JUDGMENT : [Sanjay K. Agrawal, J.] 1. This criminal appeal filed by the accused-appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 06.02.2013, passed by the Court of learned Additional Sessions Judge Katghora, District Korba (C.G.) in S.T. No.16/2012 (State of CG vs. Mohanlal Sharma), whereby the appellant-accused has been convicted for offence: under Section 302 of IPC and sentenced to undergo rigorous life imprisonment with fine of Rs.1,000/- and, in default of fine, additional rigorous imprisonment for 06 months and also under Section 201 of IPC and sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.500/- and, in default of fine, additional rigorous imprisonment for 03 months. 2. The case of the prosecution, in brief, is that on 27.04.2010 between 02:00 to 06:00, at Quarter No.B/278, Pragti Nagar, the accused-appellant committed murder of his wife, namely, Urmila Devi (hereinafter referred to as “deceased”) by strangulation and thereafter in order to screen himself from the said offence, hanged her dead-body from ceiling fan and, thereby, committed the offence under Sections 302 & 201 of IPC. 3. The further case of the prosecution, in nutshell, is that: in the intervening night of 26.04.2010 to 27.04.2010, deceased and accusedappellant were quarreling with each other with regard to purchasing of land at Bilaspur and, in furtherance therefore, accused-appellant assaulted deceased in front of their children, due to which deceased sustained head injury; thereafter, appellant went to sleep alongwith his younger son, namely, Rupesh in one room and his elder daughter, namely, Himalaya Kumari Sharma (PW-02) went to another room and deceased was sitting in front room; thereafter, in the morning at 07:00 AM, the appellant wake his daughter and asked him to see his mother (deceased) as to what happened to her and, in turn, she found her mother (deceased) hanging from the ceiling fan; thereafter, on the same day i.e. on 27.04.2010, at 08:50 AM, on the basis of information given by the accused-appellant marg. intimation was registered vide Ex.P/04 and panchnama was also prepared; thereafter, the dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/05), conducted by Dr. intimation was registered vide Ex.P/04 and panchnama was also prepared; thereafter, the dead-body of deceased was sent for postmortem examination and in the postmortem examination report (Ex.P/05), conducted by Dr. A.S. Kanvar (PW-05), it has been opined that cause of death of deceased is asphyxia due to strangulation and nature of death is homicidal in nature; furthermore, a suicide note was also recovered, which was marked as Q1 in the original record; the said suicide note was sent for examination to handwriting expert alongwith other documents/notes marked as S1 to S24 & N1 to N8 and the handwriting expert gave its report and opinion vide Ex.P/18 & P/19 respectively, wherein it has been stated that the person who wrote documents/notes marked as N1 to N8 have also wrote suicide note marked as Q1; thereafter, statement of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Katghora and, thereafter, the case was committed to the Court of Sessions. The appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. 4. The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 19 documents, whereas the appellant-accused in support of his defence has neither examined any witness nor exhibited documents. 5. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offence under Sections 302 & 201 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. 6. Mr. Vikas Pandey, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302 & 201 IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the learned trial Court has neither recorded the death of the deceased to be homicidal in nature nor has clearly recorded that the appellant is the author of the crime in question. By recording perverse finding in Para-41 of the impugned judgment Section 106 of the Indian Evidence Act, 1872 has been applied, which is per se illegal and liable to be set aside. By recording perverse finding in Para-41 of the impugned judgment Section 106 of the Indian Evidence Act, 1872 has been applied, which is per se illegal and liable to be set aside. As such, the conviction and sentence passed by the learned trial Court for offence under Section 302 & 201 of IPC against the accused-appellant deserves to be set aside and he is liable to be acquitted from said charges. 7. Per-contra, Mr. Ashish Tiwari, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He submits that as per the statement of Dr. A.S. Kanvar (PW-05), who has conducted postmortem of the dead-body of the deceased and gave PM report (Ex.P/05), the death of the deceased is due to strangulation and nature of death is homicidal. It is the accused-appellant who is author of the crime, as motive has been duly proved by the prosecution on the basis of statements of Fhulbai (PW-06) and Dauram Shrivas (PW-07), who is mother and brother of the deceased coupled with other circumstances evidence available on record and, as such, the offence is duly proved and established against the appellant. Hence, the learned trial Court has rightly convicted the appellant for offence under Section 302 & 201 of IPC. Thus, the present appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. In view of submissions made hereinabove following two questions arise for consideration before us: (i) whether death of the deceased is homicidal in nature ? (ii) whether it is the appellant who is the author of the crime, as held by learned trial Court ? 10. Answer to Question No.(i): In order to answer this question, it would be appropriate to refer to the statement of Dr. A.S. Kanvar (PW-05), who has medically examined the dead-body of the deceased while conducting postmortem and has clearly opined in Para-10 of his statement that the death of the deceased is due to strangulation and nature is homicidal and, as such, he has duly proved PM report (Ex.P/05). Dr. A.S. Kanvar (PW-05), who has medically examined the dead-body of the deceased while conducting postmortem and has clearly opined in Para-10 of his statement that the death of the deceased is due to strangulation and nature is homicidal and, as such, he has duly proved PM report (Ex.P/05). Dr. A.S. Kanvar (PW-05) was subjected to extensive cross-examination by the prosecution and in Para-14 of his cross-examination he has further clearly stated that on the neck of deceased one ligature mark was found and has opined that if any person is murdered and thereafter hanged, then such type of ligature mark, which was visible on the neck of the dead-body of the deceased, can appear. Further, Dr. A.S. Kanvar (PW-05) categorically stated by referring to the injuries and mark found over the body of the deceased that ligature mark was found over the thyroid cartilage and it is a case where deceased was firstly murdered and thereafter hanged. Dr. A.S. Kanvar (PW-05) has been consistent in his statement that it is a case where deceased was murdered by way of strangulation and thereafter she was hanged. After going through the statement of Dr. A.S. Kanvar (PW-05) alongwith PM report (Ex.P/05), we are of the opinion that death of the deceased is homicidal in nature and the statement of Dr. A.S. Kanvar (PW-05) is absolutely correct statement based on evidence available on record and we find no good reason to take another view of the mater except holding that the death of the deceased was on account of strangulation and thereafter she was hanged and nature of death is homicidal. Thus, Question No.(i) is answered accordingly. 11. Answer to Question No.(ii): In the instant case, it is the case of the accused-appellant that death of the deceased is suicidal in nature, as suicide note has been recovered and marked as Q1 and as per Handwriting Expert report (Ex.P/18 & P/19) it has been stated that the person who has written notes marked as N1 to N8 has also written said suicide note marked as Q1. But the learned trial Court has disbelieved the said case of suicide and held in Para-41 of the judgment as under: ^^41 e`frdk ds e`R;q iwoZ ys[k D;k blh ?kVuk ls igys fy[kh x;h Fkh vFkok bl ?kVuk ds dbZ fnu iwoZ fy[kh x;h Fkh& ;g rF; izekf.kr ugha gSA ijarq e`R;q iwoZ ys[k e`frdk dh gh Fkh ;g gLrys[k fo'ks"kK dh tkap iz0ih018&19 ls Li"V gks x;h gSA ,slh fLFkfr esa mijksDr ys[k dk gh cpko ysus ds vk'k; ls mDr ys[k dks ?kVukLFky 'kksQklsV esa j[krs gq, 4 xkaB okyh Qkalh ds Qans ls e`R;q u gksuk tkurs gq, Hkh vkjksih ds }kjk gh e`frdk dh xys esa 4 xkaB okyh nqiV~Vk dldj cka/kh x;h FkhA D;ksafd blh O;fDr ds }kjk vius xys dks fcuk ljdus okys jLlh ;k diMs ls dldj cka/kus ds Ik'pkr Qkalh yxkus gsrq fdlh isM] ia[kk ;k ikbZi esa cka/kk tk lds ;g laHko ugha gksxhA lkFk gh pyrs gq, ia[ks esa Hkh Qkalh ds jLlh Loa; ugha cka/ks tk ldrsa gSaA tcfd Qkalh dh jLlh ia[kk esa cka/ks tkus ds i'pkr vU; O;fDr ds }kjk gh ia[ks dk cVu vkWu fd;k tk ldrk gSA ?kVuk le; vkjksih vius NksVs cPps rFkk e`frdk ds vykok vkjksih ds can vkokl esa vU; dksbZ O;fDr ekStwn ugha FkkA vr% ,slh fLFkfr esa foospuk vf/kdkjh ,oa 'ko ijh{k.kdrkZ MkDVj rFkk e`frdk dh ekrk ,oa HkkbZ ds dFku ifj'khyu ls vkjksih ds f[kykQ vkjksfir vkjksi izekf.kr gksuk ik;k tkrk gSA^^ The aforesaid finding would show that firstly the learned trial Court by relying upon the medical evidence held the accused-appellant guilty for offence under Section 302 of IPC and secondly applied 106 of the Indian Evidence Act, 1872 on the basis that at the time of incident, apart from the appellant and the deceased, two children, namely, Rupesh and Himalaya Kumari @ Kushboo (PW-02) were present in the house and thirdly Fhulbai (PW-06) and Dauram Shrivas (PW-07), who are mother and brother of the deceased, have supported the case of the prosecution and motive has been found proved. Further, in order to hold guilty to the appellant, the learned trial Court recorded its analysis running from Para- 17 to Para-40 of the judgment and recorded its finding that deceased died due to strangulation and it is the appellant who is author of the crime. 12. Further, in order to hold guilty to the appellant, the learned trial Court recorded its analysis running from Para- 17 to Para-40 of the judgment and recorded its finding that deceased died due to strangulation and it is the appellant who is author of the crime. 12. The Supreme Court in the matter of Balaji Gunthu Dhule vs. State of Maharashtra, [ (2012) 11 SCC 685 ] while considering the evidentiary value of the postmortem report has held that the postmortem report is only corroborative piece of evidence and it could not be relied upon to convict an accused for offence under Section 302 of IPC and held in Para-09 as under: “9. The High Court has also relied upon the postmortem report of the Doctor. In our opinion, since the entire evidence of the eye— witnesses has not been accepted by the High Court, it could not have merely relied upon the postmortem report to convict the appellant for an offence under Section 302 of the I.P.C. Further, in our view, the postmortem report should be in corroboration with the evidence of eye—witnesses and cannot be an evidence sufficient to reach the conclusion for convicting the appellant. In view of the above, we have no other alternative but to allow this appeal and set aside the judgment and order passed by the High Court convicting the appellant for an offence punishable under Section 302 of the I.P.C.” 13. The principle of law laid down by their Lordships of Supreme Court in Balaji Gunthu Dhule (supra) was followed with approval in the matter of Nagendra Sah vs. State of Bihar, [ (2021) 10 SCC 725 ] . As such, on the basis of medical evidence, which is only a corroborative piece of evidence, the appellant cannot be held guilty for convicting him for an offence under Section 302 of IPC. 14. Furthermore, the learned trial Court has also held that in the house at the time of incident alongwith the appellant and the deceased their two children, namely, Rupesh and Himalaya Kumari @ Kushboo (PW-02) were also present, and thereafter Section 106 of the Indian Evidence Act, 1872 has been held applicable. 15. 14. Furthermore, the learned trial Court has also held that in the house at the time of incident alongwith the appellant and the deceased their two children, namely, Rupesh and Himalaya Kumari @ Kushboo (PW-02) were also present, and thereafter Section 106 of the Indian Evidence Act, 1872 has been held applicable. 15. The Supreme Court in the matter of Trimukh Maroti Kirkan vs. State of Maharashtra, [ (2006) 10 SCC 681 ] relied upon its earlier decision rendered in the case of Nika Ram vs. State of H.P., [ (1972) 2 SCC 80 : AIR 1972 SC 2077 ] in which it has been held that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained. In absence of any cogent explanation by him, would point to his guilt. Furthermore, the Supreme Court in the matter of Ganeshlal vs. State of Maharashtra, [ (1992) 3 SCC 106 ] while considering a case where the appellant was prosecuted for the murder of his wife which took place inside his house, observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.PC. 16. In the instant case, apparently, admittedly and as recorded by the learned trial Court that apart from the appellant and the deceased, their children, namely, Rupesh and Himalaya Kumari @ Kushboo (PW-02) were also present in the house, as such, in light of above decisions rendered by their Lordships of Supreme Court, Section 106 of the Indian Evidence Act, 1872 would not be applicable and it is not a case of house murder and that the accused-appellant and the deceased were only and only present in the house. 17. Now next finding recorded by the learned trial Court is that the mother and brother of the deceased, namely, Fhulbai (PW-06) and Dauram Shrivas (PW-07) have supported the case of the prosecution. Fhulbai (PW-06) has simply stated that on being informed by her elder son, namely, Dauram Shrivas (PW-07) she has gone and saw the dead-body of deceased hanging and, as such, she is note an eye- witness to the incident. Fhulbai (PW-06) has simply stated that on being informed by her elder son, namely, Dauram Shrivas (PW-07) she has gone and saw the dead-body of deceased hanging and, as such, she is note an eye- witness to the incident. Dauram Shrivas (PW-07), though he has stated that the relationship between the appellant and the deceased were not cordial, but that will not point out the guilt of the accused. Similarly, daughter of the deceased, namely, Himalaya Kumari (PW-02) has also stated before the Court that in the night before the date of incident there was some dispute/altercation between her mother and father (deceased and the appellant) and on the next day her father informed that her mother is found hanging. All these statements made Fhulbai (PW-06), Dauram Shrivas (PW-07) and Himalaya Kumari (PW-02), at the best, would attribute some motive on the part of the appellant for commission of the offence, but it could not be made sole basis for convicting the appellant for offence under Section 302 of IPC. 18. It is well settled law that motive may be an important circumstance in a case based on circumstantial evidence, but it cannot take place of conclusive proof. (See: Sampath Kumar vs. Inspector of Police, Krishnagiri, [ (2012) 4 SCC 124 ]). In a recent decision rendered in the matter of Mahendra Singh vs. State of M.P., [ (2022) 7 SCC 157 ] their Lordships of Supreme Court reiterated the law on the point stating that merely because motive is established, solely on that basis accused cannot be convicted under Section 302 of IPC. 19. In that view of the matter, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid by their Lordships of Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra, [ (1984) 4 SCC 116 ] and, in absence of which, we are unable to uphold the impugned judgment of conviction and order of sentence passed by the learned trial Court in convincing the appellant for offence under Sections 302 & 201 of IPC. Thus, Question No.(ii) is also answered accordingly. 20. Thus, Question No.(ii) is also answered accordingly. 20. Accordingly, the conviction of the appellant for offence punishable under Sections 302 & 201 of IPC as well as the sentence imposed upon him by the learned trial Court is hereby set aside. He is acquitted from the charges under Section 302 & 201 of IPC. Since the appellant is already on bail, he need not to surrender before the learned trial Court. However, his bail bond shall remain in force for a period of six months in view of provision contained in Section 437-A of CrPC. 21. This criminal appeal is allowed.