JUDGMENT 1. Appellant Imji & Imia was tried for the offences under sections 302 and 436 Indian penal Code by the learned Sessions Judge, Jodhpur who by his judgment dated 8.2.1974 convicted the appellant for these two offences and sentenced him to imprisonment for life and a fine of Rs. 100/- in default of payment of fine to undergo rigorous imprisonment for one month on the first count and two years rigorous imprisonment and a fine of Rs. 100/- in default to undergo rigorous imprisonment for one month on the second count. 2. The prosecution case in brief was that deceased Bhomji had married his daughter Mst. Sita to the appellant five or six years prior to the incident. On account of the relations between Mst. Sita and the appellant not being cordial Mst. Sita was living with her parents Bhomji the deceased and Mst. Sohan Kanwar (P.W. 1). One month before the incident Mst. Sita contracted 'Nata' with somebody at Village-Tapu This annoyed Imji & Imia appellant. That on the intervening night of 8th June, 1973 Bhomji was sleeping on the cot outside his Dhani and Mst. Sohankanwar and her grand son Babu were sleeping inside the chowk. In the mid might Mst. Sohan Kanwar saw some light and got up. She also awoke Babu. Both of them went to the place where Bhomji was sleeping. Sohankanwar saw Imji inflicting 'axe' blows and causing injuries to Bhomji. Appellant Imji went away from there. Sohankanwar raised an alarm which attracted the neighbourers. Kumbharam, Sheraram, Rooparam and others rushed to the Dhani of Bhomji. Rooparam and Moderam went to call for Shivdansingh (P.W.5). On being informed by Mst. Sohankanwar about Bhomji setting fire to the fencing and causing injuries to Bhomji which caused his death. Shivdansingh went to police Station Osian on a camel and reached there at 8.30 a.m. He lodged an oral report there which was reduced into writing by station House Officer, Mehboobkhan which is Ex. p. 3 On the basis of the First Information Report case under section 302/and 436 Indian Penal Code was registered. The Station House Officer went to the Village-Railwada at the Dhani of Bhomsingh and inspected the site. He prepared the site inspection memo Ex. P. 1. He inspected the dead body of Bhomji and prepared the inquest memo Ex. P. 2. He interrogated Mst. Sohankanwar and recorded her statements. The Station House Officer went to the Village-Railwada at the Dhani of Bhomsingh and inspected the site. He prepared the site inspection memo Ex. P. 1. He inspected the dead body of Bhomji and prepared the inquest memo Ex. P. 2. He interrogated Mst. Sohankanwar and recorded her statements. The blood stained clothes and beddings of Bhomji were taken in possession vide memo Ex. P. 6. The dead body was sent to Medical Officer 'Mathania' for postmortem examination. Dr.S.C. Singh conducted the autopsy on the dead body of Bhomji on 9.6.73 from 4.00 p.m. to 6.30 p m. Doctor noted following injuries on the dead body : 1. Incised wound (clear out margin sigh of prof used bleeding) 3" x 1/2" upto maxillary bone, horizontally on the upper part of the left side of neck, starting from just below the left ear lobule to downwards upto upper ⅓ of neck of left side. It was grevious in nature. 2. Incised wound (clear cut margins sign of prof used bleeding) 2, 1/2"x 1/2" upto maxillary bone (vertically) along with the left maxilla on its lower part, starting from the angle of maxilla to mid of chin. It was grievous in nature. 3. Complete clear cut of all the five fingers of the left hand with skin, muscles and bones on the terminal interphallangeal joint. This injury was grievous in nature. 4. Incised wound (clear cut margins sign of perfused bleeding) 2" x 1/2" x upto bones (vertically) on the palm of right-hand starting from the root of little finger, upto root of little finger. 5. Incised wound (clear cut margins, sign of profuse bleeding) 3" x 1"x 1" along with the left inguinal cannel starting 1/2" below from the anterior superior illiac earnest to downwards. 3. According to the Doctor all the injuries were grievous in nature and have been caused by five below with a sharp edged axe. He also opined that injuries nos. one and two were sufficient in the ordinary course of nature to cause death. Liver was pale in colour and was congested. Spleen was also pale, both the chamber of the heart were empty. 4. In the opinion of the Doctor, death was due to syncope as a result of severe bleeding from the injuries and shock and haemorrhage due to multiple injuries. He prepared the postmortem examination report Ex. P. 1. 5. Liver was pale in colour and was congested. Spleen was also pale, both the chamber of the heart were empty. 4. In the opinion of the Doctor, death was due to syncope as a result of severe bleeding from the injuries and shock and haemorrhage due to multiple injuries. He prepared the postmortem examination report Ex. P. 1. 5. The Station House Officer tried to trace out the accused but he was not available. On 9.6.73 the appellant went to Police Station Panchodi and lodged a report. He produced an axe before the Station House Officer. The Station House Officer took the axe in possession and arrested the accused vide memo Ex. P. 4. The memo, the seeled axe and the appellant were sent to Police Station Osian as the case related to that Police Station. During the course of investigation, the Station House Officer had also recorded the statements of the other witnesses. The packets of the clothes and the axe were sent for Chemical Examination. The report of the Chemical Examiner is Ex. P. 7. The report of the Serologist is Ex. P. 8. There was human blood on the 'Gudri', 'Dhoti' and 'Baniyan'. The blood stain on 'Kulhari' was disintegrated and its origin could not be determined. 6. After completing the necessary investigation charge-sheet against the appellant was filed in the court of Munsif Magistrate, District Jodhpur. The learned Magistrate after conducting the preliminary enquiry committed the appellant to the court of Session to stand his trial. 7. The learned Sessions Judge, charge-sheeted the appellant for the aforesaid offences and recorded his plea. He denied the charges and claimed to be tried. 8. To substantiate its case, prosecution examined fifteen witnesses in all. The statement of the appellant is of complete denial. The learned Sessions Judge placed reliance on the prosecution evidence and held the appellant guilty for the offences under Section 302 and 436 Indian Penal Code and passed the judgment under appeal. 9. We heard Mr. M. L. Kala, learned Amicus Curaie and Mr. N. S. Acharya, Public Prosecutor for the State and gave our anxious consideration to the material on record. 10. It has been strenuously contended by Mr. Kala that solitary testimony of Mst. 9. We heard Mr. M. L. Kala, learned Amicus Curaie and Mr. N. S. Acharya, Public Prosecutor for the State and gave our anxious consideration to the material on record. 10. It has been strenuously contended by Mr. Kala that solitary testimony of Mst. Sohankanwar about the appellant being the author of the crime has been wrongly relied upon by the learned Sessions Judge because it does not find corroboration from any independent source and also because she is inimical with the appellant on account of the strained relations between him and Mst. Sita, daughter of the witness.It has also been stressed that Mst. Sohankanwar had not disclosed the name of the assailant immediately after the occurrence which is evident from the omission of the name of the accused in the First Information Report. The finding of the learned trial judge for the guilt of the appellant is also challenged on the ground that there is inordinate unexplained delay in sending the First Information Report to the concerned Magistrate and slackness of the prosecution in not examining the witnesses except Mst. Sohankanwar till 22nd June, 1973. It has been argued by the learned counsel that there is contradiction between the statements of Chiitar Singh (P. W. 5), the Station House Officer, Police Thana, Panchodi and Jaswantsin).h (P.W. 9), motbir to the arrest name of the appellant, prepared at the Police Station Panchodi regarding the time of the arrest of the appellant and seizure of the axe said to have been produced by him before that Police officer. According to Mr. Kala the statement of Chittar sigh does not inspire confidence because he states the time of arrest to be 3.30 a.m. while Jaswant Singh has stated that it was in the after-noon that he was called upon to attest the seizure and the memo of the arrest. It has been contended that the facts of the case clearly indicate that it was only on the basis of suspicion that the appellant was prosecuted and therefore his conviction cannot be said to be justified. 11. Controverting these arguments this learned Public Prosecutor has submitted that the testimony of Mst. It has been contended that the facts of the case clearly indicate that it was only on the basis of suspicion that the appellant was prosecuted and therefore his conviction cannot be said to be justified. 11. Controverting these arguments this learned Public Prosecutor has submitted that the testimony of Mst. Sohankanwar stands corroborated to certain extent by the statement of Babu (P.W.2) who had disclosed the name of the assailant immediately after the occurrence to Kumbharam, Sheraram, Rooparam, Shivdansingh and others and the reason for not mentioning the name of Imji alias Imia has been explained by Shivdagsingh, the informant and therefore, the learned Sessions Judge has committed no error in convicting the appellant on the testimony of Mst. Sohankanwar. 12. It has been urged by Mr. Acharya that the fact that appellant had gone to the Police Station Panchodi at about 8. 30. a. m. on the next morning of the occurrence and produced an axe before the Station House Officer is a strong circumstance against him connecting him with the commission of the crime. 13. Mst. Sohankanwar, wife of the deceased and Babu her grandson were sleeping in Dhani inside the 'Jumpha' in the fateful night of the occurrence. These two witnesses have been examined by the prosecution as eye-witnesses to the murder of Bhomji. Mst. Sohankanwar has also deposed about her witnessing the setting of fire to the fencing by the appellant. Mst. Sohankanwar has stated about the motive for the commission of the crime by the appellant. It has been stated by Mst. Sohankanwar that her daughter Mst. Sita was married to appellant Imji alias Imia about ten years prior to the incident. Imji alias Imia maltreated Mst Sita and so she left him and came to her father's house and was living there for about five to six years. That about a month prior to the murder of Bhomji Mst. Sita was given in Nata at village Tapu. That in the night of the occurrence the witness along with her grand son Babu was sleeping inside the court-yard of the Dhani on two separate cots and her husband Bhomji was sleeping out side the Falsa of the Dhani on a cot. That in the mid-night she awoke because of sudden glaze of fire in the Dhani. That in the night of the occurrence the witness along with her grand son Babu was sleeping inside the court-yard of the Dhani on two separate cots and her husband Bhomji was sleeping out side the Falsa of the Dhani on a cot. That in the mid-night she awoke because of sudden glaze of fire in the Dhani. She then awoke Babu She saw the western portion of the Dhani burning and noticed that the Jumpha of the northern side of the Dhani also had caught fire. She rushed to her husband Bhomji and saw appellant Imji standing near the cot of her husband. Imji inflicted five-seven axe blows on the various parts of the body of Bhomji. She raised a cry which attracted Kumbharam (P. W. 4), Sheraram (P. W. 7), Roop Ram (P. W. 10), Shivdan singh (P. W. 3) and others. On seeing those persons coming, Imji alias Imia ran away from there along with the axe. The persons reaching there chased him. She told the persons assembled there as to what had happened. Bhomji died of the injuries sustained by him. Mst. Sohankanwar then sent Sheodansingh to P. S. to lodge the report and the police arrived at the site. That she suffered a loss of about Rupees One Thousand or Twelve Hundred because of the fire. 14. The statement of Babu is that on hearing the cry of her grand-mother he woke up and then both of them went outside the Dhani where there was light because of the burning of the fencing. That he went outside and saw Imji running away with an axe in his hand. He saw the injuries on the body of his grand-father Bhomji who was lying dead on account of the injuries. That he and his grandmother raised hue and cries and Kumbharam, Sheraram, Roopram and Shivdansingh reached their Dhani and extinguished the fire. That his grand-mother told those persons that her enemy Imji alias Imia had murdered Bhomji. 15. On examining the statement of Babu it is evident that though he claims to have gone with his grand-mother Mst. Sohankanwar, he had not seen the actual incident i. e. the axe blows being inflicted on the body of Bhomji. 16. That his grand-mother told those persons that her enemy Imji alias Imia had murdered Bhomji. 15. On examining the statement of Babu it is evident that though he claims to have gone with his grand-mother Mst. Sohankanwar, he had not seen the actual incident i. e. the axe blows being inflicted on the body of Bhomji. 16. The learned Public Prosecutor fairly agrees that Babu is not an eye witness to the actual occurrence but his argument is that he had gone out-side the Dhani and had seen Imji running away and he identified him. Babu has stated tint lie had never met Imji previously. Then he stated that he was knowing Imji as he had seen him at the Dhani of his grand-mother about a month prior to the occurrence. On checking up this statement with the statement of Mst. Sohankanwar, the reason for Babu identifying Imji appears to be incorrect. Mst. Sohankanwar has specifically deposed that her daughter was living with her for five-six years and during that period Imji never came to her house. She also stated that Imji did not come to her house even when 'Nata' was contracted by Sita. If Imji had not come at all to the Dhani of Bhomji for five or six years, where was the occasion of Babu for seeing him prior to the incident and then identifying him running from the Dhani after the alleged occurrence. Babu was 8-9 years old at the time of his statement and the learned Sessions Judge had satisfied himself that the witness was intelligent enough to understand the questions put to him and answer them properly. We do agree with the learned Public Prosecutor that the witness has given sensible replies to the questions put to him but at the same time we may observe that the reason given by the witness for identifying Imji is not believable in view of the statement of Mst. Sohankanwar. The persons who reached the site and has chased the assailant could not identify him as the statement of Kumbaram goes and therefore, it is doubtful whether Babu could actually identify the assistant at the time. We are, therefore, not inclined to place reliance on the testimony of Babu that he had seen Imji perviously and therefore, could identify him in the night of the occurrence. We are, therefore, not inclined to place reliance on the testimony of Babu that he had seen Imji perviously and therefore, could identify him in the night of the occurrence. If Babu would have been an eye witness to the actual occurrence or had atleast identified the assailant just after the occurrence there was no reason for the Investigating Officer for not examining him on the day when Md. Sohankanwar was examined. Mehboobkhan, Station House Officer, the Investigating Officer admitted that he had examined Babu on 22.6.73. Such inordinate unexplained delay in examining an important witness also throws doubt on the prosecution case that Babu had seen the occurrence or could identify the assailant just after the occurrence. 17. The prosecution case, therefore, hinges on the solitary testimony of Mst. Sohankanwar. Her being in the Dhani in the night of the occurrence is of course natural. The pertinent question calling for answer is whether she had actually seen the appellant causing injuries to her husband or whether it was only because of the enemity between her family and the appellant that she suspected him to be the culprit. When there is only one witness and that too is inimically disposed of towards the accused the responsibility of the court to scrutinise the testimony of that witness increases all the more. 18. We will assess the value of the testimony of Mst. Sohankanwar with the checks available on record. In this connection most important point to be noted is whether she had immediately, after the occurrence, disclosed the name of the assailant. 19. The First Information Report in the case is lodged by Shivdansingh (P. W. 3). In the First Information Report Shivdansingh has stated that somebody went to the Dhani of Bhomji and caused injuries to him and murdered him and then set fire to the Dhani. He also stated that as Bhomji had given his daughter in 'Nata' at Village-Tapu, it is suspected that Imji out of annoyance might have murdered Bhomji and set fire to the Dhani. 20. The important point to be considered is whether this type of version in the First Information Report lodged by Shivdansingh was because of the mistake as stated by him or because Mst. Sohankanwar failed to disclose to him the name of the assailant prior to his departure for making the report at Police Station. Mst. 20. The important point to be considered is whether this type of version in the First Information Report lodged by Shivdansingh was because of the mistake as stated by him or because Mst. Sohankanwar failed to disclose to him the name of the assailant prior to his departure for making the report at Police Station. Mst. Sohankanwar and Babu have deposed that on their raising hue and cry Kumbharam, Sheraram, Roopram, Modaram and Shivdansingh reached the place. On the other hand the statement of Shivdansingh is that in the mid-night Rooparam and Modaram went to his house and informed that Imji had set fire to the Dhani of Bhomji and had cut his head. 21. Thus the prosecution case is that even while at his house Shivdansingh had come to know the name of Imji as culprit. Shivdansingh has deposed that when he reached the house of Bhomji, Mst. Sohankanwar was weeping and was crying that Imji had committed the murder of Bhomji. In his cross-examination, he has specifically deposed that upon being questioned by him as to what had happened Sohankanwar told this fact to him. If prior to going to Police Station to lodge the report, Shivdansingh had come to know from Mst. Sohankanwar that the assailant was Imji there was no reason for him to omit the name of Imji in the First Information Report and simply state that somebody had done so and because of enemity there was suspicion on Imji. This discrepancy has been brought to the notice of the witness in his cross examination and the explanation given by him that it was per mistake that he had disclosed while lodging the First Information Report that there was suspicion on Imji is entirely incredible. Another explanation given by the witness that as he was suffering from fever and so per mistake he did not mention the name of Imji in the First Information Report, also does not carry conviction to a prudent mind. 22. Another explanation given by the witness that as he was suffering from fever and so per mistake he did not mention the name of Imji in the First Information Report, also does not carry conviction to a prudent mind. 22. If the witness had not stated that there was suspicion on Imji, the matter would have been different and it could have been believed that he only informed about the occurrence and did not think it necessary to give the details about the assailant but his mentioning that there is suspicion on Imji, lends to the conclusion that the name of Imji was in his mind and there might have been some talk at the Dhani of the Bhomji after the incident that Imji might be the person committing the crime because of enmity with Bhomji. 23. The importance of the first Information Report cannot be under estimated because it is the first version coming to the knowledge of the police and setting its machinery to motion. It is for that reason that it has been provided under section 157 Criminal Procedure Code that the First Information Report should be sent forthwith to the concerned Magistrate. Provision of law is to safeguard against any embellishment and concoction that may be subsequently made in the First Information Report. 24. Mr. Kala has emphasised that the omission of the name of the appellant in the First Information Report is a serious infirmity in the prosecution case and therefore, Mst Sohankanwar's statement also loses importance and deserves to be discarded. On the other hand contention of Mr. Acharya is that First Information Report has not been lodged in the case by the eye-witness but by the third person and therefore, if he has failed to mention the name of the accused in it, it will not affect the evidence of the eyewitness. Number of authorities have been referred to from both the sides to substantiate their respective contentions. The relevant for the purpose out of them we will just discuss. 25. In the case of Wilayat Khan and Ors. v. The State of U. P. (1953 SC 122) A telegram about the murder was given almost immediately after the murder was committed, it did not mention the name of the assailant and the omission was considered to be a strong circumstance in favour of accused. 26. Another case referred to by Mr. v. The State of U. P. (1953 SC 122) A telegram about the murder was given almost immediately after the murder was committed, it did not mention the name of the assailant and the omission was considered to be a strong circumstance in favour of accused. 26. Another case referred to by Mr. Kala is Iman Ali Khan Ela Hori and another v. The State (1956 Cal. 368) , where different persons were given for the complainant's conduct in not mentioning the names of the robbers to his neighbours and it was laid down that the Jury should be asked to approach their consideration of the evidence as to identity with a certain amount of caution. 27. Mr. Acharya on the other hand placed reliance on the principle enunciated in the case of Bharvad Bhikha Valu and others v. The State of Gujarat (1971 SCC (Cri.) 500) wherein it has been observed that non-mention of the name of the accused person in the First Information Report is not necessarily fatal to the prosecution if there is other convincing evidence to prove the presence of the accused at the time of the incident. 28. The question regarding omission of the name of the accused in the First Information Report by the person who had received the information from another arose before their Lordships of the Supreme Court in the case of State of Rajasthan v. Kartarsingh (1970 SC 1805 : 1970 Cr.L.J. 1144) and their Lordship's were pleased to observe that in such cases some times facts get omitted which should have been mentioned but suspicion cannot be attached to the statement, because of this. 29. Discussing the probative value of the information furnished by a person receiving information from another and important facts not being mentioned therein it has been observed by a learned judge of this Court in the case of Radha Kishan v. State (1973 Cr.L.J. 481) as under:- "When first information report is lodged by a person, who had information from another, sometimes a fact gets omitted which should have been mentioned and sometime the facts are confused. In that view of the matter no suspicion can be attached to such statement on account of the incongruity between it and the statements before the Court." 30. In that view of the matter no suspicion can be attached to such statement on account of the incongruity between it and the statements before the Court." 30. The position of law as enunciated in the various decisions is that omission of an important fact coming to the notice of the person lodging First Information Report is a matter of consideration but whether on that count alone the testimony of that witness is to be disbelieved or the whole prosecution is to be discarded depends on the circumstances of the given case. If the informant is not the person concerned rather one receiving information from another there might be reason for his omitting a particular fact while lodging the information. In that case also it will have to be noted that whether the facts so omitted had come to his notice prior to his lodging the report and whether that fact is so material that its omission casts a doubt on his veracity. Even in cases where an important fact is missed in the First Information Report if there is satisfactory explanation from the informant for that omission, courts may arrive at a conclusion upon close & careful scrutiny of his evidence that it was a bona fide mistake which has been reasonably explained and the statement is worth reliance, 31. In the case of Bishan Dass v. State of Punjab (1975 SC 573) their lordships dealing with the question of satisfactory explanation by the informant for not mentioning the name of the accused in the First Information Report were pleased to observe that veracity of the prosecution case cannot be doubted if satisfactory explanation is available for the serious omission in the First Information Report to mention the name of the accused. The explanation in that case was that the person who had seen the assailant and has shouted the name of the accused as the person throwing the bomb became unconscious after a short while and regained consciousness only the next morning and therefore, not mentioning the name of the miscreant in the First Information Report was held to have been satisfactorily explained. 32. In the case in hand, as noted above, the explanation given by Shivdansingh for his omission to mention the name of the doer of the crime is not at all satisfactory. 32. In the case in hand, as noted above, the explanation given by Shivdansingh for his omission to mention the name of the doer of the crime is not at all satisfactory. As we have mentioned above, it was not the case that name of Imji had slipped out of his mind rather he has mentioned his name as being a suspect. So far as the theory of Shivdansingh suffering from temperature and therefore, not naming Imji in the First Information Report is concerned, it is equally not a plausible story, firstly because he was not only the person in the village who could have gone to lodge the First Information Report to a distance of about 14 miles even though suffering from fever, secondly as stated by Sheraram and Rooparam, Kumbharam also had accompanied Shivdansingh while going to lodge the report. Kumbharam has also been examined by the prosecution as a person who had heard Sohankanwar telling the name of Imji as the assailant immediately after the occurrence and therefore if Shivdansingh was suffering from fever there was no reason why Kumbharam did not bring to the notice of Shivdansingh that he had missed important factor in the First Information Report i. e. the name of Imji being told by Mst. Sohankanwar. 33. From this discussion an important question emerging for determination is whether on this count statement of Shivdansingh that he was told the name of Imji by Mst. Sohankanwar immediately after the occurrence is to be believed or not and secondly whether for this reason Mst. Sohnkanwar's testimony also became incredible. 34. The answer to these questions is found in the purpose is to bring the use of the First Information Report. Its purpose is to bring the matter to the notice of the Investigating Agency so that it may proceed with the Investigation. All material facts coming to the knowledge of the information by that time should be brought on record through that document viz. First Information Report so that the possibility of any subsequent embellishment and concoction in the case may be checked. The First Information Report being a substantive place of evidence its use during the trial is for the limited purpose of confronting and contradicting the maker of it. First Information Report so that the possibility of any subsequent embellishment and concoction in the case may be checked. The First Information Report being a substantive place of evidence its use during the trial is for the limited purpose of confronting and contradicting the maker of it. This being the position of law if the information omits a material fact in the First Information Report and subsequently mentions it in his deposition at the trial, then his attention being drawn to that omission if satisfactory explanation does not come forth, his statement in the trial can be branded as an improvement and after though and his testimony deserves to be discarded on that score. 35. It is the settled positions of law that the First Information Report affects the credibility of the informant only and on that count the testimony of other witness, if otherwise credible, should not be disbelieved but in assessing the truthfulness of the prosecution case of material facts cannot be lost sight of commissions and excluded from consideration if they adversely affect the probabilities of the case. In this connection reference may be made to the principle enunciated in the case of Ram Kumar Pande v. The State of Madhya Pradesh (1975 SC 1026) wherein their Lordships have been pleased to observe as under: "No doubt, an First Information Report is a previous statement which can, strictly speaking be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the Evidence Act in judging the veracity of the prosecution case." 36. With this propositions of law in view, we will now discuss the evidence of Mst. Sohankanwar and see whether she is a witness of sterling worth on whose evidence the conviction of the appellant could justifiably be based. 37. Her deposition is that on seeing the glaze of light in the Dhani she woke-up and awakened her grand son Babu and then both of them went outside where Bhomji was sleeping. She than narrated as to how Imji inflicted axe blows on her husband causing his death. Relations between Mst. Sohankanwar and Imji were quite strained Enemity is a double edged weapon which may cut both the ways. Hence the possibility of Imji alias Imia committing the murder of Bhomji is there but at the same time the possibility of Mst. She than narrated as to how Imji inflicted axe blows on her husband causing his death. Relations between Mst. Sohankanwar and Imji were quite strained Enemity is a double edged weapon which may cut both the ways. Hence the possibility of Imji alias Imia committing the murder of Bhomji is there but at the same time the possibility of Mst. Sohankanwar reaching near her husband after the assailant had run away from there, cannot be ruled out. Conduct of Mst. Sohankanwar immediately after the occurrence is to be examined in this respect. So far as her telling the name of Imji to Shivdansingh is concerned, from our discussion above we are, inclined to hold that this version of her is not corroborated by Shivdansingh. 38. Relevant it is to note that the Investigating Officer had only recorded the statement of Mst. Sohankanwar on the day he reached village - Railwada for investigation. The rest of the witnesses were examined by him after about thirteen days i. e. on 22-6-73. The Investigating Officer having come to know that Mst. Sohankanwar had disclosed any thing about the incident to so many persons did not care to interrogate the laters for such a long period. It casts suspicion on the fairness of the investigation and further given rise to an inference that if Mst. Sohankanwar had disclosed the name of the culprit to Babu, Kumbharam, Sheraram, Modaram and Rooparam immediately after the occurrence. These persons would have been surely examined by the Investigating Officer without delay. The explanation given by the Investigating Officer for such a long delay in not examining the important witnesses is also fantastic. He has stated that because no witness was available on the day he had reached for investigation to Railwada, Babu's presence at the Dhani of Bhomji cannot be doubted on the day next to the murder of Bhomji. Other witnesses also were the neighbours and so they could be easily available for interrogation if the Investigating Officer had at all cared to call for them. Another reason given by Mahbookhan, Station House Officer for not recording the statements of witnesses prior to 22-6-73 is that he was in a hurry to arrest the accused. The prosecution case is that on 9-6-73 appellant Imji was arrested at Panchodi Police Station and was sent with Constable to Osian Police Station the same evening. Another reason given by Mahbookhan, Station House Officer for not recording the statements of witnesses prior to 22-6-73 is that he was in a hurry to arrest the accused. The prosecution case is that on 9-6-73 appellant Imji was arrested at Panchodi Police Station and was sent with Constable to Osian Police Station the same evening. Thus the explanation of the Station House Officer Mehboobkhau for not recording the statements of the witnesses up to 9-6.73 may be believable, but the same cannot be believed for his neglecting to interrogate them for another period of thirteen days up to 22-6-73. It is for this reason that we find strength in the arguments of Mr. Kala that, that time was availed of by the prosecution to find out whether the persons before whom Mst. Sohankanwar had claimed to disclose the name of the assailant were agreeable to support her contention. 39. Another check available on record to test the veracity of Mst. Sohan kanwar s testimony is that if she and Babu had reached near the cot of Bhomji simultaneously then there appears to be no reason that she could see Imji inflicting the axe blows on her husband while Babu could only see the assailant running at the distance of about ten paundas from the Dhani. 40. A glaring fact throwing doubt on the veracity of the statement of Mst. Sohankanwar is about her awakening at the time of the incident. In her examination in-chief she has deposed that on seeing sudden glaze of light outside the Dhani she awoke and then along with Babu went to the place where Bhomji was sleeping on the cot. In her cross-examination she has given a different version by stating that she had seen Imji setting fire to the fencing and after that he came towards Bhomji and she also went towards Bhomji. This has come on record that it was stomy dark night. The reason given by Mst. Sohankanwar for arousing from sleep in the night is seeing the glaze of light outside the Dhani. If she had seen Imji setting fire herself then her version that it was the light which caused her sleep to break is not believable. Her two versions in this respect are not at all reconcilable. The reason given by Mst. Sohankanwar for arousing from sleep in the night is seeing the glaze of light outside the Dhani. If she had seen Imji setting fire herself then her version that it was the light which caused her sleep to break is not believable. Her two versions in this respect are not at all reconcilable. It is also relevant to note that there was a wall up to the height of the head of the man in between the place where she and Babu were sleeping and that where Bhomji was. In such circumstances it could not have been possible for her to see Imji setting fire to the fencing and then going towards Bhomji. 41. All these circumstances throw a doubt on her version that she had actually seen the appellant committing the murder of her husband or setting fire to the fencing. The enormity between the witness and the appellant is an important factor to lend strength to the argument of the learned Amicus-Curiae that because Imji was enemy of Bhomji, Mst. Sohankanwar must have suspected him to be the person committing crime and suspicion might have created an impression in her mind that he must have been the culprit. From our discussion above, we are inclined to hold that the statement of Mst. Sohankanwar that she identified Imji to be the real culprit does not inspire confidence and conviction cannot be based on her infirm solitary testimony. 42. Learned Public Prosecutor had laid much emphasis on the proof of motive in the case against the appellant. We agree with him that there was every reason for the annoyance of the appellant against Bhomji for the latter had given in 'Nata' her daughter Mst. Sita, wife of the appellant. Motive plays an important role in criminal cases but if other incriminating circumstances are absent in the case, motive by itself cannot be made the basis of conviction. In this case the statement of Mst. Sohankanwar having been disbelieved the proof of motive against the appellant is insufficient to prove his guilt. 43. Mr. Acharya learned Public Prosecutor, drew our attention to another circumstance against the appellant i. e. his surrendering himself at Police Station Panchodi in the next morning and lodging a report and producing an axe. In this case the statement of Mst. Sohankanwar having been disbelieved the proof of motive against the appellant is insufficient to prove his guilt. 43. Mr. Acharya learned Public Prosecutor, drew our attention to another circumstance against the appellant i. e. his surrendering himself at Police Station Panchodi in the next morning and lodging a report and producing an axe. This circumstance in no way helps the prosecution for the reason that there is discrepancy between the statement of Chhittarsingh, Station House Officer Panchodi, and Jassvant Singh, motbir to the memo of arrest of accused and seizure of the axe. The former had given the time to be 8.30 a.m. while the latter has stated that it was in the alter noon. The Station House Officer has stated that he has taken the axe in his possession and then called the motbir. Jaswantsingh has stated that when he reached the Police Station axe was in the hand of the accused. Apart from this the statement of Chittarsingh cannot be believed in view of the circumstance that Police Station Panchodi is at a distance of 35 miles from Railwada, as stated by Chhittarsingh, Station House Officer, and it could not have been possible for the appellant to leave Railwada in the midnight and reach Panchodi at 8. 30 a.m. Chhittarsingh has admitted that there is no means for reaching Panchodi at 8.30 a.m. through train or bus. It is also to be noted that if going on a camel Shivdansingh had reached Police Station Osian at 8.30 a.m., which is situated only at a distance of fourteen miles from Railwada, how could it be possible for the appellant to reach Panchodi Police Station which is at a distance of 35 miles from Railwada at 8.30 a.m, while going on foot. The information said to have been furnished by the appellant at Panchodi cannot be considered otherwise also as it is inadmissible in evidence against the accused. The axe said to have been produced by him, is found to be negative for human blood by the Serologist and the learned Public Prosecutor fairly concedes that the said recovery of the axe from the accused is not an incriminating circumstance against him. 44. From the above discussion, we are of the opinion that the prosecution has failed to establish the guilt against the appellant beyond reasonable doubt. 44. From the above discussion, we are of the opinion that the prosecution has failed to establish the guilt against the appellant beyond reasonable doubt. Hence we find no justification in his conviction for the offences under section 302 and 436 Indian Penal Code. 45. In the result, the appeal is allowed, the conviction and sentences passed against the appellant for die offences under sections 302 and 436 Indian Penal Code are set aside and he is acquitted of the said charges. He is in jail, he shall be set at liberty forthwith if not required in any other case.Appeal Allowed Accused Set At Liberty. *******