This is criminal appeal against the judgment and order dated 16-11-1981 passed Sri Jaswant Singh the then III Additional Sessions Judge, Bijnor in ST No. 86 of 1980, State v. Mahendra and others, thereby convicting appellant Mahendra Singh under Section 302 IPC and sentencing him to rigorous imprisonment for life. He was acquitted of the charge under Section 120-B IPC. Co-accused Bhagwat and Om Prakash alias Lala were also acquitted of the said charge. 2. Briefly stated the prosecution story was that on 13-8-1977 sometime in the afternoon the appellant went to the house of Smt. Dhanno wife of Thani, resident of village Pundari Kalan, Police Station Nangal, District Bijnor. The appellant told Smt. Dhanno that since he had won a case, he is distributing prasad. Smt. Dhanno asked him to keep the prasad in the kitchen since she then was busy in some work. He left the said prasad in her kitchen. It was alleged that the prasad was smeared with some poisonous substance probably by co-accused Om Prakash @ Lala and Bhagwat with the intention of causing the death of Smt. Dhanno and her husband. The motive behind the mixing of poison in the so called prasad was that Smt. Dhanno and her husband were issueless and on their death their property, 50 bighas of land, would have devolved upon co-accused Bhagwat and his brothers Preetam and Vikram. After the appellant left the house of Smt. Dhanno, Smt. Somwati wife of Preetam Singh came to the house of Smt. Dhanoo and asked her to give something to eat to her children. She was accompanied at that time by her children namely Khajan Singh aged 7 years, Bitto aged 3 years and Km. Chanchal aged two years. Smt. Dhanno asked the children to eat prasad which was kept in the kitchen by the appellant. The children of Smt. Somwati took the prasad and came to their house with the mother. The prasad was consumed by them. Soon thereafter, they started vomiting. Though a local Vaidya of the village gave some medicine to these children but their condition continued to deteriorate. In the night intervening 13/14-8-1977 at about 1. 00 a. m. Km. Chanchal died and in the morning her funeral took place. The prasad was consumed by them. Soon thereafter, they started vomiting. Though a local Vaidya of the village gave some medicine to these children but their condition continued to deteriorate. In the night intervening 13/14-8-1977 at about 1. 00 a. m. Km. Chanchal died and in the morning her funeral took place. The remaining two children were brought by their father Preetam Singh to the District Hospital, Bijnor where it was informed by the Doctor that these children had consumed some poison. The same day Bitto also died in the hospital while Khajan Singh recovered. He told his father, in the presence of some witnesses, that one Shambhu Singh, resident of the same village had given them prasad to eat. On this information Preetam Singh lodged a report at Police Station Kotwali City, Bijnor on 14-8-1977 at 3. 30 p. m. On the basis this report a case under Section 302/328 IPC was registered against accused Shambhu Singh. The papers of this case were sent to Thana Nangal. A case was registered at P. S. Nangal on the basis of these papers. The case was investigated and it was found that Shambhu Singh was falsely implecated. The police submitted a final report. During the investigation the names of all the aforesaid three accused came to light according to police and the accused were arrested. S. I. Harish Chandra interrogated Smt. Dhanno on 15-8-1977 and also recorded the statements of other witnesses. Statement of Smt. Dhanno was also recorded by the Munsif Magistrate, Bijnor under Section 164 Cr. P. C. in which she narrated the prosecution case dealt with above. When the appellant was interrogated by the Investigating Officer he admitted his guilt and volunteered for the recovery of the remaining poison which he had concealed in the chhaper of the house of co-accused Lala. He led the investigator to the house of Lala and took out a pudia from the Chhapper of the said co-accused in the presence of witnesses Chandra Pal and Balbir. The police prepared the recovery memo and sealed the recovered powder. 3. On the death of the younger son of Preetam Singh S. I. N. K. Tyagi went to the hospital and sealed the body and prepared the inquest report and other connected papers. The body was sent for post-mortem. Dr. N. N. Pandey conducted the post-mortem on 15-8- 1977 at 11. 3. On the death of the younger son of Preetam Singh S. I. N. K. Tyagi went to the hospital and sealed the body and prepared the inquest report and other connected papers. The body was sent for post-mortem. Dr. N. N. Pandey conducted the post-mortem on 15-8- 1977 at 11. 30 a. m. and prepared the post- mortem report. The cause of death could not be ascertained. Hence he preserved the viscera which was sent by the police to Chemical Examiner, Agra. The report of Chemical Officer, Ext. Ka-17, mentioned that poison was found in the viscera. The investigator recorded the statements of the witnesses and after inspecting the place of occurrence prepared the site map. After completing the investigation he submitted a charge-sheet against all the three aforesaid accused. 4. A charge under Sections 120-B and 302/34 IPC was framed against all the three accused by the trial Court to which they pleaded not guilty. They contended that they have been falsely implicated in this case due to enmity and village Partibandi. The appellants examined (DW 1) D. V. Gupta the then compound posted in the District Hospital, Bijnor to prove the papers of the Hospital regarding admission of Bitto and Khajan Singh in the hospital and their statements. The prosecution examined eleven witnesses namely, Dr. N. Pandey (PW 1), Smt. Dhanwanti @ Dhanno (PW 2), Sri Ram Chandra (PW 3), Sri Daya Ram (PW 4), Sri Chandrapal (PW 5), Sri Balbir Singh (PW 6), Sri N. K. Tyagi, S. O. (PW 7), Sri Harishchandra Saxena (PW 8) Dr. Prabodh Kumar (PW 9), Sri Devendra Singh, S. O. (PW 10) and Sri Shahi Ram (PW 11) to prove its case against the appellant. After considering the entire evidence on record the learned Additional Sessions Judge convicted the appellant, under Section 302 IPC and passed the aforesaid sentence and acquitted him of the charge under Section 120-B IPC. The remaining two accused namely Bhagwat and Om Prakash @ Lala were given benefit of doubt and acquitted of the charges framed against them. 5. Aggrieved by this judgment the convicted accused Mahendra Singh has preferred this appeal. We have heard the learned Counsel for the appellant as well as the learned AGA we have been taken through the evidence on record. 6. There is no eye-witness of the fact that the appellant had mixed poison in the sweatmeat (Pera ). 5. Aggrieved by this judgment the convicted accused Mahendra Singh has preferred this appeal. We have heard the learned Counsel for the appellant as well as the learned AGA we have been taken through the evidence on record. 6. There is no eye-witness of the fact that the appellant had mixed poison in the sweatmeat (Pera ). The evidence against the appellant is that he went to the house of Dhanwanti @ Dhanno (PW 2) and gave Pera to her saying that it was prasad since he had won the case. She asked him to keep it in the kitchen. The appellant kept the Prasad in her kitchen and went away. Immediately thereafter, the wife of Preetam Singh came to house of Dhanwanti, accompanied by her three children, two boys and a girl. The children asked Dhanwanti as to what was kept in the bowl. She told them that the bowl contained Prasad. The wife of Preetam Singh took the Prasad and gave it to the children. After eating the same they all returned to their house. A little later, the wife of Preetam Singh came back and asked Dhanwanti as to what type of prasad it was. Her children have started vomiting after eating it. The prosecution, in order to prove this allegation, examined Smt. Dhanwanti (PW 2 ). She turned hostile on the prosecution and stated that the appellant had not come to her house nor he gave anything to her. Somwati, wife of Preetam had come to her house and had told her that her children have fallen ill and are vomiting. In her cross-examination, she also denied that these children had come to her house and had asked her to give them something to eat. When she was confronted with her statement recorded by the investigator under Section 161 Cr. P. C. she denied to have given any such statement. Thus her evidence does not foster the prosecution cause in any manner. It is to be discarded accordingly. 7. The other witness to prove the aforesaid allegation against the appellant is Ram Charan (PW 3 ). He, too, has turned his back on the prosecution. He has stated that he and Kannoo had gone to the house of Thani, husband of Dhanwanti (PW 2) at about 12 at about 12 noon. It is to be discarded accordingly. 7. The other witness to prove the aforesaid allegation against the appellant is Ram Charan (PW 3 ). He, too, has turned his back on the prosecution. He has stated that he and Kannoo had gone to the house of Thani, husband of Dhanwanti (PW 2) at about 12 at about 12 noon. The appellant came to the house of Dhanwanti and gave some prasad saying that he had won a case. Dhanwanti told him to keep the prasad in her kitchen. He kept the Prasad in the kitchen and went away. He (PW 3) did not see anyone eating the Prasad. This witness later resiled from this statement and in his cross-examination admitted that Somwati, accompanied by three children had come to the house of Dhanwanti. The children asked her as to what was kept in the kitchen. Dhanwanti told them that it was prasad and the appellant had brought it. The children ate the Prasad and all of them thereafter left her house. The next day he came to know that after eating the prasad, the daughter of Somwati died. One of her two sons also died in the hospital. This witness cannot be said to be a wholly reliable witness. He has contradicted himself and has given two different versions of the incident on oath. However, from his statement, read as a whole, one thing is clear that the appellant had come to the house of Dhanwanti in his presence to give the prasad. We do not accept it. He has made this statement under some influence or pressure. He is not corroborated by PW 1 Smt. Dhanwanti on his visiting her house. Thus, from the evidence of both these witnesses the prosecution has not been able to prove that the Prasad, smeared with poison, was given to Dhanwanti by the appellant. The basic fact is not established. Somwatis non-examination is no less fatal to case of the prosecution. Her husband and the eldest son about 10- 11 years of age were the best witnesses to disclose the truth. None of them were examined by the prosecution. 8. The other circumstantial evidence against the appellant is that some poisonous substance sankhiya was recovered on his pointing out. To prove this fact, the prosecution examined S. I. Harish Chandra Saxena (PW 8), Chandra Pal (PW 5) and Balbir (PW 6 ). None of them were examined by the prosecution. 8. The other circumstantial evidence against the appellant is that some poisonous substance sankhiya was recovered on his pointing out. To prove this fact, the prosecution examined S. I. Harish Chandra Saxena (PW 8), Chandra Pal (PW 5) and Balbir (PW 6 ). S. I. Harish Chandra Saxena stated that on 21-8- 1977, he alongwith constable Ramesh Chandra and Brahmapal, arrested appellant Mahendra. The appellant in his statement to him volunteered for the recovery of the remaining sankhiya. The appellant then took him and the witnesses Balbir Singh and Chandrapal Singh to the house of co- accused Om Prakash alias Lala. The house was locked, Manno, wife of Bhagwat opened the lock and the appellant went inside it with them. From the Chhapar laid on the eastern wall of the room he took out a pudia wrapped in a piece of newspaper and gave it to the Sub-Inspector. The latter opened the pudia and found some white powder in it. He then sealed the pudia in a container and prepared its memo Ext. Ka-2. The recovered substance was sent by him to the Chemical Examiner for analysis. The Chemical Examiner found poison in this substance and gave his report, Ext. Ka-17. However, this witness (PW 8) admitted that he did not make any attempt to find that out as to who used to live in this Chappar. In para 15 of his cross-examination he also admitted that anyone could have had an easy access to the eastern wall of the Chappar even from its outside without entering therein. This a very crucial statement made by him. It diminished the value of this recovery to nought. 9. Chandra Pal (PW 5) stated that the police had come to the house of Bhagwat and he only saw a Pudia in the hands of the constables. He did not see anyone taking out that Pudia nor does he know the place from where it was taken out. From his statement it is evident that this recovery was made from the house of Mahendra itself and not from the house of Lala @ Om Prakash as alleged by the Sub-Inspector. When confronted with the memo of recovery, he stated that he had simply appended his signature on it. From his statement it is evident that this recovery was made from the house of Mahendra itself and not from the house of Lala @ Om Prakash as alleged by the Sub-Inspector. When confronted with the memo of recovery, he stated that he had simply appended his signature on it. He also could not tell whether Balbir Singh (PW 6) was present at the said time of the recovery. Thus, his statement is of no avail to the prosecution. He apparently is a got up witness and it is not possible to believe his evidence. 10. The other public witness of the recovery is Balbir Singh (PW 6 ). He stated that he was returning from the School of his brother when he was called to the Police Station. There he found Chandra Pal and appellant Mahendra present. The latter was handcuffed. He offered for the recovery of the remaining Sankhiya to the Police. He, Chandra Pal, Policemen and the appellant then went to the house of Lala where the appellant asked the mother of Lala for the keys. She opened the lock of her house. The appellant then went inside the Chappar and rest of the people remained standing outside the door of the house. Mahendra brought of Pudia from inside and gave it to the Sub- Inspector. The latter opened the Pudia and then sealed it in a container, vide memo Ext. Ka-2. 11. The witness claimed that statement of Mahendra was reduced into writing by Sub-Inspector and his thumb impression was also obtained on the said statement. This was never brought on the record. The IO has not prepared any such record of the statement of Mahendra as alleged by him with this witness nor any signatures were procured by him on the same. The house belonged to Bhagwat father of Om Prakash @ Lala. Why will this appellant reveal his plan to Lala and do it at his house. Pritam lodged his report against Shambhoo. One of the sons of Pritam survived. But he was neither examined by IO nor produced in the trial. Shambhoo was absolved by the Investigating Officer without recording any evidence. From the terror of the evidence of PW 8 Harish Chandra Saxena it is established that he had colluded with this Shambhoo and allowed him to go Scot free. One of the sons of Pritam survived. But he was neither examined by IO nor produced in the trial. Shambhoo was absolved by the Investigating Officer without recording any evidence. From the terror of the evidence of PW 8 Harish Chandra Saxena it is established that he had colluded with this Shambhoo and allowed him to go Scot free. He at the instance of this Shambhoo involved this appellant and other acquitted persons falsely. This Sub-Inspector apparently had cooked up a false evidence. He was suggested that Preetam had made applications against him for absolving Shambhoo and colluding with him. He was also suggested that he confined Smt. Dhanno for four days at the Police Station and thereafter produced her before the Judicial Magistrate for recording of her statement under Section 164 Cr. P. C. Dhanno had turned hostile. He did not dare deny making of any such application either by Preetam or Dhannos husband to his senior officer but only feigned ignorance about it. 12. There is also serious contradiction regarding time of confession between him and PW 6. PW 6 discloses the time to be 3. 00 p. m. whereas this witness proves it to be 12. 30 p. m. PW 6 Balbirs going to his brothers house is also highly doubtful in our opinion. 13. The evidence of these three witnesses, therefore, is not worthy of any reliance. 14. From the statements of Balbir Singh (PW 6) and Sub-Inspector, Harish Chandra Saxena (PW 8), even if it is believed for the sake of argument that the poison was produced by the appellant from the Chappar of Om Prakash, still the recovery does not bring home the guilt to the appellant. The alleged recovery was made from a place which was accessible to all and sundry from outside and was inhabited by Lala and Bhagwat. There is nothing on record to show that the poison was concealed by the appellant from outside. The other witness of recovery only says that it was seen for the first time in the hand of a constable. He himself did not see any one taking it out from the said chappar. Thus, his sole possession over the poison does not stand amply proved. Small quantity of Sankhiya is consumed at times by villagers for many other purposes. His exclusive knowledge and possession has not been established by the prosecution. He himself did not see any one taking it out from the said chappar. Thus, his sole possession over the poison does not stand amply proved. Small quantity of Sankhiya is consumed at times by villagers for many other purposes. His exclusive knowledge and possession has not been established by the prosecution. The statement of Mahendra recorded in the case diary was not at all proved by the two independent witnesses. They did not say a word about his statement made to the IO they did not reproduced it before the trial Court. 15. Considering the entire evidence and the circumstances of the case in its totality we are of the opinion that the complicity of the appellant in the offence did not stand proved and the appeal deserves to the allowed for the reasons disclosed in the preceding paragraphs. 16. In the result, the appeal is allowed and the conviction and sentence recorded by the learned trial Court are set aside. Appellant is acquitted of the charge. He is on bail. He need not surrender. His bail bonds are cancelled and the sureties are hereby discharged. Appeal allowed. .