JUDGMENT 1. - The judgment impugned is dated 21.7.2005 passed by learned Additional Sessions Judge, Banswara in Sessions Case No. 18/2004 convicting accused appellant Walu son of Mariji Aadiwasi for an offence punishable under Section 302 Indian Penal Code and awarding sentence for life term imprisonment with a fine of Rs. 5,000/- and further to undergo two months imprisonment in event of default in payment of fine. 2. The factual matrix necessary to be noticed is that on 7.2.2004 a written report (Ex.P-1) was submitted by Babaria son of Walu to the Station House Officer of Police Station Kushalgarh with assertion that he left for his in-laws house at Mahudi on 5.2.2004 leaving behind his father Walu (accused), his mother Hudi and wife Sabina at home. On 7,2.2004 at about 8:00 AM Kalu son of Nathu Damore came to call him at his in-laws house and on reaching at home he found that his mother was lying dead on a cot with an injury on her forehead and left eye. His father was also having a minor injury on his forehead. On asking, his father kept mum and nothing was disclosed by him about the incident. However, his wife Smt. Sabina conveyed that in night at about 8:00 PM her mother-in-law left out to sleep in Court yard on a cot. Her father-in-law Walu was sleeping on an another nearby cot. In morning, on coming out she found her father-in-law injured and on asking he stated that her mother-in-law has received serious injury, therefore, first her care is required to be taken. Babaria also on arriving at the spot asked his father about the incident, but he kept mum. Babaria apprehended that his father would have killed his mother Hudi for the reason that she was objecting his illicit relations with Savli. As per Babaria, few days prior to the incident her father was beaten by his mother and on being annoyed with that his father stated that he will kill her as lie is already having an another lady to provide him food. 3. On basis of the information given, a case was lodged for making investigation pertaining to an offence punishable under Section 302 Indian Penal Code. During the course of investigation accused Walu was arrested and at his instance a blood stained axe was recovered. 3. On basis of the information given, a case was lodged for making investigation pertaining to an offence punishable under Section 302 Indian Penal Code. During the course of investigation accused Walu was arrested and at his instance a blood stained axe was recovered. The investigating agency after completing the investigation filed a report before the Court of learned Additional Chief Judicial Magistrate, Kushalgarh who after taking cognizance, registered the case and committed the same to the Court of Sessions. 4. After hearing counsel for the accused and the Public Prosecutor, the trial Court framed a charge for the offence punishable under Section 302 Indian Penal Code was framed and on denial of the same trial commenced as desired. The prosecution supported its case with the aid of 16 witnesses (PW-1 to PW-16) and 20 documents. An opportunity was given to the accused appellant to explain the adverse circumstances existing in prosecution evidence wherein he stated that whatever evidence available is false and concocted. No evidence in defence was adduced. 5. Suffice to mention here that complainant PW-1 Babaria and his wife PW-2 Sabina have not supported the prosecution case and they were declared hostile. The other witnesses viz. PW-8 Bada and PW-9 Savli also not supported the prosecution case and they too were declared hostile. PW-9 Smt. Savli in quite unambiguous terms denied her illicit relationship with accused Walu. The witnesses of recovery PW-4 Tersing and PW-6 Deepa also not supported the prosecution case. PW-13 Shyainilal, Station House Officer, Police Station Kushalgarh narrated all the events and actions taken during the course of investigation. 6. PW-14 Dr. Ramnarain Bairwa stated that deceased Hudi was having a head injury measuring 9x2 cm bone deep in frontal temporal region and she was also having a fracture in parietal bone. As per this witness the head injury was the cause of death. 7. The axe said to be recovered at the instance of accused was having blood stains of human origin. 8. Learned trial Court after considering the entire evidence available on record arrived at the conclusion that the circumstances existing indicate involvement of accused in the crime in question and, therefore, convicted him for the offence punishable under Section 302 Indian Penal Code and sentenced accordingly. The trial Court while arriving at the conclusion aforesaid relied upon the five circumstances and those are: 1. The trial Court while arriving at the conclusion aforesaid relied upon the five circumstances and those are: 1. the accused was sleeping near to his wife Smt. Hudi till morning; 2. no explanation is given by the accused that who gave fatal injury to his wife and how she died; 3. availability of motive; 4. the recovery of blood stained axe at the instance of accused; and 5. extra judicial confession said to be made by accused appellant before PW-6 Deepa. 9. In appeal it is submitted by counsel for the appellant that as a matter of fact no adequate evidence was available with the trial Court to arrive at a definite conclusion about involvement of the appellant with crime in question. It is asserted that as a matter of fact there are so many loopholes and breakages in the circumstances relied upon by the trial Court and those circumstances in no manner indicates only one conclusion about involvement of the appellant in crime, as such benefit of doubt is required to be extended. 10. Per contra, while defending the conviction recorded and sentence awarded, it is submitted by learned Public Prosecutor that the circumstances relied upon by the trial Court are quite concrete and those indicate to one conclusion only i.e. involvement of the accused appellant in crime in question. 11. Heard counsel for the appellant and the Public Prosecutor, 12. On basis of the medical evidence available on record there is no doubt about homicidal death of Smt. Hudi. 13. As already stated, most of the prosecution witnesses have not supported the prosecution case, but the trial Court has convicted the accused appellant by forming a chain of circumstances. The first circumstance taken into consideration by the trial Court is sleeping of the accused at the same place where deceased Smt. Hudi was sleeping. The it is, adequate evidence is available that the deceased and her husband, the present appellant, slept in Court yard of the house on two different cots. 14. The second circumstance relied upon by the trial Court is non extension of any explanation about causing injury to deceased Smt. Hudi. The appellant while submitting his explanation stated that he has been falsely implicated in the criminal case. 14. The second circumstance relied upon by the trial Court is non extension of any explanation about causing injury to deceased Smt. Hudi. The appellant while submitting his explanation stated that he has been falsely implicated in the criminal case. However, from perusal of the statement sought by the appellant as per per provisions of Section 313 Criminal Procedure Code it reveals that no adequate care was taken by the Court to explain the importance of the explanation required. It is quite strange that the entire explanation was sought in mechanical manner even to the extent that the accused appellant termed the death of his wife Smt. Hudi as false. The accused appellant is an illiterate member of Scheduled Tribe living in remote area, therefore, the Court was supposed to call explanation from him by patience and with an attitude to avail truth. Instead of doing so, the trial Court just completed an empty formality of availing explanation. Section 313 Criminal Procedure Code puts an important embargo upon the Court to have necessary explanation from the accused and this responsibility must be discharged with all caution. In any case, it is the position admitted that no explanation is extended by the accused appellant as to how his wife Smt. Hudi and he himself received injuries. 15. The third circumstance is a motive for committing murder. The trial Court arrived at the conclusion that the accused was having illicit relations with Smt. Savli, his sister-in-law, and deceased Smt. Hudi was objecting the same, therefore, a sufficient motive was available to kill her. The finding arrived by the trial Court as a matter of fact is having no foundation. No witness has supported the prosecution case regarding such illicit relationship. 16. PW-1 Babaria, PW-2 Sabina, PW-8 Bada and PW-9 Savli have denied such relationship with full confidence. No evidence, as a matter of fact, is available on basis of which any finding could have been given about illicit relationship of the accused with Smt. Savli. The finding arrived by the trial Court pertaining to motive, therefore, lack foundation. 17. The another circumstance taken into consideration by the trial Court is recovery of an axe at the instance of the accused appellant. Suffice to mention that the witnesses of recovery have not supported the prosecution case. The finding arrived by the trial Court pertaining to motive, therefore, lack foundation. 17. The another circumstance taken into consideration by the trial Court is recovery of an axe at the instance of the accused appellant. Suffice to mention that the witnesses of recovery have not supported the prosecution case. However, the trial Court has relied upon the police witnesses, who prepared the information memo and recovery memo and also due to acceptance of signatures available on the memos aforesaid. The trial Court could have relied upon the documents aforesaid on basis of acceptance of the signatures and on basis of the statements given by the police officials who prepared the memos aforesaid, however, in the instant case the recovery made itself is not trustworthy as the same was made from an open place close to the spot of occurrence. As per the site plan Ex.P-5 the investigating agency at the first instance in morning of 7.2.2004 at about 10:00 AM inspected the entire site thoroughly, but at that time no weapon of offence was found at the spot. On the next day from the same place the axe was recovered. We failed to understand as to how the investigating agency while making thorough search of the spot of occurrence failed to recover the axe that came to be recovered on very next day from the same place. In these circumstances, clubbed with the circumstance that the witnesses pertaining to recovery have not supported the prosecution case, we are of the view that the trial Court wrongly relied upon the recovery of axe said to be made at the instance of the accused appellant as a circumstance to complete the chain of circumstances. 18. The trial Court also relied upon a circumstance of extra judicial confession said to be made by the accused appellant before PW-6 Deepa. PW-6 Deepa as a matter of fact has not supported the prosecution story and in quite unambiguous terms stated that no. extra judicial confession was made before him. No occasion was there for the trial Court to treat this circumstance adverse to the appellant to base the conviction. 19. On pondering the evidence as discussed above, we are of the view that the evidence available is not making an unbreakable chain of circumstances indicating towards only one conclusion about definite involvement of the accused appellant with crime in question. 19. On pondering the evidence as discussed above, we are of the view that the evidence available is not making an unbreakable chain of circumstances indicating towards only one conclusion about definite involvement of the accused appellant with crime in question. A reasonable doubt exists in believing the prosecution case, therefore, we are of the view that the conviction recorded is bad. The accused appellant is entitled to have benefit of doubt. 20. Accordingly, this appeal is allowed. The judgment impugned dated 21.7.2005 passed by learned Additional Sessions judge, Banswara in Sessions Case No. 18/2004 recording conviction of the accused appellant for the offence punishable under Section 302 Indian Penal Code and sentencing him is declared illegal and therefore, the same is quashed. Accused appellant Walu son of Manji Aadiwasi is acquitted from the charge of committing an offence punishable under Section 302 Indian Penal Code. The accused appellant be released from Stare custody forthwith, if not required in any other case.Bail application allowed. *******