JUDGMENT 1. - The accused appellant has been convicted under Section 302 IPC by Additional Sessions Judge No.2, Alwar, in Sessions Case No.118/ 1991 under its judgment dated 3.2.1993 and he has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/- (in default, further to suffer simple imprisonment for a period of one month). 2. The occurrence relates to the murder of Hari Singh and as per the case of the prosecution an 1.11.91 the accused appellant along with two others, namely, Birbal Khatik and Hanuman Keer, had gone to the house of deceased - Hari Singh at about 9.00 p.m. and, thereafter, the accused appellant along with two others, Hanuman Keer and Birbal Khatik, had left the house of Hari Singh along with him. Hari Singh (deceased) thereafter, was not seen alive and his dead body was found in Jalrawale well with injuries. A report was lodged on 2.11.1991, by one Preetam Kumar and on that report (Ex.P/4) a case was registered under Section 302 IPC. The accused appellant and two others, namely, Hanuman and Birbal, were arrested. All three were put for trial. They pleaded not guilty and the learned Sessions Judge after considering the evidence on record, convicted the accused appellant but acquitted other two persons. 3. It was contended by the learned Counsel for the accused appellant that conviction of the accused appellant is based solely on one circumstance, namely, the evidence of last seen and according to the learned Counsel for the accused appellant there is no other evidence against the accused and so far as the evidence of last seen is concerned, it is discrepant and cannot be relied upon and secondly evidence of the 'last seen', so far as the present case is concerned, is not sufficient to connect the accused with the crime. 4. We have heard the learned Counsel for the accused appellant and the learned Public Prosecutor and have been taken through the judgment of the learned Trial Court, and have gone through the record. 5. 4. We have heard the learned Counsel for the accused appellant and the learned Public Prosecutor and have been taken through the judgment of the learned Trial Court, and have gone through the record. 5. So far as the statement of PW-1 Smt. Parwati (mother of Hari Singh deceased) is concerned, she does not state only about the accused appellant but also states that accused appellant and two others, namely, Hanuman and Birbal, had come to the house and all four i.e. the accused appellant, two others and Hari Singh had left the house at 9.00 p.m. The other witness is Megh Singh (PW 6) and he does not say that he had seen the accused and the deceased together and according to the statement- he has identified the accused appellant and Hari Singh (deceased) by the voice coming from the side of the well where the dead body was found the next morning. No doubt, he also admits that he came from his 'tibari' after hearing the noise of falling something in the well and he saw the accused appellant running away but he admits that it was a dark night and he had seen the accused appellant running away from the distance of 20 to 25 steps. This distance could be 50 steps. Surprisingly, even having seen so, ever having heard the noise of something falling it the well and the accused appellant running away, he did not make any hue and cry, does not raise an alarm and just goes back to 'tibari' and sleeps and this conduct, therefore, was abnormal. That apart, even if, it is assumed that he saw that accused appellant running away from the side of the well, it can be explained on other hypothesis also other than the guilt of the accused, when the accused was having no ill-will against Hari Singh (deceased). 6. The next witness of 'last seen' who has been examined by the prosecution, is Ashok Kumar Gupta (PW 9). He states that the accused and Hari Singh had come to his shop at about 8.00 p.m. and had taken some flour and spices etc. for preparation of food. 6. The next witness of 'last seen' who has been examined by the prosecution, is Ashok Kumar Gupta (PW 9). He states that the accused and Hari Singh had come to his shop at about 8.00 p.m. and had taken some flour and spices etc. for preparation of food. The mother of Hari Singh (PW 1) stated that they had actually gone from the house at 10.00 p.m. PW 10 is Matadeen and he says that he had seen both, the accused appellant and Hari Singh (deceased) at about 6.00 p.m. PW 12 is Chhotu and he says that in the night, he does not give any time, accused appellant was standing in the way and Hari Singh (deceased) had come to him and after having awakened asked him to give him rope for catching pigeons, and he gave the rope to him. The rope was not recovered from the well but Chhotu says that he had taken the rope. It will be seen that the evidence of 'last seen' is discrepant and is not consistent not only in respect of time but on other matters also. That apart, it will further be seen that lastly the deceased was seen not only with the accused appellant but two others also. It can, therefore, not be said that the deceased was 'last seen' only with the accused appellant. That apart, the evidence of last seen, alone, in the facts of the case, in our opinion, will not be sufficient in the absence of any motive to come to the conclusion that it was the accused who has killed the deceased Hari Singh. 7. Consequently, we hereby allow this appeal, set aside the judgment dated 3.2.1993 of the learned Additional District & Sessions Judge, No.2, Alwar. The accused (Bhoma Acharya) is acquitted of the charges under Section 302 IPC. His conviction and sentence is set aside. He be set at liberty, if not wanted in any other case.Appeal allowed. *******