JUDGMENT : M.G. GIRATKAR, J. 1. Heard Shri S.D. Chande, learned counsel appearing on behalf of Mrs. Kalasi, learned counsel for the appellant and Shri Pathan, learned Additional Public Prosecutor for the State/respondent. 2. Present appeal is against the judgment of conviction in Sessions Case No. 67/2014 for offence punishable under Section 302 of the Indian Penal Code by which the appellant/ accused is sentenced to suffer imprisonment for life and to pay fine of Rs. 2,000/- in default to suffer further rigorous imprisonment for three months. 3. Case of the prosecution in nutshell is as under: (i) The accused/appellant is son in law of complainant Samadhan Namdeo Sajare. As per the case of prosecution, Samadhan Sajare is having six daughters and was having only one deceased son, namely, Gajanan alias Deepak. Samadhan was doing cultivation. He fell down while doing agriculture work and sustained injury and, therefore, he called his son in law (accused) and daughter and requested them to continue to stay and do agriculture work. (ii) In the night of incident in between 20th and 21st March, 2014, the complainant was sleeping outside the house on platform. Other family members were sleeping in the rooms. Accused along with his wife and daughter were sleeping on cot. In one of the rooms, his wife and son Gajanan were sleeping. In the night at about 1.30 a.m. his wife Usha came to him and enquired about their son, namely, Gajanan. They searched him. His wife went at backyard of house and found Gajanan @ Deepak lying. She lifted him and brought to the front side. Mouth of Deepak was tied by green colour cloth and white cotton strip. There was ligature mark on the neck of Gajanan alias Deepak. Deepak was found in dead condition. Police Patil of the village was informed who in turn called the police. Complainant P.W.1 lodged the report, Exhibit 15 in the Police Station, Chikhali. (iii) In the report, complainant stated that there was quarrel with Pralhad Khadke and he threatened to kill all his legal heirs. He suspected Pralhad Khadke. On the basis of report of complainant, crime was registered for the offences punishable under Sections 302 and 452 of the Indian Penal Code. Initially, police arrested Pralhad Khadke. (iii) In the report, complainant stated that there was quarrel with Pralhad Khadke and he threatened to kill all his legal heirs. He suspected Pralhad Khadke. On the basis of report of complainant, crime was registered for the offences punishable under Sections 302 and 452 of the Indian Penal Code. Initially, police arrested Pralhad Khadke. During enquiry, they found that accused Gajanan Gunjal, son-in-law of the complainant is the real culprit, therefore, Pralhad Khadke was released as per the provisions of Section 169 of the Code of Criminal Procedure. (iv) Investigating Officer Shri Vijaysing Rajput interrogated accused. Accused confessed to show the nylon rope, accordingly, it was seized as per his confessional statement. Before that, post mortem was conducted. Injuries were found on both hands of accused and, therefore, he was referred for medical examination. He was produced before the Judicial Magistrate First Class, Chikhali. His confessional statement was recorded. Investigating Officer has recorded supplementary statements of witnesses and after complete investigation filed charge-sheet before the Court. The trial Court framed charge at Exhibit 6 for the offences punishable under Sections 302 and 452 of the Indian Penal Code. Prosecution has examined in all total 9 witnesses. (v) Statement of accused under Section 313 of Code of Criminal Procedure was recorded. He has denied material incriminating statement against him. After hearing the prosecution and defence, learned Sessions Judge has come to the conclusion that prosecution has proved the circumstances against the accused which show that accused is the real culprit and held him guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay fine of Rs. 2,000/- in default to suffer further rigorous imprisonment for three months. Being aggrieved by the impugned judgment, appellant/accused filed the present appeal. 4. Shri Chande, learned counsel appearing on behalf of Mrs. Kalasi, learned counsel for the appellant has pointed out evidence of witnesses and submitted that First Information Report was lodged against one Pralhad Khadke. There was no enmity or motive to commit murder of appellant's brother-in-law/deceased Deepak @ Gajanan. He has submitted that circumstantial evidence is not proved by the prosecution. He further submitted that circumstances should be strong which clearly points out the guilt of accused. Prosecution has failed to prove all the circumstances against the accused, therefore, accused/appellant is entitled for acquittal. There was no enmity or motive to commit murder of appellant's brother-in-law/deceased Deepak @ Gajanan. He has submitted that circumstantial evidence is not proved by the prosecution. He further submitted that circumstances should be strong which clearly points out the guilt of accused. Prosecution has failed to prove all the circumstances against the accused, therefore, accused/appellant is entitled for acquittal. In support of his submissions, he relied on the judgment of Hon'ble Supreme Court in the Case of Sujit Biswas vs. State of Assam, (2013) 12 SCC 406 . 5. Shri Pathan, learned Additional Public Prosecutor strongly supported the impugned judgment and submitted that circumstances against accused are proved, therefore, accused is rightly convicted by the trial Court. Hence, appeal is liable to be dismissed. 6. From perusal of the evidence of P.W.1 and P.W.3, it is clear that there are only 4 rooms in the house of complainant. In the third room, his wife and son were sleeping. In the second room, appellant with his wife and daughter were sleeping. The complainant was sleeping in the courtyard. He has stated that at about 1.00 to 1.30 a.m., his wife came to him and enquired as to where their son Deepak @ Gajanan. They found Deepak lying on the backside of their house. They found mouth of Deepak was tied by green coloured cloth as also another cotton strip tied at the mouth of Deepak. They found strangulation on the neck. Deepak was dead. He has stated that initially, he lodged report against Pralhad Khadke because he has threatened to kill his all legal heirs. 7. P.W.3 also stated that son of Pralhad Khadke caught her hand and on her report, Pralhad's son was arrested and prosecuted by police. She has also stated that Pralhad threatened to kill deceased. P.W.1, P.W.2 and P.W.3 stated in their examination-in-chief that from the time of incidence, police were visiting their house. Accused was frightened, then police taken him and brought him, that time, he disclosed as to how he committed offence. 8. Learned Sessions Judge relied on following circumstances: (1) Presence of accused in the house. (2) Finding a nylon wire with accused prior to incident. (3) Injuries at the hands of accused. (4) Age of the injuries found at the hands of accused. (5) Memorandum and seizure of nylon wire at the instance of accused. (6) Motive for commission of crime. Learned Sessions Judge relied on following circumstances: (1) Presence of accused in the house. (2) Finding a nylon wire with accused prior to incident. (3) Injuries at the hands of accused. (4) Age of the injuries found at the hands of accused. (5) Memorandum and seizure of nylon wire at the instance of accused. (6) Motive for commission of crime. (7) Confessional statement of accused. 9. There is no dispute that case of prosecution is based only on circumstantial evidence. Now it is well settled law that accused can be convicted on the basis of circumstantial evidence, provided that, circumstances should be so strong that it should point out guilt towards accused and none else. 10. The circumstances which are relied on by the trial Court is to be considered whether those are the strong circumstances against the accused. (1) Presence of accused in the house This circumstance cannot be taken against the accused because evidence on record shows that accused is son-in-law of the complainant. The complainant sustained injury while doing agriculture operation. He called accused along with his wife and requested them to stay with him. They continued to stay at the house of the complainant. Accused along with his wife were doing agriculture operation in the field of complainant. It has brought on record in the evidence of P.W.3 that her daughter was demanding water frequently, therefore, she was not in deep sleep. Her husband was sleeping with her. He had gone outside for urinal for two times. But she did not notice anything. Presence of accused in the house of the complainant was natural and, therefore, it cannot be taken against the accused. (2) Finding a nylon wire with accused prior to incident Learned trial Court has recorded its finding that appellant's wife P.W.3 has stated in her evidence that she saw nylon wire in the pocket of accused when she was washing his cloths before 5 to 6 days of the incident but she has not stated that it was the same nylon rope which was found near the dead body. In her cross-examination, she has stated that when her mother lifted and brought Gajanan inside, she had seen green colour cloth, cotton stripe and yellowish nylon wire. Prosecution has examined panch witness Abdul Majjid to prove the memorandum panchanama, Exhibit 27 and recovery panchanama, Exhibit 28. In her cross-examination, she has stated that when her mother lifted and brought Gajanan inside, she had seen green colour cloth, cotton stripe and yellowish nylon wire. Prosecution has examined panch witness Abdul Majjid to prove the memorandum panchanama, Exhibit 27 and recovery panchanama, Exhibit 28. As per these panchanamas, accused shown the place from where nylon rope was seized from one grain storage place (Kutar) in the field. Her further evidence shows that when she asked accused as to why he kept nylon wire in his pocket, he replied that he found said wire on the street hence he took the same. It was a natural conduct of an agriculturist and, moreover, this nylon wire was found by P.W.3 before 5 to 6 days before the incident. Moreover, she has not stated that it was the same nylon wire which was found near the dead body. Therefore, this circumstance is not material to point towards the guilt of accused. (3) Injuries at the hands of accused. (4) Age of the injuries found at the hands of accused. P.W.7 Dr. Chavan has stated in his evidence that on 25.3.2014, he has examined the appellant/accused and found following two injuries. (1) two blackish scaly lesion (injury) of size 0.8 cm x 0.2 cm and 1 cm x 0.2 cm on dorsum of right hand thumb side, most probably due to superficial abrasion and may about 3 to 5 days back. (2) Shinning whitish lesion with partially or half would covered with blackish scaly and half wound appears shining due to removal of scale, it may also probably due to superficial abrasion may appears about 5 to 7 days back (size – 1cm x 0.7 cm on dorsum of left hand thumb side) Specific question was asked by A.P.P. that if someone takes nylon wire and strangulated other then whether such injuries at hand could be possible? Dr. Chavan has specifically denied as 'No'. This circumstance of having injuries on the hands of accused is relied by the trial Court by recording reason that he applied force by nylon rope by rounding to his hands and, therefore, injuries were caused. This finding is totally baseless in view of the specific evidence of Dr. Chavan. He has stated in his cross-examination that there is every possibility of having such types of injuries while doing agriculture work like putting grain into threasure. This finding is totally baseless in view of the specific evidence of Dr. Chavan. He has stated in his cross-examination that there is every possibility of having such types of injuries while doing agriculture work like putting grain into threasure. It is pertinent to note that in cross-examination, P.W.3 wife of accused stated that one day before incident, they were doing the work of threshing gram crop and accused helped them in collecting gram crop. Looking to the admission of Dr. Chavan, it is clear that injuries are of minor nature and can be caused while doing agriculture operation. Moreover, age of the injuries stated by Dr. Chavan shows that injury no. 1 may be caused about 3 to 5 days back and injury no. 2 may be caused before 5 to 7 days from the time of examination. Accused was examined on 25.3.2014. Incident was in the night of 20/21 March, 2014. Therefore, it is clear that those injuries were not caused at the time of incident to the accused. Dr. Chavan has specifically admitted that age of both injuries are not same, therefore, it cannot be said that the injuries found on the hands of accused were caused at the time of incident. There is every probability of causing injuries during the agriculture operation. His wife has specifically stated that there was agriculture operation one day before the incident in the field of complainant/her father. Therefore, these circumstances cannot be taken to be circumstances about the incident. (5) Memorandum and seizure of nylon wire at the instance of accused (i) Learned trial Court has relied on the evidence of panch witnesses on point of recovery of nylon wire. P.W.5 has stated in his evidence that accused confessed to show nylon wire, accordingly, memorandum panchanama, Exhibit 27 was prepared. Thereafter, accused took them near river bank at Village Savna and they proceeded to one field. The field owner unlocked said Kothar/room by his key. Accused took them inside and taken out nylon rope. It was seized as per seizure panchanama, Exhibit 28. Learned trial Court has relied on this particular evidence and taken it as one of the circumstances. As per evidence of P.W.6 Dr. Meena Kasare, she has conducted post mortem on the dead body of deceased. Accused took them inside and taken out nylon rope. It was seized as per seizure panchanama, Exhibit 28. Learned trial Court has relied on this particular evidence and taken it as one of the circumstances. As per evidence of P.W.6 Dr. Meena Kasare, she has conducted post mortem on the dead body of deceased. She has stated that ligature mark found on the body of deceased is possible by nylon rope which was shown to her before the Court. It is pertinent to note that she stated in her evidence that whether the seized rope was the same rope is doubtful. (ii) P.W.3 in her evidence has specifically stated that her mother lifted and brought deceased Gajanan inside. She had seen green colour cloth, cotton stripe and yellowish nylon wire. Nylon wire was lying at the place where Gajanan was lying and it was brought by her mother inside. Police have unfastened green cloth and cotton stripe which was tied at the mouth of Gajanan. Police also took yellowish nylon wire with them when they carried dead body of Gajanan. This fact stated by P.W.3 in her evidence was also pointed out to her by the trial Court at the time of evidence but she has stated that she has correctly stated the same. (iii) Admission of P.W.3 clearly shows that nylon wire which was used for commission of offence was already lying on the spot of incident. Her mother brought the said nylon wire. Police had taken the said nylon wire with them when they carried dead body. In view of this admission, recovery of nylon wire at the instance of accused as stated by P.W.5, panch witness is not helpful to the prosecution because nylon wire was already in possession of police and, therefore, this circumstance cannot be used against the accused. (6) Motive for commission of crime. The finding in respect of motive for commission of crime recorded by the trial Court that deceased was the only son of the complainant, accused is son-in-law of the complainant. Accused wanted to eliminate deceased so that there should not be any male legal heir to the complainant. This finding is without any evidence and only based on assumptions and presumptions. P.W.1 in his examination-in-chief in paragraph no. Accused wanted to eliminate deceased so that there should not be any male legal heir to the complainant. This finding is without any evidence and only based on assumptions and presumptions. P.W.1 in his examination-in-chief in paragraph no. 8 stated that “when they asked accused as to why he did so, then accused replied that after finishing his son, he would get the property hence he did.” This particular evidence is omission. He has stated for the first time in his examination-in-chief. He has specifically admitted in cross- examination that “I have not stated in my police statement that we asked accused as to why he did the things on which he replied that after killing my son, he would get the entire property.” Therefore, to get the property of his father-in-law, accused killed his brother-in-law/only son of the complainant is without any evidence. Moreover, P.W.2 and P.W.3 have not stated anything on this point. P.W.3 is the wife of accused. She would have stated about the intention/wishes of accused to get the property/share in the property to her husband. On the other hand it is admitted by P.W.2 in her cross-examination in paragraph no. 10 that “it is true that accused has invested Rs. 1,50,000/- in the name of his wife i.e. my daughter in the bank as fixed deposit. It is true that said fixed deposit was earlier in the name of mother of accused which was later on transferred in the name of wife of accused.” This particular admission of mother-in-law of accused clearly shows that accused was having sufficient amount. If he had any intention to get the property of his father-in-law, definitely, he would have disclosed to his wife i.e. P.W.3. P.W.2 and P.W.3 in their evidence have not stated the single instance about the ill-will of accused. P.W.1/ complainant for the first time deposed before the Court that accused eliminated his son because he wanted to get his property. This material evidence of P.W.1 is nothing but material omission. He has admitted that he has not stated so in any of the police statements though his statement was recorded for two times. Therefore, without any evidence, learned trial Court has taken this circumstance as 'it is proved by the prosecution'. This material evidence of P.W.1 is nothing but material omission. He has admitted that he has not stated so in any of the police statements though his statement was recorded for two times. Therefore, without any evidence, learned trial Court has taken this circumstance as 'it is proved by the prosecution'. When there is not a single evidence to prove this circumstance, then the trial Court ought not to have taken into consideration the circumstance against the accused. (7) Confessional statement of accused (i) Learned trial Court has recorded finding that confession statement was recorded by Judicial Magistrate First Class, P.W.8 is sufficient to prove guilt. It is pertinent to note that accused has specifically stated that he was threatened by the police and one chit was given to him and therefore, he gave a statement. Moreover, this statement even if it is taken as it is, then also, it is not reliable because he has stated that he has committed crime at about 8 p.m. whereas evidence of all the witnesses shows that it took place in the night at about 1.00 to 1.30 a.m. If it was a voluntary statement, then accused would have stated the reason for commission of crime. He had only stated that he taken deceased at the backside of house and pressed his neck by nylon rope and returned back and slept. (ii) Wife of accused P.W.3 has stated in her cross-examination that her daughter always used to demand water in the night. In the night of Incident, she had not kept the water container near their bed, that time, she along with her husband and daughter were slipping on cot. Her daughter demanded drinking water at the night at around 12.00. Her husband/accused had gone on two occasion for urinal, therefore, she was awakened. (iii) The cross-examination of P.W.3 shows that she was not in a deep sleep, moreover, time of 8.00 p.m. stated in confession statement is not stated by P.W.1, P.W.2 and P.W.3. As per their evidence, incident took place at about 1.00 to 1.30 a.m. Accused was sleeping with his wife, P.W.3, therefore, it was natural for her to notice the activity of her husband but she has not stated anything. Therefore, there is substance in the defence that accused gave confession statement because he was pressurized by the police. As per their evidence, incident took place at about 1.00 to 1.30 a.m. Accused was sleeping with his wife, P.W.3, therefore, it was natural for her to notice the activity of her husband but she has not stated anything. Therefore, there is substance in the defence that accused gave confession statement because he was pressurized by the police. (iv) As per the evidence of Investigating Officer P.W.9, P.W.2 mother of deceased suspected accused on 2432014. Thereafter, he had taken the accused in custody. P.W.2 has not stated anything why she suspected accused about the commission of crime. (v) Confession statement recorded by the Judicial Magistrate First Class is not reliable because he has not followed mandatory provisions of Section 164(3) and 164(4) of the Code of Criminal Procedure. The guidelines are given in the Criminal Manual in Chapter I paragraph 18 as to how confession is to be recorded by the Magistrate. (vi) From perusal of evidence of P.W.8 Judicial Magistrate First Class Shri Rao, it is clear that he has not followed the guidelines of Criminal Manual and the mandatory provisions of Section 164(3) and 164(4) of the Code of Criminal Procedure. He has specifically admitted that he has not mentioned in the statement of accused that it was read-over to him and he accepted and signed. He has specifically stated that accused was produced before him on 3.4.2014 but he has not asked a single question to him and sent him to jail. Letter is at Exhibit 43 which shows that Magistrate was busy in his Court work, therefore, not in a position to record confession under Section 164 of the Code of Criminal Procedure, therefore, Superintendent of Jail was directed to produce him on 5.4.2014. (vii) As per the procedure, on the first day, when the accused is brought before the Court for confession, the Magistrate is bound to ask some question to accused and tell him that he is not bound to give confession and he has to inform him that he will not be under the custody of police. But Judicial Magistrate First Class, P.W.8 not asked a single question to the accused on that day. Moreover, even after recording confession statement, he has not given certificate as required by Section 164(4) of the Code of Criminal Procedure. The mandatory provisions are not followed by the Judicial Magistrate First Class. But Judicial Magistrate First Class, P.W.8 not asked a single question to the accused on that day. Moreover, even after recording confession statement, he has not given certificate as required by Section 164(4) of the Code of Criminal Procedure. The mandatory provisions are not followed by the Judicial Magistrate First Class. (viii) The confessional evidence is a weak type of evidence, therefore, it cannot be taken against the accused, without any corroborative evidence. In the present case, the prosecution has miserably failed to prove any of the circumstances against the accused. Now it is well settled law that prosecution has to prove the guilt of accused beyond reasonable doubt. When the case of the prosecution is based on circumstantial evidence, then circumstances should be of such nature which should point out finger towards the guilt of accused only and none else. 11. The Hon'ble Apex Court in the case of Sujit Biswas vs. State of Assam (supra) held that there is distinction between proof beyond reasonable doubt and suspicion. In the cited decision, the Hon'ble Apex Court has reproduced the observation of Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 in which Hon'ble Apex Court has held that: “Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence.” 12. The circumstances which are relied by learned Sessions Judge are not at all proved by the prosecution. Those are not the circumstances which points out guilt of accused. Prosecution has miserably failed to prove any of the circumstances. In the result, prosecution has miserably failed to prove the guilt of accused. Therefore, appeal needs to be allowed. Hence the following order. (i) The appeal is allowed. (ii) Impugned judgment dated 18.12.2014 passed in Sessions Case No. 67/2014 by learned Sessions Judge, Buldhana is hereby quashed and set aside. (iii) Accused Gajanan Narayan Gunjal is acquitted for the offence punishable under Section 302 of the Indian Penal Code. Therefore, appeal needs to be allowed. Hence the following order. (i) The appeal is allowed. (ii) Impugned judgment dated 18.12.2014 passed in Sessions Case No. 67/2014 by learned Sessions Judge, Buldhana is hereby quashed and set aside. (iii) Accused Gajanan Narayan Gunjal is acquitted for the offence punishable under Section 302 of the Indian Penal Code. Accused is in Jail. He be set at liberty if not required in any other crime/case. (iv) Muddemal property be destroyed after appeal period is over.