JUDGMENT 1. - This appeal is directed against the order of conviction and sentence passed by the learned Addl. Sessions Judge, Sikar, in Sessions Case No. 5 of 1976, dated 9th September 1976. The prosecution story unfolded during the trial is that the deceased and the accused went in Ganganager District to sell Tobacco. In the First Information Report. Ex .P.1, submitted by Ibrahim Khan, PW.1, it has been stated that Noor Khan, the present appellant, returned home. He has further stated that Noor Khan handed over to him one Kambal, one Tripal and one camel, which Alam Khan took with him when he left Ganganagar. He, stated in the FIR that Alam Khan had asked him to return them. He further conveyed through the appellant that he will return after some time. Ibrahim and his family members waited for about one and a half months. Thereafter, they left with present appellant in search of Alam Ali. Alam Ali could not be traced and, as such, the First Information Report was lodged on 4-11-75 by Ibrahim Khan, PW.1 before the police Station Sikar. The case was registered under section 364, IPC. Investigation was conducted by Mahipal Singh, PW 22. It is further alleged that at the instance of the accused the dead body of the deceased was recovered. The information supplied by the accused Noor Khan is Ex P.10 and bears the signatures of the Investigating Officer as well one witness Ballu Khan. PW 19. Ex.P. 11 is the recovery memo of the dead body and it has been mentioned therein that one bush-shirt, one Kachcha and one Elaniyan were also found on the dead body. Inquest report Ex.P.12 was prepared by the Investigating Officer. Blood stained earth was also taken by Ex.P 13 front the place of the recovery of the dead body. Ex. P. 15 is the seizure memo of bush-shirt, Baniyan and Kachcha which was found on the dead body. Ex.P. 16 is the site memo of the place of recovery of the dead body. It is further alleged that at the instance of the accused of wrist watch and some other clothes were also recovered. Learned Additional Sessions Judge after recording the evidence of the prosecutor witnesses and gearing the appellant and also the learned public prosecutor convicted the accused appellant u/s 302, IPC and sentenced him to undergo rigorous imprisonment for life. It is further alleged that at the instance of the accused of wrist watch and some other clothes were also recovered. Learned Additional Sessions Judge after recording the evidence of the prosecutor witnesses and gearing the appellant and also the learned public prosecutor convicted the accused appellant u/s 302, IPC and sentenced him to undergo rigorous imprisonment for life. A fine of Rs. 500/- has also been imposed on the accused. In default of payment of fine learned Sessions Judge directed the accused appellant to undergo further rigorous imprisonment for six months As far as the offence under Section 364, IPC is concerned the accused has been acquitted. It will not be out of place here to mention that the learned Sessions Judge has passed the order that the charges under sections 379 and 411 IPC have not been framed against the accused and, he cannot be convicted under these offences. 2. Learned counsel for the appellant has vehemently argued the case ad submittd that (i) the prosecution has failed to establish the death of the deceased Alam Ali. (ii) That the dead body which was recovered was not the dead body of the deceased Alam Ali but was the dead body of any other person. (iii) It cannot be said that the dead body was of a male member. Learned counsel for the appellant has also assailed the identification of the clothes and the watch which have been recovered and submitted that the clothes and the watch which have not been identified i accordance with the provisions of law and evidence relating to the identification cannot be read in evidence. he has further submitted that even if the evidence is considered then it dose-not provide a link to the commission of crime and, it cannot be relied upon. Learned counsel for the appellant has further submitted that the recovery of clothes from the person of the dead body cannot be relied upon. Learned counsel for the appellant has further submitted that there is no evidence connecting the accused with the crime. 3. On the other hand, learned public prosecutor has vehemently argued that there is a direct chain of evidence against the appellant. He has submitted that the appellant and the deceased went together. They were seen together some time in the month of September or so in District Ganganager. 3. On the other hand, learned public prosecutor has vehemently argued that there is a direct chain of evidence against the appellant. He has submitted that the appellant and the deceased went together. They were seen together some time in the month of September or so in District Ganganager. He has further submitted that the articles watch and some clothes were recovered at the instance of the accused and these articles were also found in the possession of the accused-appellant and this is a connecting evidence and the accused has not given any explanation whatsoever to show how these articles came into his possession.He has also invited my attention the statement of PW 10 and submitted that accused has given a false explanation and this conduct of the accused is also relevant. We have given a considered thought to the rival contentions of both the parties and we will deal with all the points. 4. As far as the question of recovery of the dead body vide Ex. P. 11 dated 11-11-75 is concerned, PW 19, Ballu Khan PW 21 Mala Ram and PW 22 Mahipal Singh, investigating officer are the relevant witnesses. it will not be out of place here to mention that Ballu Khan is the nearest relative of the deceased and he has remained throughout active during the investigation and is not an independent witness. PW 19 Ballu Khan, is the attesting witness of Ex. P. 10 information memo and Ex.P.11, recovery memo, has stated that the deceased was his brother-in-law and he left police Station Sikar with accused Noor Khan for Bhadra. He has further deposed that at Bhadra Police Station Noor Khan gave the information recorded as Ex. P. 10 that at a distance of about 2 miles from the railway station on the way going towards village Karnal the dead body of the deceased Alam Ali has been burried. On the basis of the information the police party with Noor Khan proceeded towards the place where the dead body was burried and he accompanied them. He has further deposed that the motbirs of the nearby place were called and dead body was found burried near the Tila. With the help of kassi the place was dug about 1 to 1/4 and the dead body was removed. He has further deposed that there were clothes on the dead body. He has further deposed that the motbirs of the nearby place were called and dead body was found burried near the Tila. With the help of kassi the place was dug about 1 to 1/4 and the dead body was removed. He has further deposed that there were clothes on the dead body. This witness has further deposed that he has identified the deady body. He has further deposed that the bones on the skeleton were lying scattered. He has further deposed that the clothes Articles 8, 9 and 10 were seized by the police and thereafter, recovery memo Ex. P 12 was prepared and he put his Signatures on it. He further deposed that the Doctor came there and took some parts of the dead body and handed over remaining parts for the burial according to the rites. In cross-examination this witness has stated that he provided motor to the police for the purpose on investigation. He has further deposed that the accused and the police reached there on the evening 10th. He was confronted with his police statement Ex. D 4 in which this witness has admitted that in the police statement it has not been recorded that Noor Khan applied the information tho the police for purpose of recovery. He has further deposed that the information was supplied the accused-appellant at the tea shop and some more persons were taking. He has also admitted that the body was in an advance decomposed stage. 5. PW 20, Suja Ram is the witness who has deposed that he had seized the earth from the place where the dead body was found He has further deposed that Articles 9 and 10 were taken in the possession by the police from the dead body. PW 21, Mala Ram, has deposed that the dead body was taken out and the memo Ex. P 11 was prepared In cross examination he has admitted that the crops of Bajra and Mang were there in the field of Barsi Ram from where the dead body was found. There are number of fields and crop was also there. PW 22, Mahipal Singh, is the Investigating Officer and he has recorded Exs. P 10 and P II. This witness has deposed that information was given by the accused appellant which has been recorded by him in Ex. There are number of fields and crop was also there. PW 22, Mahipal Singh, is the Investigating Officer and he has recorded Exs. P 10 and P II. This witness has deposed that information was given by the accused appellant which has been recorded by him in Ex. P 10 and he also obtained the signatures of Noor Khan. He has also proved Ex P 17, the arrest memo. He has also admitted that the dead body was found in the field of Gadasi Ram. There are some other fields nearby that field and crops was also standing in these fields. We have perused the statements of these witnesses and, as far as the recovery of the dead body is concerned, we are of the view that the prosecution has succeeded in establishing that the dead body was recovered in an advance de-composed condition and, practically, the skelton was recovered by the Investigating Officer, PW 2 on the basis of the information supplied by the accused Noor Khan. 6. The second argument of the learned counsel for the appellant is that the dead body which has been recovered cannot he said to be the dead body of the deceased. 7. PW 11, Dr. Sahi Ram, has stated the approximate age of the deceased was 24 years. He has further stated that the dead body was of a male adult and the dead body was recovered in an advance de-composed condition. He has further stated that the skin and soft tissues of the dead body were highly decomposed. Some sanative hair with advanced petrified scalp tissue, blackish in colour having length of about 11/2" were found on the dead body. This witness has further stated that he found the fracture of the right zygoma tic process and fracture of the right temporal bone as will as of right perinatal bone. He also found the fracture of ribs. He estimated the height of the deceased about 5' 6". He has also stated that on examination of the dead body he found that the death took place within two to three months back from the date of the post mortem examination. He has further stated that there being on skin o the body the external injuries were also not visible to him. He could not any whether there was any symptoms of haemorrahage. He has further stated that there being on skin o the body the external injuries were also not visible to him. He could not any whether there was any symptoms of haemorrahage. He has further stated that the face of the dead body was not identifiable. He has further stated that the clothes which were on the person of the deceased were taken off by him and then he conducted the post-mortem. 8. Learned counsel for the appellant has invited my attention to the statement of PW 8, Mohan Ram. He has stated that the deceased was of the height of 6'. He has further stated that he purchased tobacco from the accused Noor Khan and deceased Alam Ali at the rate of Rs. 2/- per K.G. and thereafter, after a period of two months his statement was recorded. 9. PW 9, Ram has also stated that the deceased Alam Ali was of the good height and the height of the deceased was higher than that of the accused Noor Khan. Ex. P 17 is arrest memo of the accuse Noor Khan. The height of the accused Noor Khan has not been mentioned there only it has been mentioned that, " dn eqUnjk mez 40 lky " learned counsel for the appellant submits that the height of the deceased does not stand corroborated with the testimony given by the witnesses, PW 8 Mohan Ram and PW 9 Ramu. He further submits that the post mortem was conducted on 11-11-75 and it has been reported that the death has taken place before 2 to 3 months earlier. Learned counsel further invited our attention to Ex. P 1. This report has been lodged on 4-11-75 by Ibrahim Khan, the brother of the deceased. It has been mentioned in the FIR Ex. P 1, that Noor Khan accused returned all alone after one month of the departure for the purpose of sale of the tobacco. It has also been mentioned therein that Noor Khan told them that the deceased will return later on. He also returned some articles which the deceased had taken away with him. He has further deposed that Alam Ali did not return even after they waited for about 11/2 months. Then, they asked Noor Khan, but no satisfactory reply was given by him. He also returned some articles which the deceased had taken away with him. He has further deposed that Alam Ali did not return even after they waited for about 11/2 months. Then, they asked Noor Khan, but no satisfactory reply was given by him. Then he took Noor Khan to various places including, Beswa, Kelaniya, Nohar, Bhadra, Sardar Sahar and Ratwatsar, but he could not trace out his brother. Thereafter, he lodged report Ex. P 1 on 4-11-75. PW 1, Ibrahim stated that after the return of Noor Khan 11/2 months, Nazir went to village Beswa and he was informed there by Salimuddin that Alam All was not there in the fair and only Noor Khan was there. After two days Nazir returned and then he informed that Salimuddin had informed him that Alam Ali was not seen in the fair. Subsequently he went at the house of the accused and, thereafter, he left for other villages in the search of the deceased. Thus, the case which the parties want to make out is that the dead body which was recovered was not of the deceased. 10. The case of Gambhir v. State of Mah., AIR 1982 SC 1157 was cited before us I to show that there are three conditions which are necessary to be satisfied I before the circumstantial evidence can be made the basis for conviction.There may be suspicion against the accused but the suspicion cannot take the place of the evidence. The evidence should not fall short of proving the guilt of the accused. There is no dispute as far as this pro-postion is concerned. 11. The case of Lala @ Shankar Gaikwad v. State of Maharashtra, 1969 CAR 3 (SC) was cited before us. In this case, their Lordships held that in cases of the present kind where there is no direct evidence the estimate given by the doctor at the time of death is certainly material and cannot be ignored. Learned counsel for the appellant submits that the extreme limit set by doctor, even if taken to show that the deceased and the accused parted company before more than three months. It was also submitted that the doctor has opined that the probable cause of death is shock and haemorrhage on account of injuries resulting in multiple fracture and grievous injuries t the rivs and mandtble. PW I I, Dr. It was also submitted that the doctor has opined that the probable cause of death is shock and haemorrhage on account of injuries resulting in multiple fracture and grievous injuries t the rivs and mandtble. PW I I, Dr. Sahi Ram has stated that Kachha Article 8, Baniyan Article 9 and Bush-shirt Article 10 were found on the post-mortem examination. He has further stated that the injuries found on the dead body appeared to be anti-mortem in nature. 12. Learned counsel for the appellant submits that the doctor is not sure about the cause of death as he has only stated that the probable cause of the death was shock and haemmorrhage. Learned counsel for the appellant further submits that eve the doctor says that the injuries appeared to be anti-mortem, but he is not sure that the injuries were anti-mortem. The doctor has stated in the cross-examination that he cannot say whether there was any system of haemorrhage. Learned counsel for the appellant relies on the case of The State of Punjab v. Bhajan Singh and Others, 1975 SC 258 . In this case, their Lordships held that there was no eye witness of the occurrence and the conviction was sought only on the basis of circumstantial evidence. The statement of the doctor that the body was not identifiable, was accepted by the court and their lordships rejected the prosecution theory. It was submitted at bar that in the instant case also the body was not identifiable and, as such, the evidence of the Doctor is clear that the features of the person on whose dead body the doctor performed the postmortem were unrecognisable and, for this reason, it cannot be said that the body was of the deceased Alam Ali. It was also submitted that according to the doctor, he could not give the definite answer about the cause of death. He has only shown the probable cause of death. 13. Now, for the purpose of appreciating the evidence regarding the identity of the person we will have to appreciate the evidence of the witnesses relating to the inquest report and who have seen the dead body and the clothes. 14. PW 21, Mala Ram, is the witness of the inquest report Ex. P 11 and Ex. P 12. He has stated that the dead body was recovered and the clothes were on it. 15. 14. PW 21, Mala Ram, is the witness of the inquest report Ex. P 11 and Ex. P 12. He has stated that the dead body was recovered and the clothes were on it. 15. PW 22, Mahipal Singh, has stated that on the information given by the accused he went at the site and recovered the dead body. This witness has stated that Ballu Khan, who was with him, identified the dead body after seeing the clothes and stated that these are the clothes of the deceased. Thus, according to the investigating Officer foundation for the identification of the deceased was the version of Ballu Khan who has identified the deceased only on the basis of the clothes and not on the basis of the face and other part of the dead body. 16. PW 19, Ballu Khan, has stated that no injury could be detected. He has further deposed that he identified the dead body was handed over to Moinuddin. Thus according to learned counsel for the appellant it is clear that Moinuddin has not identified the dead body on the basis of the clothes as stated by the Investigating Officer. He further submits that the deed body was not identifiable after looking the face and,as such, the statement of Ballu Khan, PW 19, dose not stand good. 17. PW 1, Moinuddin, has not stated anything about the identification of the dead body Thus the theory of the identification of the dead body dose not inspire confidence. 18. The second set of evidence is about the recovery of Article 1, watch and article 5, Bush-shirt, which are alleged ti be that of Alam Ali. It is an admitted position that on the return accused -appellant handed over camel, blanket, Tripal and other article to Smt. Patma wife of deceased Alain Ali. She had stated that these articles have been sent by Ala Ali. If costly articles have been returned by the accused the retention Article 1 watch and Article 5 Bush shirt, is not believable and even if tit assumed that they were retained, it cannot be used for the purpose of connecting the accused with the crime. There is no charge under section 397 of 411 IPC. Apart from that the court below has held that the accused cannot be convicted under these offences. There is no charge under section 397 of 411 IPC. Apart from that the court below has held that the accused cannot be convicted under these offences. Even if it is assumed that the dead body was recovered at the instance of the accused it cannot be said to be an evidence to connect the accused with the Commission of the crime.Firstly because the dead body was not identifiable, secondly, that there is no evidence of last seen together, thirdly, the connecting evidence produced by the prosecution does not inspire confidence. Learned Judicial Magistrate, Sikar, has conducted the identification parade of the watch, under-wear and bush-shirt. As far as the under-wear is concerned, none of the witnesses have identified the same. As far as the wrist watch is concerned, Iswar Lal, Nazir Khan and Nazimmuddin have identified, as far as the bush-shirt is concerned the same has been identified by all the witnesses. 19. We have given a considered thought to the prosecution case and I we are of the view that the conviction cannot be sustained. The order of conviction and sentence awarded by the learned Additional Sessions Judge, Sikar, vide judgment dated 9-9-1976, is hereby set aside and the appeal is accepted. It was submitted at bar that the accused is on bail. As the conviction and sentence awarded to him has been set aside, the accused need not surrender. His bail bonds are cancelled.Appeal accepted. *******