JUDGMENT : SUNDER MOHAN, J. PRAYER: Criminal Appeal filed under Sections 374 of Criminal Procedure Code to call for the entire records connected with the Judgment rendered the Sessions Judge, Mahalir Neethimandram, Madurai in S.C. No. 120 of 2018 dated 09.02.2021 and set aside the same and consequently, acquit the appellant. 1. The appellant has challenged the Judgment of conviction and sentence passed in S.C. No. 120 of 2018 dated 09.02.2021 by the Sessions Judge, Mahalir Neethimandram, Madurai. The appellant was tried along with four others. The appellant was charged for the offence under Section 302 IPC. He and the other accused (A2 to A5) were charged for the offence under Section 201 IPC. A2 to A5 were acquitted by the Trial Court. 2..... (a) The case of the prosecution is that the appellant and the deceased got married 10 years prior to the occurrence. The appellant was in the habit of harassing the deceased often after intoxicating himself. On 25.12.2015, at about 08.00 p.m. the accused had mixed sleeping tablets in the Tea consumed by the deceased and at about 03.00 a.m. on 26.12.2015, he had caused the death of the deceased by smothering her with a pillow. Before that, he had caused injuries on the face, near the left eye, lips and chin of the deceased with fists. It is the further case of the prosecution that A2 to A5 had made it appear that it was a case of natural death and prepared the body of the deceased for funeral by washing it and changing the clothes on the deceased. (b) PW-1, who is the mother of the deceased, gave a complaint to the respondent on 26.12.2015 at about 12.30 hours stating that the appellant was in the habit of causing cruelty to her daughter due to his drinking habits; that on 17.12.2015, the appellant and the deceased went to her brother's house and asked for money; on 26.12.2015, at about 12.00 p.m. the neighbours of the deceased told her that the appellant came to their house and informed that his wife is no more and left the place. On hearing the news, PW-1 went to the house of the deceased and found contusion injuries in the left eye and on the lips of the deceased. On hearing the news, PW-1 went to the house of the deceased and found contusion injuries in the left eye and on the lips of the deceased. She hence, lodged a complaint, which was registered under Section 174 Cr.P.C. (c) Thereafter, postmortem was conducted on 27.12.2015 at about 10.30 a.m. by PW-12-Doctor, who gave the initial report marked as Ex.P.6, wherein she had stated that “opinion reserved pending Chemical Examiner's Report.” She found contusions in the lips and abraded contusion near the left eye, linear abrasion on the right mandible and abrasion on the left chin. She sent the stomach, intestine and other organs for chemical examination. On 30.12.2015, the respondent police filed report to alter the offences to Sections 302 IPC and 201 IPC. In the said report, the respondent had stated that the investigation revealed that the appellant caused the death of the deceased by smothering her with a pillow. Meanwhile, on 30.12.2015, at about 10.00 hours, the appellant was arrested and on his confession, a blood stained yellow colour pillow, blood stained shirt and a bag were seized under Ex.P.15-Mahazar. The Forensic Department sent a Report (Ex.P.17), on 28.01.2016 stating that no poison was detected from her stomach, intestine and contents therein. On 24.06.2016, PW-12 issued Final Opinion (Ex.P.7) as to the cause of the death, which reads as follows: “the deceased would appear to have died of Asphyxia due to smothering, 24-30 hours prior to the autopsy.” (d) Thereafter, the Investigating Officer collected other evidence and filed the final report against the accused. Before the Trial Court, the prosecution examined 15 witnesses and marked Exs.P.1 to P.19 and M.O.Nos.1 to 7. The defence did not examine any witness. The accused had denied the incriminating circumstances put against him under Section 313 Cr.P.C. The Trial Court found the appellant alone guilty of the offence under Section 302 IPC and acquitted all the accused for the offence under Section 201 IPC. 3. The learned counsel for the appellant submitted that the Investigation was conducted in a biased manner. The respondent ought to have informed the nearest Executive Magistrate under Section 174 Cr.P.C. for holding an inquiry into the cause of death. He further submitted that there is no evidence to suggest that the deceased had consumed sleeping pills, since the medical evidence did not support the said version. The respondent ought to have informed the nearest Executive Magistrate under Section 174 Cr.P.C. for holding an inquiry into the cause of death. He further submitted that there is no evidence to suggest that the deceased had consumed sleeping pills, since the medical evidence did not support the said version. Further, the evidence of Doctor that the deceased could have died due to smothering, is highly improbable and contrary to medical jurisprudence. The recovery of pillow and blood stained shirt also cannot be believed since the witnesses to the seizure had turned hostile. The Trial Court having disbelieved the evidence with regard to Section 201 IPC, ought to have acquitted the appellant for the offence under Section 302 IPC as well. The prosecution had not established the circumstances in a cogent manner and they do not point out to the guilt of the accused. 4. The learned Additional Public Prosecutor submitted that the deceased and the appellant were living alone in the house. Under Section 106 of the Indian Evidence Act, the burden is cast upon the appellant to explain facts which are within his personal knowledge. The silence of the appellant is a strong circumstance to prove his guilt. The learned Additional Public Prosecutor further submitted that an inquiry by the Magistrate is not mandated in all cases registered under Section 174 Cr.P.C. The appellant and the deceased were married for more than 10 years and hence, it was not mandatory for the Magistrate to conduct an inquiry on the cause of death. The evidence of PW-12-Doctor clearly establishes that the death of the victim was homicide. The evidence of the mother and other relatives would show that the appellant was in the habit of ill-treating the deceased after consuming alcohol. The injuries on the deceased would also suggest that it is a case of homicide. He would therefore submit that the prosecution has proved the circumstances against the appellant beyond reasonable doubt. 5. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent police and perused the materials available on record. 6. This is a case of circumstantial evidence. He would therefore submit that the prosecution has proved the circumstances against the appellant beyond reasonable doubt. 5. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent police and perused the materials available on record. 6. This is a case of circumstantial evidence. The circumstances relied upon by the prosecution are (a) the recovery of blood stained M.O.No. 1 pillow and blood stained clothes M.O.Nos.4 and 5 on the confession of the appellant; (b) the cause of the death shown as smothering as opined by PW-12 the Postmortem Doctor; (c) PWs. 1 to 6 saw the deceased with injuries when they first saw the deceased; (d) Seizure of 24 Nibam 100 gms tablets and 20 Emetil 100 gms tablets along two silver tumblers and tea jug from the house of the deceased; (e) the accused had not discharged his burden under Section 106 of the Indian Evidence Act. 7. The issue before us is whether the prosecution had established the circumstances conclusively and as to whether the circumstances form a complete chain, which point out only to the guilt of the accused and rule out any other hypothesis. 8. Let us analyse the medical evidence of PW-12-Doctor, who had opined that the deceased could have appeared to have died of Asphyxia due to smothering. PW-12 had given an initial opinion on 26.12.2015, wherein, there is nothing to suggest that the deceased was subjected to smothering. He sought opinion from the Scientific Officer of the Forensic Science Lab, after examination of viscera. The Forensic Science Lab issued Ex.P.17 report stating that no poison was detected. Thereafter, PW-12 had given a final report stating that the deceased may appear to have died due to Asphyxia due to smothering. To a specific question as to whether any particles were not found in the lungs or in the trachea to suggest that the deceased died due to smothering, PW-2 answered in negative. He could also not satisfy on what basis he had come to the conclusion that the deceased died due to smothering. There is no indication in Ex.P.6, the initial opinion given by PW-12 suggesting any symptom of smothering. She had only awaited the viscera report to find out if there were any signs of poison. In our view, the viscera examination has nothing to do with her opinion as regards smothering. There is no indication in Ex.P.6, the initial opinion given by PW-12 suggesting any symptom of smothering. She had only awaited the viscera report to find out if there were any signs of poison. In our view, the viscera examination has nothing to do with her opinion as regards smothering. If the deceased had died due to smothering, PW-12's initial report ought to have contained some indication suggesting possibility of smothering. However, there were no such recording in the report. The belated report given on 24.06.2016 without any basis, in our view, does not conclusively establish that the deceased died of smothering. Thus, there is a reasonable doubt created with regard to the cause of death. 9. That apart, we find the recovery is also highly doubtful. Though the pillow and shirts containing blood stains tallied with the blood group of the deceased, the seizure witnesses did not support the case of the prosecution. PW-8 who was examined as Mahazar Witness for seizure of pillow and blood stained shirt, turned hostile. He further stated that the signature found in Ex.P.15 Mahazar was not his signature. We had compared the signature found in his deposition and the signature in Ex.P.15 Mahazar. The signatures are different and not that of the same person. PW-9's version with regard to the manner and which articles said to have seized by Ex.P.15 Mahazar, is different from the prosecution's version. He would state that the policemen had enquired two persons and the blood stained clothes were found with those two persons and this belies the prosecution's version with regard to seizure made on the confession of the appellant. PW-7 is a witness for seizure of Nibam tablets and Emetil tablets from the house of the deceased. He would also state that the signature found in Ex.P.2 Observation Mahazar and Ex.P.3 Seizure Mahazar were not his signatures. We had also compared the signature found in the deposition and found that they are different. Thus, we find that the seizures alleged to have been made during investigation have not been proved by the prosecution. That apart, we find that the signatures of the mahazar witnesses have been fabricated. 10. The circumstance relating to seizure of Nibam and Emetil tablets does not advance the prosecution case in any manner. The Lab Report has not detected poison or medicine during examination. That apart, we find that the signatures of the mahazar witnesses have been fabricated. 10. The circumstance relating to seizure of Nibam and Emetil tablets does not advance the prosecution case in any manner. The Lab Report has not detected poison or medicine during examination. Therefore, this circumstance also cannot be held against the appellant. 11. Another fact, which creates serious doubt in the prosecution case, is that on 30.12.2015, the respondent had filed an alteration report, in which, they had concluded that the appellant had caused injuries on the deceased and had committed murder by smothering with the pillow. It is not known as to how the respondent had come to such a conclusion even as early as on 30.12.2015, when it is their own case that P.W12 had given her final opinion only on 24.06.2016 that the deceased died due to smothering only. 12. The circumstances relied upon by the prosecution do not conclusively establish homicide. Therefore, for the above reasons, we are of the view that the prosecution has failed to establish that the death of the deceased was due to homicide. PW-12's opinion given eight months later without any supporting facts, cannot be the sole basis to hold that it was homicidal death. 13. In the result, the Criminal Appeal is allowed. The Judgment of Conviction made in S.C. No. 120 of 2018 dated 09.02.2021 on the file of the Sessions Judge, Mahalir Neethimandram, Madurai is set aside and the accused is acquitted from all the charges and set at liberty. Bail bond, if any, stands cancelled.