JUDGMENT 1. - This appeal is directed against the judgment of learned Addl. Sessions Judge, No. 1 Udaipur whereby he has convicted the accused-appellant for the offence under Sections 302 and 379 IPC. For the offence under Section 302, the learned Addl. Sessions Judge, sentenced the accused-appellant for life imprisonment alongwith fine of Rs.100/-, and in default of payment of fine to further undergo one year's S.I. The learned Addl. Sessions Judge has sentenced the accused-appellant for three years R.I. under Section 379 IPC. Both the sentences were ordered to run concurrently. 2. Briefly stated the prosecution case is that an F.I.R. was lodged on 6.2.1988 at Police Station, Gogunda at 3.00 P.M. by Naval Ram alleging that a dead body of unidentified lady is lying in his field viz. Pipalawla Khet situated at north-east of Gogunda. It seems that somebody after killing the lady has looted her ornaments. On the basis of this report, the S.H.O. registered the case under Section 302 IPC and started investigation. The Investigating Officer went to the place of occurrence and prepared `Panchnama' of the dead lady, site plan and recovered blood stained earth soil along with clothes of the deceased. The body was sent for post-mortem examination. As per the post-mortem report, there were nine injuries on the person of the deceased. Her both the legs were fully choped but cause of her death was due to strangulation. During the course of investigation, it was found that the dead body was of Smt. Mungari wife of P.W. 2 Roop Singh. On the basis of circumstantial evidence, the accused-persons were arrested. At the instance of accused-Maganlal, blood stained cloth of both the accused Maganlal and Ghisu Singh @ Gulab Singh, the weapon i.e `Basola' by which the murder was committed and the ornaments of the deceased were recovered. Six Oganiye of the deceased which were sold by the accused-persons were recovered from P.W. 7 Mohammed Khan at Surat. It was further found during the course of investigation that the accused-Maganlal took the deceased Mungari with him from her house and thereafter she was not seen alive. After usual investigation, the police submitted the challan against the accused-persons and the case was ultimately committed to the Court of Addl. Sessions Judge, No.1 Udaipur. Charges were framed against the accused persons but they pleaded not guilty and claimed trial. After usual investigation, the police submitted the challan against the accused-persons and the case was ultimately committed to the Court of Addl. Sessions Judge, No.1 Udaipur. Charges were framed against the accused persons but they pleaded not guilty and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. The accused in their statement under Section 313 Criminal Procedure Code. stated that they are innocent. However, in defence, the accused-persons did not examine any witness. The learned Addl. Sessions Judge after completion of the trial convicted and sentenced the accused-persons as stated above. 3. Learned counsel for the appellant has contended that the learned trial Court has erred in convicting the accused on the basis of material evidence on record particularly when on the same evidence the accused Ghisu Singh was acquitted. He has contended that the circumstantial evidence of last seen and the recovery do not point out towards the guilty of the accused, and therefore, his conviction is liable to be set aside and at the most his conviction does not travel beyond Under section 411. 4. On the other hand, learned Public Prosecutor has supported the judgment of the learned trial Court. 5. We have heard learned counsel for the accused-appellant as also the learned Public Prosecutor and perused the case file carefully. 6. It is not disputed that Mungari w /o Roop Singh was murdered. The prosecution case hinges on the circumstantial evidence viz. evidence of last seen, recovery of ornaments of the deceased from the house of the accused-appellant and recovery of `Oranias' at the instance of the accused. We shall now consider these circumstances relied upon by the prosecution with a view to determine whether circumstances alleged against the appellant have been established and the chain of evidence is so complete as to plead to no other hypothesis except the one consistent with the guilt of the accused. 7. First of all we proceed to consider the evidence adduced by the prosecution on the circumstance of last seen. 8. 7. First of all we proceed to consider the evidence adduced by the prosecution on the circumstance of last seen. 8. P.W. 2 Roop Singh husband of the deceased has stated that one boy who informed his name as Kaloo Singh came to his house before one year at 4 P.M. and asked for his wife, he has stated that his wife who used to put ornaments during whole year on her body went alongwith that body wearing those ornaments, and thereafter she never returned to his house. He has also stated that the police came to his house and asked as to where his wife has gone. He has further stated that the police further asked him to visit the place to identify whether the dead body lying is of his wife. Thereafter, he went to the place and identified that the dead body was of his wife but the ornaments which were worn by her were missing. 9. P.W. 4 Dal Singh has stated that on the relevant day he saw from his `Bara' that the accused Maganlal took Mungari with him when she was grazing buffaloes. 10. P.W. 4 Kaloo Singh has stated that on the relevant day he saw that the accused Maganlal was going with Mungari. 11. Having carefully perused the evidence of the aforesaid prosecution witnesses, we are of the views that the prosecution has not been able to prove the circumstance of last seen. P.W. 2 Roop Singh who is the husband of the deceased Mungari has not informed the matter to the police regarding missing of his wife even when three days had already been passed. The only explanation furnished by him is that he did not inform the police for three days as he was indisposed of and was alone in his house. There is no evidence on record which corroborates the statement of P.W. 2 Roop Singh that during those days he was ill and even if he was ill he could heave got the matter reported with his brother Moti Singh who according him lives nearby his house. The statement of P.W. 4 Dal Singh is also not trust-worthy as in the police statement Ex.D./1 he has not stated that he saw the deceased Mungari in the company of the accused Maganlal. The statement of P.W. 4 Dal Singh is also not trust-worthy as in the police statement Ex.D./1 he has not stated that he saw the deceased Mungari in the company of the accused Maganlal. P.W. 9 Kaloo Singh has stated that he knows Mungari wife of Roop Singh and before one day of her murder he saw the deceased with the accused Maganlal. In the cross-examination, he has stated that he never saw the accused Maganlal before the relevant day. This part of his statement is common in the statements of these three witnesses as all these witnesses have shown their ignorance about the accused Maganlal and categorically refused that they did not see him ever before the relevant day but none of these tried to stop the deceased to go in the company of the unknown person or stated this fact to the husband of the deceased P.W. 2 Roop Singh even when there was a gap of three days from the date of his joining the company of the accused Maganlal till the dead body of the deceased was found. The conduct of these witnesses which have been relied upon by the prosecution to prove the circumstance of last seen creates doubt particularly when against the other accused Gisu, the same set of evidence has been disbelieved. Moreso, the identification conducted by the police is also suspicious since as per note mentioned in Ex.P/32 dated 27.2.1988 the accused was shown 2-3 times to the witnesses. The prosecution has not produced the officer who conducted the identification parade and Ex.P/14 has also not been proved. Under these circumstances, we are of the view that the prosecution has not been able to prove the circumstance of last seen, against the accused-appellant Maganlal. 12. The other circumstances which has been relied upon by the prosecution is recovery of ornaments at the instance of the accused Maganlal. 13. P.W. 19 has stated that the ornaments of the deceased were recovered from the house of the accused Maganlal. He has stated that the key was with the accused Maganlal. 14. The statement of the said witness does not find support from the material on record since in the recovery memo Ex.P/21 it has been clearly mentioned that the house was locked and key of which was lying in the upper side of the wall. He has stated that the key was with the accused Maganlal. 14. The statement of the said witness does not find support from the material on record since in the recovery memo Ex.P/21 it has been clearly mentioned that the house was locked and key of which was lying in the upper side of the wall. So far as the circumstance of recovery of 'Oganiyas' is concerned, the prosecution has produced P.W. 7 Mohammed Khan who has sated that the accused Ghisu Singh and Maganlal came and sold six `Oganiyas' for a sum of Rs. 7000/- to him. So, in our opinion, mere recovery of `Oganiyas' cannot prove conclusively that the accused-appellant committed the murder of the deceased Mungari. 15. Likewise the recovery of blood stained clothes also does not take the prosecution story anywhere as the prosecution has not been able to establish as to which of the clothes belong to which of the accused and which cloth was stained with blood. Similarly, the recovery of `Basola' is also not of any avail as that was not found blood-stained. 16. The upshot of the above discussion is that the prosecution has not been able to prove any circumstance except the recovery of the `Oganiyas' and merely on the basis of such recovery no presumption can be legitimately drawn against the accused-appellant for graver offence particularly then there is no other linking evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and those circumstances must be conclusive in nature. Moreover, the established facts should be consistent only with hypothesis of the guilt of the accused alone and totally inconsistent with his innocence. In the case in hand except recovery of `Oganiyas' there is nothing against the accused-appellant for which his conviction cannot travel beyond Section 411 Indian Penal Code and the conviction of the accused-appellant under Section 302 Indian Penal Code is not sustainable. Therefore, the accused-appellant Maganlal is convicted under Section 411 Indian Penal Code. Since, the incident took place on 6.2.1988 and the accused appellant is in jail, therefore, in our considered opinion, the ends of justice would be met if the accused-appellant is sentenced to me period already undergone. 17. Therefore, the accused-appellant Maganlal is convicted under Section 411 Indian Penal Code. Since, the incident took place on 6.2.1988 and the accused appellant is in jail, therefore, in our considered opinion, the ends of justice would be met if the accused-appellant is sentenced to me period already undergone. 17. In the result, the conviction and sentence of the accused-appellant Maganlal under Sections 302 and 379 Indian Penal Code are set aside and he is acquitted thereof. The accused-appellant is, however, convicted under Section 411 Indian Penal Code and is sentenced to three years R.I. the period already undergone by him. He be released forthwith if not required in any other case.Appeal Partly Accepted. *******