JUDGMENT S.S. Dwivedi, J. 1. The appellant has preferred this Criminal Appeal under Section 374(2) of Cr.P.C. feeling aggrieved by the impugned judgment of conviction and sentence dated 18-8-2009 passed by Second Additional Sessions Judge, Gwalior District Gwalior in Session Trial No. 195/1992, whereby held the appellant / accused guilty for the offence punishable under Section 302 of IPC and sentenced him to imprisonment for life with a fine of Rs. 10,000/-, in default of payment of fine further ordered to suffer imprisonment for 6 months. 2. It is admitted fact that in the intervening night of 18th and 19th of January, 1989, appellant / accused was posted as Sub-Inspector at Police Station Purani Chhawni, Gwalior, where in the morning on 19-1-1989, one lady Ramkali Bai W/o. Shiv Singh was found dead in the suspicious circumstances. 3. Briefly stated facts of the case are that appellant/ accused was posted as Sub-Inspector at the Police Station Purani Chhawni, Gwalior, where a case at crime No. 2/89 was registered under Section 302/34 of IPC and in this case, the deceased Ramkali W/o. Shiv Singh, a lady aged about 30 years, her husband Shiv Singh and one Sughar Singh were arrested by the police on 18-1-1989 and all were taken in the police custody. After some interrogation, the deceased Ramkali Bai was kept in the room of the Station House Officer of the Police station concerned. In the night she was kept in the room and door was locked from outside and one lady Head constable Lata Sharma was deputed on duty to lookafter the deceased, Ramkali Bai. In the morning at about 6 AM, Constable Kaptan Singh came on duty at the police station and when he checked the lock-up of the Police station and also the room where deceased Ramkali was kept in the custody then he found that lady Ramkali was found dead and also found her in hanging condition. He immediately informed the present appellant Anil who was also present in the police station in other room. Thereafter, the superior officers were also informed with regard to the incident. The concerning Police Superintendent and other officers reached on the spot. Thereafter, when the lock was opened then it was found that door of the room concerned was locked from inside. Thereafter, the superior officers were also informed with regard to the incident. The concerning Police Superintendent and other officers reached on the spot. Thereafter, when the lock was opened then it was found that door of the room concerned was locked from inside. Thereafter, by using force internal bolt could be opened and thereafter, the concerning police officers entered in the room and found the deceased Ramkali in hanging condition. Thereafter, special team of Forensic Laboratory was called. Necessary photographs were taken and the merg inquest report was registered and inquest panchayatnama of dead body of Ramkali was also prepared. Thereafter, dead body of Ramkali Bai was sent for postmortem examination. 4. Dr. V.S. Tomar and Dr. V.K. Diwan, a panel of two doctors have performed the postmortem and opined that lady Ramkali Bai had died due to asphyxia which is the result of constriction of neck as a result of hanging. No other injuries were found on the body of the deceased except ligature mark on the neck. As the lady was found dead in the police custody, therefore, a case under Section 302 of IPC has been registered by one Jaiveer Singh who was also posted as Sub-Inspector in the Police station and investigation was started. Statements of various witnesses were recorded. Postmortem report and photographs were also sent to the forensic department of Gandhi Medical College, Bhopal where forensic expert Dr. D.S. Badkul (PW-17), on perusal of the entire papers; postmortem report and photographs, opined that death of Ramkali may be homicidal also. During investigation, on the basis of evidence, police had arrested the present appellant/ accused Anil who was posted as Sub-Inspector in the police station and also doing the investigation of the concerning crime registered against the deceased and her husband, and also two other accused Ashok Singh Yadav, ASI and Harcharan Singh, Head Constable, who were also present on the date of incident in the police station and after due investigation, charge sheet had been filed. 5. Before the trial court, all the three accused persons abjured the guilt and their defence was of false implication. 5. Before the trial court, all the three accused persons abjured the guilt and their defence was of false implication. The defence of the present appellant is to the effect that one Pawan Kumar Jain, probationer IPS was In-charge of the police station who was also conducting investigation of the concerning case and if any incident took place with regard to misbehaviour with the lady concerned then he is the only person who can be made liable for this custodial death. Accused had also examined one R.B.S. Bhadoria, the then Dy. Superintendent of Police and In-charge of the area concerned, as D.W.1 to prove the fact that on the date of incident the aforesaid Pawan Kumar Jain, the probationer IPS was the In-charge of the police station concerned. Learned Trial Court after due appreciation of the entire prosecution evidence on record by the impugned judgment dated 18-8-2009 acquitted two co-accused Ashok and Harcharan from all the offences and also acquitted the present appellant for the offence under Sections 330 and 348 of IPC and alternative charge of Section 306 of IPC but held the appellant/ accused guilty for the offence under Section 302 of IPC and sentenced him as stated hereinabove, feeling aggrieved by which the appellant/ accused has preferred this appeal. 6. Heard learned Counsel for both the parties and perused the record and impugned judgment. 7. It is submitted by Shri S.K. Shrivastava, learned Counsel for the appellant that learned trial court has miserably failed to appreciate the evidence on record. Admittedly, no direct evidence is available against the appellant that he is the person who committed murder of said Ramkali Bai. It is also not proved that he is the In-charge of the police station concerned in whose custody the deceased Ramkali died in suspicious circumstances. It is further submitted that as per the statement of Autopsy Surgeon Dr. V.S. Tomar (PW-16), he categorically admitted that death of deceased Ramkali appears to be suicidal death looking to the circumstance that no mark of injuries were found on the body of the deceased, on which basis, this can be presumed that she was caused any injury during interrogation by any of the officers of the police station concerned. Only ligature mark has been found on the neck which is the result of hanging, on which basis, the concerning doctor opined that death of Ramkali may be suicidal. Only ligature mark has been found on the neck which is the result of hanging, on which basis, the concerning doctor opined that death of Ramkali may be suicidal. It is further submitted that learned trial court has only relied on the evidence of Dr. D.S. Badkul (PW-17) who had only given opinion on the basis of documents produced before him by the police. He had not seen the dead body of the deceased and in such circumstance, only on the basis of such opinion of Dr. D.S. Badkul (DW-17), this fact cannot be found proved that death of Ramkali was homicidal in nature and learned trial court has wrongly believed the aforesaid opinion / statement of Dr. D.S. Badkul (PW-17). Similarly, the learned trial court has also placed reliance on the statement of Dr. Deepak (PW-3) who is Expert of FSL Unit of District Police Gwalior. He had only opined about the certain facts that concerning inside bolt of the door can be put from outside also, but there is sufficient evidence that door was bolted from inside and it was opened after using much force from the outside by the various witnesses as stated by Bahadur Khan (PW-9) also. 8. It is also submitted by learned Counsel for the appellant that there is no iota of evidence available on record that the present appellant had misbehaved with the deceased Ramkali which may be the cause of commission of suicide by her. It is also submitted that Lata Sharma (PW-15) and Dharamsingh Yadav (PW-12) clearly admitted that after putting the deceased Ramkali Bai in the room, the door was locked from outside and key of the lock was put in the possession of lady Head Constable Lata Sharma and after that, nobody entered in the room concerned where deceased Ramkali was kept in custody. Therefore, no chain of circumstantial evidence is connected with each other, on which basis, this can be presumed that appellant/ accused entered into the room where the deceased Ramkali was kept in the custody and thereafter, he misbehaved with her and caused her death. Therefore, no chain of circumstantial evidence is connected with each other, on which basis, this can be presumed that appellant/ accused entered into the room where the deceased Ramkali was kept in the custody and thereafter, he misbehaved with her and caused her death. If, chain of circumstance is not connected with each other then only on the basis of fact that deceased Ramkali has been arrested and kept in police custody, this cannot be presumed that appellant/ accused has committed her murder, on which basis, he can be held guilty for the offence punishable under Section 302 of IPC. Thus, on the basis of aforesaid submission, learned Counsel for the appellant prayed for setting-aside of impugned judgment of conviction and sentence passed by the trial court. 9. Per-contra, learned Public Prosecutor supported the impugned judgment and submitted that it is true that no direct evidence is available against the present appellant that he had caused murder of deceased Ramkali but chain of circumstances is available against the appellant that he had arrested the deceased Ramkali and also interrogated, thereafter put her in the room of Station House officer situated in the police station from where she was found dead in the next day morning. It is the accused who can explain the aforesaid circumstances available against him and learned trial court has rightly believed the statement of Dr. Deepak (PW-3), Dr. D.S. Badkul (PW-17) and J.S. Sharma (PW-4) the then S.D.M. who conducted the preliminary inquiry and rightly came to the conclusion that it is the appellant / accused who can be held guilty for the commission of murder of Ramkali Bai and thus, no grounds are available for any interference in the impugned judgment, hence, prayed for dismissal of the appeal. 10. Before appreciation of the evidence available against the appellant for the aforesaid custodial death of Ramkali, it will be useful to quote here the observation made by Hon'ble Apex Court in the case of Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and Anr. 10. Before appreciation of the evidence available against the appellant for the aforesaid custodial death of Ramkali, it will be useful to quote here the observation made by Hon'ble Apex Court in the case of Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and Anr. (2003) 7 SCC 749 ; wherein in such type of cases what should be the standard of evidence, the Hon'ble Apex Court in para 9 held here as under : But at the same time there seems to be a disturbing trend of increase in cases where false accusations of custodial torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the courts while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence. The case in hand is a unique case in the sense that the complainant filed a complaint alleging custodial torture while the accused alleged false implication because of oblique motives. 11. Similarly, in another decision of Apex Court reported in State of M.P. v. Sewa Singh (2007) 11 SCC 295 ; while dealing with a case of custodial death, the Hon'ble Apex Court in para 6 held here as under: Two factors weighed with the High court in directing acquittal i.e. (a) apparent contradictions in the evidence of PW 6 and (b) her version being at variance with the medical evidence. The post-mortem was conducted by a team of doctors. It was noted that there was no external or internal injury and the cause of death is unknown. On forensic examination presence of ethyl alcohol was noticed. If the deceased had been subjected to kicks on vital parts or slapped as was stated by PW 6 there certainly would have been marks of injury. Doctor's evidence clearly rules this out. Further the evidence of PW 6 was rightly held to be unreliable by the High court. During investigation she has stated that the accused had slapped the deceased. There was no mention about the kick on the thigh or that the accused kicked the deceased after he fell down. Further, the evidence of PW 2 (brother of PW 6) was to the effect that PW 6 had told him that the deceased was assaulted by Sub-Inspector Pandey and the accused. There was no mention about the kick on the thigh or that the accused kicked the deceased after he fell down. Further, the evidence of PW 2 (brother of PW 6) was to the effect that PW 6 had told him that the deceased was assaulted by Sub-Inspector Pandey and the accused. Evidence of PW 6 is entirely different. It is true that in the case of custodial violence there would be less possibility of getting direct evidence, and direct independent witness. This was the position as indicated by this Court in State of M.P. v. Shyamsunder Trivedi. There were injuries on the body of the deceased in that case. In the present case medical evidence clearly shows that there was no external or internal injury. 12. In view of the aforesaid principle laid down by the Hon'ble Apex Court, we have to consider the evidence adduced by the prosecution against the present appellant. 13. It is not in dispute that on the date of incident, Ramkali, the deceased, her husband Shiv Singh and one Sughar Singh have been arrested by the police in connection with the crime registered under Section 302 of IPC and that fact has also been proved on the basis of Rojnamcha entry Ex.P/34-C wherein it is clearly stated that on 18-1-1989 the deceased Ramkali W/o. Shiv Singh, Sughar Singh S/o. Ramgopal and Shiv Singh S/o. Chandrahas have been arrested by the police and on the basis of information given by the accused persons some property had also been seized by the investigating officer and thereafter, all three persons have been put in police lock up. 14. Opinion with regard to mode of death of Ramkali is concerned, the statement of autopsy surgeon Dr. V.S. Tomar (PW-16) is material. He examined the dead body of deceased Ramkali on 19-1-1989, the panel of two doctors have performed the postmortem and found the following position of the dead body: Body of an average built female of aged about 30 years. Height is 5 feet and 3 inches. Neck is turned toward the right side. Eyes are partially opened. Corned heavy and conjunctiva pale. Mouth semi-opened. Lips are apart from each other and maxillary teeth closely contacting the mandibular teeth and mouth cannot be opened easily. The tip of the tongue is touching the inner margin of the teeth. There is cyanosis mehandi and nail polish. Neck is turned toward the right side. Eyes are partially opened. Corned heavy and conjunctiva pale. Mouth semi-opened. Lips are apart from each other and maxillary teeth closely contacting the mandibular teeth and mouth cannot be opened easily. The tip of the tongue is touching the inner margin of the teeth. There is cyanosis mehandi and nail polish. There is salivary discharge from right angle of mouth, also the presence of dry rid saliva in longitudinal line just below the right sternoclavicular joint to the middle of the sternum coming up to the upper border of umbilicus. Both upper limbs are extended and fists are opened and fingers are partially flexed thumbs inside and both the feet are planter flexed. Ante-mortem ligature mark in the upper part of the neck above the level of thyroid cartilage with knot on the left lateral part of the neck. The ligature materials consist of artificial hair (choti) with red ribbon, white cloth seem to be of baniyan. Red and gulabi Nadas as well as the normal scalp hair. The ligature material is cut after tying with the thread and preserved as such alongwith the knot and given to constable. Ligature mark starting from upper border of thyroid cartilage in mid line and on left side going upwards and backwards and posteriorly below the mastoid process and 1.5 cms breadth. While the ligature mark on the right side is first going little obliquely downwards up to lateral border of Sterno mastoid and then upwards and backwards. The ligature marks one cm broad on right side. Skin at the site of ligature mark is hard and dried and parchment like. The mark is coming up to the lower part of occipital region is less visible only with the compression of hair. Internally at the site of ligature mark, skin and subcutaneous tissues are compressed as well as the superficial veins and blood vessels are compressed with ecchymosis in the muscles of the neck present. Mucosa of trachea was congested contain froth with secretions. Hyoid was normal. No other external injuries present over the body." 15. On the basis of aforesaid examination, the concerning doctor has opined that cause of death is asphyxia due to constriction of neck as a result of hanging. Mucosa of trachea was congested contain froth with secretions. Hyoid was normal. No other external injuries present over the body." 15. On the basis of aforesaid examination, the concerning doctor has opined that cause of death is asphyxia due to constriction of neck as a result of hanging. Before the trial court, the concerning doctor has further opined that looking to the condition of the dead body and ligature mark, death may be suicidal because no other external injury was found on the dead body. 16. It is further pertinent to note that saliva was coming out from the mouth and on the basis of this peculiar sign it is apparent that death may be suicidal in nature. Learned Counsel for the appellant on this aspect placed reliance on the Modi's Medical Jurisprudence 22nd Edition, wherein the difference of suicidal and homicidal death due to hanging has been distinguished at page No. 270, here as under: Hanging Strangulation 1.... 1.... 2.... 2.... 3. Saliva- Dribbling out of the 3. Saliva - No such dribbling. mouth down on the chin and chest 4.... 4.... 5.... 5.... 6.... 6.... 7.... 7.... 8.... 8.... 9.... 9.... 10.... 10.... 11.... 11.... 12.... 12.... 13.... 13.... 14. Scratches, abrasions 14. Scratches, abrasions fingernail bruises on the face, neck and marks and bruises on the face, other parts of the body- Usually neck and other parts of the body- not present. Usually present. 17. In view of the aforesaid facts of the case and on the basis of statement of Dr. V.S. Tomar (PW-16) it is apparent that death of Ramkali may be suicidal also looking to the peculiar circumstance that she died due to hanging and there is no sign of any strangulation and scratches on the neck or on the face. 18. Learned trial court has believed the statement of Dr. D.S. Badkul (PW-17) who had not seen the dead body. Only on the basis of material sent to him for opinion, he formed an opinion that death of Ramkali may be homicidal also. But on perusal of entire statement of Dr. D.S. Badkul (DW-17) as aforesaid opinion given by doctor concerned, it is not a conclusive proof for the fact that death of Ramkali can be homicidal in nature. Only on the basis of material sent to him for opinion, he formed an opinion that death of Ramkali may be homicidal also. But on perusal of entire statement of Dr. D.S. Badkul (DW-17) as aforesaid opinion given by doctor concerned, it is not a conclusive proof for the fact that death of Ramkali can be homicidal in nature. This opinion has been formed only on the basis of postmortem report and photographs sent to him by the police concerned and such type of opinion cannot be the basis to form conclusive that death is homicidal in nature. For this, learned Counsel for the appellant placed reliance on the decision of Apex Court reported in Mafabhai Nagarbhai Raval v. State of Gujarat AIR 1992 SC 2186 ; wherein the Hon'ble Apex Court held here as under: It is needless to say that the Doctor who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless thee is something inherently defective the court cannot substitute its opinion to that of the Doctor. 19. Similar view has again been expressed by the Hon'ble Apex Court in another case of Mohan Singh v. State of Punjab AIR 1975 SC 2161 ; wherein while dealing with expert opinion the Hon'ble Apex court, in para 7 held here as under : The expert stated that he came to the conclusion that the injuries on Dial Singh and Swaran Kaur were probably caused by one gun-fire only. It must first of all be noted that he is not categorical about it. The reason for his conclusion are the dimensions of the injuries. He had not seen the injuries and it would need super-human ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors. 20. In view of principle laid down by the Hon'ble Apex Court for appreciation of expert opinion, we are of the considered opinion that opinion/ statement given by Dr. D.S. Badkul (PW-17) cannot over ride the statement of Dr. V.S. Tomar (PW-16) who actually performed the postmortem of dead body of the deceased Ramkali and categorically found that it may be a case of suicidal, therefore, this opinion of Dr. D.S. Badkul (PW-17) cannot over ride the statement of Dr. V.S. Tomar (PW-16) who actually performed the postmortem of dead body of the deceased Ramkali and categorically found that it may be a case of suicidal, therefore, this opinion of Dr. V.S. Tomar (PW-16) cannot be disbelieved on the basis of opinion/ statement of Dr. D.S. Badkul (PW-17). 21. Thus, in view of the aforesaid statement of two different doctors i.e. Dr. V.S. Tomar (PW-16) and Dr. D.S. Badkul (PW-17), we are of the considered opinion that opinion given by autopsy surgeon Dr. V.S. Tomar is found to be more reliable, on which basis, it is proved that death of Ramkali appears to be suicidal in nature. 22. It is found more probable that no injury on any part of the body was found by the autopsy surgeon, on which basis, this can be presumed that before her death, she was harassed or misbehaved by any of the accused persons. 23. Learned Public Prosecutor stressed upon the fact that some white stains on the underwear of the deceased were found which clearly indicate that some sexual intercourse was performed with the deceased Ramkali before her death. For which, the learned Public Prosecutor placed reliance on the statement of forensic expert Dr. Shesha Saxena (PW-20) who on examination of underwear opined that semen stains were found on the underwear of the deceased but in cross-examination she is not able to verify about duration of stains found on the underwear. Admittedly, the deceased Ramkali is a married lady living with her husband Shiv Singh in the same house, therefore, the presence of such type of white stains on the underwear of the deceased cannot be a material circumstance against the appellant / accused that he had committed any sexual intercourse with the deceased before her death because the duration of stains found on the underwear could not be determined by the Dr. Shesha Saxena (PW-20). Therefore, this circumstance is also not found to be material against the appellant to hold him guilty for the offence punishable under Section 302 of IPC. 24. Learned Public Prosecutor also placed reliance on the statement of Dr. Shesha Saxena (PW-20). Therefore, this circumstance is also not found to be material against the appellant to hold him guilty for the offence punishable under Section 302 of IPC. 24. Learned Public Prosecutor also placed reliance on the statement of Dr. Deepak (PW-3), the expert of FSL Unit of District Police, Gwalior, who inspected the spot and found that the door of the room where dead body was found was bolted from inside and he demonstrates that this door can be bolted from outside also but this statement of Dr. Deepak (PW-3) has not found any support from the statement of Bahadur Khan (PW-9) who actually opened the door and clearly stated that after using sufficient force this door could be opened which was bolted from inside and this statement of Bahadur (PW-9) has not been controverted by the prosecution. Therefore, the prosecution is bound by the aforesaid statement and in such circumstance, if the room has been bolted from inside where dead body was found in hanging condition then certainly only presumption can be drawn that after bolting door from inside, Ramkali committed suicide by hanging herself in the room concerned and in such circumstances, prosecution cannot take any benefit on the basis of statement of Deepak (PW-3), Expert of FSL Unit. 25. Other witness has been relied by the prosecution as well as by the trial court is the statement of J.S. Sharma (PW-4) the then Sub Divisional Magistrate, Gwalior, who inquired into the matter and prepared the inquest panchayatnama of the dead body. He also stated that door was opened after using much force from outside because it was bolted from inside. Nothing substantial came in his statement, on which basis, any mitigating circumstance can be found proved against the present appellant that he is the person who can be held guilty for unnatural death of Ramkali in this incident. 26. Learned Public Prosecutor also placed reliance on the statement of B.S. Tomar (PW-5) who stated that the present appellant and Pawan Jain, the probationer IPS posted in police station had interrogated the deceased Ramkali at about 9 PM. Thereafter, both went from police station and Ramkali was locked in the room concerned. 26. Learned Public Prosecutor also placed reliance on the statement of B.S. Tomar (PW-5) who stated that the present appellant and Pawan Jain, the probationer IPS posted in police station had interrogated the deceased Ramkali at about 9 PM. Thereafter, both went from police station and Ramkali was locked in the room concerned. But, in his statement he has not stated that after putting the lock on the door of the room, the present appellant had ever come again and entered into the room concerned from where the dead body of Ramkali was found and in such circumstance also, on the basis of aforesaid statement of B.S. Tomar (PW-5), no mitigating circumstance is available against the appellant, on which basis, he can be connected with the crime. 27. Most material witness produced by the prosecution before the trial court is the statement of lady Head Constable Lata Sharma (PW-15) who was deputed to lookafter Ramkali Bai. She specifically stated that Ramkali was kept in the room concerned and door of the room was locked from outside. The present appellant Anil Singhal went from the police station at about 9 PM and thereafter, he did not again come in the room where Ramkali was kept in the night also. Though, she denied that Ramkali woke up in the night for her natural call but in her previous statement recorded under Section 161 of Cr.P.C. which is Ex.P/13, she specifically stated that in the night Ramkali woke up and asked for natural call and then she opened the lock and took Ramkali to outside for natural call and again deceased went in the room and she locked the room from outside. Looking to the aforesaid statement of Lata Sharma (PW-15) it is not apparent that appellant/ accused had ever again entered into the room concerned where the deceased Ramkali was kept in the night of the incident. Therefore, on the basis of statement of aforesaid witness Lata Sharma (PW-15), nothing substantial came against appellant/ accused to hold him guilty for the alleged offence. 28. Babu Singh (PW-11) is another Constable who was posted in the police station for duty in the night has not stated anything against the appellant that appellant had ever entered into the room where Ramkali was kept in the night concerned. 29. 28. Babu Singh (PW-11) is another Constable who was posted in the police station for duty in the night has not stated anything against the appellant that appellant had ever entered into the room where Ramkali was kept in the night concerned. 29. Dharam Singh Yadav (PW-12) is another Constable posted in the police station has also not stated anything against the present appellant that he had misbehaved with Ramkali and ever entered into the room after 9 PM. 30. Krishna Kumar Dixit (PW-13) only stated about the unnatural death of Ramkali who was found dead in the morning due to hanging. 31. It is also pertinent to note that other independent witnesses have also not supported the prosecution story with regard to alleged harassment by the accused to the deceased Ramkali Bai, for which the prosecution has examined Kalyan Singh (PW-1) who is real uncle of the deceased has only stated that Ramkali was arrested by the police on 18-1-89 in some murder case. He stated that accused had beaten Ramkali also in the police station but this statement has not got any support by the medical evidence as stated hereinabove by autopsy surgeon Dr. V.S. Tomar (PW-16) that he had not found any external injury caused by some lathi on the body of the deceased. 32. Munni Devi (PW-6) has also not stated anything against the appellant that he had misbehaved with the deceased Ramkali in the room concerned. Similar are the statements of Jandel Singh (PW-7), Nannumal (PW-8), Suresh (PW-10), Babu Singh (PW-11), Dharam Singh (PW-12), Krishna Kumar Dixit (PW-13) and Kaptan Singh (PW-14) also. Thus, the prosecution has utterly failed to prove any mitigating circumstance against the appellant on the basis of statement of aforesaid witnesses, on which basis, this can be inferred that due to misbehaviour by the appellant/accused, the deceased has committed suicide or the appellant/ accused is the person who committed murder of said Ramkali Bai. Thus, the chain of circumstances against the appellant / accused is not so conclusive, on which basis, only inference can be drawn against the appellant that he is the person responsible for unnatural death of deceased Ramkali Bai. 33. Learned Public Prosecutor appearing for the State placed reliance on a decision of State of M.P. v. Shyam Sunder Trivedi and Ors. 33. Learned Public Prosecutor appearing for the State placed reliance on a decision of State of M.P. v. Shyam Sunder Trivedi and Ors. (1995) 4 SCC 262 ; wherein while dealing with the custodial death, the Hon'ble Apex court held that "in a case of custodial death, the police officials alone can explain the circumstances in which a person in their custody died" and in the present case, the appellant/ accused has failed to prove any reasonable explanation about the death of Ramkali Bai. 34. As stated hereinabove, we are of the considered opinion that it is the duty casted upon the prosecution to prove the necessary circumstantial evidence against the appellant and in the present case, no mitigating circumstance is available against the appellant that he had misbehaved with the deceased and in such circumstances only on the basis of death of Ramkali in the police station, the appellant/ accused cannot be held liable for the aforesaid incident. 35. Learned Public Prosecutor also placed reliance on a decision of Sanganagouda A. Veeranagouda and Ors. v. State of Karnataka (2005) 12 SCC 468; wherein the Hon'ble Apex has held that "if a person died in the custodial death and direct evidence is not available then the appellant/ accused can be held guilty under Section 348 of IPC". 36. In the present case, the accused has also been charged under Section 348 of IPC and the trial court has acquitted the accused from the aforesaid charge and the State has not preferred any appeal against acquittal of the accused from the charge under Section 348 of IPC. Therefore, the aforesaid principle will not be applicable to the facts of the present case. Moreover, it is apparent that Ramkali was not in an illegal custody of the police station. She was arrested in a crime registered under Section 302 of IPC, for which, necessary entry has been proved as Ex.P/34-C. Therefore, in such circumstance, on the basis of evidence on record, accused can not be held liable for the offence punishable under Section 348 of IPC, for which, trial court has already acquitted him. 37. Learned P.P. also placed reliance on two decisions of Hon'ble Apex court reported in Sheikh Zakir v. State of Bihar AIR 1983 SC 911 and State of Rajasthan v. Bhawani and Anr. 37. Learned P.P. also placed reliance on two decisions of Hon'ble Apex court reported in Sheikh Zakir v. State of Bihar AIR 1983 SC 911 and State of Rajasthan v. Bhawani and Anr. AIR 2003 SC 4230 , wherein the Hon'ble Apex court has laid down that "under what circumstance the hostile witness should be appreciated". 38. It is well settled principle of law that statement of hostile witness cannot be thrown entirely. The substance which supported the prosecution story can be relied upon. But in the present case as discussed hereinabove, the material witnesses have not supported the prosecution story and have also not proved any mitigating circumstance against the appellant, on which basis, this can be held that appellant/ accused is the person who can be held liable for unnatural death of Ramkali, therefore, the principle laid down on the aforesaid case law is not applicable to the facts of the present case. 39. It is also pertinent to note that the deceased Ramkali was not found in the custody of the present appellant because of the fact that on the date of incident, one Pawan Kumar Jain, probationer IPS was In-charge of the police station concerned. He has also been held liable for this offence on the basis of application filed under Section 319 of Cr.P.C. but subsequently by the order of this Court, the aforesaid application has been dismissed but admittedly, said Pawan Kumar Jain (PW-42) has been examined by the prosecution, who also admitted that as the probationer IPS, he had been posted in the Police station Purani Chhawni, Gwalior, on the date of incident concerned but he was not In-charge of the police station. This statement of Pawan Kumar Jain (PW-42) has been rebutted by the statement of defence witness R.B.S. Bhadoria (DW-1), the then Dy. S.P. who was inspecting officer of the police station Purani Chhawni at the relevant time has specifically stated that Pawan Kumar Jain, the probationer IPS had been posted as Station In-charge officer of Police Station Purani Chhawni and during that period, the present appellant was attached in some other police station. The aforesaid defence witness R.B.S. Bhadoria was also responsible Gazetted officer at that relevant time has categorically stated that Pawan Kumar Jain (PW-42) had been appointed as Police Station In-charge of Police Station Purani Chhawni at that relevant time. The aforesaid defence witness R.B.S. Bhadoria was also responsible Gazetted officer at that relevant time has categorically stated that Pawan Kumar Jain (PW-42) had been appointed as Police Station In-charge of Police Station Purani Chhawni at that relevant time. Therefore, in such circumstance also, it cannot be presumed that the appellant/ accused Anil Singhal was In-charge of the police station at that relevant time and in his custody, Ramkali died in the suspicious circumstance. 40. The Hon'ble Apex court in the case of Keshav v. State of Maharashtra (2007) 13 SCC 284 ; while discussing the circumstantial evidence of last seen in para 8 held here as under: A judgment of conviction cannot be recorded only on the basis of motive. The circumstance of last seen together becomes relevant only when the death is proved to have taken place within a short time of the accused and the deceased being last seen. 41. Similar view has again been explained by the Hon'ble Apex Court in Hatti Singh v. State of Haryana (2007) 12 SCC 471 wherein in para 26 held here as under: The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis. 42. Thus, on overall re-appreciation of the entire evidence on record, we are of the considered opinion that prosecution has utterly failed to prove beyond reasonable doubt that it is the appellant/ accused who committed murder of deceased Ramkali on the date of incident, no direct evidence is available for involvement of the appellant/ accused in this case. Similarly, chain of circumstances is not so related that any inference can be drawn against the appellant that he is the person who committed murder of Ramkali. 43. Thus, we are of the considered opinion that learned trial court has wrongly held the appellant/ accused guilty for the aforesaid offence, hence, impugned judgment of conviction and sentence passed by the trial court is liable to be set-aside. 44. Consequently, the appeal preferred by the appellant succeeds and is hereby allowed. 43. Thus, we are of the considered opinion that learned trial court has wrongly held the appellant/ accused guilty for the aforesaid offence, hence, impugned judgment of conviction and sentence passed by the trial court is liable to be set-aside. 44. Consequently, the appeal preferred by the appellant succeeds and is hereby allowed. Impugned judgment of conviction and sentence passed by the Trial Court is hereby set-aside and the appellant/ accused is acquitted from the charge under Section 302 of IPC. Fine amount, if any, deposited be refunded to the appellant. 45. Appellant is in custody. Trial court is directed to get the appellant released from jail forth-with, if he is not required to be detained in any other case.