JUDGMENT : URMILA JOSHI PHALKE, J. 1. This Appeal is preferred by the accused challenging the judgment and order of conviction passed by the Adhoc Additional Sessions Judge-1, Wardha in Sessions Trial No.106/2005 dated 08.01.2008 by which the accused is convicted of the offence punishable under Section 302 of the Indian Penal Code (for short “IPC”) and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.500/- in default to suffer further rigorous imprisonment for 15 days. 2. Brief facts of the prosecution case emerges from the Police papers and recorded evidence are as under: (i) The Informant Yashodabai Joshi Khandare the mother of deceased Kalu lodged report at Police Station Sevagram, Wardha that deceased was residing alongwith the present accused since last 4 to 5 years at Aadarsh Nagar Sevagram. They both were residing as husband and wife. The accused is involved in manufacturing illicit liquor and several cases are registered against her. Deceased Kalu was on visiting terms at the house of his mother and disclosed to her that the accused is of bad character and there were differences between them. On 07.03.2005, the Informant met deceased Kalu in General Hospital, Wardha at about 10.00 am. Deceased Kalu disclosed to her that he beat the accused, and therefore, he is apprehending danger at the hands of the accused. Thereafter, he left the place. After some time as deceased has apprehended endanger to his life at the hands of the accused, she alongwith her daughter visited the house of the accused and found Kalu was lying in an injured condition in the courtyard of the house of the accused. He has sustained the bleeding injuries. Bricks and stones were lying there. One iron Datar and iron pipe stained with blood were also found in the house of the accused. There was quarrel between the deceased and accused and the accused assaulted the deceased by means of iron Datar, iron pipe, bricks and stones and caused his death. On the basis of the said report Police have registered the crime against the accused. (ii) After registration of the crime and during investigation the Investigating Officer has visited the alleged spot of incident, drawn the spot panchnama and seized the blood stained articles including blood stained soil and simple soil. The alleged weapons are also recovered. The accused was arrested and her clothes were also seized. (ii) After registration of the crime and during investigation the Investigating Officer has visited the alleged spot of incident, drawn the spot panchnama and seized the blood stained articles including blood stained soil and simple soil. The alleged weapons are also recovered. The accused was arrested and her clothes were also seized. The blood samples of the deceased and accused were also collected. The relevant statements of witnesses were also recorded. Seized articles were also sent to CA and after completion of the investigation, the charge-sheet was submitted against the accused. After filing of the charge-sheet, the case was committed to the Court of Sessions. The learned 4 th Adhoc Addl. Sessions Judge, Wardha framed Charge vide Exh.17. (iii) In support of the prosecution case, the prosecution has examined in all 10 witnesses, as follows: (iv) Besides the oral evidence, the prosecution placed reliance on Report-Exh. 25, FIR-Exh. 26, Spot panchnama- Exh. 28, Seizure memo as to the articles collected from the spot Exh. 29, Inquest panchnama Exh. 30, Arrest memo Exh. 40, Arrest panchnama Exh. 41, Seizure memo as to the clothes of the accused Exh. 42, Requisitions to Medical Officer Exhs. 65 & 67, Medical certificate of accused Exh. 62, Query to Medical Officer Exh. 68, Crime chart of the accused Exh. 69, Requisition to CA Exh. 70, CA Reports Exhs. 72 to 74 and Post mortem Report Exh. 82. (v) After recording the evidence, the incriminating evidence is put to the accused for seeking his explanation by recording his statement under Section 313 of the Code of Criminal Procedure. The defence of the accused is of a total denial and false implication. In support of her defence she has examined DW-1/Adv. Purshottam Gopalrao Dhabarde Exh. 90. (vi) After appreciating the evidence, the Trial Court held that the death of the deceased is homicidal one and accused has caused the death of the deceased and held her guilty and sentenced her as aforestated. 3. Being aggrieved and dissatisfied with the same, the present Appeal is preferred by the accused on the ground that, the entire case is based on circumstantial evidence. The law regarding circumstantial evidence is well settled. The prosecution has not established the entire circumstances and unerringly points out towards the guilt of the accused. 4. 3. Being aggrieved and dissatisfied with the same, the present Appeal is preferred by the accused on the ground that, the entire case is based on circumstantial evidence. The law regarding circumstantial evidence is well settled. The prosecution has not established the entire circumstances and unerringly points out towards the guilt of the accused. 4. Learned Counsel for the accused vehemently submitted that, the foundational fact that the deceased and accused were residing together itself is not proved by the prosecution, and therefore, the evidence adduced by the prosecution itself is not sufficient to warrant the conviction against the accused. In view of that, the judgment of the Trial Court is erroneous and liable to be quashed and set aside. He has taken us through the entire evidence and submitted that, the dead body of the deceased was found in the courtyard of the house of the accused. That circumstance is taken into consideration by the Trial Court to convict the accused. There are no other circumstances supporting the prosecution’s case. In view of that, the judgment deserves to be quashed and set aside. 5. Per contra, learned APP submitted that, the dead body of the deceased was found in the house of the accused. The blood stained weapons are recovered from the house of the accused. Deceased was residing alongwith the accused. There is no explanation from the accused that the blood stains are found on the articles collected from the spot as well as on her sari. These circumstances are sufficient to held her guilty, hence the Appeal is devoid of merits and liable to be rejected. 6. After hearing both the sides and on appreciation of the evidence there is no dispute that the death of the deceased is homicidal one. The prosecution has examined PW-10/Dr. Swati Patil who has conducted the postmortem on the dead body of the deceased. On external examination she found following injuries on her person: 1. Lacerated wound over left leg below knee vertical 8 X 3 inch into bone deep. Caused by hard and blunt object. 2. Multiple lacerated wound over face right cheek, left cheek, over nose and forehead. Approximately 2 X 1 X 1 c.m. 3. Swelling over right leg below knee. Swelling present, query fracture tibia. 4. Abrasion over left hand over left eye. Caused by hard and blunt object. 2. Multiple lacerated wound over face right cheek, left cheek, over nose and forehead. Approximately 2 X 1 X 1 c.m. 3. Swelling over right leg below knee. Swelling present, query fracture tibia. 4. Abrasion over left hand over left eye. Over left eye brow 2 X 1 X 1 c.m. All injuries were caused by hard and blunt object. 7. As per the medical evidence all injuries are ante-mortem. Cause of death is due to head injury. Postmortem report is at Exh. 82. Her evidence further discloses that, on 09.03.2005 she received requisition Exh. 68 from Police for examination of weapons. She examined iron pipe, iron Datar, two stones and seven bricks and opined that, injury shown in column No.17 of PM report may caused by these weapons. The query report is at Exh. 83. The cross-examination of this Medical Officer shows that, injury Nos. 1 and 2 shown in column No.17 of PM report are possible due to fall on the stone by consuming liquor. On the basis of this admission, the attempt was made to show that the injuries sustained by the deceased are possible by accidentally. 8. Considering the medical evidence and inquest panchnama, which sufficiently shows that the death of the deceased is caused due to head injury, and therefore, sufficient material is on record to show that the death of the deceased is homicidal one. 9. Now, only issue which is to be examined that whether the accused is perpetrator of the crime. It is not in dispute that, there is no direct evidence in the nature of the eyewitness but the entire case of the prosecution is rested on the circumstantial evidence. In such a case, the prosecution is under obligation to establish the chain of circumstances so complete that it unerringly points out the guilt of the accused and does not lead any scope for any inference consistent with the innocence of the accused. The circumstance relied upon by he prosecution must be incompatible with the hypothesis consistent with the innocence of the accused and should negate all possibilities of the innocence of the accused. 10. Admittedly, the entire case of the prosecution is based on the circumstantial evidence. The circumstance relied upon by he prosecution must be incompatible with the hypothesis consistent with the innocence of the accused and should negate all possibilities of the innocence of the accused. 10. Admittedly, the entire case of the prosecution is based on the circumstantial evidence. The law is settled regarding the circumstantial evidence which is as under: “(i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. (ii) Though circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused. (iii) 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 none else. (iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of a 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.” 11. Accordingly, to Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in case of circumstantial evidence which are as under : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum of 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, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” 12. In the light of the above legal settled position we have to see whether the prosecution succeeded in proving the chain of circumstances to prove the guilt of the accused. The circumstances on which the prosecution relied upon can be summed up as follows : (i) Accused and deceased were staying together. In the light of the above legal settled position we have to see whether the prosecution succeeded in proving the chain of circumstances to prove the guilt of the accused. The circumstances on which the prosecution relied upon can be summed up as follows : (i) Accused and deceased were staying together. (ii) On the day of incident accused met PW-1/Yashodabai and PW-3/Kavita and disclosed the apprehension at the hands of the accused. (iii) Dead body of the accused was found in the courtyard of the house of the accused. (iv) Blood stained weapons are recovered from the house of the accused. (v) Blood stained clothes of the accused were also recovered at the instance of the accused. (vi) The injuries found on the person of the accused. 13. To prove the above circumstances the prosecution has placed reliance on the evidence of PW-1/Yashodabai Khandare. As per her evidence, the deceased was residing alongwith the accused at Sevagram. On the day of incident the accused met her at the General Hospital, Wardha and disclosed her that he beat accused and he is having apprehension that the accused would kill him. As accused has shown the apprehension, she went to the house of accused and saw the deceased was lying in the house of the accused in an injured condition, and therefore, she lodged the report. She also witnessed stones and bricks having blood stains and iron pipe at the spot. 14. The evidence of PW-3/Kavita Sheikh is on the similar line, who deposed that her mother disclosed that the deceased has apprehended endanger at the hands of the accused. Therefore, they went to the house of accused and saw deceased was lying in an injured condition. The weapons were also seen there. Her cross-examination shows that, at about 12.30 noon she reached the house of deceased Kalu. It further shows that, the deceased did not marry with the accused. 15. PW-7/Kiran Londhe is the brother of the deceased. Whose evidence also shows that deceased Kalu met him at 12.00 noon near the gate of General Hospital, Wardha. His mother was with him at the relevant time and deceased has disclosed about his apprehension that the accused will commit his murder. 15. PW-7/Kiran Londhe is the brother of the deceased. Whose evidence also shows that deceased Kalu met him at 12.00 noon near the gate of General Hospital, Wardha. His mother was with him at the relevant time and deceased has disclosed about his apprehension that the accused will commit his murder. His cross-examination shows that, the deceased was present near the Hospital gate till 01.30 p.m. and thereafter PW-7/Kiran alongwith his mother returned back and deceased also returned back from the gate of the Hospital. The cross-examination further shows that, several criminal cases were registered against the deceased. Deceased was in habit of consuming liquor and he was also externed from District Wardha. 16. On appreciation of the evidence it reveals that, PW-1/Yashodabai nowhere stated about the presence of PW-7/Kiran Londhe. PW-3/Kavita Sheikh also not stated about the presence of PW-7/Kiran Londhe. As per the evidence of PW-3/Kavita Sheikh she alongwith her mother reached at the house of the accused at about 12.30 noon, whereas as per the evidence of PW-7/Kiran Londhe, the deceased was alongwith him till 01.30 p.m. As per the recitals of the FIR, the alleged incident has taken place on 07.03.2005 at about 12.00 noon. 17. Besides the oral evidence of these witnesses prosecution has placed reliance on the evidence of PW-2/Deepak Bhongade who acted as a panch on the spot panchnama as well as inquest panchnama. As per his evidence on 07.03.2005, he was called as a panch by the Police. Police recorded the spot panchnama in his presence and obtained his signature. Police have also seized two stones, one iron Datar, iron pipe, simple soil and blood stained soil from the spot. Police also prepared the inquest panchnama. His cross-examination shows that, one Niranjan Kundu is residing towards the eastern side of the spot, Manabai Kowe is residing towards the western side of the spot, Ashok Kamble is residing towards the northern side of the spot and one Tanbaji Thool is residing towards the southern side of the spot. Admittedly, PW-2/Deepak Bhongade has not stated where the dead body was lying and regarding the injuries on the person of the deceased. 18. PW-4/Sanjay Dewarkar is another witness who has obtained the photographs. His evidence shows that, he has obtained the photographs of the spot and the weapons. 19. Admittedly, PW-2/Deepak Bhongade has not stated where the dead body was lying and regarding the injuries on the person of the deceased. 18. PW-4/Sanjay Dewarkar is another witness who has obtained the photographs. His evidence shows that, he has obtained the photographs of the spot and the weapons. 19. PW-5/Pramod Panbude is the another panch witness, who acted as a panch on the arrest panchnama of the accused and seizure of the clothes. His cross-examination shows that, the accused was nabbed at her house in afternoon time on 07.03.2005 itself. 20. PW-6/Vijaya Bhagat though shown as an eyewitness but she has not supported the prosecution case. 21. PW-9/Rajendra Shette is the Investigating Officer who has narrated about the investigation carried out by him. His cross-examination shows that, he did not come to know about the incident prior lodging of the report. After registration of the crime at 03.10 p.m., he visited the spot within 15 minutes and prepared the inquest panchnama. He admits that, there were tumors to the testicles of the deceased and one of the tumor was burst. He also admits that, the address of the accused shown in the charge-sheet as C/o Pramila Sumersingh Thakur at the house of Shri Dhabarde Adv. at Laxminagar Wardha. He further admits that, he is not aware whether deceased Kalu was rarely residing at the house of the accused at Sevagram Adarshnagar. He also admits that, the accused was not legally wedded wife of deceased Kalu. 22. Besides the medical evidence, the evidence of Investigating Officer shows that through the requisition dated 23.03.2005 he has forwarded the articles seized during investigation for Chemical Analysis. As per the CA report (Exh. 74), Exh.1-blood detected on two stones, Exh.2-iron rod, Exh.4-soil, Exh.6-saree, Exh.8-cut shirt, Exh.9-full pant, Exh.10- cut banian and Exh.11-cut panty is human. It further shows that, blood stains on articles two stones, iron rod, soil, cut shirt, cut banian and cut panty are stained with blood group ‘A’ which is of deceased. Thus, this evidence shows that, the blood stains found on the saree of the accused of which blood group is not detected. 23. Evidence of PW-8/Dr. Anil Sahu Medical Officer shows that, she was referred for medical examination and the following injuries are found on her person: 1. Contusion over below the left eye, defused in nature. 3 cm X 2 cm. 2. 23. Evidence of PW-8/Dr. Anil Sahu Medical Officer shows that, she was referred for medical examination and the following injuries are found on her person: 1. Contusion over below the left eye, defused in nature. 3 cm X 2 cm. 2. Contusion on right arm, defused in nature. 3. Contusion over buttock 1 inch X ½ inch. 4. Just below injury no.3 of size ½ X ½ inch over buttock. 24. The above injuries are caused by hard and blunt object, age of injuries were 8 to 24 hours and medical certificate is at Exh.62. His cross-examination shows that, all the injuries mentioned in the MLC report are possible due to fall on rough surface. 25. Thus, on appreciation of evidence admittedly there is no direct evidence. The first and foremost circumstance on which prosecution placed reliance on is evidence of PW-2 who acted as a panch on the spot panchnama. 26. Learned APP invited our attention towards the recitals of the spot panchnama and submitted that, the recitals of the panchnama shows the dead body of the deceased was inside the house of the accused. The house of the accused is at Adarsh Nagar Near Hutatma Smarak on Wardha to Sevagram road. Admittedly, these contents are not narrated by PW-2/Deepak Bhongade panch witness. It is well settled that, the substantial evidence is the evidence of witness before the Court. The contents of the panchnama are to be narrated by the panch witness. 27. It is observed by the Hon’ble Apex Court in the case of Murli & Ors. Vs. State of Rajasthan, MANU/SC/1470/2009 that the contents of panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the Panchas or the concerned person in the witness box. Thus, the contents of the panchnama if not narrated by the witness the contents of the panchnama which is not a substantive evidence cannot be taken into consideration. The primary intention behind the panchnama is to guard against possible tricks and unfair dealings on the part of the officers who are executing the work of search and also to ensure that anything incriminating which may be said to have been found in the premises was really found there and was not introduced or planted by the officers of the search party, and therefore, presence of independent person is required. 28. It is observed by the Hon'ble Apex Court in Rajesh & Ors. Vs. The State of Madhya Pradesh, AIR 2023 SC 4759 , that witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words as to how these objects were discovered i.e., at whose instance and how, Ergo, no lawful validity attaches to these proceedings recorded by the Police in the context of collection of all this evidence. 29. In the light of the above well settled principle laid down by the Hon’ble Apex Court, the evidence of PW-2/Deepak Bhongade nowhere discloses that the spot of incident was the house of accused. It also nowhere reflects that, the dead body of the deceased was found inside the house of the accused. His evidence is only to the extent that, he is only the attestor to the said panchnama. Even the evidence of Investigating Officer as far as the contents of the panchnama are concerned, is silent and nowhere discloses that the alleged spot of incident was the house of the accused. The prosecution has also adduced the evidence of PW-5/Pramod Panbude who acted as a panch on the arrest panchnama. His evidence also nowhere shows that the accused was residing at Adarsh Nagar Near Hutatma Smarak Sevagram at the time of incident. The recitals of arrest panchnama also shows that, at the time of arrest the address of the accused is shown as C/o Pramila Sumersingh Thakur at the house of Shri Purushottam Dhabarde Advocate, Laxminagar Wardha. So the arrest panchnama is also not disclosing that at the relevant time the accused was residing at Adarsh Nagar i.e. the spot of incident. The Investigating Officer has not collected any document to show that the accused was residing in the said house. Thus, the contention of the prosecution that the incriminating circumstance that the death of the deceased is caused in the house of accused itself is not established by the prosecution by leading cogent and reliable evidence. 30. Though prosecution has adduced the evidence of PW-1/Yashodabai, PW-3/Kavita and PW-7/Kiran the brother of the deceased, their evidence is not consistent on the aspect when the deceased went to the house. In fact, the presence of the deceased in General Hospital, Wardha itself is not established. 30. Though prosecution has adduced the evidence of PW-1/Yashodabai, PW-3/Kavita and PW-7/Kiran the brother of the deceased, their evidence is not consistent on the aspect when the deceased went to the house. In fact, the presence of the deceased in General Hospital, Wardha itself is not established. At the same time, the presence of PW-1/Yashodabai and PW-7/Kiran in the said Hospital is also not established. As per the evidence of PW-1/Yashodabai, she had been to the General Hospital, Wardha at 10.00 a.m. and she met the deceased and deceased disclosed her and left the place. As per the evidence of PW-3/Kavita, her mother had been to the house at about 11.00 to 11.30 a.m., and disclosed that deceased Kalu met her and his life is in danger, therefore she alongwith her mother went to the house of the accused. Her cross-examination shows that, she reached at the house of accused at 12.30 noon, whereas the evidence of PW-7/Kiran shows that, the deceased was in the Hospital upto 01.30 p.m. As per the recitals of the FIR, the incident occurred at about 12.00 noon. Thus, the evidence of these witnesses is not consistent and not reliable. 31. The cross-examination of PW-2/Deepak and PW-9/Rajendra shows that, there are several houses near the spot of incident but none of the witness is examined by the prosecution. The presence of the accused at the relevant time in the house itself is not narrated by any of the witnesses. As observed earlier, there is no document on record to show that the accused was residing with the deceased at Adarsh Nagar, on the contrary the arrest panchnama itself shows different address of residence of the accused. Thus, the fact that the accused was residing at Adarsh Nagar where the alleged incident has taken place, her presence in the house at the time of incident and there is any motive for the accused to cause the death of the deceased itself is not established by the prosecution. 32. Now, only circumstance remains is the presence of the blood stains on the saree of the accused. Admittedly, the injury certificate which is proved by PW-8/Dr. Anil Sahu shows that there were injuries on the person of the accused. So possibility of having blood stains of her own blood cannot be ruled out as she had also sustained the injuries. 33. Admittedly, the injury certificate which is proved by PW-8/Dr. Anil Sahu shows that there were injuries on the person of the accused. So possibility of having blood stains of her own blood cannot be ruled out as she had also sustained the injuries. 33. Learned APP vehemently submitted that, it is the accused who has to explain the circumstances in which the death of the deceased is caused. It is cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts, especially when the case is based on circumstantial evidence, the burden is on the prosecution to establish the circumstances which unerringly points out the guilt of the accused. 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. In all cases, whether the direct or circumstantial evidence the best evidence must be adduced which is in the nature of case admits. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with sentence “of course is possible”, but not in the least probable, the case is proved beyond reasonable doubt. 34. In the present case, the prosecution has adduced the evidence in the nature of circumstances but the circumstance that the accused and deceased were living together at the spot of incident in Adarsh Nagar at the house of the accused itself is not established. The other circumstance that, at the relevant time the accused was present in the house is also not established. The dead body of the deceased was found inside the house is also not established as well as the motive for the accused to commit such offence is also not established. Thus, the evidence adduced is not cogent, consistent and sufficient to establish the guilt of the accused beyond reasonable doubt. 35. The prosecution can take assistance of Section 106 of the Indian Evidence Act after prosecution proves the circumstances showing the involvement of the accused. If the involvement of the accused established by the prosecution on the basis of the evidence then burden would shift on the accused. 36. 35. The prosecution can take assistance of Section 106 of the Indian Evidence Act after prosecution proves the circumstances showing the involvement of the accused. If the involvement of the accused established by the prosecution on the basis of the evidence then burden would shift on the accused. 36. The learned Judge of the Trial Court has not considered these legal aspects and only on the basis of surmises and conjectures the accused is held guilty. Therefore, the judgment and order of sentence deserves to be quashed and set aside. 37. In the light of the above discussion, we proceed to pass the following order: ORDER: i. The Appeal is allowed. ii. The Judgment and order of sentence convicting the accused of the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.500/- in default to suffer further rigorous imprisonment for 15 days, is hereby quashed and set aside. iii. Her bail bonds stands discharged. iv. The accused be released forthwith if not required in any other crime. v. R&P be sent to the Trial Court. 38. Pending application/s, if any, shall stand disposed of accordingly.