JUDGMENT 1. - This is an appeal against the Judgment of the learned Addl. Sessions Judge, Nimbahera dated 29.10.1992 whereby the accused appellants Rajendra Kumar and Arjun Lal were convicted for the offence under sections 302 and 201 IPC and each of them has been sentenced to life imprisonment together with a fine of Rs. 500/- and in default whereof to undergo simple imprisonment for one month for the offence under Section 302 Indian Penal Code and to three years simple imprisonment together with a fine of Rs. 100/- and in default to undergo simple imprisonment for one month for the offence Under Section 201 Indian Penal Code. 2. On 13.9.1995, one Mithulal Kumawat lodged a report at Police Station, Chhoti Sadari to the effect that at about 8.30 AM on that day, he went to his well situated behind the Gurukul School to fetch water. He spotted a dead body floating on the water. On receipt of this report, the Police started proceedings under Section 174 Criminal Procedure Code P.W. 12 A.S.I. Shiv Singh reached the spot and with the help of Motbir, took out the dead body from the well. The dead body was found tied with a heavy stone and a rope. P.W. 8 Gordhan Soni came there and identified the dead body to be of his son Narendra Soni. 3. P.W. 8 Gordhan Soni stated that his son left for Indore in the company of the accused persons leaving behind his cycle at the shop of P.W. 1 Prahalad Panwala, who delivered the same to him at 10.00 P.M. on 9.9.1989. Shiv Singh, ASI submitted the report Ex. P. 17 to the S.H.O. and the latter in view of the suspicious circumstances, registered a case Under Sections 302 and 201 Indian Penal Code and the investigation commenced. 4. P.W. 13 Madansingh inspected the site and prepared the Site Plan Ex.P. 13. Accused Rajendra Kumar and Arjun Lal were arrested vide arrest memos Ex. P. 22 and 23 respectively. While in police custody, accused Arjunlal made a statement Ex. P. 23 under s. 27, Evidence Act to the effect that he had thrown a shoe in the hall and that he was prepared to get the same recovered. Pursuant to the above information, the accused Arjunlal got the shoe recovered from the Hall. That recovery memo is Ex.P. 10. While in police custody, accused Arjunlal made a statement Ex. P. 23 under s. 27, Evidence Act to the effect that he had thrown a shoe in the hall and that he was prepared to get the same recovered. Pursuant to the above information, the accused Arjunlal got the shoe recovered from the Hall. That recovery memo is Ex.P. 10. Accused Arjunlal also furnished another information Ex.P. 58 also under s. 27, Evidence Act that he has concealed a silver chain in two pieces in his residential house and that he was prepared to get the same recovered. In pursuance of the above information, accused Arjunlal got the above chain recovered vide recovery memo Ex.P. 2. Similarly accused Rajendra Kumar made a disclosure statement Ex.P. 59 Under Section 27, Evidence Act regarding the recovery of watch from his residence and pursuance to the above information a watch was recovered from his house vide recovery memo Ex.P. 3. Accused Rajendra Kumar and Arjunlal also produced the copy Ex.P. 60 and the letter Ex.P. 61 before the S.H.O. 5. The Investigation Officer got conducted the identification proceedings of the watch by Shri Shripal Sharma, P.W. 14. P.W. 5 Suresh Chandra correctly identified the watch before Shri Shripal Sharma. It is also alleged that P.W. 5 Suresh Chandra also produced the letter Ex.P. 21 on 14.9.1989 before S.H.O. P.W. 13 Madansingh, which was seized vide memo Ex.P. 25. By letter Ex.P. 25, a ransom of Rs. 10,00,000/- was demanded from Suresh Chandra for releasing Narendra Soni. The Investigating Officer suspected that perhaps the letter was written by one of the accused-persons. He, therefore, requested Shri Shripal Sharma for attesting the specimen handwriting of the accused Arjunlal and Rajendra Kumar. The specimen hand writings of both the accused which are Ex.P. 23 to 39 and Ex.P. 42 to 57 were made before Shri Shripal Sharma. Suresh chandra also produced the Ex. P 20 and the letter Ex. P. 21 before Shri Shiv Singh, ASI. During investigation, the Superintendent of Police, Chittorgarh vide his letter Ex.P. 8 sent both these letters received from Suresh Chandra together with the specimen writings of the accused to the Director, Finger Print Bureau, Jaipur for obtaining his opinion about the authorship of Ex.P. 20 and 21. The Director, Finger Print Bureau in his report dated 28.7.1990 opined that the letters were written by accused Arjunlal. 6. P.W. 11 Dr. The Director, Finger Print Bureau in his report dated 28.7.1990 opined that the letters were written by accused Arjunlal. 6. P.W. 11 Dr. Arjun Kumar Mathur conducted the postmortem of Narendra Soni and as per his report Ex.P. 16, Narendra Soni died on account of asphyxia due to strangulation. After collecting the above evidence, a challan was filed against the accused in the court of learned Munsif & Judicial Magistrate, Chhoti Sadari, who committed the accused-persons to the court of the learned Sessions Judge, Pratapgarh for trial. 7. Charges Under Sections 302 and 201 Indian Penal Code were framed against the accused. The plea of the accused was recorded and they pleaded not guilty to the charges and claimed to be tried. The prosecution examined 15 witnesses. In their statements under Section 313 Criminal Procedure Code., both the accused denied to have committed the murder of Narendra Soni and alleged that they have been falsely implicated in the case. 8. The learned Sessions Judge examined the prosecution evidence consisting of only circumstantial evidence and held that prosecution succeeded in providing the recovery of the watch and chain from the possession of the accused; that it was also proved that the shoe was also recovered at the instance of accused Arjunlal and that the letters received by Sureshchandra were written by Arjunlal. He, therefore, held both the accused guilty of the offence Under sections 302 and 201 Indian Penal Code and sentenced as stated above. 9. We have heard Mr. Manish Shishodia, the learned counsel appearing for the accused-appellants and Mr. Deo Raj Bohra, the learned Public Prosecutor for the State. 10. The learned counsel for the appellants has very vehemently assailed the findings of the learned Sessions Judge. He has submitted that the prosecution case hinges on circumstantial evidence and the law regarding circumstantial evidence is well established that in order to convict an accused on the basis of circumstantial evidence, the circumstances relied on by the prosecution in support of the conviction must be fully established and the chain of evidence must be complete as not to leave any reasonable doubt about the complicity of the accused with the crime. Broadly speaking, only two circumstances have been placed against the accused by the prosecution. Firstly, it is alleged that the deceased Narendra Soni went to Prahalad Panwala to hand over his cycle. Both the accused were with Narendra Soni. Broadly speaking, only two circumstances have been placed against the accused by the prosecution. Firstly, it is alleged that the deceased Narendra Soni went to Prahalad Panwala to hand over his cycle. Both the accused were with Narendra Soni. After handing over the cycle, Narendra went in the company of the accused and thereafter, he was not seen alive. His dead body was spotted in the well by Mithulal on 13.9.1989. Secondly, Suresh Chandra and Gordhanlal received envelope Ex.P. 20 containing the letter Ex.P. 21 and another letter Ex.P.24. Ex.P. 24 was addressed to Gordhanlal Soni. Both these letters were received by post. When the writings on these disputed letters were compared with the specimen writings of Arjunlal, the Director Finger Print Bureau by his letter dated 28.7.1990 found that the author of the disputed writings as well as specimen writings was of Arjunlal. The learned counsel has attacked the above circumstantial evidence on the ground that the evidence of Prahalad Panwala regarding the fact that Narendra Soni was last seen in the company of the accused, it very weak type of evidence and secondly, a criminal court does not convict an accused on such a frail or weak evidence. The possibility cannot be ruled out that after meeting Prahalad Panwala, Narendra Soni might have left the company of the accused and someone else might have committed his murder. 11. Regarding the second circumstance, the learned counsel has pointedly argued that not a single question regarding the opinion of the Director, Finger Print Bureau, Jaipur was put to the accused when they were examined under Section 313 Criminal Procedure Code No question was also asked regarding the specimen signatures obtained by Shri Shripal Sharma during investigation. It is a very well settled law that unless a question regarding some incriminating circumstance or the fact is put to the accused when he is examined under Section 313 Criminal Procedure Code and his explanation is obtained, such a circumstance or the fact cannot be used against the accused. For this reason alone, the whole evidence regarding the alleged authorship of accused Arjunlal of the above two letters cannot be proved against the accused. The learned Sessions Judge lost sight off this important aspect of the matter. In this respect, reference was made to Rajendra v. State of Raj., (1995) Cr.L.R. (Raj.) 465 . 12. For this reason alone, the whole evidence regarding the alleged authorship of accused Arjunlal of the above two letters cannot be proved against the accused. The learned Sessions Judge lost sight off this important aspect of the matter. In this respect, reference was made to Rajendra v. State of Raj., (1995) Cr.L.R. (Raj.) 465 . 12. The second aspect of this argument is that the evidence of a handwriting expert though recognised as relevant under the provisions of the Evidence Act, the quality of his opinion would depend on the soundness of the reasons on which it is founded. It is of a frail character. This aspect has been noticed in many cases by the courts. It is, therefore, a rule of caution that the Court must not give much weight to the evidence of Hand Writing Expert. In the instant case, even the report of the Director, Finger Print Bureau has not been exhibited in evidence. A perusal of the report of the Director, Finger Print Bureau also shows that the Director has not given detailed reasons why he came to this particular opinion. The report lacks reasons for the opinion given by the Director, Finger Print Bureau. 13. The learned counsel has placed reliance on Bhagwan Kaur v. Maharaj Krishan Sharma, (1973) 4 SCC 46 and State of Maharashtra v. Sukhdeo Singh, AIR 1992 SC 2100 . He has, therefore, prayed that the accused be acquitted. 14. The learned Public Prosecutor has supported the judgment of the learned Sessions Judge. It was submitted that Narendra was last seen in the company of accused on 9.9.1989 by Prahalad Panwala and Prahalad Panwala handed over the cycle left by Narendra Soni to his father at 10.00 on that day. It was stated by Prahalad Panwala that Narendra had gone to Indore with the accused. Regarding the opinion of the Director, Finger Print Bureau, the contention of the learned-Public Prosecutor is that the opinion of the Director is admissible in evidence even though, it was not exhibited in evidence. After a comparison of the disputed writings with the specimen writings of Arjunlal, a definite opinion was recorded by the Director that both the writings was of Arjunlal. 15. We have considered the rival submissions made by the learned counsel appearing for the parties at the bar. 16. After a comparison of the disputed writings with the specimen writings of Arjunlal, a definite opinion was recorded by the Director that both the writings was of Arjunlal. 15. We have considered the rival submissions made by the learned counsel appearing for the parties at the bar. 16. It may be stated at the very outset that there is not a single eye witness to the alleged occurrence. The whole prosecution case hinges on circumstantial evidence. The law regarding the appreciation of circumstantial evidence has been stated by the Apex Court in Mahmood v. State of Uttar Pradesh, AIR 1976 SC 69 as under : "It is well settled that in case dependent wholly on circumstantial evidence, the court before recording a conviction must be satisfied that the circumstances from which inference of guilt is to be drawn have been fully established and that determinative tendency pointing towards the guilt of the accused and that the circumstances are in dependable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him." In Pohlya Motya Valvi v. State of Maharashtra, AIR 1979 SC 1949 , it has been held by their Lordships of the Supreme Court as under : "All the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused. Ordinarily when a person is accused were last seen alive in the company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character. Undoubtedly, after the deceased was seen with two accused, was not seen alive by anyone. This very circumstance has not been found to be of some importance. To some extent this circumstance ceases to be an incriminating character because not only the appellant should account for disappearance of the deceased but simultaneously on evidence and original accused would also be acquired to explain the some circumstance. In this background, that the deceased was seen last alive in the company of the accused would cease to be a circumstance of an incriminating character. In this background, that the deceased was seen last alive in the company of the accused would cease to be a circumstance of an incriminating character. Applying the test of circumstantial evidence, this is insufficient to bring home the charge and therefore, the appellant acquitted of the charge." Now, we will have to appreciate the circumstantial evidence obtained in the case in the light of the above guidelines. The first circumstance against the accused is that deceased Narendra Soni was last seen alive in the company of the accused and this fact is proved by Prahalad Panwala. Prahalad Panwala has stated that Narendra Soni came to him with his cycle and told that he was going to Indore. He left the cycle with Prahalad with the instructions to hand over the same to his father. Prahalad then saw Narendra Soni going in the company of accused on 9.9.1989. It may be stated here that the evidence of last seen is by nature very frail and its judicial acceptance must be subjected to cautious scrutiny. 17. The dead body of Narendra Soni was found on 13.9.1989. It is not clear whether Narendra Soni in fact went to Indore or not ? The prosecution has also not proved whether both the accused were seen thereafter in the village or not ? Thus, it cannot be ruled out that after leaving Pra dad, Narendra Soni though proceeded in the company of the accused might have later on left the same and could have gone to Indore alone. It has been stated by the father of Narendra Soni that there are relatives of Narendra Soni at Indore and Narendra Soni often went to Indore. Hence, no inference can be drawn against the accused that they and they alone were responsible for the murder of Narendra Soni. 18. Regarding the second circumstance, it may be stated that while examining the accused under Section 313 Criminal Procedure code, the learned Sessions Judge did not put a single question regarding the report of the Director, Finger Print Bureau. That report has also not been exhibited in evidence. Even without a formal exhibit, the report can of course be considered under Section 293 Criminal Procedure Code. In Leeladhar v. State of Raj., 1986 Raj. That report has also not been exhibited in evidence. Even without a formal exhibit, the report can of course be considered under Section 293 Criminal Procedure Code. In Leeladhar v. State of Raj., 1986 Raj. Criminal Cases 245 , this Court has held that the provisions of Section 293 Criminal Procedure Code apply to the Director, Finger Print Bureau also. 19. A perusal of the report shows that the Director, Finger Print Bureau has only stated his opinion but he has not assigned any reasons for his opinion. Regarding the nature of the evidence of a hand writing expert, we may refer to the observations made by the Apex Court in Bhagwan Kaur v. Maharaj Krishan Sharma, 1973 (4) SCC 46 : "The evidence of an expert unlike that of a finger print expert is generally of a frail character and its fallibilities have been quite often noticed. The courts should therefore, be vary to give too much weight to the evidence of handwriting expert. In Sri Kishore Chandra Singh Deo v. Babn Ganesh Prasad Bhagat and Ors., 1954 SCR 919 , this court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case." In another case i.e. State of Maharashtra v. Sukhdeosingh, AIR 1992 SC 2100 . the Hon'ble Supreme Court observed : "A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be weight the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger-prints, courts have, therefore, been vary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general, application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the court has to decide in each case on its own merits what weight it should attach to the opinion of the expert." It is, therefore, clear that there is no rule of law as to whether a conviction can be based on the unsupported testimony of testimonial opinion of the Director, Finger Print Bureau. However, it is the matter of caution whether the court will act on such opinion or not. In the instant case, we are not inclined to act upon the opinion rendered by the Director, Finger Print Bureau as it lacks reasons for the opinion. Without going through the reasons for coming to a definite opinion, it is difficult to find the report of the Director, Finger Print Bureau acceptable in evidence against the accused. 20. Secondly, there is no corroboration from any other source. Thirdly, no question regarding the opinion of the Director, Finger Print Bureau was asked to the accused when they were examined Under Section 313 Criminal Procedure code. It is a settled law that where an incriminating fact has not been put to the accused Under Section 313 Criminal Procedure Code, no inference can be drawn against the accused on the basis of that fact. The purpose of examination under s. 313 Criminal Procedure Code. is to enable to the accused to explain any circumstance appearing in evidence against him. It is a very important duty cast on the court and the court must make every endeavour to sort out such circumstances and to put the same to the accused when examination Under Section 313 Criminal Procedure Code is held. If the circumstances available against the accused are put to him, the accused will get an opportunity to offer any explanation if any. It is a safeguard provided to the accused and it must be strictly adhered to. Section 313 Criminal Procedure Code. is based on the principle that no person should be condemned unheard and the accused should be heard not merely on what is prima facie proved against him but also with regard to the opinion of Director, Finger Print Bureau. Since the accused were not examined with reference to the report of the Director, Finger Print Bureau, the same cannot be used against the accused. 21. Since the accused were not examined with reference to the report of the Director, Finger Print Bureau, the same cannot be used against the accused. 21. Regarding the alleged recovery of shoe and chain, it may be stated that the above articles have not been exhibited and produced in court. The relevant witness for this purpose was P.W. 5 Suresh Chandra but he has also not identified the above articles in court. Hence, no reliance can be placed on suck a recovery. 22. For the reasons stated above, the offence Under Sections 302 and 201 Indian Penal Code have not been proved against the accused. 23. We, therefore, accept this appeal and set aside the judgment of the learned Addl. Sessions Judge, Nimbaheda dated 29.10.1992 convicting and sentencing the accused-appellant for the offences Under Sections 302 and 201 Indian Penal code and acquit the accused-appellants Rajendra Kumar and Arjun Lal for the offences Under Sections 302 and 201 Indian Penal Code. The accused-appellants are in jail, they be released forthwith, if not required in any other case. 24. Let the record of this case be sent to the learned trial courtAppeal Allowed. *******