Charanjit Talwar, J. ( 1 ) THE appellant Mangat Ram was convicted for the offence under Section 302 of the Indian Penal Code for having murdered his wife Sheela on the night of 19th and 20th April, 1983 and sentenced to undergo rigorous imprisonment for life by Shri J. D. Kapoor, Addl. Sessions Judge, Delhi. The appellant has challenged the legality of the judgment of conviction passed on 29th February, 1984. The appellant further challenges the validity of the order dated the 3rd March, 1984 sentencing him to rigorous imprisonment for life. ( 2 ) AT the outset we may notice that the conviction is based on circumstantial evidence only. According to the learned trial Judge, the circumstances proved by the prosecution are so complete as not to leave any reasonable ground for "conclusion consistent with the innocence of the accused. " The trial Court has relied upon Bakshish Singh v. State of Punjab reported in 1971 Cr. Law Journal 1452. In paragraph 54 of the impugned judgment, the circumstances have been enumerated. The 15 circumstances which according to the trial Judge complete the chain of evidence, are : "i. That the deceased had gone to her parents house at village Pithopra for a periodical stay and was brought back by the accused in a car on 16. 4. 1983; (II) That during her stay with her parents the deceased got one printed suit Ex. P3 stitched from one Indravati a tailor and she also put few bangles on her wrist on the same day: (III) That the suit in question was stitched by Indravati and the production of left over pieces of the cloth and the identification of the suit by the parents and Indravati before the Magistrate prove conclusively that it was the deceased who died and none else and she was wearing the suit on her body when the dead body was recovered. (IV) That the accused and the deceased were seen last together on 19. 4. 1983 when both of them left the house in the morning and thereafter they did not return till 24. 4. 1983 when the report was lodged by the father of the accused at PP Madangir; (V) That the accused returned to his house later on alone. (IV) That the accused and the deceased were seen last together on 19. 4. 1983 when both of them left the house in the morning and thereafter they did not return till 24. 4. 1983 when the report was lodged by the father of the accused at PP Madangir; (V) That the accused returned to his house later on alone. (VI) That the dead body of the deceased was recovered lying in a pit near the rocky area of District Park Kalkaji with a printed suit on her and Dupatta tied around her neck. (VII) That the accused bad purchased temper Masala from the shop of Amit Kumar prior to the occurrence; (VIII) That the deceased was administered temper Masala as in her viscera Sodium Cynide was detected and when the sample of temper Masala was sent to the CFSL it was also found to contain cyaide; (IX) That the deceased died due to poison as well as strangulation which was done with the same Dupatta which she was wearing and this has been proved by the post mortem report and there were ligature marks of the Dupatta as well as the knot around the whole neck; (X) That till 8. 5. 1983 the accused did not report the missing of his wife nor did any member of his family report as to what bad happened to the wife of the accused. This is such a most unnatural conduct of the accused as well as members of the family that raises adverse presumption against him; (XI) That according to the accused he left the house on 16. 4. 1983 for a long distance and when he returned did not find his wife at home but he did to make bother enquiries either from the neighbours or from his and the parents of the deceased; (XII) That the identity of the deceased could not be established till the receipt of two anonymous letters, one of which was in Roman script but. Hindi dialect and the other was in Hindi in Devnagri script which helped the police in establishing the identity of the deceased and that of the accused; (XIII) That the circumstance of the report about the accused and the deceased having left the house together lodged by the father of the accused and the recovery of sample of temper masala from the shop of Amit Kumar are such which are mostspontaneous, natural and in untainted and unvarnished form; (XIV) That the contents of the letters received also show to certain extent that there was some other reason and not necessarily reason of dowry demand that culminated in the offence; (XV) That the accused has failed to prove the plea of alibi that he was out of station from 16th; " ( 3 ) IT appears that before the trial Judge the appellant had seriously contested the fact that the dead body of the woman which was found on 20th April, 1983 in a pit near Kalkaji within the jurisdiction of Police Station Lajpat Nagar, was that of his wife Sheela, Admittedly Sheela, daughter of Lakhi Ram (P. W. 1) was at her parents ancestral house at village Pithopra, Sonepat (Haryana, till 16th April, 1983 when she was brought by her husband i. e. , the appellant herein to Delhi in a car. Her father Public Witness. 1 Lakhi Ram has stated in Court as well as in his statement under Section 161 of the Code of Criminal Procedure that the photograph of the dead woman which was shown to him during investigation, could not be identified by him. It was because of that averment that the appellant has raised the issue of identification of the dead body. Learned trial Court after analysing the evidence of Public Witness. I and his wife Public Witness. 3 Omwati and the tailor, Public Witness. 2 Indravati, resident of the same village as that of Sheela s parents, who had stitched the suit which the deceased was wearing when the body was found, came to the conclusion that the dead body was in fact that of appellant s wife viz, Shesla. We have also gone through that evidence. We have no reason to disagree with the findings of the Addl. Sessions Judge. It does appear that Lakhi Ram, Public Witness. We have also gone through that evidence. We have no reason to disagree with the findings of the Addl. Sessions Judge. It does appear that Lakhi Ram, Public Witness. I had in fact stated that he was unable to identify the photographs of the dead body when those were shown to him during investigation. We have ourselves closely looked at the photographs. It is not at all difficult to identify the dead body from those. The face and the features in the photographs which were taken by a Police photographer on 20th April, 1983 are clearly visible and there can be no difficulty in identifying the person concerned. It is true that Lakhi Ram says that he was not able to identify the dead body but he admits that he had gone to see the dead body on 6th May, 1983. He could not have been asked to identify the dead body on that day as the same had been cremated earlier on 24th April, 1983 by the Police. Therefore, the evidence of Lakhi Ram to that effect that he had been taken to identify the dead body on 6th May, 1983 is to be ignored from consideration. Once that part of the evidence of Lakhi Ram is ignored, as we are inclined to do, the evidence of the other witnesses, particularly that of the tailor, Public Witness. 2 Indravati is conclusive to prove the identity of the dead body. The suit which this woman had stitched for the deceased Sheela was identified by her in an identification parade before a Magistrate. Thus the findings enumerated in circumstances (i) to (iii) above have to be upheld. ( 4 ) WE are unable to persuade ourselves to agree with the finding in circumstance No. (iv) (quoted above ). We are of the view that the prosecution has miserably failed to prove that the appellant and the deceased were last seen together on 19th April, 1983. This finding is based on a Daily Diary report (Ex. Public Witness. 23/a) which is stated to have been got recorded by the father of the appellant, Public Witness. 21 Lakhi Ram, s/o Chaudhary Mauji Ram (This witness is defferent from Public Witness 1 Lakhi Ram, father-in-law of the appellant ). The translated copy of Ex. Public Witness. 20/a is at page 180. Public Witness. 23/a) which is stated to have been got recorded by the father of the appellant, Public Witness. 21 Lakhi Ram, s/o Chaudhary Mauji Ram (This witness is defferent from Public Witness 1 Lakhi Ram, father-in-law of the appellant ). The translated copy of Ex. Public Witness. 20/a is at page 180. It reads as follows : "information regarding missing of persons Time : 2-00 P. M. ( 5 ) AT this time, the person mentioned in column No. 2, having himself come personally at the police post, got his statement recorded to the effect that he resides at the above noted address; on 19. 4. 83 at about 7. 00 A. M. , my son namely Mangat Ram aged about 22 years, wheatish complexion, height about 5 -5", wearing white printed shirt, blue colour pyjama, chappels in feet, having stout body, hair on his head and his wife namely Sheela Devi aged about 20 years, wheatish complexion, height about 5 wearing a pink colour printed suit with chunni, chappels and silver chutkis in her feet having thin body, left the home without intimating any of the members of the family and since then they have not turned up to the house. We made search with all our relations but they did not visit any of them. No information whatsoever has been received about them from any corner. Search may kindly be made. He has come to report the matter. He has heard the statement and the same is correct. Thumb impression of Lakhi Ram" ( 6 ) IT is admitted that the Daily Diary report (quoted above) was not made the basis of the FIR and as such no FIR was recorded. Public Witness. 21, who allegedly had got this report recorded, when in the witness box completely denied having made it. Permission was granted by the trial Court to the Public Prosecutor to cross-examine this witness. In cross-examination, he he (P. W. 21) reiterated his stand. He denied that he had ever gone to Police Station to lodge the report about the missing of his son and daughter-in-law. When confronted with this report, he stated, that he was called to the Police Station and his thumb impression was obtained by the Police forcibly on some paper. In cross-examination, he he (P. W. 21) reiterated his stand. He denied that he had ever gone to Police Station to lodge the report about the missing of his son and daughter-in-law. When confronted with this report, he stated, that he was called to the Police Station and his thumb impression was obtained by the Police forcibly on some paper. In cross-examination by the counsel, for the accused he explained that the Police of Lajpat Nagar had come to him and taken him to Police Post Madan Gir and had obtained his thumb impression on certain papers which he could not identify at that stage. He re-affirmed that his son was having very good relations with his daughter-in-law and that he was very happy with the in-laws also. ( 7 ) AS we have noticed above, the finding that the appellant was last seen together with the deceased, is based solely on the Daily Diary report (quoted above ). The witness who is alleged to have made it, completely denies the fact of having gone to the Police Post on his own to lodge the report. His explanation has also been noticed above; he says that he was forcibly asked to put thumb impression on a number of papers. The factual position thus is that a previous statement made to the Police (which statement is being denied by the witness himself) is being read by the learned trial Court as substantive evidence. We have not been shown any case law or provision of law in support of the finding that such a previous statement can be read as a substantive evidence. Mr. Lao, learned counsel for the respondents agrees and in our opinion rightly so that if the statement, copy of which is Ex. Public Witness 20/a, is ignored from consideration, the finding enumerated in sub-para (iv) of paragraph 54 of the impugned judgment, cannot be upheld. After giving our careful consideration to the evidence on record, we are of the view that it cannot be held that the accused and the deceased were last seen together on 19th April, 1983. From the record what can be said is that they were last seen together on 16th April, 1983 when the appellant had gone to his father- in-law s house to fetch his wife, i. e. , the deceased herein. ( 8 ) WE may note here that Dr. From the record what can be said is that they were last seen together on 16th April, 1983 when the appellant had gone to his father- in-law s house to fetch his wife, i. e. , the deceased herein. ( 8 ) WE may note here that Dr. G. K. Chaubey, Public Witness. 6 on post mortem found the cause of death was "due to asphyxia as a result of strangulation. " But at the request of the Station House Officer concerned he had preserved the viscera, and vaginal swab which were sent to the CFSL for analysis. The post mortem report is Ex. Public Witness. 6/a. DR. G. K. Chaubey on examination of the body found that the posterior part of the hymen was torn. The Investigating Officer while sending the body for post mortem had sought medical opinion whether the deceased had been raped prior to her murder. Dr. Chaubey was of the opinion that she was. On receipt of the report of the (CFSL Ex. 24/a) it was found that the stomach, intestine, liver, spleen, kidney and 50 ml of blood taken out from the dead body gave positive test for cyanide. Obviously the deceased had been poisoned. To connect the appellant with the poisoning, the prosecution produced Amit Kumar, Public Witness. 15, who has a shop of scooter repair and also runs a Lathe. It was the prosecution case that the appellant had bought temper Masala which is used for melting of iron and admittedly contains Sodium Cyanide as one of its ingredients. The theory was that the appellant bad asked Amit Kumar the use of that material and on being told that if any human takes it, he would die, the appellant bought a packet of temper Masala from Amit Kumar, P. W. 15. Amit Kumar in his testimony, however, completely denied having sold that material to the appellant. That witness was also permitted to be cross-examined but nothing worthwhile was brought out in his cross-examination. No reliance can be placed by the prosecution on the testimony of Amit Kumar. It cannot, therefore, be held that the appellant had bought the substance containing Sodium Cyanide from Amit Kumar. ( 9 ) MR. Lao, however, submits that Amit Kumar s brother-in-law Ashok Kumar who has appeared as Public Witness. 14 proves the fact that the appellant bad bought temper Masala from Amit Kumar. It cannot, therefore, be held that the appellant had bought the substance containing Sodium Cyanide from Amit Kumar. ( 9 ) MR. Lao, however, submits that Amit Kumar s brother-in-law Ashok Kumar who has appeared as Public Witness. 14 proves the fact that the appellant bad bought temper Masala from Amit Kumar. On this aspect also we have very carefully gone through the evidence. Ashok Kumar says in his testimony that he was present in the shop of his brother-in-law Amit Kumar on 8th May, 1983 when the appellant was brought to that shop by the Investigating Officer. All he proves is that it was in the presence of the accused and his (witness s) presence that a tin of temper masala and a packet containing that very masala were handed over by Amit Kumar to the Investigating Officer. From the testimony of Public Witness. 14 Ashok Kumar, it cannot be said that the prosecution has been able to prove that on any day prior to 19th or 20th of April, 1983, the appellant had ever purchased the masala in question. It cannot even be said that directly or indirectly the prosecution has been able to prove that the appellant had ever purchased that masala from Amit Kumar. Thus the finding of the learned Addl. Sessions Judge enumerated in sub-paras (vii) and (viii) cannot be upheld. We do not agree with the findings that the appellant had purchased temper masala or that he bad administered that masala to the deceased. We set aside the same. ( 10 ) THE further circumstances that Sheela died due to poisoning as well as because of strangulation have to be upheld although we find that the prosecution did not send the result of the analysis of the CFSL to the Doctor concerned for his opinion. But that finding by itself does not in any way connect the appellant with the murder. ( 11 ) THE learned trial Court has found that since the appellant had not reported the matter regarding the missing of his wife for so long, the circumstances (no. x) leads to the conclusion that "it was a very un-natural conduct" which raises an adversepresumption against him. We have gone through the statement under Section 313 of the Code of Criminal Procedure of the appellant. Mr. x) leads to the conclusion that "it was a very un-natural conduct" which raises an adversepresumption against him. We have gone through the statement under Section 313 of the Code of Criminal Procedure of the appellant. Mr. Lao agrees that this circumstance regarding non-reporting of missing of his wife, was not put to the appellant. We have noticed that the accused had volunteered that he had left Delhi on 16th April, 1983. It seems to be the admitted case that the appellant is a driver by profession. According to the appellant, he had gone out of Delhi since 16th April, 1983. We are not called upon to hold whether the defence has been able to prove that the accused had left Delhi on 16th April, 1983 as alleged but we do hold that the circumstance regarding the non-reporting of missing of his wife, if it had to be used against the appellant, it must have been put to him. Thus circumstance No. (x) (quoted above) is also not made out. ( 12 ) THE other circumstances enumerated by the learned trial Judge are based on the findings which we have already rejected. We have held that the prosecution has not proved that the appellant and the deceased were seen together on 19th April, 1983 as alleged and we have further held that the appellant had not bought the material containing Sodium Cyanide from Amit Kumar. At any race the anonymous letters referred to in circumstances enumerated as (xii) and (xiv) were not proved and exhibited. ( 13 ) THE result of the above discussion is that the appellant is entitled to acquittal. We accept the appeal and set aside the conviction and sentence imposed on the appellant under Section 302 of the Indian Penal Code. We direct that the appellant be released forthwith if not required in any other case.