Judgment KAPUR, J. ( 1 ) THE accused appellant as been convicted by the Sessions Judge, Sikar for the offence under Section 302 IPC and sentenced to life imprisonment and a time of Rs. 5000/-; in default of payment of fine he has to undergo rigorous imprisonment for one year. Against this conviction and sentence passed on 31st March, 1984 the appellant has preferred this jail appeal. ( 2 ) THERE are two dead persons in this case-one is Mst. Anchi wife of the appellant and the other is his baby girl aged about Ii year. The case is one of circumstantial evidence as there is no eye-witness about the incident. ( 3 ) NEAR the outer signal of Laxmangarh (district Sitar) Railway Station there is field of Mahaveer Prasad. On 9th August, 1983 Girdhari (P. W. 1) was working in the field of Mahaveer on daily wages when he had a glance of some clothes in the field, when he proceeded in that direction he found that one woman and one child were lying and then were injuries en them which were bleeding. Ramesh and Mahaveer also came there and thereafter Girdhari (P. W. 1) lodged report (Ex P. 1) at Police Station. Laxmangarh. A case was registered on the basis of this report and the S. H. O. proceeded to the site, prepared inquest memos of both the dead bodies and also prepared a site plan (Ex. P. 3) showing the place where the body was found and where there were foot steps. The dead woman was wearing a green blouse, blue Ghaghra and a Bandhej Chunni which had been spread on the ground where both the bodies were lying. The baby girl was wearing only a Baniyan. There were two Tabiz in the neck of dead body of Mst. Anchi, and also a key in the black thread. . Besides this, she had a sum of Rs. 3. 25 in loose change wrapped in a small piece of cloth, Post mortem was conducted on both the bodies by Dr. Richpal Singh (P. W. 16) and Dr B. P. Joshi who gave the opinion that in both cases the cause of death was shock and haemorrhage from the wounds. Both the bodies were not identified at that time. The appellant Bansilal went to village Rosani to the house of the father of Mst. Richpal Singh (P. W. 16) and Dr B. P. Joshi who gave the opinion that in both cases the cause of death was shock and haemorrhage from the wounds. Both the bodies were not identified at that time. The appellant Bansilal went to village Rosani to the house of the father of Mst. Anchi on 10th August, 1986 and left his elder daughter there. At the same time he also told that his wife has left their village Sankhu for coming to him (accused) but she had gone away somewhere and he would go to search for her. This was on the morning of 10th August, 1983. He returned in the evening and he told that he could not find Anchi. Noonaram (P. W. 4) wanted to go along with him but the accused said that he would come in the morning but he did not return on the next morning. Thereafter Noonaram and Nagar went to village Sankhu to find out the where about of Mst. Anchi and where they were told by one Nahruji that the dead body of a woman and a girl had been found near Laxmangarh and that they should go to have a look at the photographs. Thereupon, Noonaram went to Laxmangarh Police Station along with Phusaram and had a look at the photographs and identified the same as of Anchi and her daughter. Noonaram (P. W. 4) is cousin a brother of Mst. Anchi. He also identified the clothes of deceased, Anchi. The accused Bansi was arrested on 13th August, 1983. The other evidence against the accused is that Laduram (P. W. 15) saw him along with Anchi and their daughter in the Ganga Nagar Express train between Sikar and Laxmangarh According to him, they were all sitting in one compartment and at that time the accused had a Barchi in his hand. In casual conversation he gave out that he was coming from Navalgarh and was going to Alakpura. All of them got down at Laxmangarh railway station. At the time, the accused had also given out that his name was Bansi Lal. From the railway station this witness went by road while accused, his wife and daughter went towards southern side, Sanwarmal (P. W. 19) saw the accused, on 8th August, 1983 at about 11. All of them got down at Laxmangarh railway station. At the time, the accused had also given out that his name was Bansi Lal. From the railway station this witness went by road while accused, his wife and daughter went towards southern side, Sanwarmal (P. W. 19) saw the accused, on 8th August, 1983 at about 11. 00 p. m. he was going from Laxmangarh to his village Bairas alongwith Parsaram (P. W. 7 ). There they saw the accused coming out with a woman and child from the railway station and the accused informed him that he was a resident of Sankhu and was going to Alakhpura to meet his relations. In the light of the torch he looked at the person who gave out his name as Bansi. Thereafter, this witness turned hostile and did not admit that the appellant was the same person. However, Parsaram (P. W. 7) has identified the accused as the same person. Pavankumar (P. W. 6) is a student and according to him he know the accused as well as his wife and four months prior to the time when he gave his statement, he was going by bus and Bansis wife was travelling by the same bus in order to go to Navalgarh. Bansi met his wife at Navalgarh bus stand. It may be mentioned that Bansi accused used to work at Navalgarh and the evidence of the witnesses who had last seen them show that the wife of the accused travelled from Sankhu to Navalgarh in a bus and thereafter they somehow went to Sikar and from Sikar to Laxmangarh they traveled by Ganganagar Express and they got down from it at Luxmangarh Railway Station. The other evidence against the accused is the extra judicial confession made by them in the presence of Phoolchand (P. W. 5) and Matadin (P. W. 12 ). It may be stated here that Bansilal appellant worked as cook in one of the hostels in Navalgarh and these two persons are student. Phoolchand resided in the hostel while Matadin earlier resided in the hostel but 8 or 10 months before the incident he had shifted to a private house. It may be stated here that Bansilal appellant worked as cook in one of the hostels in Navalgarh and these two persons are student. Phoolchand resided in the hostel while Matadin earlier resided in the hostel but 8 or 10 months before the incident he had shifted to a private house. The version of these witnesses is that they were returning to the hostel and the accused was also with them and when they reached the hostel, Madanlal (another student, D. W. 1) told the appellant that his uncle Sohan had come and was saying that the appellant had called for his wife but she had not reached the village and the accused should inform as to where she was. Upon this, Bansi sat down and said that he had done injustice as he had killed his wife and child. These two persons questioned as to why he had killed them then the appellant said that his wife did not obey his wishes and that she used to go away to her parents house for six months. The appellant also said that either he would go to the police or go to the Chambal valley. Phoolchand (P. W. 5) has also said that some eight days prior to this he had seen the accused at the house of Matadin and at that time he had a small Barchi in his hand. Madanlal (D. W. 1) has been examined by the accused in order to deny the conversation and confession as given out by Phoolchand (P. W. 5) and Matadin (P. W. 12) but he has not been believed by the learned Sessions Judge. The other set of evidence against the accused is recovery of a blood stained Baniyan which he was wearing at the time of arrest, a blood stained pant from his house of village Sankhu, blood stained Barchi from some brushes near the field where the dead body was found and his old shoes as well as the Chappals of Anchi which were found In the field on the basis of information given by him. On examination by the chemical examiner, the clothes of the deceased, the clothes of the accused, Tabez and Barchi were found to be stained with human blood. On examination by the chemical examiner, the clothes of the deceased, the clothes of the accused, Tabez and Barchi were found to be stained with human blood. ( 4 ) THE learned Sessions Judge has believed the above evidence led by the prosecution and at the same time had held that the circumstantial evidence is sufficient to prove the case against the appellant and that there was nothing to suggest the innocence of the accused. The learned Sessions Judge has in para No. 18 of his judgment discussed as to what circumstantial evidence can be said to be sufficient for the conviction of an accused and proceeded on the basis of the established principles. ( 5 ) TO provide a motive, the prosecution has examined Mst. Mohri (P. W. 9), mother of Anchi, who has deposed that the relations between Bansi and Anchi were not good because Anchi did not gave birth to a son. Similarly, Nagarmal (P. W. 8), the cousin of Anchi has stated that the appellant killed his wife because she provided him with daughters only. It may be mentioned that Anchi gave birth to three daughters one of whom died soon after birth, the other died alongwith Anchi and the third one was brought to the house of Anchis parents by the appellant when he came to inform that the whereabouts of Anchi were not known. ( 6 ) THE case of the accused is that he has been falsely roped in the case. According to him his wife Anchi had no brother and her parents wanted that the land and property should be transferred in her name. His father-in-law asked him to bring some money so that the land would be transferred. Anchi went to her fathers house. The cousins brothers of Mst. Anchi were not happy with this arrangement and used to quarrel with him (accused) as they wanted that the land should be transferred in their names. As for the witnesses he has said that there was election Similarly with Keshav Deo, father of Pavan Kumar (P. W. 6), so he has come forward as a witness, Sanwarmal (P. W. 19) is also said to be of the party of Keshav Deo. As for Matadin and Phoola Ram, he has said that they did not pull along well with him in the hostel, therefore, they have given a false statement. As for Matadin and Phoola Ram, he has said that they did not pull along well with him in the hostel, therefore, they have given a false statement. We have heard the learned Amicus Curiae and learned Public Prosecutor. According to the learned Amicus Curiae for the appellant, the witnesses in this case cannot be believed as they are either interested witnesses or cooked-up witnesses revelers. In the jail appeal written by the appellant himself he has given several reasons for not believing the witnesses. The extra judicial confession is said to be false and even the recovery of Barchi and the clothes of the accused is contested. ( 7 ) AS far as the identification of the bodies of two deceased persons and also the cause of their death is concerned, it can be stated that there is no doubt both Anchi and her daughter met with homicidal death. There were several incised wounds on the bodies and the persons who saw the dead bodies and the doctors who conducted the post mortem, have stated about it. A look at the photographs of the dead bodies also goes to show that the photographs give a clear view of the face of the deceased and from these photographs it is easily possible to identify the persons whose photographs they are. The accused has also not seriously challenged the identification of the dead- bodies and he has suggested that the cousins of Anchi have murdered her because they were not happy about Anchis father transferring the land to her. ( 8 ) HAVING established the identity of the dead bodies, it is to be seen as to what is the circumstantial evidence which have been led in the case in order to prove the guilt of the accused. This consists of three parts viz. , evidence about last seen of the accused and deceased together, evidence about the extra judicial confession made by the accused before Phool Chand (P W. 5) and Matadin (P. W. 12) and the recovery of blood stained weapon and clothes of the appellant on the basis of information given by the accused. ( 9 ) THE route which Mst. Anchi took is said to be from village Sankhu to Navalgarh and then Navalgarh to Sikar and then from Sikar to Laxmangarh. ( 9 ) THE route which Mst. Anchi took is said to be from village Sankhu to Navalgarh and then Navalgarh to Sikar and then from Sikar to Laxmangarh. Pawan Kumar (P. W. 6) has stated he was going from Hirdawas to Chagar village by the 4. 30 p. m. bus and he saw Bansis wife sitting at the bus stand alongwith a child. She disclosed that she was going to Navalgarh. They travelled by the same bus and she got down at Navalgarh bus stand where Bansi received her. Parsaram (P. W. 7) saw the accused and his wife and child at 11. 00 pm. at Laxmangarh railway station. At that time Bansi told his name and also disclosed that he was going to Alakhpura to meet his relation. Laduram (P. W. 15) has stated that he travelled in the Ganga Nagar Express alongwith appellant, his wife and child and at that time the appellant was carrying Barchi in his hand. Sanwarmal (P. W. 19) has turned hostile and he has admitted seeing a man, and woman and a child near Laxmangarh railway station who said that he was of village Sankhoo and was going to Alakhpura but he has refused to identify the appellant as that person. The last three witnesses are chance witnesses and when they were asked to explain as to how the police contacted them, they gave that they saw the appellant Bansi in handcuffs at bus stand or at Sikar and came to know that he had been accused of murdering his wife and, therefore, they gave their statements to the police. For Laduram (P. W. 15) Bansi appellant was an unknown person to remember Bansi subsequently and remembered that he had seen him earlier alongwith a Barchi. However, he has not been able to give a description of the clothes which had been worn by the accused or the deceased while travelling in the train. He had heard in the town and village about the murder of one woman and child but at that time he did not came forward to say anything about having seen a man with a woman and child in the train. Very conveniently every person sees appellant in handcuffs and recognises him as the person whom he had seen earlier. He had heard in the town and village about the murder of one woman and child but at that time he did not came forward to say anything about having seen a man with a woman and child in the train. Very conveniently every person sees appellant in handcuffs and recognises him as the person whom he had seen earlier. The evidence of these persons could have inspired confidence had they identified the accused in identification parade when he could have been mixed up with others. If the witness had reason to doubt any person of having committed the murder then they ought to have gone to the police station first In order to give the clues which could have been of help to the police. However, the Investigating Officer made a clever move and made the witnesses see the accused first so that the question of identifying him in a identification parade may not arise. It may also be stated that if the appellant had made the plan for murdering his wife and child, he would not have taken a Barchi in his hand. In order to display it to all persons who came in contact with him in the journey. The evidence of Laduram (P. W. 15) appears to be concocted. The appellant in his Jail appeal has mentioned a number of cases in which this Laduram as appeared as a witness on behalf of the prosecution. According to him, this witness is a professional witness and his evidence is not trustworthy. It may be mentioned that the evidence of a witness can not be accepted or rejected merely on the ground that he has appeared as a witness in a number of other cases but has to be accepted or rejected on its own merits. In the present case, the evidence of Laduram (P. W. 15) appears to be of a doubtful nature and also the manner in which he was found by the police is also unusual. Parsaram (P. W. 7) and also Sanwarmal P. W. 19) saw the appellant together. (P. W. 19) Sanwarmal had known Bansi earlier. In that case if he and Parsaram met the appellant near Laxmangarh railway station then it was not necessary for the appellant to give out his own name and the name of his village as that was already known to Sanwarmal. (P. W. 19) Sanwarmal had known Bansi earlier. In that case if he and Parsaram met the appellant near Laxmangarh railway station then it was not necessary for the appellant to give out his own name and the name of his village as that was already known to Sanwarmal. It may also be mentioned that if the accused had the intention of committing any crime then he would not have given out his own name and the name of his village to the persons who met him in the way. Parsaram and Sanwarmal have stated that they met the accused on the northern side of the Laxmangarh Railway Station while Laduram (P. W. 15) has stated that from the railway station the accused and his wife went towards southern side. These all matters make the testimony of these witnesses doubtful. In a case of circumstantial evidence the circumstances which can be said to be incriminating against the accused should be proved by cogent and consistent evidence before the same are accepted to form a link in the chain of evidence against the accused. This test cannot be said to be fulfilled in the statement of the above witnesses. ( 10 ) NOW, we shall look into the evidence about extra judicial confession said to be made by the accused before Phoolchand (P. W. 5) and Matadin (P. W. 12 ). The appellant was working as a cook. In the hostel and Phoolchand was a student residing in the hostel but Matadin was not residing there. Both these witnesses have named one Madanlal who was also present when the accused made the confession and this Madanlal has been examined by the accused as D. W. 1. He has denied the version of Phool Chand and Matadin and at the same time has said that Bansi appellant and Matadin had a quarrel on account of which Matadin was asked to go away from the hostel and then he took a house in Navalgarh. Just as the prosecution has suggested that it is possible to obtain witnesses like Madanlal at any time so also it can be said that witnesses like Phoolchand and Matadin can be procured at any time. The name of Madanlal was specifically mentioned by these two witnesses as the person in whose presence the confession was made and Madanlal has not been fished out by the appellant. The name of Madanlal was specifically mentioned by these two witnesses as the person in whose presence the confession was made and Madanlal has not been fished out by the appellant. The reason given by the appellant for killing his wife while making the alleged confession before Phoolchand and others is that his wife did not obey him and that she used to go away to her parents house for six months. If this motive for committing the murder is taken into consideration then the chances of committing a preplanned murder on account of this reason are remote. It may be possible that the husband may kill his wife during the course of heated arguments but for this reason a pre-planned murder would be most unusual. ( 11 ) NOONARAM (P. W. 4) and Mohri Bai (P. W. 9), mother of deceased Anchi, have stated that the relations between appellant and his wife were quite normal and Anchi used to come to visit them quite often and she used to go to Navalgarh also where the appellant was working. In fact, Mohri (P. W. 9) has supported the version of the accused which is that she and her husband wanted to transfer some land to Anchi and for that purpose they had asked her to bring some money. It is only Nagarmal (P. W. 8) who has deposed that the appellant was angry with his wife because she gave birth to girls only. Had this been the reason for murdering. Anchi then in all likelihood he would have given this reason while making a confession before Phoolchand and Matadin. The suggestion of a different motive cases a doubt on the testimony of Phoolchand and Matadin. When even the mother of the deceased admits that the relationship of appellant and his wife were normal then it cannot be accepted that the appellant had a reason to go away with his wife. On the contrary, with the death of Anchi he would not be having the land which was to be transferred by her parents in her name. ( 12 ) THE other set of evidence is about the recovery of clothes and Barchi, shoes and chappals. The Baniyan which the accused was wearing at the time of his arrest was seized and blood has been detected on the same. ( 12 ) THE other set of evidence is about the recovery of clothes and Barchi, shoes and chappals. The Baniyan which the accused was wearing at the time of his arrest was seized and blood has been detected on the same. On the basis of information given by him, a pant was recovered from his house in village Sankhoo and blood was detected on this also. Besides this, a Barchi was recovered from bushes near the field where the dead body was found. This was also stained with blood. It may be slated that the accused was wearing a shirt, if the witnesses who saw him are to be believed but this shirt has not been recovered. In all likelihood the blood on the shirt should be more than on the Baniyan which he was wearing. The accused was arrested five days after the incident, he is said to be still wearing the blood stained Baniyan at the time of his arrest. Besides this, the evidence about the recovery of pant from his house in village Sankhoo can be said to be planted evidence. When the dead body of Mst. Anchi was found in the field and a list of articles found there was prepared, there, is a mention of a key found in a thread tied on her neck. Presence, of this key has been mentioned by the witnesses as well as the memos prepared at that time. Ranglal (P. W. 20 ). Investigation Officer has stated that the accused gave the information that he could recovered the pant from his house at Sankhoo and the memo (Ex. P. 28) was prepared. While going for the recovery of the pant, the lock of the house of the appellant was opened by the key which was found on the neck of the deceased. If this key had all along been in the possession of the Investigating Officer, then unless it can be shown that the appellant had another key of the same lock, it could be possible for him to the house after committing the murder and leave his blood stained pant over there Ranglal (P. W. 20) has admitted that he did not find another key with the accused. Thus, it remains unexplained as to how the pant was found in the house at Sankho when the key of that house was in the possession of the police. Thus, it remains unexplained as to how the pant was found in the house at Sankho when the key of that house was in the possession of the police. The prosecution has failed to prove that the recovery of the pant had been made at the Instance of the accused appellant. ( 13 ) BESIDES this the other articles recovered are a Barchi from a bushes near the field where the dead body was found and shoes of the accused and Chappals of the deceased. Why would, the appellant leave his own shoes at the scene of occurrence or nearby has not been explained. Similarly, when the clothes of the deceased had not been taken away from the body in an attempt to prevent identification then the suggestion about concealing her Chappals does not appear to be probable. There remains the recovery of Barchi. This was recovered from. Bad of the field and has been found to be stained with human blood. Chatruram (P. W. 10) and Sitaram (P. W. 3) are the witnesses of the recovery of Barchi. Even if on the basis of these witnesses, the recovery of Barchi is accepted then it remains this only evidence against accused which by itself cannot be said to be sufficient to prove that he is guilty of murdering his wife and daughter. ( 14 ) WHEN Mst. Anchi left her house in village Sankhoo then she left her elder daughter with someone. This elder daughter was collected by the appellant himself when he visited Sankhoo in order to find out why his wife had not turned up at Navalgarh. The appellant took this elder daughter to his in-laws in village Posani and left her there and went away to make a search for his wife. Noonaram (P. W. 4), Nagarmal (P. W. 8) and Mohr (P. W. 9) have all stated that the appellant came to leave his elder daughter with them and at the same time also asked if Anchi had not come there (Posani ). The police has not made and investigation as to where was the elder daughter left and what the deceased told that person before going away from Sankhoo. That evidence would also have disclosed when she had left Sankhoo but all this is missing. The police has not made and investigation as to where was the elder daughter left and what the deceased told that person before going away from Sankhoo. That evidence would also have disclosed when she had left Sankhoo but all this is missing. This would have been the testimony of a reliable person who can be said to be expected to know as to where Anchi had gone and would not have been evidence of casual or such other witnesses who wanted to help the police. This missing link is a weakness in the case of the prosecution. ( 15 ) THERE by a suspicion that it was the appellant who murdered his wife and child but a person cannot be convicted on the basis of suspicion alone. There has to be proper evidence to prove that it is the accused person who has committed the crime. If this proof is by way of circumstantial evidence then it should be shown that the change of circumstances which can be said to be incriminating is such from which the only inference which can be drawn is that of the guilt of the accused and that the theory of the innocence of the accused is in consistent with the established facts. As seen above, in the present case, the evidence of the prosecution cannot be said to be reliable evidence and suspicion can not like place of proof. The appeal deserves to be accepted and the appellant is entitled to be acquitted. ( 16 ) THE appeal is accepted and the conviction of the appellant for the offence under Section 302 IPC and the sentence imposed for the same is set aside. He is in jail, he shall be released if not wanted in any other case.