JUDGMENT : K.C. BHANU, J.:— This appeal is directed against the judgment rendered in S.C. No. 377 of 1999 on the file of the learned III Additional District & Sessions Judge, Nizamabad, dated 5-3-2004, whereunder the learned Sessions Judge found the appellant-accused guilty for the offence under Section 302 I.P.C., and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default to undergo Simple Imprisonment for one month. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: P.W. 1 is the father; P.W. 2 is the mother and P.W. 3 is the sister of the deceased. Accordingly to P.W. 13 on 7-2-1999 at about 9.00 a.m. the accused came to him and informed him that his wife was having illegal intimacy with one Kallam Sailoo and therefore he bore grudge against her and on 6-2-1999, at about 7.30 p.m., when he found his wife going to the outskirts for answering calls of nature he followed her with an intention to kill her and laid her down in the fields in the darkness, put his legs on her hands and by keeping a towel around the neck of his wife, he strangulated her and killed her on the spot. On hearing this, P.W. 13 went to the spot and found the dead body of Gangamani in the field by the side of cart track leading from Dharmora to Andhra Nagar. Thereafter, he gave a complaint under Ex. P-16 on the same day at about 12.00 noon. Basing on the said complaint, P.W. 8 registered a case under Section 302 of I.P.C. and visited the spot, drew a rough sketch of the scene of offence and got photographed the scene of offence. He also secured the presence of panch witnesses and in their presence, he examined and recorded the statements of the witnesses and held inquest over the dead body of the deceased. Thereafter, he sent the dead body to P.W. 10 for conducting autopsy over the body of the deceased. After completion of the investigation, the investigating officer filed the charge sheet. 3. Thereafter, he sent the dead body to P.W. 10 for conducting autopsy over the body of the deceased. After completion of the investigation, the investigating officer filed the charge sheet. 3. The charge levelled against the sole accused is that on 06-02-1999, at about 7.30 p.m., in the outskirts of Dharmora Village, the accused who is no other than the husband of the deceased Gangamani, intentionally and knowingly tied a towel around her neck and strangulated her to death and thereby committed an offence punishable under Section 302 of I.P.C. When the charge was read over and explained to him, the accused pleaded not guilty and claimed to be tried. 4. In order to substantiate the case of the prosecution, the prosecution examined P.Ws. 1 to 13 and got marked Exs.P-1 to P-16, besides case properties M.Os. 1 to 6. Accepting the circumstantial evidence adduced by the prosecution, the trial Court found the accused guilty of committing the murder of the deceased and accordingly it convicted and sentenced the accused under Section 302 I.P.C. Challenging the conviction and sentence, the appellant-accused preferred the present appeal. 5. Learned counsel appearing for the appellant contended that the circumstantial evidence is not conclusive in nature and it has not established the offence against the appellant; that the medical evidence contradicts the prosecution case that the extra judicial confession which is said to have been made by the accused before P.W. 13 is a very weak piece of evidence and therefore there is no need for the accused to give information about the commission of offence and that there are no witnesses to speak about the presence of the accused with the deceased either before the commission of offence or after the commission of offence and that a false case is foisted against the accused and hence he prays to allow the appeal. 6. 6. On the other hand, learned Additional Public Prosecutor contended that the circumstantial evidence conclusively established the guilt of the accused; that though P.W. 13 is a stranger, there is no reason for him to speak falsehood about giving of extra judicial confession to him by the accused; that the medical evidence would go to show that the death of the deceased was due to strangulation and after an elaborate consideration of the evidence on record, the trial Court rightly found the accused guilty of the charge levelled against him and these are no grounds to interfere with the same. 7. P.W. 8 is one of the inquest mediators who are present when the police conducted inquest on the corpse on 7-2-1999 from 2.00 to 4.00 p.m. The inquest mediators noticed a black mark on the throat of the deceased and they opined that the deceased might have died due to strangulation. It is suggested to him that no inquest panchanama was conducted in his presence, but the same was denied. 8. P.W. 10 is the doctor who conducted autopsy on the dead body of the deceased on 8-2-1999 from 11.45 a.m. onwards. She found ligature mark of 2 cms., transverse around the neck. The tissues of the neck were congested, hyoid bone was intact and all the internal organs were congested and swollen. She opined that the cause of the death of the deceased was asphyxia due to strangulation. Ex. P-8 is the postmortem certificate. Practically, the evidence of P.W. 10 and the contents in Ex. P-10 remain unchallenged. So, from the medical evidence, it is clear that the deceased was strangulated to death. 9. Now, what is to be seen is whether the accused is the assailant of the deceased or not? 10. There is no direct evidence to show that the accused committed the murder of the deceased. The case rests upon circumstantial evidence only. When a case rests upon circumstantial evidence the following aspects have to be proved in view of the decision of the Supreme Court in Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 : AIR 1990 SC 79 . The case rests upon circumstantial evidence only. When a case rests upon circumstantial evidence the following aspects have to be proved in view of the decision of the Supreme Court in Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 : AIR 1990 SC 79 . ….“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 11. P.W. 1 is the father of the deceased. He is a resident of Dharmora Village. His evidence would go to show on coming to know about the body of the deceased lying by the side of the cart track near the village, he went there and found a black mark on the neck of the deceased. 12. P.W. 2 is the mother of the deceased. She has stated that as the accused was beating the deceased, she was taken to their house. She stated that a relative of the accused came and informed her that the accused had killed the deceased. Therefore, she went there. She did not state that the nephew of the deceased took the deceased saying that the accused was sitting in the kirana shop. Therefore, the evidence of P.W. 2 also does not incriminate anything against the accused, except the fact that there were ill-feelings between the accused and the deceased and as the accused was beating the deceased, the deceased was taken to her parents' house. 13. P.W. 3 is the sister of the deceased. She has stated that when she was sitting with her parents in the Dharmora Village, she was informed by the deceased that the accused was blaming her that she was having illicit contracts with one Kallam Sailoo. 13. P.W. 3 is the sister of the deceased. She has stated that when she was sitting with her parents in the Dharmora Village, she was informed by the deceased that the accused was blaming her that she was having illicit contracts with one Kallam Sailoo. Her evidence would only go to show that in the evening time, while she was preparing food, one Sailoo, who is the nephew of the deceased came and took the deceased along with him. According to her, there is a kirana shop by the side of her house, that the said Sailoo took the deceased to the said shop where the accused was sitting. The deceased after talking with the accused, returned back to the house. Her evidence also does not incriminate anything against the accused whether that is the last occasion where the deceased was seen in the company of the accused. However, on the next day morning when she went to answer the calls of nature, she found the body of the deceased Gangamani lying in the field of one Kummari Beemanna and she found a black mark on the neck of the deceased. Even the evidence of P.W. 3 is accepted as true and correct, at best, it would go to show that the accused and the deceased talked together at the kirana shop in the village and after talking with the accused, the deceased came back to the house. Therefore, her evidence is not much helpful to the case of the prosecution. 14. Coming to the evidence of P.W. 4, she stated that while she was returning after answering calls of nature at about 7.30 p.m., she noticed the deceased proceeding towards the outskirts of the village. Sometime, thereafter, she was the accused going towards same direction. On the very next day, she came to know that the dead body of the deceased was found lying on the cart track. She also noticed a black mark on the throat of the deceased. Even her evidence is accepted as true, it at best would go to show that the deceased was proceeding for answering calls of nature and some time, thereafter, the accused also proceeded in the same direction. She also noticed a black mark on the throat of the deceased. Even her evidence is accepted as true, it at best would go to show that the deceased was proceeding for answering calls of nature and some time, thereafter, the accused also proceeded in the same direction. Since in the villages people will go to outskirts for answering calls of nature, there is nothing unusual for the accused or the deceased or for any one to go towards that side for the purpose of answering calls of nature. Even this witness did not state that they were both going together. Five minutes after the deceased left towards outskirts of the village, the accused also proceeded towards that direction. Therefore, her evidence at best, would go to show that sometime after the decease proceeded towards the outskirts of the village, the accused followed her. 15. P.W. 5 is a milk vendor. Accordingly to him, while he was going at about 4.00 a.m. to Andhra Sagar for supplying milk, the accused was coming in the opposite direction in a hurried manner. When he questioned him, he stated that he murdered his wife as she was having illicit intimacy with Kallam Sailoo. In the cross-examination, he admitted that he is an agricultural coolie and he reached his house within half an hour thereafter. He did not inform anybody about the confession made by the accused to him, if really, the accused made a confession of committing murder of his wife to this witness, he should have immediately reported the matter to the relative who are residing in the same village. He did not do so. His conduct in not informing about the incident would go to show that he is not a witness of truth. Therefore, no reliance can be placed upon the evidence of P.W. 5. 16. P.W. 6 speaks about the motive. According to him, when he was taking tea in the hotel, he saw Kallam, Sailloo abusing somebody. Meanwhile, the accused came there and then said Kallam Sailoo abused him. The accused after taking tea in the hotel went away. However, three days thereafter, the dead body of the deceased was found near the fields. His evidence also does not incriminate anything against the accused. Meanwhile, the accused came there and then said Kallam Sailoo abused him. The accused after taking tea in the hotel went away. However, three days thereafter, the dead body of the deceased was found near the fields. His evidence also does not incriminate anything against the accused. He has not stated that Sailoo abused the accused on the ground that the accused is suspecting Sailoo on the ground that he had extramarital relationship with the deceased. So, the incident which is said to have taken place prior to the alleged offence, cannot be linked with the cause of the death of the deceased. 17. P.W. 7 went to the house of the accused for labour. At that time, the elder bother and sister-in-law of the accused were enquiring about the murder of the deceased. He also questioned the accused. Then the accused confessed that he only murdered the deceased Gangamani. This witness was not examined by the police immediately after the incident nor he gave any statement to the police about the accused making extra judicial confession to him. Four or five days after the death of the deceased, he was examined by the police. Though he was present in the village on the date of death of the deceased, he did not inform about the extra-judicial confession which has been made to him by the accused to anybody till he was examined by the police. So, no reliance can be placed upon his evidence. 18. P.W. 9 is examined to speak about the accused giving confession in Ex. P-6 and recovery in pursuance of his confessional statement under Ex. P-7 under which M.O. 1, towel was seized. The seizure of M.O. 1, towel, by itself is not incriminating against the accused. But, if it is established that the said towel is used in the commission of offence for strangulating, certainly it is an incriminating fact. None of the witnesses say that M.O. 1, towel belonged to the accused and that it was found on the neck of the deceased when they first noticed that dead body. It does not contain any blood marks. Therefore, in the absence of any evidence or circumstances to infer that M.O. 1 was used in the commission of offence, recovery of M.O. 1 at the instance of the accused is of no consequence. It does not contain any blood marks. Therefore, in the absence of any evidence or circumstances to infer that M.O. 1 was used in the commission of offence, recovery of M.O. 1 at the instance of the accused is of no consequence. P.W. 11 is the Judicial First Class Magistrate who recorded the statements of P. Ws. 3, 4, 5 and 7 under Exs.P-1 to P-4 under Section 164 of Cr. P.C. The law is well settled that a statement recorded by the Magistrate under Section 164 Cr.P.C. is not substantive evidence. It can be used to corroborate the evidence or to contradict the statements of the witnesses. 19. P.W. 12 is the Sub-Inspector of Police whose evidence is formal in nature because he examined the witnesses, conducted inquest, seized clothes of the deceased after inquest. He had taken the photographs of the deceased. He also spoke about the arrest of the accused. As already pointed out M.O. 1 has not been used in the commission of offence. 20. P.W. 13 is the Village Administrative Officer. According to him, on 7-2-1999, at about 9.00 a.m. while he was present in the house, the accused came to him and informed him that his wife is having illicit intimacy with one Sailoo and therefore he bore grudge against him and took her to the outskirts of the village and strangulated her to death by tying a towel around her neck. Thereafter, he went to the fields along with the accused. At that time, the relative of the deceased was already present. He, thereafter, lodged Ex. P-16 complaint with the police. This witness is examined to prove that the confessional statement has been made to him by the accused. But, this witness did not obtain the signature of the complaint in Ex. P-16 complaint, Accordingly to him when they were at the dead body, the accused absconded from there. If really the accused has given confessional statement as in Ex. P-16, certainly, there is no need for him to run away from the spot. It is not the evidence of P.W. 13 that he had close intimacy with him. It is not his case that the accused came to him seeking help. In these circumstances, the extra judicial confession is required to be corroborated by other evidence. P-16, certainly, there is no need for him to run away from the spot. It is not the evidence of P.W. 13 that he had close intimacy with him. It is not his case that the accused came to him seeking help. In these circumstances, the extra judicial confession is required to be corroborated by other evidence. There is no such corroboration available in this case to show that the accused was in the company of the deceased immediately prior to the incident or after the incident. There is absolutely no evidence to show that both the accused and the deceased were seen by any of the witnesses at the scene of occurrence. The circumstantial evidence adduced by the prosecution at best may create a suspicion against the accused that he might have committed the murder of the deceased. But, suspicion, however, strong cannot take the place of legal proof. Since the prosecution has failed to establish the guilt of the accused beyond reasonable doubt, we are constrained to infer that the impugned judgment of the trial Court is based upon surmises and conjunctures. Since the judgment of the trial Court is based upon surmises and conjunctures and since there is no legal evidence to justify the conviction of the appellant, the conviction and sentence passed by the trial Court against the appellant-accused for the offence under Section 302 of I.P.C. is set aside. The appellate-accused is acquitted of the charge levelled against him, he shall be released forthwith if not required in any other case. 21. The appeal is accordingly allowed.