JUDGMENT : Goutam Bhaduri, J Heard. 1. The present appeal is against the judgment of conviction and order of sentence dated 31.12.2019 passed in Sessions Trial No.71/2017 by the Second Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, C.G. whereby the appellant has been convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to undergo R.I. for life and to pay fine of Rs.1000/- and in default of payment of fine additional six months S.I. was also ordered. 2. The prosecution case, in brief, is that on 23.07.2017 at about 6 PM the son of the deceased Ajay came running and informed Mangal Sai and others that while he was playing near his house, the accused called his father Motiram to his home and after some time he heard the noise and saw that his father was in a scuffle and quarrel with the accused. When the dispute aggravated at that time the accused went inside the house, came out with an axe and thereafter made an assault to his father whereby he fell down. Subsequently, the incident was narrated to other witnesses, who then went inside and saw that Motiram is dead and there was a cut injury on his right temple, near the elbow of his right hand, which appeared to have been caused by a sharp weapon. The motive was projected by the prosecution that the deceased Motiram after consumption of liquor used to clamp the charges that the appellant had illicit relation with the wife of the deceased and asked him not to visit his house, therefore, under those background the dispute took place and assault was made, which resulted into death. Thereafter the report was made, the dead body was subjected to postmortem, which confirmed that the death was homicidal in nature and the accused was taken into custody and on his instance a blood stained axe and the T-shirt were recovered. The map of the spot was prepared and after recording the statement of the witnesses, the charge-sheet was filed. 3. The case was committed by the learned Magistrate to the Additional Sessions Judge. During the trial the appellant abjured his guilt and claimed to be tried. The prosecution on their behalf examined as many as 11 witnesses and exhibited 23 documents. The learned trial Court after evaluating the evidence and facts, convicted the accused as aforesaid. Hence this appeal. 4. The case was committed by the learned Magistrate to the Additional Sessions Judge. During the trial the appellant abjured his guilt and claimed to be tried. The prosecution on their behalf examined as many as 11 witnesses and exhibited 23 documents. The learned trial Court after evaluating the evidence and facts, convicted the accused as aforesaid. Hence this appeal. 4. Shri Anil Pillai, learned counsel duly assisted by Shri Anupam Dubey, learned counsel for the appellant, would submit that the prosecution has failed to prove the fact that the assault was made by the accused. He would further submit that instead the learned trial Court was driven by the statement that the conduct of the accused was to the extent and burden of proof under Section 106 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act, 1872') was shifted to the accused despite the fact that no witness has stated that the accused was present at the time of incident in his house. Giving an illustration he would submit that in a given number illustrating that out of 10 points, 9 points may have been proved by the prosecution but has failed to establish chain of point 10, which may cause the burden of proof to be discharged by the accused. He would further submit that the finding of the learned trail Court on res gestae under Section 6 of the evidence Act would also be against the judicial principles in as much as the same cannot be used to form an opinion of commission of crime barring the investigation stage. He would further submit that though the prosecution banked upon the circumstantial evidence but those facts have not been proved, therefore, the wrong finding has been arrived. 5. Per contra, learned State counsel would submit that the accused has been rightly convicted for the reason that the dead body was found at his home. He would further submit that at the instance of the accused, one T-shirt and the axe were recovered, which was having a human blood and no plausible explanation has been given by the accused of presence of those blood, therefore, reading with the statement of Ajay (PW-5), the learned Sessions Judge was right in passing an order of conviction, which do not call for any interference. 6. We have heard learned counsel for the parties and perused the evidence and the judgment. 6. We have heard learned counsel for the parties and perused the evidence and the judgment. 7. The statement of the witness Ajay (PW-5) on which the learned Sessions Judge has heavily relied to form the opinion was read in between the lines. The statement of Ajay (PW-5), the son of the deceased, would show that while he was playing on the fateful day at a distance of 50-60 meters, at that time, the daughter of the accused Laxmi shouted that “Daudo re yahan maar diye”/“run has killed here” thereafter he went to the spot and saw that his father is dead and he bleeded profusely. He had disclosed this fact to the other family members. 8. The Doctor who has proved the postmortem Ex. P-14 stated that the death was caused by shock due to rupture of right common carotid artery and it was homicidal in nature. Therefore, the death which was caused was homicidal there is no dispute about it. 9. The primary question that falls for consideration is as to whether the accused was the author of the crime. Ajay (PW-5) has admitted the fact that he has not seen the incident. He only stated that he went to the house of the accused. The narration on which Ajay (PW-5) has made was that of Laxmi, the daughter of the accused, who has not been examined by the prosecution apart from that Laxmi who was the prime witness could have deposed. The other witnesses Mangal Sai (PW-1), Indra Sai (PW-2), Kariman (PW-3) & Smt. Rekha (PW-4) they are all hearsay evidence. 10. The statement of Mangal Sai (PW-1) would show that the incident was disclosed by Ajay Kumar (PW-5), the son of the deceased and according to him Ajay Kumar (PW-5) disclosed the fact that the dispute and scuffle was going on in between the deceased and the accused and thereafter the accused took out an axe and made an assault but this fact has not been stated by Ajay Kumar (PW-5). The statement of Mangal Sai (PW-1) further would show that after the incident happened, he went to the spot. 11. The statement of Mangal Sai (PW-1) further would show that after the incident happened, he went to the spot. 11. The map which is proved by the witness namely Kariman (PW-3) & Smt. Rekha (PW-4) would show that the place of incident has been shown is the veranda of the house of the accused, which is open space and in front of it, the road exists. The entirety of the statement of the witness do not disclose the fact that anybody has seen the presence of the accused at the relevant time. The prosecution has not brought any fact or evidence on record that how many inmates resides in the house of the accused. According to the prosecution the deceased used to doubt the illicit relation of his wife with the accused, but that doubt cannot be turned into the evidence as that statements are also hearsay. 12.Since there is no eye witness to this case and the case was completely based on circumstantial evidence, the chain of circumstances are required to be established. The Supreme Court in Sattatiya alias Satish Rajanna Kartala Vs. State of Maharashtra (2008) 3 v SCC 210 has reiterated the law laid down at paras 12, 13 & 14 which are reproduced hereunder : 12. In Padala Veera Reddy v. State of A.P.1989 Supp (2) SCC 706, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied : (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 as to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none-else; and (4) 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 and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 13. In Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 , it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are :(SCC p. 185, para 153) – (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; (3) the circumstances should be of a conclusive nature and tendency ; (4) they should exclude every possible hypothesis except the one to be proved; and (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. 14. In State of U.P. v. Ashok Kumar Srivastava (1992) 2 SCC 86 , it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.” 13. Further in respect of circumstantial evidence, the Supreme Court has laid down in Jagroop Singh Versus State of Punjab (2012)11 SCC 768 at paras 12, 14 and 15 which reads thus : 12. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 (SCC p.185, Para 153) a three-Judge Bench has laid down five golden principles which constitute the “Panchsheel” in respect of a case based on circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 (SCC p.185, Para 153) a three-Judge Bench has laid down five golden principles which constitute the “Panchsheel” in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 (SCC p.807, para 19) it was opined that it is a primary principle that the accused “must be” and not merely “may be” guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that 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; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that 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. 14. In Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259, : (SCC p. 262, Para 4) it has been laid down that “4.... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.” 15. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.” 15. In Harishchandra Ladaku Thange v. State of Maharashtra (2007) 11 SCC 436 while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasized that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.” 14. According to the prosecution, at the instance of the accused the weapon used in the offence i.e. axe was recovered by Ex.P/10 and T-shirt of the accused (Ex. P/13) was recovered on 24/07/2017. Both the articles were sent for FSL. The T-shirt was marked as article D and the axe was marked as article E. Articles D & E show that as per FSL (Ex. P/23) that it was having a human blood but the group of the blood was said to be inconclusive, therefore, in the circumstances we would follow the law laid down by the Supreme Court in the matter of Prakash Vs. State of Karnataka { (2014) 12 SCC 133 } wherein it was held that when the blood samples are seized then considering the ancillary evidence would further should lead to point out the guilt. In absence of any other corroborative evidence, the blood group, which was found in T-shirt of accused, was that of deceased should have been proved. In examination of accused under Section 313 Cr.P.C. question No.37 the specific question was not asked to the accused wherein the explanation was sought for about specific presence of blood in his T-shirt. In absence of any other corroborative evidence, the blood group, which was found in T-shirt of accused, was that of deceased should have been proved. In examination of accused under Section 313 Cr.P.C. question No.37 the specific question was not asked to the accused wherein the explanation was sought for about specific presence of blood in his T-shirt. Therefore, the inference cannot be drawn that even if the human blood was present, specific question having not been put to the accused under Section 313 Cr.P.C. to uphold conviction, it cannot be otherwise held that no prejudice was caused to the accused. 15. In view of the foregoing discussion, we are of the view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Therefore, we are of the view that the conviction and the sentence imposed on the appellant cannot be allowed to sustain. 16. Accordingly, the conviction and sentence imposed upon the appellant under Section 302 of the Indian Penal Code is hereby set aside and he is acquitted of the said charge. The appellant is in jail. Since the appellant filed the appeal through the legal aid, copy of the judgment be sent to the concerned Secretary, Legal Aid, so that the appellant can be released from jail, if not required in any other case. 17. In the Result the appeal is allowed. The order be communicated forthwith.