JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. The present Criminal Appeal is filed by the appellant-original accused under Section 374 of the Code of Criminal Procedure, 1973, (for short “the Cr.P.C.”) against the judgment and order of conviction dated 13.12.2000 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Gandhinagar in Sessions Case No. 31 of 2000 whereby, the learned Judge has convicted the appellant and sentenced to undergo rigorous imprisonment for a period of 3 years for the offence punishable under Section 376 of the Indian Penal Code and awarded fine of Rs.1,000/- and in default of payment of fine, two months simple imprisonment and to undergo rigorous imprisonment for a period of 2 years for the offence punishable under Section 366 of the Indian Penal Code and awarded fine of Rs.500/- and in default of payment of fine, one month simple imprisonment and to undergo rigorous imprisonment for a period of 3 years for the offence punishable under Section 497 of the Indian Penal Code and awarded fine of Rs.1,000/- and in default of payment of fine, two months simple imprisonment and to undergo rigorous imprisonment for a period of 1 year for the offence punishable under Section 498 of the Indian Penal Code and awarded fine of Rs.500/- and in default of payment of fine, one month simple imprisonment. 2. The brief facts giving rise to the present Appeal are that the informant Gopalbhai Jivatram Vyas is the husband of Meenaben. They both married 9 years before the incident. They had two children. On 4.6.1998 at 5.00 a.m. the wife of the informant woke up to fetch water, at that time the informant and his children were sleeping. When at 7.00 a.m. the informant woke up and found that his wife Meena is not in the house, he inquired about her in neighbourhood and at that time his Niece informed him that she has seen Meena going out on the road. 2.1 The informant inquired about his wife and he came to know that his wife is abducted by accused-present appellant and so, he informed Pethapur Police Station. As per the informant, his wife had illicit relation with the accused, but thereafter, his wife refused to continue the illicit relation with the accused and so, the accused threatened her to make such relation and also threatened to kill her children. As per the informant, his wife had illicit relation with the accused, but thereafter, his wife refused to continue the illicit relation with the accused and so, the accused threatened her to make such relation and also threatened to kill her children. When the informant came to know that the accused had abducted his wife, on 9/6/1998 he lodged F.I.R. with Pethapur Police Station. The Pethapur Police registered the offence under Sections 365, 366, 506(2) of Indian Penal Code against the accused and started investigation. The offences were registered vide C.R. No. I -83 of 1998 with Pethapur Police Station. 2.2 During the course of investigation, the accused came to be arrested on 10/6/1998. After completion of investigation, the Pethapur Police submitted charge sheet against the accused for the offences under Sections 365, 366, 376 and 506(2) of Indian Penal Code in the Court of learned Judicial Magistrate First Class, Gandhinagar, and as the offence punishable under Section 376 of Indian Penal Code is exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of learned Additional Sessions Judge, Ahmedabad (Rural) at Gandhinagar which was registered as Sessions Case No. 31 of 2000. 2.3 The learned Additional Sessions Judge, Ahmedabad (Rural) at Gandhinagar on 17/8/2000 vide Ex.3 framed the charge for the offences under Sections 365, 366 and 376 of Indian Penal Code against the accused and the accused pleaded not guilty and claimed to be tried. On completion of trial, the learned Additional Sessions Judge, Ahmedabad (Rural) at Gandhinagar vide judgment and order dated 13.12.2000 rendered in Sessions Case No. 31/2000 convicted and sentenced the accused. 2.4 Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence dated 13.12.2000 passed by the Addl. Sessions Judge, Ahmedabad (Rural) at Gandhinagar in Sessions Case No. 31/2000, the appellant has filed present appeal. 3. In order to bring home charge, the prosecution has examined several witnesses and also produced documentary evidence before the Trial Court, which are as under: Oral evidences: 1. Gopalbhai Joitaram Vyas PW-1 Exh.9 2. Kantilal Dharamdas Patel PW-2 Exh.11 3. Meenaben Gopalbhai Vyas PW-3 Exh.13 4. Dr. Pradeepkumar Devbalsingh PW-4 Exh.15 5. Ghanshyam Ramaji Rajput PW-5 Exh.20 6. Satishkumar Gandabhai Tank PW-6 Exh.21 7. Laxmanbhai Muljibhai Chauhan PW-7 Exh.22 8. Moindanbhai Arjanbhai Desai PW-8 Exh.23 9. Gopalbhai Joitaram Vyas PW-1 Exh.9 2. Kantilal Dharamdas Patel PW-2 Exh.11 3. Meenaben Gopalbhai Vyas PW-3 Exh.13 4. Dr. Pradeepkumar Devbalsingh PW-4 Exh.15 5. Ghanshyam Ramaji Rajput PW-5 Exh.20 6. Satishkumar Gandabhai Tank PW-6 Exh.21 7. Laxmanbhai Muljibhai Chauhan PW-7 Exh.22 8. Moindanbhai Arjanbhai Desai PW-8 Exh.23 9. Jagsishbhai Swamidas Gajariya PW-9 Exh.24 Documentary evidences: S. No. Documentary Evidence Exhibit No. 1. Complaint given by Gopalbhai Vyas 10 2. Panchnama seizing the cloths wore by Meenaben at the time of offence 12 3. Medical Certificate of the victim Meenaben 17 4. Medical Certificate of the accused Bhadreshkumar 19 5. Dispatch note sending the Muddamal to the F.S.L. 25 6. Receipt of muddamal received by F.S.L. 26 7. Letter written from F.S.L. to P.I. Pethapur 8. F.S.L. report 28 9. Serological report 29 10. Panchnama of place of offence 30 11. Panchnama seizing the clothes wore by accused at the time of offence 31 4. Heard Mr. Sunil M. Agrawal, learned Counsel for the appellant-accused and Ms. Maithili Mehta, learned Additional Public Prosecutor for the respondent-State of Gujarat. 5. Mr. Agrawal, learned Counsel appearing for the appellant contended that though the charge was framed by the Trial Court only under Section 363, 366 and 376 of the Indian Penal Code however, the Trial Court has not afforded the opportunity to defend the case under Section 497 and 498 of the Indian Penal Code and has recorded the conviction and sentence against the present appellant for the offence punishable under Sections 497 and 498 of the Indian Penal Code. Mr. Agrawal, learned Counsel for the appellant has submitted that the FIR is registered five days after the incident took place and there is material contradiction which goes to the rout of present case. Mr. Agrawal, learned Counsel for the appellant has further submitted that the prosecution has not collected sufficient material which is available on record and even the prosecution has not examined the material witnesses. He further submitted that even their statements have not been recorded by the Investigating Officer during the course of investigation and therefore, the prosecution has not proved the case against the present appellant beyond reasonable doubt. Mr. He further submitted that even their statements have not been recorded by the Investigating Officer during the course of investigation and therefore, the prosecution has not proved the case against the present appellant beyond reasonable doubt. Mr. Agrawal, learned Counsel for the appellant further submitted that the victim is aged 27 years having two children from the marriage and since she is having relation with the present appellant therefore, it is a case of consent and therefore, the impugned judgment and order is bad in law. Mr. Agrawal, learned Counsel for the appellant submitted that the complainant being husband of the victim has not given the name of the present appellant in the FIR that the appellant had forcefully abducted the victim-wife of the complainant and therefore, the prosecution has failed to establish the case against present appellant beyond reasonable doubt.. 5.1 Learned Counsel for the appellant further submitted in view of the above facts impugned judgment and order of conviction and sentence may be quashed and set aside and the appellant may be acquitted from the charges levelled against him. 5.2. In support of his submission, Mr. Agrawal, learned Counsel for the appellant has referred to and relied upon the decision of the Hon’ble Apex Court in case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 . 6. On the other hand, Ms. Maithili Mehta, learned APP for the respondent-State of Gujarat has opposed the present appeal and submitted that so far as the provision of Section 465 of Cr.P.C. is concerned, though the Court has not framed charge against the accused but during the course of recording the evidence, if the Court comes to the conclusion that there are certain materials available on record against the accused for that the accused was not charged, the Court can record the conviction. 6.1 Ms. Maithili, learned APP has relied upon Section 465 of Cr.P.C. which reads as under: “465. 6.1 Ms. Maithili, learned APP has relied upon Section 465 of Cr.P.C. which reads as under: “465. Finding or sentence when reversible by reason of error, omission irregularity: (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” 6.2. Relying upon Section 465 of Cr.P.C. she submitted that the learned Trial Judge has rightly passed the impugned judgment and order for the offence which is not charged against the accused. She further submitted that since the Trial Court has found sufficient material for the additional charge under Sections 497 and 498 of the Code and therefore, the Trial Court cannot be faulted with the findings recorded by the Trial Court and hence, Appeal deserves to be dismissed. She has further contended that there is sufficient proof and evidence come on record and the prosecution has able to prove the charge by leading oral and documentary evidence against present appellant beyond reasonable doubt. She has submitted that the prosecution has led sufficient material against the accused person by leading cogent and material evidence on record, which is supported by the independent witnesses and the Trial Court has rightly recorded the conviction and sentence against present appellant and thus, present appeal deserves to be dismissed and the impugned judgment and order passed by the Trial Court may be confirmed. 7. I have gone through the depositions recorded by the Trial Court and examined the same in detail. I have also perused the original record and proceedings of the Trial Court. 7. I have gone through the depositions recorded by the Trial Court and examined the same in detail. I have also perused the original record and proceedings of the Trial Court. The issue involved in present appeal is as to whether the Trial Court has committed any error while passing the impugned judgment and order of conviction and sentence and whether there is any perversity or any illegality in the findings recorded by the Trial Court, based upon the appreciation of evidence. 8. In my opinion, while considering the depositions of the prosecution witnesses, it is established that the victim was having relation with the present appellant, prior to the date of registration of FIR. In her cross examination, she has admitted that she has accompanied the accused willingly and therefore, she has not raised any shout for any help and also not raised any voice against present appellant. Though, she denied all the suggestions in cross examination, however considering paragraph Nos. 3 and 4, she has an opportunity to clutch out from the present appellant because it is the case of the prosecution that from Randheja they went to Ahmedabad and from Ahmedabad they went to Rajkot and then they visited different places. At any point of time, she has not objected or she has not raised any shout for any help. Even as per the deposition of the victim herself she is having relation with present appellant, two years prior to the date of registration of the FIR. Even as per the say of the victim, once she reached home, her husband took the victim to the concerned police station but the investigating officer has deposed completely contrary to the said fact. The investigating officer has stated on oath that he himself visited the house of the victim in the early hours of the day and there he has recorded the statement of the victim. It is consistent stand of the complainant and the victim that they have visited the concerned police station on 10.6.1998 but the investigating officer has stated complete different story from the deposition of the victim and her husband. Even the investigation is not upto the mark, as the statement of the material witnesses are not recorded to prove the charge against the accused person for the alleged offence. Even the investigation is not upto the mark, as the statement of the material witnesses are not recorded to prove the charge against the accused person for the alleged offence. Therefore, it creates a serious doubt and the impugned judgment and order of conviction and sentence recorded by the Trial Court, relying upon such evidence is absolutely illegal and erroneous. The findings recorded by the learned Trial Judge is against the settled principles of law and against the facts of present case. Hence, in view of the above, present appeal requires to be allowed. 9. It is also relevant to note herein that the material and serious contradiction is proved on record from the depositions of the complainant, victim and the investigating officer, however, the Trial Court has not considered the said fact in its true and proper spirit, while passing the impugned judgment and order of conviction and sentence. 10. It is well settled principle that under Section 3 of the Indian Evidence Act, while appreciating the evidence, if the Court comes to the conclusion that there is serious omission and/or contradiction in the evidence of the witnesses then the benefit ought to have been granted in favour of the accused person. 11. On perusal of the cross examination of the PW-1 it clearly established that the PW-1 has admitted the fact that he has not seen his wife with the accused at the relevant point of time and he has also admitted the fact that he don’t know with whom his wife has gone. It also emerges from the record that in her cross examination, the PW-3-victim has admitted the fact that she is having relation with present appellant, two years prior to the date of registration of the FIR and she has accompanied the accused willingly. It appears that the PW-7 has turned hostile and PW-8 who is investigating officer has stated complete different story from the deposition of the victim and her husband. 12. It appears that the PW-7 has turned hostile and PW-8 who is investigating officer has stated complete different story from the deposition of the victim and her husband. 12. A bare perusal of the depositions of the aforesaid witnesses and appreciation of the evidence recorded by the Trial Court and the demeanor of the witnesses recorded by the learned Trial Judge, the Trial Judge ought to have passed the order of acquittal by granting the benefit in favour of the present appellant, but Trial Judge has not considered all these material aspects while appreciating the evidence in its true and proper spirit and passed the impugned judgment and order of conviction and sentence. 13. In view of the above, I am of the opinion that the prosecution has measurably failed to establish the case against present appellant for the offence as charged against the present appellant. Therefore, present appeal deserves be allowed. 14. At this stage it is appropriate to take into account the observations made by the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda (Supra). In the said decision the Hon’ble Apex Court has observed as under: “121. This positive finding of the Doctor therefore knocks the bottom out of the case made out by the prosecution tion that the appellant had told PWs. 2 and 4 about having sexual intercourse with his wife. Unfortunately, however, the High Court instead of giving the benefit of this important circumstance to the accused has given the benefit to the prosecution which is yet another error in the approach made by the Eight Court while assessing the prosecution evidence. Having regard to the very short margin of time between the arrival of the appellant in his bed-room and the death of Manju, it seems to be well-nigh impossible to believe that he would try to have sexual intercourse with her. This circumstance, therefore, falsifies the evidence of PWs. 2 and 4 on this point and shows the extent to which the witnesses could go to implicate the appellant. 142. Circumstance No. 17 is wholly irrelevant because the prosecution cannot derive any strength from a false plea unless it has proved its case with absolute certainty. This circumstance, therefore, falsifies the evidence of PWs. 2 and 4 on this point and shows the extent to which the witnesses could go to implicate the appellant. 142. Circumstance No. 17 is wholly irrelevant because the prosecution cannot derive any strength from a false plea unless it has proved its case with absolute certainty. Circumstance No. 17 also is not relevant because there is no question of taking a false plea of absence from the bedroom at the relevant time as there is no clear evidence on this point. 162. Moreover, in M.G. Agarwal's case (supra) this Court while reiterating the principles enunciated in Hanumant's case observed thus: “If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt.” In Shankarlal's (supra) this Court reiterated the same view thus: “Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment.” 163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram vs. State of Himachal Pradesh, this Court made the following observations: “Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.” 169. We are, therefore, clearly of the opinion that the facts of the present appeal are covered by the ratio of the aforesaid decisions. At any rate, taking the worst view of the matter on the evidence in this case two possibilities are clearly open: (1) that it may be a case of suicide. We are, therefore, clearly of the opinion that the facts of the present appeal are covered by the ratio of the aforesaid decisions. At any rate, taking the worst view of the matter on the evidence in this case two possibilities are clearly open: (1) that it may be a case of suicide. (2) that it may be a case of murder and both are equally probable, hence the prosecution case stands disproved. 176. This now brings us to the fag end of our judgment. After a detailed discussion of the evidence, the circumstances of the case and interpretation of the decisions of this Court the legal and factual position may be summarised thus: (1) That the five golden principles enunciated by this Court in Hanumant's decision (supra) have not been satisfied in the instant case. As a logical corollary, it follows that it cannot be held that the act of the accused cannot be explained on any other hypothesis except the guilt of the appellant nor can it be said that in all human probability, the accused had committed the murder of Manju. In other words, the prosecution has not fulfilled the essential requirements of a criminal case which rests purely on circumstantial evidence. (2) That, at any rate, the evidence clearly shows that two views are possible-one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal. (3) The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e. possession of poison with the accused (either by direct of circumstantial evidence) and on this ground alone the prosecution must fail. (4) That in appreciating the evidence, the High Court has clearly misdirected itself on many points, as pointed out by us, and has thus committed a gross error of law. (5) That the High Court has relied upon decisions of this Court which are either inapplicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable. (5) That the High Court has relied upon decisions of this Court which are either inapplicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable. (6) That the High Court has taken a completely wrong view of law in holding that even though the prosecution may suffer from serious infirmities it could be reinforced by additional link in the nature of false defence in order to supply the lacuna and has thus committed a fundamental error of law. (7) That the High Court has not only misappreciated the evidence but has completely overlooked the well established principles of law and in view of our finding it is absolutely clear that the High Court has merely tried to accept the prosecution case based on tenterhooks and slender tits and bits. (8) We entirely agree with the High Court that it is wholly unsafe to rely on that part of the evidence of Dr. Banerjee (PW-33) which shows that poison was forcibly administered by the process of mechanical suffocation. (9) We also agree with the High Court that there is no manifest defect in the investigation made by the police which appears to be honest and careful. A proof positive of this fact is that even though Rameshwar Birdichand and other members of his family who had practically no role to play had been arrayed as accused but they had to be acquitted by the High Court for lack of legal evidence. (10) That in view of our finding that two views are clearly possible in the present case, the question of defence being false dose not arise and the argument of the High Court that the defence is false does not survive. 177. This was a fit case in which the High Court should have given at least the benefit of doubt to the appellant. 178. Normally, this Court does not interfere with the concurrent findings of fact of the courts below, in the absence of very special circumstances or gross errors of law committed by the High Court. 177. This was a fit case in which the High Court should have given at least the benefit of doubt to the appellant. 178. Normally, this Court does not interfere with the concurrent findings of fact of the courts below, in the absence of very special circumstances or gross errors of law committed by the High Court. But where the High Court ignores or over-locks the crying circumstances and proved facts, violates and misapplies the well established principles of criminal jurisprudence or decisions rendered by this Court on appreciation of circumstantial evidence and refuses to give benefit of doubt to the accused despite facts apparent on the face of the record or on its own findings or tries to gloss over them without giving any reasonable explanation or commits errors of law apparent on the face of the record which results in serious and substantial miscarriage of justice to the accused, it is the duty of this Court to step in and correct the legally erroneous decision of the High Court. 179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima-facie shock the conscience of any Court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. 180. It must be recalled that the well established rule of criminal justice is that 'fouler the crime higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made.” 15. In view of the above decision of the Hon’ble Apex Court and considering the facts and circumstance of the case, in my opinion, the prosecution has failed to establish the case against present appellant and therefore, the impugned judgment and order of acquittal passed by the Trial Court is required to be quashed and set aside. 16. The present appeal is hereby allowed. The impugned judgment and order of conviction dated 13.12.2000 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Gandhinagar in Sessions Case No. 31 of 2000 is hereby quashed and set aside and the fine, if any, be refunded to the appellant forthwith. 16. The present appeal is hereby allowed. The impugned judgment and order of conviction dated 13.12.2000 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Gandhinagar in Sessions Case No. 31 of 2000 is hereby quashed and set aside and the fine, if any, be refunded to the appellant forthwith. As the appellant is on bail, he need not surrender to the jail authority. The bail and bail bond shall stand cancelled. Surety, if any, shall stand discharged. Record and Proceedings be sent back to the concerned Trial Court forthwith. 17. Direct service is permitted.