JUDGMENT - P.S. BRAHME, J.:---This appeal is preferred by the appellant challenging the judgment and order passed by the Sessions Judge, Bhandara in Sessions Trial No. 142 of 1994 on 12-5-1995, wherein the appellant was convicted for the offence punishable under section 302 Indian Penal Code for committing murder of his wife, and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- in default to undergo further R.I. for 3 months. 2. The prosecution case in nutshell as disclosed in F.I.R. (Exhibit 13) is as follows: The appellant Suresh Meshram was resident of village Shiroli. The deceased Pushpabai who was victim of the assault, was the wife of the accused Suresh, being married to him in the year 1985. It appears that though Pushpabai bore a male child of the appellant , there was very serious matrimonial discord between them for the reason that the appellant was suspecting the character of the deceased Pushpabai. On 17-6-1994 around 4.15 p.m. deceased Pushpabai was assaulted with spade on her head causing grievous injuries on her person. The witnesses Hirkanbai (P.W. 3). Sadashiv (P.W. 4), Sulochana (P.W. 5), Ramesh (P.W. 6) and Digambar (P.W. 8) and so many persons in the locality had rushed to the house of accused Suresh and saw Pushpabai lying in the door of the house in injured condition. The witness Sadashiv (P.W. 4) went to the threshing flour of witness Shankarsingh (P.W. 2) who was Sarpanch of village Siroli and informed that Pushpabai was assaulted and killed by the appellant Suresh. The Sarpanch Shankarsingh (P.W. 2) on receiving the information from Sadashiv rushed to the place of incident alongwith Police Patil. He saw that Suresh was tied by the rope and Pushpabai was lying almost dead in the pool of blood in the house. So Sarpanch Shankarsingh went to Police Station Arjuni (Moregaon) and lodged report (Exhibit 13) on the basis of which police Sub-Inspector Hegaji (P.W. 12) registered offence against the appellant at C.R. No. 50 of 1994. He also seized the spade which Sarpanch Shankarsingh produced under seizure memo (Exhibit 23). Pushpabai was immediately taken to the Rural Hospital, Arjuni (Moregaon) on the same day at about 6.30 p.m. for medical treatment. The in-charge Medical Officer at Rural Hospital examined Pushpabai and issued injury certificate (Exhibit 46) and advice to remove Pushpabai to the hospital. He also seized the spade which Sarpanch Shankarsingh produced under seizure memo (Exhibit 23). Pushpabai was immediately taken to the Rural Hospital, Arjuni (Moregaon) on the same day at about 6.30 p.m. for medical treatment. The in-charge Medical Officer at Rural Hospital examined Pushpabai and issued injury certificate (Exhibit 46) and advice to remove Pushpabai to the hospital. However, Pushpabai succumbed to the injuries on the same day before she could be removed to other hospital. P.S.I. Hegaji (P.W. 12) carried out the investigation. Dr. Meshram (P.W. 1) who was Medical Officer, Rural Hospital, Navegaonbandh carried out autopsy on the dead body of Pushpabai. He found following injuries on her person and noted in postmortem report (Exhibit 11). "1. Incised wound over right parietal region. Oblique in direction elongated cylindrical in shape reddish in colour, margin clean cut, size 4 cm. x ½ cm. x bone deep. 2. Incised wound over left side of base of occipital region of scull. Oblique in direction, cylindrical in shape, elongated, reddish in colour margin clean out, size 4 cm. x ½ cm. x bone deep. 3. Incised wound 2 cm. above wound No. 2 transverse in direction, elongated, cylindrical in shape, reddish in colour, margin clean cut, size 1 cm. x ¼ cm. x bone deep. 4. Incised wound over left parietal temporal region, extending to occipital region triangular in shape, central skin flap is separated triangularly, reddish in colour, margin clean cut size 4 cm. x 3 cm. x bony deep. 5. Incised wound over left occipital region, longytunnial in direction, elongated, cylindrical in shape, reddish in colour, margin clean cut size 5 cm. x 1 cm. x bony deep. 6. Incised wound over upper cartilegious part of left ear, cylindrical in shape, elongated, margin clean cut, reddish in colour, size 2 cm. x ½ cm. x ¼ cm. 7. Incised wound over right maxillary region 2 cm. below right eye, transverse direction, elongated, cylindrical in shape, margin clean cut, size 2 cm. x ½ cm. 8. Incised wound over the left temporol mandibular region, oblique in direction, elongated, cylindrical in shape, reddish in colour, margin clean cut, size 2½ cm x ½ cm x bone deep. 9. Abrasion below lip on right side, irregular in shape, reddish in colour size ½ cm. x ¼ cm. 10. Abrasion over left side of mandible, irregular in shape, reddish in colour, size ½ cm. 9. Abrasion below lip on right side, irregular in shape, reddish in colour size ½ cm. x ¼ cm. 10. Abrasion over left side of mandible, irregular in shape, reddish in colour, size ½ cm. x ¼ cm. Internal Injuries 1. Compound fracture of occipital bone on left side, vertical in direction, size 2", two separated pieces of bone seen. " 3. He opined that all the injuries described above were antemortem injuries. Injuries Nos. 1 to 8 mentioned in Column No. 17 of the Postmortem Report (Exhibit 11) were sufficient in ordinary course of nature to cause death and Injuries Nos. 1 to 8 must have been caused by sharp cutting object like axe, spade etc. The Injury Nos. 9 and 10 must have been caused by hard and blunt object. He also opined that Injuries Nos. 1 to 8 could have been caused by the spade (Article 1). In his opinion the probable cause of death was hypovolumic shock due to multiple injuries, wound and compound fracture of the occipital bone of the scull. 4. In the course of investigation the appellant came to be arrested under arrest panchanama (Exhibit 24). That time the clothes on his person namely shirt and one towel which were soiled with blood came to be seized under arrest panchanama. The Investigation Officer visited the hospital, drew inquest panchanama (Exhibit 55). He visited the place of incident and found that the floor of the house where Pushpabai was lying was soiled with blood. He found pieces of bangles, hair pin on the spot. He collected plain earth so also the earth smeared with blood and other articles under panchanama (Exhibit 22). The clothes of the deceased were seized under the seizure memo (Exhibit 20). All the articles seized were forwarded to the Chemical Analyser, Nagpur for the purpose of analysis along with forwarding letter (Exhibit 59). The report of C.A. (Exhibit 60) was received which narrated that stains of blood group 'B' were found on the blade of spade, shirt and towel of the appellant and the clothes of the deceased. After completing the investigation P.S.I. Hegaji filed charge-sheet against the appellant in the Court of Judicial Magistrate, First Class, Sakoli on 12-8-1994 who in turn in usual manner committed the case to the Sessions Court, Bhandara by his order dated 24th October, 1994. 5. After completing the investigation P.S.I. Hegaji filed charge-sheet against the appellant in the Court of Judicial Magistrate, First Class, Sakoli on 12-8-1994 who in turn in usual manner committed the case to the Sessions Court, Bhandara by his order dated 24th October, 1994. 5. At the sessions trial the prosecution examined 12 witnesses including Dr. Meshram (P.W. 1), Sarpanch Shankarsingh Gautam (P.W. 2), Hirkanbai (P.W. 3), Sadashiv (P.W. 4), Sulochana (P.W. 5), Ramesh (P.W. 6), Digambar (P.W. 8), Gautam Sukhdeve (P.W. 9) who is brother of deceased Pushpabai, through whom compromise deed (Exhibit 30) and copy of the complaint (Exhibit 31) lodged by father of Pushpabai to the Police Station came to be seized, and P.S.I. Hegaji (P.W. 12) who lodged the F.I.R. (Exhibit 53) on the report of Sarpancha Shankarsingh (P.W. 2). The defence of the appellant was that of total denial. He however, admitted his presence in the house when Sarpanch arrived. He stated that when he came from outside he saw his wife lying on the ground, roof had fallen on her. He gave her drinking water, many persons had come, he went to the Police Station and narrated all the facts to the police. Then he went to the hospital. He has specifically denied that he was armed with spade. It appears from the suggestions given to the Medical Officer by the defence that according to the appellant Pushpabai sustained injuries on her person as a result of fall of the roof of the room. The appellant also admitted that his shirt that came to be seized by police was stained with blood. The learned trial Court accepting the evidence of Shankarsingh, witness Ramesh (P.W. 6) and medical evidence as to the injuries sustained by Pushpabai came to the conclusion that death of Pushpabai was homicidal one as a result of assault on her with the spade and on the basis of the circumstances attending the case, the trial Court found that it was the appellant who committed the murder of Pushpabai and accordingly the trial Court found him guilty of the offence under section 302 Indian Penal Code and convicted him as stated earlier. 6. We have heard Mr. Daga the learned Counsel appearing for the appellant. 6. We have heard Mr. Daga the learned Counsel appearing for the appellant. He submitted that the trial Court has committed an error in holding the appellant guilty for committing murder of Pushpabai as there is no evidence led by the prosecution to show that the appellant cause assault on Pushpabai. It is submitted that the circumstances relied upon by the prosecution as enumerated by the trial Court in his judgment are not established and those circumstances are not of incriminating nature pointing out the guilt of the accused/appellant. He pointed out that most crucial witness Hirkanabai (P.W. 3), Sadashiv (P.W. 4), Digambar (P.W. 8) and Sulochana (P.W. 5) have not supported the prosecution. They have been declared hostile. The trial Court has however committed grave illegality in accepting the statement as corroborating the fact of presence of the appellant in the house with the spade in his hand and that as an incriminating circumstance, stood established to rest the conviction of the appellant for commission of the offence of murder of Pushpabai. It is submitted that the witnesses have not supported the prosecution on the core of fact that the appellant assaulting his wife Pushpabai in the house with the spade. The learned Counsel further submitted that the circumstances which stood established are not of incriminating nature and at the most these circumstances create strong suspicion that the appellant might have killed his wife Pushpabai but that is of no consequence as the prosecution has failed to establish beyond every shade of doubt that the appellant has killed his wife Pushpabai. Therefore, it is submitted that the suspicion howsoever strong it may be, cannot take the place of proof. The learned Counsel, therefore, urged that the trial Court has committed an error in holding the appellant guilty. He urged that the appeal be allowed and conviction and sentence passed against the appellant be quashed and set aside and the appellant be released. 7. Mrs. Bodade, the learned A.P.P. appearing for the respondent vehemently supported the judgment of conviction of the appellant. She submitted that the trial Court was perfectly justified in accepting the evidence of hostile witnesses, for the reason that the facts disclosed through the evidence of the hostile witnesses have been corroborated by independent evidence. 7. Mrs. Bodade, the learned A.P.P. appearing for the respondent vehemently supported the judgment of conviction of the appellant. She submitted that the trial Court was perfectly justified in accepting the evidence of hostile witnesses, for the reason that the facts disclosed through the evidence of the hostile witnesses have been corroborated by independent evidence. She submitted that it is not the rule of law while appreciating the evidence of the witnesses that the evidence of hostile witnesses is to be rejected out rightly. To substantiate her submission she placed reliance on a decision of the Apex Court rendered in the case of (Koli Lakhmanbhai Chanabhi v. State of Gujarat)1, reported in 2000 Supreme Court Cases (Cri.) page 13, wherein it is held on the facts and circumstances of the case that the evidence of witnesses who were treated hostile and cross-examined by the prosecution, to the extent the same supports the prosecution version as admissible in trial and if corroborated by other reliable evidence, can be relied on to convict the accused. She, therefore, urged that the appeal merits no consideration at all and the same should be dismissed. 8. It is not disputed that on 17-6-1994 around 4 p.m. victim Pushpabai was found lying on the floor of the house in which she was residing with accused Suresh and that she had sustained very grievous injuries on her person and that the clothes which she was wearing were almost soak with blood. Even as per the statement of the appellant recorded under section 313 of the Code of Criminal Procedure, when he returned to his house from outside he saw Pushpabai lying in the house having multiple bleeding injuries on her person. It is admitted that Pushpabai was removed to Rural Hospital where she was treated by in-charge Medical Officer, who issued injury certificate (Exhibit 46) regarding the injuries he noticed on the person of the Pushpabai and that on the same day Pushpabai succumbed to injuries. It is the case of the prosecution that Pushpabai died homicidal death as a result of assault on her by the appellant. This was however, disputed by the defence contending that Pushpabai sustained injuries as a result of fall of the roof of the room and as such she met with an accidental death. It is the case of the prosecution that Pushpabai died homicidal death as a result of assault on her by the appellant. This was however, disputed by the defence contending that Pushpabai sustained injuries as a result of fall of the roof of the room and as such she met with an accidental death. The Judge of the trial Court in his judgment has rightly dealt with this question as regards the homicidal death of deceased Pushpabai. The trial Court found that having regard to the medical evidence that of Dr. Meshram (P.W. 1) regarding the extent of internal and external injuries found on her dead body and his candid opinion that those injuries are not possible by fall of a roof and that those injuries could be caused by the spade (Article 1), her death was homicidal one. The medical evidence totally rules out the possibility of her death being accidental one. However, the trial Court has observed that defence of the appellant was false and after thought, and that the appellant did not adduce independent evidence to substantiate his defence that the death of Pushpabai was accidental one due to fall of roof. Here we feel that the trial Court committed an error in saying that as the defence has failed to establish that the death of Pushpabai was accidental one by adducing independent evidence and further the defence was false and after thought, that the death was homicidal one. In a criminal trial, it is for the prosecution to establish by leading cogent evidence that the death of a person was homicidal one. Even if the defence of the accused is that of total denial, and it is found to be false and after thought, that does not absolve the prosecution from establishing the fact that the death of a person is homicidal one. In the case before hand, the prosecution has independently establish by cogent and legal evidence that death of Pushpabai was homicidal one. 9. The learned Counsel for the appellant submitted that on the evidence on record the prosecution has not succeeded in establishing that the deceased Pushpabai had sustained injuries which were noted by the Medical Officer Dr. Meshram while conducting the autopsy on her dead body. 9. The learned Counsel for the appellant submitted that on the evidence on record the prosecution has not succeeded in establishing that the deceased Pushpabai had sustained injuries which were noted by the Medical Officer Dr. Meshram while conducting the autopsy on her dead body. It is an admitted fact that Pushpabai was removed to Rural Hospital immediately after the occurrence and was examined by the in-charge Medical Officer and he noted the injuries on her person as described in the injury certificate (Exhibit 46). The learned Counsel Mr. Daga pointed out that the injuries mentioned in the certificate (Exhibit 46) were all lacerations, where as the injuries noted by Dr. Meshram and mentioned in the postmortem report (Exhibit 11) were incised wounds. It is submitted that there is grave disparity between two injury reports as to the factum of injuries sustained by Pushpabai which brings out the infirmity in the prosecution case as to the injuries sustained by Pushpabai and consequently it is difficult to say and hold that Pushpabai died homicidal death. The trial Court has dealt with this submission of the defence in his judgment. It is found that the Medical Officer who issued injury certificate (Exhibit 46) was not examined. The fact remains that defence also did not ask for examining the Medical Officer who issued the certificate (Exhibit 46). Therefore, though the in-charge Medical Officer mentioned in the injury certificate Exhibit 46 that the injuries were lacerated wounds, it does not follow that the said evidence is at variance with the evidence of Dr. Meshram as regards the injuries, external as well as internal which he noticed on the dead body of Pushpabai. That apart, what we find that except the nature of the injuries location of the injuries as given in the injury certificate (Exhibit 46) is the same as that of injuries noted by Dr. Meshram while conducting the autopsy. Therefore, there is no infirmity or any doubt as to the injuries sustained by Pushpabai, as noted by us in earlier part of the judgment, which Dr. Meshram noted in the postmortem report (Exhibit 11). Then evidence of Dr. Meshram clinchingly shows that the injuries were of grievous nature and Injury Nos. 1 to 8 could be caused by the spade. He has given explicit opinion that these injuries are not possible by fall of a roof. Meshram noted in the postmortem report (Exhibit 11). Then evidence of Dr. Meshram clinchingly shows that the injuries were of grievous nature and Injury Nos. 1 to 8 could be caused by the spade. He has given explicit opinion that these injuries are not possible by fall of a roof. It is pertinent to note that there was internal damage corresponding to the external injuries and there was fracture of the skull bone. Extent of multiple injuries grievous as they goes to show that the injuries could not have been caused due to fall of a roof. So on our assessment independently of the evidence more particularly of the medical evidence we agree with the conclusion of the learned trial Judge that the death of Pushpabai was homicidal one. This fact has been established by the prosecution independently. It is certainly not because the defence of the appellant was found to be false and after thought. 10. The crucial question to be decided is about the complicity of the appellant in commission of murder of Pushpabai. The prosecution has claimed that the appellant is responsible for homicidal death of Pushpabai in as much as it was the appellant who assaulted Pushpabai with the spade and caused severe bleeding injuries on her person. It is needless to say that again it is for the prosecution to prove beyond shadow of doubt the fact that the appellant caused the injuries on the person of Pushpabai that resulted into her death. The trial Court has found that incriminating circumstances have been established and on the basis of the evidence of some of the eye-witnesses namely; Hirkanbai (P.W. 3), Sadashiv (P.W. 4), Shankarsingh (P.W. 2), Ramesh (P.W. 6) and element of motive proved by the prosecution complicity of the appellant is established. We have perused the evidence of the witnesses. We have also assessed the circumstances enumerated by the learned trial Judge and we have come to the conclusion that the conclusion arrived at by the trial Court is totally incorrect. 11. It is true that all the witnesses on whom the prosecution was banking upon did not support the prosecution and for that the witness Hirkanbai (P.W. 3), Sadashiv (P.W. 4), Sulochana (P.W. 5), Digambar (P.W. 8) were declared hostile. 11. It is true that all the witnesses on whom the prosecution was banking upon did not support the prosecution and for that the witness Hirkanbai (P.W. 3), Sadashiv (P.W. 4), Sulochana (P.W. 5), Digambar (P.W. 8) were declared hostile. It is to be noted that though the prosecution cross-examined these witnesses nothing has been brought by the prosecution in their cross-examination to show that the witnesses have given false account of the incident. It is also to be noted that the witnesses have denied to have stated in their statement recorded by Investigation Officer under section 161 of the Criminal Procedure Code showing involvement of the appellant in assaulting Pushpabai. We may straightway say that the witnesses Shankarsingh (P.W. 2), Hirkarnbai (P.W. 3) Sadashiv (P.W. 4), Sulochana (P.W. 5) and Digambar (P.W. 8) never claimed basically to have witnessed assault on Pushpabai by the assailant with the spade. So far as witness Shankarsingh (P.W. 2) is concerned, his claim was that it was the witness Sadashiv (P.W. 4) who rushed to him and told that the appellant assaulted his wife Pushpabai with the spade. So it is only from the information which Shankarsingh got from the witness Sadashiv, that he came to know that Pushpabai was assaulted by the accused. As regards other witnesses Hirkanbai (P.W. 3), Sulochana (P.W. 5) and Digambar (P.W. 8) the position is more or less the same, but the fact remains that the witness Sadashiv (P.W. 4) in his evidence before the Court candidly denied that he saw Suresh having caught the hands of his wife and there was spade in his arms and that he interrogated Suresh as to why he was assaulting his wife, and he should keep quiet looking towards his children. It is pertinent to note that it is not brought through the evidence of this witness by the prosecution though the witness was declared hostile and the prosecution had opportunity to cross-examine him, that he witnessed the incident of actual assault by accused Suresh on his wife Pushpabai. It is further pertinent to note that it is not brought in the evidence of this witness Sadashiv that he informed Sarpanch Shankarsingh that accused Suresh assaulted his wife Pushpabai with the spade. It is further pertinent to note that it is not brought in the evidence of this witness Sadashiv that he informed Sarpanch Shankarsingh that accused Suresh assaulted his wife Pushpabai with the spade. In this state of evidence of witness Sadashiv, the claim of witness Shankarsingh in his evidence before the Court that Sadashiv informed him that Suresh assaulted his wife Pushpabai with the spade falls to the ground. 12. So far as witness Hirkanbai (P.W. 3) and Sulochana (P.W. 5) are concerned, they have not stated that they learn from Sadashiv that accused Suresh assaulted Pushpabai. That apart when Sadashiv has not stated in his substantial evidence before the Court that Sulochana and Hirkanbai came to know from the disclosure made by him that accused Suresh assaulted Pushpabai, it is meaningless to hold that the admission given by witness Hirkanbai and Sulochana could be accepted and relied upon though the witnesses have been declared hostile. 13. The preposition that is made by the learned A.P.P. was laid down by the Apex Court in the decision rendered in the case of Koli Lakhmanbhai Chanabhi v. State of Gujarat, 2000 Supreme Court Cases(Cri.) page 13 (supra), that the evidence even of hostile witnesses to the extent the same supports the prosecution version is held admissible in trial and if corroborated by other reliable evidence, can be relied on to convict the accused cannot be disputed. Even the learned trial Judge in his judgment has said about the appreciation of the evidence of hostile witnesses and stated that such part of testimony of hostile witness which appears to be credit worthy will have to be believed. There is no bar to base conviction upon the testimony of hostile witness if it is corroborated by other evidence. Evidence of hostile witnesses cannot be rejected in totality. There is no quarrel over this preposition, but in the case before hand hostile witnesses have not admitted in their cross-examination about the facts relating to the involvement of the appellant. In fact the witness Hirkanbai (P.W. 3) has candidly denied in her cross-examination by the prosecution the statement which was recorded in her statement. If that is so, then it cannot be said that the factum of involvement of the appellant in commission of the assault on Pushpabai is established as admission by hostile witnesses, being corroborated by admitted fact. In fact the witness Hirkanbai (P.W. 3) has candidly denied in her cross-examination by the prosecution the statement which was recorded in her statement. If that is so, then it cannot be said that the factum of involvement of the appellant in commission of the assault on Pushpabai is established as admission by hostile witnesses, being corroborated by admitted fact. Here in the case the position is otherwise. As stated earlier Hirkanbai never claimed that she witnessed the incident of assault by appellant with the spade. Even witness Shankersingh (P.W. 2) did not claim to have witnessed the incident. Therefore, there is absolutely no evidence on which the prosecution could lay its hand to establish that the assault was by appellant with the spade. The evidence of witness Ramesh (P.W. 6) was relied upon but from his evidence the prosecution did not get any material showing the complicity of the appellant in assaulting Pushpabai. This witness Ramesh basically claimed that Sadashiv told that Suresh killed his wife Pushpabai. He saw that Suresh armed with spade and he was caught by Digamber. He tied the accused with the rope and left from there. As stated earlier, it is not brought from the evidence of Sadashiv by the prosecution that he told witness Ramesh that Suresh has assaulted his wife. What is surprising is the fact that this witness Ramesh has admitted that police had not recorded his statement and that he had stated the aforesaid incident for the first time in the Court. There was no cross-examination by the prosecution of this witness when he made the statement that police did not record his statement. So the Counsel for the defence was justified in submitting that the evidence of Ramesh is far from truth and we also find that having regard to the fact that Sadashiv having disowned the statement that he informed Shankarsing or Ramesh about the incident, the claim of this witness Ramesh itself is very difficult to accept and to place reliance upon. 14. Much has been said by the trial Court about the incriminating circumstance, particularly finding of blood on the blade of the spade and clothes of the accused. The accused has not denied the fact that there were stains of blood on his shirt that came to be seized by police when he was arrested. 14. Much has been said by the trial Court about the incriminating circumstance, particularly finding of blood on the blade of the spade and clothes of the accused. The accused has not denied the fact that there were stains of blood on his shirt that came to be seized by police when he was arrested. The question is whether this circumstance by itself of finding blood on the shirt of the accused would be said to be of incriminating nature when it is admitted by witness Sadashiv that he saw the accused sitting by the side of Pushpabai stopping the blood oozing from the wounds sustained by Pushpabai, so in that process it is likely that the shirt of the accused could have stains of blood in such state of circumstances the finding of blood on the shirt of the accused cannot be said to be an incriminating circumstance to arrive at inevitable and inescable conclusion of the involvement of the accused. 15. In the evidence of witness Shankarsingh (P.W. 2) he has stated that Sadashiv told him that accused Suresh assaulted Pushpabai and when he visited the house of accused he saw accused Suresh sitting armed with spade. In the report (Exhibit 13) lodged by Shankarsingh, it is stated that the accused Suresh when interrogated told that he killed his wife Pushpabai. This evidence of witness Shankarsingh has gone unchallenged by the defence. Therefore, the trial Court Judge observed that it has been established that the accused Suresh was in the house armed with the spade and he attempted to have killed his wife by assaulting her with the spade. It is further established that the witness Sadashiv informed Shankarsingh that the accused Suresh assaulted his wife Pushpabai with the spade. Taking into consideration the entire evidence of witness Shankarsingh and that of witness Sadashiv we feel that the conclusions arrived at by the trial Court Judge as to the extra judicial confession on the part of the accused Suresh as also his presence armed with the spade are not correct. As stated earlier, the witness Sadashiv (P.W. 4) has not stated in his evidence that he informed witness Shankarsingh that the accused Suresh assaulted his wife Pushpabai. As stated earlier, the witness Sadashiv (P.W. 4) has not stated in his evidence that he informed witness Shankarsingh that the accused Suresh assaulted his wife Pushpabai. In his evidence before the Court, he has stated that Sulochana told him that Pushpabai was weeping at her house and, therefore, he went to the house of Suresh and there saw that wife of Suresh was sitting and she had bleeding wound on her head and Suresh was sitting near her and was trying to stop oozing of blood from the wound by putting his hands. In his first examination itself he has candidly stated that it did not happen that Suresh had assaulted his wife by the spade in his presence. With this evidence of witness Sadashiv the claim of witness Shankarsingh that Sadashiv informed him regarding assault on Pushpabai by the accused Suresh falls to the ground. There is no other evidence to substantiate the fact that Shankarsingh was informed by witness Sadashiv that accused had assaulted his wife Pushpabai with the spade. It is true that in the report (Exhibit 13) it is stated that on interrogation by Police Patil the accused Suresh disclosed that he assaulted his wife with the spade, but the substantial evidence of witness Shankarsingh is totally otherwise. In his first examination itself he has stated that when Police Patil asked the accused as to how the accident occurred, the accused did not speak anything, he was caught hold by the Police Patil and he was tied by the rope. This version of witness Shankarsingh remained intact in as much as no attempt has been made by the prosecutor to seek the clarification by putting questions in re-examination of the witnesses. Having regard to this admission of witness Shankarsingh that the accused did not speak anything when he was asked by Police Patil as to how the incident occurred, the statement in the report (Exhibit 13) that the accused disclosed that he assaulted and killed his wife Pushpabai cannot be accepted and relied upon. In fact in the background of substantive evidence of witness Shankarsingh, this statement in the report (Exhibit 13) becomes meaningless. In fact in the background of substantive evidence of witness Shankarsingh, this statement in the report (Exhibit 13) becomes meaningless. Therefore, the conclusions arrived at by the trial Court that the accused Suresh admitted that he killed his wife by assaulting her with the spade, that he was found armed with spade in the house are established through the evidence of witness Shankarsingh and Ramesh cannot be accepted. It has to be said that these two circumstances that the accused Suresh admitted to have killed his wife with the spade and that he was found armed with the spade are not established on the evidence on record. It is also pertinent to note that the hostile witnesses Hirkanbai (P.W. 3), Digambar (P.W. 8) and Sulochana (P.W. 5) have not admitted in their cross-examination about this circumstance. Therefore, the observation of the trial Court that these two circumstances appear to be firmly established by the prosecution through the evidence of hostile witnesses and simply because these witnesses were declared hostile, it does not follow that independent evidence of these witnesses deserves to be discarded as not correct. We say that the trial Court was mindful of the fact that there was no independent evidence on which prosecution could lay its hand to show that the accused assaulted Pushpabai by the spade. The learned Judge has observed that: "In this contest, it may be stated that the evidence adduced by the prosecution is essentially of a circumstantial nature, because nobody from the prosecution witnesses claims to have seen the accused assaulting Pushpabai by a spade." Therefore, there is no independent evidence establishing these two circumstances which are certainly of incriminating nature showing positively the culpability of the accused Suresh. If that is so, then it was absolutely erroneous to seek corroboration by the admission given by hostile witnesses in their evidence. We have made it clear that the hostile witnesses more particularly Hirkanbai, Sadashiv and Digambar have not given any admission in respect of these two circumstances. Therefore, no question arises to place reliance on their version when they have resiled from their statements recorded by the Investigating Officer. 16. We have made it clear that the hostile witnesses more particularly Hirkanbai, Sadashiv and Digambar have not given any admission in respect of these two circumstances. Therefore, no question arises to place reliance on their version when they have resiled from their statements recorded by the Investigating Officer. 16. The trial Court has given much emphasis on the circumstance that the accused Suresh was found armed with spade and this circumstance was found to have been established in the background of the fact that the wife of accused was lying in the pool of blood having multiple grievous injuries on her head and other part of the body, this circumstance was found to be pointing towards the guilt of the accused. We have already said that by independent evidence the fact that appellant Suresh was found armed with spade is not established. Besides this the prosecution has utterly failed to show that the accused Suresh was very much present at the time when his wife Pushpabai came to be assaulted in the house. In this context, trial Court has also observed that the prosecution could not lay its hand on the evidence of independent witnesses showing that the appellant was seen assaulting his wife with the spade. In the background of this even accepting that when Shankarsingh and other witnesses visited the house of the accused, they found that the appellant was armed with the spade, we do not think that, this by itself is sufficient to conclude that the appellant must have assaulted his wife Pushpabai with the spade. In the nature of things if really the appellant Suresh had assaulted his wife Pushpabai with the spade, he would not remain in the house holding the spade in his hand. Therefore, the claim of the prosecution that the accused Suresh was seen holding the spade in his hand does not appear to be probable and true. It is not the case of the prosecution witnesses that the accused was trying to escape from the house when the witnesses reached to his house hearing the shouts. In fact the witness Sadashiv has stated that the accused was found sitting by the side of his wife. It is not the case of the prosecution witnesses that the accused was trying to escape from the house when the witnesses reached to his house hearing the shouts. In fact the witness Sadashiv has stated that the accused was found sitting by the side of his wife. In the background of this statement by Sadashiv even if it is accepted that the appellant was armed with the spade, we do not think that the said circumstance would be of a definite tendency unerringly pointing towards the guilt of the accused. In this connection if the statement of the appellant that was already been stated in earlier part of the judgment if taken into consideration, it must be said that the said circumstance is capable of explanation of hypothesis consistent with the innocence of the accused. 17. The law as regards the appreciation of the evidence of circumstantial nature has been settled by series of the decisions of the Apex Court. In the decision rendered in the case of (Gambhir v. State of Maharashtra)2, 1982(2) Bom.C.R. 471 , the Apex Court has laid down as under: "(i) The circumstances from which an inference of the guilt is sought to be drawn, must be cogently and firmly established; (ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else." It is clear from the observation of the Apex Court that the circumstantial evidence should not only be consistent with the guilt of the accused but should also be in consistent with his innocence. If three conditions which are necessary to be satisfied before circumstantial evidence can be made the basis of conviction, have been fulfilled, the accused can be convicted. There may be suspicion against the accused but suspicion alone cannot take place of proof. The conviction based on circumstantial evidence can be sustained if it is such as to be conclusive of the guilt of the accused and incapable of explanation of any hypothesis consistent with the innocence of the accused. There may be suspicion against the accused but suspicion alone cannot take place of proof. The conviction based on circumstantial evidence can be sustained if it is such as to be conclusive of the guilt of the accused and incapable of explanation of any hypothesis consistent with the innocence of the accused. It is needless to say that before a person is found guilty on the basis of mere circumstantial evidence, each of the circumstances relied upon must be clearly established and proved and the proved circumstances must be of incriminating nature and all circumstances taken together must be such as reasonably to exclude the probability of innocence. Before the accused can contend that the probable hypothesis pointing to his innocence has remain unexcluded by the facts proved against him the Court must be satisfied with the suggested hypothesis is reasonable and not far fetched. 18. The last circumstance is about the motive on the part of the accused. It is established by the prosecution through the evidence of Shankarsingh and witness Gautam (P.W. 9) and Bhimrao (P.W. 10) who are brothers of deceased Pushpabai that there was matrimonial discord between appellant Suresh and his wife Pushpabai. We have also said in earlier part of the judgment that not only the appellant but deceased Pushpabai was also suspecting the character of the appellant in as much as he was having relations with one Babita with whom he wanted to marry. It is also borne out from the report (Exhibit 31) lodged by the father of the deceased Pushpabai that the cause of dispute and quarrel and consequent harassment to Pushpabai by the appellant was that Pushpabai refused to give consent to appellant to perform marriage with Babita. It appears that the appellant had caused physical torture to Pushpabai even to the extent of attempt to hang her. In that connection report was lodged to the Police Station. It is also borne out from the evidence of witness Gautam, Bhimrao, Hirkanbai and Shankarsingh while in Police Station in connection with the report lodged by Pushpabai regarding the harassment to her, a compromise promise was arrived at as reflected in the compromise deed (Exhibit 30), wherein the appellant has admitted about the matrimonial discord and assured that Pushpabai would be treated well and that is how deceased Pushpabai had returned to her matrimonial home few days prior to the incident. In the background of this we have no hesitation that prosecution has established that the accused Suresh had motive to finish Pushpabai who was the only thorn coming in his way to perform marriage with Babita. 19. But the question that now falls for our consideration is whether existence of motive simpliciter is sufficient as an incriminating circumstance to arrive at inescapable conclusion that the appellant Suresh was the killer of Pushpabai. Having regard to the facts and circumstances of the case and failure on the part of prosecution to adduce independent evidence showing culpability of the appellant in commission of assault on the victim, absence of the appellant when his wife Pushpabai came to be assaulted we hold that the motive is established by the prosecution heightens strong suspicion that the appellant might have been involved in commission of the guilt but we are mindful of the caution that suspicion howsoever strong cannot take the place of proof. We refer to the decision rendered by the Apex Court in (Sarwan Singh Rattan Singh v. State of Punjab)3, A.I.R. 1957 Supreme Court page 637; observing: "It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true; but between "may be true" and "must be true" there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence." 20. According to system of jurisprudence which we follow, a conviction cannot be based on suspicion nor on the consensus of the Court being morally satisfied about the complicity of accused person. He can be convicted and sentenced only if the prosecution proves its case beyond all reasonable doubt. 21. A man may be guilty is different from saying that he must be guilty. The dividing line between the two is sometimes fine but always real one. That the specific guilt of the accused has to be proved as mandated by the law by the prosecution by leading evidence acceptable beyond every spell of doubt. 21. A man may be guilty is different from saying that he must be guilty. The dividing line between the two is sometimes fine but always real one. That the specific guilt of the accused has to be proved as mandated by the law by the prosecution by leading evidence acceptable beyond every spell of doubt. In the given case failure on the part of the accused to give explanation as to how his wife came to be assaulted in the house cannot be said to be a circumstance providing additional link in the chain of circumstance. This is because there is no evidence to show that the accused was present in the house when his wife Pushpabai came to be assaulted. In the report (Exhibit 30) which the father of Pushpabai gave to the Police Station has raised suspicion against Babita as one of the cultprits of Pushpabai. The Investigating Officer, P.S.I. Hegaji admitted in his evidence that he did not make further enquiry in the report (Exhibit 31). It is mentioned in that report that one woman had assaulted the wife of the accused. The evidence lead by the prosecution including that on the point of motive places in the realm of strongest suspicion in the background that father of Pushpabai has raised suspicion against the woman as indicated in his report (Exhibit 31), as Babita as one of the suspects of Pushpabai. We, therefore, come to the conclusion that the prosecution has utterly failed to establish that the appellant was the assailant of Pushpabai. The matter is certainly in the realm of suspicion regarding the complicity of the appellant. In addition to this presence of the appellant sitting by the side of his wife, trying to prevent oozing of blood from the wounds, spells out his innocence. So we have found that the appellant cannot be said to be guilty of the offence with which he was charged. Trial Court has committed an error in holding the appellant guilty of the offence of committing murder of his wife. The order passed by the trial Court convicting the appellant of the offence under section 302 Indian Penal Code deserves to be quashed and set aside. We, therefore, pass the following order: We allow the appeal of the appellant. The order of conviction and sentence passed by the trial Court is quashed and set aside. The order passed by the trial Court convicting the appellant of the offence under section 302 Indian Penal Code deserves to be quashed and set aside. We, therefore, pass the following order: We allow the appeal of the appellant. The order of conviction and sentence passed by the trial Court is quashed and set aside. The appellant be set at liberty if not required in any other case. Appeal allowed. -----