JUDGMENT 1. - The case of the prosecution, in brief, is that the appellant, Vinod Kumar, on 15.10.2006 caused death of his son Nitin, aged five years and daughter Neha aged six years by throttling and thereafter he had slashed his neck to commit suicide. 2. The investigating agency had sent the appellant, Vinod Kumar for trial for the offences under Sections 302 and 309 IPC. The court of Additional Sessions Judge, Tijara, District Alwar, vide the impugned judgment dated 18.3.2008, held the appellant guilty for the offences under Sections 302 and 309 IPC and sentenced the appellant as under:- U/s 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo one month R.I. U/s 309 IPC- to undergo one year S.I., and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo one month additional imprisonment. 3. The peculiar feature of the case is that all the witnesses examined by the prosecution except Dr. Mahendra Singh Bundel (P.W.13), who conducted the autopsy on the dead body of two children, namely Nitin and Neha, and the Investigating Officer, Mr. Ram Singh (P.W.14) have turned hostile and had not supported the prosecution case. 4. The trial Judge convicted the appellant, Vinod Kumar on the basis of letter (Exhibit-P/12) recovered from the spot by the Investigating Officer, Ram Singh (P.W.14) by holding that from the naked eye, signatures of the appellant, Vinod Kumar, on the letter i.e. suicide note (Exhibit-P/12) and seizure memo of letter (Exhibit-P/13) and arrest memo (Exhibit-P/14)looks similar to the naked eye. 5. To assail his conviction and sentence, the appellant instituted the present appeal praying that the conviction pronounced and sentence awarded by the trial court be set aside. 6. The criminal proceedings in the present case were set into motion on the basis of written report (Exhibit-P/2) submitted by Lalaram (P.W.1) before Ram Singh (P.W.14), who was then posted as S.H.O., Police Station Bhiwadi. In the written report (Exhibit-P/2) on the basis of which formal FIR (Exhibit-P/3) bearing No. 399/06 was registered at the Police Station Bhiwadi, District Alwar, it was stated that the complainant on 15.10.2006, in the morning received an information that Vinod Kumar son of his sister has caused murder of his son and daughter by strangulating them and had also slashed his neck. When the complainant visited the village Bhiwadi, he found that both the children were lying dead in the house and Vinod was admitted at Neeraj Hospital. 7. The above said FIR was investigated and the report of investigation under Section 173 Cr.P.C. was submitted. The report of investigation along with the accused was committed to the court of Additional Sessions Judge (Fast Track) Tijara, District Alwar. The court formulated charges against the appellant for the offences under Sections 302 and 309 IPC. The appellant denied the charges and pleaded not guilty and claimed trial. The prosecution commenced its evidence. 8. Lalaram (P.W.1), the complainant stated that he is working as labourer in Industrial Area, Bhiwadi. He was present at his house. In the morning at about 9:00-10:00, Rohtash came and informed that Vinod had killed his two children in Bhiwadi. The witness stated that he had heard only this thing and thereafter, he had done nothing in the matter. This witness was declared hostile and the report submitted by him was put to him. He denied the same. Thus, evidence of the witness being hearsay is inadmissible in evidence. 9. Krishna Kumar (P.W.2) is the brother of the appellant Vinod Kumar. This witness stated that he works as a Cleaner. They are three brothers, he is the eldest and Vinod is younger to him. Vinod was married to Babita about eleven years ago. He was staying separately from Vinod at a distance of 2 kms. He is not aware about the incident. This witness was also declared hostile. 10. Balkishan @ Bale (P.W.3) in the court stated that he is a labourer. A year ago, police personnel came and took his signatures on blank papers. This witness was also declared hostile to the prosecution case. 11. Ashok Kumar (P.W.4) denied that in his presence, the accused, Vinod Kumar was arrested. 12. Kaushal (P.W.5) mother of the accused, Vinod Kumar stated that her son Vinod was married nine to ten years ago with Babita. He was living separately with his wife. He has never seen any dispute between them. This witness stated that the two children of the accused had died. As to how these children had died, she was not aware. This witness was also declared hostile by the prosecution. 13. He was living separately with his wife. He has never seen any dispute between them. This witness stated that the two children of the accused had died. As to how these children had died, she was not aware. This witness was also declared hostile by the prosecution. 13. Babita (P.W.6), the mother of the children and wife of the accused Vinod Kumar is the star witness of the prosecution. She has also not supported the prosecution case and was declared hostile by the prosecution. 14. Veervati (P.W.7), mother of Babita, while appearing in the court had also not supported the prosecution case and she was also declared hostile. This witness stated that Vinod was living happily with his children and wife. She is not aware about any dispute and she cannot tell as to how the children had died. 15. Mangeram (P.W.8) in the court stated that he had married his daughter Babita with Vinod. Three children were born to them. Two children had died and as to how they died, he was not aware. This witness was also declared hostile. 16. Anil (P.W.9) in the court stated that he was not aware about any relationship of Premchand with Babita. This witness was declared hostile. In cross-examination by the Public Prosecutor, this witness stated to be correct that Vinod is son of his Tayaji (elder brother of father). He further stated to be correct that he want to save Vinod Kumar. 17. Sandeep (P.W.10) had also turned hostile to the prosecution. This witness stated that he is not aware that as to what was done by Vinod. 18. Manoj (P.W.11) in the court stated that he cannot identify the handwriting of the accused. However, in the cross-examination, he admitted that it is correct that due to compromise arrived between them, he is giving false evidence. 19. Mangiram (P.W.12), is the father of the appellant. This witness also has not supported the prosecution case and was declared hostile. 20. Dr. Mahendra Singh Bundel (P.W.13) in the court stated that on 15.10.2006, he was posted as Medical Officer at Community Health Centre, Bhiwadi. He conducted the autopsy on the dead body of Nitin and Neha, son and daughter of the accused Vinod Kumar. According to the opinion of the Medical Board, the cause of death of both the children was asphyxia due to throttling. He conducted the autopsy on the dead body of Nitin and Neha, son and daughter of the accused Vinod Kumar. According to the opinion of the Medical Board, the cause of death of both the children was asphyxia due to throttling. This witness further stated that on 15.10.2006, at 8:00 PM, he examined the appellant and as per injury report (Exhibit-P/25) had found the following injury on his person:- "Incised wound with blood, 7cm (transverse) x 4 cm (mid) x ⅔ cut (deep) of trachea above hyoid bone which is easily visible with tainting on right side, in the mid and upper part of neck above hyoid bone, grievous, sharp." 21. Ram Singh, the Investigation Officer appeared in the court as P.W.14. He proved the registration of the case and FIR (Exhibit-P/3), site plan of the spot (Exhibit-P/4), Panchnama of the dead body Neha (Exhibit-P/5) and Nitin (Exhibit-P/6). He also proved the recovery of knife vide memo Exhibit-P/7. This witness stated that during the investigation Vinod Kumar presented a letter (Exhibit-P/12). In cross-examination, this witness stated that he received the letter (Exhibit-P/12) on 15.10.2006. Thereafter the statement of the accused Vinod Kumar under Section 313 Cr.P.C. was recorded. 22. The trial Judge noticed the fact that all the witnesses have turned hostile except Dr. Mahendra Singh Bundel (P.W.13), who conducted the autopsy, and Investigation Officer Ram Singh (P.W.14). The trial court convicted the appellant by returning the following finding:- " izn'kZ ih0 12 ij tks gLrk{kj fouksn dqekj ds gSa] mudk ;|fi ,Q,l,y ls dksbZ ijh{k.k ugha gqvk gS ysfdu U;k;ky; us izn'kZ ih0 12 i= ij vfHk;qDr ds fd;s x;s nLr[kr rFkk QnZ tCrh izn'kZ ih0 13 ij fd;s x;s gLrk{kj o QnZ fxjQ~rkjh ij fd;s x;s , ls ch fouksn ds gLrk{kjksa dk uaxh vka[kksa ls feyku djus ij Li"V gS fd izn'kZ ih0 12 i= fouksn dqekj ds }kjk gh fy[kk x;k gS] ;g i= ?kVuk ls iwoZ fy[kk x;k gSA " 23. It is true that under Section 73 of Indian Evidence Act, the court is entitled to make comparison of disputed and admitted signatures for just conclusion. But the question, which has arisen for consideration before this Court is that the seizure memo of letter (Exhibit-P/13) arrest memo (Exhibit-P/14) do not contain the admitted signatures of the accused. It is true that under Section 73 of Indian Evidence Act, the court is entitled to make comparison of disputed and admitted signatures for just conclusion. But the question, which has arisen for consideration before this Court is that the seizure memo of letter (Exhibit-P/13) arrest memo (Exhibit-P/14) do not contain the admitted signatures of the accused. No witness has stated that the accused had appended his signatures on the seizure memo of letter (Exhibit-P/13) and arrest memo (Exhibit-P/14) in his presence. The arrest memo (Exhibit-P/14) is attested by Ashok Kumar (P.W.4). Ashok Kumar (P.W.4) in the court stated that on 27.10.2006, in his presence police had not arrested anybody. In cross-examination by public prosecutor, he further stated that Exhibit-P/14 contain his signatures but the signatures were obtained on the blank papers. This witness had not stated that Vinod Kumar had appended signatures on the arrest memo (Exhibit-P/14) in his presence. 24. Furthermore, the court had compared the signature on Exhibit-P/13 with handwriting of Exhibit-P/12, which is the recovery memo of letter (Exhibit-P/12). Seizure memo (Exhibit-P/13) is attested by Balkishan @ Bale (P.W.3) and Brijesh Kumar. Balkishan @ Bale (P.W.3) stated that the police had obtained his signatures on blank papers. Though, this witness admitted his signatures on the seizure memo (Exhibit-P/13), but he has not admitted that in his presence, the accused has signed (Exhibit-P/13). 25. Before comparison of signatures on seizure memo (Exhibit-P/13), arrest memo (Exhibit-P/14) and recovery of letter (Exhibit-P/12) can be made, it was incumbent for the prosecution to prove that seizure memo (Exhibit-P/13) and arrest memo (Exhibit-P/14) contain the signatures of the accused Vinod Kumar and Vinod Kumar had made signatures on seizure memo (Exhibit-P/13) and arrest memo (Exhibit-P/14) in the presence of anybody. Nobody has appeared in the court to say that they have seen the handwriting of Vinod Kumar or they were conversant with his handwriting or have seen him writing in the ordinary course of business, hence, signatures on seizure memo (Exhibit-P/13) and arrest memo (Exhibit-P/14) were of Vinod. 26. Even the Investigating Officer (P.W.14) who had stated in the court that arrest memo (Exhibit-P/14) contained the signatures of the accused Vinod Kumar, has not stated that Vinod Kumar had appended his signatures in his presence and this witness also has not identified the signature of Vinod Kumar. 27. 26. Even the Investigating Officer (P.W.14) who had stated in the court that arrest memo (Exhibit-P/14) contained the signatures of the accused Vinod Kumar, has not stated that Vinod Kumar had appended his signatures in his presence and this witness also has not identified the signature of Vinod Kumar. 27. Be that as it may, the court had compared the signatures on letter (Exhibit-P/12) with signatures on recovery memo (Exhibit-P/13) and arrest memo (Exhibit-P/14). The Investigating Officer had not said a word regarding signatures of the accused on recovery memo (Exhibit-P/13). 28. 27. Be that as it may, the court had compared the signatures on letter (Exhibit-P/12) with signatures on recovery memo (Exhibit-P/13) and arrest memo (Exhibit-P/14). The Investigating Officer had not said a word regarding signatures of the accused on recovery memo (Exhibit-P/13). 28. Now, we shall reproduce the entire statement of the accused recorded under Section 313 Cr.P.C. as under:- c;ku eqyfte&/kkjk 313 na0iz0la0 ;knnk'r btgkj fouksn dqekj mez 30 lky r[kehuk 31 lky dk tks :c: eq> xosUnzflag pkSgku] vkj,pts,l] vij lS'ku U;k;k/kh'k] QkLV V~sd frtkjk }kjk vkt fnukad 1&3&2008 dks fy;k x;kA esjk uke fouksn dqekj firk dk uke ekxksjke tkfr ckYehd is'k lQkbZ fuoklh fHkokMh eSa ceqdke fHkokMh P.S. HkhokMh esa jgrk gwaA iz'u%& vkids fo:) ihM0 13 MkW0 egsUnzflag caqnsy dk c;ku gS fd fn0 15-10-2006 dks og lkeq0 LokLF; dsUnz fHkokMh esa eSMhdy vkWQhlj ds in ij dk;Zjr FkkA ml fnu furhu iq= fouksn o fu'kk iq=h fouksn dk iksLV ekVZe djus gsrq eSMhdy cksMZ xfBr fd;k x;kA blh fnu izkr% 10 cts fufru dk o izkr% 11 cts fu'kk dk iksLVekVZe fd;k ftudh e'R;q dk dkj.k xyk nckus ds dkj.k ik;h x;hA vkidks D;k dguk gS\ mRrj% & xyr gSA iz'u% & mDr xokg dk vkxs ;g Hkh dguk gS fd mlh fnu jkr 8 cts vkidk eSMhdy djus ij pksV la0 1 bulkbZtqxqe FkhA xys ij nks frgkbZ xgjh Fkh o /kkjnkj gfFk;kj ls dkfjr FkhA furhu dh iksLVekVZe fjiksVZ izn'kZ ih0 23] usgk dh iksLVekVZe fjiksVZ izn'kZ ih0 24 ,oa fouksn dk pksV izfr izn'kZ ih0 25 gS] ftl ij xokg ds gLrk{kj gSaA vkidks D;k dguk gS\ mRrj%& xyr gSA iz'u%& vkids fo:) ihM0 14 jkeflag dk c;ku gS fd fn0 15-10-06 dks og Fkkuk fHkokMh esa ,l vkbZ ds in ij FkkA ml fnu ,d rgjhjh fjiksVZ izn'kZ ih0 2 ykykjke us is'k dhA ftl ij eq0la0 399@06 nt dj ,QvkbZvkj izn'kZ ih0 3 pkd dhA uD'kk ekSdk izn'kZ ih0 4 usgk] fufru ds iapukek izn'kZ ih0 5] 6 o QnZ tCrh pkdw izn'kZ ih0 7 rS;kj fd;sA e'rdk usgk dh QnZ lwjr yk'k izn'kZ ih0 8] fufru dh QnZlwjr yk'k izn'kZ ih0 9 rS;kj fd;s x;sA vkidks D;k dguk gS\ mRrj %& xyr gSA iz'u%& mDr xokgku dk vkids fo:) ;g Hkh dguk gS fd mlus xokgku ds dgs vuqlkj c;ku fy;s ,oa vkids }kjk fn;k x;k i= izn'kZ ih0 12 dks tfj;s izkIr fd;kA vkidh QnZ fxjQ~rkjh fouksn dqekj izn'kZ ih0 14 gSA ftl ij lh ls Mh o bZ ls ,Q xokgku ds gLrk{kj o , ls ch vkids ,oa th ls ,p xokg ds gLrk{kj gSaA vkidks D;k dguk gS\ mRrj% xyr gSA iz'u%& mDr xokgku vkids fo:) D;ksa c;ku nsrs gSa\ mRrj%& xyr dgrs gSaA iz'u%& vkidks vkSj D;k dguk gS\ mRrj%& dqN ughaA 29. The trial Judge in the statement recorded under Section 313 Cr.P.C., have not put the contents of seizure memo (Exhibit-P/13) and has not put to the accused that seizure memo (Exhibit-P/13) contained his signatures. The trial Judge has also not put to the accused under Section 313 Cr.P.C. that his signatures on Exhibit-P/13 tally with the signatures on Exhibit-P/12. Therefore, what has not been put to the accused, cannot be construed against him. 30. Recording of statement of accused under Section 313 Cr.P.C., is not idle formality. The Hon'ble Apex Court in the case of Sujit Biswas v. State of Assam, (2013) 12 SCC 406 ] , held that incriminating evidence which is not put to the accused cannot be used against him and must be excluded from consideration. 31. As stated earlier, it was not put to the accused that seizure memo (Exhibit-P/13) contained his signatures. Furthermore, nobody had proved the signatures of the accused on seizure memo (Exhibit-P/13) and it cannot be taken as admitted signature, even though Investigating Officer said that arrest memo (Exhibit-P/14) contained signatures of accused, he has not said in the court that accused signed upon arrest memo (Exhibit-P/14) in his presence. Therefore, the finding given by the trial Judge is to be excluded from the consideration and cannot be relied upon. 32. The appellant continuously is in custody since 27.10.2006, has already undergone about eight years, nine months and few days. Therefore, we do not deem it appropriate to remand the matter for recording the statement of the accused under Section 313 Cr.P.C. afresh. Furthermore, since the signatures on seizure memo (Exhibit-P/13) of the appellant have not been proved by the prosecution, we are hesitant to permit the prosecution to fill the lacuna or loophole at this stage, as it may cause prejudice to the accused. 33. We shall examine the finding given by the trial Judge regarding comparison of signatures on seizure memo (Exhibit-P/13) and on letter (Exhibit-P/12) from another angle. 34. Single Judge of Gujarat High Court in the case of Ashok Kumar Uttam Chand Shah v. Patel Mohmad Asmal Chanchad, AIR 1999 Guj 108 , regarding efficacy of examination of handwriting by the court under Section 73 of the Indian Evidence Act has observed as under:- "7. 34. Single Judge of Gujarat High Court in the case of Ashok Kumar Uttam Chand Shah v. Patel Mohmad Asmal Chanchad, AIR 1999 Guj 108 , regarding efficacy of examination of handwriting by the court under Section 73 of the Indian Evidence Act has observed as under:- "7. Section 73 of the Evidence Act expressly enables the Court to compare disputed writing with admitted or proved writings to ascertain whether writing is that of the person by whom it purports to have been written. The Supreme Court in Murarilal v. State of M. P., AIR 1980 SC 531 observed that the duty of the Court to compare the writings and to come to its own conclusion cannot be avoided by recourse to the statement that the Court is no expert. It is thus clear from the above observation of the Apex Court that under Section 73 of the Evidence Act, the Court can compare the disputed and admitted handwriting or signature for coming to its own conclusion. However, provisions of Section 73 of the Evidence Act, have been interpreted by various Courts as to how the signatures or handwriting are to be compared when there is no assistance from the expert. 8. In Kesarbhai v. Jethabhai, AIR 1928 PC 227 the Privy Council observed that "they would have thought it unsatisfactory and dangerous in any event to take decision in such a case as this on the correct determination of the genuineness of the signature by mere comparison with admitted signatures especially without the aid of evidence on microscopic enlargement or any expert advice. (Emphasis supplied)" In this case Division Bench of the Bombay High Court compared the disputed endorsement on cheque with the admitted signature and felt no doubt that the endorsement was genuine. The Privy Council, however came to a different conclusion and observed that it was unable to feel certainty which was expressed by Appellate Bench of the High Court. In Kishore v. Ganesh, AIR 1-954 SC 316 the trial Court found that the 'signature on the letter was dissimilar to the admitted signature. On appeal, the High Court was of the view that there was no such dissimilarity. In view of these differences of opinions the Supreme Court observed that conclusions based on mere comparison of handwriting must, at best, be indecisive and yield to positive evidence in the case. 9. On appeal, the High Court was of the view that there was no such dissimilarity. In view of these differences of opinions the Supreme Court observed that conclusions based on mere comparison of handwriting must, at best, be indecisive and yield to positive evidence in the case. 9. In State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 , it was observed by the Apex Court that although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution hesitate to base its findings with regard to the identity of handwriting which forms the shectanchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a Judge should lake upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. 10. In Murarilal v. State of M.P. ( AIR 1980 SC 531 ) (supra) the Supreme Court again laid down guidelines for discharge of duty by Court in such cases and it observed that "where there arc expert's opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.(Emphasis supplied)" 11. From this and other decision it is clear that no doubt under Section 73 of the Evidence Act, the Court is entitled to compare disputed and admitted signature and handwriting for coming to a conclusion but the rule of prudence and caution requires that in the first place expert's opinion should be obtained for assistance and if such opinion is not available then the Judge presiding over the Court must disclose in the judgment his knowledge in the subject of comparison of handwriting or should mention that he has taken aid from some authoritative text book. The Court should also mention whether the result of its comparison finds support from some evidence adduced by the parties may be in the shape of oral or documentary evidence or direct evidence. This is in short answer to the substantial question formulated in this Appeal." 35. We are of the view that in a murder case where the liberty of accused is involved and he is to be awarded minimum sentence of life imprisonment in a casual manner, by comparing of signatures on letter (Exhibit-P/12) and seizure memo (Exhibit-P/13) and arrest memo (Exhibit-P/14) it is not prudent to record the conviction and sentence of the accused. However, the question still remains that nobody has proved that seizure memo (Exhibit-P/13) contain the admitted signatures of the accused. No witness has proved this fact and the trial Judge erred to assume that seizure memo (Exhibit-P/13) contains the signatures of accused. Therefore, we are of the view that the finding given by the trial Judge to convict cannot be sustained. 36. Higher the sentence, strict proof, beyond any doubt, is a maxim which cannot be ignored. On mere comparison of signatures on alleged note (Exhibit-P/12) which has not proved to be in handwriting of accused, with seizure memo (Exhibit-P/13) and arrest memo (Exhibit-P/14) by the court is not a correct course especially when nobody has said that accused signed seizure memo (Exhibit-P/13) and arrest memo (Exhibit-P/14) in his or her presence or has identified signatures of the accused on the same. 37. We also cannot ignore that Babita (P.W.6) is also resident of the house and equally burden was upon her to also explain, how the children died in the house. 38. Having examined the prosecution case, finding given by the trial court, we are of the view that suspicion, however, a grave cannot take place of truth. Morality and belief that accused may have committed the offence cannot permit the court to commit the breach of settled legal preposition and record conviction on the hunch. To ensure fair play and adherence to the procedure is hallmark of Indian judicial system. 39. Without going further, as a matter of abundant caution, we shall extend the benefit of doubt to the appellant Vinod Kumar and we acquit him of all the charges, especially when mother of both the children and wife of the appellant has absolved the appellant. 40. 39. Without going further, as a matter of abundant caution, we shall extend the benefit of doubt to the appellant Vinod Kumar and we acquit him of all the charges, especially when mother of both the children and wife of the appellant has absolved the appellant. 40. Consequently, the present appeal is accepted. The judgment of conviction and sentence is set aside. The appellant is acquitted of all the charges. 41. In view of the acceptance of the appeal, we order that the appellant Vinod Kumar, be released forthwith, if in custody and not required in any other case. 42. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, Vinod Kumar 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. *******