Judgment VS. DAVE, J. ( 1 ) THIS appeal was sent through the Jail Authorities against the judgment of Shri S. C. Mittal, Additional Sessions Judge Kota, dated July 30, 1980; whereby he convicted the accused- appellant for offence under section 302 Indian Penal Code arid sentenced to imprisonment for life. ( 2 ) THE case started on a report Ex. P. 19 lodged by Mohan Lal Tyagi, P. W. 17, literate constable No. 1272 at the Police Station, Ramganj Mandi wherein it was alleged by him that little before his coming to the Police Station i. e. 9. 25. am. he was going to deliver a wireless message at the bungalow of Sub-divisional Magistrate. When he reached near the goods shed across the railway line in Nayeebasti he heard some cries. He ran to that side and saw one man armed with an axe running towards Railway crossing through the stones stock. On his enquiring ladies informed that Om Prakash Laskari has hit his wife Mst. Geeta with an axe and has run away. He went to the house and saw the lady lying in pool of blood. Ladies gave out the cause to be an internal dispute. It was further mentioned that the person who ran away with there was Om Prakash Laskari who had taken Dhatura earlier. Since be was without rest he did not chase the accused. On receipt of this report a case under section 307 Indian Penal Code was registered and investigation commenced. Mst. Geeta, wife of Om Prakash who was injured was taken to the hospital where Dr. M. M. Mishra medically, examined her and found the following injuries on her person: 1. Lacerated wound 2 x 1/2 x 1/3 (Bone deep) on left frontal area of scalp, longitudinal. Bleeding much. 2. Lacerated - wound 2 x 1/2 x 1/2 on lower lip, right side. ( 3 ) LACERATED wound I x 1/2 x 1/2 on lower part of pinna of right ear. ( 4 ) LACERATED wound 1/2 x 1/2 x 1/2 on middle pinna of right ear. ( 5 ) LACERATED wound x x on right cheek with swelling. ( 6 ) LACERATED wound 1/2 x x on left cheek with swelling. ( 7 ) LACERATED wound 2 x 1/2 x 1/2 (Bone deep) on left parietal area of scalp, oblique. Bleeding much. ( 5 ) LACERATED wound x x on right cheek with swelling. ( 6 ) LACERATED wound 1/2 x x on left cheek with swelling. ( 7 ) LACERATED wound 2 x 1/2 x 1/2 (Bone deep) on left parietal area of scalp, oblique. Bleeding much. She succumbed to the injuries on the same night and next day her post-mortem was conducted by the same Doctor. He disclosed the cause of death as death due to comma as a result of fractures of the scalp bone and laceration of the brain. After completion of the investigation a charge-sheet was submitted against the accused-appellant in the court of Judicial Magistrate, Ramganj Mandi who committed the accused to the Sessions where charge was framed against the accused for offence under section 302 Indian Penal Code. The accused pleaded not guilty and claimed to be tried. ( 8 ) THE prosecution in support of its case examined 19 witnesses. The accused in his explanation submitted that be has not killed his wife. He had been living with her for last 10 years and has two children. He stated that be has not given any axe in the police station nor a pent has been recovered from his person. The learned trial court relied upon the prosecution evidence regarding motive that Om Prakash used to drink which his wife would object and after drinking he used to beat his wife. The learned Judge also relied on the evidence of last seen in the room and the circumstances that she was found dead in the room belonging to the accused. Another evidence relied upon by the learned Judge was that the accused was seen running with an axe towards the Railway crossing and as also the evidence regarding the recovery of weapon of offence. Relying upon the aforesaid evidence he convicted and sentenced the accused as indicated above. ( 9 ) LEARNED counsel for the accused-appellant stated that there is no eve-witness of the occurrence and while basing the conviction on the circumstantial evidence it is the duty of the court to see that there is no link missing from the chain. It was submitted that about the motive of the crime the prosecution has examined 4 witnesses, namely, Mangilal P. W. 5 Nanga P. W. 6, Dakha P. W. 7 and Han Shanker P. W. 15. It was submitted that about the motive of the crime the prosecution has examined 4 witnesses, namely, Mangilal P. W. 5 Nanga P. W. 6, Dakha P. W. 7 and Han Shanker P. W. 15. These witnesses have only stated that the accused used to beat Mst. Geeta after taking liquor and this by itself, it was submitted, cannot be considered to be a motive for committing the murder. It was submitted that this circumstance at best goes to show that the petitioner is a short tempered person who under the influence of the liquor would give beating to his wife. It was submitted that the incident has taken place at 9. 15 in the morning and there is no evidence worth the name to suggest that the accused was in the house since morning till the time of the commission of crime. It was submitted that the mere fact that the deceased has been found in the room is also not a circumstance to connect the accused with the crime unless there was convincing evidence to suggest that the accused was present at the time of commission of crime, muchless before the murder was committed. Regarding the circumstance of the accused having been seen running from the place of occurrence with blood stained axe in his hand, it was submitted that a bare perusal of the statements of Ram Dulari, Ram Chandra and Mohan Lal is sufficient to discard the circumstance. It was further submitted that a perusal of Ex. P. 22 shows that neither the weapon of offence produced nor the pent recovered is connected with the crime inasmuch as the origin of the blood on pent as well as axe h ad no been determined. Thus, it was submitted that the conviction passed by the trial court is illegal. ( 10 ) THE learned Public Prosecutor submitted that the evidence of last seen coupled with the murder having been committed in the house of the accused particularly in his room suggests that it could be none else than the accused who committed the crime. It was submitted that there is overwhelming evidence about the motive also. We have given our thoughtful consideration to the rival contentions and have perused the entire record. P. W. 1 Hem Kanwar is the neighbour of accused appellant Om Prakash. It was submitted that there is overwhelming evidence about the motive also. We have given our thoughtful consideration to the rival contentions and have perused the entire record. P. W. 1 Hem Kanwar is the neighbour of accused appellant Om Prakash. She states that she saw certain ladies collected out-side the house of accused Om Prakash and the mother of the accused was saying that her son has murdered his wife. She states that she did not see the accused coming out of the house with an axe in his hand. This witness has been declared hostile by the prosecution as she has resiled from her previous statement made under section 161 Criminal Procedure Code where she is alleged to have stated that she saw the accused running with an axe in his hand. She has categorically denied to have given any such statement before the police. P. W. 2 Mst. Aalka has also been declared hostile as she too has resiled from her police statement that she had seen the accused running with an axe. She has refused to have given such statement before the police. P. W. 3 Ram Dulari in her examination-in-chief has stated that when she was in her house present herself after taking bath, she saw the accused running with an axe in his hand. He was coming from his house running. Her house is after 3 or 4 houses from that of the accused. She stated that she did not see the blood on the axe as the accused was at a distance. She further stated that when she had seen Geeta she was being removed by the police persons. In cross-examination she has stated that her eyesight is weak therefore, she cannot give the size of the axe. She further stated that since after her husbands death her eye-sight for long distance bas considerably become weak and she cannot see things properly from a distance. She stated that the person running was looking like Om Prakash, but God knows it could be someone else also. She states that she has not seen Om Prakash coming from his house. The learned Public Prosecutor asked for declaring this witness hostile and the learned Sessions Judge acceded to his request. P. W. 4 Mohan Lal is a hostile witness and says nothing. P. W. 5 Mangilal is further of the accused. She states that she has not seen Om Prakash coming from his house. The learned Public Prosecutor asked for declaring this witness hostile and the learned Sessions Judge acceded to his request. P. W. 4 Mohan Lal is a hostile witness and says nothing. P. W. 5 Mangilal is further of the accused. He states that when he came home he had seen some blood in the room of Om Prakash. He also stated that when he had gone to duty he had seen the accused and his wife in the home. He further denies about any quarrel between the husband and the wife and has been declared hostile. P. W. 6 Nanga is the father-in-law of accused Om Prakash. He states that the accused used to drink and quarrel with his daughter Geeta. He had earlier also given beating to her. He states that he has learnt that the accused and Geeta both had taken poison at one time. P. W. 7 is the mother of deceased Geeta. She also gives a similar statement to that of her husband. P. W. 8 Bhanwar Singh is a motbir for recovery of the pent and the axe and that the accused had been arrested in his presence. P. W. 9 Dr. M. M. Mishra has proved the injury report as well as the post-mortem report. P. W. 10 Abdul Gafoor is an Assistant Sub-Inspector who has participated in the investigation of the case. P. W. 11 Sundarbai is the mother of the accused who has been declared hostile and throws no light on the prosecution story. P. W. 12 Mangilal is another motbir. While Ramchandri PW 13 is a witness who states that she had seen Om Prakash running towards Railway Gate on the road with an axe in his hand, She in her cross-examination states that she did not know am Prakash from before and she had seen him on that day for the first time. She states that somebody had told her that the person running was Om Prakash whom she had seen from the distance of 50-60 feet. P W. 14 Bherulal, P. W. 15 Han Shanker P. W. 16 Radhey Shiam are not material for the disposal of the case. P. W. 17 Mohan Lal Tyagi was the author of the F. I. R. who was posted as a wireless operator at Police Station, Ramganj Mandi. P W. 14 Bherulal, P. W. 15 Han Shanker P. W. 16 Radhey Shiam are not material for the disposal of the case. P. W. 17 Mohan Lal Tyagi was the author of the F. I. R. who was posted as a wireless operator at Police Station, Ramganj Mandi. On the night of December 13, 1979, he submits, an important message had come and he was going to deliver it to the Superintendent of Police, Ramganj Mandi. When he crossed the Railway Line he heard cries of the ladies and, therefore, he look his cycle in the direction from where the ladies were weeping. When he was going towards the colony he saw Om Prakash running with an axe in his hand towards the Railway Crossing. When he enquired from the ladies he learnt that am Prakash Laskari has run away after killing his wife with an axe. He states that he knows the accused from before and he had identified him while he was running. In cross-examination this witness admits that in Ex. P. 19, FIR R. , he had given out the name of the accused whom he bad seen running with an axe in his hand. He later on states that though he was knowing the accused from before but as he saw the person running at a distance he could not identify him and it was on enquiry from the ladies, then be learnt that it was accused Om Prakash who had run away with the axe. He further stated that he does not know the names of the ladies who disclosed to him the name of the accused. He gave an absurd explanation for not following the accused. Rest of the witnesses are not relevant for the disposal of the case. ( 11 ) THIS is the total evidence in the case. Thus, at best remains the evidence of P. W. 3 Ram Dulari, P. W. 13 Ramchandri and P. W. 17 Mohan Lal Tyagi on whom the lower court has relied. We are constrained to say that the trial court did not appreciate the evidence of these witnesses in true prospective. As discussed above. Ram Dulari has been declared hostile in cross-examination and has admitted that the person running looked like Om Prakash but he could be somebody else also. We are constrained to say that the trial court did not appreciate the evidence of these witnesses in true prospective. As discussed above. Ram Dulari has been declared hostile in cross-examination and has admitted that the person running looked like Om Prakash but he could be somebody else also. P. W. 13 Ram Chandri admitted that she was not knowing the accused from before and it was for the first time that day that she saw am Prakash. No identification test has got been conducted. During the investigation and her testimony and identification in court cannot be made basis for convicting the accused-appellant. Similarly Mohan Lal Tyagi who is an author of the F. I. R. and a police official has also failed to give positive evidence against the accused. In examination-in-chief though he stated that he saw the accused running with an axe, but in cross-examination he admitted that he could not identify him and he named Om Prakash because some ladies told him the Dame of the accused Om Prakash. It is regrettable that this witness had the audacity of not disclosing the names of the ladies who disclosed to him the name of the accused-appellant. The names of these ladies have also not been disclosed in the F. I. R. and nope of the ladies examined in the court stated that they saw the accused running with an axe, as such there is no convincing evidence to show that the accused-appellant was seen running with an axe in his hand soon after the murder and this circumstance is of no avail. Regarding the circumstance of their being in the same room the evidence is that both, husband and wife had been in the room in the night and early morning when the father left for his job, but admittedly the occurrence took Place at 9. 15 a. m. and there is no witness to show that the accused was in the house at the time when the murder was committed and at the approximately time also. Thus, this evidence also is of no avail. Regarding the evidence of motive, suffice it to say that no such motive has been brought which could compel the accused to have committed a ghastly crime of murdering the wife. Thus, this evidence also is of no avail. Regarding the evidence of motive, suffice it to say that no such motive has been brought which could compel the accused to have committed a ghastly crime of murdering the wife. On the contrary the evidence of the father is that both of them had attempted suicide at an earlier time thus, the evidence regarding the motive also is not worth taking note of. Then remains only evidence about the recovery of the axe mid the pent for which enough to say that neither the pent nor the axe has been found even stained with human blood, what to say of blood grouping and as such both these articles recovered are not connected with the crime. It is true that it is a cold blooded murder and it could be that the accused-appellant might have committed the murder ,but suspicion however, strong it may be, cannot be substituted for the proof required for holding the accused-appellant guilty of offence of murder. The principles of appreciation of evidence in cases of circumstantial evidence are well laid down times without number and in case the aforesaid evidence discussed is tested in that light we have no hesitation in holding that the prosecution evidence falls short of degree of proof required for convicting the accused for offence under section 302 Indian Penal Code, and the accused appellant is, in these circumstances, entitled to the benefit of doubt. ( 12 ) AS a result of the aforesaid discussions, we accept this appeal, set aside the judgment passed by the learned Additional Sessions Judge, Kota. Consequently the conviction and sentence passed against the accused-appellant is set aside and the accused-appellant is acquitted of the charge levelled against him. He is in jail and shall be released forthwith, if not required in any other case. Appeal allowed.