JUDGMENT 1. - By this judgment dated 28th October, 1989 the learned Sessions Judge, Jalore convicted the accused-appellant - Moti Singh for offences Under Sections 302 and 436, Indian Penal Code and sentenced him to imprisonment for life and four years respectively and also to pay a fine of Rs. 100/- under each count, in default whereof to further undergo simple imprisonment for one month. Both the sentences were ordered to run concurrently.Initially the case was also registered against Mst. Hukam Kanwar - co-accused but she died even before the trial commenced, hence, proceedings against her were dropped. 2. The prosecution case briefly stated is that in the wee hours of 22.4.1986 a fire broke out in the house of Kan Singh in village Bagra. The deceased Mangal Singh was sleeping in the room and his parents - Mst. Mangu and Kan Singh were sleeping in the courtyard of the house. The fire attracted the attention of neighbours and villagers who immediately rushed to the house of Kan Singh in order to extinguish the fire. The accused-appellant was also spotted there and it is alleged that he along with other persons of the village made efforts to put out the fire. Mangal Singh (deceased) was alleged to have burned himself. 3. After the occurrence Bhav Singh (PW 7), Kika Ram (PW 5), Mohan (PW 11) and the accused-Moti Singh went to Bhima Ram (PW 2) Sarpanch of the village to report the incident. On being apprised of the incident, the Sarpanch advised them to go to Police and he also accompanied them to the Police Station. The report Ex. D/8, signed by Achal Singh, Moti Singh and Bhav Singh was lodged at the Police Station, Bagra. At that time, the SHO was not present and the Head Constable went to the site. 4. The dead-body of Mangal Singh was also inspected and memo Ex. D/9 was prepared. The site-inspection memo is Ex. D/13. 5. Initially it was assumed that the fire broke out accidentally and no suspicion was raised by any person but on further enquiry suspicion arose that Mangal Singh was murdered by the accused-Moti Singh and in order to camouflage the crime the accused intentionally set fire to the house. Hence, a case for murder and arson was registered and investigation commenced. 6. Hence, a case for murder and arson was registered and investigation commenced. 6. During the investigation, it was found that the deceased was `sadu' (husband of wife's sister) of accused Moti Singh and that Moti Singh was having illicit relations with Mst. Hukam Kanwar-wife of Mangal Singh. Mangal Singh has resented this and it resulted in bitterness between the two. Mangal Singh and Moti Singh often bitterly quarrelled over this matter. Even on the day of the occurrence, there was a quarrel between Mangal Singh and Moti Singh over Mst. Hukam Kanwar. During the night of occurrence, Mangal Singh went to attend some 'kirtan' in the village and came to the house very late in the night. It is also alleged by the prosecution that the accused was seen making a surreptious entry into the house of Kan Singh very late in the night. 7. The prosecution further alleged that when the accused Moti Singh also reached the house of Kan Singh immediately after the fire was noticed, he engaged himself in the ostensible efforts to put out the fire. He climbed the roof of the room where Mangal Singh was sleeping. He removed the `kavelus' but let them intentionally drop below which fell on the person of Mangal Singh causing him serious injuries. It was also suspected that Moti Singh and Mst. Hukam Kanwar sprinkled kerosin oil in the room and lit the fire. Mangal Singh had not died as a result of burns. It was alleged that Moti Singh accomplished the crime by dropping the `kavelus' on Mangal Singh from the roof. 8. The prosecution also alleged that Mst. Hukam Kanwar made an extrajudicial confession that she and Moti Singh committed the murder of Mangal Singh with the help of a `kulhari' (axe). 9. Dr. K.R. Mathur (PW 8) performed the post-mortem of dead-body of Mangal Singh on 22.4.1986 at the request of Police. The Medical Officer found various ante-mortem and post-mortem injuries on the dead body of Mangal Singh. In the opinion of the Medical Officer Mangal Singh died as a result of shock due to intensive ante-mortem burns. The report is Ex. P/5 on record. 10. The accused Moti Singh was arrested on 21.01.1988 by arrest-memo Ex. P/9. It is alleged that the accused while in Police custody made a disclosure statement leading to the recovery of a watch (Ex. 1) and an axe. The report is Ex. P/5 on record. 10. The accused Moti Singh was arrested on 21.01.1988 by arrest-memo Ex. P/9. It is alleged that the accused while in Police custody made a disclosure statement leading to the recovery of a watch (Ex. 1) and an axe. It was alieged that Mangal Singh was wearing the watch Ex. 1 before his death. A `dhoti' was also recovered from the possession of the accused in pursuance of the information furnished by him. As per report of the Forensic Science Laboratory (Ex. P/4) both the articles (axe and dhoti) were found negative for human blood test. The watch was identified by Radhey Shyam (PW 3) during the identification proceedings conducted by Shri Kishan Joshi (PW 15). 11. After collecting the above evidence, a charge-sheet was filed against the accused in the Court of Munsif and Judicial Magistrate, Jalore on 14.4.1988 who committed the case to the Court of learned Sessions Judge, Jalore for trial. 12. Learned Sessions Judge framed charges Under Sections 302, 436 and 201, Indian Penal Code against the accused. His plea was recorded. He pleaded not guilty. The prosecution examined 22 witnesses. The accused in his statements Under Section 342, Criminal Procedure Code denied to have committed the murder of Mangal Singh and alleged that he had been falsely implicated. The learned Sessions Judge analysed the prosecution evidence and found as many as seven circumstances against the accused-appellant. He, therefore, found the accused guilty of the offences and sentenced him as stated above. The accused was, however, acquitted of the offence Under Section 201, Indian Penal Code. 13. We have heard the learned counsel for the accused as well as learned Public Prosecutor. 14. Learned counsel for the accused-appellant referred to the prosecution evidence and submitted that the whole case of the prosecution rests upon the circumstantial evidence alone. He further submitted that it is a well established canon of criminal jurisprudence that in order to convict an accused on circumstantial evidence, the circumstances relied upon 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 in the crime. He contended that initially even the parents of the deceased and the people of the locality did not see anything suspicious and that is the reason that the report Ex. He contended that initially even the parents of the deceased and the people of the locality did not see anything suspicious and that is the reason that the report Ex. D/8 was lodged at the Police Station. According to this report, the fire broke out accidentally and Mangal Singh died as a result of bum injuries. Later on, the Police also inspected the site and examined the dead-body. The material witness were also interrogated and still then nothing suspicious was noticed. However, later when the case was registered as a murder case, the circumstances started crowding in. For this reason he branded the above circumstances as false, fabricated and fragile. 15. Learned Public Prosecutor supported the judgment of the learned Sessions Judge. He submitted that the trial Court while dealing with each circumstance, analyzed the relevant evidence and recorded a rational finding. 16. We have considered the rival contentions and made a re-assessment of the prosecution witnesses. It may be stated that there is not a single eye-witness in the case. The whole prosecution case hinges on circumstantial evidence. The following possible circumstances surface against the accused-appellant: 1) Mst. Hukam Kanwar wife of deceased Mangal Singh and sister-in-law of accused-Moti Singh was having illicit relations with the accused Moti Singh. Her infidelity was so open and revolting that Mangal Singh's effort to curb her ill-activities yielded no result and relations between the two (Moti Singh and Mangal Singh) became bitter. Even on the day of the occurrence, Moti Singh and Mangal Singh had a quarrel over the matter of Mst. Hukam Kanwar. 2) The accused, in order to mislead the parents of Mangal Singh and people of the village went to the house of deceased and made all ostensible efforts to put out the fire but, in fact, he was removing the `kavelus' of the roof and let them intentionally fall on the person of Mangal Singh who was lying just below. Many of the ante-mortem injuries were caused to the deceased by this act of the accused-appellant. 3) The accused was seen making a surreptious entry in the night of occurrence sometime before the fire broke out in the house of the deceased. 4) An axe and a wrist-watch were recovered at the instance of the accused from his possession in pursuance of his information furnished Under section 27 of the Evidence Act. 3) The accused was seen making a surreptious entry in the night of occurrence sometime before the fire broke out in the house of the deceased. 4) An axe and a wrist-watch were recovered at the instance of the accused from his possession in pursuance of his information furnished Under section 27 of the Evidence Act. 5) The hands and clothes of the accused were seen stained with blood when he went to the Sarpanch Bhima Ram along with others. 6) Mst. Hukam Kanwar made an extrajudicial confession of having committed the murder of her husband with Moti Singh; and 7) It was unnatural that the deceased would have slept inside a room on the day of occurrence as it was a hot summer night. Now we may assess the evidence of the prosecution with reference to each circumstance. 17. Re: Circumstance (1) (supra): The relevant evidence regarding this point is the statements made by Mst. Mangu (PW 4), Achal Singh (PW 6), Mohan (PW 11), Shaitan Singh (PW 18) and Mohan Lal (PW 21). Mst. Mangu (PW 4) is the mother of the deceased. She has stated that Moti Singh used to visit Mst. Hukam Kanwar in her house. Mangal Singh has objected and resented this. Mst. Hukam Kanwar also used to visit Moti Singh. On the day of occurrence there was a quarrel between Mangal Singh and Moti Singh over the matter of Mst. Hukam Kanwar. Mst. Hukam Kanwar remained at the house of the accused for the whole day. She returned in the night and slept in her house. In her cross-examination she admitted that she did not state to the Police that Moti Singh was having illicit relations with Mst. Hukam Kanwar because her balance of mind was not proper. She also admitted that she did not state that Mangal Singh asked her not to let Moti Singh come to his house. It is, thus, clear that there is a material omission in her Police Statement with regard to this fact. Though she alleged regarding the illicit relations between Moti Singh and Mst. Hukam Kanwar in her statements before the Court but her Police statement was conspicuous by its absence. Similarly Achal Singh (PW 6) made an allegation in his Court statement regarding the illicit relations between Mst. Hukam Kanwar and Moti Singh but in his Police statement (Ex. D/1) this fact was not mentioned. Hukam Kanwar in her statements before the Court but her Police statement was conspicuous by its absence. Similarly Achal Singh (PW 6) made an allegation in his Court statement regarding the illicit relations between Mst. Hukam Kanwar and Moti Singh but in his Police statement (Ex. D/1) this fact was not mentioned. He could not explain reasons for this material omission. He was also one of the signatories of the report Ex. D/8 in which no allegation of any foul play was made. In the police statement he also stated that he did not suspect anybody. Mohan (PW 11) has stated about this fact with reference to extrajudicial confession made by Mst. Hukam Kanwar but it is important to note that in his Police statement he has not stated that while making the extrajudicial confession Mst. Hukam Kanwar told that she and Moti Singh committed murder of Mangal Singh because she was having illicit relations with Moti Singh. Shaitan Singh (PW 18) has stated that Moti Singh and Mangal Singh had quarrelled at the Railway station. He intercepted and separated the two. It should, however, be noted that his statement was not recorded by the Police and he admitted that he did not state the above fact to anybody anytime until before the Court. Mohan Lal (PW 21) has stated about the extra-marital relations of Mst. Hukam Kanwar with Moti Singh but in his Police statement (Ex. D/15) he did not make any such disclosure. 18. From the above, it is clear that the above witnesses are not trust worthy inasmuch as their testimony suffers from the fact that in their Police Statement under Section 161, Criminal Procedure Code they did not make similar statement. On account of such material omission, it is risky to rely upon such witnesses. Hence, point No. 1 has not been proved by the prosecution. 19. Re : Point No. (2) (supra): It is admitted that along with the people of the village Moti Singh also participated in putting out the fire. It was not the accused alone who climbed the roof, there were other people of the village also. Hence, point No. 1 has not been proved by the prosecution. 19. Re : Point No. (2) (supra): It is admitted that along with the people of the village Moti Singh also participated in putting out the fire. It was not the accused alone who climbed the roof, there were other people of the village also. It is important to note that if the accused was seen dropping the `kavelus' on the person of Mangal Singh who was lying just below in the room what prevented the parents of the deceased and the people of the village from suspecting the action of the accused. In fact, the first report of the occurrence Ex. D/8 was lodged by Achal Singh, Kika Ram and Bhav Singh. In the report no suspicion was expressed against any person including the accused. In this connection, a further allegation has been made that when the accused was busy making efforts to extinguish the fire, the accused falsely informed that Mangal Singh had gone to fetch the `dhors' (animal folk) whereas Mangal Singh was sleeping in the room. Mst. Mangu (PW 4) has made this statement. Later on Bhav Singh spotted Mangal Singh in the room and it was found that the information made by the accused was false. In this context, we may take note of the statement of Mohan Lal (PW 21) who has stated that since there was dark, Moti Singh took a torch from Mst. Hukam Kanwar and entered the `oda' (interior room of house) and in the light of the torch saw Moti Singh there. The accused, therefore, told all people that Mangal Singh was inside the room and that he was burnt. From the statement of Mohan Lal, it is clear that if the accused had made a false statement to Mst. Mangu (PW 4) that Mangal Singh had gone to fetch the `dhors' he would not have made any efforts to find out Mangal Singh in the room with the help of a torch. From the conduct of witnesses it is more than clear that the accused participated in fire extinguishing operations along with other people of the village. Nothing suspicious was discovered at that time. This is further proved by the report Ex. D/8, which was lodged at the Police Station immediately after the above occurrence. From the conduct of witnesses it is more than clear that the accused participated in fire extinguishing operations along with other people of the village. Nothing suspicious was discovered at that time. This is further proved by the report Ex. D/8, which was lodged at the Police Station immediately after the above occurrence. We also do not believe the evidence that the accused by removing the `kavelus' from the roof, in fact, allowed them to fall on the person of Mangal Singh intentionally because along with the accused there were certain other persons of the village who would have definitely seen this alleged act of the accused. It is just possible that in the process of removing the 'kavelus' some might have slipped and fell down below in the room. It may not be an intentional act on the part of the accused. We, therefore, hold that point No. 2 has also not been proved against the accused. 20. Re: Point No. (3) (supra): The only witness in relation to this point is of PW 10-Jabar Singh. He stated that during the night of occurrence he went to his house at about 1.00 AM and at that time he saw the accused surreptiously entering the house of Kan Singh. In his cross-examination, he has admitted that he did not depose about this fact to anybody for one year. His explanation is that he had gone outside the village. His statement appears to be false and concocted. A witness who omitted to state an important event to anybody for one year cannot be believed when he depose about this fact for the first time in the Court. It is also not clear how the Police could produce this witness for proving this particular fact when admittedly he did not even tell the Police about the above fact. Hence, this point is also not proved against the accused. 21. Re: Point No. (4) (supra): Regarding the axe recovered by the Police, it may be stated that the axe recovered was not of a particular pattern. It was of common pattern, normally found in a village. It was also not found stained with blood, hence, on the basis of the alleged recovery of an axe on incriminating evidence can be established against the accused. In relation to the wrist-watch, the only evidence is the statement of Radhey Shyam (PW 3). It was of common pattern, normally found in a village. It was also not found stained with blood, hence, on the basis of the alleged recovery of an axe on incriminating evidence can be established against the accused. In relation to the wrist-watch, the only evidence is the statement of Radhey Shyam (PW 3). According to this witness, Mangal Singh was employed by him and was in his services as Driver even at the time of occurrence. He stated that he gave a watch to the deceased which was required for his job. According to him, Mangal Singh himself purchased the watch for a sum of Rs. 425/- though he gave him Rs. 500/- for the purpose. There is a contradiction in his statement. In his statement Under Section 161, Criminal Procedure Code, the witness has stated that he purchased the watch for Rs. 425/- and then gave it to Mangal Singh. Moreover, there is no evidence to prove that Mangal Singh was having the watch Ex. 1 on his hand immediately before his death. Radhey Shyam has also admitted that the above watch was of HMT Company and had no distinguishing marks. The watches of the above pattern are easily available in the market. Hence, the evidence regarding alleged recovery of the watch from the possession of the accused is very weak type of evidence and on that basis alone, commission of an offence Under section 302, Indian Penal Code cannot be proved. Accordingly, the point No. 4 is also held against the prosecution. 22. Re: Point No. (5) (supra): Regarding this point, the statement of Bhima Ram-the Sarpanch of the village is relevant. Bhima Ram (PW 2) has stated that when the accused along with other persons of the village came to him immediately after the occurrence, the accused asked for a `lota' of water. The accused told that he had sustained a head injury and he wanted to wash his mouth which had became stained with blood. The witness has clearly stated that there was no blood on the hands of the accused. It is, thus, clear that there was no blood on the clothes and hands of the accused. It was just possible that during the fire extinguishing operation he might have sustained some head injury and the blood coming of that injury might have stained his face also. It is, thus, clear that there was no blood on the clothes and hands of the accused. It was just possible that during the fire extinguishing operation he might have sustained some head injury and the blood coming of that injury might have stained his face also. The fact that the accused openly asked for water to clean his mouth shows that act of the accused was bonafide. We, therefore, also find this circumstance against the prosecution. 23. Re: Point No. (6) (supra): Regarding evidence about extrajudicial confession, it may be stated that this sort of evidence is very unreliable. Mst. Mangu (PW 4) and Achal Singh (PW 6) deposed about this extrajudicial confession by Mst. Hukam Kanwar but they admitted that they did not depose about this fact in their statement recorded Under Section 161, Criminal Procedure Code. On account of this material omission, there testimony is rendered doubtful. This point is, therefore, decided also against the prosecution. 24. Re: Point No. (7) (supra): It is clear that the occurrence took place on 26.4.1986 and it was a hot summer night. It was, therefore, very unnatural that Mangal Singh would have opted to sleep in a closed room. The other possibility can be that Mangal Singh was murdered at some other place and he was thereafter dropped in that room. It is, however, a hypothetical possibility and it was for the prosecution to have offered explanation for the same. The prosecution has not thrown any light on this aspect of the matter. This point, therefore, also goes against the prosecution. 25. For the above reasons, in our opinion, the prosecution has failed to prove the charges Under Sections 302 & 436, Indian Penal Code against the accused-appellant. We, therefore, accept this appeal, set aside the judgment of conviction and order of sentence passed by learned Sessions Judge, Jalore on 28.10.1989 and hereby acquit the appellant-Moti Singh of the charges under Sections 302 & 436, Indian Penal Code. The appellant-Moti Singh is directed to be set at liberty immediately, if he is not required in any other case. Appeal Allowed. *******