JUDGMENT Hon’ble R.C. Deepak, J.—This criminal appeal has been filed by the appellant-accused Hira Lal for setting-aside the judgment and order passed by Sri I.P. Mittal, the then Additional Sessions Judge, Mirzapur dated 30.8.1980 in Sessions Trial No.43 of 1978 pertaining to Police Station Katra, District Mirzapur convicting and sentencing him to imprisonment for life under Section 302, IPC. 2. The facts of the prosecution case, briefly stated, are that the informant Munni Lal son of Baldev Prasad, resident of Mohalla Ganeshganj, Police Station Katra, District Mirzapur had solemnized the marriage of his daughter Gyani Devi with appellant-accused Hira Lal resident of the same Mohalla and District two or three years back. His daughter had been happily and peacefully living at the house of the appellant-accused. After two or three months after the marriage, the appellant-accused and the other members of his family started embarrassing, harassing, humiliating, troubling, turmoiling, beating and compelling her to ask for more dowry from her parents. Consequently, she happened to be extremely worried. She used to tell her parents and other members of the family about the anxieties and atrocities caused to her by appellant-accused and other members of his family. Consequently, she was unwilling to go to the house of the appellant-accused. Not only this, but also she very sorrowfully expressed before the parents and other members of the family that she would not visit the house of appellant-accused otherwise the appellant-accused would poison her to death. The informant and other members of her family, however, consoled her and asked appellant-accused not to cause/commit any evil deed in regard to her. The appellant-accused agreed and, therefore, the informant and other members of his family sent Gyani Devi along with the appellant-accused to his house. Two days before the occurrence, one Paras Nath informed the informant that the appellant-accused was beating his wife Gyani Devi in the night between 21/22.7.1977 and, therefore, she was weeping and crying. Consequently, the informant, accompanied by Bhola Nath, Chunni Lal, Rameshwar Prasad, Radhey Shyam, Shanker Lal, Purushottam, Durga Prasad and many others went to the house of the appellant-accused who happened to come out of his house and seeing them all there, started running away. Whereupon they all ran after him, who fell down at a short distance and received certain injuries. The informant and certain others named above beat the appellant-accused and caught hold of him. Whereupon they all ran after him, who fell down at a short distance and received certain injuries. The informant and certain others named above beat the appellant-accused and caught hold of him. The appellant-accused with his folded hands confessed his guilt/crime expressing that he at the instance of his father administered poison to his wife Gyani Devi to death. The informant and others went to the upper storey of the house of the appellant-accused and found Gyani Devi dead there. The informant dictated the alleged report Exhibit Ka-1 on the spot to Bhola Nath in connection with the occurrence. He took this report to the Police Station concerned where the first information report Exhibit Ka-1 was written on the basis of the said report and a case as case crime No. 180 of 1977 under Section 302/328, IPC was registered. After the registration of the case, its investigation was initially entrusted to Sub-Inspector Bal Govind Tiwari and subsequent to Sub-Inspector/Station Officer Narendra Singh. S.I. Bal Govind Tiwari visited the place of occurrence and prepared its site plan Exhibit Ka-16. He took the dead body of Smt. Gyani Devi into his custody and prepared Panchayatnama Exhibit Ka-12 in connection therewith. He sent the dead body of Smt. Gyani Devi through Constable Naim Ullah for postmortem examination. Doctor D.D. Tripathi (P.W.5) conducted the postmortem on the dead body of Gyani Devi on 22.71977. His report is Exhibit Ka-3. He preserved viscera also as is clear from his report. The Investigating Officer S.I. Bal Govind Tiwari took down the statements of Munni Lal, Bhola Nath and Rameshwar Prasad. Similarly, second Investigating Officer S.I. Narendra Singh took down the statements of Paras Nath and Purushottam and after completion of the investigation into the case, he submitted the charge-sheet Exhibit Ka-9 against the appellant-accused and another in the Court. Ultimately, the Court framed charges against the appellant-accused and his father Babu Ram. Babu Ram was acquitted by the Trial Court. The State filed Government Appeal No. 2811 of 1980 against the order of acquittal. He died during the pendency of the Government Appeal. Consequently, the Appeal stand abated. 3. The prosecution examined as many as 9 witnesses in support of its case. Munni Lal (P.W.1), Bhola Nath (P.W.2), Chunni Lal (P.W.3), Paras Nath (P.W.6) are the witnesses of fact, whereas Dr. He died during the pendency of the Government Appeal. Consequently, the Appeal stand abated. 3. The prosecution examined as many as 9 witnesses in support of its case. Munni Lal (P.W.1), Bhola Nath (P.W.2), Chunni Lal (P.W.3), Paras Nath (P.W.6) are the witnesses of fact, whereas Dr. D.D. Tripathi (P.W.5), Narendra Singh (P.W.7) and Bal Govind Tiwari (P.W.9), the Investigating Officer are the formal ones. Paras Nath turned hostile. The appellant-accused denied all the charges against him vide his statement under Section 313, Cr.P.C. He has examined Dr. S.C. Verma (D.W.1) in support of his version, as disclosed by him in his statement under Section 313, Cr.P.C. The Trial Court convicted the appellant-accused under Section 302 IPC against which the present criminal appeal has been filed, as already referred-to-above. 4. We have heard Sri P.N. Misra, learned senior advocate with the assistance of Sri Apul Misra, learned Counsel for the appellant-accused, Sri Devendra Upadhayay, learned A.G.A. for the State and perused the records. The first information report is a copy (verbatim) of the report Exhibit Ka-1 alleged to have been written by Bhola Nath (P.W.2) on the dictation of the informant Munni Lal (P.W.1) allegedly on the spot itself. It may be mentioned at the very outset that there is no evidence on record to point out when, where and from whom Munni Lal (P.W.1) or Bhola Nath (P.W.2) had actually obtained pen-ink or fountain pen and paper for the purpose of writing the alleged report. There is no mention of anything in any form or manner in the alleged report, showing where it was actually written. Munni Lal (P.W.1) has stated that the report was written at the door of the house of appellant Hira Lal. Chunni Lal (P.W.3) has stated that Munni Lal (P.W.1) had got the report written by Bhola Nath (P.W.2) on his dictation while sitting on a platform (chabootra) outside the Courtyard of the house of Hira Lal. Bhola Nath (P.W.2) has, on the other hand, categorically stated in his cross-examination that the report was not written on the spot. 6. Chunni Lal (P.W.3) has stated that Munni Lal (P.W.1) had got the report written by Bhola Nath (P.W.2) on his dictation while sitting on a platform (chabootra) outside the Courtyard of the house of Hira Lal. Bhola Nath (P.W.2) has, on the other hand, categorically stated in his cross-examination that the report was not written on the spot. 6. In view of all these inconsistent and contradictory statements of Munni Lal (P.W.1), Chunni Lal (P.W.3) and Bhola Nath (P.W.2) and in view of the conspicuous silence of the place of procurement of the pen and paper, as mentioned earlier, the learned Counsel for the appellant-accused has forcefully argued that the report was not written on spot, but at the police station itself and that too in consultation with the police officers concerned. This is, according to him, so because Munni Lal had gone mad seeing his daughter Gyani Devi dead at the upper storey of the house of Hira Lal because there was no sketch/rough draft already prepared for the purpose of writing of the report and also because Munni Lal cannot be expected to have given for the first time extempore dictation to Bhola Nath for writing the alleged report in the state of his madness in particular. The arguments of the learned Counsel for the appellant-accused appears to have substance. 7. It is further alleged in the first information report that Munni Lal (P.W.1), Rameshwar Prasad, Chunni Lal, Durga Prasad, Bhola Nath, Shanker Lal, Radhey Shyam and many others had gone together to the house of Hira Lal, who happened to come out of his house and started running away seeing them all there. Whereupon Munni Lal and all others chased and ran after him. He fell down at a short distance and consequently received certain injuries. Munni Lal and all others caught hold of him there whereupon he (Hira Lal) confessed before them all with folded hands that he at the instance of his father Babu Ram, administered poison to his wife Gyani Devi to her death. Munni Lal (P.W.I) has stated in his examination-in-chief that Hira Lal had made the above confession before him and all others in his Courtyard where he was taken by them after having been caught hold outside his house. In his cross-examination, he has categorically stated that Hira Lal had made the above confession only in his Courtyard and nowhere else. Munni Lal (P.W.I) has stated in his examination-in-chief that Hira Lal had made the above confession before him and all others in his Courtyard where he was taken by them after having been caught hold outside his house. In his cross-examination, he has categorically stated that Hira Lal had made the above confession only in his Courtyard and nowhere else. Bhola Nath (P.W.2) has also stated in his cross-examination that Hira Lal had confessed his guilty in the Courtyard where he was taken by him and others after having been of caught hold by them outside his house. Chunni Lal (P.W.3) has also stated the same thing. There is nothing in the first information report to indicate that he (Hira Lal) had made any such confession, as alleged, in his Courtyard. Similarly there is nothing in the first information report to show that Babu Ram, father of the appellant-accused Hira Lal had made confession to the effect that he had administered poison to Gyani Devi to her death. Bhola Nath (P.W.2) has disclosed in his examination-in-chief that Babu Ram, father of Hira Lal (appellant-accused) had also made confession in his Courtyard to the effect that he had administered poison to Gyani Devi. 8. The first information report shows that Paras Nath had told that Hira Lal was beating Gyani Devi. This report is conspicuously silent where, when and before whom he had told the alleged fact. It was disclosed by Munni Lal, Bhola Nath and Chunni Lal in their respective statements that Paras Nath had told the above fact to Munni Lal before them and others at a temple situate nearby the houses of Munni Lal and others, but their statements in regard to this aspect of the matter stand nowhere especially when Paras Nath (P.W.6) has battered and shattered this alleged aspect of the case saying that he had not gone to any temple, that he had not met there Munni Lal and that he had not told anything to Munni Lal and others. Consequently, he turned hostile. Therefore, the statements of Munni Lal, Bhola Nath and Chunni Lal on the above fact introduced as afterthought are baseless and cannot be relied upon. 9. Consequently, he turned hostile. Therefore, the statements of Munni Lal, Bhola Nath and Chunni Lal on the above fact introduced as afterthought are baseless and cannot be relied upon. 9. It is further alleged in the first information report that Munni Lal, Rameshwar Prasad, Radhey Shyam, Chunni Lal, Durga Prasad, Bhola Nath, Shanker Lal, Purushottam and many others went to the house of Hira Lal who happened to come out of his house and who seeing them all started running away, but they all caught hold of him on his falling down at a little distance, but Munni Lal, Bhola Nath and Chunni Lal (P.Ws. 1, 2 and 3) have very cleverly and cunningly excluded themselves from others named in their respective statements in the alleged process of catching hold of him outside of his house. They have also stated in their respective statements that Paras Nath had also accompanied them to the house of Hira Lal, but first information report is absolutely silent on the alleged presence of Paras Nath at the house of Hira Lal at the time when they are alleged to have been there. It is on the basis of all these inconsistencies and contradictions occurring in the statements of the abovenamed witnesses, the learned Counsel for the appellant-accused has vehemently argued that legally speaking there is no case or evidence against the appellant Hira Lal, that there is no eye-witness, that the abovenamed witnesses are related to one another and that they have cooked and concocted the present case with the sole aim and objective of falsely implicating the appellant-accused therein. 10. Doctor D.D. Tripathi (P.W.5) conducted the postmortem on the dead body of Gyani Devi. His postmortem examination report is Exhibit Ka-3. He has mentioned in this report that the cause of death was poisoning. A perusal of his report would show that his opinion is based on his guess and surmises. This probably the reason why he had preserved viscera, as is clear from his report itself. 11. The most significant aspect of this appeal is that the postmortem examination report Ext. Ka 18 goes to show that no mark of any external injury was seen on the corpse of the deceased Smt. Gyani Devi. P.W.5 Dr. D.D. Tripathi, therefore, preserved the viscera of the deceased. Regarding the cause of death, Dr. D.D. Tripathi gave his report in a peculiar manner. Ka 18 goes to show that no mark of any external injury was seen on the corpse of the deceased Smt. Gyani Devi. P.W.5 Dr. D.D. Tripathi, therefore, preserved the viscera of the deceased. Regarding the cause of death, Dr. D.D. Tripathi gave his report in a peculiar manner. After scripting cause of death he put a sign of interrogation and thereafter wrote ‘poisoning’ below that line he mentioned ‘viscera preserved’. He deposed that on the basis of the condition of the dead body it might be presumed that she died as a result of poisoning. 12. The accused cannot be convicted on the basis of the presumption that the death was caused by poisoning. It requires a positive evidence to reach a conclusion that the death was caused by poisoning. The viscera was sent to chemical examiner, who reported vide his report Ex. Ka 18 that no poison was found in any component of viscera. Learned A.G.A. contended that the viscera report Ext. Ka-18 was not proved. Section 293, Cr.P.C. permits that any document purported to be a report under the hand of the Government Scientific Expert upon any matter or thing duly submitted to him for chemical examination or analysis may be used in any enquiry. Ext. Ka 18 is a report of the chemical examiner and it may be used under Section 293, Cr.P.C. We, therefore, reject the arguments of the learned A.G.A. that the viscera report Ext. Ka 18 cannot be read or used. 13. The opinion of Dr. D.D. Tripathi that Smt. Gyani Devi died as a result of poisoning is based on presumption and surmises. Therefore, his opinion is not acceptable. Besides it, his opinion that the deceased died due to poisoning is contrary to the opinion of chemical examiner, therefore, it deserves to be rejected. 14. Thus in the nut-shell we have nothing before us which may lead us to a positive conclusion that Smt. Gyani Devi died due to poisoning. 15. The investigation into the case does not appear to have been fairly and properly made by the police officers. Nagendra Singh (P.W. 7), Bal Govind Tiwari (P.W.9) who appear to have very formally submitted the charge-sheet against the appellant-accused. 16. 15. The investigation into the case does not appear to have been fairly and properly made by the police officers. Nagendra Singh (P.W. 7), Bal Govind Tiwari (P.W.9) who appear to have very formally submitted the charge-sheet against the appellant-accused. 16. Having visualized, envisioned, paused, pondered, carefully considered and scrutinized all the facts and circumstances of the case, we arrive at the conclusion that the present is a peculiar case without evidence and evidence without. Therefore, the appeal deserves to be allowed and it is accordingly allowed. 17. The judgment and order dated 30.8.1980 passed by the Trial Court referred-to-above are set aside. The appellant-accused Hira Lal is acquitted of the offence under Section 302, IPC for which he was convicted and sentenced. His personal and surety bonds are discharged. He is on bail. He need not to surrender. Appeal Allowed. ———