JUDGMENT ON BOARD : Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 26.10.2017 passed by learned Sessions Judge, Kabirdham, in Sessions Trial No.41/2016, by which, the appellant herein has been convicted for offence under Sections 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.500/-, in default of payment of fine amount, 6 months additional rigorous imprisonment. 2. Case of the prosecution, in short, is that in the intervening night of 18.08.2016 to 19.08.2016, at village Kodwa Godan, Police Station Kukdur, the appellant herein assaulted his wife Tijan Bai (now deceased) by bamboo stick on her head, by which, she suffered grievous injuries and died; thereby the offence has been committed. Further case of the prosecution is that Shyam Lal Patel (PW-1) on 19.08.2016 reported the matter to the Police Station Kukdur, pursuant to which, merg intimation was recorded vide Ex.P-1, FIR was registered vide Ex.P-25, inquest was conducted vide Ex.P-3 and dead body of deceased Tijan Bai was subjected to post-mortem, which was conducted by Dr. B.L.Raj (PW-6), who proved the post-mortem report vide Ex.P-14, according to which, cause of death was stated to be coma caused by injuries to skull bone and bleeding inside the brain and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-9, bamboo stick was seized vide Ex.P-10, which was sent for chemical examination to FSL along-with the other seized articles and as per the FSL report (Ex.P-29), blood was not found on the seized bamboo stick. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 30 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the documents Ex.D-1 to D-3. 4. 3. In order to bring home the offence, prosecution examined as many as 12 witnesses and exhibited 30 documents and the appellant-accused in support of his defence has not examined any witness but has exhibited the documents Ex.D-1 to D-3. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him to undergo life imprisonment, against which the present appeal has been preferred. 5. Mr. Govind Dewangan, learned counsel for the appellant would submit that the statement of the appellant vide Ex.P-20 proved by Rituraj Singh Visen (PW-8) would cease to be dying declaration as he is alive and, as such, this could not have been taken by the trial Court as one of the incriminating circumstance in light of the decision of the Supreme Court in the matter of Gajula Surya Prakasarao v. State of Andra Pradesh, (2010) 1 SCC 88 . Further the prosecution has failed to bring home the offence beyond reasonable doubt and there is no direct evidence against the appellant herein. He further submits that as per FSL report, no blood was found on the seized bamboo stick, therefore, in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh, (2019) 7 SCC 781 even if the recovery is proved beyond reasonable doubt and human blood was not found, recovery is of no use to the prosecution and, as such, the appellant is entitled for acquittal on the basis of benefit of doubt. 6. Mr. H.A.P.S.Bhatia, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. and, as such, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein- above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Tijan Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-14), proved by Dr. We have heard learned counsel for the parties, considered their rival submissions made herein- above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Tijan Bai was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-14), proved by Dr. B.L.Raj (PW-6), according to which, cause of death was stated to be coma caused by injuries to skull bone and bleeding inside the brain and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The case of the prosecution is not based on direct evidence, it is based on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 which must be fulfilled for convicting an accused on the basis of circumstantial evidence in paragraph 153 as under: - “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: Certainly, 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. (2) 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, (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.” 10. That, trial Court has relied upon the dying declaration of the appellant recorded on 20.08.2016 at 12:50 p.m. by the Tahsildar, Pandariya (PW-8) that in an anger he has assaulted his wife by bamboo stick, by which, she suffered grievous injuries and died. However, since the appellant herein, who is the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation. The Supreme Court in the matter of Gajula Surya Prakasarao (supra) relied upon Ramprasad v. State of Maharashtra, (1999) 5 SCC 30 in para 15 & 16 held as under : 15. It is well settled and needs no restatement at our hands that when a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. In the instant case, the maker of the statement Exhibit P-21, is not only alive but is examined as PW-3. Her statement, therefore, is not admissible under Section 32; but her statement, however, is admissible under Section 157 of the Evidence Act as former statement made by her in order to corroborate her testimony in court. In the instant case Exhibit P-21 does not corroborate the testimony of PW-3 in Court. It is obvious that PW-3 later on improved the story and roped in the appellant. 16. In Ramprasad Vs. State of Maharashtra this Court held: “14…...As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation. 15. Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. 16. In Ramprasad Vs. State of Maharashtra this Court held: “14…...As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation. 15. Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before "any authority legally competent to investigate the fact’ but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof." 11. The principle of law laid down in Gajula Surya Prakasarao (supra), has been followed with approval in the matter of Suresh Chandra Jana v. State of West Bengal, (2017) 16 SCC 466 and further followed by Supreme Court in the matter of Harendra Rai v. State of Bihar & Others, 2023 SCC OnLine SC 1023. In the matter of Suresh Chandra Jana (supra), their Lordships held as under : “32……………….Moreover, if the person making the dying declaration survives, then such statement would not be admissible under Section 32 of the Indian Evidence Act, rather such Statements may be admissible under Section 157 of the Indian Evidence Act [refer Gajula Surya Prakasrao v. State of Andhra Pradesh, (2010) 1 SCC 88 ].” 12. As such, the statement of the appellant vide Ex.P-20 was recorded in expectation of death, but since he survived, therefore, such statement is not a dying declaration and is inadmissible under Section 32 of the Evidence Act, as held by Their Lordships of the Supreme Court in the matters of Gajula Surya Prakasarao (supra), Ramprasad (supra), Suresh Chandra Jana (supra) & Harendra Rai (supra) except for the purpose of Section 157 of the Evidence Act and, as such, it is of no use to the prosecution. 13. The next circumstance pointed out by the prosecution is that pursuant to memorandum statement of the appellant, bamboo stick has been seized, but as per the FSL report (Ex.P-29) no blood or human blood has been found on the seized bamboo stick and therefore in light of the decision of the Supreme Court in Balwan Singh (supra), recovery is of no use to the prosecution. 14. In that view of the matter, the prosecution has failed to bring home the offence beyond reasonable doubt and the five golden principles as held in Sharad Birdhichand Sarda (supra), which constitute the panchsheel of the proof of a case based on circumstantial evidence is not established and therefore, we are unable to maintain the conviction of the appellant for offence under Section 302 of I.P.C. 15. In view of the above, the impugned judgment of conviction and order of sentence dated 26.10.2017 is set aside. The appellant stands acquitted giving him benefit of doubt of the charge framed against him for the offence under Section 302 of Indian Penal Code. Accordingly, the appellant is directed to be released forthwith from jail, unless he is required in any other offence. 16. In the result, the appeal is allowed. 17. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.