C. Nagappan, J.— Leave granted. This appeal is preferred against the judgment of the High Court of Judicature of Rajasthan at Jodhpur, in Kanhaiya Lal v. State Criminal Appeal No. 515 of 2004.
2. The appellant herein, Kanhaiya Lal, is Accused 2 in Sessions Trial No. 1 of 2004 on the file of the Additional District and Sessions Judge, Fast Track Court No. 1, Dungarpur, and he was tried for the alleged offences under Sections 302 and 201 IPC and on being found guilty was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs 1000 in default to undergo simple imprisonment for 6 months for the offence under Section 302 IPC and further sentenced to undergo 3 years' rigorous imprisonment and to pay a fine of Rs 500 in default to undergo simple imprisonment for 3 months for the offence under Section 201 IPC, and the sentences were ordered to run concurrently. Accused 1, Raman Lal was also tried along with Accused 2 Kanhaiya Lal for the alleged offence under Section 201 IPC and was acquitted of the said charge. Challenging the conviction and sentence, Accused 2 Kanhaiya Lal preferred the appeal in DB Criminal Appeal No. 515 of 2004 and the High Court by judgment dated 17-4-2012 Criminal Appeal No. 515 of 2004 dismissed the appeal. Challenging the same, the appellant Kanhaiya Lal has preferred the present appeal.
3. The case of the prosecution in a nutshell is as follows: PW 10, Smt Shantibai is the wife of deceased Kala. PW 3, Kama is the younger brother of Kala. Accused Kanhaiya Lal is the brother of PW 4, Hurma. They are all residents of Gesu ka Bagh Village. PW 4 Hurma returned home at 8.00 p.m on 31-8-2003. At about 9.00 p.m accused Kanhaiya Lal and Kala came to his house and demanded daru and PW 4 Hurma gave one bottle and received a sum of Rs 15 from the accused Kanhaiya Lal. Thereafter, both of them went away together. Kala did not return home in the night and in the morning PW 10, his wife Shantibai along with PW 11 Dhula went to the house of PW 4 Hurma and inquired about her husband. PW 4 Hurma told them about Kala visiting his house with Kanhaiya Lal the previous night and their returning together from his house. PW 10 Shanti Bai and PW 11 Dhula went to the house of the accused Kanhaiya Lal and he was not found there.
4. PW 10 Shantibai lodged a report at the police station about the missing (sic status) of her husband. The villagers found muffler, shoes and tobacco pouch floating in the well of accused Kanhaiya Lal. PW 3 Kama lodged Ext. P-10, written report before Police Station Bichhiwara. Police took out the body of Kala from the well and a case came to be registered in Ext. P-10 FIR No. 230 of 2003 for the alleged offences under Sections 302 and 201 IPC. PW 12, Fateh Singh Chauhan took up the investigation. Ext. P-11 is the spot map. Ext. P-13 is the panchnama. Ext. P-14 is the seizure memo of shoes, muffler and tobacco pouch.
5. PW 1, Dr Rajesh Sharma along with Dr Kanti Lal conducted the post-mortem and found the following injuries:
“External injuries:
1. Abrasion 5 cm × 2 cm on the left side of the neck.
2. Bruise 3 cm × 2 cm on the parietal aspect of the neck in the right side and all these injuries were ante-mortem.
On the internal examination he found the fracture of hyoid bone anteriorly.”
They expressed opinion that the cause of death of Mr Kala is due to neurogenic shock as well as haemorrhagic shock and the time of death was from 36 to 48 hours prior to the post-mortem. Ext. P-10 is the post-mortem report issued by them.
6. The accused were arrested and on completion of the investigation, final report came to be filed. In order to prove the case, the prosecution examined 15 witnesses and marked 26 documents. No witness was examined on the side of the defence. The accused were questioned under Section 313 CrPC and their answers were recorded. The trial court found Accused 2 Kanhaiya Lal guilty of the charges under Sections 302 and 201 IPC and sentenced him as narrated above. The trial court found Accused 1 Raman Lal not guilty of the charge and acquitted him. Accused 2 Kanhaiya Lal preferred the appeal and the High Court dismissed the appeal by confirming the conviction and sentence imposed on him. Aggrieved by the same he has preferred the present appeal.
7. We heard the learned counsel appearing on behalf of the appellant and the learned counsel appearing for the respondent State.
8. The prosecution case is that the appellant-accused Kanhaiya Lal committed the murder of Kala by strangulation and threw the body in the well. Nobody witnessed the occurrence and the case rests on circumstantial evidence. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
9. The prosecution in order to prove its case mainly relied on the following circumstances:
9.1 (i) The death of Kala was homicidal in nature;
9.2 (ii) Kala was last seen with accused Kanhaiya Lal when both of them visited the house of PW 4 Hurma on the night of the occurrence; and
9.3 (iii) Kala objected to the illicit intimacy of accused Kanhaiya Lal with the wife of his younger brother PW 3 Kama and that led to the occurrence.
10. The autopsy on the body of Kala was conducted by two doctors and one of them, namely, Dr Rajesh Sharma has been examined as PW 1. According to him two external injuries were found on the neck, namely, an abrasion 5 cm × 2 cm on the left side of the neck and a bruise 3 cm × 2 cm on the parietal aspect of the neck in the right side and on its internal examination he noticed the fracture of vertebrae C3 and C4 and the fracture of hyoid bone anteriorly and all the injuries were ante-mortem. It is opined that the cause of death of Kala is due to neurogenic shock as well as haemorrhagic shock. Ext. 10 is the post-mortem report. Accepting the medical evidence it is clear that Kala suffered a homicidal death.
11. The primary, if not the solitary basis of the conviction of the appellant is on the theory of last seen, as the deceased Kala along with accused Kanhaiya Lal visited the house of PW 4 Hurma at 9.00 p.m on 31-8-2003. PW 4 Hurma did not fully support the prosecution case and was declared hostile. In his examination-in-chief he has stated that on the occurrence night he returned home at 8.00 p.m and at about 9.00 p.m accused Kanhaiya Lal and Kala came to his house and demanded daru and he gave one bottle and received a sum of Rs 15 from accused Kanhaiya Lal and they returned together and the next day morning the wife of Kala, PW 10 Shantibai came and inquired from him about her husband Kala and he told her about the visit of Kala with accused Kanhaiya Lal to his house the previous night. It is the testimony of PW 10 Shantibai that her husband Kala did not return home on the night of the occurrence and in the morning she went to the house of PW 4 Hurma and inquired and came to know from him about the visit of her husband along with accused Kanhaiya Lal to his house in the night. Though PW 4 Hurma was treated as a hostile witness, the above testimony of him is corroborated by the testimony of PW 10 Shantibai.
12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.
13. The alleged illicit intimacy of the accused Kanhaiya Lal with Kamli, wife of PW 3 Kama, is said to be the cause for the occurrence. According to PW 3, his wife Kamli left him four years back and is residing with her parents in Sanchiya Village. PW 10 Shantibai also in her testimony has confirmed that Kamli has been living in Village Sanchiya for 4-5 years. It reveals that they were not living together for a number of years. It is the further testimony of PW 3 Kama that he has never seen Kamli and accused Kanhaiya Lal together and no person in the village told him so and it is only his brother Kala who informed him about the illicit intimacy between them. In this context it is relevant to point out that wife of Kala, namely, PW 10 Shantibai in her testimony has not alleged any illicit relationship between Kamli and accused Kanhaiya Lal. In such circumstances it is doubtful as to whether there was any illicit intimacy between them as alleged.
14. Further, PW 3 Kama and PW 10 Shantibai have categorically stated in their testimonies that there was no dispute between deceased Kala and accused Kanhaiya Lal and they had cordial relationship. Thus the motive alleged by the prosecution that Kala, as elder of the family dissuaded accused Kanhaiya Lal to sever his illicit relationship with his sister-in-law, Kamli had triggered the murder, is not established.
15. The theory of last seen—the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan (2010) 15 SCC 588.
16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment Criminal Appeal No. 515 of 2004 and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise.