JUDGMENT 1. - This appeal is directed against the judgment passed by the learned Sessions Judge, Pali dated 26.10 1983 by which appellant Kesha Ram was convicted under Section 302 IPC and sentenced to imprisonment for life. 2. Briefly stated the facts of the case giving rise to this appeal are that on September 9, 1980 Bishna Ram lodged an oral report at Police Station Kotwali which reduced into writing by Rahim Khan (P.W. 8) is Ex. P. It was stated therein that a dead body was there in Rapti well at village Utman. The S H.O. went to the site and arranged for taking out the dead body from the well with the help of villagers and prepared memo Ex. P./21, with the help of villagers and prepared memo Ex. P/21 The dead body was said to be of Kanaram, the adopted son of Raghuuathji (P.W. 3) and Smt. Pepi (P.W. 1) During the course of investigation it was disclosed that Kanaram had left for Pali with Rs. 120/- with him for purchasing medicine for the cattle. That, he was putting on a watch and a silver `kada in the hand and had taken with him one golden todia (ornament for the neck of ladies). He did not return in the night and his parents thought that he might have gone to Jodhpur That, on the next day when it was known that dead body was taken out from the well, Raghunath (P.W. 3) went there and identified the dead body to be of his son Kanaram. On the basis of some evidence against the accused in the form of his being named and heard by two ladies and his being seen going towards the well, he was arrested by the Police on September 12, 1980. On September 13,1980 in pursuance of the information Ex.P/14 furnished by the appellant one watch with strip, one silver `kartaand one Tediya were recovered from his field at his instance. On September 14, 1980, in pursuance of the information of the appellant Ex. P/19, clothes and shoes, were recovered from Rapti well. On the same day in pursuance of the information of the appellant Ex. P/18 one sword with shoath was recovered from the `khakla near the temple of Godess near the house of the appellant. On September 14, 1980, in pursuance of the information of the appellant Ex. P/19, clothes and shoes, were recovered from Rapti well. On the same day in pursuance of the information of the appellant Ex. P/18 one sword with shoath was recovered from the `khakla near the temple of Godess near the house of the appellant. On September 20, 1980 Kesharam furnished information for getting recovered the `loong (ear ornament), one silver ring and other ring of mixed matal from the water near`he Rapti well and the same were recovered Identification parade for the ornaments recovered during the course of investigation was conducted and they were identified by Smt. Pepi (P.W. 1), Raghunath (P.W. 3) and the Gold Smith who prepared them. 3. Upon completion of necessary investigation charge-sheet against the appellant Kesha Ram was filed in the Court of Chief Judicial Magistrate, Pali.The learned Magistrate finding the case exclusively triable by the Court of Sessions, committed the case to the Court of Sessions Judge, Pali. The learned Sessions Judge, charge-sheeted the appellant under Section 3U2, 201 and 397 I.PC. and recorded his plea. The appellant denied the charges and claimed to be tried. Prosecution examined 27 witnesses in all to substantiate its case In the statement under section 313 of the Code of Criminal Procedure, the appellant denied the allegations and stated that witnesses were stating against him because of enmity. Four defence witnesses were examined. The learned Sessions Judge placed 5 reliance on the prosecution witnesses and passed the judgment under appeal. 4. At the very outset it may be stated that there is no eye witness to the B occurrence and the prosecution case solely rests on the circumstantial evidence, There are five circumstances brought on record to connect the appellant with theft commission of the crime : (1) That he was last seen with the deceased Kanaram Ram, (2) that from the side of the jungle cries were heard in which appellant was named, (3) recovery of ornaments in pursuance of the information, (4) blood on the clothes of the accused and, (5) recovery of sword from near the house of the appellant in pursuance of the information furnished by him. 5. 5. Out of these circumstances, the learned Sessions Judge, after a detailed discussion of the evidence on record declined to place reliance on the circumstances of hearing cries in the night from towards the jungle and the recovery of the sword from the house of the accused. The circumstance of the blood on the clothes of the appellant was also not taken to be a circumstance against him because when he was arrested on September 12, 1980 lie was medically examined and there were as many as twelve incised wounds on his person. The only circumstances for basing the conviction is the appellant having been last seen with Kana Ram in the night of occurrence and the recovery of ornaments pursuance of the information furnished by him. 6. The learned counsel for the appellant strenuously contended that these two circumstances even have not been duly established against the appellant. It has been argued that the two witnesses who have stated that they had seen the appellant going towards the jungle just after Kana Ram had gone that side were examined on September 13, 1980 after the arrest of the appellant and not prior to that is in itself, sufficient to discard their evidence The learned counsel referred to the statement of Sardara (P.W. 22) who has stated that when he saw Kesha Ram going after Kana Ram it was a dark night and on Poonam he came to know about the murder and submitted that this falsifies the statement of Sardara because it was on Amavasya that the dead body was taken out of the well. 7. Referring to the statements of Smt. Pepi (P.W. 1) and Raghunath (P.W. 3) the learned counsel argued that these witnesses have given inconsistent statements regarding giving of Rs. 120/- to Kana Ram and his going from the house and as such the prosecution case about Kana Ram going to Pali in that night is also doubtful. 8. The finding of the learned Sessions Judge regarding the recovery of the `Tedia in pursuance of the information of the appellant has been assailed by the learned counsel on a number of grounds. Firstly, that, from the evidence on record it cannot be said that the appellant would have taken Tediawith him and secondly, that, the ornaments were recovered from an open space and were not lying deep in the ground. 9. Firstly, that, from the evidence on record it cannot be said that the appellant would have taken Tediawith him and secondly, that, the ornaments were recovered from an open space and were not lying deep in the ground. 9. There are three witnesses to the circumstances of the accused being last ston with the deceased. Shivnath (P.W. 5), Gamna (P.W. 17) and Sardara (P.W. 22). Gamna has not supported the prosecution case and has been declared hostile by the prosecution. Shivnath (P.W. 5) has stated that on 14th of the month of Bhadwaon Monday when it was a little dark while he was standing ai his house he had seen Kana Ram going towards the water hut. That ten or fifteen minutes thereafter he saw Kesha Ram coming running from the village and on asked as to who he was, he informed that he was Keshia and was going for some urgent work. According to the witness Kesha Ram went to the the witness to the direction towards which Kana Ram had gone and joined him near the water hut. That, on the next day he heard that Kana Ram had been murdered. The witness admitted that as he had not recognised Keshia he had asked his name. The witness stated that next day when the dead body was lying on the cot near the well he had also gone there and told he persons assembled there that he bad seen Kesha Ram and Kana Kam in the previous night and that at that time Police was also there. He had stated that his statement was record by the Police at that time. When attention of the witness was drawn to his Police statement Ex. D/5 where at portion C to D he had stated that when Keshia was arrested and was brought by the Police and was interrogated than he recollected that in the night pervious to the recovery of the dead body he had seen Kana Ram and Kesha Ram going the water hut. When the witness was asked to explain the inconsistency in the two versions, he could not explain the same. When the witness was asked to explain the inconsistency in the two versions, he could not explain the same. The learned trial Judge has noted that after three or four minutes, the witness went on seeing this side or that side and up and down and then stated that he did not recollect as to when he was examined and whether his statement was recorded twice. 10. In view such demeanour and inconsistent statement of the witness and the fact that his statement was recorded by the Police on 13th after the arrest of the appellant the learned counsel for the appellant forcefully argued that the witness was a procured one and if he would have been the appellant and the deceased going together on the previous night, he would have inform d the Police and villagers and his statement would have been recorded on 9th instead of 13th i.e. one day after of the arrest of the accused. Similar is the argument advanced by the learned counsel to shatter the credibility of Surendra (P.W. 22), another witness to the circumstance of of the appellant and the deceased having been last seen together. True it is that the witness has stated that he had seen the two going together in the dark night of 14th of Month of `Bhadwa and on Poonam he came to know about the dead body being taken out. It was Amavasya on 9th and not Poonam when the dead body was taken out.. However, the witness being a rustic much importance can be attached to this part of his statement. But the fact of his statement being recorded on September 13, 1980, after the arrest of the accused and not prior to that casts a doubt on his actually seeing the appellant and the deceased going together. The witness bad also stated that it was Gamna (P.W. 17) who had talked Kana and Keshia but Gamna, as stated earlier has not supported the prosecution case regarding this circumstance. 11. The evidence of the accused being last seen in the company of the deceased is in itself a week circumstance. In the present case, from the critical analysis of the evidence of the two witnesses i e. Shivnath (P.W. 5) and Sardara (P.W. 22) we are of the opinion that this circumstance has not been duly established by the prosecution against the appellant. 12. In the present case, from the critical analysis of the evidence of the two witnesses i e. Shivnath (P.W. 5) and Sardara (P.W. 22) we are of the opinion that this circumstance has not been duly established by the prosecution against the appellant. 12. The most important circumstance in the case on which the learned Sessions Judge has placed reliance against the appellant is the recovery of gold Todia silvan `Kada and watch buried in the ground, in pursuance of the information furnished by the appellant The prosecution case is that the accused used to put on watch, silver `Kada and 'loongas (earornment) and he had taken golden `Tod a with him on that day. So far as the `loongs are concerned suffice it to say that they were recovered in the river sand and no importance can be attached to it The importance bad been attached to the recovery of watch, Tediaand Kadaat the instance of the appellant. In this connection the statements of Smt Pepi and Reghunath the adopted parents and Joga (P.W. 14)' the real father of the deceased, are important. It is important to note that the prosecution case is that Kana Ram had taken Rs. 120/- with him for purchase of medicine from Pali. Smt. Pepi (P.W. 1) has stated that she has not given that amount to Kana Ram rather Raghunath (P.W. 3) had given him the amount but not in her presence. Raghunath (P.W. 3) states otherwise. According to him, Smt. Pepi might have given Rs. 120/- to Kana Ram, Be it as it may. taking the prosecution case that Kana Ram went with Rs l20/- to be true, the question would arise as to why he bad taken golden `Todia an ornament to be worn by ladies when he had sufficient money to purchase the medicine. Smt. Pepi (P.W. 1) and Raghunath (P.W. 3) have stated that on the next day when Raghunath (P.W. 3) had seen the dead body and did not find Toongson the deed body, he asked Smt. Pepi to see the box of the ornaments and Smt. Pepi on doing so found that `Tedia was also not there. Joga (P.W. 14), real father of Kana Ram living jointly with. Joga (P.W. 14), real father of Kana Ram living jointly with. Smt. Pepi, Raghuath and deceased Kana Ram has admitted that when `Tedia was recovered his `Bhabhi (Smt. Pepi) made search and came to know that `Tedia was also not there in house. This falsifies the version of Raghunah and Smt Pepi that on the day next to the occurrence itself on search of the box ill the house, they had come to know about the `Tediamissing from the house. Even overlook in.: the inconsistencies in the statement of Smt. Pepi leading her to search of the ornaments, this statement of Joga (P.W. 14) that it was after the recovery of `Tedia that Smt. Pepi had made a search for it and found that it was also missing from the house raises a suspicion on the truthfulness of this prosecution case that Kana Ram had taken a `Tedia with him. The learned Sessions Judge has also discussed two evidence regarding it and has came to the conclusion that prosecution has implanted Tedia subsequent to the occurrence As such the learned Judge declined to place reliance on the recovery of `Tedia at the instance of the accused in pursuance of his information and hat also observed that there was no reliable evidence to prove that Kana Ram had taken 'Tedia from the house when he left it last. 13. The learned counsel for the appellant vehemently argued that are, watch and Kada being ordinary articles, it could not have been believed that person would commit the henious crime of murder for taking these petty articles, the Investigating Agency implanted `Tedia in the articles sought to be recovered in pursuance of the information furnished by the accused so that it maybe believed that out of temptation the appellant had done away with the life of Kana Ram. 14. The finding of the learned trial Judge regarding the implanting the `Todia subsequently to which we also agree, shows that investigation was not fair and in our opinion the recovery of watch and silver `Kada should not ha+ been taken to be a circumstance connecting the appellant with the commission of the crime. The fact of these articles having been recovered from an open space and that too only nine inches below the surface also costs a doubt about to appellants placing those articles there. The fact of these articles having been recovered from an open space and that too only nine inches below the surface also costs a doubt about to appellants placing those articles there. If Todia would have been recovered a place different than the one where from the `Kada and watch are said to have been recovered, there could have been some justification for connecting the accused with the commission of the crime on account of the recovery of the watch and Kada. but when all the three articles are recovered from the same place and at the same time and as stated earlier the conclusion of the learned Sessions Judge is that Todia was implanted subsequently, the whole story of the prosecution that the recovery was in pursuance of the information of the appellant and at his instance becomes unbelievable. This type of recovery arises suspicion about the fitness of the investigation and we do not find it safe to base conviction on this type of recovery with the help of weak circumstance of the appellant and the deceased being last seen together by the two witnesses viz. Shivnath (P.W. 5) and Sardara (P.W. 22). 15. Consequently, the appeal of Kesha Ram is allowed. His conviction and sentence are set side. He is in Jail. He shall be set to liberty forthwith if not required in any other case. The Order of the learned trial Judge regarding the disposal of the property is however maintained.Appeal allowed. *******