Criminality without involvement in the crime cannot be fixed.

Padmanabhan, J.

Two accused were tried for offences punishable under Secs.302 and 201 with the aid of Sec.34 of the Indian Penal Code. Both were convicted under each section and sentenced to imprisonment for life and rigorous imprisonment for three years respectively, permitting the sentences to be suffered concurrently. Criminal Appeal No.236 of 1986 was filed by the first accused and the other accused by the second accused.

2. Second accused Rosama is the widow of deceased Unni alias Devassia. They have a son (P.W.2) and a daughter (C.W.4). First accused Joy alias Job was assisting the deceased in his work and residing along with him and his family in a house having only one room. Illicit intimacy developed between accused 1 and 2. Deceased was found a hindrance. Therefore, in furtherance of the common intention of both the accused, at about midnight on 3.7.1984 when the children were fast asleep, first accused murdered Unni by cutting his chest just below the neck with M.O.3 axe inside the residential building at Malom Village and buried the dead body in the paramba itself with the intention of screening themselves from legal punishment by causing disappearance of evidence regarding commission of murder. This is the prosecution case. Second accused is said to have directed and assisted the first accused.

3. Case was registered under the caption “man missing” on 27.7.1984 when Ext.P1 complaint filed by P.W.1, brother of the deceased. Same day, P.W.14, Assistant Sub Inspector questioned both the accused and came to know that Unni was murdered and the dead body buried in the compound itself. The next day, P.W.15, Circle Inspector took up investigation and laid the charge for the above offences.

4. The case depends purely on circumstantial evidence. The circumstances relied on by the prosecution are:

(a) The deceased was last seen in the company of the accused sleeping at their residence and thereafter nobody saw him alive and the accused have no explanation at all;

(b) The suspicious conduct of accused 1 and 2 after the disappearance of Unni;

(c) The information given by accused 1 and 2 to P.W.14 which led to the recovery of the incriminating objects, namely, the dead body, dress, mat, weapon used for murder and implement used for burial of the dead body; and

(d) The motive for doing away with Unni. After an elaborate discussion of the evidence, the Sessions Judge accepted these circumstances as conclusive.

5. Before convicting an accused on the basis of circumstantial evidence, it is necessary to ensure that the chain of the circumstantial evidence is complete and conclusive without even a missing link. The effect of all the links separately and of the chain cumulatively should lead only to the guilt and not in any way to the innocence. No circumstance should be capable of any explanation on any hypothesis other than the guilt. In such cases, guilt being an inference from proved circumstances, there should not be anything consistent with the innocence and the inference of guilt must be conclusive. Moral conviction however strong cannot be accepted as a substitute for legal evidence.

6. In this case, the very edifice of the prosecution story regarding the last seen theory and the conduct of the accused was on the assaumption that Unni died on the night of 3.7.1984. If that theory is shaken, the entire evidence based on it must go. The evidence of all the relevant witnesses examined by the prosecution is that from 4.7.1984 onwards Unni was never seen and there after his dead body alone was found on exhumation on 28.7.1984. The evidence of P.W.2, the son of Unni and the second accused, is that after Unni slept with them on the night of 3.7.1984 he was never seen from the morning of 4.7.1984 onwards. The alleged murder was during midnight on 3.7.1984.

7. But all the witnesses, including the official witnesses who were present at the time of exhumation of the body, unanimously said that except peeling of the skin and hair