JUDGMENT : SANJAY K. AGRAWAL, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant against impugned judgment dated 14.08.2012 passed in Sessions Trial No. 76/2011 whereby learned Sessions Judge, Kabirdham (Kawardha) has convicted him for offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs. 1,000/- and in default of payment of fine, further R.I. for 6 months. 2. Case of the prosecution, in brief, is that on 12.09.2011 at Village Ranveerpur, the appellant herein committed murder of his wife Gayabai by inflicting injury on her neck with a pharsa and thereby, committed the aforesaid offence. 3. Further case of the prosecution is that on 13.09.2011 at about 04:30 A.M. the appellant himself appeared at Police Station Sahaspur Lohara and informed that he doubted that his wife Gayabai was having illicit relations with one Gulab Sen of their village and on that account, on 12.09.2011 at about 10:30 P.M. he woke up his wife from sleep and took her outside on the pretext of visting Sheetla temple. When they reached the tamarind tree near the field of Jawahar Tiwari, the appellant took out pharsa, which he had already hidden behind the tamarind tree, and inflicted a blow on her neck from behind due to which his wife Gayabai fell on the ground. Thereafter, he inflicted 3-4 blows on her neck and caused her death and after leaving Gayabai under the tamarind tree, he went to the Police Station. 4. On the basis of the said information, Roznamcha Sanha No. 48 was recorded by the Police vide Ex.P/16C and along with the appellant/accused, the Police officers reached the spot and informed about the same to the senior officers and recorded the same in Roznamcha Sanha No. 49 vide Ex.P/17C. After reaching the spot, in the presence of the Panchas, bayan panchnama was prepared vide Ex.P/1 and they found the dead body of Gayabai lying below the tamarind tree. There were injuries on her neck and blood was oozing out. Thereafter, dehati merg was registered vide Ex.P/18 and dehati nalishi was registered vide Ex.P/19. After issuing the summons to the witnesses, inquest was conducted vide Ex.P/3 and the dead body of Gayabai was sent for postmortem which was conducted by Dr. There were injuries on her neck and blood was oozing out. Thereafter, dehati merg was registered vide Ex.P/18 and dehati nalishi was registered vide Ex.P/19. After issuing the summons to the witnesses, inquest was conducted vide Ex.P/3 and the dead body of Gayabai was sent for postmortem which was conducted by Dr. Sanjay Kharshan (PW-5) and the postmortem report has been filed as Ex.P/13 in which cause of death is said to be shock due to excessive loss of blood and nature of death is said to be homicidal. From the spot, plain soil as well as blood stained soil was seized vide Ex.P/5. After taking the appellant/accused into custody, his memorandum statement was recorded vide Ex.P/6 and on that basis, recovery of blood stained pharsa was made vide Ex.P/7. The tshrit and gamcha worn by the appellant/accused was also seized vide Ex.P/8 and these seized articles were sent for chemical examination. The FSL report has been filed as Ex.24 in which blood was found on blood stained soil (Article A), pharsa (Article C) and t-shirt (Article D) worn by the appellant/accused. The said articles were also sent to the Serologist but no report has been brought on record. After recording the statements of the witnesses and after due investigation, the appellant/accused was chargesheeted for offences punishable under Section 302 of IPC which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence. 5. In order to bring home the offence, prosecution examined 10 witnesses and brought into record 24 documents. Statement of the appellant/accused was recorded wherein he denied guilt, however, examined none in his defence. 6. Learned trial Court, after appreciating the oral and documentary evidence on record, proceeded to convict the appellant/accused for offence punishable under Section 302 of IPC and sentenced him as aforesaid. 7. Mrs. Indira Tripathi, learned counsel for the appellant, would submit that appellant/ accused has been convicted for offence punishable under Section 302 of IPC on the basis of roznamcha sanha (Ex.P/16C) which is inadmissible in evidence in light of the decision rendered by the Supreme Court in the matter of Aghnoo Nagesia vs. State of Bihar, AIR 1966 SC 119 . Indira Tripathi, learned counsel for the appellant, would submit that appellant/ accused has been convicted for offence punishable under Section 302 of IPC on the basis of roznamcha sanha (Ex.P/16C) which is inadmissible in evidence in light of the decision rendered by the Supreme Court in the matter of Aghnoo Nagesia vs. State of Bihar, AIR 1966 SC 119 . She would further submit that memorandum statement (Ex.P/6) as well as seizure of pharsa vide Ex.P/7 has also not been duly proved as both the memorandum and seizure witnesses namely Mohan Singh (PW-1), Devnath Yadav (PW-2) and Netram (PW-3) have turned hostile. Furthermore, she would submit that trial Court has also relied upon the FSL report (Ex.P/24) in which blood is said to have been found on pharsa (Article C) and t-shirt of the appellant/accused (Article D), but though blood has been found on the said articles but neither the origin of blood could be ascertained nor the blood group. As such, the instant appellant be allowed and the appellant be acquitted of the charge under Section 302 of IPC levelled against him. 8. Per Contra, Mr. Afroz Khan, learned State counsel, would submit that prosecution has brought ample evidence on record to connect the appellant/accused with the crime in question and thus, he has rightly been convicted by the trial Court for the offence punishable under Section 302 of IPC, therefore, the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein above and went through the records with utmost circumspection. 10. The first question that requires consideration is whether the death of deceased Gayabai is homicidal in nature? 11. Learned trial Court has recorded an affirmative finding in this regard relying upon the medical opinion of Dr. Sanjay Kharshan (PW-5) who has conducted postmortem of deceased Gayabai and has submitted in the postmortem report (Ex.P/13) that cause of death is shock due to excessive blood loss and the death is homicidal in nature. Taking consideration of the entire evidence available on record as well as looking to the injuries sustained by the deceased on her neck which is a vital part of the body and relying upon the medical opinion of Dr. Taking consideration of the entire evidence available on record as well as looking to the injuries sustained by the deceased on her neck which is a vital part of the body and relying upon the medical opinion of Dr. Sanjay Kharshan (PW-5) as well as postmortem report (Ex.P/13), we are of the considered opinion that learned trial Court has rightly held the death of deceased Gayabai to be homicidal in nature. As such, we hereby affirm the said finding recorded by the trial Court that the death of deceased Gayabai is homicidal in nature. 12. The next question for consideration is, whether the appellant is the perpetrator of the crime in question? 13. There is no eyewitness to the incident and learned trial Court, finding the following five circumstantial evidences proved, proceeded to convict the appellant/accused for offence punishable under Section 302 of IPC, which state as under: ¼1½ ?kVuk ds rqjar ckn losjs 04%30 cts vfHk;qDr }kjk iqfyl Fkkuk lgliqj yksgjk esa mifLFkr gksuk ,oa mldh iRuh ds ?kk;y voLFkk esa [ksr esa beyh >kM+ ds uhps ik;s tkus ds lEcU/k esa lwpuk fnuk tkuk] tks dh /kkjk 8 lk{; vf/kfu;e ds varxZr i'pkro.khZ vkpj.k ds :i esa Ádj.k esa lqlaxr gSA ¼2½ vfHk;qDr dh lwpuk ij [ksr esa vfHk;qDr dh iRuh dh yk'k dk ik;k tkukA ¼3½ vfHk;qDr ds eseksjsUMe lwpuk ds vk/kkj ij ?kVuk esa Á;qDr Qjlk vfHk;qDr ds is'k djus ij tIr fd;k tkuk] ftlesa jDr dk ik;k tkuk ,oa mDr Qjls ls e`rdk dh e`R;q gks tkus ds lEcU/k esa fpfdRld MkW lat; }kjk viuk er fn;k tkukA ¼4½ vfHk;qDr dh 'kVZ esa jDr dk ik;k tkukA ¼5½ vfHk;qDr dh iRuh dk jkr esa ?kj esa gksus ds mijkUr] nwljs fnu losjs mldh yk'k [ksr esa ik;s tkus ds lEcU/k esa vfHk;qDr }kjk dksbZ Hkh larks"kÁn Li"Vhdj.k ugha fn;k tkukA 14. The aforesaid five circumstances have been assailed on behalf of the appellant/accused stating that no such circumstance has been proved in accordance with law and therefore, the trial Court has erred in convicting the appellant/accused for offence in question. We shall now consider each of the circumstances one by one. 15. The aforesaid five circumstances have been assailed on behalf of the appellant/accused stating that no such circumstance has been proved in accordance with law and therefore, the trial Court has erred in convicting the appellant/accused for offence in question. We shall now consider each of the circumstances one by one. 15. The first circumstantial evidence that has been relied upon by the prosecution is that on 13/09/2011 at about 04:30 AM, the appellant himself appeared at the Police Station and informed that he has committed murder of his wife Gayabai and her body is lying under the tamarind tree near the field of Jawahar Prasad, which was entered into the Roznamcha Sanha (Ex.P/16C) and pursuant thereof, the dead body of Gayabai was indeed recovered by the Police from the said spot which would come within subsequent conduct under Section 8 of the Evidence Act. 16. In the matter of Aghnoo Nagesia (supra), Their Lordships of the Supreme Court have held that, where the accused himself gives the first information, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of Section 25 of the Evidence Act. 17. Thus, in view of the aforesaid principle of law laid down by Their Lordships of the Supreme Court in Aghnoo Nagesia (supra), the appellant/accused himself appeared at the Police Station and informed about committing the murder of his wife Gayabai. Thus, the first information given by the appellant/accused herein, being confessional in nature, would be inadmissible in evidence in view of Section 25 of the Evidence Act and the trial Court has erred in relying upon roznamcha sanha (Ex.P/16C) to convict the appellant/ accused for the aforesaid offence. 18. The second circumstantial evidence that has been found proved by the trial Court is recovery of dead body of Gayabai from the spot informed by the appellant/accused. 18. The second circumstantial evidence that has been found proved by the trial Court is recovery of dead body of Gayabai from the spot informed by the appellant/accused. True it is, that pursuant to the information given by the appellant/accused, when the police officers reached the spot, the dead body of Gayabai was found lying under the tamarind tree near the field of Jawahar Tiwari which has also been recorded in dehati merg (Ex.P/18) and dehati nalisi (Ex.P/19). 19. The third circumstantial evidence that has been found proved by the trial Court is that pursuant to memorandum statement of the appellant/accused under Section 27 of the Evidence Act vide Ex.P/6, recovery of bloodstained pharsa was made. 20. Learned counsel for the appellant has relied upon the statements of Mohan Singh (PW-1) and Devnath Yadav (PW-2), who are memorandum and seizure witnesses. A careful perusal of statement of Mohan Singh (PW-1) would show that he has turned hostile and has not supported the case of the prosecution. In his cross-examination, he has clearly stated in paragraph 6 that all the proceedings were done by the Police at the Police Station and no seizure has been made from the appellant/accused in his presence. Similarly, Devnath Yadav (PW-2) has also not supported the case of the prosecution. 21. Moreover, though the pharsa, said to have been seized from the appellant/accused vide Ex.P/7 pursuant to his memorandum statement (Ex.P/6), was sent for chemical examination in which blood was found as per FSL report (Ex.P/24), but neither the origin of the blood could be ascertained nor the blood group and though the said article was sent to the Serologist for examination but no such report has been brought on record. The next incriminating circumstance that the trial Court found proved is that, after seizure of the t-shirt worn by the appellant/accused vide Ex.P/8, it was sent for chemical examination and as per FSL report (Ex.P/24), though blood was found on it, but again, the origin of blood as well as its blood group could not be ascertained. 22. The next incriminating circumstance that the trial Court found proved is that, after seizure of the t-shirt worn by the appellant/accused vide Ex.P/8, it was sent for chemical examination and as per FSL report (Ex.P/24), though blood was found on it, but again, the origin of blood as well as its blood group could not be ascertained. 22. In the matter of Balwan Singh vs. State of Chhattisgarh, (2019) 7 SCC 781 the Supreme Court has held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin, even though the blood group is not proved because of disintegration of blood, and observed in paragraph 24 of the report as under: “24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs. 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal and such recovery does not help the case of the prosecution.” 23. In the instant case, it is quite vivid that recovery of bloodstained pharsa vide Ex.P/7 pursuant to the memorandum statement of the appellant/accused vide Ex.P/6 has not been proved by the prosecution beyond reasonable doubt as both the witnesses namely Mohan Singh (PW-1) and Devnath Yadav (PW-2) have turned hostile and in the FSL report (Ex.P/24) it has only been proved that blood was found on the said pharsa, but the origin of blood as well as the blood group have not been ascertained and prosecution has failed miserably to prove the same as any kind of Serologist report has also not been brought on record. Similarly, though the t-shirt worn by the appellant/accused was seized vide Ex.P/8 and it was sent for chemical examination, but through the FSL report (Ex.P/24) it could only be ascertained that blood was found it and again, the origin of blood and blood group could not be ascertained. As such, in absence of quality evidence proving that the blood found on the pharsa as well as on the t-shirt was of human origin, it would be difficult to conclude that seizure of bloodstained pharsa and t-shirt of the appellant has helped the case of the prosecution. 24. The fifth and last circumstance found proved by the trial Court is that appellant has not given satisfactory explanation as to how the dead body of his wife Jankunwar Rathiya was found in the field on the next morning of the incident, when on the previous night, she was at their home. Even if, the appellant has not explained how the dead body of deceased Jankunwar Rathiya was found in the field on the next morning, it cannot be held to be incriminating evidence against the appellant/accuse as the primary burden is upon the prosecution to prove the offence beyond reasonable doubt. 25. The Supreme Court, in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 26. (4) they should exclude every possible hypothesis except the one to be proved. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 26. Reverting to the facts of the present case in view of the aforesaid discussion, we are of the considered opinion that only on the basis of subsequent conduct of the appellant/accused under Section 8 of the Evidence Act pursuant to which dead body of his wife Jankunwar Rathiya was recovered, it would be unsafe to convict the appellant/accused for offence punishable under Section 302 of IPC particularly when no other incriminating circumstances are proved against him beyond reasonable doubt and more particularly, when the trial Court itself has recorded a finding that the motive of offence has not been proved by the prosecution. Thus, the conviction of the appellant/accused under Section 302 of IPC and the sentence recorded as aforesaid by the impugned judgment is hereby set aside. Since the appellant is already on bail, he need not surrender. However, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437A of the Cr.P.C. 27. Accordingly, the instant appeal stands allowed.