JUDGMENT 1. - This criminal jail appeal has been preferred by accused-appellant Rajaram through the jail authorities, against the judgment of the Additional Sessions Judge, Baran, dated 25th May, 1977, convicting the accused of the offence under section 302, IPC, and sentencing him to imprisonment for life. 2. The brief facts of this case are that on 6th Aug., 75, one Ratanlal (deceased) had gone to Ruthyai village for purchasing articles from Grocery-Shop. It was not known as to how much amount, Ratanlal had taken with him when he went to purchase the articles. From village-Nakdi, Ratanlal came to the house of Ram-kishan, and Ramkishan gave him Rs. 45/-. Ratanlal was on his Mare. He carried with him, one bottle, tin, container, one umbrella, shoes etc. On that day, Ram-charan PW 1 had gone to bring his sister. He got down at Village-Ruthyai. While he was going ahead, he saw Ratanlal and Rajaram in between village-Khajuri and Patpari. Ratanlal was going on a Mare, while Rajaram on foot. Ramcharan wished both of them and asked as to whether they would be able to catch the 12 Oclock-train. At this, they both replied that they would catch the train. At that time, Rajaram was wearing a blue Bandi and a Tapald. Ratanlal and Rajaram, on their way, also met Jamnalal PW 4. Jamnalal asked them as to where they were going, whereupon, they both replied that they were going to Village-Ruthyai, Jamnalal also saw Rajaram wearing a Bandi and a Alwan. It is also alleged by the prosecution that Hiralal, Amra and some others got down at Bhulon-Station ; and were going towards their village-Nakdi. Near the Jhiri of water, they saw the mare of Ratanlal grazing, and the goods and the umbrella were on the back of the mare. Just a few paces ahead, they saw the dead body of Ratanlal, who was having wound on his neck. Hiralal then came to the house of Ratanlal and informed the fact to the widow of Ratanlal as well as the other villagers. They all came to the spot and as it was night, no report was lodged at the police station. On 7th Aug. 15, at about 1 PM, Hiralalal lodged a report to this effect at PS-Bapcha. On this report, a case under section 302, IPC was registered. The police started investigation and came to the spot. They all came to the spot and as it was night, no report was lodged at the police station. On 7th Aug. 15, at about 1 PM, Hiralalal lodged a report to this effect at PS-Bapcha. On this report, a case under section 302, IPC was registered. The police started investigation and came to the spot. There, they prepared a Panchayatnama of the deadbody of deceased Ratanlal, and a site-plan. From the spot, the blood-stained earth and stones were also seized and sealed. The clothes of the deceased were also seized and sealed, Accused Rajaram was arrested thereafter. He gave information on 12th Aug., 75 for recovery of an umbrella which belonged to the deceased, Ratanlal. This information is Ex,P.20. On the basis of this information, the umbrella was recovered vide memo, Ex.P. 11. The accused also gave information for recovery of the Bandi of Ratanlal deceased. This information is Ex.P.21. On this information the police recovered the Bandi from the house of Rajaram, which was produced to them by Seetaram, the father of the accused. The recovery-memo for the Bandi is Ex.P. 13. An identification-parade for the Umbrella was held ; and Mst. Gheesi, widow of deceased Ratanlal identified them to be of his brother. This identification-memo is Ex.P. 14. The recovered Bandi, 'Tega, and the Alwan, and the blood-stained earth were then sent for chemical examination. The report of the chemical-examiner and serologist is Ex.P. 26. The report of the serologist in this regard is that the Bandi, had blood on it, and regarding the other articles, the report is that blood-stains on them had disintegrated and their origin could not be determined. After completing investigation, the police submitted a challan against the accused-appellant. The learned Additional Sessions Judge framed charge against the accused, under section 302, IPC. The accused pleaded not guilty and claimed trial. The learned Additional Sessions Judge recorded in all 19 prosecution witnesses. In defence, the accused did not examine any witness. The accused denied the allegations made against him. 3. After concluding the trial, the learned Additional Sessions Judge found the accused guilty of the offence under section 302, IPC, and sentenced him as mentioned above. 4. There is no dispute about the death of Ratanlal that he died on account of the injuries received by him. The accused denied the allegations made against him. 3. After concluding the trial, the learned Additional Sessions Judge found the accused guilty of the offence under section 302, IPC, and sentenced him as mentioned above. 4. There is no dispute about the death of Ratanlal that he died on account of the injuries received by him. The prosecution witnesses have stated that they had seen Ratanlal lying dead having wound in his neck. Post-mortem examination was also conducted by Dr. Phoolsingh Yadav PW 11 on 7th Aug. 75, who opined that the deceased had a number of injuries on his person. Probable version according to the said doctor, regarding the injuries, were from 24 to 36 hours. The doctor found the following injuries on his person .- 1. One incised wound 11/2" x 3/4" x 3/4" situated on the back of neck 11/2" right to seventircervical spine. It was horizontal in direction. 2. One incised wound situated on left side of back at the medial angle of scromial spine of left scapula 1/2" x 1/2" x 1/2". It was horizontal in direction. These injuries were inflicted 3 to 5 minutes before the death because there was no clotting. 3. Incised wound on dorsum of right index, middle ring and little finger at first inter phalaxysgea joints of every finger. The length of each wound was equal to the breadth of each finger and width and depth was 1/4" x 1/2", 4. One incised wound 8" x 21/2 x deep to buccal cavity. The sound extending from right angle from the mouth to middle of right side of neck. The wound was 3" deep in neck oblique in direction. The floura of the wound was formed in buccal cavity vertebra. All the structure along the path of the wound had been cut., i.e., skin, body of right side of martication jugular vessels both the internal and external carotid arteries and ninth, tenth and eleventh of right side. 5. One incised wound 23/4" x 11/2" x deep to buccal cavity extending from part of nose. Hence, completely cutting the lower part of nose. The heart pellet was also cut. The teeth (the upper increase and caniness were coming out of the wound. The direction of the wound was horizontal. 6. 5. One incised wound 23/4" x 11/2" x deep to buccal cavity extending from part of nose. Hence, completely cutting the lower part of nose. The heart pellet was also cut. The teeth (the upper increase and caniness were coming out of the wound. The direction of the wound was horizontal. 6. Incised wound 11/2" x 1" x 1/2" situated on the left side of cheek in the centre on lower jaw horizontal in direction. 7. Incised wound 5" x 2" x 21/2" situated on left side of cheek 1" blow left ear lobule. The wound extended from middle of left side of mendible to occipital protuberance. The wound revealed the fracture of mendible, (2) cutting of the parotid gland, (3) branches of facial nerve were cut, (4) external and internal ingler varies were cut & (5) external and internal carotid vessels were cut. 8. Incised wound 5" x 11/2" x 2" situated in the middle of left of neck oblique in direction. It had cut all the structures of neck upto body of 4th cervical vertebra. 9. Two incised wounds situated on apex of left shoulder 3" x 11/2" x 3/4" each and to each other oblique in direction. Fractures : 1. Fracture of both the side of mandible. 2. Fracture of nasal bone. 3. Fracture of maxillary bone. 4. Dislocation of 4th upper incisers. 5. Fracture of occipital bone. Internal Injuries Head and neck as narrated above. Large versess : the vessels which were cut have been mentioned above. Abdominal wall distended and greenth discoloration. Stomach ; Distended with undigested food material. Ileum contained unabsorbed digested food. Large Intestines : Empty. Stool was passed on lion a loth liver showed signs of decompositions contents of stomach showed that the deceased took his meal 3 to 5 hours before death". In the opinion of the doctor, the cause of death was due to cutting of parotid vessels and the nerves of the neck. The mode of death was coma as well as synocppe. According to the doctor, the injuries individually as well as collectively, were sufficient in the ordinary course of nature to cause death. 5. Thus, it is clear that he died on account of the injuries inflicted to him. Therefore, his death was homicidal in nature. 6. There is no eye-witness. The entire case depends on the circumstantial evidence only. 7. According to the doctor, the injuries individually as well as collectively, were sufficient in the ordinary course of nature to cause death. 5. Thus, it is clear that he died on account of the injuries inflicted to him. Therefore, his death was homicidal in nature. 6. There is no eye-witness. The entire case depends on the circumstantial evidence only. 7. The learned counsel for the appellant has argued that there are only two circumstances in this case, on which, the learned Additional Sessions Judge has based his judgment and found the accused guilty of the offence under section 302, IPC : the first is that the accused was last seen with deceased Ratanlal, and the second circumstance is the recovery of the umbrella of Ratanlal at the instance of accused. The learned counsel then argued that the evidence of the Chhatri (umbrella) at the instance of the accused is unbelievable evidence. The umbrella was identified by Mst. Gheesi, widow of Ratanlal, before the Chairman of the Nyay Panchayat, and that identification has no value, was then argued by him that the prosecution has failed to prove that the recovered umbrella was sealed at the spot and the said seal remained in tact till it was brought before the Nyay Panchayat for identification-parade. According to him, after the recovery, the umbrella was sealed and the seal remained with the SHO, which, according to the learned counsel for the appellant, was in violation of the directions of the Police Act. He argued that whenever an article is seized and sealed the seal is handed over after the needful to the witnesses the recovery, and the seal should not be kept with the SHO, and if he keeps it, there is all possible chance of tampering with the seal. In the present case, he argued, the recovered umbrella of the deceased was with the SHO, after the sealing, and it is not on the record that seal was with one of the recovery-witnesses. Apart from this, the learned counsel argued, the sealed packets were kept by the SHO, and there is not an iota of evidence to prove that the seal remained in-tact from the date the packet was sealed till the date the said packet was produced before the Chairman, Nyay Panchayat for identification parade. Apart from this, the learned counsel argued, the sealed packets were kept by the SHO, and there is not an iota of evidence to prove that the seal remained in-tact from the date the packet was sealed till the date the said packet was produced before the Chairman, Nyay Panchayat for identification parade. So, according to him, in the absence of this proof, it cannot be said that the identification parade was a correct one and that the identification by Mst. Gheesi of the umbrella has any value. 8. In reply to these arguments, the learned Public Prosecutor, on the other hand, argued that the accused, while in custody, gave information for the recovery of the umbrella, and umbrella was identified by Mst. Gheesi, widow of the deceased, before the Chairman, Nyay Panchayat. The said umbrella, according to him, belonged to Ratanlal deceased, and there is no doubt in the conduct of the identification- parade, and there is no reason to disbelieve Mst. Gheesi, the widow of deceased, Ratanlal. He argued, the umbrella belonged to Ratanlal deceased, and the accused, after murdering him, took it away, which was later on, recovered at his instance. 9. We have heard the rival contentions of the learned counsel for both the parties, and also gone through the statements of the prosecution witnesses. 10. Heeralal PW 2, in his statement, has stated that at about 1-2 PM, he had seen the mare of Ratanlal grazing. Some goods were on the back of the mare, and also a Chhatri was also on its back. Then, he saw the dead body of Ratanlal from a distance of about 200-300 paces. The villagers came there, and for the whole night, they remained there. In the morning, on report at the police station, the police came and seized the goods which were on the back of the mare. The police prepared a memo for whatever articles they had seized. But, that memo does not have any mention of any umbrella. When according to Heeralal PW 2, the umbrella was on the back of the mare and there is no evidence to prove that after seeing the dead body by Heeralal and after gathering of the villagers at the spot, the accused took away the umbrella from the back of the mare. It cannot be believed that the umbrella of the deceased had been taken away by the accused. It cannot be believed that the umbrella of the deceased had been taken away by the accused. 11. Jamnalal PW 4 who had seen accused Rajaram and Ratanlal (deceased) going talking to each other, in his statement, has stated that they both were going talking to each other, and at that time, Rajaram accused had an umbrella with him. It means that Rajaram was having his own umbrella, and Ratanlal (deceased) also was having his own, which was found on the back of the mare. The alleged umbrella of Ratanlal was not a new one, but an old one and in broken condition. So, it cannot be said that Rajaram accused who had his own umbrella, would take away that of Ratanlal (deceased) after murdering him. So, the story that accused Rajaram took away the umbrella of Ratanlal (deceased), is unbelievable. When the umbrella was recovered and it was sealed and remained in the custody of the police it was the duty of the prosecution to have proved that the seal was not tampered, with till it was brought before the Chairman, Nyay Panchayat for identification parade. 12. In State of Rajasthan v. Daulatram ( AIR 1980 SC 1314 ) their Lordships, of the Supreme Court have held as under:- "Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted u/s 9A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage." In Mahmood v. the State of UP ( AIR 1976 SC 69 ), their Lordships of the Supreme Court have a held as under:- "Further, the investigator did not take all the necessary precaution which could be taken to eliminate the possibility of fabrication of this evidence, or to dispel suspicion as to its genuineness. Admittedly, he sealed the box with his own seal which, thereafter, remained with him throughout. Admittedly, he sealed the box with his own seal which, thereafter, remained with him throughout. He did not take the signatures of the witnesses on the parcel containing the gandasa. He did not after sealing the parcel entrust his seal to the Sarpanch or any other respectable person of the village." 13. Thus, it was obligatory on the part of the prosecution to have handed over the seal to some respectable person of the village or a witness who was present when the umbrella was taken. But, the umbrella remained with the SHO, and also, there is no evidence to this effect that the seal on the packet of the umbrella remained in-tact, till it was brought before the Chairman of Nyay Panchayat for identification parade. 14. In the State v. Motia and others (1953 (3) 1LR. Raj. 655), it was held by a division bench of this Court as under:- "Whenever it is desired by the prosecution that certain articles, which have been recovered from accused persons are to be identified, or are to be sent to the chemical examiner for analysis, it is necessary that the officer recovering the articles should immediately take steps to seal them and evidence should be produced by the prosecution that from the time the articles came into possession of the police to the time they were sent for identification before a Magistrate, or for examination to the chemical examiner, the seals remained in-tact. In the absence of such precautions it would always be open to the accused to say that the police later put human blood on the articles in order to implicate the accused, and the same reliance cannot be placed on the discovery of blood-stains on the articles recovered as would be done if necessary precautions are taken." 15. Thus, we agree with the learned counsel for the accused-appellant that the prosecution has failed to prove that in this case, the seal remained in-tact till from the date it was sealed till the date and time it was brought before the Chairman of the Nyay Panchayat, for identification. Therefore, this creates suspicion and it has not been established, that the umbrella which is alleged to have been recovered, belonged to Ratanlal deceased. 16. Another circumstance is the last seeing of the accused with Ratanlal. In this case, the prosecution has examined Ramcharan PW 1 and Jamnalal PW 4. Therefore, this creates suspicion and it has not been established, that the umbrella which is alleged to have been recovered, belonged to Ratanlal deceased. 16. Another circumstance is the last seeing of the accused with Ratanlal. In this case, the prosecution has examined Ramcharan PW 1 and Jamnalal PW 4. Ramcharan has stated that in between Village Khajuri and Patwari, he had seen accused Rajaram and Ratanlal (deceased) going together. Ratanlal according to him, was on a mare and Rajaram was on his foot. He asked them as to whether he would catch the train which used to go Beena, whereupon, both they replied that yes, they would catch that train. They both were talking to each other. 17. So, there is nothing to disbelieve the statement of Ramcharan PW 1. Similar is the statement of Jamnalal PW 4, who has stated that he had seen Ratanlal on a mare, and that, Rajaram accused was going with him. He had inquired from both of them as to where they were going. Both thereupon, replied that they were going to Ruthyai. In his cross-examination, he has clarified that lie had seen them on the day Ratanlal died. This witness was also cross-examined. In his cross-examination, he has said that he had seen Rajaram for the first time, on that date. He has also said that he knew him earlier by his name, and he identified him also. So, far this witness, it was argued that the statement of this witness is not a reliable one. Identification-parade of Rajaram was held, and Jamnalal PW 4 identified him during the parade. When in his statement, Jamnalal has stated that he knew Rajaram by his name earlier, where was the necessity for conducting the identification parade ? This shows that the statement of Jamnalal, is not a reliable statement. We have considered the statement of Jamnalal PW 4. The identification parade was conducted, because, he did not know the accused. No doubt, he has given contradictory statement, but, once identification parade was held and the witness, Jamnalal had identified him, there is no reason to discard his testimony. Apart from this statement, the statement of Ramcharan PW 1 is also trustworthy. So, from the statement of both these witness, we agree with the prosecution that the deceased was last seen with accused Rajaram. Apart from this statement, the statement of Ramcharan PW 1 is also trustworthy. So, from the statement of both these witness, we agree with the prosecution that the deceased was last seen with accused Rajaram. On the day, when Ratanlal died, both Rajaram and Ratanlal were seen together going towards village Ruthyai. So, the version (circumstance of the prosecution) of last seeing, is amply proved. 18. Now, the question remains for consideration is as to whether merely on the evidence of last seeing, can an accused person be held guilty of offence of murder, without any further corroborating evidence to the circumstantial evidence. The learned Public Prosecutor has fairly conceded that without any corroborating evidence merely on the basis of evidence of last seeing, a person cannot be convicted. 19. In the present case, there are two circumstances against the accused; one is that the deceased was last seen with the accused going together ; and the other is that of the recovery of the umbrella on the information and at the instance of the accused, Rajaram. This recovered umbrella belonged to deceased Ratanlal. But, as we have discussed above, we do not believe that the umbrella which is alleged to have been recovered at the instance of the accused, was that of Ratanlal. The evidence of the recovery of the umbrella and identification thereof by Mst. Gheesi, widow of the deceased, is disbelieved by us. So, the second circumstance regarding the recovery of the umbrella, has not been established. So, there is only one circumstantial evidence, and that is the evidence of last seeing. Merely on the basis of this solitary evidence of last seeing of the deceased with accused Rajaram, it would not suffice to hold the accused guilty of the offence of murdering Ratanlal. 20. In a case where the evidence is of circumstantial nature, the circumstances proved must be complete and of a conclusive nature, so as to be fully inconsistent with the innocence of the accused and are not explainable on any other hypothesis except the guilt of the accused. In the present case, the evidence is only of last seeing, which is not of a conclusive character to establish that the murder was committed by the accused. The circumstance of the recovery of the umbrella is disbelieved. Therefore, the only evidence of last seeing does not connect the accused with the crime. 21. In the present case, the evidence is only of last seeing, which is not of a conclusive character to establish that the murder was committed by the accused. The circumstance of the recovery of the umbrella is disbelieved. Therefore, the only evidence of last seeing does not connect the accused with the crime. 21. In view of our discussions above. We are of the opinion that the prosecution has failed to establish its case against the accused-appellant, and the learned Additional Sessions ludge has erred in holding that the prosecution has proved its case against the accused, and he has also erred in finding the accused guilty of the offence under section 302, IPC. 22. In the result, the appeal of the accused-appellant is accepted. His conviction and sentence under section 302, IPC, are set aside, and he is acquitted of this offence. The accused is on bail. He need not surrender to his bail-bonds, which are hereby cancelled.Appeal allowed. *******