JUDGMENT 1. - The appellant has been convicted of causing death of his wife Mst. Kali in the night between 30th March and 31st March, 1996 with the aid of tamy (steel rod). A F.I.R. was orally lodged by one Shyam Lal on 31.3.1996 at about 10.00 A.M. at the Police Station Phooliakallan on 31.3.1996 stating that while he was going on his duty to Agoocha Mines Hemraj S/o Ram Narayan who is the brother of the appellant informed him that the appellant has killed his wife Mst. Kali at about 11.00 P.M. by hitting over her head with a rod and requesting him to make a report to the police. To support this case the prosecution had relied on the only alleged eye witness Chaina recovery of weapon of offence at the instance of accused from the house of the accused and circumstantial evidence of last seen together. 2. The post mortem revealed that the dead body had one injury over the forehead and that the cause of death of Mst. Kali was the said injury on the head. The prosecution came up with a case that in the previous night, Mst. Kali, accused Babu Lal and their daughter Chaina who was than a 10 years old child, had slept after having their meals. In the late night, Chaina was awakened on hearing his father abusing her mother and she saw her father Babu Lal hitting Mst. Kali with iron sabbal. As a result of which, she fell under the Neem tree and after a while, she became silent. Babu Lal has threatened his daughter and directed him to sleep. In the morning, the accused directed his daughter Chaina to call her grand parents. She informed grand parents, they came on the spot. At that time, Hemraj also appeared on the spot. Babu Lal was arrested on 1.4.1996 and at his instance, the weapon of assault a blood stained iron bar was recovered from the house of the accused vide recovery memo Ex.P/8 in the presence of Motibrs--Ladu Ram, P.W. 20, Biram P.W. 10 and Hemraj P.W. 9. The post mortem has been conducted by the Medical Board which including Dr. S.N. Vijayvargia P.W. 19 and Dr. Gyan Prakash P.W. 16. Solitary eye witness Chaina was examined as P.W. 12. She was then a child of 10 years. The post mortem has been conducted by the Medical Board which including Dr. S.N. Vijayvargia P.W. 19 and Dr. Gyan Prakash P.W. 16. Solitary eye witness Chaina was examined as P.W. 12. She was then a child of 10 years. She has not supported the case of prosecution and was declared hostile. She has denied to have seen anything in the night. She has denied that any quarrel took place between her father and mother before going to the bed. She has also denied her police statement. However, she has stated that her mother was suffering from Epilepsy and many a times, she has fallen as a result of it and there is a Neem tree within their house and there is a stone slab under it. 3. The Trial Court found that the only eye witness has turned hostile and the matter has to be decided only on the basis of circumstantial evidence. It has also found that the recovery of the alleged weapon of offence at the instance of the accused has not been proved. The finding that the accused was undoubtedly with the lady during the fateful night and he alone had the opportunity to cause the injury to his wife on account of which she died and also at the time of investigation when the police has reached at the spot, Babu Lal was not found there and he was arrested on the next date. The Court held that these circumstances lead reasonably to only one conclusion consistent with the guilt of accused; that the accused alone has caused the death of Mst. Kali. He, therefore, convicted the accused Under Section 302 I.P.C. and sentenced him to Life Imprisonment and a fine of Rs. 1,000/-. The accused has been in jail since the day of his arrest. 4. Heard learned amicus curiae Miss Sunita Jain and the learned public prosecutor. 5. It has been contended by the learned amicus curiac that solely on the basis of evidence of last seen with the deceased, which was a natural phenomenon of the relationship of the deceased and the accused, the accused cannot be held guilty of causing death of his wife when no motive has been attributed to accused. On the other hand, it is established by the evidence that relation of deceased and accused were very cordial. On the other hand, it is established by the evidence that relation of deceased and accused were very cordial. No other circumstances connecting the appellant with the commission of crime has been established. According to the learned counsel, there is no eye witness. The only connecting link of recovery of weapon of offence at the instance of the accused has not been believed by the trial court and there is evidence to the effect that the deceased was suffering from Epilepsy and was prone to falling and that existence of a stone slab under the Neem tree is an established fact. This circumstance read in conjunction with the statement of P.W. 16 Dr. Gyan Prakash that such an injury can be caused due to fall on stone patti otherwise then on the flat surface. The defence of the accused that the death of Mst. Kali could be caused on the account of fall which she had suffered due to epilepsy on account of fall is highly probabilised. In such circumstances, the conviction of the accused cannot be sustained and he deserves to be acquitted and enlarged. 6. The learned public prosecutor had urged that the appellant was the last person in the company of the accused Mst. Kali and he was not at his residence when the police has reached for investigation and the fact that he had made no attempts to inform the others about the death of his wife and the fact that the blood stained weapon used for commission of the crime is recovered from the house establishes necessary links in the chain to prove that Babu Lal alone was in a position to and has caused injuries to the deceased resulting in her death and from the facts and circumstances which have come on record, the defence theory that the death may have been caused due to epilimatory fall has been improbabilised. 7. We have examined the record and perused the evidence that has come on the record. 8. P.W. 1 Sultan is a witness who has only put his thumb impression on the site inspection report Ex.P/1 and does not help the prosecution case in any manner. He has neither seen any occurrence nor he is a witness of any circumstantial evidence except the recovery of dead body. 9. 8. P.W. 1 Sultan is a witness who has only put his thumb impression on the site inspection report Ex.P/1 and does not help the prosecution case in any manner. He has neither seen any occurrence nor he is a witness of any circumstantial evidence except the recovery of dead body. 9. P.W. 2 Balu Ram, who was present at the time the Panchanma of dead body was made, had come to the house of Babu Lal along with number of persons whose names he does not know. He says that he has gone to the house of Babu Lal because he came to know that Mst. Kali had died but he does not know how did she die nor anybody told him how she died. He denies the suggestion that Hemraj may have told him something about the injury that was on the head of the deceased. However, he states that the dead body was lying near a stone slab under the Neem tree. He also says that there were blood stains on the stone slab in his cross-examination. He is an attesting witness of Supardgi of the dead body of Mst. Kali to Hemraj Ex.P/3. 10. P.W. 4 Shyam Lal is the complainant who has allegedly lodged the F.I.R. He categorically states that Hemraj told him about 7:35 in the morning of 31.3.1996 that the wife of Babu Lal had been murdered requesting him to make a report. However, he did not tell that who has killed Mst. Kali. For lodging the report he has gone with Pukhraj. The said Pukhraj has also been examined as P.W. 11, P.W. 4 Shyam Lal has further stated that he has signed the first information report lodged by him in the evening at the police station and the complaint was not read over to him. He also stated that though he has reported in the morning but the case was not registered at that time. Thus, Shyam Lal does not support the version stated in the F.I.R. wherein he names the accused as the person who has killed the deceased and that he has allegedly stated in the complaint about the information furnished by Hemraj. He also stated that though he has reported in the morning but the case was not registered at that time. Thus, Shyam Lal does not support the version stated in the F.I.R. wherein he names the accused as the person who has killed the deceased and that he has allegedly stated in the complaint about the information furnished by Hemraj. From his statement, it is established that the F.I.R. was not written at the time when he has informed to the police but it was written later on and his signatures have been taken later on without reading it to him. This circumstance of F.I.R. having been recorded later on in the evening and signature of the complainant obtained in the evening without reading out its content to him after the same was informed to the police in the morning and absence of reference to Hemraj in statement of Shyam Lal and his clear assertion that he was not informed by any one as to who has killed the deceased, casts doubt about the veracity of circumstance that name of the accused was given only by anyone soon after the incident has taken place. Thus, it weakens the circumstances which could have been relied by the prosecution in support of the circumstances of last seen together with the deceased that soon after the death of Mst. Kali, it was revealed as to who caused the death of Mst. Kali by Chaina, the only other person present in the house on fateful night to anyone, which could have resulted in any information about causation of death by the accused by his brother. 11. The statement of Shyam Lal is fully corroborated by the statement of P.W. 11 Pukhraj that Hemraj has not given any information about the accused having caused the death of the deceased or that what was the cause of the death of Mst. Kali. This is also corroborated from the fact that P.W. 1 who was the prosecution witness and was present at the time of Panchnama with so many other persons around has not heard anything about the cause of death of Mst. Kali from any one. Kali. This is also corroborated from the fact that P.W. 1 who was the prosecution witness and was present at the time of Panchnama with so many other persons around has not heard anything about the cause of death of Mst. Kali from any one. Had the information about the death having been caused by Babu Lal was divulged by Hemraj at that time and Shyam Lal had brought the police, it does not stand to reason that any person who had collected their to quench their curiosity about the death of Mst. Kali, would not have heard anything about the cause or reason of the death of Mst. Kali or about the identity of assailant. 12. P.W. 3 Ramakishan has been produced by the prosecution as an attesting witness of Ex.P/1 Panchnama. However, he divulges no information about connecting the accused to the death of Mst. Kali. In fact, he in his cross-examination which was allowed to be conducted by APP states that no blood stained sample of soil was taken in his presence or sealed in his presence and he also says that when he has reached the scene of occurrence, the documents were already prepared and he has signed as per the instructions of the police but the same were not read over to him. Therefore, he cannot be a witness of the contents of the documents. 13. P.W. 5 Kailash and P.W. 6 Mahavir are also formal witness and are of little help to the prosecution. 14. P.W. 7 Ladu Ram is the brother of the deceased. He is also an attesting witness of Ex.P/4 by which the blood stained soil was taken in custody by the police. In his examination-in-chief, he states that Ramnarayan has told him that Babu Lal had hit Kali with a tomy on the preceding night. However, in the cross- examination, he admits that he had no talks with Ramnarayan and also admits that the dead body was lying under the Neem tree and there was a crowd of about 100 persons assembled there at that time. He further states that the marriage was subsisting for about 20 years. Ramnarayan has not been examined and, therefore, his statement about assault of the deceased by the accused remains a hearsay evidence and that too was shaken in the cross-examination. He further states that the marriage was subsisting for about 20 years. Ramnarayan has not been examined and, therefore, his statement about assault of the deceased by the accused remains a hearsay evidence and that too was shaken in the cross-examination. Therefore, this witness also does not support any of the circumstances relied upon by the prosecution to add with the circumstance of the accused having been last seen with the deceased. 15. P.W. 9 Hemraj has not supported prosecution in any sense and has been declared hostile. He has on the contrary stated that Shyam Lal has come to him informing him that his parents have called him early at home. When he went home, he came to know about death of Mst. Kali but he did know the cause of death and that he (Hemraj) has informed the police about it. He also states in his cross-examination held by the Counsel for the accused that the deceased was having occasional lapses of epilepsy and that when she had epilepsy attacks while standing, she used to fall standing. His dead body was found under the Neem tree and nearby was lying a stone slab and that one corner of patti's edge was blood stained. He states that tomy (sabbal) which has been recovered through Ex.P/8 was not lying in the courtyard but he has seen it lying in the jeep. 16. P.W. 10 Biram is witness relating to the recovery of tomy (Saria). While he says that the police has recovered one Saria from the house of the accused and the recovery memo is Ex.P/8. However, he also states in his cross-examination that the tomy was brought by the police from inside the house any nobody has gone along with the police for recovering the Saria. He also states that the Saria was about 3 feet long and one end of it was blood stained and it was on the broader side. He also states that Ex.P/8 was not read over to him. However, he states that Saria was lying near Thaparia (cow dung cakes) and they were lying inside the house. This statement, in our opinion, is contradictory in terms in as much as if he has not gone inside the house, where from inside the house, the Saria has been picked up, he could not be a witness of such fact. However, he states that Saria was lying near Thaparia (cow dung cakes) and they were lying inside the house. This statement, in our opinion, is contradictory in terms in as much as if he has not gone inside the house, where from inside the house, the Saria has been picked up, he could not be a witness of such fact. On the other hand, the other attesting witness of recovery memo Ex.P/8 is P.W. 20 Ladu Lal states in his cross-examination that Saria was lying in front of the police and where from they have brought he does not know. Thus, P.W. 20 Ladu Lal, who too is an attesting witness of recovery of weapon in question, alleged to have been made at the instance of the accused, does not support the other attesting witness. As noticed above, while P.W. 10 Beeram admits that he has not gone inside the house with the police, but he goes to say that the exact place from where the Saria has been picked up from inside the house raises doubt about credibility and the correctness of the statement. Whereas the other witness Ladu Lal, who has not been doubted by the prosecution, clearly states that Saria was lying with the police where from they have brought it he does not know. The statement of P.W. 20 lend support to the statement of P.W. 9 Hemraj to the extent he states that tomy was lying in the jeep. 17. In this view of vital contradictions about the recovery of alleged weapon of offence, we are in agreement with the conclusions reached by the trial court that the recovery of weapon at the instance of the accused is not proved so as to connect him with the offence. We are also of the view that the evidence in that regard which we have discussed above does not prove beyond reasonable doubt that the recovery of weapon of offence was even made from within the house so as to connect the accused with the weapon used which has been found to be stained with blood as per the FSL report so as to establish a strong link in the chain of circumstances to reach a conclusion reasonably consistent with the commission of offence by the accused. 18. We have also noticed while narrating the facts that only alleged eye witness of incident Mst. 18. We have also noticed while narrating the facts that only alleged eye witness of incident Mst. Chaina P.W. 12 has not supported the prosecution and was declared hostile. However, she also states that her mother was suffering from epilepsy and many a times, she used to fall while working and that there is a Neem tree and near a neem tree, there is a stone slab. 19. The two doctors have been examined who were constituting the medical board for conducting the post mortem. While Dr. S.N. Vijayvargia P.W. 19 has proved the injuries found on the person of the deceased, has said nothing about the weapon or the reason with which such injuries could be caused. However, Dr. Gyan Prakash P.W. 16 has stated that the injury which Mst. Kali has suffered over his head can be caused by blunt weapon if it is hit with force and that such as injury can also be caused if one falls with force. He has further clarified that if one falls on a stone slab towards its thick side or protuding part of the stone such injury could be caused. 20. In these circumstances on the one hand, the circumstance show that the accused was the person last seen in the company of the deceased and the death has been caused due to the injury found on the forehead of the deceased. There is no further strong link to constitute the chain for connecting the accused with the commission of offence beyond reasonable doubt. On the other hand, it is established from the statement of Babu Ram P.W. 2 who has not been found to be wanting in any sense, that the dead body was lying under the Neem tree near the stone slab and the stone slab was blood stained. The existence of the stone slab under the Neem tree is also established by the statement of investigating officer P.W. 18 while he says that there was no stone slab under the Neem but was about 8-10 feet but then he admits in Ex.P/5 site inspection report that he has not recorded these facts because as he has not given much importance to it. However, the fact remains that the site inspection report read with the independent witnesses duly corroborate the statement given by Hemraj and Chaina about existence of the Neem tree and stone slab under it and dead body was lying near it. P.W. 2 Babu Ram further states that patti was blood stained. The medical evidence as per the statement of Dr. Gyan Prakash probabilised that the injury in question could be caused by a blunt edged weapon or by fall on the protruded part of the stone slab or the corner of the stone slab. In these circumstances, the defence has been able to probabilise that the death could have been caused by a fall on the patti near which the dead body was found. 21. It is well established that when no direct evidence through the eye witnesses is available and the prosecution case hinges upon the circumstantial evidence, the facts and circumstances from which conclusion of guilt could be drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only be corroborated with the guilt of the accused but they must be in their effect has to be entirely inconsistent with the innocence of the accused and also that the only circumstances of the last seen is not by itself the complete chain of circumstances to record a finding that it is in consonance only with the hypothesis of guilt of the accused and no conviction on that basis can be found. Reference in this connection made be made to 1994 (Suppl. 2) SCC 372. 22. In view of our conclusions recorded above, we are of the opinion that the prosecution has not been able to establish beyond reasonable doubt any circumstance other than the last seen. The togetherness of husband and wife at their residence in the night in itself is a state of affair bound to be there in the ordinary course of living and cannot be said to be abnormal or requiring an enquiry into reason for accused presence with the deceased at that time. The togetherness of husband and wife at their residence in the night in itself is a state of affair bound to be there in the ordinary course of living and cannot be said to be abnormal or requiring an enquiry into reason for accused presence with the deceased at that time. The recovery of the weapon from the house is doubtful and there is absence of any motive attributable to the accused to do away with his wife coupled with the fact that the marriage is subsisting for last 20 years and there is not even a suggestion of strained relations between the two on any count along with the probability that such injury on forehead could have been caused by the fall on the patti near which the dead body was found under Neem tree. 23. The appeal accordingly succeeds, the conviction and sentences are set aside and the accused appellant may be released forthwith, if otherwise not required in any other case.Appeal allowed - Conviction Set Aside. *******