( 1 ) THE order of conviction and sentence have been assailed primarily on three counts? firstly, the recovery of weapon doubtful; secondly the inference drawn by the learned Additional Sessions Judge that the appellant absconded after committing crime was without foundation, nor motive proved for the alleged crime; and finally prosecution failed to establish that the hair - recovered from the fist (muthi) of the deceased was that of the appellant.

( 2 ) BEFORE we appreciate the challenge raised by the appellant, we may glance through the relevant facts. Deceased Bano was the sister-in-law (Bhabhi) of the appellant. She was married to his brother Shabir. She had been living with her parents after her husband was involved in criminal case and sentenced. She had a son named Jahid from Shabir. Few months prior to this accident appellant brought her to Delhi from her parents house. She started residing in the house of Hasmat (PW-7) where appellant was also residing. On the fateful day i. e. 20/04/1995 she was found murdered in the basement of that house of Hasmat. Her throat had been cut. Hasmat (Pw-7) on getting the information that Bano had been murdered reported the matter to the police. Police seized broken bangles, chappal and bunch of black hair from her right hand fist (muthi ). On the basis of the rukka recorded by Hasmat (Pw-7) case was registered.

( 3 ) HASMAT (Pw-7) informed the police that Bano had developed illicit relations with accused Shahbuddin as a result of which she became pregnant, when shahbuddin was forced to marry her, he in order to get rid murdered her. Her throat was cut with an iron scrapper. Hasmat (PW-7) was running a shop of laith machine where the accused was also working. The iron scrappers are used in the laith machine, therefore, it was prosecution s case that accused Shahbuddin had access to iron scrapper with which he silenced Ms. Bano by cutting her throat. Further the said iron scrapper was recovered from the basement where murder took place. It was recovered at the pointing out of the accused. The hair recovered from the fist (muthi) of the deceased on examination by the CFSL were found to be that of the accused. He was, therefore, challanged under Section 302 indian Penal Code.

( 4 ) THAT the case when reached the court of sessions, the author of the FIR i. e. Hasmat (PW-7) and his wife Anisa (PW-9) resiled from their earlier statements. They were declared hostile. They did not support the case of the prosecution. So much so Hasmat. (Pw-7) even resiled from the facts recorded in Rukka which was duly signed by him. Learned Additional sessions Judge relying on circumstantial evidence convicted and sentenced the accused with rigorous imprisonment for life and a fine of Rs. 1000. 00 and in default of payment of fine further undergo rigorous imprisonment for one month.

( 5 ) RECOVERY OF NEAPON Of OFFENCE - WHTHER DOUBTFUL this circumstance in itself may not create any dent in the case of the prosecution but the cumulative effect of all the circumstances relied by the prosecution does create doubt. Recovery of blood stained scrapper alleged to be at the instance of the appellant, Mr. Rajesh mahajan contended has not been proved. Reason for this submission being that the two independent witnesses, who alleged to have witnessed the recovery did not support the case of the prosecution. According to him learned additional Sessions Judge fell in error in presuming that since recovery was testified by the police officials, therefore, despite independent witnesses it stood proved by the testimony of police witnesses. Mr. Rajesh Mahajan therefore contended that law in this respect is well settled. Once an independent witness cited by the prosecution to prove an incident does not support the case of the prosecution then that incident cannot be relied upon nor stood proved by the testimony of police officials. In such circumstances no credibility can be attached to the alleged recovery of weapon