K. V. Jayakumar, J.

1. This Criminal Appeal has been preferred under Section 374 of the Code of Criminal Procedure, impugning the judgment of the learned Additional Sessions Judge-IV, Thodupuzha, in S.C. No.273/2016 dated 13.03.2019. The offences alleged against the appellant/accused are under Sections 302, 324 and 506(ii) of the Indian Penal Code.

2. By the said judgment, the learned Additional Sessions Judge has convicted and sentenced the accused under Sections 302 and 324 of IPC and found the accused not guilty for the offence punishable under Section 506(ii) of IPC.

The Sentence

3. After a full-fledged trial, the learned Additional Sessions Judge has imposed the following sentence.

                  i)        The accused is sentenced to undergo imprisonment for life and to pay a fine of ₹25,000/- with a default clause under Section 302 of IPC.

                  ii)       The accused is further sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹5,000/- with a default clause under Section 324 of IPC.

Prosecution case

4. In the present case, the prosecution sheds light on the stark reality of the lives of people living on the streets without a permanent place of abode—struggling to survive in the shadows of society. The undignified and disorderly existence faced by the poor and marginalized often leads to involvement in criminal activities, which can pose serious threats to the law and order situation of the locality.

5. In the present matter, the prosecution delineates the story of street dwellers and their vagrancy and altercations attributable to intoxication by alcohol, occurring under the cover of darkness, specifically during the midnight hours. In this tragic incident, a man lost his life and a lady was subjected to sexual assault. But, the law enforcement agency has registered only one case, that is for the murder of Xavier @ Karuthamuth. The other victim, who sustained injury and subjected to heinous sexual assault, was discarded by the police as nobody was there to take care of and to protect the interests of the street dwellers.

6. The prosecution case is that, the deceased Xavier @ Karuthamuth has snatched the liquor bottle and cash from the accused and due to this enmity and grudge, the accused, Abhilash, with intent to commit the murder of the said Xavier, struck on his head with MO-3, rafter, at about 8 p.m. on 15.11.2015 on the public road leading from Kerala Agricultural Development Society (KADS) to the Water Authority Old Pump House road, Thodupuzha. The prosecution further alleges that when PW11, Seleena, obstructed the accused, he inflicted a blow on her vertex using the rafter. Due to the impact of the forceful hit with MO3 rafter, Xavier lost his life.

Registration of Crime and Investigation:

7. PW1, Shaji, lodged Ext.P1 FIS before the Thodupuzha Police Station at 7.00 a.m. on 16.11.2015. On the basis of Ext.P1, PW9 (Sreenivasan), Additional Sub Inspector of Police, Thodupuzha registered Ext.P7 FIR.

8. PW10 (Shaju Jose), the Circle Inspector of Police, Thodupuzha conducted a part of the investigation. He obtained Exts.P6-site plan, P4-Postmortem Certificate and P5-wound certificate of PW11 (Seleena), and produced before the jurisdictional court.

9. PW12 (E.P. Reji), took up the investigation on 16.11.2015 and conducted a major part of the investigation. On that day at about 11.45 a.m., he visited the place of occurrence, conducted the inquest and prepared Ext.P2-inquest report. He seized the MO-6 series, dresses worn by the deceased. He has also seized MO-2 and MO-3 rafters. As per Ext.P2 inquest report, he has also seized MO-7, a piece of Areca Palm, MO-8, piece of frond. The accused was arrested at about 3.30 p.m. on 16.11.2015, after preparing Ext.P10 series documents. He identified the accused in the dock. Thereafter, PW12 recorded the confession statement of the accused. On the basis of the disclosure statement and as led by the accused, he had seized the dresses worn by the accused from his house at Udumbanpara beneath the cot. He has forwarded the samples of nail clippings to the FSL. PW12 completed the investigation. PW13 (Jilson Mathew) has also conducted a part of the investigation. He seized MO12 series rolled gold rings from the body of the deceased.

The committal and trial proceedings

10. The jurisdictional Magistrate, after completing the initial steps, has committed the case to the Court of Sessions, Thodupuzha. The Sessions Judge, Thodupzha, made over the case to the Additional Sessions Court-IV for trial and disposal. The learned Additional Sessions Judge, after hearing both sides, framed charge against the accused. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried.

11. Before the trial court, PWs.1 to 13 were examined and Exts.P1 to P15 were marked. MOs.1 to 13 series were identified and marked. After the close of the prosecution evidence, the accused was examined under Section 313(1)(b) of Cr.P.C. He denied the incriminating circumstance put to him and maintained the plea of innocence. No defence evidence was adduced. The learned Additional Sessions Judge, after a full-fledged trial, has found the accused guilty, entered conviction and imposed the sentence as aforesaid.

The Submissions of the learned counsel for the Appellant

12. Sri. Renjith B. Marar, learned counsel appearing for the appellant, submitted that the impugned judgment of the learned Additional Sessions Judge is legally unsustainable. The trial court convicted and sentenced the accused without proper appreciation of oral and documentary evidence.

13. The evidence of the sole eyewitness, PW11 (Seleena), is wholly unreliable. Her testimony suffers from serious inconsistencies and contradictions. The entire prosecution story revolves upon the evidence of PW11. Her first version to PW7 (Dr. Renjith Paul) was that she was attacked by one Albin at around 7.00 p.m. near Newman College, Thodupuzha. Her first version was recorded by Dr. Renjith in Ext.P5 wound certificate. Subsequently, she changed her version and deposed before the Court that she was attacked by Abhilash. Her evidence is inconsistent and in conflict with the medical evidence. Admittedly, she had consumed alcohol during the alleged time of the incident. For several material and pertinent questions posed by the defence counsel, she responded that she did not remember those details. Therefore, her evidence is to be scrutinised and evaluated with great caution. Reliance was placed on the judgment of the Apex Court in Rai Sandeep @ Deepu and Another v. State of NCT of Delhi (2012 KHC 4419) and Allarakha Habib Memon Etc. v. State of Gujarat (2024 KHC OnLine 6421) .

14. The learned counsel for the appellant further submitted that the statements of the material witnesses were recorded after several months and therefore, in the absence of satisfactory explanation for the delay, much weight cannot be attached to their evidence. Reliance was placed on the judgment in Nallabothu Ramulu @ Seetharamaiah and Others v. State of Andhra Pradesh (2014 KHC 4281) . The learned counsel would then point out that the material witnesses who are acquainted with the facts of the case were not examined by the prosecution. The non-recovery of the blood-stained clothes of PW11, the crucial witness, is yet another serious lapse, according to the counsel for the appellant. The learned counsel has placed reliance on the judgment in Nazim v. State of Uttarakhand (2025 SCC OnLine SC 2117) to substantiate the point as to failure on the part of the Investigating Officer to collect forensic and scientific evidence to prove the fact in issue. The counsel would also point out that the recovery allegedly made under Section 27 Cr.P.C. is not proved by the prosecution.

The submissions of the Public Prosecutor

15. Smt. Neema T.V., the learned Public Prosecutor, submitted that the learned Additional Sessions Judge has arrived at a conclusion as to the guilt of the accused after proper evaluation, weighing and testing of the evidence. The version of the solitary eyewitness and the injured is trustworthy, natural and truthful. The discrepancies, omissions and contradictions pointed out by the learned counsel for the appellant are immaterial and insignificant for the adjudication of the fact in issue. The delay in recording the statement of the witnesses was properly explained by the prosecution. The version of the injured eyewitness coupled with the medical evidence would conclusively prove the prosecution narrative beyond reasonable doubt.

16. The learned Public Prosecutor further submitted that the conviction and sentence imposed are legally sustainable and no interference from this Court is warranted in this matter.

Analysis

17. On the basis of the rival submissions advanced by the counsels, we would proceed to analyse the evidence let in by the prosecution.

18. PW1 Shaji is the first informant. He is a driver by profession. He testified that the deceased Xavier is known to him. The deceased is a ragpicker. On 16.11.2015 at 7.00 a.m, while he was proceeding to the Panchayat pond, Thodupuzha, he saw the dead body of Xavier on the side of the tar road lying in a supine position with clotted blood on the mouth. He had also seen a rafter with a metallic nail embedded in it near the dead body. He informed the matter to the Police. He also noted a pair of ladies chappals. He identified MO-1 series chappal and MO-2 rafter.

19. In cross-examination, he denied the suggestion that he spoke falsehood as directed by the police officers. He would admit that he had acquaintance with traffic S.I, Faizal. Further, he used to meet Faizal in the Gym.

20. PW2 (Antony) is the elder brother of the deceased Xavier. On getting information about the death of Xavier from the Police, he rushed to the Police Station. According to him, it is a case of murder. PW4 (Jobi M.C) is the attester to Ext.P2 inquest report. PW5, Shaju, is the attester to Ext.P3 seizure mahazar, through which the jeans and shirt of the accused were seized. He did not support the prosecution case.

21. PW6, Dr. Rajeev, is the Associate Professor and Deputy Police Surgeon of Medical College, Kottayam, who conducted the autopsy of the body of the deceased Xavier. He has noted as many as four ante-mortem injuries on the body of the deceased. He proved Ext.P4 Postmortem Certificate. He has noted the following injuries in Ext.P4.

                  1. Contusion of scalp 22x 12 x 0.5 cm on the right side of head extending to adjoining part of top and left side of head. Skull bone underneath showed a depressed fracture with fragmentation 6x4x1 cm involving the right temporo-parietal bones with a fissured fracture extending from its upper part crossing the midline and ended in the left temporo-parietal bones. Base of skull was fractured and fragmented involving the right side of anterior cranial fossa and both sides of middle cranial fossae. Brain showed contusion 6x4x1 cm involving the right temporo-parietal lobes. There was bilateral th film of sub-arachnoid hemorrhage. Brain was edematous.

                  2. Multiple small abrasions over an area 20x2 cm on the back and outer aspect of right forearm and adjoining part of elbow and back of hand.

                  3. Multiple small abrasions over an area 14x3 cm on the inner aspect of left thigh, 12 cm above knee.

                  4. Multiple healing wounds over an area 11x1.5 cm on the front of right leg 7 cm below knee covered with loosely adherent scab.’

22. He opined that the blunt injury sustained to the head is the cause of death. The first injury is sufficient in the ordinary course of nature to cause death. He opined that the said injury could have been caused by a weapon like MO-2 rafter.

23. PW7, Dr. Renjith Paul, is the Medical Officer, Taluk Hospital, Thodupuzha, who examined PW11, Seleena, the injured in this case and issued Ext.P5 wound certificate. He has noted the following injuries in Ext.P5.

                  i.        One lacerated wound 4x0.5x0.5 cm over scalp

                  ii.       Injury left index finger 1x.5 cm

24. He further opined that the injury aforementioned could be caused by a weapon like MO-2 rafter.

25. According to PW7, PW11 (Seleena) approached him with a history of assault by one Albin at Thodupuzha near Newman College around 7.00 p.m. on the previous day. In cross-examination, he would say that the injured was brought to him by the Police. According to him, injury No.1 could be caused when the injured defends a blow aimed towards the head. PW8 (Shaju Kumar P.K), is the Village Officer, Thodupuzha, who prepared Ext.P6 site plan.

26. PW11, Seleena T., is the injured and the sole eyewitness of the case. She testified that she is a ragpicker. The deceased Xavier is known to her. The incident was on 15.11.2015 at 8.00 p.m., on the road leading to the Presidency College at Kanjiramattom Bypass road. The exact place of the incident is on the veranda of a shop.

27. On that day, she along with Karuthamuthu went to collect scrap at about 9.30 a.m., the scrap items collected were sold in a shop and ate food using that funds. Thereafter, they reached near New Theatre at 6.15 p.m., with the intention of watching a movie. By the side of the road, they saw the accused Abhilash. On seeing PW11, the accused Abhilash told the women who were present there that even though he had called Seleena on several occasions for different matters, she did not turn up.

28. In the meantime, Seleena informed the deceased that she feared the accused, so that they might leave without watching the movie. She recollected that the accused had beat her once inside the cinema theatre. Thereafter, she sat in front of Vasthralaya (a textile shop). At that time, Karuthamuth was engaged in ragpicking from behind Vasthralaya, followed by Abhilash.

29. Even though she waited up to 7.30 p.m., both Abhilash and Karuthamuth did not come back. In the meantime, he heard a sound. When she looked ahead, she saw the accused holding a rafter in his hand and Xavier was showing some gestures with his lips. She called the deceased “Muthu…Muthu”, but there was no positive response from Xavier. The accused abused the deceased by uttering the words “Will you take liquor from my hand and drink it?”

30. PW11 told Abhilash that Xavier is a poor fellow. At that time, the accused attempted to inflict a blow on her. It struck her head, right arm and left index finger. There was profuse bleeding from her head. When she tried to escape, the accused dragged her to the demolished portion of the building. She sat on the side of the demolished wall of the building. She made a request to Abhilash to bring her to the hospital. The accused asked her to lay down.

31. In the meanwhile, the accused forcefully removed her leggings and as a result, she fell down and fainted. On the subsequent day, at about 4.00 a.m., the accused sprayed water on her face and patted her face. She could not open her eyes. Abhilash asked her to get up, but she could not. When she got up with the assistance of the accused, she found that she was not wearing any clothes below her waist. When she asked about her clothes, Abhilash told her that he threw it towards the forest. The buttons of her shirt were also opened. When they moved towards the gate, she saw the deceased lying, as if he were sleeping. The accused picked up some currency notes of ₹10 from the pocket of Karuthamuth and placed it in his pocket.

32. The accused asked her to pick up the deceased and to push him into the river. PW11 did not heed to the said request and told him to let Karuthamuth sleep there. In the meanwhile the accused asked her whether she remembers the incident which happened in the previous night. She replied that she could not recollect clearly. At that time the accused threatened her not to divulge the incident to anyone. If she did so, the accused would do away with her. The accused picked up a white doti from among the people sleeping near Karuna Hospital and handed it over to her. In the meanwhile, she met one Shaji there. She feared that she would die instantly and therefore told the said Shaji about the incident. All the three sat together near the Janamythri Police Station on the street till the next morning.

33. She further testified that in the next morning, she went to the Police Station and narrated the incident which had happened in the night. The Circle Inspector took her to a hospital at Karikode wherein her wound was sutured. Her 164 statement was taken three-four days later. While giving the statement before the Magistrate, she requested the Magistrate to take the statement of Karuthamuth also. The Magistrate told her that Karuthamuth is no more. She could not believe the words of the Magistrate. She identified MO-2 and MO-3 rafters in the court. She had also identified MO-1 series ladies chappal, MO-4 and MO-5 the jeans and shirt worn by the accused.

34. In cross-examination, she would say that she is married but she could not remember the date of marriage. She is a Christian by religion. She was married to one Sulaiman after converting into Islam. She further stated that now she is residing separately. She admitted that she used to consume liquor. The said habit was taught by her husband.

35. She further deposed that when she started to sleep on the veranda of a shop, the police would take her into their custody. A specific question was put to her during cross examination that whether she stated to the Police that she was assaulted by one Albin, near Newman College, Thodupuzha, on 15.11.2015. She replied that she did not remember. She repeated the same answer when another pertinent question was asked, namely, whether she had stated to the doctor at Taluk Headquarters Hospital that one Albin had assaulted her. She would say that she is aware of the fact that the accused in this case is not Albin. She denied the suggestion that there was a quarrel between herself and Karuthamuth and in that incident the latter sustained injuries and succumbed to the injuries. Even though she narrated the incident to the Circle Inspector, he did not record the statement. The white shirt and the doti worn by her on that day were covered with blood. She did not remember whether she had stated in her previous statement that she narrated the incident to PW1. She admitted that Karuthamuth was her friend for the past 7 to 8 months. She is a ragpicker. She used to sleep in the bus stop. Her reply to several questions put by the defence counsel is that she did not remember.

36. But according to PW11, she was inflicted hard blows on her head, beaten repeatedly, dragged and partially stripped. If that be so, there will be abrasions and bruises in the wound certificate. According to PW11, she fainted after the incident and later regained her consciousness only on the next dawn. But in medical evidence there is no indication of concussion, loss of consciousness or need for monitoring. According to the learned counsel for the appellant, there is a possibility that she might have been heavily intoxicated and due to heavy alcohol level, she may not be able to recall crucial details about the incident. The counsel would then point out that it would be quite unsafe to convict an accused on the basis of an improved and embellished version, who admittedly consumed alcohol. In Rai Sandeep @ Deepu and Another (supra), the Apex Court emphasised that a sterling witness must be of unassailable quality, consistent from the first version to the deposition before court. Relevant para of Rai Sandeep @ Deepu and Another reads as follows:

                  “15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross - examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co - relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

37. In Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) , the Apex Court observed that it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

                  (1)      Wholly reliable.

                  (2)      Wholly unreliable

                  (3)      Neither wholly reliable nor wholly unreliable.

38. In Jarnail Singh v. State of Punjab (2009 KHC 146) , the Supreme Court held that the conviction could be based on the sole testimony of a solitary eyewitness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish.

39. In Joseph v. State of Kerala (2003(1) SCC 465) the Apex Court observed that it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But the evidence should be wholly reliable. When the evidence of a solitary eyewitness is in conflict with other evidence, it would be unsafe to convict the accused solely on the basis of such witness.

40. In Baljinder Kumar @ Kala v. State of Punjab (2025 INSC 856), the Apex Court observed that, where key eyewitness testimonies suffer from contradictions and embellishments, material objects are not conclusively connected to the offence, and investigative lapses create gaps in the evidentiary chain, conviction cannot be sustained.

41. In Abdul Sayeed v. State of M.P. ( (2010) 10 SCC 259) , the Apex Court observed as follows

                  “the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.”

42. In the case on hand, the version of PW11 appears to be unworthy of credence. It is not natural and trustworthy. Admittedly, She had consumed alcohol and she could not remember the event, which occurred due to her intoxication. Her version is inconsistent with the medical evidence adduced by PW7, Dr. Renjith Paul.

43. The next contention of the learned counsel for the appellant is that there is an unexplained delay in recording the statement of vital witnesses which casts serious doubts regarding tutoring, embellishment or afterthought. The counsel invited the attention of paragraph 14 of Nallabothu Ramulu @ Seetharamaiah and Others (supra), which reads as under:

                  “14. PW 28 S. I., P. S. Muppala admitted that he shifted the injured to the hospital and the injured informed him that the opposite group had attacked them. He stated that when he went to the village to get a tractor to shift the injured, he had informed his superiors about the incident on phone. He further stated that PW 29 Circle Inspector (IO) came to the village at 3.00 a.m. and he assisted him in the investigation at the spot. Thereafter, he proceeded to the Police Station, Muppala and there, he received copy of the FIR from S.H.O., Sattenapally. The evidence of all these witnesses read with evidence of PW 28 S. I., P. S. Muppala show that the witnesses had informed PW 28 about the incident and the fact that the opposite party had attacked them. While statements of some witnesses were not recorded, statements of some witnesses were recorded, but they were not produced. PW 28 S. I., P. S. Muppala ought to have registered the FIR on the basis of statements of injured eye - witnesses. PW 3 Head Constable was, in fact, attached to the P. S., Muppala and was working under him. It is not understood why his FIR was not recorded. The omission to record the statement of any of the injured witnesses as FIR or to record statements of witnesses under S.161 of the CrPC by PW 28 casts a shadow of doubt on the prosecution case. There was no need for the police to wait for recording of the statement of PW 1, treat that as dying declaration and then register the FIR on that basis. While, according to the prosecution, the incident took place at 1.00 a.m. on 17/3/1993, PW 1's statement [Ext. P1] was recorded at 3.15 a.m. In the facts of this case, not registering FIR on the basis of statement of injured witnesses at the spot of incident and the delay in registering FIR give rise to a suspicion that the injured witnesses were unable to name the accused on account of darkness and that the FIR was doctored in the form of dying declaration of PW 1 which was subsequently converted into Ext. P26. This reasoning of the trial Court appears to be correct and ought not to have been disturbed by the High Court.”

44. In the case on hand, according to the prosecution, PW11 went to the police station on the subsequent day of the incident and gave information. But her statement was not recorded then and there. No FIR was registered on the basis of her information. Later, FIR was registered on the basis of FIS lodged by PW1 (Shaji). It is pertinent to note that her 161 statement was recorded after the lapse of three days.

45. In the instant case, the statements of the material witnesses were recorded after several days of the incident. No plausible explanation is offered by the prosecution for the said delay.

46. The learned counsel would then submit that the non-examination of the material witnesses is yet another flaw in the investigation. According to PW11, she narrated the incident to one Mr. Shaji. Mr. Shaji was not examined. The non-examination of Mr. Shaji is crucial according to the learned counsel for the appellant. We find much force in the said argument. Withholding of material evidence would cast serious doubts in the prosecution story.

47. The learned counsel would then point out that the dress worn by PW11 was covered with blood. The blood-stained clothes were not seized or sent for forensic analysis. The non seizure of blood-stained cloths is yet another important link which casts doubt in the prosecution story.

48. It is a fundamental principle of criminal law that mere suspicion, irrespective of its degree, cannot constitute or substitute for proof. This doctrine has been consistently reaffirmed through a series of judicial precedents, establishing that proof must be grounded in admissible evidence demonstrating guilt beyond a reasonable doubt, and that suspicion alone is insufficient to sustain a conviction.[see Narasappa v. State of Karnataka, (2007) 10 SCC 770], Anil Shamrao Sute and Another v. State of Maharashtra [2013 (12) SCC 441 ], Sangili @ Sanganathan v. State of Tamil Nadu[2014 KHC 4580], Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522, Basheera Begam v. Mohd. Ibrahim, (2020) 11 SCC 174, Raja Naykar v. State of Chhattisgarh 2024 (3) SCC 481, Raghunatha v. State of Karnataka [2024 KHC OnLine 8140], Renuka Prasad v. State Represented by Assistant Superintendent of Police [2025 KHC 6458], Padman Bibhar v. State of Odisha [2025 KHC OnLine 6528]]

49. In State of Chhattisgarh v. Ashok Bhoi (2025 KHC 6220 ), the Apex Court observed that it is true that Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape on fanciful doubts is not doing justice according to law. However, it is also well settled that suspicion howsoever strong cannot take the place of proof.

Conclusion

50.    On a careful analysis and scrutiny adduced by the prosecution, both oral and documentary, we are of the view that the prosecution has failed to allege and prove the charge against the accused beyond reasonable doubt. Suspicion, however strong it may be, cannot be considered as a substitute for proof. The trial court has convicted the accused without properly evaluating the evidence of material witnesses, particularly that of PW11 and PW7, arrived at a conclusion on the basis of surmises and conjectures.

                  In view of the above discussion, we are of the view that the accused/appellant is entitled to get an acquittal on the ground of benefit of doubt. The impugned judgment of the learned Additional Sessions judgment of the learned Additional Sessions Judge is liable to be set aside in our considered opinion.

                  In the result,

                  i)        Criminal Appeal No.540/2019 is allowed.

                  ii)       The impugned judgment in S.C. No.273/2016 is set aside.

                  iii)       The appellant/accused is set at liberty forthwith, if his custody is not necessary for any other case.