JUDGMENT : S.M. MODAK, J. 1. Four convicted accused persons have assailed before us the judgment dated 3rd April, 2014 delivered by Additional Sessions Judge, Chandrapur, in Sessions Case No. 36 of 2013. All are convicted of the offences punishable under Sections 364, 302, 201 read with Section 120-B of Indian Penal Code. 2. There was a love affair in between Lalita (appellant in Criminal Appeal No. 498 of 2014) and Sardar Khan Pathan (appellant in Criminal Appeal No. 295 of 2014) Shri Ashok Walkondawar, being the husband of appellant, Lalita, was coming in their way. For eliminating him, appellants, Lalita and Sardar Khan, hatched a criminal conspiracy and they took the help of Huma Ali Yunus Ali (appellant in Criminal Appeal No. 260 of 2014). He offered his “Indica” Car for travelling, whereas Vinod Kerbaji Kurode (appellant in Criminal Appeal No. 308 of 2014) rendered his services as a driver. Appellant, Lalita, used to narrate her ill-treatment at the hands of deceased Ashok to her paramour – appellant, Sardar Khan. 3. In pursuance to that conspiracy, appellant, Lalita, brought her deceased husband, Ashok, to Kathoda Phata, and there all the three appellants also came. All the three appellants along with deceased Ashok sat in the Indica car and they went to village Saibori, Tq. Mahagaon, District Yavatmal. There, they consumed alcohol. There was an agricultural field of Nujat Ali. They injected dog killing medicine to the deceased and killed him by strangulation. They took the dead body to the house of appellant, Sardar Khan, at village Patan (Adilabad) [Andhra Pradesh]. 4. Somehow Pusad villagers came to know about the incident. It was made known to Pusad Police also. On suspicion, police took the custody of appellants, Sardar Khan and Vinod Kurode. Pusad police enquired with their counterparts at Korpana, District Chandrapur, about missing of deceased Ashok Walkondawar. On enquiry with appellant, Lalita, it was confirmed. Then, Pusad Police handed over the appellants, Sardar Khan and Vinod Kurode, to Korpana Police Station. Appellant, Lalita, was made as the first informant and the offence of kidnapping, murder and destroying of evidence was registered. Completion of investigation resulted into filing of a charge-sheet against four appellants. Wife, Lalita and her paramour, Sardar Khan, were impleaded as Accused Nos. 1 and 2, whereas driver, Vinod, and owner of the Indica Car, Huma Ali, were impleaded as Accused Nos. 3 and 4. Completion of investigation resulted into filing of a charge-sheet against four appellants. Wife, Lalita and her paramour, Sardar Khan, were impleaded as Accused Nos. 1 and 2, whereas driver, Vinod, and owner of the Indica Car, Huma Ali, were impleaded as Accused Nos. 3 and 4. All were convicted after trial by learned Additional Sessions Judge, Chandrapur. 5. We have heard learned Adv. Shri Tiwari for the appellant, Huma Ali, and learned Adv. Shri S.P. Bhandarkar for rest of the three appellants. Learned Additional Public Prosecutor, Shri N.B. Jawade, argued on behalf of the State. With their assistance, we have gone through the records. On their perusal, we find that the conviction is not proper. Learned trial Judge has discussed about the law on the point of conspiracy properly. But when he comes to the question of appreciation of evidence, he has overlooked the missing links and established principles of appreciation of evidence. 6. It is true that the case is based on circumstantial evidence. It is difficult to gather the evidence in such type of cases. It is still more difficult if the incident has taken place at various places. It is also difficult to collect the evidence, particularly when the incident took place in the night hours. 7. It is pertinent to note that there are three places of the incident in question. One is the place from where appellant, Lalita, handed over her deceased husband, Ashok, to rest of the three accused persons. It is at Kathoda Phata, Tq. Korpana, District Chandrapur. The second place is situated in the agricultural field of Nujat Ali at village Saibori, District Yavatmal. The third place is situated in the house of appellant, Sardar Khan, at village Patan (Adilabad) [Andhra Pradesh]. The dead body was buried and exhumed from that place. 8. After going through the record and evidence, we do find that police have taken a lot of pains in collecting the evidence. The prosecuting agency was also vigilant while conducting the trial. But what we find is that there are certain inherent weaknesses at the stage of collection of evidence. One such instance is when Pusad Police took the appellants, Sardar Khan and Vinod, into their custody. It was on suspicion. But at that time only, appellant, Sardar Khan, disclosed about burial of the dead body of Ashok in his house at village Patan. One such instance is when Pusad Police took the appellants, Sardar Khan and Vinod, into their custody. It was on suspicion. But at that time only, appellant, Sardar Khan, disclosed about burial of the dead body of Ashok in his house at village Patan. It means, police were knowing this fact earlier to disclosure statement given by appellant, Sardar Khan. Though sufficient efforts were taken to examine the witnesses on the point of presence of the three appellants (other than the appellant, Lalita) in village Saibori, District Yavatmal, on material point, they have resiled from their police statements. 9. We find that the trial Court has convicted the appellants morally rather than on legal principles. We will elaborate them hereinafter. 10. Broadly, there are two aspects. One is a homicidal death and second is involvement of the accused. Prominently, two causes of death have come in the evidence. One is administration of dog killing medicine and second is strangulation. But we find strangulation is the only cause of his death. Evidence of Medical Officer, Dr. B. Shekhar Rao, is sufficient. He carried out autopsy at Rajiv Gandhi Institute at Adilabad. Asphyxia due to strangulation is the cause of death. No poison was found during viscera examination. 11. When it comes to involvement of the accused, there are various witnesses examined on different circumstances. Admittedly, there is no witness to the incident of wife, Lalita, bringing her deceased husband, Ashok, to Kathoda Phata. There is no witness to the incident of journey of rest of the three appellants with deceased Ashok upto village Saibori. Learned trial Judge has given importance to the First Information Report lodged by the appellant, Lalita, at Korpana Police Station on 26th October, 2012. It is after that the appellants, Sardar Khan and Vinod, were taken into custody by Pusad Police. This is not the case wherein appellant, Lalita, herself went to Korpana Police Station and lodged the complaint. Though Police Inspector, Vasant Kuwar, was examined on the point of First Information Report, learned trial Judge has overlooked the law on the point of admissibility of confession in the FIR by the accused, more particularly in paras 63 and 66 of the impugned judgment, there is a discussion on the point of contents of the FIR. Admittedly, the accused cannot be compelled to give evidence against herself. Admittedly, the accused cannot be compelled to give evidence against herself. Court cannot make use of confession given by the accused in the FIR. The law on this point is very clear. Such an FIR by the person subsequently made as an accused can be used only for a limited purpose. There are catena of decisions on this point. As back as in the year 1966, Hon'ble Supreme Court has dealt with this issue. It was in case of Aghnoo Nagesia vs. State of Bihar, AIR 1966 SC 119 . A similar occasion had arisen before Hon'ble Supreme Court. Confessional part cannot be used against the accused. As per Section 25 of the Indian Evidence Act, there is a total bar for using the confession made to a Police Officer. Whether the accused is in custody or not, is irrelevant. Confession to a Police Officer is admissible only under Section 27 of the Indian Evidence Act. Only for a limited purpose, confession under Section 25 of the Indian Evidence Act is relevant. Motive is one of the factors for which such confession can be used. However, when we peruse the FIR given by the appellant, Lalita (recorded by Police Inspector, Shri Kuwar), we find that it it is in the nature of confession. So, we hold that such confession cannot be used for any purpose. But learned trial Judge has used this circumstance to infer about the discord in between deceased Ashok one one hand, and wife, Lalita, on the other hand. He has also used it as a motive for the murder. 12. No doubt, Dilip Walkondwar, being the brother of the deceased, was examined. It has come in his evidence about a visit by appellant, Sardar Khan, to the house of deceased Ashok. He has also identified the dead body of his brother. We are not disbelieving him. But this motive could have been accepted provided there are other sufficiently proved circumstances. We are disagreeing with the learned trial Judge on the point of use of FIR by appellant, Lalita, for any purpose. EVIDENCE ON THE POINT OF VISIT TO VILLAGE SAIBORI 13. There are in all four witnesses. They are either relatives or persons known to the appellant, Sardar Khan. They are PW-4 Raju Suryabhan Vairagade and PW-7 Anjum Khan Liyakat Ali Khan. They have deposed on introductory facts. EVIDENCE ON THE POINT OF VISIT TO VILLAGE SAIBORI 13. There are in all four witnesses. They are either relatives or persons known to the appellant, Sardar Khan. They are PW-4 Raju Suryabhan Vairagade and PW-7 Anjum Khan Liyakat Ali Khan. They have deposed on introductory facts. But when it comes to the question of involvement of the accused, they have conveniently resiled from the police statements. There is one more point disagreeing with the findings of the learned trial Judge. It is on the point of use of judicial statements by some of these witnesses. Learned trial Judge went to the extent of reading their contents. 14. Anjum Khan (PW-7) is the maternal uncle of the appellant, Sardar Khan. The incident of killing Ashok took place in the agricultural field of Nujat Ali Khan (PW-5). Said Nujat Ali Khan is also examined, whereas Ansar Hamid Khan Pathan (PW-6) is the person who gave dog killing medicine to the appellant, Sardar Khan. His field is situated adjacent to the field of Nujat Ali. He was present at the relevant time of murder. He only heard a loud talking. Raju Vairagade (PW-4) supplied liquor to the appellant, Sardar Khan. 15. On reading their evidence, one can only infer that the appellant, Sardar Khan, had been to the field of Nujat Ali. We can only infer that he was drunk, accompanied by some persons. But, here, who are those persons and what has happened in the field, their evidence is neither sufficient, nor there are corroborative materials. 16. There are limitations on the use of a witness's statement recorded by the Magistrate under the provisions of Section 164 of the Criminal Procedure Code. It can be used by either side. While appreciating the evidence, any Judge is having three materials before him – one is police statement, second is judicial statement and the third is the evidence. On material aspects, these witnesses have resiled from the police statements. They have simply said about giving the statements before magistrate. Admittedly, they have not deposed before the Court about what they have stated before the Magistrate. Their deposition on the point of judicial statement was not challenged during defence cross- examination. This fact weighed the mind of learned trial Judge and he gave importance to judicial statements. We disagree with this approach. Admittedly, they have not deposed before the Court about what they have stated before the Magistrate. Their deposition on the point of judicial statement was not challenged during defence cross- examination. This fact weighed the mind of learned trial Judge and he gave importance to judicial statements. We disagree with this approach. Learned trial Judge was conscious that such a judicial statement is not substantive evidence. Still he considered them. We do not find any fault on the part of defence in not challenging the judicial statements. Reason is : it is not sufficient on the part of the prosecution witnesses to say that they have given statements before the Magistrate. They are required to depose before the Court about its contents. If they have not said so, defence is justified in not challenging the same. Hence, we discard the prosecution evidence on the point of judicial statements. Except for the facts stated above, the evidence of PWs. 4 to 7 is not useful to the prosecution. DISCLOSURE STATEMENTS 17. The appellant, Sardar Khan, has shown the place where he killed Ashok and the place where he buried the dead body. On the point of place of burial, there are two witnesses. Ramesh Gangaram Meshram (PW-2), a Panch witness and Investigating Officer Vijaykumar Chavan, Sub-Divisional Police Officer (PW-18). The place is in the house of appellant, Sardar Khan, at village Patan (Mahagaon) (Andhra Pradesh). We do not find any fault in the evidence of Panch witness, Ramesh Meshram, and of Investigating Officer, Chavan. But on legal aspect, we find that this piece of evidence cannot be considered against the appellant, Sardar Khan. We are not discussing the law point of disclosure in detail. Suffice it to say that as per the statement, Police came to know certain facts before the dead body was found out and so, the discovery statement about knowing earlier the place of burial cannot be read in evidence under Section 27 of the Evidence Act. 18. We have, however, every reason to believe the Tahsildar, Ms. Sushila Rao (PW-13). The Panchanama about exhumation of the dead body and also Inquest Panchanama were performed at that place. Evidence of Ramesh Meshram, Panch (PW-2), is reliable on that point. The dead body was in a highly decomposed condition. Ashok's brother, Dilip (PW-17), has identified the dead body. 18. We have, however, every reason to believe the Tahsildar, Ms. Sushila Rao (PW-13). The Panchanama about exhumation of the dead body and also Inquest Panchanama were performed at that place. Evidence of Ramesh Meshram, Panch (PW-2), is reliable on that point. The dead body was in a highly decomposed condition. Ashok's brother, Dilip (PW-17), has identified the dead body. Upto this stage, we do not find any lacuna in the prosecution evidence. But when it comes to the question of first disclosure, other available evidence on record nullifies the earlier effect, as stated earlier. MATERIALS POINTED OUT BY DEFENCE 19. One letter was written by Sub-Divisional Police Officer, Gadchandur, to Sub- Divisional Magistrate/Tahsildar, Bela, dated 26th October, 2012. Admittedly, this letter was not tendered in evidence. It may be due to oversight of defence or due to deliberate attempt on the part of prosecution. But a Court of Law cannot overlook it, particularly when it is filed by the investigating agency. At an appellate stage, we are taking its cognizance. From the contents of that letter, one fact is clear that Patan police knew about burial of a dead body in the house of Sardar Khan at village Patan (Adilabad). Even this fact is found in the evidence of Police Inspector, Vasant Kuwar (PW-11). He registered the FIR of wife, Lalita. 20. If this circumstance is considered, it falsifies the prosecution evidence about knowledge attributable to the appellant, Sardar Khan. In fact, the police were knowing the fact of burial of a dead body earlier to disclosure statement. If it is not brought to the notice of the trial Court, then trial Court is justified in accepting the evidence on the point of the disclosure. But we are not accepting it for the above reasons. We are accepting it only on the point of burial of a dead body in the house and its exhumation. The investigating agency has collected the Tax Receipt of that house but it has come in the cross-examination of Tahsildar that the house was in an abandoned condition. There is a doubt about exclusive custody of that house by the appellant, Sardar Khan. We disagree with the conclusion drawn by the trial Court. DISCLOSURE ABOUT PLACE OF MURDER 21. There is evidence of Anandrao Bandurkar (PW-3) and Investigating Officer, Shri Chavan (PW-18). It is the agricultural field at village Saibori belonging to Nujat Ali. There is a doubt about exclusive custody of that house by the appellant, Sardar Khan. We disagree with the conclusion drawn by the trial Court. DISCLOSURE ABOUT PLACE OF MURDER 21. There is evidence of Anandrao Bandurkar (PW-3) and Investigating Officer, Shri Chavan (PW-18). It is the agricultural field at village Saibori belonging to Nujat Ali. Police have seized plain soil, blood-mixed soil and one “Newar Patti” and beads. These articles were sent for chemical analysis. On reading their evidence, we do not find any reason to disbelieve them. But from the concerned Chemical Analyser's report, no conclusion about the blood of deceased lying thereon can be drawn. SUPPORTING MATERIALS ON THE POINT OF BURIAL 22. Though the prosecution has proved seizure of spade and “Sabbal” through Anandrao Bandurkar (PW-3) and Investigating Officer, their use by appellant, Sardar Khan, as instruments for burial could not be proved. Material witnesses, Sheikh Mohd. Hasan Mohd. (PW-9) (spade) and Mobin Khan Afzal Mohd. Khan (PW-10) (“Sabbal”) have resiled from their police statements. The appellant, Sardar Khan, collected them from these two witnesses. That is why, we initially said the misfortune of the prosecution. These witnesses have not supported on the point of that particular circumstance. In absence of that, seizure of spade and “Sabbal” cannot be used as a circumstance to show involvement of appellant, Sardar Khan. EVIDENCE ON THE POINT OF MEETING APPELLANTS WITH EACH OTHER 23. Through Panch witness, Manoj Dhurve (PW-1), supported by Investigating Officer, Shri Chavan, the prosecution brought on record the place where the appellant, Lalita, asked her deceased husband to sit in the Indica car. It is at Kothoda Phata. At that place, other appellants came in Indica car and then went further. This is not as per the disclosure statement. As said above, there are no eye-witnesses. In addition to that, there is evidence of Shriniwas Kanakwar (PW-14). He is a driver of Commander jeep and dropped the appellant, Sardar Khan, by his jeep at Goraj Phata. But he has not supported on the point of meeting of minds. Shivprakash Joshi (PW-15) is another witness who runs his Pooja Restaurant & Hotel. The appellants, Lalita and Sardar Khan, used to meet there, but he has not supported. INVOLVEMENT OF APPELLANT, VINOD KURODE 24. The appellant, Vinod Kurode, is a driver of Indica Car. He dropped the appellant, Lalita, at Bhoraj Phata (Andhra Pradesh). Shivprakash Joshi (PW-15) is another witness who runs his Pooja Restaurant & Hotel. The appellants, Lalita and Sardar Khan, used to meet there, but he has not supported. INVOLVEMENT OF APPELLANT, VINOD KURODE 24. The appellant, Vinod Kurode, is a driver of Indica Car. He dropped the appellant, Lalita, at Bhoraj Phata (Andhra Pradesh). In addition to that, his full-pant and full-shirt were seized by the police in presence of Anandrao Bandurkar (PW-3) who is a material witness. His blood sample was also collected. We have perused the Chemical Analyser's report. The conclusion is not favouring the prosecution to show his involvement. Even if showing the spot of dropping the appellant, Lalita, is considered, it does not further the prosecution case because we find other evidence inadequate. INVOLVEMENT OF APPELLANT, HUMA ALI 25. Though he can be the owner of Indica Car, merely that evidence does not help the prosecution. A sample of a cushion seat was taken from his car and the car is also seized. (PW-1 & Sub-Divisional Police Officer, Shri Chavan) Trial Court finds his defence unsatisfactory. He took his wife in that car as her pregnancy was to be terminated. This story was not put to Investigating Officer during cross-examination. But the analysis done by the Chemical Analyser does not connect him to carry the deceased Ashok in his car. It is Faizal Mohd. Nujat Ali Khan (PW-8) who took photographs of the appellant, Huma Ali, and deceased, in the agricultural field. The said mobile and photographs were seized and the Panchanama is tendered in the evidence through Anandrao Bandurkar (PW-3), Panch witness. But the witness Faizal has disowned taking of photographs and handing them over to police. So, it cannot be used against the accused no. 4, Huma Ali. FINAL CONCLUSION 26. In view of the above discussion, we find that certain circumstances were proved by the prosecution - so to say showing the place of committing murder at the agricultural field of Nujat Ali by the appellant, Sardar Khan, seizure of certain articles from that place. There is every reason to believe exhumation of dead body from one house at village Patan (Adilabad) and it was of Ashok Walkondwar. There is every reason to believe that appellant, Sardar Khan, had been to village Saibori in a drunken condition (dates and time not known) along with his colleagues. There is every reason to believe exhumation of dead body from one house at village Patan (Adilabad) and it was of Ashok Walkondwar. There is every reason to believe that appellant, Sardar Khan, had been to village Saibori in a drunken condition (dates and time not known) along with his colleagues. But, involvement of Sardar Khan and other accused on the basis of such isolated and disjointed facts is not proved. There is a reason to believe that appellant, Lalita, dropped her husband at Kathoda Phata. Except these circumstances, other circumstances are not proved by the prosecution. We do not agree with the manner of appreciation of evidence by the trial Judge. From the available evidence, there is a reason to believe that there is a grave suspicion about involvement of these four appellants. But law is clear. There is a difference between a grave suspicion and proof. Any evidence has to fall within the four corners of accepted principles of law. We cannot be swayed away by moral convictions. Unfortunately, it has happened with the learned trial Judge. So, we are inclined to set aside the conviction of all the appellants. We do set it aside. All the appeals deserve to be allowed. The appellant, Sardar Khan Pathan son of Amirulla Khan Pathan in Criminal Appeal No. 295 of 2014 needs to be set at liberty, if not required in any other case. So also, the fine, if paid, needs to be returned. Hence, we proceed to pass the following order:- ORDER (a) The appellants are acquitted of the offences punishable under Sections 364, 302, 201 read with Section 120-B of Indian Penal Code. (b) Bail Bonds of Accused No. 1, Sau. Lalita wife of Ashok Walkondawar in Criminal Appeal No. 498 of 2014, Accused No. 3, Vinod son of Kerbaji Kurode in Criminal Appeal No. 308 of 2014 and Accused No. 4, Huma Ali son of Yunus Ali in Criminal Appeal No. 260 of 2014 are hereby discharged. (c) Accused No. 2, Sardar Khan Pathan son of Amirulla Khan Pathan in Criminal Appeal No. 295 of 2014 being in jail is directed to be released forthwith, if not required in any other crime. (d) The directions issued by the trial Court as regards disposal of the Muddemal property are hereby confirmed. (e) Fine amounts, if paid, be refunded to all the accused persons.