SHARMA, J. - (1.)THE appellant was tried by the learned Additional Sessions Judge, Dausa in Sessions Case No. 182/94 for having committed murder of his brother Ramesh Chand. Vide judgment dated July 10, 1996, the learned Judge convicted and sentenced him under Sec. 302 IPC to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer one month imprisonment. In the instant appeal the appellant has called in question the said judgment of the learned trial judge.
(2.)THE incident as per written report Ex. P. 1 occurred on May 20, 1994 when Sunita (PW. 1) the wife of deceased Ramesh Chand was away from her in laws house and had gone to her parental house. She received the information of death of her husband Ramesh Chand after two days of the occurrence. Where upon she and her parents rushed to her in laws house and came to know that Satya Prakash (appellant), the real elder brother of Ramesh Chand, poured kerosine on Ramesh Chand while he was sleeping in the night of May 20, 1994 and ignited fire as a result of which Ramesh Chand died and without intimating her the dead body of Ramesh Chand was creamated in the night itself. On the basis of report, that was submitted on May 24, 1994 Police Station Mahuwa registered a case against the appellant under Secs. 302/201 and 342 IPC bearing FIR No. 141/94 and investigation commenced. Site plan was drawn. Statements of witnesses under Sec. 161 were recorded. Injuries sustained by Ram Swaroop (PW. 3) were got medically examined. Cot and burned clothes of deceased were seized and on completion of the investigation charge sheet was laid. In due course the case came up for trial before the learned Additional Sessions Judge Dausa. Charge under Section 302 IPC was framed against the appellant who denied the charge and claimed trial. As many as eleven witnesses were examined by the prosecution in support of its case. In the explanation under Section 313 Cr. P. C. the appellant pleaded innocence and stated that he was not present in the house at the time of incident and was implicated in a false case. No witness in defence was however examined. THE learned trial judge on hearing final submissions convicted and sentenced the appellant as indicated hereinabove.
It is a case depending entirely on circumstantial evidence and the obvious contention of the learned amicus curiae appearing for the appellant is that the circumstantial evidence is wholly insufficient to bring home the guilt of the accused.

Before dealing with the facts and circumstances as put forward and the various arguments advanced, we would like to indicate the conditions for basing a conviction on circumstantial evidence are as under- (i) The circumstances from which an inference of guilt is sought to be drawn, must be inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

It would also be appropriate at this juncture to refer to the following passage wherein Baraon Alderson cautioned the jury in Reg vs. Hodge (1 ). " The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. "

Their Lordships of the Supreme Court in Hanumant vs. State of M. P. (2), also directed thus- " In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. It is therefore right to remember that in cases where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. "

(3.)LEARNED trial court draw the guilt of the appellant on the basis of following incriminating circumstances- (i) Appellant had suspicion that his wife had illicit relationship with the deceased and they had a quarrel before the incident. (ii) Just after the incident the appellant was seen running from the spot. (iii) The deceased orally stated after the incident that he was burnt by the appellant.
So far as the first circumstance is concerned, the evidence of Sunita (PW. 1), Chandra (PW. 2) and Ram Swaroop (PW. 3) has been laid. In addition to the testimony of these witnesses learned trial court also considered document Ex. P. 6 and observed that the appellant used to quarrel with the deceased suspecting illicit relationship of his wife with the deceased. Sunita (PW. 1) in her deposition stated that she was married to the deceased and on the date of incident she had gone to her parents house leaving her husband with his joint family. After three days of the incident her uncle had informed that Ramesh had been burnt to death and creamated. Sunita in the cross examination stated that she was an illiterate lady and written report (Ex. P. 1) was drawn by his uncle, she only put her thumb impression over it. She did not know the contents of the report. She did assert that her husband (deceased) did not have any illicit relationship with the wife of appellant. She disowned the portions of her police statement (Ex. D. 5) wherein it was mentioned that the deceased had illicit relationship with the wife of the appellant. Chandra (PW. 2) deposed that deceased Ramesh was her son. In the cross examination she asserted that Ramesh never had illicit relations with the wife of her eldest son Satya Prakash (appellant ). She only disowned the portions of the police statement (Ex. D. 3) wherein it was stated that Ramesh had illicit relationship with the wife of Satya Prakash. Ram Swaroop (PW. 3) father of the deceased categorically denied having deposed to the police that the deceased had illicit relationship with the wife of Satya Prakash. He also disowned that portion of his police statement (Ex. D. 1) wherein it was mentioned that the deceased had illicit relations with the appellant's wife. We have closely scanned the Rojnamcha (Ex. P. 6) dated March 9, 1994 of the Police Station Mahuwa. It was recorded at 7 p. m. by one Dashrath Singh constable. A look at the said Rojnamcha demonstrates that two persons Ram Prakash and Rajendra were arrested under sections 151, 107 and 116 (3) Cr. P. C. for committing breach of peace. Sanjeev Singh (PW. 11) who was posted as ASI on March 9, 1994 at the Police Station Mahuwa in his deposition also stated that he got recorded Report No. 302 on March 9, 1994 in the Rojnamcha that was Ex. P. 6 and arrested Ram Prasad and Rajendra under Section 151 Cr. P. C. It thus appears that the incident referred to in the Rojnamcha did not have any connection with the appellant or with the deceased. Learned trial court has committed serious error in appreciating the evidence collected by the prosecution to establish the circumstance that suspecting the illicit relationship between his wife and deceased the appellant had animus with the deceased.

Chandra (PW. 2), Ram Swaroop (PW. 3) are also the witnesses of second circumstance that the appellant was seen running from the spot. Chandra in her deposition stated that on hearing the cries of Ramesh "papa Bacha Lo Bachalo" (Papa save save) she and her husband had gone to save Ramesh. Her husband Ram Swaroop knocked at the door of the room where Ramesh was sleeping and Ramesh came out of the room in burning condition. She had seen Satya Prakash running out of the house. In the cross examination she stated that Ramesh and Satya Prakash on the date of incident were residing with her in the house. After seeing Ramesh she at once became unconscious. She had seen Satya Prakash till 2. 30 or 3. 00 a. m. in the house. She did not give statement to the police that she had seen Satya Prakash in the house till 11 p. m. She disowned the portion G to H of her police statement (Ex. D. 3 ). She clarified that Satya Prakash was sleeping in his room on the date of incident till 3 a. m. and when Ramesh at 2. 30 a. m. called them and sought their help. She had seen Satya Prakash running through the chowk where Gajendra Mukul, Shrikant, Suman, Sumitra, Sanjay, Gudiya, Mamta she herself and her husband Ramswaroop were sleeping on their respective costs. Ram Swaroop (PW. 3) deposed that at 2 a. m. he heard the voice coming from the room of Ramesh "papaji Jaldi Bhago Mujhe Satya Prakash Ne jala diya' (Papa Rush, Satya Prakash burnt me), then he and his wife rushed to the room of Ramesh where they found Ramesh burning. Knocking the door he told Ramesh to come out of the room. After sometime Ramesh came out, he was badly burnt. He tried to extinguish fire and sustained injuries on the fingers of his both hands. When he had gone to extinguish fire he had seen Satya Prakash running. In the cross examination Ram Swaroop deposed that Satya Prakash was also sleeping in the chowk but his cot was about 15 ft. away from their cots.