JUDGMENT : Goutam Bhaduri, J. Heard. 1. The present appeal is against the judgment of conviction and order of sentence dated 30.01.2020 passed in Sessions Trial No.05/2018 by the Sessions Judge, Mahasamund, District Mahasamund (C.G.) whereby the appellants have been convicted & sentenced as under:- Conviction Sentence Under Section 302/24 of Indian Penal Code (for short, ‘IPC’) (two times) Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for six months each was also ordered. Under Section 201/34 IPC RI for three years with fine of Rs.1,000/- and in default to pay fine amount, additional RI for six months each was also ordered. All the sentences were ordered to run concurrently. All the sentences were ordered to run concurrently. 2. Case of the prosecution, in brief, is that both the accused persons Narayan Raut & Ashok Yadav and the deceased persons Lalaram and Leelabai are related to each other. The deceased persons Lalaram and Leelabai used to stay in a hutment situated over the agricultural land at village Suarmal. On 16.08.2017 when P.W.1 Haslekh went to his field, he saw that entire hutment has been burnt wherein Lalaram and Leelabai used to stay. Accordingly, after it was found that both Lalaram and Leelabai have died of burn injuries, it was intimated to the Police and the merg was registered vide Ex.P.1 & Ex.P.2. The dead bodies were subjected to post-mortem and initially though it was apprehended that the incident of fire took place due to short circuit of the electricity but it was found to be incorrect and the death was due to burn injuries. Against the unknown person, case was registered under Section 302 & 201 of IPC and during investigation, appellants Narayan Raut and Ashok Yadav were apprehended and on their memorandum statements (Ex.P.20 & Ex.P.21), the wooden club was recovered vide Ex.P.25. During investigation, Police collected the evidence with respect to the mobile location of Narayan Raut, which was situated near the tower where the vicinity of the hutment was there and incident took place there. After recording the entire statements and collection of other documentary evidence, the charge-sheet was filed. 3. During the course of trial, the appellants abjured their guilt and claimed to be tried. The prosecution on its behalf examined as many as 17 witnesses and exhibited 71 documents. After recording the entire statements and collection of other documentary evidence, the charge-sheet was filed. 3. During the course of trial, the appellants abjured their guilt and claimed to be tried. The prosecution on its behalf examined as many as 17 witnesses and exhibited 71 documents. The learned Sessions Judge, on the basis of evidence placed before it, convicted and sentenced the appellants based on the circumstantial evidence. Hence, this appeal. 4. Learned counsel for the appellant would submit that the conviction of the appellants recorded by the trial Court is completely misconceived. There are six circumstances considered about the conduct of the appellants before the incident, location of mobile phones near the hutment and after the incident though the appellants were related to the deceased persons, but they did not attend the last rituals and ceremonies. He further submits that the fact, which was disclosed by the appellants that appellant Ashok Yadav was treating his wife was not accepted as an evidence and the motive of the incident is stated to be quarrel. He would submit that all the circumstances nowhere pointed out the involvement of the accused/appellants to the incident. He would further submit that P.W.1 Haslekh, who is son of the deceased persons, categorically stated that though appellants participated in the Teejnahawan (3rd day of death ceremony), which took place after the death ceremony, but the trial Court has completely ignored in recording such finding. He would also submit that the tower location though was projected to be an incriminating circumstance against the accused persons, but the tower location can only show the presence of persons, however, call detail report (CDR) cannot give the exact range and the coverage of the mobile location, therefore, the fact that the appellants themselves were present on the spot to cause the offence cannot be presumed. He would also submit that after two and half months, wooden club was recovered from an open place, which too does not lead to prove the guilt of the accused persons. It is a settled proposition that the circumstances, howsoever, may be strong cannot be replaced by proving the fact and the benefit is to be given to the appellants/accused, therefore, the judgment of conviction is liable to be set aside. 5. Per contra, learned State counsel would submit that as per the statement of P.W.10 Dr. It is a settled proposition that the circumstances, howsoever, may be strong cannot be replaced by proving the fact and the benefit is to be given to the appellants/accused, therefore, the judgment of conviction is liable to be set aside. 5. Per contra, learned State counsel would submit that as per the statement of P.W.10 Dr. L.L. Dhankar, the death was due to burn injuries and was homicidal in nature. He would further submit that as per the statement of P.W.14 Praveen Shukla, Head Constable, the movement of mobile bearing SIM No.91788-84077, was found on 15.08.2017 near the tower where the hutment situates. Thus, presence of the accused/appellants has been properly explained coupled with their specific admission in memorandum statements that they firstly assaulted the deceased and thereafter burnt the bodies. Consequently, the conduct of the accused persons were found doubtful and accordingly, they have rightly been found guilty, therefore, the finding of conviction and sentence recorded by the trial Court is well merited and do not call for any interference. 6. We have heard learned counsel for the parties and perused the entire evidence and the record. 7. Admittedly, there is no eye-witness to the incident. The deceased persons Lalaram and Leelabai used to stay in a hutment situated over the field which was 3 – 4 kilometers away from the village. In his statement, P.W.1 Haslekh, who is son of the deceased, stated that he resides in Suarmal village from where his field was 3 – 4 kilometers away wherein his father and mother used to live. Thereafter, on the date of incident, Purushottam and his wife came and informed that the hut wherein his father and mother were living completely burnt, upon which, he went over there and saw the hut destroyed in fire. The information thereof was given to the Police. Panchnama of the dead bodies was prepared vide Ex.P.5 and P.6. The map, which was prepared on the spot Ex.P.7 and Ex.P.8, would show that the place of incident was a field and no inhabitants nearby the incident is shown, meaning thereby, the place of incident was a lone hutment situated over a filed, which was burnt. The map further shows that near the incident, there is one stove. 8. The dead bodies were subjected to post-mortem and the Doctor examining the bodies, gave its report. The map further shows that near the incident, there is one stove. 8. The dead bodies were subjected to post-mortem and the Doctor examining the bodies, gave its report. The post-mortem of Lalaram is Ex.P.29 whereas the post-mortem of Leelabai is Ex.P.31. The cause of death was extensive deep burn injuries over the body, therefore, the death was not a natural one. P.W.10 Dr. L.L. Dhankar found the following injuries over the dead bodies of Lalaram and Leelabai, which read as under : 04. External Examination of the dead-body Lalaram 01. Heat stiffening present on the both limbs of the deceased body. 02. The scalp hairs were burnt. 03. Blackness of slab roasting cherry red of the whole body. 04. Eyes were closed, eye brow singed. 05. Black discolouration of face congested and distorted. 06. Mouth partially opened tongue protruded. 07. Lips congested blackish discolouration. 08. The legs slight flexed at knee. 09. Body covered with residue particles of paddy which was completely burnt. 10. Blistors seen over the anterior trunk in some places. 11. External genital burnt congested slightly swollen. 12. 4th degree 100% burn injury. the aforesaid burnt portion could be caused by intense heat by inflammable substance. 05. Internal Examination 01. Larynx and trachea were congested. 02. Black particles of carbon soot not present in trachea cavity. 03. Both lungs were congested and odematous. 04. Heart was congested both chambers contains cherry red colour blood. 05. Intestinal membrane were congested. 06. Mucus membrane of abdomen was congested, undigested food material rice was present. 07. Small & Large intestines, liver, spleen and kidney were congested. 11. External Examination of the dead-body of Leelabai :- 01. The dead-body was completely burnt. 02. The skin, muscles and bones of the dead-body were burnt and some parts of the upper and lower limbs were missing with pieces of bones scattered around the body. 03. The scalp hair of the deceased was completely burnt. 04. The skull bone was burnt and brittle. 05. Left foot, Right leg & foot, Left forearm, Right upper limb were missing. 06. Left upper limb humerus bone was burnt and facial bone was burnt. 07. The abdominal wall was burnt with abdominal viscera exposed. 08. The chest was burnt and most of the chest ribs were burnt and brittle. 09. Dead-body was covered with residue particles of paddy which was burnt. 10. 06. Left upper limb humerus bone was burnt and facial bone was burnt. 07. The abdominal wall was burnt with abdominal viscera exposed. 08. The chest was burnt and most of the chest ribs were burnt and brittle. 09. Dead-body was covered with residue particles of paddy which was burnt. 10. Rest part of the body was burnt with black discolouration. 11. Pelvis and external genitals of the deceased were burnt. 12. No vesicles, pus etc. were seen on the body. 13. 6th degree 100 % deep and extensive burn injury present on the deceased body. All the said burn injuries could be caused by intense heat by the inflammable substance. 12. Internal Examination :- 01. The skull bone was burnt and brittle. 02. The brain was shrunken and turned into black mass. 03. Chest wall was burnt and more or less all ribs were brittle exposed. 04. Larynx and trachea were congested. 05. Tracheal cavity contained sooty carbon particles. 06. Both lungs were congested and shrunken. 07. Heart was congested and cherry red colour blood was present on both chambers of the heart. 08. The abdominal was burnt with abdominal organ exposed. 09. The stomach was congested and undigested rice was present in the stomach. 10. Small intestine, large intestine, liver, spleen, kidney and urinary bladder were congested. 11. Uterus was normal in size. According to Dr. L.L. Dhankar, there is presence of carbon monoxide, carbon in the trachea when the fire took place. It was stated that they were alive and presumption of homicidal death was shown. 9. Since the death was unnatural and doubt of homicidal death was expressed, Police started investigation and on the statement of P.W.1 Haslekh, the doubt was pointed out towards the appellants/accused persons. The initial doubt, which was explained by P.W.1 Haslekh that after the death, the appellants did not participate in the ceremonies and rituals, and even during the investigation, the appellants remained away from the said proceedings. In the cross-examination of this witness, he admits that relation in between them and accused persons were quite cordial and they used to visit each others place. According to P.W.1, the doubt was natural for the reason that Ashok Yadav never participated in any household ceremonies and after incident when he tried to call the accused, his mobile phone was shown to be switched off. According to P.W.1, the doubt was natural for the reason that Ashok Yadav never participated in any household ceremonies and after incident when he tried to call the accused, his mobile phone was shown to be switched off. However, contrary to it, in cross-examination para 21, he admits that the accused Ashok came and attended in death ritual, i.e., Tijanahawan ceremony and thereafter he immediately left. Therefore, the doubt merely loomed large for the reason that he did not attend the last rituals of the deceased persons, who were their relatives, is negated by the statement of P.W.1 Haslekh, son of the deceased. 10. The primary doubt from the statement of P.W.1 Haslekh has been shown because of the accused did not answer to the phone call by Ashok. This doubt is casual as if the phone is not attended by anyone, by such evidence, it only creates doubt, that too bleak qua the involvement in any offence. During inquest proceedings too, at para 24 of his evidence, this witness has not raised any doubt on anyone. Therefore, in absence of any direct evidence and on the basis of doubt raised by P.W.1 Haslekh, conviction of the appellants is mainly on mere doubt and suspicion sans evidence. 11. The Supreme Court, in a recent decision in Ram Pratap vs. State of Haryana reported in (2023) 2 SCC 345 at para 9 has reiterated the case law reported in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 and held that the suspicion, howsoever, strong, cannot substitute proof beyond reasonable doubt, which reads as under :- “9. It has been held by this Court in a catena of cases including Sharad Birdhichand Sarda v. State of Maharashtra, that suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt. This Court has held that there is not only a grammatical but also a legal distinction between “may” and “must”. For proving a case based on circumstantial evidence, it is necessary for the prosecution to establish each and every circumstance beyond reasonable doubt, and further, that the circumstances so proved must form a complete chain of evidence so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show, in all human probability, that the act has been done by the accused. Further, it has been held that the facts so established must exclude every hypothesis except the guilt of the accused.” 12. P.W.14 Pravin Shukla, Head Constable of the Police Station Komakhana, who investigated the merg No.25/2017 and obtained the call details report (CDR) of mobile numbers. He deposed that he gave application to get the mobile tower location of Ashok Yadav bearing No. 96174-30502 for a period of 01.08.2017 to 20.08.2017. For obtaining the call details of the same mobile number, the application was given vide Ex.P.56 and in respect of Mobile of appellant Narayan Raut, which was bearing No.91788-84077, the application requesting for supply of call details report for a period of 01.08.2017 to 20.08.2017 was given and it was exhibited as Ex.P.55. According to him the Cyber Cell Tower Record, the phone belonging to Narayan Raut was found on 15.08.2017 at 09.53 pm near a tower located at a land bearing Kh.No.1376/1 at village Deori, which was spread over covering the place of incident. 13. P.W.16 Krishna Sharma is the Nodal Officer of Airtel was examined. In his cross-examination, it has been stated by him that when the mobile is in live condition, then its movement from one tower to another within the range, i.e., hand over and take over will be recorded and in order to ascertain the hand over and take over movement, they have to be alert and they manually record the same and if it is not manually recorded, then it would be automatically deleted and if the mobile is activated, then it will be registered in CDR. This statement of mobile company officer makes the statement of investigating officer a weak one. 14. P.W.11 Vibhor Rastogi is also Nodal Officer of Idea Cellular Limited. He stated on oath at para 10 that every tower has three sectors, namely, Alpha, Beta and Gamma, but some towers have four sectors and some have five, six, seven sectors. He further stated that every tower has its own different range. 14. P.W.11 Vibhor Rastogi is also Nodal Officer of Idea Cellular Limited. He stated on oath at para 10 that every tower has three sectors, namely, Alpha, Beta and Gamma, but some towers have four sectors and some have five, six, seven sectors. He further stated that every tower has its own different range. At para 11, he deposed that if a person is making a call or receiving a call while standing within the range of a tower, then the number of that tower come in the call detail record of the mobile and further stated that it is true that on the basis of call detail records, it cannot be said at what distance the concerned mobile holder was placed from the tower. If the statement of P.W.11 is accepted and the tower location of the mobile is found in the range of incident, then it only raises a strong suspicious, which cannot take place in evidence. 15. The Courts have repeatedly held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned “must or should” and not “may be” established. Recently, the said proposition has been reiterated in the law laid down by the Supreme Court in the case of Nikhil Chandra Mondal Versus State of West Bengal { (2023) 6 SCC 605 }. In para 11 of the said judgment the Supreme Court held thus : “11. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned “must or should” and not “may be” established. It has been held that there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. It has been held that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty. It has been held that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty. It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so 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.” 16. Furthermore, the prosecution has relied upon the recovery of wooden club on the basis of memorandum statements of accused Ashok Yadav (Ex.P.20) and Narayan Raut (Ex.P.21). As per the memorandum statements, while they went for treatment of exorcism to the deceased, some dispute took place in between them whereby the deceased Lalaram Yadav was trying to assault on the head of Ashok Yadav, but prior to that Ashok Yadav assaulted Lalaram (D) by club so also Narayan Raut assaulted him by lathi and when Leelabai (D) intervened in the matter, she was also pushed by them, due to which, she fell down and became unconscious. Thereafter they burnt their hutment and then ran away. The said wooden club was recovered vide Ex.P.25. A perusal of property seizure memo would show that it was recovered from an open place, that too, after 2 months of the incident. The club was also found half burnt as was recovered from the place of incident. 17. Except creation of any doubt, no concrete evidence appears to be existing. The circumstances which have been taken into account by the prosecution do not lead to prove guilt of the accused beyond reasonable doubt. The conviction, therefore, cannot be based on words and phrase “may be proved” and it has to be based on “must be or should be proved.” It only raises hypothesis of guilt and not the guilt committed by the accused. The motive in between the accused persons and deceased persons also appears to be absent as they had cordial relation and used to visit each others place. In order to commit such offence, there has to be higher degree of motive. The motive in between the accused persons and deceased persons also appears to be absent as they had cordial relation and used to visit each others place. In order to commit such offence, there has to be higher degree of motive. The motive, which has been tried to be brought by the prosecution that during treatment of exorcism, certain arguments took place in between them, which resulted into scuffle and assault and as such the commission of offence cannot be accepted. We are not satisfied to accept the case of prosecution to connect the accused/appellants in the crime in question. Accordingly, we are of the view that the prosecution has failed to prove the guilt of accused persons/appellants beyond reasonable doubt. 18. For the foregoing, we hold that the judgment of conviction and order of sentence passed against the present appellants by the trial Court, being erroneous one, is liable to be and is hereby set aside and the appellants are acquitted of the said charges. The appellants are reported to be in jail. They be released forthwith if not required in any other case. Accordingly, the appeal is allowed.