Judgment : (Per: V.K. Bist, J.) This Appeal, preferred under Section 374(2) of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against the judgment and order dated 12.03.2013, passed by Special Judge (C.B.I.)/Addl. District & Sessions Judge, Nainital, in Sessions Trial No.187 of 2006, whereby said court has convicted accused/appellant Mukesh Kumar Kashyap under Section 302 and 201 I.P.C., sentenced him imprisonment for life and directed to pay fine of Rs. 20,000/- under section 302 IPC, in default of payment of fine the convict is directed to undergo simple imprisonment for a further period of one year. He has been further sentenced to rigorous imprisonment for a period of three years and directed to pay fine of Rs. 5,000/- under section 201 IPC, in default of payment of fine, he has been directed to undergo simple imprisonment for a further period of three months. 2. Heard learned counsel for the appellant, learned Brief Holder for the State, and perused the lower court record. 3. According to prosecution story, on 07.05.2006, P.W.1 S.O. Chandan Singh Jadaut lodged a report on the basis of verbal information that on 07.05.2006 at about 7:53 p.m., he was on duty at Ghorakhal TIRAHA (an intersection of three roads) with driver Narendra Singh. At that time, Mukesh Gururani (informer) resident of Bhowali, from his mobile no. 9411162326 informed him in his mobile no. 9412403548 that near Shyamkhet Village at Bhowali-Ramgarh road, one lady, in a burnt condition, was screaming aside the road. On receiving the information, he (P.W.1), alongwith his driver, in government jeep, reached at the spot. At Shyamkhet Village, near Bhowali-Ramgarh road, the lady was screaming in ablaze condition, aside the road. With the help of public, she was taken to C.H.C. Bhowali for her treatment. At C.H.C. Bhowali, lady Medical Officer gave her primary treatment and after that, she was referred to Sushila Tiwari Hospital, Haldwani. She was taken to hospital in government ambulance with Constable Lalit Upadhyaya and Constable Harish Ram. Probably, she was set on fire by unknown persons. During treatment at C.H.C. Bhowali, in front of him, deceased disclosed to Medical Officer that she is resident of Kashipur, Katorataal and her husband’s name is Mukesh. Beside it, she did not disclose anything, due to shock. On the basis of said report, First Information Report (Ex.A1) was lodged and crime no. During treatment at C.H.C. Bhowali, in front of him, deceased disclosed to Medical Officer that she is resident of Kashipur, Katorataal and her husband’s name is Mukesh. Beside it, she did not disclose anything, due to shock. On the basis of said report, First Information Report (Ex.A1) was lodged and crime no. 603 of 2006 was registered in respect of offence punishable under section 307 IPC at Police Station Bhowali, District Nainital, against unknown person. P.W. 14 S.I. Nand Ram, Investigating Officer, inspected the spot, prepared site plan (Ex. A8), recovered, a five-liter jericane of kerosene, sleeves of burnt blouse (brown in colour), burnt underskirt, burnt saree and matchbox and prepared recovery memo. The investigation was further transferred to S.I. Vijay Singh Chaudhary, who prepared inquest report and post mortem report and also prepared C.D. of the same. Lastly, the investigation was taken up by S.S.I. Mahesh Chandra, who interrogated the witnesses, started investigation and after completion of investigation, submitted charge sheet against accused Mukesh Kumar Kashyap, for his trial in respect of offence punishable under Sections 302, 201, 34, 120 B I.P.C. 4. The Chief Judicial Magistrate, Nainital, on receipt of the charge sheet, committed the case to the court of Sessions for trial. The learned Sessions Judge, Nainital, framed charge of offence punishable under Section 302, 120B, 201/34 I.P.C, to which accused pleaded not guilty and claimed to be tried. On this, prosecution got examined eighteen witnesses. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he alleged that the evidence adduced against him is false. After hearing the parties, the trial Court found the accused/appellant Mukesh Kumar Kashyap guilty of charge of offences punishable under Sections 302 and 201 of I.P.C., and convicted him accordingly. Aggrieved by said judgment and order dated 12.03.2013, this appeal is preferred by the convict Mukesh Kumar Kashyap. 5. P.W.12 Dr. S. Anwar recorded following ante mortem injuries on the body of the deceased:- Superficial to deep burn found all over the body except soles of both feet to great toes of both feet. A line of redness to echymosis found between burnt and unburnt tissue. On further exploration, pus particles are found at different organs like lungs and omentum. Medical officer opined that cause of death was due to septicemia due to ante-mortem burn injury. 6. A line of redness to echymosis found between burnt and unburnt tissue. On further exploration, pus particles are found at different organs like lungs and omentum. Medical officer opined that cause of death was due to septicemia due to ante-mortem burn injury. 6. P.W.1 Chandan Singh Jadaut (subscriber of the report) who in his testimony corroborated the averments made in the F.I.R. He proved the report (Ext. A-1). 7. P.W.2 Mukesh Gururani (complainant) has stated that on 07.05.2006, he was coming with his friend Deepak Pandey from Ramgarh to Bhowali. At 7:30 p.m., when they reached at Ramgarh-Bhowali road, at Shyamkhet, they saw that one lady, in a burnt condition, was screaming aside the road. They stopped there, and from his mobile phone, he informed S.O. Chandan Singh Jadaut (P.W.1) about the incident. On receiving the information, S.O. came at the spot, and with their help, took the burnt lady to Bhowali Hospital, and thereafter they came back along with the police at the spot. The Investigating Officer took a five-liter jericane, burnt sleeves of blouse and one burnt under skirt, burnt saree and one matchbox in his possession and prepared recovery memos. All the three memos were signed by Mukesh Gururani and Deepak. He proved the recovery memo (Ex.A2, Ex.A3 and Ex. A4). 8. P.W.3 Prem Lata is the real sister of deceased (Chandra). She, on oath, has stated that accused Mukesh Kumar is husband of her sister. She further stated that at the time of her sister’s marriage, Mukesh was the driver of the owner of Koyla Depot. Before one and half year from the death of her sister, Mukesh got job in MIT College. There, he was driving the car of the Director of the College. In that vehicle, he also used to rove with Poonam, daughter-in-law of the Director. She further stated that her sister Chandra (deceased) was illiterate. Her sister Chandra and accused Mukesh came Kashipur, one week before the incident, and while exchanging their problems, they quarreled in which Mukesh demanded Rs.10,000/- from her. Vijay (her brother) gave Rs.10,000/- to Mukesh. She also stated that Chandra (deceased) told her that Mukesh had relations with Poonam; he used to live there, and used to return home at 4:00am. When her sister (deceased) objected, the accused told her to leave the place else he would kill her by pouring kerosene on her. Vijay (her brother) gave Rs.10,000/- to Mukesh. She also stated that Chandra (deceased) told her that Mukesh had relations with Poonam; he used to live there, and used to return home at 4:00am. When her sister (deceased) objected, the accused told her to leave the place else he would kill her by pouring kerosene on her. She stated that Chandra also requested this witness to come to Moradabad and talk to her mother-in-law, father-in-law and Poonam madam. Chandra (deceased) also told her that the family members of Mukesh also acquainted with the relations of Mukesh and Poonam. After two days, this witness alongwith the victim, went to the flat of Poonam. They met Poonam and requested Poonam to leave the husband of the deceased, as she had two minor children. But Poonam refused by saying that her relations with Mukesh had gone beyond the limit. This witness also stated that appellant Mukesh, Poonam, parents of the appellant and brother of the appellant had killed Chandra. 9. P.W.4 Meera , P.W. 5 Meena, P.W.6 Sunil Kumar are the neighbours of the accused, but they have not supported the allegation that deceased Chandra died due to discord in between the couple or with in-laws. P.W.7 Kishan Chand is uncle of the deceased. He also corroborated the same story as narrated by P.W.3 Prem Lata. He also stated that on 13.05.2006, the neighbour of Chandra @ Chanchal (deceased) rang his nephews that Mukesh was missing from six-seven days and mother-in-law and father-in-law were also not at their home. On receiving information, they left for Moradabad and came to know that accused Mukesh and his family members had left the house, which they had taken on rent in Himgiri Colony. After that, his nephew Prem Gopal had lodged a missing report of Chandra @ Chanchal at Police Station Civil Line, Moradabad. On making enquiry at Moradabad, they came to know that Mukesh had illicit relation with the daughter-in-law of the Director. In Kashipur, there was an announcement that a lady, in a burnt condition, was hospitalized in a hospital at Haldwani, who, in a semiconscious condition, saying Mukesh, Kashipur and Katorataal. On hearing this information, they reached Sushila Tiwari Hospital, Haldwani and came to know that cremation of body of the deceased had already been done on 10.05.2006. In Kashipur, there was an announcement that a lady, in a burnt condition, was hospitalized in a hospital at Haldwani, who, in a semiconscious condition, saying Mukesh, Kashipur and Katorataal. On hearing this information, they reached Sushila Tiwari Hospital, Haldwani and came to know that cremation of body of the deceased had already been done on 10.05.2006. At Police Station Bhowali, they saw clothes, jewellery and photograph of the deceased and identified that the same belong to the deceased. 10. P.W.9 Harkesh, in his statement, stated that he knows Mukesh and Chanchal (deceased). He used to come to the house of the deceased. On 07.05.2006 at about 5:30/ 6:00 p.m., when he was waiting for bus at Haldwani Bus stand, he saw that accused Mukesh was going towards Nainital Road in white ambassador car. When he called Mukesh, he saw him and hurriedly went towards Nainital road. Only the glass of driver side was open. 11. P.W.11 Harshvardhan Goel in his statement has stated that he is Registrar in MIT College. He knows the accused. Accused was appointed as driver in the Institute and driver of Director M.L. Kapoor. On 07.05.2006, the appellant took Ambassador car at 12:48 pm and returned with the car at 1:15 (night). 12. We have considered the submission of learned counsel for the parties. 13. The question before us, as to whether on the date time and place, the accused/appellant, in furtherance of common intention, by pouring kerosene set on fire on Chandra and committed her murder and whether the judgment and order under appeal suffers from any illegality, infirmity or perversity. 14. P.W.1 Chandan Singh Jadaut is subscriber of the report. In the year 2006 he was posted as S.O. of Bhowali police station. After receiving information, he reached at the spot and took the victim to Bhowali hospital. This witness stated that during treatment, the victim disclosed that she belongs to katorataal, Kashipur and her husband’s name is Mahesh. Nothing was told by the victim against her husband. P.W.2 Mukesh Gururani is the person who first saw the victim in burnt condition. According to this witness, the victim was found screaming and saying save-save, but she did not disclose anybody’s name. Thus, in the statement of these two witnesses, the involvement of the appellant is not found. Nothing was told by the victim against her husband. P.W.2 Mukesh Gururani is the person who first saw the victim in burnt condition. According to this witness, the victim was found screaming and saying save-save, but she did not disclose anybody’s name. Thus, in the statement of these two witnesses, the involvement of the appellant is not found. The trial court by referring the statement of P.W.9 and P.W.11, reached to the conclusion that appellant committed crime. P.W.9 Harkesh, in his statement, stated that on 07.05.2006 at about 05:30/6:00 he was standing outside bus station Haldwani. He saw the appellant, driving Ambassador car. He tried to stop the appellant, but appellant quickly went towards Nainital road. This witness also stated that he saw only the accused/appellant, as only driver’s side glass was open. P.W.11 Harsha Vardhan Goel stated that at the time of incident he was Registrar of the Institute; appellant was driver and used to drive the vehicle of Director; on 07.05.2006 the appellant took the Ambassador car at 12:48 p.m and returned with the car at 01:15 (night). Though statement of these two witnesses indicate that on 07.05.2006 from 12:48 p.m. to 01:15 (night) the appellant was out of the Institute with car and also went towards Nainital, but same is not sufficient to prove that appellant killed his wife by burning her near Bhowali. Nobody can be punished on the basis of suspicion. In our view, the prosecution failed to prove the involvement of the appellant in the crime beyond reasonable doubt. The appellant deserves benefit of doubt. 15. For the reasons as discussed above, the appeal deserves to be allowed. The same is allowed. Impugned judgment and order dated 12.03.2013, passed by Special Judge C.B.I./Addl. District and Sessions Judge, Nainital, in Sessions Trial No.187 of 2006 is hereby set aside. He is acquitted of the charge of offences punishable under Section 302 and 201 I.P.C. He is in jail. He be set free if not required in any other matter. Let the lower court record be sent back and copy of this judgment be sent to the Superintendent of Jail concerned.