K. D. SHAHI, J. ( 1 ) THE appellant has preferred this appeal against the judgment and order dated May 3, 1990 passed by Shri Jagdish. XIth Additional Sessions Judge, Varanasi whereby appellant Kanhai Banerji has been sentenced to undergo life imprisonment under Section 302 IPC, and five years R. 1 under Section 201 I. P. C. ( 2 ) THE brief facts of the case are that Shri Prashant Kumar Benerji, Assistant Engineer was residing in Flat No. 22. Officer Colony, Bhikharipur, Varanasi. He died in the night of May 12-1988 between 11-12 p. m. A report was lodged by Shri Ajai Das Gupta that son of his Sali (wifes sister) Prashant Kumar Banerji has committed. suicide in the mid night of 12/13-5-1988. He specifically mentioned in his First Information Report that servant of Prashant Kumar Banerji, namely, Kanhai Benerji, the present appellant was present in the house. There after on May 14, 1988, Shrimant Kumar Banerji, brother of the deceased who came from Lucknow, lodged a F. I. R. at police station Lanka, Varanasi with the allegation that his brother was hale and hearty. He was happy because he was due for promotion, he could not have committed suicide. He has been killed by Kanhai Banerji by administering him sufficient wine and by causing him injury and to show it a case of suicide, he has planted the electric wire of hitter in the neck of the deceased. ( 3 ) ON the basis of this F. I. R. the case was investigated as a murder case. ( 4 ) HOWEVER, on the earlier report of Ajai Das Gupta, the police had reached on the spot and prepared the inquest report of the dead body and had shown is as a case of suicide. On the spot Neurobeari injection, Liv-52 tablets, Lor Jepam tablets, Metajol tablets. Ateban teblets and empty discharged bottle of wine were recovered. The recovery memo is Exb. Ka-7. ( 5 ) THE post mortem of the dead body of Prashant Kumar Banerji was conducted on May 13, 1988 at 2. 45 p. m. by Dr. C. B. Tripathi. The doctor has found two ante mortem injuries on the persons of the deceased, which is as under:1. Contusion 5/2cm. x 3cm. over front of left side midline 7 cm above eternal notch and 2 cm. 45 p. m. by Dr. C. B. Tripathi. The doctor has found two ante mortem injuries on the persons of the deceased, which is as under:1. Contusion 5/2cm. x 3cm. over front of left side midline 7 cm above eternal notch and 2 cm. outer to mid line on direction the contusions was upto sub-setunous deep. 2. Contusion 4 cm x 5/2 cm. over front of upper part of left side chest 2-1/2 cm. from mid line and 2-1/2 cm. below eternal notch. The doctor has also found one ligature mark on the neck of the deceased. On internal examination of the dead body the doctor has found pieces of Omlet and alcohol in the stomach of the deceased. The doctor was not sure I about the cause of death of the deceased. Thereafter he preserved Viscera of the deceased. The post mortem report is Exb. Ka-6. On the Viscera examination of the pieces of stomach, kidney and liver the examiner has found alcoholic poison in stomach, liver and kidney. The report dated June 23. 1989 is on the record. ( 6 ) ON the submission of charge sheet, the accused appellant Kanhai Banerji was charged of the charges under Sections 302 and 201 I. P. C. The charges were read over and translated to the accused in Hindi, he pleaded not guilty of the charges and claimed to be tried. ( 7 ) BEFORE discussing into the evidence of the prosecution, it is necessary to refer the site plan, which shows that there were several flats and there was a combined staircase. From the staircase, One has to come in the Angan. Varamdah of the deceased and in this Varamdah three rooms open which were part of the flat of the deceased. Room No. 1 on the western side was that of the deceased room no. 2 on the middle was that of servant Kanhai Baperji and room No. 3 on the eastern side was the drawing room. The dead body was found in room No. 1. ( 8 ) IT is also admitted fact that Kanhai Banerji was servant of the deceased and his age was 68 years. The age of the deceased as is apparent from the post mortem report was about 40 years. He is reported to be hale and hearty by the complainant. The evidence of the prosecution is to be scrutinised in this light. The age of the deceased as is apparent from the post mortem report was about 40 years. He is reported to be hale and hearty by the complainant. The evidence of the prosecution is to be scrutinised in this light. ( 9 ) IT is also to be remembered that there is no eye-witness account. There is only circumstantial evidence. The circumstantial evidence should be of such a nature that it should conclusively fasten the accused with the guilt and there should not be. any suspicion. The chain should be such that it should not lead to any other conclusion than the guilt of the accused. The accused is not to be convicted merely because he was the servant of the deceased and he was alone in the house with the deceased. It can not be presumed that no other person could, have done this crime. ( 10 ) COMING to the evidence of witness P. W. 1. Shrimant Kumar Banerji, who is not an eyewitness but was residing at Lucknow, he has specifically stated that there was divorce case between wife of the deceased and his brother Prashant Kumar Banerji. She was residing at her parents house in Varanasi. There is no evidence on the record that the said wife had come even to weep on the dead body of her husband. The witness came after the death of the victim. He also found some sheets of paper in which tables were quoted and the tablets have been consumed. The witness admitted that Kanhai was his personal servant. He did not state about any motive except that he was informed by Shri Triveni Prasad Srivastava that there was some dispute between Kanhai and the deceased. ( 11 ) AJAI Das Gupta had first lodged the report with regard to suicide but once case was converted into murder he also started giving statement that Prashant Kumar Banerji could not have committed suicide, he has only been killed. He however admitted that since divorce petition was pending in the court and the deceased was disturbed he thought that he might have committed suicide. Shrimant has admitted that the relations between the deceased and his wife were strained. He admitted that divorce case was pending. He further admitted that deceased was addict to wine. He admitted that the deceased was suffering from hysteria. Shrimant has admitted that the relations between the deceased and his wife were strained. He admitted that divorce case was pending. He further admitted that deceased was addict to wine. He admitted that the deceased was suffering from hysteria. Such a person must be used of taking sleeping pills. In this case sleeping pills were available on the spot as well Shrimant Kumar Banerji and Ajai Das Gupta did not tell even a single line what was the motive to Kanhai to have killed the deceased. To the contrary, it has come into the statement that the deceased has used wine. Kanhai was of 68 years age while the deceased was young. Kanhai was not physically strong to kill the victim. He has no reason to kill him because he was getting his bread and livelihood from the deceased. There was no case of any robbery or misappropriation of articles of the house by Kanhai. He could have got nothing by killing the victim rather he had to become helpless by the death of the deceased because there remained none to look after him. Even if it is taken that there was some dispute it can not be said that was -sufficient for the accused to have killed the victim, who was giving him food, cloth and shelter to live. ( 12 ) MERELY because the victim was such a man who might not have committed suicide it cannot be said that this was not a case of suicide. When the mind of a person changes cannot be said. In the condition in which the deceased was residing, there was no option for him except to have committed suicide. There is nothing on record to show that even his mother and father came to see him, even after his death his wife never came to see him. His son also did not appear to have seen him even after his death. His brother was residing at Lucknow. Such a person who has been deserted by the entire family leaving him all alone, taking wines all the time, having all the sleeping drugs by this side residing only at the mercy of his servant, was very much prone to suicide particularly when he was suffering from Hysteria and has become alcoholic. The tendency of such a person after taking sleeping pills and alcohol leans towards suicide only. The tendency of such a person after taking sleeping pills and alcohol leans towards suicide only. ( 13 ) THE post mortem report is not clear to say it as a case of murder. We shall discuss the statement of other witnesses later on. Here it is relevant to see the statement of P. W. 6. Dr. C. B. Tripathi who has done the post mortem of the deceased. He has stated alcohol is itself poison. The injury no. 1 is simple in nature and that was not dangerous to life. He has specifically stated that by this injury death could not have been caused. The doctor was not sure how the death was caused, therefore, he kept Viscera preserved and on the analysis of Viscera, it was found that the victim might have died due to alcoholic poison. The victim was used to wine. He took wine himself. There is nothing on record to show that the appellant administered him wine. Then even if it was not a case of suicide and if the victim died accidentally due to excessive taking of alcohol alongwith sleeping pills etc. , it cannot be said that this was a case of murder that too by the accused appellant Kanhai Banerji. ( 14 ) THE other witness Dinesh Chandra Dixit, P. W. 5 has stated that he had gone and seen the dead body. He immediately phoned the police control room. There is no evidence of such a phone. He only stated that kanhai was present on the spot. Similar is the statement of Ashisht Kumar Bhattacharya P. W. 7, who had come later on. ( 15 ) ONE thing is very much clear that this is the appellant who had called all the neighbours. He had gone to the door of everybody to call him or her after, the death of his master the deceased. He knocked the door of every neighbour. He remained present even at the time of inquest report. He has signed the inquest report as well. He had gone to the door of everybody to call him or her after, the death of his master the deceased. He knocked the door of every neighbour. He remained present even at the time of inquest report. He has signed the inquest report as well. He remain physically present after the death of his master and when the report was lodged by the information he was taken into custody person who is a murderer, will not create evidence against himself by calling the neighbours, by remaining present till the time of preparing the inquest report and by personally sitting at the door of the deceased, he shall immediately try to run away with valuables of the victim. ( 16 ) THE entire arguments advanced by the learned counsel for the State and also by which the learned Trial Judge appears to have been saved is that there was a post mortem injury at the person of the deceased and it was deliberately caused to make it a suicide case nobody else was there except Kanhai and it is he who could have done it. It is to be remembered that the death is said to be taken place between 11-12 p. m. by that time everybody sleeps. The appellant is said to be old man. He is also said to be used to wine. If after taking wine and his meals the appellant slept in his room and if anybody came in the room of the victim and caused this post mortem in jury it can not be said that the death was caused by the appellant only. ( 17 ) SUSPICION howsoever strong cannot form basis of conviction. Nobody said that this is the appellant who had administered wine or sleeping pills to the victim. Nobody did say that any injury was caused by the appellant. Nobody could see the appellant causing the murder. Besides there are other circumstances which, show that the appellant could not have committed this murder which are: (1) The appellant was an old man, in arid was in the service of the deceased only for his livelihood. He must be fully knowing that if the victim is dead he will loose his livelihood. (2) He was servant of the deceased for the last four or five years. There is mere allegation that he has been removed from, service twice. He must be fully knowing that if the victim is dead he will loose his livelihood. (2) He was servant of the deceased for the last four or five years. There is mere allegation that he has been removed from, service twice. There is nothing on record to show that the relationship between them was strange; No motive whatsoever for the murder has been suggested. (3) He remained present throughout on the spot even after the death of the victim he did, not try to run away from the spot to save himself, from legal punishment. Nobody did know he was resident of what place. He could have run away very easily and could not have been apprehended even by the police. (4) It is the appellant who called for every neighbour in the said night. He went to the doors of the relations and neighbours of the deceased to inform that the victim has died. (5) Merely because the victim did not commit suicide and even if he has been murdered it can not be said that it is appellant alone who could have killed him if a wire had been tied with the neck of the victim and the victim had seen it for the first time he will definitely tell the neighbours that the victim has committed suicide by putting electric wire. (6) The appellant is also witness of inquest report. Had he been a killer he would not have remained there to sign the inquest report. Even after the post mortem till he was taken into custody he remained at the flat. (7) P. W. 7 Ashish Kumar Bhattacharya has admitted that the appellant was the domestic servant and was very close. He has further stated that Kanhai was residing there as a family member and used to serve the deceased. He did not know whether Kanhai has got any father mother son or not. Such a servant shall never kill his master. (8) It was argued that the neighbours heard the noise of fall of something but that alone would not indicate that the appellant had beaten the victim. ( 18 ) WE have gone through the entire evidence on record and the chain and evidence of circumstances as such is so week and poor that it does not lead to any conclusion. ( 18 ) WE have gone through the entire evidence on record and the chain and evidence of circumstances as such is so week and poor that it does not lead to any conclusion. The medical and oral evidence is not even able to prove that this was a case of murder or suicide atleast murder has not been proved. The doctor has specifically stated that the injuries were not sufficient to cause death of the victim. There was no motive for the appellant to kill the victim and as stated above he cannot be fastened with the guilt merely because he was the servant of the victim and was present there in the night when the victim died. The evidence on record is too week to find the appellant guilty. The learned Sessions Judge has convicted the appellant merely on the suspicion that the servant was there this may, not be a case of suicide who else could have killed the victim if not the appellant. But it was the duty of the prosecution to prove that this was the appellant and the appellant alone who could have killed the victim and unless it is proved that the appellant killed the victim, it cannot be said that the guilt was proved against him. We do not agree with the judgment and the findings recorded by the learned Sessions Judge and our considered opinion is that none of the charges could be proved against the appellant and he is entitled to be acquitted of the charges of which he faced the trial. ( 19 ) THE appeal is allowed. The judgment and order dated May 3. 1990 passed by the learned Sessions Judge is hereby set aside. Appellant Kanhai Banerji is found not guilty of the charges under Sections 302 and 201 I. P. C. and accordingly he is acquitted of the charges. ( 20 ) IT is unfortunate that without sufficient evidence, the appellant has remained into the custody for such a long time. He is in custody even today. He shall be released forthwith, if no longer required in connection with any other case. ( 21 ) OFFICE is directed to send a copy of this order to Chief Judicial Magistrate. Varanasi and to the concerned jail authorities immediately for compliance of this order. He is in custody even today. He shall be released forthwith, if no longer required in connection with any other case. ( 21 ) OFFICE is directed to send a copy of this order to Chief Judicial Magistrate. Varanasi and to the concerned jail authorities immediately for compliance of this order. Shri Kamal Krishna, Advocate was appointed amicus curies to defend the appellant in this Court. He will get a fee of Rs. 2,100/ - (rupees two thousand one hundred) for prosecuting the appeal on behalf of the appellant. Appeal allowed. .