JUDGMENT 1. - This is an appeal filed against the judgment dated 13.8.1993 passed by the Additional District & Sessions Judge, Jaipur whereby the appellant had been ordered to be sentenced to life imprisonment under section 302 IPC with a fine of Rs. 2,000/-. He has also been sentenced under section 404 IPC for six months simple imprisonment with a fine of Rs. 50/- in default of sentence. 2. A report was lodged by one Prahlad son of Bhonrilal in Police Station Bassi to the effect that Smt. Nahna wife of Rain Narain (PW 4) was residing in village Shri Ram Nagar, Said Ram Narain had gone to meet the relatives on 5.5.1991. At about 9.00 or 10.00 a.m. PW 1 and other persons found the house of Ram Narain locked from outside. The witness peeped through the door and saw said Nahna in a dead condition and bleeding from her head. She did not respond despite being called. It. was stated in the report that the nephew of the deceased had come in the house last evening and he was missing at that time when the occurrence was noted. They suspected said Kaluram, nephew was involved and thus report Ex. P/1 was recorded. On the report, site plan was prepared, blood- stained earth was collected and sealed, photographs of the deceased were taken vide Ex. P/13 and she was sent for post-mortem which was done on 6.5.1991 at 9.00 a.m. by Dr. Kailash Gupta PW 15. It was stated in the post-mortem report that the death had occurred prior to 24 to 36 hours of the post-mortem. Three lacerated wounds of the size 6" x 3", 4" x 3" and 3' x 2' were found at vital places on head. The cause of the death was stated to be coma because of injury to brain and fractures of skull bone. 3. Ram Narain, the husband of the deceased had also stated after 3 days that one 'Jantar' an golden ornament was also missing which was worne by the deceased at that time and axe was recovered from the house of Rain Narain (PW 4), hidden under the straw on 28.5.1991. Site plan was also prepared vide Ex. P/6. Axe was sealed. FSL report was also procured. As many as 18 prosecution witnesses were examined. Site plan was also prepared vide Ex. P/6. Axe was sealed. FSL report was also procured. As many as 18 prosecution witnesses were examined. There was complete denial on the part of the accused in his statement under section 313 Cr.P.C. 4. There is no eye-witness and the only circumstance on which the conviction has been based by the learned Additional District & Sections Judge, Jaipur is the last seen of the accused at the house of the deceased and recovery of ornament from one Phool Chand. 5. PW 1 is Prahlad who had reported the matter to the police. He stated that Ram Narain husband of the deceased had gone to village Kesupura, village of his nephew and his wife was alone at the home. His nephew was seen at the house of the deceased-Nahna an evening prior to the incident. Because of the reason that the buffalow of Nahna was wailing/crying and he tried to find Smt. Nahna and saw that her house was locked from outside. Many people collected. While peeping through the door, they found that Smt. Nahna was lying dead and was bleeding. Sarpanch was called for and report was sent to the police chauki. Kaluram-accused-appellant was searched for. He could not be found. He was told by his wife that the nephew of Nahna had come last evening. He was also told by his wife that at about 5.00 a.m. when she had gone to milk the cattle, she had heard the noise of some beating and he had seen Kaluram running away from the place. Kaluram had told that he had given the beatings to the buffaloes. Kaluram was asked about Nahna by his wife and his wife was told by him that she had gone to the answer the call of the nature. He had seen injuries on the head as well neck of the deceased. In the cross-examination he says that he had seen Kaluram at about 5.30 p.m. on the last evening at the house of Nahna. The remaining part of the above-said story was told by his wife at about 10.00-11.00 a.m. on the date of occurance. He had gone for doing the labour work at 7.00 a.m. on that date in the morning as he had not gone to the house of Ram Narain. The remaining part of the above-said story was told by his wife at about 10.00-11.00 a.m. on the date of occurance. He had gone for doing the labour work at 7.00 a.m. on that date in the morning as he had not gone to the house of Ram Narain. Kaluram used to visite the house of Ram Narain very oftenly, sometimes once in two months and some once in five months. There was no ill-feelings at all between Kaluram and Ram Narain, nor they ever had any dispute. 6. PW 2 is Ram Swaroop who 'says that he had seen Kaluram sitting at the house of Nahna. On the next day at about 9.00-10.00 a.m., the house of Nahna was found locked and on peeping through the door, it was found that she was lying inside in blood. Though in the cross-examination he says that it was About 4.00 p.m. when he had gone to the house of Nahna, but he also admits that at that time Kalu was not there nor he had seen Kalu in the morning time. He says that there was no ill-feeling between the families of Kalu and Ram Narain. He had not heard any noise of any beating. 7. The star witness in the present case is (PW 3) Smt. Rukmani wife of Prahlad. She says that at about 5.00 a.m. in the morning when she had gone to milk her cattle, she had heard some noise of beating and saw Kaluram. He had asked Kalurarn as to why there was the noise, but she was told by Kaluram that had been beating the buffaloes. She was told that Nahna had gone to answer the call of the nature. At about 11.00-12.00 certain people had collected near the house of Nahna and had found Nahna dead inside. She is the only witness who says that she had seen Kaluram in the morning. She says that the noise which she had heard looked like beating the buffalows. Nobody except her says that such noise was heard. She says that she had never told such incident of hearing the noise to her husband nor to anybody else. She had never heard of any quarrel between Kaluram and Ram Narain. She had not seen Kaluram an evening before the occurrence. She does not know as to when Kalu had left. 8. She says that she had never told such incident of hearing the noise to her husband nor to anybody else. She had never heard of any quarrel between Kaluram and Ram Narain. She had not seen Kaluram an evening before the occurrence. She does not know as to when Kalu had left. 8. PW 4 is Ram Narain, the husband of the deceased. He says that he was told by Kalu that' because of certain ceremony in the house of sister he was called to t village Kesupura and, therefore, he had gone to the village Kesupura. He was told by Japlish and Tudiram that his wife had been done with. He had come back .at about 12 noon and found the police and other people at his house. He found the golden JOLIYAN' missing from.the person of the deceased. He states that Kalu had told him that some 'LAGUN' (matrimonial ceremony) was to be conducted and he was required at his sister's house. 9. PW 5 is the witness to the recovery of 'KULHARI' (Axe). He says that he had signed on the asking of the police. He says that the 'kulhari' was recovered from the cot. He does not know from where the police had brought the 'kulhari'. 10. PW 6 is a witness on the seizure of blood stained clothes of the deceased and the earth collected. 11. PW 10, Smt. Gyarsi only says that when at about 8-10 months back she had heard some noise of beating the buffalow and also seen Kalu in the morning time. She had not seen Kalu an evening before the date of occurrence. 12. PW 12 is Bhanwar Lal who says that one 'JOLIYAN' was recovered from Phool Chand of Sanganer in his presence. He states in the cross-examination that the police was asking from Phool Chand to hand over some gold and Phool Chand was objecting to such action of the police by saying that he had not taken any gold' from any person and that the police was trying to involve the accused. Phool Chand had given one piece of gold to the police. 13. Phool Chand PW 13 is the witness who had returned the 'Jantar' to the police which he is said to 'have purchased from Kaluram for Rs. 700/-. He states that he had kept the 'Jantar' as pawn. Phool Chand had given one piece of gold to the police. 13. Phool Chand PW 13 is the witness who had returned the 'Jantar' to the police which he is said to 'have purchased from Kaluram for Rs. 700/-. He states that he had kept the 'Jantar' as pawn. He states that he had not made any entry in any register. He did not know the accused earlier to that. He had not kept any account of giving or taking of money. He says that he had given some golden piece to the police and not 'Joliyan'. He says that it is first time that he had kept anything as pawn from any person. 14. PW 14 is Nagarmal who states that no 'Joyiyan' was recovered from Phool Chand in his presence. 15. The accused is aged 17 years at the time of recording of statement under section 313 Cr.P.C. whereas the age of the deceased is said to be 47 years. 16. It is the contention of the learned counsel for the appellant that the prosecution has failed to prove the charge beyond any reasonable doubt and the only evidence is that of Rukmani PW 3 which is not believable being un-natural and not reliable. As per the evidence of the prosecution, it is stated that the accused was seen by Rukmani in an evening before at about 4.00- 5.00 p.m. He is sister's son of the husband of the deceased. He is said to have come to call Ram Narain for some matrimonial ceremony to be conducted in regard to the sister of Ram Narain and Rain Narain is said to have left in the same evening. In all probabilities if any matrimonial ceremony was to be conducted in regard to sister of Ram Narain it is un-imaginable that the sister's son i.e. the accused would himself not attend the same in the village Kesupura. It has also come in the evidence that the relations between their families were quite normal and there was no quarrel ever seen or heard between them. It has also come in the evidence that Kaluram used to visit the house of Ram Narain very oftenly sometime after 2 months or so. The house was locked from outside where the deceased was found dead. It has also come in the evidence that Kaluram used to visit the house of Ram Narain very oftenly sometime after 2 months or so. The house was locked from outside where the deceased was found dead. Who had un-locked the house of somebody had broken the lock it has not come up in the evidence nor any prosecution witness nor the police had said as to how they entered into the room, was the lock opened with tie keys or otherwise? Rukmani's story also does not appeal to the mind to the effect that at about 5.00 p.m. he had seen Kalu at the house of Nahna and asked him about the noise she had heard. It is not denied that the house of Rukmani is situated about more than 50 yards away from the house of deceased. Nobody else heard the noise except Rukmanii. She also admits that the noise was of beating the buffaloes. Even Rukmani in the cross-examination says that she had not told about the said noise to her husband Prahlad PW 1 whereas PW 1 Prahlad says otherwise. Rukmani says that she had not seen Kalu an evening before in the village. The facts narrated by PW 1 are totally based on the information he had received from his wife Rukmani PW 3. If the story as such is believed that at about 5.00 a.m. after asking Kalu about the nature of noise having been heard by Rukmani, Kalu had ran away, in all probabilities the human conducted of Rukmani would have been to go to the house of Nahna and to tell her of Kalu running away or to the beating of buffaloes. For 5-6 hours there is complete silence and it is thereafter that either PW 1 or PW 3 or other prosecution witnesses tried to look Nahna even though her house was locked from outside and peeping through the door had found as to what had happened to Nahna. 17. The appellant is being involved only on suspicion that he was seen either in the evening at 4.00 p.m. prior to occurrence at the house of Nahna or the next day by Rukmani. 17. The appellant is being involved only on suspicion that he was seen either in the evening at 4.00 p.m. prior to occurrence at the house of Nahna or the next day by Rukmani. There is no circumstance brought on record even by the husband of the deceased as to why there could be any reason for said Kalu to kill Nahna specially when he was a close relative and also a frequent visitor to the family. 18. The other circumstance which had seen brought on record is the recovery of golden ornament worth Rs. 700/- vide Ex. P/7. This recovery itself is doubtful as there are changing versions of the prosecution in this regard. The witnesses do say that it was only one golden piece which had been recovered as per PW 4 Ram Narain, PW 12 Bhanwar Lal states that one 'Joliyan' was recovered, but in the cross-examination he says that only one piece of gold was given by Phool Chand to the police. Instead of 'Joliyan' one another golden ornament 'Jantar' is said to be an ornament for the purpose of recovery. As regard to the recovery of weapon 'kulhari' (axe) it has not been produced in the trial Court and, therefore, the trial Court rightly has disbelieved about the story of the recovery of weapon 'kulhari'. 19. The fact that other ornaments were also worne by the deceased at the time of taking of photographs, which aspect had also been noticed by the trial Court, there was hardly any necessity for the accused to remove only one ornament and leave the other ornaments. The reasons given by the trial Court in this regard to the effect that their might have happened something and the accused might have been frightened and left out of fear without removing other ornaments is not believable and is only conjectural. 20. In our opinion, the recovery of golden ornaments from one Phool Chand which is said to have been pawned by the accused to him is doubtful and cannot be believed as such. 21. 20. In our opinion, the recovery of golden ornaments from one Phool Chand which is said to have been pawned by the accused to him is doubtful and cannot be believed as such. 21. In the case of Prem Thakur v. State of Punjab, AIR 1983 SC 61 , it was held by the Apex Court that in a case which wholly depends on circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt. In the case of Prem Thakur (supra), five persons were murdered. It was held that the duty is not done by holding someone or the other guilty somehow or other and the evidence showing that the appellant in Prem Thakur's case was present with deceased persons on the evening and he was then missing from there on the next morning held to be not sufficient evidence beyond any shadow of doubt. It was held that the appellant who was last seen in the company of the complainant can be accepted as proved but no inference can arise therefrom that the appellant had committed their murder. 22. The facts of Prem Thakur's case (supra) fairly supports the case of the appellant as well. 23. For the reasons mentioned above and only because of the reason that the accused is said to have been seen either an evening before in the village or in the morning which story itself does not repose any confidence, the prosecution has failed to prove the guilt against the accused-appellant and as such the appellant is entitled to the benefit of doubt and is entitled to acquittal. 24. For the reasons mentioned above, the appeal is allowed. The sentence and conviction of the accused is set-aside and the appellant is ordered to be released forthwith.Appeal allowed. *******