Bhuvanachandran Nair v. State of Kerala

Crl. Appeal No. 41/2019 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 ## CRL.A NO. 41 OF 2019 CRIME NO.142/2016 OF NARUVAMOODU POLICE STATION, THIRUVANANTHAPURAM AGAINST THE JUDGMENT DATED 12.09.2018 IN SC 1278/2016 OF ADDITIONAL SESSIONS COURT - VI, THIRUVANANTHAPURAM CP 55/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, NEYYATTINKARA APPELLANT/ACCUSED: BHUVANACHANDRAN NAIR, S/O. RAMAKRISHNA PILLAI, C. NO. 2986, CENTRAL PRISON & CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM, AND RESIDED AT MUKKALAMPATTU VEEDU, AYANIMOODU, PALLICHAL, PALLICHAL VILLAGE. BY ADV ANUROOPA JAYADEVAN(K/495/1995) STATE BRIEF ## RESPONDENT/COMPLAINANT: 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 THE SUB INSPECTOR OF POLICE, NARUVAMOODU POLICE STATION. SRI.ALEX M.THOMBRA, SR. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2023, THE COURT ON 09.11.2023, DELIVERED THE FOLLOWING: Crl. Appeal No. 41/2019 : 2 : ## **P.B. SURESH KUMAR & JOHNSON JOHN, JJ.** --------------------------------------------------------Crl. Appeal No. 41 of 2019 --------------------------------------------------------Dated this the 9[th] day of November, 2023. ## **JUDGMENT** Johnson John, J **.** The appellant, who is the sole accused in S.C. No. 1278 of 2016 on the file of Additional Sessions Judge-VI, Thiruvananthapuram, has filed this appeal under Section 374(2) of Cr.P.C., through the Superintendent of Central Prison and Correctional Home, Thiruvananthapuram, challenging the conviction entered and the sentence passed against him for an offence punishable under Section 302 of IPC. 2. The prosecution case, as per the final report, is that the accused, because of his previous enmity towards his son, who forced him to go out of the house after a quarrel, returned at about 1.15 a.m on 24.02.2016 armed with a bottle of petrol and lighter, and while the deceased was sleeping inside the room in the house, the accused poured petrol over the body of the deceased through the window and set fire and the victim, who sustained serious injuries, succumbed to death at 18 hours on the same day while undergoing treatment in the Medical College Hospital, Thiruvananthapuram. The accused is thereby alleged to have Crl. Appeal No. 41/2019 : 3 : committed an offence punishable under Section 302 of IPC. 3. Exhibit P12 FIR was registered under Section 174 Cr.P.C on 25.02.2016 on the basis of Exhibit P1 First Information Statement of PW1 recorded by PW20 Sub Inspector of Police, Naruvamoodu Police Station. 4. After the completion of the investigation, final report was filed by PW23, Inspector of Police, Neyyattinkara and on submission of the final report, the case was taken on file as S.C. No. 1278 of 2016. 5. When the accused appeared before court, he was furnished with copies of all the prosecution records and after hearing both sides, the charge was framed against the accused for the offence punishable under Section 302 IPC. When the charge was read over and explained to the accused on 02.05.2018, he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 23 and marked Mos 1 to 7 to prove the charge against the accused. 6. After the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C regarding the incriminating circumstances and the accused denied those circumstances and maintained that he is innocent and falsely implicated in this case. 7. Since the trial court found that it is not a fit case to acquit Crl. Appeal No. 41/2019 : 4 : the accused under Section 232 Cr.P.C., the accused was called upon to enter on his defence. From the side of the accused, Exhibits D1 and D2 were marked. But, no witness was examined on the side of the accused. 8. After considering the oral and documentary evidence on record and after hearing both sides, the learned Additional Sessions Judge VI, Thiruvananthapuram, by the impugned judgment dated 12.09.2018, convicted the accused and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.2,00,000/(Rupees two lakhs only) for the offence under Section 302 IPC and in default of payment of fine, to undergo rigorous imprisonment for two years. It is also ordered that the fine amount, if realised, shall be paid to the dependents of the deceased under Section 357(1) Cr.P.C. The trial court has also recommended to the District Legal Service Authority to consider victim compensation to the mother of the deceased. 9. The point that arises for consideration in this appeal is whether the conviction entered and the sentence imposed on the accused by the trial court are sustainable or not. 10. Heard Smt. Anuroopa Jayadevan, the State Brief appearing for the appellant and Sri. Alex M. Thombra, the learned Public Prosecutor. Crl. Appeal No. 41/2019 : 5 : 11. The main arguments advanced on behalf of the appellant/accused are that (i) the available evidence in this case would clearly establish that it is a case of suicide and not homicide; (ii) the evidence of PW1 does not tally with Exhibit P1 First Information Statement and that there is clear indication in Exhibit P1 itself that it is a case of suicide; (iii) the alleged recovery under Section 27 of the Evidence Act is not at all reliable and there was no proper investigation in this case. It is also argued that there is no witness to the actual occurrence and the court below relied upon assumptions and presumptions for finding the accused guilty of the offence charged against him. 12. PW1 is the son-in-law of the accused and the deceased is the brother of his wife. He deposed before court that on receiving information about the incident at about 1.30 am., on 24.02.2016, he reached the house of the deceased along with two friends and at that time, the persons residing nearby are splashing water to the room of the deceased and the police officials who came there kicked open the door and then the deceased Rajesh Kumar was lying on the floor with burn injuries all over the body. PW1 would say that he also accompanied the victim to the hospital in the ambulance and when he enquired about the incident to the deceased, he indicated that an inmate in the house is responsible. PW1 further Crl. Appeal No. 41/2019 : 6 : deposed that on 23.02.2016, the deceased directed the accused to go away from the house and at that time, the accused after reaching near the gate told the deceased that he will return within one hour to show him. 13. The evidence of PW1 before court further shows that it was the deceased who told the witness about the incident that occurred on the night of 23.02.2016, when the witness reached there on getting information about the quarrel between the accused and the deceased. According to PW1, himself along with his wife and son went to the house of the deceased and at that time, the deceased and his mother were present and the accused was not there. According to PW1, the deceased told him about the quarrel between the accused and his mother and that when the deceased intervened in the quarrel, there occurred a scuffle between the deceased and the accused and thereupon, the deceased directed the accused to go away from the house. 14. A perusal of Exhibit P1 First Information Statement would show that PW1 has not stated anything in his statement to the police regarding the quarrel between the accused and his wife or scuffle between the accused and the deceased alleged to have occurred on the previous night. 15. The learned counsel for the appellant pointed out that it Crl. Appeal No. 41/2019 : 7 : is clearly stated in Exhibit P1 that the deceased is a drunkard and previously also, there occurred similar incidents of fire in the room of the deceased. In Exhibit P1, it is stated that the informant is not aware as to how the victim sustained burn injuries and that the informant is not suspecting anybody else in the death of the deceased. 16. In cross examination, PW1 admitted that prior to his marriage, he has undergone imprisonment for sexually abusing the daughter of the accused and subsequently he married the daughter of the accused; but, even after the marriage, there were problems between himself and the family members of his wife. He further admitted that after the sexual assault case against him, there was enmity between himself and the accused and his son Rajesh, who is the deceased herein. 17. PW1 would say that after the marriage, himself and the deceased were not on good terms. In another part of the cross examination, PW1 stated that when he reached the place of occurrence, the wife of the accused was there on the back side of the house and apart from the wife of the accused, three or four other persons were also there. PW1 further admitted that when he reached the place of occurrence, the police officials were there. PW1 denied that he had told the police as per Exhibit D1. According Crl. Appeal No. 41/2019 : 8 : to PW1, he has not stated to the police that previously also, there was fire occurrence in the room of his brother-in-law. According to PW1, it is not known to him whether his brother in law Rajesh has previously attempted to commit suicide. 18. When an accused is alleged to have committed murder, the question to be considered at the first stage is whether the accused has done an act, by doing which he has caused the death of the deceased. In **State of Andra Pradesh v. Rayavarpu Punnayya {AIR 1977 SC 45}** it was held as follows:- “ ... The question to be considered at first stage is whether the accused has done an act by doing which he has caused the death of another person. Proof of such causal connection between the act of the accused and the death leads to the 2nd stage for consideration whether that act of the accused amounts to “culpable homicide” as defined in section 299. If the answer of this question is prima facie found in the affirmative the stage is reached for considering the operation of section 300, I.P.C. This is the stage at which the Court should determine whether the acts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder punishable under the first or the 2[nd] part of section 304, depending respectively on whether the 2[nd] or the 3rd clause of section 299 is applicable. If the question is found to be positive, but comes within any of the exceptions enumerated in section 300, the offence would still be culpable homicide not amounting to murder punishable under the first part of section 304. Crl. Appeal No. 41/2019 : 9 : But sometimes the facts are so intertwined and the 2[nd] and 3[rd] stages are so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the 2[nd] and the 3[rd] stages.” 19. In this case, the prosecution is relying upon circumstantial evidence and the alleged recovery of MOs 3 and 4 on the basis of the confession statement of the accused. PW2, who is the wife of the accused and the mother of the deceased, has deposed that her son sustained burn injuries at 1.15 a.m., on 24.02.2016 and that when she saw fire and smoke emanating from the room of her son, she called her neighbour Girijakumari and also poured water into the room through the window. Thereafter, her son-in-law along with his friends and police pushed open the door and took the injured to the Medical College Hospital in an ambulance. 20. PW2 further deposed that on the previous day, at about 8 p.m., there occurred a scuffle between the accused and her son, and her son told his father to get out of the house. Then the accused after reaching near the gate told the victim that he will show him within an hour. PW2 also deposed that at about 9 p.m., on the previous day, her daughter along with PW1 came to their house and discussed the quarrel between the deceased and the accused. PW2 identified Mos 1 and 2 as the dhoti and shirt worn by Crl. Appeal No. 41/2019 : 10 : the accused when he left the house on the previous night. 21.The evidence of PW2 further shows that the accused reached the house on the next day morning and at that time there was change in his facial expression. The evidence of PW2 shows that no bottle or lighter was recovered from the room of her son and that subsequently after the death of her son, a petrol bottle and a lighter were recovered and the same were identified as Mos 3 and 4. 22. In cross examination, PW2 admitted that the marriage of her daughter was conducted after selling a property of the accused and that the accused used to look after their family matters and that it was the accused who met the expenses in connection with the marriage of her daughter Rekha during February, 2014. The evidence of PW2 shows that their house is situated in an open place and compound wall is not there on all the four sides. 23. In cross examination, PW2 admitted that PW1 had sexually assaulted her daughter while her daughter was a minor and in that connection, the accused and the deceased were in enmical terms with PW1. PW2 also stated that her son used to close the windows before sleeping; but she is not aware as to whether her son has closed the windows on 24.02.2016. Crl. Appeal No. 41/2019 : 11 : 24. The evidence of PW2 in cross examination shows that the accused used to work as a Security in a house and that he used to return after work at about 9-10 am and according to PW2, on the next day of occurrence, she saw the accused at about 8.30 a.m., and at that time she has not discussed anything with the accused. 25. PW3 is a neighbour of the accused and her evidence shows that on the date of occurrence, in between 12.30 and 1 a.m., PW2 Santha Kumari reached her house and informed her about the incident. The evidence of PW3 shows that she informed the wife of PW1 about the incident and subsequently, PW1 and his friends took the victim in an ambulance to the hospital. PW3 also deposed that on the previous day of the occurrence, there was a quarrel in the house of the accused between the accused and his wife and she also saw an injury on the head of PW2 Santha Kumari and at that time, the accused was holding a chopper in his hand. 26. PW3 would say that her son took possession of the chopper from the accused and also settled the matter after discussion. Even though, PW3 stated in chief examination that the accused left the place after saying that he will show within an hour, her evidence in cross examination shows that she has not stated the said fact to the police. Crl. Appeal No. 41/2019 : 12 : 27. PW4 is another witness who reached the place of occurrence on information and he would say that himself and PW1 broke open the door and took the victim to the hospital in an ambulance. The evidence of PW4 shows that on the previous day, at about 7 p.m., he met the deceased Rajesh while they were serving water to the devotees in connection with attukal pongala. 28. In cross examination, PW4 admitted that he told the police that on the previous day, at about 7 p.m., himself and Rajesh returned to their house after consuming liquor. He would also say that he used to consume liquor on special occasions. 29. PW5 deposed that the deceased Rajesh was his friend and that the deceased died due to burn injuries on the next day of attukal pongala. The evidence of PW5 further shows that he saw the accused wandering through Ayanimoodu junction at about 11 p.m., on the day of pongala. 30. PW6 deposed that he was working as a salesman in a petrol pump at Pallichal during 2016 and on the day of attukal pongala, during February, 2016, he was on duty from 6.30 p.m, till 6.30 am. on the next day. On the day of pongala, at about 11 p.m., the accused reached the petrol pump and purchased one litre of petrol in a plastic bottle by saying that his vehicle was lying on the Crl. Appeal No. 41/2019 : 13 : way. In cross examination, PW6 stated that it was 5 to 8 days after the death of Rajesh, he was summoned to the police station and there he saw the accused. 31. PW6 stated in cross examination that the police had not told him about the camera visuals of the accused and that the staff in the petrol pump told him that they saw the visuals of the accused purchasing petrol, in the camera. PW6 admitted that he is not having any identity card to show that he is working in the petrol pump and according to him, he started working in the petrol pump only one month prior to the incident and there is no document to show that he was working in the petrol pump. 32. PW7 is the wife of PW1 and her evidence shows that the deceased is her brother and the accused is her father. According to PW7, on 23.02.2016, she got information that her father and mother quarreled with each other and her mother sustained injuries on her head. On getting information about the said incident from one Girijakumari, herself and her husband reached the house of her parents and at that time, her mother and brother were there. 33. According to PW7, her brother told her that the father left the house after saying that he will show him within an hour. According to PW7, she returned to her house at 9.30 p.m., and by that time, her brother had gone to sleep. She would say that there Crl. Appeal No. 41/2019 : 14 : is window on the southern and western sides of her brother’s room and that her brother used to keep the windows open during night. Thereafter, at about 1 am., on 24.02.2016, she came to know that her brother sustained burn injury and at that time, her husband went to the place of occurrence and later, she came to know about the death of her brother. 34. PW7 further deposed that when she saw her father after the incident, there was change in the facial expression of her father. In cross examination, PW7 deposed that on the next day of occurrence, she saw MO3 petrol bottle and MO4 lighter lying near to the window outside the house. PW7 further admitted in cross examination that MOs 3 and 4 were there at the time when the dead body of her brother was brought to the house. 35. The learned counsel for the appellant pointed out that the evidence of PW7 in cross examination page Nos. 17 and 18 would clearly show that the alleged recovery of MOs 3 and 4 by PW23 Investigating Officer on 29.02.2016 on the basis of Exhibit P3(a) confession statement of the accused is not at all reliable. In this connection, it is pertinent to note that PWs 1 and 2 also deposed that they saw MO3 bottle and MO4 lighter near the house after the death of Rajesh. Crl. Appeal No. 41/2019 : 15 : 36. Another aspect that requires consideration is the scene plans prepared by PW16 Village Officer. The evidence of PW16 shows that he prepared Exhibit P8 scene plan on 21.04.2016 and Exhibit P9 scene plan on 07.07.2018. PW16 would say that in Exhibit P8 scene plan, it is not stated that the place of occurrence is a house and he further admitted that the place of occurrence is not specifically marked in Exhibit P8 scene plan. 37. According to PW16, subsequently as directed by the court, he prepared Exhibit P9 scene plan on 07.07.2018 and in Exhibit P9, it is stated that the place of occurrence is a house facing east. In cross examination, PW16 admitted that he did not enter into the house for the purpose of preparing Exhibit P9 and he further admitted that the property in front of the gate is an open space. PW16 admitted that since he has not entered into the house, he was not able to see how many rooms are there for the said house. 38 **.** PW21 is the owner of the house where the incident occurred and according to PW21, he rented out the house to the deceased Rajesh Kumar and the rent agreement dated 11.01.2016 is marked as Exhibit P14. In cross examination, PW21 stated that the said house has four rooms including the kitchen and that now there is compound wall on three sides. His evidence further shows Crl. Appeal No. 41/2019 : 16 : that the compound wall on two sides were constructed after the occurrence. 39. The learned counsel for the appellant argued that the accused in this case is falsely implicated on the basis of the false statement given by PW1, who was in enmity with the deceased Rajesh Kumar and the accused. It is also pointed out that admittedly, there was a case against PW1 for sexually abusing the minor daughter of the accused and that even though PW1 subsequently married the daughter of the accused, both the families continued a strained relationship. 40. It is also pointed out that if the injured had mentioned anything regarding the assailant to PW1, while on their way to hospital, the said aspect would have been mentioned by PW1 in his First Information Statement. 41. In **Dasu and others, Appellant v. State of Maharashtra, Respondent (1985 Crl.L.J.1933),** it was held that:- “In order to see whether there is a contradiction by omission it is necessary to find out whether the two statements cannot stand together. It is also necessary to see whether the statement which the witness has made in the witness-box should have been made by him while reporting the matter soon after the incident. If the Crl. Appeal No. 41/2019 : 17 : two statements made by the witness cannot stand together and the statements in the court is such that the witness would necessarily have made at the time of his earlier statement, then alone omission thereof can be considered to be a contradiction.” 42. In cross examination, PW23 stated that he recorded the statement of PW1 on 01.03.2016 and that neither PW1 nor any other witness has stated to him that the accused told his son that he will show him within one hour. In this case, the alleged motive is that there occurred a scuffle between the accused and his son, when his son questioned the quarrel between the accused and his mother and thereafter, the son of the accused directed the accused to go away from the house and at that time after reaching near the gate of their house, the accused made a threat that he will show his son within an hour. But, the evidence of PW23 Investigating Officer in cross examination page No.28 clearly shows that none of the witnesses has made such a statement to him. 43. Another incriminating evidence relied upon by the prosecution is the alleged recovery of MOs 3 and 4 on the basis of Exhibit P3(a) extract of the confession statement of the accused. PW23 deposed that he took charge of the investigation of this case on 29.02.2016 and arrested the accused on the same day and on the basis of the information received from the accused that the bottle used for purchasing petrol and lighter were concealed near to Crl. Appeal No. 41/2019 : 18 : his house, PW23 along with the accused proceeded to the place of occurrence and as pointed out by the accused, he recovered MOs 3 and 4 from the shrubs in the property of one Meenakshi on the southern side of the house of the accused. PW23 also identified the plastic bottle and lighter as MO3 and 4. 44. PW20, the Sub Inspector of Police, Naruvamoodu Police Station, who conducted the initial investigation after registering FIR, deposed that he conducted investigation of this case till 29.02.2016 and he has not arrested the accused. In cross examination, PW20 admitted that at about 9 a.m., on 29.02.2016, the accused reached the police station and informed him about his version of the incident. In cross examination, PW20 also stated that CW10 Radhakrishnan Nair has given statement to him that the victim may have committed suicide. 45. The specific case of PW23 is that he effected recovery of MOs 3 and 4 only at 5 p.m., on 29.02.2016. As already stated, the evidence of PWs 1, 2 and 7 clearly indicates the presence of MOs 3 and 4 near the window of the house on the next day of the occurrence. Crl. Appeal No. 41/2019 : 19 : 46. In this connection, the evidence of PW8 is also relevant. In chief examination, PW8 identified his signature in Exhibit P2 scene mahazar prepared on 26.02.2016. In cross examination, PW8 deposed that he signed Exhibit P2 mahazar while he was in the sit out of the house of the deceased and that he was not summoned to the said place before preparing the mahazar. His evidence shows that before he reached the place of occurrence, the police had started preparing the mahazar and that when he reached there, the room was kept open and he was not aware as to who opened the room or whether any items were removed from the room before he reached there. 47. PWs9 and 13 are the witnesses examined from the side of the prosecution to prove the alleged recovery of MOs 3 and 4 by the Investigating Officer on the basis of Exhibit P3(a) confession statement of the accused. PW9 identified his signature in Exhibit P3 mahazar and stated that he witnessed the recovery of MOs 3 and 4. But, PW9 stated in cross examination that MOs 3 and 4 were placed above the wall when he saw the same and he also stated that he is not aware as to who kept the same there. 48. The evidence of PW9 in cross examination further shows that there is a house inside the said compound wall. But he is not aware as to who is residing there. In another part of the cross Crl. Appeal No. 41/2019 : 20 : examination, PW9 categorically deposed that he is not aware as to who kept MO3 bottle and MO4 lighter there and as to who removed the same from there. PW9 has also not noticed any identification marks in the said bottle or lighter. 49. PW13 deposed in chief examination that he witnessed the recovery of MO3 bottle and MO4 lighter from the shrubs near to the house of the accused and the witness also identified his signature in Exhibit P3 mahazar and MOs 3 and 4 before court. In cross examination, PW13 stated that the place from where the items were recovered is an open place at a distance of 50 metres south from the house of the deceased. PW13 further deposed that when he reached there, he saw the accused and the police and at that time, he did not see the lighter and bottle. 50. It is well settled that a fact discovered within the meaning of Section 27 of the Evidence Act must refer to a material fact to which the information directly relates and in order to render the information admissible, the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. 51. In this case, the evidence of PWs 1, 2 and 7 indicates the presence of MOs 3 and 4 in the courtyard of the house of the Crl. Appeal No. 41/2019 : 21 : deceased on the next day of occurrence and in the said circumstances, we find force in the argument of the learned counsel for the appellant that the fact which had already been discovered cannot be rediscovered by taking recourse to Section 27 of the Evidence Act. 52. In the above circumstances, we find that the alleged discovery of fact relied on by the prosecution is a weak kind of evidence and cannot be relied upon to pass a conviction in a serious offence of murder. In this case, the prosecution is relying upon the circumstances narrated by PWs1, 2, 3 and 7 to argue that their evidence regarding the motive and quarrel between the accused and the deceased on the previous night will prove beyond reasonable doubt that it is the accused who committed the murder. **53.** In **Padala Veera Reddy Vs. State of A.P. and Ors. (AIR 1990 SC 79),** the Hon'ble Supreme Court has laid down that:- "When a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; Crl. Appeal No. 41/2019 : 22 : (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." **54.** The Hon'ble Supreme Court of India in **"Hanumant Govind Nargundkar and Anr. Vs. State of Madhya Pradesh"** , **reported in AIR 1952 SC 343** , has observed that:- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.” **55.** In **Mulakh Raj v. Satish Kumar (1992) 3 S.C.C. 43** , the Hon’ble Supreme Court held as follows:- “Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances Crl. Appeal No. 41/2019 : 23 : connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The Court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and the sentence would follow.” **56.** On a careful re-appreciation of the evidence of PWs 1, 2, 3 and 7, we find that the prosecution has not fully established the circumstances from which the conclusion of guilt is to be drawn. In this case, it is not possible to arrive at a conclusion that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 57. PW15 was the doctor who examined the victim at the Medical College Hospital, Thiruvananthapuram on 24.02.2016 and according to him, the patient was not capable of giving valid Crl. Appeal No. 41/2019 : 24 : testimony. In cross examination, PW15 also clarified that the patient was not oriented regarding the time, place and person. PW14 conducted the postmortem examination of the deceased on 25.02.2016 in the Department of Forensic at Medical College Hospital, Thiruvananthapuram and his opinion as to the cause of death is that the death was due to the burns affecting the whole body surface. 58. PW14 identified his signature in Exhibit P7 postmortem certificate and also stated that the antemortem injuries noted are possible in a petrol burning. In cross examination when it is suggested to PW14 that burning can be possible with kerosene, if the diseased person himself poured kerosene or petrol and set fire, these injuries can be caused, the witness stated that he could not comment because the burn pattern will be similar. PW14 further admitted that 100% burns was there in the body i.e., from head to leg. 59. The learned counsel for the appellant argued that the prosecution case is that while splashing petrol through window, the deceased was lying in bed and in such circumstances, there is no chance to cause 100% burns, if he was lying in a prone position, supine position or turning towards either side, and that in the normal circumstances, 100% burn injury is possible only if the Crl. Appeal No. 41/2019 : 25 : deceased himself has poured petrol all over his body before setting fire. 60. In this case, the main question to be considered is whether the accused had done the act which had caused the death of the deceased and admittedly, there is no direct evidence in this case and we have already found that the prosecution has not succeeded in proving the alleged circumstances beyond reasonable doubt. 61. As noticed earlier, the evidence of PW14, the doctor who conducted the postmortem examination as to the cause of death is that the death was due to the burns which affected the whole body surface and we find force in the argument advanced by the learned counsel for the appellant that in the facts and circumstances of this case, the possibility of the deceased committing suicide by setting fire to himself cannot be ruled out. Therefore, we find that the prosecution has not adduced sufficient evidence to unequivocally establish a case of homicide. It is well settled that the paramount consideration of the court must be to ensure that miscarriage of justice is prevented and that if two views are possible based on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence of the accused, the view which is favourable to the accused should normally be adopted. Crl. Appeal No. 41/2019 : 26 : ## 62. In **Ashish Batham v. State AIR 2002 SC 3206,** it was held that mere suspicion, however strong or probable it may be, is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. In the said case it was also held that there is a long mental distance between may be true and must be true and this basic and golden rule only helps to maintain the vital distinction between conjectures and sure conclusions to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. In **Jagga Singh** **v. State AIR 1995 SC 135** it was held that when the evidence adduced did not conclusively lead to the guilt of the accused and only pointed needle of suspicion towards the accused and nothing more, he cannot be convicted of murder because suspicion is no substitute for proof in criminal trial. 63. In this case, the prosecution has not succeeded in adducing reliable evidence to establish the alleged circumstances and therefore, we find that the accused is Crl. Appeal No. 41/2019 : 27 : entitled for the benefit of reasonable doubt and that the prosecution has not succeeded in proving the offence charged against the accused. The point is answered accordingly. Therefore, the impugned judgment requires to be interfered with and we do so. 64. In the result, this appeal is allowed. The conviction and the sentence passed by the trial court against the accused for the offence punishable under Section 302 of IPC as per the impugned judgment is set aside and the accused is acquitted under Section 235(1) Cr.P.C. His bail bond shall stand cancelled and he shall be set at liberty forthwith, if not required in any other cases. Registry shall send a copy of this judgment to the Superintendent of jail concerned where the appellant is now detained. Interlocutory applications, if any pending, shall stand closed. sd/- **P.B. SURESH KUMAR, JUDGE.** sd/- **JOHNSON JOHN, JUDGE.** Rv