Honble ARORA, J.—This appeal is directed against the judgment dated November 7, 1984, passed by the Sessions Judge, Balotra. (Camp Barmer), by which the learned Sessions Judge convicted and sentenced the accused-appellant for the offences under Sections 302 and 323 I.P.C. (2). Accused-appellant Dama was tried under Section 302 I.P.C. by the learned Sessions Judge, Balotra, for committing the murder of one Pema Ram in the Dhani of the accused situated in village Madawa, as well as for the offences under Sections 323 and 379 IPC. The prosecution case, as unfolded in the FIR, which was lodged by one Hema Ram (PW-6). at Police Station, Bakhasar, on August 10, 1983 at 3.00 p.m., is that he and his brother Pema Ram were cultivating the land of Burand for the last two years. They have, also, cultivated the land on partnership basis of one Gawardan this year. Yesterday in the evening after taking their meals,they slept in the field of Gawardan. Today, in the early morning, Gawardan got them up. In the meanwhile, Dama S/o Megha (the accused-appellant) came there and took Pema along with him on the pretext that he has some urgent work at his house. After about one hour, they heard the cries from the side of Damas Dhani. He and Gawardan went towards Damas Dhani and saw accused Dama, Mehra and Surta giving beatings to his brother Pema Ram, Mehra was armed with kulhari, Dama with Dukki and Surta was armed with Hammer (Hamamdasta). On enquiry, Pema told him that Dama has inflicted injury with Dukki on his parietal region. Damas wife was inside the room, who, also, informed them that Dama, Mehra and Surta were giving beatings to Pema and when she tried to intervene, her husband Dama inflicted injury with a Lathi to her, also. She, also, informed them that while going away, Dama took away the turban (Saafa) of Pema as well as her silver ornaments, namely, bangles and Kadiyas. In the FIR, though the name of three accused were mentioned, who inflicted injuries to Pema, but the police presented the challan only against Dama- the present accused-appellant and produced the other two accused, viz., Mehra and Surta as prosecution witnesses. Later on, an improvement was made by the prosecution that it was only the accused-appellant Dama who inflicted injuries to Pema and on receiving those injuries, Pema died. Later on, an improvement was made by the prosecution that it was only the accused-appellant Dama who inflicted injuries to Pema and on receiving those injuries, Pema died. The prosecution, in support of its case, examined thirteen witnesses. PW 3 Smt. Umi, PW 4 Tagi, PW 5 Gabbardan and PW 6 Hema are the four eye witnesses of the occurrence, out of whom, PW 5 Gabbar Dan has not supported the prosecution case. PW 7 Natha Ram is the Motbir witness to Furd Surat Haal Lash, Site Plan EX. P. 8, recovery of the clothes of the deceased vide EX. P. 11, the recovery of the sample soil as well as the blood-smeared soil vide EX.P. 12 and the recovery of the clothes of Smt. Umi vide EX. P. 3. PW 1 Kala Ram, PW 10 Sawai Singh, S.I., PW 12 Bhanwar Singh H.C. and PW 13 Hari Singh, S.H.O., are the four police witnesses. PW1 Kala Ram was the Constable Police, who took the sealed sample packets for FSL examination to the State Forensic Science Laboratory, Jaipur, in the sealed condition and handed them over at the Laboratory in the same condition. PW 12 Bhanwar Singh, Head Constable Police, was the Malkhana-Incharge at Police Station, Bakhasar, with whom the articles remained in the sealed condition since the time they were deposited in the Police Station till they were sent with Kala Ram for FSL examination to the State Forensic Science Laboratory, Jaipur. PW 10 Sawai Singh was the Sub-Inspector, who was initially connected with the investigation. The FIR EX. P. 7 was written in his presence. After the registration of the report, he went at the place of the occurrence, prepared Furd Surat Haal Lash, site inspection memo EX. P.8, Nazari Naksha EX. P. 9, Panchnama Lash EX. P. 10; made recoveries of the clothes of the deceased vide Ex.P.11, got prepared the injury report, recovered the silver ornaments belonging to Smt. Umi (PW 3) vide EX. P. 3, recorded the statement EX. P. 13, got the statements of PW 5 Gawardan recorded under Section 164 Cr. P.C., marked as EX. P. 5. PW 13 Hari Singh was the Station House Officer, who took the investigation from Swai Singh, Sub-Inspector Police, and after completion of the investigation, presented the challan. He arrested the accused on May 6, 1984, vide Ex. P. 13, got the statements of PW 5 Gawardan recorded under Section 164 Cr. P.C., marked as EX. P. 5. PW 13 Hari Singh was the Station House Officer, who took the investigation from Swai Singh, Sub-Inspector Police, and after completion of the investigation, presented the challan. He arrested the accused on May 6, 1984, vide Ex. P. 14, recovered the Dukki - the weapon of offence from accused Dama on 9.5.1984, vide recovery memo Ex. P. 16, at the instance and on the information Ex.P. 15 supplied by the accused. PW 11 Mr. Prakash Kumar, Munsif and Judicial Magistrate, recorded the statement of the witness Gawardan Under Section 164 Cr. P.C. PW 8 Mehra Ram -the father of the accused - has stated that Pema (deceased) had illicit relations with PW 3 Smt. Umi. On the date of the incident, he had gone to his field and surta was with him. On the next day, the police came there and they were informed that Pema has been murdered in the Dhani of Dama. PW 9 Surta has stated that he does not know anything about the murder of Pema. These two witnesses are not the witnesses of the occurrence and their evidence is of not much consequence. PW 2 Dr. Ram Chandra conducted the autopsy on the dead body of Pema. He, also, examined the injuries on the person of PW 3 Smt. Umi. (3). The case of the prosecution mainly rests upon the evidence of three eye witnesses, namely, PW 3 Smt. Umi, PW 4 Miss Taggi and PW 6 Hema, which is sought to be corroborated by the recovery of the Dukki the weapon of offence as well as the statement of PW 2 Dr. Ram Chandra. (4). PW 3 Smt. Umi has stated that Pema died in her Bakhal, who was murdered by her husband Dama. Her husband inflicted injury on the head of Pema by a Lathi in the morning. At the time of incident, the sun was about to rise. Pema was called by her husband Dama and he gave a cot to him. Pema sat on the cot. The accused asked her to prepare tea. After asking her to prepare tea, her husband went out of the house and returned armed with a Dukki and inflicted injury with it on the head of Pema. Pema fell down on the ground and cried. Pema sat on the cot. The accused asked her to prepare tea. After asking her to prepare tea, her husband went out of the house and returned armed with a Dukki and inflicted injury with it on the head of Pema. Pema fell down on the ground and cried. She heard the cries and came there. The accused, also, inflicted two-three injuries on her left hand by the Lathi, due to which her bangles broke. He, also, inflicted injury by the Lathi on her right leg. On hearing the cries, her daughter PW 4 Taggi, also, got-up. The accused put her and her daughter in the Jhumpa and ran away after taking the turban of the deceased. Hema and Gabbar Dan, also came there after hearing her cries and they had, also, seen the accused running away She was rescued by Hema and Gabbar Dan. Pema died at the spot. Regarding the theft of silver Kadiyas etc., she, however, admitted that the accused had not taken away these silver ornaments, which she herself got recovered vide EX. P. 13. In the cross-examination, she has admitted that in her statement before the police she had stated that her father-in-law Mehra, Surta and accused-appellant Dama were the persons who inflicted injuries to Pema, but this was stated on account of the fear of the police and actually Mehra and Surta were not involved in the crime. She has, also, admitted in the cross-examination that it was she who went to Chhamas Dhani and asked him to go to the village and inform the villagers that her husband has killed Pema. Chhama thereafter went to the village and informed all the villagers. From the close reading of the statement of this witness, it cannot be said that it was the accused, who inflicted injuries to the deceased Pema. This witness has tried to falsely implicate two innocent persons, namely, Mehra and Surta in such a heinous crime. She has admitted that she gave this statement to the police involving Mehra and Surta on the asking of the police, whereas actually they were not involved in the crime. She has, also, at the initial stage, came with the story that the accused took away her silver ornaments, which were not actually taken away by the accused. She has admitted that she gave this statement to the police involving Mehra and Surta on the asking of the police, whereas actually they were not involved in the crime. She has, also, at the initial stage, came with the story that the accused took away her silver ornaments, which were not actually taken away by the accused. This witness has stated that she was put in the jhumpa and the doors were closed from out-side by the accused, while in the cross- examination, she stated that she went to the Dhani of Chhama and informed him that her husband has killed Pema and asked him to inform this fact to the villagers, whereupon Chhama went to the village and informed the villagers, while later on she came with the story that she was locked in the Jhumpa by the accused and was rescued by PW 5 Gabbar Dan and PW 6 Hema. These contradictions in the statements of the witnesses and the improvement made by her, coupled with the circumstances of the case, suggest that she is not a lady of sound character and had illicit relations with the deceased, who has been allegedly killed by her husband. The evidence of this witness, in these circumstances, does not inspire confidence and cannot be made a ground for convicting the accused-appellant for such a heinous crime. (5). PW 4 Miss Taggi is the daughter of the accused Dama. She is a child of ten years and can be easily tutored and, therefore, her evidence has to be closely scrutinized and has to be read with care and caution. She has stated that her father Dama killed Pema with the Dukki (Article 1) in the morning. Dama inflicted injury by Dukki on the head and legs of the deceased Pema. While the accused Dama was inflicting injuries, she and her mother cried. Both, she and her mother, were put in the Jhumpa by her father and her father closed the doors. Hema and Gawar Dan thereafter came, who rescued them. On seeing Gawar Dan and Hema, the accused ran away. In the cross-examination, she has admitted that Pema used to come and stay at their house. Sometimes he used to come in the day and sometimes in the night, also. In the night preceding the time of the incident, Pema murdered. Hema and Gawar Dan thereafter came, who rescued them. On seeing Gawar Dan and Hema, the accused ran away. In the cross-examination, she has admitted that Pema used to come and stay at their house. Sometimes he used to come in the day and sometimes in the night, also. In the night preceding the time of the incident, Pema murdered. This witness though has stated that Pema slept in her house in the Bakhal while PW 3 Umi and PW 6 Hema have stated that Pema was called by the accused in the morning from the field of Gawardan where he slept in the night. The evidence of this witness does not find corroboration from the medical evidence. As per the statement of PW 2 Dr. Ram Chandra, eleven injuries were found on the person of the deceased Pema and out of them one injury was caused by a sharp-weapon. The type of the injuries received by the deceased were not the same. When there are two types of injuries found on the person of the deceased then naturally they should have been caused atleast by two different weapons and it is not the case of the prosecution that the accused-appellant inflicted injuries to the deceased by two different types of weapons-one sharp-edged and the another blunt object. The evidence of this witness is, also, contradictory to the initial version of the prosecution. According to the prosecution, at the initial stage, three accused, namely, Dama, Mehra and Surta-were attributed with these injuries. It is not expected that a paramour will sleep in the house when the husband of the lady is there in the house and, therefore, the statement of this witness does not inspire confidence. Looking to the age of this witness PW 4 Miss Taggi, the contradiction in her statement and the other circumstances of the case, we are of the opinion that the statement of this witness, also, does not inspire confidence and on the basis of her ber statement, the accused-appellant cannot be convicted. (6). PW 5 Gabbar Dan has not supported the prosecution case, but this witness has admitted that PW 3 Smt. Umi had illicit relations with deceased Pema and he had seen Pema coming to the house of PW 3 Smt. Umi in the day-light as well as in the night, also. (6). PW 5 Gabbar Dan has not supported the prosecution case, but this witness has admitted that PW 3 Smt. Umi had illicit relations with deceased Pema and he had seen Pema coming to the house of PW 3 Smt. Umi in the day-light as well as in the night, also. PW 3 Smt. Umi, in the cross-examination admitted that after the incident, she went to the Dhani of Chhama and informed him about the incident and Sent him to the village to inform the villagers and Chhama went and informed the villagers about the incident. This shows that this witness never came at the scene of the occurrence immediately after hearing the cries and had not seen the occurrence. He came there only after he was informed by Chhama and Chhama has not been produced in the witness-box. The evidence of this witness, who has been declared hostile, does not inspire confidence. (7). PW 6 Hema is the brother of the deceased. He has lodged the First Information Report. He is, also, said to be an eye witness of the occurrence. He has stated that on the fateful night, he, Pema, Gabbar Dan and Buran were sleeping in the Dhani of Buran. In the later part of the night, when there was complete dark, accused Dama came there and took his brother Pema to his Dhani on the pretext that he had some work with Pema. About an hour thereafter they heard the cries of Pema. They went towards the Dhani of the accused, which was situated at a distance of about 100 Paundas and saw Mehra, Dama and Surta inflicting injuries to Pema. On seeing them, all the three accused ran away. Dama was carrying the turban of Pema. Dama was inflicting injuries with the Dukki, Mehra was armed with Kulhari and Surta with Hammer (Hamamdasta). Smt. Umi (PW 3) was inside the Jhumpa, which was bolted from out-side. On opening the doors, she informed them that Mehra, Dama and Surta had put them in the Jhumpa and had closed the doors. From there he went to the Police Station to lodge the report and lodged the report EX. P. 7. He has, also, stated that the police recovered the Hammer, Lathi as well as the Kulhari from the place of the occurrence. From there he went to the Police Station to lodge the report and lodged the report EX. P. 7. He has, also, stated that the police recovered the Hammer, Lathi as well as the Kulhari from the place of the occurrence. In the cross-examination, while confronted with the statement made by this witness before the police regarding the illicit relations of Pema with PW 3 Smt. Umi, he stated that he never made such statement. In the cross-examination he has stated that the deceased made a dying declaration regarding infliction of the injuries by Dama on his parietal region. This witness, though has stated that he reached at the place of the occurrence after hearing the cries and saw the accused Dama, Surta and Mehra inflicting injuries to Pema while PW 3 Smt. Umi and PW 4 Miss Taggi have stated that it was the accused Dama only who inflicted injuries to the deceased Pema. The evidence of this witness is in contradiction to the statement of PW 3 Smt. Umi and PW 4 Miss Taggi. PW 3 Smt. Umi has admitted in the cross-examination that she went to Chharria and informed him about the incident and asked him to inform this fact to the villagers, who went to the village and informed this fact to the villagers. PW 4 Miss Taggi has stated that on the fateful night Pema was sleeping in the Dhani of the accused Dama. When Pema was sleeping in the Dhani of Dama where he was found murdered then there was no question of calling Pema by the accused Dama from the Dhani of Buran. The circumstances of the case show that Pema, on the night of the incident, slept in the Bakhal of the house of the accused as he had illicit relations with PW 3 Smt. Umi. Illicit relations of the deceased Pema with Smt. Umi stands proved from the prosecution evidence and somebody must have seen the deceased in the night with PW 3 Smt. Umi and might have murdered him and because it was the house of the accused Dama so naturally the suspicion arose against the accused-appellant and hence he has been named by the prosecution as the culprit of the crime. The evidence, produced by the prosecution, does not connect the accused with the crime. The evidence, produced by the prosecution, does not connect the accused with the crime. A mere suspicion, howsoever strong it may be, cannot take the place of proof and the conviction cannot be based merely on the suspicion. The statement of this witness, therefore, does not inspire confidence. (8). The prosecution has, thus, led two types of evidence. According to the statement of PW 3 Smt. Umi and PW 4 Miss Taggi, it was only the accused who inflicted injuries to the deceased Pema, while as per the statement of PW 6 Hema, the accused were three in number, viz., Surta, Mehra and the present accused-appellant Dama. According to this witness, three accused were making assault on the deceased, as a result of which he died, while as per the statements of PW 3 Smt. Umi and PW 4 Miss Taggi, the assault was made only by one person, i.e. the accused-appellant Dama. Though it cannot be disputed that the murderous assault was made on Pema on the day of the occurrence, as a result of which he died and the evidence of PW 2 Dr. Ram Chandra, also, supports the prosecution case on this point, but whether it was one accused, i.e., the accused-appellant or there were three persons who inflicted the injuries, or somebody else was there who made a murderous assault on the deceased, that point has to be considered. The evidence of the prosecution is conflicting. Two sets of evidence have been produced by the prosecution implicating the present accused-appellant and the other two persons, namely, Surta and Mehra, though all the witnesses, so far as the present accused-appellant is concerned, has involved him but the contradictions in the statement and the improvements made by the prosecution witnesses, raise a suspicion in the prosecution case. When the prosecution involved two innocent persons in such a crime, then what is the guarantee that they are speaking truth about this accused-appellant. The prosecution case, also does not find support from the medical evidence. Two types of injuries were found on the person of the deceased while as per the prosecution case, which was brought during the trial, it was only the accused who inflicted injuries with Dukki to the deceased. The prosecution case, also does not find support from the medical evidence. Two types of injuries were found on the person of the deceased while as per the prosecution case, which was brought during the trial, it was only the accused who inflicted injuries with Dukki to the deceased. The improvement made in the prosecution case and the contradictions in the statements of the witnesses raise a suspicion in the prosecution case and the testimony of the prosecution witnesses, on the basis of which the prosecution wants the conviction of the accused-appellant, appears to be unreliable and no conviction can be based on the testimony of these witnesses. (9). The next evidence which has been relied upon by the prosecution against the accused-appellant is the recovery of the Dukki- the weapon of offence at the instance and on the information supplied by the accused-appellant. According to the prosecution, the accused, after his arrest on 8.5.1984, gave information E.P.15 and on the basis of the information and at his instance, got the Dukki recovered on 9.5.1984. Though PW 13 Hari Singh, S.H.O., has stated that the accused got recovered the Dukki vide EX. P. 16 on 9.5.1984 at his instance and on the information supplied by him but PW 6 Hema has stated that the Hammer, Lathi and Kulhari were recovered by the police on 11.8.1983 when the police came at the place of the incident and prepared the site plan etc. and made the other recoveries. When the weapon of offence was already recovered on 11.8.1983 then there was no question of giving any information by the accused-appellant on 8.5.1984 for the recovery of the Dukki, which was already recovered. The recovery of Dukki, therefore, cannot be said to be made at the instance and on the information supplied by the accused. Even the witnesses to the recovery memo EX.P. 6 have not been produced by the prosecution. The Motbir witnesses have been produced by the accused in defence have specifically stated that no recoveries were made in their presence. Thus, this recovery is of no avail. Moreover, this recovery does not conclusively connect the accused with the crime because though the human blood was found on this Dukki but group of the blood could not be detected as it was decomposed. Thus, this recovery is of no avail. Moreover, this recovery does not conclusively connect the accused with the crime because though the human blood was found on this Dukki but group of the blood could not be detected as it was decomposed. In the absence of the detection of the blood-group, it cannot be said that this Dukki was used by the accused in committing the murder of Pema and, therefore, does not connect the accused. In this view of the matter, the prosecution has failed to prove the case against the accused-appellant. (10). Now coming to the conviction of the accused-appellant under Section 323 I.P.C. there is the statement of PW 3 Smt. Umi, who has stated that she was inflicted injuries by the accused- appellant by Dukki with great force while the injury found on her person was, superficial in nature. If the accused would have inflicted the injury on the person of PW 3 Smt. Umi by the Dukki or Lathi with great force, as alleged by this witness, then the injury would not have been of such a superficial character. Moreover, the evidence of this witness does not inspire confidence. She has tried to make improvements in the prosecution case. Initially she involved three persons in the crime while later on she came with the involvement of the accused-appellant only. She has, also, stated that the accused-appellant took-away the silver ornaments but she got them recovered at her own instance. She is not a lady of sound character. In this view of the matter, the evidence of this witness on the point of offence under Section 323 I.P.C., also, does not inspire confidence. (11). In the result, the appeal filed by the accused-appellant Dama is allowed. The judgment dated 7.11.1984, passed by the learned Sessions Judge, Balotra (Camp Barmer), convicting and sentencing the accused-appellant for the offences under Sections 302 and 323 I.P.C., is set-aside and the accused-appellant is acquitted of all the charges. He is in jail. He shall be released forthwith if he is not required in any other case.