JUDGMENT : (Shree Chandrashekhar, J.) : Vinod Kumar Keshri, who lodged a report with the police on the basis of which Sadar PS Case no.1087 of 2015 was lodged against his brother-in-law Surendra Prasad Keshari, is aggrieved of the judgment dated 25th August 2018 passed in Sessions Trial No. 36 of 2016 by which the accused has been acquitted of the charge under section 302 of the Indian Penal Code framed against him for causing death of his wife Babita Keshri. 2. The main plea urged on behalf of the informant-appellant is that the trial Judge misdirected himself and shifted the burden on the prosecution whereas reverse burden under section 106 of the Indian Evidence Act was to be answered by the accused. 3. Mr. Shailendra Jit, the learned counsel for the appellant has referred to paragraph no.27 of the judgment under challenge wherein the learned Sessions Judge has recorded that (i) there is no evidence of last seen together and (ii) no recovery has been made from the accused. 4. The plea urged on behalf of the appellant is that in a case where a married woman is found dead in her matrimonial home in suspicious circumstances the aforesaid considerations by the trial judge were not germane to the point in issue. 5. The learned trial Court has made following observation to record acquittal of the accused: “26. In this case, prosecution has not adduced any evidence to show that only accused and deceased Babita Keshari were living in the house where dead body of Babita Keshari was found. It is admitted fact that PW. 3, Ayush Keshari, son of deceased and accused Surendra Pd. Keshad was also living together with accused Babita Keshari. Accused was not seen together with Babita Keshari before or after her death. PW. 6 Tilak Prajapati deposed that he had delivered lunch to Surendra Pd. Keshari in his shop at about 01:00 PM. There is no evidence that accused left the shop and reached to the house and after sometime again returned to shop. Therefore, chain of circumstantial evidence i.e. evidence of last seen together is missing. Nothing has been recovered from possession of the accused. Accused was arrested from his house. Keshari in his shop at about 01:00 PM. There is no evidence that accused left the shop and reached to the house and after sometime again returned to shop. Therefore, chain of circumstantial evidence i.e. evidence of last seen together is missing. Nothing has been recovered from possession of the accused. Accused was arrested from his house. Presence of accused at place of occurrence is suggestive that either he reached to show his innocence or that he was totally unaware that he was being blamed for commission of the murder of Babita Keshri. In this case, there is only suspicion against accused on the ground of previous conduct that he used to beat Babita Keshri for demand of cash for liquor. It is established legal preposition that suspicion however great it may be, cannot take the place of legal proof. A moral conviction however, strong or genuine cannot amount to a legal conviction supportable in law. For the serious crime higher legal proof is required to establish the case. 27. In this case, prosecution only raised suspicion, on the basis of previous conduct of accused Surendra Pd. Keshari. Prosecution could not adduce the evidence to complete the chain of circumstantial evidence. Neither there is evidence of last seen together nor there is recovery of anything from possession of the accused. Investigation was not conducted with forensic aid to establish that finger print of the accused were available on the rope found wrapped around the neck of the deceased Babita Keshri. Finger prints were also not lifted from the shirt allegedly produced by Ayush Keshari, during investigation to establish that finger print of deceased were found on the T-shirt to establish that in scuffle T-shirt was torn. There is no evidence on record to show that during scuffle, accused sustained any injury on his person. Accused was not medically examined. There is no medical report that accused was having injury such as scratches and abrasion on his person to suggest that during scuffle he sustained injuries. Therefore, in this case, there are gaping hole in chain of circumstantial evidence. Chain of evidence is not complete. In other words, there is no evidence except previous conduct of the accused to substantiate that it was only accused who committed murder of Babita Keshari. Therefore, in this case, there are gaping hole in chain of circumstantial evidence. Chain of evidence is not complete. In other words, there is no evidence except previous conduct of the accused to substantiate that it was only accused who committed murder of Babita Keshari. There is reasonable ground to reach the conclusion that evidence adduced by the prosecution only consistent with the innocence of accused and not with the hypothesis to establish guilt of the accused. 28. In, premises, this court comes to the conclusion that prosecution could not adduce consistent, reliable, cogent, trustworthy evidence to complete the chain of circumstantial evidence to bring home guilt of the accused. In this case, delay in F.I.R. is also suggestive that it was result of deliberation and circumspection. Therefore, a reasonable doubt has been created with regard to involvement of the accused in commission of the offence. Therefore, he is entitled for reasonable benefit of doubt. Therefore, accused Surendra Prasad Keshari is acquitted for offence u/s 302 IPC for Committing murder of Babita Keshari @ Keshari, R/o Indraprasth Kumhar Toli, Hazaribag on 11.09.15. He in judicial custody. He is directed to be released forthwith, if not wanted in any other case, Office is directed to consign the record in the Record Room.” 6. The learned Sessions Judge has found that there are gaping hole in the chain of circumstances and therefore a reasonable doubt arises on complicity of the accused in the crime. The learned Sessions Judge has also referred to the judgments in “Hanumant Govind Nargundkar v. The State of Madhya Pradesh” AIR 1952 SC 343 ; “Tufail alias Simmi v. State of Uttar Pradesh” (1969) 3 SCC 198 ; “Ramgopal v. State of Maharashtra” AIR 1972 SC 656 , and; “Shivaji Sahabrao Babode & Anr. v. State of Maharashtra” (1973) 2 SCC 793 to come to a conclusion that the accused was implicated in the case on suspicion. 7. The powers of the High Court under section 378 of the Code of Criminal Procedure are wide and the provisions under section 378 do not put fetters on the powers of the High Court to re-appreciate the evidence and arrive at its independent conclusion. Therefore it shall be legal for the High Court to reverse the findings recorded by the trial Judge and convict the accused. Therefore it shall be legal for the High Court to reverse the findings recorded by the trial Judge and convict the accused. However there are certain legally evolved rules which a High Court while entertaining an acquittal Appeal shall always keep in mind and one of such rules is whether there is any compelling circumstance to reverse the findings of acquittal and convict the accused. 8. In “Bhadragiri Venkata Ravi v. High Court of A.P.” (2013) 14 SCC 145 the Hon'ble Supreme Court has held as under: “25. This Court has time and again laid down parameters for interference by a superior court against the order of acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.” 9. On the basis of a written report of Vinod Kumar Keshri who is the brother of the victim, Sadar PS Case No. 1087 of 2015 was lodged against the accused-respondent who, as noticed above, faced the trial on the charge of murder of his wife. The case of the prosecution against the accused is that he had bad drinking habit and would pick up fight with his trivial matters. This is the specific case of the prosecution that in the afternoon of 11th September 2015, when no other person was at home, the accused strangulated his wife to death and to give it a colour of suicide hanged her with jute rope. In the trial, the prosecution produced ten witnesses out of whom PW1 Sukhdeo Sao is the father-in-law, PW2 Mahendra Prasad Keshri is the brother-in-law, PW3 Ayush Keshri is the son, PW4 Basanti Devi is the mother-in-law and PW7 Vinod Kumar Keshri is the brother of Babita Keshri. 10. As PW8, Dr. In the trial, the prosecution produced ten witnesses out of whom PW1 Sukhdeo Sao is the father-in-law, PW2 Mahendra Prasad Keshri is the brother-in-law, PW3 Ayush Keshri is the son, PW4 Basanti Devi is the mother-in-law and PW7 Vinod Kumar Keshri is the brother of Babita Keshri. 10. As PW8, Dr. Gopal Das who conducted autopsy on 12th September 2015 at 11:00 AM over the dead body of Babita Keshri has stated in the Court that he found two ligature marks (i) one extending in front below thyroid cartilage, horizontally backward on either side of neck running up to back of neck in cutaneous fashion and (ii) one ligature mark above the injury no.1 on left side of neck running obliquely backward up to angle of jaw. 11. It is widely accepted in the medical jurisprudence that hanging is generally suicidal. Parikh's Text Book of Medical Jurisprudence Forensic Medicine and Toxicology mentions that homicidal hanging is rare. In the Text Book of Medical Jurisprudence and Toxicology by Modi (26th Edition), it is stated that in homicidal strangulation ligature mark would be horizontal or transverse, continuous, round the neck and low down the neck below the thyroid. It is also common that in a case of homicidal strangulation abrasions and ecchymoses around the ligature marks are found, carotid arteries' internal codes are ruptured, and larynx, tracheae and hyoid bone are fractured. However, in case of strangulation by fingers (throttling) marks of pressure by thumb or the finger tips are usually found on either side of the wind pipe. The thumb marks are ordinarily higher and wider on each side of the front of the neck and the finger marks are situated on its other side obliquely downwards and outwards; one below the other where both hands are used to grasp and compress the throat the thumb mark of one hand and the finger marks of the other hand are usually found on either side of the throat. Some traces of bruises and abrasions may also be found on the front as well as back of the neck. 12. All the characteristic features of homicidal and suicidal hanging may not be found in every case and presence or absence of one of the features may not decide the nature of the death. Some traces of bruises and abrasions may also be found on the front as well as back of the neck. 12. All the characteristic features of homicidal and suicidal hanging may not be found in every case and presence or absence of one of the features may not decide the nature of the death. But one thing is clear that in homicidal death the ligature mark would be continuous around the neck but in suicidal hanging it may not be. The reason is quite simple to see when a person hangs himself by rope or a cloth while jumping from a height, bed or chair the knot around his neck cannot be continuous. The ligature mark of the knot would be above the thyroid cartilage for the simple reason that when one jumps from a height the knot would go upwards. 13. In the present case, PW8 has found that cartilage of larynx and trachea were intact, mucus membrane of trachea and larynx were contused and heart was full with clotted blood and has rendered an opinion that the cause of death was asphyxia caused by strangulation. 14. Though the evidence of PW8 may create suspicion against the accused who is the husband of Babita Keshri but no inference that he killed his wife can be raised against him. Section 106 of the Indian Evidence Act comes into play provided the prosecution has produced some independent evidence to prima facie demonstrate that the accused was involved in the crime. However, the inference under section 106 of the Indian Evidence Act cannot be drawn automatically or in a routine manner and as observed by the Hon'ble Supreme Court in “Shambhu Nath Mehra v. State of Ajmer” AIR 1956 SC 404 the provision under section 106 of the Indian Evidence Act does not relieve the prosecution of its primary duty to establish the offence against the accused. 15. In “Shambhu Nath Mehra” the Hon'ble Supreme Court has observed as under: “11.This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary. 15. In “Shambhu Nath Mehra” the Hon'ble Supreme Court has observed as under: “11.This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary. It is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B). ............................................................................................................ 13. We recognise that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially" within the knowledge of the accused. This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.” 16. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.” 16. This is also not the law that in every case the husband must be found guilty if the wife has been found dead in her matrimonial home. In “Ranjit Singh v. State of Punjab” (2011) 15 SCC 285 the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Evidence Act to hold the husband guilty for murder. 17. The best evidence of the prosecution is coming from the son of the accused who has tendered evidence as PW3. To discredit his testimony, the accused has set up a defence that on account of property dispute he has deposed against him. This we observe from the cross-examination of PW3 that he has admitted in the Court that he had doubts that his father could have sold the properties, and this was for this reason that he has suspected involvement of his father in the murder of his mother, whom his father would beat at times mercilessly. PW3 further admitted in his cross-examination that no one has seen his father coming to the house around the time of the occurrence. This is also relevant to note that PW5 and PW6 who are the independent witnesses have not supported the prosecution. PW6 has deposed in the Court that around 01:00 PM in the afternoon Babita Keshri was alone in her house. He has further stated that the accused was at his shop which is at a distance of about 2 kms from his home and at the time when he brought lunch for the accused he was present in his shop. Now this is the law settled by the Hon'ble Supreme Court in “Javed Masood v. State of Rajasthan” (2010) 3 SCC 538 that the evidence of the prosecution witness shall bind the prosecution even though the witness has deposed in favour of the accused provided that the witness has not been declared hostile and cross-examined by the prosecution. 18. Now this is the law settled by the Hon'ble Supreme Court in “Javed Masood v. State of Rajasthan” (2010) 3 SCC 538 that the evidence of the prosecution witness shall bind the prosecution even though the witness has deposed in favour of the accused provided that the witness has not been declared hostile and cross-examined by the prosecution. 18. As rightly observed by the learned Sessions Judge, suspicion howsoever strong can not take a place of legal evidence so as to convict an accused and that too on a serious charge of murder of his wife. 19. Having the aforementioned discussions in mind, we are not inclined to entertain this Acquittal Appeal and, accordingly, Acquittal Appeal no. 103 of 2018 is dismissed. 20. IA No. 10209 of 2018 stands disposed of.