JUDGMENT 1. - The discovery of a dead body in a "Ganda Naala" (a polluted culvert), the recovery of a rope, of bedding, and a jeep forms the backdrop of this case. Convicted and sentenced by judgment dated 12.1.2006, passed by the Additional Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur, the appellant, Sanjay has approached this court. By the said judgment, the learned Judge has convicted and sentenced the appellant for offences under Sections 302 and 201 IPC. The appellant has been sentenced to life imprisonment, imposed with a fine of Rs. 100/- and directed to further undergo simple imprisonment for fifteen days in default thereof for offence under Section 302 IPC. For offence under Section 201 IPC, he has been sentenced to five years simple imprisonment, imposed with a fine of Rs. 100/- and to further undergo simple imprisonment for fifteen days in default thereof. Both the sentences are to run concurrently. 2. Briefly, the facts of the case are that on 24.7.2003, Hanuman (P.W.1) submitted a report to Hakim Singh (P.W.2), SI, Police Station Sanganer Sadar wherein he claimed that "he is a resident of Bagwali Dhani in Village Govindpura. A dirty culvert (ganda nala) passes near their Dhani (hamlet)., Today, on 24.7.2003, around 7.30 AM, few kids came and informed him that there is a dead body of a woman lying in the culvert. When he went to the culvert, he saw a dead body of woman who appeared to be Hindu, and appeared to be twentytwo years old. I had informed the police over the telephone. I am submitting this report so that legal action can be taken". Hakim Singh (P.W.2) sent the said report, through Mal Singh, to the Police Station. On the basis of this report (Ex.P.1), the police chalked out a Mrig FIR, namely Mrig FIR No.18/2003, under Section 174 Cr.P.C. and started the investigation. An examination of dead body of the unknown body revealed that there were ligature marks on her neck and an injury on her forehead. Her tongue was caught between the teeth. It appeared that somebody had killed her. And in order to destroy the evidence, someone had left her body in the culvert. During the course of investigation, persons living around the culvert were questioned. Her tongue was caught between the teeth. It appeared that somebody had killed her. And in order to destroy the evidence, someone had left her body in the culvert. During the course of investigation, persons living around the culvert were questioned. They merely told the police that some unknown person(s) had killed a woman and dumped the dead body in the night of 24.7.2003. Subsequently, on 25.7.2003, a formal FIR (Ex. P.18), namely FIR No.224/2003 was registered for offences under Sections 302 and 201 IPC, and investigation commenced. 3. In order to discover the relatives of the dead woman, wireless messages were sent to different police stations and news was published in different newspapers. Her body was kept in a deep freezer at the Mahatma Gandhi Hospital. Since no progress was made in discovering her relatives, after conducting the post-mortem, the body was handed over to the Municipal Council, Jaipur for cremating the said body. The photographs of the dead body were published in the local newspapers and flashed on television. 4. On 13.12.2003, one Satya Narain Bairagi (P.W.11) came to the police statoion. He informed the police that the photographs of the dead woman were that of his daughter, Shobha @ Gayatri. He also told the police that her in-laws were living in Niwai. He and his son, Devendra @ Gautam (P.W.12) suspected that Shobha had been killed by her husband, Sanjay, the appellant before this court. Subsequently, Sanjay was arrested. On the basis of statements given by him under Section 27, Evidence Act, the police recovered a rope, a mattress and a jeep. The appellant was charged for offences under Sections 302, 201 IPC. In order to prove its case, the prosecution examined nineteen witnesses, and submitted twenty-three documents. Although the defense did not examine any witness, it did submit two documents. After completing the trial, by judgment dated 12.1.2006, the learned Judge has convicted and sentenced the appellant as aforesaid. Hence, this appeal before this court. 5. Mr. V.P. Bishnoi, the learned counsel for the appellant, has raised the following contentions before this court: firstly the case is entirely based on circumstantial evidence. However, the circumstances narrated by the prosecution do not unerringly point towards the guilt of the appellant. 6. Hence, this appeal before this court. 5. Mr. V.P. Bishnoi, the learned counsel for the appellant, has raised the following contentions before this court: firstly the case is entirely based on circumstantial evidence. However, the circumstances narrated by the prosecution do not unerringly point towards the guilt of the appellant. 6. Secondly, the appellant has been convicted on the basis of recoveries of the rope, of the mattress and of the Jeep, and on the basis of testimonies of Satya Narain (P.W.1) and Devendra Kumar (P.W.12), the father and brother of the deceased respectively. However, the appellant could not be convicted merely on the basis of these recoveries and on the basis of testimonies of these two persons. 7. Thirdly, since the independent witnesses have not supported the recoveries, the recoveries are unreliable. Moreover, no incriminating evidence has emerged from the three articles recovered by the police. Therefore, there is no evidence to connect the appellant to the alleged crime. 8. Fourthly, Satyanarain (P.W.11) and Devendra Kumar (P.W.12) merely alleged that the appellant had been unkind to his wife. They further alleged that in order to start a business, the appellant had demanded money from them. But such testimonies are insufficient for convicting the appellant for murder. 9. Lastly, in his statement given under Section 313 Criminal Procedure Code.the appellant had clearly stated that he and his wife were happily married. He was a taxi driver. His neighbor, Karuna Arora (P.W.17) informed him that his wife Shobha had left the house with another man. Subsequently, he discovered about the illicit relation of his wife with other persons. He informed his in-laws. But in order to protect the reputation and honour of their family, they have falsely implicated him in the present case. Further, according to him, his wife could have been killed by someone else; he denied his complicity in the alleged offences. According to the learned counsel, since the body was discovered in a naked position, except a blouse on the body, since the investigating agency also suspected that the woman may have been raped, the possibility that she was not killed by the appellant, her husband, but by someone else is a grave possibility. Therefore, according to the learned counsel, all the chains of circumstances do not add up to the guilt of the appellant. 10. On the other hand, Mr. Therefore, according to the learned counsel, all the chains of circumstances do not add up to the guilt of the appellant. 10. On the other hand, Mr. N.S. Dhakar, the learned Public Prosecutor has contended that firstly, the prosecution has succeeded in establishing its case beyond a reasonable doubt. 11. Secondly, Satyanarain (P.W.11) and Devendra Kumar (P.W.12) both informed the court that between July to December, 2003, they were in touch with the appellant and had asked him to let them speak to their daughter, Shobha. But every time, they were informed that Shobha was busy in looking after her mother-in-law who was not keeping well. It is only subsequently that he learnt that his daughter had been killed. Thus, for five months, the appellant misinformed the inlaws about Shobha. 12. Thirdly, the recovery of the rope, the mattress and the jeep at the behest of the appellant, and the identification of the place where the body was left, unerringly point to his guilt. Therefore, the learned Judge was justified in convicting the appellant for the twin offences under Sections 302, 201 IPC. 13. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 14. Undoubtedly, the case is based on circumstantial evidence. The rule governing appreciation of evidence in case based on circumstantial evidence is not only well known, but has also been recently reiterated by the Apex Court in the case of Balkar Singh v State of Haryana [ 2014 (13) SCALE 63 ]. The Honble Supreme Court has observed as under:- (1).Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. The Honble Supreme Court has observed as under:- (1).Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (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. 15. Therefore, these principles would have to be kept in mind while appreciating the evidence in the present case. 16. It is, indeed, trite to state that the distance between may be true and must be true is a long one which the prosecution has to cover. Moreover, suspicion no matter how strong does not take the place of proof. [Ref. to Sujit Biswas v. State of Assam, 2013 Cr.L.J. 3140 (SC) ]. Therefore, it is for the prosecution to establish its case through cogent and convincing evidence. The chain of circumstances must be such as to eliminate the possibility of innocence of the accused. In case there is slightest doubt in the mind of the court, the court has no option but to grant the benefit of doubt to the accused. 17. Karuna Arora (P.W.17) informs the court in her examination-in-chief that "I know the accused, Sanjay, as we are neighbors. Sanjays parents used to live separately at Jaipur. I have not seen Gainda Lal (Sanjays father) come to Sanjays house. I have not seen any fight that has occurred between Sanjay and his wife, Shobha. When the police came, they told us that Sanjay had killed his wife and thrown the dead body into a culvert". In her cross-examination, she further tells the court that "in Sanjays absence, a few people used to come and visit his wife, Shobha. It is true that on 23.7.2003, Shobha left with another man. When the police came, they told us that Sanjay had killed his wife and thrown the dead body into a culvert". In her cross-examination, she further tells the court that "in Sanjays absence, a few people used to come and visit his wife, Shobha. It is true that on 23.7.2003, Shobha left with another man. At that time, Sanjay was not at home. It is true that after 27.3.2003, Shobha never came back. Once in a while, Sanjay would come back. He inquired about his wife and came to know that his wife had left with another man." 18. Despite the testimony given by this witness in her crossexamination, she has not been re-examined by the Public Prosecutor. Interestingly, the testimony of this witness supports the stand taken by the appellant in his statement recorded under Section 313 Cr. P. C., that his wife, Shobha, had illicit relationship with other man. She had left the house with another man. Although the suggestions have been denied by Satyanarain (P.W.11) and Devendra Kumar (P.W.12) that the appellant had told them about the wayward behaviour of his wife, but Karuna Aroras testimony strengthens the stand taken by the appellant. 19. As mentioned above, the learned trial court has relied on the testimonies of Satyanarain (P.W.11) and of Devendra Kumar (P.W.12), and on the recoveries made at the instance of the appellant in order to convict him. 20. In his examination-in-chief, Satyanarain (P. w. 11) claims that "his daughter Gayatri @ Shobha was married to the accused, Sanjay, on Basant Panchami in 1998. Marriage was performed according to the Hindu rites and customs. After the marriage, the relationship between Sanjay and my daughter, Gayatri, were good for sometimes. Six months after the marriage, Sanjay asked me for one lakh rupees in order to setup his own busine Sections After that, the accused started troubling my daughter. From time to time, I gave him Rs. 35,000/- for setting-up his busine Sections But, even after this, the accused kept on assaulting my daughter. I had complained about this to Sanjays father, Gaindi Lal. While Sanjay and my daughter lived at Niwai, Gaindi Lal Ji lived at Tonk. The last time my daughter came was on 23.7.2003. Just three hours after her arrival, Sanjay called her on phone and told her that he has hurt his leg with the jeep. Therefore, she should return immediately. While Sanjay and my daughter lived at Niwai, Gaindi Lal Ji lived at Tonk. The last time my daughter came was on 23.7.2003. Just three hours after her arrival, Sanjay called her on phone and told her that he has hurt his leg with the jeep. Therefore, she should return immediately. Immediately, she went back to him. In the intervening night of 23rd and 24th, he killed Shobha. My son Devendra had taken my daughter to Niwai. I came to know about this incident five months later. During this interim period, I had spoken to Sanjays mother, Dwarka Bai. I had spoken to her eight days prior to Raksha Bandhan. The accused used to constantly speak to my wife on the phone. He used to tell her that Gayatri (Shobhas other name) is looking after his mother at Jaipur. When my younger daughter, Vimlas in-laws wanted to perform the ceremony of Lahariya, we requested the accused on the phone that he and Shobha should come for the ceremony. He told us that Shobha is busy looking after her mother as she is unwell, and that his jeep (taxi) is booked for that day. Therefore, as he has to leave the town, it is not possible for him to come. For about five months, he kept on making promises. I had sent him a letter at his Niwai address as to how long he will go on making promises for bringing our daughter so we could meet her. But he never replied. One Radheyshyam, a resident of Sawai Madhopur, informed me at the Rajasthan Bank at Baran that your daughter, whom you had gotten married at Niwai, was killed four days ago. This information was given at the Bandhu Branch at Baran. The peon, Tej Singh, had come to my house to give this information. I called back the Baran Branch and I was told that my daughter, Gayatri, had been killed four days ago. Subsequently, my son, Devendra, went to Niwai searching for my daughter, but there was a lock on the house. He inquired from the neighbors who told him that for the last three to four months the house is under lock and the persons have disappeared. Thereafter Devendra went to Barwada, Sanjays sisters place. Sitarams son (Sanjays nephew) told Devendra that Sanjay had called from Dausa. Therefore, Devendra Took Sitaram (Sanjays brother-in-law) to Dausa. He inquired from the neighbors who told him that for the last three to four months the house is under lock and the persons have disappeared. Thereafter Devendra went to Barwada, Sanjays sisters place. Sitarams son (Sanjays nephew) told Devendra that Sanjay had called from Dausa. Therefore, Devendra Took Sitaram (Sanjays brother-in-law) to Dausa. There at Sanjays brother-in-laws house, his niece told him that her uncle, Sanjay, is sleeping. The house had two doors, one towards the road, and other towards the fields. Hearing Devendras voice, Sanjay left from the back door and went into the fields. After crying, Devendra came back home. I called my relatives and asked them what should be done. They told me to file a report. They also told me to look for her. The elder members of the family went to Dausa. But I do not remember the name of the village. We reached there at 9.00 to 10.00 PM. But Dr. Rajesh had convinced the villagers against us. I did not accompany these elder members of the family. But my son, Devendra, had gone with them. After this, we came back to Police Station Pratap Nagar in Jaipur and informed them that we are going to the house of Gandi Lal (Sanjays father) and hope that there is no danger to us. There a Sepoy told us that a body had been discovered by the Police Station Sadar, Sanganer. These persons went to the Police Station Sanganer. There Devendra showed them the photograph which they were carrying. Tallying the photographs, he told the police that the photograph belonged to the daughter of the family. Devendra submitted a report there. I went to the police station three or four days later. My statement was recorded there. The colored and the black and white photographs were of my daughter, Shobha. In the colored photograph, the small girl with Gayatri is my daughter, Rajesh". 21. In his cross-examination, he claims that "Sanjays sister, Mithilesh, was posted as a teacher at Chauth Ka Barwada. We had discussed with her about finding a relationship for my daughter. She told us about her brother. The marriage was finalised through the people belonging to our community. During our discussions, no one told us that Sanjay had been married earlier. We came to know about this after my daughter was married to him. We had discussed with her about finding a relationship for my daughter. She told us about her brother. The marriage was finalised through the people belonging to our community. During our discussions, no one told us that Sanjay had been married earlier. We came to know about this after my daughter was married to him. Sanjay was tried for the murder of his first wife. If he has been acquitted, I do not know. Since the marriage negotiations were finalized, I did not try to find out about Sanjays first marriage. The deceased was my eldest daughter. After her was Anju, after her was Vimla and after her my youngest daughter, Rajesh. The police had recorded my statement. In the police statement (Ex.D.2) the part from A to B where it is written that Shobha @ Gayatri is my third daughter, and Anju is my eldest daughter, and Vimla is my second daughter, is incorrect. It is incorrect to say that I have projected Shobha as my eldest daughter and got her married to the accused because her character was not good. After Shobhas marriage, the marriage of Vimla was finalized. After this, Anju was married. After her marriage, Shobha used to live at Niwai. Her in-laws also used to live in Niwai. After two years of marriage, Shobhas in-laws started to live at Tonk. It is not true that Shobha did not want to live with her in-laws and due to this reason, the in-laws started living at Tonk. After the marriage, both the sides used to visit each-other at Niwai. At Niwai, I had seen a telephone at the house of the accused. Shobha used to come to Bundi to tie the Rakhi. After staying at Tonk, the parents of the accused shifted to Jaipur. At Tonk, I used to visit parents of the accused once in two years. In 2003, on the festival of Rakhi, the accused refused to send Shobha to our place. Therefore, she could not come. But my son did not go to Niwai. We did not go to Niwai to find out what was the reason for not sending her; it could be a family difficulty. Therefore, I was not worried as to why they did not send her. Therefore, she could not come. But my son did not go to Niwai. We did not go to Niwai to find out what was the reason for not sending her; it could be a family difficulty. Therefore, I was not worried as to why they did not send her. Around Rakhi, the accused did tell us that his mother is not keeping well at Jaipur and they are likely to go to Jaipur for Rakhi. For this reason, we did not go to Niwai to find out as to why Shobha was not sent. One month after Rakhi, the inlaws of my daughter, Vimla, were going to perform ceremony of Lahariya. I had called my son-in-law, my daughter and her in-laws to inform them about the ceremony. When I spoke to my Samadhi (Sanjays father), he also informed that my daughter is busy in looking after his wife. For this conversation, I had called at Niwai. This conversation had occurred one month before the ceremony of Lahariya. I did not send my son to pick-up Shobha for the said ceremony because we were told that she was busy in looking after her mother-in-law. Nobody came from their side. Nobody told us about the nature of Shobhas mother-in-laws illne Sections They merely told us that she is unwell. It is wrong to say that I did not call my daughter till December. I kept on inquiring about her on the phone. I did not worry about her as I was under the impression that she was busy in looking after her mother-in-law". 22. Various contradictions were pointed to this witness in the statement given by him to the police. But he claimed that, "he had told that accused had demanded Rs. One lakh, but why this fact has not been mentioned in his police statement is not known." He further claimed that "he told the police that he had informed Gainda Lal about the fact that accused had assaulted her daughter. But he do not know why this statement was not mentioned. He did not know why the police has not recorded the fact that he had told them that the accused had killed his daughter in the intervening night of 23rd and 24th." He further claimed that "eight days before Raksha Bandhan he had spoken to Sanjays mother. But he do not know why this statement was not mentioned. He did not know why the police has not recorded the fact that he had told them that the accused had killed his daughter in the intervening night of 23rd and 24th." He further claimed that "eight days before Raksha Bandhan he had spoken to Sanjays mother. But even this fact has not been mentioned in Ex.D.2." He further claimed that "he told the police that he wrote a letter to Sanjay which was not replied. But even this fact has not been mentioned in the police statement." He admitted the fact that "he did not tell the police that his son had gone Dausa along with Sanjays brother-inlaw." He did not tell the police that "Sanjay had left the house by the back door." He admitted the fact that "having seen the photograph he told the police that it is his daughters photograph." He denied the fact that "he married off his daughter despite Sanjays first marriage as her character was bad." He denied the fact that "his daughter had eloped with another man as her character was bad." He further denied the fact that "the accused had informed him and due to the fear of the society, he had not lodged any report and had quietly kept on looking for her daughter." He denied the fact that "he had falsely involved the accused." 23. Devendra Kumar (P.W.12) has given his testimony in similar fashion. Therefore, it is not being reproduced in the judgment. 24. A bare perusal of their testimonies would clearly reveal that according to Satyanarain, the accused used to mistreat his daughter, Shobha. The witness also claims that the accused had misled them. However, he further claims that when he had spoken to Sanjays parents, they too had claimed that Shobha was busy in looking after her mother-in-law who was unwell. Thus, not only the accused, but even his parents were misleading this witne Sections Therefore, it seems that a grave possibility does exist that, indeed, Shobha was looking after her mother-in-law as pleaded by the accused. Thus, there is nothing incriminating in the testimony of Satyanarain which would point to the guilt of the accused. 25. According to the testimony of Mohan Lal (P.W.19), the Investigating Officer, the appellant was arrested on 17.12.2003. Thus, there is nothing incriminating in the testimony of Satyanarain which would point to the guilt of the accused. 25. According to the testimony of Mohan Lal (P.W.19), the Investigating Officer, the appellant was arrested on 17.12.2003. On 20.12.2003, he made a statement (Ex.P.20) under Section 27 Evidence Act, with regard to the fact that he could get a rope recovered from his home which was used by him for strangulating Shobha. On the basis of this statement (Ex. P. 20), by recovery memo (Ex.P.12), a rope was recovered from his home. While Devendra (P.W.12) has supported this recovery, the other independent witness, Shankar, has not been produced. However, even if this recovery were taken to be true, it does not connect the appellant to the alleged offence. For, the rope was never subjected to any examination and was not even shown to Dr. Naveen Soni (P.W.5) who had conducted the post-mortem of Shobha. Thus, the mere recovery of the rope does not prove that it was used in order to strangulate Shobha. Moreover, it is not unusual to find a rope in someones house. In the case of Shankar Das v. State of Rajasthan [2014(1) Cr.L.R. (Raj.) 463] , this court had observed that mere recovery of weapon of offence is not sufficient for convicting the accused. Thus, this recovery does not connect the appellant to the alleged crime. 26. Further, according to the testimony of Mohanlal (P.W. 19), on the same day, on 20.12.2003, the appellant had made another statement under Section 27 of the Evidence Act (Ex.P.21) with regard to mattress which was used by him for wrapping and transporting Shobas body. Consequently, by recovery memo (Ex.P.13) a mattress was also recovered from under Sanjays bed in his house. This recovery too has been supported by Devendra (P. W. 12). But even if this recovery were to be believed, since no incriminating evidence has been extracted from the mattress, the mere recovery of a mattress at a house would not connect the accused to the alleged offence. After all, mattresses are common commodity that can be discovered in most of the houses. 27. Likewise, according to Mohan Lal (P. W. 19), on the same day i.e. on 20.12.2003, Sanjay had made yet another statement under Section 27, Evidence Act (Ex.P.22) with regard to recovery of the jeep from his brother-in-laws house. After all, mattresses are common commodity that can be discovered in most of the houses. 27. Likewise, according to Mohan Lal (P. W. 19), on the same day i.e. on 20.12.2003, Sanjay had made yet another statement under Section 27, Evidence Act (Ex.P.22) with regard to recovery of the jeep from his brother-in-laws house. Consequently, by recovery memo (Ex.P.14) a jeep was recovered on 25.7.2003. However, nothing incriminating was discovered from the Jeep. Jagdish Prasad (P.W.16), an independent witness of this recovery, has not supported the recovery. He has claimed that "no Jeep was recovered in front of him." He further stated that "the police had asked him to sign on blank piece of paper." Therefore, he has been declared as hostile. But Devendra Kumar (P.W.12) has supported this recovery. But even if this recovery were to be believed to be true, even then nothing incriminating has been discovered in the jeep. Therefore, the mere recovery of the jeep does not connect the accused to the alleged offence. Repeatedly, the Honble Supreme Court has held that mere recovery is not sufficient to convict a person [Ref. to Vijay Thakur v. State of Himachal Pradesh, 2014 (4) Cr.L.R. (SC) 1066 and Mani v. State of Tamil Nadu, (2008) 1 SCR 228 ]. 28. It was the duty of the prosecution to unerringly prove the guilt of the accused. However, mere recoveries do not point towards his guilt. Moreover, the testimony of Karuna Arora (P.W.17) strengthens the possibility that Shobha had left the house with another man; she may have been killed by someone else. The fact that the body was discovered in a nude state, except for a blouse on the dead body, also points to the possibility that Shobha may have been killed by someone else. For it is very unlikely that a husband would leave the body of his wife in a naked position. Therefore, the appellant deserves to be given the benefit of doubt by this court. 29. Hence, for the reasons stated above, this appeal is allowed. The conviction and sentence of the appellant for offences under Sections 302 and 201 IPC is, hereby, quashed and set aside. Since the appellant is in Jail, he shall be set at liberty forthwith, if not wanted in any other criminal case. 30. 29. Hence, for the reasons stated above, this appeal is allowed. The conviction and sentence of the appellant for offences under Sections 302 and 201 IPC is, hereby, quashed and set aside. Since the appellant is in Jail, he shall be set at liberty forthwith, if not wanted in any other criminal case. 30. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Sanjay, is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeal allowed. *******