JUDGMENT 1. - This is an appeal by accused Narain, Prabhu, Dhudia and Govinda against the judgment dated 24-1-81 and 27-1-81 of the Sessions Judge, Jaipur District, Jaipur, in Criminal Case No. 31/80 (State V. Narain and others ) under S. 326 read with section 34. I.P.C., convicting and sentencing them to 10 years R.I. and a fine of Rs. 500/- each, and in default of payment of fine to further undergo three months R. I. 2. The prosecution case is that in the mid night between 22/23rd. April, 1980 at about 1-30 A. M. these accused attacked Kalu son of Mangla Jat of village Bhankri, Tehsil Kotputli, who was sleeping outside his house along with his daughter of 6-7 years. They all gave beating to the deceased by axe, on account of which Kalu expired after six days. Prabhat filed a report in the police station which is Ex. P. 9. The case was registered as C. R. No. 40 by Ex. P. 10, and after the investigation, the accused persons were challaned, tried and ultimately convicted and sentenced, as mentioned above.The incident was witnessed by Kumari Birma who raised hue and cry. On this Prabhat came and saw all these accused persons standing near his deceased brother's body. When he challenged them the accused said, "finish him also." On this he cried, which attracted Sohan, Prahlad, and Kishna etc., who came on the spot, Kishna had a torch in the light of which faces of all these accused were seen, but the accused ran away. 3. During the investigation, an axe was recovered from the custody of Dhudia and on the basis of information given to the police u/s 27 of the Evidence Act The trial Court examined Dr. Satish Kumar (PW 1), Prahlad (PW2). Sohanlal (PW3), Sitaram (PW4) Narain (PW5), Laxman (PW6), Sohan (PW7), Kishanlal (PW8), Birma (PW9), Prabhat (PW 10), Omprakash (PW1 11), Mst. Manni (PW12) Prabhu Dayal (PW13), Sawai Singh (PW14), and Din Mohammed (PW15). All the accused denied the charge and pleaded not guilty. Prabhu accused pleaded that he was on his well and produced three witnesses in his defence. 4. The trial Court found that according to the medical evidence the deceased I having expired after six days and looking to the nature of the injuries caused, offence j under section 326, I.P.C. only was made out. Prabhu accused pleaded that he was on his well and produced three witnesses in his defence. 4. The trial Court found that according to the medical evidence the deceased I having expired after six days and looking to the nature of the injuries caused, offence j under section 326, I.P.C. only was made out. The trial Court believed the testimony of the eye witnesses Prahlad (PW 2), Sohan (PW 7), Kishanlal (PW 8), Prabhat PW 10) and Birina (PW 9), and convicted all the accused holding that their evidence was sufficient to prove the case beyond all reasonable doubt. 5. Mr. Gupta appearing for the appellants has submitted that even on the assumption that the evidence of these witnesses can be believed, then also all that is proved is that these four accused persons were standing near the deceased having some weapons in their hands and they ran away. Mr. Gupta submitted that this was not enough for holding that the injuries were caused by all the four accused or any one of them. According to Mr. Gupta, it was a case of circumstantial evidence and every link in the chain should be equally strong. He pointed out that the established law regarding the circumstantial evidence is, that it must lead to only one hypothesis and rule out all others. He placed reliance on the judgment of this court reported in Raidania v. The State, 1953 RLW 338 , Nawal Singh v. State, 1956 RLW 35 and of the Hon'ble Supreme Court in Yudhister v. State of M. P., 1971 CAR 247 , State v. Gulzari Lai Tondon, 1979 SC 1382 , Jagdish Prasad v. The State, AIR 1979 SC 1510 and a reference was also made to Re Perryaswami Thevan Prisoner, AIR 1950 Mad. 714 , Mr. Gupta also pointed out that the statement of Prabhat and Mst. Manno (PW12) widow of the deceased are contradictory and the daughter Birma 'PW 9) has clearly said in cross-examination that she cannot identify any of the accused. 6. The learned P. P. has opposed the appeal and controverted the contentions of Mr. Gupta. He has submitted that the conviction can be based only on the evidence of last seen and, therefore, when all the accused were seen along with the deceased, who was lying injured immediately after the incident, this evidence would be sufficient to convict the accused. The learned P. P. has opposed the appeal and controverted the contentions of Mr. Gupta. He has submitted that the conviction can be based only on the evidence of last seen and, therefore, when all the accused were seen along with the deceased, who was lying injured immediately after the incident, this evidence would be sufficient to convict the accused. He placed reliance on the judgment of Ramanand v. State of H.P., AIR 1981 SC 738 . 7. I have considered the submission of the learned counsel for the appellants and the learned P.P. and have also gone through the entire record of the case including the evidence produced before the trial Court. I would first deal with the evidence of the daughter Birma and her mother Mst. Manno, widow of the deceased as they were in the same house and their presence on the spot is most natural. PW9 Birma, daughter of the deceased, aged 6 Years, has stated that while she was sleeping sear Kalu in the night, Duda and three others killed her father Kalu by axe and pharsas, on which she cried, Prabhat his uncle came there and then came Kishna, Sohan and Prahlad followed them, but Duda and others escaped. Duda is the person who is present in court. After saying so, she said that she does not know. She did tot identify the accused persons. In cross-examination, she said that her mother came when she cried and Prabhat and his wife also came there. 8. From her statement, it becomes clear that Duda was one of the persons who killed her father. However she did not identify the accused in the Court, she said that Duda is the same person present in the Court. She is a girl of six years of age. Her mother Mst. Manno (PW2) has stated that when her daughter cried, she tame out and saw Kishan, Prahlad, Sohan and Prabhat running after Dudia. In her cross - examination, she stated that she has not seen any body running nor she has sea any person running after any person. She is a girl of six years of age. Her mother Mst. Manno (PW2) has stated that when her daughter cried, she tame out and saw Kishan, Prahlad, Sohan and Prabhat running after Dudia. In her cross - examination, she stated that she has not seen any body running nor she has sea any person running after any person. PW2 Prahlad has deposed that Kalu was murdered by accused persons, because a year before the village people caught Dudia in the house of Prabhat, and then the village people humiliated Dudia and defamed him, Prabhat and Kalu are brothers According to him, he went to the spot on hearing cries of the girl, and in the torch light of Kishan he saw Narain, Prabhu, Govinda and Dudia running from the spot where kalu was lying on the bed. He followed them, but the accused escaped. Kaluram was lying injured on the bed and Birma was crying. Kalu's wife also came there and she cried, "Dudia has killed", The statements of Prabhat (PW10), Kishan (PW8), Sohan (PW7) and Prahlad (PW2) are all identical and similar. All of them reached there immediately after the occurrence and saw all the accused persons running. Prabhat has made an additional statement that when he reached the spot, the accused persons crossed him and when he challenged them, they told him that he must also be killed and they ran away.It is, therefore, established on record that all the four accused were on the spot where lying injured and they had weapons like axe and pharsa, and they ran away as soon as the witnesses came on the spot. 9. The crucial question is, whether on the above evidence, conviction of the accused u/s 326, IPC can be sustained. In addition to the above evidence, there is one more piece of evidence consisting of recovery of the axe at the instance of accused Dudia on the basis of his statement u/s 27 of the Evidence Act. Dudia's information memo is Ex. P, 21. and the recovery is evidenced by recovery memo Ex. P. 8. The trial Court has relied upon this evidence also to corroborate the evidence of the above witnesses. The prosecution case was argued in this court by the P. P. Shri G. C. Sharma and Mr. Khan, Government Advocate. 10. Dudia's information memo is Ex. P, 21. and the recovery is evidenced by recovery memo Ex. P. 8. The trial Court has relied upon this evidence also to corroborate the evidence of the above witnesses. The prosecution case was argued in this court by the P. P. Shri G. C. Sharma and Mr. Khan, Government Advocate. 10. Before I proceed to deal with the evidence, extracted above, I would like to mention that the principles about appreciation of circumstantial evidence require to be mentioned first. In Shanker Lal v. State of Maharashtra, AIR 1981 SC 765 the Hon'ble Chief Justice Mr. Chandrachud who delivered the unanimous judgment laid down the following principles for appreciation of circumstantial evidence : In a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. It is not to be expected that in every case depending on circumstantial, evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic indentations and their importance lies more in their application to a given set of facts then in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis." "While formulating its own view the High Court fell into an error in stating the true legal position by saying that what the court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond the "shadow of doubt". In the first place, 'shadow of doubt' even in cases which depend on direct evidence is shadow of`reasonable' doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonable doubt. In Jagdish Prasad's case (supra) there was no eye witness to prove that appellant inflicted any knife blow on the deceased. The Supreme Court found that the High Court accepted the following facts as proved. (i) that the appellant was seen by the three witnesses with a chhuri in his hand. In Jagdish Prasad's case (supra) there was no eye witness to prove that appellant inflicted any knife blow on the deceased. The Supreme Court found that the High Court accepted the following facts as proved. (i) that the appellant was seen by the three witnesses with a chhuri in his hand. (ii) that he was waiving the chhuri at that time and the witnesses warded off some of the blows with the dandas which they had ; and (iii) that the appellant was caught and taken to the police station. Their lordships held that even if we take these circumstances at their face value, there appears to be possibility of innocence of the accused. The relevant portion is as under. "Even if we take these circumstances at their face value they do not exclude the possibility of innocence of the accused There was no eye - witness to prove that the appellant had inflicted an knife blow on Bishan, and in the absence of such evidence coupled with the fact that the knife which was snatched from the appellant did not contain any bloodstains, it cannot be held that the circumstances proved in the case are incompatible with the innocence of the accused." In Nawalsinah's case (supra), the circumstances established against the I accused were that he was inside the house and came out with a naked sword in his hand immediately before the dead body of`A' was found inside the house. A Division 1 Bench of this Court held, that although primarily the circumstances are not established but even if it be held to be established and proved, it would not to a certainty exclude every hypothesis but the one proposed to be proved, because some other persons had ample opportunity to go inside the house and kill the deceased. The earlier judgment of Rajdania (supra) was relied upon. 11. The earlier judgment of Rajdania (supra) was relied upon. 11. If the statement of the girl Birma daughter of the deceased could have been believed, then the present one would have been a case of direct evidence, However, as the facts stand, this girl has taken a complete somersault even in examination-in-chief because after narrating the story as an eye witness, which normally she must have been when she came for identification of the accused, she completely refused and said that she does not know Dudia, and she cannot identify any of the accused persons as the one who have inflicted injuries to the deceased. would like to extract the relevant portion of her statement, because the entire wind has been taken out of the sails and the prosecution case has been knocked down completely by one who could have been the best natural witness:- " nwnk eqyfte ekstwnk vnkyr gS] fQj dgk fd eSa ugha tkurh uksV& xokg dks eqyfteku ds dVgjs ds ikl Hkstk x;k vkSj dgk x;k fd gkFk yxkdj nwnk dks crkvks rks mlus dgk& eSa ugha tkuqaA esjs dkdk dks dkVus okys dks eSa ugha tkurhA " This girl is of six years of age and from the questions put by the court, it appears that she does not understand the sanctity of speaking false. It appears that because of her tender age she could not remain consistent in her statements. May be that she was frightened or may be that she could not observe the assailants in the night and gave the names of the accused later on account of tutoring. Whatever the reason may be, it would not be safe to rely upon her testimony, in spite of any amount of moral certainty or moral conviction, which the court may have because or that would be convicting the accused persons in a criminal case on the basis of moral conviction alone in spite of absence of legal proof, which is not punishable in the present criminal Jurisprudence. I have, therefore, no alternative left but to reject her testimony and to hold that the net result of her testimony is that she is not able to identify the assailants who injured her father Kalu. It is a very curious coincidence in this case that her mother VIst. I have, therefore, no alternative left but to reject her testimony and to hold that the net result of her testimony is that she is not able to identify the assailants who injured her father Kalu. It is a very curious coincidence in this case that her mother VIst. Manno (PW12) has adopted the same technique in her statement, in as much as after mentioning in the examination-in-chief that she saw the witnesses running after Dudia, in cross-examination she stated that she did not seen. " eSaus rks fdlh dks u Hkkxrs ns[kk vkSj u fdlh ds ihNs Hkkxrs ns[kkA " 12. Her statement is of great importance to the prosecution but she has, failed to support the prosecution case. Undoubtedly Kalu's wife Mst. Manno (PW12) and his daughter Birma (PW9) were the most natural witnesses in the case being in the same house where the assailants killed the deceased Kalu, but both of them j have failed to support the prosecution case. 13. In the absence of the above evidence, we are only left with the statements of Prahlad. (PW2), Sohan (PW3) and Prabhat (PW10). They alleged that they reached the spot immediately after the occurrence and saw' the four accused persons running with the weapons. Assuming that their statements are true, and whatever they have said is correct, can it be said that on the basis of the circumstances that these four accused persons were seen with weapons near the body of the deceased' bed and ran away after they were seen by the witnesses, and can it be said that this circumstance alone is sufficient to prove that they inflicted injuries by axe or pharsas to deceased Kalu. Even if it is assumed that what Prabhat said is correct, namely, that on challenge they told Prabhat that he must also be killed, it only leads to the moral conviction that either of them or some of them have killed Kalu. The moral conviction howsoever strong it may he can never take the place of legal proof in a criminal case, j It is not the preponderance of evidence which matters, but evidence which proves the guilt of the accused beyond any shadow of reasonable doubt, which is required to convict an accused in a criminal case. The moral conviction howsoever strong it may he can never take the place of legal proof in a criminal case, j It is not the preponderance of evidence which matters, but evidence which proves the guilt of the accused beyond any shadow of reasonable doubt, which is required to convict an accused in a criminal case. If the evidence of the daughter Birma would have remained consistent, and she would have identified the accused, thenthese witnesses would have provided additional consideration but she having failed to identify even Dudia and having made a categorical statement that she cannot say who were the assailants, the testimony of these four witnesses cannot provide circumstantial evidence which lead to the only hypothesis that someone of them inflicted injuries on the person of the deceased. There appears to be a great probability that these accused may have inflicted the injuries, but it is not possible to give a categorical finding that they must have infected the injuries. The crucial difference between "may have" and "must have" would result in giving the benefit of doubt to the accused persons. 14. One more piece of evidence remains to be discussed, and that is the recovery of an axe from Dudia accused It is common ground and the learned P. P. has also accepted it that from the report of the Serologist it could not be established that the axe was having blood stains. The Chemical Examiner and the Serologist have stated that Barchi `Marked 35" had disintegrated blood stains and their origin cannot be determined. The important part of the report is, ``blood stains on item 32 and 35 are disintegrated and origin cannot be determined". Since, it was not possible for the serologist to say whether there was human blood on the weapon 'Barciii', the recovery of the weapon from Dudia cannot be treated as a circumstance to connect the accused, with the crime. 15. I have not discussed the medical evidence, because the Sessions Judge himself has found on the basis of the medical evidence that offence u/s 302, IPC was not made out, and it was only the offence of Section 326, TPC which was made out. 15. I have not discussed the medical evidence, because the Sessions Judge himself has found on the basis of the medical evidence that offence u/s 302, IPC was not made out, and it was only the offence of Section 326, TPC which was made out. In view of the above, none of the accused is connected with the crime, and it is not necessary to deal with the medical evidence in this easeThe result of the above discussion is that the prosecution has failed to prove its case beyond all reasonable doubt. As already discussed above, in the absence of legal 6 proof it is not possible to convict the accused persons solely on the basis of moral conviction, because moral conviction howsoever strong it may be, yet another type of legal conjecture and no legal conviction can be based on the basis of surmises and conjectures. It is true that a cold blooded murder is going unpunished, but since the daughter of the deceased and the wife of the deceased have themselves failed to give consistent statements, and knocked out the prosecution case by taking somersault, this court has no alternative but to acquit the accused. 16. The appeal is, therefore, accepted the judgment of the learned Sessions Judge, Jaipur District, Jaipur is set aside, and the accused appellants Narain, Prabhu Dhudia and Govinda are acquitted of the offence under Section 326 and 326/34, I.P.C. Accused - appellant Prabhu is on bail, and he need not surrender to it Accused - appellants Narain, Dhudia and Govinda are in Jail. They shall be set at liberty forthwith, if not required in any other case. Sd/- G.M. Lodha, J.Appeal Allowed. *******