Judgment Om Prakash, J. 1. Appellant Rambalak Singh has been convicted for the offences punishable under Sections 302 and 201, IPC and has been sentenced to imprisonment for life for the offence punishable under Sec. 302, IPC and to undergo rigorous imprisonment for five years for the offence punishable under Sec. 201, IPC. The sentence have been ordered to run concurrently. 2. Admittedly, Rambalak Singh is a son of one Ram Parichhat Singh, a first cousion of the husband of one Sheela Devi. According to the prosecution case, a Banswari situated in village Ritwara, P.S. Bajipati, district Sitamarhi, was a joint property of Sheela and Ram Parichhat. Sheelas house had fallen and hence she was living in the house of co-villager Lalita Devi (P.W. 6). To reconstruct her fallen house Sheela visited the Banswari on 20-10-1986, a Monday, and got about 30 bamboos cut by her younger brother Rambilash Singh (P.W. 8). Appellant Ram Balak along with his brothers Rambabu Singh, Lalbabu Singh and their father Ramparichhat Singh went there and threatened Sheela with disappearance of her dead body as she had got the bamboos cut. On the same evening, Sheela left Lalitas house to see Korabati (building materials) at the site of her own fallen house. But she never returned. Lalita informed co-viliager Satrughan (P.W. 2) who searched for her but in vain. Eventually he informed Sheelas Samdhi, Ram Sajeevan Mishra (P.W. 11), He visited Itwara, searched for her unsuccessfully and lodged a Sanha (Ext. 7) at the Bajpati Police Station. 3. On 1-11-1986, a highly decomposed dead body was found being eaten by dogs in a ditch south of the village. On. being informed by one Jawahar, village Choukidar Pradesh Pawan (P.W. 5) went there and eventually lodged F.I.R. stating that Shambhu Singh (P.W. 3) Phulegen Singh (P.W. 4) and other villagers have identified the dead body as that of Sheela. It is remoured in the village that appellant Rambalak Singh has thrown the dead body there after murdering Sheela. 4. Police, after completing investigation, submitted charge-sheet against appellant Rambalak Singh, his brothers Lalbabu Singh and Rambabu Singh and their father Ramparichhat Singh. In due course all the four were put on trial before the Sessions Judge, Sitamarhi. The learned Sessions Judge found appellant Rambalak Singh guilty of the ollence punishable under Secs. 302 and 201, IPC and sentenced him, as above. In due course all the four were put on trial before the Sessions Judge, Sitamarhi. The learned Sessions Judge found appellant Rambalak Singh guilty of the ollence punishable under Secs. 302 and 201, IPC and sentenced him, as above. But he acquitted the three other accused. 5. Denying the allegation against him in his statement under Sec. 313, Cr. PC appellant Rambalak has admitted that he is a Pattidar of Sheelas husband. But he has denied that any Banswari or land is joint. 6. The prosecution has examined 11 P.Ws. none of whom is an eyewitness P.W. 7 is I.O. and P.W. 9 is a doctor. The remaining nine P.Ws. have been examined on circumstances P. Ws. 4 to 6 have been declared hostile. 7. The learned Counsel for the appellant has contended that there is no chain of circumstances complete in itself as to point out that the appellant and none else then the appellant and he alone has murdered Sheela. He has argued that there is no satisfactory evidence to prove that Sheela has been murdered or the dead body recovered was that of Sheela. In this connection he has referred to the evidence on the record. 8. Evidence of P.W. 1, Kameshwar Singh and P.W. 2 Satrughan Singh is that house of Sheela had fallen. To get it reconstructed she had got about 30 bamboos cut by his brother from a Banswari in which both Sheela and. appellants father Ramprichhat had shares. The appellant accompanied by his father and brothers arrived there and threatened Sheela. According to P.W. 1 the appellant told her that though she had got the bamboos cut, he would not allow her to reconstruct her house and would dispose of her dead body. According to P.W. 2, the appellant told Sheela that she may cut bamboos but she would not be left alive. Further evidence of P.W. 1 is that Sheela had about 2 bighas of land and she wanted to give the same to her maried daughter Shanti but the appellant and his co-accused wanted that it should be given to them. P.W. 2 also says that this appellant and his co-accused wanted to gard such land of Sheela who was assaulted by them two years ago. 9. P.W. 2 also says that this appellant and his co-accused wanted to gard such land of Sheela who was assaulted by them two years ago. 9. But evidence of the I.O. P.W. 7 Binod Das shows that P.W. 1 Kueseshwar did not state before him that the appellant and Sheela had shares in any Banswari or the appellant wanted that Sheela should give her land to him or he used to harass her on this account or he ever threatened her as above. Evidence of I.O., P.W. 7 further shows that P.W. 2, Satrughan Singh had not stated before him that Sheelas? brother Ramsuyas Singh was cutting bamboos of the appellant had threatened Sheela saying that" she may cut bamboos but he would not leave her alive. Thus both P.Ws. 1 and 2 appear to have developed the vital parts of the prosecution story against the appellant for the first time in the court only. 10. The facts and circumstances emerging from the evidence on record show that P.W. 2 witnesses neither any bamboos cutting on 20-10-1986 nor any threatening by the appellant to Sheela. In para 6 of his evidence P.W. 2 says that on 25-10-1986 he narrated every occurrence taking place during the period from 20-10-1986 to 24-10-1986 to P.W. 11 Ramsanjeevan Mishra, Sheelas Samdhi, when he visited the village, Itwara. He searched for Sheela in his company but in vain P.W. 11 Ramsanjeevan along with him. (P.W. 2) and the Chaukidar visited police station and lodged a Sanha. Evidence of P.W. 11 Ramsanjeevan Singh is similar and to thesame effect. The Sanha lodged by him is Ext. 7. 11. In Sanha, Ext. 7, P.W. 11 Ramsanjeevan Mishra says that Sheela is traceless since at 7 p. m. on 20-6-1986 when she had gone to her own house. It is significant to note that P.W. 2 Strughan has repeatedly stated in his evidence that he had disclosed everything to P.W. 11 Ramsanjeevan Mishra before the Sanha was lodged. P.W. 11, too says that he bad detailed discussion with P.W. 2 Satrughan. It is significant to note that P.W. 2 Strughan has repeatedly stated in his evidence that he had disclosed everything to P.W. 11 Ramsanjeevan Mishra before the Sanha was lodged. P.W. 11, too says that he bad detailed discussion with P.W. 2 Satrughan. Had P.W. 2 Satrughan witnessed the cutting of bamboos from any Banswari and the resultant threat by the appellant to Sheela, such a material and vital fact would have surely been narrated by him (P.W. 2) to P.W. 11 Ramsanjeevan Mishra who, in his turn, would have certainly mentioned the same in the Sanha enabling the police to proceed against the appellant. But nothing about bamboos cutting or threat by appellant to Sheela has been mentioned in the Sanha, Ext. 7 lodged on 25-10-1986 with Bajipati Police. Not even a doubt about the complicity of the appellant has been cast in the Sanha. In these circumstances, no reliance can reasonably and safely be placed on the evidence of P.W. 2 who has been playing the main role in the entire prosecution case. 12. P.W. 3, Shambhu Singh, too, claims to have seen the appellant abusing and quarreling with Sheela for cutting bamboos from the Banswari. He, too, says that appellant had threatened her saying that he would dispose of her dead body. He further says that after lodging of Sanha by Ramsanjeevan Singh, the appellant absconded. But evidence of I.O, P.W. 7 shows that P.W. 3 Shambhu did not state before him that the appellant abused Sheela or the appellant absconded from the village after lodging of Sanha. Evidence of P.W. 5, the village Choukidar and the informant, is that no one absconded after lodging of the Sanha. 13. That apart, evidence of P.W. 3 that appellant absconded from the village after lodging of the Sanha has not been put to the appellant in his examination under Sec. 313, Cr. PC enabling him to explain it. Similarly evidence of the I.O., P.W. 7, that he found 25--30 cut bamboos kept on the Bathan of appellants father, has not been put to the appellant in his examinations under Section 313, Cr. PC giving him a chance to explain it. If any evidence or circumstance emerging from evidence is not put to the accused in his examination under Sec. 313, Cr. PC giving him a chance to explain it. If any evidence or circumstance emerging from evidence is not put to the accused in his examination under Sec. 313, Cr. PC it cannot be made basis to convict him for the simple reason that he has not been given a chance to explain it. Hence such circumstances cannot be used against the appellant on this count also. 14. It has been held in the case of Sharad V/s. State of Maharashtra as reported in -- that circumstances not put to accused in his examination under Sec. 313, Cr. PC cannot be used against him. 15. Evidence of P.W. 8, Ramsuyas Singh, a younger brother of Sheela, is that at the request of Sheela he had cut about 25 bamboos out of her share in the Banswari. At the time of cutting of the bamboos the appellant and his brothers and father arrived and threatened that they would kill her and cause disappearance of her dead body in case bamboos are cut. 16. Evidence of P.W. 6, Lalita Devi is that Sheelas house had fallen and thereafter she had been living in her house. She does not know if she had any quarrel or dispute with anybody or any one had threatened her further evidence shows that on the relevant evening. Sheela had left her house to see. Korabati on the site of her own fallen house, but she never returned. She informed P.W. 2, Satrughan in the matter next morning. 17. P.W. 5 Pardesi Panswan, the informant, says that no Banswari or hand was joint between the appellant and Sheela. There was no dispute between the two. No dispute or quarrel arose between the two on the question of cutting of bamboos on 20-10-1986. Evidence of P.W. 4, Phulen Singh is that a partition had taken place between Sheela and appellants father Ramprichhat Singh. Thus the Evidence of P.Ws. 4 and 5 strikes at the very root i.e., the genesis of the case of the prosecution. It is significant to note here that there is no objective finding of the I.O. that he found any number of bamboos cut from any Banswari. Absence of such finding shakes the foundation of the case of the prosecution. 18. 4 and 5 strikes at the very root i.e., the genesis of the case of the prosecution. It is significant to note here that there is no objective finding of the I.O. that he found any number of bamboos cut from any Banswari. Absence of such finding shakes the foundation of the case of the prosecution. 18. On the point of identification of the dead body recovered from the ditch, evidence of P.W. 5, Pardesi Paswan, the village Choukidar, is that a dead body was found in a ditch south of the village. But he could not identify it. He says that P.W. 2, Satrughan Singh and P.W. 3, Shambhu Singh identified it as that of Sheela. 19. Both P.W. 2, Satrughan Singh and P.W. 3, Shambhu Singh claim to have identified such dead body as that of Sheela. Evidence of P.W. 2, Satrughan Singh is that on the Monday she disappeared, she (Sheela) was putting on a black border saree with green and red prints That very saree was tied with the dead body and he identified the dead body as that of Sheela. But evidence of I.O., P.W. 7, shows that he found no saree on the dead body. It was wrsped is cotton printed says (Peticot). But he seized a cotton red border saree with red and black prints lying in water 10 feet south of the dead body, though no saree has not been produced in Court. Evidence of P.W. 5 is that the saree was soiled with mud and its colour was not visible. Thus it is clear that there was no black border saree on the dead body recovered and as such question of identification of the dead body by P.W. 2 on the basis of such saree cannot arise. Besides, Ext. 7 the Sanha ledged on the basis of information gathered from P.W. 2, Satrughan Singh, shows that on the Monday of her disappearance. Sheela was putting on a white saree with black prints. In these circumstances, it cannot be said reasonably and safely that the dead body recovered was that of Sheela. That apart, evidence of I.O. shows that P.W. 2 Satrughan had given no description of the saree before him. P.W. 2, did not state before him that he identified the dead body as that of Sheela. In these circumstances, it cannot be said reasonably and safely that the dead body recovered was that of Sheela. That apart, evidence of I.O. shows that P.W. 2 Satrughan had given no description of the saree before him. P.W. 2, did not state before him that he identified the dead body as that of Sheela. Thus it appears that P.W. 2 is claiming to have identified the dead body as that of Sheela in the court for the first time. Even the F.I.R. does not show that he had identified the dead body as that of Sheela before, P.W. 5 the informant. I, therefore, reject his testimony. 20. P.W. 3, Shambhu Singh claims to have identified the dead body by its red border saree. But evidence of I.O. shows that P.W. 3 did not disclose the colour of the saree before him. As there was no saree on the dead body, question of identification of the dead body by saree hardly arises. 21. Evidence of P.W. 1, Kueseshwar Singh is that he had seen Sheela on the day she got Bamboos cut and became tracless in the evening. She was wearing a red border cotton saree with red and green prints. He identified the dead body as that of Sheela by the very same saree which she was wearing on the last day. But in his cross-examination, he admits that he did not state so before I.O. Evidence of I.O., P.W. 7, shows that he did not even claim before him that he saw Sheela on that Monday. Such material omission amounts to vital contradiction and as such no reliance can reasonably be placed on his such evidence in court on identification of the dead body. 22. Evidence of P.W. 9, Dr. V.C. Verma, Professor and Head of the Department, Foreign and Medicine, D.M.C.H. Darbhanga, is that on 3-11-1986 he did medico legal examination on highly decomposed skeleton of a dead body with parts of flesh over the chest abodomen. The lower parts were absent. He has opined that the decomposed incomplete remains of the dead body belongned to a female aged 38 years plus minue 2 years. It was not possible to give any definite opinion about the cause of death. His report, Ext. 4 is to the same effect. Dr. Verma further says that the skeleton was not identified by any one when it was received by him. It was not possible to give any definite opinion about the cause of death. His report, Ext. 4 is to the same effect. Dr. Verma further says that the skeleton was not identified by any one when it was received by him. Thus there is nothing on the record to show satisfactorily that highly decomposed incomplete remains of the dead body examined by him where those of the dead body of Sheela. 23. Thus the evidence on record shows that Sheela disappeared and became traceless on 22-10-1986. But it is not established satisfactorily by reliable and cogent evidence that the dead body recovered on 1-11-1986 from the ditch was that of Sheela. In a case of homicide if a body or its remains are found, they must be identified as those of the victim on the basis of evidence of scars; birth marks, moles, tattooes, colour of hair, weight and measurement and condition of teeth etc. corpus delicti is not established by simply showing or proving of the absence or disappearance of the alleged victim. Of course, conviction for murder is possible even if corpus dilicti is not found. But in that case there must he cogent and reliable evidence, direct or circumstantial, of the commission of the murder and it is wanting in the instant case. 24. There is neither direct evidence of murder nor a chain of circumstance so complete in itself as to point out towards the guilt of the appellant and towards the guilt of none other than the appellant leaving no reasonable ground for a conclusion inconsistent with the innocence of the appellant, suspicion cannot be a substitute for cogent and reliable evidence. 25. In the result, the appeal succeeds. It is hereby allowed. The order of conviction and sentence passed against the appellant is hereby set aside. He is ordered to be set at liberty fortwith if not required in any other case.