College Hospital, Kottayam and when her husband regained consciousness, he told her that Kunjumon hit him with a brick for the reason that he objected when the accused reached their house with a woman named Sabira. 15. In cross examination, PW8 stated that it was a love marriage between herself and the deceased Unnikrishnan and that during 2016, she changed her religion and also changed her name as Jameela. In this connection, it is pertinent to note that PW8 is the witness cited as CW7 in the final report, and in the final report, her name is shown as Girija. In cross examination, PW8 denied the suggestion that she never had the name Girija and that she is Jameela. PW8 also denied the suggestion that one Sobha is the wife of the deceased Unnikrishnan and said Sobha was living with Unnikrishnan at the time of occurrence. However, PW8 admitted in cross examination that the said woman Sobha had connection with the deceased. PW8 denied the suggestion that it was Sobha who attended Unnikrishnan while he was admitted in the Medical College Hospital, Kottayam. In another part of cross examination, PW8 admitted that when she reached the Medical College Hospital, Kottayam, her husband was admitted in the ICU, and there was an oxygen cylinder near him. PW8 denied the suggestion that it was Sobha who attended Unnikrishnan while he was admitted in the Medical College Hospital, Kottayam. In another part of cross examination, PW8 admitted that when she reached the Medical College Hospital, Kottayam, her husband was admitted in the ICU, and there was an oxygen cylinder near him. However, she denied the suggestion that her husband was unconscious at that time. In answer to a question by the court, PW8 stated that her husband was attacked during the night. 16. The learned counsel for the appellant pointed out that PW8 has an entirely different story and according to PW8, the deceased was attacked by somebody during night. Even though PW8 categorically deposed that she was there in the house from morning till night, she has no case that the accused attacked the deceased at 3.30 p m on 07.03.2016. The learned counsel for the appellant also argued that the evidence of PW14 and Exhibit P9 treatment certificate would show that the address of the patient Unnikrishnan in the treatment certificate is C/o Sobha (w), Arankulam, Ernakulam North, and the said fact is admitted by PW14 doctor and therefore, it can be seen that one Sobha was the bystander at the Medical College Hospital, Kottayam. The evidence of PW14 shows that he examined the patient Unnikrishnan on 08.03.2016 at the Medical College Hospital, Kottayam and the history was of an assault and the patient had bilateral chest injuries, for which intercostal drainage was done. According to PW14, the patient was given ventilatory support in surgical ICU and in spite of giving expert management, the patient expired at 2 p.m on 22.03.2016. 17. In cross examination, PW14 admitted that bilateral chest injury can occur in a road accident and also when a person falls from a higher level to a lower level in force. PW14 further admitted that there is possibility of fracture to ribs, while giving CPR and there is possibility of giving CPR to a patient in ventilator, if in case the patient suffers a heart attack. However, PW14 deposed that he was not there at the time of the death of the person and usually, the doctors on duty in the ICU will give the CPR. 18. However, PW14 deposed that he was not there at the time of the death of the person and usually, the doctors on duty in the ICU will give the CPR. 18. When an accused is alleged to have committed murder, the question to be considered at the first stage is whether the accused has done an act, by doing which he has caused the death of the deceased. In State of Andhra Pradesh v. Rayavarpu Punnayya { AIR 1977 SC 45 } it was held as follows:- “... The question to be considered at first stage is whether the accused has done an act by doing which he has caused the death of another person. Proof of such causal connection between the act of the accused and the death leads to the 2nd stage for consideration whether that act of the accused amounts to “culpable homicide” as defined in section 299. If the answer of this question is prima facie found in the affirmative the stage is reached for considering the operation of section 300, I.P.C. This is the stage at which the Court should determine whether the acts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder punishable under the first or the 2nd part of section 304, depending respectively on whether the 2nd or the 3rd clause of section 299 is applicable. If the question is found to be positive, but comes within any of the exceptions enumerated in section 300, the offence would still be culpable homicide not amounting to murder punishable under the first part of section 304. But sometimes the facts are so intertwined and the 2nd and 3rd stages are so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the 2nd and the 3rd stages.” 19. It is true that all facts, except the contents of documents or electronic records, can be proved by oral evidence. But, if any oral evidence needs to be admissible, all the conditions under Section 60 of the Indian Evidence Act must be satisfied. Section 60 of the Indian Evidence Act reads thus: “60. Oral evidence must be direct. It is true that all facts, except the contents of documents or electronic records, can be proved by oral evidence. But, if any oral evidence needs to be admissible, all the conditions under Section 60 of the Indian Evidence Act must be satisfied. Section 60 of the Indian Evidence Act reads thus: “60. Oral evidence must be direct. –– Oral evidence must, in all cases whatever, be direct; that is to say –– if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.” 20. The learned counsel for the appellant pointed out that Exhibit P1 First Information Statement is given by the younger brother of the deceased about 15 days after the alleged occurrence on 07.03.2016 and in the said statement, he has no case that he witnessed the alleged occurrence at 3.30 pm on 07.03.2016, and it is further stated in Ext.P1 FIS that he has only hearsay information about the alleged occurrence. If in fact PW1 had witnessed the alleged occurrence on 07.03.2016 at 3.30 p.m., he would necessarily have stated the said fact while giving the First Information Statement and therefore, we find merit in the argument of the learned counsel for the appellant that the evidence of PW1 before the court that he witnessed the alleged occurrence on 07.03.2016 at 3.30 pm and his statement in Exhibit P1 that he has only hearsay information, cannot stand together. 21. In Dasu and others v. State of Maharashtra, (1985 Crl.L.J.1933), it was held thus:- “In order to see whether there is a contradiction by omission it is necessary to find out whether the two statements cannot stand together. It is also necessary to see whether the statement which the witness has made in the witness-box should have been made by him while reporting the matter soon after the incident. If the two statements made by the witness cannot stand together and the statements in the court is such that the witness would necessarily have made at the time of his earlier statement, then alone omission thereof can be considered to be a contradiction.” 22. PW9 is an autorickshaw driver and he deposed that on 07.03.2016, in between 2 and 2.30 pm., while his autorickshaw was parked near ESI Hospital, he heard noise from the nearby house of Unni and he saw the accused and Unni quarrelling and then the accused hit Unni with a brick. According to PW9, alcohol consumption and quarrel are usual in that place and hence, he left the place and at that time, he also saw the accused and Suni leaving from that place. PW9 stated that on the next day, he came to know that Unni is admitted in hospital and he also came to know about the death of Unni after two weeks. In cross examination, PW9 stated that his autorickshaw is not having Corporation permit and his house is at Cheranelloor. It is also admitted that there is no autorickshaw stand approved by the Corporation in front of ESI Hospital. 23. The evidence of PW9 in cross examination further shows that the investigating Officer, Circle Inspector Nizamudeen is known to him; but he denied the suggestion that he is falsely deposing against the accused as per the direction of the Circle Inspector. 23. The evidence of PW9 in cross examination further shows that the investigating Officer, Circle Inspector Nizamudeen is known to him; but he denied the suggestion that he is falsely deposing against the accused as per the direction of the Circle Inspector. PW9 would say that he told the police that he saw the accused hitting Unnikrishnan with a brick; but he has nothing to say if the same is not recorded by the police. 24. The learned counsel for the appellant pointed out that PW17 has admitted in cross examination that PW9 has not stated to him that he saw the accused hitting Unnikrishnan with a brick. Therefore, it can be seen that the evidence of PW9 before the court that he saw the accused hitting the deceased with a brick does not find a place in his statement to the police, and if in fact he had witnessed such an incident, he would necessarily have made such a statement to the police. In this connection, it is pertinent to note that the evidence of PWs 1 and 9 would show that the accused and the deceased along with their friends used to consume liquor and they also used to quarrel frequently and that PWs1 and 9 ignored the quarrel that occurred between the accused and the deceased as insignificant. 25. It is pertinent to note that PW8, who claims to be the wife of the deceased, has a case that the accused, deceased and Suni, who is the younger brother of the deceased, along with their friends consumed liquor in the shed from the morning till evening and she has no case that there occurred an incident as alleged by the prosecution at 3.30 pm on 07.03.2016, wherein the accused struck on the chest and various parts of the body of the deceased with a brick. It is also worthwhile to note that PW9 deposed in chief examination that after the quarrel between the accused and the deceased, he saw the accused and Suni, who is the brother of the deceased, together going out from that place. 26. As noticed earlier, the evidence of PW17 in cross examination would show that PW9 has not stated to him that he saw the accused hitting the deceased with a brick at the time of occurrence. 26. As noticed earlier, the evidence of PW17 in cross examination would show that PW9 has not stated to him that he saw the accused hitting the deceased with a brick at the time of occurrence. In cross examination, when PW9 was asked as to how he came to know that Unnikrishnan died on sustaining injuries on hitting with a brick, the witness answered that he has only hearsay information. In that circumstance, we find that there is a serious contradiction by omission in the evidence of PW9, in as much as he has no case before the police that he saw the accused hitting the deceased with a brick and that such a statement subsequently made before the court cannot be relied upon as the two statements cannot stand together. 27. PW11 was the Casualty Medical Officer at Government Hospital, Ernakulam, who examined the patient Unnikrishnan on 08.03.2016 at 8.10 a.m. The wound certificate issued by PW11 is marked as Exhibit P6. The evidence of PW11 and Exhibit P6 shows that the patient was brought with a history of alleged assault and that the patient was allegedly assaulted by two known persons (friends) at north near to PS Hospital, on the previous night. The injuries noted in Exhibit P6 are that: (1) complaints of pain on the left side of chest; and (2) surgical emphysema on the left side of chest. When the alleged history in Exhibit P6 wound certificate was brought to the notice of PW17, in cross examination, he evaded the question by saying that the writings are not clear. However, he admitted that he has not conducted any investigation in this case on the basis of the alleged history in Exhibit P6 wound certificate that the patient was assaulted by two known persons (friends) near PVS Hospital on the previous night. The evidence of PW17 in cross examination shows that on 27.03.2016, he recorded about ten confession statements of this accused and re-opened several undetected cases and he was also a witness in all the said cases. 28. We find force in the argument of the learned counsel for the appellant that the Investigating Officer, in a serious offence of murder, cannot be heard to say that he has not conducted any investigation on the basis of the alleged history in the wound certificate of the victim recorded immediately on the next day of the occurrence. 28. We find force in the argument of the learned counsel for the appellant that the Investigating Officer, in a serious offence of murder, cannot be heard to say that he has not conducted any investigation on the basis of the alleged history in the wound certificate of the victim recorded immediately on the next day of the occurrence. In this connection, it is also pertinent to note that PW8, who claims to be the wife of the deceased, has a case that her husband sustained injuries in an incident that occurred during night and therefore, it can be seen that the evidence of PW8 and Exhibit P6 wound certificate does not support the prosecution case regarding the alleged occurrence on 07.03.2016 at 3.30 pm. 29. PW2 is a witness to Exhibit P2 inquest report. PW3 deposed that on 07.03.2016, while the accused, deceased and his brother along with their friends were consuming liquor, he was also there from 10 am till noon and thereafter he went to his house and on the next day, the brother of the deceased told him that the accused hit his brother Unni. PW3 was declared hostile to the prosecution and he denied that he told the police as per Exhibit P3. PW4 is another autorickshaw driver and according to PW4, the accused and the deceased are known to him and they used to quarrel frequently and he heard a noise of quarrel at about 3 pm., on a day in the shed of Unnikrishnan. It is pertinent to note that PWs 3 and 4 are not direct witnesses to the alleged occurrence on 07.03.2016. They have no case that they saw the accused hitting the deceased with the brick. 30. PW5 also deposed that the accused and deceased are known to him and that they were friends and he had occasion to see them walking together. PW6 is conducting a tea shop near the bridge at Ernakulam North and according to him, the deceased and his mother are known to him and he came to know from the mother of the deceased that there occurred a quarrel between the deceased and the accused and that the accused hit the deceased with a stone. The evidence of PW6 in cross examination shows that he was also a witness in S.C. No. 560 of 2016. 31. The evidence of PW6 in cross examination shows that he was also a witness in S.C. No. 560 of 2016. 31. PW7 is a witness to Exhibit P4 seizure mahazar prepared for the recovery of MO1 brick. Even though he deposed in chief examination that during the third month of 2016, there occurred a quarrel between the accused and the deceased, he admitted in cross examination that he had only hearsay information regarding the quarrel between the accused and the deceased. 32. PW10 was a Civil Police Officer attached to Cheranelloor Police Station and he identified his signature in Exhibit P5 arrest memo of the accused. The postmortem examination on the body of the deceased was conducted by PW12 and the postmortem certificate is marked as Exhibit P7. The evidence of PW12 and Exhibit P7 shows that the following ante-mortem injuries were noted at the time of postmortem: 1) Contusion 2x1.5x0.5 cm on right side of forehead 1.5cm outer to midline and 1 cm above eyebrow. 2) Abrasion 1 x 0.8 cm on back of right elbow. 3) Multiple small abrasions over an area 3x2cm on front of right knee. 4) Abrasion 1.5x1cm on outer aspect of left leg 9 cm below knee. 5) Contusion 10x6x1cm on front of left arm 6 cm below tip of shoulder. 6) Contusion 6x4x1cm on front of left chest just below collar bone and 2 cm outer to midline. 7) Contusion 5x4x1 cm on outer aspect of left side of chest 5cm below top of axilla. 8) Contusion 6 x 5 x 1 cm on outer aspect of left side of chest 2 cm below injury No.7. 9) Contusion 9 x 8 x 1 cm on outer aspect of left side of trunk 3 cm below injury No.8. Fracture of II to IV ribs at their front aspect, V to VIII ribs at their outer aspects and IX to XII ribs at back aspects on left side of chest. 10) Fracture of VIlI th rib at its front aspect on right side. 11) Intercostal drainage wound 2 x 1cm on right side of chest 6 cm below top of axilla. 12) Intercostall drainage wound 2x1cm on left side of chest 6cm below top of axilla.” The opinion of PW12 is that the death was due to the blunt injury sustained to the chest. 11) Intercostal drainage wound 2 x 1cm on right side of chest 6 cm below top of axilla. 12) Intercostall drainage wound 2x1cm on left side of chest 6cm below top of axilla.” The opinion of PW12 is that the death was due to the blunt injury sustained to the chest. The site plan prepared by PW13, Village Officer, is marked as Exhibit P8. Exhibit P2 is the inquest report prepared by PW15 Additional Sub Inspector of Ernakulam North Police Station on 23.03.2016. 33. In this case, the prosecution is also relying upon the circumstantial evidence and the alleged recovery of MO1 on the basis of the confession statement of the accused. But, the learned counsel for the appellant argued that the alleged arrest of the accused and recovery of MO1 by PW17 as per Exhibit P4 mahazar is not at all reliable. The evidence of PW17 in cross examination shows that on 27.03.2016, he recorded about 10 confession statements of the accused and also proceeded to effect recovery on the basis of the said confession statements on 28.03.2016 to various places, and in this connection, it is pertinent to note that PW17 has not recorded the time of effecting recovery in Exhibit P4 seizure mahazar. 34. A perusal of Exhibit P19 report from the FSL shows that blood is not detected on MO1 Brick and therefore, it can be seen that there is no scientific evidence connecting MO1 brick to the alleged occurrence. Further it is in evidence that MO1 was recovered from a plantain behind the shed of the deceased and the evidence of PW7 is that he signed Exhibit P7 recovery mahazar near a place under the North Over-bridge, Ernakulam. 35. It is well settled that a fact discovered within the meaning of Section 27 of the Indian Evidence Act must refer to a material fact to which information strictly relates and in order to render information admissible, the fact discovered must be relevant and must have been such that it constitute the information through which the discovery was made. 36. It is well settled that a fact discovered within the meaning of Section 27 of the Indian Evidence Act must refer to a material fact to which information strictly relates and in order to render information admissible, the fact discovered must be relevant and must have been such that it constitute the information through which the discovery was made. 36. We find merit in the argument of the learned counsel for the appellant that MO1 is an ordinary brick and the availability of such bricks near the shed of the deceased cannot be ruled out and in the absence of satisfactory evidence to prove that MO1 is used as a weapon for committing the offence, no evidentiary value can be attached to the same. 37. In this case, the prosecution is relying upon the circumstances narrated by PWs 1 and 3 to 9 to argue that their evidence regarding the motive and quarrel between the accused and the deceased will prove beyond reasonable doubt that it is the accused who committed the murder. 38. In Padala Veera Reddy Vs. State of A.P. and Ors. ( AIR 1990 SC 79 ), the Hon'ble Supreme Court has laid down that:- "When a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 39. The Hon'ble Supreme Court of India in "Hanumant Govind Nargundkar and Anr. Vs. The Hon'ble Supreme Court of India in "Hanumant Govind Nargundkar and Anr. Vs. State of Madhya Pradesh", reported in AIR 1952 SC 343 , has observed thus:- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.” 40. In Mulakh Raj v. Satish Kumar (1992) 3 S.C.C. 43 , the Hon’ble Supreme Court held as follows:- “Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The Court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and the sentence would follow.” 41. We have already found that the evidence of PWs 1 and 8 regarding the occurrence does not tally and that PW1, who is none other than the brother of the deceased has no case in Exhibit P1 FIS that he witnessed the occurrence. We have already found that the evidence of PWs 1 and 8 regarding the occurrence does not tally and that PW1, who is none other than the brother of the deceased has no case in Exhibit P1 FIS that he witnessed the occurrence. Even if it is accepted that the evidence of PWs 1 and 3 to 9 would show that the accused and the deceased used to quarrel each other frequently after consuming liquor, it can be seen from the evidence of PWs 1 and 9 that they have not taken the said quarrel seriously and further the evidence of PW8 and the alleged history in Exhibit P6 wound certificate clearly indicates that the deceased sustained the injuries on the night of 07.03.2016 and therefore, on a careful re-appreciation of the evidence of material witnesses, we find that the prosecution has not fully established the circumstances from which the conclusion of guilt is to be drawn. In this case, it is not possible to arrive at a conclusion that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 42. Another aspect that requires consideration is the statement of PW8 in chief examination that when her husband regained consciousness, he told her that Kunjumon hit him with a brick and as to whether the said evidence of PW8 can be accepted as a dying declaration. 43. It is true that if a dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. But, in this case, it is necessary to consider the available medical evidence in order to satisfy whether the deceased was in a fit mental condition to make a dying declaration and in the peculiar facts and circumstance of this case, it is also necessary to consider whether the evidence of PW8 before the court regarding the oral dying declaration is reliable. In this connection, it is pertinent to note that PW8 has not mentioned the date or time at which the deceased regained consciousness and made the alleged dying declaration. 44. As noticed earlier, PW8 Jameela is the witness cited as CW7 in the final report with the name Girija. In this connection, it is pertinent to note that PW8 has not mentioned the date or time at which the deceased regained consciousness and made the alleged dying declaration. 44. As noticed earlier, PW8 Jameela is the witness cited as CW7 in the final report with the name Girija. The evidence of PW14 and Exhibit P9 treatment certificate shows one Sobha as the wife of the deceased who accompanied him to the hospital. Further, PW8 admitted in cross examination that Sobha had connection with the deceased even though she denied the suggestion that Sobha is the wife of the deceased. The evidence of PW14 doctor who examined Unnikrishnan on 08.03.2016 shows that the patient had bilateral chest injuries, for which intercostal drainage was done and it is also in evidence that the patient was given ventilatory support in surgical ICU and in spite of giving expert management, the patient died on 22.03.2016. 45. Therefore, it can be seen that there is no evidence from the side of the prosecution to show that the deceased was in a fit state of mind to give the alleged oral statement to PW8. It is well settled that the courts must always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. Therefore, we find that the trial court was not justified in relying on the purported oral dying declaration alleged to have been given by the deceased to PW8. 46. In Ashish Batham v. State AIR 2002 SC 3206 , it was held that mere suspicion, however strong or probable it may be, is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. In the said case it was also held that there is a long mental distance between may be true and must be true and this basic and golden rule only helps to maintain the vital distinction between conjectures and sure conclusions to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. 47. 47. In Jagga Singh v. State AIR 1995 SC 135 it was held that when the evidence adduced did not conclusively lead to the guilt of the accused and only pointed needle of suspicion towards the accused and nothing more, he cannot be convicted of murder because suspicion is no substitute for proof in criminal trial. 48. In this case, the prosecution has not succeeded in adducing reliable evidence to prove that the accused attacked the deceased and inflicted the injuries with MO1 brick on 07.03.2016 at 3.30 PM as alleged and therefore, we find that accused is entitled for the benefit of reasonable doubt and that the prosecution has not succeeded in proving the offence charged against the accused. 49. The point is answered accordingly. Therefore, the impugned judgment requires to be interfered with and we do so. 50. In the result, this appeal is allowed. The conviction and the sentence passed by the trial court against the accused for the offence punishable under Section 302 of IPC as per the impugned judgment is set aside and the accused is acquitted under Section 235(1) Cr.P.C. He shall be set at liberty forthwith, if not required in any other cases. Registry shall send a copy of this judgment to the Superintendent of jail concerned where the appellant is now detained. Interlocutory applications, if any pending, shall stand closed.