JUDGMENT 1. The present appeal has been filed by the accused-appellants Smt. Kamla and Dhanna Ram against their conviction under section 302 read with Section 34 IPC and sentence of life imprisonment and fine of Rs. 100 /- and in default of payment of fine to further serve 10 days simple imprisonment awarded by the learned Additional Sessions Judge, Raisinghnagar vide judgment dated 06.07.1998 passed in Sessions Case No. 75/1996. 2. The accused-appellant, Smt. Kamla is reported to have died on 02.04.2000 and the information regarding her death has been verified and confirmed by the SHO Police Station, Raisinghnagar. Learned counsel for the accused-appellant-Kamla has also produced her death certificate. The report of the SHO is annexed with a certificate issued by the Sarpanch, Gram Panchayat, Muklawa. Thus, it is apparent that appellant-Smt. Kamla died on 02.04.2000 during the pendency of her appeal and her no near relative has applied to this Court within the prescribed period of thirty days for leave to continue the appeal. So, her appeal abates but the appeal of co-accused Dhanna Ram survies. So we have to see as to whether the prosecution has succeeded in bringing home the guilt to Dhanna Ram beyond all reasonable doubts. 3. Succinctly stated, the relevant facts of the prosecution case are that on 23.04.1996 Het Ram, son of Jaluram Meghwal lodged a written report at Police Station, Raisinghnagar to the effect that his brother Jagdish used to live in his Dhani with his wife and children. The character of his wife Mst. Kamla was not above board. Accused-appellant used to visit her often. The deceased used to object to the visits of his brother Dhanna Ram at his Dhani. In the morning of 09.04.1996 Dilip who used to cultivate the land of deceased-Jagdish informed him that Mst. Kamla wife of Jagdish had informed him that Jagdish had died due to excessive drinking. After lodging of the first information report, the investigation was conducted and on the basis of material collected during the investigation, late Mst. Kamla and Dhanna Ram were found responsible for causing murder of Jagdish. So the charge-sheet was presented against the accused-appellants. The case was committed to the trial Court and at the trial the accused were charged for offences under section 302 and in the alternative under section 302 read with Section 34 IPC. They pleaded not guilty to the charges and claimed trial. So the charge-sheet was presented against the accused-appellants. The case was committed to the trial Court and at the trial the accused were charged for offences under section 302 and in the alternative under section 302 read with Section 34 IPC. They pleaded not guilty to the charges and claimed trial. At the trial 16 witnesses were examined by the prosecution. The trial Court discussed the evidence and believing the evidence against both the accused persons convicted and sentenced them as indicated above. 4. The evidence believed against Mst. Kamla is not considered here as her appeal stands abated due to her death. We are concerned here regarding the conviction of accused-appellant-Dhanna Ram and we will consider that part of the evidence which relates to Dhanna Ram. 5. The trial Court has found on the basis of the evidence that the deceased used to drink excessively and he never used to do any job. Accused-Dhanna Ram often used to visit Mst. Kamla and she used to follow the dictates of Dhanna Ram. To establish this fact, the prosecution has examined PW-1 Dilip, PW-2 Ranjeet and PW-6 Phoosa Ram. All these witnesses have corroborated the fact that Dhanna Ram used to visit Mst. Kamla the co-accused. Accused Dhanna Ram in his examination under section 313 Cr.P.C. has taken a plea that he never used to visit Kamla. The trial Court has considered this to be a false plea and has used it as additional circumstance to establish the guilt of accused Dhanna Ram. After the incident Kamla had left for her parents' house. The trial Court has also believed the circumstance that as and when Jagdish used to fight with Kamla, Dhanna Ram used to take her side and that no explanation has been offered by accused Dhanna Ram in this regard. This circumstances has also been used against Dhanna Ram. The trial Court has convicted the accused-appellant-Dhanna Ram only on the basis of these circumstances. 6. Learned counsel for the accused-appellant has urged that these circumstances which have been pressed into service against the accused-appellant Dhanna Ram are too weak and inconclusive to bring home the guilt to the accused. They can at best be said to be additional circumstances which could have lent assurance to the prosecution case if otherwise established. 6. Learned counsel for the accused-appellant has urged that these circumstances which have been pressed into service against the accused-appellant Dhanna Ram are too weak and inconclusive to bring home the guilt to the accused. They can at best be said to be additional circumstances which could have lent assurance to the prosecution case if otherwise established. In the instant case none of the circumstances relied upon by the learned trial Court i.e. his false explanation regarding his regular visits to Mst. Kamla and his residing with Kamla as and when there was quarrel in between Jagdish and Kamla proves the complicity of Dhanna Ram in the alleged crime. These circumstances by themselves do not in any way show that accused-appellants Dhanna Ram either killed Jagdish or was even with Smt. Kamla at the time when Jagdish was killed. 7. Per contra, learned Public Prosecutor appearing for the State and assisted by Mr. S.S. Dhillon has urged that Kamla had illicit relations with Dhanna Ram. There was every reason for Dhanna Ram to cooperate with Mst. Kamla to eliminate the deceased. There being a strong motive available on record, the circumstances relied upon by the learned trial Court are sufficient to indicate that the accused had rightly been held guilty for committing murder of the deceased. 8. We have considered the rival submissions made at the Bar by the learned counsel for the appellant as well as the learned Public Prosecutor appearing for the State and have also perused the record. 9. Kumari Nirmala PW-9 is said to be an eye witness of the occurrence. She is a child witness and looking to her age, her statement has been recorded without administering oath to her. She has stated that her father was killed by Dhanna, Bhagat and her mother. Dhanna had tied her father and placed brick and stick on the neck of her father. The occurrence was of night. In her cross examination, she has admitted that she did not tell about her having thus seen the occurrence to any other person before telling it to the police. She has also stated that she had not slept by then although her mother and she herself had taken the meals. But, her testimony stands completely demolished and belied by the medical evidence that has been produced in this case. Dr. She has also stated that she had not slept by then although her mother and she herself had taken the meals. But, her testimony stands completely demolished and belied by the medical evidence that has been produced in this case. Dr. Ladhu Ram PW-10 has duly proved the Post Mortem report Ex.P /12, Explanatory note Ex.P /14 and has stated that the death of Jagdish occurred due to Asphyxia. He has categorically stated that there were no marks or signs of pressing the throat of Jagdish by putting stick or brick. No food was found in his stomach. There was semi-digested food in small intestines which generally reaches there after about 6-7 hours of taking of meals. He has testified that the death of Jagdish occurred on account of asphyxia due to smoke having gone into his respiration. Scalds found on his person could be possible due to spilling of hot wine on his body. The FSL report shows that the visera of the deceased which was preserved has tested positive for thepresence of ethyl alcohol. 10. The testimony of Miss Nirmala PW-9 is thus, completely rendered unbelievable because death of her father Jagdish is said to be due to asphyxia and it was because of smoke having gone into his respiration, whereas, according to Miss Nirmala PW-9 he died of strangulation. PW-10 Dr. Ladhu Ram has clearly negatived the version that brick or stick was placed on the throat/neck of the deceased. Even the factum of Jagdish having taken meals just before he was killed is also completely belied by the medical evidence. Miss Nirmala PW-9, therefore, cannot be said to be an eye witness of the occurrence. Her testimony does not inspire even the slightest confidence in the face of medical evidence. Her conduct of not telling about the incident to anyone after the occurrence is also quite unnatural. 11. The prosecution has then relied upon the extra judicial confession of appellant-Mst. Kamla. In this regard the prosecution has examined Guddi wife of Het Ram PW-4. The deceased was her husband's younger brother. According to her, a few days before Kamla was arrested by the police she confessed before her that she herself, Bhagat @ Het Ram and Dhanna Ram first made deceased-Jagdish to drink alcohol and then tied him on cot with string. The deceased was her husband's younger brother. According to her, a few days before Kamla was arrested by the police she confessed before her that she herself, Bhagat @ Het Ram and Dhanna Ram first made deceased-Jagdish to drink alcohol and then tied him on cot with string. She herself caught hands of deceased-Jagdish, Bhagat caught his feet and appellant-Dhanna Ram struck him with brick on his neck and thus, he was killed. She has admitted in her cross-examination that after cremation of dead body of Jagdish, the police did not record her statement. She cannot tell as to after how many days after the death of Jagdish Mst. Kamla told her about the killing of her husband. She does not seem to have immediately informed her husband or anybody else about the extra judicial confession of Mst. Kamla. No challan has been filed against Bhagat and the fact that Bhagat has not been found to be accomplice in the crime detracts from the genuineness of the extra-judicial confession. She has stated that she told about this to her husband 10-15 days afterwards when her husband came from outside. Her husband Het Ram PW-5 initially reported to the Police that his brother Jagdish had died on account of taking excess liquor and it was after about 15 days that he lodged FIR before the police, wherein, also he did not name the accused Dhanna Ram or Bhagat, although he expressed suspicion on Mst. Kamla. If Kamla had confessed to her guilt before his wife Mst. Guddi PW-4 and his wife had told him about this, why the names of Bhagat and Dhanna were not written in the FIR is a mystery to which the witness has not given any explanation. This fact by itself renders it absolutely doubtful and unbelievable that Mst. Kamla made any extra-judicial confession. The extra-judicial confession is also belied by the medical evidence. It appears to be a fabrication in order to fasten the liability on the accused-appellant. 12. This apart, the confessional statement of Mst. Kamla cannot be used against appellant-Dhanna Ram without any other reliable corroboration. The prosecution has relied only on one circumstance against Dhanna Ram and that is of his having illicit relations with Mst. Kamla, wife of deceased-Jagdish. But, there is no direct evidence of this circumstance. 12. This apart, the confessional statement of Mst. Kamla cannot be used against appellant-Dhanna Ram without any other reliable corroboration. The prosecution has relied only on one circumstance against Dhanna Ram and that is of his having illicit relations with Mst. Kamla, wife of deceased-Jagdish. But, there is no direct evidence of this circumstance. The witnesses who have testified to this fact have simply stated that there was a rumour about it. They have not positively stated that they or any of them ever saw them in compromising position or there was any other basis on which they inferred that they had illicit relations. So this solitary circumstance is neither satisfactorily proved nor it can be made basis of conviction of appellant-Dhanna Ram. Indisputably, there is no other direct or circumstantial evidence on record of this case to connect the appellant-Dhanna Ram with the crime. On the contrary, the medical evidence clearly belies his having killed the deceased-Jagdish in the stated manner. 13. Under these circumstances, therefore, we are of the considered view that there is absolutely no direct or circumstantial evidence on record of this case to sustain the conviction of appellant-Dhanna Ram for the offence under section 302 read with Section 34 IPC. Learned trial Court has failed to properly appreciate the evidence that has come on record. It appears to have taken very superficial view of the evidence. 14. In view of the foregoing discussion and appreciation of evidence the prosecution has failed to bring home the guilt to the appellant and he is entitled to acquittal. 15. Consequently, the appeal of Dhanna Ram is allowed. His conviction under section 302 read with Section 34 IPC and sentence awarded to him by the learned trial Court are set aside and he is acquitted. He is on bail. He need not surrender. His bail bonds are discharged.Appeal allowed. *******