JUDGMENT : Arvind Singh Sangwan, J. 1. Heard learned counsel for the appellants, learned AGA for the State, learned counsel for the informant and perused the record. 2. The present appeal has been filed against the judgment of conviction dated 2.11.2019 and order of sentence dated 4.11.2019 passed by Additional District & Sessions Judge, Saharanpur in S.T. No. 530 of 2012 (State Vs. Shobha and others) arising out of Case Crime No. 616 of 2011 under Section 302 IPC, Police Station – Sadar Bazar, Saharanpur by which both the appellants namely Shobha Behel and Ashish Arora (Appellants no. 1 and 2 respectively) were awarded life imprisonment along with 25000/- fine (each) and in case of default in payment of fine, they have to undergo further simple imprisonment of one year. It was directed that half of the fine will paid to the father of the deceased. 3. Paper book is complete and trial court record has been received. With the assistance of learned counsel for the appellants, learned A.G.A. for the State and learned counsel for the informant, the entire evidence is re-appreciated. 4. As per prosecution version, on 12.10.2011, the informant Surendra Mohan Behel (PW-1) gave information to the police that on 10.10.2011 at about 7:00 pm he along with his wife Aruna Behel had gone to the house of their daughter Neha Mehta at Gurugram and his son Vivek Behel stayed back at home to take care of the house. He was alone as his wife Shobha Behel had gone to her parental house at Yamuna Nagar, Haryana. His son Vivek Behel was suffering from depression. On 12.10.2011, when he returned back from his daughter’s house and entered his house after opening the lock, he found that his son Vivek Behel is lying in dead condition. 5. On receiving this information, the police reached at the spot and by preparing panchayatnama, dead body of Vivek Behel was sent for postmortem. On 22.10.2011, the informant gave another complaint stating that on 10.10.2011, he alongwith his wife Aruna Behel had gone to their daughter’s house at Gurugram and his son Vivek Behel was alone at home. His daughter-in-law Shobha Behel has left matrimonial home in the year 2009 and started living in her parental home at Yamuna Nagar alongwith his grandson. His daughter-in-law Shobha Bahel was putting pressure on him to transfer the property in her name. His daughter-in-law Shobha Behel has left matrimonial home in the year 2009 and started living in her parental home at Yamuna Nagar alongwith his grandson. His daughter-in-law Shobha Bahel was putting pressure on him to transfer the property in her name. It is further stated that Shobha Behel alongwith his brother Ashish Arora, S/o Amrish Arora. R/o D-27, Barrack No. 10, R. Camp, Yamuna Nagar, Haryana finding his son is alone at home, came there as one key of the house remains with Shobha Behel and both of them by way of strangulation have committed murder of his son Vivek Behel. On 12.10.2011, at about 7:00 pm, when he returned back from his daughter's house and entered his house, after opening the lock, he found that his son was lying dead. He informed the police about the incident and the police by doing Panchayatnama got the postmortem done. It is stated that he was under shock due to the death of his young son and, therefore, on 22.10.2011, he had come for registration of FIR against Shobha Behel and her brother Ashish Arora (both the appellants). Thereafter, the police arrested the appellants and submitted report under Section 173(2) of Cr.P.C. 6. The case was committed to the Court of Session and charges under Section 302 read with 34 IPC were framed against both the appellants, which they denied and claimed trial. In prosecution evidence, the informant appeared as PW-1. He reiterated the version given in the FIR and has stated that the appellant Shobha Behel is a clever and greedy lady having suspicious character. She has already taken the dowry articles to her parental home on 25.1.2007, as per writings which was signed by PW-1 and Shobha Behel (PW-9) and was submitted before the concerned Court. It is stated that thereafter Shobha Behel had filed a complaint for demand of dowry against him, his wife Aruna Behel and son Vivek Behel as well a case of domestic violence and a petition for maintenance against Vivek Behel. His son Vivek Behel, in his reply to complaint under Section 125 Cr.P.C has stated that her wife Shobha Behel is in contact with anti social elements and is under their influence. PW-1 further stated that on 21.5.2007, a compromise was effected between them. His son Vivek Behel, in his reply to complaint under Section 125 Cr.P.C has stated that her wife Shobha Behel is in contact with anti social elements and is under their influence. PW-1 further stated that on 21.5.2007, a compromise was effected between them. According to the compromise, it was agreed that half portion of the house will be given to Shobha Behel and Vivek Behel agreed to give Rs. 30,000/- to her wife Shobha Behel. Following the said compromise, PW-1 got a decree of half of the portion of the property passed in favour of Shobha Behel and a sum of Rs. 30,000/- was also paid to her on 27.7.2007 by Vivek Behel. But she did not withdraw the complaint against them. It is also stated that later on, Shobha Behel registered a complaint case under Sections 420, 367, 368 in district Saharanpur and also lodge a case of attempt to murder her against Vivek Behel. This witness further stated that in 2009, Shobha Behel had gone to her parental house at Yamuna Nagar along with his grandson, however, she remains in contact with her husband Vivek Behel. 7. It is stated that later on, PW-1 had filed an application for cancelling the decree by which half of the share of the property was transferred in favour of Shobha Behel and due to this reason she was very much upset and became inimical, and she committed murder of her husband Vivek Behel. 8. This witness further stated that both the appellants are sister and brother and having no other siblings. It is stated that marriage of son of the informant (PW-1) was performed with Shobha Behel on 28.11.2005. Ashish Arora, brother of Shobha Behal, also managed all the deals of his sister-Shobha. The witness also stated that from January, 6, 2006 onwards his deceased son Vivek Behel remain admitted in a Drug-de-Addiction Centre, Rohtak. He further stated that Vivek Behel was admitted by his wife Shobha Behel (the appellant). He has also stated that (PW-1) and his wife (PW9) had given affidavits on 17.09.2007 that in future if their son Vivek Behel commits anything wrong under the influence of liquor they will be responsible for the same. The witness further stated that Shobha Behel has registered a complaint against Vivek Behel by alleging that using a cheque of Rs. 9000/-, he had withdrawn the amount from her account. The witness further stated that Shobha Behel has registered a complaint against Vivek Behel by alleging that using a cheque of Rs. 9000/-, he had withdrawn the amount from her account. In cross examination this witness has admitted that he has stated this fact to the concerned Station House Officer that out of greed of the property, Shobha Behel was mentally harassing them, however, this fact was not recorded in the complaint. This witness has further given the details of complaint filed by Shobha Behel under Section 498-A and 406 IPC. He also stated that on 09.07.2008 his grandson was born and on 29.11.2008, a petition under Section 125 Cr.P.C. was filed, which was withdrawn by Shobha Behel, as her husband Vivek Behel was paying maintenance of Rs. 2500/- per month to his wife Shobha Behel. This witness further admitted in cross-examination that a written compromise was effected between him, deceased Vivek Behel and Shobha Behel on 10.8.2007 (Ex-Ka-3) and by way of Court decree, half share of the property was given to Shobha Behel, 1/4th share was given to Vivek Behel and 1/4th share was retained by him. It is further stated that in a complaint given to Police (EX-Ka-1), he has stated that his son Vivek Behel was under depression. This witness admitted that on 20.9.2010, Shobha gave birth to a son. However, he left him alone and went alongwith his wife to Gurugram to meet his daughter. 9. This witness further stated that on 7.10.2011, the cremation of father of Shobha Behel took place and none of his family members attended the same. He further stated that last rite was performed by Ashish Arora, brother of Shobha Behel on 16.10.2011. He also admitted that on 17.10.2011, Shobha Behel has given a complaint to the Senior Superintendent of Police, Saharanpur through speed post alleging that PW-1 has not given information of the death of Vivek Behel to her and requested that a fair investigation be done with regard to the death of her husband Vivek Behel. 10. This witness denied the suggestion that as a counter blast to complaint filed by the Shobha, present FIR has been registered. 11. 10. This witness denied the suggestion that as a counter blast to complaint filed by the Shobha, present FIR has been registered. 11. In re-examination of PW-1, he proved Ex-K-22, a complaint given by PW-1 on 12.10.2011 to police wherein he had stated that his son Vivek Behel was under depression and vide this complaint, he informed the police that his son was found dead in the house. 12. Bijendra Kumar (PW-2) is witness of last seen. However, he did not support the prosecution version. He deposed that neither he had seen Shobha Behel nor his brother Ashish Arora coming out of the house of Vivek Behel on 10.10.2011 at 9:00-9:30 pm. This witness was declared hostile and was cross examined by the Public Prosecutor and some questions were put by the Trial Court as well. 13. Surajbhan (PW-3) is also witness of the last seen. He stated that on 10.10.2011 at about 9:30 am, he was in a barber shop and was getting his shave done. In the meantime, he saw that daughter-in-law of Surendra Mohan Behel and her brother were coming out of a ‘gali’ leading to the house of Surendra Mohan Behel. After some days he came to know that someone has committed murder of son of Surendra Mohan Behel. Thereafter, he informed people of the vicinity that he had seen the daughter-in-law of Surendra Mohan Behal and his brother coming out of his house on 10.10.2011. When Surendra Mohan Behel came to know this fact, he took him to Police Station, Sadar Bazar where the police recorded his statement. 14. In cross examination this witness stated that he is a retired person aged 70 years and the barber shop where he was getting his shave done is situated at about half kilometer from the ‘gali’ leading towards the house of Surendra Mohan Behel. He had seen a lady with her brother from a distance of about 5-6 yards though it was dark. This witness stated that one of his eye is damaged and he cannot see however, he can see only from one eye. He further stated that he has not given any statement before the Station House Officer that on 10.10.2011 at about 9:00-9:30 pm, he was coming back to his house from his shop. He pleaded ignorance about last rites of Vivek Behel. He further stated that he has not given any statement before the Station House Officer that on 10.10.2011 at about 9:00-9:30 pm, he was coming back to his house from his shop. He pleaded ignorance about last rites of Vivek Behel. He denied that he has never seen the accused persons coming out of the house of PW-1 or that he is giving false statement. 15. Ved Prakash (PW-4) has stated that he is known to Surendra Mohan Behel and is aware that his son Vivek Behel died on 10.10.2011 and police had come and Panchayatnama was done before him and only his signature was taken on Panchayatnama. 16. Ram Kumar (PW-5) is another witness of Panchayatnama, who also stated in his cross examination that he does not know about the contents of Panchayatnama and he has never signed. 17. Jitendra Pal (PW-6) is also witness of the Panchayatnama and has stated in the same line as stated by PW-5. 18. Dr. P.K. Jain (PW-7) conducted postmortem of Vivek Behel and as per his deposition, the deceased was about 34-years of age and he died 2-1/2 days ago. His dead body was emitting foul smell. By doing internal examination, ‘tracheal rings’ was found fractured and skin of neck was thoroughly mould and both the lungs were congested. In his opinion, cause of death was ‘asphyxia’ due to strangulation. He prepared the postmortem report (Ex-Ka-16). He further submitted that nine documents were produced by the police, which he had signed. In cross-examination, he has stated that congestion is caused due to ‘asphyxia’. There was no outer injury on the body of the deceased and fracture of the hyoid bone was found. On opening the neck, ‘tracheal rings’ of the neck was also fractured and internal flesh was in horizontal mould. 19. Constable Sonraja (PW-8) stated that he recorded G.D. No. 43 on 10.10.2011 on receiving a written complaint from Surendra Mohan Behel and proved the carbon copy as Ex-K-17. 20. Smt. Aruna Behel (PW-9) mother of the deceased and wife of the informant has stated that marriage of her son Vivek Behel was performed on 28.11.2005 with Shobha Behel, D/o Amrish Arora, R/o Yamuna Nagar, Haryana After some time of their marriage, Shobha Behel, wife of her son Vivek Behel was demanding share in the property and was harassing us. Smt. Aruna Behel (PW-9) mother of the deceased and wife of the informant has stated that marriage of her son Vivek Behel was performed on 28.11.2005 with Shobha Behel, D/o Amrish Arora, R/o Yamuna Nagar, Haryana After some time of their marriage, Shobha Behel, wife of her son Vivek Behel was demanding share in the property and was harassing us. She has given one set of keys of the house to her daughter-in-law Shobha Behel, and she used to meet Vivek Behel when she and her husband were not at home. Even her neighbours knew about it. She stated that she alongwith her husband Surendra Mohan Behel had gone to Gurugram at the residence of her daughter to meet her, leaving Vivek Behel at home to care of the house. Shobha Behel used to come and meet Vivek Behel in their absence. When she alongwith her husband returned to home on 12.10.2011, she found that main gate was opened, however, the internal gate was locked and they found the dead body of their son Vivek Behel was lying there. This witness stated that at that time Bijendra and Ambrish, residents of their vicinity also came. Apart from them, Surajbhan (PW-3) and Ved Prakash (PW-4) also reached there and they informed that they had seen Shobha Behel and her brother Ashish Arora going out of house on 10.10.2011 at 9:00-9:30 pm. In her cross examination, she has denied suggestion that due to drug habits of Vivek Behel they have disowned him from their property and published a public notice in the news paper ‘Amar Ujala’ on 14.11.2006, she also denied that they had given an affidavit to the higher officers in this regard. She admitted that a compromise was effected between them but she pleaded ignorance about the death of father of Shobha Behel. She further stated that six months prior to death of Vivek Behel she along with her husband shifted back to their own house and thereafter Shobha Behel left the house and started living at her parental house at Yamuna Nagar. She further stated that the Investigating Officer has recorded her statement after 2-3 days and she informed that Vijendra Kumar (PW-2) and Ambrish had come on the spot along with Surajbhan (PW-3) and Ved Prakash (PW-4). However this part was not recorded by the Station House Officer in her statement. She further stated that the Investigating Officer has recorded her statement after 2-3 days and she informed that Vijendra Kumar (PW-2) and Ambrish had come on the spot along with Surajbhan (PW-3) and Ved Prakash (PW-4). However this part was not recorded by the Station House Officer in her statement. She pleaded ignorance about the death of father of Shobha Behel, which occurred few days before the death of Vivek Behel and also that his last rites were performed on 16.10.2011 21. Constable Lokendra (PW-10) stated that on 22.10.2011, he received a complaint from Surendra Mohan Behel ( PW-1) on the basis of which, the FIR under Section 302 of IPC was registered and report No. 54 was entered in the Rojnamcha. 22. Veerpal Singh (PW-11), retired Inspector, stated that he was S.H.O. at the relevant time at Police Station – Sadar Bazar, Saharanpur. He gave the details of the investigation including recording of evidence after the registration of FIR and proved the copy of the FIR, G.D. Entry, Panchayatnama & Postmortem Report. He also gave the details regarding recording of the statements of witnesses under Section 161 Cr.P.C. He also prepared the site plan which was exhibited as Ka-20. In cross examination, he stated that he had no knowledge that Vijendra Kumar (PW-2) and Surajbhan (PW-3) were the witnesses as they never met him. During initial investigation, their names were not brought to his notice. In cross examination, he stated that Aruna Behel (PW-9) never informed him that Vijendra Kumar, Ambrish, Ved Prakash and Surajbhan had come at the spot and they had seen the dead body of their son, Vivek Behel. 23. SHO Narendra Sharma (PW12) who also conducted part investigation recorded the statement of Shobha Behel and Ashish Arora (the appellants) and has submitted the charge-sheet which was exhibited as Ka-21. 24. Rashid Ali (PW-13), Inspector/S.H.O, the Investigating Officer, stated that on transfer of previous Investigating Officer, he had taken over the investigation and on issuance of Non-bailable warrant by Court, the accused persons surrendered before the Court. In cross examination, this witness stated that prior to 15.3.2012, during his investigation, this fact never came on record that Surajbhan and Vijendra Kumar are the witnesses of any facts of this case. In cross examination, this witness stated that prior to 15.3.2012, during his investigation, this fact never came on record that Surajbhan and Vijendra Kumar are the witnesses of any facts of this case. He further stated that informant of the case, Surendra Mohan Behel (PW-1) and Aruna Behel (PW-9), met him during investigation but they never told him that Surajbhan and Vijendra Kumar were the witnesses of this case. He even did not get this information from any other source. For the first time, on 15.3.2012, the informant came with these witnesses i.e. Surajbhan and Vijendra Kumar and, on that day, he recorded their statements. This witness further stated that Surajbhan told him that he had seen Shobha Behel on 10.10.2011 at night about 9.00 to 9.30 p.m. but he did not inform that at that time he was present in the shop of a hairdresser and was getting his shaving done. 25. Thereafter, the Trial Court recorded the statement of accused-persons under Section 313, Cr.P.C. and all the incriminating evidence was put to them. Both the accused persons denied the same and stated that as matrimonial dispute was pending and accused, Shobha Behel, got registered a case for demand of dowry etc., they were falsely implicated in the present case. However, no defence witness was produced but some documents were exhibited in defence. 26. The Trial Court vide its judgment dated 2.11.2019 held the appellants guilty of offence punishable under Section 302 read with Section 34 of IPC and vide order of sentence dated 4.11.2019, sentenced them to undergo imprisonment for life with fine of Rs. 25000/- each. The appellant has challenged the said judgment by making the following arguments : (a) It is submitted that it is an admitted case of the prosecution that appellant-Shobha Behel is the wife of the deceased-Vivek Behel and matrimonial litigation was going on between them. Prior to 2009, a compromise was effected between the parties and vide Civil Court’s decree, P.W.1 had transferred half share of the house in the name of appellant-Shobha Behel, 1/4th share was given to Vivek Behel and 1/4th share was retained by P.W.1. Prior to 2009, a compromise was effected between the parties and vide Civil Court’s decree, P.W.1 had transferred half share of the house in the name of appellant-Shobha Behel, 1/4th share was given to Vivek Behel and 1/4th share was retained by P.W.1. Learned counsel argued that both P.W.1 & P.W.9, the parents of the deceased, have admitted that, in their absence, appellant-Shobha used to come and stay with Vivek Behel at Saharanpur and it has also come in the statement of P.W.9 that when both P.W.1 & P.W.9 left their rental accommodation six months prior to incident and shifted back to the same house, appellant-Shobha Behel started living at her parental home at Yamuna Nagar but she used to come to meet Vivek Behel in their absence and therefore, Shobha Behel was having good relations with her husband Vivek Behel (deceased). (b) Learned counsel has further submitted that there was no motive on the part of the appellants to commit the murder of Vivek as despite all litigations, she was maintaining relationship with her husband, Vivek and, therefore, no adverse presumption can be drawn against her as per Section 106 of Indian Evidence Act, 1872 (hereinafter referred to as Act, 1872). Counsel for the appellant has relied upon the decision in Shivaji Chintappa Patil vs. State of Maharashtra, 2021 0 AIR (SC) (Cri) 813 to submit that in case of circumstantial evidence, there must be a chain of evidence so complete as to leave reasonable ground for conviction consistent with innocence of the accused and must show that in all human probability, the act must have been done by the accused. Counsel submit that in this case also, the accused was facing trial for committing murder of his wife and the Court observed that the mother of the deceased stated that both the accused and the deceased stayed together for some time prior to the incident which show that the relationship between them was cordial. In view of the same, the Supreme Court has held that it is settled that Section 106 of the Act, 1872 does not directly operate against either husband or wife staying under the same roof and being last person seen with the deceased as Section 106 of Act, 1872 does not absolve the prosecution of discharging of its primary burden to prove the guilt of the accused beyond reasonable doubt. Counsel has also drawn reference on para 32 of this judgment where the following observation is made : “32. It is more than settled principle of law that if two views are possible, the benefit shall always go to the accused. It will be apposite to refer to the following observations of this Court in the case of Sharad Birdhichand Sarda (supra):- “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 v. State of Himachal Pradesh (1973) 2 SCC 808 , this Court made the following observations : [SCC para 25, p. 820 : SCC (Cri) p. 1060] “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 wherein the guilt of the accused is sought to be established by circumstantial evidence.”” (c) Counsel has relied upon the decision in Dinesh Kumar vs. State of Haryana, 2023 0 AIR (SC) 2795, where the Supreme Court has held that the evidence of last seen only leads upto a point and no further. It fails to link it further to make a complete chain and it may lose under the circumstances of a particular case due to long duration of time between last seen and time of death. In concluding part, the Supreme Court has held as under : “In a case where there is no direct eye witness to the crime, the prosecution has to build its case on the circumstantial evidence. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. In our considered opinion, the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence.” (d) Learned counsel has submitted that the conviction of the appellant is primarily based on the statement of Surajbhan (PW-3) as a witness of last seen or a witness who has seen both the accused-appellants coming out of the house of informant. (e) Learned counsel submits that another witness, Vijendra Kumar (PW-2), has not supported the prosecution version so much so that in the cross examination conducted by public prosecutor as well as the Court itself, this witness has not stated that he had seen either Shobha or Ashish Arora coming out of the house of Vivek Behel in between 9.00 to 9.30 p.m. and did not own his statement under Section 161 of Cr.P.C. to be correct. (f) Counsel submits that the presence of Surajbhan (PW-3) who is also a witness of last seen, is highly doubtful. This witness has stated that on 10.10.2011 at about 9.00 to 9.30 p.m. he was getting his shaving done at a barber shop and had seen the accused-persons coming out of the house of informant and after some days, he came to know that the son of the informant has been murdered. He stated that when Surendra Mohan Behel (PW-1) came to know about him, PW-1 took him to the Police Station – Sadar Bazar where he got his statement recorded. Counsel submits that statement of this witness was recorded on 15.3.2012 i.e. after about five months of the incident and it is beyond presumption that a person who had seen the appellants coming out of the house of the deceased would keep quite for a period of about five months when in cross examination he stated that he came to know about the death of Vivek after few days as he was known to PW-1. Neither PW-1 nor PW-9 have stated in their deposition that there is a barber shop in the vicinity. Neither PW-1 nor PW-9 have stated in their deposition that there is a barber shop in the vicinity. In cross examination, PW-1 denied about any such barber shop. Even the Investigating Officer (PW-13) stated that PW-3 never disclosed this fact that he had seen Shobha Behel and Ashish Arora at barber’s shop. Moreover, even the barber was also not examined. Further, PW-3 stated that he never attended last rites of Vivek Behel though he came to know about his death and also stated that he was known to his father (PW-1). Counsel submits that this witness is introduced later on just to cover up the lacunae. (g) It is next argued that it has not come in the complaint given by informant forming basis of the FIR which was recorded after 12 days of the date of incident that any of the witnesses either PW-2 or PW-3 has seen the accused persons coming out of the house of the informant on the date of incident. Therefore, presence of PW-3 is doubtful. (h) Counsel further submits that even in the statement of Aruna Behel (PW-9) it has come that when they reached their house on 12.10.2011, they found that their son was lying dead and both PW-2 & PW-3 along with two other persons Ambrish and Ved Prakash came at the spot and told them that they have seen accused-appellants, Shobha and Ashish coming out of their house on 10.10.2011 at about 9.00 to 9.30 p.m. But this fact was not reported to police immediately. (i) Counsel submits that if this fact came to the notice of PW-1 & PW-9 on 12.10.2011 itself that four persons had seen the appellants coming out of their house, however, two persons, namely Ambrish and Ved Prakash, were not examined as witness and names of Vijendra and Surajbhan were never given in the complaint filed after ten days of the accident to the police would itself show that improvements have been made by the prosecution to create evidence. (j) Learned counsel has further argued that it has come in the statement of the Investigating Officer, Rashid Ali (PW-13), that during investigation he never got any information prior to 15.3.2012 i.e. the intervening period of five months after registration of the FIR on 22.10.2011 that either PW-2 or PW-3 was the witness of any fact of this case. (j) Learned counsel has further argued that it has come in the statement of the Investigating Officer, Rashid Ali (PW-13), that during investigation he never got any information prior to 15.3.2012 i.e. the intervening period of five months after registration of the FIR on 22.10.2011 that either PW-2 or PW-3 was the witness of any fact of this case. This witness stated that both PW-1 & PW-9 met him but they never informed him previously that they were the witnesses and only on 15.3.2012 when PW-1 brought them to police station, he recorded statements on 15.3.2012. Counsel submits that this fact also show that Surajbhan (PW-3) was introduced later on, after a period of five months. (k) Counsel submits that even otherwise the cross examination of PW-3 itself shows that he had never seen the appellant coming out of the house of the informant as this witness stated that the barber’s shop was about half kilometre away from the street leading to the house of informant and it was dark when he had seen the lady and his brother from a distance of 5 to 6 yards. Counsel submits that this witness is aged about 70 years and he has admitted that one of his eyes is damaged and he cannot see from that eye whereas, he has seen the incident from the other eye from which he can see properly. Learned counsel submits that all these show that this witness is introduced subsequently and his statement is not believable. (l) Counsel for the appellants submits that as per the postmortem report, the deceased died two and a half days before the date of postmortem. Counsel submits that the postmortem report of deceased reveals that the tracheal rings was fractured and muscles of the neck was ecchymosed horizontally and the cause of death was asphyxia due to strangulation. Counsel submits that the manner in which the death has occurred suggests that it can be a case of asphyxia by way of hanging and as admitted by both PW-1 and PW-9, the parent of the deceased, deceased was under continuous depression due to his drug addiction and therefore, the possibility of committing suicide cannot be ruled out, which has been later on planted as a case of murder upon the appellants. (m) Counsel submits that the Trial Court has wrongly relied upon the statements of PW-2 recorded under Section 161 of Cr.P.C. though he was declared hostile and never supported this statement even when cross-examined by Public Prosecutor or the Court. (n) Counsel submits that statement under Section 161 Cr.P.C. can only be relied upon for contradicting the statement of a witness and cannot be relied upon when the witness himself has disowned the same. Even in cross examination by public prosecutor and Court itself, this witness has disowned his statement and, therefore, the Trial Court has not appreciated this legal aspect of the case. (o) Learned counsel submits that this is a case where neither any recovery was effected from the appellant regarding manner in which the murder was committed nor there was any legal last seen witness against the appellants. Even the complaint was given after a period of ten days of the incident. (p) Counsel submits that it is a matter of fact that the father of the appellants died on 4.10.2011, his cremation was done on 7.10.2011 & last rites were performed on 16.10.2011. During that period both the appellants were at Yamuna Nagar. Counsel submits that it is only on 17.10.2011 as admitted by PW-1 that appellant-Sobha Behel had given complaint through speed post to Senior Superintendent of Police, Saharanpur for conducting fair investigation regarding the death of her husband as PW-1 did not inform her about death of her husband. (q) Learned counsel has next argued that no scientific evidence was collected by the Police as neither any CCTV footage of the locality was collected nor any FSL expert was called at the spot and even no call details of location of mobile phones of appellant at the spot or date and time of incident was collected to corroborate the allegation of PW-1 that the appellants have committed the murder of his son, Vivek. Counsel has then referred to the content of Ex-Ka-22 which was given at the first instance by PW1 on 12.10.2011 informing that his son, Vivek, was under depression and has died. Counsel submits that on that day, no suspicion was raised against the appellants and after 10 days, a concocted version was made that too, by producing two witnesses after five months as stated by PW13, the Investigating Officer. Counsel submits that on that day, no suspicion was raised against the appellants and after 10 days, a concocted version was made that too, by producing two witnesses after five months as stated by PW13, the Investigating Officer. (r) Counsel submits that it is admitted by both PW-1 & PW-9 that appellant-Sobha, by way of a Civil Court’s decree, was given half share of the house where the incident had taken place and she was the owner and in possession of that part of property. Whereas, 1/4th share was given to deceased-Vivek and 1/4th was retained by the informant. Counsel submits that after 2009, when majority of the litigation was over and after parting away in 2010, there was no complaint from the side of the appellant-Shobha who was visiting her husband off and on. (s) Counsel submits that the prosecution has failed to explain the delay of ten days in registration of the FIR as well as producing the last seen witnesses after five months of the registration of the FIR. (t) Learned counsel submits that it is a case of circumstantial evidence and chain of circumstance is not proved and even motive is not proved. Counsel has relied upon the decision in Krishan Kumar and Another vs. State of Haryana, 2023 4 Crimes (SC) 87, wherein the Supreme Court has held that if the Trial Court has appreciated the evidence in an utterly perverse manner, i.e. against the weight of the evidence, no conviction can be entered and the accused is entitled to be acquitted as each of the links in chain of circumstances are either individually or collectively not sufficient to connect the appellants with crime. (u) Learned counsel has relied on the decision of the Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , paragraph nos. 152 & 153 are reproduced as under : (152.) 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. 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 & Anr. 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. (153.) These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” (v) Counsel has also relied upon Jabir & Ors. vs. State of Uttarakhand, 2023 0 AIR (SC) (Cri) 270, relying upon Sharad Birdhichand Case (Supra), the Supreme Court has observed as under : “21. A basic principle of criminal jurisprudence is that in circumstantial evidence cases, the prosecution is obliged to prove each circumstance, beyond reasonable doubt, as well the as the links between all circumstances; such 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; further, the facts so proved should unerringly point towards the guilt of the accused. 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.” (w) Counsel has also relied upon the decision in Harbeer Singh and Anr. vs. Sheespal and Ors., AIR 2016 SC 4958 , where the Supreme Court has held that if the statement of a witness appears to be highly unnatural, the same can be discarded. The Supreme Court has further held that where improvements made by prosecution create serious doubt about the truthfulness or credibility of the witness, the advantage should be given to the defence. (x) Learned counsel has thus argued that the impugned judgment is liable to be set aside as the prosecution has failed to prove cogent and convincing evidence against the appellants. 27. In reply, learned A.G.A. for the State assisted by learned counsel for the informant has opposed the prayer and has made the following arguments : (a) It is argued on behalf of prosecution that there was strong motive in committing the murder of deceased, Vivek, by his wife and brother-in-law. Counsel submits that since the father-in-law, PW-1, had filed an application recalling/setting aside the decree of the year 2007 vide which half of the share was given to the appellant-Sobha and 1/4th share was given to the deceased-Vivek and 1/4th share was retained by PW-1, appellant-Sobha was annoyed and she left the matrimonial home and with that motive she has committed murder of Vivek. However, it is matter of fact that no such application was filed by Vivek and it was only filed by PW-1. (b) It is further submitted that appellant-Sobha is a lady of quarrelsome nature and even on previous occasion she had filed an F.I.R. against PW-1, PW-2 & Vivek under Section 498 A of IPC which led to conviction as well as complaint against Vivek for misusing a cheque by way of withdrawing amount from her account and even extending threat to her life. (c) It is also submitted that the case of the prosecution does not become weak if there are certain discrepancies or delay on the part of the investigating agency. (c) It is also submitted that the case of the prosecution does not become weak if there are certain discrepancies or delay on the part of the investigating agency. (d) Counsel submits that PW-2 & PW-3 are the witnesses who had seen both the appellants on 10.10.2011 between 9.00 to 9.30 p.m. coming out of the house of deceased-Vivek and, therefore, there is sufficient evidence that they have committed the murder of Vivek. (e) Counsel further submits that the conduct of the accused persons is also noticeable as after registration of the FIR, they were not arrested and only when proceedings under Section 82/83 Cr.P.C. were initiated and N.B.W. was issued against them, they surrendered before the Court. (f) It is also argued that PW-1 and PW-9 are the old aged parents of the deceased and appellant-Sobha being daughter-in-law, had an eye on the entire property i.e. house of the informant and with that motive she along with her brother committed murder of her husband. (g) Counsel submits that the delay in registration of the FIR has been explained as the informant was under shock and they could not register the FIR earlier and only after knowing the facts from the witnesses that the appellants had gone to the house of Vivek on 10.10.2011 at about 9.00 to 9.30 p.m., they registered the FIR promptly on 22.10.2011 and, therefore, the delay is properly explained. (h) It is also submitted that it has come in the statement of PW-1 that the appellant-Sobha had separated from Vivek in the year 2009 and when both PW-1 & PW-9 had gone to meet her daughter at Gurugram, in their absence, the appellants committed the murder of their son, Vivek Behel. 28. After hearing the counsels for the parties, we find merits in the present appeal for the reasons mentioned herein below. 29. (i) The first and foremost part is the motive. As per the prosecution version, on 10.10.2011, the informant (PW-1) and his wife (PW-9) left their home for visiting their daughter at Gurugram. It is stated in the first complaint (Ex-Ka-22) that son of the informant, deceased-Vivek Behel, was under depression and they left him alone at home to take care of the house. As per the prosecution version, on 10.10.2011, the informant (PW-1) and his wife (PW-9) left their home for visiting their daughter at Gurugram. It is stated in the first complaint (Ex-Ka-22) that son of the informant, deceased-Vivek Behel, was under depression and they left him alone at home to take care of the house. On 12.10.2011, at about at about 7.00 p.m., when the informant (PW-1) along with his wife (PW-9) returned and opened the lock, they found that Vivek Behel was lying dead. (ii) At the first instance, when this information was given, neither any motive was attributed to the accused persons nor any last seen evidence was reported to the police and even no names of last seen witnesses were given. Later, on 22.10.2011 it was stated by PW-1 & PW-9 that four persons of last seen were there on the spot as after 10 days of the incident, second complaint (Ex-Ka-1) was given (forming basis of F.I.R.), in which, it was stated that the accused had left the matrimonial home with her minor son after his birth in 2008 and started living at her parental home at Yamuna Nagar and was putting pressure on them (parents of the deceased) to transfer the house in her name and due to this motive she along with her brother committed murder of Vivek Behel by way of strangulation. It was stated in the said complaint that one set of key of the house remained with the accused-Shobha Behel. (iii) The explanation of delay was given that the informant was under shock due to sudden death of his son and, therefore, he had given the complaint on 22.10.2011. (iv) Neither from the first complaint (Ex. Ka-22) nor from the second complaint (Ex.Ka-1) , it is found that any specific motive was assigned to the appellants who are the wife and the brother-in-law of the deceased. It is found that it has further come in the evidence of both PW-1 & PW-9, the parents of the deceased, that previously deceased was admitted in Drug De-addiction Centre by appellant-Shobha for his treatment and later a compromise was effected between them in which by way of a civil decree, half of the share of the house was transferred in the name of appellant-Shobha, 1/4th in the name of Vivek Behel and 1/4th share was retained by the informant (PW-1). Therefore, once the settlement was arrived at between the family, there is no motive to commit murder of Vivek Behel by his wife Shobha Behel. (v) It came for the first time, in the statement of PW-1, while deposing in Court, that he had filed an application for setting aside the compromise decree and therefore, Shobha got annoyed and again left the matrimonial home and due to that reason, she committed the murder of Vivek Behel. Though in such eventuality motive would be against her father-in-law who was seeking cancellation of decree. (vi) PW-9, in her cross examination, admitted that one set of key of the house remained with appellant-Shobha and she used to visit Vivek Behel at Shaharanpur occasionally. It has also come in the statement of this witness that six months prior to the date of incident, they (PW-1 & PW-9) left the rented accommodation and shifted back to the same house and, thereafter, Shobha Behel again started living at her parental home at Yamuna Nagar. Therefore, the evidence on record suggests that appellant-Shobha Behel wanted to stay with her husband and not with the parents of her husband (PW-1 & PW-9) and, this cannot be a motive to commit murder of her husband. 30. (i) It has come on record that PW-1 later on moved an application for cancellation of the civil decree which show that informant himself had backed out of the settlement arrived at with her daughter-in-law (appellant-Shobha Behel). (ii) It has come in the statement of PW-1 & PW-9 that previously there was matrimonial litigation between parties i.e. Shobha Behel on one side and her husband and his parents (PW-1 & PW-9) on the other. However, as per the cross examination of these witnesses, she was still in relation with her husband-Vivek Behel and, therefore, the Trial Court has wrongly drawn adverse presumption against the appellant-wife in terms of Section 106 of the Act, 1872. It is held by the Supreme Court in Shivaji Chintappa Patil Case (Supra) that where the mother of the deceased admitted that the accused and her deceased daughter stayed together, would show that the relationship between deceased and accused was cordial. It is held by the Supreme Court in Shivaji Chintappa Patil Case (Supra) that where the mother of the deceased admitted that the accused and her deceased daughter stayed together, would show that the relationship between deceased and accused was cordial. In the instant case also, it is admitted by both PW-1 & PW-9 that accused-appellant, Shobha, was given half share of the house; she was having one set of key of the house and in the absence of PW-1 & PW-9, she used to visit Vivek Behel, which suggest that despite all litigations, she was maintaining cordial relation with her husband and, therefore, the appellants are liable to be given the benefit as there is no complete chain of circumstances in the present case. 31. (i) So far evidence of last seen is concerned, as noticed above, in the first complaint given on coming to know about the death of deceased as well as the second complaint which was given after 10 days of the death, only suspicion is raised against the appellant that on account of property dispute, she committed murder of her husband. Secondly, the evidence led by the prosecution regarding last seen of Shobha Behel and her brother-Ashish Arora on 10.10.2011 at the house where the incident had taken place falls flat. Firstly, because it has come in the statement of PW-1 that when they (parents of deceased) saw the dead body of their son, persons namely Vijendra Kumar (PW-2), Surajbhan (PW-3), Ambrish & Ved Prakash also came at the spot and informed that they had seen accused-appellants, Shobha Behel and Ashish Arora coming out of the house of informant. As a matter of fact, two persons, Ambrish and Ved Prakash, were never cited as prosecution witnesses. Secondly, Vijendra Kumar (PW-2), a witness of last seen, also did not support the prosecution version by deposing that he had not seen either Shobha Behel or Ashish Arora coming out of the house of informant on 10.10.2011. As a matter of fact, two persons, Ambrish and Ved Prakash, were never cited as prosecution witnesses. Secondly, Vijendra Kumar (PW-2), a witness of last seen, also did not support the prosecution version by deposing that he had not seen either Shobha Behel or Ashish Arora coming out of the house of informant on 10.10.2011. This witness was cross examined not only by public prosecutor but certain questions were put to him by the Court itself confronting him with his statement under Section 161 of Cr.P.C. However, this witness did not support his statement under Section 161 of Cr.P.C. (ii) The Trial Court has relied upon the statement of Vijendra Kumar (PW-2) recorded under Section 161 of Cr.P.C. who has stated that he had not seen the accused persons coming out of the house of informant (PW-1) on the date of incident. This witness was declared hostile and never supported his statement recorded under Section 161 of Cr.P.C. though he was cross examined by the Public Prosecutor and certain questions were put to him by the Court in this regard. (iii) It is well settled principle of law that the statement under Section 161 of Cr.P.C. can be used for contradicting the statement of witness and cannot be relied upon when the witness himself has disowned the same. At the cost of repetition, it is noticed that this witness was cross examined by Public Prosecutor after he was declared hostile. Still he disowned his statement and thereafter certain questions were put to him by the Trial Court but this witness has not acknowledged his statement given under Section 161 of Cr.P.C. Therefore, the Trial Court has not appreciated this legal aspect of the case. (iv) The presence of Surajbhan (PW-3) is highly doubtful. (a) This witness has stated that on 10.10.2011 at about 9.00 to 9.30 p.m., he was present at a barber’s shop and was getting his shave done and had seen the accused persons coming out of the house of the informant. This witness stated that he came to know about the murder of Vivek Behel after few days but he never informed this fact to the informant (PW-1) though both PW-1 & PW-9 have stated that he was present at the spot when they had seen the dead body of his son on 10.11.2011. This witness stated that he came to know about the murder of Vivek Behel after few days but he never informed this fact to the informant (PW-1) though both PW-1 & PW-9 have stated that he was present at the spot when they had seen the dead body of his son on 10.11.2011. (b) This witness stated that only when PW-1 came to know that he (PW3) has seen the accused coming out of his house on 10.10.2011, he took him to the police station and got his statement recorded on 15.3.2012 i.e. after five months of the incident. This raises a serious suspicion on the character of this witness why he kept quite for five months despite having seen the accused persons coming out of the house of the deceased on 10.10.2011. (c) This witness otherwise is not a natural witness for the reasons that he has stated that the barber’s shop where he was getting his shave done was about one and a half kilometres away from the street leading to the house of the informant and he had seen the appellants from a distance of 5 to 6 yards though it was dark outside. This witness further stated that one of his eyes was damage and he could not see from that eye and he had seen the accused persons coming out of the house of the informent (PW-1) from his another eye. This witness further stated that he is a retired person aged about 70 years. (d) Therefore, presence of PW-3 is doubtful as it has not come in the statements of PW-1 that there was any barber’s shop in the vicinity and PW-1 has even denied the suggestion whether there is any barber’s shop in the nearby area. Even the police did not record the statement of owner of the barber’s shop to find out that Surajbhan (PW-3) was getting his shave done on 10.10.2011 at about 9.00 to 9.30 p.m. (e) The presence of Surajbhan (PW-3) at the spot become highly doubtful in the light of the statement of Investigating Officer (PW-13) who has stated in clear words that during investigation, he never got any information prior to 15.3.2012 i.e. the intervening period of five months after registration of the FIR on 22.10.2011, that Vijendra Kumar (PW-2) and Surajbhan (PW-3) were witnesses of any fact of this case. This witness has even stated that during investigation he met both informant (PW-1) and his wife (PW-9) but, they never told him on any previous occasions that there was any witness of last seen and only on 15.3.2012, PW-1 brought them to the police station the he (PW13) recorded statement of both the witnesses (PW-2 & PW-3) on 15.3.2012. (f) All the aforesaid circumstances clearly show that Surajbhan (PW-3) is not a witness of last seen and was introduced later on, after five months of the incident. 32. (i) Perusal of the entire prosecution evidence shows that no scientific investigation of the case was done. Firstly, no F.S.L. expert was called at the spot to find out whether it was a case of murder or that there was any evidence at the spot showing that the deceased had resisted to the commission of the offence by way of strangulation. The police had also not collected any CCTV footage of the locality to find out whether the accused persons were present in the area on the date of incident and surprisingly the police did not even collect any evidence of the call details or the location of the mobile phones of the accused persons or the deceased to find out whether they were present at the spot or they had any conversation with each other prior to incident. This shows that the police has conducted a very shoddy investigation in the case and there is no corroboration to the statement of the informant that the accused persons were present at the place of incident. Therefore, the chain of circumstances is not proved. (ii) It has come in the cross examination of both PW-1 & PW-9 that father of the accused persons had died on 4.10.2011 and his cremation was done on 7.10.2011. His last rites were performed on 16.10.2011 at Yamuna Nagar. PW-1 has even admitted that on 17.10.2011, accused-Shobha had also given a complaint through speed post to Senior Superintendent of Police, Shaharanpur for conducting fair investigation regarding death of her husband stating that her father-in-law (PW-1) did not even inform her about death of her husband and from 4.10.2011 till 17.10.2011, she was at Yamuna Nagar to attend the last rites of her father with her brother accused-Ashish Arora. Once the factum of the death of appellants’ father and the fact that the appellants were at Yamuna Nagar from 4.10.2011 till 17.10.2011 to attend the last rites of their father are admitted by PW-1, the Court finds that the defence taken by the appellants that they were not present at the spot on 10.10.2011 find weight. 33. Even otherwise, appellant-Shobha as admitted by PW-1 & PW-9, is the owner of half of the share of the house by way of civil court’s decree passed in the year 2007. It was also admitted that the appellant had a set of keys of the house and she used to come to meet the deceased in their absence. It has also come in the statement of the informant that the marriage between Shobha Behel and Vivek Behel was performed on 28.11.2005 and in the year 2008 a son was born to appellant and deceased who is living in care and custody of the appellant. Though both by the prosecution and the defence it established that there was matrimonial litigation between both sides, yet nothing has come on record that at any point of of time, appellant-Shobha Behel has filed any petition seeking decree of divorce or judicial separation from her husband. Rather the evidence suggests that she was visiting him at Shaharanpur which reflects that the appellant never wanted to separate from the deceased despite the fact that he was drug addicted and remained under depression as admitted by both PW-1 & PW-9. It has also come in the statement of both the witnesses that the deceased was admitted in Drug De-addiction Centre by appellant-Shobha Behel for his treatment. It has also come in their statement that they had given an affidavit to concerned authorities stating therein that, in future, if anything wrong is done by the deceased under the influence of liquor, they would be responsible for the same. It has also come on record that by way of public notice in Amar Ujala on 14.11.2006, PW-1 & PW-9 had disowned their son. Therefore, in totality of the evidence led by the prosecution and defence set up by the accused persons, neither motive is proved nor chain of circumstances is proved to hold the appellants guilty of charges. 34. It has also come on record that by way of public notice in Amar Ujala on 14.11.2006, PW-1 & PW-9 had disowned their son. Therefore, in totality of the evidence led by the prosecution and defence set up by the accused persons, neither motive is proved nor chain of circumstances is proved to hold the appellants guilty of charges. 34. In view of the judgment in Sharad Birdhichand Sarda’s Case (Supra) and subsequent judgment in Jabir’s Case (Supra), the prosecution has failed to prove the five golden principles of proving a case based on circumstantial evidence laid down in Sharad Birdhichand Sarda’s Case (Supra). 35. In view of the judgment in Shivaji Chintappa Patil’s Case (Supra), the Trial Court has wrongly drawn adverse presumption under Section 106 of Act, 1872 against the appellant-Shobha Behel though it has come in the evidence that she was maintaining relationship with her husband by visiting him at Shaharanpur. 36. In light of the judgment in Dinesh Kumar’s Case (Supra) and Krishan Kumar’s Case (Supra) we conclude that there is no legal evidence led by the prosecution to build its case on circumstantial evidence as the chain of circumstances collected by the prosecution is not complete to point out that only allegation can be drawn that the accused have committed the crime. In view of this judgment, the prosecution evidence only leads up to a point and no further evidence is on record to prove motive to make it a complete chain so as to record any reasonable ground for conviction. 37. It is held in Shivaji Chintappa Patil’s Case (Supra) that it is settled principle of law that if two views are possible, the benefit shall always go to the accused. 38. In view of the judgment in Jabir’s Case (Supra), the prosecution has failed to prove that the circumstantial evidence is complete to sustain conviction or to hold the accused guilty. 39. On perusal of the entire evidence, judgment of the Trial Court and in view of the judgment in Harbeer Singh’s Case (Supra), we hold that improvements made by prosecution are creating serious doubts about the truthfulness and credibility of the witnesses. 40. 39. On perusal of the entire evidence, judgment of the Trial Court and in view of the judgment in Harbeer Singh’s Case (Supra), we hold that improvements made by prosecution are creating serious doubts about the truthfulness and credibility of the witnesses. 40. Therefore, in the light of the judgment in Krishan Kumar’s Case (Supra), we hold that the Trial Court has appreciated the evidence in an utterly perverse manner i.e. against the weight of the evidence and conviction of the appellant cannot be upheld and they are entitled to acquittal. 41. In view of the above, this appeal is allowed. The impugned judgment of conviction and order of sentence are set aside. Let the appellants, Shobha Behel and Ashish Arora, be set free forthwith and their bail bonds and sureties be discharged. 42. Record and proceedings be sent back to the Trial Court forthwith.