JUDGMENT 1. - This is a jail appeal preferred by Narain through Superintendent, Centra Jail, Jodhpur against the judgment of the Sessions Judge, Sri Ganganagar dated 18th May, 1974 by which the appellant was convicted of the offence of murder under section 302 I.P.C. and sentenced to undergo imprisonment for life. 2. The incident that led to the arrest and prosecution of the appellant may be briefly stated as follows : 3. On 24. 6. 73 at about 11.45 A. M. Shri Vijaysingh son of Harisingh Rajput resident of village Ratasar lodged a verbal report with the police at Police Station Suratgarh about an incident of murder. It was stated in the report that on 23-6-73 at about 8 or 8.30. P. M Shivlal son of Cholaram Jat informed him in the village that at about 11 A. M. on that day Narain appellant and his wife Mst. Kesar had gone to their field along with a she camel for taking out sand from their tank (Kund) which was situated in the field itself, but they did not return up to the evening. Thereupon at the instance of his father, Shivlal went to the field of the appellant and saw the appellant's wife Mst. Kesar lying dead in the tank (Kund) and the she camel tied nearby to a tree of Khejri. On receiving the aforesaid news Vijaysingh accompanied by Surat Singh, Ramuram, Baneysingh and other villagers - about 15 to 20 in number rushed to the spot and reached there at about 10 A. M. In the light of the burning lantern they saw Mst. Kesar lying dead in the tank i. e. Kund near which blood was lying. It was suspected that Narain appellant had killed his wife and thrown the dead body into the Kund. 4. Upon receipt of the verbal report Umed singh, S. I. reduced it into writing and registered a criminal case under section 302 I. P. C. on its basis. After registering the case Umed singh took up usual investigation into the matter and reached the spot. He caused the dead body of Mst. Kesar to be taken out of the Kund wherein it was lying. He prepared a site plan and a site inspection memo. Then he prepared a Panchnama on the dead body and took blood stained earth into his possession from near the Kund. He caused the dead body of Mst. Kesar to be taken out of the Kund wherein it was lying. He prepared a site plan and a site inspection memo. Then he prepared a Panchnama on the dead body and took blood stained earth into his possession from near the Kund. In the tank he found one packet lying after having been tied with the rope which was blood stained. He also took the bucket into his possession. Then he called for Dr. D. P. Gupta for performing post mortem examination on the dead body. Dr. D. P. Gupta conducted an autopsy on the dead body on 24-6-73 at 5 P. M. at the spot and found the following external injuries on it: (1) There was an incised wound measuring 4" x 1" x muscle deep on the right cheek at the level of the angle of mouth, distorting the angle and causing fracture of the upper jaw on the right side, and breaking two molars of the right upper jaw. This wound also injured the facial artery of the right side. (2) There was an incised wound measuring 6" x 1" x 1/2" (muscle deep) on the anterior part of the neck just above the thyroid cartilage. ⅘th of this was on the right side and ⅕th on the left side. Sterno mastoid muscle and external carotid artery of the right side was injured. (3) There was an incised wound measuring 3/4" x 1/4" on the left shoulder. (4) In continuation to injury No. 3 towards the medial there was a linear cut about 3" long. Relation between injuries 3 and 4 had been shown diagra-matically on the post mortem report. In his opinion the cause of death was injuries leading to haemorrhage and shock. According to the opinion of the doctor all the injuries were ante mortem in nature and injuries Nos. 1 and 2 were cumulatively sufficient in the ordinary course of nature to cause the death of the deceased. All the injuries could be caused by an axe. The duration of death in the opinion of the doctor was 24 hours prior to the post mortem examination. After the post mortem examination was over Umedsingh S. I. deputed constables to search out the appellant. All the injuries could be caused by an axe. The duration of death in the opinion of the doctor was 24 hours prior to the post mortem examination. After the post mortem examination was over Umedsingh S. I. deputed constables to search out the appellant. The appellant however absconded and his whereabouts could not be traced till 12-7-73 on which date he was arrested by Umed Singh near a temple at Suratgarb. After his arrest the appellant gave Umedsingh, S. I. an information on 14-7-73 while in the Police custody that he had buried an axe after digging a pit in the ground near the back side wall of his Saal which is situated in his field and he was prepared to get it recovered at his instance. Umedsingh, S. I. reduced the above information into writing in a memo Ex. P. 12 and thereafter recovered the axe from the place mentioned by the appellant in his memo of information. The axe was dug out by the appellant himself in the presence of Motbirs and produced before Umedsingh, S. I. As the axe was suspected to have stains of blood on it, it was seized and sealed by Umedsingh at the spot in the presence of Vijaysingh and Khumanaram Motbir. The sealed packet was kept in the Malkhana of the Police Station and thereafter it was sent to Chemical Examiner for analysis along with other articles and clothes of the deceased. The Chemical Examiner detected blood stains on the axe i. e. Kulhari and forwarded it to the Serologist for further examination. The Serologist examined the axe and found it stained with human blood. Umed Singh, S I. collected other necessary evidence in the case and eventually filed a charge sheet against Narain appellant under section 302 I. P. C. in the court of Munsif Magistrate, Suratgarh who after holding an inquiry preparatory to commitment committed the appellant to the court of Sessions Judge Sri Ganganagar for trial under section 302 I. P. C. The Sessions Judge tried the appellant and found him guilty of the offence of murder and convicted and sentenced him as stated above. Aggrieved by his conviction and sentence the appellant has come up in appeal to this Court through Superintendent, Central Jail, Jodhpur. Aggrieved by his conviction and sentence the appellant has come up in appeal to this Court through Superintendent, Central Jail, Jodhpur. As the appellant was not represented by any counsel of his choice this Court considered it just and proper to appoint an Amicus Curiae to represent him in this Court and to argue the appeal on his behalf. Accordingly we appointed Mr. B. Advani, Advocate as Amicus Curiae for the appellant in this case. 5. We have heard Mr. B. Advani, Amicus Curiae for the appellant and Mr. D. S. Shishodia, Public Prosecutor for the State and carefully perused the record, 6. The first contention put forward before us by Mr. B. Advani, Amicus Curiae for the appellant is that there is no direct evidence on the record to prove the connection of the appellant with the crime of murder and the entire case against him hinges on circumstantial evidence which is highly unworthy of credence and which is capable of being explained away on other hypothesis than that of his guilt. It was further urged by the learned Amicus Curiae that the recovery of the axe at the instance of the appellant and in consequence of his information recorded under section 27 of the Evidence Act is highly suspicious and is hardly capable of providing a strong link in the chain of evidence against the appellant. Likewise according to the submission of Mr. B. Advani the evidence of Dhannaram P. W. 3 who claimed to have last seen the deceased in the company of the appellant is of no material significance, in view of the fact that the prosecution could not lead any evidence to show that the appellant and his wife Mst. Kesar had reached their field together and remained there for some time prior to the occurrence. Mr. B. Advani further contended that the trial Judge wrongly held upon evidence in the case that the appellant had absconded. According to him the appellant surrendered himself before the police, as soon as he came to know that his wife had been murdered. 7. Mr. D.S. Shishodia, Public Prosecutor on the other hand strenuously urged before us that the circumstances brought on the record and relied upon by the trial Judge have been fully established and are of a conclusive tendency and are incapable of being explained away on any hypothesis other than the guilt of the appellant. 7. Mr. D.S. Shishodia, Public Prosecutor on the other hand strenuously urged before us that the circumstances brought on the record and relied upon by the trial Judge have been fully established and are of a conclusive tendency and are incapable of being explained away on any hypothesis other than the guilt of the appellant. Mr. D.S. Shishodia further urged that the appellant was last seen in the company of the deceased by Dhannaram, P. W. 3 and thereafter an axe stained with human blood was recovered at his instance and in consequence of his information recorded under section 27 of the Evidence Act. Apart from this the subsequent conduct of the accused also provided a strong link in the chain of the evidence against him because he could not offer any explanation why his whereabouts were not traceable after the occurrence. 8. We have given our anxious consideration to the rival contentions mentioned above. At the out set we may observe that the prosecution could not produce any eyewitness to connect the appellant with the murder of his wife. The prosecution case solely rests upon circumstantial evidence. Hence it has to be ascertained whether the circumstances relied upon by the prosecution to prove the connection of the appellant with the crime have been fully established by cogent and reliable evidence and whether the circumstances so proved are consistent only with the guilt of the appellant and are of conclusive tendency and unmistakeably point to the only conclusion that( no other person but the appellant was the murderer. 9. The following are incriminating circumstances that have been brought on record by the prosecution ; - (1) The.deceased was last seen in the company of the appellant by Dhannaram P. W. 3 at about 11 or 12 in the noon on the day of occurrence. (2) The she camel was found tied to a Khejari tree at some distance from the Kund of the appellant wherein the dead body of his wife was seen lying dead. (3) The recovery of an axe stained with human blood from underneath the ground near the back side wall of the Saal of the appellant which is situated in his field itself. This recovery was made at the instance of the appellant and in consequence of his information which he had furnished to Umedsingh, S. I. while being in the Police custody. This recovery was made at the instance of the appellant and in consequence of his information which he had furnished to Umedsingh, S. I. while being in the Police custody. (4) The appellant absconded after the commission of the crime and could not be arrested by the Police till 12-7-73 i. e. after about 19 days. 10. Now we take up all the aforesaid circumstances one by one for discussion. 11. The first incriminating circumstance relied upon by the prosecution was that about 11 A. M. or 12 in the noon on the day of occurrence the appellant was last seen in the way going with his wife towards his field by Dhannaram P. W. 3. To prove this circumstance the prosecution has examined Dhannaram whose evidence in the trial court was that he was coming from his field and going to his house at about 11 A. M. or 12 in the noon on the day of occurrence. In the way he claimed to have seen Narain appellant mounting on a she-camel and going towards his field along with his wife Mst. Kesar deceased who was going on foot behind the she-camel. The evidence of Dhannaram if taken at its face value is not capable of providing any stung link in the chain of evidence against the appellant because he did not say in his, deposition that he had seen the appellant and his wife in their field or near about the tank in which the dead body of the deceased was later on found lying. He merely claimed to have seen the appellant and his wife in the way going towards their field but it is not clear from his evidence as to how much was the distance between the place of occurrence and the place where he had seen the appellant and his wife moving towards their field. Apart from this it is obvious from the statement of Dr. D.P. Gupta who performed post mortem examination upon the dead body of Mst. Kesar-at 5 P.M. on 24-6-73 that her death occurred about 24 hours prior to the time of post mortem examination. From the above evidence of the doctor it may be safely held that Mst. Kesar might have been killed at about 5 P. M. on 23-6-73. D.P. Gupta who performed post mortem examination upon the dead body of Mst. Kesar-at 5 P.M. on 24-6-73 that her death occurred about 24 hours prior to the time of post mortem examination. From the above evidence of the doctor it may be safely held that Mst. Kesar might have been killed at about 5 P. M. on 23-6-73. If the testimony of Dhannaram had been that he saw' the appellant and the deceased going together near about the place of occurrence at about 5 P. M. or a little before the time it would have been surely helpful in unmistakeably pointing to the guilt of the appellant, but the mere fact that the deceased was last seen by him in the company of the appellant about 5 or 6 hours prior to the occurrence is not such a circumstance as may irrestibily lead to a conclusion that the appellant remained in the company of his wife upto 5 P. M. in his field on that day and no other person but he alone was responsible for her murder. The possibility of the appellant having left the company of his wife in the way or in the field and having gone elsewhere could not be eliminated altogether. In the absence of any positive evidence that he was in the company of his wife in his field after 11 or 12 in the noon. Consequently we are of the view that this circumstance of last seen is capable of being explained away on hypothesis other than the guilt of the appellant. 12. Mr. D.S. Shishodia, Public Prosecutor vehemently contended before us that the she camel of the appellant was found tied to a Khejari tree at some distance from the tank in which the dead body of Mst. Kesar was seen lying, and so this fact clearly goes to prove that the appellant was in the field and he ran away after committing the crime of murder of his wife because had he been not present in the field his she-camel would not have been found tied to a Khejari tree at some distance from it. Kesar was seen lying, and so this fact clearly goes to prove that the appellant was in the field and he ran away after committing the crime of murder of his wife because had he been not present in the field his she-camel would not have been found tied to a Khejari tree at some distance from it. The above contention has no force; firstly, because Umedsingh, S. I. did not say in his deposition at the trial that he had seen any she-camel of the appellant tied with to a Khejari tree at the time of the site inspection, It is no doubt true that Vijaysingh K P.W. 1, Surajgir P.W. 2 and Shivlal P. W. 4 have deposed in the trial court that they had seen a she-camel tied to a Khejari tree at some distance from the place of occurrence, but they could not say that any of them had taken away the she-camel t from there and so it was not found there at the time of site inspection by Umedsingh. Had the she-camel been there at some distance from the place of occurrence having been tied to a Khejari tree it would have been found there on the next day when the site was inspected by Umedsingh. Consequently we do not attach any importance to this circumstance which has not been conclusively established on the record by the prosecution. 13. Another circumstance on which reliance has been placed by the prosecution to connect the appellant with the crime of murder is recovery of an axe which was proved to be stained with human blood from underneath the ground near the back side wall of the saal of the appellant which is situated in his field itself To f prove the recovery of the axe the prosecution has examined Umedsingli S.I. P.W. 7 and Vijaysingh Motbir P. W. 1. The evidence of Umedsingh S. I. on this point is that he arrested the appellant on 12-7-73 vide memo of arrest Ex. P. 1. After the arrest the appellant gave him an information on 14-7-73 that he had buried underground an axe near the back side wall of his Saal which is situated in bis field itself i and that he was ready and willing to get it recovered at his instance. Umedsingh further stated that he recorded the above information in a memo Ex. Umedsingh further stated that he recorded the above information in a memo Ex. P. 12 and took away the appellant and the Motbirs to the place where the axe was lying concealed. I The appellant then dug a pit near the back side wall of his Saal and took out an axe which was seized and sealed by Umedsingh S. I. at the spot in the presence or Vijay ; Singh and Runnaram Motbirs. The above testimony of Umedsingh S. I. relating to the information of the appellant which led to the recovery of the axe does not find I corroboration from the evidence of Vijaysingh who gave an altogether different version by stating that he was called for by the Police at the place of recovery and in his I presence the appellant informed the S. H. O. that he had buried there an axe. Vijay Singh further stated that the S. H. O. then recorded the information given out to him I by the appellant and obtained a thumb impression of the appellant on it. Thereafter the appellant took out the axe and produced it before Umedsingh S.I. If the evidence of Vijaysingh is taken to be true then the testimony of Umedsingh S.I. that the appellant gave him an information that led to the recovery of an axe at the Police Station and he recorded it there and then becomes highly suspicious because Umed Singh S. I. definitely stated that Vijaysingh was not present at the time when information leading to the recovery of an axe was furnished to him by the appellant at the Police Station. . 14. There is another circumstance which throw considerable doubt upon the recovery of the axe, the place and in the manner alleged by the prosecution. Shivlal P. W. 4 clearly admitted in his cross-examination that on the day when the Police came to the place of occurrence the Police picked up the axe from the tank i. e. Kund and the axe which was picked up by the Police belonged to Narain appellant and it was stained with blood. Shivlal further admitted that so far as he remembered the axe was lying near the bucket and the rope at the spot itself. Shivlal further admitted that so far as he remembered the axe was lying near the bucket and the rope at the spot itself. The above admission of Shivlal clearly show that the story of the axe having been found buried underground near the back side wall of the Saal of the appellant and of having been taken out by the appellant and produced before the Police in consequence of his information recorded under Section 27 of the Evidence Act is highly incredible and palpably false. Apart r from this, there is no evidence to show that this axe was put up for identification in a test parade prior to its production in the court and it was got identified in the parade by some identifying witnesses to be of the appellant. Hence the circumstance of the blood stained axe is of no value. 15. The last circumstance which has been taken into consideration by the trial Judge in convicting the appellant for the offence of murder is that the appellant absconded soon after the commission of the crime. This circumstance also has not been fully established by the prosecution. The appellant was arrested 19 days after occurrence. There is no material on the record to show that a warrant of arrest was issued against him after his whereabouts were not traceable or any proceedings under sections 87 or 88 Cr. P. C. were initiated against him to compel his attendance. The prosecution did not even examine the constable who were deputed to search him out. In the absence of any cogent, clear and convincing evidence we do not feel inclined to hold that the appellant absconded soon after the occurrence. Umedsingh S. I. merely stated that the appellant was not available in his village or in the neighbouring villages. This sort of evidence is not sufficient to prove absconding. Even if it is held that the appellant disappeared from the village soon after the occurrence it is not a circumstance which lay itself is not sufficient to prove his complicity in the crime. In the absence of any other reliable evidence in proof of his guilt. 16. The result of the above discussion therefore is that the prosecution could not bring home guilt to the appellant beyond reasonable doubt. In the absence of any other reliable evidence in proof of his guilt. 16. The result of the above discussion therefore is that the prosecution could not bring home guilt to the appellant beyond reasonable doubt. Hence we accept the appeal filed by Narain appellant son of Chelaram, set aside his conviction and sentence and acquit him of the offence of murder under Section 3021. P. C. The appellant is in Jail. He shall be set at liberty forthwith if not required in connection with some other case. Sd/- K.D. Sharma, J., Sd/- Kanta Bhatnagar, J.Appeal accepted. - Appellant set at liberty. *******