B.N. Agrawal and H.K. Sema, JJ.

1. Heard learned Counsel for the parties.

2. The Appellant herein was convicted by the trial court u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He was further convicted u/s 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. The sentences rendered were to run concurrently. On appeal being preferred, the High Court of Madras upheld the convictions. Hence, this appeal by special leave.

3. Undisputedly, in the present case, there is no direct evidence and this is a case of circumstantial evidence. The prosecution has alleged two circumstances against the accused. The first circumstance is that the accused was last seen with the deceased in the hotel where in a room, the dead body of the victim was recovered. The prosecution has attempted to prove this circumstance by the evidence of P. Ws. 1, 2, 3, 4, 6 and 9. The Appellant was put to the test identification parade where these witnesses are said to have identified the Appellant, but in their evidence, they admitted that the photograph of the accused was shown to them before holding the test identification parade. In view of the fact that the photograph of the accused was shown to the witnesses, their identification in the test identification parade becomes meaningless and no reliance could be placed thereon. The presence of the accused and the victim in the hotel has also been attempted to be proved by the fact that the Appellant made an entry in a register maintained in the hotel showing therein that he had taken a room on the fateful day for staying there. The entry in the register, according to the prosecution, is said to have been made by the accused in his own writing. As the accused denied the writing, the same was sent to the handwriting expert for examination, who has reported that the writing in the register did not tally with the admitted writing of the accused. Thus, we are of the view that the prosecution has failed to prove this circumstance by credible evidence.

4. Now, the only circumstance which remains is that the accused has a motive for the commission of the offence which alone cannot form the basis for conviction as it is well-settled that in a case of circumstantial evidence, the circumstances should be such so as to lead to only one irresistible conclusion, which is incompatible with the innocence of the accused. This being the position, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in upholding the conviction of the Appellant.

5. Accordingly, the appeal is allowed, The convictions and sentences of the Appellant are set aside and he is acquitted of all the charges. The Appellant, who is in custody, is directed to be released forthwith, if not required in connection with any other case.