JUDGMENT 1. - This appeal is directed against the order of conviction passed by the learned Sessions Judge, Bhilwara in Sessions Case No. 46/79 convicting the accused under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life. 2. The prosecution story stated briefly is that on 6.3.1979 at about 7.45 am, first information report was lodged that on Balaji has been killed by unknown thieves whose description was also given in the first information report. It is pertinent to note that the first information report was lodged by the accused himself. On the basis of that information, certain investigations were carried and on being suspicious about the accused, the accused was prosecuted. The prosecution examined as many as 13 witnesses in support of its case. On appreciation of the oral and documentary evidence on record, the learned Judge came to the conclusion of guilt as aforesaid. 3. With the assistance of the learned counsel for the accused and the learned Public Prosecutor, we have reappreciated the evidence on record and have scrutinised the documents in light of the submissions made at the bar. 4. The prosecution evidence consisting of 13 witnesses is in our opinion grossly insufficient to warrant conviction of the accused under Section 302 of the Indian Penal Code. RW. 1 Nathu is the person who delivered the first information report Ex.P/1 to the Police Station as aforesaid. The report itself was written by Amar Singh the accused. The evidence of this witness is inconsequential. RW. 2 Nawla was sleeping near about the scene of offence. On hearing noises, he went to the house of Shanker where the accused persons were residing temporarily. He saw two women and a man sitting around the dead body which was later on identified as that of a Bheel called Balaji. The accused was present when this witness went to the scene of offence and was told by the accused that there has been a theft and thereafter this witness sent the first information report to the Police via PW. 1 Nathu. 5. RW. 3 Bhagwati Lal is examined to state that the accused had nothing which could be stolen. The witness is examined probably to prove that the allegations regarding theft as made in the first information report and as made by the accused were false. RW. 4 Dr. 1 Nathu. 5. RW. 3 Bhagwati Lal is examined to state that the accused had nothing which could be stolen. The witness is examined probably to prove that the allegations regarding theft as made in the first information report and as made by the accused were false. RW. 4 Dr. D.K. Ramawat is the person who conducted the post mortem on the dead body and has proved that death was homicidal in nature. He also examined the accused and has justified that the accused had three injuries on his person which could have been caused by axe. It is pertinent to note that the prosecution has no explanation whatever to offer regarding cause and existence of these injuries. 6. RW. 5 Ramlal is the witness to the recovery of an axe at the instance of the accused. The axe had blood stains and Ex.P/7 is recovery memo which was signed by the witness RW. 5. As it will be seen from the testimony of Investigating Officer and as also of other witnesses that the axe was recovered from an abandoned house and the recovery is further inconsequential as it is not proved that the blood on the axe recovered was human blood. 7. RW. 6 Shanker Lal is the person also states that accused Amar Singh and Balaji along with their wives were residing in his house to work as labourers on the construction of his house. He further states that he heard that the death of Balaji occurred. The witness has deposed that he went to the spot on hearing shouts from that place and was told by the accused that the deceased was killed by a thief. He has also witnesses to the recovery of axe. He identifies the axe as one borrowed by accused from him. P.W. 13 is wife of Shanker Lal who corroborates the statement of Shanker Lal that the axe belonged to Shanker Lal and was borrowed by the accused as aforesaid. Even if the axe is recovered from the accused and has blood stains, the whole recovery and stains are inconsequential, unless it is proved that the stains were of human blood. Further taking into consideration the injuries on the person of the accused himself, it was also necessary for the prosecution to further prove that the blood on the axe was not of the group to which the accused belonged. Further taking into consideration the injuries on the person of the accused himself, it was also necessary for the prosecution to further prove that the blood on the axe was not of the group to which the accused belonged. In the absence of such evidence and possibility of the blood stains on the axe being recovered from accused himself cannot be overruled. The vital circumstances as is used by the learned Sessions Judge for convicting the accused thus stands wiped off. 8. RW. 7 Bilasi Ram was also present on the spot and generally corroborates RW. 6 Shanker Lal. He also justifies that the accused told them that Balaji was killed by a thief. RW. 8 Gulab Singh is Station House Officer who investigated the crime and recovered the axe. The recovery of the axe tor the aforesaid reasons is wholly inconsequential. The testimony of this witness is also of no use. 9. RW. 9 Bijli is the wife of the deceased. In her examination-in-chief, she does not implicate the accused. She accepted the killing by thief. She has very candidly canvassed that the statement regarding theft of utensils made by her was of a false statement made at the instance of the accused because the accused was of the opinion that the circumstances in which the killing has occurred may result in the accused being implicated as was factually done. Even if the testimony of this witness is fully accepted, she does not accuse the accused of killing her husband. The fear of false implication as envisaged by the accused unfortunately in this case is well founded and therefore merely because the accused instigated RW. 9 to state a falsehood, it cannot be said that he is a murderer. 10. RW. 10 Nand Kumar, RW. 11 Shantilal and RW. 12 Jamal Mohammed are the persons involved in transmission of the articles for analysis to FSL, Jaipur. No report is forthcoming and therefore, the entire exercise is inconsequential. 11. It is on the basis of this evidence that the learned Judge has chosen to convict the accused under Section 302 of the Indian Penal Code. We are unable to sustain the reasoning given by the learned Judge for the reasons that even it the entire testimony of all the prosecution witness is accepted, the guilt of the accused is not proved beyond reasonable doubt. We are unable to sustain the reasoning given by the learned Judge for the reasons that even it the entire testimony of all the prosecution witness is accepted, the guilt of the accused is not proved beyond reasonable doubt. The perpetration of the crime by the accused is not proved. There is no connection between the death and the involvement of the accused. The conviction was recorded by the learned Sessions Judge solely on the recovery of the axe at the instance of the accused and fact that his statement regarding theft was found to be false. We are unable to accept the sufficiency of these circumstances for upholding the conviction of the accused. In our opinion, benefit of doubt must squarely go to the accused in the present case. 12. In the result, the appeal succeeds and is allowed. The judgment and order of conviction is set-aside. The accused is already on bail, his bail bond stands cancelled.Appeal allowed. *******