1. - This Criminal Appeal was filed by the accusedappellant Mahaveer @ Liliya against the judgment dated 07.10.2005 passed by the Sessions Judge, Churu in Sessions Case No.01/2005 whereby that court had convicted and sentenced the accused-appellant Mahaveer @ Liliya as under:-

1. 302 IPC Life imprisonment with fine of Rs. 1000/-, in default of payment of fine to further undergo two months SI.

2. 4/25 Arms Act One year RI with fine of Rs. 1000/-, in default of payment of fine to further undergo two months RI.

2. The accused-appellant was in custody from 19.10.2004 to 07.10.2005. The benefit of section 428 Cr.PC had also been given by the trial court to the accused-appellant. It has been argued in this case that without any substantial evidence, the accused has been convicted by the trial court on the basis of surmises and conjectures and the prosecution story was full of doubts but the trial court has not given benefit of doubt to the accused. Learned Public Prosecutor has opposed the arguments of the Amicus curiae.

3. We have gone through the record. We have also perused the impugned judgment. The arguments of both the parties have been heard.

4. The charge sheet under section 302 IPC etc. had been submitted against the accused-appellant Mahaveer @ Liliya basically on the basis of three extra judicial confessions which had allegedly been made in the presence of Pema Ram, Mani Ram and Dinesh Kumar. All these three persons had been examined under section 161 Cr.PC and in those statements, they had narrated that the accused Mahaveer @ Liliya had admitted before them that in a state of intoxication, he had committed murder of a lady by cutting her throat with the help of a 'Talwar'. It is surprising that none of all these three persons before whom the extra judicial confessions had allegedly been made by the accused-appellant was examined by the prosecution as prosecution witness. This fact creates serious doubt in the prosecution story.

5. The trial court has convicted the accused-appellant Mahaveer @ Liliya on the basis of recovery of 'Talwar' from him and also on the basis of blood stains being found on his clothes which were matching to the stains found on the clothes of the deceased Smt. Saraswati Devi. The accused-appellant was arrested on 19.10.2004 at 04:30 PM allegedly in the presence of Dinesh Kumar Nai and Mani Ram Prajapat but none of these two Motbirs has been examined by the prosecution as a witness. In the memo of arrest (Exp.18), it has not been mentioned that the clothes of the accused were having blood stains. The murder of the lady had allegedly been committed on 16.10.2004 at about 12:30 in the noon in the 'Jungle' known as Bagla Beed No.1. The prosecution wants to seek help from the 'Fard Jabti Parchat' (Exp.7) which was made soon after the arrest of the accused Mahaveer @ Liliya on 19.10.2004 but the time of making this 'Fard' has not been mentioned in the 'Fard'. This 'Fard' was made in the presence of two Police Constables only and no other motbir was kept in this 'Fard' and in this 'Fard' it has been mentioned that the clothes worn by the accused appellant Mahaveer @ Liliya at the time of his arrest were blood stained and so his clothes (Paint and Shirt) were taken and seized from his body and sealed. The prosecution has not been found able to explain the conduct of the Investigating Officer that why the witnesses were changed and why the Motbirs were not produced in the witness box to prove the recovery of blood stained clothes though the accused was arrested in the presence of two motbirs and why only the police constables have been made witnesses to the 'Fard Jabti Parchat' which is Exp.7. In the circumstances of the case, it cannot be said that the clothes worn by the accusedappellant at the time of his arrest were found blood stained. Furthermore, the murder was committed on 16.10.2004 and the accused was arrested on 19.10.2004. It has been argued by the Amicus Curiae that had the clothes been bloo