A. K. SHRIVASTAVA, J. ( 1 ) FEELING aggrieved by the judgment of conviction and order of sentence dated 24. 11. 1994 passed by learned Sessions Judge, Gwalior in Sessions Trial No. 170/86 convicting appellant under Section 302, IPC and sentencing him to suffer life imprisonment, the appellant has knocked the door of this Court by preferring this appeal under section 374 (2) of Cr. P. C. ( 2 ) IN brief the case of prosecution is that mithlesh (hereinafter referred to as 'the deceased") is the wife of appellant Suresh Chandra. It is said that appellant was having illicit relations with one Durgesh nandani as a result of which deceased was an eyesore to the accused persons. In order to kill the deceased, in the night of 29. 5. 1986 at 9 poison was administered to her as a result of which her physical condition became deteriorated and ultimately she became unconscious as a result of which she was transmitted to Nursing Home of Dr. Bhagwanswaroop Gaurh where the doctor found her condition to be serious as such she was referred to the J. A. Group of hospital, Gwalior where the deceased was treated by Dr. Ripudaman, but she could not survive and ultimately, she died on 30. 5. 1986 at 11. 45 in the morning. ( 3 ) ON account of the death of the deceased, an information was sent to the concerning police station where merge intimation was registered. The investigating agency arrived in the hospital; prepared the panchayatnama of the dead body but did not find any injury on her person. The dead body was sent for post-mortem and the viscera of the deceased was sent to the chemical examiner. ( 4 ) IN furtherance to its investigation the investigating agency arrived at the house of the appellant and seized different food stuff like Paratha, Besan Ka Laddu, Barfi, bundi, Rasgulla and the curd. It is said that curd was kept in a bowl in the kitchen. The police also seized black powder kept in two packets. All these articles were sent to the chemical examiner and according to the report of the chemical examiner presence of Aluminum Phosphide (Celphos) was found in the curd. It is said that curd was kept in a bowl in the kitchen. The police also seized black powder kept in two packets. All these articles were sent to the chemical examiner and according to the report of the chemical examiner presence of Aluminum Phosphide (Celphos) was found in the curd. ( 5 ) AFTER completion of the investigation, a charge sheet was submitted in the competent Court which on its turn committed the case to the Court of Session where accused persons were tried. ( 6 ) THE learned trial Judge on the basis of the averments made against them in the charge-sheet framed charges punishable under Section 302, IPC. Needless to emphasize both the accused persons abjured their guilt and pleaded complete innocence. ( 7 ) IN order to bring home the charges, the prosecution examined as many as 10 witnesses and placed Ex. P1 to P8 the documents on record. Though the defence of accused persons is of maladroit implication, however, they did not choose to examine any witness in support of their defence. ( 8 ) THE learned trial Judge on the basis of the evidence placed on record came to hold that co-accused Durgesh Nandani did not commit any offence as a result of which she was acquitted, however, according to the trial Court there is evidence against present appellant as such he has been convicted under Section 302, IPC and has been sentenced to suffer life imprisonment. In this manner the present appeal has been filed. ( 9 ) IT has been argued by Shri Brijesh sharma, learned counsel for appellant that the learned trial Judge has disbelieved pw8, Narendra Kumar Jain, who is the real brother of the deceased and who has stated that some substance was passed over by co-accused to appellant and the same was mixed in mango shake which was ultimately given to the deceased to drink, by the appellant. The contention of learned counsel is that Narendra Kumar Jain has not been found to be reliable by the learned trial judge as it is clear on bare perusal of para 21 of the impugned judgment. Thus, there is no direct evidence against the appellant and the case rests upon circumstantial evidence. It has also been contended by learned counsel that there is no material on record to hold that in fact appellant administered the poison to the deceased. Thus, there is no direct evidence against the appellant and the case rests upon circumstantial evidence. It has also been contended by learned counsel that there is no material on record to hold that in fact appellant administered the poison to the deceased. It has been further contended that in the dying declaration Ex. D4 it has come that deceased ate paratha and Sabji, but, nowhere the deceased has stated that either curd was administered to her or any lassi she drank. Thus, it is difficult to hold that appellant is connected with the said offence. ( 10 ) ON the other hand, Shri Bhadouria, learned Public Prosecutor argued in support of the impugned judgment. ( 11 ) HAVING heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. ( 12 ) WE may mention that it was the duty of the prosecution to submit all relevant documents throwing light on the case and no documents should have been concealed. The prosecution was duty-bound to file the dying declaration of the deceased which is a relevant piece of evidence along with the charge-sheet. However, the defence was vigilant and on the request of the defence, the dying declaration was summoned and the same has been exhibited as Ex. D4. The authenticity of dying declaration Ex. D4 has not at all been challenged by the prosecution. On bare perusal of the dying declaration, nowhere it is gathered that the deceased has ever stated that appellant administered any type of lassi or mango shake or even the curd to the deceased or even asked her to drink the lassi or to eat the curd. No where it is gathered that she ate the curd. On going through her dying declaration it is perceptible that the deceased only ate Parathe and Sabji. Thus, when deceased herself is saying that she did not eat the curd or drank mango shake or any kind of lassi either of curd or mango, it is difficult to hold that appellant ever administered poison to her by mixing it in curd or mango shake. On going through the seizure memo Ex. P7, it is gathered that the prosecution agency on 30. 5. 1986at 11. On going through the seizure memo Ex. P7, it is gathered that the prosecution agency on 30. 5. 1986at 11. 00 a. m. i. e. next day of the incident seized 3-1/2 parathas, some Pudis made by Besan, some pieces of sweet meat, curd which was kept in a bowl in the kitchen, two small packets (pudiya) containing some brown powder and a novel "bahu Ko Nyay Do" and another novel "zero Land". The seized food stuff was not sent immediately, but was sent to chemical examiner after 14 days on 13. 6. 86 as it is clear on bare perusal of the report (Ex. P3) and these articles were received in the office of Chemical Examiner on 19. 9. 1986 i. e. after four months from the date of seizure. In the report chemical Examiner opined that curd was containing Aluminum phosphide (Celphos ). Again it raises a heavy doubt in regard to the implication of the present appellant for another reason that why the impugned food stuff including the curd was lying in the police station up to 13. 6. 1986 and why it was received by the chemical examiner on 19. 9. 1986 and where these articles are lying for several months during the period 30. 5. 1986 to 19. 9. 1986 there is nothing on record. It is a matter of common parlance that curd is a perishable item and if the curd which was seized on 30. 5. 1986 was received in the chemical laboratory on 19. 9. 1986 one could think what should be the condition of that curd. There is nothing on record that any preservative was added in the curd after its seizure. ( 13 ) APART from this on bare perusal of the dying declaration, nowhere it is gathered that any curd was ever administered to the deceased. If for the sake of argument the evidence of PW8, Narendra Kumar Jain is taken into consideration, (though it has been disbelieved by the learned trial Court that appellant gave mango shake to the deceased) any mango shake nor the glass containing residue of the mango shake was seized by the prosecution agency. The Supreme Court in the case of Ramgopal v. State of Maharashtra has held three tests for ascertaining the case of death by poisoning, they are: (i) Did the deceased die of the poison in question? The Supreme Court in the case of Ramgopal v. State of Maharashtra has held three tests for ascertaining the case of death by poisoning, they are: (i) Did the deceased die of the poison in question? (ii) Had the accused the poison in question in his possession? (iii) Had the accused an opportunity to administer the poison in question to the deceased ? ( 14 ) IN the present case there is no connecting evidence in order to hold that the poison in question was in possession of appellant and he had an opportunity to administer the same in question to the deceased. Apart from this, it has come in the evidence of Narendra Kumar Jain that the house in which incident has taken place is a joint family house and several other family members of appellant are also residing and therefore even if the presence of poison was found in two packets, the question is who kept and who brought those packets, there is nothing on record. One fact which cannot be marginalized and blinked away is that the prosecution agency did not care to collect the relevant evidence that who purchased the Aluminum Phosphide (Celphos ). In this view of the matter, it is difficult to hold that appellant has administered the poison or he was having any knowledge that he is administering the poison to the deceased. ( 15 ) THE decision of Supreme Court. Ramgopal (supra) has been further placed reliance by the Division Bench of this Court in the case of Ram Bai v. State of Madhya Pradesh. ( 16 ) SINCE there is no direct evidence available in the present case in order to show that the appellant administered the poison to the deceased, therefore we are constrained to see the circumstantial evidence. The law in regard to circumstantial evidence is well settled. ( 16 ) SINCE there is no direct evidence available in the present case in order to show that the appellant administered the poison to the deceased, therefore we are constrained to see the circumstantial evidence. The law in regard to circumstantial evidence is well settled. Supreme Court in the case of K. V. Chacko @ Kunju v. State of Kerala in para 5 has held as under: (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 the 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. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " ( 17 ) THE Supreme Court in the case of ashish Batham v. State of Madhya Pradesh in para 6 has categorically held that in order to appreciate the evidence, when the case is based on circumstantial evidence, the suggestion with regard to conjectures and surmises should not be added in order to hold the accused persons to be guilty of the offence. On the basis of the principles elucidated by the Apex Court in the above said decision, we shall now examine the evidence of the prosecution witnesses. It would be appropriate to quote para 6 of the said decision which reads as under: "6. The principles, which should guide and weigh with the courts administering criminal justice in dealing with a case based on circumstantial evidence, have been succinctly laid down as early as in 1952 and candidly reiterated time and again, but yet it has become necessary to advert to the same, once again in this case having regard to the turn of events and the manner of consideration undertaken, in this case by the courts below. In Hanumant govind Nargundkar v. State of m. P. It has been held as follows: (AIR pp. 345-46, para 10 ). In Hanumant govind Nargundkar v. State of m. P. It has been held as follows: (AIR pp. 345-46, para 10 ). "in dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron alderson to the jury in R. V. Hodge where he said: "the mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. ' it is well to remember that in cases where the evidence is of a 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 the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " These principles were needed to be restated even as late as in the decision reported in Sudama Pandey v. State of Bihar and subhash Chand v. State of Rajasthan. " ( 18 ) SINCE the prosecution has not been able to prove and to collect all relevant links in order to form a complete chain pointing out the guilt towards the appellant, therefore, we are unable to uphold the conviction accorded by the trial court. ( 19 ) FOR the reasons stated herein above, this appeal succeeds and is hereby allowed. ( 19 ) FOR the reasons stated herein above, this appeal succeeds and is hereby allowed. The conviction of appellant under Section 302, IPC is hereby set aside and he is acquitted from all the charges. He is on bail, his bail bonds are discharged. Appeal allowed. .