Saiyad Abid and others vs State of Madhya Pradesh

Anjuli Palo, J.

The accused persons have preferred this appeal being aggrieved by the judgment dated 20.11.2007, passed by the Additional Sessions Judge

Burhanpur, in S.T. No.131/2006, whereby the appellants No.1 to 3 were convicted for the offences punishable under Sections 436 r/w 34, 302 r/w 34

(in three counts) and 307 r/w 34 (in five counts) and sentenced to undergo imprisonment for life with fine of Rs.5,000/-, imprisonment for life (three

counts) with fine of Rs.5,000/- and R.I. for seven years (five counts) with fine of Rs.3,000/- each respectively with default stipulation. Appellant No.4

was convicted for offence punishable under Sections 120-B/436, 120-B/302 (three counts) and Sections 120-B/307 (five counts) and sentenced for

imprisonment for life with fine of Rs.5,000/-, imprisonment for life (three counts) with fine of Rs.5,000/-and R.I. for seven years (five counts) with

fine of Rs.3,000/- respectively with default stipulation.

It is not in dispute that appellants No.1 to 3 are real brothers and appellant No.4 is their sister Maqsood is her husband. It is also not in dispute that

in the intervening night of 10th-11th January, 2006 house of Ramjan was set ablaze by pouring petrol inside the house. Badrunnisha-wife of Ramjan

(PW-3), Reshma and Ahphaj Ali died due to burn injuries, whereas Mehmood, Anisha Bano, Nagma, Neha and Sohail sustained severe burn injuries.

In brief the prosecution case is that, in the intervening night of 10th-11th January, 2006 Anisha Bano, daughter of Ramjan and Badrunnisha along

with her four children were present at her father’s house, Badrunnisha (since deceased), her son Mehboob, Ahphaj Ali were also present in the

house. Ramjan Ali was not present there. He was working in the power loom. In the night at about 3:30-3:45 am, when all were sleeping together,

some persons tied the door of their home from outside and put petrol inside the room and set ablaze it. All the things kept in the house and family

members of Ramjan were burnt. Some persons opened the door. Police constables Naim and Anil reached the spot. They brought the victims to the

hospital. Dehatinalishi has been lodged by injured Mehmood Ali against unknown persons. Police found that one Maqsood had illicit relation with

Badrunnisha. His wife Nafisa (appellant no.4) and her brothers i.e. the appellants no.1 to 3 threatened the family members of Ramjan to stop

Badrunnisha to contact with Maqsood. They committed the aforesaid offence. Thus police registered crime under Sections 436 r/w 34, 307 r/w 34,

302 r/w 34 and 120-B r/w 34 of the IPC against all the appellants. Charge sheet was filed before the concerned Court.

The trial Court found that appellants had enmity with the deceased Badrunnisha, due to illicit relationship with Maqsood (husband of appellant no.4).

Police seized some incriminating articles as per information given by the appellants in connection with the crime. Badrunnisha, Ahfaz Ali, and Reshma

died, whereas Anisha Bano, Nagma, Neha, Sohail and Mehmood sustained severe burn injuries. The appellants No.1 and 2 confessed their guilt.

Hence, the appellants were convicted and sentenced as mentioned above.

Aforesaid findings have been challenged by the appellants on the grounds that, the prosecution leads two sets of evidence. First version is that

accidentally the deceased and other injured persons sustained burn injuries, whereas second version is that some unknown persons had set ablaze the

house. Initial version has been suppressed by the police. There is no material on record to show that appellant no.4 has made any conspiracy to

commit murder of Badrunnisha. In her dying declaration Ex.P/17, it is alleged that Badrunnisha only suspected that appellant no.4 may be responsible

for causing the fire. She has not stated against the other appellants. FIR has been lodged by Mehmood Ali (PW-1) against unknown persons. Case is

based on circumstantial evidence. No eyewitness is available in the case. Conviction of the appellants is also based on the confession of appellant

Saiyad Abid during the police custody. All the evidence is not sufficient to prove the involvement of the appellants with the crime. Hence, the

appellants have prayed to set aside the impugned judgment and requested for acquittal from the charges levelled against them.

We have heard learned counsel for the parties at length and perused the record.

Learned Govt. Advocate has vehemently opposed the contentions of learned counsel for the appellants and submitted that the trial Court has rightly

convicted and sentenced the appellants. Therefore, he prayed that appeal is liable to the dismissed.

No dispute has been raised by the learned counsel for the appellants that in the intervening night of 10th-11th January, 2006, house of Ramjan was

set ablaze. In this incident, Badrunnisha, Reshma and Ahfaz died due to the burn injuries. Dr. B.K. Joshi proved that Badrunnisha died due to 85%

burn injuries within 72 hours of the postmortem. All the burn injuries were sufficient to cause her death in ordinary course of nature.

Similarly, learned counsel for the appellants has not challenged the opinion of Dr. B.D. Gattani (PW-16), Dr. Lalita Gupta (PW-

17), Dr. K.M. Gupta (PW-18), Dr. Zainnuddin Bohra (PW-19) and further opinion of Dr. Ashok Gupta (PW-23). Dr. B.D. Gattani (PW-16) deposed

that Badrunnisha died on 11.01.2006 at about 07:40 pm due to burn injuries. Dr. K.M. Gupta (PW-18) established that on 12.01.2006 at about 05:20

pm injured Reshma died due to the burn injuries. She was under treatment there. When she was admitted for treatment, her condition was critical at

that time. Dr. Zainnuddin Bohra (PW-19) was the doctor of Badrunnisha, Anisa, Reshma, Mehmood, Ahfaz, Nagma, Sohel and Neha Bano.

Dr. Bohra (PW-19) established that at the time of admission for treatment Anisa had sustained 80-90% burn injuries. Reshma sustained 50-60%

burn injuries. Mehmood Ali also sustained some injuries. Ahfaz sustained 60% burn injuries. Nagma sustained 40% burn injuries. Sohel sustained 25-

30% burn injuries. Neha Bano sustained 40-50% burn injuries.

Dr. Ashok Pagare (PW-23) stated that on 14.01.2006 Ahfaz died due to burn injuries. He was admitted for treatment on 10.01.2006. Dr. Ashok

Gave (PW-20) conducted postmortem of Ahfaz on 14.01.2006 with the help of Dr. Somani (PW-8). Dr. Somani (PW-8) also established that he

conducted postmortem of Ahphaj. He died due to burn injuries. Dr. Somani (PW-8) also stated that he found burn injuries on Anisha, Badrunnisha,

Neha Bano, Sohel, Reshma, Nagma and Mehmood Ali.

Next question arises that “whether the appellants have committed offence punishable under Sections 436 r/w 120-B, 302 r/w

120-B (three counts) and Sections 307 r/w 120-B (five counts)?â€​

Mehmood Ali (PW-1) and Anisha Bano (PW-2) both were injured eye witnesses. Their presence on the spot is unchallenged. Mehmood Ali (PW-

1) deposed that on 09.01.2006 his sister Anisha came to his house from Bhiwandi along with her four children namely Reshma aged about 8 years,

Nagma aged about 5 years, Neha Bano aged about 2 years and Sohel aged about 4 years. They all stayed together in the house of Rehman which

was set ablaze. As per Mehmood Ali (PW-1) and Anisha (PW-2), their father Ramjan (PW-3) was not present in the house at the time of incident.

All the family members were sleeping together in the house. Mehmood Ali noticed some smell of petrol with the drop of petrol fallen on his body. He

woke up and saw a pipe entered through the window and petrol was coming out from the said pipe. Suddenly, one person threw a burning match stick

inside the house and set ablaze his house. Therefore, he, his mother Badrunnisha, brother Ahphaj, sister Anisha and her four children were burnt.

They all cried for help. Their neighbours came and opened the door, which was closed from outside.

Thereafter, they were brought to the hospital by constables Naim and Anil. Mehmood (PW-1) lodged Dehatinalishi promptly in the hospital. He

suspected that the appellants No.1 to 3 set them ablaze and their house, because the appellants No.1 to 3 are brothers of appellant No.4, who is wife

of Maqsood. She suspected that her husband Maqsood had illicit relation with Badrunnisha (wife of Ramjan). Earlier to the incident, she along with

her brothers i.e. appellants No.1 to 3 threatened to burn Badrunnisha and her family members, therefore, she must not contact Maqsood.

We find that Dehatinalishi (Ex.P/1) was lodged against unknown persons. Anisha Bano (PW-2) (daughter of deceased Badrunnisha and mother of

Reshma) also corroborate the testimony of her brother Mehmood Ali (PW-1). She admitted that she does not know that, who set them ablaze and

their house. She had not stated about it to the police. In para 11, she has also admitted that she does not know how the incident had happened.

Mohd. Ramjan (PW-3) is a material witness, who is the husband of Badrunnisha and father of deceased Ahfaz and grand maternal father of

deceased Reshma. He is father of Mehmood Ali (PW-1) and Anisha Bano (PW-2). Both of them (Mehmood Ali and Anisha Bano) corroborate the

testimony of Mohd. Ramjan that at the time of incident, Mohd. Ramjan was not present in the house. As per daily routine, he went to power loom

factory on his duty at about 8:00 pm. He explained that he knew very well the fact that appellant No.4 Nafisa suspected that, his wife Badrunnisha

had illicit relation with her husband Maqsood. In para 14 of his cross-examination, he admits that he strongly disliked the said relationship of his wife.

In para 16, he admits that the appellants did not quarrel with him, whereas they quarreled with his wife Badrunnisha (since deceased). He advised to

Maqsood not to come to his house.

Ramjan (PW-3) further deposed that he lodged a report in City Kotwali against the appellants relating to threatening. However, no copy of the

aforesaid report has been filed by him before the Court to prove that the appellants had motive to commit such a heinous crime.

Ramjan (PW-3) deposed that on the date of incident at about 8:00 pm, he went to power loom on his duty. At about 3:30 am in the night, one

Zaheer came to the factory and informed him about the incident. He further deposed that while returning home with Zaheer, he saw the appellants

No.1 to 3 going by a motorcycle. When he reached his house, he found that his sons Mehmood and Ahfaz, daughter Anisha, wife Badrunnisha and

children of Anisha sustained burn injuries. All the goods of his house were also burning. In paragraph 5, he deposed that constables Naim and Anil

brought all the injured persons to the hospital. Asif (PW-4) told him that he saw two brothers-in-law of Maqsood while they were running from the

side of his house towards Adarsh Lodge. Ramjan (PW-3) has also stated that he thinks that they may be “brothers-in-laws†of Maqsood. As per

Mehmood Ali (PW-1), Asif is brother-in-law of Ramjan.

Hence, Asif (PW-4) and Zaheer are the best witnesses to corroborate the testimony of Ramjan (PW-3). It is quite natural that if Ramjan saw

appellants No.1 to 3 then Zaheer can also saw them. But Zaheer has not been examined by the prosecution. Asif (PW-4) has been declared hostile.

Thus, the testimony of Ramjan (PW-3) is found uncorroborated. It appears that he presumed the incident was caused by the appellants but he was

not sure and conclusively not established that at the night time, he clearly identified the appellants No.1 to 3 and only the appellants were liable to set

ablaze his house and his family members. Because this is a very heinous crime and the case is not based on direct evidence of eye-witness, but based

on circumstantial evidence. Thus, more burden is on the prosecution to prove all the facts and circumstances strongly against the appellants.

In the case of circumstantial evidence, there is settled rule of facts. In case of Prakash Vs. State of Rajasthan [2013 Cri. L.J.2040], Hon'ble

Supreme Court has held as under:

“In a leading decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, this Court elaborately considered the

standard of proof required for recording a conviction on the basis of circumstantial evidence and laid down the golden principles of standard of proof

required in a case sought to be established on the basis of circumstantial evidence which are as follows:

“153. 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 proved†as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the observations were made: [SCC para 19, p. 807): “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 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.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.â€​

In this regard, some statements of Ramjan (PW-3) are very material. In paragraph 28 he admits that he went to the hospital with his family

members from his house, whereas initially, in para 49 he deposed that after receiving the information from Zaheer, he came to his house along with

Zaheer, where he found smell of petrol and his family members were in burning condition. In para 27 of his cross-examination, he again stated that

when he reached his house, he saw that 20-25 persons were trying to extinguish the fire and save his family members. Such circumstance indicates

that, after seeing the appellants No.1 to 3 on the way, he reached at his house and met with his family members. Thereafter, he went to the hospital

along with the injured persons. But, it is unnatural that he did not convey anything to his elder son Mehmood and other family members about the

presence of appellants No.1 to 3 near their house. In Dehatinalishi (Ex.P/1) lodged by Mehmood Ali, names of appellants No.1 to 3 are not mentioned.

It is lodged against unknown persons.

It is pertinent to mention here that as per Dehatinalishi (Ex.P/1) the incident occurred at about 3:30-3:45 am in the night on 10.1.2006 and

Mehmood Ali (PW-1) lodged Dehatinalishi at about 4:30 am on 10.1.2006 at National Hospital Burhanpur. Ramjan (PW-3) has admitted in para 28

that he lodged report in the police outpost at the hospital and also signed the aforesaid report. Again he stated that, thereafter, his family members

were brought by the police to the hospital. The report lodged by Ramjan (PW-3) is not available on record and in the Dehatinalishi (Ex.P/1), names of

the appellants were not mentioned even then, Ramjan (PW-3) saw them on the way and suspected that they had set ablaze their house and family

members.

Now the question arises that if Ramjan (PW-3) saw the appellants No.1 to 3 just after the incident, why their names were not communicated to

Mehboob, nor their names were mentioned by his son Mehmood in Dehatinalishi (Ex.P/1).

In case of Kishore Chand Vs. State of Himachal Pradesh, (1991) 1 SCC 286. The Supreme Court has held 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 and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. In assessing the evidence

imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. It is not necessary that each circumstances by

itself be conclusive but there must be a chain of evidence so far consistence 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 in all probabilities the act must have been done by the accused and

the accused alone. There is distinction 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. In dealing with this aspect, 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 the chain of events which should be consistent only with hypothesis of the

guilt of the accused 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. 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, or the circumstances or some of them can be explained by any of the reasonable hypothesis

then the accused must have the benefit of that hypothesis, and is thereby entitled to benefit of doubt.

In case of Nathiya Vs. State and Suresh Vs. State (2016) 10 SCC 298, the Supreme Court has held as under:-

“There is a duty of the Court to scrutinize the circumstantial evidence with caution. Circumstances established must be of a conclusive nature

consistency only with the hypothesis of guilt of accused. The inference of guilt can be justified only when all the incriminating facts and circumstances

are found to be incompatibility with the innocence of the accused or the guilt of any other person. Moreover, all the circumstance should be completed

and there should be no gap left in the chain of evidence. Further the proof circumstance must be consistent only with the hypothesis of guilt of

accused and totally inconsistent with his innocence.â€​

In the present case, in our opinion the testimony of Ramjan (PW-3) is not of conclusive nature. Further that for the non-examination of Zaheer, it

is found uncorroborated. So such type of evidence cannot be sufficient to prove the prosecution story beyond reasonable doubt.

Constable Naim (PW-13) is also an important witness. He deposed that in the intervening night of 09th and 10th January, 2006 he along with

Constable Anil were performing night duty at Mandi Chouraha. They went towards bus stand for having tea at about 03-03.30 am. Suddenly, they

saw that one house was surrounded with fire, hence, they reached there. Naim (PW-13) also saw that 2-3 persons running towards Adarsh Lodge, he

has not identified them. Thereafter, he found that some children and ladies were kept in a room in burning condition. He found smell of petrol in the

room. About 8 persons were affected there. Further, this fact was omitted in his police statement. He explained that he gave first priority to save all

the injured persons. Hence, they did not follow the aforesaid 2-3 persons. The testimony of Naim (PW-13) is also not of a conclusive nature.

On the other hand, Investigating Officer N. Venkteshwaran (PW-26) deposed that on 10.01.2006, he registered Dehatinalishi (Ex.P/1) as narrated

by Mehmood Ali against the unknown persons. Thereafter, he reached at the spot, where he found a white burnt pipe, two white cans in burnt

condition, burnt pieces of clothes, one burnt match stick, a cotton with smell of fuel and simple cotton. All the articles were seized by him vide seizure

memo (Ex.P/68). He also prepared spot map (Ex.P/69) and memo of damages (Ex.P/2) in the presence of Surendra Singh and Kishor Nagar. He

started investigation and recorded the statements of Badrunnisha, Anisa, Asif, Mohd. Hussain, Shiekh Usman, Shiekh Mehmood, Mehmood Ali and

Ramjan on 10.01.2006. The statements of Badrunnisha (since deceased) is Ex.P/70 and Ahfaz is Ex.P/71. Thereafter, he interrogated the appellant

Syed Naseer in presence of witness Mehmood and Kayyum. Syed Naseer narrated about his motor cycle bearing Registration No.MP 12-A/6239,

which was parked at Locoshed, Khandwa. Investigating Officer N. Venkteshwaran (PW/26) seized aforesaid motorcycle from the Locoshed,

Khandwa. But, no evidence is collected by him about the ownership of the said motorcycle. Prosecution has failed to establish that the said

motorcycle belongs to the appellants.

As per the memorandum of appellant Syed Zakir, Venkteshwaran (PW-26) seized one container of fuel. It is alleged that after the incident, it was

thrown by him in a culvert. The memorandum of the aforesaid appellants are Ex.P/27 and Ex.P/28. Other appellant Syed Abid narrated him about a

receipt vide his memorandum (Ex.P/29). One container capacity of five liters was seized from his possession in which smell of kerosene oil was

coming out, which was seized vide seizure memo (Ex.P/26).

All the proceedings were recorded by videographer Kishor Nagar. Photographs were also taken by Investigating Officer with the help of

photographer. When Badrunnisha and Ahfaz died, merg intimation was recorded by him.

Kishore (PW-15) deposed that after arresting the appellants, police recorded confession statement of them before the media. In the CD (Article-

2A), the appellant Abid stated that family life of my sister was destroyed due to the whore (Badrunnisha), and hence we destroyed them but children

died due to the mistake and we regret for the same. Another appellant Jakir has stated that we have finished her and if anybody would come in her

favour, we will also finish them. That time, police conveyed him that three appellants are involved in the incident and two persons actively participated

and one appellant was watching them. Mukesh (PW-22) also deposed that he recorded the press conference organized by the police/news reporters

between the appellants and in other way, the confession of the appellants before media persons, at that time the appellants were handcuffed and

police personnel were also present there. It is important to note that the aforesaid CDs were examined by the trial Court. Further that CDs are not

admissible as primary evidence in law.

In case of Chhatar Singh Vs. State of Haryana, reported in 2009 Cri.L.J. 319 the Supreme Court has held that :-

“If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession,

the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be

satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by

themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is

voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for

reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied

that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is

deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warickshall) It is not to be conceived that a

man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts

confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary

confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous

interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The

inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if

disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always attached to the confession

alternative while a threat is always attached to the silence alternative.

In case of Kishore Chand Vs. State of Himachal Pradesh, (1991) 1 SCC 286, the Supreme Court has held that:-

“Extra judicial confession must satisfy the requirements of Sections 24, 25 and 26 strictly. It must be voluntarily and can be relied on along with

other evidence. It has to be proved like any other fact, Court has to look into veracity of the witness to whom confession made, actual

words used by the accused and the surrounding circumstance, it should not be obtained by circumventing Sections 25 or 26. If the extra judicial

confession was made while accused was in police custody and hit by Section 26. It shall not be treated as proved against accused. There is some

inconsistency present as alleged by the prosecution that house of the victims was set ablaze by using petrol. But, in the container seized by the police,

smell of kerosene oil was coming out. Therefore, it cannot be connected with the crime.

As stated by N. Venkteshwaran (PW-26), the appellants Syed Abid and Syed Jakir confessed their crimes before the Press Conference. This

VDO was recorded by Kishore (PW-15) and Mukesh (PW-22). But he has admitted in paragraph 59 of his cross-examination that there is no entry in

the case diary about the Press Conference held by the police nor any other record has been produced by the police about the Press Conference

before the trial Court. At the time of VDO shooting, appellant No.3 Syed Nasir did not confess his crime nor the appellant No.4 Nafeesa Bi was

arrested immediately. Looking to the statement of N. Venkteshwaran (PW-26), it creates a doubt that during the Press Conference held by the police,

appellants No.1 and 2 i.e. Syed Abid and Syed Jakir confessed voluntarily before the press reporters. There is a ground for reasonable doubt that

under compulsion or threat made by the police, the appellants No.1 and 2 confessed their crime. Such confessions are is not specifically against the

deceased Badrunnisha by her name or her family members. The Press Conference was conducted while the appellants were in custody.

N. Venkteshwaran (PW-26) has stated that appellant Syed Abid gave information about the petrol pump from where, they purchased petrol for

the alleged incident. He has not collected the information about the petrol pump from where, the appellant had purchased petrol in bulk quantity. It is

pertinent to note that at the time of incident, there were so many petrol pumps working at Burhanpur.

As stated by Ramjan (PW-3) and his son Mehmood, it is undisputed fact that the appellants were annoyed with the deceased Badrunnisha. They

had suspected that she had illicit relationship with Maqsood (husband of appellant No.4). So that, the appellants had strong motive to kill Badrunnisha.

They may be culprit but it is strong suspicion against them which is not sufficient nor conclusive to convict them in such type of heinous crime.

In the case of Khekh Ram vs. State of H.P. [2018 (1) M.P.L.J. (Cri.)(S.C.) 553], the Supreme Court has held that :-

“Suspicion however grave cannot take place of proof - prosecution has to prove its case beyond all reasonable doubts.â€​

In para 23, the Supreme Court has discussed as follows:-

“The prosecution case has to be in the category of “must be true†and not “may be trueâ€. This Court while dwelling on this postulation, in

Rajiv Singh vs. State of Bihar and another, (2015) 16 SCC 369 dilated thereon as hereunder:-

“66. It is well entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence

to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise

stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well established cannon of criminal justice is ""fouler the

5 (2015) 16 SCC 369 crime higher the proof"". In unmistakable terms, it is the mandate of law that the prosecution in order to succeed in a criminal

trial, has to prove the charge(s) beyond all reasonable doubt.

The above enunciations resonated umpteen times to be reiterated in Raj Kumar Singh v. State of Rajasthan as succinctly summarized in paragraph

21 as hereunder:-

Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ""may be"" proved and

will be proved"". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that

the mental distance between ""may be"" and ""must be"" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court

has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ""may be"" true and ""must be

true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a

convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ""may be"" true and ""must be"" true,

the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial

scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence

brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the

benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair

doubt that is based upon reason and common sense. [Emphasis laid by the Court]

In supplementation, it was held in affirmation of the view taken in Kali Ram v. State of H.P. that if two views are possible on the evidence

adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be

adopted.

In terms of this judgment, suspicion, howsoever grave cannot take the place of proof and the prosecution case to succeed has to be in the category

of ""must be"" and not ""may be"" a distance to be covered by way of clear, cogent and unimpeachable evidence to rule out any possibility of wrongful

conviction of the accused and resultant miscarriage of justice. For this, the Court has to essentially undertake an exhaustive and analytical appraisal of

the evidence on record and register findings as warranted by the same. The above proposition is so well-established that it does not call for multiple

citations to further consolidate the same.â€​

We are of the considered view that there is not only insufficient evidence but also lack of credibility on the trustworthiness of Ramjan (PW-3),

which does not culminate into proving the prosecution case and alleged guilt of the accused. In case of Goving Nargundkar Vs. State of M.P. 1953

Cri.L.J. 129. It was held that:-

“It is well to remember that in cases where the evidence in of a 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. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one

proposed to be proved. In other words, there must be a chain of evidence so far 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 human probability the act must have been done by the

accused.â€​

After considering the aforesaid principles, in case of Dev Kanya Tiwari Vs. State of U.P. AIR 2018 SC 1377. The Supreme Court has held as

under:-

“The paramount consideration of the Court must be to ensure that miscarriage of justice is prevented. Much acclaimed notion of criminal justice is

that if two views are possible basing on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence of

accused, the view which is favourable to the accused should normally be adopted. We are therefore, constrained to observe that the Courts below

must have persuaded himself to give the benefit of doubt to the appellants, as in the peculiar circumstances of this case, it is not safe to convict the

accused under Section 302 of the IPC.â€​

After evaluating the entire prosecution evidence with great caution, we come to the conclusion that at the time of incident or just after the incident,

presence of the appellants on the spot or nearby the spot is not duly established by the prosecution or by Ramjan (PW-3). Their identification is also

doubtful. Other circumstantial evidence is not sufficient to establish the guilt of the appellants beyond reasonable doubt. Further that, extra judicial

confession of the appellants No.1 and 2 cannot be found reliable nor it is sufficient to convict them.

In view of the foregoing discussion, appeal filed by the appellants is hereby allowed. Their conviction and sentence awarded by the trial Court is

hereby set aside. They are acquitted from the charges levelled against them. They be released, if they are not required in any other case. If the

appellants are on bail, their bail bonds stand discharged.

Copy of the judgement be sent to the trial Court along with its record for information.