JUDGMENT 1. - This appeal is directed against the judgment dated 19-12-95 passed by the Additional District and Sessions Judge, Rajsamand, by which the learned Additional Sessions Judge convicted the accused-appellant for the offence under Section 302 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 1000/- and in default of payment of fine further to undergo six months' rigorous imprisonment. 2. Appellant Khuman was tried by the learned Additional Sessions Judge, Rajsamand, for committing the murder of his wife Phephli alias Kusumbi in the out skirts of village Sagoria near Bila Ka Khadra. The case of the prosecution is that on 8-4-84, deceased Phephli alias Kusumbi, along with her husband Khuman (the appellant) went to the jungle of Bagora for taking fodder. They did not return in the evening in the house and, therefore, on 11-4-84 Nanda-the father of accused-appellant Khuman - went in search of them and when he reached near Bila Ka Khadra, he found the dead body of the wife of Khuman lying there. Her odna was smeared with blood and both of her legs were found amputed from near the ankle. The Kadias, which she used to wear in her legs, were also not found. He remained there in the night and went to Police Station, Charbhuja (district Udaipur) on the next day, i.e., on 12-4-84, and lodged the F.I.R. at 9.00 a.m. PW 11 Bhagwati Lal, A.S.I. Police, who was the Incharge of Police Station, Charbhuja, went to the place of the occurrence, prepared the site plan Ex. P/1 and the Panchnamaa Lash Ex. P/2 and thereafter PW 15 Subash Chandra, S.H.( and took the investigation from Bhagwati Lal, recorded the statements of the witness, seized and sealed the blood-stand and sample soil, the clothes of the deceased the remaining memos, arrested the accused-appellant and after investigation, presented the challan. 3. The prosecution, in support of its case, examined fifteen witnesses. PW 1 Jag Singh, PW 2 Lala, PW 3 Chokha, PW 4 Soorji and PW 5 Moda are the Motbir witnesses to the various recoveries and the preparation of the site plan, Panchnama etc. PW 6 Chuna, PW 7 Mohan, PW 12 Bhagwat Singh and PW 14 Bhaga are the witnesses to the extrajudicial confession made by the accused-appellant before them. PW 6 Chuna, PW 7 Mohan, PW 12 Bhagwat Singh and PW 14 Bhaga are the witnesses to the extrajudicial confession made by the accused-appellant before them. PW 6 Chuna, PW 7 Mohan and PW 12 Bhagwat Singh have not supported the prosecution case and they were declared hostile. PW 8 Khuman Singh is the resident of village Porcha where the accused stayed for a night. PW 9 Nathu Singh is the resident of village Kakarwal, with whom the accused-appellant stayed for a night. PW 10 Dr. Vijay Joshi was the Medical Officer posted at Government Dispensary, Charbhuja, who conducted the post-mortem on the corpse of Phephli alias Kusumbi on 12-4-84 and found three injuries on her deadbody. PW 13 Dhan Singh was the Police Constable posted at Police Station, Charbhuja, who, on 19- 4-84, took the sealed packets first to the Office of the Superintendent of Police, Udaipur and after obtaining the forwarding letter from there, he went to the State Forensic Science Laboratory, Jaipur and deposited the sealed packets there for F.S.L. examination. The accused-appellant did not produce any witness in his defence. The learned Additional Sessions Judge, after trial, convicted and sentenced the accused-appellant as stated above. 4. There is no eye-witness to the occurrence and the prosecution case mainly hinges on the circumstantial evidence. The learned Additional Sessions Judge, while convicting and sentencing the accused-appellant, placed reliance over the following circumstances:- (1) the accused-appellant, along with his wife deceased Phephli alias Kusumbi, went to the jungle for taking fodder and thereafter she was not seen alive; (2) the murder of Smt. Kusumbi alias Phephli took place; (3) the accused remained absconded for eight to nine days after the murder of the deceased; (4) the accused made extrajudicial confession before PW 14 Bhaga that he committed the murder of his wife by Kulhari; and (5) the Kulhari was recovered on the information and at the instance of the accused-appellant and it was found positive for human blood and according to PW 10 Dr. Vijay Joshi, the injuries found on the deadbody of Kusumbi alias Phephli could be caused by the Kulhari which was recovered on the information and at the instance of the accused-appellant. 5. Vijay Joshi, the injuries found on the deadbody of Kusumbi alias Phephli could be caused by the Kulhari which was recovered on the information and at the instance of the accused-appellant. 5. The question which requires consideration, is: whether these circumstances, which have been relied-upon by the learned trial Court, and sufficient to draw an inference regarding the guilt of the accused-appellant and whether the chain of the circumstances is so complete that it leads to no other hypothesis except the guilt of the accused-appellant and whether these circumstances stand proved from the evidence available on record ? We would like to consider each of these circumstances, which were relied upon by the learned trial court, separately. 6. The first circumstance which has been relied upon by the learned Additional Sessions Judge in convicting and sentencing the accused-appellant, is that the accused-appellant, along with his wife Smt. Phephli alias Kusumbi (deceased) went to the jungle for collecting the fodder. The only witness to prove this fact was the informant Nanda - the father of the deceased, who died during the investigation and, therefore, he could not be produced during the trial. No witness produced by the prosecution has stated in the Court that the deceased and the appellant went together to the jungle to bring fodder and thereafter the deceased was not seen alive by any of the persons. In the absence of any evidence to this effect, this circumstance cannot be said to be proved against the appellant. Even this circumstance was not put to the accused in his statement under Section 313 Criminal Procedure Code. When a circumstance adverse to the accused has not been put to him in his statement under Section 313 Criminal Procedure Code. then that circumstance cannot be read against the accused because if that would have been put to him, he would be able to explain that circumstance. We are, therefore, of the view that this circumstance does not stand proved against the appellant because neither any witness has stated in the Court that the accused and the deceased were together to the jungle for taking the fodder nor this circumstance was put to the accused in his statement under Section 313 Cr.P.C. The learned trial Court was, therefore, not justified in placing reliance over this circumstance. 7. 7. The next circumstance relied upon by the learned trial Court is that Smt. Kusumbi alias Phephli was found murdered. There is no dispute so far as the commission of the murder of Smt. Kusumbi alias Phephli is concerned. But the accused-appellant cannot be convicted unless that circumstance connect him with the crime. Merely because the wife of the accused-appellant has been murdered, he cannot be held guilty for the same unless he is connected with the crime. This circumstance alone, in our view, does not connect the appellant with the crime. 8. The third circumstance relied upon by the learned trial Court is that the accused-appellant was not found in his house for eight to nine days after the murder of his wife and remained absconded. To prove this circumstance, the prosecution has produced PW 8 Khuman Singh and PW 9 Nathu Singh. PW 8 Khuman Singh is the resident of village Porcha. He has stated that about a year before, he was cultivating his field. At about 8.00 p.m. one person came there and on enquiry he informed that he is the resident of village Nathela and had gone to Rajnagar and, now, since it is night time, he wants to sleep there. He permitted him to stay there and served him the meals. In the morning that man went away. PW 9 Nathu Singh is the resident of village Kakarwa, who has stated that last year, in the month of Chetra, he was returning from his field and near the school one person met him and sit on the Chabutari of his house. On enquiry that person informed him that he is a resident of village Sagariya. He supplied a Gudri to him and that person slept on the Chabutari of his house in the night and went away in the morning and that person is the accused-appellant. The accused-appellant himself has admitted that he slept in villages Porcha and Kakarwa outside the houses of PW 8 Khuman Singh and PW 9 Nathu Singh. But whether these two days, when the accused-appellant slept in the aforesaid two villages, were the days after the commission of the murder of Smt. Kusumbi alias Phephli, that has not been proved from the evidence on record. 9. Even this circumstance has not been put to the accused-appellant in his statement recorded under Section 313 Criminal Procedure Code. But whether these two days, when the accused-appellant slept in the aforesaid two villages, were the days after the commission of the murder of Smt. Kusumbi alias Phephli, that has not been proved from the evidence on record. 9. Even this circumstance has not been put to the accused-appellant in his statement recorded under Section 313 Criminal Procedure Code. If this circumstance would have been put to the accused, he could have explained this circumstance, also. Merely because the accused slept on two days outside the houses of the aforesaid two witnesses, is not sufficient to prove that these two days were the days after the commission of the murder of the deceased and the appellant was absconding. Apart from these two witnesses, there is no evidence on record which could show that the accused-appellant remained absconding after the murder of his wife. 10. Even the investigating officer PW 15 Subash Chandra, S.H.O., has not stated before the Court that the accused-appellant was not found in the village after the murder of his wife. He even did not try to make a search for the accused-appellant. If the appellant was not found in the village then it was natural for the investigating officer to have made search for him. PW 11 Bhagwati Lal, A.S.I., who registered the F.I.R. and went at the place of the occurrence, has, also, not stated that the accused-appellant was not found in the village when he went there. In the absence of any positive evidence that the accused-appellant was not found in his village, it cannot be believed that he remained absconding after the incident. 11. In this view of the matter, we are of the opinion that this circumstance, also, does not stand established against the accused-appellant from the evidence produced by the prosecution and the learned trial Court was not justified in placing reliance over this circumstance in convicting and sentencing the accused-appellant. 12. The next circumstance relied upon by the learned trial Court is the extrajudicial confession allegedly made by the accused-appellant before PW 14 Bhaga. As per the initial case of the prosecution, the extrajudicial confession was made by the accused before PW 1 Jag Singh, PW2 Lalu, PW 3 Chokha, PW 5 Moda, PW 6 Chuna, PW 7 Mohan and PW 14 Bhaga. As per the initial case of the prosecution, the extrajudicial confession was made by the accused before PW 1 Jag Singh, PW2 Lalu, PW 3 Chokha, PW 5 Moda, PW 6 Chuna, PW 7 Mohan and PW 14 Bhaga. No question was put to PW 1 Jag Singh, PW 2 Lalu, PW 3 Chokha and PW 5 Moda in their examination-in-chief by the prosecution and it is only in the further cross-examination conducted by the Court that the defence counsel put the question to these witnesses. These witnesses denied the fact of making any extrajudicial confession by the accused before them. During the trial, the prosecution relied upon only the extrajudicial confession made by the accused before PW 6 Chuna, PW 7 Mohan and PW 14 Bhaga. PW 6 Chuna and PW 7 Mohan have not supported the prosecution case on this point and they have been declared hostile. Though it is true that merely because the witnesses have been declared hostile, their evidence cannot be wiped-up from the record and that evidence of such witnesses can be relied upon which could inspire confidence. After going through the statement of these witnesses we are of the opinion that they have completely denied of making of their earlier statements either before the police or before the trial Court. The learned trial Court relied upon the part of the statement of PW 6 Chuna but did not place reliance on PW 7. After going through the statement of PW 6 Chuna, we are of the opinion that no reliance can be placed on his statement as he has not supported the prosecution case in any way. 13. The only evidence regarding the extrajudicial confession, which remains, is that of PW 14 Bhaga. PW 14 Bhaga has stated that about 1 year before, he went to Khuman's house. At that time Mohan and Chuna were also present there. That was a day after five days of the murder of Smt. Kusumbi alias Phephli. Thus, this day comes to 13-4-84. On enquiry by him, Chuna and Mohan, the accused informed him that he himself killed his wife by inflicting three injuries with Kulhari to her and after committing her murder he went away towards Kankarwa side. In the cross-examination he has admitted that his statement was recorded by the police after ten to fifteen days of the occurrence. On enquiry by him, Chuna and Mohan, the accused informed him that he himself killed his wife by inflicting three injuries with Kulhari to her and after committing her murder he went away towards Kankarwa side. In the cross-examination he has admitted that his statement was recorded by the police after ten to fifteen days of the occurrence. He has also, admitted that his statement was also, recorded Under section 164 Criminal Procedure Code in the Kelwara Court, he has also, admitted that when the police came at the place of the incident, his statement was not recorded. He has, however, admitted that on the day when the extrajudicial confession was made by the accused-appellant, on his report, the police came at the spot. He has, also stated that before the police, also, the accused-appellant made the extrajudicial confession regarding the commission of the murder of his wife by him. He has, also, admitted in the cross-examination that he is neither related to the accused nor has he any friendship with the accused. 14. This witness is neither related to the accused nor has any intimacy with the appellant nor he was in such a position to help the accused in any way. He was not in a position to save or protect the accused in any way. According to the evidence of this 36 witness, the extrajudicial confession was made on the fifth day of the incident, i.e., on 13.4.1984, but he did not disclose this fact to any other person or even to the police though the police reached at the place of the incident. 15. According to the prosecution, the extrajudicial confession was made by the accused before PW 6 Chuna and PW 7 Mohari under a tree while according to PW 14 Bhaga the extrajudicial confession was made by the accused in his house when these two witnesses were, also, present there. These two witnesses have not supported this statement of PW 14 Bhaga. When the witness was not related to the accused-appellant or had no intimacy with him nor he was in a position to save or protect the accused then there was no question of making any extrajudicial confession by the accused before this witness. These two witnesses have not supported this statement of PW 14 Bhaga. When the witness was not related to the accused-appellant or had no intimacy with him nor he was in a position to save or protect the accused then there was no question of making any extrajudicial confession by the accused before this witness. We are, therefore, of the opinion that the making of extrajudicial confession by the accused before this witness does not inspire confidence and this circumstance, according to us, also, does not stand proved against the appellant and the learned trial Court was not justified in placing reliance over this circumstance. 16. The last circumstance relied upon by the learned trial Court is the recoveries of the Kulhari and Chaddar which were found stained with human blood. The recoveries of the Kulhari and the Chaddar were made from the open place accessible to all and sundry. The witnesses to the recoveries have, also, stated that the police brought the Kulhari and it was not that the accused himself took-out the Kulhari from the fodder. Even otherwise these recoveries of the Kulhari and Chaddar do not connect the accused-appellant with the crime because the connecting evidence is missing in the present case. The Malkhana Incharge, in whose custody these incriminating articles remained, has not been produced by the prosecution and there is no evidence on the point that the incriminating articles, after their recoveries, remained in the same sealed condition till they were deposited for FSL examination in the State Forensic Science Laboratory, Jaipur. Moreover, the FSL report shows that the Pachera and the Kulhari, though were found stained with human blood, but their origin could not be determined on account of disintegration. It, therefore, cannot be conclusively proved that the Kulhari was stained with the human blood of deceased Phepli alias Kusumbi. Even otherwise, this single circumstance cannot connect the accused-appellant with the crime. 17. So far as the medical evidence is concerned, that, also, does not support the prosecution case and the evidence of PW 14 Bhaga. According to PW 14 Bhaga, before whom the alleged extrajudicial confession was made by the accused-appellant, the accused inflicted three injuries by the Kulhari to Smt. Kusumbi. Kulhari is a sharp-edged weapon but none of the three injuries which were found on the corpse of deceased Kusumbi, which resulted in her death, were caused by the sharp-edged weapon. According to PW 14 Bhaga, before whom the alleged extrajudicial confession was made by the accused-appellant, the accused inflicted three injuries by the Kulhari to Smt. Kusumbi. Kulhari is a sharp-edged weapon but none of the three injuries which were found on the corpse of deceased Kusumbi, which resulted in her death, were caused by the sharp-edged weapon. All these injuries were lacerated wounds which could be caused by a blunt object. Even otherwise, the diamensions of these injuries show that they were caused by different weapons because injuries Nos. 1 to 3 were of the size of: 4" x 3" x 3", 2" x 2" x 2" and 2" x 1" x 1" respectively. In this view of the matter, we are of the view that this circumstance, also, does not stand proved against the accused-appellant. The learned trial Court was, therefore, not justified in placing reliance over this circumstance, also. 18. The circumstances relied upon by the prosecution and believed by the learned trial Court do not stand established from the evidence produced by the prosecution and we are, therefore, of the opinion that the prosecution has failed to prove the case against the accused-appellant beyond reasonable manner of doubt. The judgment dated 19.12.1985, passed by the learned Additional Sessions Judge, Rajsamand, convicting and, sentencing the accused-appellant, therefore, deserves to be quashed and set aside. 19. In the result, the appeal, filed by accused-appellant Khuman, is allowed. The judgment dated 19.12.1985, passed by the learned Additional Sessions Judge, Rajsamand, convicting and sentencing the accused-appellant for the offence Under section 302 Indian Penal code, is set aside and the accused-appellant is acquitted of all the charges levelled against him. He is in jail. He shall be released forthwith if not required in any other case.Appeal Allowed. *******