JUDGMENT : Kanwaljit Singh Ahluwalia, J. Dungaram (PW-17) on 06.08.1991 at about 04:15 P.M. presented a written-report (Exhibit-P/16) before Ramdhan (PW-18), who was then posted as In-charge, Police Station Shahpura. 2. Ramdhan (PW-18) on the basis of above said written-report (Exhibit-P/16) recorded a formal First Information Report (Exhibit-P/17) bearing No.259/1991 at Police Station Shahpura District Jaipur Rural. 3. In the written-report (Exhibit-P/16), Dungaram (PW-17) stated that on 06.08.1991 at about 02:00 P.M. Ramswaroop came to his house and informed that the wife of Gopal in a sorghum (jawar) field has been murdered by causing incised injuries. Immediately, from his house, he came to the field and saw that Smt. Chhima was lying dead in the field. Her neck was strangulated with her loongari. Her neck and ears were having incised injuries. According to Dungaram (PW-17), incised injury was also present on the head of Smt. Chhima, wife of Gopal. 4. In the aforesaid written-report (Exhibit-P/16), following three facts are discernible :- "A. That the dead-body has been found in the sorghum (jawar) field. B. That besides strangulation, dead-body was having incised injuries. C. That in the written-report (Exhibit-P/16), none has been indicated as assailant." 5. In view of above, First Information Report was investigated. Investigating Agency submitted a charge-sheet against accused - Gopal @ Gopi @ Bachi son of Ghasiram, husband of deceased - Smt. Chhima and Kalu son of Bhura Ram, both residents of Village Dhani Gaurawali, Tan Shahpura District Jaipur Rural. 6. The trial Judge, vide its impugned judgment dated 29.04.1993, recorded acquittal of accused - Kalu son of Bhura Ram. However, trial Judge, vide its impugned judgment, convicted accused- Gopal @ Gopi @ Bachi for commission of offence punishable under Section 302 I.P.C., and, vide a separate order of even date, sentenced him to undergo life imprisonment and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo one year simple imprisonment. 7. The State of Rajasthan has opted not to file any appeal against the acquittal of Kalu son of Bhura Ram. 8. Aggrieved against the conviction and sentence, Gopal @ Gopi @ Bachi has preferred present appeal. 9. 7. The State of Rajasthan has opted not to file any appeal against the acquittal of Kalu son of Bhura Ram. 8. Aggrieved against the conviction and sentence, Gopal @ Gopi @ Bachi has preferred present appeal. 9. A report of investigation was submitted under Section 173 Cr.P.C. in the Court of concerned Magistrate, and the appellant, along with the report of investigation was committed to the Court of Sessions and the trial was entrusted to the Court of Additional Sessions Judge, Kotputali. 10. The trial Court charged the accused for commission of offence punishable under Section 302 I.P.C. The charge stated that the accused on 06.08.1991 between 09:00 to 01:30 P.M. in Village Dhani Gaurawali had committed murder of Smt. Chhima, after causing injuries on her neck and thereafter by strangulating her and, thus, committed offence punishable under Section 302 I.P.C. 11. The appellant/accused pleaded not guilty and claimed trial. 12. The prosecution, to secure conviction of the appellant, examined as many as eighteen witnesses. Thereafter, the statements of both the accused were recorded under Section 313 Cr.P.C. All incriminating evidence were put to them. They denied the same and pleaded false implication. 13. No witness was examined in defence. 14. We shall notice the evidence led by the prosecution. Jagdish (PW-1) in the Court stated that he is having a motor winding shop near Octroi Post at Neem-ka-thana Road. Twelve months ago, two persons came and parked their cycle. The witness stated that as to where said persons had gone, he is not aware, but witness stated that he knew one Gopal. Thereafter, he went to Municipal Council. The witness stated that he is not remembering as to when accused returned back. However, he came at about 03:00-04:00 P.M. At that time, cycle was not there. At 05:00-06:00 P.M., he learnt that a lady has been murdered. 15. Nathuram (PW-2) stated that he knew Gopal. Daughter of his brother, Chhima was married with Gopal and Chhima was murdered. Gopal and Kalu murdered Chhima. Incised injuries were caused on the neck of Chhima. Six-seven months ago, one Girdhari from the family of accused came and informed that your daughter has been murdered by somebody after causing incised injuries. This witness is not an eyewitness to the alleged occurrence. The witness stated that he had attested site-plan (Exhibit-P/1). Gopal and Kalu murdered Chhima. Incised injuries were caused on the neck of Chhima. Six-seven months ago, one Girdhari from the family of accused came and informed that your daughter has been murdered by somebody after causing incised injuries. This witness is not an eyewitness to the alleged occurrence. The witness stated that he had attested site-plan (Exhibit-P/1). Kaluram had presented towel and bushirt, which were taken into possession by the Police vide memo Exhibit-P/4. The Police had taken hair of Kalu and Gopal as specimen sample vide memo Exhibit-P/2 and Exhibit-P/3 respectively. The Police had also prepared site-plan of the spot from where bushirt of Kaluram was recovered. 16. Onkar (PW-3) stated that at about nine-ten months ago, Smt. Chhima Devi was murdered. They received this information in the Village Sankwas. Onkar is also brother of father of Chhima. This witness stated that dead-body was handed over to them vide 'supurdginama', Exhibit-P/6. He is also witness to the taking of hair of the accused as specimen sample vide memo Exhibit-P/2 & Exhibit-P/3 and handing over of towel and bushirt by Kalu, accused to the Investigating Agency. Thus, Onkar has also not witnessed the alleged occurrence. 17. Manaram (PW-4) is from the Village of accused where deceased was married. This witness stated that six-seven months ago, wife of Gopal was harvesting sorghum (jawar) crop and she was murdered. The witness stated that he attested Inquest proceedings (Exhibit-P/7). Thus, Manaram is also not an eye-witness of the alleged occurrence. 18. Surajmal (PW-5) stated that Chhima was murdered. He had attested Panchnama (Exhibit-P/7), and from the spot one pair of chappal was taken into possession vide memo Exhibit-P/11. 19. Dr. Surendra Mohan (PW-6), being a Member of the Medical Board on 07.04.1991 (wrongly mentioned as 07.04.1991 instead of 07.08.1991) had conducted autopsy on the dead-body of Chhima and had noted various injuries in the Post Mortem Report (Exhibit-P/12). 20. Since it is an admitted fact that Smt. Chhima had died because of the violence, we need not notice the injuries specified in Post Mortem Report (Exhibit-P/12). 21. Dr. Ajay Narayan Mathur (PW-7) is another Doctor who was a Member of the Medical Board, which had conducted autopsy on the dead-body. 22. Dr. Kanti Lal Chawda (PW-14) is the third Member of the Medical Board. He has also proved Post Mortem Report of the deceased (Exhibit-P/12). 23. 21. Dr. Ajay Narayan Mathur (PW-7) is another Doctor who was a Member of the Medical Board, which had conducted autopsy on the dead-body. 22. Dr. Kanti Lal Chawda (PW-14) is the third Member of the Medical Board. He has also proved Post Mortem Report of the deceased (Exhibit-P/12). 23. Ramniwas (PW-8), being posted as Constable had carried thirteen packets to the Forensic Science Laboratory Rajasthan, Jaipur. 24. Tulsiram (PW-9) had attested Inquest proceedings (Exhibit- P/7). He had also attested site-plan of the spot (Exhibit-P/8), and memo Exhibit-P/9, whereby blood stained clothes from the dead-body were taken into possession. This witness also attested memo Exhibit- P/10, whereby blood stained soil and simple soil were taken into possession by the Police at the spot. 25. Nanga (PW-10) is also resident of Sankwas native Village of Chhima. This witness stated that Hanuman, brother of Kalu came and informed that Chhima has been murdered by some unidentified person. 26. Teeja (PW-11) is the sister of deceased. She is also resident of Sankwas. She in the court specifically stated that she has made an intuitive guess that her sister has been murdered by accused. 27. We reproduce here exact line from the cross-examination of the testimony of this witness (PW-11) :- ^^esjs dks ;g vanktk Fkk fd xksiky] dkyw vkSj NksVh us esjh cgu fNEek dks ekj fn;k gSA ;g esjs dks blfy, vanktk Fkk fd ;s mlds mij pyrs Fks eryc ekjihV djrs Fks** 28. Bhoori (PW-12) is the mother of deceased - Chhima. 29. Shyoji (PW-13) stated that he knew Ramswaroop, Gopal and also Chhima. Chhima was murdered. The mother-in-law of Chhima had told him that Chhima had gone to take fodder in the field. He was informed by his nephew that Chhima has been murdered. 30. Ganpat (PW-15) stated that he knew Gopal. He had attested Panchnama (Exhibit-P/7). 31. Prabhudayal (PW-16) had affected the arrest of the accused - Gopal @ Gopi @ Bachi and Kalu (Exhibit-P/13 and Exhibit-P/14), wrongly stated by the witness in Court testimony as Exhibit-P/14 & Exhibit-P/15. 32. Dungaram (PW-17) is not an eye-witness of the alleged occurrence. As stated earlier, he had lodged report and informed the Police regarding presence of dead-body in the field. 33. Ramdhan (PW-18), being Investigating Officer of the case, proved various facets of the investigation. 34. Thereafter, prosecution closed its evidence. 35. 32. Dungaram (PW-17) is not an eye-witness of the alleged occurrence. As stated earlier, he had lodged report and informed the Police regarding presence of dead-body in the field. 33. Ramdhan (PW-18), being Investigating Officer of the case, proved various facets of the investigation. 34. Thereafter, prosecution closed its evidence. 35. From the entire evidence of the prosecution, it is apparent that there is no eye-witness cited by the prosecution to prove guilt against the accused. The prosecution to connect the accused with the alleged crime had taken hair of accused as specimen sample. It is further case of the prosecution that from acquitted accused - Kalu towel and bushirt stained with blood were recovered. 36. In the present case, occurrence in the day-light had taken place in the field. Nathuram (PW-2) and Onkar (PW-3) are uncles of the deceased, being brother of father of the deceased. They have not stated that the deceased - Chhima was being maltreated or was harassed on account of the dowry. They have also not stated that as to when Chhima, deceased was married with the present appellant. 37. Nanga (PW-10), being father of deceased has specifically stated that he is not aware who has caused death of Chhima. This witness has also not stated that as to when Chhima was married with the accused and whether she was being maltreated or not. 38. Teeja (PW-11) is sister of the deceased. She has stated that Gopal is her devar. She stated in the Court that her sister was murdered by Gopal, but same is her guess. She has not witnessed the occurrence. At about eight-ten months ago, she was not present at the spot. This witness stated that the relations between her sister and Gopal were estranged. This witness stated that Gopal was under the influence of Chhoti and on her asking used to give beating to her sister Chhima. This witness has also not given date-of-marriage. In cross-examination, this witness (PW-11) has stated that Chhima had stayed in her in-laws house for one month and at that time there was no fighting and everybody was living happily. This witness has also not given date-of-marriage. In cross-examination, this witness (PW-11) has stated that Chhima had stayed in her in-laws house for one month and at that time there was no fighting and everybody was living happily. We reproduce here following lines from the cross-examination of this witness Teeja (PW-11) :- ^^fNEek ejh mlls djhc rhu eghus igys esa ihgj pyh x;hA eSa vkSj fNEek esjs llqjky esa ,d eghus jgs Fks ml ,d eghus esa rks xksiky vkSj fNEek dh dksbZ yM+kbZ ugha gqbZA lc jkth ls jgrs FksA** 39. We are conscious that Chhima, being sister of Teeja (PW- 11) was married to the brother of accused -Gopal and, thus, she has not stated anything incriminating. 40. Bhuri (PW-12), mother of deceased stated in the Court that she had heard that accused - Gopal was under the influence of Chhoti jethani of the deceased. She stated that she heard that her daughter was murdered. This witness is not an eye-witness of the alleged occurrence. 41. The trial Court to record conviction of the appellant stated that Smt. Chhima in her childhood was married with the accused. In the prosecution evidence, it is further stated that Gopal used to suspect her character. We are conscious that suspicion, however, grave cannot take place of the proof. No offence under Section 304-B I.P.C. is made out, as there is no allegation of dowry. None has witnessed causing of murder by appellant. 42. In the present case, occurrence had taken place in the day time at the sorghum (jawar) field which is an open accessible place. Thus, we cannot draw presumption under Section 106 of the Indian Evidence Act against the appellant, there is no evidence that the appellant was seen around the field when the alleged occurrence took place. 43. The trial Court has noted that the articles recovered were not sent to the Forensic Science Laboratory Rajasthan, Jaiupr. The trial Court has commented adversely, qua the conduct of the Investigating Agency. For lapse on the part of the Investigating Agency, we cannot sustain the conviction of the appellant, particularly when there is no report of Forensic Science Laboratory Rajasthan, Jaipur to connect the appellant with the alleged crime. Thus, the sample of specimen hair was not sent to the Laboratory, therefore, there is no morphological examination of the hair. 44. For lapse on the part of the Investigating Agency, we cannot sustain the conviction of the appellant, particularly when there is no report of Forensic Science Laboratory Rajasthan, Jaipur to connect the appellant with the alleged crime. Thus, the sample of specimen hair was not sent to the Laboratory, therefore, there is no morphological examination of the hair. 44. We further find that the same evidence is not believed against Kalu, who is an uncle of appellant - Gopal. 45. Taking totality of circumstances, we find that no circumstance has been proved by the prosecution to complete the chain of circumstances to arrive at a conclusion that the alleged offence has been committed by the present appellant. 46. It is a well settled legal principle that in case of circumstantial evidence, prosecution should prove chain of circumstances to arrive at a conclusion that offence has been committed by the accused alone and by none else. 47. We are at pains to notice that to record conviction of the appellant, the trial Judge has relied upon the statements of the witnesses recorded by Police under Section 161 Cr.P.C., which are not substantive piece of evidence. The witnesses in the Court have not uttered a single word as to what has been recorded by the Police in their statements under Section 161 Cr.P.C., to connect the appellant with offence. 48. As a result of above discussion, the present appeal is accepted. The conviction pronounced and sentence awarded by the trial Court upon appellant is set aside and he is acquitted.