Andrew John vs State of H.P.

Lokeshwar Singh Panta, J.—This appeal is directed against the judgment and order dated 31.5.1994 pased by learned Sessions Judge, Solan, in Sessions trial No. 2-S/7 of 1993, whereby the Appellant-accused was convicted u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 2000/-. In default of payment of fine, the Appellant-accused has to suffer simple imprisonment for a period of one year.

The facts of the case, briefly stated, are as under:

The Appellant-accused and the deceased Kanshi Ram were employed as operators of Effulent Treatment Plant (here-in-after referred to as ''ETP Tank) in Solan Brewery. They used to work in shifts. Besides these two Operators, there was other Operator who used to work during day time only. Kanshi Ram was required to attend his duties on 24.10.1992 at 4 p.m. and was to work till 8 a.m. of next morning. It is alleged that Kanshi Ram (deceased) left his quarter, which is situated at village Ber Sai, at about 3.30 p.m. on 24.10.1992 to attend his duties. He had carried his clothes with him in a bag because he was to leave on the next morning from Solan Brewery for his village to celebrate Diwali festival. It is further case of the prosecution that deceased Kanshi Ram was residing in the quarter with Smt. Krishna Devi (P.W. 17), whom he had told that he would not be coming back from the plant on the following morning because he would be leaving for his village. The case of the prosecution is that the Appellant-accused was required to attend his duties at ETP Tank at 8 a.m. on 25.10.1992. Shri P.K. Dutt (P.W. 2) Brewer, went to the room of the Operators of ETP Tank on 25.10.1992 when the accused told him that at 8 a.m. when he reached at E.T.P. Tank for duty, the deceased was absent and the lights etc. in the ETP Tank area were on. Thereafter, PW P.K. Dutt asked the accused to search for Kanshi Ram and let him know his whereabouts by 1 p.m. that day. The Appellant-accused did not report to Shri P.K. Dutt, an Officer of the Company, as was directed by him. 26th and 27th October, 1992 were holidays in the Brewery. In the morning of 28.10.1992 brother and maternal uncle of deceased Kanshi Ram told one Shri G.C. Bamra, Chemist of Solan Brewery, that deceased had not reached either in his. Village or in the house of his in-laws. Thus, all these persons expressed their suspicion which made the Company officers to get the ETP Tank emptied. On getting the ETP Tank emptied the dead-body of Kanshi Ram was seen therein. Whereupon a report (Ex.PB) with regard to the incident was lodged by PW P.K. Dutt with Solan Police on 28.10.199. Inspector Kulwant Singh (P.W. 18), Station House Officer, Police Station, Sadar Solan, went to the scene of occurrence and started investigation. He prepared Inquest report (Ex. PO) and thereafter arranged to send the dead-body of Kanshi Ram to the District Hospital, Solan, for autopsy. On receipt of the post-mortem report, First Information Report (Ex.PN) was recorded. The Investigating Officer prepared the site plan (Ex.PM) and recorded the statement of witnesses. He arrested the accused on 3.11.1992. During investigation, on 7.11.1-992 he recovered letter (Ex.PF/1) written by the appel1ant-accused to Smt. Radha Devi (P.W. 12) wife of deceased: After completion of investigation, charge-sheet was laid before the Chief Judicial Magistrate, Solan, who committed the same to the Sessions Judge, Solan, for trial.

The accused pleaded not guilty to the charge and claimed to be tried. In his statement u/s 313 of the Code of Criminal Procedure, he pleaded that he had been falsely implicated in the case at the instance of the officials of the Solan Brewery so that they were not implicated for their negligence regarding the death of Kanshi Ram. However, no defence was led by him.

The trial Court came to the conclusion that the prosecution has been able to substantiatethe charge against the Appellant-accused beyond all reasonable doubt and he was accordingly convicted and punished. This decision, has, therefore, been assailed by the Appellant-accused before this Court. Now we proceed to examine the matter. But before dealing with the evidence, it would be important to record at the very outset that there is no eye witness to the occurrence. The prosecution case, therefore, hinges entirely on circumstantial evidence.

Shri Jagdish Vats, learned Counsel for the Appellant-accused, submitted that this being a case based on circumstantial evidence, the prosecution must complete the chain in such a way that it leads to one conclusion, namely, that the offence was committed by the accused and accused alone and none else. He also contended that mere suspicion, however, grave cannot take place of proof as held by the apex Court in number of decisions.

From the opposite side, Shri Mohan Lal Chauhan, learned Assistant Advocate General, has supported the judgment of the trial Court and urged that the prosecution has fully established all the chain of events, which are consistent with the hypothesis of the guilt of the accused.

In recording a trial Court for passing circumstances were taken finding by the learned the conviction, seven into consideration:

The accused had been working in the Effluent Treatment Plant with the deceased in Solan Brewery shif twise and it was the accused who had easy access to the plant where the deadbody of deceased was found in the tank as the accused had" to take over from the deceased for the next shift: Conduct of the accused.

The accused was fully conversant with the working of aeriation tank and the instruments installed therein and location thereof; Conduct of the accused.

Medical evidence-cause of death and the injuries sustained by the deceased situation etc. of the plant.

Invitation of the accused to the deceased to have drinks and apprehension of danger in the mind of the deceased.

The accused was on visiting terms to the house of deceased after the marriage of deceased with Radha and that accused developed illicit relations with the wife of the deceased'' writing of love letter Ex.PF/1 by the accused to the wife of the deceased showing illicit relations and allurement to the wife of the deceased at the hands of the accused.

Motive to marry the wife of the deceased.

False defence.

Before dealing with the evidence adduced on record, we think it necessary to notice certain decisions of the apex Court dealing with the cases based on circumstantial evidence.

In Prem Thakur Vs. State of Punjab, Chief Justice Y.V. Chandrachud, speaking for the Court in para 11 observed as under:

The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt.

In Sharad Birdhichand Sarda Vs. State of Maharashtra, , the following principles were laid down:

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not may be established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made:

certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and must be is long and divides vague conjectures from sure conclusions.

(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 explanable 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.

Again in Kansa Behera v. State of orissa, it was observed in paragraph 12 of the judgment, as under:

... It is a settled rule of circumstantial evidence that each one of the circumstances have to be established beyond doubt and all the circumstances put together must lead to be only one inference and that is of the guilt of the accused...

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, S. Ratnavel Pandian, J. speaking for the Bench has said in paragraph 10, that: (page 81),

Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of dicisions has consistently held'' 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 the guilt of the accused;

(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;

(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. See Gambhir Vs. State of Maharashtra,

See also Rama Nand and Others Vs. State of Himachal Pradesh, Prem Thakur Vs. State of Punjab, Earabhadrappa v. State of Karnataka (1983) 2 S.C.C. 330 : AIR 1983 SC 446 , Gian Singh Vs. State of Punjab, , Balwinder Singh alias Dalbir Singh Vs. State of Punjab,

In Kishore Chand Vs. State of Himachal Pradesh, the Court said as under:

In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should, be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of the hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evideance, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of doubt. In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The Court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of. the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the acccused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and 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 probability the act must have been done by the accused and the accused alone.

There is no dispute as to the death of Kanshi Ram. The post-mortem of the dead-body was conducted by Dr. A.K. Singh (P.W. 7) on 29.10.92. He found the following injuries:

Liquids blood was present all over head, ear, nostril. Incised wound 3 cms x 1/2 cm. vertically was present over left eye-brow with clots around. 4 cms long incised wound over frontal area, 2 cms. horizental incised wound was present over occipital area and deep right upto bone surface. No external injury was noted over lower and upper extremity as well as on body surface.

According to the post-mortem report (Ex.PG) of the Doctor, the cause of death was head injury alongwith fracture cervicle spine. The injuries were sufficient to cause instantaneous death of the deceased and the head injury was ante-mortem. He also opined that it was not a case of drowning because there were no symptoms of drowning in this case nor there was any water. In his cross-examination, he has admitted that rigor mortis starts from head to feet and in the present case rigor mortis was not present in the head. Further, he has admitted that if a person dies immediately after he drowns in the water then no water goes inside his body provided there is sudden cardic arrest. It is also admitted by him that if a person drowns in the water he comes up straight but this is not always because it depends upon type and quality of water and force etc. It is also stated by him that it is possible that in the present case if the deceased had fallen down in the tank then during the struggle for coming out of the water the injuries mentioned in the post-mortem report may have been caused. It is also admitted by him that the injury of cervicle spine could have been caused if the dead-body of Kanshi Ram was taken out from the tank with force. He has also admitted that if a dead-body goes on moving with the water in the tank with the motion of a fan and if in that process the body strikes against hard substance in the tank with force then the injury of cervicle fracture can be caused.

Now, the question is whether the prosecution has been able to prove beyond all reasonable doubt that it was the accused who caused the death of the deceased. In this regard, we may first of all, turn to the evidence of material witnesses.

In order to prove the first circumstances the prosecution has examined Shri P.K. Dutt (P.W. 2) and Shri Arun Nigam (P.W. 3), both officers of the Brewery. Shri P.K. Dutt is the incharge of the unit where the accused and the deceased had been working. Both these witnesses have deposed that after the duty hours of the deceased on the night intervening 24th/25th October, 1992, the Appellant-accused was next Operator who had to take over from the deceased and he attended his duty at the relevant time. This statement is also admitted by the accused in his statement u/s 313 of the Code of Criminal Procedure. They have also proved the recovery of dead-body of Kanshi Ram from the ETP Tank. The Appellant-accused had reported to PW P.K. Dutt when the latter inspected the ETP tank that the lights etc. around the aeration tank system were on when the Appellant-accused arrived for duty. The finding of the trial Court that the Appellant-accused did not report this matter to P.W. 2 P.K. Dutt before the witness visited the ETP tank about 10-30 p.m. and this lapse on his part amounted to guilt of the accused is not legally sustainable and is derived on the basis of suspicion and imagination. There is no evidence on record to show that it was the duty of the Appellant-accused to inform PW P.K. Dutt about the fact that the lights etc. were on when he joined the duty after the duty hours of the deceased.

In support of the second circumstance the trial Court has relied upon the evidence of P.Ws. 2 and 3 and held that the accused had been working as Operator in the ETP tank for the last 5-6 years and as such he was fully conversant with the tank and machinery installed therein. It is also held that Appellant-accused had the. knowledge if a person is thrown in the tank near the aeration fan, the person can die of the injuries from the aeration fan and his deadbody would be decomposed after lapse of certain period. It is also held that the Appellant-accused misguided the authorities by telling them that the deceased might have gone to his inlaws and did not tell the authorities about the missing of the mug used for taking sample from the ETP tank and about the clothes of the deceased, which remained lying in the Operators room. This circumstance is not proved by the prosecution by leading cogent and convincing evidence. It has come in the evidence of PW P.K. Dutt that on 28.10.1992 Shri G.S. Bamra, Chemist of the Brewery, told him in the morning that the brother of the deceased and Beli Ram, maternal uncle, had come and informed that the deceased had not come to his home or in-laws house, or they have suspicion that he might have fallen in aeration tank of ETP of the Brewery. At their instance the witness had got emptied the tank in which there was about 80,000 litres of water. At about 4 p.m. on 28.10.92 after the tank was being emptied he asked Ramesh Dutt to go inside the tank and search inside the water if there was anything in the water. On such search Ramesh Dutt recovered the dead-body of Kanshi Ram from below the aeration fan. This witness was confronted with his statement (Ex.DA) wherein it was not recorded that the Appellant-accused was instructed by him to report about the whereabouts of the deceased by 1 p.m. on 25.10.1992. He has admitted that no register regarding the duty hours of the employees was maintained by the Company. However, he admitted that the Company has been maintaining the daily duty rosters of the employees, which was not produced in the case. He also admitted that prior to 24.10.1992 the duty hours of deceased were 4 p.m. to 12 night. It is also admitted by him that one sampling mug was also recovered from, the tank alongwith the dead-body of Kanshi Ram and the said sampling mug was being used for taking the samples. It is also admitted by him that there is one fan inside the tank from where the dead-body was recovered and this fan remains moving continuously in a rotation. It is also admitted by him that there is no emergency safety measures in order to save a person if he falls into the tank. He has also admitted that one Rajesh Mathur was also on duty from 4 p.m. to 12 night on aeration tank prior to duty of deceased Kanshi Ram. Similarly, he has showed his lack of knowledge as to who was on duty from 12 night to 8 a.m. on 23.10.1992. From the statement of this witness it cannot be derived that the conduct of the Appellant-accused was such which would go to show that he was responsible for the murder of the deceased Kanshi Ram.

The third circumstance is relating to the medical evidence. Doctor found the injuries on the person of the deceased as stated above. Doctor has not ruled out the possibility of causing injuries on the person of the deceased by striking against hard substance with force. This circumstance will not lead to the conclusion that the deceased was killed by the Appellant-accused.

In support of fourth circumstance, the prosecution has relied upon the statement of Lagun Bhadur (PW-4), an employee of Solan Brewery. This witness has stated that the Appellant-accused had invited the deceased to have drinks with him on 24.10.1992. It is stated by him that the deceased bad asked him to take his care as he apprehended danger from the accused. The version of this witness cannot be relied upon for the reason that he did not disclose this fact to anyone immediately after the incident. Though he stated that he disclosed this fact to the police on 5.11.1992 but when his statement (Ex.DB) was confronted to him this fact was not found recorded. The further fact is that the duty of the deceased on the relevant day was upto 12 night whereas according to the version of this witness Kanshi Ram met him on 24.10.1992 at 8 a.m. Inspector Kulwant Singh (P.W. 18) has admitted that he has not inquired from anyone about the place where the Appellant-accused and the deceased had consumed liquor nor he recorded the statement of any witness regarding the fact of taking liquor by the deceased with the Appellant-accused. PW Lagan Bahadur has also not stated about the place where the Appellant-accused and the deceased had taken liquor and where was he asked to take care of the deceased. It has come in the evidence of Investigating Officer that one Kangaru Ram had stated that at about 7 p.m. on 24.10.1992 the deceased met him and at that time he was drunk. Kangaru Ram is the owner of a ''Dhabha'' adjoining to plant. It is also admitted by the Investigating Officer that Kangaru Ram told him that at that time the deceased had come to him for taking iron-press and former had refused to give the iron-press to Kanshi Ram because he was drunk. In view of the statement of Investigating Officer the evidence of P.W. 4 is wholly un-reliable and un-believable. As such, no reliance can be placed on such type of evidence. This circumstance has not been satisfactorily proved by the prosecution to complete the chain.

The fifth circumstance is about the visits of the Appellant-accused to the house, of the deceased at Ber Sai and at village Gamjoon after the latter had married with Smt. Radha. To support this circumstance, the prosecution has relied upon the statements of Smt. Kaushlya (P.W. 6) and Smt. Krishana (P.W. 17). Smt. Kaushlya is the wife of Shyam Lal, elder brother of the deceased she stated that she knew the Appellant-accused because once he had visited her house at village Gamjoon. Smt. Krishana (P.W. 17) stated that the deceased used to reside with her in her brothers quarter. After 15-20 days of the marriage of Kanshi Ram (deceased) with Smt. Radha Devi the Appellant-accused started visiting their house with the deceased. From the statements of these witnesses, it is clear that the accused had'' been visiting the house of the deceased in his company being colleague working in the Brewery.

The next circumstance relied upon by the prosecution is that the accused wanted to marry the wife of the deceased and in order to get rid of the deceased, he killed him. In support of this circumstance, the prosecution has relied upon statements of Smt. Kaushalya (P.W. 6), Smt. Krishana Devi (P.W. 17) and letter (Ex.PF/1) allegedly written by the Appellant-accused to Smt. Radha Devi (PW-12) wife of the deceased. PW Smt. Kaushalya stated that on one day when herself and Smt. Radha Devi were alone in the house, the Appellant-accused came there and stayed during the night. The Appellant-accused was provided with a cot in the room where he had slept while both these ladies slept on the floor. During night when she got up from the sleep, she found the Appellant-accused and Smt. Radha talking with each other and the Appellant-accused was telling Smt. Radha that he loved her and she should run away so as to, settle down some-where else in some house. Smt. Radha had also shown her willingness to the offer of the Appellant-accused. The Appellant-accused had left her house after three days. After the departure of the Appellant-accused, the brother of the accused came to their house and told them that the Appellant-accused was not taking his meals unless he would get Smt. Radha or in case he could not get her he would die. She has categorically admitted that she did not check the Appellant-accused when he was talking about his love affairs with Radha nor she had objected to his conduct. However, she did not tell this fact to her husband. This fact has been narrated by her first time to the police. So far as her a version about the visit of the brother of the Appellant-accused to their house and telling them that the Appellant-accused had stopped taking meals unless he could get Smt. Radha, is concerned, this statement was not found recorded in her statement to police (Ex.DC). PW Smt. Krishana Devi has stated that she has noticed that whenever Smt. Radha used to go for fetching water she used to come after about 2 hours and used to have a gossip with the Appellant-accused. Smt. Radha Devi sent a letter to the Appellant-accused, which was read over by her to the deceased in which the Appellant-accused had mentioned certain love affairs with Smt. Radha Devi. Letter was torn of by the deceased. Some photographs of Smt. Radha Devi were also taken by the Appellant-accused in her house including that of the deceased. She has also stated that she did not tell about the love affairs of the Appellant-accused to anyone. She has also stated that on 25.10.1992 at about 6.30 p.m. the Appellant-accused came to her quarter and inquired about the whereabouts of the deceased. She told him that the deceased was to go to his village on that evening. The appel1ant-accused also told her that Kanshi Ram had not reported to duty at the Plant and the Plant was running and further that his clothes were lying at the Plant. It is also stated by her that on 28.10.92 the Appellant-accused told S/Sh. Beli Ram and Shyam Lal (P.W. 15) that on the night of 24.10.92, the deceased was drunk and he may not have been fallen into the Brewery tank. In her cross-examination she has admitted that there had been no quarrel between the deceased and his wife Smt. Radha Devi. It is also admitted by her that the deceased did not tell her before he left her house with his clothes that he had any danger from anyone. She also admitted that she told the police that she had no suspicion that the Appellant-accused had committed the murder of Kanshi Ram. This witness had been living with the deceased and sharing the common room for sleeping. She has made considerable improvements in her statement while appearing as a witness and some important facts were not stated by her in her statement made before the police. It is not known as to how she had been living with the deceased, specifically when, it has come in her evidence that her husband had been living separately from her and they had not divorced each other. The evidence of these two witnesses are absolutely unreliable and un-believable. The story of the prosecution about the illicit relations of the Appellant-accused with Smt. Radha Devi, wife of the deceased, appears to be concocted one in order to establish the motive against the accused.

Smt. Radha Devi (P.W. 12) though declared as hostile but her version cannot be brushed aside on this Court only She has stated that the Appellant-accused had come to their village alongwith her husband and stayed only for a day and did not stay for night. He had never come alone. She has denied the suggestion of the Public Prosecutor that the Appellant-accused had posted 2 or 3 letters to her. She has categorically denied number of portions of her statement recorded by the police. She stated that letter (Ex.PF/1) was never received by her from the Appellant-accused nor the same was banded over by her to the police. She has also denied that the signatures on letter (Ex.PF/1) were appended by her. She has also stated that letter (Ex.PF/1) was handed over to her by the police and she was told to hand over the same back, to the police in the presence of P.Ws. Chile back to the police in the presence of P.Ws. Khiali Ram and Vikram Singh. She has also denied her sexual relations with the Appellant-accused. She has also denied the suggestion of the prosecution that the brothers of the Appellant-accused have been visiting her husband and have given money to her for giving evidence in favour of the Appellant-accused. The Appellant-accused in his statement u/s 313 of the Code of Criminal Procedure has categorically stated that the letter (Ex.PF/1) was got written from him by the police when he was in police custody. We have perused the contents of the letter, which do not establish that the Appellant-accused had developed illicit relations with the wife of the deceased and he wanted to marry her at the cost of killing her husband. Motive is, of course, a relevant factor on which evidence can be given at the trial, proof of which certainly lends additional support to the prosecution case. Failure on the part of the prosecution to discover motive would, however, not adversely reflect on the credibility of other evidence adduced to prove the crime if the same otherwise looks cogent and creditable. The prosecution has miserably failed to prove the motive in this case.

The last circumstance is that the accused had taken a false defence that Chowkidars were not posted near the ETP tank area and further that the officials of the Brewery have not taken any measures to prevent the incident (sic accident), i.e., falling of the workers in the ETP tank. In order to prove this circumstance the prosecution has not relied upon the evidence of any witness and it was only a sort of complaint made by the Appellant-accused, against the officials of the Brewery in cross-examination. Therefore, it cannot be held that the prosecution has proved this circumstance by leading the evidence. Similarly, the theory of the last seen of the Appellant-accused with the deceased is completely missing. It has come in the evidence of the prosecution witnesses that before the deceased resumed his duty on the fateful day it was one Mathur who was on duty. It has also come in the evidence of Investigating Officer that the deceased visited the ''Dhabha'' of Kangaru Ram on 24.10.1992 at 7 p.m. when he was drunk. After that time, there is no evidence to show that the deceased was in the company of the Appellant-accused. Therefore, it cannot be said that the deceased was lastly seen in the company of the Appellant-accused.

The totality of the evidence and the circumstances relied upon do not establish the guilt, of the accused. The prosecution case cannot be believed on suspicion and hypothesis. The circumstances relied upon by the prosecution are not of conclusive nature and tendency. They do not point out unerringly, that the Appellant-accused is responsible for the commission of the offence.

Against the Appellant are set aside. The Appellant is in jail, he is directed to be set at liberty forthwith, if not required in any other case.

Appeal accepted.