Honble MISRA, J.–This matter has been referred to this Court under Section 366 of the Code of Criminal Procedure, 1973 for confirmation of death sentence awarded to the accused-Nanag Ram by the Additional Sessions Judge, Sambhar Lake District Jaipur vide the judgment and order dated 17th August, 1993 as he was held guilty of the charge under Section 302, IPC. The convcit-Nanag Ram has also filed Criminal Appeal No. 347/1993 against the aforesaid judgment and order awarding him death penalty and hence, both the matters have been heard together. This judgment and order, therefore, shall dispose of both the matters. (2). The appellant had been charged and tried for the offence under Section 302, 304-B and 498-A of the Indian Penal Code as a case had been registered against him under the aforesaid sections on the basis of a type written report (Ex.P.10) which was lodged on 24.7.1989 at 7.30 in the morning by the informant Suraj (PW 10) at Police Station, Phagi which was treated as the First Information Report (Ex. P.11). It was mentioned therein that on 24.7.1989, Badri (PW 7) woke up the informant PW 10 at 5.30 a.m. and informed him that his sister alongwith his nieces (sisters daughters) were burnt and killed by Nanag Ram, who is the husband of the deceased and father of the young girls. On this information, Badri reached at the place of occurrrence and found the dead bodies of his sister and their daughters, which were lying burnt. On the registration of the FIR (Ex.P-11) Harchand Jhakhar started investigation and prepared the site-plan, the inquest report Ex.P/2 of the deceased Kailashi (wife of the accused Nanag Ram), her daughter Kumari Durga aged 7-8 years and another daughter Kumari Pappi aged 1 year. The deceased Kailashi was also carrying a child in her womb vide inquest report Ex.P/5.The Investigating Officer also collected burnt pieces of Lugadi (Scarf or Chunni) Lehanga (skirt) and Dagga (hand made matress) which were seized from the bed of deceased Kailashi, which were smelling of kerosene, one container without a lid which had turned black and certain house-hold articles like steel glass etc. were also seized. (3). were also seized. (3). The accused Nanag Ram was thereafter arrested on 22.9.1989 vide Ex.P/12, in which a note had been entered that accused also had sustained burn injuries on his hand, face, neck marked by white patches on his body, which were indications of burn- injuries. (4). The post-mortem was also conducted on the body of the deceased persons and thereafter the statement of Ramu PW 15, the father of the deceased Kailashi was recorded, who stated that he had executed a registered sale deed for 18 bighas of agricultural land in the name of his deceased daughter Smt. Kailashi so that her husband, accused Nanag Ram could earn his living out of the same. He had also deposited some amount in the name of his daughter Kailashi wife of the accused in a Bank. The documents in support thereof were seized which were marked as Ex.P/14 which is the sale deed, the pass book of Urban Improvement Bank in the name of deceased Kailashi marked as Ex.P/16, and a fixed deposit receipt Ex.P/17. After recording of the statement of the witnesses under Section 164, Cr.P.C., the charge sheet was submitted against the accused appellant under Sections 302, 304-B and 498-A, IPC. (5). The charges were thereafter framed against the accused, which were to the following effect :– ``Whether during the intervening night of 23.7.1989 and 24.7.1989 the accused person with intention to murder his wife Kailashi, daughter Kumari Durga, daughter Kumari Pappi and a child of 8 months developing in the womb of Smt. Kailashi poured kerosene oil on them in his own residential house situated in village Sarhad Zadla and committed murder of them? Whether the accused person on the said date, time and place mentally and bodily tortured his wife Kailashi by giving beatings to her parental house who had been married with the accused person nine years ago i.e. within a period of ten years from the intervening night of 23.7.1989 nd 24.7.1989 and on being fed up of it said Smt. Kailashi during the intervening night of 23.7.1989 and 24.7.1989 set herself on fire with both her daughters Durga and Pappi and a child developing in her womb and committed suicide in accused persons dwelling house (Thatched hut) situated in village Sarhad Zadla? Whether accused person who had been married with her wife Smt. Kailashi nine years ago from 23.7.1989 on the said date, time and place and during the said nine years behaved with his wife in cruel manner by giving beatings to her and tortured her to put pressure on her father to give him land and money? (6). The prosecution in all examined 16 witnesses support of its case. There- after, the statement of the accused under Section 313, Cr.P.C. was also recorded, who stated that at the time of the alleged occurrence, he was sleeping at the place of the occurrence along with his family and he suddenly woke up after noticing the high flames of fire. He thereafter raised hue and cry and in course of this fire, he also sustained burn injuires on hand, mouth, nose, ear and eye and was thus serio- usly burnt due to the fire. It has further been stated by him that the belongings in his house had been removed by him one day prior to the occurrence because half of the house was occupied as the work regarding lime-pit had been going on there which were being made usable. He further stated that he lost his consciousness while saving his wife after which he was admitted into the hospital for treatment and was discharged only after 8 days. However, he did not produce any witness in support of his defence. (7). The prosecution in support of its case although examined 16 witnesses, admittedly none of them are eye-witnesses. (8). The learned Sessions Judge after holding the trial, therefore, ultimately upheld the charge against the accused-appellant relying on the circumstantial evidence, which in his opinion conclusively pointed towards the guilt of the accused. (9). But before entering into the correctness or otherwise of the finding recorded on the basis of the circumstantial evidence by the Court of Session, It would be relevant to examine the oral evidence which has sufficient bearing on the question whether the conviction recorded on the basis of circumstantial evidence is consistent with the oral evidence of the prosecution witnesses, who at least had an occasion to watch the scene of occurrence after the fire broke out. In this context, we first of all propose to examine the evidence of PW 3 Sheo Chand who deposed that he was known to the deceased Kailashi and Nanag Ram, whose father-in-law Ramuhad pruchased a piece of land at village Jhadla about 3 years back. At 8.30 in the morning, Nanag Ram told his father-in-law as to why he had not PURCHASED the land and has not opened bank account in his name instead of his daughter. His fahter-in-law Ramu tried to reason out with him that whatever has been given by him to his daughter amounts to giving him, Nanag Ram then, told his father-in-law that he was not having money even to purchase medicine. Ramu therefore, asked Arjun to give him Rs.50/-. Nanag Ram thereafter alleged to have told his father-in-law that he should transfer the land and the bank account in his name, otherwise he will regret it later. He further stated that on the following morn- ing he heard that Nanag Ram killed his wife and two daughters by burning them. He later reached at the place of occurrence and noticed the dead bodies and other articles which were seized by the police. He went to the place of occurrence and saw the dead bodies and also noticed one container and tumblers which were lying near the dead-bodies. Smell of kerosene oil was coming out of the clothes of the dead bodies. This witness has proved preparing Panchnamas Ex.P.2 and Ex.P.5 in his presence on which he had affixed his signature. (10). Smt. Gheesi PW4, Shri Arjun PW 5 and Sita Ram son of Arjun PW 8 are also important witnesses in this case.All the three witnesses have deposed that they are residents of Dhani Zadli. They have also deposed that they knew the accused, Nanag Ram and the deceased lady. Smt. Gheesi in her examination-in-chief has also stated that Ramu Mali had purchased land from her and on that land he had planned to settle his daughter Smt. Kailashi with her husband Nanag Ram and therefore, a house was built by pitching stone slabs, erecting partition walls and enroofing it with sheets. Smt. Gheesi in her examination-in-chief has also stated that Ramu Mali had purchased land from her and on that land he had planned to settle his daughter Smt. Kailashi with her husband Nanag Ram and therefore, a house was built by pitching stone slabs, erecting partition walls and enroofing it with sheets. All these had been done by Ramu Mali as Kailashi used to come to her and she always complained about Nanag Rams abuse and torture to her as he was unhappy with the fact that Ramu had not transferred the land and money in his name due to which he killed his wife and children and that she had an occasion to see how it had happened. Nanag Ram had raised hue and cry on which she had sent her husband to enquire who informed her that Smt. Kailashi and both her daughters had been burnt to death. On receiving this news, they reached to the place of occurrence at about 2.00 or 2.30 in the night. In her cross-examination, she has further stated that Nanag Ram came to her house shouting and crying but she could not understand what he was uttering. Nanag Ram, however, did not call any body by name. She also noticed fire on Nanag Rams dhoti and arms but she was not in a position to state whether his entire body was also burning. Nanag Ram, thereafter went with her husband. (11). Arjun PW 5 in his examination-in-chief has given out a similar version while deposing that Ramu purchased land and built up a dwelling house by pitching stone slabs for his daughter Smt. Kailashi and Nanag Ram so that they could live with their daughters. This witness has further deposed that there had been an altercation between Nanag Ram and his father-in-law Ramu and thereafter repeated almost all the facts deposed by Gheesi. Besides that he deposed that when he was sleeping in his `guadi at about 2.30 or 3.00 in the night he heard shouting and crying, but he understood nothing. His wife then noticed the flames on the `dhoti and baniyan of Nanag Ram. He extinguished the fire and went to theplace of occurrence where he saw that TATIYAS (temporary walls made of dried grass) of all the four sides had been burnt. His wife then noticed the flames on the `dhoti and baniyan of Nanag Ram. He extinguished the fire and went to theplace of occurrence where he saw that TATIYAS (temporary walls made of dried grass) of all the four sides had been burnt. Two cots were also lying which were burning with bed and BAN (string which is being used for tightening cot). On one of the cots the mother and younger daughter was lying and on another cot the elder daughter was lying who were all dead. The house-hold articles were lying out-side the house. he further deposed that He asked Nanag Ram why he had not pulled his wife and daughters out of house before removing house-hold articles from the house on which Nanag Ram replied that he was not in his senses and could not unerstand what was happening. He again cried and started weltering in the fire due to which he caught fire. Arjun PW5 then caught hold of Nanag Ram laid him down inside the house and sent son of Prabhati Mali to inform Ramu about the incident. Thereafter the police arrived and Nanag Ram was sent to the hospital. Describing the incident further he stated that no sooner the dead body was lifted, foul smell of kerosene oil emitted. This witness has also proved the Panchnamas Ex.P/2 to Ex.P/5 and Ex.P/6. In cross-examination, however, this witness has deposed that his family members had heard the cries of Nanag Ram, but he himself had not heard his cries as he was sleeping on the shed out-side the house and when Nanag Ram came to him he disclosed nothing. He extinguished the fire on the Dhoti and Baniyan of Nanag Ram, but he did not notice any burn marks on his hands. (12). Sita Ram PW/8 on his part has also stated in his examination-in-chief about purchasing of land by Ramu Mali and inhabiting accused and his daughter Kailashi. This witness has also deposed that Nanag Ram was having tiff with his wife Kailashi for her father had transferred the land in her name and not in the name of his son-in-law. In the night when he woke up on hearing the noise of Nanag Ram, he came out of the house and saw that Dhoti of Nanag Ram had caught fire and the hut of Nanag Ram was burning. In the night when he woke up on hearing the noise of Nanag Ram, he came out of the house and saw that Dhoti of Nanag Ram had caught fire and the hut of Nanag Ram was burning. His father went to the place of occurrence and thereafter, his father told him to inform Ramu about burning of Kailashi and her two daughters. According to him, the incident of fire took place as a result of quarrel and bickering due to transfer of land in the name of Kailashi, the deceased. At about 4 OClock, he went to call Ramu from his house. Later on, he took Badri from Dhani. In cross-examination, he has deposed that on hearing the cries of Nanag Ram he and his father came out of the house, but his mother did not come. He and his father both extinguished the fire off the clothes of Nanag Ram. At that time, the hands, legs, head, neck, baniyan and dhoti etc. of Nanag Ram were burning. The voice was not clear so he could not understand what Nanag Ram was speaking. Nanag Ram, however, did not become unconscious. He along with his father again went to the place of occurrence. (13). Bajrang PW/6 has deposed that Sita Ram Jat had come to his house in the night at about 3 OClock and told him that Arjun was calling him and Sita Ram to inform Ramu about murder of Kailashi and her two infant daughters by setting fire. Thereafter they went to inform Ramu taking Badri, on the way, and after informing Ramu in his house they came to the spot. He has further deposed about the presence of container near the dead bodies of Kailashi and her daughters, and also repeated the version regarding quarrel on account of non-transferring of money in the name of Nanag Ram and keeping the same in the name of deceased Kailashi. (14). Badri PW/7 agreed with the version of PW/6 and deposed that Sita Ram and Bajrang came to Dhani of his father at 4 OClock in the night. Thereafter his father along with them went to Laxmi Ram to Ramuji and informed Ramu about the incident. Then, they came to the place of occurrence where they found Kailashi and two daughters lying dead due to the burns. Thereafter his father along with them went to Laxmi Ram to Ramuji and informed Ramu about the incident. Then, they came to the place of occurrence where they found Kailashi and two daughters lying dead due to the burns. In cross-examination, he has deposed that Nanag Ram was also lying burnt in nearby house of Arjun and was unconscious. He was also having burnt marks on hands, legs, face, neck and back. (15). PW/9 Dr. Sanwar Mal Chulet, Medical Officer, Primary Health Centre, Phagi conducted the post-mortem on the dead bodies of deceased Kailashi, Durga and Pappi. This witnesses has proved post-mortem reports Ex.P/7 relating to Ku. Durga, Ex.P/8 relating to Ku.Pappi, Ex.P/9 relating to Smt. Kailashi which have not been challenged by the defence. This witness in his evidence has described the injuries of burns of all the three deceased persons. Regarding Ku.Durga, this witness has deposed that no foul smell of kerosene oil or petrol was found on the clothes of deceased. He has further deposed that in this opinion the cause of death was due to shock as a result of burning of whole body. Regarding Ku. Pappi, this witness has deposed that no foul smell of kerosene oil or petrol was found on the clothes of deceased. The cause of death according to him was due to shock as a result of burning of whole body. Regarding Smt. Kailashi also, it has been deposed by him that he had not found foul smell of kerosene oil or petrol on the clothes of the deceased. Legs of a dead child, burst abdomen and ruptured uterus was coming out. It was 15" in size and was partly burnt. This witness has given out the cause of death due to shock as a result of burning of the whole body. Dr. Mahesh Chandra Gupta, PW/10 has admitted the facts of his having posted at Primary Health Centre, Phagi and conducting post-mortem of deceased Durga aged seven years, Pappi aged one year and Smt.Kailashi aged 25 years and accepted preparing of post-mor tem reports Ex.P/7, Ex.P/8 and Ex.P/9 and his signatures at place C to D on it. Narain PW/11 has deposed that he knows Ramuji, his daughter Kailashi and accused Nanag Ram. Kailashi and her two infant daughters had died of burns. No quarrel took place in his presence. Narain PW/11 has deposed that he knows Ramuji, his daughter Kailashi and accused Nanag Ram. Kailashi and her two infant daughters had died of burns. No quarrel took place in his presence. The land was mutated in the name of Smt. Kailashi by inlaws of Nanag Ram, as such Nanag Ram used to give beatings and abusing to his wife. He was annoyed with his in- laws. He was engaged as a labourer in the field of Ramuji and ws getting Rs. 450/-, He went to the place of occurrence on the day of incident and he found three burnt dead bodies lying there, but he was not in a position to state who had done so. On the next day, he heard that the quarrel took plce on account of transfer of the land. (16). Kabook Chand, ASI, PW/12 has deposed that he was posted at Police Station, Phagi on 22/9/1989. On that day, he arrested accused Nanag Ram vide arrest memo Ex.P/12 Gomaram PW/13 has deposed that he was posted at Police Station, Phagi on 1/8/1989. A sealed packet relating to this case was given to him for depo- siting at FSL, Jaipur, which he deposited there in intact condition and brought receipt Ex.P/13. (17). Suraj PW/14 and Ramu PW/15 are respectively brother and father of deceased Kailashi. Suraj has narrated that Kailashi was earlier married to Mool Chand of Sanganer. Mool Chand left Kailashi. Thereafter, Kailashi was given in NATA with accused person about 8-9 years ago. Kailashi gave birth to four daughters who were all conceived from Nanag Ram. She was having eight months pregnancy from Nanag Ram. After NATA, for about one year accused lived with Kailashi in his parents house, thereafter for six months, he lived in Chakwara and then came to them for living. He requested them to give him work there. He further told his father- in-law that he had taken a loan of Rs. 10,000/- which he could repay in case he was given some work there. His father kept him with them on the basis of crop share. Thereafter, the accused went to Vishwakarma, Jaipur. Kailashi used to come to them and was complaining that they were suffering hunger as they were not employed. 10,000/- which he could repay in case he was given some work there. His father kept him with them on the basis of crop share. Thereafter, the accused went to Vishwakarma, Jaipur. Kailashi used to come to them and was complaining that they were suffering hunger as they were not employed. In order to help Kailashi, her father purchased a piece of land measuring 28 bighas, bored a well in it and erected a house on roofing it with steel sheets for their living. Accused person lived there for about 15 days and thereafter leaving Kailashi there he came Phagi with his daughters. His father employed Narayan Mali as chowkidar to look after the field of Kailashi on monthly salary of Rs. 450/-. After spending 4-5 days there, the accused again came to Kailashi with his daughters Durga and Pappi. One daughter of Kailashi had died. One was living with him. The accused was always quarreling with Kailashi. On the day of the incident, Badri, Sitaram and Bajrang came to them at about 5.30 in the morning and informed that daughter and daughters daughters had been burnt on fire. His father went to the spot. Nanag Ram was confined in the house in the house of Harchanda. Household articles were lying out-side the house. His sister and sisters daughters were lying burnt. He has further deposed that his father had deposited Rs. 45,000/- in Bank in the name of Kailashi in fixed deposit and Rs. 25,000/- in savings account. The accused was complaining that half of the land and money should have been deposited in his name otherwise they were risking their lives. He has also stated that one container of oil and a steel tumbler was lying on the scene of occurrence. This witness has also proved the report of incident Ex.P/10, FIR Ex.p/1 site-plan Ex.P/1 and Panchnamas Ex.P/2 to Ex.P/5. Witness Ramu father of the deceased Kailashi has also supported the facts of Kailashis going in NATA with the accused person, giving birth to four daughters and all the above mentioned facts.This witness has also narrated that he was sending food material to Nanag Ram at Vishwakarma, Jaipur also. Still, the accused was always quarrelling with him and his daughter. Kailashi used to weep and worry how they would meet the expenses if the accused remained unemployed. So he deposited Rs. Still, the accused was always quarrelling with him and his daughter. Kailashi used to weep and worry how they would meet the expenses if the accused remained unemployed. So he deposited Rs. 45,000/- in F.D. account of Kailashi and Rs. 25,000/- in savings bank accout of Kailashi and also purchased 18 bighas of land in Zadla for her, erected a house by putting steel sheets and got bored a well in the field. Kailashi, Durga, Pappi and Nanag Ram were then shifted there, but the accused started torturing her after he deposited amount in the Bank in Kailashis account. On the day of the incident, accused Nanag Ram told to him why he had not transferred the land and amount in his name. He has further agreed that it was Sitaram and Bajrang who informed him that his grant daughters and daughter Kailashi had been burnt to death. When he reached there, he saw that his younger grand daughter was lying burnt clinging to her mother, and the elder one was lying by the side of her feet. Kailashi herself was lying burnt. He said that the third one was with him, otherwise she would also have been burnt to death. He has further deposed that since the land and money were not transferred in the name of the accused, he set kailashi and daughters on fire. In cross-examination, this witness has deposed that since Nanag Ram had been burnt vitally, the police took him to hospital in a Jeep, he was admitted in the hospital. Harchand Jhakhar, PW/16 has deposed that on 25/7/1989, he was posted at Police Station, Phagi. This witness has proved FIR E.P./10 and report Ex.P/11. He has stated that he conducted investigation. He has proved site-plan Ex. P/1, Panchnamas Ex. P/2 to Ex. P/5, seizure memo of semi-burnt clothes Ex. P/16, seizure memo of one oil container and tumbler Ex. P/18. He has also proved filing of charge-sheet Ex. P/19. In cross-examination this witness has deposed that when he reached the scene of occurrence he found that Nanag Ram was lying in the neighbouring house. He was told that he was kept there by neighbours. He immediately sent Nanag Ram to SMS Hospital, Jaipur for treatment. When accused Nanag Ram was brought to the hospital, he was not unconcious. He was crying because he had been burnt. His hands, face and neck were found burnit. He was told that he was kept there by neighbours. He immediately sent Nanag Ram to SMS Hospital, Jaipur for treatment. When accused Nanag Ram was brought to the hospital, he was not unconcious. He was crying because he had been burnt. His hands, face and neck were found burnit. Nanagram remained admitted in hospital for about two months. He interrogated the accused as to how he had been burnt. He replied that he had been burnt in fire. He denied the suggestion that Nanagram had been burnt for he was trying to save his wife and daughters. Shri Bulchand ASI was sent to SMS Hospital with accused Nanagram. (18). A meticulous scrutiny of the evidence of the prosecution clearly reveals that none of the witnesses have claimed to have watched in what manner the fire broke out in the house of the accused as they all claimed to have reached the place of occurrence only after they noticed the house on fire and the deceased persons were already dead. Hence, all the witnesses who have been examined to prove the prosecution case have ultimately deposed either regarding the motive of the occurrence which could have prompted the accused to kill his wife and daughters or described the scene after they arrived at the place of occurrence. (19). The learned Sessions Judge also accepted this position and, thus, proceeded to examine the veracity of the prosecution case relying only on the circum- stantial evidence. In this context, he first of all, examined whether the fire in the house of the accused was accidential fire or it was caused at the instance of the accused Nanagram. The learned Sessions Judge disbelieved the theory of accidential fire on the ground that accidential fire could break out either due to short circuit or due to lightning in the rainy season or if the fire in the fire place after cooking had not been extinguished or if any fire broke out in the vicinity and last of all if a volatile substance like match stick for lightning `bidi or cigarette had been thrown at the house. The learned Sessions Judge has given a finding that none of these possibilities were even suggested by the defence due to which the fire broke out. The learned Sessions Judge has given a finding that none of these possibilities were even suggested by the defence due to which the fire broke out. Hence, it was inferred that if the fire was not accidental, then it was the logical con- clusion that the fire was caused at the instance of some one and, since the place of the accident after the fire broke out suggests that the deceased persons bodies were found on the cot which were also burnt then the absence of any cot on which the accused claims to have been sleeping, naturally gives rise to the doubt as to what happened to the cot on which the accused was sleeping and hence absence of seizure of any cot, on which the accused claims to have been sleeping led the Sessions Judge to hold that the accused, infact, had not been sleeping there. (20). The second circumstance relied upon by the trial Court is whether the accused tried to save his wife and children from the fire even if it were accidental. In this context, the trial Court relied on the evidence of Arjun PW 5 and the situation of the place of occurrence. The fact that the body of the deceased and her daughter were lying on cot led the trial Court to infer that the accused did not infact make any effort to save his wife and children. The trial Court also disbelieved that the accused sustained burn injuries while trying to save to deceased persons, for had he really made any efforts, then the body of the deceased would not have been found on the cot and the trial Court accepted the plea of the prosecution that the accused had not sustained burn injuries while extinguishing the fire which was caused for the purpose of burning his family members and since the kerosene oil is extremely volatile, the accused must have sustained burns on his wrist, neck, head and on his clothes, and had further accepted the version of the proseuction witnesses Arjun, Sita Ram and Gheesi that the accused had sustained the burn injuries while he was lying in and out on the floor putting up a show of shock at the incident. The Court of Sessions fianlly relied on the motive that the accused wanted to grab the land and cash lying in the name of his wife Kailashi Devi so that he could hold full control on her property. (21). Shri Dalip Singh, learned counsel for the appellant has, first of all, submitted that the trial of the accused-appellant remained vitiated in view of Charge No. 2, which has been framed indicating that it could be a case of murder by burning the deceased, or it could be a case even of suicide and the nature of the charge itself casts doubt on the prosecution case because charge No. 1 is completely opposed to charge No. 2. According to the appellants counsel, there cannot be two sets of charges on the same set of facts and the same would be opposed to Section 221 Cr.P.C. He has further submitted in this respect that in one of the charges, it is stated that the wife set fire to hereself and two daughters, whereas in the next charge it has been alleged that it was the accused, who had set fire to all the deceased persons. Thus, there is a doubt about the charge itself in the mind of the Court as also of the prosecution and, hence, the defence had been in an extremely precarious situation to meet the case of the prosecution. In support of this submission, he has also relied upon a decision report in , delivered in the case of State of West Bengal vs. Laisal Haque and others etc. In support of this submission, he has also relied upon a decision report in , delivered in the case of State of West Bengal vs. Laisal Haque and others etc. (1) where the learned Judges of the Supreme Court referred to the celebrated case of Willie (William) Slaney vs. State of Madhya Pradesh (2), and were pleased to quote the observations of Vivian Bose J in this context, who after an elaborate discussion on the question of prejudice to the accused regarding error, omission or irregularity in the charge observed as follows :– ``in judging a question of prejudice, as of guilt, the Courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. (22). The principles laid down therein which has since been followed in large number of cases was also followed by the learned Judges of the Supreme Court in State of West Bengal v.s Laisal Haque (supra) reiterating the principle that the trial can be said to be vitiated only if the accused has been prejudiced on account of defect in framing the charge. Another case relied upon in support of this plea is Jatinder Kumar and Others vs. State (Delhi Admn), Delhi (3). (23). The learned counsel thereafter commenting on the evidence of the pro- secution witnesses extensively pointed out that the same is full of contradictions and, thus, the prosecution case does not stand the test of scrutiny. The evidence of the prosecution has been further criticised by the counsel for the appellant that Ex.P/1 container of kerosene had not been sent for chemical examination due to which, it cannot be inferred with certainty that it was a kerosene container and it cannot be inferred from Ex. P/7, Ex. P/8 and Ex.P/9 that smell of kerosene oil had been coming out. It has also been stated that the seizure of tin and glass vide Ex. P/18 has not been established. P/7, Ex. P/8 and Ex.P/9 that smell of kerosene oil had been coming out. It has also been stated that the seizure of tin and glass vide Ex. P/18 has not been established. It has, therefore, been summed up that the theory of setting fire by kerosene has not been sustained, as there is no evidence as to from where the kerosene oil came and hence according to him, procurement of kerosene oil is not proved. In addition, it has also been pointed out that the seal on Ex. P/16 was not proper and, if it had not been sealed properly, the possibility of tampering with it cannot be ruled out. Learned counsel also submitted that Ex. P. 16 and Ex. P. 26 are also not free from doubt, and last of all, the injury sustained by the accused-appellant has also been insisted to have been sustained in course of saving his wife. Learned counsel for the defence thus in substance has assailed the circumstantial evidence relied upon by the prosecution and has contended that the conviction based on circumstantial evidence is extremely un-realiable and is against the principles laid down in a series of decisions regarding circumstantial evidence. In this connection also he has referred to Sharad Chand Birdi vs. State of Maharashtra (4), Bakhsish Singh vs. State of Punjab (5), State of Gujarat vs. Mohan Bhai Raghbhai Patel and another (6) and several other decisions. (24). Learned Public Prosecutor, on his part, has also referred to Section 221 Cr.P.C. and it has been submitted, in reply to the first contention urged on behalf of the appellant that there could be two sets of inferences from the same set of facts and, therefore, two charges could surely be framed if both make out an offence distinct from each other. Learned Public Prosecutor has further submitted that if the accused has not taken specific line of defence, then his trial cannot be said to be prejudiced. The learned Public Prosecutor has also cited Bhoora Singh vs. State (7), which is a judgment of the Allahabad High Court wherein the accused had been acquitted of the charge under Section 302 and 304-B, IPC but convicted under Section 498-A, IPC. The learned Public Prosecutor has further cited AIR 1988 1106 (8) and AIR 1936 (Culcutta) 796 and 801 (9). (25). The learned Public Prosecutor has further cited AIR 1988 1106 (8) and AIR 1936 (Culcutta) 796 and 801 (9). (25). In so far as the question of framing of charge in this case is concerned, we have examined the cases relied upon by counsel for the parties and we are satisfied that the cases relied upon by the learned Public Prosecutor dealt with an altogether different situation and not applicable in this case even remotely. However, the principles enunciated in the case of State of West Bengal vs. Laisal Haque (supra) especially deals with the question of prejudice on account of defect in fram- ing of charge. But, it ultimately has been held that the trial of the accused can be said to be vitiated only, if the accused has been prejudiced on account of defect in framing of the charge. In the instant case, whether the deceased-Kailashi committed suicide or was done to death by the accused were the questions relating to the one and the same incident and it cannot be said that the defence of the accused could change, if it was a case of suicide and if it were a homicide, the accused appellant could have set-up another defence so as to compell this Court to hold that his trial is vitiated. Thus, we find no substance in the contention of the defence counsel that the trial of the accused is vitiated on account of defect in framing of the charge. (26). However, on going through the oral evidence of the witnesses in support of the prosecution case, we have noticed that all the witnesses on which the prosecution has relied, have themselves not claimed to have seen in what manner the fire broke out and they have all deposed to the extent that appellant Nanag Ram bore a grudge against his father-in-law who had transferred the land in the name of his daughter and not in his name and the second aspect on which they have deposed is to the effect that they all saw Nanag Ram at the place of occurrence who also had caught fire on his baniyan and dhoti. There are however, some discrepencies amongst the witnesses as to on which part Nanag Ram actually sustained burn injuries, because according to some Nanag Rams hands and legs did not catch fire due to which it has been inferred by the Court below that the injuries were superficial in nature and was deliberately caused in order to create evidence in his favour. However, the fact remains that the appellant did catch fire in the same incident and was also present at the place of occurrence where he cried and behaved in a strange manner, after the incident while the hut was burning. From this part of the evidence of the prosecution, it can atleast safely be concluded that the accused appellant was infact, present at the time of the occurrence. But this circumstance has also gone against him as the Court of Sessions inferred as to why he failed to save his wife and daughter, if, infact, he was sleeping at that place and yet could not save any one of them. This, in our opinion, purely leads to conjecture for it is possible to interpret this situation that had Nanag Ram, in fact, lighted the fire to burn his wife and children and was, thus, guilty of the offence, there was nothing which could prevent him from running away after he set fire to his wife and children. Therefore, deducing inference in either way on this part of the prosecution story, would be purely speculative and it would be highly unsafe to infer by way of forming an impression that since the appellant did not sustain enough burn injuries on his hands and legs, therefore, he failed to save his family members due to which a conclusive finding can be recorded that it is he who set fire to kill his wife and children. (27) Coming now to the scrutiny of the circumstantial evidence relied upon by the learned Sessions, Judge, we are unable to agree with the finding that the circumstantial evidence conclusively establishes that it is the appellant, who can be said to have committed the offence recording a definite finding in this regard. (27) Coming now to the scrutiny of the circumstantial evidence relied upon by the learned Sessions, Judge, we are unable to agree with the finding that the circumstantial evidence conclusively establishes that it is the appellant, who can be said to have committed the offence recording a definite finding in this regard. It is well established that conviction can be based on circumstantial evidence only if they are so inextricably linked with each other which conclusively points towards the guilt of the accused and the circumstances speak out so vociferously that no other inference can be drawn out of the circumstances, as has been held in the case of Shivaji Sahebrao Bobade vs. State of Maharashtra (10) , wherein the following observations were made : ``Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be and `must be is long and divides vague conjectures from sure conclusions. (28). Relying on this observations of the Supreme Court in the matter of Sharad vs. State of Maharashtra (supra) reiterated the legal position in regard to reliance to be placed on circumstantial evidence and observed that before a conviction can be based on circumstantial evidence, the facts so established, meaning thereby circumstnatial evidence should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (29). Relying on the principles enunciated in cases based on circumstantial evidence, when and facts and circumstances of this case are examined, we find that the circumstantial evidence relied upon are extremely vague and weak in the case at hand, which makes it difficult for this Court to uphold the conviction and sentence awarded to the appellant. The learned Sessions Judge, in our opinion, has himself resorted to surmises and conjectures when he stated that since there is no evidence in what manner the fire broke out i.e. whether it broke out because the fire after cooking had not been extinguished or since there was no electricity, or it broke out due to short-circuit or on account of any volatile substance, there- fore, preferred to deduce inference that it was the accused-appellant who set fire to the house. (30). (30). The Second circumstance relied upon by the trial Court is to the effect that the cot on which the accused claimed to have been sleeping was not seized and, therefore, his defence that he too was sleeping in the house when the fire broke out, has been disbelieved. This circumstance, however, got contradicted by the evidence of the prosecution witnesses themselves because the proseuction witnesses have deposed that the appellant at least was present at the site when the house was burning and he was in a hysterical state of mind. If this circumstance relied upon by the trial Court is accepted as correct, and it is inferred that he has concocted a story about his presence in the house because the cot on which he was sleeping had not been seized, then the question also arises why the accused would have returned to the place of occurrence if, in fact, he had lighted the fire and caused the death of his family members by burning them. He had ample opportunity to run away from the site of the occurrence and there could possibly have been no reason for him to be present there and in such short span of time he cannot be expected to have manufactured the evidence by imaging that if he burnt himself, partially he would be in a position to create a defence for himself. Therefore, as we have said, the interepretation of the circumstantial evidence under the facts and circumstances of the case, cannot conclusively be inferred either way and the same relied upon by the trial Court, in our opinion are too weak and feeble in nature. (31). We also cannot shut our eyes to the fact, treating it only as a circumstance, but certainly not as a defect in the framing of the charge alleging prejudice, that the prosecution itself has not levelled a charge of murder against the appellant with accuracy and exactness because even the charges which have been framed against the appellant discloses that it could either be a case or murder of its could also be a case of suicide by the deceased. (32). (32). The motive which has been attributed to the accused for committing this dastardly act cannot be said to be strong enough; but even if it were so, the motive alone cannot be a ground to convict a person for the charge of murder unless the same is supported by some cogent and reliable evidence. (33). We are, therefore, unable to conclude either on the basis of the circumstantial evidence or on the basis of the oral evidence of the prosecution witnesses that it was the accused-appellant who killed his wife and children and that possibly no other inference could be drawn under the circumstances. In this context, it is perhaps too elementary to record the well settled legal position that where on evidence two possibilities are available, one which goes in favour of the prosecution and the other which benefits the accused, the accused is undoubtedly entitled to the benefit of doubt. Hence, we are left with no option than to record an order of acquittal of the appellant, Nanag Ram by giving him the benefit of doubt as the evidence in support of the prosecution case is completely lacking and the circumstantial evidence relied upon are too fragile and feeble in nautre and does not lead to one and the only conclusion that it is the appellant who burnt his wife and children. The circumstances relied upon by the Court of Session, in our opinion, are nothing but pure conjectures based on speculation. Therefore, although the deaths of the deceased persons are shockingly henious in nature, we are unable to fasten the liability of their death on appellant Nanag Ram in absence of the circumstantial evidence which possibly could lead to no other conclusion. (34). For the reasons assiged hereinaabove, we set aside the sentence of death imposed upon the appellant and order for setting him at liberty forthwith. The reference is answered accordingly and the appeal preferred by the appellant is, thus, allowed. Order accordingly.