JUDGMENT 1. - This is an appeal by Ishwar Singh, accused, against his conviction under Section 302, IPC and sentence of imprisonment for life and a fine of Rs. 500/- and in default of payment of fine to further rigorous imprisonment for three months awarded by the learned Sessions Judge, Jhalawar, by his judgment dated 22-8-80. 2. The prosecution story, in brief, is that on 14-6-1979, Takhat Singh (PW/1) filed an oral report at 7 a.m. in Police Station, Jhalawar that in the intervening night of 13-6-1979 and 14-6-1979, while he was sleeping in the night at 2 a.m., he heard a noise of beating in the house of accused-appellant Ishwar Singh. He also heard certain abuses being hurled by Ishwar Singh. When he went on the roof he saw that the accused was dragging some person by catching hold of his feet and was taking him towards a bada and, after about few minutes Ishwar Singh returned to his house. After some time Ishwar Singh came and knocked at the doors of the informant. On this the informant called his uncle Udai Singh, whose house was in the neighbourhood and called him that somebody wanted to enter into his house. On this Udai Singh told him that he was just coming after loading his gun. In the meantime, the accused came inside his house and told his informant, Takhat Singh, to come downstairs for two minutes as the accused wanted to talk to him. Takhat Singh refused to come downstairs and on this the accused gave a threatening that he had already killed Maganiya and, now it was the rum of the informant. In the meantime, Udai Singh came there and, on this the accused ran away. While returning back, the accused gave abuses to Udai Singh also. Thereafter, Takhat Singh went to Udai Singh and narrated the entire story. Then, both Takhat Singh and Udai Singh went to Baney Singhs house and lie was also told the entire story and then all these persons went to the house of the accused and saw that blood in large quantity was lying outside the house and there were marks of dragging a person. These marks were also blood-stained. The accused was not in his house and then all these three persons became scared and could not advance and sat in the house of Bancy Singh. These marks were also blood-stained. The accused was not in his house and then all these three persons became scared and could not advance and sat in the house of Bancy Singh. Then in the morning before sun-rise they started for the police station. On a report, the police registered a case under Section 302, IPC. Sub-inspector inspected the site on 14-6-1979 and found the dead body of Magania son of Baxa Gujar, resident of Kalmandikala outside the Bada adjoining the house of the accused. There were number of injuries on the person of the deceased. The dead body was sent for post-mortem and, on examination it was found that there were nine injuries by sharp edged weapon on the neck and face of the deceased, and three by blunt weapon. In the opinion of the Doctor, these injuries were anti-mortam and the death of Magania was the result of these injuries. The accused was arrested on 14-6-1979 and at his instance, the axe Article 5 was recovered on 15-6-1979. The said axe was recovered from the bada of the accused. The accused when arrested was wearing shoes and payajama which were also found to be bloodstained and the same were also taken into custody. Sand was also collected from the spot which was stained with blood, and the axe, the payajama, shoes and sand were sent to the chemical Examiner. According to the report of the Chemical Examiner, all the above articles were found containing blood. After completing the investigation the challan was submitted in the Court of Munsiff and Judicial Magistrate, Jhalawar from where it was committed for trial to the Court of Session, Jhalawar. The accused was read over the charge under Section 302, IPC. The accused denied the charge and claimed to be tried. The plea of the accused is of total denial. The prosecution examined in all 14 witnesses in support of its case. The accused did not examine any witnesses in defence. The learned Sessions Judge on the basis of the prosecution evidence found the accused guilty for having committed the offence of murder and convicted him under Section 302, IPC and sentenced in the manner stated above. 3. Aggrieved against the aforesaid judgment of conviction the accused has filed the present appeal. The accused did not examine any witnesses in defence. The learned Sessions Judge on the basis of the prosecution evidence found the accused guilty for having committed the offence of murder and convicted him under Section 302, IPC and sentenced in the manner stated above. 3. Aggrieved against the aforesaid judgment of conviction the accused has filed the present appeal. Learned counsel for the appellant contended that it is a case of circumstantial evidence and there is no direct evidence against the accused for having seen the commission of the crime by the accused. 4. As regards the circumstantial evidence it is contended that Takhat Singh, who lodged the First Information Report, is not a reliable witness. The enemy between the prosecution witness including Takhat Singh and the accused are admitted. Under these circumstances, it cannot be believed that the accused who came in the dead of night at the house of Takhat Singh for drinking water would tell him that he had committed the murder of Magania. It is further contended that there are serious discrepancies in the statements of Takhatsingh, Udaisingh and Baneysingh on the point that they had seen the dead body being dragged by the accused and that they had identified or seen the dead body of Magania in the night and had thereafter came to lodge the report in the police station, Jhalawar. It has also been contended that the prosecution has failed to submit report of the serologist to show that the axe, salbar and payajama of the accused and the sand collected on the spot contained human blood. The absence of such report leads to a great infirmity in the prosecution case. It has also been contended that the Axe Article 5 was laying in an open place and had already been seen by the prosecution witnesses as well as by the Sub-Inspector of Police before getting the same recovered from the appellant under Article 27 of the Evidence Act. According to the learned counsel such a recovery has no value and the appellant cannot be convicted with the crime for the recovery of such article. Reliance in this connection is placed on Nojali v. Sarkar ( AIR 1950 Raj 5 ;) Rajranga and Ors. v. The State of Rajasthan (RCC 1981 page 77) and Mithalal v. State of Rajasthan (1980 WLN (UC) 262). Reliance in this connection is placed on Nojali v. Sarkar ( AIR 1950 Raj 5 ;) Rajranga and Ors. v. The State of Rajasthan (RCC 1981 page 77) and Mithalal v. State of Rajasthan (1980 WLN (UC) 262). It has also been contended that PW/4 Ram Pyari has been examined from the prosecution side to prove the motive of the crime. According to this witness, accused Ishwar Singh used to ill-treat his wife after taking liquor and, as such, she wanted to go to her fathers house. The wife of Ishwar Singh came to her house and the witness Ram Pyari purchased oneghatti for Rs. 12/- from the wife of the accused. According to Ram Pyari, the wife of accused Ishwar Singh was selling the ghatti in order that she wanted to go to his fathers house with that money. She further stated that thereafter accused Ishwar Singh twice made an attempt to kill her husband Magan Lal and told him that he had made his wife to flee and has made him a widower. On this account, lie would also kill her husband, as the wife of Ishwar Singh had gone to her fathers house by taking money from the wife of the deceased. According to the learned counsel for the appellant this motive for committing a ghastly crime like murder of Magania is a concocted one and nobody can be expected to commit a murder of a person on such a trivial matter. It has also been pointed out that even this incident, as alleged by Ram Pyari of selling Ghatti for Rs. 12/- took place about 8 months prior to the date of the alleged offence. Under these circumstances, it is contended that the evidence regarding motive produced by the prosecution is not to be believed and it cannot be a ground for committing the murder, it has also been contended that there is no evidence from the prosecution side to establish that any blood was found or collected inside the house of the accused. It has also been contended that though Takhat Singh, according to him, had come to know about the murder of Magania; but he did not disclose this to any of the family members of the deceased before lodging the First Information Report in the police station, and this conduct is highly unnatural. 5. It has also been contended that though Takhat Singh, according to him, had come to know about the murder of Magania; but he did not disclose this to any of the family members of the deceased before lodging the First Information Report in the police station, and this conduct is highly unnatural. 5. On the other hand, the learned Public Prosecutor argued that the case is proved beyond reasonable doubt against the accused and has supported the judgment of the learned Sessions Judge. 6. It is a settled law that when there is no direct evidence and the case is based 011 circumstantial evidence only, then the hypothesis of guilt should be incompatible with the innocence of the accused. In the present case, Takhat Singh is a star witness of the prosecution It has come in evidence that there was litigation going on between the family members of Takhat Singh and the accused. Under these circumstances, the statement of Takhat Singh cannot be taken at its face value. In the present case, there are important infirmities in the prosecution case which remains unexplained. Even Takhat Singh has not stated that he saw the accused dragging the deceased, but has only stated that he saw the accused dragging some man. He had not even identified the dead body as that of Magania deceased, before Tiling the First Information Report and his entire statement in this regard is based on the extra-judicial confession made by the accused to him. It is not understandable that when the relations between him and the accused were strained, how could it be expected that in the dead of night at 2 a.m. the accused would go at his house for drinking water and would tell him that he had killed Magania. Though, in the statement in the Court PW 2 Udai Singh has stated that the fact about extra-judicial confession was narrated to him by Takhat Singh, but he did not disclose this fact in his statement recorded by the polite under Section 161, Cr. P. C. Extra-judicial confession is a weak type of evidence and, in the facts and circumstances of this case, we are not prepared to believe the statement of Takhat Singh that the accused had made a confession before him. 7. As regards the motive of the murder, there is no other evidence except the statement of Ram Pyari PW 4. P. C. Extra-judicial confession is a weak type of evidence and, in the facts and circumstances of this case, we are not prepared to believe the statement of Takhat Singh that the accused had made a confession before him. 7. As regards the motive of the murder, there is no other evidence except the statement of Ram Pyari PW 4. She has only stated that the wife of accused Ishwar Singh had come to her residence about 8 months prior to the date of the incident and had sold a Ghatti for Rs. 12/-. According to this witness, accused Ishwar Singh had nurslled a grudge against the deceased as according to this witness, the accused, Ishwar Singh, considered this fact as instrumental for running away of his wife to her father house. This sort of motive to commit murder after 8 months, in our opinion, does not appear to be sound. Merely because the wife of the deceased had purchased a Ghatti for Rs. 12/- from the wife of the accused, it cannot be considered to be a motive behind the murder. 8. The prosecution has not produced the report of serologist to show that the blood found on the axe Article 5 alleged to have been recovered at the instance of the accused, shoes and Payajama and the sand collected from the spot, were stained with human blood, though, according to Takhat Singh he heard the cry of beating from within the house of the accused which might have led to an inference that the accused killed Magania in his house; but it is not supported by any evidence of blood having been found within the house of the accused. 9. Now, there remains the evidence of recovery of Article 5. axe, at the instance of the accused. In the matter of circumstantial evidence this evidence alone cannot be held sufficient for convicting the accused. That apart, in the present case, it has been admitted that Takhat Singh had gone to the house of accused along with police party and other villagers. They had seen the axe in question lying in a bush. 10. Under these circumstances, the recovery of the said Article 5, Axe, at the instance of the accused looses much of its evidentiary value. They had seen the axe in question lying in a bush. 10. Under these circumstances, the recovery of the said Article 5, Axe, at the instance of the accused looses much of its evidentiary value. Thus, in our view, there is no clinching evidence leading us to an irresistible conclusion that it was the accused alone who can be held responsible for the murder of Magania, deceased and the accused-appellant is entitled to the benefit of doubt. 11. In the result, we allow this appeal, set aside the conviction and sentence passed by the learned Sessions Judge Jhalawar dated 22/8/1980, and the accused-appellant is acquitted of the charge of murder. The accused-appellant who is confined in Central Jail, Jaipur, is ordered to be released forthwith if not required in any other case.Appeal Allowed. *******