JUDGMENT 1. - Aggrieved by the judgment dated 31.7.2006 passed by the Additional Sessions Judge, Kotputali, District Jaipur whereby the learned Judge has convicted the appellant, Mukand Singh, for offences under Sections 302, 201 IPC, the appellant has approached this court. By the said judgment, for offence under Section 302 IPC, Mukand Singh has been sentenced to life imprisonment, imposed with a fine of Rs. 1000/-, and directed to further undergo a sentence of six months of rigorous imprisonment in default thereof. For offence under Section 201 IPC, he has been sentenced to two years rigorous imprisonment, imposed with a fine of Rs. 2000/-, and further directed to undergo one month of rigorous imprisonment in default thereof. Both the sentences were directed to run concurrently. 2. Briefly, the facts of the case are that the SHO, Police Station Pragpura recorded a Parcha Bayan (Ex.P.5) of Smt. Rajesh Kanwar. In her Parcha Bayan (Ex.P.5), she claimed that "Her elder sister, Pushpa, and she were married seventeen years ago to two brothers, namely Mukand and Gopal respectively. My in-laws are alive, but my husband died about eleven months ago. After my husband's death, generally I stay with my sister, Pushpa. My in-laws' family used to doubt my and my sister's character. On 24.3.2004 when I went to my sister's house, my brother-in-law told me not to stay there for the night. Therefore, I left his house. On 25.3.2004 in the evening I went to meet my sister. I found both of them living happily. Although I wanted to stay back for the night, but my brother-in-law did not permit me to do so. Therefore, I came back home. On 26.3.2004, I went to my brother-in-law's house. But I did not find my elder sister, Pushpa. My brother-in-law was making tea by himself. When I asked my brother-in-law about of my sister's whereabouts, he told me that my sister has gone to Bal Singh's house in order to return money. But my sister did not come back till the evening. I inquired about her whereabouts over the phone from my relatives. On 28.3.2004, I and Dashrath Singh went to my brother-in-law's house. I again inquired about my elder sister. My brother-in-law told me that she had eloped. He also told me that she had taken two petticoats and a sari with her. I and Dashrath Singh searched her clothes. I inquired about her whereabouts over the phone from my relatives. On 28.3.2004, I and Dashrath Singh went to my brother-in-law's house. I again inquired about my elder sister. My brother-in-law told me that she had eloped. He also told me that she had taken two petticoats and a sari with her. I and Dashrath Singh searched her clothes. Amongst the clothes, one petticoat, one blouse and one shawl were missing; otherwise, all other clothes were still there. I and Dashrath Singh slept that night at my brother-in-law's house. I told my brother-in-law that tomorrow we must inform the police about my sister going amiss. In the morning I got up and made tea. I took the tea to my brother-in-law. When I lifted the Rajai, I found my brother-in-law, Mukand, missing from the house. I do not know when he left the house at night. I kept on looking for my sister and brother-in-law. Yesterday, I called my relatives, my father, my uncle and my elder uncle (Tau) from Googal, Kota and told them about everything. Today, I and my relatives from my paternal side noticed that in the field there were two pits which were dug-up. The pit towards the village must have been dugup three or four days ago as its soil was loose and there were some foul smell emanating from the same. My brother-in-law, Mukand Singh S/o. Amar Singh, by caste Rajpoot, r/o. Village Panditpura has killed my sister and in order to destroy the evidence, has buried her in the pit. Others may have also helped Mukand Singh in committing this crime. My brother-in-law has not come back to the village since 28.3.2004". 3. On the basis of this Parcha Bayan, a formal FIR (Ex.P.30) was chalked out for offences under Sections 302, 201 IPC and investigation was initiated. Subsequently, on 4.4.2004 by Ex. P. 23, Mukand Singh was arrested and put up for trial. In order to substantiate its case, the prosecution examined twenty-four witnesses, and submitted thirty-three documents. Although the defense did not examine any witness, they did submit two documents. After going through the evidence, the learned Judge convicted and sentenced the appellant, as aforementioned. Hence, this appeal before this court. 4. Mr. Surendra Kumar Nagar, the learned counsel for the appellant, has raised the following contentions before this court: firstly, the case is entirely based on circumstantial evidence. After going through the evidence, the learned Judge convicted and sentenced the appellant, as aforementioned. Hence, this appeal before this court. 4. Mr. Surendra Kumar Nagar, the learned counsel for the appellant, has raised the following contentions before this court: firstly, the case is entirely based on circumstantial evidence. However, the prosecution has not been able to establish its case beyond a reasonable doubt. Although there may have been few pieces of evidence, here and there, but the chain of circumstances established by the prosecution does not unerringly point towards the appellant's guilt. 5. Secondly, the prosecution has taken a self-contradictory stand with regard to the motive for the alleged murder. On the one hand, the prosecution claims that since the appellant suspected his wife's chastity, therefore, he killed her. Yet, on the other hand, Rajesh Kanwar (P.W.2), the complainant and the sister of the deceased, Raghuveer (P.W.3), the father of the deceased, claim that the relationship between the husband and the wife was a happy one. Therefore, the motive for the alleged murder is conspicuously missing. 6. Thirdly, merely because Pushpa's body was discovered not too far away from her home, does not lead to the logical conclusion that the appellant has murdered his wife. 7. Fourthly, Raghuveer Singh (P.W.3), the father of the deceased, claims both in his examination-in-chief and his cross-examination that he suspects that besides Mukand Singh other members of his family may be involved in the commission of the crime. According to him, since Mukand Singh is handicapped in his one hand, he suspects that Mukand Singh could not have strangulated his daughter. 8. Fifthly, the prosecution has also produced contradictory evidence with regard to the presence of the accused on the night of 27.3.2004. While Rajesh Kanwar (P.W.2) and Dashrath Singh (P.W.14) would have the court believed that the appellant was in his house on 27.3.2004, independent witness like Suraj Bhan Singh (P.W.7) in his cross-examination states that Mukand Singh had left the village about twenty-five days before the body was discovered. He further claims that on the day of the discovery of the body, he had informed Mukand Singh, over the phone, at Jaipur, about the discovery of his wife's dead body. It is due to his telephonic conversation that Mukand Singh had come back to the village. This statement is further corroborated by Mahesh Kumar Swami (P.W.9). He further claims that on the day of the discovery of the body, he had informed Mukand Singh, over the phone, at Jaipur, about the discovery of his wife's dead body. It is due to his telephonic conversation that Mukand Singh had come back to the village. This statement is further corroborated by Mahesh Kumar Swami (P.W.9). Thus, two independent witnesses knock the bottom out of the prosecution story. 9. Sixthly, since the dead body was already recovered prior to the appellant's arrest, the subsequent pointing out of the place where the body was buried by the appellant is an inconsequential fact. For, the place of burial was already known to the investigating agency. 10. Seventhly, according to Surendra Singh (P.W.18), the investigating officer, on 6.4.2004, the appellant had made a statement under Section 27, Evidence Act with regard to a Lugadi (a garment worn by a woman around her petticoat and blouse which also covers her head) and a shawl belonging to the deceased. However, according to Rajesh Kanwar (P.W.2), the said clothes were recovered by the police on 31.3.2004 when the body was discovered in the pit. Thus, the recovery of the Lugadi and the shawl at the instance of the appellant is highly doubtful. 11. Eighthly, even if this recovery were hypothetically accepted, even then it does not connect the accused to the alleged crime. For, these clothes neither contains any blood spots on them, nor have they been subjected to any examination by the Forensic Science Laboratory. Thus, mere recovery cannot form the basis for conviction. In order to buttress this plea, the learned counsel has relied on the cases of Vijay Thakur v. State of Himachal Pradesh, 2014 (4) Cr.L.R. (SC) 1066 and Mani v. State of Tamil Nadu, (2008) 1 SCR 228 . 12. Ninthly, according to the prosecution witnesses, both the children of the appellant were present at his house between 24th till 31st March, 2004. Yet they had not been examined as prosecution witnesses. Therefore, material witnesses have been withheld from the court. Hence, this casts a doubt on the veracity of the prosecution story. 13. Lastly, suspicion howsoever strong cannot take the place of proof. An accused cannot be subject to a moral conviction. The conviction has to be a legal one. However, despite the lack of cogent evidence, the appellant has been convicted on the basis of conjectures and surmises. Hence, this casts a doubt on the veracity of the prosecution story. 13. Lastly, suspicion howsoever strong cannot take the place of proof. An accused cannot be subject to a moral conviction. The conviction has to be a legal one. However, despite the lack of cogent evidence, the appellant has been convicted on the basis of conjectures and surmises. 14. On the other hand, Mr. N.S. Dhakar, the learned Public Prosecutor, has strenuously argued firstly, that the prosecution has established its case beyond a reasonable doubt. 15. Secondly, the appellant had offered wrong explanation for Pushpa's absence from the house. Initially, he had claimed that Pushpa had gone to Bal Singh's house to return some money to him. Subsequently, he claimed that his wife had run away. Thus, the wrong explanation for Pushpa's absence points towards his guilt. 16. Thirdly, Pushpa's body has been discovered not too far from the house of the accused and in his field. 17. Fourthly, the clothes belonging to the deceased were recovered at his instance. 18. Lastly, since he suspected his wife's character, there was an explicit motive for him to get rid of her. Therefore, the learned Public Prosecutor has supported the impugned judgment. 19. Heard the learned counsel for the parties, examined the record, perused the impugned order and considered the case law cited at the Bar. 20. The prosecution has repeatedly submitted self contradictory evidence on important points. On the one hand, it has tried to project a motive for the alleged murder: according to Mahesh Kumar Swami (P.W.9), "Dashrath Singh and the deceased had illicit affair". This statement he had made both in his examination-in-chief and in his cross-examination. Therefore, the appellant suspected his wife's chastity. Hence, he got rid of her. Yet, on the other hand, Rajesh Kanwar (P.W.2), in her examination-in-chief, claims that "when she went to her sister's house on 25th March, both her sister and her husband were living happily. In her cross-examination she also admits that "the relationship between Mukand Singh and his wife were cordial. If there were any disputs between them, they were the ordinary wear and tear of a marital life". A similar statement has also been given by Dashrath Singh (P.W.14) and Badri Gurjar (P.W.4) who happens to be the appellant's neighbour. In her cross-examination she also admits that "the relationship between Mukand Singh and his wife were cordial. If there were any disputs between them, they were the ordinary wear and tear of a marital life". A similar statement has also been given by Dashrath Singh (P.W.14) and Badri Gurjar (P.W.4) who happens to be the appellant's neighbour. Likewise, Raghuveer (P.W.3), the father of the deceased, claims that "his son-in-law used to come to his house cordially and use to leave his house happily". If, indeed, the relationship between the husband and wife were harmonious, then the element of motive for killing the wife is conspicuously missing. Although the existence of motive in a case based on circumstantial evidence is not a sine quo non precondition, but nonetheless it is an important circumstance in the chain of circumstances. Its absence may leave a gaping hole in the prosecution story. Its absence may not be fatal to the prosecution case, but it is a decisive factor while appreciating the evidence in a case. 21. Further, the prosecution claims that the alleged murder had occurred in the intervening night of 25th and 26th March, 2004. Both according to Rajesh Kanwar (P.W.2) and Dashrath Singh (P.W.14), on 26.3.2004 when they went to the appellant's house, they found his wife missing. Rajesh Kanwar (P. W. 2) asked the appellant as to where her elder sister was. The appellant told her that she had gone to the house of Bal Singh to return some money. Rajesh Kanwar (P. W. 2) further claimed that "her sister did not come back in the evening on 26.3.2004. Therefore, she inquired about her elder sister amongst her relatives by calling them on phone. On 27.3.2004 when she and Dashrath Singh went back to her brother-in-law's place, he told her that Pushpa had run away. That night, both Dashrath and she, slept at her brother-in-law's house. She also told her brother-in-law that next morning they should go and report to the police about the fact that her sister is missing. She further claimed that next morning when she took a cup of tea to her brother-in-law, she found him missing from the house". A similar statement has also been made by Dashrath Singh (P.W.14). However, on the other hand, according to Badri Gurjar (P.W.4), the appellant had left his house about five to ten days before the incident. 22. She further claimed that next morning when she took a cup of tea to her brother-in-law, she found him missing from the house". A similar statement has also been made by Dashrath Singh (P.W.14). However, on the other hand, according to Badri Gurjar (P.W.4), the appellant had left his house about five to ten days before the incident. 22. Likewise, according to Surajbhan Singh (P.W.7), "Mukand used to work at different factories in Jaipur. He used to work as a laborer. About twenty to twenty-two days prior to discovery of the dead body, he had gone to Jaipur. He was working there ever since then. The day the body was discovered, I called him on the phone at Jaipur. He came back to the village on 1st April, 2004. The police took him to the police station. They also took us to the police station. On 4.4.2004, the police let us go. Police arrested Mukand Singh on 4th. Police kept us at the police station from 1st till 4th". 23. Similarly, Mahesh Kumar Swami (P.W.9) claims that "His house is near Mukand Singh's house. About twenty to twentyfive days prior it being known in the village that Mukand Singh's wife had died, Mukand Singh had left the village and had gone to Jaipur. After he had left, his wife used to stay behind him. Since Mukand Singh's wife use to come every day to our house for taking milk, I know that Mukand Singh was not in the village and that Mukand Singh had gone to Jaipur". Thus, according to these two independent witnesses, the appellant had left the village twenty to twenty-five days prior to the discovery of the dead body. Hence, appellant's presence in the village on 26th and 27th of March, 2004 becomes highly doubtful. 24. The prosecution has also harped on the fact that according to Rajesh Kanwar (P. W. 2), on 27th night she had told the appellant that they should go to lodge a report to the police about Pushpa's disappearance. According to Rajesh Kanwar (P. W. 2), on the next day, she found the appellant missing from his house. Yet, according to Dashrath Singh (P.W.14), it was the appellant who had suggested that next day they should go to the police and lodge a report about the fact that his wife is missing. According to Rajesh Kanwar (P. W. 2), on the next day, she found the appellant missing from his house. Yet, according to Dashrath Singh (P.W.14), it was the appellant who had suggested that next day they should go to the police and lodge a report about the fact that his wife is missing. Therefore, Dashrath Singh contradicts the testimony of Rajesh Kanwar on an important point. 25. Moreover, keeping in mind the testimonies of Badri Gurjar (P.W.4) and Mahesh Kumar Swami (P.W.9), mentioned above, it is highly doubtful that the appellant was in his village on 27.3.2004. Therefore, the learned Public Prosecutor is not justified in claiming that the appellant has absconded as he feared that the police would arrest him. Hence, even the element of absconding cannot be read against the appellant. 26. Although the prosecution has stressed upon the fact that the clothes of the deceased were recovered at the instance of the appellant, but even this argument is highly misplaced. According to Surendra Singh (P.W.18), after his arrest, the appellant had given a statement (Ex.P.32) under Section 27 of the Evidence Act on 6.4.2004. Consequently, by recovery memo (Ex.P.3), a Lugadi and a shawl were recovered at the appellant's instance. However, according to Rajesh Kanwar (P.W.2), the Lugadi and the shawl were recovered on 31.3.2004 when the body was discovered. Similarly, according to Dashrath Singh, the said clothes were recovered by the police after the autopsy was done on 1.4.2004. Moreover, according to Durga Singh (P.W.1), who is the recovery witness of the Lugadi and the shawl, the Lugadi was not recovered in front of him. But the shawl was recovered from a pit. Therefore, it is highly unclear as to whether the Lugadi and the shawl were recovered at the time when the dead body was discovered, or they were recovered by the police after the post-mortem was performed on 1.4.2004, or they were recovered on 6.4.2004 at the behest of the appellant. Hence, the recovery of the clothes of the deceased has not been established through cogent and convincing evidence. It is highly unreliable. 27. Hence, the recovery of the clothes of the deceased has not been established through cogent and convincing evidence. It is highly unreliable. 27. Furthermore, the Hon'ble Supreme Court has clearly held in the case of Vijay Thakur v. State of Himachal Pradesh [2014 (4) Cr.L.R. (SC) 1066] and Mani v. State of Tamil Nadu, [ (2008) 1 SCR 228 ] that mere recovery at the instance of the accused is not sufficient to convict the accused of murder. The same view has been expressed by this court recently in the case of Sanjay v. State of Rajasthan, DB Criminal Appeal No. 190/06, decided on 16.1.2015 . Hence, it would be highly unjust to hang the appellant on the fragile peg of recovery. 28. Furthermore, according to Rajesh Kawar (P. W.2) both the appellant's sons were present in the house on the fateful day. Yet, the prosecution has not examined them as witnesses. Thus, the prosecution has withheld material witness from the court. Hence, an adverse inference should be drawn against the prosecution. 29. Since the prosecution has failed to prove that the appellant had allegedly killed his wife, the question of the appellant trying to destroy the evidence of the alleged murder does not even arise. Short of evidence, the appellant cannot be convicted of offence under Section 201 IPC. 30. It is, indeed, trite to state that the distance between "may be true" and "must be true" is a long distance which the prosecution must cover before the accused can be convicted of an offence. [Ref. to Mohammad Faizan Ahmad @ Kalu v. State of Bihar, (2013) 2 SCC 131 , Rajkumar Singh v. State of Rajasthan, (2013) 5 SCC 722 , Sujit Biswas v. State of Assam, 2013 Cr.L.J. 3140 (SC) ]. 31. Having critically analysed the evidence, the court is still left groping in the dark as to who has killed and buried Pushpa. Thus, the appellant cannot be fastened with the culpability that it is he who has killed his wife. Therefore, the benefit of doubt necessarily has to be given to him. 32. Hence, for the reasons stated above, this appeal is, hereby, allowed. The appellant's conviction and sentence for offences under Sections 302, 201 IPC is set aside. Since the appellant is in Jail, he shall be set at liberty forthwith, if not wanted in any other criminal case. 33. 32. Hence, for the reasons stated above, this appeal is, hereby, allowed. The appellant's conviction and sentence for offences under Sections 302, 201 IPC is set aside. Since the appellant is in Jail, he shall be set at liberty forthwith, if not wanted in any other criminal case. 33. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Mukand Singh, is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeal allowed. *******