Judgment : Per Rajani Dubey, Judge 1. This appeal under Section 374(2) of Cr.P.C. has been filed by the appellants against the judgment of conviction and order of sentence dated 08.08.2019 passed by learned Sessions Judge, Bemetara, District- Bemetara (C.G.) in Sessions Trial No.05/2019 whereby, the trial Court convicted the appellants and sentenced them as under:- Conviction Sentence U/s 302 of IPC Life imprisonment and fine of Rs.50/- in default of payment of fine amount, to undergo additional imprisonment for two months each to the appellants U/s 201 of IPC R.I. for 7 years and fine of Rs.50/- in default of payment of fine amount, to undergo additional imprisonment for two months each to the appellants 2. Case of the prosecution, is that at the instance of Tekram (P.W.-1), morgue (Ex. P/1) was recorded to the effect that on 09.10.2018, when he woke up around 4:00 A.M., he found that his sister namely Ku. Girja Yadav was not at home and the door was locked from outside. He raised alarm and upon hearing his voice, his neighbour Sangeeta Yadav (PW-10) opened the door. Thereafter, he searched his sister, but he could not find her and then he went for his classes. After classes, when he returned home, he did not find his sister Girja Yadav in home. While searching for her Narendra Rao told him that Girja Yadav was lying burnt in the courtyard of Pritam Yada. When Tekram Yadav (P.W.-1) went there, he found Girja Yadav lying burnt dead. He went to Bemetara police station and filed a morgue intimation. On 09.10.2018, Tekram Yadav (P.W.-1) informed his father Ramnarayan over phone about death of Girja Yadav. When Ramnarayan returned to the village with his wife, he came to know about the incident. The accused forcibly called Girja Yadav to their house on the night of 08.10.2018 and killed her and to hide her identity burnt her body and threw it in the courtyard. When Ramnarayan came and saw the body of Girja Yadav, the part below her waist was not burnt. At the place where the body was lying, there was dry grass and straw which was not burnt by the fire. Seeing the body, he suspected that the body might have been thrown in Pritam Yadav's courtyard after being burnt. Thereafter, the police recorded Dehati Nalishi and then FIR (Ex.P/25) was registered against unknown person. At the place where the body was lying, there was dry grass and straw which was not burnt by the fire. Seeing the body, he suspected that the body might have been thrown in Pritam Yadav's courtyard after being burnt. Thereafter, the police recorded Dehati Nalishi and then FIR (Ex.P/25) was registered against unknown person. During investigation, it was found that the appellants were lesbian and appellant Pyari Bai was insisting the deceased to accompany her, to which the appellant Kameshwari had a quarrel with the deceased. It is further case of the prosecution that, night intervening 08-09.10.2018, the deceased Ku. Girja Bai went to the house of the appellants, with stone and assaulted the appellant Kameshwari Bai and thereafter, both the appellants committed murder of deceased by throttling and in order to cause disappearance of the dead body and to hide its identity, the dead body was burnt in their house and thrown in the nearby courtyard. In furtherance of investigation, body was sent for post mortem, samples were collected for DNA examination, same were sent for FSL. Spot map was prepared. Statements of the witnesses were recorded. After completion of usual investigation, charge-sheet was filed against the appellants before the learned trial Court. Learned trial Court framed the charges under Sections 302 and 201 of IPC, to which appellants abjured their guilt and claimed to be tried. 3. So as to hold the accused/appellants guilty, the prosecution examined as many as 19 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, they did not adduce any evidence in their defence. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 08.08.2019 finding evidence adduced by the prosecution trustworthy, convicted and sentenced them as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellants submits that the impugned judgment & order dated 08.08.2019 is illegal, erroneous and contrary to law and same is liable to be quashed. The learned trial Court has failed to appreciate the material available on record in its correct prospective. The learned trial Court has passed the impugned judgment only on the basis of conjuncture and surmises. The learned trial Court has failed to appreciate the material available on record in its correct prospective. The learned trial Court has passed the impugned judgment only on the basis of conjuncture and surmises. The learned trial Court has failed to appreciate that the prosecution has failed to prove the case against the appellants, beyond all reasonable doubt and therefore the conviction of the appellants is liable to be set-aside. Learned trial Court has failed to appreciate that there is no eye witness to the incident and the case is based on circumstantial evidence and therefore, the prosecution is required to prove the complete chain, which the prosecution could not; and therefore the impugned judgment is illegal. The learned trial Court has failed to appreciate that as per the prosecution case, the deceased herself was aggressor, who went in the mid-night, to the house of the appellants armed with big stone and assaulted the appellant- Kameshwari and therefore, the appellants cannot be convicted for commission of offence of murder. He further submits that the learned trial Court has failed to appreciate that the prosecution has medically examined the appellant- Kameshwari, and the injuries were found on her head and therefore, the case of the prosecution itself is doubtful. The learned trial Court has failed to appreciate that, as per the version of Tekram Yadav (P.W.-1), when he woke up, he found that the door was locked from outside, and this goes to show, that, in-fact, the deceased had gone to kill the appellants or one of them, and it appears that, in the exercise of their right of private defense, the deceased died. The learned trial Court has failed to appreciate that the prosecution could not prove that the deceased was murdered by the appellants. The learned trial Court has failed to appreciate that DNA report was not properly obtained as the seizure itself could not be proved in accordance with law. The learned trial Court has failed to appreciate that the prosecution could not prove that the seized articles were kept in safe custody and same were properly sealed etc. The learned trial Court has failed to appreciate that the autopsy surgeon did not state the mode of death and hence, the prosecution has failed to prove that the death of the deceased was homicidal in nature. The learned trial Court has failed to appreciate that the autopsy surgeon did not state the mode of death and hence, the prosecution has failed to prove that the death of the deceased was homicidal in nature. The learned trial Court has failed to appreciate that there are material contradictions and omissions in the statements of the witnesses and therefore the benefit must have been given to the appellants. For all these reasons, the impugned judgment is liable to be set aside. Reliance has been placed on the judgment of Honb’le Supreme Court in matter of Vinobhai Vs. State of Kerala ; 2025 SCC OnLine SC 178, Randeep Singh @ Rana & Ors. Vs. State of Haryana; 2024 SCC OnLine SC 3383 and this Court’s judgment dated 09.02.2024 passed in CRA No. 1453 of 2016 in the matter of Hetram Nayak and others Vs. State of Chhattisgarh . 6. On the other hand, learned counsel for the State supporting the impugned judgment submits that the evidence presented at trial, including witness testimonies, medical reports, and other relevant documents, adequately proved the appellants' guilt beyond reasonable doubt. The learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellants which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material placed on record including the impugned judgment. 8. The first question, we have to consider that as to whether the death of the deceased Girja Yadav was homicidal or not? 9. Tekram Yadav (P.W.-1) stated that the deceased Girja Yadav was his sister. He and his sister went to sleep after having dinner the night before the incident. When he woke up at about 04:30 a.m., he saw that his sister Girja Yadav was not there, the door of the house was closed. When it did not open, he called and Sangeeta Yadav from the neighbourhood came and opened the door. he looked for his sister in the vicinity, but could not find her. Thereafter, he called her over mobile, but she did not respond. After searching, he went for coaching. When he returned from there at 07-07:30 a.m., his sister had not come. he looked for his sister in the vicinity, but could not find her. Thereafter, he called her over mobile, but she did not respond. After searching, he went for coaching. When he returned from there at 07-07:30 a.m., his sister had not come. Thereafter, he was informed by Narendra Rao and Pritam Yadav that the body of his sister is lying burnt in the courtyard of Pritam Yadav. Subsequently, he had informed about his sister's death at Police Station- Bemetara. Morgue intimation was registered vide Ex.P/1 and he admitted his signature on it from A to A part. Dehati Nalishi was registered as Ex.P/2 and he admitted his signature on it from B to B part. 10. Inspector- Rajesh Mishra (P.W.-18) stated that upon receiving information about the murder of Girija Yadav in Village- Tendubhatha on 09.10.2018, he went there with his staff. As per the information given by Tekram Yadav, he had recorded Dehati Nalishi (Ex.P/2). After recording the Dehati Nalishi, he had given notice vide Ex.P/5 to the witnesses for inquest memo and had prepared the inquest memo vide Ex.P/6 in front of the witnesses. Thereafter, he filled an application form vide Ex.P/18 for postmortem of the body of the deceased and sent it to the district hospital. 11. Dr. Anamika Minj (P.W.-19) conducted the postmortem of the deceased and found following injuries which are as under:- There was stiffness in the body of the deceased. Her teeth and tongue were visible. The wrists of both hands were half open. No blisters were found on the body of the deceased. The entire face, head, both hands, chest, back, thighs, legs of the deceased were burnt. The hair on the face and head of the deceased were burnt. The eye ball of the deceased had shrunk due to burning. The skin of the deceased appeared to be coming out. The entire skin had turned black due to burning. The inside of the skin of the deceased appeared red. The deceased was about 70 to 85%burnt. She opined that the cause of death of the deceased was asphyxia due to ante-mortem burn injury which appeared to have occurred within 12 to 24 hours of the postmortem and gave her report vide Ex.P/18 in this regard. 12. It is clear from postmortem report that cause of death of the deceased was asphyxia due to ante-mortem burn injury. Dr. 12. It is clear from postmortem report that cause of death of the deceased was asphyxia due to ante-mortem burn injury. Dr. Anamika Minj (P.W.-19) did not state anything about the nature of death whether it is homicidal or suicidal. Upon perusal of cross- examination of Dr. Anamika Minj (P.W.-19), it is also clear that no question was asked either by prosecution or by defence that whether death was homicidal or suicidal but it is clear that the deceased was died due to asphyxia because of ante-mortem burn injury. 13. Now we have to consider other evidence to decide that as to whether the death of the deceased was homicidal or not? 14. As per morgue intimation (Ex.P/1), Tekram (P.W.-1) was informed that his sister was lying burnt dead in the courtyard of Pritam Yadav and when he went there, he saw that his sister was lying burnt on the ground. The dry grass around her body was not burnt. He suspected that his sister was murdered by some unknown person and with the intention of hiding the evidence, her body was burnt and thrown in Pritam Yadav's courtyard. 16. Looking to the postmortem report, inquest memo (Ex.P/6) and statement of Tekram Yadav (P.W.-1), it is clear that the deceased died due to burn injuries but where her dead body was found, there was no burn marks even the dry grass around the dead body was not burnt. Thus, it is clear that the deceased was murdered and her body was burnt and thrown there. Thus, looking to the statements of witnesses, post mortem report and other circumstances, it is clear that the death of the deceased was homicidal in nature and, therefore, learned trial Court rightly held that the death of the deceased was homicidal in nature. 17. It is clear that there is no direct evidence in this case and case is based on circumstantial evidence. In para 8 of the impugned judgment, the learned trial Court also considered incriminating circumstances which have been shown by the prosecution against the accused persons, which are as under:- 18. Now we will consider the aforesaid incriminating circumstances culled out by the learned trial Court. 19. In para 1 of his examination-in-chief, Tekram Yadav (P.W.-1), brother of the deceased stated that his sister Girja Yadav who died by burning her to death by the appellants. Now we will consider the aforesaid incriminating circumstances culled out by the learned trial Court. 19. In para 1 of his examination-in-chief, Tekram Yadav (P.W.-1), brother of the deceased stated that his sister Girja Yadav who died by burning her to death by the appellants. But he did not state anything against the appellants or even tell a single word about relationship between Kameshwari Yadav and Pyari Kaushal. 20. Ramnarayan Yadav (P.W.-2) who is father of the deceased and brother of accused Kameshwari Yadav, states that at the time of incident, he and his wife was at Poona and his son Tekram Yadav (P.W.-1) and his daughter (deceased) was in Village Tendubhatha. He further states that his sister Kameshwari and Pyari Causal lived in the village leaving their husbands and both of them lived together. In para 2, he states that Pyari Kaushal and Kameshwari were of bad character and they had left their husbands and were living together. Prosecution declared him hostile and cross- examined him but he denied all suggestions of the prosecution and denied A to A part of his police statement (Ex.P/8). 21. In para 1 of examination-in chief, Bindu Yadav (P.W.-3), mother of the prosecutrix states that the accused Kameshwari Yadav is her sister-in-law. She further states that her sister-in-law Kameshwari Yadav and Pyari Kaushal lived in the village leaving their husbands and both of them lived together. In para 2, she further states that the character of both Pyari Kaushal and Kameshwari Yadav was bad and they also asked Girja to get involved in bad activity but she refused the same. 22. Ravindra Verma (P.W.-4) states that Kameshwari Yadav and Pyari Kaushal lived like husband and wife and had left their husbands. Their character was not good. 23. Bharat Kaushal (P.W.-8) also states that Pyari Kaushal and Kameshwari lived together in the village. They both left their husbands and in-laws and lived in Tendubhatha like friends. 24. Ku. Sangeeta Yadav (P.W.-10) states that she heard in the village that Kameshwari and Pyari Kaushal had left their in-laws’ house and were living together as husband and wife in the village. 25. Preetam Yadav (P.W.-11) states that Kameshwari and Pyari Kaushal lived together leaving their in-laws. 26. 24. Ku. Sangeeta Yadav (P.W.-10) states that she heard in the village that Kameshwari and Pyari Kaushal had left their in-laws’ house and were living together as husband and wife in the village. 25. Preetam Yadav (P.W.-11) states that Kameshwari and Pyari Kaushal lived together leaving their in-laws. 26. Thus, all the witnesses are affirmed on this fact that both the accused persons Kameshwari and Pyari Kaushal had left their husbands and living together but none of the witnesses stated that there was homosexual act between them, they only stated that the character of both the accused are bad. The act between both the accused was homosexual was stated only by the accused Kameshwari and Pyari Kaushal in their memorandum statement vide Ex.P/12 and P/13. 27. As per memorandum statement of Kameshwari which was recorded as vide Ex.P/12, one stone was recovered vide Ex.P/14 and as per memorandum statement of Pyari Kaushal which was recorded as (Ex.P/13), lantern of kerosene oil and matchbox were seized vide Ex.P/15. 28. Witnesses of memorandum & recovery memo, Bharat Verma (P.W.-5) and Lobhan Verma (P.W.-6) admitted their signature on memorandum and seizure. 29. Bharat Verma (P.W.-5) states that both the accused confessed before the police that they had killed Girja Yadav and after committing her murder they burnt the body and threw it in the courtyard of Preetam Yadav. 30. As per seizure memo (Ex.P/15), a lantern of kerosene oil was seized and the same was sent for chemical examination and as per FSL report (Ex.P/30), kerosene oil was found in Article C which is a bottle containing a blue coloured oily liquid and the same was seized vide Ex.P/15. 31. Dr. Anamika Minj (P.W.-19) examined the accused Kameshwari on 10.10.2018 and found one deep abrasion with contusion on the right side of her forehead and opined that the injury was caused by hard and blunt object. 32. It is trite law that memorandum of an accused can only be admissible in respect of recovery part, confession of the accused cannot be proved under Section 27 of Evidence Act. But in this case, as per Ex.P/14 and P/15, one stone, one kerosene bottle and one matchbox were seized and the said items were of the house of both the appellants. But in this case, as per Ex.P/14 and P/15, one stone, one kerosene bottle and one matchbox were seized and the said items were of the house of both the appellants. The said stone is not connected with the murder of Girja Yadav and as per memorandum statement of the accused, deceased Girja Yadav assaulted the accused Kameshwari Yadav with this stone. The prosecution has failed to prove this fact that as to how the seizure of the said articles is connected with the murder of the deceased Girja Yadav and only lantern of kerosene oil is related to burn injury sustained by the deceased. 33. Prosecution also prepared spot map and seized some hair from house of the accused. As per seizure memo (Ex.P/8), the said hair were sent for DNA examination. 34. Inspector- Rajesh Mishra (P.W.-18) stated that he recovered some human hair from the house of the accused- Kameshwari Yadav and prepared seizure memo vide Ex.P/8. The said human hair and other seized articles were sent for chemical examination and DNA test. As per DNA report (Ex. P/31), Article A is hair seized from the spot and Article F is hair of the deceased. Upon DNA examination, both articles got matched. 35. In the matter of Hetram Nayak (supra), this Court observed in paras 25, 26, 27 and 28 as under:- 25. In the recent past, in the matter of Manoj & Ors. v. State of Madhya Pradesh, their Lordships of the Supreme Court while highlighting the need to ensure quality testing and lesser possibility of tempering of evidence has elaborately discussed the evidentiary value of the DNA report and laid down the law with regard to DNA Profiling Methodology, Statistical Analysis and Collection & Preservation of Evidence and held in paragraphs151 to 158 as under:- "151. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata 5 [DNA Profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007)] was relied upon. The relevant extracts of the article are reproduced below: "Deoxyribonucleic acid (DNA) is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with Intercalated proteins. The relevant extracts of the article are reproduced below: "Deoxyribonucleic acid (DNA) is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chromosomes along with Intercalated proteins. Twenty-three pairs of chromosomes present In each nucleated cells and an individual Inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respectively. At the time of each cell division, chromosomes replicate and one set goes to each daughter cell. All Information about Internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases: Adenine (A), Guanine (G), Thymine (T) and Cytosine (C) along with sugar- phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have exactly same DNA but it varies from individual to Individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA) found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also being in large number of copies than nuclear DNA, it can be used in the analysis of degraded samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1% of DNA (about 3 million bases) differs from one person to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples. ………………………………………… DNA Profiling Methodology DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be established. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs) Analysis of a set of 15 STRs employing Automated DNA Sequencer gives a DNA Profile unique to an Individual (except monozygotic twin). Similarly, STRS present on Y chromosome (Y- STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azool lpermic or vasectomized" male. Cases In which DNA had undergone 40 DNA profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007) environmental stress and biochemical degradation, min ISTRs can be used for over routine STR because of shorter amplicon size. DNA Profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available In the laboratory. The analysis principles, however, remain similar, which include: 1. isolation, purification & quantitation of DNA 2. amplification of selected genetic markers 3. visualising the fragments and genotyping 4. statistical analysis & interpretation. In mt DNA analysis, variations Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples: Statistical Analysis Atypical DNA case involves comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison: 1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched. 2) Exclusion: If the comparison of profiles shows differences, it can only be explained by samples the two originating from different sources. 3) Inconclusive: The data does not support a conclusion of the three possible outcomes, only the "match between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population. In case of paternity/maternity testing. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA profile in a population. In case of paternity/maternity testing. exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken Into consideration while reporting a match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to support the match. Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, It will legal and scientific requirements for admissibility in. a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence can contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling. 152. In an earlier judgment, R v. Dohoney & Adams, (1997) 1 Crl App Rep 369 (CA), the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials: (1) the scientist should adduce-the evidence of the DNA 41 1997 (1) Crl App Rep 369 comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based. 153. The Law Commission of India in its 185 th Report on Review of the Indian Evidence Act, 2003, observed as follows: "DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. 153. The Law Commission of India in its 185 th Report on Review of the Indian Evidence Act, 2003, observed as follows: "DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match', then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the 'random occurrence ratio' (Phipson 1999). Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law." 154. In Dharam Deo Yadav v. State of UP, (2014) 5 SCC 509 this Court discussed the reliability of DNA evidence in a criminal trial, and held as follows: 36. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and pyrimidines. DNA usually can be obtained cytosine from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory." 42 185th Report, on Review of the Indian Evidence Act, 2003 43 (2015) 5 SCC 509. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory." 42 185th Report, on Review of the Indian Evidence Act, 2003 43 (2015) 5 SCC 509. 155. The US Supreme Court, in District Attorney's Office for the Third Judicial District v Osborne (supra) dealt with a post conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that "Modern DNA testing can provide powerful new evidence unlike anything known before.Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others." 156. Several decisions of this Court Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh, (2009) 14 SCC 607 ; Santosh Kumar Singh v. State; (2010) 9 SCC 747 ; State of Tamil Nadu v. John David, (2011) 5 SCC 509 ; Krishan Kumar Malik v. State of Haryana; (2011) 7 SCC 130 ; Surendra Koli v. State of Uttar Pradesh, (2011) 4 SCC 80 ; Sandeep v. State of Uttar Pradesh, (2012) 6 SCC 107 ; Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353 ; and Mukesh (supra) have dealt with the increasing importance of DNA evidence. This court has also emphasized the need for assuring quality control, about the samples, as well as the technique for testing in Anil v. State of Maharashtra, (2014) 4 SCC 69 : "18. Deoxyribonucleic acid, or DNA, is a molecule genetic that the encodes information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Deoxyribonucleic acid, or DNA, is a molecule genetic that the encodes information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory." 157. This court, in one of its recent decisions-Pattu Rajan v. The State of Tamil Nadu, considered the value and weight to be attached to a DNA report: “52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party." 158. This court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the corroborate. This court reliance, highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case." 26. Very recently, in the matter of Rahul v. State of Delhi, Ministry of Home Affairs & Anr., their Lordships of the Supreme Court (three-Judges Bench), while considering the evidentiary value of DNA evidence and taking note of decision of Manoj (supra) held that the DNA evidence is in the nature of opinion evidence like any other opinion evidence, its probative value varies from case to case and held in Para-38 as under:- "38. It is true that PW 23 Dr B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ext. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the investigating officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During the period, they remained in the malkhana of the police station, Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out, Neither the trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion." 27. In view of aforesaid legal position qua DNA profiling report and its probative value, the prosecution is duty bound to prove the guilt of the accused beyond reasonable doubt and burden is always upon the prosecution to lead evidence by taking all the precautions for proving DNA evidence. It is necessary for the prosecution as the entire process of collecting the blood samples for DNA profiling is controlled and done by the human agencies i.e. doctors and the investigating officers. Every step to preserve the sample from manipulation/contamination has to be proved, as absence of those steps may cause prejudice to the accused. The prosecution is required to put all the positive evidence regarding the fact that all the precautions have been taken by the doctors as well as by the police officials regarding the preservation of the DNA samples. As held in the matter of Pattu Rajan v. State of Tamil Nadu 7 [ (2019)4 SCC 771 ] ", DNA report is "an opinion" and its probative value varies from case to case. The science of DNA is at a developing stage, as such, it will be risky to solely rely upon the DNA report in absence of any substantive piece of evidence. 28. The science of DNA is at a developing stage, as such, it will be risky to solely rely upon the DNA report in absence of any substantive piece of evidence. 28. In the matter of Santa Singh v. State of Punjab 8 [AIR 1956 SC 526] , the Supreme Court has held that if there exists a suspicious delay in sending the sealed parcel to the expert, the result is vitiated.” 36. Very recently in the matter of Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra passed in Criminal Appeal Nos. 1636-1637 of 2023 decided on 19.05.2023 , their Lordships of the Supreme Court have considered the question as to whether DNA evidence can form the solitary basis in determining the guilt of the accused and held in para 66 as under:- “66. In the present case, even though, the DNA evidence by way of a report was present, its reliability is not infallible, especially not so in light of the fact that the uncompromised nature of such evidence cannot be established, and other that cogent evidence as can be seen from our discussion above, is absent almost in its entirety.” 37. In light of above, in the present case also, it is clear from record that seizure memo (Ex.P/8) was prepared on 09.10.2018, doctor preserved hair of the deceased on 09.10.2018 and the said hair was sent for DNA examination on 30.11.2018 which was deposited at FSL, Raipur on 01.12.2018. So, it is clear that there was delay of total 53 days which is more than one and a half month in sending the said samples for DNA profiling test. During the period, they remained in the malkhana of the police station, Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out therefore, on the basis of said DNA profiling test, it would be unsafe to convict the appellants for the offence in question. 38. During the period, they remained in the malkhana of the police station, Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out therefore, on the basis of said DNA profiling test, it would be unsafe to convict the appellants for the offence in question. 38. Also, in this case, there is no eye witness and no direct evidence regarding motive and only on the basis of memorandum of both the accused, the learned trial Court found that both the accused are living as husband and wife and also found that the deceased Girja Yadav assaulted the accused Kameshwari Yadav with stone and thereafter, the accused Kameshwari strangulated her by hand and they burnt her by pouring kerosene oil over her body and threw it in the courtyard of Preetam Yadav. However, the said story has been written in memorandum of both the accused but as per Section 27 of Evidence Act, whole memorandum statement is not admissible only recovery part is admissible but in this case, as per prosecution, recovery of stone is related to injury of accused- Kameshwari which was caused by the deceased with stone and other recovery of lantern of kerosene oil and matchbox is of no use in the favour of the prosecution to prove the guilt of the appellants beyond reasonable doubt because the said kerosene oil was being used for lantern by the accused and still some oil was there in the said bottle. 39. Further the mother of the deceased, Bindu Yadav (P.W.-3) stated that both the accused used to compel the deceased to get involved in bad/illicit activity. However, in her cross-examination, she stated that when her daughter told that both the accused compelled her to get involved in bad/illicit activity, they did not lodged any report to the police station in this regard. 40. Prosecution proved only malkhana register vide Ex.P/20 in this regard that hair were deposited in the Malkhana on 09.10.2018 but as to on what time it was found out, it was not told by the prosecution. Therefore, the prosecution has failed to establish that proper procedure which are required to be followed for DNA profiling test. 40. Prosecution proved only malkhana register vide Ex.P/20 in this regard that hair were deposited in the Malkhana on 09.10.2018 but as to on what time it was found out, it was not told by the prosecution. Therefore, the prosecution has failed to establish that proper procedure which are required to be followed for DNA profiling test. Therefore, the DNA profiling test report comes under the cloud of suspicion and in absence of any corroborative piece on record, it would be unsafe to convict the appellants relying upon the said DNA profiling test report and the trial Court did not appreciate all these incriminating circumstances properly and only on the ground that both the accused persons had failed to explain any circumstances against them, convicted the appellants under Section 302 and 201 of IPC. Therefore, the findings so recorded by the learned trial Court are not in accordance with criminal jurisprudence. It is clear that the dead body was not found in the house of appellants and it was found in open place. So, they are not supposed to give any explanation in this regard. 41. The findings recorded by the learned trial Court are not in accordance with facts and circumstances of the case and not in accordance with law as well as guidelines issued by Hon’ble Supreme Court. Thus, it is clear that the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellants and, therefore, the benefit of doubt definitely goes in favour of the appellants. In these circumstances, conviction of the appellants under Sections 302 and 201 of IPC is legally not sustainable. 42. In the result, the appeal is allowed. The impugned judgment is hereby set aside and consequently, the appellants are acquitted of the charges under Sections 302 and 201 of IPC. The appellants are reported to be in jail, therefore, they be set free forthwith if not required in any other case. 43. 42. In the result, the appeal is allowed. The impugned judgment is hereby set aside and consequently, the appellants are acquitted of the charges under Sections 302 and 201 of IPC. The appellants are reported to be in jail, therefore, they be set free forthwith if not required in any other case. 43. Keeping in view the provisions of Section 437-A of CrPC (481 of the B.N.S.S.), each of the appellant is directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure for a sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 44. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.