DINESH BORTHAKUR v. STATE OF ASSAM

Citation: [2008] 4 S.C.R. 881

Court: Supreme Court of India

Bench: S.B. SINHA, DALVEER BHANDARI

Case summary

DINESH BORTHAKUR v. STATE OF ASSAM.pdf

Judgment text

[2008] 4 S. C. R. 881 DINESH BORTHAKUR v. STATE OF ASSAM (Criminal Appeal No. 687 of 2007) MARCH 13, 2008 ---/ (S. B. SINHA AND DALVEER BHANDARI, JJ.

) Penal Code, 1860; Section 302: r \ Murder - Accused-husband convicted for committing murder of his wife and adppted daughter on the basis of circumstantial evidence - Sentenced to undergo rigorous imprisonment for life - Affirmed by High Court - Correctness of - Held: Incorrect - A finding of guilt cannot be based on presumption - No motive for committing the crime was identified - No finding has been recorded by the Courts below as to the presence of accused at the place of occurrence - No material produced by prosecution to show that any resistance offered by the deceased when accused allegedly committed the crime - Medical report does not conclusively show that deceased suffered homicidal death - Deposition of witnesses including star witness reveals that there was no unusual conduct noticed on the part of accused - Merely because accused did not cry/weep on seeing the dead body of his wife and daughter, cannot be made the basis for holding him liable for committing the crime - No incriminating evidence linking accused in administration of poison to deceased has been brought on record - Thus, circumstantial evidence leading to guilt of accused for committing the murder of his wife and daughter not established by prosecution - Hence, judgment of conviction and sentence against accused cannot be sustained and set aside - Circumstantial evidence - Conviction based upon.

Delay in lodging of FIR by husband - Adverse inference - Held: Accused asked someone to inform police about the M1 incident and when he did n. ot inform, then only the accused ~· did so - Under the circumstances, no presumption of adverse inference could be raised against the accused. On the fateful· day, accused-husband, after returning from Office knocked the door of his house, when no response received, he called his immediate neighbour, PW-1, for help. He went inside the premises from backside and found both his wife and daughter lying dead on -. { different beds. PW-1 also found dead bodies of both, wife and daughter of the accused, lying on beds. He then went to the Police Station and lodged an FIR. During investigation, a sniffer dog was brought into service by the Police. It allegedly went close to the accused husband. Police, after examining various witnesses, submitted charge-sheet against the accused for committing the murders of his wife and daughter.

Trial Court found him guilty for committing the offence of murder of his wife and daughter; convicted him u/s. 302 IPC and sentenced him to undergo rigorous imprisonment for life. Appeal filed thereagainst was dismissed by the High Court. Hence the present appeal. Allowing the appeal, the Court HELD: 1. 1 The Trial Judge failed to analyse the evidence of the prosecution witnesses in a proper and effective manner. Although opining that the accused had '. ,£ no motive to kill his wife and the adopted daughter, the effect thereof was not considered keeping in view the fact that the prosecution rested its case only on circumstantial evidence. The Trial Judge, although took notice of the statements of PW13, a resident living about a furlong from the house of the accused, that the spectacles of the appellants were found lying on a book of the deceased daughter of the appellant, drew no inference therefrom. )..

__ He also did not make any attempt to determine the relevance of the said evidence. This Court does not find the said evidence having any relevance to the prosecution case. (Para - 29) [893-8, C, D] 1. 2 The Trial judge accepted that there was no evidence brought on record to show that the accused was _seen at the place of the occurrence of crime during the 8 period between 11. 30 A. M. in the morning hours and at about 4. 00/5. 00 P. M. in the afternoon, so as to enable him to infer that the accused could forcibly administer poison to the deceased or strangulate them or to do the both so as to cause their deaths. He further recorded that PW6 admitted in his evidence that the nail scrapping taken from the two deceased did not correspond to the skin scrapping taken from the body of the accused. Thus, there was no evidence of any mark of struggle by and between the two deceased with the accused. (Para - 30) [893-8, C] 2.

1 The purported absence of any reaction on the apart of the appellant in regard to the death of two deceased was for all intent and purpose made the sole . basis for his conviction by the Trial Judge of the offence. (Para - 31) [893-G; 894-A] 2. 2 A finding of guilt cannot be based on presumption. Before arriving at an. inference that the appellant has committed an offence, existence of materials therefor ought to have been found. No motive for committing the crime was identified which, in the facts and circumstances of the case, was relevant. How the links in the chain of the circumstances led to only one conclusion that the appellant and the appellant alone was guilty of commission of the offence has not been spelt out by the Trial Judge. (Para - 33) [894-E, F] 2. 3 The courts below did not record any finding on the basis of the material brought on record by the prosecution that the appellant was seen at the place of occurrence of the crime. The least the pros_ecution, in this .

, behalf, could do was to examine the co-employees of the appellant who had been working in his office to find out -f as to when he had reached his office or whether he had left his office at any time prior to 4. 00 pm. No evidence was also led to bring on record the distance between . the house of the appellant and his office. No witness also deposed in regard to the mode of his _travelling. (Para - 34) [894-F, G, H; 895-A] 2. 4 The time lag between the appellant's calling PW1 -{" for the first time and the second time was a few minutes. The pros~cution did not suggest nor any finding has been arrived at that the offence could have been committed during the said interval. (Para - 35) [895-8, C] 2. 5 It is the admitted case of the prosecution that the accused had asked PW1 to come and have a look. PW1 himself was uncertain as to whether the deceased were already dead or not.

The conduct of the appellant, so far his initial reaction to the occurrence is concerned, appears to be most natural as he suspected that something was wrong but was unsure thereabout at the same time. In any view of the matter, it does not give rise to an inference. which is consistent with the hypothesis of guilt. (Para - 36) [895-D, E] 2. 6 PW6, in his evidence, in no uncertain terms, admitted that the scraping of nails taken from the two deceased did not correspond to the scrapping of skin taken from the body of the appellant. The prosecution also did not bring on record any material to show that the deceased had put up any resistance when the appellant had allegedly tried to commit the crime. Medical evidence brought on record also does not conclusively show that the deceased wife had suffered a homicidal death as is evident from the autopsy report. (Para -37) [895-F, G] ) 2.

7 The mainstay of the prosecution case is the evidence of PW6, PW8, PW9 and PW13 who testified about DINESH BORTHAKUR v. STAT-E OF ASSAM 885 .. )-- the sniffer dog's staying near the accused and the ,.... reaction of the accused was not natural as he did not exhibit his emotion or sadness despite the fact that shocking incident had occurred. The law in this behalf is settled that while the services of a sniffer dog· may be taken for the purpose of investigation, its faculties cannot 8 be taken as evidence for the purpose of establishing the guilt of an accused. (Para - 38) [895-H; 896-A, G] ; 't Abdul Rajak Murtaja Dafedar vs. State of Maharashtra (1969) 2 SCC 234; Gade Lakshmi Mangaraju alias Ramesh vs. State ofA. P (2001) 6 sec 205 - relied on. 2. 8 PW1 was considered to be the star witness by the prosecution. He was in his house upto 11. 30 am. It can safely be inferred from his deposition that he had come back to his residence much prior to the appellant.

He had not noticed any abnormality in the locality. Other ,. ( witnesses who were the neighbours of the appellant and/ . or the shop owners who have their shops on the other side of the road were also not aware of any incident before the appellant reached his residence. PW1 and PW2, in their deposition, did not notice any unusual conduct on the part of the appellant or the deceased on that day. This Court failed to see any abnormality in the initial reaction of the appellant. (Paras -40 & 41) [897-A, 8, E] Rana Partap and others vs. State of Haryana (1983) 3 ,. _ 7' sec 327; Marwadi Kishor Parmanand and Another VS. State of Gujarat (1994) 4 SCC 549 and State of UP vs. Devendra Singh (2004) 10 SCC 616 - relied on. 2. 9 No hard and fast rule having any universal application with regard to the reaction of a person in a given circumstance can, thus, be laid down. One person '-. may lose equilibrium and balance of mind, but, another ~ "".

' may remain a silent spectator till he is able to reconcile himself and then react in his own way. Thus, merely because the appellant did not cry or weep on witnessing JI the dead bodies of his wife and daughter, cannot be --1 ~ ~~ made the basis for informing his guilt. (Paras - 43 & 44) [898-E, F, G] · 2. 10 The only unusual thing noticed by PW1, PW2 and PW3 was the . abnormal crying of the deceased daughter of the accused in the morning for a . long time. Something, therefore, must have. happened between the mother and the daughter. It is difficult to believe that a six ... --1 year old girl would cry so loudly and that too for such a ;long span of time so as to draw the attention of the ~ neighbours only because the mother was giving her a bath. Something, therefore, must have happened which the deceased was trying to hide. (Para - 40) (897-C, D, E] 3. 1 If the theory that he cou. ld h.

ave committed the murder within a couple of minutes is ruled qut, this Court failed to see on what basis even _a suspicion could have ).. _ I been raised that the appellanthad committed the~rime.. lt ~ is not the case of the prosecuti9n that the deceased were last seen in the company Of the appellant. Nobody had seen him going inside his house or coming out at the time of or near about the commission of the crime. ,_ I (Para - 45) (898-G, H; 899-A] l ~ 3. 2 Ordinarily, an accused person after commission J of such a ghastly crime would run away from the scene I of occurrence but he did not do so. Even if he was to .. { pretend that he did not know about the said occurrence, he could have stayed back in his office waiting for the call of his neighbours about the death of his wife and ! daughter. The conduct or reaction of the accused (or lack of it) by itself, thus, cannot be a ground for arriving I at conclusion that he is guilty of commission of crime. ,.

Formation of another opinion is also possible. (Para - ;. t 45 and 46) [899-B, C, D] 4. The prosecution made an attempt to show that the deaths of the victims were caused by administration of ~ )'-poison and/or strangulation. The bottle containing pesticide was found in the wash basin along with a glass inside the house. There is nothing on record to show that the appellant had purchased pesticide or brought it home. No fingerprint of the appellant was taken to show that it was he who had used the bottle or the glass for the said purpose. No incriminating evidence linking the appellant in regard to administration of poison/pesticide has been ~ )brought on record. (Para - 50) [900-B, CJ Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 sec 116 - relied on. 5. 1 First Information Report might have been lodged by the appellant only when the police arrived at the scene of occurrence. The Investigating Officer came to the place of occurrence at about 4. 45 pm.

PW1 categorically stated that he had asked someone to inform the police. When --4 he did not comply therewith, then only he did so. If, in the - 19. PW11, Sri Ganesh Borthakur is the· brother of the accused. He, having been informed, visited the place of I occurrence. His evidence is not very material. .... " 20. PW12 is Smt. Manjuri Borthakur. According to her, she I -- )r The learned Trial Judgealso noticed that the sniffer dog thad gone near the appellant only and nobody else when he had been inside the house. According to the learned Trial Judge, ', the behaviour of the accused was abnormal as he had neither wept nor cried nor shown any sign ofshock or being upset at the scene of death of 'his own wife and adopted daughter'. Emphasis was also laid on the fact that when the appellant was being interrogated by the Investigating Officer, allegedly, he had ).. told him that he was feeling hungry and had bought some food from a line hotel. [S. S. SINHA, J. ] 28.

In his judgment, the learned Trial Judge referred to the .... ~ { statements of the appellant in his examination under Section 313 of the Code of Criminal Procedure in great details. Statements of PW1 was also quoted in extenso. 29. The learned Trial Judge, however, in our opinion, failed to analyse the evidence of the prosecution witnesses in a proper and effective manner. Although opining that he had no motive to kill his wife and the adopted daughter, the effect thereof was not j considered keeping in view the fact that the prosecution rested "' its case only on circumstantial evidence. The learned Trial Judge, although took notice of the statements of PW13 that the spectacles of the appellants were found lying on a book of Munni, drew no inference therefrom. He also did not make any attempt to determine the relevance of the said evidence. We, however, do not find the said evidence having any relevance to the prosecution case.

The learned Trial Judge furthermore placed on record that according to PW13, marks of blood on the nails _... of the deceased having been noticed, the Investigating Officer got the shirt removed from the body of the appellant and found two nail marks on his back. 30. The learned Trial judge accepted that there was no evidence brought on record to show that the accused was seen at the place of the occurrence of crime during the period between 11. 30 A. M. in the morning hours and at about 4. 00/ 5. 00 P. M. in the afternoon, so as to enable it to infer that he could forcibly administer poison to the deceased or strangulate ~ them or to do the both so as to cause their deaths. He further . recorded that PW6 admitted in his evidence that the nail scrapping taken from the two deceased did not correspond to the skin scrapping taken from the body of the accused. Thus, there was no evidence of any mark of struggle by and between the two deceased with the accused. 31.

The purported absence of any reaction on the apart of the appellant in regard to the death of two deceased was for all intent and purpose made the sole basis for his conviction by the learned Trial Judge of the offence. It was concluded : ~ ~ ~ "So, taking the gamut of all the circumstances analyzed in para No. 19, 24, 25, 31, 33, 37, 38, 43, 46, 47 and 54 above in particulars and the case-laws mentioned in para no. 55 above in entirety, I am very much persuaded to presume that it was the present accused Dinesh Borthakur, and none else who had intentionally caused the death of his wife Mala Borthakur and his adopted .. , daughter in a cold blooded manner to eliminate them " from this earth with some motive best known to himself. l'he evidence on record of this instant ca,se relating to circumstances and conduct of the accused sufficiently.

and clearly established all the links in the chain of circumstances leading to the guilt of present accused and no reasonable ground was left for consideration consistent with his innocence. " (Emphasis supplied) ). _ 32. Judgment of the High Court with respect is no different. 33. A finding of guilt cannot be . based on a presumption. Before arriving at an inference that the appellant has committed . ' an offence, ex. istence of materials therefor ought to have been found. No motive for committing the crime was identified which, in the facts and circumstances of the case, was relevant. How the links in the· chain of the circumstances led to only one conclysion that the appellant and the appellant alone was guilty of commission of the offence has not been spelt out by the > learned Trial Judge. 34. The courts below did not record any finding on the basis of any material brought on record by the prosecution that the appellant was seen at the place of occurrence of crime between 11.

30 am to 4/5. 00 pm. The least the prosecution, in this behalf, could do was to examine the co-employees of the appellant who had been working in his office to find out as to when he had reached his office or whether he had left his office at any time prior to 4. 00 pm. No evidence was also led to bring on record [S. S. SINHA, J. ] Ii. r the distance between the house of the appellant and his office. No witness also deposed in regard to the mode of his travelling. He had been seen going out of his house for his place of work .. by the prosecution witnesses. PW1 found him calling the name of his wife and the adopted daughter' for opening of the main door. He went to the backside of the premises only when PW1 expressed his opinion that they might have been sleeping. 35. The time lag between the appellant's calling PW1 for Jr the first time and the second time was a few minutes.

The prosecution did not suggest nor any finding has been arrived at that the offence could have been committed during the said interval. 36. PW1 on seeing the deceased Mala lying on the bed gathered an impression that the matter was not normal. Further, PW1 in his evidence states that the accused shook the leg of the child 'Munni' stating that she was also not moving. It is the admitted case of the prosecution that the accused had asked "' PW1 to come and have a look PW1 himself was uncertain as to whether Mala and child Munni were already dead or not. The conduct of the appellant, so far his initial reaction to the occurrence is concerned, appears to be most natural as he suspected that something was wrong but was unsure thereabout at the same time. In any view of the matter, it does not give rise to an inference which is consistent with the hypothesis of guilt. 37. At this juncture, we may place on record that PW6, in ......

his evidence, in no uncertain terms, admitted that the scraping of nails taken from the two deceased did not correspond to the scrapping of skin taken from the body of the appellant. The prosecution, therefore, did not bring on record any material to show that the deceased had put up any resistance when the appellant had allegedly tried to commit the crime. Medical evidence brought on record also does not conclusively show that Mala Borthakur suffered a homicidal death as is evident from the autopsy report, which we have noticed hereinbefore. 38. The mainstay of the prosecution case is the evidence _... of PW6, PW8, PW9 and PW13 who testified about the sniffer '"1' dog's staying near the accused and the reaction of the accused was not natural as he did not exhibit his emotion or sadness despite the fact that a shocking incident had occurred. So far as the evidence relating to the reaction of sniffer B. dog is concerned, this Court in Abdul Rajak Murtaja Dafedar v.

State of Maharashtra [(1969 (2) SCC 234 stated the Jaw, thus: "-.. -1 "There are three objections which are usually advanced against reception of the evidence of dog tracking. First since it is manifestthat the dog cannot go into the box and give his evidence on oath and consequently submit himself to cross-examination, the dog's human companion must go into the box and the report the dog's evidence and this is clearly herarsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should )... not be dependent on canine inference....... " ~ Yet again in Gade Lakshmi Mangaraju alias Ramesh v. State ofA. P [2001 (6) SCC 205], this Court opined : "There are inherent fr~ilties in the evidence based on sniffer or tracker dog. The possibility of an error on the part of the dog or its master is the first among them ........... The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out.

Last, but not the least, is the fact that from scientific point of >view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals.......... Investigation exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them. " 39. The law in this behalf, therefore, is settled that whil. e the services of a sniffer dog may be taken for the purpose of )... investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused. I 40. Let us now consider another aspect of the matter viz. , the so called abnormal conduct on the part of the appellant. PW1 was considered to be the star witness by the prosecution. He was in his house upto 11. 30 am. It can safely be inferred from his deposition that he had come back to his residence much prior to the appellant. He had not noticed any abnormality in the s locality.

Other witnesses who were the neighbours of the appellant and/or the shop owners who have their shops on the other side of the road were also not aware of any incident before the appellant reached his residence. PW1 and PW2, in their deposition, did not notice any unusual conduct on the part of the appellant or the deceased Mala on that day. The only unusual thing noticed by PW1, PW2 and PW3 was the abnormal crying of Munni in the morning for a long time. 0 Something, therefore, must have happened between the mother ~ and the daughter. It is difficult to believe that a six year old girl would cry so loudly and that too for such a long span of time so as to draw the attention of the neighbours only because the mother was giving her a bath. Something, therefore, must have happened which the deceased was trying to hide. 41. We fail to see any abnormality in the initial reaction of the appellant. He knocked at the door vigorously.

He called the deceased in a loud voice which attracted the attention of PW1. On a query made by the latter, he had stated that they had not "°" been opening the door and only when PW1 opined that they must have been sleeping, he went to the rear side of the premises and discovered the dead bodies lying on the bed and again without any loss of time called PW1. PW1, in his cross-examination, admitted that reactions vary from person to person. Absence of any exhibition of sadness on the part of the appellant,. according to PW1, was not the conduct of a normal human being. Manjuri Borthakur's evidence, however, is otherwise. 42. We may notice that this Court in Rana Partap and others VS. State of Haryana reported in [1983 (3) sec 327] opined: "Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural.

We must say that the comment is most unreal. Every pe. rson who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Every one reacts in his own , special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. " {See also Marwadi Kishor Parmanand and Another. Vs. State of Gujarat [1994(4)SCC 549 ] and State of UP Vs. Devendra Singh [2004 (10) SCC 616)]}. 43. No hard and fast rule having· any universal application with regard to the reaction of a person in a given circumstance can, thus, be laid down.

One person may lose· equilibrium and ; balance of mind, but, another may remain a silent spectator till >- i. he is able to reconcile himself and then react in his own way. 44. Thus, merely because the appellant did not cry or weep on witnessing the dead bodies of his wife and daughter, cannot be made the basis for informing his guilt. 45. If he had gone to his office and come tlack therefrom between 11. 30 am ti. II 4/5. 00 pm, the matter might have been different. If the theory that he could have committed the murder within a ·couple of minutes is ruled out, we fail to see on what I [S. S. SINHA, J. ] basis even a suspicion could have been raised that the appellant , had committed the crime. It is not the case of the prosecution that the deceased were last seen in the company of the appellant. Nobody had seen him going inside his house or coming out at the time of or near about the commission of the crime.

The matter might have been different if some evidence had been introduced to suggest that the offence was committed sometime between 11. 30 am and 4/5. 00 pm. Ordinarily, an accused person after commission of such a ghastly crime would run away from the scene of occurrence but he did not do so. Even if he was to pretend that he did not know about the said occurrence, he could have stayed back in his office waiting for the call of his neighbours about the death of his wife and daughter. 46. His conduct or reaction (or lack of it) by itself; thus, cannot be a ground for arriving at a conclusion that he is guilty . of commission of crime. Formation of another opinion is also possible. It may or may not be that the appellant, in presence of PW1, told "Mala should not have done that". The same by itself does not take us anywhere.

Assuming that he did so, although according to the Investigating Officer, no such statement was made by PW1 before him, the same merely indicated that something had happened between the mother and the daughter in the morning which was not to the liking of the appellant. 47. We are surprised to notice the introduction of a story by the prosecution through PW4. Even if the conduct of the appellant demonstrated that he had been feeling sorry for the death of his daughter and not for his wife, it does not take us any further to arrive at one conclusion or the other. 48. More surprising is the introduction of the purported incriminating circumstances through some of the prosecution witnesses in regard to the location of the dead body and the manner in which things were discovered by some of the prosecution witnesses, although neither the Investigating Officer had noticed the same nor his attention was drawn thereto by the said witnesses or others. 49.

We have noticed heretobefore that the prosecution witnesses did not make any statement in regard to the purported reaction of the appellant before the Investigating Officer. 50. The prosecution made an attempt to show that the deaths of the victims were caused by administration of poison and/or strangulation. The bottle containing pesticide was found ;'l the wash basin along with a. glass inside the house. There is nothing on record to show that the appellant had purchased pesticide or brought it home. No fingerprint of the appellant was taken to show that it was he who had used the bottle or the glass for the said purpose. No incriminating evidence linking the appellant in regard to administration of poison/pesticide has been brought on record. 0 51. In Sharad Birdhichand Sarda v. State of Maharashtra >- .

~ [(1984) 4 SCC 116], this Court opined that before arriving at ' the finding as regards the guilt of the appellant, the following ecircumstances must be established: ~ (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established; I (ii) the facts so established should be consistent only ! with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that accused is guilty; (iii) the circumstances should be conclusive nature; (iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance of probability. " In that case, it was categorically held that the prosecution in a case of commission of murder by poisoning must bring in record some evidence linking the accused therewith, stating : "In the instant case, while two ingredients have been proved . ,.. but two have not.

In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been prov~d that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the - B poison in his possession. " It was furthermore observed : f ) "2. That, at any rate, the evidence clearly shows that two views are possible - one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium Cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded 0 or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal. 3. The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i. e.

, possession of poison with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fail. " 52. First Information Report might have been lodged by the appellant only when the police arrived at the scene of occurrence. The Investigating Officer came to the place of occurrence at about 4. 45 pm. PW1 categorically stated that he had asked someone to inform the police. When he did not comply therewith, then only he did so. If, in the aforementioned situation, the appellant had not informed the officer-in-charge of the police station, no presumption of adverse inference could be raised against ~im. There was no delay on the part of the appellant in informing the police, particularly, when he had informed PW1 wh9, in turn, informed the police. 53. The learned Trial Judge has also relied upon the evidence of PW10, the owner of a Pan shop, who testified that the appellant had not visited the Pan shop on that day.

His evidence, in our opinion, is not at all. reliable. He admitted in his cross-examination that in the forenoon, his brother used to sit at the. shop and, thus, his inference that the appellant used to take Pan regularly cannot be trustworthy. 54. We, therefore, are of the firm view that circumstantial evidence leading to the guilt of the appellant have not been estab. lished by the prosecution, the judgment of the conviction and sentence, therefore·, cannot b~ sustained. They are set aside accordingly. We can only record 01,ir c;Hstress that even in a case of this nature, appellant had to remain in custody for a period of four years. 54. The appeal 1s allowed. The appellant is directed to be 0 setat liberty forthwith ·unless wanted in connection with any other case. .. S. K. S. Appeal allowed.