JUDGMENT : 1. Aggrieved by the judgment dated 6.3.2003 passed by the Additional Sessions Judge (Fast Track), Sikar whereby the learned Judge has acquitted the accused-respondent, Ram Chandra, for offence under Section 302 IPC, the State of Rajasthan has approached this court. 2. Briefly the facts of the case are that Sardar Singh (P.W.12) submitted a written report (Ex.P.32) before Tara Chand (P.W.19), SHO, Police Sation Sadar, Sikar wherein he claimed that about twenty-five years ago his sister, Sugani, was married to Ram Chandra. They had two sons, and two daughters. On 30.6.2002, his sister, both his nephews, and both his nieces were killed. He suspected that Ram Chandra, his father, Hanuman, his mother, Mohari Devi, and his sister, Raju had killed these persons. On the basis of this report, a formal FIR, namely FIR No.160/02 (Ex.P.33) was chalked out for offence under Section 302 IPC and the investigation commenced. During the course of investigation, the police arrested Ram Chandra. The police filed a charge-sheet only against Ram Chandra. It did not file any charge-sheet against the other three persons named in the FIR. In order to prove its case, the prosecution examined nineteen witnesses, and submitted fifty-one documents. Although the defense did not examine any witness, it did submit two documents. After going through the oral and documentary evidence, by judgment dated 6.3.2003, the learned Judge acquitted Ram Chandra for offence under Section 302 IPC, as mentioned above. Hence, this appeal before this court. 3. Mrs. Sonia Shandilya, the learned Public Prosecutor for the State, has vehemently raised the following contentions before this court: firstly, Smt. Kesar (P.W.16) happens to be Ram Chandra's sister-in-law, and sister of his wife, Sugani. In her testimony she has clearly stated that she saw Ram Chandra going to his house at 10.00 PM. It is only in the morning that five dead bodies were discovered in his house called a Gumti (a structure built next to a well). Thus, there is clear evidence that the accused was present at his Gumti during the night when the alleged murders took place. Therefore, the learned Judge is unjustified in not accepting her testimony. 4. Secondly, Sardar Singh (P.W.12), Sugani's brother, has also deposed that his sister and his nephews and nieces were maltreated by the accused. Therefore, the learned Judge should have accepted his testimony on this point. 5. Therefore, the learned Judge is unjustified in not accepting her testimony. 4. Secondly, Sardar Singh (P.W.12), Sugani's brother, has also deposed that his sister and his nephews and nieces were maltreated by the accused. Therefore, the learned Judge should have accepted his testimony on this point. 5. Thirdly, the learned Judge has acquitted the accused ostensibly on the ground that important witnesses have turned hostile. However, there is sufficient evidence in the testimony of even these hostile witnesses for convicting the accused for such a heinous crime. 6. Fourthly, since the accused was in his house, since the alleged murders took place at the dead of the night, it was for the accused to explain as to how his family members had died. But the accused has failed to discharge the burden placed upon him by Section 106, Evidence Act. 7. Fifthly, the learned Judge has noticed the fact that during the investigation, the accused had given an interview to one, Ramesh Sharma, a correspondent of local newspaper called "Bharti Patrika". In the interview, the accused had made an extra-judicial confession admitting the fact that he had killed his wife and his children. However, the learned trial Judge has merely observed that it was the duty of the investigating officer to have investigated regarding the extra-judicial confession made by the accused to Mr. Ramesh Sharma, and to produce Ramesh Sharma as a prosecution witness, but he had failed to do so. Relying on the case of Joshinder Yadav v. State of Bihar, (2014) 4 SCC 42 , the learned Public Prosecutor has pleaded that the learned trial court should have played a more pro-active role during the trial. The learned Judge should have summoned Ramesh Sharma as a court witness. However, the learned trial court had failed to do so. 8. Sixthly, the accused had taken a plea of alibi and had claimed that he had gone to Bikaner. However, he had failed to prove this plea. Therefore, the learned Judge was unjustified in acquitting the accused despite availability of evidence against him. 9. Lastly, five persons have been killed including minor children. Therefore, the learned Judge should have been more careful while assessing the evidence in case of such brutal murders. But the learned Judge has not assigned any cogent reasons for acquitting the accused in this case. 10. On the other hand, Mr. 9. Lastly, five persons have been killed including minor children. Therefore, the learned Judge should have been more careful while assessing the evidence in case of such brutal murders. But the learned Judge has not assigned any cogent reasons for acquitting the accused in this case. 10. On the other hand, Mr. Nishant Sharma, the learned counsel for the accused-respondent, has raised the following pleas: firstly, the case is entirely based on circumstantial evidence. However, the chain of circumstances is woefully incomplete. The chain of circumstances does not point unerringly towards the guilt of the accused. Thus, the learned Judge was justified in acquitting the accused. 11. Secondly, the scope of interfering with an acquittal judgment by an appellate court is a limited one. Where two views are possible, if one of the views has been taken by the learned trial court, then the appellate court should be reluctant to interfere with the acquittal. 12. Thirdly, it is for the prosecution to establish the basic facts of the case before the burden could be shifted upon the accused under Section 106 Evidence Act. Thus, it was for the prosecution to prove that the accused was available in his house on the fateful night. But the prosecution has failed to do so. For, Smt. Kesar (P.W.16) has admitted in her cross-examination that the police did not record her statement till fourteen days after the incident. Silence on her part casts doubt on the veracity of her testimony. Moreover, although she has testified that she had seen the accused at 10.00 PM near his house, this fact was not mentioned in her statement recorded under Section 161 Cr.P.C. Therefore, such a statement, being made for the first time before the court, is exaggeration which cannot be accepted. Thus, the learned Judge was justified in rejecting her testimony. In the present case, the prosecution has failed to discharge its burden. Therefore, Section 106 Evidence Act could not be invoked against the accused. 13. Fourthly, according to the Investigating Officer, Tara Chand (P.W.19), Mr. Ramesh Sharma interviewed the accused while the accused was in police custody. Therefore, any statement given by the accused while in police custody is hit by Section 26 of the Evidence Act. Hence, no fruitful purpose would have been served even if Ramesh Sharma were to be called as a court witness by the learned trial Judge. 14. Ramesh Sharma interviewed the accused while the accused was in police custody. Therefore, any statement given by the accused while in police custody is hit by Section 26 of the Evidence Act. Hence, no fruitful purpose would have been served even if Ramesh Sharma were to be called as a court witness by the learned trial Judge. 14. Lastly, considering the fact that the material witnesses have turned hostile, the learned Judge was certainly justified in acquitting the accused. 15. Heard the learned counsel for the parties and perused the material on record 16. Admittedly, the entire case is based on circumstantial evidence. The principle with regard to appreciation of evidence in a case based on circumstantial evidence is too well known. Recently in the case of Balkar Singh v. State of Haryana (Criminal Appeal No. 606/2008, decided on 17-11-2014) the Hon'ble Supreme Court has observed as under: "...Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 17. While dealing with the evidence in the present case, the principle mentioned above would have to be kept in mind. 18. Smt. Kesar (P.W.16) is an important witness in the present case. In her examination-in-chief, she tells us that she is the real sister of Sugani, wife of the accused. According to her, around 10.00 O'clock at night she had gone from her house to her well in order to turn on the motor. When she went to her well, she saw Ram Chandra going to his house. Around 7.00 AM in the morning, there was a hue and cry. According to her, around 10.00 O'clock at night she had gone from her house to her well in order to turn on the motor. When she went to her well, she saw Ram Chandra going to his house. Around 7.00 AM in the morning, there was a hue and cry. When she went to Ram Chandra's house, she discovered that her sister, her nephews and nieces had died. All of them had been throttled; a rope and electric wires were lying nearby. They had also discovered footprints which belonged to Ram Chandra. Around 12.00 O'clock, Moti Ram Balai came to her house and told her that at 7.00 AM he had seen Ram Chandra on the Udaipuria Road. She further claimed that ten years ago Ram Chandra had retired from the Indian Army. But his pension was not finalized. She further claimed that he used to beat up his children and was generally angry with them. According to her, Ram Chandra would speak to his family off and on. But mostly, he would be lost in himself. Furthermore, according to her, Rameshwar had said that it is Ram Chandra who had killed his family members. Lastly, according to her, Ram Chandra was generally angry with his children, and used to say that some day he will kill them by throttling. 19. In her cross-examination, she admits the fact that her statements were recorded by the police fourteen days after the incident. She further admits that she did not tell the police about the fact that when she went to her well at 10.00 PM, she had seen Ram Chandra going towards his house. She further claimed that she had informed the police that Moti Ram had told her that he had seen Ram Chandra, at 7.00 AM, on the Udaipuria Road. But why this fact has not been mentioned, she cannot say. She further admitted the fact that Rameshwar had told her that it is the accused who had killed his family, is not mentioned in her statement under Section 161 Cr.P.C. She further admitted the fact that footprints of Ram Chandra, discovered from the site, were not revealed by her to the police in her statement under Section 161 Cr.P.C. 20. She further admitted the fact that Rameshwar had told her that it is the accused who had killed his family, is not mentioned in her statement under Section 161 Cr.P.C. She further admitted the fact that footprints of Ram Chandra, discovered from the site, were not revealed by her to the police in her statement under Section 161 Cr.P.C. 20. A bare perusal of her testimony clearly reveals that despite the alleged murder of her own sister, and her nephews and nieces, the witness maintained a studied silence for fourteen days about the alleged incident. Even in her statement under Section 161 Cr.P.C. she did not reveal the fact that, allegedly, she had seen the accused going to his house around 10.00 O'clock in night. The said fact has been mentioned for the first time in the court. Thus, it is clearly an omission which amounts to a contradiction; the contradiction is on a major point. Therefore, the fact that she had seen the accused going to his house cannot be believed. The other facts mentioned by her that she has been informed by Rameshwar that it is the accused who had allegedly killed his family, is a hearsay evidence. Hence, not acceptable. Moreover, Rameshwar (P. W. 4) has turned hostile during the trial. Therefore, he does not corroborate Smt. Kesar's testimony on this point. Furthermore, the statement given by her that Moti Ram had informed her that he had seen Ram Chandra on the road around 7.00 AM, is again hearsay evidence. Thus, not acceptable. Further, even Moti Ram (P.W.9) has turned hostile. Thus, he does not support the claim made by her. Considering her studied silence for two long weeks, considering her contradiction on major point, considering that she merely informs the court about hearsay evidence, the learned Judge was certainly justified in discarding her testimony. 21. A perusal of testimonies of Sardar Singh (P.W.12) and Smt. Kesar (P.W.16) clearly reveal that they made bald statements about the fact that the accused would hit his children and at times would be mad with them. They have further claimed that generally he used to be quiet and would not speak to his family members. However, such testimonies do not point to the fact that he was either unusually cruel, or would maltreat his family members to the extent that he would kill them. 22. They have further claimed that generally he used to be quiet and would not speak to his family members. However, such testimonies do not point to the fact that he was either unusually cruel, or would maltreat his family members to the extent that he would kill them. 22. In remaining part of his testimony, Sardar Singh (P.W.12) merely claims that Hanuman, father of the accused, had told him that accused had killed his family and had run away. But this being hearsay evidence, is inadmissible. Thus, his testimony does not lend any credence to the prosecution case. 23. Although it is a settled principle of law that testimony of a hostile witness cannot be thrown out of the window, although it is a settled law that part of the testimony of a hostile witness that would support the prosecution case should be accepted, but in the present case, the hostile witnesses have not supported the prosecution in any manner. In the present case, Ramchandra (P.W.1), Ramdeva Ram (P.W.2), Bhagwana Ram (P.W.3), Rameshwar (P.W.4), Jeevan Ram (P.W.5), Godhu Ram (P.W.7), Kana Ram (P.W.8) and Moti Ram (P.W.9), all of these witnesses have turned hostile. Yet there is no evidence given by them which is in favour of the prosecution. Thus, the learned Judge was justified in concluding that there is lack of evidence for convicting the accused as the witnesses have turned hostile against the prosecution. 24. Much has been argued about the burden of proof on the accused under Section 106 of the Evidence Act. But in the case of Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 , the Hon'ble Supreme Court had opined that Section 106 does not relieve the prosecution of its duty to lay down the factual foundation of its case. In the case of Sawal Das v. State of Bihar, (1974) 4 SCC 193 the Hon'ble Supreme Court observed as under : 10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt? 25. In the case of Amarjit Singh v. State of Punjab, Justice M. M. Punchhi, (as His Lordship then was) had applied Section 106 Evidence Act to a case of dowry death. His Lordship had noted that, "If the tradition bound society puts the bride in the four walls of the new house and those four-walls not remain open to the view and gaze of others all the time, and it that closeted set-up her live body is turned into a corpse or is made to turn into a corpse I see then no reason why the society cannot insist the inmates of the hose, being accountable in terms of section 106, Indian Evidence Act, 1872, to disclose facts especially within the knowledge of the accused. As it seems to us, this is one of the exceptional situations the provision was designed to meet." But both in the cases of Balram Prasad Agrawal v. State of Bihar, (1997) 9 SCC 338 and in the case of Joshinder Yadav (supra) the Apex Court has held that the initial duty is on the prosecution to substantiate the charge. Once the burden is discharged by the prosecution, then it is for the accused to prove the fact which is especially within his/her knowledge. 26. However, in the present case, the prosecution has failed to prove the fact that accused was available in the village, or was at his home on the fateful night. As discussed above, testimony of Smt. Kesar (P.W.16) cannot be accepted on this point. Since the prosecution has failed to establish presence of the accused at his house, the question of invoking Section 106 Evidence Act against the accused does not even arise. Therefore, the contention raised by the learned Public Prosecutor that the accused should have been asked to explain the especial facts within his knowledge, is a misplaced argument. 27. Undoubtedly, a Judge should play a pro-active role in discovering the truth. Therefore, the contention raised by the learned Public Prosecutor that the accused should have been asked to explain the especial facts within his knowledge, is a misplaced argument. 27. Undoubtedly, a Judge should play a pro-active role in discovering the truth. According to the Investigating Officer, namely Tara Chand (P.W.19), one Ramesh Sharma had interviewed the accused while he was in police custody. However, as interview was given in police custody, a statement made by the accused in police custody cannot be read against him. Therefore, no fruitful purpose would have been served even if the learned Judge had summoned Ramesh Sharma, the correspondent, as a court witness. Therefore, the learned Judge cannot be faulted for not summoning Ramesh Sharma as a court witness. 28. In his statement given under Section 313 Cr.P.C., Ram Chandra did claim that he had gone to Bikaner and was not available in the village on the fateful night. Although, it is true that he has not established the defence of alibi, but weakness of the defence does not strengthen the prosecution case. His failure to establish his defence is too weak a plank for convicting him for alleged murders. 29. It is a settled principle of law that while dealing with acquittal, the appellate court can re-appreciate the evidence presented before the trial court. It is equally settled that if two views are possible, and the view taken by the trial court is plausible, then an acquittal should not be interfered by the appellate court. 30. Recently in the case of Murlidhar @ Gidda & Anr. v. State of Karnataka, (2014) 5 SCC 730 , the Hon'ble Supreme Court has reiterated and summarised the position of law with regard to scope of interference by the appellate court in an acquittal. The Hon'ble Supreme Court held as under:- (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court; (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal; (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. 31. Considering the lack of evidence in the present case, the view taken by the trial court is certainly possible. 32. The heinous nature of crime cannot tilt the balance in favour of the prosecution. Needless to say, the prosecution has to establish its case beyond reasonable doubt. Moreover, merely because a number of persons have allegedly been killed, would not permit the court to morally convict the accused in absence of cogent and convincing evidence. After all in criminal justice system, there is no scope for moral conviction. A conviction has to be a legal one. 33. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , the Apex Court had opined that "though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law". Similarly in the case of Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC 377 , the Apex Court has observed as under:- 27. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law". Similarly in the case of Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC 377 , the Apex Court has observed as under:- 27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. 34. Unfortunate as it may be in the present case that five persons have lost their lives, even then the learned trial court and this court are required to objectively appreciate the evidence produced by the prosecution and the defence. Although the learned Public Prosecutor is justified in claiming that the learned trial court should have been careful in assessing the evidence, but, for the reasons stated above, we find that the learned trial court has considered and appreciated the evidence in proper perspective. 35. For the reasons stated above, the appeal is devoid of any merit. It is, hereby, dismissed. Since the accused Ram Chandra is incarcerated in jail it is, hereby directed that he shall be set at liberty forthwith, if not wanted in any other criminal case.Appeal Dismissed.