JUDGMENT : [Sanjay K. Agrawal, J.] 1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 06/08/2014 passed by learned Additional Sessions Judge, Dhamtari in Sessions Trial No. 04/2014 whereby he has been convicted for offence punishable under Sections 302 and 450 of IPC and has been sentenced to undergo imprisonment for life with fine of Rs. 100/- in default of payment of fine, additional R.I. for 1 month and R.I. for 10 years with fine of Rs. 100/- in default of payment of fine, additional R.I. for 1 month, respectively, directing both the sentences to run concurrently. 2. Case of the prosecution, in brief, is that on 29/12/2013 in between 4 PM to 6:30 PM at Village Chhuhi within the ambit of Police Station Keregaon, the appellant herein entered into the house of Tikeshwari Bai with the intention of killing her and caused her death by strangulating her neck and thereby, committed the aforesaid offences. 3. Further case of the prosecution is that deceased Tikeshwari Bai lived in a joint family along with her husband Yuvraj (P.W.-9), brother-in-law Parmeshwar Sahu (P.W.-7), sister-in-law Hemlata Sahu (P.W.-2), father-in-law Johan Ram (P.W.-1) and mother-in-law Ramkuriya Bai (P.W.-8). On the date of the incident i.e. 29/12/2013, Yuvraj (P.W.-9), Parmeshwar Sahu (P.W.-7), Johan Ram (P.W.-1) and Ramkuriya Bai (P.W.-8) had gone to a fair held at Village Salhebhat whereas deceased Tikeshwari Bai and Hemlata Sahu (P.W.-2) were at home. At about 4 PM, Hemlata Sahu (P.W.-2) also went to the fair to take her children and the deceased was all alone at home. Thereafter, at 7:30 PM, their neighbour Toran Das (P.W.-6) came to Village Salhebhat and asked Parmeshwar Sahu (P.W.-7) to immediately close their shop and come home and when they returned to their home, they found Tikeshwari Bai lying dead, which was informed by Parmeshwar Sahu (P.W.-7) to the Police Station Keregaon on the basis of which merg intimation was registered vide Ex. P/10 and inquest was conducted vide Ex. P/2. The dead body was subjected to postmortem which was conducted by Dr. R.K. Soni (P.W.-10) and as per the postmortem report (Ex. P/11), cause of death is said to be asphyxia caused by throttling and nature of death is said to be homicidal. P/10 and inquest was conducted vide Ex. P/2. The dead body was subjected to postmortem which was conducted by Dr. R.K. Soni (P.W.-10) and as per the postmortem report (Ex. P/11), cause of death is said to be asphyxia caused by throttling and nature of death is said to be homicidal. During enquiry, it was revealed that appellant had love affair with the deceased and since she became pregnant with his child, she was pressurizing the appellant to keep her as his wife and out of frustration, the appellant is said to have assaulted the deceased on 29/12/2013 finding her all alone in the house and when he was leaving the house of the deceased from back door, he was seen by Amar Singh (P.W.-3). Thereafter, memorandum statement of the appellant was recorded vide Ex. P/6 and blood-stained shirt and pant were seized from his possession on 01/01/2014 vide Ex. P/8 and alongwith other seized articles, these were sent for chemical examination on 23/01/2014 vide Ex. P/20 and as per the FSL report (Ex. P/21) dated 11/06/2014, blood was found on the shirt and pant seized from the appellant as well as on the blouse and petticoat of the deceased and out of them, human blood was found on the pant of the appellant as well as on the blouse and petticoat of the deceased and human blood of 'O' blood group was found on the blouse of the deceased. After due investigation, the appellant was charge-sheeted for offences punishable under Sections 450 and 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 15 witnesses and brought on record 21 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and exhibited only 4 documents. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of Tikeshwari Bai to be homicidal in nature and finding the appellant to be author of crime in question, proceeded to convict him for offences punishable under Sections 450 and 302 of IPC and sentenced him as aforesaid. 6. Mr. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of Tikeshwari Bai to be homicidal in nature and finding the appellant to be author of crime in question, proceeded to convict him for offences punishable under Sections 450 and 302 of IPC and sentenced him as aforesaid. 6. Mr. Praful Bharat, learned senior counsel appearing on behalf of the appellant, would make the following submissions :- i) The motive of offence in the form of alleged relationship between the appellant and deceased has not been established at all and even otherwise, the appellant could not have been convicted only on the basis of motive of offence without establishing other incriminating circumstances in light of the decision rendered by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 . ii) There is no direct evidence available on record as Amar Singh (P.W.-3) and Bisahin Bai (P.W.-13) have not seen the incident though they have been cited as eye-witnesses and have been relied upon by the prosecution, whereas, their testimonies are not at all reliable and trustworthy and are liable to be discarded. iii) Seizure of blood-stained shirt and pant from the appellant vide Ex. P/8 pursuant to his memorandum statement (Ex. P/6) has not been established as the Investigating Officer D.K. Sharma (P.W.-15) has clearly stated before the Court that it was the appellant's father who had handed over these articles to them, as such, recovery of blood-stained shirt and pant cannot be said to be made pursuant to the memorandum statement of the appellant under Section 27 of the Evidence Act and that recovery, which is not made from the possession of the accused or at his instance pursuant to his memorandum statement, is of no use to the prosecution. iv) Admittedly, seizure of blood-stained shirt and pant is said to have been made vide Ex. P/8 on 01/01/2014 and they were sent for FSL on 23/01/2014 and were received by the Laboratory on 27/01/2014, however, no evidence has been brought on record by the prosecution to show that these articles were kept in safe custody from 01/01/2014 to 27/1/2014, therefore, tampering with the said seized articles cannot be ruled out. v) The FSL report (Ex. P/8 on 01/01/2014 and they were sent for FSL on 23/01/2014 and were received by the Laboratory on 27/01/2014, however, no evidence has been brought on record by the prosecution to show that these articles were kept in safe custody from 01/01/2014 to 27/1/2014, therefore, tampering with the said seized articles cannot be ruled out. v) The FSL report (Ex. P/21) has not been put to the accused under Section 313 of CrPC and therefore, it could not have been relied upon by the trial Court. In order to buttress his submission, learned senior counsel would place his reliance upon the decision rendered by the Constitution Bench of the Supreme Court in the matter of Tara Singh v. State, AIR 1951 SC 441 which has been followed with approval in Prakash v. State of Karnata, (2014) 12 SC 133 and he would submit that the instant appeal be allowed and the appellant be acquitted of the charges levelled against him. 7. Per contra, Wasim Miyan, learned State counsel, would submit that prosecution has been able to prove the offence beyond reasonable doubt and there is direct evidence available on record in the shape of testimonies of Amar Singh (P.W.-3) and Bisahin Bai (P.W.-13), who are eyewitnesses to the incident, and there is circumstantial evidence available on record as well in the shape of recovery of blood-stained shirt and pant vide Ex. P/8 pursuant to memorandum statement of the appellant vide Ex. P/6 in which human blood has also been found as per FSL report (Ex. P/21), as such, the trial Court has rightly held the appellant to be the author of the crime and he has been rightly convicted for the aforesaid offences, therefore, the instant 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. So far as the nature of death of deceased Tikeshwari Bai is concerned, learned trial Court has held it to be homicidal in nature relying upon the expert medical opinion of Dr. R.K. Soni (P.W.-10) who has proved postmortem report (Ex. P/11) in which cause of death is said to be asphyxia by throttling and nature of death is said to be homicidal in nature. Considering the postmortem report (Ex. P/11) as well as the statement of Dr. R.K. Soni (P.W.-10) who has proved postmortem report (Ex. P/11) in which cause of death is said to be asphyxia by throttling and nature of death is said to be homicidal in nature. Considering the postmortem report (Ex. P/11) as well as the statement of Dr. R.K. Soni (P.W.-10) and looking to the injury suffered by the deceased on her neck, we are of the considered opinion that the trial Court has rightly recorded the finding that death of deceased Tikeshwari Bai is homicidal in nature. We hereby affirm the said finding recorded by the trial Court. 10. The instant case is based upon both direct evidence as well as circumstantial evidence. We shall firstly deal with the direct evidence available on record in the shape of testimonies of Amar Singh (P.W.-3) and Bisahin Bai (P.W.- 13), who have been cited as eye-witnesses by the prosecution. Direct Evidence 11. Amar Singh (P.W.-3) has only stated before the Court that on the date of offence i.e. on 31/12/2013, a fair was held in Salhebhat and he had gone to the fair along with his son-in-law and when he returned to his home in the evening, the appellant was at his home and he asked him to bring some oil. The appellant brought the oil as asked by Amar Singh and thereafter, left his house. After about 20-25 minutes, Ramkuriya Bai (P.W.-8), mother-in-law of deceased Tikeshwari Bai, started shouting on the road that her daughter-in-law had died and called the neighbours as well as village Kotwar. When they went to the house of the deceased, they saw that Tikeshwari Bai was lying dead and thereafter, he along with some villagers and the Kotwar went to the Police Station to lodge a report. A careful scrutiny of the statement of Amar Singh (P.W.-3) would show that he has not helped the case of the prosecution at all as in the beginning itself, he has stated the date of offence to be 31/12/2013 whereas the actual date of offence is 29/12/2013. Furthermore, he is the neighbour of the deceased but no material fact has been brought out by his evidence, as such, reliance could not have been placed upon his testimony and prosecution has failed to prove his as an eye-witness. We hereby discard the testimony of Amar Singh (P.W.-3) as an eyewitness to the incident. 12. Furthermore, he is the neighbour of the deceased but no material fact has been brought out by his evidence, as such, reliance could not have been placed upon his testimony and prosecution has failed to prove his as an eye-witness. We hereby discard the testimony of Amar Singh (P.W.-3) as an eyewitness to the incident. 12. Similarly, Bisahin Bai (P.W.-13) has stated before the Court that she came to know that Ramkuria Bai's (P.W.-8) daughter-in-law has been murdered and on that day, she had seen a man similar to the appellant in the field of Shiv Doctor, who hid behind the bushes, but in her crossexamination, she has clearly stated that when she was standing near the house of Shatrughan, a man came out from the back door of house of the deceased, however, on account of darkness, she could not identify him. As such, even the statement of Bisahin Bai (P.W.-13) does not further the case of the prosecution and is hereby discarded. Circumstantial Evidence 13. Now, we shall consider the cicumstantial evidence available on record and take up the incriminating circumstances put forth by the prosecution and found proved by the trial Court in order to convict the appellant, one-by-one. A. Motive of Offence :- 14. It is the case of the prosecution that appellant was in a love affair with the deceased and she had also become pregnant with his child and she was insisting the appellant to keep her as his wife, but the appellant, out of anger and frustration, assaulted the deceased finding her all alone in the house on the date of the offence and caused her death by strangulating her. However, after going through the statements of Johan Ram (P.W.-1) father-in-law of the deceased, Hemlata Sahu (P.W.-2) sister-in-law of the deceased and Amar Singh (P.W.-3), who have expressly refuted the fact that appellant and deceased were having an love affair or that they were seen together at any point of time, we are of the considered opinion that prosecution has miserably failed to establish the motive of offence. B. Seizure of blood-stained shirt and pant vide Ex. P/8 :- 15. The seizure of blood-stained shirt and pant which is said to have been made vide Ex. P/8 pursuant to the memorandum statement (Ex. P/6) of the appellant has been seriously questioned on behalf of the appellant. B. Seizure of blood-stained shirt and pant vide Ex. P/8 :- 15. The seizure of blood-stained shirt and pant which is said to have been made vide Ex. P/8 pursuant to the memorandum statement (Ex. P/6) of the appellant has been seriously questioned on behalf of the appellant. In order to establish his point, learned senior counsel appearing on behalf of the appellant has drawn our attention to paragraph 12 of the statement of Investigating Officer D.K. Sharma (P.W.-15) wherein he has stated that vide Ex. P/8, the appellant had got the shirt and pant from his home through his father and had given it for seizure. He has also clearly stated that he does not know the place from where appellant's father took out the said shirt and pant as the Police did not enter into the house of the appellant and he also did not make any query in that regard from appellant's father. As such, it is clearly apparent that it is not the case that appellant had concealed the said shirt and pant in a specific place which was exclusively known only to him and he produced it for seizure after his memorandum statement. Therefore, the statement allegedly given by the appellant as memorandum statement vide Ex. P/6 cannot be said to be the basis of recovery of blood stained shirt and pant vide Ex. P/8 and it is inadmissible in evidence under Section 27 of the Evidence Act. 16. The Supreme Court in the matter of Boby v. State of Kerala, 2023 LiveLaw (SC) 50 following the principle of law laid down in Chandran v. The State of Tamil Nadu, (1978) 4 SCC 90 has held as under :- “21. It could thus be seen that Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. The said view has been consistently followed by this Court in a catena of cases. 22. The information as to past user, or the past history, of the object produced is not related to its discovery. The said view has been consistently followed by this Court in a catena of cases. 22. This Court, in the case of Chandran v. The State of Tamil Nadu (supra) had an occasion to consider the evidence of recovery of incriminating articles in the absence of record of the statement of accused No. 1. In the said case also, no statement of accused No. 1 was recorded under Section 27 of the Evidence Act leading to the recovery of jewels. The Court found that the Sessions Judge as well as the High Court had erred in holding that the jewels were recovered at the instance of accused No. 1 therein in pursuance to the confessional statement (Ex. P- 27) recorded before PW-34 therein. It will be relevant to refer to the following observations of this Court in the said case : “36. …... Thus the fact remains that no confessional statement of A-1 causing the recovery of these jewels was proved under Section 27, Evidence Act.....” 26. This Court has elaborately considered as to how the law expects the IO to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. In the present case, leave aside the recovery panchnama being in accordance with the aforesaid requirement, there is no statement of Boby (accused No. 3/appellant herein) recorded under Section 27 of the Evidence Act. We are, therefore, of the considered view that the prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of Boby (accused No. 3/appellant herein).” 17. Thus, we are of the considered opinion that prosecution has failed to prove that recovery of blood-stained shirt and pant was made at the instance of the appellant pursuant to his memorandum statement (Ex. P/26) under Section 27 of the Evidence Act. We hereby reject this incriminating circumstance put forth by the prosecution against the appellant. C. FSL Report :- 18. The next incriminating circumstance that has been relied upon by the prosecution and found proved by the trial Court is that in FSL report (Ex. P/21), human blood has been found in the shirt and pant said to be seized from the appellant vide Ex. P/8. C. FSL Report :- 18. The next incriminating circumstance that has been relied upon by the prosecution and found proved by the trial Court is that in FSL report (Ex. P/21), human blood has been found in the shirt and pant said to be seized from the appellant vide Ex. P/8. It is pertinent to notice that the shirt and pant are said to be seized from the appellant on 01/01/2014 and it was sent for FSL on 23/01/2014 which was received by the Laboratory on 27/01/2014, but there is no evidence available on record that shows that the said seized articles were kept in safe custody from the date of seizure i.e. 01/01/2014 till the date when it was sent for FSL i.e. 23/01/2014 and they have not been tampered with. Prosecution ought to have filed a copy of malkhana register to demonstrate that the seized articles were sealed and kept in safe custody prior to sending it for FSL in order to rule out the possibility of tampering with the said articles. 19. Apart from this, FSL report (Ex. P/21) has been marked as an exhibit on 30/06/2014 and the statement of the appellant under Section 313 of CrPC has been recorded on 24/07/2014 and after going through the record, it appears that the FSL report (Ex. P/21), though it has been relied upon by the trial Court has one of the incriminating circumstances against the appellant in paragraph 23 of the impugned judgment, but it has not been put to question before the appellant while recording his statement under Section 313 of CrPC. 20. In the matter of Tara Singh (supra), the Constitution Bench of the Supreme Court has clearly held that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him. Paragraph 17 of the report provides as under:- “17..... 20. In the matter of Tara Singh (supra), the Constitution Bench of the Supreme Court has clearly held that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him. Paragraph 17 of the report provides as under:- “17..... It is important therefore that an accused should be properly examined under Section 342 (now Section 313 of the Code of Criminal Procedure) and, as Their Lordships of the Privy Council indicated in Dwarkanath Varma v. King Emperor, AIR 1933 PC 124 , if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and I cannot permit it to be slurred over. I regret to find that in many cases scant attention is paid to it, particularly in Sessions Courts. But whether the matter arises in the Sessions Court or in that of the Committing Magistrate, it is important that the provisions of Section 342 should be fairly and faithfully observed.” 21. The aforesaid principle of law laid down in Tara Singh (supra) has been followed with approval in the matter of Prakash (supra) wherein opportunity to explain the serological report was not granted to the accused in which Their Lordships have held as under :- “43. It is one thing to say that no prejudice was caused to Prakash by not affording him an opportunity to explain the serological report. It is quite another thing to put the report to his learned counsel in appeal and give him (the learned counsel) an opportunity to explain the report of the serologist. The course adopted by the High Court is clearly impermissible. The law on the subject was laid down several decades ago by the Constitution Bench in Tara Singh v. State (supra) and is to the effect that an accused must be given a chance to offer an explanation if the evidence is to be used against him and the conviction is intended to be based upon it. The law on the subject was laid down several decades ago by the Constitution Bench in Tara Singh v. State (supra) and is to the effect that an accused must be given a chance to offer an explanation if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him, whether they prejudice him or not.” 22. In view of the aforesaid legal discussion, it is evident that in the instant case, FSL report (Ex. P/21) could not have been relied upon by the trial Court in order to convict the appellant as it was not put to the appellant under Section 313 of CrPC. The appellant ought to have been given an opportunity under Section 313 of CrPC to explain the FSL report (Ex. P/21) before making it the basis of his conviction. Conclusion :- 23. After an elaborate legal analysis, we are of the considered opinion that alleged direct evidence in the shape of testimonies of Amar Singh (P.W.-3) and Bisahin Bai (P.W.- 13) have not furthered or advanced the case of the prosecution and their statements, being shaky and unconvincing, deserve to be rejected and cannot be made the basis of appellant's conviction, as such, the reliance placed by the trial Court upon their statements is totally uncalled for. Similarly, so far as circumstantial evidence is concerned, the first incriminating circumstance against the appellant which is motive of offence, has also not been established by the prosecution beyond reasonable doubt and the statements of Johan Ram (P.W.-1), Hemlata Sahu (P.W.-2) and Amar Singh (P.W.-3) clearly show that appellant and deceased were not having any kind of love affair and they were not even seen together at an odd time, thus it stands rejected. The second incriminating circumstance against the appellant, being the seizure of blood-stained shirt and pant made vide Ex. The second incriminating circumstance against the appellant, being the seizure of blood-stained shirt and pant made vide Ex. P/8 has also not been established as the said articles were not seized from the possession of the appellant rather they were handed over to the Police by appellant's father, as such, since the said recovery cannot be said to be made pursuant to appellant's memorandum statement under Section 27 of the Evidence Act, therefore, this incriminating circumstance has not been proved by the prosecution against the appellant beyond reasonable doubt in view of the decision rendered by the Supreme Court in Boby (supra). The third and last incriminating circumstance, which is the FSL report (Ex. P/21) has also not been fully proved by the prosecution as though as per the FSL report, human blood has been found on the shirt and pant seized from the appellant, but the seizure was made on 01/01/2014 and the said seized articles were sent for FSL on 23/01/2014 which were received by the Laboratory on 27/01/2014 and no such evidence in the form of malkhana register or any such entry has been brought on record by the prosecution to prove that the said seized articles were sealed properly and were kept in safe custody from 01/01/2014 to 27/01/2014 in order to rule out the possibility of tampering. Furthermore, the FSL report (Ex. P/21), though has been relied upon by the trial Court as an incriminating circumstance against the appellant but it has not been put to question before the accused under Section 313 of CrPC, which is absolutely mandatory in light of the decision rendered by the Supreme Court in Tara Singh (supra) which has been followed in Prakash (supra). 24. Thus, in our considered opinion, the trial Court has erred in relying upon the testimonies of Amar Singh (P.W.-3) and Bisahin Bai (P.W.-13), which have been cited as direct evidence by the prosecution and it has further erred in convicting the appellant on the basis of circumstantial evidence without proving the five golden principles of proving a case based on circumstantial evidence as laid down by Their Lordships of the Supreme Court in Sharadchand Birdichand Sarda (supra). In that view of the matter, impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted of the charges levelled against him. In that view of the matter, impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted of the charges levelled against him. Since the appellant is already on bail, he need not surrender, however, his bail bonds shall remain in operation for a period of six months in light of the provision contained under Section 437A of CrPC. 25. Accordingly, this criminal appeal stands allowed.