JUDGMENT 1. - Briefly stating the prosecution case is that Kamla Bai (P.W.3) lodged a written report at Police Station Kaithuni Pole, Kota wherein it was alleged by her that she is residing in Chavani Kota where from she had come to see her mother, who was staying in Kaithuni Pole area at about 12.30 p.m. She found the house locked so she thought that she might be returning soon but having waited for quite sometime, she got suspicious as she was not traced in the locality. She saw through the window on the rear side of the house by pushing it open and she saw that her mother was lying dead on a coat with a white cloth tied to her neck. She did not notice the Bali (earnings), which she used to put on three in each ear. On receipt of this report, a case was registered for offence under Sec. 460 IPC and investigation commenced. Prem Prakash (P.W.8), the Investigating Officer, inspected the site and prepared the site plan Ex, P.8A. He also got the photographs of the place of occurrence and thereafter got the post mortem of the dead body conducted. Dr. Navin Saxena, at 8.00 a.m. on 24-4-86 conducted the post mortem and found the following injuries on the person of deceased Pushpa Devi:- " 1- yk'k dh fLFkfr fMdEiksTM FkhA 2- ysljsVsM oqUM 1&4 bUp bUVw 1&8 bUp bUVw 1&8 bUp nksuksa dkuksa ds ckgjh fgLls ij ekStwn FkhA ;g pksVsa la[;k esa 3 Fkha vkSj lHkh pksVksa dh nwjh 1&4 bUp dh FkhA 3- ,czstu rFkk uhyxw fu'kku tks fd tcM+s ds ,d dksus ls nwljs dksus rd V~kalosyh lk<+s 8 bUp bUVw 1&2 bUp FksA lkeus dh rjQ VsaVq, ds mijh Hkkx ij ekStwn Fks tks ckgjh rjQ FksA 4- fV~Dok;MZ dkfVZyst ( daB ) dk QszDpj gksuk ik;k x;kA vkarfjd ijh{k.k& 'kjhj ds vUn:uh Hkkx ij dksbZ pksVsa ugha FkhA yaXlwV~sfy;k Iywjk dUtLVsM rFkk mlesa bthesVhfj;y ekStwn Fkk fny dk nkfguk pSEcj [kwu ls Hkjk gqvk Fkk vkSj ck;ka pSEcj [kkyh FkkA tqcku rax vkSj eqag ds vUnj FkhA " According to him the case of death was suffocation and osphyxiadue to strangulation. During the course of investigation, accused Shivanand was arrested on 27-4-86 at Bus-stand, Tonk. During the course of investigation, accused Shivanand was arrested on 27-4-86 at Bus-stand, Tonk. Shivanand gave information to the police that he has sold six gold Bali to a shop-keeper near a tailor shop in Subhash Market, which he can point out. The police took him to Subhash Market where he pointed out to the shop of one Beni Prasad Sarraf. Beni Prasad stated that the accused had sold to him Bali which he produced before the police and stated that they weighed one Tola and two Aana and he paid Rs. 2,575/- to the accused against the sale price. He also produced documents to show the bonafides of his purchase of the Bali from the accused which included a receipt and a `Chopani' (Account-book). Police also recovered Rs. 1815/- from the residence of the accused which remained with him after spending the remaining amount out of which Rs. 300/- he had repaid to Ram Prasad from whom he had taken loan. 2. After completing the investigation, a charge-sheet was submitted in the Court of learned Judicial Magistrate, 1st Class, Kota, who committed the accused to Sessions for trial. The accused was read over charges for offences under Sections 302, 449 and 380 IPC. He denied the charges and claimed to be tried. 3. Prosecution examined as many as 13 witnesses in support of its case. Accused furnished no explanation in his statement and the learned Judge after hearing arguments convicted and sentenced the accused appellant, as indicated above. 4. Learned counsel for the appellant, challenging the conviction and sentence submitted that the entire case is based on circumstantial evidence which too is of very weak nature. His submission is that three types of evidence has been produced by the prosecution, one is about the accused having been last seen by Ram Prasad (P.W.7); secondly, the recovery of the Bali and identification thereof; and thirdly, about repayment of money to Ram Prasad, after the Balis were sold. It is submitted that the trial Court has erred in convicting the accused-appellant for offence under Sec. 302 IPC on the basis of recovery of ornaments when neither presumption can be drawn under Sec. 114 of Indian Evidence Act nor it is a circumstance to connect the accused with the crime unless they were found to have been stained with human blood having the same group that is that of the deceased. Learned counsel submits that the evidence of last seen in the case is of no avail because neither the time of occurrence has been established nor convincing evidence has been produced to show that she was not seen thereafter. On the contrary, it is submitted that though it could not be brought in cross-examination yet during police investigation, it has come that she had been seen alive even in the evening. It is submitted that accepting the entire evidence, the case falls short of proof required and the accused is, therefore, entitled to benefit of doubt. 5. Learned counsel for the State has supported the judgment of the trial Court but is unable to show any authority that merely on the recovery of the Balis, conviction can be based for offence under Sec. 302 IPC if the evidence of last seen is not accepted. 6. We have given our earnest consideration to the rival contentions and have perused the record. 7. It is not disputed that the case is based on circumstantial evidence and only two important circumstance have sought to be proved by the prosecution, one is about the last seen by Ram Prasad (p.w. 7) and another is regarding the recovery of Bali. 8. We will deal with both the circumstances separately. 9. Ram Prasad (p.w. 7) in his statement, has stated that Pushpa Bai was murdered on 22-4-86. He was serving in Military in night shift and used to return at about 11.00 in the morning. On 22-4-86 in the morning when he went for his duties in the evening, he went to call on Pushpa Bai where Shivanand was sitting. Shivanand had approached him a day prior for enquiring as to whether the room was lying vacant for taking on rent from the old lady. He, therefore, directed him to go to Pushpa Bai. The witness stated that he stayed for minute or two and then went away. Next day at about 3.00 p.m, he learnt that Puspa Bai had been murdered. In cross-examination, he had stated that he had just gone up-stairs of his own and did not talk to Pushpa Bai. He later on stated that he had gone to tell her that she should close the doors. Next day at about 3.00 p.m, he learnt that Puspa Bai had been murdered. In cross-examination, he had stated that he had just gone up-stairs of his own and did not talk to Pushpa Bai. He later on stated that he had gone to tell her that she should close the doors. The witness was asked as to whether he was at the residence in the day time to which he stated that he was not home as from the service he had straight gone to see a move. He was confronted with his previous statement as to the purpose of Shivanand's meeting Pushpa Bai as to whether he had given this statement to police that a room was lying vacant and Shivanand wanted to take it on rent to which he said that he had stated the same to the police but the police might not have written then same. He has denied that he was giving a false statement. 10. This witness has left out an important aspect of the case while giving the statement in police i.e. the purpose of Shivanand's meeting Pushpa Bai. It is not the case of prosecution that Shivanand was known to Pushpa Bai from before. In fact, Shivanand had been searching for a vacant room and it is Ram Prasad who had advised him to go and talk to Pushpa Bai in this respect. It is also not the case that earlier also he might have met Pushpa Bai in this respect. Even if we accept the entire statement of this witness, it does not inspire confidence because the evidence that someone had come to meet her for taking the house on rent would not mean that none else had entered the house prior to his leaving the place. It is also not certain as to whether the murder had taken place in the evening and as stated above, he has not given the reason of Shivanand's visiting to that house in his police statement. This witness had been arrested by the police and was interrogated along with one Mahendra Kumar, as is admitted by Narain Lal (p.w. 9) who is a neighbour of Pushpa Bai. Thus, reliance cannot be placed on his statement. 11. Prosecution has also examined Mahendra Kumar (p.w. 2) in whose presence the room was opened. This witness had been arrested by the police and was interrogated along with one Mahendra Kumar, as is admitted by Narain Lal (p.w. 9) who is a neighbour of Pushpa Bai. Thus, reliance cannot be placed on his statement. 11. Prosecution has also examined Mahendra Kumar (p.w. 2) in whose presence the room was opened. This witness is living on the ground floor of the same house but he had not seen Shivanand going in or coming out the house in the afternoon of 22-9-87. In fact, though he was not cross-examined but for our satisfaction, at the insistance of the learned counsel for the appellant perused his police statement. According to this witness he had seen Pushpa Bai alive when he went to bed in the night and as per his statement she was murdered after 9.00 p.m. and before he got up, which statement does not corroborate the statement of Ram Prasad (p.w. 7). Thus, the evidence of last seen is least convincing. 12. Now, we may deal with the aspect of the recovery of Bali. The Investigating Officer in the case, though, was of the rank of Dy. S.P., did not prepare the documents with meticulous care. He had interrogated Ram Prasad on 24th Sept., 1987, but could not bring out anything out of him on that day. It was on 27th April that suddenly he arrested him at bus-stand and soon after, the information has been obtained from him purported to be one under Sec. 27 of the Evidence Act. According to Ex. P. 15, the information memo, he had sold it on a shop, the name of which he does not remember but is adjacent to the shop of a tailor in Subhash Bazar. He stated that the said Balis had been sold by him for Rs. 2575/-. In pursuance of this information, the recovery was made vide Ex. P.6 wherein it has been shown to have been sold to Beni Prasad from whom it was recovered for Rs. 2575/- but when the document was placed, it was first written as Rs. 2675/- then it was corrected. There is over waiting in the date also but none of the over writing in the document has been initiated by the Investigating Officer. Investigating Officer has also recovered a receipt Ex. 2575/- but when the document was placed, it was first written as Rs. 2675/- then it was corrected. There is over waiting in the date also but none of the over writing in the document has been initiated by the Investigating Officer. Investigating Officer has also recovered a receipt Ex. P. 16, which is alleged to have been washed out in the pocket of witness, Beni Prasad (Ex. P. 5). In this receipt, the weight of the Balis do not tally with the information or the recovery memo and on all important points, it has been washed out but the test of the portion alone is apparent. At the bottom of it, it is written by Shivanand that he has received the price which is Rs. 2450/-. Thus, the story of Rs. 2575/- being paid to him as is come in the information memo and the recovery memo becomes false. 13. other evidence produced in this respect is that of the Chopani i.e. the account book of Beni Prasad (p. w. 5). In this account book also, the weight is not written to be one Tola and two Aanas. This entry is alleged to have been signed by the accused. After this entry, there are only more entries in the entire book. Beni Prasad (p. w. 5), when cross-examination, stated that he was not dealing with gold but he was dealing with silver only. He gave out an explanation that he purchased these goods for his domestic use. He admitted that he is keeping Rokar - Khata (Case Account) in his shop where entries about the transactions are made but no such Rokar - Khata has been produced by the prosecution in the case. The Balis, which have been recovered from the place of Beni Prasad ought to have been properly proved to have been the same which were worn by deceased Pushpa Bai and for that it was essential for the prosecution to have proved that the Balis recovered from the shop of Beni Prasad were properly sealed, which seals were kept intact till they were placed for test identification parade and secondly, that there should have been some evidence to connect that these Bails were removed by the accused after killing Pushpa Bai and neither of the two evidence is present in the case. Prosecution has not produced the witness to show that seals were kept intact till they were produced before the Magistrate for holding the identification. The learned Magistrate also failed to give satisfactory explanation as to why the similar Balis were sent for the identification the case. The learned Magistrate in his cross-examination could not give satisfactory answer when he was asked as to how he sent for the similar Balis for the purpose of identification. He then admitted that the Bali, which the Reader brought for mixing were not identical to one recovered but look like that. He admitted that he had not put any such remark in the identification memo. The entire recovery of Bali and the identification becomes useless when it is read with the statement of Kamla (p. w. 3), who has categorically stated that Balis were shown to her by the police at the police station before holding the identification parade. In this view of the matter, the alleged recovery of Bali is not sufficient to connect the accused with the crime of murder. 14. Similarly, evidence about recovery of Rs. 1850/- on the information and at the instance of the accused is also not convincing. Besides this, it is the settled law by now right from the case of Sanwat Khan and another v. State of Rajasthan ( AIR 1956 SC 54 ) till date that no presumption can be drawn for murder from the recovery of the ornaments much less when the evidence of last seen has not been believed and identification also held not to be absolutely in accordance with the rules, it would be unsafe to sustain the conviction of the accused-appellant and, in our opinion, he is entitled to benefit of doubt. We, therefore, extend the benefit of doubt to the accused. 15. Regarding the disposal of property, despite the fact that we have not accepted the evidence has neither claimed the Bali nor the money, therefore, there is no warrant for interference with that part of the order of the learned Sessions Judge. 16. The result of the aforesaid discussion is that this appeal is allowed. Conviction and sentence of the accused-appellant Shivanand is set aside. He is acquitted of all the charges. He is in jail and shall be released forthwith, if not required in any other case. However, the order about disposal of property is maintained. *******