Umesh Chandra Sharma, J.

1. Heard Shri Arvind Kumar Kushwaha, Ms. Pooja and Shweta Kesarwani, learned counsel for the sole appellant and Shri N.K Srivastava, learned AGA for the state.

2. This appeal has been preferred by accused Vinod Chaudhari, husband of deceased, Sangeeta, against the judgment and order dated 13.2.2019 of conviction and sentencing in S.T. No. 10 of 2015 (State of UP Vs Vinod Chaudhari) arising out of crime No. 869 of 2014 u/s 302 IPC, Police Station Chopan, District Sonbhadra by ASJ II Sonbhadra.

3. In brief, facts of the case are that informant Lallu Chaudhary, elder brother of the appellant, on being informed by the appellant in the night of 30-9-2014 that his wife has been found dead inside the room, occupied by them rushed to the place of occurrence and saw the dead body of the deceased laying on the bed with spitted throat. The informant (PW 1) moved the complaint (Ex A13) on 1- 10-2014 at 5:15 a.m against unknown miscreants. A chik FIR was prepared and police visited the place of occurrence thereafter and performed the punchanama, sent dead body for post-mortem. As per I.O., during the course of investigation the appellant confessed the guilt and on his pointing blood stained axe alleged to be used in commission of crime was recovered from the heap of woods nearby the place of occurrence. After recording evidence of the concerned witnesses I.O., R.B Maurya (PW-10) submitted charge sheet (Ex Ka 12) against the appellant u/s 302 IPC.

4. On 14-5-2015 the appellant was charged u/s 302 IPC to which he pleaded not guilty and claimed to be tried.

5. Following witnesses were examined by the prosecution to prove the guilt of the accused:

6. Following material exhibits were relied on by the prosecution:

7. After closer of prosecution evidence the statement of the accused u/s 313 Cr.P.C was recorded wherein he outrightly denied all the charges and incriminating evidence against him and claimed to be innocent.

8. In this case all the witnesses of fact and recovery have been declared hostile and they have not supported the prosecution version. The learned trial court has accepted that the witnesses have not supported the prosecution version, the chain of circumstances is not complete, the motive has not been proved, yet relying on the citations Anter Singh Vs. State of Rajasthan (2004) 10 SCC 657, [LQ/SC/2004/169 ;] ">(2004) 10 SCC 657, [LQ/SC/2004/169 ;] [LQ/SC/2004/169 ;] Tirmukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681 [LQ/SC/2006/929] and Ganeshlal Vs. State of Maharashtra, 1992 (3) SCC 106, [LQ/SC/1992/320] convicted the accused with the help of section 106 of the Indian Evidence Act. The appellant has challenged the impugned judgment on the grounds that it is incorrect, illegal, arbitrary, severe excessive and against the weight of evidence on record. The appellant has been convicted without considering the facts and evidence on record. The offence was committed by the unknown person. The prosecution story has not been supported by the hostile witnesses but this aspect has not been considered by the trial Court, there was no strong motive to the appellant to commit such offence. The trial Court has ignored the material, oral and documentary evidence and has illegally convicted the appellant. Hence the impugned judgment and order be set aside.

9. From the above facts and evidence it is clear that it is not a case of direct evidence but it is based on circumstantial evidence in which if the chain of the circumstances is complete only then an accused can be convicted. In such a case motive, last seen, recovery, extra judicial confession like necessary elements are also considered. It has to be seen as to whether the aforesaid ingredients necessary for the conviction of an accused have been sufficiently established and proved by the prosecution or not. These necessary ingredients are being discussed herein below in the light of facts of the case and evidence available on record.

(a) Motive : In written complaint no motive has been assigned to the appellant even none of the witness even the I.O. has not deposed a single word about the motive behind the crime. Generally such brutal crimes are caused due to some motive available to the accused. P.W. 3 Nandu Chaudhary has deposed that the relation between the deceased and the accused were cordial. Though P.W. 7 has been cross-examined by the public prosecutor and the witness was contradicted under Section 145 of the Evidence Act from his previous statement under Section 161 Cr.P.C. in which he denied any illicit relation between the deceased and Guddu Chadudhari alias Shashi Kant and also that the deceased had gone with him for three days and when returned, she was pardoned by the appellant.

P.W. 2 Radheshaym Chaudhary has also denied any estrangement between the deceased and the appellant. Thus neither any motive has been taken by the prosecution nor it has been proved.

In Bhaskar Rao and Others Vs. State of Maharashtra, (2018) 6 SCC 591, [LQ/SC/2018/603] Ujjagar Singh Vs. State of Punjab, (2007) 13 SCC 90, [LQ/SC/2007/1554] it has been held that the motive has significance in cases based on circumstantial evidence.

In Shivaji Chintappa Patil Vs. State of Maharashtra, 2021 0 Supreme (SC) 121, it has been held that in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. If motive could not be proved the chain of circumstances would not be said to be completed.

The above citations apply in favour of the appellant and it is concluded that there was no motive to the appellant to kill the deceased.

(b) Alibi and last seen: As per F.I.R., it is case of the prosecution that when the appellant came to the house after taking dinner at the house of his brother in law at 9 : 00 P.M., he found that his wife deceased Sangeeta had been killed by splitting her throat. He has also written in the complaint that this information was given by him belatedly. No children of the deceased or any neighborer has supported the prosecution version that soon before the death of the deceased, the accused was present in the house. As per F.I.R., the accused had gone at the house of his brother in law for dinner and he was not present on the spot at the time of occurrence. When he came to his house, he found his wife was killed. In this regard no witness of fact has deposed that at the time of occurrence or soon before death of the deceased, the accused was present on the spot. Informant P.W. 1 Lallu has deposed that the accused was very fond of his wife and loved a lot, there was good relation and love between the two. He was very upset and sad after the death of his wife. P.W. 2 Krishna has also deposed that in the night, the deceased was strangled to death by someone, he did not see anyone while committing the murder. The deceased was present at the time of inquest. P.W.3 Nandu has deposed that at 9:30 P.M. in the night they came to know about the murder of the deceased by the accused. The murder must have happened before that, how and by whom, he don't know. It has also been deposed by him that there were good relations between the accused and his wife. P.W. 5 Jairam Chaudhary has deposed that on the fateful night the accused Vinod Chaudhary, cousin brother Manoj Chaudhary and brother in-law had taken chicken dinner party. It will take 15-20 minute to reach from his house to the house of the accused. At 9:10 P.M. in the night they were informed that the deceased had been killed, he does not know as to why and by whom she was killed. This witnesses has also stated that his wife is cousin of deceased Sangeeta and she never complained that she has any problem with the accused or accused troubled her. The accused had gone to his house directly from his house. He also deposed that when the accused was at his house, Sangeeta had come to ask about making evening meal. After meeting with Hari Ram and his wife she had returned. Similar statement has been given by P.W.6 Manoj Chaudhary brother in law of the accused. This witness has also deposed that Vinod had good behavior with his wife when Vinod went from the house of Jayram, after 10-15 minutes, it was known that Sangeeta was killed. Thus from the above evidence it could not be established that soon before death the deceased and accused were together. It could not be proved that the deceased died after reaching the accused at his house.

In Kulwinder Singh Vs. State of Punjab, AIR 2007 SC 2868 [LQ/SC/2007/975] , it has been held that there must be proximity of time and place. In this case it is lacking.

In Ganpat Singh Vs. State of M.P., (2018) 2 SCC (Cri) 159, it has been observed, it would be difficult in some cases to positively establish that the deceased was lastly seen with the accused when there is a long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in such cases.

In this case the prosecution has failed in establishing that soon before death the deceased was with the accused but it has been proved that when the accused came to his house, he found the deceased was killed by splitting her throat.

On the basis of above discussion this Court is of the conclusion that the chain of circumstantial evidence as last seen together has not been proved beyond reasonable doubt and it is concluded that the deceased had died when the accused was taking dinner at the house of his brother-in-law.

(c) Extra judicial confession- The prosecution has not taken the pleas of extra judicial confession by the accused, though as per I.O., the accused had confessed his guilt before him and at his disclosure statement the blood stained axe was recovered from the heap of woods on his pointing. Such statements written in the case diary has not been proved by the I.O. and such confessions can not be proved in view of Section 25 of the Evidence Act.

(d) Recovery: According to the I.O., the accused confessed his guilt and made a disclosure statement on which the blood stained axe used in commission of crime was recovered on his pointing. P.W.4 Shyam Charan Giri has denied that on 3.10.2014, the alleged axe was recovered from the heap of woods before him on the pointing of the accused Vinod. He has also denied that such axe was sealed before him and has also denied preparation of recovery memo of the axe before him rather he has deposed that on 3.10.2014 he was in Chopan. P.W. 10, I.O. R.B. Maurya, has proved the recovery memo and has also proved the axe as M Ex. 1. but has accepted that he has not written the time of its recovery, neither the wooden part nor the sharp edged part was signed by him.

In this regard, the FSL report is also considered in which blood was found on the axe but it could not be ascertained as to whether it was human blood or not, hence it can not be said that the sharp edged part of the axe was containing human blood of the deceased. The argument of the learned counsel for the appellant is material that if there was any doubt upon the appellant, why he would keep the axe there. Since he had not escaped after the incident and was not arrested, he had ample opportunity to destroy it. Generally such axe are found in every house and when it has not been proved that there was human blood on it, it can not be said that the said axe was used in commission of crime by the accused and when the I.O. found it to be a blind case, he charge-sheeted the accused to shift his burden.

Thus, this Court is of the view that the prosecution has failed in establishing that the axe M Ex. 1 was used in commission of crime and it was containing human blood or it was recovered on the pointing of the accused.

(e) It is also not a case of the prosecution that after the commission of crime, the accused had absconded. Sometimes abscondance of an accused is considered in favour of the prosecution but in this case it has been proved that after knowing that the wife of the accused has been killed, he informed his brother and lodged F.I.R. through him.

(f) Applicability of Section 106 of the Indian Evidence Act- The learned Trial Court has based his judgment of conviction and sentencing upon Section 106 of the Evidence Act and has relied on Trimukh Maroti Kirkan (Supra) in which it had been proved that when the wife was injured in the dwelling house, the husband ordinarily resided there and the husband offered no explanation for the injuries to his wife. In that situation the Apex Court held that the husband was responsible for the injuries.

In this case the facts are quite different. It is not denied that the accused and the deceased were not living together in their dwelling house but it could not be proved that at the time of commission of crime the accused was present there.

Section 106 Evidence Act is as under:-

“106. Burden of proving fact especially within knowledge.— When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations.

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.”

In P. Mani Vs. State of Tamilnadu, AIR 2006 SC 1319 [LQ/SC/2006/161] , it has been held that it is for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, accused and deceased were last seen together inside a room. Hence Section 106 of the Evidence Act can not be said to have any application whatsoever.

In Kailash Chandra Vs. State of Rajasthan, (2017) 11 SCC 268, [LQ/SC/2016/596] it has been held that it is trite that prosecution has to stand on its own legs and sufficient evidence should be produced to prove the allegation, no aid of Section 106 can be taken by the Trial Court.

Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused, but the Section would apply to the cases where prosecution has succeeded in proving facts for which reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference.

In para 22 of Shivaji Chintappa Patil (Supra), it has been held that ----

22. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.

In para 28.1 of Smt. Gargi Vs. State of Haryana, 2019 0 Supreme SC 1042, it has been held that---

28.1. Insofar as the ‘last seen theory’ is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act11 directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:-

“10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt.

It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused……”

10. The appellant has relied on following rulings:

Satye Singh and Another Vs. State of Uttrakhand 2022 0 (SC) 143, in this case the deceased was the wife, the entire case was based on circumstantial evidence as there was no eyewitness to the alleged incident, injuries on the dead body were ante mortem in the nature, no incriminating articles were recovered during the investigation and no attempt was made to collect any evidence much less cogent evidence to connect the accused with the alleged crime. The deceased had left house on previous evening of the alleged incident. It was held that circumstances howsoever strong can not take place of proof and guilt of accused have to be proved by prosecution beyond reasonable doubt. Prosecution had miserably been failed in proving the entire chain of circumstances that the alleged act was committed by the accused only and none else. Hence the order of conviction and sentencing passed by the High Court of Uttrakhand was quashed and the accused were acquitted.

In Devilal; Babulal vs. State of Rajasthan 2019 Law Suit (SC) 36, it has been held that while scrutinizing the circumstantial evidence, a Court has to evaluate it to ensure the chain of events clearly and completely established to rule out any reasonable likelihood of innocence of the accused, there must be evidence to come to conclusion that there can not be a person other than the accused who alone is the perpetrator of the alleged crime and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused.

In para 11 of Shivaji Chintappa Patil (Supra) similar principles have been laid down regarding the cases based on circumstantial evidence.

“11. The law with regard to conviction on the basis of circumstantial evidence has been very well crystalised in the 5 (2010) 9 SCC 189 6 (2019) 19 SCC 447 7 (2006) 12 SCC 254 [LQ/SC/2006/1050] judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra8 :-

“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 [LQ/SC/1973/251] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] “19. …..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. “

11. On the basis of above discussion this Court is of the view that any ingredient mandatory for conviction and sentencing of an accused in a case based on circumstantial evidence has not been proved beyond reasonable doubt and chain of circumstantial evidence also could not be established against the accused-appellant. Thus, this Court concludes that the order of conviction and sentencing passed by the learned Trial Court is not liable to be sustained in the eye of law and is liable to be set-aside.

Order

The appeal is allowed and the impugned order of conviction and sentencing dated 13.12.2019 is hereby quashed. Let the appellant be set free from jail. This order be sent immediately to the Jail Superintendent concerned. Lower Court record be sent back along with a copy of this judgment.

Further Order

After we pronounced the judgment, we are told that there is marriage of the daughter of the appellant. We, therefore, direct the Registry to send operative portion of this judgment to the Jail Authority by E-mail so that the appellant be set free on or before 3rd of May, 2023, with compliance to this Court.