Judgment KANTA BHATNAGAR, J. ( 1 ) THIS appeal is directed against the judgment dated September 9, 1982 passed by the Additional Sessions Judge, Raisinghnagar by which appellant Bachan Singh was convicted under sections 302 and 201 I. P. C. and sentenced to imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to undergo one months R. I. on the first count and three years R. I. and a fine of Rs. 100/ -. in default of payment of fine to undergo one months R. I. on the second count. ( 2 ) BRIEFLY stated the facts of the case giving rise to the trial and conviction of the appellant and the present appeal are as under: ( 3 ) DECEASED Ramzan was the partner of Contractor Abdul Majid (P. W. 13) of Bikaner and was doing the work of a Mystery. There was contract for construction of B. S. F. quarters at Anoopgarh which was supervised by Rarnzan and he used to visit Anoopgarh once a month. On January 31,1981 Rarnzan went to Anoopgarh from Bikaner from a Bus in connection with the construction work and to give one Draft to the Assistant Engineer. He gave the paper to Vishwa Nath, Assistant Engineer (P. W. 10) and is said to have then gone towards the dhanit of appellant Bachan Singh. As he did not return to Bikaner, Abdul Majid enquired about him PW 4, Phoosa Ram Chowkidar who had gone to Bikanr informed Abdul Majid (P. W. 13) that Ramzan was last seen on January 31,1981. Abdul Majid went to Anoopgarh and met Gulam Farid Munshi (P. W. 9) and Gulam Farid Munim and came to know from them that in the evening of 31st January they had seen Ramzan going towards the Tdhani of Bachan Singh and thereafter he was not seen. On 5th in the morning Abdul Majid lodged report at Police station Anoopgarh before the Station House Officer Umed Singh (P. W. 14 ). The report reduced into writing is Ex. P/36. The S. H. O. alongwith Abdul Majid and others went to the dhani near the land of Bhwan Singh Kangra in which Bachan Singh is said to be residing. The door of the dhani was locked. Mahendra Singh brother of Bachan Singh, took out the key from a hearth outside the dhani and the lock was opened. P/36. The S. H. O. alongwith Abdul Majid and others went to the dhani near the land of Bhwan Singh Kangra in which Bachan Singh is said to be residing. The door of the dhani was locked. Mahendra Singh brother of Bachan Singh, took out the key from a hearth outside the dhani and the lock was opened. On entering inside a portion of the dhani was found to be recently plastered. Some blood stains were found on the wall. There was also blood spot on - a wooden slab fired in the wall and also on the leg and the moonjt of the cot lying there. The S. H. O. took in possession the scrap of the blood stained earth. The wooden slab, the leg and the piece of the moonj of the cot, one glass bottle with blood stains on it and sickle with blood stains on it, were taken in possession. One ticket No. 002067 of Bus from Bikaner to Anoopgarh found outside the dhani was also taken in possession. The S. H. O. prepared the site plan and site inspection memo of the Tdhani and the area outside it. On January 16, 1981 P. W. 15 Dev Kishan S. I. , Second Officer of the Police Station Anoopgarh apprehended Bachan Singh at Railway Station and took him to Police Station and entrusted him to S. H. O. Umed Singh at about 9. 15 A. M. limed Singh arrested the appellant vide memo Ex. P/34. At the time of his arrest, the appellant had one khes (Chader) which had blood spots at certain places. The khes Ex. 7 was taken in possession vide Memo Ex. P/35. The appellant under arrest furnished information Ex. P/38 to the S. H. O. for getting recovered the dead body of Ramzan Mistry. The S. H. O. took the appellant to his dhani. The appellant pointed out the place. Hazi Nizamuddin and Abdul Gdfar dug the land and took out the dead body of Ramzan. The recovery memo of the dead body is Ex. P/39. At the instance of the Police, Harish Kumar (P. W. 5) took photos Ex. P/3 to Ex. P/13. The Inquest report and Panchayatnama of the dead body were prepared. The shoes of Ramzan lying there were also taken in possession. At the request of the police Dr. The recovery memo of the dead body is Ex. P/39. At the instance of the Police, Harish Kumar (P. W. 5) took photos Ex. P/3 to Ex. P/13. The Inquest report and Panchayatnama of the dead body were prepared. The shoes of Ramzan lying there were also taken in possession. At the request of the police Dr. Jagdish Yadav (P. W. l1) reached the site and conducted the postmortem-examination of the dead body of Rarnzan. The Doctor noted one incised wound 6 X 1/2 X 3 oblique in direction on the neck, face and ear of Ramzan. The cause of death according to the Doctor was shock and haemorrhage due to grievous injury. In the opinion of the Doctor the injury was sufficient in the ordinary course of nature to cause death, and duration of death was within 5 to 7 days. The postmortem examination report is Ex. P133. Bachan Singh furnished information about getting recovered one watch from the chhappar where cattle were tethered. In pursuance of that information Bachan Singh took the watch from the chhappar and the S. H. O. took it in possession vide memo Ex. P/30. On February 7,1981 Umed Singh, S. H. O. proceeded on casual leave entrusting the investigation to Dev Kishan S. 1. while in custody Bachan Singh on February 11,1981 furnished information to S. J. Dev Kishan for getting recovered blood stained earth from near the dhani on February. 12, 1981 and recovered the scraps of earth. On February 12, 1981 Bachan Singh also furnished information Ex. P/42 for getting recovered an axe placed near the dhani. The S. H. O. recovered the axe at the instance of the appellant vide memo Ex. P143. Narpat Singh (P. W. 1) Head Constable and Incharge of the Malkhan gave all the sealed Packets of the articles so recovered to Krashan Kumar Constable of Police Station. Anoopgarh on February 14. 1981 who took them to the Chemical Examiner, Jaipur. The report of the Chemical Examiner is Ex. P/45 and that of the Serologist is Ex. P/46. ( 4 ) UPON completion of necessary investigation chargesheet against the appellant was filed in the Court of Munsif and Judicial Magistrate, Anoopgarh The learned Magistrate finding it a case exclusively triable by the Court of Sessions, committed the case to the Court of Additional Sessions Judge, Raisinghnagar. P/45 and that of the Serologist is Ex. P/46. ( 4 ) UPON completion of necessary investigation chargesheet against the appellant was filed in the Court of Munsif and Judicial Magistrate, Anoopgarh The learned Magistrate finding it a case exclusively triable by the Court of Sessions, committed the case to the Court of Additional Sessions Judge, Raisinghnagar. The learned Additional Sessions Judge, charge sheeted the appellant under sections 302, 201 and 404 I. P. C. and recorded his plea. The appellant denied the charges and claimed to be tried. To substantiate its case prosecution examined 15 witnesses in all. The accused appellant in his statement under section 313 of the Code of Criminal Procedure denied the allegations levelled against him and stated that he had gone to his relative about 10-15 days prior to his arrest and on his return to Anoopgarth, he came to know about his father and brother being apprehended by the Police. He went to the Police Station and was arrested. No defence witness was examined. The learned Additional Sessions Judge on his finding that the watch could not be proved to be that of the deceased, acquitted the appellant for the charge u/s. 404 I. P. C. However, the case under sections 302 and 201 I. P. C. was held to be established against the appellant and the judgment of conviction for those offences as stated earlier was passed. ( 5 ) BACHAN Singh, aggrieved by his conviction and sentences has preferred appeal in this Court. We heard Mr. K. C. Samdaria, learned counsel for the appellant and Mr. C. M. Bhandari, learned Public Prosecutor for the State. ( 6 ) AT the very outset it may be stated that there is no direct evidence against the appellant and the prosecution case rests on circumstantial evidence. We heard Mr. K. C. Samdaria, learned counsel for the appellant and Mr. C. M. Bhandari, learned Public Prosecutor for the State. ( 6 ) AT the very outset it may be stated that there is no direct evidence against the appellant and the prosecution case rests on circumstantial evidence. The circumstances brought on record against the appellant are his being last seen with the deceased, blood stains on the ground and wall of the dhani and the leg and moonj of the cot: recovery of blood stained khes which the appellant had on his person at the time of his arrest; recovery of the dead body of Ramzan in pursuance of the information furnished by the appellant recovery of the watch said to be belonging to the deceased: recovery of axe in pursuance of the information furnished by the appellant, and recovery of the blood stained scraps of earth in pursuance of the information furnished by the appellant. ( 7 ) GULAM Farid Munshi (P. W. 9) is the witness of the circumstance of the accused being last seen with the deceased. The prosecution case is that witness Gulam Farid Munshi and Gulam Farid Munim (not eximined by the prosecution) had seen Ramzan going towards the dhani of Bachan Singh in the evening of January 31,1981. There is ample evidence on record to prove that Ramzan was at Anoopgarh on January 31,1981.- Abdul Majid (P. W. 13) and Md. Shafi (P. W. 8) have stated that Ramzan had left for Anoopgarh that day. Vishwa Nath, Assistant Engineer Anoopgarh (P. W. 10) has also stated about Ramzan giving Bill papers to him on January 31, 1981 Gulam Farid Munshi (P. W. 9) has stated that Ramzan had gone towards the dhani of Bachan Singh and he had not seen him thereafter. The witness has clearly stated that neither he had accompanied Ramzan at that time nor had he gone to the dhani of Bachan Singh on that day thereafter. He had stated that the dhanit of Bachan Singh was at a distance of 4 K. M. from the place wherefrom he had seen Ramzan going towards the dhani Abdul Majid who had got the information from this witness has stated that he was informed by Gulam Farid Mistry and Gulam Farid Munshi that Ramzan bad remained at the site on January 31,1981 up to 6. 00 P. M. and then went to the dhani of Bachansingh. He stated that he was also informed that they had seen Ramzan at the dhani of Bachan Singh at 6. 00 P. M. It is pertinent to note that statement of Gulam Farid Munshi is different from Abdul Majid. Gulam Farid had not stated that he had seen Ramzan sitting at the dhani of Bachan Singh. All that he has stated is that he had been Ramzan going towards the dhani of Bachan Singh. The distance between the place where Gulam Farid was at the time when Ramzan proceeded towards the dhani of Bachan Singh and the dhani of Bachan Singh is according to the witness 1/2 K. H. and therefore, it could not be possible for the witness Gulam Farid to see whether Ramzan had actually gone to the dhani or Bachan Singh. However, even if in view of the subsequent circumstances such as recovery and the condition of dhani it is presumed that Ramzan had gone to the Tdhani of Bachan Singh, still from the statement of Gulam Farid it cannot be inferred that Bachan Singh was there at the dhani at that time and Ramzan was last seen alive with Bachan Singh. The statement of Abdul Majid that Gulam Farid informed him that he had seen Ramzan sitting at the dhani at 6. 00 P. M. on January 31,1981 is falsified by the statement of Gulam Farid. Abdul Majid has stated that he had gone to Anoopgarh on 4th evening and made a search alongwith Gulam Farid and when Ramzan was not traceable, he informed the Police on 5th morning. On 5th morning as stated earlier, Police went to the dhanit of Bachan Singh and opened the lock from the key given by Mahendra Singh, brother of Bachan Singh. The presence of blood spots on the wall, bottle and the cot inside the Tdhanit indicated that some murder must have been committed inside the Tdhani and is a serious circumstance against the owner of the dhani. ( 8 ) THE learned counsel for the appellant strenuously contended that prosecution has not established that the Tdhani was in exclusive possession of the appellant and also as to whether he was there at the dhani on January 31, 1981 or subsequent thereto till the arrival of the Police. We find substance in the argument. ( 8 ) THE learned counsel for the appellant strenuously contended that prosecution has not established that the Tdhani was in exclusive possession of the appellant and also as to whether he was there at the dhani on January 31, 1981 or subsequent thereto till the arrival of the Police. We find substance in the argument. Prosecution has not established that the dhani was in the exclusive possession of Bachan Singh and he was there in the dhani or in the village on January 31, 1981. The door of the dhani was locked. The key was taken out from the hearth by Mahendra Singh, brother of the appellant. Mahendra Singh has not been examined to state as to how he had the knowledge of the key being there and who had placed the key in the hearth, the statement of the accused that his father and brother were apprehended by the Police stands corroborated by the statement of Gulam Farid who has stated that father and brother of Bachan Singh were called by the police and also from the statement of Md. Shafi (P. W. 8) who has stated that father and brother of Bachan Singh were taken to the Police Station. It has been stressed by the learned counsel for the appellant that it has not been brought on record that Bachan Singh was living alone to the dhani separate from other members of family and therefore, the recovery of such symptoms from the dhani when its key was produced by the brother of the accused, cannot be said to be an implicating circumstance against the appellant. To substantiate his arguments, the learned counsel for the appellant referred to the case of Chandmal and any. v. Scare of Rajasthan1. The case against the appellants was based on circumstances one of which was the recovery of the dead body from the house belonging to appellant Ranglal and at the time of the recovery in occupation of appellant Ghandmal. The recovery of the skeleton of an elderly female was after two years of the date of the occurrence. As such that recovery despite its being in pursuance of the information given by Chandmal appellant in whose occupation that house at the time was not taken to be a circumstance against either him or against the original owner to the house. As such that recovery despite its being in pursuance of the information given by Chandmal appellant in whose occupation that house at the time was not taken to be a circumstance against either him or against the original owner to the house. The circumstance of appellant Chand mal being last seen with the deceased and the recovery of the ornaments and valuables of the deceased from his possession not being believed the recovery of the dead body was not held to be a circumstance against him. ( 9 ) WE agree with the learned public prosecutor that the facts and circumstances of the recovery of the skeleton in the above referred case were of a peculiar nature whereas in the present case it was only five days after the missing of the deceased, that the implicating elements inside the dhani were detected. However, in the absence of specific evidence of Bachan Singh being the sole occupant of the dhani and his presence on the date of occurrence or subsequent thereto prior to January 5, 1981, this circumstance in it self would not be sufficient to hold him the author of the crime. It can however be taken to a link of the chain If there are other circumstances leading to the definite conclusion that it is the appellant and none else who had committed the crime. ( 10 ) THE next circumstance against the appellant is the recovery of the Tkhanit which is said to have blood stains on it. The Serologist could not give the origin of the blood on the khest. In absence of a finding that the blood on the Tkhest was human blood, its recovery would not connect the appellant with the crime. ( 11 ) THE most important circumstance against the appellant is the recovery of the dead body in pursuance of the information furnished by him. If the murder is committed inside the dhani of a person and the dead body is recovered at his instance, then these two circumstances may be sufficient to base his conviction. ( 11 ) THE most important circumstance against the appellant is the recovery of the dead body in pursuance of the information furnished by him. If the murder is committed inside the dhani of a person and the dead body is recovered at his instance, then these two circumstances may be sufficient to base his conviction. ( 12 ) THE learned counsel for the appellant vehemently argued that the recovery of the dead body cannot be said to be either in pursuance of the information furnished by the appellant or at his instance because on 5th itself police must have known the whereabouts of the dead body and as such the prosecution story about appellant furnishing information in that regard is fictitious. The place where from the dead body was recovered on 6th was at a distance of about 100 feet from the dhani. The most important question, which arises from the arguments of the learned counsel for the appellant is as to whether the circumstances indicate that on 5th itself police had the knowledge about the dead body being somewhere near about and its recovery on the next day with falsely shown to be in pursuance of the information furnished by the appellant. In the site plan Ex. P/16 a place outside the dhanit has been marked-F and in the site inspection memo Ex. P/37 it has been stated that at place-P there was TPunjori of ricet (waste of rice crop) and one log of would was lying. If the dead body was buried at a place only five days back, the ground must have appeared to be somewhat different from the adjacent ground. It could not have escaped the view of the Investigating Officer and others that there was something abnormal place. A vigilant Investigating Officer might have noted the difference between the ground marked-F and the adjacent ground. However, that alone may not lead to the conclusion that the appellant had not furnished information, for that we will have to see as to when in what circumstance and manner the information was given by the accused. ( 13 ) THE information for the recovery of the dead body is Ex. P/39. According to Dev Kishan (P. W. 15) accused was arrested by him on February 6, 1981 at 9. ( 13 ) THE information for the recovery of the dead body is Ex. P/39. According to Dev Kishan (P. W. 15) accused was arrested by him on February 6, 1981 at 9. 15 A. M. at Anoopgarh Railway Station and it took about 25-30 minutes to take him to the Police Station and produce before the Station House Officer. It is important to note that Dev Kishan has not prepared any arrest memo of the accused at the Station. The arrest memo Ex. P/34 was rather prepared by Umed Singh at 9. 15 A. M. which according to Dev Kishan was the time when he had apprehended the accused at the Railway Station. After arrest there was the recovery of the khest and thereafter the information was given. If according to Dev Kishan he had apprehended the accused at 9. 15 A. M. at the Station and after 25. 30 minutes he reached with him to the Police Station then it might have taken atleast sometime for preparing his arrest memo and recovery of the khest from him and above all in interrogating him. It does not appear to be natural that the accused immediately after being taken to the Police Station and being arrested would have opened his breft and furnished information about the recovery of the dead body. ( 14 ) A very important factor to be taken into consideration is that the two motbirs to the information memo Ex. P/36 viz. Ghishu Khan and Manohar Lal have not been examined by the Police. Ordinarily when the accused furnishes information to any Police Officer, independent witnesses are not available and there fore, Courts have not insisted upon the presence of independent witnesses for proving the information furnished by the accused leading to any recovery. However, if motbirs are there and the Police Officer prepares the information memo in the presence of those motbirs and takes their signatures on the memos, then it is expected of the prosecution to get the memo proved by these motbirs. Chishukhan and Manoharlal, for the reasons best known to the prosecution, have not been examined. Chishukhan was in the list of the witnesses but as the orders shot dated August 11, 1982 shows he was dropped by the prosecution If there would not have been any motbir to the information memo, the matter would have been different. Chishukhan and Manoharlal, for the reasons best known to the prosecution, have not been examined. Chishukhan was in the list of the witnesses but as the orders shot dated August 11, 1982 shows he was dropped by the prosecution If there would not have been any motbir to the information memo, the matter would have been different. But the information according to the prosecution being in presence of the two motbirs and none of them being produced to prove it, strengthens to the argument of the learned counsel for the appellant that the accused had not furnished any information and in the absence of the motbirs to the memo being produced, no value should be attached to Ex. P. 38. True it is that on the statement of the Investigating Officer alone it can be believed that the accused might have furnished information because is no law that the statement leading to the recovery should be given in the presence of motbirs or witnesses. We also agreed with the learned Public Prosecutor that the presumption of the statements being true applies equally in favour of the Police Officers as of other witnesses. However, in a case like the present one, in which the place wherefrom the dead body was recovered on 6th had been inspected by the Investigating Officer on 7th itself and despite there being motbirs to the information memo proof of them has been produced and the fact that the accused immediately after being produced before the H. O. furnished information raised some suspicion about the truthfulness of the contents of Ex. P138. Saft Mohd. (P. W. 8) and Gulam Farid (P. M. 9) are the motbirs of the memo Ex. P/23 relating to the accused pointing the place where from after digging a pit, the dead body was recovered vide m, mo Ex, P/24. Both these witnesses happened to be the relatives of deceased Ramzan. Mohd. Safts sister had been married to the brother of Ramzan. The witness has stated that on 6th morning at 10. 00 A. M. Police brought Bachan Singh and then the police along with him and others went to the site with Bachan Singh. The accused went to a place and told that the dead body was lying buried there. According to the witness he himself, one Hazi, Mohd. Hanif and Parid were there. Out of them only Farid has been examined. The accused went to a place and told that the dead body was lying buried there. According to the witness he himself, one Hazi, Mohd. Hanif and Parid were there. Out of them only Farid has been examined. According to witness Saft Mohammed Ghishu Khan was also there. It is noteworthy that Ghishu Khan who according to the prosecution was the motbir to the information memo for the recovery was not taken as a motbir to the recovery memo despite his being present there, and the two relatives of the deceased have been taken as motbirs. Gulam Farid (P. W. 9) another motbir to the recovery memo is the cousin (son of maternal uncle) of deceased Ramzan. Gulam Farid witness has stated that he was working as Munshi with Ali Mohammed the father of Abdul Majid Thekedar. Vishwanath (P. W. 10), Assistant Engineer has stated that the contract was in the name of Ali Mohammed. Thus this witness was not only a near relative of Ramzan but was also working with Ali Mohammed father of Abdul Majid (P. W. 13) with whom deceased was a partner. Gulam Farid has stated that on 6th Police brought Bachan Singh to the dhani where the witness was already present. That accused told that the place infront of the dhani may be dug and then the dead body was recovered. ( 15 ) AS we have stated earlier, the time in the information is 9. 45 A. M. The time of the arrest memo is 9. 15 which it could not be looking to the statement of Dev Kishan (P. W. 15) who has stated that Bachan Singh was apprehended at Railway Station at 9. 15 and it took 25-30 minutes to take him to the Police Station. The time stated may be approximate but the statement of Gulam Farid appears to be unnatural when he states that on 6th he and Abdul Majid had come to know that Police was bringing Bachan Singh and therefore, he and others assembled at the dhani. The witness has specifically stated that he had come to know about the arrival of the Police with the accused at 9. 00 A. M. How the witness and others could have even before the arrest of the accused known about the police bringing the accused to the dhani. The witness has specifically stated that he had come to know about the arrival of the Police with the accused at 9. 00 A. M. How the witness and others could have even before the arrest of the accused known about the police bringing the accused to the dhani. The witness has further stated that before the recovery of the dead body, Police had not written anything. Abdul Majid complainant has not stated anything in examination-in-chief about the dead body being recovered in his presence. Even in cross-examination where he has stated that he was present there at the time of the recovery of the dead body, he did not tell anything about any information by the accused or his pointing out the place or stating that the dead body was at a particular place. ( 16 ) IN view of this type of evidence and the prosecution being not fair in producing important witnesses, the motbirs to the recovery being related to the deceased and the complainant though present throughout the period of the recovery not speaking anything about the recovery being made at the instance of the accused, we are of the opinion that prosecution could not establish by cogent convincing evidence that the dead body was recovered in pursuance of the information furnished by the accused or at his instance. ( 17 ) THE learned Public Prosecutor has referred to the case of Jossa v. State of Rajasthan2, in which one of us (Bhatnagar, J.) was a party and submitted that the circumstances of the recovery of the dead body in pursuance of the information furnished by the accused was taken to be a circumstance against the accused and made basis of conviction. In that case the dead body was recovered from the bottom of the well. Even by the rowing of torch light from above towards the bottom nothing was visible and without the information of the caused the Police could not have been able to trace out the dead-body from the bottom of the well. Whereas in the present case if the police would have been vigilant it was not difficult for it to trace out the place where from the dead body was recovered. Whereas in the present case if the police would have been vigilant it was not difficult for it to trace out the place where from the dead body was recovered. It is, in our opinion rather a case where the police must have taken a hint on 5th itself and that is why it attached importance to that place and marked it as F in the site plan Ex. P/16. We are, therefore, not inclined to consider the circumstance of the recovery of the dead body against the accused. ( 18 ) INFORMATION for getting recovered the axe and the scraps of blood stained earth on 11th and l2, in our opinion should not be attached any importance Firstly because if according to the prosecution immediately on being brought out of the Police Station, the accused was eager to give information regarding the dead body which could have been a very strong circumstance against him, it cannot be believed that he would have kept quiet up to 11th and 12th and would have then furnished the information regarding the axe and the scraps of soil Secondly the axe was found burned in an open space accessible to all and sundry The report of the Serologist did not state that it was stained with human blood. One daranti stained with blood was recovered from inside the Tdhani though the origin of the blood could not be detected. In such circumstances, the recovery of the axe without there being human blood on it and that too after six days of the arrest of the accused cannot be taken to be a circumstance against him. Same arguments about the delay in information and the blood soaked scraps of earth being found in the open space are applicable to the recovery of those scraps. So far as the recovery of the watch is concerned, the learned trial Judge has also not attached any importance to it and has therefore, acquitted the appellant of the charge under section 404 I. P. C. ( 19 ) IT is settled principle of law that when a case entirely rests on circumstantial evidence the circumstances should form so completed a chain that there cannot be any escape from the conclusion that the crime in all human probabilities has been committed by the accused and none also. In other words, the circumstances should be incapable of explanation on any reasonable hypothesis save that of the guilt of the accused. ( 20 ) FROM the above discussion, the only circumstance against the accused established is there being fresh plaster of the ground and blood stains on the wall, slab, deranti, cot and bottle in the dhani leading to the conclusion that murder was committed inside the dhani. As we have already observed there is no evidence that the dhani was in exclusive possession of the appellant and that he was there in between of January 31, 1981 and February 5, 1981. The statement of Gulam Farid is that he has seen Ramzan going towards the Tdhani of Bachan Singh but he has specifically stated that he had not gone to the dhani on that day. He has admitted that the place from where he saw the deceased going towards that direction was about 1 K. M. from the Tdhani. Bachan Singhs presence in the Tdhani on that day or before 5th February has not been established by the Police. Mahendra Singh brother of the appellant taking out the key from the hearth outside the Tdhani and giving it to the Police also raises a doubt about the accused alone residing in the dhani. Brother and father of the accused though called by the Police have not been examined by the Police nor any memo was prepared about the key being given by Mahendra Singh so as to show how Mahendra Singh know about the key being there and when was it placed them and by whom or as to where the accused was during these days. If we would have found substance in the prosecution case about the dead body being recovered in pursuance of the information furnished by the appellant and at his instance. That circumstance coupled with the circumstance of the blood stains found inside the dhani, would have been sufficient for the conviction of the appellant, but the failure of the prosecution to establish the circumstances of recovery of the dead body against the appellant by credible evidence, we do not find It safe to sustain the conviction of the appellant for the charges under sections 302 and 201 I. P. C. ( 21 ) CONSEQUENTLY, the appeal of Bachan Singh is allowed. His conviction and sentences under sections 302 and 201 I. P. C. are set aside. He is in Jail. He shall be set at liberty forthwith if not required in any other case. Appeal allowe