JUDGMENT 1. 1. Appellant, Hanja, has filed this appeal against his conviction for the offence under section 302 I.P.C. by the Sessions Judge, Udaipur in Sessions case No. 29/73. 2. The case of the prosecution, briefly stated, is as under. Appellant Hanja is the nephew of Amra deceased. Amra was residing at group No. 2 in village Jawaharnagar, Tehsil Dharpawad, District Udaipur. About 12 months prior to the incident Amra had brought the appellant to his village and thereafter the appellant, alongwith his wife and child, was staying in the but of Amra with him. The appellant was cultivating the lands of Amra. One month prior to the incident, Smt. Jeevali (PW 4), wife of appellant, had gone to the fields and the deceased had caught hold of her hand which Smt. Jeevali had objected. Thereafter the but was partitioned by placing a partition wall and Amra started living in one portion of the but land the appellant, alongwith his family, was living in other portion of the hut. On the night of 31st December, 1972 deceased Amra left his house in the company of the appellant and at that time the appellant was carrying an axe and a 'Genti' with him. The appellant returned in the early hours of 1st January, 1973 alone and the deceated did not return with him. The deceased was not seen in the village thereafter. On 10th January, 1973 Smt. Amrat (PW 3) had gone to jungle of Heeraveli to answer the call of nature and she notice foul smell and she also saw some clothes, a chadara and a banyan and also a skeleton lying nearby. After looking at the clothes, she identified the same as that of deceased Amra and she told this fact to the appellant at about 5 p.m. on 10th January, 1973. Thereupon the appellant, alongwith one Kachara, went to Lalia (PW 1) and told him that Smt. Amrat had informed him that the dead body of Amra was lying in the jungle of Heeraveli. Thereafter the appellant, alongwith Kachara, Lalia and some other persons, went to the place where the skeleton was said to be lying in the jungle of Heeraveli and after seeing the clothes which were lying near the skeleton Lalia and other also became sure that those clothes were of Amra deceased, and therefore, they also felt that the skeleton was of Amara. They also noticed foul smell nearby. Thereupon Lalia (PW 1) went to police station Dhariyavad and lodged a report (Ex. P. 1) on 10th January, 1973 at 8.45 p.m. On the basis of the said report a case under section 302 I.P.C. was registered and the investigation was commenced. Mangilal (PW 13) S.H.O. police station Dhariyavad, came to the spot but since it had become dark he could not take any further steps and he started the investigation in the morning. On the next morning, i.e. 11th January 1973, he prepared the inquest report (Ex. P. 2), site inspection memo (Ex. P. 3), site plan (Ex. P. 4) and also seized the bones as well as the clothes, viz. pieces of underwear, chaddar, Dhoti and torn Baniyan, which were found lying near the bones. The foul smell was found to be coming from a pit nearby and it was dug and from inside it some piece of bones and a piece of Dhoti were found, He also found a red cloth (Ex. P. 13) lying at a distance of about 58 metres from the pit where a part of the skeleton was found. The appellant was arrested on 13th January, 1973 and on the basis" of information given by him an axe, wooden handle of an axe, and a bunch of keys were recovered. The skeleton was examined by Dr. Kailash Chandra Jindal (PW 9) Medical Officer Incharge, Primary Health Centre, Chariyavad, who prepared the post mortem report (Ex. P. 13). Since the medical officer was not sure about the age, sex, duration of death and the cause of death, he advised that the skeleton may be sent to the Medical Jurist Udaipur for expert opinion. Thereupon the skeleton was sent to the medical jurist, Udaipur for examination and it was examined by Dr. Sajjan Singh Baxi (PW 9) Medical Jurist, General hospital, Udaipur who in his report (Ex. P. 12) expressed the opinion that the skeleton was of a sale whose age was between 30-40 years. Dr. Baxi also expressed the opinion that the cause of death could not be ascertained and that the skeleton showed no mark of injury anywhere. Dr. Baxi also expressed the opinion that the death must have taken place about 2-3 months earlier. P. 12) expressed the opinion that the skeleton was of a sale whose age was between 30-40 years. Dr. Baxi also expressed the opinion that the cause of death could not be ascertained and that the skeleton showed no mark of injury anywhere. Dr. Baxi also expressed the opinion that the death must have taken place about 2-3 months earlier. The clothes seized from near the skeleton as well as the red piece of cloth which was seized at a distance of 58 metres were sent of chemical and serological examination and the reports (Ex. P-16) and (Ex. P. 17) show that the pieces of Chadar, banyan and underwear and the piece of cloth were stained with human blood and that the blood stains on the pieces of 'Dhoti' were disintegrated and that their origin could not be determined. After completing the investigation, the police filed a charge sheet against the appellant in the court of Munsif Magistrate, Kanore, who committed the appellant for trial to the court of Sessions and, thereupon the appellant was tried by the Sessions Judge, Udaipur on charges under sections 302 and 201 I.P.C. The appellant pleaded not guilty and claimed to be tried. 3. The prosecution, in support of its case, examined 15 witnesses. The appellant, in his statement recorded under section 342 Cr. P.C. stated that he was living with his uncle (deceased) for the past ten months and that his aunt had contracted 'Nava' with somebody else and that the deceased had told him that he was going to recover the 'jhagara' money of his wife and that Jeeva and Halu had taken the deceased with them and thereafter the deceased did not return and next day when be went to the house of the brother-in-law of the deceased he learnt that he had not reached there. In his statement aforesaid the appellant denied that a partition wall had been set up in the but and that he and his uncle were living in separate portions. The appellant also denied that the red cloth (Ex. 13) which was seized by the police belonged to him. 4. The Sessions Judge held that the skeleton that was found in the jungle on 10th January, 1973 was that of Amra deceased and that the death of Amra was homicidal. The appellant also denied that the red cloth (Ex. 13) which was seized by the police belonged to him. 4. The Sessions Judge held that the skeleton that was found in the jungle on 10th January, 1973 was that of Amra deceased and that the death of Amra was homicidal. The Sessions Judge further held that the appellant was responsible for having caused the death of deceased Amara. For the purpose of holding that the appellant was responsible for causing the death of deceased Amra the Sessions Judge has relied upon the following circumstances: (i) appellant had the motive to commit the crime; (ii) deceased was last seen alive with the accused on the night of 31st December, 1972; (iii) red cloth (Ex. 13) belonging to the accused was recovered from near the skeleton and it was stained with human blood; and (iv) false denial of established facts by the accused and also giving out wrongly to the witnesses that Amra had gone to Gujarat. In view of the findings aforesaid the Sessions Judge held the appellant guilty of the offence u/s 302 IPC and sentenced him to imprisonment for life and to pay a fine of Rs. 100/- and in default of payment of fine to undergo R.I. for a further period of three months. The Sessions Judge, however, acquitted the appellant of the offence u/s 201 IPC. 5. We have heard Shri I.J. Lodha. who has addressed the Court on behalf of the appellant as Amicus Curiae, and Shri M.C. Bhati, the learned Public Prosecutor on behalf of the State. 6. The first question which needs to he determined in this appeal is whether the skeleton that was found in the jungle of Heeraveli on 10th January, 1973 was that of Amar and in the event of it being held that the skeleton was that of Amara, whether the death of Amra was homicidal. The identity of the skeleton as bring that of Amra is sought to be established on the basis of the pieces of clothes (Ex. 1 to 12) which were found near the place where the skeleton Was recovered. The said clothes are pieces of Cheddar, Underwear and Banyan. A part of the skeleton was found buried in a pit and when it was taken out and a piece of 'dhoti' was found on it. The aforesaid clothes (Ex. 1 to 12) which were found near the place where the skeleton Was recovered. The said clothes are pieces of Cheddar, Underwear and Banyan. A part of the skeleton was found buried in a pit and when it was taken out and a piece of 'dhoti' was found on it. The aforesaid clothes (Ex. 1 to 12) have been identified as those belonging to deceased Amra by Lalia (PW 1) Khemji (PW 2), Smt. Amarat (PW 3) and Kalu (PW 7). All these witnesses are residents of Jawahar Nagar where the deceased Amra had been living for the past 8-10 years. They knew deceased very well and they were, therefore, in a position to identify his clothes. No infirmity has been pointed out in the evidence of these witnesses The appellant, during his examination under section 342 Cr. P.C., has admitted that the clothes which were found near the skeleton, were those of deceased Amara. In view of the fact that the pieces of clothes which were found near the place where the skeleton was found and some pieces or 'dhoti' were found attached to the part of the skeleton which was found burried in the pit were those of deceased Amara, and further in view of the medical evidence that the skeleton was of a male of the age between 30-40 years we are of the opinion that the prosecution has succeeded in establishing that the skeleton that was recovered from the jungle in Heeraveli on 11th January, 1973 was that of Amra deceased. 7. In order to show that the death of Amra was homicidal, the prosecution has relied on the circumstance that the clothes (Ex. 1 to Ex. 12) of the deceased were stained with human blood. Shri Lodha has submitted that the medical evidence of Dr. Baxi and Dr. Jindal does not lend support to the prosecution case in this regard and that it does not show that the death of the deceased was homicidal, inasmuch as no mark of any injury was found on the skeleton. 12) of the deceased were stained with human blood. Shri Lodha has submitted that the medical evidence of Dr. Baxi and Dr. Jindal does not lend support to the prosecution case in this regard and that it does not show that the death of the deceased was homicidal, inasmuch as no mark of any injury was found on the skeleton. It is true that the medical evidence does not show that the death was homicidal but taking into consideration the circumstances that the clothes of the deceased which were found near the skeleton were stained with human blood and part of the skeleton was buried in a pit and the pieces of 'dhoti' which found attached to the part of the skeleton which was found buried in the pit, were found stained with blood, it can safely be held that Amra died as a result of homicidal violence. In our opinion, therefore, it must be held that the death of Amra was homicidal. 8. The next question which needs to be determined is whether the appellant can be held responsible for causing the death of Amra. There is no direct evidence to connect the appellant with the crime the prosecution case rests entirely on circumstantial evidence. The circumstances that have been relied upon by the prosecution to establish the guilt of the appellant are as under:- (i) Motive, (ii) The deceased was last seen with the accused on 31-1-1972. (iii) Recovery of the Led cloth (Ex. 13) alleged to be of the appellant. from the place where the skeleton was found. (iv) Extra-judicial confession of the appellant to PW 1 Lalji and PW 7 Kalu. (v) Recovery of a bunch of key, an axe and wooden handle of the axe from the possession of the appellant on his information u/s 27 of the Law of Evidence. (vi) Denial by the appellant of the several facts established in prosecution evidence. The Sessions Judge did not place reliance on circumstance Nos. (iv) and (v) viz., the extra judicial confession of the appellant to PW 1 Laliya and PW 7 Kalu and the recovery of a bunch of key and axe and a wooden handle of the axe from the possession of the appellant under section 27 of the Evidence Act. The Sessions Judge did not place reliance on circumstance Nos. (iv) and (v) viz., the extra judicial confession of the appellant to PW 1 Laliya and PW 7 Kalu and the recovery of a bunch of key and axe and a wooden handle of the axe from the possession of the appellant under section 27 of the Evidence Act. As regards the extra-judicial confession the Sessions Judge has held that PW 1 Laliya and PW 7 Kalu have uttered different names and have also given different time inasmuch as according to PW 1 it was the third day when the confession was made whereas according to PW 7 it was made on the second day. Similarly with regard to the recovery of axe and handle of axe the Sessions Judge has held that axe is not connected with the crime inasmuch as neither the axe nor the handle was stained with blood and from the medical evidence it cannot be said that the axe was the weapon of the offence. As regards the recovery of bunch of keys belonging to the deceased from the possession of the appellant the Sessions Judge has held that this is not an incriminating circumstance against the appellant. We have perused the relevant evidence appertaining to these circumstances and we find ourselves in agreement with the reasons given by the Sessions Judge for not placing reliance on the aforesaid circumstances. Thus we are left with circumstances Nos. (i),(ii), (iii) and (vi). 9. In so far as motive is concerned, the prosecution has examined Smt. Jeevli (PW 4), the wife of the appellant who has stated that earlier the deceased and the appellant, alongwith his family, were living jointly in the same but but subsequently the but was divided into two portions. She also said that she does not know why the but was so divided but she has stated that when she had gone to the field, the deceased had caught hold of her hand and thereupon she had told him that he was like her father. She has also stated that the deceased did not commit any misconduct. She also said that she does not know why the but was so divided but she has stated that when she had gone to the field, the deceased had caught hold of her hand and thereupon she had told him that he was like her father. She has also stated that the deceased did not commit any misconduct. She has stated that after that incident of catching of her hand by the deceased the but was divided into two portions and that one month after the said incident appellant had left alongwith the deceased in the night and at that time he had taken a 'Genti' and a kulhari' with him and next morning the appellant returned but the deceased did not return. During the course of cross examination Smt. Jeevli (PW 4) has stated that no quarrel had taken place between the appellant and the deceased. On the basis of the aforesaid evidence of Jeevli it has been suggested that the appellant was bearing hostility towards the deceased on account of the deceased having misbehaved with the wife of the appellant and, therefore, he had the motive to commit the murder of the deceased. In our opinion the afore,said motive that has been sought to be made out by the prosecution cannot be inferred from the evidence of Smt. Jeevli. In the first place Smt. Jeevali has herself stated that the deceased had not committed any misconduct with her and had only caught her hand. Moreover there is nothing in the statement of Smt. Jeevali to show that she had informed the appellant about this incident of the deceased having caught hold of her hand. All that Smt. Jeevali has stated that after the aforesaid incident the but was divided into two portions but merely because the but was divided into two portions it cannot be inferred that the said division of the but was on account of the aforesaid incident. In this context, it may also be mentioned that during the course of her cross examination Smt. Jeevli has admitted that no quarrel used to take place between her husband and his uncle, the deceased. This shows that inspite of the aforesaid incident of catching the hand of Sat. Jeevli by the deceased, the relations between the appellant and the deceased were not strained. This shows that inspite of the aforesaid incident of catching the hand of Sat. Jeevli by the deceased, the relations between the appellant and the deceased were not strained. Further more, according to Smt. Jeevli the incident of the appellant leaving in the company of the deceased on the neight of 31st December, 1972 had taken place nearly one month after the incident of the deceased catching hold of the hand of Smt. Jeevli. The fact that no action was taken by the appellant for nearly one month after the aforesaid incident of catching hold of the hand of Smt. Jeevli shows that even if the appellant know about the said incident, he did not attach great importance to the said incident and in our opinion, therefore, the motive that is sought to be made out by prosecution on the basis of the said incident of catching hold of the hand of Smt. Jeevli by the deceased cannot be said to be of such a grave magnitude as to impel the appellant to commit the murder of the deceased. 10. The next circumstance which may now be considered is that with regard to the appellant having been least seen with the deceased on the night of 31st December, 1972 and the deceased being not seen alive thereafter. In order to prove the aforesaid circumstance, the prosecution has examined Smt. Jeevli (PW 4), the wife of the appellant, who has stated that one month after the incident of the catching of her hand by the deceased the appellant had gone alongwith the deceased in the night and at that time he was carrying a 'kulhari' and a 'Genti' with him and that the appellant returned on the next morning but the deceased did not return and that thereafter the deceased never returned. The prosecution has also examined Khemji (PW 2) who has deposed that he had seen Amra in the village on Sunday 31st December, 1972 and that he did not see deceased the next day thereafter. Similarly Halu (PW 5) has deposed that he had seen the deceased on Sunday but he did not see him on the next day and thereafter. Similarly Halu (PW 5) has deposed that he had seen the deceased on Sunday but he did not see him on the next day and thereafter. In view of the evidence aforesaid it must be held to have been established that the deceased and left his house in the company of the appellant on the night of 31st December, 1972 and, thereafter he was not seen alive. But while taking into consideration the aforesaid circumstance it should be kept in mind that the deceased was seen in the company of the appellant on the night of 31st December, 1972 and the dead body was found on 10th January, 1973 and there was a gap of nearly 10 days between the date the deceased was last seen in the company of the appellant and the date when the dead body of the deceased was found in the jungle of Heeraveli. 11. Another circumstance that has been relied upon by the prosecution is that a red cloth (Ex. 13), stained with human blood was found at a distance of about 58 meters from the pit in which a part of the skeleton was found buried and the said red cloth was identified as that belonging to the appellant. There is no dispute that the red cloth (Ex. 13) was recovered from a place at a distance of about 58 metre from where a part of the dead body was recovered and the said red cloth was stained with human blood. The question is whether the said red cloth belongs to the appellant. The appellant, in his statement u/s 342 Cr.P.C. has denied that the said red cloth belongs to him. Smt. Jeevli (PW 4) wife of the appellant has also stated, during the course of cross examination, that she had not seen the red cloth (Ex. 13) prior to its being shown to her in the court. In order to establish that the red cloth (Ex. 13) belongs to the appellant and that he used to wear it, the prosecution has examined Lalji (PW 1) Khemji (PW 2) and Halu (PW 5). The prosecution has also relied upon the memo of site inspection (Ex. 13) prior to its being shown to her in the court. In order to establish that the red cloth (Ex. 13) belongs to the appellant and that he used to wear it, the prosecution has examined Lalji (PW 1) Khemji (PW 2) and Halu (PW 5). The prosecution has also relied upon the memo of site inspection (Ex. P. 3) prepared by the Investigating Officer Mangilal (PW 13) on 11th January, 1973 wherein it is recorded that the red cloth stained with blood was found at a distance of 58 metres 70 cms from the pit where the dead body was fund and the said red cloth was seized. In the said memo it is further stated that Khemji and Lalji had stated that the said cloth belongs to the appellant. We have perused the original memo (Ex.P. 3) and we find that in the said memo certain words have been inserted by interpretation. The said words are as under:- " diMs+ ij cky yxs gq, gS oks nwljs cUMsy esa lhy fd;s [kseth ykyth us diM+k gkatk dk crk;kA " Mangilal (PW 13), during the course of cross examination, has stated that these words which are inserted between two lines were inserted by him at the time of preparing the memo (Ex.P. 3). But on a perusal of the original document (Ex.P. 3) we are, unable to accept the aforesaid explanation offered by Mangilal. In our opinion the aforesaid words do not appear to have been written before the signatures of the attesting witnesses were obtained on the said document. All the words except the last word "Bataya" are contained in one line and the word "Bataya" is written below the words "Hanji ka". After the words "Hanji ka" and "Bataya" are the signatures of Laliya. There is sufficient space in the paper for writing the word "Bataya" after the words "Hanji ka". If the said words had been written before the signatures had been obtained on the document, then all the words including the word "Bataya" would have been in one line after the words "Hanja ka". The only reason why the word "Bataya" has been written in the next line and not in the same line is that the signatures of Lalia were there at the end of the words "Hanja ka". The only reason why the word "Bataya" has been written in the next line and not in the same line is that the signatures of Lalia were there at the end of the words "Hanja ka". This would show that the additional words referred to above were written after the signatures of Laliya had been obtained on the document (Ex.P. 3) with a view to establish that the red cloth was identified as that belonging to the appellant by Lalji and Khemji at the time of recovery. Another circumstance which throws doubt on the credibility of the memo (Ex.P. 3) is that signatures of Kalu (PW 7) were also obtained on it and the signatures of Kalu were subsequently scored of. Kalu (PW 7) has stated that the signatures that have been scored of are his signatures. Mangilal (PW 13) has stated that the signatures of Kalu had been obtained on the memo (Ex.P. 3) but since he was not present his signatures were scored of. During the course of cross-examination he was not able to offer any explanation as to how the signatures of Kalu were obtained on the memo (Ex.P. 3). One more circumstance which throws doubt on the genuineness of the insertion of the words that the clothes had been identified as belonging to Hanja appellant is that appellant Hanja was present at the time when the memo (Ex.P. 3) was prepared on 11th January, 1973 and if the red cloth (Ex. 13) had been identified as that belonging to the appellant by Khemji and Lalji at that time there was no reason why the appellant was not arrested at the very time. The appellant was, however, arrested two days later on 13th January, 1973. Taking into consideration the circumstance referred to above, we are of the opinion that reliance cannot be placed on the evidence adduced by the prosecution to show that the red cloth (Ex. 13) which was recovered from a distance about 58 meters from the pit where a part of the dead body was recovered belongs to the appellant. We are therefore, of the opinion that the aforesaid circumstance cannot be said to have been satisfactorily established by the prosecution. 12. The last circumstance on which, reliance has been placed by the learned Sessions Judge is with reeard to the conduct of the appellant. We are therefore, of the opinion that the aforesaid circumstance cannot be said to have been satisfactorily established by the prosecution. 12. The last circumstance on which, reliance has been placed by the learned Sessions Judge is with reeard to the conduct of the appellant. In this regard the case of the prosecution is that when Smt. Jeevli, the wife of the appellant, asked the appellant when he returned the next morning about the whereabouts of the deceased the appellant had told her that it was no concern of hers, with regard to the conduct of the appellant the learned Sessions Judge has also referred to the fact that the appellant, in his statement recorded u/s 342 Cr. P.C., did not explain the fact that he had gone alongwith the deceased in the night of 31st December 1972 and he returned alone and the deceased was not seen alive thereafter and that the deceased had misbehaved with his wife and thereafter the but was divided into two portions and that instead of trying to explain the aforesaid circumstances the appellant had simply denied them. The learned Sessions Judge has also referred to the fact of the recovery of the red cloth (Ex. 13) bearing blood stains from near the dead body and the learned Sessions Judge has observed that since the appellant had falsely denied the relevant facts an adverse inference should be drawn against him. In so far as the conduct of the accused appellant after the incident is concerned, we are of the opinion that the said conduct is not very consistent. From the evidence on record it appears that after Smt. Amrat (PW 3) had informed the appellant about her having found a skeleton and the clothes which appeared to belong to the deceased, the appellant went to meet Lalia (PW 1) alongwith Kachara, Lalia (PW 1) has stated that the appellant had come to meet him at about sunset time and when he asked the appellant as to what had happened there were tears in the eyes of the appellant and when he asked him 4-5 times what had happened he first kept quite and thereafter he said that sombody had killed his uncle. Lalia has further stated that on asking where was he killed then the appellant stated that he was killed near the bridge of Holiveli. Lalia has further stated that on asking where was he killed then the appellant stated that he was killed near the bridge of Holiveli. When Lalia asked him whether he had gone there the appellant stated that be was afraid and therefore, he had come to him and thereafter the appellant started crying. The aforesaid conduct of the appellant is been responsible for the murder of the deceased he would not have gone to meet Lalia and would not have told him about the same and the fact that he had tears in his eyes shows that he was having genuine brief on learning about the death of his uncle. The conduct of the appellant in telling his wife Smt. Jeevli to mind her own business when she asked him about the deceased when the appellant returned on the morning after he left in the company of the deceased is not a conduct which indicates the complicity of appellant in the crime. Such a reply could also be given by the appellant to the querry of his wife because, according to the appellant, the deceased had gone for some personal work i.e. to recover the 'Jhagra' money from the relatives of his wife. As regards the denial by the appellant in his statement u/s 342 Cr. P.C. of the incident which took place between the deceased and Smt. Jeevli the wife of the appellant and the division of the but into two portions as well as the denial by the appellant of his having gone with the deceased on the night of 31st December, 1972 and his return alone, we are-of the opinion that the said denials are not of such a nature as to lead to an inference about the complicity of the appellant in the crime. So far as the denial about the red cloth (Ex. 13) is concerned, we have already held that the said cloth does not belong to the appellant. In our view therefore, the conduct of the appellant after the incident is not such that on the basis of it an inference can be drawn about the complicity of the appellant in the crime. 13. 13) is concerned, we have already held that the said cloth does not belong to the appellant. In our view therefore, the conduct of the appellant after the incident is not such that on the basis of it an inference can be drawn about the complicity of the appellant in the crime. 13. Taking into consideration the various circumstances that have been relied upon by the prosecution to establish the guilt of the appellant we are of the opinion of that many of the circumstances relied upon by the prosecution cannot be said to have established and the circumstances that have been found to have been established are not sufficient to connect the appellant with the crime. In our opinion therefore, the conviction and sentence of the appellant for the offence under section 302 1PC cannot be sustained. 14. In the result the appeal is allowed. The conviction and sentence of the appellant for the offence u/s 302 IPC is set aside and he is acquitted of the said offence. The appellant is on bail. He need not surrender. His bail bonds shall stand cancelled.Appeal allowed. *******