Hon'ble Arun Tandon,J. Hon'ble Akhtar Husain Khan,J. (Delivered by Hon'ble Akhtar Husain Khan, J.) Present appeal has been filed by accused-appellants Ram Autar and Rajendra, under Section 374 Cr.P.C. against judgement and order dated 19.08.1994 passed by Session Judge, Shahjahanpur in S.T. No. 247 of 1993, State Vs. Ram Autar and others, under Section 302/34 I.P.C., P.S. Khutar, District Shahjahanpur; whereby learned Session Judge, Shahjahanpur has convicted accused-appellants Ram Autar and Rajendra for offence punishable under Section 302 read with Section 34 I.P.C. and sentenced each of them there under to life imprisonment. Sri Anuj Bajpai, Advocate appeared for accused-appellants and Sri M.S. Yadav, learned A.G.A. appeared for State/respondent. We have heard the parties and perused the records. According to F.I.R. Exhibit Ka.01 in brief prosecution version is that complainant Savitri Devi w/o Ram Asrey is resident of Kharagpur, P.S. Khutar, District Shahjahanpur. Her husband's cousin brother Ram Autar had illicit relation with wife of Rajendra who was residing in his house. Bitto w/o Ram Autar was prohibiting her husband Ram Autar from illicit act. Due to which Rajendra and Ram Autar used to beat Bitto. In continuation of said evil design they had been beating Bitto in night till 2:00 a.m. Complainant Savitri Devi, her nanand Savitri Devi w/o Laljeet and Maya Devi, sister of Bitto pacified them. Thereafter, next day on 05.01.1993 when Bitto was not seen till 12:00 noon, complainant Savitri Devi went to see her at her house. She saw the door was closed and bolted from outside, when she opened the door she saw hanging dead body of Bitto. In F.I.R. Exhibit Ka.01 complainant Savitri Devi has mentioned that after having murdered Bitto accused-appellants Rajendra and Ram Autar have hanged her. Complainant Savitri Devi w/o Ram Asrey presented written report Exhibit Ka.01 to P.S. Khutar, District Shahjahanpur on 05.01.1993 at 13:15 p.m. whereupon Crime No. 4 of 1993, under Section 302 I.P.C. was registered against accused-appellants Ram Autar and Rajendra in P.S. Khutar, District Shahjahanpur and investigation was started by police. Thereafter, inquest report of deceased Bitto was prepared. Dead body of Bitto was sent for post mortem in sealed cover after having completed necessary formalities. Later on, investigation was completed by police in accordance with law. Thereafter, inquest report of deceased Bitto was prepared. Dead body of Bitto was sent for post mortem in sealed cover after having completed necessary formalities. Later on, investigation was completed by police in accordance with law. After having completed investigation police submitted charge sheet against accused-appellants Ram Autar and Rajendra for offence punishable under Section 302 I.P.C., whereupon concerned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the Court of Session for Trial of both accused. Thereafter Session Trial No. 247 of 1993, State Vs. Ram Autar and another, under Section 302/34 I.P.C. was registered in the Session Court of District Shahjahanpur. Learned Session Judge, Shahjahanpur framed charge against accused-appellants Ram Autar and Rajendra for offence punishable under Section 302 read with Section 34 I.P.C. Accused-appellants pleaded not guilty and claimed to be tried. Prosecution examined PW1 complainant Savitri Devi, PW2 Maya Devi, PW3 Savitri w/o Laljeet, PW4 Roop Ram, PW5 Ram Dayal, PW6 Satyapal, PW7 Dr. V.C. Khanna and PW8 Ram Pal Singh. After evidence of prosecution statements of accused-appellants were recorded under Section 313 Cr.P.C. Both accused-appellants stated in their statement under Section 313 Cr.P.C. that they have been falsely implicated. No evidence was adduced on behalf of accused-appellants in defence. Learned Session Judge heard the argument of the parties and passed impugned judgement and order dated 19.08.1994 whereby he has convicted and sentenced accused-appellants as mentioned above. Learned counsel for the accused-appellants contended that out of eight witnesses examined by prosecution PW1 complainant Savitri Devi, PW2 Maya Devi, PW3 Savitri w/o Laljeet, PW4 Roop Ram, PW5 Ram Dayal and PW6 Satyapal are alleged to be witnesses of fact and occurrence but all of them have not supported the version of prosecution in their statements on oath. Rest witnesses are only formal witnesses. Therefore, there is no evidence on record to hold accused-appellants guilty for offence punishable under Section 302 read with Section 34 I.P.C. Learned counsel for the accused-appellants contended that conviction and sentence recorded by Trial Court is against evidence as well as law. Learned counsel for the accused-appellants prayed that appeal should be allowed and accused-appellants should be acquitted. Learned A.G.A. supported the conviction and sentence recorded by Trial Court and contended that learned Session Judge has rightly convicted accused-appellants for offence punishable under Section 302 read with Section 34 I.P.C. Learned A.G.A. prayed that appeal should be dismissed. Learned counsel for the accused-appellants prayed that appeal should be allowed and accused-appellants should be acquitted. Learned A.G.A. supported the conviction and sentence recorded by Trial Court and contended that learned Session Judge has rightly convicted accused-appellants for offence punishable under Section 302 read with Section 34 I.P.C. Learned A.G.A. prayed that appeal should be dismissed. We have considered the submissions made by the parties. PW1 complainant Savitri Devi w/o Ram Asrey, PW2 Maya Devi, PW3 Savitri w/o Laljeet, PW4 Roop Ram, PW5 Ram Dayal and PW6 Satyapal are all witness of fact but all of them have not supported version of prosecution in their statements on oath. PW7 Dr. V.C. Khanna has stated in his statement that on 06.01.1993 he was posted in District Hospital Shahjahanpur on that day at 3:15 p.m. he contended post mortem of Bitto w/o Ram Autar, resident of Mohalla Kharagpur, P.S. Khutar, District Shahjahanpur. The dead body was brought by Constable 213 Badam Singh and Constable 854 Suresh Chandra, P.S. Khutar and was identified by them. PW7 DR. V.C. Khanna has proved the post mortem report of deceased Bitto Exhibit Ka.02. He has stated in his statement that cause of death is asphyxia due to hanging. PW8 S.I. Ram Pal Singh is the Investigating Officer. He has stated in his statement that on 05.01.1993 he was posted in P.S. Khutra as S.I. He has stated that Charan Lal Head Moharrir was posted with him. He has proved chik F.I.R. Exhibit Ka.03 and G.D. relating registration of Crime Exhibit Ka.04 by identifying the writing and signature of said Head Moharrir. He has stated that original chik F.I.R. and G.D. bears his signature also. PW8 S.I. Ram Pal Singh has stated that investigation of this crime was entrusted to him. He recorded statements of witnesses Savitri Devi, Maya Devi, Savitri Devi w/o Laljeet, Roop Ram, Ram Dayal and Satyapal. He has stated that on 05.01.1993 he went to place of occurrence, dead body of Bitto was hanging in the room. He has stated that he prepared inquest report, chalan nash, photonash, and letters to C.M.O. and kept the dead body in sealed cover. In his statement, he has proved inquest report Exhibit Ka.05, challan nash Exhibit Ka.06, photonash Exhibit Ka.07 and two letters written to C.M.O. Exhibit Ka.08 and Ka.09. He has stated that he prepared inquest report, chalan nash, photonash, and letters to C.M.O. and kept the dead body in sealed cover. In his statement, he has proved inquest report Exhibit Ka.05, challan nash Exhibit Ka.06, photonash Exhibit Ka.07 and two letters written to C.M.O. Exhibit Ka.08 and Ka.09. PW8 S.I. Ram Pal Singh has stated in his statement that he took into possession the bed sheet in which the dead body of deceased Bitto was hanging and prepared recovery memo Exhibit Ka.11. He has stated that he inspected place of occurrence and prepared site plan of place of occurrence Exhibit Ka.12. PW8 S.I. Ram Pal Singh has stated in his statement that later on on 07.01.1993 investigation was transferred to S.I. P.N. Yadav who completed the investigation and submitted charge sheet. He has proved charge sheet Exhibit Ka.13 by identifying handwriting and signature of S.I. P.N. Yadav. PW8 S.I. Ram Pal Singh has proved statements of PW1 complainant Savitri Devi, PW2 Maya Devi, PW3 Savitri Devi, PW4 Roop Ram, PW5 Ram Dayal and PW6 Satyapal recorded under Section 161 Cr.P.C. Exhibit Ka.14 to Ka.19 have been marked on copies of said statements. PW8 S.I. Ram Pal Singh has stated in his statement that when he entered into the room, he saw the dead body of deceased Bitto. Feets of deceased Bitto were about 3 fit above ground and there was nothing in the room by which the deceased might reach such height. He has further stated that there was no cot, furniture or almirah in the room. There were only clothes and utensils. PW8 S.I. Ram Pal Singh has further stated that head of deceased was about one balist (hand) below hook of ceiling and the bed sheet was tied in the hook of celing by using kanth. We have examined the evidence on record carefully. PW1 complainant Savitri Devi has not supported version of F.I.R. Exhibit Ka.01. But she has admitted her signature on it. In F.I.R. Exhibit Ka.01 it has been mentioned that after having murdered Bitto, Ram Autar and Rajendra have hanged her. Statement of PW7 Dr. V.C. Khanna as well as post mortem report of deceased Bitto Exhibit Ka.02 shows that cause of death of deceased Bitto is asphyxia as a result of hanging. PW7 Dr. In F.I.R. Exhibit Ka.01 it has been mentioned that after having murdered Bitto, Ram Autar and Rajendra have hanged her. Statement of PW7 Dr. V.C. Khanna as well as post mortem report of deceased Bitto Exhibit Ka.02 shows that cause of death of deceased Bitto is asphyxia as a result of hanging. PW7 Dr. V.C. Khanna has stated in his examination in chief itself that on the basis of ante mortem injuries found on the dead body of deceased Bitto he was not of the view that deceased Bitto was killed first and hanged later on. Therefore, the version of F.I.R. Exhibit Ka.01 that after having murdered Bitto, accused-appellants Ram Autar and Rajendra had hanged her is contradicted by post mortem report Exhibit Ka.02 as well as statement of PW7 Dr. V.C. Khanna. It is apparent from statements of witnesses examined by prosecution that there is no direct evidence regarding murder of deceased Bitto. Learned Trial Court has held accused-appellant guilty for offence punishable under Section 302 read with Section 34 I.P.C. on the basis of circumstantial evidence. For the sake of convenience concluding portion of impugned judgement of Trial Court is reproduced below; "From the very beginning there was no case of the prosecution that any of the witnesses had seen the hanging. In the F.I.R. the statement that Ram Autar and Rajendra had hanged Smt. Bitto appears to be based on belief from the circumstances existing at that time. The circumstances noticed above also point out at the probability of the hanging of Smt. Bitto by Ram Autar and Rajendra. Smt. Bitto did not have many other injuries on her person. It means that she was tight hold of the culprits when she was being hanged. It was least likely that one culprit would have managed the hanging of Smt. Bitto, who was average built. No outsider is shown to have access to the room of Ram Autar. It, therefore, cannot be said that any outsider had hanged Smt. Bitto. The only possible conclusion is that the hanging was arranged and made by accused Ram Autar and accused Rajendra. The chain of circumstances proved by the prosecution evidence conclusively proves that Ram Autar and Rajendra accused committed murder of Smt. Bitto by hanging." In the case of Kanhaiya Lal Vs. The only possible conclusion is that the hanging was arranged and made by accused Ram Autar and accused Rajendra. The chain of circumstances proved by the prosecution evidence conclusively proves that Ram Autar and Rajendra accused committed murder of Smt. Bitto by hanging." In the case of Kanhaiya Lal Vs. State of Rajasthan; (2014) 2 S.C.C. (Cri.) 413, Hon'ble Apex Court has held that, "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. 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 the case of Kanhiya Lal Vs. State of Rajasthan (supra) Hon'ble Apex Court has further held that, "The circumstances of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion by itself cannot lead to proof of guilt against the appellant." Perusal of statement of all witnesses examined by prosecution shows that PW1 complainant Savitri Devi, PW2 Maya Devi, PW3 Savitri Devi w/o Laljeet, PW4 Roop Ram, PW5 Ram Dayal and PW6 Satyapal are witnesses of fact but all of them have not supported prosecution version. Only PW8 S.I. Ram Pal Singh has stated about suspicious circumstances found at the time of inspection of place of occurrence. PW8 S.I. Ram Pal singh has stated that one tooth of deceased Bitto was found broken in which little bleeding was present. In inquest report Exhibit Ka.05 it has been mentioned that frontal upper tooth was broken but there is no mention of bleeding. PW8 S.I. Ram Pal Singh has admitted in cross-examination made by defence at page 28 (page 30 of paper book) that he has not mentioned in inquest report regarding bleeding in broken tooth. In inquest report Exhibit Ka.05 it has been mentioned that frontal upper tooth was broken but there is no mention of bleeding. PW8 S.I. Ram Pal Singh has admitted in cross-examination made by defence at page 28 (page 30 of paper book) that he has not mentioned in inquest report regarding bleeding in broken tooth. It is relevant to mention that in post mortem report of deceased Bitto Exhibit Ka.02 in column 4 regarding buccal cavity, teeth 16/16 have been written. No entry of missing tooth or broken tooth has been made in post mortem report Exhibit Ka.02. PW7 Dr. V.C. Khanna has stated in cross-examination made by defence at page 22 (page 24 of paper book) that no teeth of deceased Bitto was broken. Thus the post mortem report Exhibit Ka.02 as well as statement of PW7 Dr. V.C. Khanna contradicts the inquest report Exhibit ka.05 as well as statement of PW8 S.I. Ram Pal Singh on the fact that one tooth of Bitto was broken. Post mortem is done with minute observation and Doctor is expert of this field. Therefore, we are of the view that statement of PW7 Dr. V.C. Khanna as well as post mortem report of deceased Bitto Exhibit Ka.02 shall prevail over inquest report Exhibit Ka.05 and statement of PW8 S.I. Ram Pal Singh. PW8 S.I. Ram Pal Singh has stated in his statement that dead body of deceased Bitto was hanging from ceiling. Her feet were about three fit above ground and her head was one hand (balist) below hook of ceiling. PW8 S.I. Ram Pal Singh has further stated that deceased was hanging through a bed sheet. One end of bed sheet was knotted in her neck and the other end of bed sheet was knotted in the hook of ceiling. He has stated that height of hook of ceiling was not approachable without use of something for escalating height. But in the room there was nothing which might have been used for escalating the height. PW8 S.I. Ram Pal Singh has stated in examination in chief itself that he got opened knot of bed sheet from hook of ceiling by neighbours of deceased Bitto who opened the knot from hook by standing on cot. Thus it is apparent that height of hook of ceiling may be touched by standing on cot. PW8 S.I. Ram Pal Singh has stated in examination in chief itself that he got opened knot of bed sheet from hook of ceiling by neighbours of deceased Bitto who opened the knot from hook by standing on cot. Thus it is apparent that height of hook of ceiling may be touched by standing on cot. PW8 S.I. Ram Pal Singh has stated in cross-examination that he has not mentioned length, width and height of room either in inquest report or in site plan. He has further stated in cross-examination that he has not made entry of articles found in the room. He has stated in cross-examination that he has given statement about condition of room with his memory. Thus it is apparent that no inventory of articles found in room has been made by Investigating Officer. Admittedly room was residential and was used for dwelling of accused-appellants and their wives. Therefore, availability of cot etc. in the room may not be ruled out. Therefore, in absence of inventory of articles found in room statement of PW8 S.I. Ram Pal Singh may not be believed. Perusal of statement of PW7 Dr. V.C. Khanna as well as post mortem report Exhibit Ka.02 shows that following ante mortem injuries were found on the dead body of deceased Bitto in post mortem; 1) An abrasion 0.8 x 0.5 cm on inner side of left elbow scab present. 2)Ligature mark 9cm x 2cm on anterior aspect of neck between large peal prominence and chin, extending obliquely upwards on both sides up to angle of mandible Base hand and parchment like, reddish brown, on opening - subcut tissue is dry, glistening. Above injury no. 1 of deceased Bitto may be caused by friction and description of this injury mentioned in post mortem report Exhibit Ka.02 shows that scab was present on this injury. Scab found on this injury shows that this injury was not a fresh injury. Injury no. 2 of the deceased Bitto as mentioned above is the result of hanging. No other ante mortem injury was found on body of deceased Bitto. Therefore, post mortem report Exhibit Ka.02 as well as statement of PW7 Dr. V.C. Khanna falsifies the version of F.I.R. Exhibit Ka.01 that deceased Bitto was being beaten by accused-appellants Ram Autar and Rajendra in the night of occurrence. No other ante mortem injury was found on body of deceased Bitto. Therefore, post mortem report Exhibit Ka.02 as well as statement of PW7 Dr. V.C. Khanna falsifies the version of F.I.R. Exhibit Ka.01 that deceased Bitto was being beaten by accused-appellants Ram Autar and Rajendra in the night of occurrence. In view of ante mortem injuries of deceased, it is difficult to believe that she was forcefully hanged. In F.I.R. Exhibit Ka.01, it has been mentioned that about 12:00 noon when complainant Savitri Devi went to the house of Bitto, she saw that the room was bolted from outside but in her statement on oath, she has not supported this version of F.I.R., she has stated that when she went. She saw the room of door bolted from inside, she get the door opened by aid of a child who entered his hand and opened chain of door then she entered into the room and saw Bitto in hanging position. There is no evidence on record to show that door of house of Smt. Bitto was not bolted from inside. F.I.R. is not a piece of substantive evidence and PW1 complainant Savitri Devi has disowned the F.I.R. in her statement on oath. Therefore, evidence on record is not sufficient to infer that the door of room was bolted from outside and not from inside. I.O. PW8 S.I. Ram Pal Singh has stated in cross-examination made by defence on page 28 (page 30 of paper book) that deceased and her husband were having two rooms, in one room they themselves were living and in another room accused-appellant Rajendra and his wife were living but in site plan Exhibit Ka.12 the said two rooms has not been shown by Investigating Officer. Investigating Officer has shown only one room in which occurrence has taken place. In F.I.R. Exhibit Ka.01 it has been mentioned that Rajendra was living with Bitto w/o Ram Autar. Relevant portion of F.I.R. Exhibit Ka.01 is reproduced below; ^^ izkfFkZuh ds pfp;k llqj feMbZ yky gS muds yM+ds jke vkSrkj dh ?kj okyh foV~Vks ds ikl esa gh jktsUnz iq= txUukFk fuoklh HkfjxokW Fakkuk eSykuh dk jgrk gSA^^ PW2 Maya Devi has stated in her statement that deceased Bitto was her real sister. She was wife of accused-appellant Ram Autar and was living with him. She was wife of accused-appellant Ram Autar and was living with him. Accused Rajendra was also living in the house of Ram Autar along with his wife. In view of above statements of PW8 S.I. Ram Pal Singh and PW2 Maya Devi as well as F.I.R. Exhibit Ka.01 and site plan Exhibit Ka.12 it is apparent that accused-appellant Ram Autar, his wife Bitto (now deceased), accused-appellant Rajendra and his wife (four persons) were living together in the house of accused-appellant Ram Autar. Accused-appellants Ram Autar and Rajendra have admitted in their statements under Section 313 Cr.P.C. that accused Rajendra had been living along with his wife in the house of Ram Autar. But both have denied rest allegations made by prosecution. Accused-appellant Ram Autar has stated in his statement under Section 313 Cr.P.C. that he has gone to his naunihal one day earlier to occurrence. After having heard that his wife has committed suicide he came to his house. Thereafter, police arrested him. Accused Ram Autar has adduced no evidence in support of his alleged alibi. In the case of Dhanpal Vs. State by Public Prosecutor Madras 2009 C.L.J. 4647 S.C. Hon'ble Apex Court has held that, "according to fundamental principles of the Evidence Act it is for the prosecution to have proved its own case." In view of above judgement of Hon'ble Apex Court as well as fundamental principle of Evidence Act initial burden is on prosecution to prove that accused-appellants were present at the place of occurrence either at the time of occurrence or soon before or after occurrence. But there is no evidence on record to show that accused-appellants were present at place of occurrence either at the time of occurrence or soon before or after occurrence. The prosecution has failed to discharge its initial burnden. Therefore, merely due to failure of defence in proving plea of alibi, accused-appellants may not be held guilty. In the case of Kailash Gour And Others Vs. State of Assam (2012) 2 SCC 34 Hon'ble Apex Court has held that, "One of the fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent till he is proved to be guilty. In the case of Kailash Gour And Others Vs. State of Assam (2012) 2 SCC 34 Hon'ble Apex Court has held that, "One of the fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent till he is proved to be guilty. Suspicion howsoever strong can never take place of proof." Hon'ble Apex Court has further held that, "Long distance between accused "may have committed the offence" and "must have committed the offence" must be traversed by prosecution by adducing reliable and cogent evidence." In view of discussion made above, after having gone through entire facts and circumstances of the case as well as evidence on record, we are of the view that prosecution has failed to establish chain of circumstances leading to conclusive inference that accused-appellants have committed murder of deceased Bitto. Therefore, evidence on record is not sufficient to convict accused-appellants. Conviction and sentence recorded by Trial Court are not sustainable in the eyes of law. In view of conclusion drawn above the appeal is allowed and the conviction and sentence recorded by Trial Court vide impugned judgement and order dated 19.08.1994 are set aside and both accused-appellant are acquitted of all charges levelled against them. Accused-appellants are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged. ——————