JUDGMENT 1. - Challenge in this appeal is to the judgment dated 25.9.2002 passed by learned Additional District and Sessions Judge, (Fast Track) Kama, in Sessions Case No. 18/02, whereby Dunda @ Sirajuddin appellant herein, was convicted and sentenced as under : U/s. 302 IPC : To suffer imprisonment for life and fine of Rs. 1,000/- in default to further suffer simple imprisonment for a period of six months. U/s. 201 IPC : To suffer two years rigorous imprisonment and a fine of Rs. 500/-, in default to undergo simple imprisonment for a period of two months. Both the sentences were ordered to run concurrently. 2. Briefly stated, the prosecution case is that a typed report addressed to Circle Officer, Kama (Bharatpur), was received by post at Police Station Pahadi, on 22.6.2001. The said report was made by Sahbuddin resident of Gaddi, Police Station Shergarh, District Mathura (U.P.), wherein it was reported that his brother Nasru was married with Mst. Sarium and for last ten years he used to reside in village Somka, Police Station, Pahadi, District Bharatpur, and was engaged with cattle trading. Nasru was missing from the village since 4.5.2000. So he along with his maternal cousin Raju went to meet Nasru at village Somka, his wife Mst. Sarium told them that Nasru was away for last 8-10 days and had left along with two persons on motor cycle but on search Nasru was not traceable. Aaain after two days, when she was approached by the informant and his brother Umar, they were told that Nasru had come on the preceding night and he stayed only for 20 minutes and left again with Rs. 4000/- without informing as to where he was going. Nasru was searched at the places of all relatives but he was not traceable. Mst. Sarium had illicit relations with Dunda resident of Somka, therefore, it was apprehended that Nasru could have been killed by them. It was also averred that an earlier report made to S.H.O. Pahadi was not acted upon. On the basis of the above report a case was registered u/Ss. 302, 201 IPC at Police Station, Pahadi and the investigation commenced. In the course of investigation, the dead body of Nasru was recovered from the well on the information of accused Dunda also Sirajuddin and Post Mortem of the dead body was got conducted. On the basis of the above report a case was registered u/Ss. 302, 201 IPC at Police Station, Pahadi and the investigation commenced. In the course of investigation, the dead body of Nasru was recovered from the well on the information of accused Dunda also Sirajuddin and Post Mortem of the dead body was got conducted. Necessary memos were drawn, statements of witnesses were recorded and challan was filed against the appellant as well as Mst. Sarium. In due course the case came up for trial before the Additional Sessions Judge, Deeg (Bharatpur). Mst. Sarium was discharged by the trial court, the appellant on being charge sheeted, pleaded not guilty and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. The statement of accused U/s. 313 Cr.P.C., recorded and in the explanation, the appellant stated that he was falsely implicated due to groupism against him. 3. We have heard learned counsel for the appellant, learned Public Prosecutor and scanned the material produced before us. Learned counsel for the appellant has challenged the conviction on the ground that the alleged recovery of the dead body at the instance of appellant has not been proved beyond reasonable doubt and the appellant has been convicted on the basis of suspicion alone. Per contra, learned Public Prosecutor controverted the above argument and supported the conviction recorded by the learned trial court. 4. As per Post Mortem Report (Ex.P 13) in the opinion of doctors, definite cause of death was not known because whole body was decomposed and probable causes of death could be (1) shock due to cut throat because head was absent from the trunk and (2) any type of Asphyxia except drowning. 5. On reappraisal of the evidence produced by the prosecution it is revealed that the prosecution case is based on circumstantial evidence. The prosecution has mainly relied upon the circumstances of discovery of the dead body of Nasru at the instance of the appellant. The prosecution has proceeded on the premise that Nasru resided in the village Somka with his family while his parental family was located at village Gaddi, district Mathura (U.P.). The informant Sahabuddin (P.W. 16), is real brother of the deceased Nasru and on his report the F.I.R. (Ex.P16) was recorded on 22.6.2001. The prosecution has proceeded on the premise that Nasru resided in the village Somka with his family while his parental family was located at village Gaddi, district Mathura (U.P.). The informant Sahabuddin (P.W. 16), is real brother of the deceased Nasru and on his report the F.I.R. (Ex.P16) was recorded on 22.6.2001. As per the statement of (P.W. 18) Sri Ram Yadav, S.H.O. Police Station Pahadi, this report was received by post and was addressed to the Circle Officer, Police Kama (Bharatpur). The report was typed one and it appears that the same was marked to the S.H.O. on 20.6.01. However, the informant (PW. 16) Shabuddin in his cross-examination deposed that he gave this report to the S.H.O. two days before and not to the Circle Officer. From the investigation it appears that after registering the case on the basis of the aforesaid report, (P.W. 18) Sri Ram Yadav, S.H.O. P.S. Pahadi. reached to the place of occurrence and prepared Site Inspection Map (Ex.R 9). He also arrested the accused appellant as well as the wife of the deceased Mst. Sarium and on the basis of the information (Ex.P. 21), the dead body of Nasru was recovered from the well belonged to Immam at village Somka at the instance 5 of the accused appellant Dunda alias Sirajuddin. As the dead body was found without skull, the information memo of the accused was again drawn on 24.6.01 and skull of the dead body of Nasru was recovered at the instance of appellant. On the same day the S.H.O., also obtained an information from the appellant that he could lead to the recovery of the cycle which was used for carrying the body in the gunny bag to the well. In accordance with the said information, cycle was recovered from the house of the appellant. The fact of recovery of the dead body has been mainly assailed on the ground that the S.H.O. neither mentioned the time of giving information by the accused nor the time when recovery memo of the dead body (Ex.P.9) was prepared and he also did not mention the time of preparation of other memos drawn on 22.6.01, pertaining the investigation undertaken by him. This fact stands admitted by the S.H.O. (P.W. 18) Sri Ram Yadav, who was confronted with the suggestion that he failed to mention the time because all these memos were drawn by him at the Police Station and not at the places where these memos were shown to be drawn. It was further argued that the S.H.O. already had the information of the place from where the dead body was to be recovered and as such the recovery of the dead body no more remains to be an incriminating circumstance against the present accused. In fact (P.W. 18) Shri Ram Yadav, S.H.O. admitted that he was already informed by co-accused Sarium that Nasru was killed and his dead body was thrown in the well. The Site Inspection Memo (Ex.P.17), prepared at the instance of co-accused Mst. Sarium, presumably at the very out set of the investigation on 22.6.01 though no time was mentioned, shows the place in the house of Nasru, where he was killed. Therefore, it is clear that (P.W. 18) Sri Ram Yadav, S.H.O. already had the information that after killing Nasru, his dead body was thrown in the well from where the same was recovered. (P.W. 16), Sahabuddin, who is informant in the case has himself admitted in his cross-examination that at the time of recovery of the dead body the accused Dunda and Mst. Sarium were not brought at the place of recovery as they were detained at the police station. Likewise, (PW. 14) Islam and (P.W. 16) Kishan Lal, the witnesses pertaining to the recovery memo of dead body of Nasru have not supported the prosecution version that the said recovery of the dead body was made in their presence at the instance of accused Dunda. 6. The prosecution has also tried to connect the accused Dunda with the crime on the basis of the information and recovery of the skull of the dead body vide (Ex.P. 2) on 24.6.01 at the instance of the accused but this recovery is not of much help to the prosecution as the S.H.O. (P.W. 18) Sri Ram Yadav, himself admitted that at the time of recovery of the dead body of Nasru on 22.6.01 from the well, accused Dunda had already told him that the as skull of the dead body was also tied in the gunny bag. (P.W. 18) Sri Ram Yadav also admitted that on account of gunny bag being in torn condition the skull of the dead body might have slipped out of the bag. Likewise, the recovery of the cycle at the instance of appellant from his house vide (Ex.P.28) allegedly used for carrying the dead body to the well is also not of any help in the absence of the same being an incriminating article connected with the crime. 7. In Thimma v. State of Mysore, AIR 1971 SC 1871 , it has been held by the Hon'ble Apex court that once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by s the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. 8. The prosecution has mainly proceeded on the premise that the accused Dunda had illicit relations with Mst. Sarium, wife of deceased Nasru and after the death of Nasru, it was apprehended by the informant (P.W. 16) Sahabuddin that his brother could be liquidated by the accused and Mst. Sarium as he was missing for a period of more than a month from the date the case came to be registered with the police. As noticed earlier the informant was not resident of village Somka where the deceased Nasru lived 15 with his wife and two small children and his apprehension was based on what he heard from others in the village. The witnesses examined by the prosecution namely, (P.W. 4) Harbhajan, (P.W. 8) Bhagmal, (P.W. 12) Hasan Mohammad and (P.W. 14) Islam have not supported the prosecution version that the accused Dunda and Mst. Sarium had illicit relations, though they have been declared hostile. 9. It is well settled that mere suspicion, howsoever strong it may be, cannot take the place of legal proof. Their lordships of the Supreme Court indicated in Ashish Batham v. State of M.P., 2002(2) WLC (SC) Cri. Sarium had illicit relations, though they have been declared hostile. 9. It is well settled that mere suspicion, howsoever strong it may be, cannot take the place of legal proof. Their lordships of the Supreme Court indicated in Ashish Batham v. State of M.P., 2002(2) WLC (SC) Cri. 616 : (2002) 7 SCC 317 , as under : "Realities or truth apart, the fundamental and basic presumption in the administration of Criminal Law and Justice Delivery System is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, howsoever,strong probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Court dealing with criminal cases at least should consistently remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusion" to be arrived at on the touchstone of a dispassionate in judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record." 10. Having closely scrutinised the entire material on record, we do not find any evidence worth credence that could conclusively establish the guilt of appellant. On the basis of probability and suspicion, liability to commit crime can not be fastened on the appellant. Learned trial court appears to have convicted the appellant on surmises and conjectures, therefore, the impugned judgment deserves to be quashed. 11. As a result of above discussion, we allow the appeal and set aside the impugned judgment dated September 25, 2002 of the learned Additional Sessions Judge (Fast Track), Kaman. We acquit the appellant of the charges under Sections 302 and 201 IPC. The appellant Dunda @ Sirajuddin, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other caseAppeal Allowed. *******