JUDGMENT 1. - This appeal is directed against the judgment dated 14.1.1998 passed by the Additional District Judge, Rajsamand convicting the appellant of offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment to further undergo six months rigorous imprisonment, He has also been convicted for offence under Section 394 IPC read with Section 397 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,000/- and in default of payment to further undergo six months rigorous imprisonment. 2. Briefly stated the prosecution case as disclosed during the trial is that PW-1 Parasmal, a Mine Owner had engaged appellant Kishan and his wife Laxmi as a labourer. Subsequently, PW 5 Fateh Singh @ Shambhoo Singh and his wife were also engaged. All the four labourers used to live in one room. On 20.2.1994, at about 11.00 PM Shambhoo Singh, PW 3 Heera, PW 8 Kanha and PW 7 Metha went to the house of PW 1 Parasmal and reported that appellant Kishna, his wife Laxmi and the wife of Shambhoo were missing. PW 1 Parasmal went to the place of residence of appellant Kishna and Shambhoo. They were missing and the room was locked. It was broke open. Inside the room the dead body of the wife of Shambhoo was found. PW 1 lodged a First Information Report at Police Station, Rajsamand stating the aforesaid facts. On this information, police registered a case for Offence under Section 302/34, 394 and 397 IPC. During the investigation it revealed that deceased Chhammo was not the wife of Shambhoo. It also revealed that the real name of Shambhoo was Fateh Singh. Shambhoo Singh has been examined in his real name as PW 5 Fateh Singh. Mst. Chhammo was the wife of elder brother of PW 5 Fateh Singh. PW 5 Fateh Singh and Chhammo Devi had developed illicit relations and they were living at the mines of PW 1 Parasmal. PW 5 Fateh Singh was living in the name of Shambhoo Singh. The appellant Kishan Singh was arrested on 9.1.1995 vide Exhibit P 5, almost after 11 months. The police recovered certain ornaments in pursuance of the information given by him. After usual investigation, police laid chargesheet against the appellant Kishan, his wife Mst. PW 5 Fateh Singh was living in the name of Shambhoo Singh. The appellant Kishan Singh was arrested on 9.1.1995 vide Exhibit P 5, almost after 11 months. The police recovered certain ornaments in pursuance of the information given by him. After usual investigation, police laid chargesheet against the appellant Kishan, his wife Mst. Laxmi for offences under Section 302, 397, 394 I.P.C. 3. The appellant denied the charges levelled against him. The prosecution in support of the case has examined 17 witnesses. The appellant in his statement under Section 313 Cr.PC. denied the correctness of the prosecution evidence appearing against him. The trial court found the following piece of circumstances proved against him: (a) The deceased last seen in the company of appellant. (b) Recovery of silver 'Kariyas' of deceased from the possession of appellant in pursuance of the information given by him under Section 27 of the Evidence Act. (c) Presence of muffler belonging to appellant near the dead body. (d) The appellant Kishna absconded just after the incident. 4. The learned Judge found each of the circumstances proved by cogent evidence and of conclusive nature pointing towards the guilt of appellant. Hence, the trial court convicted and sentenced the appellant as noticed above. 5. Assailing the conviction, it is contended by Mr. Manoj Garg, Amicus Curiae that entire case has been fabricated by the police. It is submitted that each of the circumstances has not been proved by cogent evidence. He has pointed out number of infirmities in each of the circumstances. The learned counsel has also criticized the conduct of PW 5 Fateh Singh. It is submitted that PW 5 Fateh Singh had good reason to kill his wife and not the appellant. The learned Public Prosecutor supported the judgment of the trial court. 6. We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. Before we deal with the - contentions of the learned counsel for the parties, it will be appropriate to indicate the prosecution evidence appearing during the trial. 7. PW 15 Dr. C.L. Doongarwal has stated that on 21.2.1994 on the request of the police he constituted a Medical Board to conduct the post mortem of the dead body of Mst. Chhammo. He has proved the post mortem report Exhibit P- 25. He also stated that the injuries were anti-mortem in nature. 7. PW 15 Dr. C.L. Doongarwal has stated that on 21.2.1994 on the request of the police he constituted a Medical Board to conduct the post mortem of the dead body of Mst. Chhammo. He has proved the post mortem report Exhibit P- 25. He also stated that the injuries were anti-mortem in nature. The duration of injuries,were 8 to 16 hours. In his opinion, deceased Chhammo died due to asphyxia resulting from strangulation. 8. PW 1 Parasmal stated that on his mines alongwith other labourers, appellant Kishna and his wife Laxmi also used to work. Lateron, Shambhoo Singh and his wife also joined them. They were also living in same room in which Kishna alongwith his wife was residing. Shambhoo Singh, Mitha etc. came to his house and reported about the missing of Kishna, Laxmi and wife of Shambhoo Singh. He asked them to wait till morning. In the morning, they went to the mines. He did not find Kishna, Shambhoo Singh and their wives on the spot. The house was chained from outside. On opening the door, they found the dead body of the wife of Shambhoo Singh. He reported the matter to police. Police registered the case. Inquest was prepared and the dead body was send for post mortem. He also stated that a muffler was found on the spot. Nothing has been elicited in the cross examination to discredit the testimony of this witness. 9. PW 2 Ratan Kumar is a formal witness. PW 3 Heera had gone to the house of PW 1 Parasmal alongwith Mithu and Shambhoo Singh. He also stated that on the next day when room was opened they found a muffler tied on the mouth of the wife of Shambhoo Singh. He also stated that Kishna and his wife were removing the ornaments from the legs of the dead body of wife of Shambhoo Singh. He enquired from Kishna as to what he was doing ? He was threatened by him to face the same consequences, in case of further interference. Thereafter, Kishna told him that he was going to the village on account of death of his mother. Thereafter, they went to the house of PW 1 Parasmal and informed about the missing of appellant Kishna and his wife. He also stated that they were removing the 'kariyas' with the help of 'kulhari'. Thereafter, Kishna told him that he was going to the village on account of death of his mother. Thereafter, they went to the house of PW 1 Parasmal and informed about the missing of appellant Kishna and his wife. He also stated that they were removing the 'kariyas' with the help of 'kulhari'. He also admitted that there was no injury of 'kulhari' caused to the deceased. 10. PW 4 Gangali has stated that deceased was the wife of his nephew Uda. PW 5 Fateh Singh has stated that she knew deceased Laxmi. She was wife of his brother Udai Singh who was residing in Ahmedabad. Mst. Laxmi in absence of her husband used to move with him and work as a labourer. They got employment on the mines of PW 1 Parasmal. He alongwith Mst. Laxmi used to live in the room of Kishna. He also stated that he alongwith other associates made a search of Mst. Laxmi. Her dead body has found in the room in which they were residing. In the cross examination, he admitted that he had given his name as Shambhoo Singh. He also admitted in the cross examination that lock of their room was broke open in the night after 12.00 P. M. 11. PW 6 Smt. Soni stated about the missing of the wife of Shambhoo Singh and her visit in the night and opening of the room. PW 7 Mitha has stated that appellant Kishna left the mines on receiving the information with respect to the death of his mother. In the cross examination, she admitted that the accused persons were not seen removing 'kariyas' from the leg of the dead body of Mst. Chhammo. PW 8 Kana has also stated that Kishna, Shambhoo Singh and their wives used to stay in one room. He also stated that the wife of Shambhoo Singh was missing. PW 9 Ranveer Singh is a formal witness. PW 10 Daulat Singh is a photographer. PW 11 Ganpat Singh, ASI Police Station Rajnagar has given the details of investigation. PW 12 Kesar Singh, PW 13 Bhanwarlal, PW 14 Heera Lal and PW 16 Kishan Singh are formal witnesses. PW 17 Puran Singh Bhati is Investigating Officer. He has given details of investigation. 12. PW 10 Daulat Singh is a photographer. PW 11 Ganpat Singh, ASI Police Station Rajnagar has given the details of investigation. PW 12 Kesar Singh, PW 13 Bhanwarlal, PW 14 Heera Lal and PW 16 Kishan Singh are formal witnesses. PW 17 Puran Singh Bhati is Investigating Officer. He has given details of investigation. 12. So far as the evidence of last seen is concerned, it is not in dispute that it was not the appellant alone who was living in the room alongwith the deceased. The deceased was living alongwith Shambhoo Singh. It has been admitted by PW 5 Fateh Singh that he was living with Laxmi at the mines in the name of Shambhoo Singh. It has also been admitted that deceased was wife of elder brother of PW 5 Fateh Singh. It is admitted by PW 3 Heera and PW 7 Mitha that in the night itself the room was opened and the dead body of Smt. Laxmi was found. They have also admitted disappearance of Shambhoo Singh from the spot. If the dead body was found in the room itself, the report of Shambhoo Singh and others to PW 1 Parasmal that Mst. Laxmi was missing is false and fabricated. Thus, the evidence of last seen is not of conclusive nature. This piece of circumstance cannot be used as an incriminating circumstance against the appellant. 13. As regards second circumstance of recovery of 'kariyas', it suffice to say that prosecution has not led any evidence to show that recovered 'kariyas' belonged to the deceased. It is admitted by the learned Public Prosecutor that no proceeding for identification of 'kariyas' were arranged. The 'kariyas' have not been identified in the court. Thus, in the absence of evidence to show that 'kariyas' belong to deceased, the circumstance of recovery of 'kariyas' is not an incriminating circumstance against the appellant. It is also significant to notice that 'kariyas' alleged to have been recovered from the back side of house where the dead body of Mst. Chhammo was lying. The recovery is also made after one year. Thus, the second piece of circumstance is also rejected. 14. Similarly the circumstance of muffler of accused found near the dead body has not been proved by cogent evidence. There is no evidence to show that muffler belongs to the appellant. 15. Chhammo was lying. The recovery is also made after one year. Thus, the second piece of circumstance is also rejected. 14. Similarly the circumstance of muffler of accused found near the dead body has not been proved by cogent evidence. There is no evidence to show that muffler belongs to the appellant. 15. The last circumstance of absconding is concerned, at the first instance this circumstance alone is not sufficient to connect the appellant with the crime. Secondly, the appellant has stated that he immediately left the place on hearing the death of his mother. Thereafter he went away for earning. Thus, the circumstance of absconding is of no consequence. 16. In view of the aforesaid, we are not satisfied that prosecution had succeeded in establishing each circumstance by cogent evidence. The circumstances are also of not conclusive nature to arrive at the conclusion that Mst. Chhammo was killed by non else but by the appellant. The learned trial court has committed error in holding the appellant guilty of murder of Mst. Chhammo. 17. Consequently, this appeal is allowed. The judgment of the Additional Sessions Judge, Rajsamand dated 14.1.1998 is quashed and set aside. The appellant is acquitted of the offence under Section 302 IPC. He is in jail. He shall be set at liberty forthwith, if not required in any other case.Appeal allowed - Conviction set aside. *******