V.G. Palshikar, J.
1. This appeal is directed against the judgment dated 22.4.89 passed by learned Add). Sessions Judge No. 1, Udaipur, in Sessions case No. 48 of 1984, convicting the accused Madan Lal of an offence Under Section 302 of the Indian Penal Code to suffer imprisonment for life.
2. The learned Counsel appearing on behalf of the accused attacked the order impugned on several grounds. It was submitted by her that the judgment of the learned Addl. Sessions Judge is unsustainable in law as it is based on surmises and conjectures, not supported or warranted by the evidence on record. According to the learned Counsel, the entire chain of circumstantial evidence was not proved and, therefore, conviction was not permissible in law. It was contended by the learned Counsel that even if the entire evidence as led by the prosecution is accepted, it is impossible to come to a conclusion that it was the accused alone who caused intentional homicidal death of deceased. The learned Counsel appearing on behalf of the accused heabvily relying upon the decision of the Supreme Court reported in : 1984CriLJ1738 (Shoorod Birdhichond Sorda v. State of Maharashtra), contended that the Supreme Court has, summarised the requirements which must be fulfilled for warranting or suspending convicting Under Section 302, in case of circumstantial evidence-
The following conditions must be fulfilled before a case agaainst an accused based on circumstantial evidence can be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should ' and not 'may be' established.
(2) 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.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and.
(5) there must be a chain of evidence so complete 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. Case law discussed, (para 152, 153).
A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction, (para 156).
3. Relying on the above conditions spelt out by the Supreme Court of India, it was canvassed before us that the circumstances do not fulfil those conditions. The chain of evidence is not so complete as not to leave any reasonable ground for the conclusion concistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The submission in nut-shell is that the prosecution must prove by circumstantial evidence that the act of killing 'must' have been done by the accused and not 'might' have been done by the accused. At the highest this case can be taken to mean that the murder might have been committed by the accusecd and, therefore, relying on this very judgment, the learned Counsel prayed for acquittal.
4. These submissions were opposed by the Public Prosecutor appearing on behalf of the State by staying that the entire evidence is duly corroborated and the chain of circumstantial evidence is complete, pointing out irresistably that the death has been caused, in all human probability, by the accused. The accused was last seen with the deceased who is the wife of the accused. The accused was proved to have been absconding from the next day morning and there is, therefore, no lacuna in the prosecution case, on the basis of which it can be said that benefit of doubt is liable to be given to the accused. He, therefore, requeted that the order be confirmed.
5. In order to appreciate the rival contentions, it would be necessary to summarise the evidence and re-appreciate the same as is necessary in an appeal agaisnt conviction.
6. In all 17 witnesses have been examined to complete the chain of circumstantial evidence, which according to the prosecution is so complete and unbreakable that the conviction has to be sustained.
7. P.W. 1 B.R. Arya proved the Panchnama of the dead body. P.W. 2 Ramesh Chandra identifies the dead body as that of the daughter of the witness. The witness is the father of the deceased. He also speaks of previous cruelty and ill-treatment by the accused to the deceased. To the same effect is the evidence of P.W. 3 Jeesukh Rarn, the grand-father of the deceased.
8. P.W. 4 Bhanwarlal proves the search warrant against the accused and P.W. 5 Dr. Manohar proves that the death was caused due to strangulation and thus, it was a case of homicidal death. P.W. 6 Shanker Lal lodged the FIR at the instnace of P.W. 7 Col. Annaiya. P.W. 8 Balbir Singh and P.W. 12 Mahavir were posted as Guards outside the Quarter of the accused where the dead body was found.
9. P.W. 9 Kusumlata, P.W. 10 Aditya, P.W. 11 S.K. Banerjee and P.W. 13 Shridharan are the withnesses who speak about the previous ill-treatment by the accused. They speak about the ill-treatment by the accused to the deceased on the day prior to the death.
10. P.W. 14 Krishnakant, P.W. 15 Murlimanohar and P.W. 16 G.B. Maharana are the neighbours who speak of prior cruelty. However, their evidence is pure hear-say and is of no assistance. P.W. 17 is Shyam Lal, the Investigating Officer.
11. Even If this evidence is completely accepted, the following points are proved-
(a) that the prior conduct of the accused with the deceased was far from satisfactory.
(b) that the accused had on earlier occasions ill-treated his wife (deceased), and.
(c) after the death of the deceased the accused was absconding.
12. The learned Sessions Judge having found these three points proved, thought it sufficient to record the conviction and accordingly has sentenced the accused to imprisonment for life.
13. The question which call for consideration in this appeal is, therefore, whether even if the above three points are proved, that proof is sufficient to warrant the conclusion that in all human probility the act has been done by the accused. In our opinion, such conclusion is not possible. A valid eircumstnace. to connect the accused to killing is the fact of his having been cited after he went back to the quarters with his wife by any witness. The prosecution has not proved that it was impossible for any one to enter the residential Quarters and the possibility of a stranger getting into the Quarters and committing murder cannot, therefore, be over-Rule d. The prosecution has also not established by any cogent evidewnce that the acused has or must have left only after death was caused. There is no evidence led by the prosecution to prove that after the accused took back his wife in the evening on the day prior to the death, he remained with the wife. There is no evidence that he, thereafter, left the wife. There is no evidence of any quarrel after the wife was taken back. The previous ill-treatment may give the motive. Opportunity was always there. The accused had the opportunity, the accused had the motive and, therefore, might have committed the murder. But the possibility of the accused being frustrated in the marital relationship with his wife, left the place in disgust and never returned. Acceptance of the entire evidence on record, there is possibility, one of accused having committed the murder and another the accused having been frustrated due to marital relationship and having been rebuked by others far ill-treatment to the wife, must have deserted her.
14. It is well settled that where on the evidence two possiblities are available or open one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The possibility of acused having been frustrated had walked away is one which is consistent with the innocence of the accused and if accepted the accused is entitled to be acquitted. Relying on the decision of the Supreme Court reported in AIR 1984 SC 1622, we are of the opinion that benefit, of doubt must go to the accused.
15. Accordingly, we accept the appeal, set aside the judgment and order of conviction, acquit the accused Madan Lal of the offence under Section 302 IPC and he is directed to be released immediately, unless he Is otherwise required for some offence by the police.