JUDGMENT Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 4.10.2008, rendered by the learned Sessions Judge, Mandi, in Sessions Trial No. 1 of 2008, whereby the appellant-accused was charged with and tried for offences under Sections 302 & 201 IPC read with Section 34 IPC. One of the accused Bharfi Devi was declared proclaimed offender. The learned Sessions Judge convicted the appellant-accused Raj Kumar (hereinafter referred to as the accused) and accused Ramesh Kumar and Om Prakash were acquitted. The accused was convicted under Sections 302 and 201 IPC. He was ordered to undergo simple imprisonment for life and to pay fine to the tune of Rs. 10,000/- and in default of payment of fine, he was ordered to undergo simple imprisonment for one year under Section 302 IPC. He was also convicted under Section 201 IPC and ordered to undergo simple imprisonment for 3 years and also to pay fine to the tune of Rs. 5000/-. In default of payment of fine, to further undergo simple imprisonment for six months. Both the sentences were ordered to run concurrently. 2. The case of the prosecution, in a nut shell, is that on 23.8.2007 at about 8:30 PM at Village Sihan, PS Sarkaghat, the accused Raj Kumar committed the murder of Meena Devi wife of late Hari Singh intentionally and voluntarily in furtherance of common intention along with other co-accused namely Ramesh Kumar and Om Prakash. The accused persons have also caused certain evidence to disappear and proclaimed that Meena Devi had fled from her house. The statement of PW-1 Jiwan Lal was recorded under Section 154 Cr. P.C. vide memo Ext. PA. FIR was registered on the basis of Ext. PA. The accused were arrested. Post mortem on the dead body was got conducted. The accused made disclosure statement, on the basis of which, recoveries were effected. The investigation was completed and thereafter challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 24 witnesses to prove its case. The accused persons were also examined under Section 313 Cr. P.C. Accused Raj Kumar also produced two witnesses DW-1 and DW-2. The learned Trial Court convicted and sentenced the accused Raj Kumar, as stated hereinabove. Hence, the present appeal. 4. Mr. 3. The prosecution has examined as many as 24 witnesses to prove its case. The accused persons were also examined under Section 313 Cr. P.C. Accused Raj Kumar also produced two witnesses DW-1 and DW-2. The learned Trial Court convicted and sentenced the accused Raj Kumar, as stated hereinabove. Hence, the present appeal. 4. Mr. Anup Chitkara, Advocate, appearing for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur, learned Assistant Advocate General, has supported the judgment of the learned Sessions Judge dated 4.10.2008. 5. We have heard learned counsel for the parties and gone through the records of the case carefully. 6. PW-1 Jeewan Lal testified that on 23.8.2007, their grand mother Barfi Devi had come to their house. At about 8:30 PM on the same day they were having meals. In the meantime, accused Raj Kumar came there. He was drunk. He started abusing him, his sister and his mother and threatened to kill them. His grand mother and mother pushed him out of the room. Thereafter, his grand mother took him to an adjoining sleeping room. His grand mother remained with him in the room for about 15-20 minutes. Accused came there again. He heard noise from the room of his mother as if somebody was beating her. It appeared to him that his mother was taken out by 2-3 persons. He could not come out of the room as the door was bolted from outside. He peeped from the window out of fear. He noticed that Raju, Ramesh Kumar and Om Parkash and Barfi Devi were taking his mother towards the house of accused Om Parkash. He heard cries of his mother from the side of the house of his uncle Om Parkash. After about 1-2 hours, all the accused alongwith his grand mother came to his house and opened the door from outside. They told him that his mother had ran away from the house. His grand mother also told the same thing. All the persons asked him to make a telephonic call to his maternal uncle Anant Ram and accused Om Prakash showed gun to him and asked him to tell his uncle (mama) whatever they intended to say. They insisted him to tell his Mama on phone that his mother has run away from the house. All the persons asked him to make a telephonic call to his maternal uncle Anant Ram and accused Om Prakash showed gun to him and asked him to tell his uncle (mama) whatever they intended to say. They insisted him to tell his Mama on phone that his mother has run away from the house. He did accordingly. At about 2:00 AM, his uncle Anant Ram, his wife Bhindra Devi and Bhabhi Kaushlya reached his house and searched here and there for his mother. In the morning, all of them returned to the house. On 24.8.2007, he alongwith his uncle Anant Ram went to the Police Post Dharampur where the police personnel present there told them to come on the next day. On 24.8.2007 his uncle alongwith village people again searched for his mother. They could not find her. On 25.8.2007, they went to Police Post Dharampur. His uncle received a phone call at about 11/11:30 from one Nek Ram. He told that the dead body of his mother was hanging with a tree in Ghat Bahu jungle. Thereafter, they alongwith the police party went to the spot. The dead body of his mother was hanging with the branch of a pine tree with a plastic rope, tied around the neck. Thereafter, his statement was recorded under Section 154 Cr. P.C. In his cross-examination, he admitted that there are 15-20 houses in his village. He also admitted that there are houses of Dev Ram, Lalu Ram, Kanshi Ram, Om Chand, Hari Singh and Joginder Singh adjoining to their house. The last rites of his mother were performed by his maternal uncle. He also suspected the role of some women in the death of his mother apart from the accused. He also admitted in his cross-examination by the learned Advocate appearing on behalf of the accused Om Prakash and Ramesh that the house of Devinder Ram and Labh Singh are near to their house. The house of Devinder is at a distance of about 10 feet from their house. The house of Labh Singh is in front of their house. It is at a distance of 100 meters. House of Kanshi Ram was adjoining to their house on the back side. Bablu, son-in-law of Dev Ram was present in the house on that day. The houses of Dev Ram and Om Chand are also adjoining to the house. The house of Labh Singh is in front of their house. It is at a distance of 100 meters. House of Kanshi Ram was adjoining to their house on the back side. Bablu, son-in-law of Dev Ram was present in the house on that day. The houses of Dev Ram and Om Chand are also adjoining to the house. The houses of accused Om Parkash and Ramesh are at a distance of 100 meters from their house. He admitted that accused Raj Kumar and his mother were members of joint family. He also admitted that accused Om Parkash and Ramesh had gone to the house of Bihari Lal to attend the puja ceremony. He had noticed persons coming to the room of his mother at about 11:00 PM on 23.8.2007. He also admitted that at about 11:45 PM on 23.8.2007, he alongwith Shanti Devi, Raj Kumar, Lalu, Bablu and his wife went to the house of accused Ramesh and Om Parkash. They asked them to open the door of the house. The accused switched on the light and opened the door. He also admitted that Shanti Devi told that Meena Devi had consumed some poisonous substance and has left the house. He also admitted in his cross-examination that accused Om Parkash and Ramesh also joined them to trace his missing mother. He also admitted that on being inquired by these two accused, he told them that there was altercation between accused Raj Kumar and his mother. His uncle was hurling filthy abuses to his mother. He was holding knife in his hand. He also admitted that he did not report to the police that when he peeped through the window, he saw the accused alongwith Barfi Devi taking his mother towards the house of accused Om Parkash. He also admitted that there is no mention of hearing of cries from the house of the accused in Ext. PA and supplementary statement. He disclosed these things for the first time in the Court. 7. PW-2 Rekha Devi also corroborated the statement of PW-1 Jeewan Lal. However, she has added that the accused threatened to separate them and pointed a knife towards his brother and mother. He also gave 1-2 pushes to his mother. His grand mother took his brother to another room and latched the same from outside and told her to go to the house of her Aunt. However, she has added that the accused threatened to separate them and pointed a knife towards his brother and mother. He also gave 1-2 pushes to his mother. His grand mother took his brother to another room and latched the same from outside and told her to go to the house of her Aunt. She went to the house of her Aunt. After about 1 – 1½ hours, her uncle Raj Kumar and Barfi Devi raised hue and cry that her mother had gone missing. 8. PW-3 Anant ram deposed that he received a telephonic call from his nephew PW-1 Jeewan Lal that his mother has gone missing. He thereafter alongwith his wife and Bhabi went to the house of his sister and reached there at about 2:00 AM. He received a telephonic call from one Nek Ram that dead body of Meena Devi was hanging with a tree in Ghata Bahu jungle. He along with police party and other persons went to the spot and found the dead body hanging with a pine tree. Police filled up the inquest papers Ext. PB on the spot. Police took photographs of the dead body. According to him, Swami Ram was not interested to give his estate to Raju Ram and was kind towards his sister. Accused Om Prakash and Ramesh were also interested in purchasing his estate. He also admitted in his cross-examination conducted on behalf of the learned Advocate for accused Ramesh and Om Parkash that the police has left some of the real culprits. 9. PW-4 Nek Ram deposed that on 25.8.2007, he was called by Anant Ram. There were 20-30 persons who went to trace missing Meena Devi. They noticed dead body of Meena Devi hanging with a pine tree with a rope in her neck. 10. PW-5 HHC Bhagat Ram, deposed that in his presence on 23.8.2007, accused Raj Kumar at 9:15 AM disclosed that he could identify the place where Meena Devi was smothered to death with khind (quilt) and shirt in the house under construction of accused Ramesh and Om Parkash. The disclosure statement is Ext. PC. In his cross-examination, he admitted that there was no independent person present in the police station. The accused was already in police custody for 2-3 days prior to that. 11. The disclosure statement is Ext. PC. In his cross-examination, he admitted that there was no independent person present in the police station. The accused was already in police custody for 2-3 days prior to that. 11. PW-6 Dalip Singh deposed that on 27.8.2007 accused Raj Kumar led the police party to the house of Ramesh. Raj Kumar took out a lady shirt from a big basket (tokra). There were also blood stains on the floor of the room. It was a pucca floor. The police took the shirt in possession vide recovery memo Ext. PD. Thereafter, the police took accused Ramesh Kumar alongwith him and Sunil Kumar, Satish Kumar, Ram Saran and accused Ramesh took the police alongwith them to the septic tank newly constructed with its open mouth and a khind was taken out which was covered with soil. Thereafter, accused Ramesh Kumar and Raj Kumar led the police party alongwith them to the cowshed belonging to the accused Ramesh and showed the place where the rope for tying buffalo was taken with which deceased Meena Devi was hanged. Thereafter, both the accused led the police party to the jungle and showed the spot where the dead body was kept by the accused for the night. In his cross-examination, he has admitted that in his statement mark D, there was no mention of taking of shirt from the basket. There was no mention of taking of quilt (khind) from the septic tank in his statement mark D. He also admitted that there was no mention of ‘khind’ in his statement mark D. 12. PW-7 Prem Singh deposed that he was told by Arun Kumar that accused Raj Kumar had purchased a bottle of insecticide (poison) and the police party showed him the said bottle which was allegedly taken from accused Raj Kumar. 13. PW-8 Arun Kumar deposed that on 31.8.2007, police party alongwith accused Raj Kumar and other came to his shop and inquired from him whether accused Raj Kumar had purchased bottle Ext. P-3 from his shop. He told that accused had purchased the said bottle on 24.8.2007. 14. PW-9 Constable Om Chand deposed that he alongwith Prem Singh were taken by accused Raj Kumar to the STD shop of Surjan Singh wherefrom accused made a telephonic call on 24.8.2007. 15. P-3 from his shop. He told that accused had purchased the said bottle on 24.8.2007. 14. PW-9 Constable Om Chand deposed that he alongwith Prem Singh were taken by accused Raj Kumar to the STD shop of Surjan Singh wherefrom accused made a telephonic call on 24.8.2007. 15. PW-10 Surjan Singh deposed that on 31.8.2007 police party came with accused Raj Kumar and inquired from him whether the accused has made a telephonic call from his PCO to which he replied in the affirmative. 16. PW-11 HHC Charan Dass, deposed that on 2.9.2007 when the accused Ramesh was in police custody, he was interrogated by ASI Prem Lal. He stated that on 23.8.2007, Meena Devi was smothered to death by accused Raj Kumar on the morning of 24.8.2007 and quilt (khind) was thrown in the bushes by accused Raj Kumar. Thereafter, Ramesh was taken to the said place and got recovered the khind from the bushes. He admitted in his cross-examination that there are about 100 shops in Dharampur bazaar nearby the Police Post Dharampur and no independent witness was joined by I.O. at the time of recording Ext. PL. 17. PW-12 Sunil Kumar deposed that the police brought quilt (khind) Ext. P-6 from the side of house of accused Ramesh. 18. PW-13 Murari Lal deposed that he was joined in investigation by the police. According to him, accused were not with the police party. Police recovered quilt from the back side of the house of Parkash Chand alias Om Parkash, who was not present there. He was declared hostile and cross-examined by the learned Public Prosecutor. 19. PW-14 Prem Singh deposed that accused Raj Kumar was also with them in the searching party. 20. PW-15 Bhindra Devi deposed that on 13.8.2007 Fixed Deposit of Meena Devi amounting to Rs. 1,20,000/- became due and accused Raj Kumar and his mother insisted to give that amount to them. Raj Kumar was alcoholic. Meena Devi was initially beaten and accused Raj Kumar had entered into compromise and had assured not to give any beatings to the deceased. Accused was having wife like relations with Meena devi and there was dispute pertaining to the land of Swami who wanted to give his property solely to Meena Devi which was not acceptable to Raj Kumar. Meena Devi was initially beaten and accused Raj Kumar had entered into compromise and had assured not to give any beatings to the deceased. Accused was having wife like relations with Meena devi and there was dispute pertaining to the land of Swami who wanted to give his property solely to Meena Devi which was not acceptable to Raj Kumar. In her cross-examination, she deposed that she has stated to the police regarding the demand of Fixed Deposit amount by accused Raj Kumar and his mother Barfi Devi. She admitted in her cross examination that at mark D, it is not so recorded. She also admitted that she has not told the police of the giving of the land by Swami to Meena Devi. 21. PW-16 Sanjeev Kumar has taken photographs vide Ext. P-7 to P-12. 22. Statements of PW-17 HC Dalip Singh, PW-18 HC Raj Kumar, PW-19 ASI Madan Lal, PW-20 SI Sat Parkash and PW-21 Constable Parma Ram are formal in nature. 23. PW-22 Insp. J.R. Thakur deposed that on 25.8.2007 at 11:00 AM, ASI Police Post Dharampur informed him on telephone that a dead body of a female was hanging in Sihan forest with a tree. He alongwith LC Rukmani proceeded to the spot in official vehicle with driver Ramesh Kumar. They reached at the spot at 12:30 PM and found that dead body of Meena Kumari was hanging on cheel tree in Sihan forest with a rope. Photographs were taken. The dead body was brought down. The dead body was got examined through lady constable and through women present on the spot. He filled up the inquest papers. On the spot Jeewan Lal (PW-1) made statement Ext. PA. He sent this statement for registration of the FIR through Constable Bhagat Ram. He prepared the spot map Ext. PP. The dead body was sent for post mortem examination. On 27.8.2007 accused Raj Kumar was interrogated. He made disclosure statement Ext. PC disclosing that he could identify the places and get recover the khind and lady shirt. Thereafter, they brought him to village Sihan. He prepared the spot map Ext. PP. The dead body was sent for post mortem examination. On 27.8.2007 accused Raj Kumar was interrogated. He made disclosure statement Ext. PC disclosing that he could identify the places and get recover the khind and lady shirt. Thereafter, they brought him to village Sihan. The accused led the police party, Dalip and Ram Saran to under construction house of accused Ramesh and Om Parkash and from one room he took out lady shirt which was taken into possession and sealed in a parcel, sealed with seal impression A. Thereafter, the accused identified the place from where rope was alleged to be taken. The accused also took police party to the forest where the dead body was kept. The accused identified the place of hanging of dead body. 24. PW-23 ASI Prem Lal deposed that he conducted partial investigation of the case. He took into possession the post mortem report of the deceased. On 31.8.2007, accused Raj Kumar in the present of witness Prem Singh and Constable Om Chand identified the STD/PCO at Kotali belonging to Surjan Singh. From Surjan Singh, he came to know that accused had made telephonic calls from his PCO on 24.8.2007 to co-accused. He collected call details Ext. P-4 from the PCO of Surjan Singh. He recorded the statement of witnesses. He arrested the accused Ramesh and Om Parkash on 29.8.2007 at 3:25 PM. He recorded the statement Ext. PL in the Police Station, Sarkaghat on 2.9.2007. He also admitted that no independent witness was associated at that time. 25. PW-24 Vivek Banyal has issued post mortem report Ext. PW-24/A. According to his opinion, the death was because of haemorrhagic shock due to rupture of spleen and ante mortem injuries suggesting gagging. Hanging was post mortem. In his cross-examination, he deposed that it was not a death by asphyxia. It was not a case of gagging, but rupture of spleen. He also deposed that it was not a case of gagging, but could be a contributing fact. 26. The statement of PW-1 Jeewan Lal was recorded under Section 154 Cr. P.C. on 25.8.2007 at 4:15 PM, on the basis of which, FIR was registered. Ext. PA is the first version of PW-1 Jeewan Lal. According to the contents of Ext. PA, on 23.8.2007, his grand mother had come to their house. 26. The statement of PW-1 Jeewan Lal was recorded under Section 154 Cr. P.C. on 25.8.2007 at 4:15 PM, on the basis of which, FIR was registered. Ext. PA is the first version of PW-1 Jeewan Lal. According to the contents of Ext. PA, on 23.8.2007, his grand mother had come to their house. At about 8:30 PM, his uncle Raj Kumar came there. He was taking meals with his entire family. His uncle started abusing him and his sister. He threatened to kill them. His sister went to the house of her aunt. The accused has shown knife to him and his mother. Thereafter, his grand mother had taken him inside the room. His grand mother stayed with him for 4-5 minutes. Thereafter, his grand mother got up and went out and bolted the room from outside. He heard noise of beatings from the place where his mother used to sleep. He tried to open the door. However, it was locked. After a considerable time, his uncle accused Raj Kumar alias Raju came and opened the door and told him that his mother has run away. His grand mother also came to the room and told him that his mother has run away. He told this incidence to his aunt Shanti Devi. They searched for his mother. He informed his maternal uncle by way of telephone. The co-villagers also searched for his mother. When they were searching his mother at about 11:00 AM, at telephone was received by his maternal uncle from Sh. Nek Ram that the dead body of his mother was hanging in a Ghatta Bahu forest. PW-1 Jeewan Lal has made major improvements while appearing as witness before the Court. In his deposition before the Court, he stated that he could not come out of the room since the door was bolted from outside. He peeped from the window and noticed that accused Raju, Ramesh Kumar and Om Parkash and Barfi Devi were taking his mother towards the house of accused Om Parkash. He heard cries of his mother from the side of house of his uncle Om Parkash. Thereafter, the accused came and opened the door and told him that his mother has run away. He heard cries of his mother from the side of house of his uncle Om Parkash. Thereafter, the accused came and opened the door and told him that his mother has run away. These persons asked him to make a telephone call to maternal uncle Anant Ram and accused Om Parkash threatened with gun and directed him to tell his uncle (mama) whatever they intended to say and they insisted him to tell his mama on phone that his mother has run away from the house. He accordingly informed his uncle. In Ext. PA, PW-1 Jeewan Lal has not stated that he has seen the accused from the window taking his mother towards the house of Om Parkash. It is not stated by him in Ext. PA that he has heard the cries of his mother coming from the house of accused Om Parkash. He has also not stated in Ext. PA that he was threatened by one of the accused that he should narrate their version to his maternal uncle Anant Ram. In his cross-examination, he has admitted that these things, he had told for the first time to the Court. 27. PW-1 Jeewan Lal, in his cross-examination has admitted that there are about 15-20 house in his village. The houses of Dev Ram, Lalu Ram, Kanshi Ram, Om Chand, Hari Singh and Joginder Singh are adjoining to their house. In the cross-examination by the learned Advocate appearing on behalf of Om Parkash and Ramesh, he admitted that houses of Devinder Ram and Labh Singh are near to their house. The house of Devinder alias Debu is at a distance of 10 feet from their house. The house of Labh Singh was in front of his house and the house of Kanshi Ram is adjoining to his house on the back side. Bablu, son of Dev Ram was present in the house on that day. Houses of Dev Ram and Om Chand were also adjoining to his house. He also admitted in his cross-examination that accused Om Parkash and Ramesh had gone to the house of Bihari Lal to attend puja ceremony and came back late at night. It is not believable that if the deceased was given beatings and she was crying, the cries could not be heard by the occupants of the houses in the vicinity of the house of PW-1 Jeewan Lal. It is not believable that if the deceased was given beatings and she was crying, the cries could not be heard by the occupants of the houses in the vicinity of the house of PW-1 Jeewan Lal. The house of Devinder is only at a distance of 10 feet. The house of Labh Singh was in front of their house. 28. The case is entirely based on circumstantial evidence. In a case of circumstantial evidence, motive also plays an important role. The prosecution has not attributed specifically about the motive of the accused to kill his sister-in-law. There are only bald assertions made by PW-3 Anant Ram that one Swami was not interested in giving his estate to Raju Ram and Swami Ram was kind enough towards his sister. The accused Om Parkash and Ramesh were also interested in his land. To the similar effect is the statement of PW-15 Bhindra Devi who deposed that there was a dispute pertaining to the land of Swami Ram who wanted to give his property solely to Meena Devi, which was not acceptable to accused Raj Kumar. There are no details of the property owned by Swami Ram and when he intended to give the land to Meena Devi. 29. According to PW-15 Bhindra Devi, one FD amounting to Rs. 1,20,000/- matured on 13.8.2007 and accused wanted the amount to be paid to them. The FD has not been placed on record. It has come on record that accused Raj Kumar and deceased were living in joint family. Even hypothetically, if it is accepted, that the FD matured on 13.8.2007, the accused would not have killed his sister-in-law for paltry sum of Rs. 1,20,000/- and when he was also member of the joint family. PW-15 Bhindra Devi has stated in her cross-examination that she had narrated to the police regarding the demand of FD. However, she was confronted with the statement mark D where it is not so recorded. She also admitted categorically in her cross-examination that she has not narrated to the police regarding giving of land by Swami Ram solely to Meena Devi. 30. PW-5 HHC Bhagat Ram was a witness to the disclosure statement Ext. PC. He is a police personnel. The prosecution has not explained as to why independent witness was not associated during the recording of disclosure statement Ext. 30. PW-5 HHC Bhagat Ram was a witness to the disclosure statement Ext. PC. He is a police personnel. The prosecution has not explained as to why independent witness was not associated during the recording of disclosure statement Ext. PC whereby the accused Raj Kumar has made a statement to get the khind and shirt recovered from the under constructed house of accused Ramesh and Om Parkash. 31. According to PW-6 Dalip Singh, accused Raj Kumar led the police party to the house of Ramesh. Accused Raj Kumar took out a lady shirt from a big basket (tokra). However, in his cross-examination, he admitted that he has not stated in his statement mark D about the taking of shirt from the basket. According to him, the accused Ramesh Kumar took the police alongwith them to septic tank from where he got the khind Ext. P-6 recovered. However, in his cross-examination, he admitted that there is no mention of taking of khind-quilt from the septic tank. Rather, he admitted that there was no mention of khind at all in his statement mark D. 32. PW-11 HHC Charan Dass has deposed that accused Ramesh was in police custody. According to him, on 23.8.2007, Meena Devi was smothered to death by accused Raj Kumar and on the morning of 24.8.2007, the quilt-khind was thrown in the bushes by accused Raj Kumar. He admitted in his cross-examination that no independent person was joined by the I.O. while recording Ext. PL. PW-12 Sunil Kumar has given entirely different version. According to him, the police had brought quilt-khind from the side of house of accused Ramesh. He was declared hostile. PW-13 Murari Lal deposed that none of the accused were with the police party. Police has recovered quilt-khind from the back side of the house of accused Parkash Chand alias Om Parkash. He was also declared hostile. 33. PW-3 Anant Ram, in his examination-in-chief has deposed that on 23.8.2007, he received a telephonic call from his nephew Jeewan Lal (PW-1) that his mother has gone missing. The version of PW-1 Jeewan Lal that one of the accused Om Parkash had threatened him with the gun and told him to inform his maternal uncle that his mother has gone missing cannot be believed. If it had happened in that manner, he was bound to mention this important fact in his statement Ext. PA. 34. The version of PW-1 Jeewan Lal that one of the accused Om Parkash had threatened him with the gun and told him to inform his maternal uncle that his mother has gone missing cannot be believed. If it had happened in that manner, he was bound to mention this important fact in his statement Ext. PA. 34. Now, we will advert to the medical evidence. According to PW-24 Dr. Vivek Banyal, the death was because of haemorrhagic shock due to rupture of spleen and ante mortem injuries suggesting gagging. We have gone through the post mortem report Ext. PW-24/A. There are no signs of gagging/smothering. There is contradiction in the statement of PW-24 Dr. Vivek Banyal. In his examination-in-chief, as stated hereinabove, the cause of death was haemorrhagic shock due to rupture of spleen and ante mortem injuries suggesting gagging. However, in his cross-examination, he has deposed that it was not a case of gagging, but rupture of spleen. In smothering, the asphyxia is bound to be there. He only noticed rupture of spleen. Spleen is one of the most protected organ and can not be ruptured unless and until excessive force is used repeatedly. In the case of asphyxia, the face may be pale or suffused, the lips are vivid, eye balls are prominent and the tongue sometimes protruded. Bloody froth comes out of the mouth and the nostrils. The doctor has not noticed any froth coming out from the nose and mouth of the deceased. Internal appearance noted by PW-24 Dr. Vivek Banyal, also does not suggest gagging. According to him, the lips were swollen with features of ante mortem injuries only. In order to prove that the death was caused by suffocation, it is necessary to look into the evidences in the shape of external marks surrounding the mouth and nostrils or on inside the mucosal surface, or on the chest, or the presence of foreign bodies of Tardieu spots. PW-24 Dr. Vivek Banyal, has not noticed any external injury or struggle except for bruise over the abdomen of interior wall. In the case of death by asphyxia, the right side of the heart is often filled of dark fluid blood and the left is empty. However, PW-24 Dr. Vivek Banyal in his findings has noted that all the ventricles of the heart were empty. 35. In the case of death by asphyxia, the right side of the heart is often filled of dark fluid blood and the left is empty. However, PW-24 Dr. Vivek Banyal in his findings has noted that all the ventricles of the heart were empty. 35. According to Modi’s textbook of Medical Jurisprudence and Toxicology (24th Edition 2011), the rupture of a normal spleen is very rare unless caused by considerable crushing and grinding force, such as the passing of a carriage or motor car over the body, or by a crush in a railway accident, or by a fall from a very great height; in such cases, it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. PW-24 Dr. Vivek Banyal has not opined that the ribs were also broken. According to him, walls, ribs, cartilages were normal and no injury was detected. 36. The prosecution has failed to prove the case against the accused beyond reasonable doubt. In order to prove the case based on circumstantial evidence, the entire chain should be complete and the evidence of the circumstances must point out towards the guilt of the accused. There is material variance in the statement of PW-1 Jeewan Kumar vis-à-vis Ext. PA. The specific motive has not been attributed by the prosecution except the bald assertions of witnesses which have been discussed in detail hereinabove. The statement of PW-24 Dr. Vivek Banyal is full of contradictions. It cannot be relied upon. The prosecution has not examined independent witnesses, though available. 37. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 4.10.2008 rendered by learned Sessions Judge, Mandi, in Sessions Trial No. 1 of 2008 is set aside. The accused is acquitted of the charge framed under Sections 302 and 201 read with Section 34 IPC. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 38. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.