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2025 DIGILAW 1405 (ALL)

Raj Kumar v. State of U. P.

2025-12-10

RAJIV GUPTA, SAMIT GOPAL

body2025
Judgment : Samit Gopal, J. 1. The present jail appeal has been preferred from jail by the appellant Raj Kumar against the judgment and order dated 28.11.2019 passed by the Sessions Judge, Ghaziabad in Session Trial No. 273 of 2017 (State Vs. Raj Kumar) Computer Registration No. 276/2017 (CNR No. UPGZO-10074922017) arising out of Case Crime No. 90 of 2017, under Sections 302, 495 IPC, Police Station Tronica City, District Ghaziabad by which the appellant has been convicted and sentenced under Section 302 I.P.C. for life imprisonment along with fine of Rs. 10,000/- and in default of payment of fine to further undergo one year additional imprisonment. Set-off, of the period already undergone, has been ordered to be extended to the accused. 2. An undated tehrir of which Bharti is the scribe was given by Smt. Kanta to the Station House Officer, District Ghaziabad alleging therein that she is the wife of Sanjay Kumar living in Gali No. 2, near Neelam Factory, Rajiv Garden, Police Station Loni, District Ghaziabad. Her daughter Puja was married on 25.04.2016 to Raj Kumar son of Brijpal a resident of Bulandshahr. Raj Kumar was married earlier also and had two children due to which he used to often assault her daughter and on 17.01.2017 when she went to meet her daughter at the rented place, Raj Kumar was having a fight with her and in a state of anger told Puja that he would murder her on which she stopped him and consoled her daughter and came back to her house. Today on 17.01.2017 in the afternoon when she came to the house of her daughter, Raj Kumar was beating her mercilessly and extending threats for murdering her. In the evening she was in Tronica City Factory where she received a phone call from Sadabad Dugyawali stating that her daughter has been assaulted by a small gas cylinder on her head on which she ran to her house and found her daughter lying on the floor in an injured condition. She raised her but there was no movement and she had died. The accused had cheated them and had solemnized second marriage with her daughter Puja. The murder is of about 07:00 pm. Report be lodged and action be taken. The said application is Exb: Ka-1 to the records. 3. She raised her but there was no movement and she had died. The accused had cheated them and had solemnized second marriage with her daughter Puja. The murder is of about 07:00 pm. Report be lodged and action be taken. The said application is Exb: Ka-1 to the records. 3. On the basis of the said application a First Information Report was lodged as Case Crime No. 90 of 2017, under Sections 302, 495 I.P.C., Police Station Tronica City, District Ghaziabad against Raj Kumar on 18.01.2017 at 20.30 hours. The Chik FIR is Exb: Ka-18 to the records. 4. The police took in its possession a blood stained lower of the accused Raj Kumar and prepared a recovery memo on 19.01.2017. The same is Exb: Ka-13 to the records. Further a small gas cylinder was taken into possession by the police on 18.01.2017 and the recovery memo was prepared which is Exb: Ka-14 to the records. Plain mud and blood stained mud was also taken into possession on 18.01.2017, the recovery memo of the same is Exb: Ka-11 to the records. 5. The postmortem of the deceased Puja was conducted on 19.01.2017 at 04:00 pm by Dr. M.K. Tomar in which the doctor found the following injuries: (i) L.W. 1.0cm x 1.0cm x bone deep over outer end of right eye brow. (ii) Contusion 15cm x 11cm over right side face and upto right side skull. Further the doctor found under the skull, the right temporal, parietal, right frontal bone and base fractured and clotted blood was present in the brain. The cause of death was opined as Coma due to antemortem head injuries. The postmortem examination report is Exb: Ka-4 to the records. 6. Certain articles were sent to the Forensic Science Lab, Uttar Pradesh, Agra for examination. A report dated 30.07.2018 was sent by the Lab opining that the articles from No.1 to 12 contains blood. The items from No. 3 to 7 were found to contain human blood. In the articles 1, 2, 8, and 9 blood was found to be disintegrated and thus its origin could not be deciphered. The report is Exb: Ka-19 to the records. 7. The investigation concluded and a charge sheet dated 01.04.2017 was filed against the accused appellant under Sections 302, 495 IPC, the same is Exb: Ka-17 to the records. In the articles 1, 2, 8, and 9 blood was found to be disintegrated and thus its origin could not be deciphered. The report is Exb: Ka-19 to the records. 7. The investigation concluded and a charge sheet dated 01.04.2017 was filed against the accused appellant under Sections 302, 495 IPC, the same is Exb: Ka-17 to the records. The court concerned took cognizance upon the same vide order dated 15.04.2017. 8. Vide order dated 11.07.2017 passed by the Sessions Judge, Ghaziabad charge under Sections 495 and 302 IPC was framed against the accused appellant. He was read over and explained the charge to which he denied and claimed to be tried. 9. The trial in the matter started in which Smt. Kanta the first informant and mother of the deceased was examined as PW-1, Bijendra the landlord of the deceased was examined as PW-2, Smt. Asha the first wife of the accused appellant was examined as PW-3, Head Constable Smt. Reena who stated that the Chik FIR was transcribed by Kamal Kumar along with GD was examined as PW-4, Dr. Mahesh Kumar Tomar who conducted the postmortem examination on the deceased was examined as PW-5, Neeraj Kumar Dwivedi the Nayab Tehsildar who conducted the inquest was examined as PW-6, Gajendra Singh Sub-Inspector, the Investigating Officer was examined as PW-7 and Head Constable Kamal Kumar who transcribed the Chik FIR was examined as PW-8. Dharmendra Tyagi was examined by the court as a court witness and examined as CW-1. 10. The accused in his defence did not produce any defence witness. In his statement under Section 313 Cr.P.C. he stated that the police did not arrest him from the place of occurrence. He further denied the entire prosecution case and lastly he stated that the father of the deceased is an accused in the case of murder and he had demanded money from him but since he did not fulfill his demand he has been falsely implicated in the matter. He further states that at the time of incident he was at Bhajanpura, Delhi and driving a Bolero Pick-up No. DL 1LM 1397 where he received information about the incident and then he came back after which the police arrested him. 11. P.W.-1 Smt. Kanta is the first informant of the matter and the mother of the deceased. He further states that at the time of incident he was at Bhajanpura, Delhi and driving a Bolero Pick-up No. DL 1LM 1397 where he received information about the incident and then he came back after which the police arrested him. 11. P.W.-1 Smt. Kanta is the first informant of the matter and the mother of the deceased. She states that the marriage of her daughter Pooja was solemnized on 25.04.2016 with Raj Kumar (the accused present in Court). Raj Kumar was previously married and has two children from the said marriage but still he by concealing his earlier marriage, married her daughter for the second time. After marriage Raj Kumar used to assault her daughter. Her daughter came to know of the previous marriage when he brought his daughters home. Her daughter was informed about the previous marriage of Raj Kumar by his family members. Raj Kumar used to visit his first wife which used to be opposed by her daughter Pooja and due to the same he used to assault her often and threaten her of murdering her. The incident is of 18.01.2017. A day prior to the incident she went to meet her daughter at her rented room in Tronica City where in front of her Raj Kumar had a fight with her and threatened her of dire consequences. She then consoled Raj Kumar and told him not to fight. Raj Kumar had threatened Pooja many a times for murder. She had even earlier many a times consoled Raj Kumar and told him not to fight and then she went back to her house. On the day of the incident on 18.01.2017 in the afternoon when she again went to the house of her daughter to meet her, Raj Kumar was assaulting her daughter mercilessly and was threatening her of murdering her. At that time also she consoled him and told him not to beat Pooja and went back to her house. On the same day at about 7.30 pm she received an information on phone that she may come and see her daughter and the said person told her that her daughter has been assaulted by her son-in-law with a small cylinder who has received injuries on her head and has been murdered. On the same day at about 7.30 pm she received an information on phone that she may come and see her daughter and the said person told her that her daughter has been assaulted by her son-in-law with a small cylinder who has received injuries on her head and has been murdered. On the said information, she along with her daughter Bharti immediately went to the house of Raj Kumar where she found her daughter lying in a pool of blood on the floor of the house. She touched Pooja but there was no response from her body and she had died. When she reached the house, police was present there. Accused Raj Kumar was arrested by the police at the said place itself. She get a report of the incident written by her daughter Bharti on her dictation and after hearing it put her thumb impression and gave it at the police station. She identifies her thumb impression. The said report is marked as Exb: Ka-1 to the records. She had told the police about the incident on their asking. In her cross-examination she states that she is an illiterate lady. She states that it takes around 10 minutes to reach the house of her daughter from her house by a tempo. She states that her daughter had no child. Prior to the incident she has not lodged any report against Raj Kumar. She states that it is correct that she had not given any report to any officer or police regarding the assault by Raj Kumar on her daughter. No medical examination of her daughter was earlier done. She came to know about second marriage of Raj Kumar but she did not meet his first wife. The name of her husband is Sanjay. He is an accused under Section 302 I.P.C. He is in jail since last three years in the case of murder. The incident of the present matter is of 18 th in the month of January. On the information of the incident she reached the house of her daughter on 18.01.2017 at about 7.30 pm. She on the day of incident did not go to the house of her daughter in the morning but went only in the afternoon. She used to go to meet her daughter every 2-3 days because apart from her work she used to do work for her daughter’s house. She on the day of incident did not go to the house of her daughter in the morning but went only in the afternoon. She used to go to meet her daughter every 2-3 days because apart from her work she used to do work for her daughter’s house. Raj Kumar lives in a rented room. Her daughter also lives with him. She has seen the house very well. There are three tenants in the said house, one on the upper floor and two on the ground floor. Her daughter used to live on the upper floor. She did not write her phone number on the report. When she reached the place of occurrence then police was present there. She did not give information to the police. When she reached the place of occurrence her daughter was lying on the floor and it was night. She stayed there for some time and then returned to her house. Tehrir of the matter was written by her daughter Bharti and not by her. It was written outside the police station. It was written between the police station and the road. The paper for it was brought by her daughter but she does not know from where she brought it. One or two days before she had gone to meet her daughter at about 6 pm. At that time her daughter was fine. She states that Raj Kumar was fighting with her daughter. She came back to her house. On the day of incident when she went at the place of occurrence the tenants were present there. Stairs are used to reach the house. It is incorrect to state that on the day of incident her daughter Pooja fell down from the stairs due to which she received injury on her head and died. Accused Raj Kumar is a driver and drives a vehicle. The vehicle is a four wheeler. He drives the vehicle of someone else and does job at his place. It is incorrect to state that on the day of incident Raj Kumar had gone on his job. She states that at the time of incident Raj Kumar had left his job. Her daughter had told her about Raj Kumar leaving the job. She did not go to the owner of the vehicle. It is incorrect to state that on the day of incident Raj Kumar had gone on his job. She states that at the time of incident Raj Kumar had left his job. Her daughter had told her about Raj Kumar leaving the job. She did not go to the owner of the vehicle. She states that it is incorrect that on her phone Raj Kumar informed her that her daughter has received injuries. She states that it is incorrect that Raj Kumar was informed about the incident by the tenants on phone after which he called her on phone from where he was working. She further states that it is incorrect that she had asked Raj Kumar for Rs. One lakh for the case of her husband and he had refused giving it due to which he has been falsely implicated in the present matter. She states that she is deposing the truth. 12. P.W.-2 Bijendra is the landlord of the house where the deceased was living and is the place of occurrence. He states that he has a house in Tronica City. He has given rooms in the said house on rent. Raj Kumar the accused present in Court lives on rent in one of the rooms along with his wife Pooja. Pooja wife of Raj Kumar died in the said house in the room. He received information about the death of Pooja from his neighbour. When he received the information he reached the place of occurrence and found the body of the wife of Raj Kumar lying in the room. The police was present there. The Investigating Officer recorded his statement and he told him about it. In his cross-examination he states that at the time of incident he was not present at the place of occurrence. He received information about it through the neighbours on phone. He told the police about the said fact. He states that it is incorrect that he did not reach the place of occurrence on getting information about the incident. He further states that it is incorrect that due to the same he did not give his phone number and tell the time. 13. P.W.-3 Smt. Asha is the first wife of the accused-appellant. She states that she was married to the accused-appellant Raj Kumar on 22.11.2008 and as such it is around 09 years since then. He further states that it is incorrect that due to the same he did not give his phone number and tell the time. 13. P.W.-3 Smt. Asha is the first wife of the accused-appellant. She states that she was married to the accused-appellant Raj Kumar on 22.11.2008 and as such it is around 09 years since then. She has two sons from Raj Kumar. Raj Kumar is a driver. Raj Kumar by concealing his marriage for the second time married Pooja and started living with her. Raj Kumar had abandoned her after which she started living in her maternal house. Whenever Raj Kumar used to come to her he was in an intoxicated condition and used to assault her. Panchayat about it was collected in the village of mama of the accused in which Raj Kumar had agreed to keep her but did not come to her maternal house to take her back. She states that she does not know whether Raj Kumar committed any incident with his second wife Pooja. The Investigating Officer had visited her place and told her that Raj Kumar has assaulted Pooja on her head with a 5kg cylinder and murdered her. She had told the Investigating Officer about her marriage and showed him her identity card and gave a photocopy of it to him after signing it. The photocopy of the Voter ID is Card Form No.12 which contains her signature is proved by her as Exb: Ka-2 to the records. In her cross-examination she states that she is staying at her maternal uncle house since last five years. Both her children are staying with her. When the accused married for the second time she made a complaint at Mahila Thana but no one from Thana visited her. She did not lodge a report regarding it since the accused in the Panchayat had agreed to take her back. When Raj Kumar agreed to take her back his second wife was living with him. She did not institute any case of maintenance against the accused. She states that it is incorrect that after Panchayat she did not herself tried to go and live with Raj Kumar. She did not give any evidence about her marriage. She only gave her statement to the Investigating Officer and did not lodge any report against Raj Kumar. She did not institute any case of maintenance against the accused. She states that it is incorrect that after Panchayat she did not herself tried to go and live with Raj Kumar. She did not give any evidence about her marriage. She only gave her statement to the Investigating Officer and did not lodge any report against Raj Kumar. She states that it is incorrect that Raj Kumar solemnized second marriage with her consent. She further states that it is incorrect that as Raj Kumar was a driver he was not having sufficient income and thus she was not living with him. She further states that it is incorrect that there is no complaint on record against Raj Kumar given by her. She states that if Raj Kumar comes to take her she is now not ready to go with him. She states that it is incorrect that she is giving a false statement. She further states that it is incorrect that she has abandoned Raj Kumar due to which he has married for second time. 14. P.W.-4 Lady Constable Smt. Reena states that on 18.01.2017 she transcribed a GD No. 38 at 20.30 hours at the Police Station Tronica City after Constable Kamal Kumar transcribed the computerised chik first information report. The copy of the GD was filed by her which is marked as Exb: Ka-3 to the records. 15. P.W.-5 Dr. Mahesh Kumar Tomar conducted the postmortem examination on the body of the deceased Smt. Pooja. The details of the postmortem examination have already been stated above and thus are not being mentioned herein as being repetitive. He proves the said postmortem examination report which is Exb: Ka-4 to the records. 16. P.W.-6 Neeraj Kumar Dwivedi, Naib Tehsildar states that he was posted as Naib Tehsildar, Tehsil Loni. On the directions of the S.D.M. concerned he reached the place of occurrence and on his directions the inquest on the body of the deceased was conducted. He proves the inquest which is Exb: Ka-5 to the records. Further along with the inquest the requisite papers were prepared which were proved by him as Exb: Ka-6 to Exb: Ka-9 to the records. 17. P.W.-7 S.I. Gajendra Singh is the Investigating Officer of the matter. He states that on 18.01.2017 he was posted as S.S.I. at Police Station Tronica City. Further along with the inquest the requisite papers were prepared which were proved by him as Exb: Ka-6 to Exb: Ka-9 to the records. 17. P.W.-7 S.I. Gajendra Singh is the Investigating Officer of the matter. He states that on 18.01.2017 he was posted as S.S.I. at Police Station Tronica City. The present case was registered at the said police station in his presence on 18.01.2017 at 19:00 hours and its investigation was given to him. He prepared first C.D. He then interrogated the first informant Smt. Kanta and recorded her statement and on her pointing out spot inspection was done and a site plan was prepared. The said site plan has been proved by him as Exb: Ka-10 to the records. On the same day he interrogated witnesses Ganga Ram and Deshveer. He then in front of the witnesses took the plain earth and blood stained earth in his possession and sealed it and prepared a recovery memo of it which has been proved by him which is Exb: Ka-11 to the records. On the information of police informer on the same day at about 21:50 hours he arrested the accused Raj Kumar from Gate No.2 of Tronica City and prepared an arrest memo. The same has been filed by him, proved and marked as Exb: Ka-12 to the records. He then recorded the statement of the accused who gave his confessional statement to him. He then asked accused Raj Kumar about the blood stains on the lower which he was wearing on which he stated that the same got stained at the time of incident when his wife was bleeding from her head. He confessed his guilt and his lower was also taken into possession after which a recovery memo was prepared which has been filed by him, proved and marked as Exb: Ka-13 to the records. He in his statement told him that the gas cylinder with which he has assaulted his wife has been kept by him in his room which is a rented room. On his statement he was taken to the said place from where in front of the witnesses the said gas cylinder was recovered which was having a pipe fitted in it and was blood stained. The cylinder was taken into possession and a memo was prepared. The same has been filed and proved and marked as Exb: Ka-14 to the records. The cylinder was taken into possession and a memo was prepared. The same has been filed and proved and marked as Exb: Ka-14 to the records. He prepared a site plan regarding the recovery of the cylinder which has been filed and proved by him and proved and marked as Exb: Ka-15 to the records. Then on 27.01.2017 he prepared the second C.D. and recorded the statement of Brijendra the landlord. On 03.02.2017 he prepared the third C.D. and recorded the statement of other witnesses. He had sent the recovered plain earth, blood stained earth, the lower of the accused which was blood stained to the Forensic Science Lab on 20.01.2017 for analysis, the copy of the said letter has been filed by him, proved and marked as Exb: Ka-16 to the records. On 26.02.2017 in the fifth C.D. he recorded the statement of Raj Kumar. On 05.03.2017 in the sixth C.D. he mentioned that the articles in the room of the accused have been wrapped and kept by the landlord. On 17.03.2017 he was told about Asha the first wife of the accused by Rajesh Devi the sister of the accused on telephone. On 26.03.2017 he interrogated Smt. Asha and annexed her Voter I-card in the case-diary. On 29.03.2017 he copied the inquest in C.D. No.9, on 01.04.2017 in C.D. No.10, he closed investigation and prepared a Charge-sheet No.1 of 2017 and forwarded it. The said charge-sheet has been filed by him, proved and marked as Exb: Ka-17 to the records. He further states that the lower, blood stained mud and plain mud and the gas cylinder stained with blood were recovered on the pointing out of the accused. He identifies the same amongst which the regulator and pipe of the gas cylinder were marked as material Exb-1. One other packet was opened in which clothes and articles were found. The same were marked as material Exb-2. The clothes of the lady were marked as material Exb-3. The blood stained mud and plain mud were sealed in different plastic bags which were marked as material Exb-4. Some of the articles of the deceased were also taken into possession which were marked as material Exb-5 to 9. Another packet was opened which was also containing cylinder was packed which was having blood stains was marked as material Exb-10. The blood stained mud and plain mud were sealed in different plastic bags which were marked as material Exb-4. Some of the articles of the deceased were also taken into possession which were marked as material Exb-5 to 9. Another packet was opened which was also containing cylinder was packed which was having blood stains was marked as material Exb-10. A big packet was marked as Exb-11 and the same packets were marked as Exb-12. In his cross-examination he states that he has been the Investigating Officer of the matter since the very beginning. He was present at the police station at the time of lodging of the first information report. He interrogated the scribe of the first information report and the scribe of GD. The first informant was present at the police station when investigation was entrusted to him. She has not signed on the first information report. When he reached the place of occurrence for the first time at that time the accused was not in his custody. The accused was taken into custody by him on the day of the incident at 21:50 hours. He states that it is correct that the accused was not arrested from the place of occurrence. When he reached the place of occurrence the dead body of the deceased was lying there. He did not mention that there was an attempt to take the deceased to the hospital in an injured condition. It is incorrect to state that he intentionally in his investigation did not investigate the fact that the clothes of the informant were blood stained. It is correct that the application given for lodging of the report was not in the writing of the first informant. He had interrogated the scribe of the said application. He did not ask the scribe as to where the said application was written. It is incorrect that the said application was written in his presence and on his saying. He further states that after the arrest of the accused he was brought to the police station. At the police station he got the said fact recorded and then he was sent to the lock-up and lodged there. He was at the place of occurrence prior to the arrest of the accused. When he reached the place of occurrence for the first time he did not recover the article of assault being the cylinder. At the police station he got the said fact recorded and then he was sent to the lock-up and lodged there. He was at the place of occurrence prior to the arrest of the accused. When he reached the place of occurrence for the first time he did not recover the article of assault being the cylinder. After arrest of the accused from the place he was then on his saying brought to the room. The accused was arrested from Gate No.2 of Tronica City. He states that it is correct that people were present at the place from where the accused was arrested. He had tried to take public witnesses from the place of arrest to the place of recovery but no one was ready. The said fact has not been written by him in Exb: Ka-14. It is correct that he did not give any notice to the public witnesses present at the place of arrest but states that the said people without disclosing their names and address went away. He did not even write the body structure of the said persons in the memo. He further states that it is incorrect that he prepared the arrest memo at the police station and thus he did not mention the name and address of the witnesses in it. He did not call the forensic team at the place of occurrence. He did not send the recovered gas cylinder for examination of finger prints of the accused. He did not take finger prints of the accused separately. He did not investigate about the finger prints of the accused. He states that it is incorrect that he did not take finger prints of the accused as the cylinder did not contain it. He states that blood of the deceased was present at the place of occurrence. He states that it is incorrect that he had stained the cylinder with the blood stains of the deceased at the place of occurrence by himself. He states that he did not find any eye-witness of the incident. He further states that it is incorrect that he interrogated only interested witnesses. It is incorrect that as per the circumstances he managed false evidence against the accused and did not do fair investigation. It is correct that he did not find any case being lodged by the first wife of the accused regarding his second marriage. He further states that it is incorrect that he interrogated only interested witnesses. It is incorrect that as per the circumstances he managed false evidence against the accused and did not do fair investigation. It is correct that he did not find any case being lodged by the first wife of the accused regarding his second marriage. He then states that his first wife told him about the second marriage of the accused. In his investigation also he did not write about any case being lodged by the first wife of the accused regarding his second marriage. He was not given any document by the first wife of the accused during investigation. During investigation the fact that the father of the deceased is in jail in a case of murder was not disclosed. 18. P.W.-8 Constable 1961 Kamal Kumar transcribed the chik first information report of the present matter. He files the copy of the same which has been proved by him and marked as Exb: Ka-18 to the records. 19. As a court witness Dharamendra Tyagi C.W.-1 was examined. He states that Sanjay the father of the deceased is a driver working with him. The deceased lives near his house along with her husband on rent. He received an information on that day from Police Station Tronica City that the deceased has been murdered by a cylinder and information about it be given to her parents on which he informed her mother about it. The police told him that the murder has been done by her husband Raj Ku- mar by hitting her with a small cylinder which was told by him to the mother of the deceased. No cross-examination was done. 20. Heard Shri Dharmendra Kumar Chaubey, learned counsel for the appellant, Shri Manish Jaiswal, learned Panel Lawyer for the High Court Legal Services Committee, Shri A.N. Mulla and Shri Arun Kumar Pandey, learned A.G.As for the State and perused the records. 21. Learned counsel for the appellant-accused submitted that the accused has been falsely implicated in the present case. It is submitted that the present case is a case based on circumstantial evidence in which there is no eye-witness to the murder. It is submitted that the investigation in the present matter has failed to make a link in the chain of circumstances. It is submitted that the present case is a case based on circumstantial evidence in which there is no eye-witness to the murder. It is submitted that the investigation in the present matter has failed to make a link in the chain of circumstances. It is submitted that the circumstances relied by the prosecution to implicate the appellant in the present matter are three which are as under:- (i) Whether the accused has a motive to commit the aforesaid offence? (ii) Whether Section 495 I.P.C. is not made out? (iii) Whether the prosecution has been successful in proving its case under Section 302 I.P.C.? It is submitted that the accused-appellant is the husband of the deceased. He is a driver by profession. The deceased was found lying dead in her house. As per the evidence of C.W.-1 the information about the death of the deceased was given to Dharmendra Tyagi C.W.-1 by Police Station Tronica City for giving information to her parents on which he informed her mother about it. It is submitted that P.W.-1 Smt. Kanta the mother of the deceased and the first informant is a totally untruthful witness. She does not state about any information being given to her by Dharmendra Tyagi. She states of some matrimonial discord between the deceased and the accused-appellant and fights between them. It is submitted that the P.W.-1 states in her testimony that the accused Raj Kumar was apprehended by the police at the place of occurrence but the said fact is incorrect in as much as P.W.-7 Gajendra Singh the Investigating Officer of the matter has stated that the accused was arrested by him on the day of the incident at 21:50 hours from Gate No.2 Tronica City. The arrest memo of the said arrest has been proved by him and marked as Exb: Ka- 12 to the records. Thus the fact that the accused was arrested from the place of occurrence by the police as stated by P.W.-1 Smt. Kanta is totally false and incorrect. It is further submitted that Bijendra has been examined as P.W.-2 who is the landlord of the room where the present incident took place. He in his testimony states that after the said incident he received information about it and reached there where he found the wife of Raj Kumar lying dead and police being present there. It is further submitted that Bijendra has been examined as P.W.-2 who is the landlord of the room where the present incident took place. He in his testimony states that after the said incident he received information about it and reached there where he found the wife of Raj Kumar lying dead and police being present there. He does not state of the presence of the accused-appellant at the said place and also does not state that he was arrested by the police from the said place. It is submitted that thus the case of P.W.-1 Smt. Kanta that the accused was arrested by the police from the place of occurrence when the police reached there is totally incorrect and without any foundation. It is submitted that the accused in his statement under Section 313 Cr.P.C. states that at the time of incident he was at his job and was driving a vehicle in Delhi wherein he received information about the present incident and then he reached there after which he was arrested by the police. It is submitted that the same thus goes in consonance with the version given by P.W.-7 regarding the arrest of the accused-appellant at 21:50 hours from Gate No.2 Tronica City. It is further submitted that the appellant has no motive to commit the aforesaid offence as despite having a wife he married the deceased and was living with her. There is nothing substantial coming on record which would be the reason for his committing the offence. It is further submitted that in so far as the report of the Forensic Science Lab is concerned, although the lower of the appellant was found to contain blood which was further identified as human blood but its origin could not be deciphered. It is submitted that the same thus also does not conclusively establish that the blood was of the deceased. It is submitted that the same thus also does not conclusively establish that the blood was of the deceased. It is submitted that the room which was place of occurrence was a small room and it is alleged that a cylinder was recovered from the said room on the pointing out of the accused-appellant which is the prosecution case but the said fact also does not transpire confidence as the site plan which was prepared on 18.01.2017 on the pointing out of P.W. 1 Smt. Kanta as Exb:Ka 10 of the place of occurrence goes to show that the cylinder was recovered from point ‘B’ as marked in the site plan which is an open place within the room itself and could have been easily seen by anyone present there and as such the same was not concealed by anyone and it cannot be said that it was at a place which was in the special knowledge of the accused-appellant. It is submitted that thus even the recovery of the said alleged cylinder would not in any manner be incriminating. It is submitted that the present case is a case in which links in the chain of circumstances are thoroughly incomplete and there is no credible evidence against the accused-appellant and thus he be acquitted of the charges levelled against him and the judgement and order of the trial court be set-aside. 22. Per contra, learned counsel for the State vehemently opposed the appeal and argument of learned counsel for the accused-appellant and submitted that in the present matter the accused is the husband of the deceased. The cylinder which was the article of assault was recovered on his pointing out. The accused had given his statement to the police regarding assault by him on the deceased due to which she died. It is further submitted that the accused-appellant had a motive of concealing the factum of his first marriage with the informant and solemnized second marriage with the deceased and thus had committed an offence under Section 495 I.P.C. He assaulted the deceased with the cylinder which was recovered on his pointing out from the room which is the place of occurrence and thus he is involved in the matter. In so far as the fact regarding the arrest of the accused-appellant is concerned learned counsel for the State submits that the accused was arrested on the same day of the incident at 21:50 hours from Gate No.2 Tronica City by P.W.-7 S.I. Gajendra Singh regarding which a memo was prepared which is Exb: Ka 2 to the records. It is submitted that at the time of arrest of the accused he was wearing a lower which was found to be blood stained and the report of the serologist with regards to the lower states that it was found to be stained with human blood and thus the same is a link in the chain of circumstances. It is submitted that the appeal thus be dismissed. 23. After having heard learned counsels for the parties and perusing the records, it is evident that the present case is a case of circumstantial evidence. There is no eye-witness to the incident. The law with regards to appreciation of evidence in cases resting on circumstantial evidence is trite. 24. The case of Queen-Empress Vs. Hosh Nak : 1941 All LJ 416 is worth referring at this juncture which is a locus classicus on the issue of circumstantial evidence. This is a very old decision which was printed in the Allahabad Law Journal after sixty years of its decision on the recommendation of Rt. Hon'ble Sir Tej Bahadur Sapru. In the case of Hosh Nak (supra) , it has been held that to prove an offence by the circumstantial evidence four things are essential. They are: (1) : That the circumstance from which the conclusion is drawn be fully established. (2) : That all the facts should be consistent with the hypothesis. (3) : That the circumstances should be of a conclusive nature and tendency. (4) : That the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved. 25. Then in the case of Hanumant, son of Govind Nargundkar Vs. State of Madhya Pradesh : AIR 1952 SC 343 it has been held in para 10 by the Apex Court as under: "10. (4) : That the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved. 25. Then in the case of Hanumant, son of Govind Nargundkar Vs. State of Madhya Pradesh : AIR 1952 SC 343 it has been held in para 10 by the Apex Court as under: "10. .........It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused......." 26. Thereafter, in the case of Khasbaba Maruti Sholke Vs. The State of Maharashtra : (1973) 2 SCC 449 it was held by the Apex Court as under: "18. In order to base the conviction of an accused on circumstantial evidence the court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused. If, however, the circumstantial evidence admits of any other rational explanation, in such an event an element of doubt would creep in and the accused must necessarily have the benefit thereof. The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. If two inferences are possible from the circumstantial evidence, one pointing to the guilt of the accused, and the other, also plausible, that the commission of the crime was the act of some one else, the circumstantial evidence would not warrant the conviction of the accused..........." 27. The circumstantial evidence must be so complete as to exclude every hypothesis other than that of guilt of the accused. 28. In the celebrated case of Sharad Birdhichand Sarda Vs. State of Maharashtra : (1984) 4 SCC 116 the Apex Court has described five principles of circumstantial evidence as the pillars on circumstantial evidence. The five principles have been narrated in para 153 which is extracted herein : "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 ; para 19, p. 807] 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 and any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (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 to leave by reasonable grounds 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." Further in paragraph 154 of the said judgment it was held as under: "154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence". 29. The cardinal principle of criminal jurisprudence is that the prosecution has to stand on its own legs and it should prove its case beyond reasonable doubt. Doubt must be of a reasonable man and reasonableness of doubt must be commensurate with the nature of the offence to be investigated. 30. Before appreciating the evidence on record it is necessary to point out Section 27 of the Indian Evidence Act, 1872 which reads as under: "27: How much of information received from accused may be proved: Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved." 31. It is clear from the reading of Section 27 of the Evidence Act that this Section is based on doctrine of confirmation by subsequent facts. That doctrine is that where, in consequence of a confession otherwise inadmissible, search is made and facts are discovered, it is a guarantee that the confession made was true. But only that portion of the information can be proved which relates distinctly or strictly to the facts discovered. 32. In the case of Ram Kishan Mithan Lal Sharma Vs. That doctrine is that where, in consequence of a confession otherwise inadmissible, search is made and facts are discovered, it is a guarantee that the confession made was true. But only that portion of the information can be proved which relates distinctly or strictly to the facts discovered. 32. In the case of Ram Kishan Mithan Lal Sharma Vs. State of Bombay : AIR 1955 SC 104 , it is held by the Apex Court that Section 27 of the Evidence Act is an exception to the rules enacted in Sections 25 and 26 of the Act which provide that no confession made to a police officer shall be proved against a person accused of an offence and that no confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Where, however, any fact is discovered in consequence of information received from a person accused of any offence in the custody of a police officer, that part of the information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not. 33. In the case of Pulukari Kottaiah Vs. King Emperor : AIR 1947 PC 67 it has been held as follows : "the condition necessary to bring S. 27 into operation is that the discovery of a fact must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved". 34. The Section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence, but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. 35. In the case of Delhi Administration Vs. Balkrishan : AIR 1972 SC 3 the Apex Court has held that Section 27 of the Evidence Act is by way of a proviso to Sections 25 and 26 and a statement by way of confession made in police custody which distinctly relates to the fact discovered is admissible is evidence against the accused. 36. Balkrishan : AIR 1972 SC 3 the Apex Court has held that Section 27 of the Evidence Act is by way of a proviso to Sections 25 and 26 and a statement by way of confession made in police custody which distinctly relates to the fact discovered is admissible is evidence against the accused. 36. It cannot be lost sight of that Section 27 of the Evidence Act has frequently been misused by the police against an accused. Court should, therefore, be cautious and vigilant about the application of the above provision. The protection afforded by the provisions under Sections 25 and 26 of the Evidence Act is sought to be overcome by the police by taking resort to the provisions of Section 27 of the Evidence Act. The validity of Section 27 of the Evidence Act has been upheld by the Apex Court. 37. The recovery of the dead body on the pointing out of the appellant has been relied upon by the prosecution as one of the evidences against him. 38. No doubt, mere recovery in pursuance of Section 27 of the Evidence Act is not a clinching proof for holding an accused guilty. However, there is no doubt that it is good piece of evidence which may be relied upon as a link in the chain of circumstances in the present case for holding the guilt. 39. It is a well settled principle of law that a conviction cannot be founded on circumstantial evidence alone unless it cannot be explained on any hypothesis other than that of the guilt of the accused. 40. It is well settled that in a case which rests on circumstantial evidence, law postulates two fold requirements:- (i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. (ii) All the circumstances must be consistent pointing only towards the guilt of the accused. 41. It is well settled that in a case which rests on circumstantial evidence, law postulates two fold requirements:- (i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. (ii) All the circumstances must be consistent pointing only towards the guilt of the accused. 41. In the case of Sharad Birdhichand Sarda (supra) has enunciated the aforesaid principle as under:- "The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence". 42. It is well settled that in a case based on circumstantial evidence the Courts ought to have a conscientious approach and conviction ought to be recorded only in case in which all the links of the chain are complete and pointing to the guilt of the accused. Each link unless connected together form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused. 43. In cases where the evidence is purely circumstantial in nature, the circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and such circumstances must be consistent and must form a complete chain unerringly point to the guilt of the accused and the chain of circumstances must be established by the prosecution. Referring to several earlier decisions the Apex Court in the case of Geejaganda Somaiah v. State of Karnataka : (2007) 9 SCC 315 in para 15 held as follows:- "15. Referring to several earlier decisions the Apex Court in the case of Geejaganda Somaiah v. State of Karnataka : (2007) 9 SCC 315 in para 15 held as follows:- "15. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." The same principle has been reiterated in a catena of later judgments. 44. The law regarding evidence of last seen has been reiterated by the Apex Court in the case of ] which is quoted herein: "14. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and Kashmir, (2002) 8 SCC 45 , Rambraksh v/s State of Chhattisgarh, (2016) 12 SCC 251 , Anjan Kumar Sharma v/s State of Assam, (2017) (6) SCALE 556 following principle of law, in this regard, has been enunciated:- "The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases"." 45. The dispute in the present matter arises regarding the place and time of arrest of the accused-appellant. P.W.-1 Smt. Kanta Devi states that the accused was arrested by the police from the place of occurrence. P.W.-7 S.I. Gajendra Singh states that the accused was arrested by him on the day of incident at 21:50 hours from Gate No.2 Tronica City after which he prepared an arrest memo which was filed by him and marked as document no. Exb: Ka 2 to the records. Thus in so far as the arrest of the accused is concerned, there is credible evidence regarding his arrest on the day of incident at 21:50 hours from Gate No.2 Tronica City. In so far as the other evidence thus is concerned, since the arrest of the accused-appellant was not from the place of occurrence his presence at the place of occurrence has not been established by the prosecution through any cogent and reliable evidence. P.W.-2 Brijendra the landlord of the premises where the present incident took place reached the place of occurrence on hearing about it through a neighbour immediately thereafter. He does not state of the presence of the accused-appellant at that point of time at the place of occurrence. Thus the fact that the accused was present at the relevant time at the place of occurrence does not find lending support from any evidence or credible evidence whatsoever. The same finds more consistent with the version given by the accused in his statement under Section 313 Cr.P.C. that he was at his place of duty and on receiving information about the incident reached there. The recovery of the cylinder which is being relied by the prosecution also is not of any worth in as much as the room where the occurrence took place is the place from where the said cylinder is said to be recovered. The recovery of the cylinder which is being relied by the prosecution also is not of any worth in as much as the room where the occurrence took place is the place from where the said cylinder is said to be recovered. The same was not concealed, hidden or kept at a place which was in the special knowledge of the accused-appellant as could be seen from the statement of the officer allegedly affecting the said recovery and even the site plan of the incident. More so, the Investigating Officer P.W.-7 S.I. Gajendra Singh states that he prepared the site plan on the very first day of taking over the investigation of the matter on 18.01.2017. After reaching the place of occurrence, interrogating the first informant Smt. Kanta and preparing the site plan on her pointing out which was marked by him as Exb: Ka 10 to the records. In the said site plan itself and as is seen in its index at item no. 3 and marked at point ‘B’ a small gas cylinder was found to be kept in the room. Thus the said cylinder was found by him at the first instance itself even prior to the arrest of the accused-appellant on the same day and thus the version that the same was got recovered on the pointing of the accused-appellant is also not trustworthy at all. 46. In view of the discussions as above, the law on the subject, this Court comes to a conclusion that the links in the chain of circumstances are thoroughly incomplete and do not point out to the only conclusion that Raj Kumar the husband of the deceased is the accused in the present matter. The prosecution has failed to prove its case beyond reasonable doubt against the accused-appellant. 47. The accused-appellant is thus acquitted of the charges levelled against him. The appeal is allowed 48. The accused-appellant is in jail. He be released forthwith unless wanted in any other case whatsoever. 49. Copy of this judgement along with trial court records be communicated forthwith to the trial court concerned for compliance and necessary action.