JUDGMENT 1. - This appeal has been preferred against the judgement and order of the Addl. Sessions Judge, Kotputli, District Jaipur by which the appellant herein Badri has been convicted and sentenced for an offence under Section 302. Indian Penal Code and sentenced to imprisonment for life along with a fine of Rs. 500/- and, in default of payment of fine to further undergo two months' rigorous imprisonment. 2. The case of the prosecution was lodged by the informant. Pooran Mal Meena (PW/9) on 11.8.1993 at the Police Station, Pragpura, District Jaipur, wherein it was stated that his father (deceased) Banshi went to the village along with accused-appellant Badri Prasad who did not return in the night. The following morning at about 6 A.M., his cousin Ramji Lal enquired from him whether his father Banshi Chacha returned in the night. To which Pooran Mal Meena replied that he had not returned home last night. Ramji lal then informed him that a jeep of the liquor contractor had come from Dantil, wherein the persons sitting in the jeep namely Banwari Lal Meena, Mali Ram Meena, Jagdish Meena and Phool Chard Jat told him that two persons from their village had come to Dantil in the jeep of the liquor contractor and out of them one wearing printed turban was lying dead at some distance near the hand pump who had sustained head injury and was lying in a pool of blood. The report further states that on this information Pooran Mal and Ramji Lal reached Dantil on foot behind petrol pump and saw the dead body of Banshi which was soaked in blood. The informant further stated that somebody had killed his father on the last night and the description given by the liquor contractor matches with the description of his uncle Badri Prasad, the appellant herein. He has further stated that his father had last been seen in the company of Badri and accordingly it was prayed that prompt action be taken against the culprit. 3. On the aforesaid report of the informant Pooran Mal, the police registered a case for an offence under Section 302 Indian Penal Code and started investigation. He has further stated that his father had last been seen in the company of Badri and accordingly it was prayed that prompt action be taken against the culprit. 3. On the aforesaid report of the informant Pooran Mal, the police registered a case for an offence under Section 302 Indian Penal Code and started investigation. In course of investigation, it has been claimed that the accused Badri on 2 8.1993 willingly gave an information under Section 27 of the Indian Evidence Act that he had hidden one lathi' in village Sadarpura in a field under the mud which he can get recovered. This information is marked as Ex-P/22. It may be worthwhile to state herein that the investigation officer, Amar Singh, has deposed in his cross-examination that in pursuance of the information vide Ex.P/22, which was furnished by the accused, nothing could be recovered from the said place. There is, however, Ex.P/23 also, which is another information under Section 27 of the Indian Evidence Act, claimed to have been furnished by the accused on 28.8.1993, which states that the accused Badri willingly informed the S.H.O. that the 'lathi' which he had used for killing Banshi had been hidden by him in the house of his brother-in-law Raghunath at village Sadarpura in the roof of his house which he Could get recovered. Or, the basis of this information, the police claimed to have recovered a 'lathi' from the house of PW/8 Raghunath Meena in presence of the S.H.O. The Investigating Officer further claimed to have recovered a shirt with blood stains, which is alleged to have been worn by accused Badri at the time of killing of the deceased. The investigating officer also collected bloodstained earth marked as Ex. P/4 and also an empty glass and one glass bottle and three broken tooth of the accused as also a pair of slippers of the deceased. The body of the deceased was then sent for post-mortem examination at Kotputli Hospital. Where it was found that most of the injuries sustained by the deceased are lacerated wound 4 x 1cm bone deep obliquely placed right to mid line on forehead. There were other lacerated wounds also which were found on the body of the deceased. The body of the deceased was then sent for post-mortem examination at Kotputli Hospital. Where it was found that most of the injuries sustained by the deceased are lacerated wound 4 x 1cm bone deep obliquely placed right to mid line on forehead. There were other lacerated wounds also which were found on the body of the deceased. In the opinion of the Medical Board, the cause of death was cardio respiratory haematoma and brain All the injuries failure due to head having subdural haematoma and brain All the injuries were ante-mortem in nature. 4. The police after investigation submitted charge-sheet against the appellant Badri for the offence under Section 302 Indian Penal Code and on commitment of the case to the Court of Addl. Sessions Judge Kotputli, the accused-appellant denied the' charge, as a result of which the trial commenced. 5. The statement of the accused also was recorded under Section 313, Criminal Procedure Code where he denied the prosecution story, but no defence evidence was adduced by the accused-appellant. 6. Admittedly, there is no eye witness in support of the prosecution case. The prosecution, however, examined 25 witnesses and also exhibited certain documents to prove its case based on circumstantial evidence. 7. The learned Add. Sessions Judge, Kotputli took into consideration three Principle circumstantial evidence in order to examine whether the accused Badri Prasad could be held guilty of murder of Banshi, which were as follows: (1) Deceased Banshi was last seen in the company of accused Badri. (2) Accused after committing the murder is alleged to have changed his shirt 254 from his brother-in-law Ramjilal in his house. (3) The 'lathi' is alleged to have been recovered on 28.8.1993 on the information of the accused-appellant. 8. In support of the first circumstance i.e. regarding the evidence that the accused was last seen in the company of the deceased, the learned Addl. Sessions Judge, relied on the evidence of PW/8 Raghunath, PW/10 Phool Chand, PW/16 Banwari and PW/17 Motilal and on the evidence of these four witnesses it was held that the deceased Banshi and accused Badri were together on the night of the date of occurrence and had purchased liquor from the liquor shop and, for drinking the same, they went to the hand pump near the shop of the liquor contractor. 9. 9. The fact that the body of the deceased Banshi was recovered by the investigating officer Amar Singh (PW/21) from near the hand pump where the glass bottle and one glass were recovered was held to be conclusive that the occurrence took place near the hand- pump. 10. The learned trial Judge further took into consideration the second circumstance regarding the fact that the accused changed his blood stained shirt in the house of PW/15 Ramjilal and gave his shirt to Ramjilal and in Will tool: Ramjilal's shirt. (It is worthwhile to bear in mind, at this juncture that Ramjilal is the common relation of the accused and the deceased. Ramj ilal is the nephew of the deceased and brother-in-law of the accused Badri). On this circumstance, the learned Addl. Sessions Judge has relied upon the evidence of PW/I3 Smt. Mali, PW/22 Snit. Sugani, and PW/15 Ramjilal, as already stated herein above. PW/ 13 Smt. Mali is the wife of the deceased Banshi. She has deposed that her husband deceased Banshi had taken Rs. 50/- from her on the pretext of buying some medicine and did not return home that night. She then heard the 'halla' which was raised in the village that Banshi has died and a lot of people had collected. She claims that on the said date at II o'clock Sugani came to her and told her that your brother-in-law (Nanddoi) Badri had come to their house in the morning and his shirt had spots of blood, which he exchanged from his son Ramjilal. In this connection, the trial Court has further relied on PW/15 Ramjilal who stated the same thing regarding exchange of shirt of Badri which had blood stains. Similarly, PW/22 Sugani has also repeated the version and further told that she learnt about it at about 11 or 12 on the same day that Banshi Meena got hit and died. Thus, relying on the evidence of PW/13 Smt. Mali,. PW/13 Ramjilal and PW/22 Sugani the trial Court relied on the circumstance as one of the most weighty circumstance and thus_a conclusive evidence and held the appellant guilty of the murder of Banshi. 11. The learned Addl. Thus, relying on the evidence of PW/13 Smt. Mali,. PW/13 Ramjilal and PW/22 Sugani the trial Court relied on the circumstance as one of the most weighty circumstance and thus_a conclusive evidence and held the appellant guilty of the murder of Banshi. 11. The learned Addl. Sessions Judge finally relied on the third circumstance regarding recovery of 'lathi' which is claimed to have been recovered on the information furnished by the accused, which is alleged to have been recovered on 28.8.1993 from the house of PW/4 Raghunath Singh. According to the prosecution, the 'lathi' also had blood stains which was seized by Ex.P/10. The seizure list witnesses are PW/4 Raghunath Singh. Investigating Officer PW/21 Amar Singh. The learned Sessions Judge, thus, on consideration of the circumstantial evidence referred to herein above, was pleased to record a finding that the accused Badri committed the murder of Banshi under the influence of liquor and accordingly upheld the charge against him under Section 302 Indian Penal Code, as proved and convicted and sentenced him, as stated herein above. 12. We have examined the evidence of the prosecution in the light of the circumstances relied upon by it which also have been found to be reliable and cogent by the learned Addl. Sessions Judge. noticed the evidence of informant PW/9 Pooran Mal Meena is the son First of the deceased Banshi. While he has supported the version stated in the first information report, in his cross- examination he has stated that his father i.e. deceased Banshi and accused appellant Badri had very cordial relations and whenever Badri came is village he made it a point to meet his father and used to go to his house and whenever he came they had occasion to drink liquor together as both of them were extremely cordial and friendly to each other. He has further stated in his cross-examination that one Mahaveer Meena son of Parsadi Meena resident of Sadarpura had forcibly taken possession of the land of his uncle. The possession of that land was restored from Mahaveer to his uncle at the intervention of his father Banshi after a meeting of the local people was called. It has been specifically stated by him that on this account Mahaveer Meena bore a deep grudge against his father Banshi and their fancily therefore, had a grudge against his deceased father. The possession of that land was restored from Mahaveer to his uncle at the intervention of his father Banshi after a meeting of the local people was called. It has been specifically stated by him that on this account Mahaveer Meena bore a deep grudge against his father Banshi and their fancily therefore, had a grudge against his deceased father. The son of the deceased has further stated that he has no suspicion against his uncle (Phupha), Badri the accused appellant herein, because Badri and his father were very friendly and had no quarrel with each other whatsoever. He has finally stated that the police did not investigate the matter fairly and properly and the real culprit has not been brought to book. The inference therefore which can be safely gathered from his cross-examination is that he has clearly exonerated his uncle Badri, accused-appellant herein. Similarly, the wife of the deceased Smt. Mali (PW/13) has also stated that she does not know who killed her husband Banshi. She, however, has stated that Sugani (P.W/22) had told her that Badri had come to her house at 5 or 6 in the morning and exchanged his shirt from his son Ramjilal and there were blood stains on Badri's shirt. 13. I However when evidence of the 'prosecution is minutely examined, serious infirmities arc noticed therein. It first of all transpires that in so far as the evidence of Smt. Mali (PW/15) who is the wife of the deceased is concerned regarding the recovery of the shirt, it cannot be said to be having any evidentiary value since she has stated, what she alleges to have gathered from Sugani (PW/21). In this connection, it is also important to notice the evidence of Suraj Bhan Singh (PW/h) as he is the witness of the seizure of the shirt of the accused vide Ex.P/2 and lie has signed on the seizure list. This witness, in our view, was one of the most important and independent witness regarding the seizure of the shirt of the accused which is alleged to be having blood stains. According to this witness, the shirt was of white colour his version appears to be very casual in the sense that he does not remember any of the details regarding full-sleeve shirt or a half sleeve and which part of the shirt was having blood stains. According to this witness, the shirt was of white colour his version appears to be very casual in the sense that he does not remember any of the details regarding full-sleeve shirt or a half sleeve and which part of the shirt was having blood stains. The most important discrepancy is the colour of the shirt of the accused as according to the other seizure list with PW/2 Amar Singh, the colour of the shirt which was seized in front of him was blue. In his cross-examination, he goes on to state that he had not seen the shirt which was seized and he merely signed the seizure list because he was asked to do so by the Police Station Incharge. From these depositions, the inference which can safely be drawn is that he shirt which was seized in front of PW/l Suraj Bhan Singh must be belonging to the deceased and not the accused as according to some other witness the colour of the shirt which was worn by the accused was blue and the colour of the shirt of the deceased was white. Another witness on the seizure of the shirt is Ramjilal PW/15 who, is the nephew of the deceased and the brother-in-law of the accused, and Sugani (PW/22). When the evidence of this witness is compared with the evidence of other independent seizure list witness referred to hereinbefore, the variance in their version is glaring and cannot be treated to be of trivial nature worth ignoring, more so in view of the fact that the articles were not even sent to Forensic Science Laboratory for chemical examination and the prosecution, therefore, completely gropes in dark as to whether the blood stains on the articles alleged to have been recovered in course of investigation was human blood or not, even if it be accepted that the seized shirt belonged to the accused. Thus, the evidence of this witness on this part of the circumstantial evidence cannot be held to be an unimpeachable piece of evidence worthy enough to be treated as a link in the chain of circumstantial evidence. 14. We have then considered and noticed that 'lathi' which is claimed to have been recovered on the information furnished by the accused himself is also shrouded in mystery. 14. We have then considered and noticed that 'lathi' which is claimed to have been recovered on the information furnished by the accused himself is also shrouded in mystery. The Investigating Officer PW/21 Amar Singh has stated that nothing could be recovered on the earlier information of the accused and nothing has come out from the prosecution as to what was the occasion for the accused to give fresh information regarding the lathi. In this context, it is also most interesting to notice the evidence of PW/4 Raghuveer Singh, who is the sole seizure list witness in whose presence the 'lathi' is alleged to have been recovered from the house of Raghunath Meena (PW/7). Strangely enough, neither the owner of the house Raghunath Meena nor any of the inmates of the house are seizure list witness of 'lathi' recovery and the 'lathi' is claimed to have been recovered in presence of the third person Raghuveer Singh (PW/4), who in his deposition first of all states that the 'lathi' was recovered in his presence in the house of Raghunath PW/7 and in his cross- examination, he states that he was not knowing the house from before where the 'lathi' was recovered he deposited as follows: 15. Besides the owner of the house Rathunath Meena (PW/7). Alongwith, he has recovery of 'lathi' from his house, although he should have been the moat natural witness of the seizure of lathi if, in fact, it was recovered from his house. 16. Thus, the story of recovery of lathi, in our opinion, is full of questionable infirmity which casts serious doubt about the investigating agency because apart from this witness there is no other witness on the point of seizure of lathi, not even the owner of the house of other inmates, as stated herein above. Besides PW/4 states that the date of recovery of lathi is 11.8.1993. Thus, discrepancy, in our opinion, cannot be attributed to lapse of memory of this witness, otherwise he would have easily stated that he does not remember the exact date. The fact that he gave a wrong date of recovery raises a serious doubt in our mind that he was a tutored witness and, thus, committed error about the fact for which he was coached. Banwari (PW/16). The fact that he gave a wrong date of recovery raises a serious doubt in our mind that he was a tutored witness and, thus, committed error about the fact for which he was coached. Banwari (PW/16). On the contrary, deposed and denied to have stated before the police that the thin man with lathi had killed the deceased 17. Besides the aforesaid serious contradictions in the prosecution witness relied upon by die learned Session Judge, the lacuna on the part of the prosecution not to have sent the articles for chemical examination, also raises serious doubt about the veracity of the prosecution case and in a case of circumstantial evidence, the lapse is most fatal to it. 18. Apart from the gaping loopholes in the circumstantial evidence relied upon by the prosecution, the absence of motive on the part of the accused- appellant also cannot be brushed aside lightly. it is no, doubt true that the absence of motive on the part of the accused is not always a serious infirmity against the prosecution case, but in a case of instant nature where their is no eye witness of the occurrence and the circumstantial evidence raises serious doubt, the absence of motive on the part of the accused cannot be treated lightly, more so, when the wife and son of the deceased themselves have not suspected even remotely against the accused-appellant. the son of the deceased, on the contrary has alleged that the police did not investigate the matter fairly and the real culprits have not been convicted. 19. Thus, on consideration of the entire circumstantial evidence relied upon by the prosecution, we have no hesitation in holding that the prosecution has miserable failed to prove its case against the accused even within the ambit of reasonable doubt, much less beyond all reasonable doubt. 20. Consequently, the appeal is allowed and the conviction and sentence of the accused-appellant awarded by the Sessions Judge, Kotputli is set aside. He shall be set at liberty forthwith if not wanted in any other case. *******