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2024 DIGILAW 1395 (KER)

Murukan, S/o. Sankaran v. State Of Kerala

2024-10-30

C.S.SUDHA

body2024
JUDGMENT : In this appeal filed under Section 374(2) Cr.P.C., the appellant who is the accused in S.C.No.495/2010 on the file of the Court of Session, Palakkad, challenges the conviction entered and sentence passed against him for the offence punishable under Section 304 Part-I IPC. 2. The prosecution case is as follows:- Divya, the deceased, is the daughter of the accused. The accused had dissuaded and had issued strict instructions to his daughter not to visit the house of PW5, his first wife. Divya without heeding to his directions, continued to visit the house of PW5. On 25/03/2009 when the accused returned home, he called Divya several times. But Divya without responding to his calls continued playing in the cradle made with saree tied inside the house. Enraged by this, the accused on the said day at 18:30 p.m. strangulated Divya with the saree that was used for tying the cradle. Hence, as per the final report, the accused was alleged to have committed the offence punishable under Section 302 IPC. 3. On the basis of Ext.P1 FIS statement given by PW1, a cousin of the accused on 26/03/2009 at 09:00 a.m., crime no. 108/2009, Kollengode police station was registered by PW20, the Sub Inspector of police under Section 174 Cr.P.C. During the course of the investigation, the offence punishable under Section 302 IPC was made out and hence a report for altering the Section was submitted. Investigation was taken over by PW22, the Circle Inspector of Police, who completed the investigation and submitted the final report before the jurisdictional magistrate alleging the commission of the offence punishable under Section 302 IPC by the accused. 4. The jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Palakkad. The case was taken on file as S.C.No. 495/2010 and thereafter made over to the Additional Sessions Judge-IV, Palakkad for trial and disposal. On 03/12/2013, a charge under Section 302 IPC was framed, read over and explained to the accused to which he pleaded not guilty. 5. On behalf of the prosecution, PW1 to PW22 were examined and Exts.P1 to P33 and M.O.1 to M.O.5 were got marked in support of the case. On 03/12/2013, a charge under Section 302 IPC was framed, read over and explained to the accused to which he pleaded not guilty. 5. On behalf of the prosecution, PW1 to PW22 were examined and Exts.P1 to P33 and M.O.1 to M.O.5 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support of the same. DW1 was examined and Exts.D1 and D2 were marked on behalf of the accused. DW1, the Secretary, Muthalamada panchayath, Chittur was examined to prove that the house in which the incident is alleged to have occurred does not stand in the name of the accused and that the sibling of the accused was also occupying the house at the relevant time. 7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of culpable homicide not amounting to murder and proceeded to sentence him to rigorous imprisonment for ten years and to a fine of Rs.2,00,000/-and in default to rigorous imprisonment for a period of two years under Section 304 Part-I IPC. Aggrieved, the accused has come up in appeal. 8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court are sustainable or not. 9. Heard both sides. 10. It was submitted by the learned counsel for the accused/appellant that the evidence on record is totally unsatisfactory to establish the offence alleged against him. There is no direct evidence. The prosecution relies on circumstantial evidence, which is in no way satisfactory. In support of the argument, reference was made to the dictums of the Apex Court in Pradeep Kumar v. State of Chhattisgarh, 2023 KHC 6263: (2023) 5 SCC 350 and Raja Naykar v. State of Chhattisgarh, 2024 LiveLaw (SC) 60. There is no direct evidence. The prosecution relies on circumstantial evidence, which is in no way satisfactory. In support of the argument, reference was made to the dictums of the Apex Court in Pradeep Kumar v. State of Chhattisgarh, 2023 KHC 6263: (2023) 5 SCC 350 and Raja Naykar v. State of Chhattisgarh, 2024 LiveLaw (SC) 60. Per contra it was submitted by the learned Public Prosecutor that the evidence on record is satisfactory to find the accused guilty and no infirmity, irregularity or illegality has been committed by the trial court and so the judgment does not call for any interference. 11. As noticed earlier, as per the final report the accused is alleged to have committed the offence punishable under Section 302 IPC. Therefore, the question that arose for consideration before the trial court was whether the offence disclosed by the facts and circumstances established by the prosecution against the accused, 'is murder' or 'culpable homicide not amounting to murder'. According to the learned trial Judge, the offence made out is 'culpable homicide not amounting to murder' falling under Section 299 IPC. As held by the Apex Court in State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382 and followed by this Court in Rajan K. v. State of Kerala, 2022 KHC 810 and Shaju v. State of Kerala, 2023 KHC 514, whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299 IPC. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC is reached. This is the stage at which the Court should determine whether the facts 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 IPC. This is the stage at which the Court should determine whether the facts 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 IPC. 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 second part of Section 304 IPC, depending, respectively, on whether the second or the third Clause of Section 299 IPC is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300 IPC, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304 IPC. 12. Therefore, now the first question to be considered is has the accused, in the case on hand, done an act by which he has caused the death of his daughter Divya ? It is only on proof of such causal connection between the accused in the death that would lead to the second stage of considering whether the act amounts to 'culpable homicide' as defined in Section 299 IPC. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC is reached. For ascertaining the same, I make a brief reference to the evidence on record. 13. Ext.P1 FIS given by PW1 is seen recorded on the next day of the incident, that is, on 26/03/2009 at 09:00 a.m. In Ext.P1, PW1 states that the accused, his neighbour, is residing with his second wife (PW6) and four children, Divya being the eldest daughter. On 25/03/2009 by about 08:00 p.m., he was informed by his brother Shanmughasundaran that Divya had been taken to the hospital as she fell ill. By 08:45 p.m, he reached the house of the accused. Several people gathered there told him that Divya has been brought back from the hospital. When he went inside the house and looked, he saw Divya lying still. An ambulance was summoned and she was taken to the Government Hospital, Palakkad, where she was declared brought dead. On enquiry, he came to know that on 25/03/2009 by 05:00 p.m, the accused and some others had taken Divya to Alpha Hospital stating that she was not keeping well/sick. An ambulance was summoned and she was taken to the Government Hospital, Palakkad, where she was declared brought dead. On enquiry, he came to know that on 25/03/2009 by 05:00 p.m, the accused and some others had taken Divya to Alpha Hospital stating that she was not keeping well/sick. The doctor asked them to take her to the hospital at Pollachi. The accused saying that Divya had died, brought her back home. He does not know how Divya died. He also does not know whether she had any illness. 13.1. PW1, when examined stands by the case stated in Ext.P1 FIS. He deposed that on enquiries he was told that Divya got strangled when she was swinging in the cradle. . He did not see any marks on Divya. He did not entertain any doubts also. In the cross examination, he deposed that Divya was taken to Alpha hospital by the accused and Mylan (PW18). 13.2. PW2, a neighbour of the accused deposed that he was present when the police conducted inquest and that he is an attestor to Ext.P2 inquest report. He also did not see any marks on the body of Divya. PW8 is another attestor to Ext.P2. 13.3. PW16, Senior Lecturer, Assistant Police Surgeon, Government Medical College Hospital, Thrissur deposed that he conducted autopsy on the body of Divya and had issued Ext.P16. When he conducted postmortem examination, he noticed that there was a ligature mark on the neck. In his examination he noted the following, which have been recorded in Ext.P16 - “....... B.NECK FINDINGS:- Ligature mark seen as pressure abrasion 9cm long on front and left side of neck slightly obliquely placed, front right end 1.5 cm right to midline and 4.5cm below jaw margine (1cm width), 5.5cm below centre of chin (1.2cm width) and 4.5cm below left angle of mandible(1cm width). Mark was absent for 16.5cm on back and right side of neck. Flap dissection of neck under bloodless field showed infiltration of blood (1.5x 1x 0.5cm) on left sterno thyroid muscle just below the left lobe of thyroid gland. There was infiltration of blood in the substance of left lobe of thyroid gland. All other neck structures including thyroid cartilage and hyoid bone were intact. .......... OPINION AS TO CAUSE OF DEATH. POSTMORTEM FINDINGS WERE CONSISTENT WITH DEATH DUE TO LIGATURE STRANGULATION.” (Emphasis supplied) 13.4. There was infiltration of blood in the substance of left lobe of thyroid gland. All other neck structures including thyroid cartilage and hyoid bone were intact. .......... OPINION AS TO CAUSE OF DEATH. POSTMORTEM FINDINGS WERE CONSISTENT WITH DEATH DUE TO LIGATURE STRANGULATION.” (Emphasis supplied) 13.4. PW16 deposed that the ligature mark noted in Ext.P16 could be caused by MO.1 saree. In the cross-examination he deposed that the circumference of the neck of the deceased had not been measured. According to him, it may come up to 28cm. To a question as to why there was no ligature mark on more than half of the neck area, he answered that a ligature mark upto a length of 16.5 cm was seen. To a question whether in cases of hanging, ligature mark would be absent on the back of the neck, he answered that it would depend on the material used and the time involved. If knot is on the back, there would not be any mark. To a question whether in cases of strangulation, injuries to the muscle of the neck is common, he answered that fracture, dislocation on cervical vertebrae is rare. In case of strangulation, bleeding from nose, mouth and ear is possible. However, absence of blood from nose, mouth and ear cannot said to be an exception. All natural orifices were normal and devoid of injury. No other injuries were seen on the body which means that there was no struggle. He denied the suggestion that it would not be possible for MO.1 saree to produce a ligature mark as noted in the postmortem certificate. PW16 deposed that MO.1 saree can cause it, as the point of contact with the body could be the border of the saree, that was applied for a short period of time. He also denied the suggestion that it would not be possible to cause a ligature mark as noted in the certificate, if MO.1 saree was used vertically. To a question that the saree having a length of 5 mtr. should have been used vertically after folding the saree making it one mtr. long to produce the ligature mark in question, replied that the nature of the fold and the number of folds in the saree does not have much influence on the ligature mark. What is important is the area of contact. should have been used vertically after folding the saree making it one mtr. long to produce the ligature mark in question, replied that the nature of the fold and the number of folds in the saree does not have much influence on the ligature mark. What is important is the area of contact. PW16 did not agree to the suggestion that if MO.1 saree had been folded vertically, the chances of its border coming in contact with the neck of the child to produce the ligature mark was remote or not possible. He also deposed that since the material of MO.1 saree is soft, its width has no relevance in causing the injury. In the re-examination he was asked whether death in this case could have been caused by the neck getting entangled in the swing, to which he replied that it was not possible. . Ligature mark is connected with the point of contact of the material with the neck and the amount of force applied by the assailant. In the further cross examination of PW16 it was put to him that the possibility of applying constricting pressure to the neck with the cradle cloth is remote in the cradle position to which he answered that, if death is to be caused, the neck must be tightened/constricted. ( )” 13.5. PW20, the Sub Inspector, who registered the crime had prepared Ext.P2 inquest report. He deposed that the doctor who conducted the postmortem examination expressed an opinion that it was a case of suspected murder. He submitted Ext.P2 report requesting for alteration of the Section mentioned in the FIR to Section 302 IPC. 14. The aforesaid evidence shows that the death of Divya was in fact an unnatural one. Nobody has a case that it was a case of suicide. Now the question to be answered is- was it a case of filicide by the accused? One of the reasons or motive stated is that the accused had strictly warned his daughter from going to the house of PW5, his first wife. But Divya disobeyed him. PW5 when examined, does not support this version of the prosecution. She deposed that the accused divorced her as she was unable to bear any children. The accused thereafter married PW6, Radhamani, in whom he has five children of which Divya was the eldest. PW5 is staying near the residence of the accused. But Divya disobeyed him. PW5 when examined, does not support this version of the prosecution. She deposed that the accused divorced her as she was unable to bear any children. The accused thereafter married PW6, Radhamani, in whom he has five children of which Divya was the eldest. PW5 is staying near the residence of the accused. Divya occasionally used to visit her. After divorce, she was not close to the accused. They never used to talk to each other or visit the other's residence. There was never any quarrel or altercation or argument in connection with Divya's visit to her house. She heard people saying that the incident happened while Divya was playing in the cradle. When she returned from work, she saw women in the locality running towards the house of the accused, saying that Divya had taken ill. She also joined them. She heard somebody wailing loudly. She saw the accused crying with the child in his arms. She does not know whether the accused was drunk at that time. She saw the accused and PW18 taking the child on a bike to the hospital. They returned in an ambulance by about 07:30 p.m. by which time Divya was dead. She denied having stated to the police that she heard that the accused had killed his daughter as he was angry that his daughter continued visiting her despite him dissuading her from doing so. In the cross-examination she deposed that though the accused had re-married, he never showed any enmity towards her. The accused used to look after his children well and he was affectionate to his children. 14.1. None of the other prosecution witnesses support the prosecution case regarding the motive that the accused strangulated his daughter because she had disobeyed the strict instructions given by him not to visit PW5. None of the witnesses also support the prosecution case that Divya instead of responding to the repeated calls of the accused continued playing in the cradle, which angered the accused and in a fit of rage/fury, strangulated her. It has come out in evidence that the accused is residing in a colony and therefore houses are situated close by. None of the neighbours examined, have a case that they heard the accused scolding or calling out to Divya repeatedly or the child crying. Therefore, the motive alleged by the prosecution has not been established. It has come out in evidence that the accused is residing in a colony and therefore houses are situated close by. None of the neighbours examined, have a case that they heard the accused scolding or calling out to Divya repeatedly or the child crying. Therefore, the motive alleged by the prosecution has not been established. It is true that even in the absence of motive, or even if no motive is established, that alone would not be sufficient to throw out the prosecution case if the remaining evidence on record is satisfactory to establish the case. Therefore, I will look into the testimony of the other witnesses also to find out whether the case as alleged by the prosecution is made out. 14.2. PW3, a neighbour deposed that at the time of the incident, only the accused and the deceased were present at home. He does not know how the child died. To his understanding the incident happened while Divya was playing in the cradle. The child got entangled in the cloth used for tying the cradle resulting in her death. 14.3. PW4 another neighbour deposed that on the date of the incident the accused, his mother and Divya were present at home. The second wife (PW6) and her other children were not at home. When she returned from work by about 04:30 p.m., she went to fetch water from the public tap at which time she heard a cry from the direction of Milk Society situated on the eastern side. When she rushed to the scene, she saw the accused with Divya in his arms. When the accused was asked as to what had happened, he did not respond, instead he was weeping. Divya was taken to the hospital on a bike by the accused and Mylan (PW18). The accused was drunk at that time. She does not know to which hospital the child had been taken. The child was brought back in the night and then she understood that the child was dead. She did not see any mark on the body of the child. The prosecutor was permitted to put questions as put in cross-examination to PW5 when she denied her statements to the police. The contradictions in her statement have been marked as Exts.P3 to P5. According to PW4, it was a case of accidental death. 14.4. She did not see any mark on the body of the child. The prosecutor was permitted to put questions as put in cross-examination to PW5 when she denied her statements to the police. The contradictions in her statement have been marked as Exts.P3 to P5. According to PW4, it was a case of accidental death. 14.4. PW6 the second wife of the accused and the mother of the deceased deposed that at the time of the incident she was away at Pollachi. She was informed that Divya had taken ill and by the time she reached home, the child was dead. 14.5. PW7, the mother of the accused deposed that on the said day she returned home from work at 04:00 p.m. She went out to fetch water from the public tap at which time Divya was home. She went to the house of one Lekshmi to inform the latter about the Kudumbasree programme. When she returned by 07:00 p.m. the child had been taken to the hospital. Her son, the accused, occasionally takes alcohol. She did not see the child being taken to the hospital. As she denied the statements given by her to the police, the prosecutor was permitted to ask questions as put in the cross-examination. Ext.P8 is the contradiction brought out in her testimony. In the cross examination PW7 deposed that when she reached the house, she untied the cradle, she also deposed that she heard that the child was accidentally strangulated while playing in the cradle. 14.6. PW8 deposed that he came to know that Divya died by strangulation. There was a mark on the front side of her neck, but he does not know what was used to strangle her. The mark was on the front of the neck. There were also blood marks on the neck. In the cross examination, PW8 was asked whether the mark seen on the neck was due to tightening or due to strangulation to which, he answered that it looked like as though it got entangled in something and got tightened. 14.7. PW9 deposed that he had gone to Govindapuram to charge his mobile phone. There he saw the accused and Myilswamy (PW18) with the child. The accused wanted him to call a taxi, but no taxi was available. They took the child to the hospital on a bike. The accused was drunk at that time. 14.7. PW9 deposed that he had gone to Govindapuram to charge his mobile phone. There he saw the accused and Myilswamy (PW18) with the child. The accused wanted him to call a taxi, but no taxi was available. They took the child to the hospital on a bike. The accused was drunk at that time. So, they asked the accused to follow them. When they reached the hospital, the doctor told them that the child was dead and showed him a mark on the neck of the child. The body was sent back in an ambulance. The doctor had taken his mobile number. When they reached home, he received a call from the Kollengode police station, directing them to take the body to the police station. The police reached the house of the accused within ten minutes. According to PW9, the accused did something and then came to Govindapuram and took him along to the hospital, saying that the child was not keeping well. In the cross-examination he deposed that he does not recollect whether he had stated so to the police. He was tense on the said day. On the said day, he saw the accused and PW18 along with the child. He admitted that his statement that the accused had done something is what he heard from others and that he had not seen anything. 14.8 PW15, W.P.C., Kollengode police station deposed that on 26/03/2009 she produced the body of the child before the Medical College Hospital, Thrissur and after the postmortem, the body was handed over to the accused. PW15 deposed that the doctor had told her that the mark seen on the nose of the accused was a nail mark. She also deposed that the nail clipping and viscera of the deceased taken during the postmortem was handed over to the investigating officer. The doctor told her that the mark seen on the neck of the deceased was caused by tightening something around the neck. . In the cross-examination PW15 was asked whether she had stated to the police that the mark seen on the nose of the accused was a nail mark, answered in the affirmative. When her attention was drawn to the absence of such a statement to the police she reiterated that she had stated so to the police and it is her belief that the same was recorded. 14.9. When her attention was drawn to the absence of such a statement to the police she reiterated that she had stated so to the police and it is her belief that the same was recorded. 14.9. PW17, another neighbour of the accused deposed that on the date of the incident, the accused, his mother and daughter Divya were present at home. She had seen Divya at about 03:30 p.m. when the child had come to her residence. She asked Divya to go and buy tea, which the child obliged. Therefore, both had tea. She entrusted her 8-month-old child to Divya and went to the neighbourhood. After she returned, Divya went back home. When her husband (PW18) came home by about 04:30-05:00 p.m., she went out to fetch water from the public tap. The mother of the accused gave her a pot and requested her to collect water in the same. She filled up the pot and kept it near the tap. On her way back, she saw the accused. The accused filled water in two pots and returned. They were standing in the road with their child. Then they heard the accused calling Mylan, Mylan. Thereupon she and her husband rushed to the scene. The accused was standing on the verandah with Divya in his arms. When they enquired about the matter, the accused pleaded ignorance. The two pots of water taken by the accused were seen kept in front of the house. Her husband took water from the pot and poured some water into the mouth of Divya, who looked as though she was sleeping. Her husband along with the accused took the child to the hospital on a bike. PW17 deposed that Divya used to go to the house of PW5 for watching T.V. She does not know whether there was any issue relating to the same. She also does not know whether the accused did not approve of this. Nobody had ever said so. She had not stated to the police that the accused did not like his daughter going to the house of his first wife. She does not know whether the accused was drunk on the said day. She had not stated to the police that the accused was drunk on the said day or that she had heard the accused calling out to somebody. She does not know whether the accused was drunk on the said day. She had not stated to the police that the accused was drunk on the said day or that she had heard the accused calling out to somebody. As she did not support the statements alleged to have been given by her to the police, permission was sought to put questions to her as in cross-examination, which was permitted by the Court. The contradictions have been marked as Ext.P16(a) to P19. In the cross-examination she deposed that she did not notice whether the arms and legs of Divya were moving when she saw her. Though her husband poured water into the mouth of Divya, the latter did not drink. The accused at the time was crying. 14.10. PW18, the husband of PW17 supports the version of his wife. On the said day at about 05:00 p.m. when he returned home, his wife entrusted their child to him and went out to fetch water. While he was standing by the side of the road with his child, he heard the accused screaming. When they went to the house of the accused, they saw the accused with Divya in his arms. When they enquired about the matter, the accused pleaded ignorance. He took some water from the pot and poured it into the mouth of the child, who drank some water. Thereafter, he along with the accused took the child on a two-wheeler to the hospital. They went in a two-wheeler up to Govindapuram. When they reached the said place, Guruvayurappan and Muthu came there and took the child to the hospital. He and the accused accompanied them to Alpha hospital. When they reached the hospital, the doctor told them that the child was dead. The doctor directed the child to be taken for post-mortem. The doctor had shown him a black mark on the neck of the child. They took the child back home in an ambulance. Thereafter, the body was taken to the Government Hospital, Palakkad. The accused was drunk at that time. He does not know the cause of death of the child. According to him, the child fell while she was playing. .PW18 denied having given statements to the police supporting the prosecution story and hence permission was given to put questions as put in the cross-examination. The contradictions have been marked as Exts.P9 and P20. He does not know the cause of death of the child. According to him, the child fell while she was playing. .PW18 denied having given statements to the police supporting the prosecution story and hence permission was given to put questions as put in the cross-examination. The contradictions have been marked as Exts.P9 and P20. In the cross-examination he deposed that the accused was loudly wailing while holding the child. He and the accused made all attempts to save the child. 15. Now the question is, does the testimony of the aforesaid witnesses make out a case of homicide by the accused. It is highly doubtful. It is true that there was nobody at the house other than the accused and the deceased at the time of the incident. PW7 the mother of the accused, a loyal prosecution witness, says that she was not present when the incident occurred. She came to know about the incident only when she returned from the neighbourhood. Here the testimony of PW17 is quite relevant. PW17 had seen the accused also fetching water in two pots from the public tap and returning home, which was shortly before the incident. When she and her husband PW18 rushed to the house of the accused on hearing his cries, they found the pots of water in front of the house of the accused from which her husband gave water to the child. The accused with Divya in his arms was found crying and thereafter her husband along with the accused immediately took the child to the hospital. The doctor at Alpha hospital to which the child was first taken has not been examined for which no reasons have been given by the prosecution. It was a case of unnatural death and therefore the question is how the body was released from Alpha hospital without the hospital authorities informing the police or autopsy being conducted. PW18 deposed that the doctor had in fact told the accused that post-mortem was necessary. However, without subjecting the child to the post-mortem examination the accused took back the child home. 16. Further, Ext.P16 post-mortem certificate does not show strangulation mark on the entire circumference of the neck of the child. As per the post-mortem report ligature mark seen as pressure abrasion was 9cm long on the front and left side of the neck, was slightly obliquely placed. 16. Further, Ext.P16 post-mortem certificate does not show strangulation mark on the entire circumference of the neck of the child. As per the post-mortem report ligature mark seen as pressure abrasion was 9cm long on the front and left side of the neck, was slightly obliquely placed. Mark was absent for 16.5 cm on back and right side of neck. PW16 had not measured the circumference of the neck but says that it may be 28 cm. If so, there was no mark on nearly half of the neck. The prosecution case is that the accused strangulated the child by wrapping the cradle saree around the neck and tightening it. If that be so, the question that arises is why is that there no ligature mark on the right side of the neck and on 16.5 cm on the back of the neck or around the entire circumference of the neck. The ligature mark was found obliquely placed. This according to the learned defence counsel indicates hanging which substantiates or probabilises the defence version that it was a case of death by accidental hanging. On the other hand, the learned public prosecutor submitted that it can never be a case of accidental hanging as the same is an impossibility going by the medical evidence on record. 17. Modi's Medical Jurisprudence and Toxicology, 23rd Edition, page 584 says, one among the several differences of hanging and strangulation is the position of the ligature mark. In case of hanging, it is oblique, non-continuous, placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment like. In hanging it is horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. 17.1. In principles and Practice of Forensic Medicine, by B.Umadethan, 2nd Edition, page 255, it is said that in the case of strangulation, the mark will be completely encircling the neck and horizontal. Bruising and abrasion on the edges of the ligature may be more marked. In the case of hanging, the ligature mark would be a pressure abrasion caused by the ligature material. If the material is soft, the mark will not be distinct. If the ligature is rough and patterned like a coir, the mark will be distinct and patterned similarly. Bruising and abrasion on the edges of the ligature may be more marked. In the case of hanging, the ligature mark would be a pressure abrasion caused by the ligature material. If the material is soft, the mark will not be distinct. If the ligature is rough and patterned like a coir, the mark will be distinct and patterned similarly. The ligature mark is usually above the thyroid cartilage, oblique on the sides of neck and non-continuous beneath the position of the knot. If a soft and broad ligature material like dhoti or saree is used, the ligature mark need not be above the thyroid cartilage. (page no.253) 18. In the case on hand, the prosecution has no case that the accused had hanged his child to death. The specific case is strangulation by tightly wrapping the neck of the deceased with MO.1 saree and tightening it. Would that not cause ligature mark on the entire circumference of the neck? The absence of ligature mark on the right side of the neck and back has not been properly explained by the prosecution. PW16, who conducted the postmortem examination also has no answer for this. 19. The argument of the learned public prosecutor that there is no possibility of accidental death being caused by the child getting entangled in the cradle, may not be completely correct. I have come across an article published in the Journal of Neuroscience in Rural Practice (Volume 9, Issue 4, October-December 2018) by C. Anitha, K. Jagadish Kumar, N. Nanda and M. Meghana from the Department of Pediatrics, JSS Medical College, JSS University, Karnataka on the topic – “Accidental Strangulation While Playing with Hammock in Children”. A 12-year-old girl was taken to the hospital with a history of loss of consciousness. The girl was apparently standing and swinging on a hammock made of saree. She lost her balance, causing the saree to twist and become tightly wound around her neck. She was found unconscious and unresponsive by her mother, with her body suspended by the saree, her feet in contact with the ground, and her hands lying limply by her sides. Timely intervention and treatment saved the child. Therefore, the possibility of accidental hanging cannot be completely ruled out. 20. Another important aspect is that the nail clippings of the deceased had been taken, which is clearly referred to in the post-mortem report. Timely intervention and treatment saved the child. Therefore, the possibility of accidental hanging cannot be completely ruled out. 20. Another important aspect is that the nail clippings of the deceased had been taken, which is clearly referred to in the post-mortem report. Ext.P33 chemical report says that the nail clippings of the deceased on examination contained epithelial cells, particles of dirt and a fragment of blue colored synthetic fiber similar to those seen in MO.1 saree. There is a case for the prosecution that the nail mark on the nose of the accused was caused by the child with her nails during the struggle. However, no evidence has been brought in to substantiate the same. 21. As noticed earlier the prosecution relies on circumstantial evidence to prove the case. It is well settled that when evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should 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. 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. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Further, as held in Pradeep Kumar (Supra), it is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted. [See also Kali Ram v. State of Himachal Pradesh, (1973)2 SCC 808 )]. 22. The materials on record taken or read together, do not establish conclusively only one hypothesis that being the guilt of the accused. The presumption of innocence remains in favour of the accused unless the guilt is proved beyond all reasonable doubts against him. [See also Kali Ram v. State of Himachal Pradesh, (1973)2 SCC 808 )]. 22. The materials on record taken or read together, do not establish conclusively only one hypothesis that being the guilt of the accused. The presumption of innocence remains in favour of the accused unless the guilt is proved beyond all reasonable doubts against him. The trial court relied on 'the last scene theory', the subsequent conduct of the accused, the medical evidence in the case, the existence of injury, that is, a nail-mark on the nose of the accused and the recovery of MO.1 saree based on the disclosure statement alleged to have been given by the accused. It is true that nobody other than the accused was present at home. Merely because the accused expressed ignorance regarding the cause of death of his child, cannot be the sole ground to find him guilty of the offence alleged against him, in the facts and circumstances of the case. All the prosecution witnesses say that the accused was found wailing loudly. Some of them have a case that it was accidental death. It is true that the accused did not tell anybody that it was a case of accidental death. The medical evidence adduced in this case also does not unerringly point to the case of strangulation due to the absence of ligature mark on a major part of the neck of the deceased, which has not been satisfactorily explained. The nail-marks found on the nose of the accused has not been proved to have been caused by the deceased. Further, the recovery of MO.1 which is alleged to have been in pursuance of the disclosure statement given by the accused is also highly doubtful. It has come out in evidence that the mother of the accused had removed the saree which was tied as a cradle immediately after the incident. PW21 is supposed to have seized the saree based on the disclosure statement of the accused from a heap of clothes kept on a chair in the room of the house of the latter. However, the prosecution witnesses do not support the case that it was taken from a chair in the room. PW10, an attestor to Ext.P10 recovery mahazar deposed that it was seized from under the cot inside the house whereas PW11, the other attesting witness has no such case. However, the prosecution witnesses do not support the case that it was taken from a chair in the room. PW10, an attestor to Ext.P10 recovery mahazar deposed that it was seized from under the cot inside the house whereas PW11, the other attesting witness has no such case. According to PW11, the saree was taken from among the clothes kept inside the house. The evidence does not show that the accused after the incident had concealed the saree at some place which was known to him alone. If the evidence is to be believed, the saree was at a place which was visible to everybody. It was not concealed in a place which was known to the accused alone. Therefore, the seizure of MO.1 saree as alleged by the prosecution is also doubtful. The evidence on record is not satisfactory to even prove the first limb that the accused caused the death of his daughter by strangulation. The materials on record do bring out grave suspicion against the accused. However, it is well settled that suspicion, however strong, cannot take the place of proof. In these circumstances I find that the accused is entitled to the benefit of doubt and so the finding of the trial court is liable to be interfered with. In the result, the appeal is allowed, and the impugned judgment is set aside. The conviction and sentence imposed against the appellant by the trial court is set aside. The accused is acquitted under Section 235(1) Cr.P.C. He is set at liberty and his bail bond shall stand cancelled. Interlocutory applications, if any pending, shall stand closed.