JUDGMENT : GOUTAM BHADURI, J. 1. The present appeal is against the judgment of conviction and order of sentence dated 07.01.2020 passed by the Third Additional Sessions Judge, Raipur in Sessions Trial No. 02/2019, whereby the accused/appellant has been convicted and sentenced as under: Conviction Sentence Section 302 of the IPC R.I. for life with fine of Rs. 3000/- in default of payment of fine further to undergo RI for 2 months. Section 460 of the IPC R.I. for 10 years with fine of Rs. 2000/- in default of payment of fine, further to undergo RI for one month. Both sentences to run concurrently 2. Prosecution case is that on 10.09.2018 at about 11:30 pm the appellant along with two juveniles had abused the deceased Shaukat Ali and Sadhna Bagh near Halka Pond, Mathpuraina, Raipur. Thereafter, they forcefully entered the house and assaulted the deceased Shaukat Ali by means of iron rod due to which he succumbed to death. The background of such attack as developed by the prosecution was that an FIR was lodged by Saeida Khan (PW-1) stating that she had received a phone call from Shaukat Ali, who is her nephew, at about 11:30 pm informing her that the appellant and two other persons came there and abused him in a filthy language and assaulted him with iron rod. Subsequently, when she reached the spot, she found that Shaukat Ali (deceased) was lying on the floor in a pool of blood. Thereafter, the deceased was taken to the hospital and on 13.09.2018 he died. The motive behind the offence is that the deceased had an illicit relation with the wife of the appellant because of which there was dispute between the parties and the appellant threatened the deceased with dire consequences. Because of such motive, the appellant along with two juveniles attacked the deceased. 3. After the incident, the appellant was apprehended and on his memorandum blood stained clothes and blood stained iron road were recovered. Thereafter, charge-sheet was filed under Sections 302, 458, 294, 506, 323 & 307 read with Section 34 of the IPC. During the course of trial, the appellant abjured the guilt and claimed to be tried. 4. The prosecution examined as many was 18 witnesses and exhibited 28 documents. However, the defence did not examine any evidence. Thereafter, charge-sheet was filed under Sections 302, 458, 294, 506, 323 & 307 read with Section 34 of the IPC. During the course of trial, the appellant abjured the guilt and claimed to be tried. 4. The prosecution examined as many was 18 witnesses and exhibited 28 documents. However, the defence did not examine any evidence. Learned Additional Sessions Judge after evaluating the evidence on record, convicted and sentenced the accused as aforesaid. Hence, this appeal. 5. Learned counsel for the appellant would submit that as the sole eyewitness Sadhna Bagh (PW-6) has turned hostile and Saeida Khan (PW-1), on whose report the investigation commenced, did not support the case of the prosecution, in such circumstances, the case of the prosecution completely rests on the circumstantial evidence. She would submit that in order to prove the charge against the appellant, the prosecution has relied upon the evidence of Lochan Sona (PW-5), Abdul Nadim (PW-7) and Abdul Kalam (PW-14). Perusal of the evidence of these witnesses would show that they have given inconsistent and improved statement before the Court so as to inculpate the present accused. She submits that though the prosecution alleged that as per FSL report, human blood was found on T-shirt, lower and iron rod which were recovered at the instance of accused, however, the same did not match with the blood found on the articles so collected. Therefore, the nature of blood also cannot be the sole reason for convicting the accused. In support of her contention, she placed reliance on the judgment of Hon’ble Supreme in the matter of Balwan Singh vs. State of Chhattisgarh, (2019) 7 SCC 781 to submit that unless the dotted lines are connected to sustain a conviction on the basis of circumstantial evidence, the interference is required for by the Court. Therefore, this appeal deserves to be allowed and the impugned judgment of conviction and sentence is liable to be set-aside. 6. Per contra, learned State counsel would submit that the seizure witnesses Mohd. Dilawar Shekh (PW-12) and Mohd. Habib (PW-13) have completely supported the case of the prosecution. Therefore, this appeal deserves to be allowed and the impugned judgment of conviction and sentence is liable to be set-aside. 6. Per contra, learned State counsel would submit that the seizure witnesses Mohd. Dilawar Shekh (PW-12) and Mohd. Habib (PW-13) have completely supported the case of the prosecution. He would further submit that the statements of Lochan Sona (PW-5), Abdul Nadim (PW-7) and Abdul Kalam (PW-14) would show the motive for which attack was made on the deceased and Saeida Khan (PW-1), who was author of the FIR (Ex.P-1) though has turned hostile, however, the FIR has been proved by Investigating Officer. He would also submit that the sole eyewitness Sadhna Bagh (PW-6) has turned hostile, however, in the statement of the appellant recorded under Section 313 Cr.P.C. no plausible explanation has come forward as to how the blood was present on his clothes. Therefore, the impugned judgment passed by the trial Court is well merited and the same does not call for any interference by this Court. 7. We have heard learned counsel for the parties at length and perused the evidence on record. 8. The prosecution predominantly proceeded on the ground that the appellant had a motive to commit murder of the deceased because the deceased was maintaining an illicit relation with wife of the appellant and for the same, the prosecution has relied upon the evidence of Lochan Sona (PW-5), Abdul Nadim (PW-7) and Abdul Kalam (PW-14). Lochan Sona (PW-5) in his evidence has stated that he was working with the deceased in his cooler shop. He has further stated that on the date of incident the deceased has made a request for shifting household articles to his newly accommodation where the incident happened and for the said purpose he along with deceased and Saeida Khan went there. He further stated that thereafter he went to drop Saieda Khan to her house and when he was returning, the present appellant and two other persons intercepted him and asked him as to where the deceased has taken the accommodation on rent and thereafter, the accused persons took him to Mathpuraina Halkapond from where this witness had shown the house of the deceased from a distance, on which, he was asked to leave the place. Later on, he received a call from Saieda Begam that Shaukat Ali has been assaulted. 9. Later on, he received a call from Saieda Begam that Shaukat Ali has been assaulted. 9. When this witness, PW-5 was confronted with his statement recorded under Section 161 Cr.P.C. (Ex.D-1), there were material improvements and omissions were pointed out, which includes the fact that at the request of the deceased, he shifted the household articles and reached the spot. This statement of fact is missing in his statement (Ex.D-1). The fact that along with him, Pappu and his mother Saieda Khan also went there and after shifting the household articles in the said premises, he went to leave Pappu and Saieda Khan to Santosh Nagar, is also missing. Further, the fact that he received a call from Saieda Begam that Shaukat Ali was assaulted and he showed the people the said house and while one person kept him in a confinement before going, is also missing in Ex.D-1, as against the statement before the Court. So, the overall statement would show that material improvement was made by this witness to state prior state of mind of the accused to show the motive and preparation. These facts having not been stated at the earlier point of time, to rely on the improvement made before the Court would be a dangerous proposition. 10. The evidence of Abdul Nadim (PW-7) goes to show that he also went to the house of Shaukat Ali at Matkuraina for transporting his household articles, but except the fact that he received a phone call from Saeda Begam that Shauakt Ali was assaulted by the accused persons is based on hearsay evidence from Saeaba Begam. Likewise, Abdul Kalam (PW-14) in his evidence stated that in the evening at about 6 PM he saw that the appellant and two other persons were going towards Bhathagaon. The evidence of this witness also shows that he received a call at about 11 pm from Shakila Khan that the deceased was assaulted by the appellant. Before the Court, he stated that when the appellant/accused along with two others was going on his Activa (two wheeler) at that time he was having a pipe in his hand but that fact has not been stated. This statement recorded under Section 161 Cr.P.C. is marked as Ex.D-2. In examination-in-chief, this witness has stated that Saeida Khan @ Shakila Khan had informed him through a phone call that the deceased was assaulted by the appellant. This statement recorded under Section 161 Cr.P.C. is marked as Ex.D-2. In examination-in-chief, this witness has stated that Saeida Khan @ Shakila Khan had informed him through a phone call that the deceased was assaulted by the appellant. Whereas, in his statement (Ex.D-2), he has stated that at 12:30 hours in the night Shaukat Ali called him and informed that he was assaulted by the appellant and others. Thereafter, he reached the spot. There is a material controversy and omission exists in the statement of this witness. Apart from this fact, PW-5, PW-7 and PW-14 were not the eyewitness to the incident as they were not present on the spot at the time of incident. 11. According to the prosecution, the incident only happened in presence of Sadhna Bagh (PW-6), who is the wife of the appellant. Therefore, we went through the statement of PW-6, the eyewitness. This witness in her evidence stated that she was pressurized by the police for giving the statement to the effect that if the present appellant is not inculpated, she would be arrested in some case and would be lodged into jail for 3 months. She has completely disowned the statement that the appellant has caused the death of the deceased. In her statement recorded under Section 164 of the Cr.P.C. (Ex.P-7), in examination-in-chief, she has stated that at the time of statement the police was with her and subsequently, when she was confronted with her statement to the police under Section 161 of the Cr.P.C. vide Ex.P-8, she disowned the same. This witness was declared hostile and was cross-examined. Even in the cross-examination, we do not find the narrative to support that she was an eye witness to the incident. Even otherwise, it is a settled proposition that statement under Section 164 Cr.P.C. is a weak type of evidence and the Court has to be sensitive before acting on it. When Sadhna Bagh (PW-6), so called eyewitness, has completely resiled from her statement and nothing has been divulged to support the prosecution in her cross-examination. Therefore, the only evidence which remained to connect the appellant with crime in question was the circumstantial evidence i.e. recovery and memorandum. 12.The prosecution case initially rests on the evidence of Saeida Khan (PW-1). When Sadhna Bagh (PW-6), so called eyewitness, has completely resiled from her statement and nothing has been divulged to support the prosecution in her cross-examination. Therefore, the only evidence which remained to connect the appellant with crime in question was the circumstantial evidence i.e. recovery and memorandum. 12.The prosecution case initially rests on the evidence of Saeida Khan (PW-1). According to Lochan Sona (PW-5) and Abdul Nadim (PW-7), they came to know about the incident over phone call which was made by Saeida Khan (PW-1) who was also related to deceased. However, this witness, PW-1, has not supported the case of the prosecution. Even in the cross-examination, nothing has been elicited that she has made a false deposition before the Court. 13. Before we go into the recovery and memorandum, it would be apt to refer to the nature of injuries and the Postmortem report (Ex.P-8A & P-8) which is proved by Dr. Shivnarayan (PW-10). According to the doctor (PW-10), the following injuries were found on the body of the deceased: “(1) contusion present on neck right side 4 in number, extend to mastoid to supraclavicular region, size up to down 12 cm x 2 cm, 13 cm x 3 cm, 9 cm x 2 cm and 12 cm x 2.5 cm with rail pattern, all are transverse, muscle, massively contused. (2) contusion on right shoulder upper part at neck region in the size of 10 cm x 2 cm. (3) contusion on right side back below scapular region in the size of 12 cm x 4 cm. (4) contusion on right arm anteromedial aspect in the size of 11 x 2.5 cm vertical. (5) contusion on left forearm upper 1/3 part in the size of 11 cm x 03 cm, muscle contused, fracture of both radius and ulna. (6) contusion on right cubital fossa in the size of 5 cm x 3 cm. (7) lacerated wound present on right forearm in the size of 3 cm x 1cm at fractured side. (8) contusion on left cheek ear lelix upper part 3 cm x 3 cm with stitched wound 4 cm long with 4 stitches. (9) stitches wound on left zygomatic region 3 cm long with 3 stitched tissue deep. (7) lacerated wound present on right forearm in the size of 3 cm x 1cm at fractured side. (8) contusion on left cheek ear lelix upper part 3 cm x 3 cm with stitched wound 4 cm long with 4 stitches. (9) stitches wound on left zygomatic region 3 cm long with 3 stitched tissue deep. (10) Dark red to brownish colour ecchymosis present on left frontoparietal and temporal region all over skull, depressed fracture present in the size of 9 cm x 4 cm, depressed inward. Brain lacerated against fracture with contusion on left frontal and temporal lobes with base of brain in the size of 9 cm x 6 cm long injury. Fracture of anterior cranial fossa transverse both side. All injuries caused with hard and blunt objection. Rail pattern bruises all contusion. All injuries shows dark red to brownish colour ecchymosis.” 14. The doctor found 10 injuries on the body of the deceased and the death was caused due to cardio-respiratory failure as a result of head injury and its complications. The death was certainly homicidal in nature. According to the prosecution, the death was caused on account of assault on head by means of hard and blunt object i.e. iron pipe. 15. After the incident, from the spot, blood stained soil and two mobile phones were seized vide Ex.P-4 and subsequent to it on the basis of memorandum (Ex.P-13), blood stained iron pipe was recovered vide Ex.P-14. Apart from it, blood stained t-shirt and lower were also seized vide Ex.P-15. After the iron rod was seized, it was sent for query and vide query report (Ex.P-9), the doctor (PW-10) has confirmed the fact that the injuries could be caused by the said iron pipe. In the said query report (Ex.P-9), a query was made that whether blood found on t-shirt, lower, banyan and underwear of the deceased and the blood found on the iron pipe, t-shirt and lower seized from the appellant was human blood or not and whether the blood found on the aforesaid articles is of one person? 16. The FSL report (Ex.P-26) proved by PW-15 shows that cotton seized from the spot marked as Article ‘A’ & ‘B’ contains human blood appears to be of deceased. 16. The FSL report (Ex.P-26) proved by PW-15 shows that cotton seized from the spot marked as Article ‘A’ & ‘B’ contains human blood appears to be of deceased. The T-shirt was marked as Article ‘C’ lower was marked as Article ‘D’, banyan was marked as Article ‘E’ and underwear of the deceased was marked as Article ‘F’. On Article ‘C’ i.e. T-shirt, blood was found but it was not confirmed that same was human blood or not. The lower of the deceased, Article ‘D’ also contained human blood. On Banyan, Article ‘E’ and underwear, Article ‘F’ presence of blood was shown but said blood was not reported to be human blood. On the other hand, T-shirt and lower of the accused/appellant which were marked as Article ‘G’ and ‘H’ contained human blood. However, in respect of iron pipe marked as Article ‘I’ though the blood is said to be present but it was not confirmed to be of human blood. 17. The Hon’ble Supreme Court in the matter of Prakash vs. State of Karnataka, (2014) 12 SCC 133 and the principles which has been laid down in the matter of Balwan Singh (Supra), had an occasion to deal with such situation when blood stained clothes were recovered. The evidence of Saeida Khan (PW-1), Sadhna Bagh (PW-6) and other witnesses on which the prosecution has relied upon from the very beginning have not supported the case of the prosecution. In such event, following the aforesaid principles, we are of the opinion that the recovery of blood stained clothes from the accused would not advance the case of the prosecution for the reason that when the clothes of the deceased stained with blood were seized from the spot, the group of it should have been matched with the blood found on the clothes which were seized from the accused. 18. The blood stained clothes seized from the accused, which were said to be of the deceased, in the absence of any injury to the accused could have been matched but report of Forensic Science Laboratory (Ex.P-26) is silent about such fact. The trial Court formed its opinion primarily on circumstantial evidence of presence of blood on the clothe of the accused and convicted him. The trial Court formed its opinion primarily on circumstantial evidence of presence of blood on the clothe of the accused and convicted him. It is settled proposition that in order to prove the guilt of the accused, the circumstances from which conclusion of guilt to be drawn should be fully proved and conclusive in nature to connect the accused with the crime in question. This proposition was laid down on the judgment of Hon’ble Supreme in the matter of Jagroop Singh vs. State of Punjab, (2012) 11 SCC 768 and following was observed in paragraphs 12, 13, 14 and 15 which is reproduced hereunder: “12. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 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 Sahebrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 , 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. 13. In Padala Veera Reddy vs. State of Andhra Pradesh and Others, 1989 Supp. (2) SCC 706, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: “10..........(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. (2) SCC 706, this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: “10..........(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. (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.” A similar view has been reiterated in Ramreddy Rajesh Khanna Reddy and Another vs. State of A.P. (2006) 10 SCC 172 . 14. In Balwinder Singh vs. State of Punjab, 1995 Supp. (4) SCC 259, it has been laid down: “4.........that 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 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 the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever 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 the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.” 15. In Harishchandra Ladaku Thange vs. State of Maharashtra, (2007) 11 SCC 436 , while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasised 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.” 19. Applying the aforesaid principles in the present case, the evidence shows the complainant Saeida Khan (PW-1) has completely disowned the happening of the incident. Subsequently, another witness Sadhana Bagh (PW-6) who is projected by the prosecution to be an eyewitness has completely disowned the fact that she was the eyewitness to the incident. Further, the evidence of Lochan Sona (PW-5) and Abdul Kalam (PW-14) shows that there are material improvement to bring the motive which was not disclosed in their police statements vide Ex.D-1 and Ex.D-2 and Abdul Nadim (PW-7) is only the hearsay witness. As regards source of information of PW-5 and PW-7, though they have stated that deceased given the information over the phone call, however, neither any evidence during investigation was collected nor any call details were obtained by the prosecution to prove the aforesaid facts, inspite of the fact that two mobile phones were recovered from the spot vide Ex.P-4. Therefore, only on inference, the prosecution proceeded imputing motive as one of the cause. 20. For the forgoing, we are of the view that the prosecution has not been able to prove the guilt of the accused/appellant beyond reasonable doubt. 21. Accordingly, the conviction and sentence imposed on the appellant under Sections 302 and 460 of the IPC are set-aside and he is acquitted of the said charges. 20. For the forgoing, we are of the view that the prosecution has not been able to prove the guilt of the accused/appellant beyond reasonable doubt. 21. Accordingly, the conviction and sentence imposed on the appellant under Sections 302 and 460 of the IPC are set-aside and he is acquitted of the said charges. The appellant be set at liberty forthwith unless required to be detained in any other case, on his furnishing a personal bond in the sum of Rs.25,000/- to the satisfaction of the trial Court. The bail bonds furnished by the appellant shall remain in operation for a period of six months from today in view of the provisions contained under Section 437-A of the Cr.P.C. The appellant shall appear before the Higher Court as and when directed. 22. Accordingly, the Appeal is allowed.