JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal has been filed by accused-appellant Sharwan Kumar against the judgment of his conviction dated 05.08.2013 passed by the Additional Sessions Judge No. 1, Kishangarh Bas, District Alwar in Sessions Case No. 16/2011. The accused-appellant by the aforesaid judgment has been convicted for offence u/s. 302 IPC and sentenced to life imprisonment with fine of Rs. 20,000/- in default of which, he was to further undergo rigorous imprisonment of one year. He was also convicted for offence u/s. 458 IPC and sentenced to rigorous imprisonment of seven years with fine of Rs. 20,000/- in default of which he was to further undergo rigorous imprisonment of one year. He was also convicted for offence u/s. 392 IPC and sentenced to rigorous imprisonment of five years with fine of Rs. 20,000/- in default of which he was to further undergo rigorous imprisonment of one year. All the sentences were ordered to run concurrently. 2. The brief and relevant facts giving rise to the present appeal are that on 18.02.2011, the complainant Chimman Singh lodged a written report against some unknown persons at Police Station, Kotkasim with regard to an incident alleged to have taken place on the same day. It was alleged in the said report by the complainant that on 17.02.2011, he along with his son Devendra and his daughter-in-law had gone out of station and her wife Savitri Devi was alone in his house. On 18.02.2011, one of the villagers namely; Raju informed him on telephone that his wife Savitri Devi has been murdered by someone. On receiving such information, he reached his village and in presence of villagers, he saw that his wife Savitri Devi was lying dead on a cot. He alleged that some unknown person had murdered his wife and committed theft of ornaments lying in the box and almirah. 3. On the basis of the above mentioned report, the police registered a criminal case bearing F.I.R. No. 31/2011 for alleged offence under Section 450 & 380 I.P.C. and investigation commenced. After completion of investigation, police submitted the charge sheet against the appellant in the Court of learned Additional Chief Judicial Magistrate, Kishangarh Bas, Alwar, who took cognizance of the offences. On the basis of the above mentioned report, the police registered a criminal case bearing F.I.R. No. 31/2011 for alleged offence under Section 450 & 380 I.P.C. and investigation commenced. After completion of investigation, police submitted the charge sheet against the appellant in the Court of learned Additional Chief Judicial Magistrate, Kishangarh Bas, Alwar, who took cognizance of the offences. The offences being exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of learned Additional Sessions Judge No. 1, Kishangarh Bas District Alwar for trial. The learned trial court after hearing the arguments, framed the charges against the accused appellant for offence under Sections 458, 302 & 392 I.P.C. The accused-appellant denied the charges and claimed to be tried. During trial, the prosecution examined as many as 17 witnesses and exhibited 25 documents. The learned trial court examined the accused appellant under Section 313 Cr.P.C. in which he denied the charges and stated that he has been falsely implicated by the police. The learned trial court after hearing the parties vide impugned Judgment dated 05.08.2013 has convicted the accused appellant for offence under Section 458, 302 and 392 I.P.C. and sentenced him in the manner as stated above. 4. Shri Gurvinder Singh, learned counsel for the accused-appellant submitted that the accused-appellant was not named in the F.I.R. as an accused. He has no concern with the alleged crime and there is no evidence available on record of any sort to connect him with the alleged crime but during investigation the police has falsely implicated the appellant without any connecting or corroborating evidence. Learned counsel further submitted that the learned Trial Court has committed serious error of law as well as fact in convicting and sentencing the accused appellant for offence under Section 458, 302 and 392 I.P.C. It is submitted that no such alleged offence is made out and proved against the accused appellant on the basis of the evidence which was produced by the prosecution. The prosecution has completely failed to prove the guilt of the accused appellant beyond all reasonable doubt. 5. The prosecution has completely failed to prove the guilt of the accused appellant beyond all reasonable doubt. 5. It is contended that the learned Trial Court has further failed to consider that while appreciating the evidence in a criminal case, the court should keep in view two cardinal principles that the guilt of the accused must be proved beyond reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by him as it lies on the prosecution. The burden of proving his defence can be discharged by the accused merely by preponderance of probabilities in favour of the plea taken by him. There are several infirmities and contradictions in the statements of the prosecution witnesses and therefore no reliance can be placed upon testimony of such witnesses. 6. Statement of the prosecution witnesses are inconsistent, contradictory and also suffer from infirmities. The witnesses of the prosecution have suppressed the genesis of the occurrence and have not corroborated the story of the prosecution. Therefore, the prosecution witnesses cannot be treated as credible and reliable witnesses. It is submitted here that there is no legal or direct evidence against the appellant and the present case is based on circumstantial evidence. The chain of circumstances is not so complete as may rule out every hypothesis compatible with innocence of the accused appellant. 7. It is contended that the accused appellant has been falsely implicated in this case only on the ground of alleged last seen evidence. In this regard, the prosecution has produced two witnesses namely Jal Kaur (PW-5) and Indra Devi (PW-6), whereas these witnesses are not the witnesses of last seen as per investigation. It is contended that in this case vide memo Ex.P11 the police alleged to have recovered two articles of gold as well as of silver. These articles were not recovered from the exclusive possession of the appellant and further the alleged recovered articles were not even got identified from complainant to ascertain whether these articles were stolen articles and belonged to the deceased. The identification of the recovered articles was conducted by the police in violation to the provisions of Section 9 of Evidence Act and the Police Rules, thus it is not proved beyond doubt that the alleged recovered articles were stolen articles and same were of the deceased. The identification of the recovered articles was conducted by the police in violation to the provisions of Section 9 of Evidence Act and the Police Rules, thus it is not proved beyond doubt that the alleged recovered articles were stolen articles and same were of the deceased. It is further submitted that the alleged recovered articles were even not produced in the Court by the prosecution. Thus the recovery itself is doubtful and benefit of doubt of which should go to the accused appellant. 8. Shri Gurvinder Singh, learned counsel for the accused-appellant has submitted that the learned trial court has further failed to consider that on the date of alleged incident, the appellant was even not present. On 18.02.2011 itself, the appellant went to his Village Motiya for attending the function of “Kua Poojan” for his son, who was born before two and half months before the alleged incident. On 18.02.2011 one Rajendra (PW-9) made a telephonic call to the appellant and told him to come back, whereupon appellant came back. It is contended that the learned trial court has recorded a perverse finding on this basis that the appellant was in dire need of money for the function of “Kua Poojan” of his son and therefore committed murder of deceased to steal gold and silver ornaments. It is submitted that had the appellant committed theft of alleged one recovered article, he would have carried the same with himself and sold it for money and he would not have kept the same in his room. Thus the finding of learned trial court on this aspect is not sustainable in the eye of law. 9. It is contended that the learned trial court has neither properly considered nor critically examined the statements of the prosecution witnesses and in a general and routine manner has discussed the same and after taking into consideration the few stray words from their statements, has passed the impugned judgment of conviction. This method adopted by the learned trial court is against the criminal jurisprudence. The learned trial court has not properly appreciated the material and evidence available on record in its true sense and has passed the impugned judgment of conviction and sentence in a cursory manner. The findings arrived at by the learned trial court are vitiated as being based on misreading and non-reading of the material evidence and on mere surmises and conjectures. The findings arrived at by the learned trial court are vitiated as being based on misreading and non-reading of the material evidence and on mere surmises and conjectures. 10. Smt. Sonia Shandilya, learned Public Prosecutor for the State has opposed the appeal and supported the impugned judgment. She submitted that there is sufficient material on record to sustain conviction of the accused-appellant for the alleged offence. The chain of circumstances in this case is complete to sustain the conviction of the accused-appellant and rules out every single hypothesis compatible with his innocence. Therefore, no case is made out for interference in the impugned judgment and the appeal is liable to be dismissed. 11. We have given our anxious consideration to rival submissions and perused the material on record. 12. There being no direct evidence, entire case of the prosecution hinges on the circumstantial evidence. The trial court has found that the deceased was alone at home in the night of the incident. As per Sunil Kumar (PW-15), the marriage ceremony of his brother took place on 20.02.2011. Females of the village came to their house in the night of 16.02.2011 for attending sangeet programme. In the morning, it transpired that somebody had murdered Savitri Devi. Smt. Tara Devi (PW-8) has also admitted this fact that she had also gone to the house of Dataram along with deceased Savitri Devi for attending the sangeet function. 13. Devendra Kumar (PW-4) had seen deceased lastly alive in the evening of 16.02.2011. Tara Devi (PW-8) and Sunil Kumar (PW-15) have also stated that they saw deceased alive in the night of 17.02.2011. Two witnesses, who have been heavily relied by the trial court in support of its finding of conviction of appellant are Jal Kaur (PW-5) and Indra Devi (PW-6). Jal Kaur (PW-5) has stated that in the morning of the date of incident deceased Savitri was alone in the house because her daughter-in-law had gone to her parental home. This witness went to her house in the morning for collecting butter milk (chhach). The main gate was bolted from inside. She thereupon called Savitri. The accused, who was a tenant in the adjoining house, was at that time standing on the roof of house. He told this witness that the main gate was not open and that they should go through the rear gate of the house which was open. The main gate was bolted from inside. She thereupon called Savitri. The accused, who was a tenant in the adjoining house, was at that time standing on the roof of house. He told this witness that the main gate was not open and that they should go through the rear gate of the house which was open. They therefore went to the house from another gate. When they went inside, all the doors were lying open and Savitri was found sleeping on a cot covered by a blanket. When they removed the blanket, they found Savitri dead. They raised hue and cry and came out of the house. This witness in cross examination has stated that she herself and Indra (PW-6) had seen dead body of Savitri even before her husband Chimman (PW-1) arrived there. Shrawan, who was standing on the roof top of his house told them that the rear gate of the house was open. She has denied the suggestion that Shrawan was not present and had gone to Kotkasim. 14. Learned trial court in the impugned judgment has drawn adverse inference against the accused for the reason that he told the witnesses Jal Kaur (PW-5) and Indra (PW-6), that rear gate was open and that since he committed murder of the deceased, he was aware of the fact that main gate was closed and rear gate was open, observed the trial court. We hardly find any justification for such an inference because in our opinion if the accused had actually been responsible for murder of the deceased, his normal human behaviour would not be of such nature. He would have fled away from his house or at least, he would not have suggested to these two women to enter the house from the rear gate so that they could come to know about the murder of the deceased. Indra Devi (PW-6) also does not prove anything in support of prosecution case. She has also corroborated what has been stated by Jal Kaur (PW-5). Although in cross examination she has stated that she heard accused- appellant Shrawan had a son born before the incident and that he wanted to go to his native for a ritual (kua poojan). But she denied this fact for want of knowledge if he actually had gone to his village. Even her statement does not help the prosecution. 15. Although in cross examination she has stated that she heard accused- appellant Shrawan had a son born before the incident and that he wanted to go to his native for a ritual (kua poojan). But she denied this fact for want of knowledge if he actually had gone to his village. Even her statement does not help the prosecution. 15. The prosecution has also produced Tara Devi (PW-8) to prove that accused was seen in front of the house of the deceased when the females were returning back from the house of Dataram late in the previous night, where they went to attend the programme of sangeet. When Tara Devi was asked about this fact, she denied having seen accused-appellant outside the house of the deceased on the fateful night. She rather stated that she did not see anyone near the house of Chimman and that she did not give any such statement to the police vide Ex.P13. This witness was thus declared hostile. Rajendra (PW-9), the roommate of the accused-appellant has stated that wife of Shrawan gave birth to a male child about one and half months before the incident and that he wanted to go to his house for the ceremony of kua poojan. He has stated that Shrawan used to go to the house of the deceased to fetch milk. After accused left for his village early in the morning on 18.02.2011, he learnt that somebody had murdered Savitri Devi. He called Shrawan on telephone and asked him to return back or else people will doubt him as the murderer. Shrawan immediately returned back. In cross examination, he has stated that Shrawan left early in the morning and that he learnt about murder of Savitri at about 7.30 AM and thereafter he called him. Even this conduct of Shrawan cannot be said to be unnatural and does not raise any finger of doubt towards him. In the normal of human behaviour, if he was a murderer, he would not have returned back by accepting the suggestion made by his room mate Rajendra. 16. Reliance of the prosecution on the statement of Veer Singh (PW-10) to hold that the accused made extra judicial confession in his presence, is wholly misconceived. This witness admittedly did not say anything of this sort in his police statement. 16. Reliance of the prosecution on the statement of Veer Singh (PW-10) to hold that the accused made extra judicial confession in his presence, is wholly misconceived. This witness admittedly did not say anything of this sort in his police statement. It was for the first time in the Court that he has stated that accused-appellant during interrogation by police admitted his guilt of murdering Savitra and thereafter leaving for his village Kotkasim at 6 o’ clock on 18th and then Rajendra called him back. So far as the fact that he returned back on the persuasion of Rajendra, is corroborated by Rajendra himself and there is nothing unusual about this. But the alleged extra judicial confession cannot be accepted as valid in evidence for two reasons; firstly that Veer Singh (PW-10) did not state any such thing in the statement made to the police u/s. 161 Cr.P.C. (Ex.D4) on 21.02.2011 and secondly, such alleged confession in the presence of police personnel would not be admissible in evidence being hit by Section 25 and 26 of the Evidence Act. 17. In fact, Jal Kaur (PW-5) has stated that when she along with Indra (PW-6), first saw the dead body of deceased lying on the cot, one of her ear rings was found missing and the necklace of her neck was broken. Had the accused really committed murder of deceased for the sake of money and ornaments, he would have been in all probabilities not left the broken necklace there. For the same reason, therefore, we are not inclined to believe the recovery of one of the ear ring and one silver shield of LIC, which is shown to have been recovered at the instance of the accused-appellant vide Ex.P11 from his room. If at all the accused would have committed the murder for such things as suggested by prosecution that he badly needed money for the ceremony kua poojan of his son, he would not have left these articles in his room so as to easily furnish the proof to the police of his involvement in the murder. 18. Curiously, the informant in the FIR has alleged about the loot of number of jewellery articles, which were as follows:- 1. One gold necklace weighing about 3 tola. 2. Two silver shield with L.I.C. mark weighing about 350 gm. 3. One pair of gold Ear ring (Jhumki) weighing about 2 tola. 18. Curiously, the informant in the FIR has alleged about the loot of number of jewellery articles, which were as follows:- 1. One gold necklace weighing about 3 tola. 2. Two silver shield with L.I.C. mark weighing about 350 gm. 3. One pair of gold Ear ring (Jhumki) weighing about 2 tola. 4. One pair of gold Tops weighing about 10 gm. 5. One gold Helix (Kundal) weighing about 4 gm. 6. Two silver Bangles (Kadee) weighing about ½ kg. 7. Five silver Coins. 8. Four gold rings weighing about 3 tola. 9. Two gold Chains weighing about 4 tola. 10. Two gold necklace (Haar) weighing about 11 tola. 11. Two gold Nose ring (Nath) weighing about 1 tola. 12. Two gold Coins weighing about 13 gm. with L.I.C. mark. 19. Later on, Chimman Singh (PW-1) himself submitted letter Ex.P8 to the SHO, Police Station Kotkasim, District Alwar, informing that above all the articles allegedly looted were found in the house itself. Moreover, recovery of scissor vide Ex.P10, which has been attributed to the accused-appellant also appears to be result of the police padding as this scissor has been recovered from the house of the deceased, as stated by Chimman Singh (PW-1) himself, which hardly prove anything against the accused-appellant. 20. In view of above analysis, the charges against the accused-appellant cannot be said to be therefore taken to be proved against him beyond reasonable doubt. The chain of circumstances against the accused appellant is having several missing links inasmuch as not only individual circumstances have not been proved by clinching or reliable evidence, but all these circumstances cannot be joined together as a chain so complete as to unerringly point the niddle of doubt towards the accused-appellant and none else and do not rule out every single hypothesis that may be compatible with his innocence. In the circumstances, the impugned judgment cannot be sustained. 21. In view of above discussion, the appeal deserves to succeed and is accordingly allowed. The impugned judgment of conviction and sentence of accused-appellant dated 05.08.2013 is set aside. The accused-appellant Sharwan Kumar is acquitted of the charges for offence u/ss. 458, 302 and 392 IPC. He be set at liberty forthwith, if not required to be detained in connection with any other case. 22. The impugned judgment of conviction and sentence of accused-appellant dated 05.08.2013 is set aside. The accused-appellant Sharwan Kumar is acquitted of the charges for offence u/ss. 458, 302 and 392 IPC. He be set at liberty forthwith, if not required to be detained in connection with any other case. 22. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant 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 Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.