Sharma, J. - (1.) THIS is an appeal by Nawal Singh who has been convicted by the learned Additional Sessions Judge, Jhalawar.
(2.) THE prosecution story is that on the evening of the 2nd of July, 1951 the appellant was invited by Amar Singh deceased to a dinner party at the latters house in village Barela. Some five or six other persons also took part in the dinner and all of them including the accused and the deceased drank wine on that occasion. THE dinner was over by about 10 P. M. when all the guests excepting the appellant left the house of the deceased. THE accused however, stayed behind and he aided the wife of the deceased in raising up the cows in her bara close-by. After raising up the cows, the accused come out of the bara and went away towards his house and immediately after came back to the bara while the wife of the deceased was still therein. He told the wife of the deceased that he would drink water and went inside. S|ometime after he was seen rushing out of the house with naked sword. After the accused had left the place, Mst. Sampat, wife of the deceased,went inside and no lighting up a lamp, she found that her husband, whom she had left asleep while going out with the appellant to raise up the cows, was lying in pool of blood. THE throat of the deceased was found cut and he lay dead. Mst Sampat raised an alarm which attracted some neighbours on the spot. Mst. Gambhir, wife of the brother of the deceased who was sleeping inside another kotha, also heard the alarm and asked Mst. Sampat to unbolt the door from outside. THE door being unbolted, Mst. Gambhir came out and, to her as well as other neighbour's who had come to the spot, Mst. Sampat intimated that the appellant Nawalsingh had murdered her husband. A report was lodged at the police station Gangdhar, District Jhalawar at about 8-30 A. M. on the 3rd of July 1951, by Kalusingh son of Hassan Balai of village Barela. THE police station is situated at a distance of about four miles from the village Barela whether the incident took place. The police took the investigation in hand. It is said that a shoe belonging to the appellant was recovered from the place of occurrence. The dead body was taken possession of by the police and post mortem examination was made on the 8th July, 1951, at the Hospital, Gangdhar. The accused could not be arrested for several months after the occurrence and it was on the 10th of June, l952,that his arrest was made. The accused was challaned in the court of the Sub Divisional Magistrate, Jhalawar, who committed him to take his trial under sec. 302 of the India Penal Code in the court of the Additional Sessions Judge, Jhalawar. The appellant denied the charge and said that the case was an outcome of enmity. No direct evidence was produced in the case and the learned Additional Sessions Judge acting upon the circumstantial evidence came to the conclusion that the offence under sec. 302 was fully mode out against the accused. He consequently, convicted him under sec. 302 of the Indian Penal Code and sentenced him to transportation for life. Against this judgment of the learned Additional Sessional Judge, Nawalsingh accused has come in appeal. We have heard Mr. D. C. Bajpayee on behalf of the appellant and Mr. R. A. Gupta, Deputy Government Advocate, on behalf of the State. The case entirely on circumstantial evidence. This evidence consists of the statement of Mst. Sampat. P. W. 3 who has stated about the dinnar and the accused along with others having taken part therein on the night of the occurrence. She has also stated that all other guests had dispersed after the dinner and her husband Amarsingh went to sleep. The appellant who, out of the guests was not only person to stay behind went with her to her bara close by to raise up her cows. After raising up the cows, the accused came out of the bara and came up again with a naked sword and told her, he would take water. Saying this he went inside her house with the naked sword. She also stated that, shortly after the accused was seen running out of the house, she went inside the house. There, in the light of a lamp, she found, to her horror, that her husband lay dead in a pool of blood. She raised a cry, on which Mst. Gambhir wife of the deceased's elder brother who was sleeping in the adjoining kotha was aroused. She could not come out as the kotha was chained by some body from outside. She (Mst. Sampat) thereupon, removed the chain and Mst. Gambhir came out and learnt from Mst. Sampat that Nawal Singh accused had murdered Amarsingh. She also states that two Kalus P. Ws. 1 and 4 and two Bhawani Singhs P. Ws. 7 and 8 also came to the house of the deceased shortly after and she informed them also that Nawalsingh accused had murdered her husband. The two Kalusinghs and two Bhawanisinghs have corroborated Mst. Sampat in this respect. They also say that they found the dead body of Amarsingh deceased lying in his kotha when they came there, and that both Mst. Gambhir and Mst. Sampat informed them that the accused Nawalsingh had killed Amarsingh deceased. The other circumstantial evidence is that a shoe is said to have been recovered near the deceased in the kotha and it is said to be a shoe belonging to the accused. The learned Additional Sessions Judge believed the evidence of Mst. Sampat and came to the conclusion that the accused went inside the Kotha of the deceased immediately before the murder with a naked sword. He also believed the prosecution evidence that Mst. Sampat had informed Mst. Gambhir as well as the two Kalusinghs and Bhawanisinghs soon-after the incident that Nawalsingh had killed her husband. He also drew support from the alleged recovery of a pair of sheo which he held to be that of the accused, and also from the fact of the accused not having been traceable for about a year after the incident. Finding all these circumstances sufficient to establish the guilt against the accused without any reasonable shadow of doubt, the has convicted him of murder and sentenced him as above. On behalf of the appellant, Mr. Baj-payee argued that even though all the circumstances found by the learned Additional Sessions Judge are taken to have been established, it cannot be said that the guilt has been brought home to the accused without a reasonable shadow of doubt. It was argued that in cases of circumstantial evidence conviction can be based only when the incul-patory facts are incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than that of his guilt. For this the statement contained in Wills on Circumstantial Evidence, Seventh Edition, page 302, under Rule 4 has been relied upon. Reliance was further placed upon a ruling of Madras High Court in the case of In re Pariyaswami Thevan (l) and that of this Court in the case of Rajdania vs. The State (2 ). As regards inference drawn by the learned Additional Sessions Judge from the untra-ceability of the accused for several months after the incident, reliance was placed upon a ruling of Punjab High Court in the case of Ahmad vs. Emperor (3 ). Further, it was argued that in fact the evidence about the recovery of a pair of shoe belonging to the accused is most doubtful and the learned Additional Sessions Judge, ought not to have acted upon that evidence. Finally, it was argued that it is only the evidence of Mr. Sampat which shows that the accused went inside the Kotha, wherein the deceased was sleeping, with a naked sword and soon after came out with a naked sword The solitary statement of Mst. Sampat cannot be believed in this respect as it was dark night and it is not probable that Mst. Sampat might have been able to identify the man who rushed out of the house, It is also improbable that the accused after having gone from the Bara should have immediately returned armed with a sword. It was argued that no motive has been established for the accused to kill the deceased. It was, therefore, strange that the accused while coming to take water should have brought a naked sword with him. It was argued that Kalusingh P. W. 1 has said that he had reached the police station for making the report three Gharies (1-1/4 hours) before the dawn and stated that before his reaching the police station and the writing of the report. Thanedarji and Munshiji (head constable) had been making inquiries from him. The report was recorded at 8-30 A. M. and, therefore, it cannot be said that it contains an unwarnished version, It was further argued that none of the witnesses has said that Mst. Sampat told him that the accused had entered with a sword and was seen going back from the house with a sword and even the witness Kalu P. W. I who has stated that Mst. Sampat had told him that Nawalsingh had killed her husband with a sword did not say about Mst. Sampat having told him that the accused was seen entering the house with a sword and coming out of it. It was argued that this story of the accused having entered the house with a sword and rushed out of it with a sword is very doubtful. Further, it was argued that according to Mst. Gambhir's statement, there was another opening in the compound in which the Kotha of the deceased is situated and it is not improbable that somebody else might have come by that way and escaped having killed the deceased while Mst. Sampat and the accused were raising up cows in the Bara. It was further argued that Mst. Sampat had said before the committing Magistrate that she heard the sound of the breaking of a lantern and on that she entered her house and saw the accused rushing out. But before the Additional Sessions Judge's Court she said that this statement was not made by her and that if she had heard the second of the breaking of the lantern, she would have gone inside and would have bolted the door from outside in order to prevent the accused from rushing out. It was also argued that even the turban of Babulal was recovered from the house of the deceased at the time the police went there for investigation and so the fact of the recovery of the shoe even if proved, would not lead to a presumption that it was the accused who was responsible for the murder of Amarsingh and no body else. On behalf of the State, it has been argued by Mr. R. A. Gupta that there is no reason to disbelieve the evidence of Mst. Sampat. He argued that although no motive has been established for the murder, yet when there is definite evidence that the accused was seen going inside the house of the deceased with a naked sword and coming out of it with a naked sword immediately before the dead body of Amarsingh was discovered inside the house, there remains no doubt that it was the accused who committed the murder and no body else, and the circumstance is incompatible with any other hypothesis than that of the guilt of the accused. Further, as regards, untraceability of the accused for a very long time after the murder, it was argued that it was a very strong circumstance against the accused and he has not been able to explain it. In conjunction with other evidence, this lends support to the theory that it was the accused and nobody else who murdered Amar Singh. I have considered the arguments of both the learned counsel. There is certainly no direct evidence in the case and the case rests of the evidence of Mst. Sampat alone because if that evidence is not believed, there is no evidence to show that the accused went inside the house wi|th naked sword and came out of it with a naked sword immediately before the dead body of Amarsingh was found therein. Mst. Sampat's evidence therefore, in this respect has to be read with great care and caution. It has been held by the learned Additional Sessions Judge himself that no motive for the crime has been established and he has held that Probably in a state of intoxication, the accused killed the deceased. First of all from the evidence it does not come out that accused was so intoxicated that he was out of his senses; Immediately after he is said to have drunk, he goes with the wife of the deceased to raise up the cows and there he raises them up. He comes outside the Bara and then goes towards his house and comes with a request that he would take water. None of these things shows that he was not in his senses. Rather, they show that he was sufficiently, even if not fully, possessed of them. It is really curious why he should have thought of bringing a naked sword and going inside the house under a pretext of taking water and after killing Amarsingh come out of it with a naked sword. It is very doubtful that in the dark night Mst. Sampat might have been able to recognise the person who she says came out of her house with a naked sword in his hand. It is also not believable that if Mst. Sampat had seen the accused with a naked sword before he went inside the house, she would him allow to go there all alone. She could have herself brought water outside her house and served it to the accused. Even if he went inside the house, she could have accompanied him because the fact of a naked sword in the hand as the accused was certainly such as to arouse strong suspicion in her mine. According to her ownself. she had seen the accused drinking and she could have very well thought that under the state of intoxication, the accused might do some mischief with the naked sword and she would not have therefore, allowed him to go inside the house alone. None of the witnesses excepting Kalu P. W. 1 states that Mst Sampat made any mention of the sword. Even Kalu does not say that Mst. Sampat said that she had seen the accused going inside the house and coming out of it immediately before she found her husband dead, armed with a naked sword. Even Mst. Sampat does not say that she told Kalu P. W. 1 or any of other witnesses that her husband was killed by a sword or that she had seen the accused going inside and coming out of the house immediately before she found her husband dead, with a naked sword. Of course Kalu P. W. 1 has said that Mst. Sampat had told him that the accused had killed her husband with his sword, but he too does not speak about Mst. Sampat having told him that she was the accused entering and leaving the house with a naked sword. In his statement in the trial court, he says that Mst. Sampat had told him inside her house about the accused murdering her husband with his sword when he went there with Kalusingh P. W. 1 and two Bhawani Singhs P. Ws. 7 and 8. In the first information report however, he had said that when he reached the house of the deceased with Kalusingh P. W. 4, Mst. Sampat was called outside her house and there she weepingly said that her husband had been killed with a sword by Nawalsingh. When confronted with this statement in the police report he said that his statement at the trial about Mst. Sampat having told him inside her house about the accused having murdered the deceased with his sword was wrong. Thus this witness is not consistent as to where Mst. Sampat told him that the accused had killed has husband with his sword. Mst. Sampat does not say anywhere that she told Kalu P. W. 1 that her husband had been killed with a sword. The report was not made immediately after Kalu P. W. 1 reached the police station. He reached there1-1/4 hours before dawn, which would be near about 4 A. M. at that time of the year, but the report was recorded at 8-30 A. M Thus about 4 hours should have elapsed before the recording of the report since Kalu Singh's arrival at the Police Station. According to Kalusingh, during all these several hours, the Sub-Inspector and the head constable of police had been interrogating him. So much time was not required even if any interrogation were needed. The fact that the report was recorded several hours after Kalusingh reached the police stations, raises a strong doubt about the veracity of all the statements made therein. The attitude of the Investigating Officer in this case has been such that it shows that he wanted to suppress certain facts. It was true that Kalusingh P. W. 1 had reached in the latter part of the night and that till the said report was recorded, he had been interrogating Kalusingh. Although these facts were admitted by Kalusingh, yet the Sub Inspector denied them. It clearly shows that either the report was written long after conversation had taken place between the Sub Inspector and Kalusingh and it cannot, therefore be said that the report was written without any deliberation. If the Sub Inspector is correct then it shows that Kalusingh is not a truthful witness and no reliance can therefore, be placed either upon his statement in the first information report or on his evidence at the trial. A suggestion was thrown by the accused that the report was recorded after Bapulal P. W. 10 had seen the Sub Inspector at the Police Station. The Sub Inspector denies it, but if Kalu Singh P. W. 1 is correct when he states that the report was recorded by the police after several hours conversation with him, there appears to be some hidden reason for all this action of the police and it creates a grave doubt about the veracity of statements in the report. Even supposing that the statement of Kalu that Mst. Sampat had told him that her husband was killed by the accused is true, it does not mean she had seen the accused going inside and coming out of her house with a sword. From the nature of injuries received by the deceased even one who had not actually seen the murder going to the place where the deceased was sleeping, with a sword, could say murder had been committed in all probability with a sword. If the evidence of Mst. Sampat about her seeing the accused going inside the house and coming out of it with a naked sword is disbelieved then there remains very little evidence which might connect the accused with the crime. The recovery of the shoe is very suspicious. Mst. Sampat stated that the shoe had been taken away from the place of occurrence by Mangia Chamar before the police arrived on the scene. The Sub Inspector Chandra Prakash P. W. 13 however, states that it is wrong that the shoe in question was produced before him by Mangia Chamar. It is,therefore,very doubtful if the shoe in question was recovered at all from the place of occurence. Nor is there any satisfactory evidence that this shoe belonged to the accused. No proper identification of this shoe was made after mixing it up with other shoes. It is very difficult to believe that the shoe was either recovered from the place of occurrence or that it belonged to the accused. Then even supposing that the shoe was recovered from the place of occurrence and it belonged to the accused, it does not necessarily point to the conclusion that the accused left it after murdering the deceased. According to the prosecution itself, the accused had taken part in the dinner that very night at the house of the deceased and he had taken some wine. It is, therefore, not improbable that he might have forgotten his shoe at that time and might have walked away bare footed. It has been submitted by Mst. Sampat as well as by Bapu P. W. 10 that Bapu's turban was also found at the place of occurrence when the police went to the spot for the first time. It is in the evidence of Mst. Sampat that the police had taken this turban also, but afterwards returned it to Bapu. It certainly casts some doubt why the Sub-Inspector Shri Chandra Prakash should deny this fact. May be if enquiry had been pursued in the light ofthe recovery of this turban, real fact might have come out. From the cross-examination of the Sub-Inspector Shri Chandra Prakash, by the accused it appears that the accused suspected that Bapu might have been the perpetrator of the crime. At any rate, if the fact of the recovery of the safa of Bapu from the place of occurrence was not a very important fact, the recovery of the shoe too could not be a very important fact. It is in evidence of Mst. Gambhir that there is another way out from the house on the other side besides the main door. It is not improbable that when both Mst. Sampat and the accused were out raising up the cows, some body entered either from the front or from the back outlet and after murdering Amarsingh left the spot before Mst. Sampat returned to her house. There is utter absence of evidence to the effect that the deceased was alive before the accused and Mst. Sampat returned from the bara after raising up the cows. From the circumstances it appears that the murder was done after taking sufficient precautions and it took sometime. Mst. Gambhir's statement as well as of Mst. Sampat shows that the door of the kotha in which Mst. Gambhir was sleeping was found bolted from outside. Mst. Gambhir says that she does not know, who bolted it from outside. It is not improbable that the door might have been bolted by the man who wanted to murder Amarsingh so that Mst. Gambhir might not have an opportunity to come cut. There seems to be no other explanation for the bolting of the door of Mst. Gambhir from out side. Then it is in evidence that the dead body was found somewhat removed from the place where the deceased who murdered him removed him from the bedding either immediately after or before the murder or there was some struggle between the deceased and his assailant in which the deceased left his bed and fell down at some distance from it. Evidence also shows that a lantern which was left lighted when the accused and Mst. Sampat went to raise up the cows was found broke and extinguished when Mst. Sampat went inside her house. For this too there is no explanation and that too was in all probability broken and extinguished by the murder. All these things must have taken sufficient time. If the accused is the murderer, he must have committed the crime almost in the twinkling of an eye and could not have time enough to break the lantern, to bolt Mst. Gambhir's door and dislodge the deceased from his bedding and place the dead body at some distance. Mst. Sampat who was standing just at the outer door of the compound could not had failed too see that some untoward thing was) being done inside the kotha because she says that the inside of the kotha was visible from where she was standing. In is highly improbable that no alarm might have been raised by Amarsingh when he was first attacked by a sword. Two or three injuries were found on his body and it shows that more than one cut was given. In this interval, it is improbable that Amarsingh might not have yelled or shrieked. Mst. Sampat says that she did not hear any sound whatsoever from inside the kotha so long as the accused was there. This shows that the murder was not committed by Nawalsingh. It must have been committed sometimes before Mst. Sampat came back to her outer door. There was sufficient opportunity for the perpetrator of the crime to escape before Mst. Sampat came back from the bara. I think that some body who had knowledge that Mst. Sampat had gone out of the house for raising up the cattle in the bara might have committed this offence, because, he could know that he would have sufficient time to escape before Mst. Sampat came pack. At any rate, it can not be said that the circumstances coming out in this case cannot be explained on any other hypothesis than that of the guilt of the accused. The recovery of the shoe, as has been said above, can be explained in the same manner as the recovery of the turban. Both Bapu and Nawalsingh had been dining at the place of Amarsingh and one might have left his safa and the other his shoe at that time. The recovery of the shoe does not show In any way that the shoe was left at the time when the murder was committed. The allegation about the accused going in and coming out of the house with a naked sword are highly improbable as has been discussed above. It may be that some body else might have killed the deceased and the accused might have gone inside and come out of the house after taking water and therefrom Mst. Sampat supposed that it was the accused who had committed the murder. In the case of In re vs. Periya-swami The wan (l) the deceased and the accused were on inimical terms some time prior to the date on which the murder took place. The accused had threatened the deceased that he would cut him even as the deceased had can and killed his goat On the date of murder both the deceased and the accused were seen either in each other's company or in close proximity to each other some hours before the murder took place. Sometime after the alleged murder, the accused was seen with a blood stained chhopper going in a direction opposite to the place of murder but coming from the place of murder; and on information given by the accused, a blood stained chopper was recovered from a bush about two furlongs to the east of the scene of murder It was held by the Madras High Court that even these circumstances were not sufficient to establish beyond reasonable doubt that the accused had murdered the deceased. This case is much stronger than the present case. In Raidania's case (2) decided by a Division Bench of this Court, the police party was chasing the party of the accused, six in number During the chase the accused went behind a sugar cane field. The sugar canes in this field were more than a man's height and, therefore, the accused were not visible to the chasing party. A shot was heard from behind the sugar cane field which killed H a member of the chasing party. Thereafter, the six accused again started running away. It was held that the mere fact that before the six persons disappeared behind the sugar cane field and after they came out from behind that field a gun was seen in the hands of the accused would not necessarily lead to the inference that he alone could have fired the shot and exclude every other hypothesis, namely some one else out of the six might have taken the gun from his hand and fired the shot. In this case the principles enunciated in the case of Queen Empress vs. Hosh Nak were proved and they are as follows - First - That the circumstances, from which the conclusion is drawn, be fully established. Secondly - That all the facts should be consistent with the hypothesis. Thirdly - That the circumstances should be of a conclusive nature and tendency. Fourthly - That the circumstances should, to moral certainty, actually exclude every hypothesis but the on proposed to be proved. In this case the circumstances that the accused went inside the house and came out of it with a naked sword in hand immediately before the dead body of Amarsingh was found inside the house has not been satisfactorily established. Under the circumstances even if the accused be taken to have gone inside the house to take water this circumstances along with other circumstances, is not of conclusive nature and tendency. Even if these circumstances are held to be proved, they do not, to moral certainty actually exclude every hypothesis but the one proposed to be proved. As has been said above some other persons had ample opportunity to go inside the house and kill the deceased when Mst. Sampat and the accused were out in the bara raising up the cows. The commission of murder by the accused is also improbable on the ground that if he had committed the offence some sound must have been heard by Mst. Sampat who was standing at the outer door. She could also have atleast seen that some untoward thing was being done inside the kotha. Mst. Sampat said before the committing Magistrate that she had actually seen the accused inside the house when she had entered it on hearing the sound of the breaking of a lantern. If this were a fact she would have certainly bolted the door and prevented the accused from coming out, as she has herself admitted in her statement at she trial. As the time of the trial however, she has bid go-by to this story and has said that she did not hear any sound whatsoever and she saw the accused outside the house. Mst. Sampat cannot, therefore, be said to be an altogether true and consistent witness. The learned Additional Sessions Judge seems to have been influenced by the fact that the accused was untraceable for very long time after the occurrence and has given a false defence. The mere fact that an accused is found untraceable for sometime after the crime does not necessarily shows that he had become untraceable on account of the consciousness of the guilt. Not all men have got enough mora! courage to stand a trial when they find themselves falsely involved in a serious criminal case and there is no wonder that the accused having come to know the next day that he had been named as the perpetrator of the crime could not have the courage to stay and therefore become untraceable for sometime. The false defence given by him may also be due to the fact that be might have thought that if he admitted any little thing given by the prosecution, he might be considered to be the perpetrator of the crime. In Ahmad's case (3), the accused was found absconding for a long time after the occurrence and it was held that his absconding was not inconsistent with his innocence, as he might have run away in fear knowing that an incorrect accusation had been brought against him. In his celebrated work on Circumstantial Evidence, Wills says at page 110 of 7th Edition that circumstances of suspicion merely, without more conclusive evidence are not sufficient to justify conviction, even though the party offers no explanation of them. It is well established principle of law that the prosecution ought to stand upon its own legs and cannot derive any benefit from the weakness or falsity of defence or of circumstances which create strong suspicion. Learned Deputy Government Advocate relied upon the case of Parmeshar Din vs. Emperor (5 ). But in that case, there was strong direct evidence to prove the guilt and it was held that under the circumstances, the fact that the accused absconded for a long time further strengthened the prosecution case. There is another decision of Oudh High Court in the case of Chandrika Prasad vs. Emperor (6) in which it has been held that different persons are differently constituted and that some accused even though innocent deliberately abscond rather than face the or deal of a criminal trial and that some other innocent accused do equally foolish things such as make a false admission of guilt or pay off the amount said to have been stolen or embezzled in the vain hope that they may escape a criminal prosecution or get off with a light punishment Such subsequent conduct cannot dispense with the positive proof of the guilt of the accused, the burden of which lies upon the prosecution. When once the crown has established the guilt of the accused by the evidence of prosecution witnesses then such subsequent conduct may be utilized as furnishing further proof of the correctness of the conclusion as to the guilt of the accused drawn from the evidence of the prosecution witnesses; by itself, however, it can furnish no legitimate proof of the guilt of the accused. I do not think that under the circumstances of the case, it has been brought home to the accused that he committed the murder of Amarsingh. I would allow the appeal, set aside the conviction and sentence and acquit the accused. Ranawat, J.- I have read the judgment of my learned brother Sharmaj. and I agree with him that the case against the accused is not free from doubt. The prosecution has not been able to produce any evidence relating to the motive of the accused. As per prosecution story the accused was invited to dinner by the deceased the evening before the murder. Had the relations of the accused and the deceased been in any way strained the deceased would not have invited the accused to take part in the dinner at his house. There were other persons also at the dinner and after they had all left the accused, the deceased and his wife remained at the house of the deceased. The deceased had gone to bed earlier either because he was drunk or it may be that he was not feeling well. Mst. Sampat, the wife of the deceased, and the accused then went out of the house of the deceased to an enclosure which is said to be close by in order to help the cows to stand up. They left the deceased sleeping on his bed in the room. Mst. Sampat has alleged that the accused went to his house and returned shortly with a naked sword and he, on a pretex to take water, went into the house of the deceased and came out with the sword and run away. When she went into the house she found her husband lying dead at some distance from his bed. The prosecution case hinges on the evidence of Mst. Sampat. As has been discussed in the judgment of Sharma J. the fact about the recovery of shoes of the accused at the house of the deceased and the fact about the accused remaining absent for a considerable time after murder cannot by themselves go much further in establishing the charge of murder against the accused. These are the circumstances which may be taken into consideration in support of other evidence tending to implicate the accused in the murder. In her statement before the committing magistrate Mst. Sampat did not mention that the accused went inside the room of the deceased with a naked sword and came out with it. But in her statement at the trial she has positively mentioned this circumstance. She was, however, not confronted by her previous statement on this pointed on this account her statement in the committing Magistrate's court cannot be looked into in order to discredit her testimony at the trial. She was confronted with another portion of her statement before the committing magistrate regarding the sound of the fall of the intern which attracted her to go near the room in which the deceased was sleeping In this behalf she said in the court of the committing magistrate that she stood in front of the door of the room in which the deceased was sleeping at the time the accused had gone into it; whereas in her statement at the trial she has said that she kept herself standing in the enclosure itself where she helped the cows to get up, till the accused came out of the house and ran away. It is also difficult to understand that Mst. Sampat would remain a passive spectator while the accused went with a naked sword in her house and ran away a little later. Mst. Sampat's behaviour in so doing cannot be regarded as above suspicion.
(3.) THE trial court has placed full reliance on her evidence but in view of the circumstances discussed in the judgment of Sharma J. it is not safe to place much reliance on her word alone. It is also doubtful that Mst. Sampat could not hear any sound of the struggle between the assailant and the deceased when she was standing close by just out-side the house or even if it may be taken to be in her enclosure nearby. It is true that Mst. Sampat from the very beginning named the accused as the person who had committed the murder. But the manner in which she has tried to improve upon the story it cannot be said that she is a very reliable witness. The circumstance that the room adjoining to that of the deceased had been bolted from out side (vide the statement of Mst Sampat and Mst. Gambhir) is also not explained by the statement of Mst. Sampat. The person who committed the murder must have taken the precaution to bolt the room of Mst. Gambhir in order to safeguard against Mst. Gambhir coming to the rescue of the deceased. Had it been that the accused bolted the door of Mst. Gambhir's house there would be no explanation for ignoring the presence of Mst. Sampat herself in front of the house of the deceased. There being two doors of the house of the deceased, the possibility of someone entering the house, while both Mst. Sampat and the accused were away, and committing and the accused be ruled out altogether. I would, therefore, accept the appeal and acquite the accused. By the Court.- The appeal is allowed. The conviction and sentence of the accused. Nawal Singh are set aside and he is acquitted. He shall be released at once if not required in any other case. .;