J. G. CHITRE, J. ( 1 ) THIS appeal was preferred by both the appellants Ismile and Nago challenging the correctness, propriety and legality of the order of conviction passed against them by IIIrd Addl. Sessions Judge, Ratlam in the matter of S. T. No. 248/91 wherein he had convicted both of them for committing an offence punishable under provisions of S. 302 of I. P. C. and had sentenced them to undergo imprisonment for life along with fine of Rs. 500/- each. ( 2 ) NOW the appellant Ismile is dead; therefore, the appeal filed by him stands abated. ( 3 ) PROSECUTION case in brief can be stated as below :it is the prosecution case that both the appellants committed murder of Mirajbano widow of Hussein, aged about 50 years, in the night between 4-4-91 and 5-4-91. ( 4 ) THE first information report in the present case has been lodged by appellate Ismile himself in Station Road, Police Station, Ratlam reporting that his sister Mirajbano had died. According to his report, his wife Mehrajbee found that Mirajbano who was sleeping in the terrace of the house of Ismile in the night, was found dead when she (Mehrajbee) had gone to terrace. Mehrajbee had informed that to Ismile and Ismile went to police station and lodged the report. The investigation proceeded on the said report and during the course of the investigation, as per prosecution case the appellant Ismile gave the information to the I. O. that he had given a knife to his daughter Nago-appellant No. 2. Said Nago was interrogated by investigating officer on 6-4-91 and, she informed him and panch witnesses that said knife was kept by her in the house of one Afzal. Thus, both the appellants were prosecuted, tried and convicted and sentenced as mentioned above. That order of conviction and sentence is under challenge in this appeal. ( 5 ) SHRI A. H. Khan, learned counsel for the appellants submitted that the learned trial Judge erroneously appreciated evidence on record and unnecessarily without giving undue importance to surmises, recorded the finding against the appellants holding them guilty. That order of conviction and sentence is under challenge in this appeal. ( 5 ) SHRI A. H. Khan, learned counsel for the appellants submitted that the learned trial Judge erroneously appreciated evidence on record and unnecessarily without giving undue importance to surmises, recorded the finding against the appellants holding them guilty. He pointed out that the learned trial Judge based his conviction and sentence on only two circumstances - (i) that the terrace was in exclusive possession of the appellants (ii) the knife, which was having blood, was discovered in view of the information given by appellants. Shri Khan pointed out that learned trial Judge improperly suspected foul play at the hands of investigating officer so also, learned trial Court Judge unnecessarily discredited PW. 1 Bhuru by holding that he had given false evidence for saving his maternal uncle Ismile and his maternal cousin Nago. Shri Khan prayed that the said order of conviction and sentence be set aside and appellants be acquitted. ( 6 ) SHRI G. Desai, G. A. tried to justify the order of conviction and sentence as proper, correct and legal by making reference to evidence on record. ( 7 ) AFTER examining the judgment and order passed by the learned trial Judge and the evidence on record we have no doubt in our minds that the learned trial Judge has committed error of recording the finding of holding both the appellants guilty of the offence of murdering Mirajbano. We do not have doubt in our minds that learned trial Judge unnecessarily suspected the investigation of the investigating officer and unnecessarily discredited PW. 1 Bhuru. ( 8 ) THE learned trial Judge found one circumstance sufficient enough for basing the conviction against the appellants and that was the finding of dead body in the terrace which was in the proximity of the rooms which were in possession of the appellants Ismile. He held that the said terrace was in exclusive possession of the appellant-Ismile. ( 9 ) PW. 1 Bhuru happens to be the son of deceased Miraj Bano. He has stated in his evidence that when he had seen the dead body of his mother Mirajbano, he had noticed that there was knife in the hands of his mother. He had stated in his evidence that after the death of his father, his mother Mirajbano had lost the mental balance. He has stated in his evidence that when he had seen the dead body of his mother Mirajbano, he had noticed that there was knife in the hands of his mother. He had stated in his evidence that after the death of his father, his mother Mirajbano had lost the mental balance. He further stated that the terrace where dead body of Mirajbano was lying, was accessible to other tenants of the said building. The owner of the said building Comarade Mohemmad Ismile-PW 2 has also stated in the same way. He had stated in his evidence that deceased Mirajbano was behaving like a mad woman and because of that, Ismile used to take her to Hussein Hills for religious treatment. He had also stated in his evidence that the said terrace was accessible to other tenants also and other tenants used to frequent in the said terrace. The learned trial Judge disbelieved the statements of those two witnesses only because they were disowned by the prosecution as hostile witnesses when questions were asked to them in the nature of cross-examination. The learned trial Judge has held that P. W. 1 Bhuru was suppressing the truth for saving his maternal uncle and maternal cousin Nago. The learned trial Judge was at loss to note that though Ismile happens to be his maternal uncle and Nago happens to be his maternal cousin, the deceased was none else but his mother. Had appellants been the person killing his mother, in all naturalness, keeping in view the experience of behaviour of human beings, he would not have spared them. He might not have at least concealed the truth. There was nothing for Comarade Ismile to give false evidence for saving both the appellants; At least, there was no reason for him to conceal the truth. The evidence on record does not show that both Ismile and Nago were very thick in relation to him and, therefore, he was concealing the truth, with some ulterior intention or purpose. So far as the access of other tenants to said terrace is concerned. Ismile was the best witness to state about it. He happens to be the owner of said building and, therefore, he must have been knowing as to who was having access to said terrace and as to who were using the said terrace at the relevant time. So far as the access of other tenants to said terrace is concerned. Ismile was the best witness to state about it. He happens to be the owner of said building and, therefore, he must have been knowing as to who was having access to said terrace and as to who were using the said terrace at the relevant time. Had that terrace been in exclusive possession of Ismile and his family member, there was nothing for Ismile to say about that. Besides that, learned trial Judge did not note that it has come in the prosecution evidence itself that there is a Nulha behind the said building. The spot where the deceased Mirajbano was sleeping in the said night was open terrace and that could have been accessible to miscreants from the side of the said Nulha. ( 10 ) THE approach of the learned trial Judge to discard the above statement of witness Bhuru and Ismile was not proper and legal because the evidence of a witness can not be totally discarded if the prosecution declares him hostile to it and ask questions in the nature of cross-examination. The Court has to see whether there is any material to show that those witnesses have been won over by the accused. The Court has to see whetherthere are grounds prompting them to suppress the truth and state falsehood for favouring the accused. The Court has also to see their evidence as a whole and has to form an opinion on reasonable grounds about the credibility of the statements made by such witnesses. In this case the learned trial Judge has committed the error in disbelieving them on the grounds which cannot be said to be reasonable grounds. ( 11 ) LEARNED trial Judge himself has pointed out in his judgment that the spot of offence panchnama was showing that on 4-4-91 when the said panchnama was prepared by the investigating officer, the said knife was found near the dead body on the terrace. He pointed out further in his judgment that though said knife was found near the dead body on 4-4-91, there was no possibility of it being discovered as concealed in the house of Afzal, and could not have been seized in such condition on 6-4-91. In view of seizure panchnama Ex. P. 9, learned trial Judge has himself discarded the prosecution evidence on that point. In view of seizure panchnama Ex. P. 9, learned trial Judge has himself discarded the prosecution evidence on that point. Very strangely the learned trial Judge remarked that the said act of the investigating officer was for helping the accused and was for weakening the prosecution case. We are at loss to find out any reasonable ground for coming to such conclusion. In absence of any reasonable ground, it is not proper to draw such inference and blame the investigating officer without giving him sufficient opportunity to explain the situation. There is nothing for the investigating officer to weaken the prosecution case for helping the accused by such memoranda of the statements given by accused Ismile and Nago. On the contrary, it could have been safely said that it was an attempt of the investigating officer to strengthen the case of the prosecution against both the accused. That remark which has been passed by the learned trial Judge against the investigating officer is incorrect and unwarranted. ( 12 ) LEARNED Judge has concluded that the said terrace was in exclusive possession of the Comarade Ismile and Nago and they were cooking the food in the said night. On this solitary circumstance only the learned trial Judge has convicted both the accused for the murdering of Mirajbano. Though learned trial Judge has used some sentences in respect of case revolving around circumstantial evidence, the learned Judge has committed error in not applying the principle of law to process of appreciating the evidence. ( 13 ) IN a case dependent on circumstantial evidence, it is the duty of the prosecution to prove each circumstance by reliable evidence and has to prove a chain of circumstances by establishing every link connecting the said circumstances. A chain of circumstances has to be proved and that chain of circumstances should be strong enough to exclude any possibility pointing towards the innocence of the accused. It is well settled principle of law that when two inferences are cropping up, one in favour of the prosecution and other in favour of the deceased, the later has to be preferred. The learned trial Judge has not acted in view of the settled principle of law in respect of the cases dependent on circumstantial evidence. ( 14 ) THUS, the order of conviction and sentence passed against both Ismile and Nago is not correct, proper and legal. The learned trial Judge has not acted in view of the settled principle of law in respect of the cases dependent on circumstantial evidence. ( 14 ) THUS, the order of conviction and sentence passed against both Ismile and Nago is not correct, proper and legal. The order of sentence which is the result of order of conviction, therefore, is also illegal. This is for the purpose of wiping out the liability of paying the fine which is likely to be put on the shoulder of the legal heirs of the deceased Ismile. ( 15 ) THE order of conviction and sentence recorded in S. T. No. 248/91 is hereby set aside. The appellant Nago stands acquitted. The fine, if any, paid by Ismile and Nago, be refunded. It be given to Nago and if she happens to be a minor, to her guardian. The bail bonds furnished by both the appellants stand also discharged. No interference in the order of disposal of property. Appeal allowed. .