JUDGMENT 1. - The appellant Kalia was convicted by the Sessions Judge, Balotara, by his judgment dated June 30, 1973, of the offences under Sections 302, 460, 457, 394 and 461, I.P.C., and was sentenced to imprisonment for life and a fine of Rs. 300/-, in default, to undergo three months' rigorous imprisonment, under Section 302, I.P.C.; to seven years' rigorous imprisonment and to a fine of Rs. 200/-, in default, to undergo two months' rigorous imprisonment under section 460, I.P.C., to seven years' rigorous imprisonment and to pay a fine of Rs. 200/-, in default, to undergo two months' rigorous imprisonment under section 461, The substantive sentences were ordered to run concurrently. No sentence was awarded to the appellant for Section 457, I.P.C., as the appellant was awarded sentence under Section 460, 1.P.C. 2. The prosecution case is that one Narsinghmal Oswal resident of Siwana lodged a written report Ex. P/1 at the Police Station, Siwana, on 16-4-1971. at 3.30, p.m., to the effect that he was called by Multanmalji Asuji through a boy and told him that Jivraj (deceased) had not been seen for the last 2-days and his house is bolted from outside. Jivraj was his sister's son. Thereupon, he visited the house of Jivraj and saw the dead body of Jivraj lying in on Ora in a tied condition and the locks of the house were found broken. The dead body was smelling, so it was decomposed. On this report, case under Section 302, I.P.C., was registered by the S.H.O. Khushal Singh, who visited the spot and conducted the spot investigation. He prepared Fird Surat Hal Lash Ex. P/4, site notes Ex. P/3 and site plan Ex. P/12. The clothes of the deceased and rope, with which the dead body was tied, were seized and its memo Ex. P/5 was prepared. The autopsy of the dead body was got conducted by Dr. Kedarnath (P.W. 7). The accused Kaliya was arrested on 27-4-1972 vide arrest memo Ex. P/7. The broken locks were seized vide memo Ex. P/8. The house was locked after site inspection, as some foot-prints were found inside the house. The S.H.O. called the Foot-print Expert from Jaipur. Shri Ajit Krishan (P.W. 16) along with Photographer Shri Suraj Narayan visited the house of the deceased on 20-4-1972. He found that there were three foot-prints covered by Tagaris. P/8. The house was locked after site inspection, as some foot-prints were found inside the house. The S.H.O. called the Foot-print Expert from Jaipur. Shri Ajit Krishan (P.W. 16) along with Photographer Shri Suraj Narayan visited the house of the deceased on 20-4-1972. He found that there were three foot-prints covered by Tagaris. The snaps of all the three foot-prints were taken. The photographs arc Ex. P/14, Ex. P/15 and Ex. P/16. Thereafter specimen photograph of the foot-print of the accused was taken. The specimen photograph is Ex S. I, the memo whereof is Ex. P/.9. On comparison it was found that the left foot-print S.I. of photograph Ex. P/14 tallied with the specimen foot print S. I of Ex. P/19. His report is Ex. P/ 20. At the time of arrest a key was found with the accused, which was seized and was deposited in Malkana. At the instance of the accused some stolen property was recovered. The house of the accused was got unlocked with the key recovered from the personal search of the accused and after digging a pit, some utensils, namely, Thali Ex. 1, Katordan Ex. 2, Dhakan Ex. 3 and Gilas Ex. 4 was recovered. The name of Jivraji Sawaji Siwana was found in scribed on Thali and Gilas and the name of Lalchand Dugarchand Jiwaji Siwana was found in scribed on Katordan and the name of Hastimal Tejraj was found in scribed on Dhakati. These utensils were packed and sealed and were put up for identification. The utensils were got identified by one Mst. Khama wife of Bakhtawarmal Oswal resident of Siwana, and the identification test was conducted by Shri Jagdish Narain Kalla, Tehsildar and Second Class Magistrate, Siwana (P.W. 12). Investigation was conducted from the witnesses. After completion of the investigation, charge-sheet was put up against the accused. The accused was ultimately tried by the learned Sessions Judge, Balotara At the trial the prosecution examined as many as sixteen witnesses. In his statement, the accused denied the prosecution case. He further stated that the police took him to the house of Jivraj on 27-4-1972 and he was asked to about bare footed inside the house. He also stated that Bhanwarsingh, Head Constable, told him on 28-4-1972 at about 3.00, p.m , that as no recovery has been effected from him, so utensils will be implanted and the Dy. S.P. would effect recovery. He also stated that Bhanwarsingh, Head Constable, told him on 28-4-1972 at about 3.00, p.m , that as no recovery has been effected from him, so utensils will be implanted and the Dy. S.P. would effect recovery. No evidence was led in defence. After hearing the arguments, the learned Sessions Judge convicted and sentenced the accused, as aforesaid. Dissatisfied with his convictions and sentences, this appeal has been preferred by the accused-appellant Kaliya. 3. We have heard Shri Ram Rakh Vyas, learned counsel for the appellant, and Shri M.C. Bhati, learned Public Prosecutor, for the State. 4. In the present case, there is no direct evidence against the accused. The prosecution case primarily is based on the recovery of the utensils belonging to the deceased at the instance of the accused and the evidence relating to the existence of the left foot-print of the accused at the spot. Before dealing with those places of evidence, we may first refer to the medical evidence. 5. According to Dr. Kedarnath (P.W. 7) the deceased died of asphyria. He found abrasion marks on the lateral wall of the right shoulder on both the legs, near the ankle joints, on both the thighs and on both the wrist joints. He stated that the abrasion can also be the result of tying. He further stated that the deceased did not die of strangulation. He found that dead body in a decomposed condition and so he opined that the deceased must have died 48 hours prior to the conduct of post-mortem examination. From the medical evidence, it appears that as a result of asphyia and suffocation the deceased died and there were no injuries found on the person of the deceased. It may be that after tying, the deceased remained inside the Ora, where the dead body was found, which caused suffocation. It may be stated that the exact time and date of death has not come in the prosecution evidence. The prosecution has examined one witness P.W. 2 Ganesha, and the other witnesses P.W. 4 Bansilal and also one more witness P.W. 11 Multanmal. So far as P.W. 11 Multanmal is concerned, he has stated that he came from Balwada on Baisakh Sud 1, St. 2028. He did not see Jivraj on Ekam or Bij (Dwitiya) and on Baisak Sudi Tritiya, St. So far as P.W. 11 Multanmal is concerned, he has stated that he came from Balwada on Baisakh Sud 1, St. 2028. He did not see Jivraj on Ekam or Bij (Dwitiya) and on Baisak Sudi Tritiya, St. 2028, when he was sitting outside his house purchasing Sangaria, his eyes fell on the house of Jivraj and he found that the house was bolted from outside. He also stated that whenever Jivraj used to go out from his house, he always used to lock the house. He informed Narsinghmal on Tritiya. Thereupon Narsinghmal came and Narsinghmal entered into the house of Jivraj. From his statement, nothing can be found as to when Jivraj died. It may be stated that the evidence of P.W. 11 Multanmal does not in any way connect the accused with the commission of the offence. Ganesha (P.W. 2) states that he saw the accused Kaliya, when he was returning from Mawadi village at about 10 or 11 in the night some 9 or 10 months ago. He identified the accused in the light of the torch, which was with him and there were two more persons in the company of the accused. He asked the accused as to where he had gone in the night. Thereupon, the accused told him that he had gone to take medicine from Jivraj. The deceased Jivraj was a druggist and chemist, and, used to vend drugs at his house. From the place, where the accused met, the house of the deceased was at a distance of about 25 Paundas. It may be stated that the statement of this witness was recorded by the police after 15 days of the occurrence and after 2-3 days of the occurrence, he came to know about the murder of Jivraj. This circumstance of Kaliya having met this witness in the night and having told that he had gone to the house of Jivraj for medicine, in our opinion, is of no consequence, as the testimony of this witness is not to this effect that he learnt about the murder of Jivraj in the following morning. According to the testimony of this witness, he learnt about the murder of Jivraj after 2-3 days. This time does not clearly synchronise with the medical evidence. According to the testimony of this witness, he learnt about the murder of Jivraj after 2-3 days. This time does not clearly synchronise with the medical evidence. He is not definite as to whether he learnt about the murder after two days or three days, whereas opinion evidence is of two days, that is, 48 hours, according to which the deceased must have died in the evening of 14-4-1972. The evidence of the other witness Bansilal (P.W. 4) is only to the effect that he saw the Kotadi of the accused open and he was found sitting in the company of three persons. He saw, when he was returning after closing the hotel and he learnt about the murder of Jivraj after four days thereafter. Thus, the evidence of Bansilal is of no help to the prosecution. 6. We may then take the evidence relating to recovery of the utensils and their identification. Though there is evidence of Khushal Singh, S.H.O., and the Motbir Heeralal (P.W. 3) that the accused dug a place in his house and got four utensils recovered. Even if the evidence of recovery is believed, still the prosecution did not lead any evidence relating to the identification of the utensils Mst. Khama, who was put up as identifying witness in the test identification, has not been examined by the prosecution. The recovery at the instance of the accused, has been shown, even without recording any information. When any recovery is effected at the instance of the accused, the Investigating Officer should have first recorded the information furnished by the accused. That apart, in the absence of any substantive evidence regarding identification of the utensils, the recovery evidence of utensils is of no avail to the prosecution and the formal evidence of the Tehsildar Shri Jagdish Narayan (P.W. 12) cannot be pressed into service for the purpose of proving the fact that the utensils belonged to the deceased. Thus, the recovery evidence of utensils also does not in any connect the accused with the commission of the offence. 7. The last material evidence, which the prosecution led in the case, is the circumstance of the left foot-prints of the accused found at the entrance of the deceased. Out of three foot-prints, only one left foot-print tallies with the specimen foot-print of the accused, as per the evidence of Ajit Krishna (P.W. 16). 7. The last material evidence, which the prosecution led in the case, is the circumstance of the left foot-prints of the accused found at the entrance of the deceased. Out of three foot-prints, only one left foot-print tallies with the specimen foot-print of the accused, as per the evidence of Ajit Krishna (P.W. 16). In this connection a very glaring infirmity appears in the prosecution case. According to Ajit Krishna and the Dy. S.P. Hari-Singh (P.W. 15), there were three foot-prints, which were covered under the Tagaris. As to when these foot-prints were covered by the three Tagaris, there is no material on record. The S.H.O. does not say that any foot - print at all was covered. The site plan and the site notes are also silent as to the covering of the foot-prints. What makes the story of covering of I foot-prints all the more doubtful, is that the two foot-prints were found at the entrance, of which there is no mention in the site notes Ex. P/3 and the site plan Ex. P/12. In the site notes and the site plan, what appears, is that there were two foot-prints of bare foot near the tables, but they were not clear, and, there was one foot-print on the cotton coat lying on the cot in the Barsali. This third foot-print on the cot is one of the foot-prints, of which the photographs were taken, but that foot-print on comparison did not tally with the specimen. As already stated, there is no mention of any foot-prints at the entrance and besides that there is no mention that the foot-prints were at all covered by Tagaris. Non-mention of covering of foot-prints, casts a serious suspicion on the presence of the foot-prints at the entrance. We have perused the photograph Ex. P/14. We have our own doubts that such a clear foot-print would have continued to remain intact despite the fact that before the arrival of the police Narsinghmal and several others had entered into the house. In such a situation, this possibility cannot be ruled out that the accused might have been taken in the house of the deceased bare-footed. That apart, even this evidence cannot be considered to be a clinching evidence, which may connect the accused with the commission of the offence. In such a situation, this possibility cannot be ruled out that the accused might have been taken in the house of the deceased bare-footed. That apart, even this evidence cannot be considered to be a clinching evidence, which may connect the accused with the commission of the offence. It may be that at any time before the death of the deceased, the accused Kaliya might have gone to the deceased for fetching medicine. There is no other evidence connecting the accused with the commission of the offence. In the light of the evidence, which we have considered above, we are of the opinion that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt, so the accused deserves to be acquitted of the offences of which he has been convicted. 8. In the result, this appeal is allowed, the convictions and the sentences of the appellant Kaliya alias Rameshwar, are set aside and he is acquitted of all the offences, of which he was convicted by the learned Sessions Judge, Balotara. He is already on bail, so he need not surrender to his bail bonds. His bail bonds are discharged.Appeal allowed. *******