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2000 DIGILAW 148 (HP)

RANGI LAL v. STATE OF H. P.

2000-06-27

K.C.SOOD, KAMLESH SHARMA

body2000
JUDGMENT Kuldip Chand Sood, J.—Gujja, deceased, was married to Rangi Lal, accused herein, about 3 or 4 years prior to her homicidal death. A daughter was born out of the wedlock. Rangi Lal was working in a slate quary at village Shiva Rodana. This quarry is located at a distance of about 1 or 2 kms. from the house of Rangi Lal in village Jijla. Sunder Singh (PW 1) is father of deceased Gujja Devi. 2. On the morning of January 8, 1997, dead body of Gujja Devi was found lying in the field at a distance of about 200 feet from the house of accused Rangi Lal. The dead body was almost unidentifiable. The flesh from the face of the deceased had been eaten away by animal(s). A blood stained—khind (Ext. M 4) was also found lying outside the house of accused. Accused Rangi Lal was found missing from his house when body of Gujja Devi was discovered. Sunder Singh father of deceased Gujja Devi (PW 1) was informed about the incident. Sunder.Singh identified the dead body to be that of his daughter Gujja Devi from the clothes and the remaining part of the body. Sh. Pati Ram (DW 1), father of the accused, sent for his son Mohi Ram (PW 7). Several persons from the village including Shri Jangi Ram (PW 5), UP-Pradhan of the Panchayat collected at the spot. On the advice of Shri Jangi Ram it was decided to inform the Police. Mohi Ram (PW7) accompanied by Jangi Ram-Up Pradhan of the Panchayat and Shuppa Ram, Member of the Panchayat, came to Police Station, Paonta Sahib, and lodged First Information Report in terms of Ext. P14. The FIR was recorded by S.H.O. Inspector O.P. Yadav (PW 15). 3. Inspector O.P. Yadav came to spot and sent dead body of Gujja Devi for post-mortem after preparation of Inquest Report. Site plan of the place of occurrence (Ext. P22) was prepared. Blood stained earth was taken from the field where dead body was lying. Blood stained khind (Ext. M4), cap (Ext. M5) and stone (Ext. M6) lying between the house of the accused and the place where dead body was found, were also taken into possession. Some gun pellets were also recovered from the kitchen of the accused. Post-mortem on the dead body was conducted by a team of Doctors consisting of Dr. Sanjiv Sehgal (PW9) and Dr. M4), cap (Ext. M5) and stone (Ext. M6) lying between the house of the accused and the place where dead body was found, were also taken into possession. Some gun pellets were also recovered from the kitchen of the accused. Post-mortem on the dead body was conducted by a team of Doctors consisting of Dr. Sanjiv Sehgal (PW9) and Dr. Suresh Pandey on January 9, 1997 .at 4.15 p.m. The Doctors found the following injuries on the dead body : (a) Loss of skin muscles of neck 3 cm. above the lower neck line circumfrentially; / (b) blackish discoloration of the skin on the left anterior side of remaining skin of neck; (c) entire facial skin, muscles, scalp and hair were absent exposing the underlying skull and facial bones; (d) Fracture of left ramus of mandible with loss of angle of left mandible. (e) left eye ball was missing; (f) Cervical spine fractured at level C-3; (g) there were two cut incised wounds upper 1/ 3rd of right arm anteriority. 5. The Doctors were unable to ascertain the cause of death and therefore, sent the body to Indira Gandhi Medical College, Shimla, for opinion of the Forensic Expert. Both these Doctors did not examine any internal organ of the dead body. The Doctors were not sure if the injuries noticed on the face of skull of Gujja Devi were caused by some wild animal or some other reason. 6. The dead body was ultimately examined by Dr. Suresh Sankhyan (PW 16), then Associate Professor in the Forensic-Medicine Department, Indira Gandhi Medical College, Shimla on January 10, 1997, Dr. Sankhyan observed: (i) (a) The skin, s/c tissues, muscles, neck certilages under the neck stcutures were completely missing upto supra-stern ad notch; (b) The skin part around injury on left side was, above clavicle, contused, parchmentised and black (which was preserved and sent for chemical analysis). The skin on the left side of nape of neck showed gnawing and clew marks. This injury was PM in nature. Muscles and ligaments around cervical vertebrae were confused; (c) There was fracture of Arch & body of 3rd C. Vrtebra; (d) No fire-arm either pallet or bullet could be recovered or found even after thorough examination of the neck, C-vertibrae or face with eye sockets; (e) There was anti-mortem fracture of left mandible. The coronoid and condylar process of mandible was missing. The coronoid and condylar process of mandible was missing. (f) Two anti-mortem incised looking wounds on right arm in antero madial aspect were found; / (g) Two injuries 6.5 cm x 3 cm and 3 cm x 2 cm were found. These two injuries were separated by a tag of skin. The margins of these injuries were confused and showed fire irregular margins with magnifying glass. There was Ho burning; blackening or tattoing of the margin. These injuries, according to Dr. Sankhyan, could have been caused by partially blunt weapon; (h) multiple anti mortem small abrasions were found on the back of the buttock, both lower extremities of shoulder bladesand dorsum of both the hands. Dorsum of both the hands were found blackened and soiled with black soil. These injuries, according to Dr. Sankhyan, were suggestive of struggle; (ii) Both the lungs were grossly congested. Both bronchir were traced for any projectile (pallets/bullets) but nothing was found. 7. Dr. Sankhyan, after going through the report of Chemical Examiner opined that the death was caused due to asphxia hastened by haemorrahagic shock, as a result of fire-arm injury to the neck structures. In other words, the death of Smt. Gujja Devi took place due to fire arm injury on the neck of the deceased. 8. The case of the prosecution appears to be that Smt. Gujja Devi was killed by her husband accused Rangi Lal by gun shot fired from the gun Ext. (Ml4) which was discovered at the instance of the accused. 9. The accused was tried by the learned Sessions Judge, Sirmaur District at Nahan in Sessions Trial No. 17-N/17 of 1997 and convicted vide his impugned judgment dated March 25, 1998 for offence punishable under Section 302 of the Indian Penal Code. The accused has been sentenced to suffer rigorous imprisonment for life and to pay a fine of rupees 1,000/-. In case of default in the payment of fine, the accused is to suffer further rigorous imprisonment for one month. 10. Feeling dissatisfied, accused Rangi Lal has filed this appeal from Central Jail, Nahan where he is presently undergoing the sentence. At the request of the accused, Sbri Rajiv Sharma, Advocate, was appointed as Counsel for the accused/appellant. 11. We have heard Mr. Rajiv Sharma, learned Counsel for the appellant and Mr. B.P. Sharma, learned Additional Advocate General and gone through the record. 12. At the request of the accused, Sbri Rajiv Sharma, Advocate, was appointed as Counsel for the accused/appellant. 11. We have heard Mr. Rajiv Sharma, learned Counsel for the appellant and Mr. B.P. Sharma, learned Additional Advocate General and gone through the record. 12. It may be stated at the outset that there is no direct evidence. The prosecution case entirely rests on the circumstantial evidence. There is no eye witness. The circumstances on which the prosecution rely and accused has been convicted by the learned Trial Judge are: (i) Rangi Lal was not happy with his wife. (ii) Accused was found missing from the house in the morning of January 8, 1997 when dead body of Gujja Devi was discovered lying in the fields. (iii) Accused Rangi Lal placed the dead body of Gujja Devi in the fields. (iv) The weapon of offence, gun (Ext. M14) was discovered at the instance of the accused under Section 27 of the Evidence Act. (v) Accused gave custody of his six months old daughter to Bhago Devi (PW 3) on the night when Gujja Devi was killed. 13. We are conscious that when a conviction is sought, particularly for an offence so henious as murder, on the basis of circumstantial evidence, then prosecution must prove those circumstances with cogent and unimpeachable evidence. The following conditions, as observed by Their Lordships of the Apex Court in Sharad Bidhi Chand Sardeca v. State of Maharashtra (AIR 1984 S.C. 1622), must be fulfilled before a case against an accused based on circumstantial evidence can be said to be established: (a) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (b) the facts so established should be consistent only with the hypothesis of the guilt of accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (c) the circumstances should be of a conclusive nature and tendency; (d) they shuld exclude every possible hypothesis except the one to be proved; and (e) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 14. 14. We may now examine the evidence on record to see whether or not the circumstances relied upon are established. If established, whether such circumstance(s) are consistent with the guilt of the accused and are of conclusive nature and tendency. 15. It may be noticed at this stage that there is no dispute that the dead body which was discovered in the field was that of Gujja Devi which had been mauled by some animal. The dead body was, however, identified by her father Shri Sunder Singh (PW 1), Khazan Singh (PW 6) and Mohi Ram (PW 7) close relatives of the deceased. (I) Accused being not happy with his wife: 16. Accused Rangi Lal was married to Gujja Devi, as noticed earlier, three or four years prior to the occurrence. To prove the circumstance, the prosecution has examined Rangi Lal (PW 2). This Rangi Lal was working alongwith the accused at Shiva Rodana Slate Quary. It is the evidence of Rangi Lal (PW 2) that Rangi Lal accused was absent from the quary for 4/5 days in January, 1997. On his return, Rangi Lal accused told this witness that he had gone to the house of his father-in-law. He also told that he is being troubled by his wife as she does not obey him. This PW advised the accused to marry with some other person on which accused told him that he may have to do so one day. It is the case of the prosecution that accused Rangi Lal suspected his wife having illicit relations with some person but Rangi Lal (PW 2) does not say so. However, he accepts the suggestion of the Public Prosecutor, in his cross-examination, that he had stated to the Police that Rangi Lal had told him about his wife having illicit relations with some person in her fathers village. This conversation took place about three days prior to the death of Gujja Devi. At the most, what can be concluded from the evidence is that the accused did not have cordial relations with his wife and he was contemplating second marriage, or, in other words, accused was not happy with his wife and therefore may have motive to kill his wife. At the most, what can be concluded from the evidence is that the accused did not have cordial relations with his wife and he was contemplating second marriage, or, in other words, accused was not happy with his wife and therefore may have motive to kill his wife. This circumstance does raise suspicion against the accused but cannot be said to be conclusive in nature and tendency to show that it is the accused and accused alone who killed his wife Gujja Devi. (II) Accused was found missing from his house in the morning when dead body of Gujja Devi was discovered in the fields. 17. Learned Trial Court has observed that though the accused was present in his house on the night when Gujja Devi was killed but thereafter left the house and was not found when dead body of Gujja Devi was found lying in the fields. According to learned Sessions Judge, this is a material circumstances which may indicate guilt of the accused. 18. Now it is the evidence of Mohi Ram (PW7) that on January 8, 1997, at about 4.30 a.m., he came to know about the discovery of dead body of Gujja Devi. Thereafter, he came to the house of accused Rangi Lal. Rangi Lal or his wife were not available in the room. The child was also missing. Inspector O.P. Yadav (PW 15), the Investigating Officer, also states that accused was not available when he reached the place of occurrence and was arrested on January 19, 1997 when he was brought £0 Police Station, Paonta Sahib by some constables. The accused in his statement under Section 31-3- .of the Code of Criminal Procedure explains that he had gone to Dehradun on January 13, 1997 and returned back on January 18, 1997 and thereafter was arrested by the Police. It, thus, is established that accused was missing from the house when dead body of Gujja Devi, his wife, was found lying in a field. This circumstance, though proved, cannot1 be said to be of conclusive nature to exclude the innocence of the accused. 19. Learned Additional Advocate General submits that the burden is on the accused to prove alibi that he was in Dehradun when Gujja Devi was murdered. 20. It is true that the burden of proving alibi rests on the accused setting up such defence. 19. Learned Additional Advocate General submits that the burden is on the accused to prove alibi that he was in Dehradun when Gujja Devi was murdered. 20. It is true that the burden of proving alibi rests on the accused setting up such defence. Nonetheless, the burden of proving the case against the accused remains on the prosecution irrespective of the fact as to whether or not the accused had made out a plausible defence. The plea of alibi means that accused was not at the place of occurrence when offence took place. It is basic law that in a criminal case, the burden is on the prosecution to prove that the accused was present at the scene and participated in the crime. This burden never shifts or lessened by the fact that the accused has adopted defence of alibi. The plea of the accused, in such cases, is required to be considered when the burden has been fully discharged by the prosecution by leading satisfactory evidence. It is only when prosecution succeeds in discharging its burden that accused, who sets up plea of alibi, is required to prove his absence from the scene of crime so as to exclude the possibility of his presence of the place of occurrence at the relevant time. Reference may be made to Gurcharan Singh and another v. State of Punjab, AIR 1956 SC 460 and Binay Kumar Singh v. State of Bihar, (1997) 1 Supreme Court Cases 283. We have already pointed out that mere absence of the accused immediately after the occurrence in itself does not unerrignly point towards the guilt of the accused. (III) Accused removed the dead body of Gujja Devi front his house and placed it in the field. 21. It is the case of the prosecution that the accused after having killed his wife Gujja Devi, by gun shot, called Khazan Singh (PW 6), his collateral, and sought his help in disposing of the dead body of Gujja Devi. It is the further case of the prosecution that accused with the help of Khazan Singh, removed the dead body from his "obera" and placed it in the field. It is the evidence of Khazan Singh that on the night of January 7, 1997, at about mid-night, he heard some sound which, woke him up. He came to his court yard to urinate. It is the evidence of Khazan Singh that on the night of January 7, 1997, at about mid-night, he heard some sound which, woke him up. He came to his court yard to urinate. Rangi Lal accused called him from outside his room. Khazan Singh told him that he would come later as he was urinating. But, Rangi Lal insisted that he should come immediately. He went to the room of Rangi Lal. It was totally dark. Rangi Lal took him to his "obera" (cow shed) where he used to reside and was also having chuhla for cooking purposes. He switched on the light. In the light, Khazan Singh saw some blood on the bedding and the guilt burning from one side. A child was also lying on the bed. Khazan Singh extinguished the fire and enquired from Rangi Lal about the blood. Rangi Lal kept quiet but opened the door of "obera" and showed him the dead body of Gujja Devi which was lying at some distance. The dead body was stained with blood. Accused closed the door, switched off the light, picked up the child and went away. It is the further evidence of Khazan Singh that after some time, the accused returned back and asked him to assist in removing the dead body. Khazan Singh refused on which the accused threatened him. It is the further evidence of Khazan Singh that the accused dragged the dead body of Gujja Devi to the fields in the torch light shown by Khazan Singh. After placing the dead body in the field, both of them returned back to obera. Khazan Singh then returned to his house and slept in his room. According to him, he did not inform any person about the incident. It is his evidence that next day morning, Shuppa Ram woke him and he was shown the dead body of Gujja Devi which was badly mauled. Yet, this witness keep quite and does not say a word about the happening of the previous night. Khazan Singh is the star witness of the prosecution. In. fact, entire prosecution case rests on his evidence. Learned Sessions Judge has implicitly relied on the evidence of Khazan Singh. 22. Mr. Rajiv Sharrna submits that evidence of Khazan Singh (PW 6) is tainted and cannot be relied upon to convict the accused. Evidence of Khazan Singh, admittedly, is that of accpmplice. In. fact, entire prosecution case rests on his evidence. Learned Sessions Judge has implicitly relied on the evidence of Khazan Singh. 22. Mr. Rajiv Sharrna submits that evidence of Khazan Singh (PW 6) is tainted and cannot be relied upon to convict the accused. Evidence of Khazan Singh, admittedly, is that of accpmplice. It is now well settled that an accomplice is competent witness but it is unsafe to convict an accused on the testimony of accomplice alone without corroboration in all material particulars. In the present case, not only evidence of Khazan Singh lacks corroboration but, at the same time, it does not inspire confidence. The entire conduct of Khazan Singh is un-natural. It is the evidence of Khazan Singh that his two brothers, their wives and his father were also sleeping in the same house, yet he did not inform anyone of them about the death of Gujja Devi and the accused having removed her dead body to the fields. In fact, he calmly goes to his house and sleeps to be awakened next day morning by Shuppa Ram who informed him about the discovery of the dead body of Gujja Devi in the fields. Even at this point of time he does not say a word about the happening of previous night which is incredible. It is his evidence that he stated about this fact for the first time to the Police on the evening of January -8ft 1997 though the dead body was discovered early in the morning on the same day. In his own words, "my two brothers, their wives and my father were also sleeping in the same house. I do not know i£ they had Jieard any sound or not that night. I did not inform my parents, brothers, Bhabis or any one else regarding my seeing the; dead body of Gujja Devi and keeping of it by Rangi Lal in the fields in.that night. This fact was stated by me for the first time on the arrivail of the Police on the evening of January 8, 1997." This conduct is totally un-natural. Khazan Singh would have us believe that he was woken in the night by gun shot sound and he came to the court-yard. Had he really heard sound of gun shot, he would have woken up his parents and brothers and would have informed them about this. Khazan Singh would have us believe that he was woken in the night by gun shot sound and he came to the court-yard. Had he really heard sound of gun shot, he would have woken up his parents and brothers and would have informed them about this. The fact is, Khazan Singh did not disclose the incident to any one till January 9, 1997 when his statement was recorded by the police on January 9, 1997 as is apparent from the statemerit of Investigating Officer, Inspector O.P. Yadav (PW 15). According to this witness, he did not interrogate Khazan Singh on January 8, 1997 because it was night and he examined him only on January 9, 1997. In; such a situation, the evidence of Khazan Singh cannot be accepted 1 Khazan Singh admits that he was threatened by the Police that in the event he does not make a statement before the Court (under Section 164 of the Code of Criminal Procedure), the police would implicate him in the murder of Gujja Devi. He admits that police had told him not to disclose the Magistrate that he was threatened by the Police. The possibility of Khazan Singh having made a false statement to save himself from prosecution, in the circumstances of this case, cannot be entirely ruled out. There is yet another reason to discard his testimony. It is his evidence that he remained with the Police and was interrogated on January 8, 1997, yet, he did not disclose about the incident to the Police on that day. 23. It is true that under Section 133 of the Evidence Act, an accomplice is a competent witness and conviction can be maintained on testimony of an accomplice but Section 133 has to be read with illustration to sub-section (b) of Section 114 of the Act which provides that an accomplice is unworthy of credit unless he is corroborated in material particulars. In other words, illustration (b) to Section 114 cautions that evidence of an accomplice should not be accepted unless corroborated in material particulars. In Ram Narain v. State of Rajasthan, (1973) 3 Supreme Court Cases 805, Their Lordships construing the provisions of Section 133 and illustration (b) to Section 114 of the Evidence Act observed : "The statute thus permits the conviction of an accused person on the basis of uncorroborated testimony of an accomplice but the rules of. In Ram Narain v. State of Rajasthan, (1973) 3 Supreme Court Cases 805, Their Lordships construing the provisions of Section 133 and illustration (b) to Section 114 of the Evidence Act observed : "The statute thus permits the conviction of an accused person on the basis of uncorroborated testimony of an accomplice but the rules of. prudence embodied in illustration (b) of Sectiorf 114 strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. This rule of caution is traceable to the fact that an accomplice witness from the very nature of his position is a suspect. This rule is guided by long human experience and has become a rule of prudence of general application. The Court therefore, consider it prudent to look for corroboration in material particulars for sustaining the conviction of an accused person." 24. The Apex Court in Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 Supreme Court 599, construing Section 133 and illustration (b) to Section 114 of the Evidence Act observed: "The combined effect of Sections 133 and 114, illustration (b) may be stated as follows: According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on th6 testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such witness without corroboration in material particulars." 25. The Apex Court again in Suresh Chandra Bahri v. State of Bihar, AIR 1994 Supreme Court 2420, noticed: "It is now well settled that except in circumstances of special nature it is the duty of the Court to raise the presumption in Section 114 illustration (b) and the Legislature requires that the Courts should make the natural presumption in that Section." 26. Admittedly, there is nothing on the record to lend corroboration to the testimony of Khazan Singh. His testimony is un-acceptable more so, when relations between Khazan Singh and accused were strained as stated by Moti Ram (PW 7) who categorically states "it is also correct that Khazan Singh is not on talking terms with Rangi Lal.” 27. Admittedly, there is nothing on the record to lend corroboration to the testimony of Khazan Singh. His testimony is un-acceptable more so, when relations between Khazan Singh and accused were strained as stated by Moti Ram (PW 7) who categorically states "it is also correct that Khazan Singh is not on talking terms with Rangi Lal.” 27. This apart, there is undisputed testimony of Moni Ram that Khazan Singh was kept by the Police at Paonta Sahib for three days and was suspect in the murder of Gujja Devi, which renders the evidence of Khazan Singh unworthy of any credit. 28. The prosecution in the circumstances discussed above has not been able to establish that Rangi Lal removed the dead body of Gujja Devi from his house. (IV) Recovery of weapon of offence at the instance of the accused. 29. It is the case of the prosecution, the weapon of offence, Gun (Ext. Ml4), was recovered pursuant to the disclosure statement made by the accused ijnder Section 27 of the Evidence Act. It is the evidence of Investigating Officer Inspector O.P. Yadav (PW 15) that on January 20, 1997, Rangi Lal accused made a disclosure statement in the presence of PWs Abdul Satar (PW 11) and Khurshid Ahmed (PW 14) that he had kept one Muzzle Loading Single Barrel Gun at a place on a Tibba above Bhored Khud after concealing it in bushes. This disclosure statement was recorded in terms of Memo Ext. PI9 which was signed apart from the accused by witness Abdul Satar and Khurshid Ahmed. Pursuant to this disclosure statement, the accused led the Police Party, including PWs Mohi Ram and Jaggi Ram to a hill top and got recovered gun Ext. M14 which was lying concealed in the bushes. 30. Now the prosecution has failed to prove the discovery of Gun (Ext. Ml4) pursuant to the disclosure statement of accused. It is the evidence of Abdul Satar (PW 11) that he had gone to Police Station Paonta Sahib on January 19, 1997 and he was asked by the Police to come on the next day, i.e. January 20, 1997. On the next day, on interrogation by the Police, accused disclosed about the existence of Gun on the hill top. It is the evidence of Abdul Satar (PW 11) that he had gone to Police Station Paonta Sahib on January 19, 1997 and he was asked by the Police to come on the next day, i.e. January 20, 1997. On the next day, on interrogation by the Police, accused disclosed about the existence of Gun on the hill top. In cross-examination, this witness admits that Rangi Lal did not make the statement regarding the existence of the gun on the hill top in his presence and that he signed the Memo Ex. P19 on the information supplied by S.H.O. O.P. Yadav that Rangi Lal had orally stated about the gun at the hill top. Khurshid Ahmed (PW 14) though supports the prosecution version that accused had made a disclosure statement that he had concealed the gun on the hill top but admits in his cross-examination that he had gone to Police Station on January 19, 1997 to get a person released from police custody and the S.H.O. had asked him to come again on January 20, 1997, though such person was released on January 19, 1997 itself. It is not expLalned why S.H.O. had asked both Abdul Satar and Khurshid Ahmed to visit the police station on January 20, 1997 when these two persons had no work with the Police. Khurshid Ahmed also admits that when he reached the Police Station on January 20, 1997, Police was already recording the statement of Rangi Lal. Thus, the disclosure statement is not proved. In any event, merely the statement of the accused to the effect that there exists a Gun on a hill top will not be of any significance. 31. So far the discovery of the Gun, is concerned, (PW 7) who is witness to the discovery is categorical that Jangi Ram accused and S.H.O. did not go to the hill top from where the gun was recovered. Evident, as it is, gun was not recovered at the instance of the accused as the prosecution would have us believe.. 32. In any event, gun Ext. M14 is not proved to be weapon of offence. Therefore, the recovery of this gun has no significance. Neither the gun nor the pallets, which were allegedly recovered from the "obera" of accused, were sent to the ballestic expert. Gun Ext.M14 is not connected with the killing of Gujja Devi. 32. In any event, gun Ext. M14 is not proved to be weapon of offence. Therefore, the recovery of this gun has no significance. Neither the gun nor the pallets, which were allegedly recovered from the "obera" of accused, were sent to the ballestic expert. Gun Ext.M14 is not connected with the killing of Gujja Devi. It cannot be said that the gun shot Wound found on the neck of Gujja Devi was caused by gun (Ext. M14). The prosecution has, thus, failed to prove either the recovery of the gun (Ext. Ml4) at the instance of the accused or it being a weapon of offence. (V) Accused handed over custody of his six months old daughter to Bhago Devi (PW 3) on the night when Gujja Devi was killed. 33. Mr. B.P. Sharma, learned Additional Advocate General contends that the fact that accused, on the fateful night, when Gujja Devi was killed, handed over the custody of his six months old daughter to Bhago, is indicative of the complicity of the accused in the murder of Gujja Devi. Shri Sharma argues that if Gujja Devi had not been killed by him, there was no occasion for the accused to have woken up Bhago Devi (PW 3) in the mid of the night to hand over the custody of his child. It is the evidence of Bhago Devi that Rangi Lal had given his child to her. Learned trial Judge had noticed that Bhago Devi was a reluctant witness. But fact remains that Bhago Devi does not say anything more than that accused Rangi Lal had given her the child. She does not explain when, where and under what circumstances, the child was handed over to her by Rangi Lal. The witness was declared hostile and has been cross examined by the Public Prosecutor. In cross-examination, she does admit that she was awakened by Rangi Lal when he handed over the custody of the child to her but again even under rigorous cross-examination, she does not say that the custody of the child was handed over to her on the night preceeding the discovery of dead body of Gujja Devi in the field. Learned trial Judge erred in interpreting the testimony of this witness to mean that accused handed over the custody of his child to this witness on the night when Gujja Devi was done to death. Learned trial Judge erred in interpreting the testimony of this witness to mean that accused handed over the custody of his child to this witness on the night when Gujja Devi was done to death. Learned trial Judge surmised that the accused handed over the custody of the child to Bhago Devi so that his child is brought up by her. Indeed, learned trial Judge has misread the evidence. The child, admits Bhago Devi in the cross examination by the Public Prosecutor, was handed over to one Beso Devi in the very next morning. Learned Additional Advocate General then refers to the statement of Khazan Singh (PW 6) to the effect that the accused after showing the dead body of Gujja Devi, switched off the light, picked up the child and went away to return back after some time and submits that evidence of Bhago Devi read in conjunction with the evidence of Khazan Singh proves the prosecution case that accused after showing the dead body of his wife to Khazan Singh, picked up the child and handed over the custody to Bhago Devi on the night of occurrence. 34. We have already noticed that uncorroborated evidence of Khazan Singh being that of accomplice is tainted and not worthy of any credit. It is significant to note that Khazan Singh did not tell to the Police in his statement under Section 161, Cr.P.C, that accused has picked up the child and left the "obera" t£> return back after some time. This, infact, is an improvement made by Jiim in his testimony. Attention of Khazan Singh was drawn to his earlier statement Exhibit Dl recorded by the Police under Section 161 of the Code of Criminal Procedure where it is not so recorded. Khazan Singh has failed to expLaln this omission in his earlier statement. We hardly need to emphasise that a witness who makes different statement at different times, has no regard for truth and the Court, without corroboration, would not act on the testimony of such witness (See: Karuppanna Thevar and others v. State of Tamil Nadu, (1976) 1 Supreme Court Cases 31. 35. We may also notice that prosecution having cross-examined Bhago Devi (PW 3) has discredited the testimony of Bhago Devi. 35. We may also notice that prosecution having cross-examined Bhago Devi (PW 3) has discredited the testimony of Bhago Devi. Therefore, the admission of the suggestion of prosecution by Bhago Devi that she was sleeping and Rangi Lal woke her up to hand over the custody of his child to her cannot be accepted. It is settled law that a witness is totally discredited if cross-examined by the Prosecution who has called such witness. The Apex Court in Jagir Singh v. The State (Delhi), (1975) SCC 562 observed : "It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony." 36. We have no hesitation to conclude that the prosecution has failed to establish that accused Rangi Lal handed over the custody of his six months old daughter to Bhago Devi (PW 3) on the night when Gujja Devi was killed. 37. The only circtimstances which prosecution has been able to establish are: (a) Accused was not happy with his wife; (b) He was missing from his house on the morning of January 8, 1997 when dead body of Gujja Devi was discovered lying in the field. 38. These two circumstances do not complete the chain to prove conclusively that it was the accused and accused alone who in all human probability, killed Gujja Devi. The circumstances may raise suspicion against the accused but suspicion is no substitute for proof. The two circumstances are neither conclusive in nature nor consistent only with the hypothesis of guilt of the accused, particularly, when Gun Ext. M14 allegedly recovered at the instance of the accused is not proved to be the weapon of offence. The case against the accused may be true but as is often said, there is a long distance between amay be true" and "must be true". In the present case, there is a reasonable doubt about the guilt of the accused and benefit of same must go to him. In Hanumant v. State of M.P., (1952) SCR 1091, it was observed : "In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. In the present case, there is a reasonable doubt about the guilt of the accused and benefit of same must go to him. In Hanumant v. State of M.P., (1952) SCR 1091, it was observed : "In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. It is therefore right to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 39. The Apex Court again in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, quoting with approval the observations in Hanumant v. State of M.P. supra, observed in para 9 of the judgment: "9. It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion howsoever strong cannot be allowed to take the place of proof. /The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused." 40. In Narsinbhai Hari Bhai Prajapati etc. v. Chhatrasinh and others, 1997 Cr.L.J. 1144, motive to commit crime was proved. Blood stained clothes and Dhari were also recovered from the house of the accused but these circumstances were found by the Apex Court, wholly insufficient to sustain conviction for the charge of murder. 41. In Narsinbhai Hari Bhai Prajapati etc. v. Chhatrasinh and others, 1997 Cr.L.J. 1144, motive to commit crime was proved. Blood stained clothes and Dhari were also recovered from the house of the accused but these circumstances were found by the Apex Court, wholly insufficient to sustain conviction for the charge of murder. 41. No other point is urged before us. 42. In result the appeal is accepted, prosecution is dismissed and conviction of the accused is set aside. He be released forthwith, if not required in any other case. The fine, if realized, be refunded to him. The case property shall be dealt with in terms of the orders of learned Sessions Judge. Appeal allowed.