JUDGMENT 1. - -The present appeal has been filed by the accused-appellant Shanti. She has been convicted for an offence under section 302 Indian Penal Code and has been sentenced to life imprisonment and a fine of Rs. 1,000/- by the Court of Additional District and Sessions Judge (Fast Track), Pratapgarh in Sessions Case No. 130/2001 by judgment dated 22.1.2002. 2. The prosecution was lodged on the basis of first information report lodged at Police Station Chhoti Sadri on 30.4.1999 at about 4.15 p.m. According to the first information report, in which no accused has been named, it was narrated that the deceased Pyari Bai had gone to her field at about 9.00 a.m. for cutting the grass. The first informant had gone to the house of Pannalal. He was informed by Mangu at about 2.15 p.m. that the old lady has been killed at the field. On receiving this information, he went to the field of Bagdi Ram, i.e. son of the deceased and saw Pyari Bais dead body lying there. The blood was oozing out from the body. There were injuries on the chest of the deceased. The son of the deceased was also there and he had sent him for lodging the first information. In this first information report, which was lodged at the instance of the son of the deceased, no accused have been named. 3. After investigation, the police came to the conclusion that there is circumstantial evidence against the accused and to support its case, prosecution examined 10 witnesses and exhibited 22 documents. After prosecution evidence, the accused was examined under section 313 Criminal Procedure Code She denied her complicity. 4. The trial Court, after considering the arguments of the parties, came to the conclusion that the case of circumstantial evidence is made out against the accused. According to the trial Court, there was a strong motive available against the accused on the basis of evidence rendered by the prosecution that was that the accused had apprehended that her newly born child will be killed by the deceased as she presumed that the deceased was a dakan. Under the belief of deceased being dakan the accused strongly felt that she will cause harm to her child and, therefore, she had a strong motive to eliminate the deceased. 5. Under the belief of deceased being dakan the accused strongly felt that she will cause harm to her child and, therefore, she had a strong motive to eliminate the deceased. 5. The second circumstance relied upon by the learned Judge to convict Shanti was that the accused and the deceased were members of the same family. The deceased had gone to the field in the morning. After some time, the accused had gone to the field and she returned back after some time. Thus, the accused and the deceased were seen together last time. There being evidence of last seen, there was a possibility for the accused to eliminate deceased. 6. The third circumstance relied upon by the learned trial Court is recovery of blood-stained sharp edged dragger. The weapon of offence was found stained with the blood of human origin of B-group. The blood of the same group was found on the person of the deceased. Thus, the trial Court concluded that totality of the circumstances are enough to link the murder of the deceased to the accused and ultimately concluded that the deceased died due to act of assault on her by the accused and convicted the accused-appellant as aforesaid. Resultantly, aggrieved by that judgment, the appellant has filed the present appeal. 7. Supporting the appeal, the learned counsel for the accused-appellant urged that the circumstances relied upon by the learned trial Court are too weak to support the conclusion that it was accused-appellant alone, who was responsible for causing death of deceased. Dealing with the circumstance of motive, the learned counsel for the appellant submitted that the fact of motive is supported by such witness who has not dilated upon as to what were the circumstances, in which the accused had perceived that the deceased was a dakan. No details have been given of any instances in which it was said that the accused perceived that the deceased was a dakan. Merely because there was some altercation between the daughter-in-law and mother-in-law and presumption of the fact that the accused has nursed such belief that the deceased was an evil soul, the evidence to this effect which could support this presumption was contained in the police statement of PW-3, but then PW-3 has turned hostile. No cogent evidence is available to establish this circumstance. No cogent evidence is available to establish this circumstance. Thus, it cannot be said that the motive put forward by the prosecution stands established. 8. The second circumstance relied upon the learned trial Court is of the last seen. The accused is alleged to have gone to the field and returned back to her house. This conduct could be a natural corollary of the circumstances. The time of her going to the field and possible time of the death has not been calculated or established by the prosecution to conclusively establish that at the point of time of death, accused and deceased were together on the field. Such circumstance has not been established in the fashion that it would come within the definition of last seen because last seen has to be at the point and in proximity of the time when the death has occurred. Further, this circumstance is an innocuous circumstance because Shanti is otherwise expected to go to her place or on the field belonging to the family. Thus, from this circumstance also, nothing can be said. 9. The third circumstance relied upon by the learned trial Court is the recovery of the alleged weapon of offence. Such weapon of offence has been found to be stained with blood group of 'B' but then this grouping and finding of the weapon stained with blood group 'B' in isolation, this circumstance is not sufficient to conclusively hold that the deceased was killed by the appellant. Further, the recovery has been made from an open field. The place was accessible to all and sundry, therefore, this recovery being from the open place cannot be said that the weapon of offence was recovered from the exclusive possession of the accused. Thus, according to the defence version, none of the circumstances is sufficient enough to hold that the accused is guilty. 10. The Public Prosecutor for State argued that the prosecution has established the circumstances beyond doubt. There is a complete chain and the same can be relied to convict the accused. The circumstance of last seen and recovery of weapon of offence indicating blood on weapon of accused established the prosecution case beyond doubt. 11. We considered the rival submissions and perused the record. 12. There is no eye-witnesses who witnessed the incident and the trial Court convicted the accused-appellant on the basis of the circumstantial evidence. The circumstance of last seen and recovery of weapon of offence indicating blood on weapon of accused established the prosecution case beyond doubt. 11. We considered the rival submissions and perused the record. 12. There is no eye-witnesses who witnessed the incident and the trial Court convicted the accused-appellant on the basis of the circumstantial evidence. The trial Court relied upon the statement of witnesses PW-3 Mangi Lal and PW-8 Bagdi Ram S/o Nanji for holding that there was motive of the appellant accused for killing the victim Pyari Bai. It is worthwhile to mention here that both the witnesses PW-3 Mangi Lal and PW-8 Bagdi Ram turned hostile and did not support the prosecution on material point. PW-3 Mangi Lal, in his statement, stated that the quarrel between the accused daughter-in-law and the victim mother-in-law was a usual phenomenon and in quarrel, the accused appellant said that her mother-in-law deceased Pyari Bai is a 'Dakan' but she never said that she would kill or eat her children. 13. PW-8 Bagdi Ram is close relative of the deceased and residing just near to the house of the deceased. He stated that though he heard that deceased and the accused used to quarrel but he never ever saw the quarrel. However, PW-8, in cross-examination by the Public Prosecutor, though stated that he gave statement before the police that the accused said that the victim will eat (kill) my sons and before that I will clear her off but in cross-examination by the counsel for the accused, admitted that the accused as per tradition was using veil from him and was not talking with him, therefore, the witness Bagdi Ram who was not only declared hostile by the trial Court but in his statement before the trial Court, gave contradictory statement. When Bagdi Ram did not saw any quarrel between appellant accused and the victim then how his statement about the fact what has been said in the quarrel can be relied upon. In view of this evidence, it is not safe to hold that the accused had any reason to believe that her mother-in-law is Dakan and any influence of any evil soul. Even from this evidence, it cannot be believed that the accused appellant in fact uttered that her mother-in-law is Dakan and will kill her sons. In view of this evidence, it is not safe to hold that the accused had any reason to believe that her mother-in-law is Dakan and any influence of any evil soul. Even from this evidence, it cannot be believed that the accused appellant in fact uttered that her mother-in-law is Dakan and will kill her sons. The prosecution further failed to establish that the accused was convinced or had developed a reasonable apprehension that in case she will not take steps to kill the victim, she or her sons are likely to be killed by the victim. 14. The second circumstance relied upon by the learned Judge, trial Court to convict the appellant was that the accused and deceased were seen together last time. The trial Court again relied upon the statement of PW-8 Bagdi Ram, the solitary witness in support of prosecution's case based on theory of last seen of accused with the victim. PW-8 Bagdi Ram merely stated that the victim went to her well (agricultural field) at about 7.00 a.m. He also saw the accused going with 'tagari' and he also saw the accused coming back with the 'tagari'. This statement is no evidence to prove that the witness has seen the accused with the victim just before or as a last person with the victim. This evidence is not even sufficient to hold that the accused went to their agricultural field. Even in the statement of PW-8. Bagdi Ram there is no mention of the time, on what time the accused left her house with 'tagari' and when she came back. The statement of PW-8 Bagdi Rain further stands contradicted as Bagdi Ram, in his cross-examination by the prosecution itself stated which he gave statement before the police that (another) Badgi Ram (son of the victim and husband of the accused) came running and told that his mother was killed by the Rand and she ran away from the house where he (Bagdi Ram, son of the victim and the husband of the accused) left her. In view of the said statement, it is clear that the accused was with her husband just before the death of the victim came to the knowledge of the son of the victim. In view of the said statement, it is clear that the accused was with her husband just before the death of the victim came to the knowledge of the son of the victim. For the reason best known to the prosecution, Bagdi Ram son of the victim herself and who sent the first informant to report, the incident to the police station was not produced. It will be worthwhile to mention here that according to PW-8 Bagdi Ram, victim's son, came saying that his wife has killed his mother bid PW-7 Babroo who lodged the FIR reported that victim's son Bagdi Ram said that some one has killed his mother. The FIR also contains no name of the accused or any other person or any suspicion towards the accused appellant. The solitary witness Bagdi Ram son of Nanji whose testimony is not worth reliance, cannot be a proof of seeing the accused with the victim lastly. In the totality of facts, the prosecution failed to establish that the accused went to the field where the victim was killed much less to the proving two together. 15. So far as recovery of sharp edged dragger is concerned, it is clear from the evidence that the alleged weapon of the offence was found from the open place and it cannot be said that the weapon of offence was recovered from the exclusive possession of the accused. It will be worthwhile to mention here that according to the prosecution the weapon of offence was recovered in the presence of Jaggannath PW-4 and one Mangi Lal son of Bagdi Ram. Mangi Lal S/o Bagdi Ram (PW-3) though was produced by the prosecution but as stated above he turned hostile and permission was granted to cross-examine the said witness PW-3 by the trial Court to the prosecution. Despite permission to cross-examination, PW-3 Mangi Lal was not confronted with the Ex.P/9, the recovery memo. Another witness for the recovery is Jagannath is the brother of first wife of victim's son and he admitted that he had no relation of going to the house of the victim. In view of such relation, it is not safe to place reliance upon the statement of PW-4. Another witness for the recovery is Jagannath is the brother of first wife of victim's son and he admitted that he had no relation of going to the house of the victim. In view of such relation, it is not safe to place reliance upon the statement of PW-4. The prosecution also tried to link the accused with the offence by setting up a case that accused was wearing a silver chain and in scuffle said chain broke down and two pieces of chain were recovered from the accused appellant. The witness PW-4 Jagannath supported the prosecution case on this point also but the trial Court did not believe the case set up by the prosecution that the accused was wearing the silver chain at the time of incident and the accused cannot be connected with recovery of the chain nor it can be treated as circumstance in favour of the case of the prosecution. 16. In view of the above facts, the prosecution failed to establish the motive of the accused appellant for eliminating the victim and further failed to prove that the accused was last seen with the victim. The recovery from the open field of the weapon of offence has no connection with the accused and, therefore, there exists no evidence on record on the basis of which it can be held that the accused appellant has caused injury resulting into death of the victim. 17. Consequently, the appeal is allowed and the judgment of the trial Court is set aside. The conviction and sentences imposed upon the appellant are set aside. The appellant is acquitted of the offence of Section 302 Indian Penal Code. The appellant be released from the Jail forthwith if not required in any other case.Appeal allowed. *******