JUDGMENT Radhe Shyam Sharma, J. 1. This appeal is directed against judgment dated 15-4-2011 passed by 2nd Additional Sessions Judge, Surguja (Ambikapur) in Sessions Trial No.93/ 2008. By the impugned judgment, accused/appellant Kamlesh Uraon alias Biransai alias ehunda alias Bodaro alias Motu has been convicted and sentenced in the following manner with a direction to run the sentences concurrently: Conviction Sentence Under Section 376(1) IPC Imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month Under Section 302 IPC Imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month 2. Case of the prosecution, in brief, is as under:- On 10-12-2007, at about 10:20 P.M., complainant Ramnath (PW-2) lodged First Information Report (Ex.P-4) in Police Station Ambikapur that he was residing in Bhatthapara, Ambikapur along with his wife Suganti Bai (PW4). For the last one week, deceased Ku. Suchita, resident of Sitapur, was residing with them due to labour work. His second wife Dharma Bai (PW-3) was residing in a raw house built in Bada of Chirauji Seth. The deceased, after living with the appellant for sometime, left him. The appellant used to go to Dharma Bai (PW -3) also. On this count, a dispute arose between the appellant and Dharma Bai and the appellant had threatened Dharma Bai (PW-3) of life. On 10-12-2007 itself, at about 8 P.M., on receiving information of death of uncle of Ramnath (PW-2), he had gone to Kharsiya Chowk along with his both wives Suganti Bai (PW-4) and Dharma Bai (PW-3) to attend the last rituals. The deceased was left in the house of Dharma Bai (PW-3) to cook food. After returning at about 10: 15 P.M., they saw that Sankal and lock of the door of the house of Dharma Bai (PW-3) was broken and the deceased was lying dead inside the house. The deceased had sustained deep cut injury on the neck and her skirt was lifted up. Due to dispute with Dharma Bai (PW-3), the appellant used to threaten of life to Dharma Bai (PW-3), Ramnath (PW-2) and Suganti Bai (PW-4). Ramnath (PW-2) was suspecting that it was the appellant who would have committed rape with the deceased and killed her. Merg Intimation (Ex.P-3) was also recorded in Police Station Ambikapur. Due to dispute with Dharma Bai (PW-3), the appellant used to threaten of life to Dharma Bai (PW-3), Ramnath (PW-2) and Suganti Bai (PW-4). Ramnath (PW-2) was suspecting that it was the appellant who would have committed rape with the deceased and killed her. Merg Intimation (Ex.P-3) was also recorded in Police Station Ambikapur. The Investigating Officer reached the place of occurrence, gave notice (Ex.P-1) to Panchas and prepared inquest (Ex.P-2) on the dead body of the deceased. The dead body of the deceased was sent to District Hospital, Ambikapur for post mortem examination vide Ex.P-10. Dr. K.R. Tekam (PW-6) conducted post mortem on the dead body of the deceased and gave his report (Ex.P-7), in which, he found two incised wounds, 12cms x 5cms x 2cms and 7cms x 2cms x 2cms on the right side of neck, multiple contusion on the chest, lacerated wound on the lip, incised wound extending from right side of umbilical region to labia majora, abrasion on labia minora, hymen was old ruptured. He opined that mode of death of the deceased was shock due to excessive haemorrhage leading to cardiopulmonary arrest. In further investigation, memorandum statement (Ex.P-12) of the appellant was recorded under Section 27 of the Evidence Act and at his instance, a sabbal was seized from him vide EX.P-13. Underwear of the deceased, plain soil and blood stained soil were seized from the place of occurrence vide Ex.P11. Shirt, half pant, lungi, underwear and a pair of black chappal of the appellant were seized vide EX.P-14. Confessional statement (Ex.P-18) of the appellant was recorded. The seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide EX.P-20. Report (Ex.P-22) was received therefrom. Serological Report (Ex.P-23) was also received. In Ex.P-22, articles A - underwear, B1 -blood stained soil, C - slide of vaginal swab of the deceased, D - sabbal, E - shirt, F -half pant, G - lungi of the appellant were found stained with blood and articles A, C and H - underwear of the appellant were found stained with human spermatozoa. In Serological Report (Ex.P-23), item No.18, i.e., article A was found stained with human blood. Stains on the rest of the items were disintegrated and their origin could not be determined. In Serological Report (Ex.P-23), item No.18, i.e., article A was found stained with human blood. Stains on the rest of the items were disintegrated and their origin could not be determined. After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Ambikapur, who, in turn, committed the case to the Court of Session, Surguja (Ambikapur), from where it was received on transfer by 2nd Additional Sessions Judge, Surguja (Ambikapur), who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Sunil Tripathi, learned counsel for the appellant has argued that the finding of guilt recorded on the• basis of presence of the appellant in the hotel situated in front of the house of Ramnath (PW-2), memorandum statement (Ex.P-12) of the appellant and recovery of sabbal and clothes is unreasonable. The above circumstances are not proved beyond reasonable doubt. Even if, the circumstances are taken on their face value, it cannot be said that it was the appellant who committed the alleged rape and murder of the deceased. He further argued that it is well settled that a strong suspicion is not a substitute for a proof. Therefore, the finding of guilt recorded by the learned Additional Sessions Judge is not sustainable and the appellant is entitled for acquittal. 4. Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. We have heard learned counsel for the parties and have perused the record of Sessions Trial No.93/2008. The conviction of the appellant is based on the circumstantial evidence. Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. We have heard learned counsel for the parties and have perused the record of Sessions Trial No.93/2008. The conviction of the appellant is based on the circumstantial evidence. The learned Additional Sessions Judge in para 20 of the impugned judgment considered the following circumstances for convicting the appellant: (i) Visiting of the appellant to the house of Ramnath (PW -2) and Suganti Bai (PW-4) and the house of Dharma Bai (PW-3), (ii) Residing of the deceased in the houses of Ramnath (PW-2) and Dharma Bai (PW-3) and visiting of the appellant to these houses, (iii) Marriage of Dharma Bai (PW -3) with the appellant and thereafter leaving him by her; her marriage with Ramnath (PW2) and, therefore, taking place of quarrels among them, (iv) Presence of human spermatozoa on the underwear of the appellant, the deceased and the slide of the vaginal swab of the deceased, and (v) Presence of the appellant in the hotel situated in front of the house of Ranmath (PW-2) at about 8:15 P.M. when Ramnath (PW-2) and his wives were going to Kharsiya Chowk. 6. So far as the above circumstances are concerned, the learned Additional Sessions Judge held that the dead body of the deceased was found in the house of Ramnath (PW -2), mode of death of the deceased was shock due to excessive haemorrhage leading to cardio-pulmonary arrest and the death was homicidal in nature. He further held that the appellant entered the house of Ramnath (PW-2), committed rape with the deceased and killed her. He further held that the circumstantial evidence goes to show that it was the appellant who committed murder of the deceased. 7. In State of Uttar Pradesh Vs. Ram Balak and another (2008) 15 SCC 551 , the Hon'ble Supreme Court has held thus: "11. "9. it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. "9. it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99 , Eradu v. State of Hyderabad, AIR 1956 SC 316 , Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 , State of u.P. v. Sukhbasi, 1985 Supp SCC 79, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 , and Ashok Kumar Chatterjee v. State of M.P., 1989 Supp (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193 , wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 8. In Padala Veera Reddy Vs. State of Andhra Pradesh and others AIR 1990 SC 79 , the Hon'ble Supreme Court has held thus: "10. ........... Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 8. In Padala Veera Reddy Vs. State of Andhra Pradesh and others AIR 1990 SC 79 , the Hon'ble Supreme Court has held thus: "10. ........... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:- (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. ..........." 9. In Bodhraj alias Bodha and others Vs. State of Jammu and Kashmir (2002) 8 SCC 45 , the Hon'ble Supreme Court has observed as under: "17. ..... ...The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 10. Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and shall see whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles. 11. It is not disputed that the deceased was residing with Ramnath (PW2) and Dharma Bai (PW-3) and the death of the deceased was homicidal in nature. 12. Ramnath (PW-2) deposed that he has two wives Dharma Bai (PW3) and Suganti Bai (PW-4). His both wives were residing in a quarter at Bhatapara. The deceased was working with his wives, therefore, he was acquainted with her. Dharma Bai (PW-3) deposed that Ramnath (PW-2) is her husband. She was engaged in doing domestic work in the house of Suresh. She had no issue, therefore, Ramnath (PW-2) married Suganti Bai (PW-4). She further deposed that the deceased was taken to her by Suganti Bai (PW4). Suganti Bai (PW-4) also deposed in similar fashion. 13. Ramnath (PW-2), Dharma Bai (PW-3) and Suganti Bai (PW-4) deposed that on the date of incident, they had left the deceased inside the house and had locked the door from outside and gone to Kharsiya Chowk to attend the last rituals of the uncle of Ramnath (PW -2). They further deposed that they returned on the same day at about 10 P.M. They saw that the door of the house was opened and light of the room was on. When they entered the house, they saw that the deceased was lying dead on the bed and she had sustained injuries on her neck and cheek and blood was oozing out. 14. Ramnath (PW-2) deposed that he lodged First Information Report (Ex.P-4) in Police Station Ambikapur and Merg Intimation (Ex.P-3) was also recorded in Police Station Ambikapur. 15. Ramnath (PW-2), Dharma Bai (PW-3) and Suganti Bai (PW-4) deposed that the appellant had threatened Dharma Bai (PW-3) of life. They further deposed that on the date of incident, the appellant was present in the hotel situated in front of the house of Ramnath (PW-2). Therefore, they doubted that it was the appellant who committed rape with the deceased and committed her murder. 16. In Ashish Batham Vs. State of M.P. (2002) 7 SCC 317 , the Hon'ble Supreme Court observed as follows: "8. Therefore, they doubted that it was the appellant who committed rape with the deceased and committed her murder. 16. In Ashish Batham Vs. State of M.P. (2002) 7 SCC 317 , the Hon'ble Supreme Court observed as follows: "8. 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 the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or 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. Courts dealing with criminal cases at least should constantly 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 conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based up-on a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record." 17. Dharma Bai (PW-3) and Ramnath (PW-2) deposed that the appellant had threatened them of life. Dharma Bai (PW-3) deposed that whenever the appellant visited her house, he took meals and stayed there. She further deposed that no marriage had taken place between her and the appellant. She had not stated before the police that she was residing with Ramnath (PW -2) making him her husband after leaving the appellant. Ramnath (PW-2) deposed that when he was going to attend the last rituals of his uncle, he saw that the appellant was taking breakfast in the hotel situated in front of his house. Dharma Bai (PW-3) deposed that she was not aware of any illicit relationship between the appellant and the deceased. 18. The evidence of Ramnath (PW-2), Dharma Bai (PW-3) and Suganti Bai (PW-4) are doubtful and suspicious in nature. Mere presence of the appellant in the aforesaid hotel is not sufficient to connect the appellant with the crime in question. Dharma Bai (PW-3) deposed that she was not aware of any illicit relationship between the appellant and the deceased. 18. The evidence of Ramnath (PW-2), Dharma Bai (PW-3) and Suganti Bai (PW-4) are doubtful and suspicious in nature. Mere presence of the appellant in the aforesaid hotel is not sufficient to connect the appellant with the crime in question. 19. The prosecution adduced evidence of extra-judicial confession made by the appellant. 20. Man Prasad Vishwakarma (PW-8) deposed that the appellant admitted before him that he committed rape with the deceased and killed her with a sabbal (crowbar). He further deposed that the appellant confessed his guilt and the police prepared confessional panchnama vide EX.P-18. 21. Inspector Sapan Choudhary (PW-7) deposed that on 24-12-2007, the appellant confessed his guilt and he prepared confessional panchnama vide Ex.P18 in presence of witnesses. Looking to the evidence of Sapan Choudhary (PW7) and Man Prasad Vishwakarma (PW-8), it appears that the appellant allegedly confessed his guilt before the police. 22. In Madhu Vs. State of Keralas (2012) 2 SCC 399 , the Hon'ble Supreme Court observed as follows: "47. The most significant issue in the present controversy is the veracity of the confessional statements made by the accused Madhu and Sibi before P.J. Thomas PW 21, Circle Inspector of Police on 13-5-1998. It is evident that the aforesaid statements were made by the accused before a police officer while the accused were in custody of the police. Section 25 of the Evidence Act postulates that a confession made by an accused to a police officer cannot be proved against him Additionally, Section 26 of the Evidence Act stipulates that a confession made by an accused while in police custody cannot be proved against him. It is evident from the factual position narrated hereinabove, that the statements made by the accused Madhu and Sibi were made to a police officer while the accused were in police custody. It is, therefore, apparent that in terms of the mandate of Sections 25 and 26 of the Evidence Act, the said statements could not be used against accused Madhu and Sibi. But then, there is an exception to the rule provided for by Sections 25 and 26 aforesaid, under Section 27 of the Evidence Act." 23. It is, therefore, apparent that in terms of the mandate of Sections 25 and 26 of the Evidence Act, the said statements could not be used against accused Madhu and Sibi. But then, there is an exception to the rule provided for by Sections 25 and 26 aforesaid, under Section 27 of the Evidence Act." 23. In the instant case, the so called extra-judicial confession was made by the appellant before a police officer, therefore, the extra-judicial confession recorded vide EX.P-18 is not admissible in evidence. In view of the above, it cannot be said that the appellant made extra-judicial confession. 24. The other circumstantial evidence are memorandum statement (Ex.P12) of the appellant, recovery of sabbal (crowbar) and seizure of aforesaid clothes of the appellant at his instance. 25. Sapan Choudhary (PW -7) deposed that on 24-12-2007, the memorandum statement (Ex.P-12) of the appellant was recorded by him and at instance of the appellant, he recovered sabbal vide EX.P-13 and seized shirt, half pant, lungi, underwear and a pair of plastic chappal of the appellant vide EX.P-14. He further deposed that he sent the seized articles to FSL, Raipur for chemical examination vide Ex.P-20. In the FSL Report (Ex.P-22), the underwear of the deceased, slide of vaginal swab of the deceased and underwear of the appellant were found stained with human spermatozoa. Underwear of the deceased, sabbal, shirt, half pant, lungi and underwear and chappal of the appellant were found stained with blood. Ex.P-23 is Serological Report, in which, item No.18, i.e., article A - chaddi (underwear) of the deceased was found stained with human blood. Blood stains on rest of the items were disintegrated and their origin could not be determined. 26. Looking to the FSL Report (Ex.P-22) and Serological Report (Ex'P-1 23), origin of blood groups could not be determined in respect of the seized articles. 27. In the instant case, the incident took place on 10-12-2007. Section 53-A was incorporated in the Code of Criminal Procedure with effect from 23-6-2006. 26. Looking to the FSL Report (Ex.P-22) and Serological Report (Ex'P-1 23), origin of blood groups could not be determined in respect of the seized articles. 27. In the instant case, the incident took place on 10-12-2007. Section 53-A was incorporated in the Code of Criminal Procedure with effect from 23-6-2006. Section 53-A(2)(iv) of the Code of Criminal Procedure runs as follows: "53-A. (1) xxxxx xxxxx xxxxx (2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:- (i) xxxxx xxxxx xxxxx (ii) xxxxx xxxxx xxxxx (iii) xxxxx xxxxx xxxxx (iv) the description of material taken from the person of the accused for DNA profiling; and xxxxx xxxxx xxxxx" 28. b Krishan Kumar Malik Vs. State of Haryana AIR 2011 SC 2877 , the Hon'ble Supreme Court observed as follows: "45. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr. P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences." 29. In the instant case, the underwear and slide of vaginal swab of the deceased and the underwear of the appellant were not sent for DNA Test nor sample of semen of the appellant was sent for DNA Test to analyse and match semen of the appellant with that found on the underwear and slide of vaginal swab of the deceased to make it a full proof case. Therefore, mere seizure of under wears of the deceased and the appellant and presence of human spermatozoa thereon are not sufficient to connect the appellant with the crime in question. 30. The evidence of extra-judicial confession, memorandum statement of the appellant and recovery of underwear of the deceased and recovery of the underwear of the appellant at his instance are not of conclusive nature and tendency. 30. The evidence of extra-judicial confession, memorandum statement of the appellant and recovery of underwear of the deceased and recovery of the underwear of the appellant at his instance are not of conclusive nature and tendency. These circumstances are capable of being explained, and the chain of circumstantial evidence is also not complete. Even if the circumstances summarized in para 20 are taken at their face value, they only raise suspicion and conclusion of guilt of the appellant cannot be drawn by them. 31. Thus, looking to the matter from all angles, we are of the considered opinion that the conviction of the appellant cannot be upheld. 32. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant are hereby set aside. The appellant is acquitted of the charges framed against him. He is in jail since 24-12-2007. He be set at liberty forthwith, if not required in any other case. Appeal Allowed.