JUDGMENT 1. - These two appeals filed by appellant Karma, one through the Superintendent, Central Jail, Udaipur and other the representative one, are directed against the judgment passed by the learned Sessions Judge, partapgarh dated June 4, 1977. By that judgment, the learned Sessions Judge had convicted the appellant for the offence under section 302 Indian Penal Code and sentenced him to imprisonment for life and a fine of Rs 100/-in default to undergo one months rigorous imprisonment. As the two appeals are by the same person and arise out of one judgment, they were consolidated and are disposed of by one judgment. 2. Briefly stated the facts of the case are, that, on May 22, 1976 at about 4.00 p.m. deceased Laliya, while going to Salangarh, met his brother Karma appellant outside his Jhumpaand asked him for abidi. Karma asked Laliya to go inside the house (Jhumpa). Laliya and Karma then went inside the house of Karma for a (bidi) smoke A little while thereafter Nanda (P.W 6) son of deceased Laliya, who was outside his own house at a distance of about 60 paces from the house of Karma appellant, heard the sound of the breaking of earthen pots. On seeing towards that side he saw the appellant Karma and his wife Suhagi (co-accused, since acquitted by the learned Sessions Judge) going at a fast speed towards the jungle. He also saw the lady carrying a child in her lap and Karma having either a lathi or an axe with him. He immediately rushed to that side and saw his father Laliya smeared with blood and having injuries on his head. He was in a sitting posture. Nanda made him lie and then went to inform his mother Smt. Jamna (P.W.7) who was picking up cotton at her field. Jamna went to the house of Karma and saw the dead body of Laliyi. Roopa and Nanda went to the police station Salamgarh. Nanda lodged the oral report with Himmat Singh, Station House Officer (P.W. 14) Police Station Salamgarh. The information was reduced into writing by the Station House Officer which is Ex.P 4. After registering the case, the Station House Officer went to the site and found the dead body of Laliya lying there. The Station House Officer inspected the site and prepared the Site Inspection Memo EX P 2 and the Site Plan Ex P.3. The information was reduced into writing by the Station House Officer which is Ex.P 4. After registering the case, the Station House Officer went to the site and found the dead body of Laliya lying there. The Station House Officer inspected the site and prepared the Site Inspection Memo EX P 2 and the Site Plan Ex P.3. He noted two injuries on the head of Laliya and prepared the Panchayatnama of the dead body which is Ex.P.9 The Station House Officer took in possession the blood soaked earth, the control soil, one bamboo stick, one kachoti an earthen utensil used for preparing the flour for leaves i.e. parat and pieces of earthen pots vide memo Ex.P 1. The clothes of the deceased, shirt and dhoti were also taken in possession by the Station House Officer. Dr. Himmat Singh (P. W.13) conducted the autopsy over the dead body of Laliya on May 23, 1976. The Doctor noted following injuries on the dead body:- (1) "Incised wound': Situated 5 Cm. above the left ear at the jurisdiction of left temporal, dimensions of the wound are 5x1x5 Cm and there is more graphing in the central of the wound than at the sides. The wound was penetrating through the scalp, skull bones and brain members leading to the laceration of the brain substances. There was heavy bleeding from the side of the injury and left car. The whole wound is full of thick clotted blood. (2) Incised wound: Situated 3 Cm. above the left ear over the upper and of temporal bone. The dimensions are 5x1x4 Cms. the graphing is more in the central than on sides and the wound is leading into the brain matter and causing its lacerations. Two small pieces of bones l x 11/2 x 1/2 and 1 x l x 1/2cm in dimensions are thrashed into the brain matter and rest of the none is cracked, (here was heavy blood from the side of injury and left ear. Because of the wound is full of thick clotted blood. 3. In the opinion of the Doctor the cause of death was shock because of severe laceration of the brain matter and sudden heavy loss of blood from the site of injuries and left ear. The duration of death was within 48 hours prior to the postmortem examination. 4. Because of the wound is full of thick clotted blood. 3. In the opinion of the Doctor the cause of death was shock because of severe laceration of the brain matter and sudden heavy loss of blood from the site of injuries and left ear. The duration of death was within 48 hours prior to the postmortem examination. 4. On May 25, 1976 Station House Officer Himmat Singh arrested the appellant Karma vide memo Ex. P 12. On May 31, 1976 the appellant furnished information to the Station House Officer for getting recovered the axe from the near Cudakui, Salamgarh. The information reduced into writing is Ex. P. 1. In pursuance of this information the accused got recovered one axe. The Station House Officer also recovered the underwear and dhoti from a place nearby. Ex. P. 10 is the memo of recovery of the axe and the clothe;. Suhagi co-accused, wife of the appellant was arrested c n June 17, 1976 vide memo Ex P. 13. The articles recovered during the course of investigation were sent in sealed condition to the chemical examiner with Bahadur Singh (P.W. 12) on July 1, 1976. The report of the Chemical Examiner is Ex. P. 13 and that of the Serologist Ex. P. 16. Ail the articles except the axe were found positive for human blood. After completion of the necessary investigation, charge sheet against the appellant and co-accused Suhagi was filed in the Court of Judicial Magistrate, Partapgarh. The learned Magistrate finding a prima facie case triable by the Court of Sessions Committed the two co-accused to the Court of Sessions to stand their trial. 5. The Earned Sessions Judge charge sheeted the appellant for the offence under section 302 Indian Penal Code and the co-accused for the offence under section 302/114/43 Indian Penal Code and recorded their pleas Both of them denied the indictments and claimed to be tried To substantiate its cam prosecution examined 14 witnesses in all. The appellant in his statement under section 313 of the Code of Criminal Procedure totally denied the allegations levelled against him and stated that on the day of the occurrence he was out at village Budawas. He also stated that the house from which the dead body is laid to have been recovered did not belong to him To substantiate hi contention he examined four witnesses. Suhagi gave a statement of complete denial. He also stated that the house from which the dead body is laid to have been recovered did not belong to him To substantiate hi contention he examined four witnesses. Suhagi gave a statement of complete denial. The learned Sessions Judge did not find any case established against Suhagi and acquitted her of the charge. He however believed the prosecution evidence regarding Karma appellant and convicted him and sentenced as stated earlier. 6. We heard learned counsel for the appellant and learned Public Prosecutor for the State and gave our anxious consideration to the material on record. Mr. Doongar Singh, learned counsel for He appellant has strenuously contended that there is no evidence against the appellant and his case being on the same footing as that of the co-accused Suhagi, the conviction cannot be said to be justified It has been stressed by the learned counsel that the circumstances on which the learned trial Judge has placed reliance do not establish the guilt of the appellant. According to him Ninda has implicated both the accused and the additional circumstance of recovery of axe and the clothes in pursuance of any information furnished by the appellant Karma has not been supported by the motbirs and there being no human blood on the axe, the conviction of the appellant is not sustainable. 7. Controverting these contentions, the learned Public Prosecutor submitted that there are strong circumstance against the appellant. The dead body was found in his house. He was seen going outside his house along with his wife immediately after the occurrence and an axe and blood stained clothes belonging to him were recovered in pursuance of the information furnished by ion it has been urged by the learned Public Prosecutor that this recovery distinguishes his case from that of the co-accused a id, therefore, it cannot be said that the case of the appellant is at par with that of his wife. 8. At the very outset, we may observe that there is no direct evidence against the appellant. 8. At the very outset, we may observe that there is no direct evidence against the appellant. The circumstances brought on record against the appellant are (I) Motive: Appellant Karma was owing money to deceased Laliya (2) Nanda (P.W. 6) seeing his father going inside the house of the appellant for smoking bidi and then there being a sound of breaking of the earthen pots and immediately thereafter the appellant and his wife going towards the jungle; (3) Recovery of axe, dhoti and underwear in pursuance of the information furnished by the appellant and there being human blood on those clothes according to the report of the Serologist. 9. In his deposition in the Court Nanda (P.W. 6) has stated that his father was owing money to Karma, and therefore, had gone to the house of the latter. Mr. Doongar Singh contended that this version does not find place in the first information report and it is an after thought. The question in cross-examination was put to the witness to that effect but for the reason best known to the learned counsel cross examining the witness, the information was not referred to him to prove that omission. Nanda has admitted that he has stated about his father going for abidi smoke to the louse of Karma. Jamna wife of the deceased has also stated about her husband owing money to Karma Even if the argument, that this money story was an after thought, is not taken into consideration still it would not be of any help to the prosecution for the reason that there is no evidence on record to suggest that the relations between the two brothers were strained. In his examination in-chief Nanda has denied to have any knowledge about his father having any quarrel regarding the fields. The witness has admitted that his father and Karma were on talking terms Mst. Jamna (PW. 7) has clearly deposed that she and her family members and Karma were on visiting terms, she also stated that both the brothers were on talking terms Punja (PW. 8) father of the appellant and the deceased and Roopa (PW. 8) and Deepa (PW. 5), their brothers have also stated that there was no quarrel between the two brothers Laliya and Karma. 8) father of the appellant and the deceased and Roopa (PW. 8) and Deepa (PW. 5), their brothers have also stated that there was no quarrel between the two brothers Laliya and Karma. This clearly shows that there was no enmity or strained relations between the two brothers so as to motivate the appellant to commit the murder of his brother. On the other hand, the- evidence of Nanda, if relied, is specific on the point that the two brothers had a talk aboutbidi and gone inside for a smoke. In the absence of any evidence regarding the motive, all that can be said is that the cause of incident, even if Nanda is to be believed, would have arisen at the spur of the moment. 10. The solitary witness in the case claiming to be an eye witness of the two broth-rs, the appellant and the deceased, going together inside the house of the former for a smoke ofbidi is Nanda, son of the deceased. The witness has stated that on hearing the sound of breaking of earthen pots, his attention was drawn and he saw towards that side and saw the appellant and his wife with child in her lap going at a fast speed towards the jungle in which direction their fields were. The witness has also professed to have seen the appellant having either a lathi or an axe with him while going from the house. It is Nanda who has said to have first of all gone inside the house and seen his father injured and dead. It is at the information furnished by him that his mother Jamna and uncle Deep and Roopa and another neighboured Nogji (PW. 2) had gone to the house of Karma and seen the dead body of Laliya lying there. 11. Criticising the truthfulness of the statement of Nanda, the learned counsel for the appellant has raised two points. According to him the house in which the dead body was found did not belong to the appellant and, therefore, there arises no question of Nanda seeing the appellant and is wife going out of his house after the incident. 11. Criticising the truthfulness of the statement of Nanda, the learned counsel for the appellant has raised two points. According to him the house in which the dead body was found did not belong to the appellant and, therefore, there arises no question of Nanda seeing the appellant and is wife going out of his house after the incident. Second attack on the testimony of this witness is,that,even if he was there outside his house the distance between his house aid the place of occurrence being about 60 paces according to him; 100 paces according to Roopa uncle of the witness and 80 pacts from the statement of the Patwari, it could not have been possible for him to hear the sound of the breaking of earthen pots. 12. The first point to be determined is whether there is sufficient evidence to hold that the house in which the dead body of Laliya was found belonged to the appellant. Nand and her mother Jamna have stated that the house belonged to Karms. Roopa, the brother of the appellant and the deceased, has also stated that the dead body of Laliya was lying inside the house of Karma. Hogji (P.W. 2) had stated that on being informed by Shambhuda, son of Roopa about the death of Laliya, he went to the house of Karma and saw the dead body of Laliya lying there. Punja (P.W. 3) father of the appellant and the deceased, has stated that ordinarily Karms was living with him but in rainy season sometimes he used to stay in the Jhumpa constructed on the Nila. He has further stated that during the days, Laliya had died, Karma was living with him. 13. The argument of the learned counsel that the Jhumpawas uninhabited has no force because articles like earthen pots and wooden Kachoti were found lying there. In such circumstances, we are convinced that the house m which the dead body was found, belonged to Karma where he and his wife were living. 14. 13. The argument of the learned counsel that the Jhumpawas uninhabited has no force because articles like earthen pots and wooden Kachoti were found lying there. In such circumstances, we are convinced that the house m which the dead body was found, belonged to Karma where he and his wife were living. 14. The next point to be determined is whether it was possible for Nanda to hear the sound of the breaking of the earthen pots from a distance of about 60-80 paces In our opinion, in the calm atmosphere of the place where there was neither noise nor any traffic, it could not being possible for Nanda to hear the sound of the breaking of the earthen pots inside the house of Karma. His statement stands corroborated by the Station House Officer Himmat Singh who has in covered pieces of earthen puts from the site during the course of investigation Nanda has stated about his father passing from outside the house of Karma while on his way to Salamgarh and the two brothers, after a talk of bidi going inside the house. If it was so it was still more possible for Ninda to be alert on hearing the sound of the breaking of the earthen pots. The question still remains as to whether from such a distance Nanda was able to hear the two brothers talking aboutbidi In our opinion that was also possible because the way to Salamgrrh was in front of the house of Karma and Nanda has nowhere stated 'hat his father had asked for bidi after reaching quite close to his brother. Possibility of Laliya asking for a bidi from some distance from Karma cannot be ruled out. The pitch of the voice of the villagers and specially agriculturists is ordinarily high than the persons residing in cities. In this view of the matter, we do not consider it improbable that Nanda Singh have heard the talk of the two brothers the deceased and the appellant about a bidi and then seeing both of them going together inside the bouse. In this view of the matter, we do not consider it improbable that Nanda Singh have heard the talk of the two brothers the deceased and the appellant about a bidi and then seeing both of them going together inside the bouse. As we have believed the version of Nanda that he saw his father and uncle entering the house of latter and then hearing the sound of breaking of the earthen pots inside, we have ample reason to believe his next version that his attention was attracted and he saw the appellant and his wife Suhagi going from their house 15. Nanda has deposed that he had informed his mother about Karma committing the murder of his father. He had given similar information to Roopa, Lichman. Mogji etc. Jamna had supported her son and stated that she was informed by Nanda that Karma had killed his father but the other witnesses have stated that he simply informed them about the death of Laliya and not that Karma had killed him. Be it as it may, it cannot be said to be an incriminating circumstance against the appellant for the reason that Nanda was not an eye witness to the actual occurrence and even if he had told his mother about Karma killing his father it was for the reason that he had seen his father going with Karma inside the house and then Karma and his wife coming out of their Jhumpa after there being a sound of breaking of the earthen pots. 16. The learned Public Prosecutor has strenuously contended that as the house belonged to Karma and he left the house immediately after the incident with his wife, the presumption would be that he and none also was the perpetrator of the crime. It has been stressed by the learned Public Prosecutor that the quarrel, even if any, might have taken place between the two brothers and Suhagi might have left the house in order lo accompany her husband or to avoid the situation of facing the persons reaching there on knowing about the incident. It has been stressed by the learned Public Prosecutor that the quarrel, even if any, might have taken place between the two brothers and Suhagi might have left the house in order lo accompany her husband or to avoid the situation of facing the persons reaching there on knowing about the incident. The learned counsel for the appellant emphatically controverted this statement and contended that even if the prosecution case as coming forth from the statement of Nanda is taken to be true, still guilt cannot be fastened on the appellant, because he was not alone there inside the house rather his wife Suhagi, the co-accused was also there. According to the learned counsel if there are two persons at a place along with the deceased then without there being any special circumstance against any one of them, it cannot be said with certainty who out of them was the culprit. To substantiate his case he placed reliance on the case of Pohalta Hotva velvi v. State of Maharashtra, 1980 S.C.C. (Cri.) 261. 17. In that case the accused and the deceased were last seen together and thereafter the accused came back alone and gave evasive reply on being asked the whereabouts of the deceased. Their Lordships were pleased to observe that ordinarily that would be incriminating. But in view of the facts and circumstances of that case their Lordships were pleased to hold that the circumstances would cease to be incriminating where another accused also accompanied the deceased besides the accused appellant but that accused was later acquitted by the court and the explanation given by the appellant regarding the d.ceaseds whereabouts also appeared probable. In that case apart from the circumstances that two brothers, the deceased and the accused, had left the house together, there was the circumstance of accused appellant having a spear in his hand which was subsequently recovered at his instance and was found to be stained with blood. At the time of his arrest his dhoti was found stained with blood. At the time of his arrest his dhoti was found stained with blood. Despite these incriminating circumstances, their Lordships did not find it safe to uphold the conviction of the appellant by the High Court in an appeal against acquittal for the reason that the co-accused, against whom also there were circumstances of being with the accused when he was seen alive last, wat acquitted and the State did not choose to question that acquittal, though it preferred an appeal against the acquittal of the appellant and the acquittal was set aside by the High Court. The other circumstances relied on by the prosecution were not considered by their Lordships to be sufficient to unequivocally point to his guilt and exclude any hypothesis consistent with his innocence. 18. The evidence of Nanda, in our opinion, is not sufficient to arrive at a definite conclusion that it was Karma and none else who was the perpetrator of the crime. 19. The argument of the learned Public Prosecutor that co-accused being a lady there was more possibility of the crime being committed by the appellant. On the other hand the contention of the learned counsel for the appellant that the possibility of there being sudden quarrel and the two brothers grappling and the lady in order to resource her husband causing injury to the victim, resulting in his death, cannot be tubed out. These submissions are based on surmises and conjectures only. We cannot overlook the cardinal principle of Criminal Law that prosecution should establish its case by cogent, convincing and definite evidence and should not expect conviction on conjectures and surmises. If there would have been any definite evidence about the appellant being armed with the weapon of offence and the same being stained with human blood, the prosecution case against him would have been strengthened. But as we would discuss ahead prosecution has failed to establish that part of its case. Nandas statement is that when he had seen the appellant and his wife going f om their house, he saw the appellant armed either with a lathi or an axe. The statement of the witness has impress of truth. It could not be possible for him to identify the thing with the appellant to be an axe or a lathi from such a distance. 20. The statement of the witness has impress of truth. It could not be possible for him to identify the thing with the appellant to be an axe or a lathi from such a distance. 20. In order to be definite whether the appellant was really having an axe with him at the time of his going from the house, we find it necessary to deal with, at this juncture, the prosecution evidence regarding the recovery of the axe in pursuance of the information furnished by him and find out whether that recovery, even if any, was an incriminating circumstance against the appellant so as to distinguish his case from the co-accused. 21. Himat Singh the Station House Officer has stated that on May 31, 1976 appellant Karma, who was arrested on June 25, 1976, furnished information for getting recovered the axe hidden by him at a Nala near Gudakui. That in pursuance of that information the appellant got recovered axe Ex. 1 in the presence of the motbirs and the recovery memo Ex. P. 10 was prepared. 22. It is pertinent to note that the two motbirs Karu (P.W. 10) and Kochar Mai (P.W. 11) have not supported the recovery being at the instance of the appellant. Kochar Mai (P.W 11) had stated that he bad not gone to the exact place of recovery. Even Karu (P.W. 10), who happens to be the cook of the Investigating Officer according to him. and cook of themess according to the Investigating Officer, has not supported the prosecution case that the axe was recovered at the instance of the appellant. According to the witness Karu, he was at a distance when the recovery proceedings were going on. He has further stated that the axe was not sealed at the site. The two motbirs have also deposed about the sealing of the axe at the police station and the memo also being prepared there. 23. It is not in all cases that the recovery of the weapon at the instance of the accused should be disbelieved when the investigating officer alone establishes it and the motbirs of not support him The testimony of the investigating officer can be pressed into service if it has impress of truth, but even then further evidence about that weapon being the arm of offence is required. In the present case the report of the Serologist shows that the axe was not positive for human blood. It is also pertinent to note that the recovery is from an open place and that too after six days of the arrest of the accused. Yet another fact which weakens this circumstance against the appellant is that the weapon was not shown to the Doctor at the time of his examination to have his opinion as to whether the injuries noted by him on the dead body of Laliya would have been caused by that weapon. A general question was put to the Doctor and he has stated that injuries could be caused by an axe. The learned counsel for the appellant placed reliance on the principle enunciated in the case of Kartarey and others v. State of C.P., AIR 1976 S.C. 76 that failure to show the weapon, if present, to the medical officer sometimes causes aberration in course of justice. If there would have been definite evidence about the article, the accused was having at the time he left the house being an axe and the recovery and the sealing of the article at the site being supported by the motbirs and also the article being positive for blood, the failure of he prosecution to show the weapon to the Doctor would not have mattered much. But in the given circumstances of the case when there is no evidence at all to connect the weapon with the commission of the crime and there being lack of evidence about the axe being with the appellant at the time of his leaving the house or he being the owner of the same, we are not inclined to agree with the learned Public Prosecutor that this recovery of the axe in any way can be pressed into service against the appellant or it may be taken into consideration to distinguish his case from that of the co-accused. 24. Another incriminating circumstance brought on record against the accused is the recovery of blood stained underwear and Dhoti from the jungle. Relevant it is to note that the motbirs to this recovery are the same as that for the recovery of the axe and we need not therefore, discuss their evidence much in this connection. 24. Another incriminating circumstance brought on record against the accused is the recovery of blood stained underwear and Dhoti from the jungle. Relevant it is to note that the motbirs to this recovery are the same as that for the recovery of the axe and we need not therefore, discuss their evidence much in this connection. These clothes are of course found positive for human blood but there is no evidence to establish that those clothes belonged to the appellant. It is also noteworthy that this recovery is said to have been made after six days of the appellant. It is still more important to consider that the Station House Officer has not stated about the appellant furnishing any information for getting the clothes recovered or their being recovered at his instance. All that the Station House Officer has stated is that after the recovery of the axe in presence of the motbirs he recovered the bandi(underwear) and Dhotifrom another place. This type of recovery, in our opinion, cannot be said to have any connection with the appellant and, therefore, cannot he held to be an incriminating circumstance against him. 25. Having discarded the two incriminating circumstances of recovery of the axe and the clothes in pursuance of the information furnished by the appellant and the axe being connected with the commission of the crime, we again switch on the point as to whether on the statement of Nandu alone it can be held with certainty that the appellant and none-else was the perpetrator of the crime. 26. The learned Public Prosecutor has pointed out one more circumstance against the appellant. According to him the very fact of the accused going away from the house knowing it that his brother had met death is sufficient to prove that he might have committed the crime and the wife might have accompanied him to avoid any interrogation. Mr. Doongar Singh, on the other hand, stressed that this cannot be a circumstance against the appellant. Firstly because absconding in itself is not conclusive proof of the guilt and secondly, even if the offence would have been at the hands of the lady, the husband would have accompanied her to save her or to avoid any interrogation at the hands of the persons reaching there knowing about the incident. 27. Firstly because absconding in itself is not conclusive proof of the guilt and secondly, even if the offence would have been at the hands of the lady, the husband would have accompanied her to save her or to avoid any interrogation at the hands of the persons reaching there knowing about the incident. 27. When there are two persons in a house and a third one is murdered there can be three possibilities; (i) both of them committing the crime. (ii) either of them committing the crime and the other one remaining a silent spectator and; (iii)one of them committing the crime and the other one being either an abettor or sharing the intention of the actual assailant for committing the crime. 28. In the case on hand there is no evidence direct or circumstantial to lead to any definite conclusion to bring the case in any of the three above mentioned situations. There being not an iota of evidence to indicate as to what actually happened inside the house and what actually led to the death of Laliya, we find ourselves unable to arrive at a definite conclusion that the appellant alone was the perpetrator of the crime. This being the position, we are constrained to hold that the prosecution case cannot be said to have been established beyond any shadow of reasonable doubt so as to justify the conviction of the appellant for the charge of murder. 29. In the result the appeal is accepted. The conviction and the sentence awarded to the appellant are set aside and he is acquitted of the charge. He is in jail. He shall be set at liberty forthwith, if not required in any other case.Appeal accepted. *******