JUDGMENT 1. - The accused appellant was convicted for the offence under Section 302; I.RC. under the judgment and order dated 4.9.2000 of the learned Judge, Special Court SC & ST (Prevention of Attrocities Cases), Ajmer (Rajasthan) passed in Sessions Case 48/97 and sentenced to undergo life imprisonment. 2. Briefly stated the facts of the case are that one Sujan (PW-1) submitted a written report to the S.H.O., Police Station Mangliawas, District Ajmer on 4th of September, 1996 at about 7.30 PM. The contents of the report are that his wife named Shanti did not give birth to any child. He was in service of Nanu Gurjar and was doing the work of collecting milk from villages. On yesterday, that was Tuesday, in the early morning i.e. about 2.00 AM he took the milk of his cattles and left his village for Tatda on bicycle. He left his wife alone at the house. He returned back at about 11.00 AM. His wife was not at the home. His catties were standing deniedmeaning thereby they were not given fodder or water. He thought that his wife might have gone out for some work and he took his cattles to the jungle. He left the cattles with Govind. He returned to the village and started searching his wife but he could not succeed. He sent his brothers Kalu and Chhotu on motor bike to his in-laws house in search of his wife Shanti. They returned back in the evening and held to the complainant that Shanti was to there. His neighbours Uda son Moda Gurjar and Govind son of Bharu Gurjar told to him that one Bagaria used to come to his house for last five to ten days in the day time in his absence. Bagaria told to them that he comes to take one Iota milk. It is also stated that Bagaria and his wife were staying in the east of the village where they were having a curtain hut. On this complaint, Sataya Narain son of Ladu and Sarwan son of Ladu with some other persons from the village went to Bagarias hut. Bagaria and his wife were not there. They searched them in the hut. The complainant alleged that on search of his house he found that his five hundred rupees are missing. Panchuji told to him that on Monday his wife Shanti had taken Rs. Bagaria and his wife were not there. They searched them in the hut. The complainant alleged that on search of his house he found that his five hundred rupees are missing. Panchuji told to him that on Monday his wife Shanti had taken Rs. 14/- to Maharaj for sorcery. From Ram Deo son of Sukh Dev in the evening of Monday his wife took a wrist watch to get up early in the morning which has not been returned to him. His wife Shanti was wearing silvering (Kadia) in the feet, on forehead she was wearing a borla. She was wearing silver kanakti of three chain, silver earings. In hands she was wearing silver gokhru and one silver taggadi and slippers (hawai chappal). He made search for his wife in the night and in the morning on Tuesday. On 4th of September, 1996 in the evening the other persons of the village who were also searching his wife, namely, Veeram son of Prabhu, Mewa son of Sardul, Govind son of Bhairu Gurjar, on reaching to Amba near to Vinayakahis house they found Bagaria, his wife and one child. Veeram came on motor bike to village and informed to the complainant about Bagaria and his wife and one child. On this the complainant, along with Satya Narain son of Chatru Gurjar, Sawai son of Ram Lal, Veeram son of Sheopal, Rama son of Pratap and 10 to 15 other persons of the village on a tractor went to the place afore-stated and they brought Bagaria and his wife to the village in the evening at about 5-6. 3. On being interrogated by the villagers, Bagaria gave out his name Kalu Bagaria, Resident of Mohami Police Station Gaigal, District Ajmer, the name of his wife was given Kamla. Wife of Bagaria was wearing bra of Smt. Shanti, the wife of complainant, who identified the article. On further search of articles with Bagaria by the villagers, they wound one saree, gaghra, one cotton chunri, one silver borla, one gillet kankti and wrist watch. Except the wrist watch, rest of the articles were of complainants wife Shanti which he alleged to have identified. Wrist watch was alleged to have identified by Ram Deo. One Nand Singh residing near to the house of complainant told to him that Bagaria had applied on her wife jaddu-tona (sorcery) and she gave one set of clothes to him. Except the wrist watch, rest of the articles were of complainants wife Shanti which he alleged to have identified. Wrist watch was alleged to have identified by Ram Deo. One Nand Singh residing near to the house of complainant told to him that Bagaria had applied on her wife jaddu-tona (sorcery) and she gave one set of clothes to him. Bagaria was carrying one bag in which other articles were there but what articles were there in the bag he did not see. Satya Narain and Sukha were sent to Police Station to lodge a report. Kalu Bagaria and his wife were sitting in the village. On the basis of the articles of his wife and recovered from Bagaria, the complainant stated that he had doubt that these to persons have killed his wife or she was hidden somewhere. 4. On the basis of the complaint, a case under Sections 364, 365 and 366 of the I.RC. was registered against the accused appeiiant and Smt. Kamla. A formal F.I.R. (Ex.P- 29) was drawn. 5. After making necessary investigation in the matter, the police submitted challan against the accused appellant for the offences under Sections 302, 364 and 414 I.RC. or in the alternative 302, 364, 414 and 34, I.RC. in the Court of area Judicial Magistrate, 1st Class. As the case was exclusively triable by the Sessions Court, the area Judicial Magistrate committed it to the Court of Sessions Judge, Ajmer and ultimately it came to be transferred to the court of Special Judge, SC & ST (Prevention of Atrocities Cases), Court, Ajmer for its trial and decision. Challan has also been submitted against Smt. Kamla wife of Kalu Bagaria. 6. The accused appellant was charged for the offence under Sections 302, 364, 414 IPC or in the alternative under Sections 302, 364, 414 with 34 I,PC. Similarly Smt. Kamla was charged for the said offences by the learned trial court. 7. The prosecution, to prove its case against the accused appellant and Smt. Kamla, produced both ocular as well as documentary evidence. In the ocular evidence statements of following persons were recorded, 1. Sujan PW-1 2. Satya Narain (P-2) 3. Ganpat Singh (PW-3) 4. Mewa (PW-4) 5. Sarwan (PW-5) 6. Satya Narain (PW-6) 7. Govind son of Dhanna (PW-7) 8. Govind son of Bhairu (PW-8) 9. Ram Dev (PW-9)_ 10. Kalu (PW-10) 11. Chouthu (PW-11) 12. Mst. In the ocular evidence statements of following persons were recorded, 1. Sujan PW-1 2. Satya Narain (P-2) 3. Ganpat Singh (PW-3) 4. Mewa (PW-4) 5. Sarwan (PW-5) 6. Satya Narain (PW-6) 7. Govind son of Dhanna (PW-7) 8. Govind son of Bhairu (PW-8) 9. Ram Dev (PW-9)_ 10. Kalu (PW-10) 11. Chouthu (PW-11) 12. Mst. Guman Kanwar (PW-12) 13. Uddha (PW-13) 14. Ram Karan (PW-14) 15. Beeram (PW-15) 16. Shri Rameshwar Verma, RJS (PW-16) 17. Dr. P.K. Saraswat (PW-17) 18. Ratan Singh (PW-18) 19. Dr. B.K. Mathur (PW-19) 8. In documentary evidence, the prosecution exhibited thirty five documents. 9. The statement of the accused appellant were recorded by the learned trial court under Section 313, Cr.RC. The accused appellant did not produce any evidence in defence. 10. After hearing the arguments of the learned counsel for the accused appellant and the learned Public Prosecutor, under the impugned judgment and order the learned trial court convicted and sentenced the accused appellant as aforestated. Smt. Kamla had been acquitted. Thus, this appeal. 11. Heard Shri Poonam Chand Bhandari, learned Amicus Curiae appearing on behalf of the accused appellant and the learned Public Prosecutor on behalf of the State. 12. Shri Poonam Chand Bhandari, learned Amicus Curiae, contended that the case is wholly based on circumstantial evidence. The prosecution has utterly failed to being home the guilt against the accused appellant. The prosecution utterly failed to prove all the circumstances and further that from these circumstances it can not be inferred that the accused appellant has committed murder of Smt. Shanti. 13. The learned Public Prosecutor, on the other hand, supported the judgment and order of the learned trial court. 14. We have given our thoughtful consideration to the rival contentions advanced by the learned Amicus Curiae and the learned Public Prosecutor, carefully gone through the entire ocular as well as the documentary evidence produced by the prosecution and the judgment and order of the learned trial court. 15. We find sufficient justification in the approach of the learned trial court not to read the statement of Dr. RK. Saraswat (PW-17) which remained incomplete against the accused appellant. The prosecution after the statement of Dr. B.K. Mathur (PW-19) thought it not necessary to complete the statement of Dr. RK. Saraswat (PW-17). Thus the statement of Dr. 15. We find sufficient justification in the approach of the learned trial court not to read the statement of Dr. RK. Saraswat (PW-17) which remained incomplete against the accused appellant. The prosecution after the statement of Dr. B.K. Mathur (PW-19) thought it not necessary to complete the statement of Dr. RK. Saraswat (PW-17). Thus the statement of Dr. P.K. Saraswat (PW-17) could not be read against the accused appellant and rightly not read by the learned trial court. 16. The learned Public Prosecutor, on being put by the Court, very fairly conceded that against the judgment of the learned trial court of acquittal of Smt. Kamla, the State has not preferred any appeal to the Court. 17. The learned trial court at the out set of the judgment has recorded the acquittal of Smt. Kamla of all the charges in the interest of justice. This acquittal is recorded on the ground that against Smt. Kamla prosecution has brought only one evidence, the recovery of kanchli (bra). The seizure memo of kanchli (bra) is Ex.P-8. This has been recovered from the body of Smt. Kamla as she was alleged to have been hearing the same at that time. It is recovered on the belief that it was of Smt. Shanti. The learned trial court has not relied upon this recovery and rightly so. 18. It is difficult to believe by the wife that kanchli (bra) which has been gifted by her husband would have been brought by him after throwing a lady in well and looted her clothes. Another reason given for recording her acquittal is that all the articles belonging to Smt. Shanti were recovered on the information of the accused appellant. Her dead body was recovered on his information. On record of the case the court has not found any information given to Smt. Kamla under Section 27 of the Evidence Act. 19. The prosecution case hinges only on circumstantial evidence. This evidence consists of alleged recovery of dead body of Smt. Shanti on the information of the accused appellant and the recoveries of the articles belonging to the deceased Smt. Shanti. 19. The prosecution case hinges only on circumstantial evidence. This evidence consists of alleged recovery of dead body of Smt. Shanti on the information of the accused appellant and the recoveries of the articles belonging to the deceased Smt. Shanti. The law relating to circumstantial evidence requires that the prosecution must prove each of the circumstance, having a definite tendency pointing out towards guilt of the accused and though each of the circumstances by itself may not be conclusive but this cumulative effect to prove the circumstances may be so complete that it would exclude every other hypothesis and unequivocal point to the guilt of the accused. It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There cannot be hard and fast rule as to the appreciation of evidence in a case and being always and otherwise pertaining to arriving at a finding of fact the same has to be in the manner insisted or warranted by peculiar facts and circumstances of each case. An effort and endeavour in the case based on the circumstantial evidence should be to find out whether crime was committed by the accused and the circumstances proved from themselves into a complete chain unerringly pointing to the guilt of the accused. 20. In the case of V. Vijay Kumar v. State of Kerala, (2000) 1 SCC 268 , their Lordships of the Hon'ble Supreme Court held that when a case rests upon circumstantial evidence such evidence must satisfy three tests; 1. The circumstances from which an inference of the guilt is sought to be drawn must be cogently and firmly established; 2. Though circumstances should of a definite tendency, unerringly pointing towards the guilt of the accused; and 3. The circumstances taken cumulative should form a chain so complete that there is no escape from the conclusion that within all moment probability the crime was committed by the accused and no one else. 21. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis then that of the guilt of accused. 21. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis then that of the guilt of accused. Thus success of the prosecution on the basis of circumstantial evidence will depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. The evidence on record, ascribed to be circumstantial, or to justify the inference of the guilt from incriminating facts and circumstances which are incompatible with the innocence of any other person. 22. The accused appellant was arrested on 4th of September, 1996 at 11.30 pm. His arrest memo is Ex.P-9. The witnesses to the arrest of the accused appellant are Satya Narain son of Amar Chand (PW-2) and Sarwan son of Dhirja (PW 5). From the arrest memo and the statement of the investigating officer Ratan Singh (PW 18) we find that on the search of the accused appellant following incriminating articles were found from his arrest; (1) Rs. 461, (2) ghaghra, (3) saree of black colour, (4) chunri (Odhni), (5) silver borla, (6) wrist watch (HMT), (7) gilt kankti. 23. Vide Ex.P-8, on the information, of the accused appellant kanchli (bra) of the deceased recovered. The witnesses of this recovery are Satya Narain (PW-2) and Sarwan (PW-5). On the information of the accused appellant in the presence of the witnesses Sarwan Lal (PW-5), Satya Narain (PW-2) a pair of rubber slipper was recovered. 24. On search of the accused appellant the incriminating articles were found from his possession and for them a separate memo (Ex "Ml) has been drawn, Ex.P-13 is the information alleged to have been given by the accused appellant regarding the dead body of deceased Smt. Shanti in a well on the border of Village Dodimana. Ex.P-15 is the Inquest report of the dead body of Smt. Shanti. The witnesses of this inquest report again are Satya Narain (PW-5) and Sarwan (PW-2). Sujan (PW-1), the husband of the deceased Smt. Shanti, admitted in his cross-examination that at the time of recovery of the dead body from the well on the alleged information of the accused appellant, the accused appellant was not brought to the well by the police. Police took him (PW-1) in jeep to the place of recovery of the dead body. 25. Police took him (PW-1) in jeep to the place of recovery of the dead body. 25. Ram Dev, son of Sukh Dev (PW-9), in his examination-in-chief deposed that policewala took out of the well the dead body of Smt. Shanti. However, at the time when this dead body was taken out of the well the accused appellant was not present. Ram Dev (PW-9) is the brother of the complainant (the husband of the deceased). He made a categorical statement that at the time when the dead body of Smt. Shanti was taken out of the well by the police, he was present. He admitted in his examination-in-chief that at that time the accused appellants was not present. Chotu son of Kishna (PW-11) nowhere stated that at the time when the dead body of Smt. Shanti was taken out of the well, the accused appellant was present. In the cross-examination he deposed that at the instance of Satya Narain (PW-2) the police wala was taken out the dead body of Smt. Shanti from the well. 26. Uda son of Moda (PW-13) deposed that at the time when the dead body of Smt. Shanti was taken out of the well the accused appellant was not present. 27. Sujan (PW-1) is the husband of Smt. Shanti deposed that the accused appellant was not there at the time when police took out the dead body of Smt. Shanti from the well and same are supported by the witnesses. On this circumstance, no reliance could have been placed to bring home the guilt against the accused appellant. The learned trial court has not considered this aspect and in a routine manner without taking into consideration the well settled principles of reliance upon the circumstances, read this circumstance against the accused appellant. 28. The recovery of Rs. 461/- from the accused appellant is hardly of any incriminating circumstance against the accused appellant. So far as to the recoveries of other articles are concerned, it is true that the identification thereof got done from the husband of the deceased Smt. Shanti and Ram Dev (PW-9), this circumstantial evidence also not sufficient to bring home the guilt against the accused appellant. 29. Ex.P-9 is the arrest memo and search memo of the accused appellant. On his search the police found from his possession Rs. 29. Ex.P-9 is the arrest memo and search memo of the accused appellant. On his search the police found from his possession Rs. 461/-, Ghaghra, Saree of black colour, chunri (Odhni), silver borla, wrist watch (HMT), gilt kanakti. Vide Ex.P-8 the police shown the recovery of kanchli (bra). This has been recovered from the person of another accused Kamla who has been acquitted by the learned trial court. Vide Ex.P-14 a pair of chappals (slippers) were recovered on the information of the accused appellant. On search, the articles which were found in the possession of the accused appellant for them a separate seizure memo has been prepared, which is Ex.P-11. 30. The identification of these articles were conducted by the Judicial Officer, Shri Rama Shankar Verma (PW-16). Ex.P-2 is the identification memo of kanchli (Bra). Ex.P-3 is the identification memo of one pair of chappals (blue steps). Ex.P-4 is the identification memo of gilt kankti and one silver borla. Ex.P-5 is the identification memo of chunri (red colour), Ghaghra (suti black colour). Ex.P-25 is the identification memo of wrist watch (HMT). 31. Sujan (PW-1), in his cross examination, admitted that in the court there was only one kankti, one ghaghra, one kanchli and one chunri. In the identification memo though it is mentioned that identical articles three in numbers were put with the recovered articles but Sujan (PW-1), who was called to identify the same, not supported these documents. Shri Rama Shankar Verma (PW-16) deposed that he mixed with the articles of the case three identical articles. His statement do not find support from the statement of Sujan (PW-1). Thus the identification of kankti, ghaghra, kanchli and chunri is not of any help to the prosecution. Unless the identical articles are mixed with the case articles, which are to be identified, it is not safe to rely upon this identification thereof by the witness concerned. 32. Moreover, Sujan (PW-1) did not see what clothes and ornaments put on by deceased Smt. Shanti on the fateful day. He left his house early in the 1 morning before Smt. Shanti stated to have left the house, it is fruitful to reproduce the relevant portion of the statement of Sujan (PW-1). 32. Moreover, Sujan (PW-1) did not see what clothes and ornaments put on by deceased Smt. Shanti on the fateful day. He left his house early in the 1 morning before Smt. Shanti stated to have left the house, it is fruitful to reproduce the relevant portion of the statement of Sujan (PW-1). eSa rks nw/k nsus x;k gqvk Fkk esjh ekStwnxh esa 'kkfUr ?kj ls ugha fudyh FkhA ;g lgh gS fd 'kkfUr ds ikl 2&3 tksM+h diM+s FksA 'kkfUr ges'kk cksj igurh FkhA xkao dh nwljh vkSjrsa tks tsoj igurh Fkh mlh rjg ds tsoj 'kkfUr igurh FkhA 33. Ex.P-4 is the identification memo of gilt kanakti and silver borla. Where the prosecution did not take any care to put three identical articles with the articles of the case, only on the basis of this document Ex.P-4 and the statement of Rama Shankar Verma (PW-16), it is not safe to believe that the prosecution would have been taken all the care at the time of identification of silver borla.-Moreover the lady belonged to Gurjar caste and every gurjar (by caste) lady put silver borla and this identification, in the facts of this case, of this article by Sujan (PW-1) is highly doubtful and only on this identification it is highly unsafe to convict the accused appellant for the offence. 34. Ram Deo (PW-9) in his statement nowhere deposed that the wrist watch was of H.M.T. He stated that he gave his wrist watch to deceased Smt. Shanti which was of white chain. In the document Ex.P-9 it is mentioned, ,d ?kM+h ,p0,e0Vh0 o ,d dudrh fxYV dh feyh ftudksa tfj;s QnZ tqnkxkuk eqdnek gktk dk eky et:dk gksus ls cjken fd;s tkosaxsA eqyfte dh tkek ryk'kh dk gLc tSy lkeku feyk gSA 35. Thus, in the document Ex.P-9, the arrest memo of accused appellant, it is not mentioned that it is having the white chain. In Ex.P-11, the seizure memo of wrist watch it is described therein as under. ,d ?kM+h ,p0,e0Vh0 t;Ur iqjkuh bLrsekyh 17 ToSYl ftlds Mk;y ds uhps ,p0,e0Vh0 th0ih0 %& 2092726 [kqns gq,A ftlds LVhy dh pSu yxh gSA 36. The prosecution evidence are the alleged recovery of pair of slippers of deceased is also not of any help to it in the matter. ,d ?kM+h ,p0,e0Vh0 t;Ur iqjkuh bLrsekyh 17 ToSYl ftlds Mk;y ds uhps ,p0,e0Vh0 th0ih0 %& 2092726 [kqns gq,A ftlds LVhy dh pSu yxh gSA 36. The prosecution evidence are the alleged recovery of pair of slippers of deceased is also not of any help to it in the matter. Ex.P-31 is the memo of information which is alleged to have been given by the accused appellant for this pair of slippers. In pursuance of this alleged information the recovery of pair of slippers was made vide Ex.P-14 which is at page no. 81 if the paper book and a page No. A137 of the record of the trial court. This recovery has been made in the presence of Sarwan (PW-5) and Satya Narain (PW-2). Sujan (PW-1), in his statement nowhere stated that pair of slippers which deceased Shanti was wearing at the time of incident was of blue colour. The recovery memo of this pair of slippers (Ex.P-14) is not proved by the prosecution witness Sarvan (PW-5). From the statement of Sujan (PW-1) we have already noticed that at the time of identification of other articles the identical articles were not mixed up. The manner and the fashion in which the identification of the articles was undertaken, it is difficult to believe that all precaution would have been taken at the time of identification of the pair of slippers by the prosecution and the identical articles would have been mixed up. 37. Ratan Singh (PW-18), the investigating officer, on his cross examination, admitted that the pair of slippers which was recovered, is of the size and style which is generally worn by common man. He admitted that he did not mix up the identical articles with the articles to be identified. The Magistrate no where stated about the person who mixed the identical articles with the articles to be identified. The reference here may have to the statement of Ratan Singh (PW-18) and therefrom we find that the place wherefrom the recovery of the pair of slippers was made is accessible to common man. Thus, in the facts and circumstances of this case which emerges from the prosecution evidence, no reliance can be placed on this recovery of the pair of slippers (chappals). 38. The statements of Rama Shankar Verma (PW-16), Sujan (PW-1) and the document Ex.P-2 cannot be relied in this case against the accused appellant. Thus, in the facts and circumstances of this case which emerges from the prosecution evidence, no reliance can be placed on this recovery of the pair of slippers (chappals). 38. The statements of Rama Shankar Verma (PW-16), Sujan (PW-1) and the document Ex.P-2 cannot be relied in this case against the accused appellant. Rama Shankar (PW-1) no doubt, stated that the wrist watch was identified by Ram Deo (PW-9) but this statement has not been supported by Ram Deo (PW-9). Ram Deo (PW-9), though made a statement that he could have identified the wrist watch if the same would have been shown to him but he nowhere stated that test identification parade thereof was conducted, he was called for the test identification parade, he went there, he identified the wrist watch and signed Ex.P-2. In his statement recorded in court he did not even whisper that the test identification of this article (wrist watch) was undertaken by the prosecution. Thus, this recovery of the wrist watch from the accused appellant cannot be taken to be an incriminating material against him and that too to the extent to bring home the guilt against the accused appellant in this case. Thus the prosecution utterly failed to prove the case against the accused appellant beyond reasonable doubt. 39. In the result, this appeal is allowed. The judgment and order of the learned Special Sessions Judge (SC & ST) (Prevention of atrocities Cases), Ajmer dated 4.9.2000 in Sessions Case No. 48/97 convicting the accused appellant Kalu @ Gulla son of Halu by Caste Bagaria, Aged 50 years, Resident of Mohami, Police Station Gaigal, District Ajmer (at present in Central Jail, Ajmer) for the offence under Section 302, l.P.C. and sentencing him to undergo lire imprisonment, is quashed and set aside. The appellant Kalu @ Gulla is acquitted of the charge levelled against him. He is in Central Jail, Ajmer. He may be set at liberty forthwith if not required in any other case.Appeal allowed. *******