JUDGEMENT Shree Chandrashekhar, J. Latehar PS Case No. 25 of 2008 was lodged on 26.3.2008 against the appellant on an allegation of committing murder of Samudari Devi, his wife. After the investigation a charge-sheet was filed and the appellant has faced the trial on the charge under section 302 of the Indian Penal Code (in short, IPC). 2. During the trial the prosecution has examined five witnesses; the informant is PW-1. The doctor who has conducted the post-mortem examination was not examined during the trial and other two witnesses, the co-villagers, have turned hostile. In T. No. 33 of 2009, the learned 1st District and Sessions Judge, Latehar has returned a finding that Samudari Devi has met with her death in village Hesala and there cannot be any per on other than the accused who could have strangulated her to death. 3. The informant of this case is mother of Samudari Devi. She has deposed in the Court that her daughter who was married with the appellant about ten years ago was visiting her frequently. She was blessed with two children and the surviving child, a daughter, was staying with her. On 23.03.2008 her daughter left home. At that time her husband was not there and when he came back home and did not find his wife there came to her village Durwa. In the meantime her daughter came there with her friend Sarita and, thereafter, the appellant took her home at about 15:00 PM. The same day the appellant came and informed her that Samudari Devi is not feeling well. She has gone to her house where she found her daughter dead. She has seen black marks on her neck. She made enquiries from the villagers and called Muslim Mian, the Choukidar, however the appellant tried to cremate the dead body of her daughter but somehow Muslim Mian stopped him and brought the dead body. She has taken the dead body of her daughter to the police station with the help of Muslim Mian and lodged a complaint with the police. PW-2 Bandhan Singh has professed ignorance about how Samudari Devi has died. He has been declared hostile at the instance of the prosecution. PW-4, Bihari Bhuiyan is a co-villager who has stated in the Court that at the time when Samudari Devi died he was not at home. PW-5, Dr. PW-2 Bandhan Singh has professed ignorance about how Samudari Devi has died. He has been declared hostile at the instance of the prosecution. PW-4, Bihari Bhuiyan is a co-villager who has stated in the Court that at the time when Samudari Devi died he was not at home. PW-5, Dr. Surendra Kumar Singh has identified the writing and signature of Dr. Kaushal Sehgal who has conducted the post-mortem examination and the Investigating Officer has been examined as PW-3. 4. PW-1 has admitted in her cross-examination that she is not an eye-witness to how her daughter has died. In a case based on circumstantial evidence an inference of guilt can be justified only when all the incriminating circumstances are found to be incompatible with innocence of the accused and the conclusions drawn from the circumstances must be such a to negate innocence of the accused and bring home the offences beyond any reasonable doubt. In "Gambhir v. State of Maharashtra", (1982) 2 SCS 351, the Hon'ble supreme court has observed as under: "9…When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence…..” 5. The main plank of the prosecution to prove the charge of murder against the appellant is death of Samudari Devi in her matrimonial home and annoyance of the appellant with his wife because he had left home without informing him. 6. The post-mortem report prepared by Dr. Kaushal Sehgal records that both eyes of Samudari Devi were bulging; tongue protruded and; there were ante-mortem injuries on her body. The doctor has seen fingertip bruises and blood stains in her mouth and nose. This would raise a doubt that Samudari Devi has met with a homicidal death. 6. The post-mortem report prepared by Dr. Kaushal Sehgal records that both eyes of Samudari Devi were bulging; tongue protruded and; there were ante-mortem injuries on her body. The doctor has seen fingertip bruises and blood stains in her mouth and nose. This would raise a doubt that Samudari Devi has met with a homicidal death. But, Dr. Kaushal Sehgal has not been examined during the trial. 7. Under section 293 of the Code of Criminal Procedure examination of the doctor who has conducted the post-mortem is not necessary though the Court has a discretion to call the expert as a witness and section 294 of the ode of Criminal Procedure provides that where genuineness of any document is not disputed, such document may be read in evidence in any enquiry, trial or other proceeding without proof of the signature of the person to whom it purports to be signed. In a criminal trial what is important is to prove the cause of death and for that purpose examination or the doctor who has conducted the post-mortem is necessary. Sub-section (3) to section 293 of the Code of Criminal Procedure provides that if the expert is unable to attend summon by a Court personally he may depute any responsible officer working with him, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. PW-5 has admitted in his cross-examination that the post-mortem report was not prepared in his presence. He has not claimed that at the time of post-mortem he was assisting Dr. Kaushal Sehgal or present there. He has also not stated that he is conversant with the post-mortem report. Under section 45 of the Indian Evidence Act, 1872 opinions of the expert are relevant. Chapter IV of the Indian Evidence Act, 1872 deal with oral evidence. Section 59 of the Indian Evidence Act, 1872 provides that all facts except (content of documents or electronic records) may be proved by oral evidence. Section 61 of the Indian Evidence Act, 1872 provides that contents of a document may be proved either by primary or by secondary evidence. A document in original if produced during the trial is a primary evidence, however, contents of a document unless the maker is examined cannot be read in evidence. The cause of death of Samudari Devi has not been proved by the prosecution. A document in original if produced during the trial is a primary evidence, however, contents of a document unless the maker is examined cannot be read in evidence. The cause of death of Samudari Devi has not been proved by the prosecution. In "Munna Kumar v. Stat of Bihar" (2005) 12 SCC 209 finding that the post-mortem report was not proved in terms of section 293 of the Code of Criminal Procedure, the Hon'ble Supreme Court has observed that the appellant was entitled for the benefit of doubt. It has been held that the prosecution should have produced the best evidence by proving the post-mortem report by examining the doctor or any other person acquainted with the hand-writing of the doctor who had prepared the post-mortem report. 8. The credibility of PW-1 is shaken for more than one reason. In her fardbeyan she has stated that the appellant has committed murder of her daughter by strangulation. She has stated in the fardbeyan that the appellant had informed her that Samudari Devi is unwell, however, in the Curt she has stated that her daughter Fulmani came and informed her that the sister has consumed poison. She also said that a co-villager Dhansu came next day and informed her that her daughter is suffering from fever. From the evidence of the informant and the Investigating Officer it appears that both villages are adjacent to each other. Even though she got information about death of her daughter on 23.03.2008 she admit in her cross-examination that she has gone to see her daughter the next day at about 08 :00 AM. Samudari Devi has visited her mother with one of her friends Sarita and the informant has said that Dhansu informed her about Samudari Devi being unwell and Muslim Mian is the person who has stopped cremation of Samudari Devi, however, these witnesses were not produced during the trial. PW-2 had stated before the Investigating officer that he came to know about death of Samudari Devi from Sitamani, another daughter of the informant, however he has also not been examined by the prosecution and around the place of occurrence Ganga Singh and Shiv Kumar Singh are residing but their statement was not recorded by the Investigating Officer. 9. There is considerable controversy on the place of occurrence and that the appellant had a motive has not been suggested by the prosecution. 9. There is considerable controversy on the place of occurrence and that the appellant had a motive has not been suggested by the prosecution. According to the prosecution Samudari Devi was strangulated to death in the house of the appellant but the Investigating Officer has not found any sign of struggle or any incriminating material inside his house. The Investigating Officer has stated in the Court that he proceeded for village Durwa when he received an information that a dead body is found in the village and the informant ha stated that dead body of her daughter was lying outside the house of the appellant. It has also come on record that Samudari Devi was doing labour job and for that purpose she used to go out. The prosecution has also failed to establish motive for the crime. In a case based on circumstantial evidence motive plays an important role. In "Surinder Pal Jain v. Delhi Administration” (1993) Supp. (3) SCC 681, the Hon'ble Supreme Court has observed that : "in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case”. This is also by now well-accepted that in a case like the present one in which the prosecution evidence is sketchy, the Court need to turn to the motive part of the case to seek assurance whether the prosecution has produced materials which implicate the accused in the crime. PW-1 has admitted in her cross-examination that she does not know of any difference between the appellant with his wife and there was never a quarrel between them. The Investigating Officer has also stated in the cross-examination that he did not get any evidence about any quarrel between the couple. 10. From the aforesaid discussions it is apparent that the prosecution has failed to establish a prima-facie case so as to raise a presumption under section 106 of the Evidence Act. In "Ronjit Singh v. State of Punjab" (2011) 15 SCC 285 , the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Evidence Act to hold an accused guilty for murder. 11. In "Ronjit Singh v. State of Punjab" (2011) 15 SCC 285 , the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Evidence Act to hold an accused guilty for murder. 11. From the evidences laid by the prosecution, we find that the prosecution has not been able to prove the charge against the appellant. In view of considerable doubt on time of death cause of death and place of occurrence, it seems that the appellant has been prosecuted in this case on the basis of suspicion, but then, suspicion howsoever strong cannot take the place of legal evidence. 12. To conclude, we hold that the conviction of the appellant under section 302 IPC in S.T. No.33 of 2009 is unsustainable and accordingly it is set-aside. 13. Accordingly, the judgment of conviction of the appellant, namely, Shivbhawan Singh under section 302 IPC dated 25.9.2012 and the order of sentence of RI for life and fine of Rs. 5,000/- for the said offence dated 27.9.2012 passed by the learned 1st District & Additional Sessions Judge, Latehar in S.T. No. 33 of 2009 are set-aside. 14. Mr. Abhay Kumar Tiwari, the learned APP states that the appellant is in custody. 15. Accordingly, the appellant namely, Shivbhawan Singh who is in custody, shall be set free forthwith, if not wanted in connection to any other criminal case. 16. In the result, Criminal Appeal (DB) No. 1075 of 2012 is allowed. 17. IA No. 4681 of 2016 is disposed of. 18. Let lower Court records be -transmitted to the Court concerned forthwith 19. Let a copy of the judgment be transmitted to the Court concerned and the concerned jail superintendent through 'FAX'.