Judgment : Pranjal Das, J. Heard Mr. B. Talukdar, learned Amicus Curiae for the appellant. Ms. B. Bhuyan, learned Senior Advocate and Additional Public Prosecutor, Assam assisted by Ms. J. Saikia. 2. The instant criminal appeal has been preferred from jail by the convict appellant Md. Taher Ali against the judgment and order dated 30.09.2021, passed by the learned Sessions Judge, Udalguri, whereby the appellant as accused was convicted under section 302 IPC and sentenced to undergo imprisonment for life and pay a fine of Rs. 5000/-, in default to undergo SI for 6(six) months. He was given the benefit of set off. 3. On 29-06-2013, one Rahman Ali lodged an ejahar before the Sapmari Police Outpost under Udalguri Police Station, stating that on the same day around 7.30 am, accused No. 1 mentioned in the appeal, namely Taher Ali, killed his own mother Tara Bhanu by hacking her with an axe on the instigation of accused No.2 Tui Bhanu, who was his wife. It was further stated that there was a quarrel between the Tui Bhanu and the deceased Tara Bhanu from before. On the basis of the Ajahar, Sapmari OP GD No. 425, dated 29-06-2013 was made and forwarded to the Udalguri Police Station for registration of case whereupon Udalguri P.S. Case No. 75 of 2013 was registered on the same day under section 302 IPC. 4. Investigation was conducted and upon completion of investigation, charge-sheet by way of C.S. No. 42 dated 30-06-2016 was submitted sending up Taher Ali for facing trial under section 302 IPC. However, his wife Tui Bhanu was not sent up for trial on the ground that no incriminating materials were found against her. Subsequently, after completion of the usual formalities, the learned trial court framed charge against the convict appellant under section 302 IPC, vide order dated 10-11-2016. The charge being denied by the appellant led to commencement of the trial. 5. During the trial, the prosecution examined 10(ten) witnesses, including MO and IO. After the accused was examined under section 313 CrPC, the defence did not lead any evidence. Upon completion of trial, the appellant as accused was convicted and sentenced as already mentioned above and aggrieved by the same, he has preferred the instant appeal. 6. The TCR in original was called for and received. 7. Mr. After the accused was examined under section 313 CrPC, the defence did not lead any evidence. Upon completion of trial, the appellant as accused was convicted and sentenced as already mentioned above and aggrieved by the same, he has preferred the instant appeal. 6. The TCR in original was called for and received. 7. Mr. Talukdar, the learned Amicus Curiae, submits that the chain of circumstances against the accused during the trial was not completed and therefore, the judgment is erroneous and liable to be interfered with in appeal. He also submits that the axe stated to be the weapon of offence was not sent for forensic examination. It is also submitted that the wife of the appellant was not found and she is the missing link. The learned Amicus Curiae submits that the impugned judgment being erroneous in law and facts may be set aside by allowing this appeal. 8. On the other hand, Ms. Bhuyan, the learned Additional Public Prosecutor submits that Exhibit-4 is the seizure list pertaining to the axe and that there is no missing link in the chain of circumstantial evidence and that the circumstances cogently proved the complexity of the appellant. The learned Additional Public Prosecutor also submits that the incident was preceded by a quarrel which has been proved by the testimony of the witnesses. Summing up her submissions, the learned Additional Public Prosecutor submits that there is no infirmity in the impugned judgment and order and that the same may be upheld and confirmed, thereby dismissing the appeal. 9. We have perused the impugned judgment and order. Also perused the evidence on record and other relevant materials. We have considered the submissions of the learned Amicus Curiae and the learned Additional Public Prosecutor for the prosecution. DISCUSSION AND DECISION 10. Apparently, there are no eyewitnesses to the occurrence and the prosecution case is based on circumstantial evidence. As per the police statement, though one Jobeda Bewa was stated to be an eyewitness, but unfortunately for the prosecution, she turned hostile during the trial while deposing as PW-3 and she denied her police statement and about stating in the same that she saw the incident as an eyewitness. 11. The law on proof in a criminal trial by circumstantial evidence are well settled. 12. All the circumstances have to be cogently proved by the prosecution. 11. The law on proof in a criminal trial by circumstantial evidence are well settled. 12. All the circumstances have to be cogently proved by the prosecution. The circumstances have to constitute an unbroken chain leading to a definite inference of guilt of the accused. There should not be missing links in the chain of circumstances and there should not be any alternative hypothesis compatible with innocence of the accused. 13. These principles have been laid down in a catena of decisions by the Hon’ble Supreme Court. However, Para 153 of the foundational judgment of Sharad Birdhichand Sarda v. State of Maharashtra , reported in (1984) 4 SCC 116 , may be gainfully reproduced herein below – “ 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 : 1973 SCC (Cri) 1033: 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "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.” 14. Therefore, on the touchstone of these principles, the prosecution evidence has to be appreciated and tested to determine whether the conditions requisite for proof by circumstantial evidence were fulfilled against the appellant during the trial as was held by the learned trial court. 15. Before proceeding further, we would like to take up the testimony of the M.O. Dr. Ganesh Das, who testified as PW-6. He stated that on 29 th June, 2013 while working at Udalguri Civil Hospital, he conducted post-mortem examination on the dead body of Tara Bhanu, 70 years female, in connection with Sapmari OP GD No. 425 dated 29 th June, 2013 and that the dead body was brought and identified by UBC/414 Jatin Orang. Upon examination, he found an incised cut mark on front temporal region on the left side of size 4 inch x 2 inch x 4 inch. Brain and spinal cord were contused and membrane lacerated. He also found one incised cut mark of size 4 inch x 2 inch x 4 inch on half sided frontal temporal region. He found another cut mark on front temporal region on the left side of approximate size 4 inch x 2 inch x 4 inch with cranial membrane contused and lacerated. In his opinion regarding death, PW-6 M.O. stated that death was due to haemorrhagic shock due to head injury, with time since then being approximately 12 to 18 hours. He proved the post-mortem report as Exhibit-1 and his signature thereon as Exhibit-1(1). 16. Though PW-6 M.O. opined that death was due to haemorrhagic shock on account of head injury, but he did not indicate as to whether injuries were homicidal. Nevertheless, considering the significant incised wounds that were found on the head, it is clear that such injuries cannot be sustained by fall and that injuries of such magnitude can only be sustained due to assault by sharp weapon. Therefore, though the M.O. has not stated in so many words, but the medical evidence indicates, that in all probability, the death of the deceased was a homicidal death. 17. The aforementioned Jobeda Bewa was stated to have been an eyewitness as per the police statement and adduced evidence as PW-3 during which she stated that the accused was her neighbor and she also knew the deceased. 17. The aforementioned Jobeda Bewa was stated to have been an eyewitness as per the police statement and adduced evidence as PW-3 during which she stated that the accused was her neighbor and she also knew the deceased. She stated that she was not present at the time of the occurrence, but she heard that the accused had killed the deceased Tara Bhanu. She was declared hostile and allowed to be cross-examined by the prosecution and in such cross-examination by the prosecution, she denied her police statement. She denied in her police statement that on 29-06-2013 at around 7.30 am, appellant Taher Ali and his mother Tara Bhanu picked up quarrel for money and thereafter, Taher Ali killed his mother with an axe in their courtyard and that at that time PW-3 was present at that place. Upon hulla being raised by the people, others came and they caught hold of Taher Ali, but his wife fled away. 18. She denied having stated before police on these lines and thereby she denied that she was an eyewitness to the occurrence. In cross-examination by defense, she stated that she did not see the incident. Thus, the only witness, was perhaps an eyewitness, turned hostile during the trial and was lost for the prosecution. 19. PW-4 Joyful Nessa, is another neighbor who knew the deceased. Though she stated that she is the neighbor of the accused, but she later stated in her examination-in-chief that her house is located about 1 km from the house of the appellant and that after the occurrence, she came to his house and saw his mother lying dead in their house and she heard that the accused killed his mother. In cross-examination, she clarified that she did not see the incident. 20. PW-5 Surendra Daimari heard about the incident from local people, but he stated that he does not know who killed and who died in the incident and cross-examination was declined. Therefore, the testimony of PW-5 is not relevant. 21. The testimony of PW-8 Gofur Ali is also not helpful to the prosecution. He stated that at the time of the incident, he was in Guwahati and after coming home, he came to know that the accused had killed his mother Tara Bhanu, but does not know as to why he killed his mother. In cross-examination, he explicitly stated that he did not witness the incident. He stated that at the time of the incident, he was in Guwahati and after coming home, he came to know that the accused had killed his mother Tara Bhanu, but does not know as to why he killed his mother. In cross-examination, he explicitly stated that he did not witness the incident. Therefore, the testimony of PW-8 is also not relevant, not very relevant and helpful to the prosecution at all. 22. Now, let us take up the testimony of PW-1, Rahman Ali who was the informant of the accused. In his testimony, he stated that he knows the appellant who is his maternal uncle and that the occurrence took place around 9 am and deceased was the mother of the appellant. He stated that his house was situated about 3 nals from the house of the accused and occurrence took place near his house boundary. PW-1 stated that a quarrel took place between the accused and his wife and at that time Tara Bhanu came there and accused assaulted Tara Bhanu by means of an axe causing her death. PW-1 stated about lodging the FIR which he exhibited as Exhibit-1 and his signature there on as Exhibit- 1(1). He testified further that during investigation police came to the place of occurrence and seized the axe at the place of occurrence from the possession of Taher Ali with which he had committed the crime. He proved his signature on the seizure list as Exhibit- 2(1) and the seizure list as Exhibit-2. In cross-examination, he stated that on the day of the occurrence, he was ill and he was lying on the bed and upon hearing hulla, he came to the scene. He stated that when he came to the place of occurrence, he did not see the accused person. He further testified in cross-examination that when he put signature on the seizure list at that time, the villagers apprehended the accused and confined him. Though PW-1 is not an eyewitness, but he stated about hearing the hulla and coming to the place of occurrence. In examination-in- chief, he stated about a quarrel taking place between the accused and his wife. Thereupon, the deceased came and she was assaulted and killed by her son. Though PW-1 is not an eyewitness, but he stated about hearing the hulla and coming to the place of occurrence. In examination-in- chief, he stated about a quarrel taking place between the accused and his wife. Thereupon, the deceased came and she was assaulted and killed by her son. However, from his cross- examination, it is clear that he did not see the incident of assault and that he came to the place of occurrence only upon hearing the hulla. 23. PW-2, Abbash Ali is the brother of the informant and relative of the convict appellant and that his house is also located near the house of the appellant. In examination-in-chief, PW-2 stated about hearing hulla and coming to the house of the accused, whereupon, he saw the mother of the accused lying on the courtyard with injury on her head. He further stated that many people gathered at the place of occurrence and they told him that accused assaulted his mother causing injury on her person. He clarified that when he visited the place of occurrence, he had found Tara Bhanu lying dead. He has repeated the same in cross- examination. He has clarified in cross-examination that he did not see the occurrence, but stated that it took place around 7/7.30 am and that at that time he was running their rice mill which is located in his house. 24. From the testimony of PW-2, what emerges is that he also heard the hulla and came to the courtyard of the accused and saw the deceased lying with injury on her head. He also did not see the incident of assault and regarding the involvement of the appellant, he was told regarding the same by people gathered there. 25. The testimony of PW-1 and PW-2 being the informant and his brother are important to the extent that they came to the place of occurrence upon hue and cry and saw the deceased lying with head injury, but none of them have seen the incident of assault and therefore, they are not eyewitness to the alleged involvement of the appellant. Both of them have only heard about the same. However, one important aspect that emerges from the testimony of the informant PW-1 is that police seized an axe on the place of occurrence from the possession of Taher Ali by seizure list where he signed as a seizure witness. 26. Both of them have only heard about the same. However, one important aspect that emerges from the testimony of the informant PW-1 is that police seized an axe on the place of occurrence from the possession of Taher Ali by seizure list where he signed as a seizure witness. 26. PW-7, Abiran Nesa is the wife of the informant and the accused stated to be her uncle. She is also not an eyewitness to the occurrence as per her testimony. She stated that on the day of the incident, in the morning around 7 am, her son was in the courtyard and he came running inside and told that Tara Bhanu, the mother of the accused was lying injured in the courtyard. Upon hearing this, she rushed out of the house to the courtyard and saw Tara Bhanu lying on the courtyard without any movement. She stated that in the meantime, neighboring people started gathering, including her husband and she came to know from the gathering that the accused killed his mother. She stated that the accused and his mother used to live separately inside the same compound, but they had a common kitchen. PW-7 saw cut injuries on the head of the deceased caused by dao. The nature of the injuries described by PW-2 and PW-7 is compatible with the medical evidence about cut injuries on the head. From her testimony, it emerges that she is not an eyewitness. However, she reached the place of occurrence soon after. In her cross-examination, she stated that the appellant had a wife, Tui Bhanu and since the death of the deceased, she has been missing. 27. The son of PW-7 who was supposedly in the courtyard and came running into the house to inform his mother was not examined during the trial and that the said boy perhaps could have thrown more light on the incident. 28. Further, we also find that though PW-2 and PW-7 have stated about hearing from members of the gathering that the appellant killed his mother, the deceased, but no eyewitnesses from the said gathering was identified by the police and examined during the trial. As already stated, PW-3, who was a neighbour, was supposedly an eyewitness, but she turned hostile and denied witnessing the incident. 29. As already stated, PW-3, who was a neighbour, was supposedly an eyewitness, but she turned hostile and denied witnessing the incident. 29. PW-9, Billeswar Kalita is one of the investigating officers of the case and on 12-06- 2016, he took up the case diary of Udalguri P.S. Case No. 75 of 13 and he also recorded the statements of some witnesses, collected post-mortem report. Upon completion of the investigation, he submitted charge-sheet against Taher Ali under section 302 IPC. He proved the charge-sheet as Exhibit-3 and his signature there on Exhibit 3(1). In cross-examination, he clarified that Taya Bhanu, who was initially one of the accused was not found at the house and that later he did not find sufficient materials against her to send her up for trial. PW 9 did not seize any materials. 30. This part of the testimony of PW-9 about not finding Taya Bhanu finds supports from the testimony of PW-7 that ever since the death of the deceased, Taya Bhanu, the wife of the appellant was found missing. 31. Ajay Montry who testified as PW-10 was the main investigating officer of the case and the initial one. He stated that on 29-06-2013, while being posted as in-charge at Sapmari OP under Udalguri PS, he received telephonic information at around 7.30 am from Rahman Ali that his uncle Taher Ali killed his mother by giving axe blows in their house. Immediately, he informed the O/C Udalguri PS and the DSP headquarter and proceeded to the place of occurrence on their instruction after making GDE No. 425 dated 29-06-2013. He stated that upon proceeding to the place of occurrence, he saw a dead body of a female lying in the courtyard of Taher Ali and an axe was lying beside her and he also saw cut injuries on the head of the female dead body. He stated about conducting inquest on the dead body, examining some witnesses, drawing up sketch map and sending the body for post-mortem examination. He stated that the accused was apprehended by village people and later FIR was lodged by Rahman Ali. He forwarded that FIR to Udalguri police station for registration of case, whereupon Udalguri P.S. Case No. 75 of 2013 was registered. He stated that during the investigation, he seized on axe stained with blood by seizure list as Exhibit-4 and he proved his signature thereon as Exhibit-4(1). He forwarded that FIR to Udalguri police station for registration of case, whereupon Udalguri P.S. Case No. 75 of 2013 was registered. He stated that during the investigation, he seized on axe stained with blood by seizure list as Exhibit-4 and he proved his signature thereon as Exhibit-4(1). He proved the sketch map as Exhibit-6 and Exhibit- 6(1) being his signature thereon. He proved the seized axe with handle as material Exhibit-1. He confirmed in his cross-examination, that PW-3 Jobeda Bewa had stated about being an eyewitness to the incident. As already mentioned, PW-3 turned hostile and denied being an eyewitness. PW-10 proved the statement of PW-3 as Exhibit-7. In cross-examination, he stated that FIR was lodged against Taher Ali as well as his wife, Tui Bhanu. 32. Upon perusing the prosecution evidence, we find that the following circumstances emerged therefrom. The autopsy doctor found serious cut injuries on the head and death of the deceased was stated to have been taken place due to haemorrhagic shock as a result of such head injuries. From the medical evidence, the death of the deceased was in all probability a homicidal death. There are no eyewitnesses to the incident and one witness, Jobeda Bewa, who was an eyewitness as per her statement before police, turned hostile while deposing during the trial as PW-3 and denied her police statement about having seen the incident and causing of assault by the appellant. Therefore, the only witness who was probably an eyewitness turned hostile and denied being so as a result of which the prosecution case has to proceed largely on circumstantial evidence. 33. As per the prosecution evidence, an axe was seized from the place of occurrence. This is testified to by PW-1, the informant, who is also a seizure witness pertaining to the seizure of the axe. However, in his testimony, he stated that the police seized an axe from the place of occurrence, from the possession of the appellant. The seizure of the axe is corroborated by the testimony of the main I/O, who testified as PW-10. However, in his testimony, though he stated about seizing an axe vide seizure list, where he also put a signature, but PW-10 has not stated about seizing the said axe from the possession of the accused, thereby contradicting the testimony of PW-1, the informant, in this regard. However, in his testimony, though he stated about seizing an axe vide seizure list, where he also put a signature, but PW-10 has not stated about seizing the said axe from the possession of the accused, thereby contradicting the testimony of PW-1, the informant, in this regard. PW-1, the informant, has stated about coming to the place of occurrence upon hearing hulla, as at that time he was lying on his bed and his house is located nearby the house of the accused and thereby the place of occurrence. Therefore, his statement in examination-in-chief that a quarrel took place between the accused and his wife, whereupon the deceased came and the accused assaulted the deceased, who was his mother, with an axe, causing her death, is not an eyewitness account. 34. PW-2 also came to the place of occurrence upon hearing hulla and saw the deceased lying on the courtyard with injury on her person. PW-3 is also not an eyewitness. PW-4 has only testified about coming to the place of occurrence and seeing the deceased. Regarding the accused killing his mother, PW-4 is a hearsay witness as he heard about the scene only. PW-5 is not relevant. PW-7 was also informed about the victim lying on the courtyard by her son who came rushing into her house and thereupon she went there and saw the victim lying on the courtyard without any movement. Her knowledge about the accused killing the deceased is based on what she heard from the gathering of persons. 35. One incriminating material which has emerged against the appellant which has emerged from the testimony of PW-10, the first investigation officer, is that when he took the appellant into custody, he was being apprehended by the village people. 36. A few infirmities in investigation has been revealed by the prosecution evidence. Some of the witnesses have stated about hearing from the gathering of people that the appellant was the assailant. However, it is not clear as to whether the police made sufficient effort to identify some eyewitness from such gathering based on the knowledge and information of some of these persons who stated about the appellant being the assailant. Of course, as already discussed, PW-3 was supposedly an eyewitness but she turned hostile and denied having seen the incident. The more important infirmity in the investigation is not sending the axe for forensic examination. Of course, as already discussed, PW-3 was supposedly an eyewitness but she turned hostile and denied having seen the incident. The more important infirmity in the investigation is not sending the axe for forensic examination. PW-10 has stated in his testimony that when he seized the axe, it had blood stains on it. If the blood stains on the axe and the fingerprints on it, were sent for forensic examination and matched with the blood of the victim and the fingerprints of the appellant – then it could have been a definite indication about the appellant having been the assailant. 37. Upon perusing the prosecution evidence, the incriminating materials which have emerged against the appellant may be summarized as follows – (i) the medical evidence indicating the death to be a homicidal death, (ii) seizure of an axe from the place of occurrence, though its connection with the appellant and being the weapon of offence has not been proved, (iii) PW-1 and PW-2 hearing the hulla and thereafter, going to the place of occurrence and finding the deceased lying on the courtyard, (iv) PW-10 the main I/O finding that the accused was apprehended by the villagers when he took him into custody. 38. Now the question is whether these circumstances satisfy the golden principles of proof by circumstantial evidence and whether there is any alternative hypothesis compatible with the innocence of the appellant. In this regard, we find that though PW-1 is not an eyewitness, but he stated about a quarrel between the appellant and his wife and not with the deceased and that at that time the deceased came whereupon the appellant is allegedly assaulted her by means of an axe causing her death. PW-1 is not an eyewitness. So this is not an eyewitness account. Nevertheless, he has stated about the quarrel between the appellant and his wife rather than with his mother who subsequently came in between apparently. In the charge-sheet, wife of the appellant who was initially an FIR named accused was not sent up for trial as the IO stated that he did not find sufficient materials against her. However, it cannot be overlooked that from the testimony of PW-7, it emerges that since the incident, Tui Bhanu, the wife of the appellant has been missing. 39. However, it cannot be overlooked that from the testimony of PW-7, it emerges that since the incident, Tui Bhanu, the wife of the appellant has been missing. 39. It is well settled that mere abscondence after an incident of crime does not necessarily mean guilt as sometimes a person can get scared and also try to run away. Nevertheless, some materials have emerged from the prosecution evidence that since the incident, the wife of the appellant is not to be found. Keeping in mind the testimony of PW-1 about the quarrel between the accused and the wife and in the absence of forensic evidence regarding the person who handled the weapon at the time of the incident – the possibility of the wife of the appellant being the assailant also cannot be ruled out altogether. In other words, there also emerges an alternative hypothesis about the wife of the appellant being the assailant and the guilty person. 40. Upon perusing the prosecution evidence, we find that the incriminating circumstances that have emerged against the appellant as narrated above, on their own also may not be sufficient to come to a definite inference of his guilt. Further, as already discussed above, the possibility of an alternative hypothesis compatible with the innocence of the appellant emerges from the circumstances and therefore, one of the five golden principles about absence of such alternative hypothesis is not fulfilled in the instant case. 41. Consequently, we are constrained to come to the considered opinion that the evidence on record failed to pass the test of proof by circumstantial evidence in a criminal trial – as is well settled in the form of the golden principles laid down in the foundational judgment of Sharad Birdhichand Sarda (supra) . Therefore, in such view of the matter, the appellant herein has to be given the benefit of doubt and acquitted. 42. Consequently, the criminal appeal stands allowed and the impugned judgment and order dated 30.09.2021 passed by the learned Sessions Judge Udalguri in Sessions Case No. 93 of 2016 is hereby set aside 43. The convict appellant Taher Ali shall be set at liberty forthwith, if not wanted in any other case. 44. The criminal appeal stands disposed of.