JUDGMENT 1. This appeal by accused Hari Singh, Nihal Singh and Manphool Singh is directed against the judgment dated November 11, 1974 of the learned Sessions Judge, Jhunjhunu, whereby he convicted them under section 302 read with section 34 IPC and sentenced each of them to imprisonment for life. 2. Tersely speaking shorn of unnecessary details the prosecution story as disclosed at the trial is that accused Hari Singh was to be betrothed with the daughter of Jagniram, who was later on married to Kurdaram (since deceased). Hari Singh felt annoyed and conspired with other accused to commit the murder of Kurdaram. 3. Few days prior to the commission of the crime Kurdaram's sister Mst. Shanti went to her maternal uncles place. While coming back to her fathers place she inadvertently forgotten to bring her clothes. Kurdaram went to the house of his maternal uncle situated in village Gawali. After taking the clothes he started for his village. A day prior to the occurrence he was seen by PW 4 Vidhyadhar in the company of accused Hari Singh at nearly 10 a. m. on the outskirt of village Narhar. On the same day at nearly 6 p. m, PW 19 Hanuman and PW 5 Hukmi Chand saw all the three accused in the company of the deceased in the Bani of Khudiya. At that time they were drinking liquor. On the next day Kurdaram was of due lying dead at the same place. The villagers called Harlal Sarpanch, who gave a written report Ex. P/1 at the Police Station, Pilani on April 1, 1973 at 6.30 p. m. on the basis of which first information report Ex. P/2 was chalked out. After registering the case under section 302 IPC head constable Ram Singh reached the scene of occurrence. He prepared inquest report Ex. P/3, seized blood-stained earth vide Ex. P/5. A bag containing Kabja, Lahanga was also found lying near the dead body, which were also seized vide Ex. P/ 6. A blood-stained knife and a pair of shoes stained with blood were also found lying near the dead body, which were seized vide Ex. P/7 and Ex. P/8 respectively. The autopsy on the dead body was performed by PW 8 Dr. Bharat Singh on 2-4-1973. He found the following external injuries - 1. Incised wound 3"x 11/2" on the neck in front cutting the trachea on two portions. P/7 and Ex. P/8 respectively. The autopsy on the dead body was performed by PW 8 Dr. Bharat Singh on 2-4-1973. He found the following external injuries - 1. Incised wound 3"x 11/2" on the neck in front cutting the trachea on two portions. Maggots were present. 2. Incised wound on neck left side 21/2" x 1/2"x 2" just below the mandible superficial juglar vein divided into two parts. On opening of the body he noticed that trachea was divided into two portions just above the thyroid "cartilage and the left superficial juglar vein was divided into two parts. In the opinion of the doctor the cause of death was asphyxia due to cutting of trachea. The injuries were antemortem and were sufficient in the ordinary course of nature to cause death. He further found that the injuries found on the body of the deceased could be caused by ordinary knife. The post-mortem report is Ex. P/12. Thereafter PW 16 Ramjiwan took charge of the case and arrested accused Hari Singh and Nihal Singh on the same day. Accused Manphool Singh was arrested on April 8, 1973. The clothes found on the person of Hari Singh at the time of his arrest were stained with blood. As such Bushshirt Art. 11 and pair of Trousers Art. 12 were seized and sealed by the police vide seizure memo Ex. P/13. Manphool Singh after his arrest expressed his desire to get the blood-stained clothes recovered from his house. The information was reduced into writing and has been marked as Ex. P/19. In consequence of this information accused Manphool Singh got a pair of trousers Art. 13 and one bush shirt Art. 14 recovered from his house. They were seized and sealed. The seizure memo is Ex P/20. On April 8, 1973 Nihal Singh also expressed his desire to get the blood stained clothes recovered from his house. The information was reduced in writing and has been marked as Ex. P/21. In consequence of that information a Pent Article 15 and a Bushshirt Art. 16 were got recovered. They were sealed and seized vide seizure memo Ex. P/22. On April 10, 1973 Nihal Singh expressed his desire to get the weapon of offence (knife) recovered from the place of its concealment lying near the scene of occurrence. The information was reduced into writing and has been marked as Ex. P/23. They were sealed and seized vide seizure memo Ex. P/22. On April 10, 1973 Nihal Singh expressed his desire to get the weapon of offence (knife) recovered from the place of its concealment lying near the scene of occurrence. The information was reduced into writing and has been marked as Ex. P/23. In consequence of this information the accused took the motbirs and the Sub-Inspector and brought out a knife Article 6 lying under the Jal tree. The seizure memo is Ex. P/24, Manphool Singh also expressed his desire to get the bottle of liquor recovered from the place where he has thrown it after drinking the liquor by the accused persons. The information was seduced into writing and has been marked as Ex. P/25. In consequence of this information after going at a distance of 30 to 35 pawandas from the place where the dead body was lying the accused pointed out the bottle Article 17. It was seized by the police vide Ex. P/26. At the time of recovery of the bottle the Sub-Inspector noticed certain finger prints over it. The specimen of ten digit finger prints of Hari Singh, Manphool Singh and Nihal Singh were taken and the same were sent along with the bottle to the Director, Finger Print Bureau at Jaipur. The expert after thorough examination found that the chance prints tallied with the finger prints of all the three accused. The report of the Director of Finger Print Bureau, Jaipur is Ex. P/27. The clothes recovered from the person of Hari Singh and recovered at the instance of the two other accused as well as knife Article 6 were sent to the Chemical Examiner and the Serologist for examination which were found to be positive for human blood by the Chemical Examiner and the Serologist. A test identification parade was held in which PW 19 Hanuman identified accused Hari Singh and Manphool Singh in relation to persons near the Jal tree in the company of the deceased. The third accused Nihal Singh could not be identified. The police after usual investigation submitted a challan in the Court of Munsif Magistrate, Chirawa. The learned Sessions Judge, Jhunjhunu on the above evidence convicted all the accused and sentenced them as mentioned above. Hence this appeal. 4. There is no dispute between the parties that Kurdaram met homicidal death. The third accused Nihal Singh could not be identified. The police after usual investigation submitted a challan in the Court of Munsif Magistrate, Chirawa. The learned Sessions Judge, Jhunjhunu on the above evidence convicted all the accused and sentenced them as mentioned above. Hence this appeal. 4. There is no dispute between the parties that Kurdaram met homicidal death. The postmortem examination on the dead body of Kurdaram conducted by PW 8 Dr. Bharat Singh reveals that the deceased sustained two incised wounds. The doctor further expressed the view that the injuries were sufficient in the ordinary course of nature to cause death. In cross-examination he stated that injuries Nos. 1 and 2 both could be caused by one weapon. There is, therefore, no manner of doubt that Kurdaram met homicidal death. 5. The important question that survives for consideration is whether all the accused or any one of them can be held responsible for causing the death of Kurdaram. The Sessions Judge held that the evidence of motive for the murder attributed to the accused was not at all convincing. Kurdaram's father PW 2 Ram Kanwar stated on oath that Hari Singh and deceased Kurdaram were friends. They were not at quarrel with each other. In face of this categorical statement no reliance can be placed on the statement of PW 6 Harphool Singh, who was examined by the prosecution to lead evidence on motive. The story narrated by Harphool Singh is fantastic and no reliance can be placed on it. His conduct in reporting the matter either to Ram Kanwar or anybody else goes to prove that he is a got up witness. The learned Sessions Judge discussed the evidence relating to motive and our opinion rightly came to the view that Hari Singh could have no adequate motive for committing the murder of Kurdaram. So far the other two accused are concerned, nothing has been shown that they had any motive at all. The prosecution suggestion that both of them were friends of Hari Singh is not sufficient to hold that they would have agreed to commit the murder of Kurdaram to oblige Hari Singh. 6. This takes us to the evidence of the two witnesses PW 19 Hanurnan and PW 5 Hukmi Chand. PW. 19 Hanuman appears to be a chance witness. He is not the resident of the near about area. 6. This takes us to the evidence of the two witnesses PW 19 Hanurnan and PW 5 Hukmi Chand. PW. 19 Hanuman appears to be a chance witness. He is not the resident of the near about area. He went in search of a she camel and accidental met the accused and the deceased. He was under Section 164 Cr. P. C. The accused were got identified by him after nearly 16 days of their arrest. At the time of arrest none of the accused was warned that he would be produced for identification. It has not been explained by the investigating officer as to why the test identification parade could not be held earlier. This witness was examined by the police after 7 orb days of the occurrence. Between the date of his examination by the police and his seem the dead body of Kurdaram he did not narrate the fact of his seeing the deceased in the company of three other persons on the date of the occurrence except Hemds sot, who was also not examined in the case. it is proverbially rash rely upon a chance ness as held by their Lordship of the Privy Council in Ismail Ahmed Peepadi v. Momin Bibi and others, A.I.R. 1941 Privy Council 11. 7. PW 5 Hukmi Chand is the person who has been examined to prove the presence of the accused in the company of the deceased prior to his death. He state that after 3 or 4 days of his seeing the accused in the company of the deceased he heard that Kurdaram was murdered in the Bani of Khudiya. Even thereafter he kept quiet. It is not known as to how the police people came to know that he had seen the accused in the company of the deceased on the relevant date. He had no reason to be on the scene of the occurrence on the relevant date. 8. Then we have the evidence of finger print. A perusal of the report Ex. P/27 shows the bottle Article 17 bore the finger prints of the three accused appellants. Learned counsel appearing on behalf of the accused appellants vehemently urged that in between the date of the occurrence and the recovery of the bottle the bottle was lying in open. The blowing winds and the dust falling over it must have affected the chance prints. Learned counsel appearing on behalf of the accused appellants vehemently urged that in between the date of the occurrence and the recovery of the bottle the bottle was lying in open. The blowing winds and the dust falling over it must have affected the chance prints. The Director of Finger Print Bureau was not examined on oath and the accused-appellants were deprived of their available right to cross-examined to witness. The report of the finger print expert is admissible under Section 293 Cr. P.C. and if the accused wanted to cross-examine this witness then they ought to have made such a request in the trial Court. As they failed to avail the opportunity at proper time the report of the Director of Finger Print Bureau cannot be brushed aside on his count alone. No doubt an expert evidence is only opinion evidence and can never be conclusive. Acting on the evidence of an expert it is usual to see if that evidence is corroborated either by clear, direct or by circumstantial evidence. The report of a finger print expert in itself is not normally sufficient for recording a definite finding about the presence of a particular person at a particular time. Such an evidence can be relied upon as a circumstance, which along with other circumstances would point to the identity of the culprit, though by itself it would not be enough to carry conviction in the mind of the court. 9. Even if we hold that the evidence of Finger Print Expert and the statements of PW 5 Hukmi Chand and PW 19 Hanuman are reliable, than also this evidence goes to prove only this much that the accused were in the company of the deceased nearly at 6 P. M. on a day prior to the commission of the crime. A perusal of the post-mortem report shows that the deceased sustained only two injuries. In the absence of the evidence of motive it cannot be said that all the three accused had the common intention to commit the murder. There is nothing to hold which of two accused out of the three appellants assaulted the deceased. The possibility of one or two of them being altogether innocent cannot be ruled out. In the absence of the evidence of motive it cannot be said that all the three accused had the common intention to commit the murder. There is nothing to hold which of two accused out of the three appellants assaulted the deceased. The possibility of one or two of them being altogether innocent cannot be ruled out. Evidence of the accused being last seen in the company of the deceased in itself, in the facts and circumstances of the case, is not sufficient to fasten the guilt on any of the accused. 10. The other circumstance relied upon by the prosecution is recovery of a blood stained knife Article 6 at the instance of accused Nihal Singh. The knife was recovered from an open place. It was not lying concealed in a pit. The place from where it was recovered from an open one and accessible to all and sundry. It is difficult to hold positively that the accused was in possession of that knife. The fact of recovery by the accused is completable with the circumstance of other accused having thrown the knife near the Jai tree and of the accused acquiring knowledge about the where about of the knife and that being so the fact of discovery cannot be regarded as conclusive proof of the fact that the accused was in possession of that knife or he had concealed it there. 11. Similarly the recovery of the bottle Article 17 at the instance of accused Manphool Singh is not sufficient to hold that it was recovered from his possession or from a place where he has concealed it. It was also recovered from a place which was an open one and accessible to all and sundry. Both these recoveries in our opinion are quite consistence with the innocence of the appellants. 12. The last circumstance on which the reliance was placed on behalf of the prosecution is recovery of blood stained clothes from the prosecution of the accused-appellants. The evidence regarding Hari Singh that at the time of his arrest he was wearing blood-stained bushshirt and a pair of trousers, which were on analysis found by the Chemical Examiner and the Serologist as positive for human blood. None of the Panchnama witness has supported the prosecution case regarding recovery. The only evidence relied upon by the trial court is that of PW 16 Ramjiwan. None of the Panchnama witness has supported the prosecution case regarding recovery. The only evidence relied upon by the trial court is that of PW 16 Ramjiwan. He is the investigating officer of the case. He was supposed to identify the articles recovered from the possession of the accused while making statement in the court, but he failed to identify and stated that he was not definite whether bushshirt Art. 11 and the pair of trousers Art. 12 were the same which were recovered from the possession of the accused, because at the time of making his statement he found them to be in a torn condition. The remaining two accused got the blood-stained clothes recovered from their house. The prosecution has failed to prove the extent of blood marks on the clothes of the accused. Admittedly, all the three accused are villagers and in their usual course of life they require to go to attend hard duties of life and presence of blood in small quantity on their clothes without the evidence of blood grouping cannot be considered to be any evidence of conclusive nature, which can connect the accused with the crime. Even if m hold that the three accused were present on the scene of occurrence at 6 p. m. and blood-stained clothes were recovered from their possession, then also this evidence when considered conjointly in itself is not sufficient to bring home the guilt to the accused. It is now settled law that in the case of circumstantial evidence all incriminating facts and circumstances should be fully established by congeal and reliable evidence and the fact so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and one conclusion only that the accused persons and none other perpetrated the alleged crime. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they am susceptible of any rational examination no conviction can lie. Judged from this tent point, it is not possible to affirm the conviction of the appellants for the offence of murder of Kurdaram. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they am susceptible of any rational examination no conviction can lie. Judged from this tent point, it is not possible to affirm the conviction of the appellants for the offence of murder of Kurdaram. The circumstances relied upon by the prosecution in the absence of evidence of motive are not incompatible with innocence of the appellants in so far as the murder of Kurdaram is concerned. They are capable of being explained away on hypothesis other than that of the guilt of the appellant as indicated above. No doubt a strong suspicion is created against the accused, but suspicion howsoever strong cannot take the place of proof. It may be that then might be some element of truth in the prosecution case. The prosecution story may be true. (1) between may be true and must be true there is inevitably a lot distance to travel and this distance must be covered by legal, reliable and unit peaceable evidence. 13. In the result the appeal preferred by the accused-appellants is allowed. The order of conviction and sentences passed against them is set aside and they are acquitted of all the charges framed against them. They are in jail. They sir be released forthwith, if not required in any other case.Appeal allowed. *******