Mahavir alias Mahavir Prasad vs State of Rajasthan

R.S. Verma, J.—Learned Addl. Sessions Judge, Bikaner, by his judgment dated 21-10-87 in Sessions Case No. 16/86 has convicted Mahavir of an offence u/s 302 IPC and has sentenced him to undergo life imprisonment and to pay a fine of Rs. 500/- and in default to undergo further rigorous imprisonment of one year. Aggrieved, he has come in appeal.

Briefly stated, the prosecution story is that deceased Radha and PW 7 Mira are sisters, being daughters of PW 2 Babu Lal and PW 8 Mohini, Appellant Mahavir is son of Mohan Lal and his wife Mohini (not the former Mohini). Mohan Lal has two more sons viz. Chaturbhuj and Hanuman, Deceased Smt. Radha was married to appellant Mahavir some seven years prior to the incident. Radha''s sister PW 7 Mira was married to Hanuman aforesaid, the brother of the appellant. Smt. Radha used to reside with her husband separately from her in-laws in a rented house at Idgah-ki-Bari in the town of Bikaner while Mohanlal, his wife Mohini, Hanuman and Smt. Radha used to reside in a separate house at some distance.

The prosecution case is that Mahavir and his brother Hanuman used to demand a sum of Rs. 5000/- from PW 2 Babu Lal, father of deceased Smt. Radha and PW 7 Smt. Mira. Smt Radha used to complain about this to her father as well as to her mother Mohini PW 8 as also to her other relations PW 3 Hanuman, PW 4 Shanker Lal and PW 5 Shiv Kumar.

The prosecution story, further, is that on 22-11-1982, appellant Mahavir gave some beating to Smt. Radha with the result that she sustained some sort of injury in her left ear. On this, she came to the house of her father Babu Lal in the morning Of 23-11-1982 and complained about this beating and further reported that Mahavir was demanding a sum of Rs. 5000/- from her. Babu Lal along with his wife Mohini and deceased Smt. Radha went to PBM Hospital, Bikaner, where injury of Smt. Radha was got examined by Dr. Tejendra Singh, who found that the left ear of Smt. Radha was suffering from chronic suppurative otitis and her ear drum had an old perforation. Dr. Tejendra Singh prepared an out door patient prescription Ex. P1 in this regard. Babu Lal, thereafter, went to his office as usual. In the evening, after returning from office, he escorted Smt. Radha to the house of her husband Mahavir. Appellant Mahavir was then present at his house. He left Smt. Radha with Mahavir and came back and reported this fact to his wife Smt. Mohini PW 7.

The prosecution story, further, is that the same evening i.e. on 23-11-82, elder brother of Mahavir, Chaturbhuj, father of Mahavir Mohanlal and mother of Mahavir Smt. Mohini, went to the house of appellant. They asked Mira to follow them to the house of Mahavir. On this, Mira also went to the house of Mahavir. When she reached the house of Mahavir, the door of the house was closed. She knocked at the door at which father of Mahavir Shri Mohan opened the door and Mira went inside. Mohan, thereafter, barred the door from within. Mira, then, saw that Mahavir was beating Radha with fists while Chaturbhuj was pressing the chest of Smt. Radha by his knee and Smt Mohini, mother of appellant Mahavir was holding Smt. Radha by her feet. Soon Smt. Mohini exclaimed that Smt Radha''s voice had become feeble and therefore, Mahavir and his brother Chaturbhuj may put Smt. Radha on the cot. At this both of them put Smt. Radha on the cot and tied her hand and feet by a plastic cord. Mahavir them doused Smt. Radha with kerosene oil from a bottle. Chaturbhuj handed over a match box to Mahavir and Mahavir lit a match stick and set Smt. Radha to fire. It appears that Smt. Radha had an infant baby aged about 14 years, who also received some minor burns in this incident. The prosecution case is that thereafter, Mira was given beating by Mahavir, Chaturbhuj, Mohan and Smt. Mohini with the result that Mira became unconscious. When she regained consciousness, she found that she had been confined in a "ghumaria" (basement) in the house of her father-in-law Mohan. She was not allowed to come out of the "ghumaria" by sisters of the accused, namely, Smt. Bayal and Smt. Pana for a period of 12 days.

The prosecution story is that in the meanwhile, Smt. Radha died due to the burns sustained by her that very night. A cryptic news of her death was conveyed on 24-11-1982 in the morning by Chaturbhuj, brother of the appellant to Babu Lal. On receiving the news, Babu Lal PW 2 went to his brother-in-law Hanuman PW 3 On this, Hanuman went to Police Station, Naya Shahar, Bikaner, and lodged a report Ex P18. This report was recorded by Pritam Singh PW 12 u/s 174 Cr. P.C. ostensibly because till then, the cause of burning of Smt. Radha was not known. Pritam Singh immediately proceeded to the house of Mahavir and prepared site plan Ex. P8 and its legend Ex. PS A. He also prepared a memo (Ex. P 9) regarding the condition of the dead body of the deceased Smt. Radha and also a Panchnama Ex. P 10. He recovered a match box and a match stick from the scene of occurrence vide Ex. P 12. He, further, recoverd burnt nylon ''nivar'' from a cot vide Ex. P 13. He made recoveries of half burnt clothes, quilt etc. from the spot, vide Ex. P 14. He fund some broken pieces of bangles in the room where the dead body of Smt. Radha was lying. He also found some pieces of bangless outside the said room. He recovered them vide Ex. P 15.

Pritam Singh arranged for constitution of a medical board to conduct an autopsy on the dead body of Smt. Radha. The medical board consisted PW 11 Dr. R. Gehlot and Dr. A.C. Bothra and P.N. Sarin. This medical Board conducted post-mortem examination of the dead body of Smt. Radha, which was identified by her husband Mahavir and her father Babu Lal besides a constable Ladhu Ram on 24-11-1982 at 4.15 p.m. The medical Board found the dead body in a pugilistic posture. Faecal matter was coming out of anus. The hair of the deceased were smelling of kerosene oil. The body was extensively burnt and charred. The tongue was portuding and carbon particles had deposited on her teeth. Upon opening the dead body, the Medical Board found that the brain and its membranes congested. Carbon particles had mixed with mucus and had gone upto trachea. The mucous membrane of wind pipe was also congested. Likewise, both the lungs, spleen, lever and kidneys were also congested. The Medical Board prepared a postmortem report Ex. P17 in this regard. In the opinion of the Medical Board Smt. Radha had died due to shock because of excessive burns involving 95% of her total body surface area. The Medical Board preserved her viscera for chemical examination and skin for histo-pathological examination.

The prosecution story is that after the post-mortem examination was over Pritam Singh recovered the ornaments of the deceased vide Ex. P15 Certain pieces of clothing sticking on the body of the deceased were also recovered vide Ex. P16. He, thereafter, handed over the dead body of the deceased to her husband Mahavir vide Ex P4. Eventually, the mortal remains of Smt Radha were aremated by Mahavir and his relatives.

The prosecution story is that on 28-11-1982, appellant Mahavir went to the house of Babu Lal. At that time, Babu Lal''s brother-in-law Hanuman PW 3, his cousin Gopi Ram PW 6 and PW 9 Ram Chandra another brother-in-law of Babu Lal were present. The appellant made an extra-judicial confession in the presence of these persons to the affect that he had burnt Smt. Radha to death and therefore, he may be pardoned. On this, Babu Lal told him that he could not be pardoned for such a serious crime. Thereafter, Babu Lal got a report written and lodged the same with PW 12 Pritam Singh on 29-11-82. On the basis of this report, Pritam Singh recorded a formal FIR Ex. P3 for offence u/s 302 IPC and proceeded to investigate the matter. He recorded the statements of various witnesses and eventually filed a charge-sheet against accused-appellant Mahvir. It appears that Babu Lal was not satisfied with the investigation made by Pritam Singh and he, therefore, lodged a criminal complaint against Mahavir, Chaturbhuj, Mohan and Mohan''s wife. Smt. Mohini with the Magistrate having jurisdiction The learned Magistrate, in whose court this complaint was lodged, forwarded the same to SHO, Police Station Naya Shahar, upon which CW 1 Bakhshish Singh made further investigation into the matter. How ever, he did not find any substance in the complaint and submitted a-final report Ex. D14. Consequently, appellant Mahavir alone was committed to court of Sessions for standing trial for offence u/s 302 IPC. Learned Sessions Judge, Bikaner, framed charge u/s 302 IPC against the appellant on 7-2-83. The accused pleaded not guilty and claimed trial.

It appears that the case was later on made over to learned Addl. Sessions Judge, Bikaner, before whom, prosecution examined as many as 12 witnesses in support of its case. The court though it poper to examine CW 1 Bakhshish Singh also. The learned Addl. Sessions Judge recorded the statement of Mahavir u/s 313 Cr. PC Mahavir admitted that he had been married to deceased Smt. Radha. He also admitted that his b other Hanuman had been married to Smt. Radha''s sister Mira but he denied that he ever gave any beating to Smt. Radha or ever made any demand for dowry or in any way harassed Smt. Radha. He denied the prosecution story that he had burnt Smt. Radha to death or be had made any extra-judicial confession in connection with the alleged murder of Smt. Radha. His case is that on 21--11-82, he had gone to Deshnok to see his ailing grand mother. On 24-11-82, at about 11-12 noon, his neighbour Bhanwar Lal Swami came to him at Deshnok and informed him that his wife had been burnt. On this, he came to Bikaner and came to know that his wife had already been removed to the Hospital. On this, he went to the Hospital and found that his wife had already died. He along with members of his family and also members of the family of his in-laws, cremated the dead body. He has stated that he has been falsely implicated by Babu Lal and close relatives of Babu Lal because Babu Lal had borrowed a sum of Rs. 2000/- from his brother Hanuman way back in the year 1981. Babulal had declined to repay the amount upon which, a suit had to be filed against Babu Lal, which was decreed vide Ex. D15. It is further alleged that Babu Lal had lodged a criminal case against the appellant for an offence u/s 406 IPC, which had been dismissed on 3-8-87 vide Ex. D16. It was out of this animosity that a false case had been lodged against the appellant by his father-in-law in complicity with close relations of this father-in-law.

How ever, the accused-appellant did not lead any defence evidence in support of his case. The learned trial Judge after hearing both the sides, convicted and sentenced the accused-appellant as stated above and, hence, this. appeal.

We have heard the learned Counsel for the appellant as also the earned Counsel for the appellant as also the learned P.P. who has vehemently opposed the appeal.

At the outset, we may state that there is absolutely no doubt that deceased Smt. Radha had been married to appellant Mahavir and she had been living with Mahavir in a house, separate from the house of her other in-laws. There is also no doubt that Smt. Radha met an unnatural death by extensive burns on the night intervening 23-11-82 and 24-11-82. This aspect of the prosecution case has not been challenged before us by the learned Counsel for the appellant and rightly so.

We may here state that the learned trial count has not believed the eye witness accounts given by Smt. Mira PW 7 regarding the alleged burning of Smt. Radha by appellant and appellant''s father, mother and brother. We have carefully gone through the evidence of Smt. Mira and in agreement with learned trial court, we are of the view that her statement is hardly worthy of credonce. Learned P.P. has also not placed any reliance upon this evidence. It is curious that the accused-appellant and his father, mother and brother would have invited Smt. Mira to witness a ghastly crime to be perpetrated against her own, sister in the marital home of the deceased. She claim to have been confined in a basement for a period of 12 days from the date of the incident and wants us to believe that only after 12 days were over, that she was allowed to come out of the "ghumaria" and only then could she report the story of the ghastly crime. This is belied by toe fact that her statement had been recorded by the Investigating Officer on 30-11-82 itself, while the 12th day from the date of incident falls on 5-12-82. We, therefore exclude the evidence of Smt. Mira from consideration altogether in agreement with the trial court.

When evidennce of Smt. Mira is excluded from consideration, we are left only with circumstantial evidence and the evidence pertaining to the alleged extra-judicial confession made by the accused-appellant on 28-11-82. We may state that the latter evidence given by PW 2 Babu Lal, PW 3 Hanuman, PW6 Gopi Ram and PW 9 Ram Chandra pertaining to extra judicial confession has been discarded by the learned trial court itself and for cogent and valid grounds. Learned P.P. has also not relied upon this piece of evidence and we are in entire agreement with the learned trial court, for the reasons recorded by him, that this evidence does not inspire confidence at alt and has to he rejected as unworthy of credence. In this connection, it would suffice to observe that the Police, machinery had already come into action the very day the death of Smt. Mica had been known and hence, there could have been no occasion for the accused-appellant Mahavir to approach Babu Lal and others on 28-11-82 to make a request to them that they may not lodge any complaint with the Police and may pardon his ghastly crime. We, therefore, totally exclude this evidence also out of consideration.

Once the aforesaid two pieces of evidence have been excluded, the case rests purely on circumstantial evidence. Principles of circumstantial evidence are rather, well settled. The prosecution has to prove the chain of circumstances by cogent, reliable and trustworthy evidence beyond, shadow of reasonable doubt, each link in the chain has to be so established, the chain of circumstances must be such so as to lead to one and one conclusion alone, namely, that of the guilt of the accused; the chain of circumstances, so established should exclude any other hypothesis and should be incompatible with the innocence of the guilt. (Kindly see; State of U.P. Vs. Sukhbasi and Others, We shall, therefore, have to see whether the prosecution has been successful in establishing the chain of circumstances, so complete and strong that it is compatible only with the hypothesis of the guilt of the accused and with no other.

First of all, we may come to the story of motive. Here, again we may state that the learned trial court has discarded the prosecution story so far as it tries to establish that the accused-appellant used to demand a sum of Rs. 5000/- as dowry from Babu Lal, father of the deceased, and in our opinion, rightly so. We need not repeat the various reasons given by the learned trial Judge and suffice it to state that Babu Lal was in indigent circumstances. He had borrowed a sum of Rs. 2000/- from Hanuman, brother of the appellant, way back in the year 1981 and had failed to repay the same, with the result that a suit had to be filed against Babu Lal, which was decreed vide Ex. D15. Here, we may state that Babu Lal had an old grouse against the appellant and his brothers because appellant''s brother had obtained the aforesaid decree against him.

Before we discuss the circumstantial evidence, relied upon by the trial court in this case, we may refer to two important and peculiar features of this case. Firstly, we find that the information regarding the death of Smt. Radha had been conveyed to Babulal on 24-11-82 itself. He had consulted his own brother-in-law Hanuman and then got the report Ex P18 lodged. Had he really any suspicion against the accused that he had done Smt. Radha to death, due to dowry demands, then Ex. P 18 would not have been made in the form, it was made Some suspicion would have been indicated in Ex. P18 and some indication should have been forthcoming that the accused-appellant used to make dowry demands from Babu Lal. But, this was not done.

The second important feature that impresses, us is that according to Dr. R.K. Gehlot, he was unable to determine if the death of Smt. Radha was homicidal, suicide or accidental.

We would like to advert to one more important circumstance in the case. The prosecution tried to show that the appellant used to beat Smt. Radha quite often and had indulged in such beating even on 22-11-82 with the result that Smt. Radha had sustained injury on her left ear. Learned trial court has not accepted this part of the prosecution story and very rightly so. The testimony of Dr. Tejendra Singh goes to show that when he examined Smt Radha, he found an old perforation in her ear and she was really suffering from chronic suppurative otitis. He does not state that he found any injury to the ear of Smt Radha because of recent beating. Thus, we find that the prosecution witnesses Babu Lal and Smt. Mohini have been guilty of padding in this case, when they say that Smt. Radha complained to them of some beating by the husband on 22-11-82.

Now we may refer, to the various cirumstances upon which the learned trial court has chosen to convict the appellant. Learned trial court has given the following reasons for arriving at the conclusion that the appellant must have committed murder of Smt Radha:-The appeallant was residing with Smt. Radha in the marital home and, therefore, it is to be concluded that he must have been present When Smt Radha got burnt. In this connection, he has relied upon the testimony of Babu Lal and others to show that the accused-appellant was present at his house when Babu Lal and others reached the house of appellant after receiving the information of the death of Smt. Radha. We shall discuss this evidence a little later. The second circumstance that the learned trial Judge noted was that the palms and soles of Smt. Radha had not been burnt. The reasoning of the trial court is that had an accident taken place, Smt. Radha would have tried to extinguish the fire and that would have singed the palms of Smt. Radha. He has concluded that this part of medical evidence goes to show that Smt. Radha must have been caught hold of by hands when she was being burnt. He next observed that some pieces of bangles had been found in the room in which Smt. Radha was found dead. Certain other pieces of bangles were also found outside that room and it shows that some sort of struggle must have taken place before Smt. Radha was burnt. The next reason given by the learned trial Judge was that the dead body of Smt. Radha was not found in kitchen but had been found in her room and that would exclude the possibility of an accidental death. He further, observed that Smt. Radha had an infant child and the child had very minor burns showing thereby that an attempt had been made to save the child. He, further, observed that had there been an accident, Smt. Radha would have cried for help and it would have attracted the neighbours but none of the neighbours came to the house of the appellant and this shows that the incident was not accidental. Lastly, he relied upon the circumstance that accused had taken a plea that he had gone away to Deshnok to see his ailing grand mother. He was summoned to Bikaner through one Bhanwar Lal Swami but this Bhanwar Lal Swami has not been examined. It was on these premises, that the learned trial Judge arrived at the conclusion that the accused-appellant must have committed the murder of Smt. Radha.

We may now deal with these circumstances one by one. This is true that the palms and soles of the deceased were neither burnt nor singed but from this fact, it cannot be concluded that her hands must have been caught when she got burnt. If a lady commits suicide by dousing herself with kerosene oil on her head and sets herself to fire, them her palms and soles may not yet burns at all. Dr. R.K. Gehlot has not ruled out the possibility of a suicide in this case as would be evident from his statement already referred to above, which occurs at page 123 of the paper book. This is true that in this case, no evidence has been led to show by the defence that Smt. Radha was placed in such circumstances that she might have committed suicide. But this weakness of defence does not help the prosecution, which has to stand on its own legs. The fact that the dead body was not found in the kitchen and was found in the living room, may rule out a case of accidental death but would not rule out a case of suicide at all. The fact that the infant child had very little burns, does not necessarily lead to the inference that it was the accussed-appellant, who had tried to rescus the child. Even a mother contemplating suicide may not like her own child to be burnt to death and the the possibility that Smt. Radha may have pushed the baby away while committing suicide, would explain the fact that the infant had received only minor burns. It is true that according to prosecution, some pieces of broken bangles were found in the room in which Smt. Radha had died and likewise, some pieces of broken bangles were also found outside the room. This circumstances is, of course, baffling to some extent. But on the basis of this fact alone, it would be difficult to jump at the conclusion that it was the accused, who had committed the murder of the deceased.

Now we may examine if it has been established satisfactorily that the accused-appellant was present at the marital home in the night of the incident Learned P.P. has relied opon the testimony of Babu Lal in this regard. Babu Lal has stated in his examination-in-chief that when on the evening of 23-11-82, he vent to the house of Mahavir, Mahavir was present at the home. It is urged that an this basis, it should be concluded that Mahavir must have been at the home when Smt. Radha was burnt. The contention is not acceptable because we find that the statement, of Babu Lal is in direct conflict with his previous statement E to F in Ex. D2, which has been proved by CW 1 Bakshish Singh. In this, statement Babu Lal categorically stated that when be reached the house of Mahavir that evening at about 8.40 p.m. Mahavir was not present at that time and the lock at the door of the house was opened by Smt. Radha with a key, which she already possessed. Babu Lal has, of course, denied this statement but there is no reason to discard the testimony of Bakshish Singh on this point. Thus this evidence does not establish that on the fateful night, Mahavir was definitely present at his house.

Learned P.P. urged that we should presume the presence of Mahavir to the marital home at the time of incident inspite of above infirmity in the testimony of Babu Lal. We are afraid, we cannot do so. This is true that Mahavir has not examined Bhanwar Lal Swami to establish that he had been to Deshnok to see his ailing grand mother and had returned to Bikaner only on being informed of the incident but this lacuna on the part of the defence does not in any way strengthen the case of the prosecution.

This is true that the plea of Mahavir is in a way a plea of alibi and plea of alibis usually a weak type of evidence but it is to be remembered that in this case, the burden lay on the prosecution to establish positively that Mahavir had been in his home on the night of the incident. This is true that if the prosecution could show that the accused was alone with his wife in the house when the incident took place then in the absence of any cogent explanation by him, the circumstance would point to the guilt of the appellant. In Nika Ram Vs. State of Himachal Pradesh, , evidence had been led to show that the accused had been seen with the deceased in their house on the day of the occurrence at 3 p.m. No one else resided with them in the house and that very might, the wife was found murdered. In these circumstances, the Hon''ble Judges of the Apex Court observed. "The fact that the accused alone was with Chun deceased in he house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt." But such is not the position in the present case.

Learned trial court arrived at a conclusion that the day next to the incident Mahavir was seen present at his house and, therefore, it may be concluded that Mahavir must have been present at the house when the incident took place. In our opinion, no such presumption can be drawn by the subsequent presence of the appellant at his house. Under s. 114, of the, Evidence Act a Court may presume that a thing or state of things which has been shown to be in existence within a period shorten than that within which such things or state of things usually ceases to exist, is a still in existence. But it is not possible to derive a reverse inference. If the prosecution would have been successful in showing that appellant was present at his house on the preceding night at 8.45 p.m. as claimed by Babu Lal when Babu Lal left Smt. Radha at the house, them it could have been safely presumed that he must have remained at the house during the night of the incident but merely because subsequent to the incident, the appellant had been seen at the house it cannot be presumed that he was also present at the house when the incident took place. There is no reliable evidence what so ever to show that the accused had been in the marital home with deceased Smt. Radha preceding or during the night Smt. Radha was burnt. The Investigating Officer did not examine any neighbour to find out if appellant had been seen with the deceased in the house after Babu Lal had left Stilt Radha at the marital home. We have already demonstrated that the statement of Babu Lal that Mahavir was present at the house at the time, he left Smt. Radha at the house, is falsified and belied by his previous police statement which is in direct conflict with the testimony of Babu Lal given at the trial.

There is yet another angle from which the case deserves to be examined. Before relying upon any incriminating circumstance against an accused, it imperative for the trial court to put such circumstances to the accused in the statement recorded u/s 313 of the Criminal Procedure Code so that he may have a sufficient opportunity of explaining such circumstanced. The law on this point is rather well settled. Suffice it to refer to the observations the Apex Court in Shared Birdhichand Sarda v. State Maharashtra 1984 CriLR 296 paras 142 and 144, where in the Hon''ble Supreme Court observed as follows:

Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under s. 313 of the Criminal Procedure Code the must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Fateh Singh Bhagat Singh v. State of Madhya Pradesh this Court held that any circumstance in respect of which as accused was not examined under s. 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities or this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in hid examination under Sction 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him....It is not necessary for us to multiply Authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under s. 313 of the Criminal Procedure Code have to be completely excluded from consideration.

In view of this settled legal position, we have to see if the learned Sessions Judge put the various circumstances used by him against the accused-appellant to the accused-appellant in his statement recorded u/s 313 Cr. PC. The circumstances that the palms of both the hands and soles of Smt. Radha were found unburnt, was not put to the accused-appellant in his statement. Likewise, the fact that the infant child had been found with very minor burns in the house, was not put to the appellant The circumstance that neighbours would have been attracted and would have come to the house of the appellant in case she would have met an accident, is not established nor was it put to the accused-appellant. Learned trial Judge took into consideration the circumstance that had an accident taken place, accused Mahavir or members of his family would have reported the matter to the Police and the matter would not have been reported to the Police by the ''peeharwalas'' Of Smt. Radha. Learned trial Judge has failed to take into consideration the admission of Babu Lal that it was Chaturbhuj, teal brother of Mahavir, who had informed Babu Lal on 24-11-1982 at 8 a.m. of the fact that Smt. Radha had been burnt to death. It was on the basis of this information that Babu Lal sent Hanuman to lodge report with Police Station, Naya Shahar, upon which Ex. P 18 was recorded. Hence, the aforesaid circumstance does not advance the prosecution case in any way.

The circumstance that the match stick and the match box were found in the room in which Smt. Radha was found burst, is quite compatible with the fact that Smt Radha must have committed suicide.

The over all circumstances of the case do raise a grave suspicion against the accused-appellant but suspicion, how ever, grave it may be, cannot take the place of proof. We find that in this case, the prosecution has failed to establish successfully that Smt. Radha died a homicidal death or that it was the accused-appellant, who had burnt Smt. Radha to death. The circumstance that the infant child received minor burns and hence accused might have tried to save him, was not put to the accused appellant in his statement. We have already considered this circumstance and in our opinion, this circumstance is compatible with the fact that Smt. Radha herself might have taken pity on the child and might have pushed her away while committing suicide. Learned trial Judge relied upon the circumstance that Smt. Radha might have caught fire when she was alone. This he has concluded on the basis that carbon particles had been found in the mucus as also in the wind pipe, laryax and trachea. This circumstance is a meutral one and is compatible with a case of suicide also.

On the facts and circumstances of the case, we find that that the prosecution has miserably failed to establish that accused-appellant committed the murder of Smt. Radha by dousing her with kerosene and then burning her.

No other point was urged before us.

In view of the above conclusions, this appeal deserves to be accepted. We, therefore, accept the appeal and set aside the Conviction and the judgment recorded by the learned trial court and acquit appellant Mahavir by giving him benefit of doubt of offence u/s 302 IPC. Fine, if paid, shall be refunded to the appellant. He shall be released forthwith, if in custody and not required in any other case.