V. P. MATHUR, J. ( 1 ) THE appellant Dec Singh has come up to this Court against his conviction and sentence on charges under sections 30 land 364, I P C. On the first count, he has been sentenced to imprisonment for life and on the second count to rigorous imprisonment for seven years. The order has been passed by Mr. Brahma Singh, the then Ilird Additional Sessions Judge of Etawah on 25. 9. 1878. The learned Judge Was disposing of Sessions Trial No. 460 of 1977 of his Court. ( 2 ) BRIEFLY stated, the facts of the matter are that one Shyam Sunder Singh (P. W. 2) resident of village, Kanspur Gugauli in district Fatehpur had three daughters namely Bholi (P. W. 3), Munni Devi and Binda Devi. All of them were married to different persons in the same village namely Chirhuli, which lies within the area of police station Auraiya of District Etawah Binda Devi is the deceased of this case. She was married to Deo Singh the present appellant. It is the prosecution suggestion-without any definite proof to that effect that Binda Devi was pregnant for the last about seven months and her father-in-law and mother-in-law suspected that the pregnancy was illegitimate. And for that reason they were angry with her and on that account her husband Deo Singh allegedly committed this murder. There is no direct evidence of murder in this case, but the facts and circumstances which have been brought on the record, are -said to suggest the fact of murder and the evidence is only circumstantial. It is said that some time in February, 1976 Deo Singh took Smt. Binda Devi by an Ekka from his house on the pretext that she was going to the house of her father Shyam Sunder Singh. They left village Chirhuli at about 8 or 9 a. m. in presence of Smt. Bholi (P. W. 3) and one neighbour Vishtam Singh (P. W. 10 ). Laxmi Narain was also present, but he has not been examined- It is said that Ekkawala Puttu Khan (P. W. 16) brought them in his Ekka alongwith other passengers from Bakewar Ekka stand to Daudpura Bamba Pulia, where they got down. Laxmi Narain was also present, but he has not been examined- It is said that Ekkawala Puttu Khan (P. W. 16) brought them in his Ekka alongwith other passengers from Bakewar Ekka stand to Daudpura Bamba Pulia, where they got down. On the way, the Ekka stopped at the octroi post known as Nahar wali chungi, where Babu Khan Pound Moharrir of Lakhana had a talk with Deo Singh, who gave out that he was going to the house of his mothers sister. Between 12 noon and 2 p. m. when Smt. Ram Beti (P. W. 11) of village Sajbia P. S. Chakarnagar, Distt. Etawah was returning from Lakhana market and came to Ghat of Kadhesi Haar to cross the Jamuna river, she accosted the accused-appellant and a woman accompanying him and had a talk with the woman. It is said that Smt. Binda Devi was the same woman, whose photograph was subsequently identified by Smt. Ram Beti. They all crossed the river Jamuna together in the same Boat. And in this manner they reached across Jamuna in village Kandhesi Haar, which lies with In the area of police station-Chakarnagar, about 1/2 furlong away from the Ghat. Under a Bargad tree P. W. 9 Pahalwan resident of village Kadhori Ka-Nagla was sitting when at about 2. 30 p. m. or 2. 4. 5 p. m. , a man and a lady got down from the Boat and passed from near this witness on the rasta towards the village- Kadhori-Ka-Nagla. He also identified the photograph (Ext. 14), on the hasis of which he is now definite to say that the lady was Smt. Binda Devi. He also identified in Jail in identification proceedings the accused appellants, as the person who was accompanying the lady. After passing through Kadhori-ka-Nagla, it appears that the murder was allegedly done some where enroute. And at about 7. 30 p. m. the same day P. W. 4 Banslal was approached in village-Nagla-Kadhori by the accused appellant of this case whom he had indentified in jail and the accused appellant asked him for a place to stay during the night, which was granted to him. He stayed in the night at the house of Banslal (P. W. 4) and early in the next morning at about 7 a. m. he left. At that time the lady was not present with him. He stayed in the night at the house of Banslal (P. W. 4) and early in the next morning at about 7 a. m. he left. At that time the lady was not present with him. ( 3 ) IT appears that Binda Devi was murdered somewhere in district-Bhind (Madhya Pradesh ). Her father came to know of her dis-appearance along with her husband and therefore, Shyam Sunder made some enquiries in the village and then lodged the First Information Report Ext. Ka-l at police station Auraiya on 13. 5. 1976 at 1245 p. m. A case under sections 302 and 201 of the Indian Penal Code was registered. Sub-Inspector Lal Singh (PW. 13) started investigation and recorded statements of Shyam Sunder and Vishram Singh and others. He came to Etawah and recorded the statement of Girja Shanker, Reader of the Circle Officer, Chakarnagar and from him he came to obtain photograph Ext. 14 which he showed to Shyam Sunder and when Shyam Sunder recognised it to be the photograph of his daughter Binda Devi, Lal Singh (P. W. 13) asked him to approach the police of Chakarnagar, as the offence related to that police station. ( 4 ) WHAT had happened a little earlier is that on 5. 2 1976 between about 8. 00 and 9. 00 p. m. , P. W. 1 Soney Lal, Chaukidar of village Barechha within police station-Chakarnagar was going to obtain fodder for his cattle. He spotted a dead body lying in a pit at a distance of one mile from his village. It was the dead body of a female. He immediately returned back and went to police station-Chakarnagar, where he gave an information to that effect at 12. 30 p. m. Immediately Ram Swarup Singh (P. W. 6) Sub-Inspector was entrusted with the investigation of the case and he alongwith constables reached the spot, carried out the inquest on the dead body, took into possession the chappal and blood stained clothes etc. and other articles of the lady and also took into custody the simple and blood stained earth from the spot and then sealed the dead body and sent it for post mortem examination. He also sent a letter to the Reserve Inspector, Police Lines Etawah for having the dead body photographed and its finger impressions taken. ( 5 ) THE postmortem examination on the dead body. He also sent a letter to the Reserve Inspector, Police Lines Etawah for having the dead body photographed and its finger impressions taken. ( 5 ) THE postmortem examination on the dead body. the identity of which was still unknown, was conducted by Dr. V. K. Gupta, (P. W. 20) on 6. 2. 1976 at 3. 30 p. m. and the doctor found the following ante mortem injuries on the dead body. 1. Incised wound 1/2 x 1/4 x bone deep on the front of left side of bridge of nose, margins clean cut and direction oblique. 2. Incised wound 11/2 x 1" x bone deep on the left side of neck 13/4- above left clavicle, margins clean cut and direction transverse and inwards. 3. Incised wound 3/4 x 1/2 x muscle deep on the right side neck, 11/2" above right clavicle margins clean cut, direction transverse. 4. Two incised wounds 1/4 x 1/10 x skin deep each in the right supra clavicular fossa apart, margins clean cut, direction oblique. 5. Three incised wounds 1/4 x 1/8" x skin deep each on the right front of neck 2" above sternum, margins clean out, direction oblique. 6 Linear of abrasion 2 long on the front of the middle of neck, direction transverse. 7 Incised wound 1/2 x 1/8 x skin deep on the back of right hand over II metacarpal bone, direction oblique, margins clean cut. 8 Incised wound 1/2 x 1/2 x bone deep on the palm surface of the tip of right little finger, margins clean cut, direction oblique. 9 Multiple abrasions in the area 5 1/2 x 51/2 on the right side of chest an axillary lines. Three abrasions 5 x 1/4 x 11/2 x 11/4 and 1" x 1/10" on the right of neck, lower third portion direction transverse. 10. Multiple small abrasions in the area 10" x ST on the outer side of right thigh. 11. Abrasion 1/2 x 1/8" on the front of right leg, 41 below knee joint. 12. Multiple small abrasions 21/2" x 31/2 (area) on the front and outer side of left knee joint. 13. Incised wound 11/4" x 1/2" x muscle deep on the left side of lower part of adomen, 11/4" above public bone, margins clean cut, direction oblique. 14. Abrasion 1/2 x 1/8" on the front of right leg, 41 below knee joint. 12. Multiple small abrasions 21/2" x 31/2 (area) on the front and outer side of left knee joint. 13. Incised wound 11/4" x 1/2" x muscle deep on the left side of lower part of adomen, 11/4" above public bone, margins clean cut, direction oblique. 14. Incised wound 1 x 1/2 x muscle deep on the left side of abdomen, 3 below and lateral to umblicus, margins clean cut, direction transverse. 15. Linear abrasion 3 long on the right side of abdomen, direction oblique. 16 Three incised wounds 1/2 x 1/8 x muscle deep each on the back of left hand over II and III metacarpals, margins clean cut, direction oblique. 17 Incised wound 1/2 x 1/10 x muscle deep on the tip of palmer surface of left index finger, direction transverse, margins clean cut. ( 6 ) THE internal examination revealed that the trachea had been cut in the posterior part under injury No. 2 and was congested. The neck vessels had been cut on the left side under injury No. 2 alongwith oesophagus. The uterus had the presence of a male child of about 28 weeks. ( 7 ) AFTER receipt of the post mortem examination report, investigation was further continued and this time Sri Harvansh Singh, Station Officer Chakarnagar, (P. W. 22) made the rest of the investigation. He showed the photograph of the deceased to the witnesses and made sure that it was the photograph of Binda Devi. ( 8 ) ALONG with Deo Singh-appellant, his brothers Narain Singh and Bhagwant Singh were also charge-sheeted and subsequently a further charge sheet was submitted against the Panch am Kahar. It appears that the learned Additional Sessions Judge did not find any case against Narayan Singh and Bhagwant Singh and discharged them. Pancham Kahar was prosecuted and we are told that he was not found guilty but there is nothing on the record to show that. ( 9 ) THE prosecution examined in this case Soney Lal (P. W. 1) Shyam Sunder Singh complainant as P. W. 2, Smt. Bholi Devi as P. W. 3, Bansal as P. W. 4, Hargovind Sahai Mathur, Stipendiary Magistrate as P. W. 8, Pahalwan as P. W. 9, and Dr. V. K. Gupta as P. W. 20, besides the formal witnesses. V. K. Gupta as P. W. 20, besides the formal witnesses. The total number of witnesses examined by the prosecution was 24. ( 10 ) ON. behalf of the defence two witnesses Vishwanath Singh (D. W. 1) and Shanti Devi (D. W. 2) entered the witness box but their evidence is not of any material worth. ( 11 ) IT is clear that a dead body was spotted between 8 and 9. 00 a. m. by Soney Lal-Chaukidar within an area of village Barechha, P. S. Chakar Nagar and on the hasis of this he submitted information to the Thana at Chakar Nagar at 12. 30 hours and the investigation started. While this was going on, the First Information Report of this case was also lodged on the hasis of disappearance of the lady on 13. 5. 1976 at 12-15 p. m. by Shyam Sunder in thana Auraiya, Distt. Etawah. As we have already earlier mentioned that there is no direct evidence of the murder of Smt. Binda Devi at the hands of her husband Deo Singh. The defence has even challenged the identity of the dead body and it is contended that the photograph Ext. 14 is not of the dead body of Binda Devi but is of some other lady. This however will not be accepted view of the definite and direct testimony of Shyam Sunder (P. W. 2), who is the father of the girl and who says that the photograph is of her daughter-and also in view of the statement of Smt. Bholi-un-doubtedly the sister of the deceased, who also correctly identified the photograph as that of Binda Devi. If the lady had been alive and had not died, these two very close relatives would never have gone to identify Ext. 14 as the photograph of Smt. Binda- Devi. The defence contention however is that Binda Devi was living at her fathers place and inspite of attempts by Deo Singh to bring her back, she was not sent back and this suggestion that from there she disappeared and now Deo Singh is being falsely implicated for her murder. 14 as the photograph of Smt. Binda- Devi. The defence contention however is that Binda Devi was living at her fathers place and inspite of attempts by Deo Singh to bring her back, she was not sent back and this suggestion that from there she disappeared and now Deo Singh is being falsely implicated for her murder. The evidence against Deo Singh can be divided into three or four parts and the first part consists of the evidence of the going away of Deo Singh along with the deceased from village-Chirahulli and for this is evidence of P. W. 3 Smt. Bholi and P. W. 10 Vishram Singh. We shall first discuss this evidence and its worth. According to Smt. Bholi and Vishram Singh, it was at about 8 or 9. 00 a. m. that the occurrence took place. Vishram Singh was sitting at his own door just infront of the house of Deo. Singh when Deo Singh and Smt. Binda Devi came out of their house with some luggage and Deo Singh made the lady seated in the Ekka and himself proceeded on a cycle. Smt. Bholi was present at the house of Deo Singh, where she had been allegedly called by her sister in the morning at 6. 00 a. m. and she was told that Binda was being taken to her fathers house by Deo Singh. Smt. Bholi says that her sister asked her if she had any message to be delivered to her parents and Smt. Bholi simply said that her parents may be informed that she was well. After that Smt. Binda Devi on the Ekka and the appellant on his cycle left the place ostensibly to go to the house of Shyam Sunder in village-Kanspur Gugauli. It is said that Vishram Singh (P. W. If) had also asked Deo Singh as to where he was going, because Deo Singh had with him some luggage like attacbee-case and a hand-bag and he was told that they were going to Kanspur Gugauli. According to P. W. 10 Bishram Singh, Smt. Munni Devi and Smt. Bholi both came out of the house of the appellant to see Smt. Binda Devi off. This means that Munni Devi was also present, but according to Smt. Bholi, Munni Devi was not in the village in those days and had gone to her fathers house. According to P. W. 10 Bishram Singh, Smt. Munni Devi and Smt. Bholi both came out of the house of the appellant to see Smt. Binda Devi off. This means that Munni Devi was also present, but according to Smt. Bholi, Munni Devi was not in the village in those days and had gone to her fathers house. Now the testimony of these two witnesses may be looked into in the light of the evidence of P. W. 16 Puttu Khan, who is examined as the Ekka-wala. According to this witness he brought the appellant and the lady in his Ekka from Bakewar Ekka stand and took them up to Daudpura Bamba Pulia, where they got down. On the way, he stopped for a while to give water to his horse near the Naharwali octroi post, where Babu Khan (P. W. 21) had a talk with Deo Singh. Now according to Babu Khan and Puttu Khan, both the appellant as well as his wife we travelling by the Ekka and none of them had a cycle. It is not the prosecution case that the Ekkas were changed on the way or that Puttu Khans Ekka was not the one in which the lady sat in front of her husbands house. The prosecution does not say so. We do not, therefore, know what happened to the cycle. Puttu Khan no-where says that the cycle was left by the appellant at any place on the way and although originally be bad started on a cycle, he came to his Ekka somewhere between his house and the place of destination. It is really a mystery that while Deo Singh was allegedly going on a cycle, he suddenly was found going on the Ekka and there is nothing to show as to what happened to the cycle Smt. Bholi admits that her sister called her and on that she had reached her house at 6. 00 a. m. and that Smt. Binda had asked her if she had any message to give to her parents, but, this she had never mentioned to the Investigating Officer in her statement under section 161, Cr. P. C. Similarly she had not told the Investigating Officer that Deo Singh seated her sister in the Ekka and himself went by cycle. She also never gave out the times when all these things happened. P. C. Similarly she had not told the Investigating Officer that Deo Singh seated her sister in the Ekka and himself went by cycle. She also never gave out the times when all these things happened. The absence of mention of these facts may be an omission but it is a material omission and has to be looked into to assess the worth of the testimony of Smt. Bholi. ( 12 ) AFTER all, there should have been some reason for Smt. Bholis presence at the house of Deo Singh at 6. 00 a. m. in the month of February which is a winter month. This explanation should have been given at the first possible opportunity when the Investigating Officer interrogated her. It appears from the testimony of Smt. Bholi that the relations between Deo Singhs parents on the one hand and Smt. Binda Devi on the other were strained. And for that reason, since Binda Devi is now no more alive, Smt. Bholi appears to have tried to forge out a case which does not appear to be true. It is really very strange that while according to these two witnesses Smt. Bholi and Bisram Singh, it was given out when the deceased and the appellant started from village Chirhauli that they were going to Kanspur but subsequently when Babu Khan (P. W. 21) allegedly tried to know as to where they were going the husband gave out that they were going to his Mausis house. If this was so Smt. Binda Devi would have been put on an alert about the motive of her husband and about the truth of his version. She could have definitely known by that time that the husband was not taking her to her fathers house but was taking her elsewhere. If this was so Smt. Binda Devi would have been put on an alert about the motive of her husband and about the truth of his version. She could have definitely known by that time that the husband was not taking her to her fathers house but was taking her elsewhere. Then here is evidence to show that the couple crossed the Jamuna and the lady made an enquiry from Ram Beti (P. W. 11), where the river which they were going to cross, was really the Jamuna river It means therefore that the lady had not been to river Jamuna earlier and when she was allegedly crossing it, she must have again thought about the fact that her husband was neither taking her to Kanspur nor to his Mausis house, but to some other strange place through a route which she had never earlier gone through as she had not crossed the Jamuna river earlier, and with all this, we also learn from the testimony of P. W. 9 Pahalwan of village Kadhori-ka-Nagla, that after crossing the Jamuna river allegedly the appellant and his wife passed from near the Bargad tree, where Pahalwan (P. W. 9) was sitting and went inside village Kadhori-ka-Nagla, upto that time the lady was allegedly alive and she did not resist being taken to an unknown place, even after knowing that the husband had indulged in falsehood in telling people that she was being taken to village Kampur Gugauli or to the house of the husbands Mausi and although she must have become suspicious about the conduct of her husband. We are supposed to be heve that inspite of all this knowledge having dawned upon the lady which should have made her suspicious of her husband intentions, she followed her husband without making any protest in Ii very docile manner. ( 13 ) THE dead body was found by the Chaukidar Soney Lal (P. W. 1) within the agricultural area of village Barechha, which lies within an area of police station Chakarnagar, Distt. Etawah. The prosecution has not tried to show that this place Barechha will lie any where close to Kadhori-kanagla, upto which place according to P. W. 9 Pahalwan, the husband and the wife were both alive and had passed from in front of this witness. Where actually the murder was committed and at what time, is also not at all established. The prosecution has not tried to show that this place Barechha will lie any where close to Kadhori-kanagla, upto which place according to P. W. 9 Pahalwan, the husband and the wife were both alive and had passed from in front of this witness. Where actually the murder was committed and at what time, is also not at all established. In our opinion, the testimony of Smt. Bholi (P. W. 3) and Vishram Singh (P. W 10) does not inspire confidence and cannot be taken to be an uncontroverted circumstances against the appellant. ( 14 ) SO far as Puttu Khan (P. W. 16) and Babu Khan (P. W. 21) are concerned, they are unreliable witnesses. Pottu Khan says that he brought a large number of passengers on his Ekka including the appellant and his wife. He was not sent to Jail during identification proceedings to identify Deo Singh, who admittedly was not known to him from before. The photograph Ext. 14 was also not shown to him and therefore his testimony does not establish anything. P. W. 21 Habu Khan says that he knew the appellant Deo Singh for some time because his neighbour Vishwanath who is related to Deo Singh, had introduced this mall to him earlier in village Lakhna. Vishwanath has been examined as a defence witness and he says that he never introduced Deo Singh to Babu Khan and that Deo Singh is not related to him in any manner, Babu Khan is a Pound Clerk in Lakhna which lies within the area of police station Bakewar. The cattle pound is at some distance from the Octroi Post. It is really very strange that Babu Khan would leave his own duties connected with his work in the cattle pound, lock the pound and come to the Octroi Post and would sit there unnecessarily. His testimony appears to have been made up only to provide some evidence to show that the appellant along with his wife passed from near the Lakhna Naharwala Octroi post at about 12 noon about 2-1/2 years back. Even Babu Khan is unable to identify the photograph Ext. 14. We do not think that he proves any thing in this case. ( 15 ) THIS brings us to the consideration of the testimony of P W. 11 Smt. Rambeti. Even Babu Khan is unable to identify the photograph Ext. 14. We do not think that he proves any thing in this case. ( 15 ) THIS brings us to the consideration of the testimony of P W. 11 Smt. Rambeti. She is the wife of one Ramesh of village Sajhiya P. S. Chakar Nagar, Distt. Etawah. Although her husband and other relatives are alive she insists that she herself goes to the market Lakhna to make purchases. According to her about 2-1/2 years, prior to the date of her testimony, she had gone to village Lakhna Bazar at about 1 or 8 in the morning. She made some purchases and returned at about 12 noon or 2 p. m. There is a wide gap between the two, hours which she gives as the time of her return. Then she says that she passed from near the Ghat of Kadhesi Near and crossed the Jamuna river by a boat and then a man and a woman also crossed Jamuna by the same boat. It is strange that although the woman was putting on a Ghilnghat (veil) and the man had no dhata on his face, she is unable to identify the man, but could identify the photograph Ext. 14 as that of the woman. During cross examination she clearly gave out that photograph Ext. 14 was shown to her for the first time out side the Court room by a constable and was never earlier shown to her. This will reduce her testimony regarding identification of the deceased to nil. She also does not prove anything. ( 16 ) P. W. 4 Banslal is a resident of village Nagla Kadhori and he says that about 7. 30 p. m. the appellant of this case approached him with a request for some place to stay during the nigh and gave out that he belonged to village Aheripur, P. S. Bakewar and was coming from Kotchari (which is in Madhya Pradesh ). He stayed with him during the night and left at 7 a. m. the next morning. This witness went to identify the appellant in Jail on 28. 7. 1976 and correctly identified him. But he says that in the parade some persons were putting on caps, while others were bareheaded and some were putting on shirts and some others had nothing on the upper parts of their bodies. This witness went to identify the appellant in Jail on 28. 7. 1976 and correctly identified him. But he says that in the parade some persons were putting on caps, while others were bareheaded and some were putting on shirts and some others had nothing on the upper parts of their bodies. If it was so though this fact has not been recorded by the Magistrate in his identification memo then the identification itself will suffer from a serious defect. ( 17 ) NOW the position of identification may also be looked into with reference to the fact that it was delayed. In this case the appellant ultimately surrendered in Court on 10. 6. 1976 and he was put up for identification on 28. 7. 1976. There is nothing on the record to show that he ever absconded. On the contrary it appears that the Investigating Officer did not try to arrest him before 10. 6. 1976 and raided his house only once and merely because he was not available on that date, he started concluding that he was missing and had absconded. No action under sections 82 and 83 of the Code of Criminal Procedure was taken. The occurrence took place some time in February 1976 and after about five months or more the identification of the accused was made. It is true that it is not a dacoity case. It is also true that the occurrence did not take place during night, but the facts and circumstances are that between the date of the occurrence and the date of the identification, there has been a time gap of five months or more. This should be considered before any reliance can be placed on the identification evidence. Between the date of the arrest (surrender of the accused) 10. 6. 1976 and the date of identification (28. 7. 1976) there will be a time gap of about 48-49 days. ( 18 ) IN the case of Soni v. State of U. P. the identification parade was held after a lapse of about 42 days from the date of the arrest of the accused and it was held that the delay throws a doubt on the genuineness thereof. Because, it will be difficult that after a lapse of such a long time, the witnesses would be remembering the facial impressions of the appellant. Because, it will be difficult that after a lapse of such a long time, the witnesses would be remembering the facial impressions of the appellant. ( 19 ) IN the case of Subhash and Sheo Shanker v. State of U. P. , three witnesses correctly identified the appellant in parade, but the Court took into consideration the fact that nearly four months had elapsed between the date of the occurrence and the date of the identification proceedings. It was also observed that neither the identification memo shows nor the statements under section 161, Cr. P. C. record any descriptive particulars of the accused given by the witnesses. It was held that it would not be safe to act upon such identification evidence. ( 20 ) IN the case of Muthu Swamj V. State of Madras identification which was held about 2-1/2 months after the occurrence was not held to be safe on which reliance could be placed. ( 21 ) IN the case of Mohd. Abdul Hafeez v. State of Andhra Pradesh, it was held that where the witnesses have not given any description of the accused, their identification at the Sessions Trial cannot be safely accepted. ( 22 ) IN a recent case of Harinath and another v. State, and some other cases connected with it, the facts were that the identification parade had been held four months after the occurrence of dacoity. The benefit of this regrettable and wholly unexplained absence of promptitude in holding the test- identification was to be given to the appellant, because the evidence of test-identification lacked the requisite element of re-assurance in support of conviction and raised a reasonable doubt. ( 23 ) THE sum and substance of the law up-to-date is that delay in identification raises suspicion, unless the delay is explained as having been caused on account of the accused, or there are other circumstances to be taken into consideration in support of that delay and to show that inspite of the delay the witnesses had strong reasons to be able to identify the appellant. In the present case the identification memo will simply show that the witnesses gave out that they had come to identify the person who had committed the murder. It is really strange that they could say so. In the present case the identification memo will simply show that the witnesses gave out that they had come to identify the person who had committed the murder. It is really strange that they could say so. It only shows that they were told that the person whom they were going to identify, had committed the murder. The two witnesses namely Pahalwan and Banslal should have said that they have to identify the person, who in the case of Pahalwan, passed from near him alongwith lady and proceeded towards the village Kadhorika-Nagla and in case of Banslal, he was the man who came and stayed at the house of Banslal in one night. These witnesses could never have known that such a man was a murdered, unless some body had imparted that knowledge to them and this in itself is extremely suspicious. In our opinion, the identification evidence does not inspire confidence. ( 24 ) A complete perusal of the evidence and the circumstances of the case will thus show that there is not a single circumstance which could un-equivocally lead us to the conclusion that Deo Singh committed the murder of his own wife. In case of circumstantial evidence, the circumstance should point only to the guilt of the accused and no other explanation should be possible. This element is missing in the present case, we are not in agreement, with the learned Additional Sessions Judge that the guilt of the accused was made out. As such the Judgment cannot be upheld. ( 25 ) IN the result, the appeal is allowed. The order of conviction and sentence passed against Deo Singh by Mr. Brahma Singh, the then III Additional Sessions Judge of Etawah on 25. 9. 1978 is set aside. Deo Singh is not found guilty of the offences punishable under sections 302 and 364. I. P. C. The sentences of imprisonment for life and rigorous imprisonment for seven years passed against him are set aside. He is acquitted on both the charges. He is on bail and need not surrender. His bail bonds and sureties shall stand discharged. Appeal allowed. .