JUDGMENT : Rajani Dubey, J. 1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the the judgment of conviction and order of sentence dated 17.12.2019 passed by learned Sessions Judge, Bemetara, District- Bemetara (C.G.) in Sessions Case No. 16/2019 whereby the trial court has convicted the appellant and sentenced him as under:- Conviction Sentence U/s 302 of IPC Life imprisonment and fine of Rs.100/- and in default of payment of fine, additional imprisonment for 3 months 2. Facts of the case in nut shell are that on 25.12.2018, deceased-Indira Bai was in the house along with her Aunt Sabana Bai & Grandmother Baisakhin Bai. On the same day Mantruram returned to his home and enquired about the deceased- Indira Bai and then he came to know that she was not at home. During search, he came to know that his daughter- Indira Bai was lying dead at Neelgiri farm. The appellant was chasing the deceased for last one year for which Mantruram & his wife restrained them for talking to each other. On the date of the incident, the appellant called the deceased at Neelgiri farm and strangled her by her scarf. On the basis of morgue intimation, inquest memo was prepared and thereafter, the postmortem of the body was conducted. One mobile and bicycle were seized from the place of the incident. Spot map was prepared. On the basis of information of Mantruram, FIR bearing Crime No. 146/2018 was registered against the respondent. On 26.12.2018, the accused/appellant was taken into custody and his memorandum statement was recorded. After completion of usual investigation, the charge-sheet was filed before the learned trial Court for the offence punishable under Section 302 of IPC followed by framing of charges, to which appellant abjured his guilt and prayed for trial. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 19 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. The appellant did not adduce any evidence in his defence. 4. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 19 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. The appellant did not adduce any evidence in his defence. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 17.12.2019, finding evidence adduced by the prosecution trustworthy, convicted the the appellant under Section 302 of IPC and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 5. Ms. Sharmila Singhai, learned Senior Advocate appearing for the appellant submits that the impugned judgment is contrary to law, facts and circumstances of the case and, therefore is liable to be set-aside. The learned trial Court completely failed to appreciate that the prosecution has failed to prove that both the seizure witnesses have not supported the case of the prosecution as in the present case there were no eye witnesses to the incident. Learned trial Court completely failed to appreciate the evidence of Dr. Vinay Kumar Tamrakar (P.W-13) and Dr. Nidhi Meshram (P.W-14) who have not given their opinion regarding nature of death. In these circumstances, it is very much probable that the deceased has committed suicide. Learned trial Court completely failed to appreciate that the conviction is based on circumstantial evidence, whereas the prosecution has completely failed to prove the complete chain of circumstances. The learned trial Court convicted the appellant only on the basis of memorandum statement whereas it is a settled proposition of law that the accused cannot be convicted only on the basis of memorandum as it is inadmissible in the evidence. She further submits that the deceased and appellant were having love affair for last many years but it does not mean that the appellant has committed the murder of deceased. The learned trial Court gravely erred in relying upon the statement of Sabana bai (P. W.-7) as in one place she stated that Ku. Indira went alone on her bicycle whereas in cross examination she specifically stated that on the date of incident deceased went with the appellant on his Motorcycle. The learned trial Court gravely erred in relying upon the statement of Sabana bai (P. W.-7) as in one place she stated that Ku. Indira went alone on her bicycle whereas in cross examination she specifically stated that on the date of incident deceased went with the appellant on his Motorcycle. Further, learned trial Court gravely erred in holding that since the appellant himself gave information to the police station therefore, it can be assumed that he has committed the murder of the deceased. So, merely giving the information for committing murder does not amount that appellant is guilty for murder of the deceased. Prosecution has completely failed to examine any independent witnesses to support its case as all the witnesses are in close relation to the deceased therefore, their statements cannot be relied. The findings recorded by the learned trial Court against the appellant are baseless, perverse and contrary to evidence available on record. Therefore, the impugned judgment is liable to be set aside. Reliance has been placed on the judgments of Hon’ble Supreme Court in the matter of Hatti Singh Vs. State of Haryana; (2007) 12 SCC 471 , Sahadevan and another Vs. State of Tamil Nadu; (2012) 6 SCC 403 ; Satish Nirankari Vs. State of Rajasthan; (2017) 8 SCC 497 ; Anjan Kumar Sharma Vs. State of Assam; AIR 2017 SC 2617 , Chandrapal Vs. State of Chhattisgarh; 2022 SCC Online SC 705 and Darshan Singh Vs. State of Punjab; (2024) 3 SCC 164 . 6. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court rightly appreciated the oral and documentary evidence and convicted the appellant accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court. 7. Heard learned counsel for the parties and perused the material available on record. 8. Upon perusal of the record, it is evident that the learned trial Court framed charges for the offence under Section 302 of IPC against the appellant for commission of murder of the deceased Indira Sahu. 9. Dr. Vinay Kumar Tamrakar (P.W.-13) and Dr. Nidhi Meshram (P.W.-14) conducted postmortem of the deceased and gave their report vide Ex. P/12 wherein they opined that the death of the deceased was due to asphyxiation caused by strangulation. 9. Dr. Vinay Kumar Tamrakar (P.W.-13) and Dr. Nidhi Meshram (P.W.-14) conducted postmortem of the deceased and gave their report vide Ex. P/12 wherein they opined that the death of the deceased was due to asphyxiation caused by strangulation. The death of the deceased occurred within 12 to 24 hours from the time of postmortem. They further examined the clothes of the deceased and gave query report vide Ex. P/17, P/18, P/19 and P/20 in this regard wherein they opined that the death of the deceased was found to be due to asphyxiation caused by strangulation by tightening her neck with a scarf. They also opined that no definite opinion can be given regarding sexual intercourse before or after the death of the deceased. Clothes of the deceased were sent for medical examination. As per FSL report (Ex. P/32), no semen was found in the clothes (Articles B & D) of the deceased and the appellant and also in soil (Article E). 10. It is clear from postmortem report (Ex. P/12) that nature of death was not opined by the doctors whether it is homicidal or suicidal. Dr. Vinay Kumar Tamrakar (P.W.-13) admitted that he gave his opinion regarding the death of the deceased which was caused due to strangulation is based on presumption as per the condition of the dead body of the deceased during post mortem. 11. Dr. Nidhi Meshram (P.W.-14) stated in para 4 of her cross-examination that the cause of death of the deceased which she stated in postmortem is due to strangulation with scarf (dupatta) could be of some other reason also. On being questioned by the Court that as to what could be other reason for the death of the deceased, upon which she stated nothing in this regard. 12. Hon’ble Supreme Court in the matter of Satish Nirankari Vs. State of Rajasthan; (2017) 8 SCC 497 held in paras 38 and 39 as under:- “38. …… The prosecution failed to prove that the cause of death was homicidal. Dr. S.K. Pathak (P.W.-3) did not say that death was homicidal in nature. Post-mortem report (Ext.P-4) also does not say that it was homicidal. 39. This aspect is not even dealt with by the High Court. Further, the alleged weapon i.e. cable wire was not sent to CFSL and to any scientific laboratory to confirm fingerprints of the appellant. Dr. S.K. Pathak (P.W.-3) did not say that death was homicidal in nature. Post-mortem report (Ext.P-4) also does not say that it was homicidal. 39. This aspect is not even dealt with by the High Court. Further, the alleged weapon i.e. cable wire was not sent to CFSL and to any scientific laboratory to confirm fingerprints of the appellant. All the aforesaid factors amply demonstrate that the prosecution has not been able to bring out and prove the guilt of the appellant beyond reasonable doubt. There are lurking doubts in the story of the prosecution and many missing links which are pointed out above.” 13. In this case, prosecution only proved this fact that on 25.12.2018, deceased Indira Sahu died but failed to prove beyond reasonable doubt that whether the death of the deceased is homicidal or suicidal in nature. 14. As per Dilip Kumar Tikariha (P.W.-15), on 25.12.2018 at about 5:30 P.M., appellant Jitendra Sen came to the police Station in a disturbed state and informed that he had killed the deceased Indira Sahu by strangulating her with scarf. On the basis of said information, Rojnamcha Sanha bearing No. 22 was registered by him and thereafter he informed regarding the same to the Station House Officer. In his cross-examination, he admitted that while registering the Rojnamcha Sanha, he mistakenly wrote the name of the deceased as Indira Sen in spite of Indira Sahu. 15. In morgue intimation (Ex. P/8), date of the incident and the time were mentioned as 25.12.2018 and 4:00 P.M. As per this morgue intimation (Ex.P/8), Mantruram Sahu (P.W.-8), father of the deceased stated that on 25.12.2018, they had gone to Rakasabai. When they came to know that the deceased Indira Sahu is not at home then they returned from there. After returning, they saw the dead body of the deceased lying on the floor. Her scarf was tied around her neck and her bicycle and mobile were lying there. Thereafter, they came to know that the appellant went to the police station after committing murder of the deceased. Later on, he along with Chintaram went to the police station and lodged the report. Morgue intimation is Ex. P/8 and FIR is Ex. P/9 wherein he admitted his signature from A to A part. 16. Thereafter, they came to know that the appellant went to the police station after committing murder of the deceased. Later on, he along with Chintaram went to the police station and lodged the report. Morgue intimation is Ex. P/8 and FIR is Ex. P/9 wherein he admitted his signature from A to A part. 16. It is evident from memorandum statement (Ex.P/1) of appellant that it is a confessional statement of accused/appellant- Jitendra Sen and as per Section 27 of the Evidence Act, only recovery part is admissible. Relevant ingredients of memorandum statement (Ex.P/1) are as under:- ^^tgka ls eSuss vius eksckbZy uEcj 6267218922 ls bfnjk ds eks-u-9111091863 esa Qksu dj uhyfxjh uljhZ vkus oksyk tks viuh lk;dy ls vk;hA rc eSus dq- bfnjk lkgw ds lkFk uljhZ esa 'kkjhfjd laca/k cuk;k vkSj viuk oh;Z ckgj tehu esa fxjk fn;k vkSj mls cksyk fd eSa rqels gh 'kknh da:xk pyks Hkkx dj pyrs gS cksyus ij bfnjk us vius lekt ds yM+ds ls 'kknh djuk rFkk esjs lkFk tkus o 'kknh djus ls euk djus ij eSa dkQh vkØks'k esa vkdj bfnjk lkgw ds nwiV~Vk ls gh mlds xys esa 2-3 yisVk ?kqek dj tehu esa fxjk fn;k vkSj mls 'kknh djus ds fy, iqu% cksyk fQj Hkh euk djus ij nqiV~Vk dks dl dj bfnjk lkgw dh gR;k dj fn;k gwa ?kVuk ds le; igus gq, thla Qwy isaV o vaMjfo;j dks vHkh iguk gwa rFkk ftl eks- Qksu ls dky fd;k mls ikl esa j[kk gwa rFkk ftl eks- lk;dy ls gR;k djds Hkxk gwa og esjs ikl esa gS ftls is'k dj nsrk gwa rFkk ftl txg ij dq- bfnjk lkgw dk gR;k fd;k gwa o bfnjk ls lEHkksx ds le; oh;Z dks ftl txg ij fxjk;k gwa ml txg dks lkFk py dj fn[kk nsrk gwaA** 17. As per memorandum statement (Ex.P/1), seizure of one motorcycle, one jeans and one underwear were seized vide seizure memo (Ex. P/3). Underwear and jeans of the appellant were sent for chemical examination but as per FSL report (Ex. P/32), no semen was found in the underwear of the accused and also not found in the soil taken from the spot. 18. Sabana Bai (P.W.-7) stated that the accused/appellant had love affair with the deceased- Indira Sahu due to which, he used to come to house of the deceased. She restrained him but he denied the same. P/32), no semen was found in the underwear of the accused and also not found in the soil taken from the spot. 18. Sabana Bai (P.W.-7) stated that the accused/appellant had love affair with the deceased- Indira Sahu due to which, he used to come to house of the deceased. She restrained him but he denied the same. On the date of the incident, the appellant called the deceased at Nilgiri farm and committed her murder. Indira had gone there with a bicycle on the date of incident. In her cross-examination, she stated that on the date of the incident at about 12:00 P.M., she saw the appellant taking the deceased Indira Sahu on motorcycle. 19. Close scrutiny of statements of all the witnesses makes it clear that the learned trial Court convicted the appellant on the basis of memorandum statement of the appellant, seizure, last seen, call details and also on the ground that the accused/appellant did not offer any satisfactory explanation in his statement recorded under Section 313 of Cr.P.C. It is clear from statements of all the witnesses that only this fact was proved by the prosecution beyond reasonable doubt that the deceased and the appellant were in love affair and they used to talk with each other over mobile phone. Accused was watchman in Nilgiri Farm. On 25.12.2018, dead body of the deceased was found in Nilgiri Farm. As per the prosecution, accused/appellant himself informed police station at 5:30 P.M about commission of murder of deceased by him but it is also clear from the morgue intimation (Ex.P/8) that before the said information, morgue intimation (Ex. P/8) was lodged by the Investigating officer at 4:00 P.M. Therefore, it is clear that morgue intimation (Ex. P/8) was lodged at 4:00 P.M. and FIR was lodged at 4:10 P.M. Thus, it is clear that before registering the Rojnamcha Sanha, father of the deceased informed the police station about the death of the deceased at 4:00 P.M. and FIR was lodged before registering the Rojnamcha Sanha, therefore the Rojnamcha Sanha (Ex.P/21) is of no help to the prosecution and also it is not admissible under Section 24 of the Evidence Act as this is confessional statement of the accused. 20. 20. Sabana Bai (P.W.-7) is a last seen witness but in her examination-in-chief, she only stated that the deceased- Indira went to meet the accused on bicycle and in her cross-examination, she stated that on the date of the incident, she saw the accused taking the deceased on motorcycle. This statement of Sabana Bai (P.W.-7) is not sufficient to implicate the accused/appellant in the murder of the deceased. 21. It has been held by Hon’ble Supreme Court in the matter of Chandrapal Vs. State of Chhattiasgarh; 2022 SCC Online SC 705 in paras 15 to 19 as under:- 15. In this regard, it would be also relevant to regurgitate the law laid down by this Court with regard to the theory of “Last seen together”. 16. In case of Bodhraj Vs. State of Jammu and Kashmir; ( 2002) 8 SCC 45, this Court held in para 31 that: “31. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the accused being the author of the crime becomes impossible….” 17. In Jaswant Gir v. State of Punjab; (2005) 12 SCC 438 , this Court held that in absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of “Last seen together”, even if version of the prosecution witness in this regard is believed. 18. In Arjun Marik v. State of Bihar; 1994 Supp (2) SCC 372, it was observed that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore no conviction on that basis alone can be founded. 19. As stated hereinabove, in order to convict an accused under Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, in the opinion of this Court, the appellant-accused could not have been convicted merely on the basis of theory of “Last seen together”. 22. Learned trial Court found 9 incriminating circumstances to hold the conviction against the appellant which are as under:- 23. 22. Learned trial Court found 9 incriminating circumstances to hold the conviction against the appellant which are as under:- 23. Thus, it is clear that the prosecution only proved this fact that the accused had lover affair with the deceased and her aunt Sabana Bai (P.W.-7) restrained them from talking to each other. Accused was watchman in Nilgiri Farm, but Investigating Officer- Bharat Choudhary (P.W.-18) admitted this fact in his cross-examination that he did not investigate the calls received from all the numbers on the mobile phone of the deceased on the date of the incident. 24. Ambar Singh Bhardwaj (P.W.-17) stated that during investigation, he sent a written complaint (Ex.P/27) for obtaining the certificate under Section 65-B of the Evidence Act and the consumer application regarding the call details of the mobile numbers of the deceased and the accused/appellant. 25. Sanjeev Nema (P.W.-16) gave certificate Ex.P/26 as per Section 65-B of the Evidence Act, but in his cross-examination, he admitted that it cannot be said as to what conversation took place between the two mobile holders. 26. Thus, it is clear that both the deceased and the appellant were in relationship and they used to talk with each other over the mobile phone but this fact is not sufficient to prove this fact that the accused committed murder of the deceased as there is no last seen evidence in this case. Sabana Bai (P.W.-7) in her examination-in-chief only stated that on the date of the incident, deceased Indira went alone on bicycle and in her cross-examination, she stated that she saw the appellant and the deceased going on motorcycle. 27. As per the law laid down by Hon’ble Supreme Court in the case of Chandrapal (supra), if the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out then only the last seen theory is not sufficient to convict the accused/appellant for the offence of murder. 28. In view of the law laid down by Hon’ble Supreme Court in the case of Chandrapal (supra), in this case also, it is clear that the prosecution has failed to prove that the death of the deceased was homicidal in nature beyond reasonable doubt and last seen theory is also not sufficient to hold the accused guilty for the alleged offence. 29. 29. It is a well settled principle of law that when other circumstances relied upon by the prosecution are proved by the prosecution beyond reasonable doubt, then only explanation of the accused/appellant is important, however in this case, prosecution has utterly failed to prove the chain of circumstances against the accused/appellant. Learned trial Court only on the basis of memorandum statement of the accused wherein he did not offer any sufficient explanation, convicted the appellant which is not in accordance with facts and circumstances of the case. Therefore, the findings recorded by the learned trial Court is not applicable to the facts of this case. 30. For the foregoing reasons, in our opinion, the conviction and sentence of the appellant under Section 302 of IPC cannot be legally sustained. The appeal is accordingly allowed. The impugned judgment dated 17.12.2019 is set aside. Consequently, the appellant is acquitted of the charge under Section 302 of IPC. He is reported to be in jail since 26.12.2018, therefore, he be set free forthwith if not required to be detained in any other case. 31. Keeping in view the provisions of Section 437-A of CrPC, the appellant is directed to furnish a personal bond in terms of form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, for aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 32. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.