JUDGMENT 1. - Instant jail appeal has been filed by the accused appellant Vijay Singh S/o Dau Singh Rawat from Central Jail, Udaipur against the judgment dated 30.08.2006 passed by Additional District and Sessions Judge (FT), Rajsamand in Criminal Case No. 23/3006 whereby, the learned trial court convicted the accused appellant Vijay Singh S/o Dau Singh under Section 302 IPC and passed sentence of life imprisonment along with fine of Rs. 1000/-, in default of payment of fine to further undergo six months imprisonment, for offence under Section 201 IPC, the accused appellant was convicted with sentence of seven years rigorous imprisonment along with Rs. 500/- fine and in default of payment of fine, to further undergo three months simple imprisonment and for offence under Section 203 IPC, the accused appellant was convicted and sentenced to two years rigorous imprisonment along with Rs. 200/- fine and in default of payment of fine, to further undergo one month simple imprisonment. 2. The trial took place against two persons namely Vijay Singh S/o Dau Singh and Smt. Kunku Devi wife of Vijay Singh but trial court acquitted Smt, Kunku Devi from the charges leveled against her but convicted the accused appellant for aforesaid offences. 3. As per brief facts of the case, the FIR Ex.P/42 was submitted by the accused appellant himself on 01.03.2006 in which it was stated by him that his disabled son Dalpat @ Dalip singh was working at Ahmedabad and in last Deewali festival, he came back to the house and went back after living there for ten days, further, it is mentioned that on 27.02.2006 his son came back and was living with him and today when he was coming back to the house after attending the funeral of villager Ram Singh, at that time, in the way at Akali Kankar one Roshan Singh S/o Kesar Singh Rawal informed that your son is lying upon stones in unconscious condition. Upon that information, the appellant immediately rushed to the place where his son Dalpat @ Dalip Singh was lying and his wife Kunku Devi, daughter in law indra and some other persons were standing there near the body, knife, one empty bottle of poison and other material were also lying nearby. 4. Upon that information, the appellant immediately rushed to the place where his son Dalpat @ Dalip Singh was lying and his wife Kunku Devi, daughter in law indra and some other persons were standing there near the body, knife, one empty bottle of poison and other material were also lying nearby. 4. Upon above written report submitted by the accused appellant Vijay Singh, the SHO Police Station Deogarh registered FIR No. 55/2006 against unknown persons under Section 302 IPC. 5. The investigating officer prepared site plan and took body in possession for the purpose of post mortem and all proceedings were conducted on the spot. The investigating officer prepared the site plan and other recovery memos for taking in possession the material lying on the spot, upon those documents the accused appellant himself put his signatures along with Bhanwar Singh and Ram Singh. 6. In the investigation, the Investigating officer came to the conclusion on the basis of evidence collected by him and medical evidence that deceased Dal pat Singh died due to consuming ethyl alcohol and organo chlorine insecticide and as per investigation, the Endosel insecticide was purchased by accused appellant vide bill Ex.P/7 dated 28.02.2006 from the shop Vijay Krishi Kendra, Deogarh and insecticide was given by him to his son along with liquor and due to that insecticide his son Dalpat Singh died. Further, the Investigating officer opined that there was intention of accused and his wife to kill their son so as to claim amount of insurance because on 01.11.2005, a life insurance ; policy was taken by deceased Dalpat Singh. After completion of investigation, the investigating officer filed chargesheet on the basis of circumstantial evidence against the accused appellant and his wife on the ground that there was motive of accused appellant and his wife to kill their son so as to claim insurance amount arising out from insurance policy issued by Life Insurance Company, Udaipur Division. 7. During investigation, the SHO, Police station Deogarh arrested the accused appellant and his wife Kunku Devi after recording statement of prosecution witnesses under Section 161 Cr.RC. 7. During investigation, the SHO, Police station Deogarh arrested the accused appellant and his wife Kunku Devi after recording statement of prosecution witnesses under Section 161 Cr.RC. vide Ex.18 & Ex.19 and after usual investigation, recovery of certain articles, the SHO, Police Station, Deogarh filed chargesheet against the accused appellant and Kunku Devi in | the court of Judicial Magistrate, Deogarh from there the case was committed to the court of Sessions Judge, Rajsamand for trial but the District and Sessions Judge, Rajsamand transferred the case for trial to the court of Additional District and Sessions Judge (FT), Rajsamand, The Additional District and Sessions Judge (FT) Rajsamand framed charges against the present accused appellant Vijay Singh and his wife Kunku Devi under Section 120B, 302 IPC and in the alternative for offence under Section 302/120B and 201 & 203 IPC. 8. After framing charges, the trial court proceeded to record oral evidence of prosecution and in all statements of 29 prosecution witnesses were recorded including the police officials and thereafter, statements of accused | appellants were recorded under Section 313 Cr.RC. In defence, the accused appellant Vijay Singh and one Rodi Bai and Nathu Singh appeared before the Court as DW/1, DW/2 and DW/3 and thereafter, the case was finally heard. 9. The trial court after considering entire facts and assessing evidence of the case acquitted Kunku Devi, wife of accused appellant but convicted the accused appellant for aforesaid offences vide judgment dated 30.08.2006. 10. In this appeal, Mr. Rajat Dave was appointed as Amicus Curiae to | conduct this appeal because accused appellant was not having any means to engage lawyer to plead his case. 11. Learned Amicus Curiae vehemently argued that it is a case in which the father of deceased Dalpat @ Dalip Singh has been implicated falsely fori allegation of murder of his own son without any trustworthy evidence against him because PW/1 Ram Singh Pw/2 Bhanwar Singh, PW/3 Nathu Singh, PW/41 Punam Singh, PW/6 Hukum Singh, PW/8 Mangi Lal, PW/10 Indra, PW/11| Shankar Lal, PW/13 Lakha Ram, PW/14 Pratap, PW/15 Tej Singh, PW/16 Kesar l Singh, PW/17 Manghunath, PW/18 Shesh Mai, PW/19 Bhur Singh turned hostile and did not support the prosecution case meaning thereby, the judgment impugned is based upon presumption and circumstantial evidence in which chain of circumstances is not complete so as to connect the accused appellant with crime. It is also argued that allegation of prosecution is beyond imagination because a father cannot kill his own young son so as to claim insurance amount of Rs. 1 lac in which he was not nominee. The accused appellant himself filed written report to the police and in the whole of investigation, he was present and in most of the recovery memos and site plan and other documents, put his signatures but later on the basis of presumption the Investigating officer implicated the appellant as accused on the ground that deceased purchased policy in the month of November, 2005 and thereafter, the incident took place on 28.02.2006, so also the accused appellant purchased the insecticide Endosel vide Ex.P/7 from Vijay Krishil Kendra and as per opinion of doctor which is based upon report of RNTI Medical college and FSL, the cause of death was consuming ethyl alcohol and organo chlorine insecticide. As per submission of the Amicus Curiae, there is no evidence on record to prove the fact that the accused appellant gave the said insecticide along with liquor to the deceased but only on the basis oil presumption, the trial court accepted the prosecution story so as to convict the accused appellant for alleged offence of murder of his own son therefore, the judgment impugned deserves to be quashed. 12. Learned Amicus Curiae vehemently argued that no prudent man can accept the allegation of murder of son by the parents only to claim of Rs. 1 lac under the insurance policy but learned trial court although acquitted the mother of deceased and wife of accused appellant but held the appellant father guilty solely on the ground that Endosel insecticide was purchased by him on 28.02.2006 and as per opinion in medical report, the cause of death was insecticide but there is no direct evidence to prove the allegation that accused appellant forcibly gave insecticide to the deceased with liquor who was a young body, therefore, the finding given by the trial court only on the basis of aforesaid circumstances and presumption deserves to be quashed. 13. 13. Lastly it is argued by learned Amicus Curiae that to prove the prosecution case, a theory of recovery of knife is also prepared by the prosecution whereas, the cause of death is altogether different, therefore, the recovery of knife is also not relevant because in the post mortem report, no injury was found upon the body of deceased. It is also submitted that in the life insurance policy, the accused appellant was not nominee and Smt. Kunku Devi wife of accused appellant and mother of deceased was nominee. In spite of that chargesheet was filed against the accused appellant and his wife but after trial, the trial court acquitted the wife of accused appellant Kunku Devi meaning thereby, there was no motive as alleged by the prosecution to kill their own son. The crux of argument of learned Amicus Curaie is that the :at her of deceased has been implicated in case of murder of his own son on the basis of circumstantial evidence for which the prosecution has failed to establish its case beyond reasonable doubt. To prove the case on the basis of circumstantial evidence, the prosecution is required to produce complete chain of circumstances and facts to connect the accused with the crime but there is no eye witness and the chain of circumstantial evidence is also not complete so as to prove the allegation of murder because most of the prosecution witnesses have turned hostile in the trial but trial court while relying upon the testimony of investigating officer and other police officials and statement of owner of shop PW/22 Heera Lal from where the insecticide was purchased, convicted the accused appellant. It is also argued that the prosecution has failed to prove the case beyond reasonable doubt against the accused appellant, therefore, the judgment impugned may be quashed and accused appellant may be acquitted from the charge of murder. 14. Per contra, learned Public Prosecutor Mr. Vishnu Kachhwaha vehemently argued that there was motive with the accused appellant to kill his own son because in the month of November, 2005, the policy Ex.8 was purchased by the deceased and as per policy, after the death of deceased Dalpat Singh, Rs. 14. Per contra, learned Public Prosecutor Mr. Vishnu Kachhwaha vehemently argued that there was motive with the accused appellant to kill his own son because in the month of November, 2005, the policy Ex.8 was purchased by the deceased and as per policy, after the death of deceased Dalpat Singh, Rs. 1 lac claim was to be paid and therefore, although in whole of investigation the accused appellant was present but in the investigation it is found that accused appellant himself purchased Endosel insecticide vide Ex.P/7 from the shop and shopkeeper PW/22 Heera Lal specifically stated before the Court that appellant Vijay Singh purchased Endosel insecticide from his shop on 28.02.2006 upon consideration of Rs. 35/- therefore, this fact itself proves that prosecution has proved its case beyond reasonable doubt while producing trustworthy circumstantial evidence before the Court. 15. It is accepted by the learned Public Prosecutor that although most of the witnesses of recovery turned hostile before the Court and did not support the prosecution story but fact of purchasing Endosel insecticide is proved by the prosecution and as per medical evidence and statement of doctor, PW/21 Dr. Ravinandan Chahal, the cause of death was consuming ethyl alcohol and organo chlorine insecticide which was found in the stomach of deceased Dalpat @ Dalip Singh, meaning thereby, it is a case in which as per medical evidence also, the prosecution has proved its case that decease Dalpat Singh died after consuming the insecticide which is said to be purchased by the accused appellant the day before the incident on 28.02.2006, therefore, no interference is called for in the finding given by the trial court for conviction and punishment awarded to the accused appellant under Section 302, 201 & 203 IPC and the appeal may be dismissed. 16. After hearing learned Amicus Curiae and learned Public Prosecutor, we have perused the entire evidence and considered the grounds raised by the appellant as well as learned Public Prosecutor. It emerges from the facts that to prove the case, in all statements of 29 prosecution witnesses were recorded and 78 documents were exhibited in the trial and admittedly, after assessing entire evidence, the trial court acquitted Kunku Devi wife of accused appellant from the charges leveled against her for murder of her own son on the ground that prosecution has not proved its case beyond reasonable doubt against her. It is evident from the record that PW/1 Ram Singh PW/2 Bhanwar Singh, PW/3 Nathu Singh, PW/4 Punam Singh, PW/6 Hukum Singh, PW/8 Mangi Lal, PW/10 Indra, PW/11 Shankar Lal, PW/13 Lakha Ram, PW/14 Pratap, PW/15 Tej Singh, PW/16 Kesar Singh, PW/17 Manghunath, PW/18 Shesh Mai, PW/19 Bhur Singh turned hostile and did not support the prosecution case meaning thereby, the allegation of purchasing liquor by the accused appellant is not proved by the prosecution. 17. We have perused the statement of PW/22 Heera lal. It is true that witness Heera Lal stated in his statement that accused appellant purchased the Endosel insecticide from his shop vide Ex.P/7 after payment of Rs. 35/-. Upon perusal of the bill Ex.P/7 it is revealed that neither the details of contents are mentioned nor license number of shop is mentioned. The only assertions is 100 ml In our opinion, it cannot be said that Endosel is an insecticide in which organo chlorine was one of the contents because it has not been proved by leading proper evidence by the prosecution. Further even if it is presumed that insecticide Endosel was purchased by accused appellant but in the statement of doctor PW/21 Dr. Ravinandan Chahal, it is nowhere stated by him that ethyl alcohol and organo chlorine was one of ingredient of the Endosel insecticide meaning thereby, the prosecution has failed to prove its case whether the insecticide which is alleged to be purchased by the accused appellant, ethyl alcohol or organo chlorine was one of the contents. There is no evidence on record that accused appellant Vijay Singh consumed liquor along with his son deceased Dalpat @ Dalip Singh in which the said organo chlorine insecticide was diluted, therefore, the aforesaid facts loudly speak that prosecution has failed to prove its case on two counts; firstly, most of the witnesses of recovery turned hostile and there is no evidence on record that accused appellant purchased liquor in which insecticide was diluted and given by the accused appellant to his own son deceased Dalpat @ Dalip Singh. 18. We have also minutely scanned the evidence with regard to motive. In our opinion, the prosecution has tried to produce the life insurance policy Ex. 18. We have also minutely scanned the evidence with regard to motive. In our opinion, the prosecution has tried to produce the life insurance policy Ex. P/8 which is said to be purchased by the deceased in the month of November, 2005 but in that life insurance policy, his mother Smt. Kunku Devi was nominee and conduct of accused appellant can be seen from the fact that written report was submitted by him and he was present during whole of the investigation but Investigating officer PW/29 implicated him in the crime only on the basis of his presumption and so called purchase of insecticide by the accused appellant. In fact, it is beyond imagination that young son having wife will be murdered by his own father so as to get claim of insurance but Investigating officer in a very casual manner implicated the accused appellant with the serious offence of murder but has failed to prove his case beyond reasonable doubt. It is settled principle of law that if prosecution case is based upon circumstantial evidence then prosecution is required to produce evidence to complete the chain of circumstances so as 10 hold the accused guilty of offence but in this case, the chain of circumstances is totally broken because 19 prosecution witnesses of recovery and purchasing of liquor turned hostile. Likewise, the bill Ex.P/7 by which insecticide was said to be purchased by the accused appellant does not disclose whether insecticide organo chlorine is having any relation with Endosel insecticide: There is no expert evidence on record to prove the fact that organo chlorine insecticide and Endosel are the same insecticide, therefore, on this ground also the prosecution has failed to prove its case that the ingredient which is found in the stomach of deceased along with ethyl alchol was one of the component of Endosel insecticide. 19. The Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 held that if case is based upon circumstantial evidence then prosecution is required to prove its case beyond reasonable doubt while leading complete chain so as to hold accused guilty. The following adjudication is made by the Hon'ble Supreme Court in paras nos. The following adjudication is made by the Hon'ble Supreme Court in paras nos. 152 and 153 of the said judgment, which reads as under: "A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "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. 20. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 21. Upon applying aforesaid principle in the evidence of present case, we are of the firm opinion that prosecution has failed to establish its burden to prove the guilt of accused appellant beyond reasonable doubt. The evidence of intention is not established. Upon applying aforesaid principle in the evidence of present case, we are of the firm opinion that prosecution has failed to establish its burden to prove the guilt of accused appellant beyond reasonable doubt. The evidence of intention is not established. The prosecution has failed to establish that insecticide which is found in the stomach of deceased Dalpat Singh along with ethyl alcohol was the same which is purchased by the accused appellant from the shop of PW/22 Heera Lal, therefore, in our opinion, the prosecution has failed to establish any case against the accused appellant for commission of offence of murder of his own son, more so the theory which is accepted by the trial court for murder is totally beyond imagination. 22. In view of above, we are of the opinion that the accused appellant is entitled for benefit of doubt. Consequently, the appeal is allowed and the conviction and sentence of appellant Vijay Singh S/o Dau Singh for offence under Section 302, 201 & 203 IPC vide judgment dated 30.08.2006 passed by Additional District and Sessions Judge (FT), Rajsamand in Sessions Case No.23/2006 is hereby set aside and the appellant is set free, if not required in any other case.Appeal allowed. *******