MEHTA, J.—The prosecution story, in brief, is that on November 29, 1970, Zahurddin Chippe, resident of Khinvsar, lodged a report with the Police Station, Bhawanda to the effect that during the night of 28-11-1970, at about 11.30 accused Sbahbuddin broke open a window of his house. He entered his house and inflicted a Gupti blow to the abdomen of his wife Mst. Hazran. Mst. Hazran raised shrieks, which attracted neighbours as also the informent. Mst. Hazran was first taken to Khinvsar Dispensary and then to Nagaur Hospital. On her way to Nagaur the breathed her last. On receipt of the first information report filed by Zahurddin, a case was registered against Shahbuddin under sec. 302, I.P.C. The police took over investigation and after its conclusion it presented a charge-sheet to the court of Munsiff-Magistrate, Nagaur. Learned Munsiff-Magistrate conducted preliminary inquiry and submitted accused Shahbuddin to the court of Sessions Judge, Merta. The accused was indicted of the offence under sec. 302/457, I P.G. to which he pleased not guilty. The prosecution examined 15 witnesess in support of its case. In his statement, recorded under sec. 342, Cr. P. C., the accused denied the prosecution version. He pleaded alibi and stated that on November 28, 1970, he had gone to Jodhpur. He did not produce any evidence in his defence. Learned Session Judge, Merta, acquitted Shahbuddin of the crime under sec. 302, I. P. G. but convicted him under sec. 304 (1), I.P.C., and contenced him to suffer ten years rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of which to undergo further rigorous imprisonment for five months. 2. Dissatisfied by the above verdict, the accused has taken this appeal. The contention of learned counsel for the appellant is that in this case there is no direct proof, connecting the accused with the crime. The entire case hinges around the following three pieces of evidence :— (1) that some of the prosecution witnesses heard the cries of Mst. Hazran at the time of the actual occurrence that it was Shahbuddin, who had inflicted injuries to her ; (2) that some prosecution witnesses saw accused Shahbuddin going out of the residence of Mst. Hazran after the perpetration of the crime; and (3) that come prosecution witnesses have stated that Mst. Hazran made dying declaration wherein she had implicated the accused. 3. Hazran after the perpetration of the crime; and (3) that come prosecution witnesses have stated that Mst. Hazran made dying declaration wherein she had implicated the accused. 3. The above three pieces of evidence, learned counsel urges, have not been properly appreciated by the trial court and, therefore, the conviction of the appellant should be set; aside. Learned Deputy Government Advocate supports the judgment of the court below. 4. The post-mortem examination of the dead body of Mst. Hazran was conducted by P. W. 14 Dr. Krishana Dass of Khinvsar Dispensary on November 29, 1970, at 1-10 p.m. The following external injuries were found on her dead body .— 1. punctured wound on the left side of abdomen 5" above umbilicus and 6" below the left nipple - size 1" long 1/5" broad (wound of entry); 2. one punctured wound on the back left side 5" above the left iliac crest and 2" above from the left vertebral column. Size 1/2"X 1/5" (wound of exit). In the opinion of the Doctor injuries Nos. 1 and 2 were collectively sufficient to cause the death of the deceased in the ordinary course of nature. The duration of the injuries was not less than 12 hours. From the medical evidence there in no manner of daubt Mst. Hazran met with homicidal death. 5. The only question that survives for consideration is as to whether the prosecution has succeeded in proving that it was appellant Shahbuddin, who caused the two punctured wounds to Mst. Hazran. 6. To substantiate the above fact the prosecution has relied upon the evidence of P. W. 1 Noor Mohammed, P. W. 2 Jahurddin, P. W. 3 Hussain. P. W. 4 Ibrahim, P. W. 5 Lal Mohammed and P. W. 7 Sattar. 7. P. W. 1 Noor Mohammed has given statement before the trial court that he heard the shriaks of Mst. Hazran that Shahbuddin had inflicted Gupti injuries to her. On hearing the same he went out of his house and saw accused Shahbuddin going out of Mst. Hazrans residence with a Gupti in his hand. Soon after he went to Mst. Hazrans place, where she was crying that Shahbuddin had inflicted injuries to her. In the corss examination the witness has said that Chowk outside the house of Mst. Hazran was surrounded on all sides by four walls. The walls were upto the height of head. Hazrans residence with a Gupti in his hand. Soon after he went to Mst. Hazrans place, where she was crying that Shahbuddin had inflicted injuries to her. In the corss examination the witness has said that Chowk outside the house of Mst. Hazran was surrounded on all sides by four walls. The walls were upto the height of head. His house was situate outside the Chowk towards the west at a distance of five Pawandas from the door of the Chowk. The witness has further said that he had stated in his police statement Ex. D. 1 that he had seen accused Shahbuddin coming out of the door of Jahurddin, but he could not assign any reason why that fact had not been mentioned therein. The omission of his having seen accused coming out of the house of Mst. Hazran in his police statement Ex. D. 1 is significant. As regards the first cry raised by Mst. Hazran that it was Shahbuddin, who had been causing injuries to her. the witness was confronted with his committing courts statement Ex. D. 4, at portion marked A to B, wherein there is no mention of Shahbuddin. He could not give any satisfactory reply in regard to this material omission. He simply said : "This fact is not mentioned in portion A to B and I cannot assign reason why this fact is not mentioned in it." Similarly before the trial court the witness has said that in his police statement Ex.Dl he had deposed that Shahbuddin had Gupti in his hand, but this fact is not inserted in the police statement and with regard to this inconsistency his answer is, "I cannot assign any reason." Again, the witness has stated before the trial court that there was no darkness in the Saal. In his police statement at portion marked C to D the witness had said that there was darkness and subsequently lamp was lighted. To this inconsistency his reply was "This was not stated by me in Ex. D. 1." The witness then said that he had seen the face of Shahbuddin with the help of a torch from a distance of 6 to 7 Pawandas, but in his police statement Ex. To this inconsistency his reply was "This was not stated by me in Ex. D. 1." The witness then said that he had seen the face of Shahbuddin with the help of a torch from a distance of 6 to 7 Pawandas, but in his police statement Ex. D. 1 this fact is missing and the witness says "I cannot assign any reason." The witness then says that he did not call the accused while he was running nor did he chase him. This appeals to be an unnatural conduct. At the the end of his cross-examination the witness says: — "I do not know the reason why Shahbuddin inflicted injuries on Mst. Hazran." The earliest version of the prosecution story is that during the night of 28th November, 1970, Shahbuddin inflicted Gupti blows to Mst. Hazran. The first information report is silent in regard to the fact that Mst. Hazran made dying declaration both at the time and after the occurrence. 8. From the evidence of P.W. 1 Noor Mohammed it is very doubtful whether Mst. Hazran at the time of the commission of the crime named Shahbuddin as her assailant. Noor Mohammed introduced torch light before the trial court. This is contrary to his earlier version. That also creates doubt whether in the pitched dark night Noor Mohammed could see Shahbuddin going out of Mst. Hazrans residence from a distance of about 25 ft. Noor Mohammeds testimony in regard to the dying declaration made by Mst. Hazran after the incident is also not free from suspicion. It is not not supported by other material witnesses. Lal Mohammed, P. W. 5, states : "Hazran did not say any words to me." P. W. 4 Ibrahim states : "Hazran was in semi-conscious condition." He had stated in his police statement Ex. D. 7 at portion marked G to H : "She was lying unconscious." Coming now to the testimony of another important witness P. W. 2 Jahurddin, it may be mentioned that this witness has said before the trial court that at first he heard the cries of his wife Mst. Hazran that it was Shahbuddin who had caused injuries to her. Thereafter when he reached his house from Lata she told him that Shahbuddin had inflicted injuries on her person With what weapon she did not know. Hazran that it was Shahbuddin who had caused injuries to her. Thereafter when he reached his house from Lata she told him that Shahbuddin had inflicted injuries on her person With what weapon she did not know. In his cross-examination the witness admits that he was at a distance of about 50 Pawandas from the house at the time of the occurrence. It is difficult to believe that from such a long distance of 250 feet the witness could hear the cry of his wife Mst. Hazran. The S.H.O. P.W. 15 Chhotu Singh, who had prepared the site plan, says that the place where Jahurddin was sleeping during the night of the occurrence was at the distance of 125 Pawandas (625 ft ) from the place of the incident. It is all the more improbable that Jahurddin could hear the shrieks of his wife from such a remote place. Besides, this fact has also not been mentioned in the first information report. The trial court also did not place any reliance upon this specific part of the evidence of the witness. As for the subsequent dying declaration this fact is found missing in the first information report. The witness was confronted with the first information report Ex. P. 1 wherein this portion of the evidence is missing and his answer was : "I do not know the reason of it." The witness then says in his cross-examination that he met Kashi Ram and Nazir after the occurrence, but he did not tell them as to who had dealt blows on Mst. Hazran. This is an unnatural conduct. At the legend of his cross-examination the witness has stated : "I do not know why the accused Shahbuddin dealt with blow on Mst. Hazran." The various inconsistencies and contradictions, material as they are, make his evidence uncertain. 9. I now Saitoh over to the testimony of P. W. 3 Hussain. He says in the examination-in-chief that he heard the cry of Mst. Hazran that Shahbuddin accused inflicted injury with Gupti on her person. The witness then said that he saw the accused going out of Jahurddins house with a Gupti. On his entering Jahur-ddins house, he heard the cries of Mst. Hazran that Shahbuddin had inflicted Gupti blow to her. In him cross-examination the witness was confronted with his police statement Ex. Hazran that Shahbuddin accused inflicted injury with Gupti on her person. The witness then said that he saw the accused going out of Jahurddins house with a Gupti. On his entering Jahur-ddins house, he heard the cries of Mst. Hazran that Shahbuddin had inflicted Gupti blow to her. In him cross-examination the witness was confronted with his police statement Ex. D. 3 wherein it is not mentioned that he had seen Shahbuddin going out of Jahurddins residence. In regard to this inconsistency his reply was : "I do not know its reason." The witness had not mentioned in the police statement Ex. D. 3 as also in his committing courts statement Ex. D. 6 that Noora had a torch in his hand. That shows that torch has been purposely introduced before the trial court. Besides, he also did not refer in his police statement Ex. D. 3 that Shahbuddin had a Gupti in his hand. When the witness was confronted with this inconsistency his answer was : "I do not know its reason." The witness then says that he had had no talk with Shahbuddin, nor did he remonstrate him. In this context, the testimony of Hussain that he first heard the shricks of his brother Jahurddins wife that she had been stabbed by Shahbuddin and that he saw accused Shahbuddin moving out of Jahurddins house and that Mst. Hazran made dying declaration is hardly worthy of belief. 10. As for Ibrahims evidence, suffice it to say that in his police statement Ex. D. 7 at portion marked A to B, he had not mentioned that he had heard the cries of Mst Hazran that Shahbuddin had caused injuries to her. As regards subsequent dying declaration alleged to have been made by Mst. Hazran, the witness was confronted with his police statement Ex. D. 7, at portion marked G to H, wherein he had said that when he entered the house of Mst. Hazran, he found her lying unconscious. He could not give any satisfactory reply in respect of this inconsistency. The witness then said that he had stated in his police statement Ex. D. 7 that Mst. Hazran was crying that Shahbuddin had inflicted Gupti blow on her, but this fact is missing in Ex. D. 7. In regard to this contradition the witnesss simple answer was : "I cannot state the reason for this." 11. The witness then said that he had stated in his police statement Ex. D. 7 that Mst. Hazran was crying that Shahbuddin had inflicted Gupti blow on her, but this fact is missing in Ex. D. 7. In regard to this contradition the witnesss simple answer was : "I cannot state the reason for this." 11. P. W. 5 Lal Mohammed simply states that he heard the shricks of Mst. Hazran to the effect : "Mare re Mare re" He does not say that Hazran named the accused. Then he went to the house of Mst. Hazran, he found her lying in her Seal and he remained standing in the Chowk. Mst. Hazran did not speak anything to him. The witness then says that the night of occurrence was pitched-dark. Thus Lal Mohammed does not give any serviceable evidence in favour of the prosecution. 12. P. W. 7 Sattar is another material witness in this case. He does not speak that he heard the cries of Mst. Hazran that it was Shahbuddin who had been causing injuries to her. He simply says that he heard the cries of "Mare re Mare re*. In his examination-in-chief this witness has said that when he entered Jahurddins house, Mst. Hazran cried lould that Raoji Shahbuddin had inflicted Gupti blow to her and run away. The witness was confronted with his police statement Ex D. 10 wherein it is not mentioned that Mst. Hazran had uttered that Shahbuddin had injured her. In respect of this inconsistency, the witness says : "I do not know the reason" The witness also says that he saw Shahbhuddin running out of Mst.Hazrans house, but he had not caught hold of him nor did he chase him. This is an impossible conduct. At portion marked C to D in Ex. D. 10 the witness had stated that when he entered the Saal there was darkness. Thereafter he lighted a lamp. The truthfulness of this fact has been denied by the witness. From the above discussion the version regarding the dying declaration as also in respect of his seeing the accused running out of Mst. Hazrans residence is not worthy of credence. 13. Coming now to the legal aspect of the matter, learned counsel for the appellant submitted that in this case there is no direct evidence. The entire case hinges upon circumstantial evidence. Hazrans residence is not worthy of credence. 13. Coming now to the legal aspect of the matter, learned counsel for the appellant submitted that in this case there is no direct evidence. The entire case hinges upon circumstantial evidence. The circumstantial evidence in this case does not inspire confidence. In this connection it may be stated that the legitimate effect of the circumstantial evidence should be to inspire salutary caution in its reception and estimate though such evidence, although not invariably so, is frequently superior to the average strength of direct evidence : vide pages 512 and 513, Wills on Circumstantial Evidence, 7th Edition. When a number of circumstances are combined, they may result in irresistible conclusion of guilt. Circumstantial evidence is, indeed, sometimes more reliable than direct evidence, but it should be of conclusive character and must point unerringly to guilt : see Underbill on Evidence Fifth Edition, Volume 1. In order to avoid unjustified conclusion, circumstantial evidence is to be received and scrutinised by the court with caution. In an effort to guard against improper verdict, it is commonly stated that in determining the sufficiency of circumstantial evidence : (1) all the essential facts must be consistent with the hypothesis of guilt; (2) the facts must exclude over other reasonable theory or hypothesis except that of guilt; and (3) the facts must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that the accused is the one, who committed the offence. (Sec Art 980 Whartons Criminal Evidence, 12th Edition, Vol. III). These principles have been approved by their Lordships of the Supreme Court in Awedhi Yadav vs. The State of Bihar(l). In that case His Lordship Hedge J. has observed that before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstance must bring home the offence to the accused beyond reasonable doubt- If this circumstance or some of them can be explained by any other reasonable hypothesis, then the accused must have the benefit of that hypothesis. Similar observations have been made in another recent decision of the Supreme Court, reported in Bakshish Singh vs. State of Punjab(2). Similar observations have been made in another recent decision of the Supreme Court, reported in Bakshish Singh vs. State of Punjab(2). In the instant case, the prosecution has failed to establish the chain of evidence so as to leave no reasonable ground for conclusion consistent with the innocence of the accused and to show that within all human probabilities the act must have been done by the accused. 14. The next legal point emphasised by learned counsel for the appellant is that the trial court went wrong in relying upon dying declaration of the deceased Mst. Hazran. In so far as the dying declaration is concerned, it may be stated that though a dying a declaration when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, is entitled to great weight, it should always be recollected that the accused has not the power of cross-examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to the Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his or her own misconduct, may affect the accuracy of his/her statement, and give a false colour to the whole transaction: vide Art. 722, Taylor on Evidence, 12th Edition, pages 462-463, Volume I. It may also be stated here that when the declaration is oral, it must appear by independent evidence that the declarant was mentally conscious, realised his or her dying condition, and possessed memory, consciousness and intelligence. sufficient to know what he or she was doing and saying: see Underbills Criminal Evidence, 5th Edition, Art. 297, Vol. II. 15. In the present case there is no evidence worth the name on record that the declarant was mentally conscious and that she had realised her dying condition or that she possessed memory, consciousness or intelligence sufficient to understand what she was doing or saying. Prosecution witness Ibrahim.(P. W. 4) has categorically stated that when he visited deceased Mst Hazran, she was semi-conscious and in his police statement Ex. D. 7 he had deposed that she had been lying unconscious. In that circumstance it is very doubtful whether Mst. Prosecution witness Ibrahim.(P. W. 4) has categorically stated that when he visited deceased Mst Hazran, she was semi-conscious and in his police statement Ex. D. 7 he had deposed that she had been lying unconscious. In that circumstance it is very doubtful whether Mst. Hazran at all made any dying declaration, realising fully well as to what she had been doing. As the dying declaration of Mst. Hazran was not tested, by cross-examination, the trial court ought to have put itself on its guard by imposing on it an obligation to scrutinise all the relevant circumstances : vide Tapinder Singh vs. State of Pun-jab(3). In the instant case the dying declaration when closely scrutinised is not acceptable as truthful and it would be hazardous to act upon it and convict the accused. 16. Lastly, learned counsel for the appellant submitted that in this case the prosecution has not elicited any motive. It is in the evidence of P. W. 1 Noor Mohammed and P.W. 2 Zahuruddin that they did not know what the motive of the crime was. I agree with learned Deputy Government Advocate that when there is clear, cogent and direct evidence, court need not consider the question of motive: see Gurcharan Singh vs. State of Punjab(4). When there is circumstantial evidence, motive is a factor to be reckoned with. In this connection a reference is made to Art. 166, Whartons Criminal Evidence, 12th Edition, Volume I. The relevant passage runs as under :— "The absence of a motive or the presence of a motive may raise or remove a reasonable doubt as to the guilt of the accused. The absence of motive or of all apparent inducement to commit the crime is a strong circumstance in favour of the accused, particularly in cases depending on circumstantial evidence." 17. A reference may also usefully be made to Ramgopal vs. State of Maharashtra(5). In that case it has been observed by their Lordships of the Supreme Court that if in a criminal case motive as a circumstance is put forward, it must be fully established like any other incriminating circumstance. In the instant case to motive whatever has been proved. 18. In the light of the foregoing discussion, I must say that accused Shahbu-ddin has strongly been convicted by learned Sessions Judge, Merta. I. therefore, allow the appeal and set aside the conviction and sentence. In the instant case to motive whatever has been proved. 18. In the light of the foregoing discussion, I must say that accused Shahbu-ddin has strongly been convicted by learned Sessions Judge, Merta. I. therefore, allow the appeal and set aside the conviction and sentence. He shall be relassed forth with if not required in any other case.