JUDGMENT : DEEPAK KUMAR TIWARI, J. 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 7.12.2017 passed by the Additional Sessions Judge, District Gariyaband in No.37/2016 by which the appellant has been convicted and sentenced as under: Conviction Sentence Under Section 302 of the IPC RI for life with a fine of Rs.200/- in default of payment of fine to further undergo RI for 2 months. Under Section 201 of the IPC RI for 3 years with a fine of Rs.200/- in default of payment of fine to further undergo RI for 2 months. 2. Case of the prosecution, in brief, is that in the intervening night of 22 nd /23 rd April 2016, at about 11.30 pm, in the house of complainant Kishore Tarak, the appellant had thrown the deceased namely, Kachra Bai upside down from the roof top and thereafter in order to screen himself from the offence, the appellant has lodged a false report. Merg intimation (Ex.-P/1) was lodged by Kishore Tarak (PW-1), son of the deceased. Thereafter FIR was lodged vide Ex.-P/22. 3. Inquest was conducted after giving intimation to the witnesses vide Ex.-P/3. Nazri Naksha was prepared vide Ex.-P/5. Crime details form was prepared vide Ex.-P/24. Memorandum statement of the appellant was recorded vide Ex.-P/16 pursuant to which one golden locket and broken bangles of the deceased were seized vide Ex.-P/17. The dead body of the deceased was sent for postmortem examination, which was conducted by (PW- 6) Dr. Virendra Hiroundiya, who gave his report (Ex.-P/10) and opined that cause of death was severe head injury as also the injuries to vital organ of the body i.e. brain and the nature of death is accidental correlating with circumstantial evidence. 4. Statements of the witnesses were recorded. After completion of the investigation, charge sheet was filed. The appellant abjured his guilt and claimed to be tried. 5. In order to bring home the charges, the prosecution examined as many as 16 witnesses and exhibited 28 documents. The accused/ appellant in his statement recorded under Section 313 of the CrPC has stated that he has been falsely implicated. However, he has not adduced any defence witness. 6. The appellant abjured his guilt and claimed to be tried. 5. In order to bring home the charges, the prosecution examined as many as 16 witnesses and exhibited 28 documents. The accused/ appellant in his statement recorded under Section 313 of the CrPC has stated that he has been falsely implicated. However, he has not adduced any defence witness. 6. The trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned in para-1 of this judgment, against which this Appeal has been preferred by the appellant. 7. Learned counsel for the appellant would submit that the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 & 201 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. The incriminating circumstances relied upon by the trial Court are not proved beyond reasonable doubt and, therefore, the appellant deserves to be acquitted. 8. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the trial Court is absolutely justified in convicting the appellant for offence under Section 302 & 201 of the IPC. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection. Homicidal death 10. It is well settled law that in order to convict the accused under Section 302 of the IPC, death must be homicidal in nature and the onus to prove the same in criminal trial is upon the prosecution. Further, the accused will come under the mischief of this section only when the act done by him has caused death. 11. In the matter of Madho Singh Vs. State of Rajasthan , (2010) 15 SCC 588 it was observed that if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of the IPC. 12. Similarly, the Supreme Court, in the matter of Rupinder Singh Sandhu v. State of Punjab and others , (2018) 16 SCC 475 , has held that to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. 12. Similarly, the Supreme Court, in the matter of Rupinder Singh Sandhu v. State of Punjab and others , (2018) 16 SCC 475 , has held that to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. In the matter of M.B. Suresh v. State of Karnataka , (2014) 4 SCC 31 it has been held that for holding an accused guilty of murder, the prosecution has first to prove that it is a culpable homicide. Culpable homicide is defined under Section 299 of the Indian Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death. 13. Further, their Lordships of the Supreme Court in the matter of State of Orisha v. Banabihari Mohapatra and another , (2021) 15 SCC 268 has clearly observed in Para-13 as under: “ 13 . The post mortem Report of the deceased reveals that the cause of death was electric shock, suffered by the deceased within 24 hours from the time of examination. On post mortem examination, the Doctor found food particles including meat in the stomach of the deceased, and also detected smell of alcohol. The post mortem doctor opined that the deceased was intoxicated with alcohol and the death was either accidental, or homicidal, but not suicidal. There is no conclusive evidence that the death was homicidal. ” 14. The Supreme Court in the matter of Ananda Poojary v. State of Karnataka , (2015) 1 SCC 235 has further clearly held that in absence of clear certainty about the cause of death, the benefit of doubt has to be given to the accused person and observed in para-21 as under: “ 21 . In the aforesaid scenario, it cannot be said with certainty as to whether Dorathi died of smothering or being a heart patient, the actual cause of death was cardiac arrest. In such circumstances, when there was a possibility of both the causes of death, in the absence of clear certainty about the cause, we are of the opinion that High Court committed an error in not giving benefit of doubt to the accused person.” 15. Reverting to the facts of the present case, (PW-6) Dr. In such circumstances, when there was a possibility of both the causes of death, in the absence of clear certainty about the cause, we are of the opinion that High Court committed an error in not giving benefit of doubt to the accused person.” 15. Reverting to the facts of the present case, (PW-6) Dr. Virendra Hiroundiya, who has conducted postmortem vide Ex.-P/10, has found 13 injuries on the dead body of the deceased and the cause of death was opined to be severe head injury as also the injuries to vital organ of the body i.e. brain. It was further opined that the nature of death is accidental and depends upon circumstantial evidence. During investigation, when a query was put to the doctor vide Ex.-P/11, the doctor has opined that when any person is pushed or thrown by the other, such nature of injury could be caused. In such circumstances, the nature of death may be homicidal. 16. Now the next question would be whether the accused/appellant herein is the author of the crime in question. 17. In the present case, there is no direct evidence and the case of the prosecution rests on circumstantial evidence. The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been 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 must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-152 as under:- “152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahebrao Bobade Vs. 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 Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : AIR 1973 SC 2622 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. (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.” 18. In the present case, the trial Court only on the basis of assumption as also the confessional statement made by the appellant regarding motive at the Police Station, which finds mention in the statement of (PW-10) Shivratan Dhivar, uncle of the deceased and (PW-14) Dayalal Dhivar, cousin brother of the deceased and that earlier there was some dispute or differences between the husband and wife, as stated by (PW-9) Chamarin Bai, mother of the deceased; (PW-3) Ishwari, sister of the deceased, (PW-10) Shivratan Dhivar, uncle of the deceased; (PW-11) Jageshwar Sahu, son-in-law of the deceased & (PW-14) Dayalal Dhivar, cousin brother of the deceased, has convicted the appellant under Sections 302 & 201 of the IPC. From scanning of their evidence, it appears that after the marriage, the appellant after consuming liquor used to beat his wife i.e. the deceased, as a result of which the deceased returned to her parental house 4-5 months prior to the incident, and 2-4 days prior to the incident, on the request of the accused/appellant that he would not repeat any such act, the wife (deceased) had returned to her matrimonial home. On the date of the incident, there was birthday celebration of her grandson Vaibhav Dhivar. 19. From the aforesaid evidence, it is very difficult to draw an inference or conclusion that the accused/appellant is the person, who has thrown the deceased from the roof top. 20. The other set of evidence is the statements of (PW-1) Kishore Tarak, son of the appellant and the deceased and (PW-2) Rohini Tarak, wife of PW-1 daughter-in-law of the appellant and the deceased. (PW-5) Kiran Tarak has clearly stated that the appellant and the deceased both had consumed liquor on the occasion of birthday celebration. Further the son and daughter-in- law have stated that the relations between the husband and wife were cordial. It has also come in their evidence that on the date of the incident, at the roof of the house, the boundary work was incomplete and immediately after the incident, the appellant raised hue and cry and called his son by saying that the deceased has fallen from the roof. Thereafter, other members of the family reached. The appellant went to the house of (PW-11) Jageshwar Sahu to help him to take his wife to the hospital in his Activa. On the request of the appellant, (PW-11) Jageshwar Sahu brought the deceased and her husband (appellant herein) to the hospital. However, the deceased was declared brought dead. 21. The prosecution has also placed reliance on the memorandum statement of the appellant (Ex.-P/16) whereby golden locket was seized vide Ex.-P/17. (PW-11) Jageshwar Sahu has categorically stated that when the deceased was brought to the hospital, the said locket was removed from the body of the deceased and handed over to the family members. 22. Apart from above, it is noted that the incident has taken place on 22 nd April, 2016 whereas the FIR (Ex.-P/22) was lodged after merg inquiry on 1.5.2016 and during the said period, the cause of death was under cloud. 22. Apart from above, it is noted that the incident has taken place on 22 nd April, 2016 whereas the FIR (Ex.-P/22) was lodged after merg inquiry on 1.5.2016 and during the said period, the cause of death was under cloud. Some of the members from the parental side of the deceased raised suspicion that as the accused was in the habit of consuming liquor, he might have thrown/pushed the deceased from the roof top. 23. It is well settled that suspicion howsoever strong cannot take the place of proof. [See : Sharad Birdhichand Sarda (Supra)]. Furthermore, the prosecution has also not proved any such circumstance on the basis of which an inference could be drawn that the act has been done by the appellant in all human probability. 24. Further, sections 25 & 26 of the Evidence Act clearly stipulate that the confession made to the police officer is not admissible in evidence. However, section 27 is only an exception to the aforesaid sections and serves as a proviso to both these sections and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. 25. It is equally settled that when there are two views, then the view which is favourable to the accused should be taken. 26. On the basis of aforesaid discussion, we are of the considered opinion that the prosecution has miserably failed to prove that the death of the deceased was homicidal in nature, and the trial Court is absolutely unjustified in convicting the appellant under Sections 302 and 201 of the IPC and the appellant is entitled for acquittal by extending him benefit of doubt. 27. In the result, the Appeal is allowed. Conviction and sentences imposed on the appellant under Section 302 & 201 of the IPC are set aside and he is acquitted of the said charges by giving him benefit of doubt. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC.