V. D. GYANI, J. ( 1 ) THIS appeal arises out of ORDER Ltd. 23rd August 1988 delivered by Addi. Sessions Judge. Alirajpurin S. T. 29/88, holding the appellant guilty of offence u/s. 302 IPC and sentencing him to undergo imprisonment for life. This appeal was preferred from jail. As the appellant was unrepresented Shri GS Solanki appeared for him as his counsel provided by legal Aid Committee of this Court he is heard along with the learned Govt. Advocate, Shri SK Nigam. ( 2 ) THE accused was living in a village Sondhwa within the jurisdiction of District Jhabua. It was on 1st Feb, 87 that his wife Rashida caught fire and ultimately succumbed to the burns on 14. 2. 1987. On her death it was Gani Mohammed, who lodged a report Ex. P. 5 at Police Station, Sondhwa. As per this report the appellant had forcibly kept Rashida as his wife about 2 or 3 months prior to the incident which occurred on 1. 2. 87. While she was cooking her sari caught fire, she sustained burns, but instead of rushing her to hospital she was being treated in village itself by appealing some indigenous medicine and ointments. Her condition, however, deteriorated and she ultimately died on 14. 2. 1987. On report Ex. P. 5 being lodged the Police machinery was geared into motion. Initially a case of suspected unnatural death was registered u/s 147 Cr. P. C. but on enquiry it was converted to one under Sec. 302 IPC r/w 5. 201 IPC. The appellant was arrested during the course of investigation on 22nd April, 87, vide arrest memo Ex. P. 8. He was also sent for medical examination on next day, Le. On 23rd April, 87. His injury report is Ex. P. 6-A. On completion of investigation the accused was charged and tried for offence punishable u/s. 302 IPC r/w 201 IPC. The prosecution examined as many as witnesses to prove the charge. The trial Court while acquitting the accused of charge u/s. 201 IPC, found him guilty of offence punishable u/s 302 IPC and sentenced him to life imprisonment hence this appeal. The prosecution examined as many as witnesses to prove the charge. The trial Court while acquitting the accused of charge u/s. 201 IPC, found him guilty of offence punishable u/s 302 IPC and sentenced him to life imprisonment hence this appeal. ( 3 ) SHRI Solanki, appearing for the appellant assailing the prosecution evidence submitted that none of the witnesses examined by the prosecution, is reliable on account of their belated disclosure of the incident The so called witnesses are cooked up by the police and no conviction can be sustained on the basis of their evidence. Shri Nigam, learned G. A. appearing for the state on the other hand maintained that the conviction as recorded by the trial Court is proper and does not call for any interference. ( 4 ) CHOTELAL PW. 2 in his evidence stated that on the date of incident he was flames coming out of the house of the accused; it was around 8. 00 or 9. 00 p. m. He has been declared hostile by the prosecution as he has disowned his previous statement recorded by the. Police u/s 162 Cr. P. C. ( 5 ) SIMILARY Unsingh PW. 7 gives different story. According to him the accused appeared at the seen at a later stage. He tried to save his wife and in the process sustained burns on his palm. ( 6 ) THERE are other neighbours examined as witnesses namely Usuf PW. 3 Sekdi PW. 4. ( 7 ) IT now remains to be seen whether on the basis of the evidence of these witnesses, who have been critised as cooked up witnesses by the learned counsel for the appellant can be relied upon for sustaining conviction as recorded by the trial court? Yusuf PW. 3 in his examination-in law chief, has stated that he heard Rashida crying that her husband Meharban had set rue to her. She was crying for held; but none rushed to her rescue, although the accused was standing there. He offerers his own explanation for not rushing to the rescue as he was afraid of the accused. ( 8 ) SHRI Solanki, Iraned counsel for the appellant, has criticised that the statement of these witness, as relied by the trial court, were during investigation for the first time on 23. 2. 1987, almost ten days after the death. He offerers his own explanation for not rushing to the rescue as he was afraid of the accused. ( 8 ) SHRI Solanki, Iraned counsel for the appellant, has criticised that the statement of these witness, as relied by the trial court, were during investigation for the first time on 23. 2. 1987, almost ten days after the death. Similar criticism is leveled against Other witnesses as well. Skbi PW. 4, has also claimed that she heard cries of Rashida crying for held as Bachao-Bachaot she was saying that it was Meharban the accused who had burnt her by pouring kerosene. The appellant was also present there but she did not rush to the spot as it was mid night time and a large crowd had collected around the hut of the accused. In her cross-examination she has admitted that all that she heard was that Bachao Bachao and nothing else, this she is a self contradicted witness. What she claimed in her examination-in-chief, is that she heard Rashida crying that it was her husband who burnt her by pouring kerosene, but this statement stands contradicted in her crossexamination para 6. She admits that all that she heard was Bachao Bachao and nothing else. ( 9 ) LEARNED counsel appearing for the appellant, criticised the approach of the trial court for drawing adverse inference against accused on account of his conduct in not taking his wife to hospital and indegeneously treating her in village; secondly not making any efforts to extinguish fire and save his wife. ( 10 ) EX. P. 6a is the report of injury sustained by the accused. He some attempts to extinguish fire. The learned judge of the trial court has overlooked this aspect of the matter. Secondary the fact that he did not take his wife to the hospital where treatment could have possibly been better. It does not necessarily lead to inference that it was the accused who had set fire to his wife. If he did not show sufficient interest in treatment, one does not know it might be due to the nature of injuries; the whole village was in know of the fact. There was secret about it that she was being treated in village itself and Unsingh PW. 7 who actually treated her, has been examined as witness. If he did not show sufficient interest in treatment, one does not know it might be due to the nature of injuries; the whole village was in know of the fact. There was secret about it that she was being treated in village itself and Unsingh PW. 7 who actually treated her, has been examined as witness. He has deposed to the fact that the accused appellant had also sustained injuries. In the circumstance, the inference drawn by the trial Court on account of accuseds conduct, can not be supported on any legitimate ground. ( 11 ) SO far delay in disclosure is concerned, the learned judge of the trial court has brushed aside this critism. Admittedly eye witness kept mum for almost a fortnight. Initially it was a case of catching fire and secondly Rashida succumbed to the bums. The trial Court offers an explanation that being rustic villagers, it was expected of them to have disclosed the fact to the police on their own. The-fallacy of this reasoning lies in the fact that these very witnesses were available to the police just next day of the incident when an inquest was prepared. Both Sekdi and Yusuf are witnesses to the Panchnama Ex. p. 4, prepared on 15. 2. 1987 and police preparing the same, examined as PW. 8. does not say a word as to what prevented him from recording a statement. How come it that even after the death of Rash ida recording of their statement was postponed for about 9-10 days. It is this delay, which has missed notice by the trial Court. At any rate this belated disclosure on their part, does create doubt about the veracity of their claim more so no any explanation is coming from the 1. 0 for such belated examination. ( 12 ) THERE is yet another legal error committed by the trial Court while reliving on the conduct of the accused as incriminating piece of evidence, it was incumbent upon the trial Judge to have put this incriminating circumstances to the accused in his examination u/s. 313 Cr. P. C. before making use of the same in support of conviction as recorded by him. ( 13 ) GOING through the statement recorded u/ s. 313 Cr. P. C. there is no such question put to him. P. C. before making use of the same in support of conviction as recorded by him. ( 13 ) GOING through the statement recorded u/ s. 313 Cr. P. C. there is no such question put to him. As, it is a cardinal rule of criminal Jurisprudence that an incriminating circumstance appearing in the evidence, not put to the accused, in his examination u/s. 313 Cr. P. C. it should not be use against him for basing order of conviction. The learned judge was palpably wrong in making use of such circumstances without putting it to the accused. Apart from legal position the circumstances itself has not been duly established. ( 14 ) COUNSEL for the appellant pointed out that the prosecution has with held a letter allegedly got written by witness Yusuf. This letter is not forthcoming. Be that as it may. It was the duty of the investigating agency to have procured and produced the same at the trial. ( 15 ) FOR the foregoing reasons the conviction as recorded by the trial Court u/s. 302 IPC can not be sustained. The evidence adduced falls short of legal proof. ( 16 ) THIS appeal deserve to be allowed. It is accordingly allowed. The conviction and sentence as recorded by trial Court are set aside. The appellant be set at liberty forthwith. Appeal allowed. .