U. S. TRIPATHI, J. This appeal has been directed against the judgment and order dated 1-5-1981 passed by 6th Additional Sessions Judge, Mainpuri in Sessions Trial No. 299 of 1980 convicting the appellant under Section 302 IPC and sentencing him to imprisonment for life. 2. The prosecution story, briefly stated, is as under: 3. The appellant Raj Kapoor was resident of village Pusena, P. S. Kotwali, District Mainpuri, Pati Ram, Bhagwan Das and Shiv Ram were real brothers of the appellant. Veer Sahai was father of the appellant. Smt. Dhandevi (30) deceased was wife of Bhagwan Das, elder brother of the appellant. 4. It is alleged that relation between Dhandevi deceased and her husband were not cordial and her husband wanted to get rid of her. Bhagwan Das, the husband of the deceased, had once sold her at Nainital but she again came back to his house. Thereafter, Bhagwan Das had left her at Ahmedabad, but she again returned. Bhagwan Das used to beat Dhandevi deceased, but she was not leaving him. 5. On 16-3-1980 at 7. 15 a. m. appellant Raj Kapoor lodged an oral report at P. S. Kotwali, District Mainpuri alleging that on the morning of 16-3-1980 at about 4. 00 a. m. he was attending call of nature near his house. Two persons entered into his house and murdered Dhandevi his sister-in-law by causing knife injuries. When he tried to save her he also sustained knife injuries. The assailants ran away towards grove by scaling the wall. On the basis of above report chik FIR (Ext. Ka-17) was prepared by Constable Bhagwan Swaroop (P. W. 8) who made an endorsement of the same at G. D. report (Ext. Ka-18) and registered a case at Crime No. 266 of 1980 under Section 302 IPC against two unknown persons. 6. The investigation of the case was taken up by Sri S. N. Gautam (P. W. 7 ). He proceeded to the village of the occurrence and reached there at 8. 30 a. m. He appointed Punches and conducted inquest of dead- body of the deceased and prepared inquest report (Ext. Ka-10) and other relevant papers (Ext. Ka-11 to Ka-14 ). He also inspected place of occurrence and prepared site plan (Ext. Ka-15 ). He sealed the dead- body of the deceased and sent it for post-mortem. 30 a. m. He appointed Punches and conducted inquest of dead- body of the deceased and prepared inquest report (Ext. Ka-10) and other relevant papers (Ext. Ka-11 to Ka-14 ). He also inspected place of occurrence and prepared site plan (Ext. Ka-15 ). He sealed the dead- body of the deceased and sent it for post-mortem. The Investigating Officer took into possession blood stained and simple earth from the spot and prepared recovery memo (Ex. Ka-16 ). He also took into possession beddings of the charpai of the deceased and prepared recovery memo. 7. The I. O. did not find any proof of attending call of nature by the appellant as well as no foot steps were found inside the house of the appellant. Therefore, he suspected the conduct of the appellant. While the I. O. was conducting investigation Siya Ram (P. W. 5) Pradhan of the village also came to the spot. The appellant was also present there. Siya Ram (P. W. 5) told the I. O. that the murder did not appear to have been committed by other persons. Therefore, the I. O. interrogated the appellant, who admitted in the presence of Siya Ram (P. W. 5) and other villagers that deceased was beating his mother and since he was youngest, he killed her. He also told that murder was committed with the consent of other family members. That his brother had sent poison packets to him, which he purchased for Rs. 200 and that Bhagwan Das, husband of the deceased had left the village a week before the occurrence. The appellant also told before the I. O. that he would get the knife and his blood clothes recovered. On the pointing out of the appellant the knife (Ex. Ka-1) was recovered from manure pit. The above knife was blood stained. He sealed the knife and prepared recovery memo (Ex. Ka-2 ). The appellant took the police and witnesses in a room under construction and handed over pant, T-shirt and Baniyan as well as one inland letter and four packets of poison. The I. O. sealed that above articles and prepared recovery memo (Ex. Ka-7 and Ex. Ka-3) respectively. 8. Autopsy on the dead-body of the deceased was conducted on 17-3-1980 by Dr. The I. O. sealed that above articles and prepared recovery memo (Ex. Ka-7 and Ex. Ka-3) respectively. 8. Autopsy on the dead-body of the deceased was conducted on 17-3-1980 by Dr. J. P. Gupta (P. W. 1) who found as many as 14 incised wounds on the neck and other parts of the body of the deceased and cause of death due to shock and haemorrhage. He prepared post-mortem report (Ex. Ka-1 ). 9. Recovered blood stained articles were sent for chemical examination and the I. O. on completion of the investigation submitted charge-sheet (Ex. Ka-16) against the appellant. 10. Cognizance of the case was taken by the Magistrate, who committed the case to the Court of Sessions. The appellant was tried for the offence punishable under Section 302 IPC. He pleaded not guilty and contended that he tried to save the deceased and in this connection he sustained knife injury on his hand and he lodged correct report. 11. The prosecution in support of its case examined Dr. J. P. Gupta (P. W. 1), Radhey Shyam (P. W. 2), Ram Deen (P. W. 3), Jhabbu Lal (P. W. 4), Siya Ram (P. W. 5), Dr. S. C. Dubey (P. W. 6), S. N. Gautam (P. W. 7) and Constable Bhagwan Swaroop (P. W. 8 ). The appellant did not adduce any evidence in his defence. 12. The learned Sessions Judge on considering the evidence of the prosecution held that the prosecution successfully proved the circumstances that the deceased was sleeping in the fateful night in the room in which the accused was also sleeping and her father-in-law Veer Sahai was also sleeping in the sahan. No resident of the adjoining houses heard the cries of the deceased nor any member of the family tried to raise alarm for the help and no footsteps or signs of shoes were found going towards the direction in which the accused alleged that the assailants ran away. The absence of any signs of attending the call of nature and the production of knife, blood stained clothes and letter by the accused conclusively proved that it was the accused who committed the murder. With these findings he convicted the appellant under Section 302 IPC and sentenced him to undergo imprisonment for life. 13. The absence of any signs of attending the call of nature and the production of knife, blood stained clothes and letter by the accused conclusively proved that it was the accused who committed the murder. With these findings he convicted the appellant under Section 302 IPC and sentenced him to undergo imprisonment for life. 13. Sri Ravindra Singh learned Counsel appearing on behalf of the appellant stated before the Court that he has no instruction by the appellant. Accordingly, the bail of the appellant was cancelled by this Court vide order dated 28-1-2002 and Chief Judicial Magistrate, Mainpuri was directed to apprehend the appellant. The report of the C. J. M. dated 16-10-2002 disclosed that the appellant could not be arrested and processes under Sections 82-83 Cr. P. C. were issued against him, but the arrest of the appellant could not be secured. In these circumstances we were left with no option but to hear the appeal on merit, in view of the direction of the Apex Court in the case of Bani Singh v. State of U. P. , 1996 (1) JIC 1099 (SC) : AIR 1996 SC 2439 . 14. We have heard the learned A. G. A. and have gone through the evidence on record. 15. There was no dispute in the death and cause of death of Smt. Dhandevi deceased. Dr. J. P. Gupta who conducted autopsy on the dead-body of the deceased found following ante-mortem injuries: (1) Incised wound 8 cm x 4. 5 cm x bone deep over the outer surface of neck. 7 cm above the supra sternal notch, 3/4th of the wound on the right side of neck. Tailing on the left side. Trachea, oesophagus cut vessels right side cut, margins sharp. (2) Incised wound 3. 5 cm x 2 cm x 3 cm over the right side of neck 3. 5 cm below to right oblique going towards chin margins sharp. (3) Incised wound 2 cm x 0. 5 cm x 4 cm leading to Injury No. 1 over the right side of anterior surface of neck. 2 cm below the Injury No. 1. (4) Incised wound 1. 5 cm x 05 cm x muscle deep over the lateral surface of neck right side. 2 cm below the Injury No. 3. (5) Linear incised wound 2 cm x 1 cm x muscle deep over the left side of neck. 2 cm below the Injury No. 1. (4) Incised wound 1. 5 cm x 05 cm x muscle deep over the lateral surface of neck right side. 2 cm below the Injury No. 3. (5) Linear incised wound 2 cm x 1 cm x muscle deep over the left side of neck. 7 cm below to left ear. (6) Incised wound 3 cm x 1 cm x muscle deep over the medial side of left palm. (7) Incised wound 2 cm x 1 cm x muscle deep over the posterior surface of left forearm. 1 cm below the ulna. (8) Lacerated wound 2. 5 cm x 1 cm x skin deep over the wrist (posterior surface) of left hand transverse. (9) Incised wound 2. 5 cm x 1 x cm x muscle deep over the dorsum of left hand, just below to index finger. (10) Incised wound 1 cm x 0. 5 cm x 1 cm over the 1st right web. Just near the root of right thumb. (11) Incised wound 2. 5 cm x 1 cm x muscle deep, over the right scapular region. 5 cm below the right acromion process, transverse. (12) Transverse incised wound 3. 5 cm x 1. 5 cm x muscle deep. 2 cm below the Injury No. 11. (13) Transverse incised wound 2. 5 cm x 1 cm x muscle deep. 3. 5 cm medial to Injury No. 11. (14) Incised wound 2. 5 cm x 2 cm x muscle deep over the lateral surface of right arms. 7 cm below the right shoulder linear. 16. Internal examination showed that large intestine was lacerated and contained faecal matter. Uterus contained foetus of length of 12", weight one pound 8 ounce of female child. Cause of death was shock and haemorrhage due to the injuries described above. 17. The appellant had not challenged the above medical evidence and this established that deceased died due to ante-mortem injuries caused by knife. 18. It is also not disputed that occurrence took place inside house of the deceased where she was sleeping. The I. O. had recovered blood from the charpai on which the deceased was sleeping. Therefore, place of occurrence is also established. It is also not disputed that occurrence took place in the night of 15/16-3-1980 at about 4 a. m. 19. In this case there is no direct evidence. The I. O. had recovered blood from the charpai on which the deceased was sleeping. Therefore, place of occurrence is also established. It is also not disputed that occurrence took place in the night of 15/16-3-1980 at about 4 a. m. 19. In this case there is no direct evidence. The case is based on circumstantial evidence. It is settled that it is well to remember that in cases where the evidence is of the circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but one proposed to be proved. In other words there must be a chain of evidence so far complete as not to have any reasonable grounds for a conclusion consistent with the innocence of the accused and must be such as to show that within all human probability the act must have been done by the accused (vide Hanumant Govind Nargund Kar v. State of M. P. , AIR 1952 SC 343 ). 20. In the instant case the prosecution has relied on the following circumstances against the appellant: (1) The appellant had motive to commit the murder of the deceased. (2) The appellant lodged false report at the Police Station. (3) Absence of proof of attending call of nature by the appellant and absence of footsteps of the assailants. (4) Extra judicial confession of the appellant before the villagers. (5) Recovery of blood stained knife (weapon of assault) and blood stained clothes of the appellant on his pointing out. 21. Before discussing the above circumstances it is relevant to refer the evidence adduced by the prosecution. 22. Dr. J. P. Gupta (P. W. 1) stated that he conducted autopsy on the dead-body of the deceased. His evidence proved that Dhandevi deceased died on account of ante-mortem injuries. Death was probable in the night of 15/16-3-1980 and the ante-mortem injuries sustained by her were sufficient in the ordinary course of nature to cause her death. 23. 22. Dr. J. P. Gupta (P. W. 1) stated that he conducted autopsy on the dead-body of the deceased. His evidence proved that Dhandevi deceased died on account of ante-mortem injuries. Death was probable in the night of 15/16-3-1980 and the ante-mortem injuries sustained by her were sufficient in the ordinary course of nature to cause her death. 23. Radhey Shyam (P. W. 2) is the witness of recovery of blood stained knife and blood stained clothes of the appellant on his pointing out as well as letter and four packets containing some poisonous substance. 24. Ram Deen (P. W. 3) is the witness of recovery of blood stained earth and simple earth and bedding of the charpai on which the deceased was murdered. 25. Jhabbu Lal (P. W. 4) is the witness of inquest. 26. Siya Ram (P. W. 5) stated that in the morning of the occurrence at about 5. 00 a. m. he heard cries of the appellant who was crying that assailants killed his sister-in-law. He did not believe the appellant as she had no enmity with any person nor she had any property. The relation of Dhandevi with her husband were not cordial and her husband wanted to get rid of her. He had once sold her at Nainital from where Om Saran had brought her to the village. Thereafter, husband of the deceased left her at Ahmadabad. Husband of the deceased used to beat her but she did not want to leave him. When he reached the place of occurrence at about 5. 00 a. m. the appellant was present there and his clothes were stained with blood. He was bearing pant and T-shirt at that time. He changed his clothes before going to Kotwali. He had also sustained injury in his hand. Police came in the village at about 8. 30 a. m. Inquest on the dead-body of the deceased was conducted. The appellant was also present there. He told to the I. O. that murder did not appear to have been committed by the miscreant. The appellant told before him and other persons of the village that the deceased used to beat his mother and therefore, he killed her. The murder was committed with the consent of the family members and his brother also sent packets of poison. The appellant told before him and other persons of the village that the deceased used to beat his mother and therefore, he killed her. The murder was committed with the consent of the family members and his brother also sent packets of poison. The appellant told before the I. O. that he would get recovered knife and his blood stained clothes. The appellant brought the witnesses and police party to a manure pit from where he picked out a blood-stained knife and handed over to the I. O. Recovery Memo (Ex. Ka-2) was prepared and he signed it. Therefore, the appellant took the witnesses and police party in a room under construction and took out pant, T-shirt and Baniyan, which were bloodstained, and inland letter and four packets of poison from a hole in the wall and handed over to the I. O. The above articles were sealed and recovery memo (Ex. Ka-7) was prepared, which was attested by him. That he was acquainted with the handwriting of Patiram and the letter dated 5-3-1980 (Ex. Ka-8) was written by Patiram. 27. Dr. S. C. Dubey (P. W. 6) examined injury of the appellant on 16-3-1980 at 7. 50 a. m. and found following injuries on his person: (1) Incised wound 9 cm x 0. 3 cm x muscle deep in front of right palm in the middle. The wound was directed from outwards to inwards. The edges of the wound were clear-cut and injury was bleeding. The injury was simple caused by some sharp edged weapon and was fresh in duration. 28. Sri S. N. Gautam (P. W. 7) is the I. O. of the case. He prepared inquest of the dead-body, recovered blood stained and simple earth from the spot, blood stained bedding of the deceased. He further stated that the appellant told before him to get blood stained knife and clothes recovered and on the pointing of the appellant blood stained knife and pant, T-shirt and Baniyan of the appellant were recovered. One inland letter (Ex. Ka-8) and four packets of poison were also recovered. 29. Bhagwan Swaroop (P. W. 8) is the scribe of chik FIR and G. D. report, who proved the chik FIR which he prepared on the dictation of the appellant and made an endorsement of the same at G. D. report (Ext. Ka-18 ). 30. One inland letter (Ex. Ka-8) and four packets of poison were also recovered. 29. Bhagwan Swaroop (P. W. 8) is the scribe of chik FIR and G. D. report, who proved the chik FIR which he prepared on the dictation of the appellant and made an endorsement of the same at G. D. report (Ext. Ka-18 ). 30. This was the gist of all the evidence adduced by the prosecution. 31. On the point of motive, the prosecution relied on the evidence of Siya Ram (P. W. 5 ). The above witness stated that relation of Dhandevi deceased with her husband were not cordial and her husband wanted to get rid of her. He had also once sold her at Nainital and Om Saran brought her back. On another occasion husband of the deceased had left her at Ahmadabad but she returned and that he also used to beat her. The above evidence though not corroborated by any other evidence suggests that the husband of the deceased wanted to get rid of her. The above evidence does not indicate to any motive to the appellant. It is true that the appellant is the real brother of Bhagwan Das the husband of the deceased Dhandevi, but Siyaram has not stated that the appellant was also siding Bhagwan Das and helping him in getting rid of the deceased. Thus, the above motive had no concern with the appellant. 32. Siyaram (P. W. 5) further stated in his statement that when the police made enquiry from the appellant he told before him and other persons of the village that the deceased was beating his mother. He was youngest and therefore, he murdered her. He further stated that murder was done with the consent of the member of the family and his brother had sent him poison packets, which he purchased for Rs. 200. In his cross-examination the witness stated that he had not seen deceased beating mother of the appellant that before few days of the occurrence. Mother of the appellant told him about it, that the mother of the appellant died two years ago and Dhandevi was murdered one year ago. The above fact does not find place in his statement before I. O. and is thus, subsequent development. Mother of the appellant told him about it, that the mother of the appellant died two years ago and Dhandevi was murdered one year ago. The above fact does not find place in his statement before I. O. and is thus, subsequent development. The evidence of Siyaram (P. W. 5) shows that the appellant made above statement before the police though other persons of the village were also present. Therefore, the above statement is hit by Section 25 of the Indian Evidence Act. Moreover, if the mother of the appellant had died one year earlier to the occurrence of this case the appellant had hardly any motive to murder the deceased. If he wanted to retaliate on the above ground he would have murdered the deceased in the lifetime of his mother or just after her death. 33. Siyaram (P. W. 5) further stated that four packets of poison were recovered on the pointing out of the appellant. The I. O. Sri S. N. Gautam (P. W. 7) has also stated that packets of poison were recovered on the pointing out of the appellant. The above packets were sent to the Chemical Examiner for analysis. The report of Public Analyst (Ex. Ka-21) shows that no poison was found in Item Nos. 1 to 3 and potassium nitrate was found in Item No. 4. There is no evidence to prove that the appellant or any other member of his family ever tried to administer poison to the deceased. Therefore, the recovery of poison is not linked with the murder of the deceased. 34. Letter (Ext. Ka-8) is said to have been written by Pati Ram but the contents of letter simply show that Pati Ram had written to his father to break legs of Dhandevi if she did not come to right path. This letter does hot show that appellant or his father were asked to murder the deceased. 35. In this way the evidence of the motive given by Siya Shyam (P. W. 5) is hit by Section 25 of the Indian Evidence Act and cannot be relied on and recovery of poison and letter is also not linked with the murder of the deceased. Therefore, the prosecution could not establish any motive. 36. 35. In this way the evidence of the motive given by Siya Shyam (P. W. 5) is hit by Section 25 of the Indian Evidence Act and cannot be relied on and recovery of poison and letter is also not linked with the murder of the deceased. Therefore, the prosecution could not establish any motive. 36. The correctness of the facts mentioned in the report lodged by the appellant were doubted by the I. O. and villagers on the grounds that there was no proof that the appellant was attending call of nature at the place mentioned in the FIR by him and that there were no footsteps of other persons, the alleged assailants. The occurrence took place in the night at about 4. 00 a. m. The I. O. reached the spot at 8. 30 a. m. The evidence of Siya Ram (P. W. 5) shows that he had come to the spot at 5. 00 a. m. The news of murder of the deceased had spread in the village in the early morning. Therefore, the possibility of arrival of several persons of the village in the room of the deceased cannot be easily ruled out. The footsteps of the alleged assailants would have been diminished by the foot steps of other persons of the village. 37. The place of attending call of nature was in open place in the grove of Om, Roop Chandra and Lakhpati at place c as shown in the site plan. By the time when the I. O. reached the spot the sign would have also been diminished. Therefore, this circumstance has not been established. 38. Siya Ram (P. W. 5) stated that the appellant admitted before the other persons of the village that he committed murder of the deceased. But his evidence shows that the appellant made above statement on the enquiry made by the I. O. (Police ). Therefore, the above confession if any is not an extra-judicial confession. The confession made before the police is hit by Section 25 of Indian Evidence Act and cannot be relied on. 39. The evidences of Siya Ram (P. W. 5) and Sri S. N. Gautam (P. W. 7) show that blood stained knife was recovered on the pointing out of the appellant. The I. O. Sri S. N. Gautam stated that blood stained knife was sealed at the spot and recovery memo (Ex. 39. The evidences of Siya Ram (P. W. 5) and Sri S. N. Gautam (P. W. 7) show that blood stained knife was recovered on the pointing out of the appellant. The I. O. Sri S. N. Gautam stated that blood stained knife was sealed at the spot and recovery memo (Ex. Ka-2) was prepared on the spot, which was attested by the witnesses. He further stated that blood stained clothes of the appellant were also recovered which were sealed on the spot and recovery memo (Ext. Ka-7) was prepared which was signed by witnesses including Siya Ram (P. W. 5 ). Siya Ram (P. W. 5) admitted in his cross-examination that he was called by the Daroga at the Police Station where he went on next day and he signed on recovery memos Ex. Ka-2, 3 and 7 at the Police Station. This statement of the witnesses creates doubt in recovery of knife on the pointing out of the appellant as alleged by the prosecution. 40. Siya Ram (P. W. 5) further stated that on coming to know about the occurrence he reached the spot and saw the appellant there and at that time the appellant was bearing blood stained clothes. Subsequently, when the I. O. came to the spot the appellant got recovered pant, T-shirt and Baniyan which were blood stained. Radhey Shyam (P. W. 2) also stated that blood stained clothes were recovered on the pointing out of the appellant. The evidence of the I. O. shows that above clothes were recovered from a room under construction. Siya Ram (P. W. 5) admitted in his cross-examination that the room from which the above articles were recovered had no door planks and any person could come in it. This shows that the place of recovery of blood stained clothes was accessible to others. Radhey Shyam (P. W. 2) further admitted in his cross-examination that he had not seen the clothes with the appellant. Siya Ram (P. W. 5) no doubt stated that he had seen the appellant bearing pant and T-shirt which were blood stained when he first came to the spot and that the appellant had removed the above clothes in his presence and then went to the police station. That after removing the clothes the appellant kept them in his Mandaha (hut ). That after removing the clothes the appellant kept them in his Mandaha (hut ). It is not clear as how the above clothes reached in the room which was under construction. Moreover, Siya Ram was aware of the place where the above clothes were kept, much before from its recovery. He had not told before the I. O. that blood stained clothes of the appellant were kept in the Mandha. Thus, the recovery of the clothes on the pointing of the appellant also appears doubtful. Moreover, Siya Ram (P. W. 5) admitted that he signed recovery memo of the blood stained clothes of the appellant (Ext. Ka-7) on the next day at the police station. This aspect also creates doubt in the above circumstance. 41. The appellant has stated in his statement under Section 313 Cr. P. C. that while saving the deceased he caught hold knife of assailants and got injury on his palm. Dr. S. C. Dubey (P. W. 6) stated that he found incised wound 9 cm x 0. 3 cm x muscle deep on right palm, which was fresh in duration. He admitted in his cross-examination that the said injury could be caused if the injured caught hold knife. The blood on his clothes could also come due to said injury. The above circumstance leads to the hypothesis of innocence of the appellant. 42. Thus, the prosecution has not successfully proved the circumstances relied on it. Moreover, the above circumstances taken together do not make a complete chain of circumstances which may prove the hypothesis of the guilt of the appellant. 43. The learned Sessions Judge has also observed in his judgment that there is also a circumstance that the appellant was sleeping in the room where the deceased was sleeping. But there is no evidence to prove the above circumstance as none of the prosecution witness stated so. The I. O. has simply shown in the site plan the places two charpai a and b and mentioned that at charpai a the dead-body of the deceased was found and on charpai at place b the appellant was allegedly sleeping. But no witness was examined to prove that the appellant was seen sleeping on the charpai at place b. The place of charpai on which the appellant was sleeping shown in the site plan is hit by Section 162 Cr. But no witness was examined to prove that the appellant was seen sleeping on the charpai at place b. The place of charpai on which the appellant was sleeping shown in the site plan is hit by Section 162 Cr. P. C. as it was not in the personal knowledge of the I. O. and he prepared site plan on the pointing out of the some persons who had not stated this fact. 44. No doubt the villagers and others had suspected that in view of the facts and circumstances of the case the appellant had committed the murder of the deceased, but the suspicion, howsoever strong it may be, cannot take place of proof and appellant cannot be convicted simply on the basis of suspicion. 45. In view of the above discussion and observations we find that the prosecution utterly failed to establish the guilt of the appellant. Thus, the appeal succeeds. 46. The appeal is allowed. Conviction of the appellant under Section 302 IPC and sentence of life imprisonment under said section are set aside and the appellant is acquitted of the said offence. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharge. Appeal allowed. .