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2004 DIGILAW 1115 (RAJ)

Thakur Singh v. State of Rajasthan

2004-08-04

K.K.ACHARYA, SUNIL KUMAR GARG

body2004
Honble GARG, J.–This appeal has been filed by the accused appellant from jail vide letter dated 30.7.2001 aggrieved from judgment and order dated 9.7.2001 passed by the learned Addl. Sessions Judge (Fast Track), Chittorgarh in Sessions Case No. 90/2001 by which he while acquitting for the offence under Section 324 IPC, convicted the accused appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs. 1000, in default of (2). Since this appeal was preferred by the accused appellant from jail and he was not represented by any counsel, therefore, this Court vide order dated 10.9.2001 appointed Shri Anshuman Mishra as Amicus Curiae to argue the case on behalf of the accused appellant. However, thereafter, since Shri P.S. Bhati and Dhirendra Singh Bhati filed their power to represent the accused appellant, therefore, this Court vide order dated 6.3.2002 ordered that the order of appointing amicus curiae dated 10.9.2001 may not be given effect to. (3). It arises in the following circumstances: On 28.2.1999 at about 6.15 PM, PW2 Himmat Singh lodged a written report Ex.P/2 before PW16 Pawan Singh, who was at that time, SHO, Police Station Akola District Chittorgarh, stating inter-alia that accused appellant Thakur Singh aged about 26 years, resident of village Hingwania, is the son of his elder brother and the accused appellant was doing labour work in Ahmedabad for the last 10-15 years. It was further stated in the report Ex.P/2 by PW2 Himmat Singh that his elder brother Tej Singh (PW10) also used to do labour work in Ahmedabad and on 25.2.1999, PW10 Tej Singh had brought the accused appellant to village Hingwania because accused appellant was not feeling well there. It was further stated in the report Ex.P/2 that on 26.2.1999, PW3 Bagh Singh, who is brother of accused appellant, was sent to Kishoreji-Ka- Kheda for bringing accused appellants brother-in-law Gotu Singh and he came back with Gotu Singh in the evening. It was further stated in the report Ex.P/2 that on 26.2.1999, PW3 Bagh Singh, who is brother of accused appellant, was sent to Kishoreji-Ka- Kheda for bringing accused appellants brother-in-law Gotu Singh and he came back with Gotu Singh in the evening. It was further stated in the report Ex.P/2 that on 27.2.1999, both Gotu Singh (not produced by the prosecution) and accused appellant took rest and at about 4.30 PM in the evening, Gotu Singh left the village Hingwania for village Gundli where he stayed in the night and on the morning of 28.2.1999 at about 7.45 AM, Gotu Singh came back again to village Hingwania from Gundli and before he reached Hingwania, the accused appellant, after putting his wife Dhapu Kunwar (hereinafter referred to as the deceased) and minor child Neeru in the house, locked the gate from inside. It was further stated in the report Ex.P/2 by PW2 Himmat Singh that thereafter, he alongwith Gotu Singh (brother of deceased) left Hingwania for Chanderiya to bring PW1 Shyam Singh, elder brother of accused appellant and they returned back in the evening at about 4.30 PM. It was further stated in the report Ex.P/2 that thereafter, Gotu Singh had gone to some other place and in the noon, PW18 Chanda Kunwar, wife of PW6 Pratap Singh and PW20 Pushpa Kunwar, wife of Ram Singh, PW7 made efforts to open the door of the house, but accused appellant did not open the door as he had killed his wife (deceased). It was further stated in the report Ex.P/2 by PW2 Himmat Singh that thereafter his father PW1 Shyam Singh asked him to inform the villagers and thereafter, he went to village and called Bhanwar Singh, Samundar Singh and Others. It was further stated in the report Ex.P/2 that accused appellant had closed the house by putting lock on the door from inside and did not open the door for whole day. It was further stated in the report Ex.P/2 that thereafter so many other people assembled there and then, on seeing from roof of the house after removing the kelu, it was found that deceased had been murdered and thereafter, door of the house was got opened by people by pushing and the accused appellant was caughthold and he was tied there. It was further stated in the report Ex.P/2 that deceased was killed by sword and after pressing her neck. It was further stated in the report Ex.P/2 by PW2 Himmat Singh that the accused appellant was a man of bad character and he had not seen the dead body of the deceased after entering the room as many people had assembled there and people were crying and thereafter, PW1 Shyam Singh asked him to lodge the report and thus, he has lodged the report Ex.P/2. On this report Ex.P/2, police registered the case and chalked out regular FIR Ex.P/3 and investigation was started by PW23 Kuber Singh. The further case of the prosecution is that during investigation on 1.3.1999 at about 8.45 AM, from the room where murder of deceased had taken place, sword and kulhari (Article 2), which were lying in that room, were seized by PW23 Kuber Singh through fard Ex.P/5 in presence of PW 13 Shanker Singh and PW4 Gaj Singh and both articles were stained with blood and site plan Ex.P/4 was also got prepared by PW23 Kuber Singh. The blood smeared soil (Article 3) and control soil (Article 4) were seized by PW23 Kuber Singh through fard Ex.P/6. The clothes i.e. Lungda, Lahanga and kurti (Article 5) of deceased were seized by PW23 Kuber Singh through fard Ex.P/7. The safa (Article 6) was also seized by PW23 Kuber Singh through fard Ex.P/8. The further case of the prosecution is that PW23 Kuber Singh had got arrested accused appellant on 28.2.1999 through arrest memo Ex.P/13 in presence of PW4 Gaj Singh and PW8 Ganpat Singh and on 1.3.1999, accused appellant gave information Ex.P/38 for recovery of iron rod (sariya) and woodan patiya and in pursuance of that information Ex.P/38, the accused appellant got recovered iron rod (sariya) and woodan patiya (Article 1) and the same was seized by PW23 Kuber Singh through fard Ex.P/14 in presence of PW8 Ganpat Singh and PW4 Gaj Singh. The FSL report is Ex.P/24. During investigation, the post mortem of the dead body of the deceased was got conducted by PW15 Dr. Khem Chand Saini and the post mortem report is Ex.P/26 where it was opined that mode of death was asphyxia and cause of death was strangulation. The FSL report is Ex.P/24. During investigation, the post mortem of the dead body of the deceased was got conducted by PW15 Dr. Khem Chand Saini and the post mortem report is Ex.P/26 where it was opined that mode of death was asphyxia and cause of death was strangulation. After usual investigation, police submitted challan for the offence under Sections 302, 326, 324 IPC against the accused appellant in the Court of Magistrate and from where the case was committed to the Court of Session. On 18.9.1999, the learned Addl. Sessions Judge No. 2, Chittorgarh framed the charges for the offence under Sections 302 and 324 IPC against the accused appellant. The charges were read over and explained to the accused appellant, who denied the charges and claimed trial. During the course of trial, the prosecution got examined as many as 26 witnesses and exhibited several documents. Thereafter, statement of the accused appellant under Section 313 Cr.P.C. was recorded. In defence, no evidence was produced by the accused appellant. After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Chittorgarh through impugned judgment and order dated 9.7.2001 while acquitting for the offence under Section 324 IPC, convicted the accused appellant for the offence under Section 302 IPC and sentenced him in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts that the accused appellant had murdered the deceased and in coming to that conclusion, he has placed reliance on some portion of statements of PW2 Himmat Singh and PW4 Gaj Singh, which were recorded by police, though both were declared hostile and he also placed reliance on recovery of iron rod (Article 1) at the instance of accused appellant. Aggrieved from the said judgment and order dated 9.7.2001 passed by the learned Addl. Sessions Judge (Fast Track), Chittorgarh, this appeal has been filed by the accused appellant from jail. (4). Aggrieved from the said judgment and order dated 9.7.2001 passed by the learned Addl. Sessions Judge (Fast Track), Chittorgarh, this appeal has been filed by the accused appellant from jail. (4). In this appeal, the following submissions have been made by the learned counsel for the accused appellant :- (i) That in this case, the main prosecution witnesses, namely, PW1 Shyam Singh, PW2 Himmat Singh, PW3 Bagh Singh, PW4 Gaj Singh, PW6 Pratap Singh, PW7 Ram Singh, PW8 Ganpat Singh, PW9 Laxman Singh, PW10 Tej Singh, PW11 Fouj Singh, PW18 Chanda Kunwar, PW19 Indra Kunwar, PW20 Pushpa Kunwar and PW21 Gamer Kunwar have been declared hostile and therefore, there is no credible evidence against the accused appellant for connecting him with the commission of crime. (ii) That the main witness of the alleged incident was Gotu Singh, who was brother of the deceased, but he has not been produced by the prosecution and therefore, there is no evidence to prove the fact that the accused appellant, after putting his wife (deceased) and minor daughter, in the house, closed the door of the house from inside by putting lock and thereafter, he murdered his wife (deceased). (iii) That so far as recovery of sword and kulhari (Article 2) is concerned, the same was recovered from the room and it was not recovered at the instance of the accused appellant and furthermore, recovery of iron rod (Article 1) at the instance of accused appellant does not at all connect the accused appellant with the commission of crime. Thus, it was submitted that it is a case of no evidence and the findings of conviction recorded by the learned trial Judge are wholly erroneous and perverse and based on no material or evidence and therefore, the same cannot be sustained and liable to be set aside and the accused appellant is entitled to acquittal. (5). On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 9.7.2001 passed by the learned Addl. Sessions Judge, (Fast Track) Chittorgarh. (6). We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and gone through the record of the case. (7). Before proceeding further, first medical evidence of this case has to be seen. (8). The post mortem report of deceased is Ex.P/26 and to prove the same, the prosecution has produced PW15 Dr. Khem Chand Saini. (9). (7). Before proceeding further, first medical evidence of this case has to be seen. (8). The post mortem report of deceased is Ex.P/26 and to prove the same, the prosecution has produced PW15 Dr. Khem Chand Saini. (9). PW15 Dr. Khem Chand Saini in his statement recorded in Court has stated that on 1.3.1999 he was Medical Officer in Primary Health Centre, Akola District Chittorgarh and on that day, he conducted the post mortem of the dead body of the deceased and found the following injuries on his body:- 1. Incised wound 3 x 2.0cm x muscle deep on dorsal side of right hand. 2. Incised wound 3 x 1.0cm x muscle deep on right palm near little finger. 3. Incised wound 3 x 1.0cm x muscle deep just near to injury No. 2 4. Incised wound 2.5cm x 1cm x muscle deep on right thumb ventral side. 5. Incised wound 5 x 2.0cm x muscle deep on left little finger medical side. 6. Incised wound 4.5 x 1.5cm x muscle deep on left wrist joint medical side. 7. Incised wound 3 x 1cm x muscle deep on left upper lateral side just above the elbow joint. 8. Incised wound 9.0cm x 3.5cm x muscle deep on right knee joint medical side. 9. Bruise 6inch x 1inch front of the neck transversely placed across windpipe. He opined that the mode of death was asphyxia and cause of death was strangulation. He has proved the post mortem report Ex.P/26. (10). Thus, from the statement of PW15 Dr. Khem Chand Saini, it is very much clear that the deceased died because of asphyxia and strangulation and thus, the death of the deceased may be classified as homicidal one. (11). In this case, there are two sets of evidence one belonging to the accused appellant and another belonging to the deceased. First set of evidence belonging to accused appellant (12). As per the report Ex.P/2, which was lodged by PW2 Himmat Singh, the case of the prosecution is that the accused appellant, after putting his wife (deceased) and minor daughter Neeru in the house, closed the door by putting lock from inside and thereafter, he murdered his wife (deceased) and when door of the room was got opened, he was found in the room and he was caughthold and tied there and Gotu Singh, brother of the deceased was there. (13). (13). PW2 Himmat Singh, who was author of the report Ex.P/2, has been declared hostile, but in cross-examination he has admitted that report Ex.P/2 was lodged by him, but that report was not written by him and in his presence, police seized sword and kulhari (Article 2) from the room. (14). Thus, through his statement recorded in Court, PW2 Himmat Singh does not support the version as narrated by him in his report Ex.P/2. (15). Apart from this, the other, witnesses of the prosecution belonging to the accused appellant, namely, PW1 Shyam Singh, brother of accused appellant, PW3 Bagh Singh, another brother of accused appellant, PW6 Pratap Singh, another brother of accused appellant, PW7 Ram Singh, another brother of accused appellant, PW10 Tej Singh, close relative of accused appellant, PW11 Fouj Singh father of PW10 Tej Singh, PW18 Chanda Kunwar, wife of PW6 Pratap Singh, PW19 Indra Kunwar mother of accused appellant, PW20 Pushpa Kunwar wife of PW7 Ram Singh and PW21 Gamer Kunwar wife of PW11 Fouj Singh had been declared hostile and they do not say (i) that the accused appellant was in the room where the alleged incident had taken place and (ii) that he had committed the murder of his wife (deceased). Other set of evidence belonging to deceased (16). The other set of evidence is found in the statements of PW12 Ram Singh, PW24 Lal Singh and PW25 Bagh Singh. (17). PW12 Ram Singh, who is brother of deceased, states that nearabout one year back, his brothers Bagh Singh, PW25 and Gotu Singh came to his house and informed that they were called by PW3 Bagh Singh, who was brother of the accused appellant, on the ground that the accused appellant had become mad. He has further stated that his sister (deceased) had been killed by accused appellant after putting her in the room. He has further stated that he reached Hingwania at about 10.00 PM in the night and at that time, he saw the police there and on being enquired, the police told that deceased had been killed and police further told that accused appellant had been taken to Police Station Akola. In cross-examination, this witness admits the following facts:- (i) That there is a distance of 5-6 kos between the village Hingwania, where accused appellant lives and Kishoreji-Ka-Kheda where PW25 Bagh Singh used to live. In cross-examination, this witness admits the following facts:- (i) That there is a distance of 5-6 kos between the village Hingwania, where accused appellant lives and Kishoreji-Ka-Kheda where PW25 Bagh Singh used to live. (ii) That he was called by Bagh Singh, PW3 and he has not met with accused appellant and his sister (deceased). (iii) That it is correct to say that accused appellant and his brothers used to live in Ahmedabad. (iv) That PW3 Bagh Singh met him in the village and thereafter, he made telephone call to Ahmedabad. (v) That his sister (deceased) had not entered the room in his presence nor he had seen the accused appellant in that room with his own eyes. (18). Thus, from the statement of PW12 Ram Singh, the fact that the accused appellant was in the room where the murder of deceased had taken place, has not been established. Neither he met with his sister (deceased) nor with the accused appellant. He has not seen the accused appellant as he had already been taken to thana by the police. Hence, he is not the witness of the fact that he saw the accused appellant entering the room and after murder, coming out from that room. (19). Another witness is PW24 Lal Singh, who is another brother of PW12 Ram Singh and also brother of deceased and this witness states that PW3 Bagh Singh came to Kishoreji-Ka-Kheda and told that since accused appellant was ill, therefore, he was being called and upon this, his brother Gotu Singh (not produced by prosecution) was sent to Hingwania and on next day, his another brother Bagh Singh, PW25 also went there. He has further stated that his sister (deceased) had been killed by the accused appellant. He has further stated that at about 10.00 PM, Samundar Singh came alongwith the Jeep and told him that his all four brothers had been called and thereafter, he alongwith his brothers, namely, Gotu Singh (not produced by prosecution), PW25 Bagh Singh and PW12 Ram Singh had gone to village Hingwania and found that their sister (deceased) had been killed and police was there. He has further stated that his sister (deceased) would have been killed by accused appellant and none else. He has further stated that his sister (deceased) would have been killed by accused appellant and none else. In cross examination, this witness admits the following facts:- (i) That Gotu Singh and Bagh Singh, PW25 had gone to village Hingwania and they were sent by him. (ii) That it is correct to say that the accused appellant used to do some job in Ahmedabad. (iii) That he had seen the accused appellant 5-6 days before the alleged incident and after alleged incident, he saw the accused appellant in the police station. (20). Thus, from the statement of PW24 Lal Singh, it appears that he is not the witness of the following facts:- (i) That he saw the accused appellant in the room where the murder of deceased had taken place. (ii) That he saw the accused appellant entering the room and after murder, coming out from the room. (21). The next witness is PW25 Bagh Singh, who is also brother of the deceased. He has stated that PW3 Bagh Singh, brother of accused appellant, came to his village and stated that accused appellant had become mad and upon this, he and his brother Gotu Singh had gone to village Hingwania where they found that the accused appellant had closed the door of the room and in that room, deceased was there and they asked the accused appellant to take out the deceased from the room and upon this, accused appellant told them not to touch the door and he also told them to bring their brothers and since the brothers of accused appellant were at Ahmedabad, therefore, for making telephone to them, he went to Wana village and his brother Gotu Singh reached Chittorgarh so that he could bring PW1 Shyam Singh, another brother of accused appellant. He has further stated that in the night, he and his brothers reached village Hingwania, but at that time, deceased had already been murdered and she was murdered by the accused appellant and police had already taken the accused appellant to thana before they reached. In cross-examination, this witness admits the following facts:- (i) That it is correct to say that he had no quarrel with the accused appellant and his behaviour was good with all. (ii) That his brother Gotu Singh had come from Chittorgarh. In cross-examination, this witness admits the following facts:- (i) That it is correct to say that he had no quarrel with the accused appellant and his behaviour was good with all. (ii) That his brother Gotu Singh had come from Chittorgarh. (iii) That on the fateful day, he had not gone to Hingwania and he reached Hingwania in the night and not before that. (iv) That before he reached village Hingwania, police had already taken the accused appellant to Kapasan Thana. (v) That it is correct to say that accused appellant was not taken by the police in his presence. (vi) That he saw the accused appellant for the first time not in the village Hingwania, but in the police station. (vii) That it is correct to say that he was called by PW3 Bagh Singh, brother of accused appellant. (viii) That it is correct to say that Gotu Singh met him in the night in village Gudli and he reached Hingwania at about 11.00 PM in the night. (22). Thus, from the statement of PW25 Bagh Singh, it is very much clear that he reached village Hingwania in the night at about 11.00 PM and before he reached there, the police had already taken the accused appellant to Thana. Therefore, this witness is also not a witness of the fact that he saw the accused appellant entering the room where deceased was murdered and after murder, coming out from the room. Further, he saw that before he reached village Hingwania, murder of deceased had already taken place and the accused appellant was in the company of police. (23). Thus, the assessment of the evidence of PW12 Ram Singh, PW24 Lal Singh and PW25 Bagh Singh, all brothers of deceased, is that no doubt they reached village Hingwania, but before their reaching, murder of deceased had already taken place and the accused appellant was in the company of police. Therefore, they are not witnesses of the fact that they saw the accused appellant entering the room where deceased was murdered and after murder, coming out of that room. (24). Now, the evidence of PW23 Kuber Singh, who has conducted the investigation in the present case, has to be seen. (25). Therefore, they are not witnesses of the fact that they saw the accused appellant entering the room where deceased was murdered and after murder, coming out of that room. (24). Now, the evidence of PW23 Kuber Singh, who has conducted the investigation in the present case, has to be seen. (25). PW23 Kuber Singh, who was at that time SHO Police Station Akola has stated that from the place where murder took place, on 1.3.1999 through fard Ex.P/5, he seized sword and kulhari (Article 2) in presence of PW13 Shankar Singh and PW4 Gaj Singh. He has further stated that on 28.2.1999, he got arrested the accused appellant through arrest memo Ex.P/13. He has further stated that on the information of accused appellant Ex.P/38, through fard Ex.P/14, he recovered and seized iron rod (sariya) and wooden patiya (Article 1) in presence of PW8 Ganpat Singh and PW4 Gaj Singh. In cross-examination, this witness admits the following facts:- (i) That it is correct to say that he did not send the sariya and patiya (Article 1) to FSL for the purpose of chemical examination. (ii) That safa (Article 6), which was seized through fard Ex.P/8 on the spot, was not stained with blood. (iii) That he did not take the clothes of the accused appellant as there was no blood on them. (iv) That there was no injury on the person of the accused appellant. (v) That he did not see any blood stains on the person of the accused appellant. (vi) That he reached on the spot on 28.2.1999 and not on 1.3.1999. (vii) That it is correct to say that the accused appellant was got arrested on 28.2.1999. (viii) That suggestion that accused appellant had been doing labour work in Gujrat for the last 5-7 years was found correct. (ix) That suggestion that accused appellant had come to his village from Ahmedabad because he was will, was also found correct. (x) That during investigation, he did not come to the conclusion that accused appellant was mad. (xi) That he did not take the blood sample of the accused appellant nor that of the deceased because blood stains were found only on the clothes of the deceased. (xii) That it is correct to say that when he reached on the spot, he did not see the accused appellant in the room where murder of deceased had taken place. (xii) That it is correct to say that when he reached on the spot, he did not see the accused appellant in the room where murder of deceased had taken place. (xiii) That it is also correct to say that when he reached in the room, he found the sword in the sheath (miyan). (xiv) That there was no blood on the sheath (miyan). (xv) That he sent the sword alongwith sheath (miyan) to FSL. (xvi) That there was blood on the kulhari. (26). Thus, from the statement of PW23 Kuber Singh, the following facts have emerged:- (i) That iron rod (sariya) and wooden patiya (Article 1) recovered at the instance of accused appellant were not sent to FSL for chemical analysis. (ii) That PW23 Kuber Singh reached on the spot on 28.2.1999 and not on 1.3.1999 and when he reached on the spot, he did not find the accused appellant in the room, where deceased was murdered. (iii) That accused appellant was arrested on 28.2.1999 through arrest memo Ex.P/13 and no injury was found on his person and his clothes were not stained with blood. (iv) That the sword (Article 2), which was recovered from the place of occurrence on 1.3.1999 through fard Ex.P/5, was found in the sheath (miyan) and no blood was found on it. Recovery of iron road (sariya) & wooden patiya (Article-1) (27). In this case, on the information (Ex.P/38) of accused appellant, through fard Ex.P/14, PW23 Kuber Singh recovered and seized iron rod (sariya) and wooden patiya (Article 1) in presence of PW8 Ganpat Singh and PW4 Gaj Singh. (28). Both the motbir witnesses of recovery fard Ex.P/14, namely, PW8 Ganpat Singh and PW4 Gaj Singh have been declared hostile. Recovery of sword and kulhari (Article-2) from the place of occurrence. (29). In this case, on 1.3.1999, through fard Ex.P/5, PW23 Kuber Singh, seized sword and kulhari (Article 2) from the place of occurrence, in presence of PW13 Shankar Singh and PW4 Gaj Singh. (30). PW13 Shankar Singh has stated that he is brother of deceased though not real. (31). PW4 Gaj Singh has been declared hostile. (32). Now the question for consideration is whether on the basis of the above evidence, the findings of conviction recorded by the learned trial Judge against the accused appellant for the offence under Section 302 IPC can be sustained or not. (33). (31). PW4 Gaj Singh has been declared hostile. (32). Now the question for consideration is whether on the basis of the above evidence, the findings of conviction recorded by the learned trial Judge against the accused appellant for the offence under Section 302 IPC can be sustained or not. (33). As already stated above, in this case, the main prosecution witnesses, namely, PW1 Shyam Singh, PW2 Himmat Singh, PW3 Bagh Singh, PW4 Gaj Singh, PW6 Pratap Singh, PW7 Ram Singh, PW8 Ganpat Singh, PW9 Laxman Singh, PW10 Tej Singh, PW11 Fouj Singh, PW18 Chandra Kunwar, PW19 Indra Kunwar, PW20 Pushpa Kunwar and PW21 Gamer Kunwar had been declared hostile and thus, there is no credible evidence against the accused appellant for connecting him with the commission of crime. (34). So far as the evidence of PW12 Ram Singh, PW24 Lal Singh and PW25 Bagh Singh, who were brothers of deceased, is concerned, the same has already been discussed above and they are not the witnesses of the facts that they saw the accused appellant entering the room where deceased was murdered and after murder, coming out from that room. However, when they reached village Hingwania, they saw the accused appellant in the company of police. (35). Thus, from the discussion of evidence just made above, it can easily be said:- (i) That there is no evidence to prove the fact that the accused appellant was seen by anybody entering in the room where murder of deceased had taken place and after murder, coming out of that room. (ii) That there is also no evidence to prove the fact that after commission crime, when accused appellant came out from the room, he was caughthold by people and thereafter, he was handed over to police. (iii) That there is also no evidence to prove the fact that when accused appellant came out from the room, he was having any weapon or his clothes were stained with blood. (iv) That clothes of the accused appellant were not found stained with blood. (36). Apart from the above, so far as motive is concerned, the same has not been proved in this case why murder of deceased had taken place and this fact also leads to the conclusion about innocence of the accused appellant. (37). (iv) That clothes of the accused appellant were not found stained with blood. (36). Apart from the above, so far as motive is concerned, the same has not been proved in this case why murder of deceased had taken place and this fact also leads to the conclusion about innocence of the accused appellant. (37). Furthermore, as per report Ex.P/2, which was lodged by PW2 Himmat Singh, many people assembled there and therefore, there should have been direct evidence on the point that accused appellant was seen in the room where murder of deceased had taken place and thereafter, accused appellant was caughthold by persons and then handed over to the police, but that evidence is missing in this case. Thus, it also creates doubt on the prosecution story. (38). Apart from this, as per report Ex.P/2, the most important witness of the occurrence was Gotu Singh, but he was not produced by the prosecution and his non-production also casts doubt on the prosecution story. Recovery of iron rod (sariya) & wooden patiya (Article-1) (39). In this case, on the information (Ex.P/38) of accused appellant, through fard Ex.P/14, PW23 Kuber Singh recovered and seized iron rod (sariya) and wooden patiya (Article 1) in presence of PW8 Ganpat Singh and PW4 Gaj Singh. (40). In our considered opinion, the recovery of iron rod (sariya) and wooden patiya (Article 1) is of no value because of the following reasons:- (a) That iron rod (sariya) and wooden patiya (Article 1) was not sent to FSL for chemical analysis as no blood was found on it. (b) That since on the so-called iron rod (sariya) and wooden patiya (Article 1) there was no blood, therefore, to say that the accused appellant had murdered deceased with these weapons, cannot be accepted. (c) That apart from this, since no blood was found on the clothes of the accused appellant, therefore, though the accused appellant was got arrested on the same day i.e. on 28.2.1999 just after the occurrence, this fact also leads to the conclusion that possibility that accused appellant had not murdered deceased cannot be ruled out. (d) That both motbir witnesses PW8 Ganpat Singh and PW4 Gaj Singh have been declared hostile. (41). Hence, it is held that the recovery of Article-1 iron rod (sariya) and wooden patiya does not connect the accused appellant with the commission of crime. (d) That both motbir witnesses PW8 Ganpat Singh and PW4 Gaj Singh have been declared hostile. (41). Hence, it is held that the recovery of Article-1 iron rod (sariya) and wooden patiya does not connect the accused appellant with the commission of crime. Recovery of sword and kulhari (Article-2) from the place of occurrence. (42). In this case, on 1.3.1999, through fard Ex.P/5, PW23 Kuber Singh seized sword and kulhari (Article 2) from the place of occurrence, in presence of PW13 Shankar Singh and PW4 Gaj Singh. (43). In our considered opinion, the recovery of sword and kulhari (Article 2) through fard Ex.P/5 from the place of occurrence also does not connect the accused appellant with the commission of crime because of the following reasons:- (a) That recovery of Article 2 sword and kulhari through fard Ex.P/5 was made by PW23 Kuber Singh from the place of occurrence on 1.3.1999 in presence of PW13 Shankar Singh and PW4 Gaj Singh, but PW23 Kuber Singh states that he reached the place of occurrence on 28.2.1999 and not on 1.3.1999 and this fact creates doubt on the so-called recovery of Article 2 sword and kulhari. (b) That when police reached on the spot on 28.2.1999, why Article-2 sword and kulhari were not seized on that day and if they were not seized on 28.2.1999 and they were seized on 1.3.1999 meaning thereby the possibility that between this period, somebody would have put them in that room, cannot be ruled out. (c) That recovery of so called Article 2 sword and kulhari does not connect the accused appellant with the commission of crime as it was not made at his instance, but from the place of occurrence and furthermore, though that recovery should have been made on 28.2.1999 when PW23 Kuber Singh reached the place occurrence, but it was made on 1.3.1999 meaning thereby these articles were not available at the place of occurrence on 28.2.1999 otherwise they should have been seized on that day by PW23 Kuber Singh. Apart from this, PW23 Kuber Singh states that he did not reach place of occurrence on 1.3.1999, but he reached on 28.2.1999 and this fact creates doubt on the so called recovery. Apart from this, PW23 Kuber Singh states that he did not reach place of occurrence on 1.3.1999, but he reached on 28.2.1999 and this fact creates doubt on the so called recovery. (d) That apart from the above, out of two motbir witnesses of so-called recovery of Article 2 sword and kulhari, PW4 Gaj Singh has been declared hostile and PW13 Shankar Singh is relative of deceased. (44). Hence, it is held that so-called recovery of Article-2 sword and kulhari also does not connect the accused appellant with the commission of crime. (45). Apart from the above, it may be stated here that the evidence, which has been discussed above, has to be examined keeping in mind the cardinal principle of criminal jurisprudence that innocence of an accused person is presumed till otherwise proved. It is the duty of the prosecution to prove the prisoners guilt subject, to any statutory exception. In this respect, the decision of the Honble Supreme Court in Nisar Ali vs. State of UP (1), may be referred to. (46). In Sayyad Akbar vs. State of Karnataka (2), the Honble Supreme Court observed as follows:- ``......There is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. (47). On standard of proof necessary for crime, the Honble Supreme Court in Sarwan Singh Ratan Singh vs. State of Punjab (3), observed as follows:- ``It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between, may be true and `must be true, there is inevitably a long distance to travel and the whole of this distance might be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. (48). Considered as a whole, the prosecution story may be true; but between, may be true and `must be true, there is inevitably a long distance to travel and the whole of this distance might be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. (48). It may be stated here that in criminal cases, the prosecution is under an obligation to prove the case beyond reasonable doubt and if there is any doubt, the benefit must go to the accused. (49). The result of the above discussion is that at the most since the deceased was wife of the accused appellant, therefore, a suspicion is raised and undoubtedly it should have been raised on the point that the accused appellant might have murdered the deceased, but as stated above, an accused cannot be convicted on the basis of suspicion because even when morally or conscientiously an accused may appear to be guilty on the basis of suspicion, it cannot amount to legal proof and he cannot be convicted. Caution is a safe and unfailing guide in the judicial armoury. It does not, however, justify a prior assumption and cannot warrant a finding of guilt. It is settled law that `graver the crime, grater should be the standard of proof. Where the murder is cruel and revolting one, it is necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime should induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. (50). A bare perusal of the impugned judgment of the learned trial Judge reveals that the learned trial Judge was swayed by the only idea that since the accused appellant was husband of the deceased, therefore, there is every possibility that he must have been in the house and when he was in the house, murder of deceased should have been committed by him. However, no doubt this might be a strong circumstance but for that there should be some evidence and the best evidence that could be was of Gotu Singh, brother of deceased, but he has not been produced by the prosecution and apart from this, the main prosecution witnesses have been declared hostile and furthermore, there is no reliable evidence to prove the fact that the accused appellant was in the house when the alleged incident took place. (51). (51). Furthermore, it appears that the learned trial Judge was convinced morally that the accused appellant had committed the murder of his wife (deceased), but in criminal trial, it is again stated that there is no place for moral conviction and for conviction, cogent and reliable evidence is must. Theory of implicit proof (52). Sometimes it is argued that on the probabilities, conviction should take place and to meet out this eventuality, the Honble Supreme Court in the following cases held that insistence on `implicit proof is erroneous and unsustainable. In criminal cases, the burden of proving the guilt of the accused beyond all reasonable doubts always rests on the prosecution and if it fails to adduce satisfactory and reliable evidence to discharge that burden, it cannot fall back upon the evidence adduced by the accused persons in support of their defence to rest its case solely thereupon:- (i) State of Uttar Pradesh vs. Ranjha Ram & Ors. (4). (ii) Jarnail Singh vs. State of Punjab (5). (53). Therefore, to say in the present case that since there is strong suspicion against the accused appellant, therefore, he was rightly convicted by the learned trial Judge, cannot be accepted because suspicion however, great cannot take the place of proof. Conviction cannot be based on suspicion nor on the conscience of the Court being morally satisfied about the complicity of an accused person. (54). Conviction cannot be based on suspicion nor on the conscience of the Court being morally satisfied about the complicity of an accused person. (54). For the reasons stated above and looking to the entire facts and circumstances of the case and the facts that the main witnesses of the prosecution have been declared hostile; there is no reliable evidence to prove the facts that accused appellant was seen entering room where deceased was murdered and after murder, coming out of that room; there is also no evidence that there was any motive on the part of the accused appellant to commit murder of deceased; the main and material witness Gotu Singh, brother of deceased, had not been examined and produced by the prosecution and the so-called recovery of iron rod (sariya) and wooden patiya (Article 1) at the instance of the accused appellant does not connect the accused appellant with the commission of crime and further, recovery of Article 2 sword and kulhari from the place of occurrence was found doubtful and could be planted one and it also does not connect the accused appellant with the commission of crime, it is held that the prosecution has failed to prove its case beyond all reasonable doubts against the accused appellant for the offence under Section 302 IPC. The evidence produced by the prosecution in this case is not sufficient and reliable to hold with certainty the accused appellant guilty for the offence under Section 302 IPC. The findings of the learned trial Judge are based more on surmises and conjectures than on any reliable evidence. No good, valid and cogent reasons have been assigned by the learned trial Judge while convicting the accused appellant for the offence under Section 302 IPC. Thus, the findings of the learned trial Judge convicting the accused appellant for the offence under Section 302 IPC cannot be sustained and liable to be set aside and the accused appellant is entitled to acquittal, after giving benefit of doubt and this appeal deserves to be allowed. Accordingly, this appeal filed by the accused appellant Thakur Singh is allowed and the impugned judgment and order dated 9.7.2001 passed by the learned Addl. Sessions Judge (Fast Track), Chittorgarh are quashed and set aside and the accused appellant is acquitted of the charge for the offence under Section 302 IPC. Accordingly, this appeal filed by the accused appellant Thakur Singh is allowed and the impugned judgment and order dated 9.7.2001 passed by the learned Addl. Sessions Judge (Fast Track), Chittorgarh are quashed and set aside and the accused appellant is acquitted of the charge for the offence under Section 302 IPC. Since the accused appellant is in jail, he be released forthwith, if not required in any other case.