Judgment : (Sanjay K. Agrawal, J.) This criminal appeal preferred by two appellants/accused under Section 374(2) of Cr.P.C . is directed against the impugned judgment of conviction and order of sentence dated 21.09.2015, passed in Sessions Case No.13 of 2015 (State of Chhattisgarh v. Ratan Sahu and another) by the Additional Sessions Judge, Pratappur, District Surajpur (CG), whereby they have been convicted and sentenced as under: Conviction Sentence U/s. 302/34 of IPC Imprisonment for life with fine of Rs.5,000/- each and, in default of payment of fine, additional rigorous imprisonment for 01 year each. U/s. 201/34 of IPC Rigorous imprisonment for 05 years with fine of Rs.1,000/- each and, in default of payment of fine, additional rigorous imprisonment for 01 year each. [Both the sentences are directed to run concurrently] (2) The case of the prosecution, in a nutshell, is that in the intervening night of 21/22.02.2015, between 07:00 PM to 11 AM, at 11, Dandkarwan, which comes within the ambit of Police Station Chandaura, District Surajpur (CG), the two appellants herein, firstly shared common intention of killing their brother, namely, Krishna Prasad (herein after referred to as the “deceased”) and, in furtherance thereof, strangulated his neck by means of scarf and, further, in order to screen themselves from the legal punishment, threw the dead-body of the deceased in the pit behind their house and, thereby, said to have committed the aforesaid offences. (3) It is further case of the prosecution that initially the accused-appellant No.02 reported the matter to the police to the effect that on 21.02.2015 at about 09:00 AM his elder brother (deceased) had gone to the market but did not return back, on the basis of which, missing person report was registered and wheels of investigation started running. However, during the course of investigation, the dead-body of the deceased was found in a pit behind his house and, thereafter, it was revealed that the accused-appellants have committed murder of the deceased and threw the dead-body in the pit behind their house. On the basis of which, merg intimation (Ex.P/26) and FIR (Ex.P/20 was registered against the appellants. Spot map and panchnama were also prepared vide Ex.P/14 & Ex.P/05 respectively. Summons under Section 175 of CrPC were sent vide Ex.P/06 and inquest proceedings were also conducted vide Ex.P/07. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/04), conducted by Dr. Spot map and panchnama were also prepared vide Ex.P/14 & Ex.P/05 respectively. Summons under Section 175 of CrPC were sent vide Ex.P/06 and inquest proceedings were also conducted vide Ex.P/07. The dead-body of the deceased was sent for postmortem examination and in the postmortem report (Ex.P/04), conducted by Dr. A.K. Vishwakarma (PW-07) and Dr. Rajesh Shresth (PW-08), it has been opined that the cause of death of the deceased asphyxia due to strangulation and nature of death is homicidal. (4) Thereafter, the accused-appellants were arrested vide Ex.P/16 & Ex.P/17 respectively. Statement of star witness, namely, Ramsevak (PW-11) under Section 164 of CrPC was recorded vide Ex.P/09. One scarf wrapped over the neck of the dead-body of the deceased was seized vide Ex.P/05. The said seized scarf alongwith blod-stained soil and plaine soil seized from the spot were sent for chemical analysis and, as per FSL report (though not exhibited, but annexed at Page No.47-50 of the paper- book), it has been opined that stains of blood were found only on the said scarf, which was seized from the dead-body of the deceased. Further, in the present case, sniffer dog proceeding has also been conducted and, as per sniffer dog proceeding panchnama (Ex.P/03), it has been mentioned that after smelling the scarf, which was found wrapped over the neck of the dead- body of the deceased, the sniffer dog went directly inside the house of the appellant No.01, where after entering into the room of the appellant No.01, the sniffer dog went into another room, situated behind the said room, stopped therein and started smelling saliva and blood present on the floor. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated. (5) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 23 documents, whereas the appellants/accused in support of their defence, have neither examined any witness nor exhibited any document. (5) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 23 documents, whereas the appellants/accused in support of their defence, have neither examined any witness nor exhibited any document. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offences under Sections 302/34 & 201/34 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Neeraj Metha, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Sections 302/34 & 201/34 of IPC , as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that the conviction of the appellants herein is basically premised on: (i) statement of Ramsevak (PW-11) recorded under Section 164 of CrPC vide Ex.P/09, wherein he allegedly stated that he assisted the two appellants herein in moving the dead-body of the deceased from their house to the pit, situated behind the back of their house and (ii) sniffer dog proceeding panchnama (Ex.P/03). However, a perusal of statement of Ramsevak (PW-11) recorded before the trial Court would show that he turned hostile and his said version of helping the accused/appellants in the crime is completely missing, therefore, his statement recorded under Section 164 of CrPC cannot be relied upon and, further, sniffer dog proceeding is a weak piece of evidence and, in absence of any further corroboration, the same cannot be relied upon. As such, in view of aforesaid illegalities and perversity in the impugned judgment, the present appeal deserves to be allowed and the appellants are liable to be acquitted of the said charge on the basis of benefit of doubt. (8) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offences under Sections 302/34 & 201/34 of IPC and, therefore, the present appeal deserves to be dismissed. In view of statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offences under Sections 302/34 & 201/34 of IPC and, therefore, the present appeal deserves to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/04), wherein it has been opined that cause of death of deceased is asphyxia due to strangulation and nature of death is homicidal, which is duly proved by the statements of Dr. AK Vishwkarma (PW-07) and Dr. Rajesh Shresth (PW-08). Accordingly, taking into consideration the postmortem report (Ex.P/04) and the statements of Dr. AK Vishwkarma (PW- 07) and Dr. Rajesh Shresth (PW-08), who have conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (11) Now, the next question would be whether the accused- appellants herein are the author of the crime or not, which the learned trial Court has recorded in affirmative by relying upon following incriminating circumstances as culled out in the impugned judgment, which reads as under: “ 1. Statement of Ramsewak (PW-11) recorded under Section 164 of CrPC vide Ex.P/09. 2. Sniffer dog proceeding panchnama vide Ex.P/03.” (12) Since, the present case is based on above-stated circumstantial evidence, therefore, it is profitable here to note following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra , (1984) 4 SCC 116 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under: “153.…. (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. (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 & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” (13) A careful perusal of the above-stated incriminating circumstances would show that the learned trial Court after holding the death of the deceased to be homicidal in nature, firstly relied upon the statement of Ramsevak (PW-11) recorded under Section 164 of CrPC vide Ex.P/09, wherein he has stated that the two appellant herein firstly committed murder of the deceased by strangulation and, thereafter, with his (Ramsewak) aid and assistance removed the dead-body of the deceased from their house to the pit, situated behind their house. However, Ramsevak (PW-11) while recording his statement before the learned trial Court has not supported the case of the prosecution at all and, indeed, turned hostile. On leading question being asked, he has clearly stated that due to pressure exerted by the police he has given statement before the Magistrate (i.e. statement recorded under Section 164 of CrPC). However, Ramsevak (PW-11) while recording his statement before the learned trial Court has not supported the case of the prosecution at all and, indeed, turned hostile. On leading question being asked, he has clearly stated that due to pressure exerted by the police he has given statement before the Magistrate (i.e. statement recorded under Section 164 of CrPC). (14) In this regard, the decision of the Supreme Court in the matter of Somasundaram @ Somu v. State represented by the Deputy Commissioner of Police, (2020) 7 SCC 722 may be noticed herein profitably, wherein it has clearly been held that in absence of any other evidence available on record it would be impressible to convict the accused only on the basis of statement of the witness recorded under Section 164 of CrPC and observed in Para-82 to 84 as under: “ 82. As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may only advert to the following judgment i.e. in George v. State of Kerala [George v. State of Kerala, (1998) 4 SCC 605 : 1998 SCC (Cri) 1232 : AIR 1998 SC 1376 ] : (SCC p. 624, para 36) “36. … In making the above and similar comments the trial court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 CrPC, cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him.” 83. What is the object of recording the statement, ordinarily of witnesses under Section 164 has been expounded by this Court in R. Shaji v. State of Kerala [R. Shaji v. State of Kerala, (2013) 14 SCC 266 : (2014) 4 SCC (Cri) 185] : (SCC p. 279, paras 27-28) “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa [Jogendra Nahak v. State of Orissa, (2000) 1 SCC 272 : 2000 SCC (Cri) 210] and CCE v. Duncan Agro Industries Ltd. [CCE v. Duncan Agro Industries Ltd., (2000) 7 SCC 53 : 2000 SCC (Cri) 1275] ) 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC, can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross- examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.” 84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164.” (15) As such, in view of above-quoted principle of law, it is vividly clear that in absence of any other legally admissible evidence to corroborate, the sole evidence in the shape of statement of Ramsevak (PW-11) recorded under Section 164 of CrPC vide Ex.P/09 cannot form basis of conviction of the appellants, more particularly, when Ramsevak (PW-11) himself turned hostile in his statement recorded before the Court and specifically stated during cross-examination that due to pressure exerted by the police he has given statement before the Magistrate (i.e. statement recorded under Section 164 of CrPC). We hereby hold accordingly. We hereby hold accordingly. (16) The next piece of incriminating circumstance which the learned trial Court has found proved is the sniffer dog proceeding panchnama (Ex.P/03), wherein it has been mentioned that after smelling the scarf, which was found wrapped over the neck of the dead-body of the deceased, the sniffer dog went directly inside the house of the appellant No.01, where after entering into the room of the appellant No.01, the sniffer dog went into another room, situated behind the said room, stopped therein and started smelling saliva and blood present on the floor. However, the evidentiary value of the sniffer dog proceeding has been considered by their Lordships of the Supreme Court in the matter of Gade Lakshmi Mangraju @ Ramesh v. State of Andhra Pradesh , [ AIR 2001 SC 2677 ] , wherein it has been held that identification through sniffer dog is a weak piece of evidence and observed in Para-15 to 17 as under: “ 15. In Abdul Razak Murtaza Dafadar vs. State of Maharashtra { AIR 1970 SC 283 } a three Judge Bench of this Court declined to express any concluded opinion or to lay down any general rule with regard to tracker dog's evidence or its admissibility against the accused, as it was not necessary to do so on the fact situation. However, their Lordships made the following observations on the usefulness or otherwise of such evidence: "It was argued that the tracker dog's evidence could be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But dogs are intelligent animals with many thought process similar to the thought processes of human beings and wherever you have you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight." 16. For these reasons we are of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight." 16. In Surinder Pal Jain vs. Delhi Administration {1993 Supple.(3) SCC 681} a two Judge Bench expressed the opinion that "the pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime, so save their Lordships sidelined that item of evidence from consideration.". 17. We are of the view that criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals.” (17) As such, since the evidentiary value of sniffer dog proceeding is very weak due to the inherent frailties and chances of error in such type of proceeding cannot be ruled out, the learned trial Court is absolutely unjustified in relying upon sniffer dog proceeding panchnama (Ex.P/03) in order to hold the appellants herein guilty for the offence in question. We hereby hold accordingly. (18) In view of foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellants for offence under Sections 302/34 & 201/34 of IPC being the authors of the crime in question in light of above- mentioned incriminating circumstances and same is liable to be set aside. (19) Accordingly, the conviction and sentence of the appellants for offence punishable under Sections 302/34 & 201/34 of IPC , as imposed upon them by the learned trial Court, are hereby set aside. They are acquitted of the said charges on the basis of benefit of doubt. Since the appellants are reported to be on bail, they need not to surrender, however, their bails bonds shall remain in force for a further period of six months, in view of provisions contained under Section 437-A of CrPC. They are acquitted of the said charges on the basis of benefit of doubt. Since the appellants are reported to be on bail, they need not to surrender, however, their bails bonds shall remain in force for a further period of six months, in view of provisions contained under Section 437-A of CrPC. (20) This criminal appeal is allowed (21) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any.