JUDGMENT
Joseph Francis J.,
This appeal is filed by the State against the judgment dated 23.8.2007 in S.C No. 2058 of 2004 on the file of the Additional Sessions Court, Fast Tract Court, (Adhoc) No. IV, Thiruvananthapuram acquitting the accused under Section 235 of the Code of Criminal Procedure for the offences charged against her under Sections 302 and 201 of the Indian Penal Code (in short ‘the I.P.C’).
2. The prosecution case is briefly as follows. The accused is the wife of deceased Brij Kishore Jaiswar I.A.S, who was the Secretary to P & A.R.D, Kerala Government. They were residing together as husband and wife in the house T.C No. 36/403, Meera House, Palkulangara, Pettah village. Their children, CW 22 and CW 24 were residing at Delhi. The accused was conducting a churidar shop by name Mohini Churidars with the investment of her husband, deceased Brij Kishore Jaiswar in a shop room at Attukal Shopping Complex. CWs 7, 8 and 9 were the employees of that churidar shop and CW29 (PW17) was previously working as a tailor in that shop. Thereafter CW29 started another tailoring shop in that Shopping Complex. While so some illegal intimacy arose between the accused and PW17, Ravi Mohanan Nair. Though at first they succeeded in hiding their illicit relationship from deceased Jaiswar, subsequently he got information regarding their illegal intimacy and thereafter on convincing the same, deceased Jaiswar warned the accused not to continue the illegal intimacy with CW29 and demanded her to return his investment in the shop if she further continued the illegal relationship.
3. They used to pick up quarrel in that matter and the deceased started manhandling the accused. As the accused could not continue her illegal relationship and she had to face financial difficulty if her husband withdrew the investment in the churidar shop, she decided to do away with her husband secretly and to make it appear it as a suicide. While so, on 30.9.1995 deceased Jaiswar returned from Delhi after his official tour and on that day the deceased picked up quarrel with the accused and demanded her to return his investment in the shop. Then the accused promised to return the amount withdrawing the amount from her bank account. On 30.9.1995 when the deceased and the accused were returning together to the house in their car at 8.30 P.M, she persuaded her husband (deceased) to purchase liquor from the liquor shop in which CW16 was working as a salesman. He bought two quarter bottles of Diplomat whisky and they reached their house Meera Bhavan. Thereafter the gate and the door of the house were kept closed. The accused supplied liquor to her husband deceased Jaiswar. The deceased again insisted her to return his investment in the business and in order to pacify him and not to provoke him further she handed over a cheque for Rs. 40,000/- drawn on the account maintained by her with the State Bank of Travancore, K.S.R.T.C, Fort Branch.
4. The deceased was not satisfied with the same and so he telephoned to his mother-in-law at Delhi CW26 and abused her. The accused got angry and she waited till the deceased was completely inebriated. While deceased Jaiswar was in an inebriated condition and was leaning in the settee, the accused at about 12 to 12.30 night on 30.9.1995 came from behind with a paijama and with the intention to cause his death, twisted the paijama on his neck and pulled. At that time, he got up and when he resisted, the accused pulled him down. His head and body hit on the wall and floor and he sustained injury. While the deceased fell down the accused by using her right hand smothered him and caused his death and in order to make it appear as a suicide she pulled the dead body near to the settee and tied one end of the paijama around the neck of the deceased and other end of the paijama to the arm of the settee. Thereafter she opened the door of the house and also the gate and went to the house of the neighbour CW1 and made hue and cry stating that Jaiswar committed suicide. She attempted to convince the neighbours that her husband committed suicide. She also telephoned to the City Police Control Room stating that Jaiswar committed suicide. On getting information CW46, Sub Inspector of Police, Vanchiyoor reached there and she gave the statement to him that her husband Jaiswar committed suicide and the F.I.R was registered under Section 174 of the Code of Criminal Procedure. Thereafter on conducting investigation the charge sheet was filed for the offences under Sections 302 and 201 of ‘the I.P.C’ against the accused.
5. Before the Additional Sessions Court, on the prosecution side Pws 1 to 31 were examined and Exts.P1 to 35 were marked and Mos 1 to 9 were identified. On the defence side Dws 1 to 3 were examined and Exts.D1 to 7 were marked. The learned Additional Sessions Judge on considering the evidence on record found that the prosecution has not succeeded in establishing its case against the accused beyond reasonable doubt and the accused was found not guilty of the offence under Sections 302 and 201 of ‘the I.P.C’ and she was acquitted under Section 235 of the Code of Criminal Procedure. Against that judgment of acquittal, the State filed this appeal.
6. Heard the learned Public Prosecutor and the learned counsel for the respondent/accused. The learned Public Prosecutor submitted that the accused and her deceased husband were last seen together residing in their house and since the death of the deceased was proved to be a murder and as the dead body was found inside the house at night in the hall room, the burden is on the accused to explain the circumstances under which the deceased was found dead. The learned Public Prosecutor submitted that the evidence adduced by Pws 1 to 4 would prove the illicit relationship between the accused and PW17, Ravi Mohanan Nair and the Court below failed to give due importance to the testimony of these witnesses. The learned Public Prosecutor further submitted that the Court below ought not to have given much importance to the interested testimony of PW12 - the son of the accused and deceased, since his interest was only to save his mother from the clutches of law. The learned Public Prosecutor submitted that though the case is based on circumstantial evidence, the same was proved without any missing link and giving no chance for any other inference other than the version of the prosecution.
7. The learned Public Prosecutor relying on the decision reported in Omanakuttan @ Keerikkadan v. State (2009 KHC 1216) argued that since the incident took place in the dead of night in the house of the accused and deceased, it may not be possible for the prosecution to establish all the facts and the prosecution cannot be asked to do the impossible and the burden is on the accused under Section 106 of the Indian Evidence Act to show as to what had transpired at the place of incident. The learned Public Prosecutor relying on the above decision further argued that normally in a case based on circumstantial evidence, motive may play a significant role but the absence of proof of motive or the failure of the prosecution to prove the same by itself is not a ground to reject the prosecution case.
8. The learned Public Prosecutor invited our attention to the decision of the Apex Court reported in Dnyaneshwar v. State Of Maharashtra. ((2007) 10 SCC 445), in which it was held that when the couple was last seen together in the premises to which an outsider may not have any access, it is for the husband to explain the ground for unnatural death of his wife. Learned counsel for the respondent/accused supported the judgment of the Court below.
9. There is no eye witness to the actual occurrence. The prosecution case is based only on circumstantial evidence. It is well settled that in dealing with circumstantial evidence there is always the danger that conjuncture or suspicion may take the place of legal proof. In cases where the evidence is of 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 conclusive nature and tendency and they should be such as to exclude every hypothesis on the one proposed to be proved. There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consisting 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. In cases based on circumstantial evidence the chain of circumstances must lead to the only inference of guilt of the accused.
10. In the decision reported in Lalit Kumar Sharma v. Superintendent and Remembrancer of Legal Affairs, Govt. of West Bengal (A.I.R 1989 SC 2134), it was held thus:
“It is now well settled that the power of an appellate Court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions, but that power is with a note of caution that the appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so. If a finding reached by the trial Judge cannot be said to be an unreasonable finding, then the appellate Court should not disturb that finding even if it is possible to reach a different conclusion on the basis of the material on record.”
11. PW1 Anil Kumar is a neighbour of the accused and deceased. He deposed that on the day of occurrence at about 3 o'clock in the night the accused came to the gate of his house and called him and informed that Jaiswar was found dead. He stated that he informed the matter to his neighbour one Anil and thereafter he informed the matter over phone to the police. He deposed that when the police reached there he went to the place of occurrence along with the police and then he saw Jaiswar lying in the hall room. He stated that he was present at the time of preparing the inquest report by the police and he put his signature in Ext.P1 inquest report. PW1 stated that the accused and the deceased alone were residing in their house and their two children were studying at Delhi.
12. PW1 deposed that Jaiswar used to pick up quarrel with the accused after consuming liquor. He further deposed that on some occasions he had seen PW17 coming to the house where the accused and the deceased were residing. He stated that he saw PW17 coming to the house of the accused prior to one month of the death of Jaiswar.
13. PW2 was an attesting witness to Ext.P1 Inquest Report. PW3 Bindu and PW4 Manju were working as sales girls in the Churidar shop conducted by the accused at Attukal Shopping Complex. The testimony of PW3 and PW4 was to the effect that deceased used to visit the Churidar shop of the accused and sometimes deceased and accused picked up quarrels and they did not know the reason for their quarrel. They deposed that PW17 was working as a tailor in that shop and subsequently he took a room in Attukal Shopping Complex on rent for conducting his tailoring shop and thereafter PW17 used to visit the Churidar shop of the accused and that the accused also used to visit the tailoring shop of PW17.
14. PW5 is the father-in-law of the daughter of the accused and deceased. He deposed that the marriage between his son and the daughter of the accused was divorced. He stated that the accused was conducting a shop in the Attukal Shopping complex and he did not know who invested the amount for that business. He deposed that on the day of the incident the accused telephonically informed him that her husband committed suicide and on getting information he went to the place of occurrence and then he saw the dead body of Jaiswar in the drawing room of the house. He stated that he did not know anything about the relationship between the accused and PW17. PW5 stated that deceased Jaiswar was addicted to liquor.
15. PW6 Soman was working as a salesman in the foreign liquor shop near S.L Theatre, Thiruvananthapuram at that time. He deposed that deceased Jaiswar used to come to their shop for purchase of liquor. He stated that on the previous day of the occurrence, the accused came to the shop at about 8 to 8.30 P.M and bought two bottles of 180 m.l each of Mac dowel Diplomat whisky. In cross examination PW6 stated that Jaiswar used to come to their shop for purchase of liquor in a white maruthi car. Sometimes his driver also would be with him. He also stated that one lady also would be along with him in the maruthi car. PW6 did not depose that the lady who was found in the car was the accused.
16. PW7 Balakrishnan was conducting a fast food shop at Kaithamukku. He deposed that deceased Jaiswar used to come to his shop for purchase of chicken parcel. He deposed that on the previous day of occurrence, the deceased along with his wife accused came to his shop at about 8.45 P.M and that on that day chicken parcel was not available in his shop. He further deposed that on the next day he came to know about the death of Jaiswar.
17. PW8 was a retired Hindi Professor who translated the writing in Hindi in Ext.P4 diary of deceased Jaiswar into Malayalam as requested by the Police. Ext.P3 is the Malayalam translation of the Hindi writing in Ext.P4 diary.
18. PW9 Chandralekha was residing near the house of the accused. She deposed that when the dead body of deceased Jaiswar was taken to Delhi the accused sought permission to park their car in her house. PW9 stated that she gave permission to park the car in her house. When a specific question was put to PW9 by the learned Public Prosecutor as to whether any diaries were entrusted to her by the accused at that time, she denied the same. She stated that no diary was entrusted to her. PW9 is a retired college professor. She deposed that the police officials came to her house and enquired her whether the key of the car was available with her and she handed over the key to the police officials. She stated that the police opened the car and took a parcel. She stated that the police officials told that the parcel contained diary. She deposed that she did not hand over the diary to the police.
19. PW10 Vanajakumari was the Confidential Assistant of deceased Jaiswar during the relevant period. PW10 identified Ext.P4 Government diary shown to her. She stated that Ext.P4 diary was the Government diary used by deceased Jaiswar. She stated that the personal memorandum in Ext.P4 diary was written in the handwriting of deceased Jaiswar. She also stated that the writings in Hindi language in Ext.P4 diary was also in the handwriting of deceased Jaiswar. When a specific question was put to PW10 as to whether she could identify the writing of deceased Jaiswar in Hindi language as he used to write in English, PW10 stated that she could see the bit notes written by the deceased Jaiswar in Hindi language. But she has stated in cross examination that Ext.P4 diary was not shown opened to her by the Investigating Officer and the writings were not compared with the other handwritings of deceased Jaiswar.
20. PW11 Sreelatha was working as a lecturer in N.S.S College, Dhanuvachapruam who was residing near to the house of the accused. She deposed that at the time of death of deceased Jaiswar, the accused and Jaiswar alone were residing in that house. PW11 stated that she came to know about the death of Jaiswar when one Lekha, another neighbour telephoned her at about 3 A.M on the day of incident. PW11 further stated that she went to the place of occurrence in the morning. PW11 stated that Jaiswar used to pick up quarrel after consuming liquor. She stated that after picking up quarrel the accused and Jaiswar used to go amicably and she did not know for what purpose they were picking up quarrel.
21. PW12 Rahul Jaiswar is the son of deceased Jaiswar and the accused. He deposed that his father and mother were residing at Palkulangara and PW12 and his sister were residing at Delhi at the relevant time. He stated that he came to know about the death of his father through his uncle at about 3 o'clock night on 30.9.1995 He stated that he did not get any information as to how his father died. When he asked his mother regarding the cause of death she stated that time it was not clear as to what exactly happened. PW12 stated that his father was a heavy alcoholic. When Ext.P4 diary was shown to PW12, he stated that he had not seen the said diary before. He stated that his father wrote only in English and not in Hindi language. When the writing in Ext.P4 diary was shown to the witness, he stated that the handwriting in Ext.P4 diary shown to him was not that of his father. PW12 stated that his father always wrote in English. When PW12 was asked about the relationship between his father and mother, he answered that they were happy couple and their marriage was a love marriage.
22. PW13 was an attesting witness to Ext.P7 scene mahazar. PW14 was also an attesting witness to Ext.P7 scene mahazar.
23. PW15 was working as an official driver of the deceased Jaiswar. He deposed that deceased Jaiswar used to keep a Government diary with him. When Ext.P4 diary was shown to PW15, he stated that the said diary was used by deceased Jaiswar during the relevant period.
24. PW16 was the Village officer who prepared Ext.P8 plan of scene of occurrence.
25. PW17, Ravi Mohanan Nair deposed that the accused was conducting a churidar shop at Attukal Shopping Complex and she was familiar to him. He deposed that he used to take orders from the shop prior to two years before the death of Jaiswar in the year 1995. PW17 deposed that he started a tailoring shop at Attukal shopping complex with the funds obtained by him by the sale of his share in the family property. He deposed that on some occasions the accused used come to his shop.
26. PW18 is an attesting witness to Ext.P10 mahazar. He deposed that he saw the accused handing over a cheque to the Circle Inspector of Police.
27. PW19 is an attesting witness to Ext.P11 mahazar. PW19 also did not support the prosecution case regarding the recovery of 3 diaries from Lekha Nair in the presence of the accused. PW20 is another witness to the mahazar prepared by the Investigating Officer after seizing a spectacle from the house of the accused. He deposed that he did not see anything seized from the house of the accused. He also stated that he was not present in the house of the accused while the Investigating Officer prepared the mahazar. He deposed that as required by the police officials, he put the signature in a mahazar.
28. PW23 was the Sub Inspector of Police, Vanchiyoor Police Station during the relevant period. He deposed that on 1.10.1995 at 4.00 A.M, a telephonic information was received at the Vanchiyoor Police Station that Brij Kishore Jaiswar, I.A.S was found dead in his residence. He deposed that on getting information he went to the place of occurrence at 5.30 A.M and recorded the statement of the wife of deceased Jaiswar. Thereafter he registered the crime No. 145 of 1995 under Section 174 of the Code of Criminal Procedure on the basis of the F.I Statement given by the wife of deceased Jaiswar/accused. F.I Statement alleged to have been given by the accused was marked as Ext.P15 PW23 stated that he registered Ext.P15(a) F.I.R on the basis of Ext.P15 F.I Statement.
29. PW24 Dr. Sreekumari, Associate Professor, Forensic Medicine, Medical College, Thiruvananthapuram conducted the post-mortem of deceased Jaiswar and prepared Ext.P16 post-mortem certificate.
In Ext.P16 post-mortem certificate the following ante-mortem injuries were noted:
“INJURIES (ANTE MORTEM)
1. Pressure abrasion 7.5 × 0.3 C.M, horizontal on the front of neck, 1.5 C.M to the right of midline and 4.5 C.M below the lower border of jawbone at the level of thyroid cartilage and its back end 6.5 C.M below right ear. Flap dissection of neck done in a blood less field. Fracture of left superior horn of thyroid cartilage with infiltration of blood around. Other neck structures were found to be intact and normal.
2. Contusion 4 × 3 × 0.5 C.M on the left side of head overlying the parictal eminence 10 C.M above the ear.
3. Contusion 5 × 4.5 × 0.5 C.M on the right side of head 9 C.M above the top of ear.
4. Abrasion 0.5 × 0.5 C.M on the inner aspect of upper lip of opposite the left central incisor tooth.
5. Abrasion 0.4 × 0.3 C.M on the inner aspect of upper lip opposite the right upper canine.
6. Contusion 1 × 0.5 × 0.5 C.M on the inner aspect of lower lip opposite to the lower central incisors.
7. Contusion 2 × 1 × 0.5 C.M on the inner aspect of right cheek opposite the right upper first and second molars.
8. Contusion 0.5 × 0.5 × 0.5 C.M on the inner aspect of right cheek, close to alvcolar margin 0.5 C.M above injury No. 7.
9. Contusion 0.5 × 0.5 × 0.5 C.M on the inner aspect of right cheek opposite the third molar of upper jaw.
10. Contusion 5 × 3 × 0.5 C.M on the outer aspect of right arm 13 C.M below shoulder.
11. Contusion 4 × 3 × 0.5 C.M on the back of right forearm 14 C.M below elbow.
12. Contusion 18 × 10 × 0.5 C.M on the right side of hip 9 C.M to the right of midline and 5 C.M below top of hip bone.
13. Contusion 3 × 2 × 0.5 C.M on the outer lower quardrant of right buttock.
14. Two contusions 6 × 4 × 0.5 C.M and 3 × 2 × 0.5 C.M, 2 C.M apart, one below the other, on the back of left arm the latter being 2 C.M above elbow.
15. Abrasion 0.7 × 0.1 C.M on the front of left forearm 2 C.M below elbow.”
PW24 opined that the death of Jaiswar was due to combined effect of blunt force applied on his neck and face and effect of injury nos. 1 and 4 to 9 were independently sufficient to cause death. PW24 stated that there was no corresponding external injury to injury nos. 4 to 9. So these injuries can be caused by fall and coming into contact with a hard substance or object during the fall. She stated that the effect of these injuries can produce unconsciousness also. PW24 also stated that she examined Mohini, wife of the deceased for noting the recent injuries if any, after getting her written consent on 2.10.1995 PW24 stated that there was no evidence of any recent injury on the body of Mohini, the accused. The certificate prepared by the doctor after examination of the accused was marked as Ext.P17
30. When the accused was questioned under Section 313 of Code of Criminal Procedure, she filed a detailed statement before the Court below. In that statement she has stated that ever since her marriage with her husband, B.K Jaiswar, they were leading a very happy married life. Two children were born in the wedlock. She was dutiful and loyal to her husband in all respects. She was conducting a small ready made shop at Attukal Shopping Complex with the share got from her family. Her husband extended full support to her business. He used to purchase and bring ready made garments for her shop as and when he went to Delhi. She stated that on 30.9.1995 when her husband returned from Delhi by flight, he had brought a parcel of ready made garments. The accused was in her shop and assisted her in fixing the price and putting stickers on newly brought garments in the evening. Her husband's personal driver Syam Sahani was also with him. She stated that since it was Navarathri days on 30.9.1995 at about 7 P.M she left the shop and went to Chalai for purchasing flowers, fruits etc. for conducting pooja at night. At 8.30 P.M she reached the house after purchasing those items in an autorickshaw.
31. After observing the pooja rituals, she took supper and spent time watching T.V At about 10.30 P.M she got a telephone call from her husband stating that he would reach only late as he was taking his dinner at Sandhya Bar at Thakaraprambu. He told her to go for sleep after closing the door. She stated that she closed the front entrance door with the key kept by her. Another duplicate key was kept by her husband. She could open and lock the door from inside using her key. The husband used to open the main entrance door with the duplicate key in his hand. There was no locking system to the outer gate. She went for sleep at about 11 o' clock on 30.9.1995 after closing the entrance door with the key kept by her. While she was in deep sleep she heard the sound of ring of telephone bell. She woke up from sleep then the ring stopped abruptly before she picked up the phone. When she switched on the lights there was no electric supply. She opened the door of the bedroom and lighted a candle and went to the main hall room.
32. She stated that there was nobody there and then she moved to the entrance door and it was seen open slightly. Then she saw her husband in sleeping pause at the floor close to the door which was used as the drawing room for the husband's visitors. The main door key was in his hand. When she tried to wake him up by calling him, there was no response. She screamed and ran out and called her neighbour, Baby. She came out from her house and informed the other neighbours. Some of them called the police. It was around 3 A.M She stated that she became cold and fear struck. Thereafter around 5 O'clock some police people came there and they dragged the dead body to the hall room so as to facilitate the entry in the hall room.
33. She stated that the Sub Inspector got her signature on blank paper. Several Police officers came to her house. They took her to Medical College for the examination of her body. Dr. Sreekumari thoroughly examined her body and found that she was sick and slightly feverish and the doctor gave her some medicine. She stated that when she saw her husband last in the morning on 1.10.1995 he was dressed in a white shirt with black checks and paijama. His wristwatch, gold chain, wedding ring etc. were stolen away by somebody. They were missing from his dead body. She also stated that her husband's maruthy car was not in the car shed on that day. She could not trace out the driver, Syam Sahani and he was missing. Later somebody informed her that the car was seen on the road near to Dr. Marthandan Pillai's residence. She stated that her husband had so many enemies. Some persons were dismissed from service from the Survey Department for gross misappropriation of funds while her husband was the Secretary, Revenue Board and the Director of Survey and Land Records, Kerala State during the period 1989-1994. During that period he had detected massive encroachments over forest land and he had initiated coercive steps against the encroachers. He had several threats to his life from many quarters and he had submitted representation to the Chief Secretary, Kerala State for giving him police protection. She also stated that she filed representation to the Chief Minister of Kerala for conducting C.B.I enquiry on her husband's suspicious death.
34. The investigation of the case was conducted in a totally careless and wreckless manner. Since she is a woman and who belonged to Delhi, the Kerala Police found it very easy to harass her to the maximum extent possible. She never made any confession statement. The police has concocted and fabricated false stories against her. She has no illicit connection with anybody. Her husband never manhandled her. The only bad habit of her husband was taking of alcoholic drinks. There were no bottles near the dead body. No bottles were taken from her house. No diary was seized in her presence. She also stated that the police compelled her to issue a cheque as dictated by them. There was no recovery of any cheque or diary as narrated by the police. The diary produced in Court is a fabricated document. She never made any disclosure to the police. The police officers compelled her to sign on many papers and books. The charge sheet made by the police is totally false. She is totally innocent of the offence alleged against her.
35. Son of the deceased and the accused gave evidence before the Court as PW12. He stated that one key of the front door was kept by his mother/accused and the duplicate key was kept by his father. He stated that when father comes late in night, his mother used to lock the door from inside and goes for sleep and the father enters the house by opening the door using the duplicate key in his hand. The accused when questioned under Section 313 of the Code of Criminal Procedure also stated that when her husband comes late at night she used to lock the door from inside and goes for sleep and her husband enters the room by opening the door using the duplicate key in his hand.
36. The accused stated that on the date of incident at about 10.30 P.M her husband telephoned her that he will come late after taking his dinner at Sandhya Bar, Thakaraprambu and he asked her to go for sleep. She has stated that at about 2 O'clock in the night as she did not see her husband, she went to the drawing room and then saw her husband lying in the sit-out of the house. The evidence tendered by PW12 and Ext.P7 scene mahazar shows that the front door of the house is having locking system from inside and outside. The evidence of PW12 shows that his father (the deceased) used to enter the house by using the duplicate key in his hand while his mother locked the door from inside and went for sleep.
37. The accused when questioned under Section 313 of the Code of Criminal Procedure stated that Syam Sahani was the driver of the personal car of deceased Jaiswar and when her husband comes late in the house, the said Syam Sahani used to sleep in the up-stair of the house. The Investigating Officer did not take any steps to ascertain who was the driver of the personal car of deceased on the date of incident. On the defence side, the documents Exts.D5 to D7 were produced to show that the above said Syam Sahani committed suicide. Ext.D5 is F.I.R registered under Section 174 of the Code of Criminal Procedure at Vilappilsala Police Station relating to the death of Syam Sahani on 23.12.2006 Ext.D6 is the inquest report prepared after conducting the inquest in that case and Ext.D7 is the certified copy of the post-mortem certificate prepared after conducting autopsy on the body of deceased Syam Sahani. The Investigating Officer, PW28 stated that he did not conduct any investigation to ascertain as to who was the personal driver of the deceased Jaiswar at the relevant period.
38. It is an admitted fact that the accused and her husband deceased Jaiswar were residing together in their house at the time of occurrence. The children of the accused and the deceased were residing at Delhi during that period. The evidence on record will not show that the accused and deceased together came to the house at 9 P.M on 30.9.1995
39. The defence contention is that one Syam Sahani was the personal driver of the private car of deceased Jaiswar. On the defence side DW2, a neighbour of the accused and the deceased during the relevant period was examined. He stated that during the relevant period he was residing in the neighbourhood of the house of the accused and deceased Jaiswar and on 1.10.1995 at 3 A.M the accused came to the gate of the house and called the neighbours and he went to the house and then he found the dead body of Jaiswar. He also stated that the dead body was found in the sit-out of the house. He stated that during the relevant period the driver of the private car of deceased Jaiswar was one Syam Sahani. He deposed that he informed the matter to the police.
40. The prosecution has not succeeded in proving that the writing in Hindi in Ext.P4 diary was that of the deceased. PW12-the son of the deceased deposed that the hand-writing in Ext.P4 diary is not that of his father. The writings in Ext.P4 diary were not compared with the admitted writing of the deceased. The prosecution mainly relies on the writing in Ext.P4 diary to establish the illicit relationship between the accused and PW17 and that the deceased warned the accused against that illicit intimacy and that deceased demanded back the amount he had invested in the Churidar shop. But the writings in Hindi in Ext.P4 diary are not proved to be that of the deceased. The prosecution has failed to prove these facts.
41. It is well settled principle that the burden to prove the guilt of accused beyond reasonable doubt is on the prosecution and the accused obviously has the right to be silent. The prosecution cannot be permitted to take advantage of the weakness of the defence case. Defence can take inconsistent pleas and that too from to time, but this does not absolve the prosecution from the duty to prove the prosecution case beyond reasonable doubt. It is true that the circumstances of the case create suspicion against the accused. But suspicion by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused. The mere fact that the accused was last seen together with the deceased in their house does not lead to the irresistible inference that the accused committed the murder of her husband in the absence of other evidence. Therefore, we are of the view that the learned Additional Sessions Judge was fully justified in acquitting the accused on finding that the prosecution has failed to prove its case beyond reasonable doubt.
Accordingly Criminal Appeal is dismissed, as it is without any merits.
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