1. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Anshul Tiwari, learned Advocate for the appellant and learned A.G.A. for the State.

2. At the outset, it is submitted that the accused-appellant is in jail. This appeal challenges the judgment and conviction dated 11.2.2011 passed by the Additional Sessions Judge, Court No.5, Varanasi in Sessions Trial No. 546 of 2009 convicting appellant under Sections 302 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P.Code') for life imprisonment with fine of Rs.10,000/- and in default of payment of fine, to undergo further six months imprisonment.

3. Information came to be lodged on 14.7.2009 which was converted into investigative F.I.R. which was propelled by the father of the deceased. The accused is the husband of the deceased.

4. The case being triable by the Court of Sessions was committed to it after the charge-sheet was laid before it and accused was summoned. On the accused appearing before the Court of Sessions, he pleaded not guilty and, therefore, on 2.1.2010 charge was framed against him for commission of offence under Section 302 of I.P.Code alleging that on 14.7.2009 at about 8.00 am at the residence of Raja Ram, namely the father of the deceased, the accused, Kanti Lal, by inflicting several stab wounds by the Scissors, which was found near the dead body, has caused the death of deceased.

5. The prosecution examined, in all, eight witnesses of facts which are as under:

1 Deposition of Raja Ram 26.2.2010 13.5.2010 26.7.2010 PW1 2 Deposition of Pramila 28/07/10 PW2 3 Deposition of Maina Devi 18/08/10 PW3 4 Deposition of Vijai Kumar 19/08/10 PW4 5 Deposition of Kishori Lal 19/08/10 PW5 6 Deposition of Ghanshyam Sharma 06/09/10 PW6 7 Deposition of Swami Nath Prasad 15/12/10 23.12.2010 PW7 8 Deposition of Dr. Ghanshayam 23/12/10 PW8

6. Out of the said eight witnesses, except police and doctor, none supported the prosecution case. Raja Ram, father of deceased, started building a new story. Though he was not treated to be a hostile witness, his evidence has several facets of being hostile to prosecution.

7. The prosecution tried to prove the facts by producing several documentary evidence also which are as under:

1 Written Report 14/07/09 Ex.Ka.1 2 F.I.R 14/07/09 Ex.Ka.4 3 Recovery memo of bloodstained cloth 02/08/09 Ex.Ka.2 4 Recovery Memo of bloodstained scissors 14/07/09 Ex. Ka.3 5 Recovery Memo of bloodstained and plain earth 14/07/09 Ex. Ka.8 6 Postmortem Report 15/07/09 Ex.Ka.15

8. At the end, the accused was put to questions under Section 313 of Criminal Procedure Code, 1973 which were, in fact, mostly of negativity. According to the accused there was no dispute between him and his wife and that he was not perpetrator of his wife's death. In his statement, he has stated that the Gram Pradhan had roped him as they had inimical relation. He was staying at Surat and he was not having any relation with his brother's wife.

9. P.W.2, 3, 4 & 5, who were relatives of the deceased, have not supported the prosecution case. It is submitted by learned counsel for the appellant that this is a case of no evidence. According to him there are many missing chains as it can be said to be a case which hinges on circumstantial evidence.

10. He has further submitted that reliance by the Trial Court on the recovery of bloodstained clothes is bad in the eye of law. He has relied on judgments and has submitted that recovery memo of bloodstained clothes was though stated to be sent to the Forensic Science Laboratory, the same has not been proved before the Court below as the report has not been exhibited nor any witness has been examined. This shows the fallacy in the investigation also. According to the counsel for the appellant, the judgment impugned requires to be upturned as the decisions in Tarseem Kumar Vs. Delhi Administration, (1994) SCC(Cri) 1735, Joga Gola Vs. State of Gujarat, (1982) AIR SC 1227 and Gambhir Vs. State of Maharashtra, (1982) AIR SC 1157 which were cited by accused before the Trial Court have also not been properly appreciated and he places reliance again on the said judgments before this Court as they would apply to the facts of this case.

11. It is submitted that the main plank of argument is on the doctor's evidence who has orally testified that there were multiple injuries which could have been caused by an instrument which may not be scissors. The injuries could have been caused by several persons and it was not proved that only one person had inflicted the injuries. It is further submitted that the chain is broken as the scissors were not sent for Forensic Science Laboratory examination nor it bears the finger prints of the accused.

12. The judgment of the trial court has also been assailed by the learned counsel for the appellant and he has taken us through the judgment impugned wherein there is no finding of fact that the bloodstained clothes were never subjected to any forensic expert's examination.

13. Learned A.G.A. has heavily relied on the deposition of Police Officer and has contended that it was the accused and accused alone who was the perpetrator of crime. Learned A.G.A. has submitted that the factum that the accused having accepted his guilt, is writ large which has come on record; the record also goes to show that it was the accused who volunteered to bear testimony against himself by producing bloodstained clothes. He further heavily relied on Sections 114 and 27 of the Evidence Act, 1872 which read as under:

"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

114. Court may presume existence of certain facts.-- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

14. The aforesaid proposition of learned A.G.A. has been rightly controverted by learned counsel for the appellant who has submitted that even if the recovery is at the behest of the appellant herein, presumption neither under Section 114 nor under Section 27 of the Indian Evidence Act, 1872 can aid prosecution as it has failed to prove that it was voluntary disclosure of place which was in the knowledge of appellant alone. In support of arguments, learned counsel for the appellant has relied on the decisions in (a) Pulukuri Kottaya Vs. King Emperor,1947 CriLJ 533, (b) Bakshish Singh Vs. State of Punjab, (1971) AIR SC 2016, (c) Union Territory of Goa Vs. Boaventrua D Souza and another, (1993) CriLJ 181 [LQ/SC/1992/529] so as to contend that chain is snapped at several places.

15. This is a case which hinges on circumstantial evidence as well as the oral testimony. The death of the deceased can be said to be homicidal death which was proved by the medical evidence and there is no doubt in our mind that the weapon used was scissor which was found near the dead body. Having answered the first question in favour of the prosecution, we would now venture on the other two questions namely (a) whether it was the accused and accused alone who by chain of circumstances is proved to have committed the murder and (b) can we hold the accused guilty only on the basis of suspicion It is on record that P.W.2 to P.W.5, who are family members of deceased and in-laws of the appellant, have not supported the prosecution evidence and they have been declared hostile. It is rightly submitted by learned A.G.A. that the evidence of hostile witnesses as far as it supports prosecution can be looked into. From the depositions of the prosecution witnesses who are hostile and that of P.W.1 who takes different stand even before the Court below, only one thing emerges that the accused was found at the house of deceased which was the house of his in-laws but would that be sufficient to convict him The other chain of evidence is absent. We are unable to persuade ourselves that the finding of fact recorded by the Court below that the accused was the only person who was concerned with the crime and the chain of circumstances unequivocally points at him and him alone, is correct. Statement of the accused under Section 313 Cr.P.C. has also not been considered by the Court below.

16. The bloodstained clothes whether contained blood of the deceased or that of the accused himself is the main missing chain in the prosecution version. Just because the appellant is said to have run away from the place of incident can it be said that it was he who was culprit The medical evidence vis-a-vis ocular version will also have to be looked into. The witnesses would have heard the shouts of the lady who is said to have been brutely done to death by stab wounds which were seven in number. The medical evidence rather the ocular version of the Doctor has been brushed aside by the learned Trial Judge. The doctor has categorically stated in his oral deposition that the injuries could have been caused not only by scissors but by other weapons also.

17. Learned Trial Judge in paragraph 44 of the impugned judgment tried to show that the chain was complete but we are of the view that it is not a complete chain which would permit us to concur with the learned Trial Judge in holding the accused guilty.

18. We can safely rely on the decision of the Gujarat High Court in Criminal Appeal No. 437 of 2003 (Chetankumar Dahyabhai Patel Vs. State of Gujarat) decided on 3.9.2013 where in the Court has held as under:

"16. Thus, from the discussion of the evidence of the aforesaid witnesses following aspects emerges;

(1) Nobody has seen the crime actually being committed;

(2) There is no material on record to suggest that whether Sonali has expired or not or whether the death of Sonali was accidental, suicidal or homicidal;

(3) The case of the prosecution is based solely on the alleged disclosure made by the appellant, while he was in custody of the police in connection with the complaint made by P.W.-1;

(4) Even, as per the evidence of P.W.-8, when he made inquires about the discovery of body of a female from the river about the time of the incident, he was informed that no such body was discovered during the said time period and the aforesaid fact shakes the very basis of the case of the prosecution that the appellant had pushed Sonali from over the bridge;

(5) Though, P.W.-8 stated, in his evidence, that he had recorded the statement of the Manager of Relief Theater, Bharuch, to verify the aspect of running of movie "Meri Aan" on the date of the alleged offence, the Manager was not examined as a witness. Moreover, though, P.W.-8 stated that he had obtained evidence with regard to absence of the appellant from his duty on the date of the alleged incident, there is neither any document produced on the record of the case nor any witness was examined by the prosecution to establish the said aspect;

(6) P.W.-1 failed to explain as to why he did not made any inquires about Sonali for two years and as to what prompted him to lodge the complaint, Dated : 20.04.1996, after a period of about two years before the PI,Ankleshwar;

(7) In view of the fact that the body of Sonali was never recovered, it was incumbent on the prosecution to show as to on what basis Section 302 of the IPC was applied against the appellant;

(8) The prosecution has not been able to prove, even, the aspect of lastseen together, since, there is no witness was examined nor any material was produced to establish the same;

(9) The prosecution has not been able to establish the motive for the crime. Insofar as the aspect of doubt about the character of Sonali on the part of the appellant is concerned, there is no material on record was produced to substantiate the same.

Moreover, though, in the complaint it is stated that on the date of the alleged offence, the appellant had spotted Sonali talking with some unknown male at Relief Theater, Bharuch, which prompted him to commit the alleged offence, the aforesaid male was not examined by the prosecution to establish the said fact, and thus, the motive for commission of the alleged offence by the appellant remains shrouded in mystery.

17. Thus, from the above discussion it becomes clear that merely relying on the confession alleged to be made by the appellant, while he was in custody of P.W.-8, the trial Court came to the conclusion that the appellant was guilty of the alleged offence. It is very well-known that a statement made by an accused before the police, while in custody of police,cannot be used against him. We are, therefore, of the opinion that the trial Court committed an error in solely relying on the alleged statement made by the appellant before the police, while in custody of police. It is no doubt true that there are certain circumstances, which raises suspicion about the involvement of the appellant in the alleged offence. But, there is a well settled principle of law that the suspicion howsoever strong it may be, cannot be substituted for the evidence. In the case on hand, in view of the above discussion, it cannot be said that the chain of events stands completed and it points towards the guilt of the appellant only and that it is not possible to take a different view, then, the one taken by the trial Court. We are,therefore, inclined to accept the submissions made by Mr. A. D. Shah, learned Sr. Advocate for the appellant that the appellant requires to be granted the benefit of doubt.

18. In the result, the appeal is ALLOWED. The judgment and order of the trial Court, Dated : 05.04.2003, rendered in Sessions Case No. 134 of 1998, is quashed and set aside. The appellant - original accused is given the benefit of doubt and is ordered to be acquitted. The appellant is on bail, and hence, his bail bond stands canceled. The amount of fine, if any, paid, be refunded to the appellant. A copy of this order be sent to the concerned jail authorities, immediately."

19. One more aspect which goes to the root of the matter is that there is no forensic expert's evidence which would show that the scissors was used by the accused and accused alone.

20. In this case there is no eye witness, rather, P.W.1 nowhere states in his deposition that the appellant had run away with the bloodstained clothes from the residence of P.W.1. The reliance by Trial Court on the judgment in Salim Vs. State of U.P.,2010 1 JIC 44(Alld.) is also bad in eye of law as, in the case in hand, no one has seen the appellant to have fled away with bloodstained clothes.

21. We are also fortified in our view by the latest decision of the Apex Court in Mohd. Younus Ali Tarafdar Vs. State of West Bengal, (2020) 3 SCC 747 [LQ/SC/2020/280 ;] .

22. In view of the above, we are satisfied that the judgment of the learned Trial Judge cannot be upheld and it has to be quashed.

23. The appeal is allowed. Judgment and order impugned is set aside. The accused, if not required in any other offence, be set free by the police authority and if he has paid the fine, the same be refunded to him.

24. The record and proceedings of the Court below be sent to it forthwith.

25. This Court is thankful to both Sri V.P. Srivastava, learned Senior Advocate and learned A.G.A for ably assisting the Court.