JUDGMENT 1. - This appeal is directed against the judgment dated 31.8.88, passed by the Additional Sessions Judge, Rajsamand, by which the learned Additional Sessions Judge convicted the accused-appellant for the offences under Sections 302 and 397 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 200/- and in default of payment of fine further to undergo two months' simple imprisonment for the offence under Section 302 Indian Penal Code and seven years' rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo Five months' simple imprisonment for the offence under Section 397 Indian Penal Code. Both the sentences were ordered to run concurrently. 2. Accused-appellant Bhanwar Lal was tried by the learned Additional Sessions Judge, Rajsamand, for the offences under Sections 302 and 397 Indian Penal Code for committing the murder of Uda and his wife Smt. Kanku and committing the robbery of the silver and gold ornaments belonging to deceased Smt. Kanku. The prosecution case, which resulted in the prosecution and conviction of the accused- appellant is that in the night intervening 25/26th August, 1986, the accused came into the house of Uda situated in village Mohi (district Rajsamand) and committed the murder of Smt. Kanku in the house of Uda. Uda was murdered by the accused-appellant on the same day in the field of Magna. The accused was seen while entering into the house of the deceased at about 12.00 in the night by PW 10 Tulsi Ram - the neighbour of the deceased. The prosecution, in support of its case, examined twenty-one witnesses. The accused did not examined any witness in his defence. The learned trial Court, after trial, believed the prosecution case and convicted and sentenced the accused-appellant as stated above. 3. It is contended by the learned counsel for the appellant that there is no eye-witness to the occurrence and the prosecution case rests mainly on the circumstantial evidence and the circumstantial evidence, produced by the prosecution, do not conclusively prove the case against the accused-appellant. The evidence of last seen of the accused in the company of the deceased, produced by the prosecution, does not inspire confidence. The evidence of last seen of the accused in the company of the deceased, produced by the prosecution, does not inspire confidence. According to him, the recoveries of the ornaments of deceased Smt. Kanku, which is said to have been made on the information and at the instance of the accused-appellant, also, do not inspire confidence because the recoveries have not been made from the place exclusively in the possession of the accused. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the prosecution has been able to prove the case against the accused- appellant beyond reasonable manner of doubt and the judgment passed by the learned trial Court does not require any interference. 4. We have considered the submissions made by the learned counsel for the parties. 5. The learned trial Court has believed three circumstances against the accused-appellant, namely, (i) the last seen of the accused in the company of the deceased; (ii) the recoveries of the ornaments of deceased Smt. Kanku on the information and at the instance of the accused; and (iii) the recovery of the blood- stained clothes, namely, Baniyan and Dhoti, of the accused which were found stained with `B' Group of human blood, on the information and at the instance of the accused-appellant. Now it has to be seen : whether these circumstances have been substantially established against the accused-appellant and whether they are sufficient to complete the chain of events for holding that it was the accused-appellant and the appellant only who has the perpetrator of the crime and exclude any hypothesis regarding the innocence of the accused-appellant? 6. The first circumstance relied upon by the prosecution and believed by the learned trial Court is the last seen of the accused-appellant in the company/house of the deceased. To prove this circumstance, the prosecution has produced three witnesses, viz., PW 9 Veni Ram, H.C., PW 13 Gulab Singh, Police Constable, both posted at Police Station, Rajsamand, and PW 10 Tulsi Ram - the neighbour of the deceased as well as PW 6 Banshi Lal - the owner of the tent house where the accused was working and PW 11 Manohar Singh from whom the accused hired a bicycle. PW 9 Beni Ram, H.C. and PW 13 Gulab Singh, Constable, have stated that they were on patrolling duty on 25.8.86 and during the patrolling duty, at about 2.00/2.30 a.m. in the night, Bhanwar Lal came from the side of Octroi Out-post and on enquiry he informed that he was coming from village Mohi and at that time he was scared. On enquiry, he informed that near Bandiya Water-course, a ghost met him and on seeing it he fell down and received injuries on his hands and legs. In the cross-examination these witnesses have admitted that the place where the accused met them, there are hotels on both the sides of the road and Shanbi Guest House is, also, situated nearby and the trucks used to halt there. When they were confronted with their earlier statements and asked that it has not been mentioned therein that the accused was scared, they stated that they said so to the investigating officer but why it has not been written in their earlier statement, they cannot say. They have, also, stated that they did not make any entry in the Roznamcha regarding their meeting the accused. From the evidence of these two witnesses, it is established that the accused met them in the way where there are hotels on both the sides of the road and no entry regarding the meeting of the accused to these witnesses has been made in the Roznamcha. The statements of PW 6 Banshi Lal and PW 7 Manohar Lal is of no consequence because Banshi Lal has stated that the accused was present in his tent house on 25.8.86 where he was working and left the tent house in the evening at 5.00 p.m. and thereafter he did not come for work to his tent house. PW 7 Manohar Lal has stated that on 25.8.86 the accused hired a bicycle from his shop at 8.00 p.m. and deposited the bicycle at about 7.00/8.00 a.m. on the next day. From the Evidence of PW 6 Banshi Lal, PW 7 Manohar Lal, PW 9 Veni Raj and PW 13 Gulab Singh it is not established that the accused-appellant was last seen in the company of the deceased.The next evidence produced by the prosecution on this point is the evidence of PW 10 Tulsi Ram. From the Evidence of PW 6 Banshi Lal, PW 7 Manohar Lal, PW 9 Veni Raj and PW 13 Gulab Singh it is not established that the accused-appellant was last seen in the company of the deceased.The next evidence produced by the prosecution on this point is the evidence of PW 10 Tulsi Ram. PW 10 Tulsi Ram has stated that at about 11.00/12.00 p.m. in the night he went to his Bara for supplying fodder to his cattle. When he came out of the Bara, he saw the accused going towards the house of Uda and at that time the accused was wearing a Dhoti and Baniyan. The accused knocked at the door of Uda and said, "Maami, please open the door." Accused Bhanwar Lal, at that time, was having a bicycle. Uda's wife opened the door and enquired from him where his uncle (Uda) was whereupon Bhanwar Lal replied that he was coming. Uda's wife thereafter asked the accused that the food is ready, he may take it. He thereafter proceeded to his own house. In the cross- examination, this witness has stated that the night was dark and he had not seen the face of the accused but seen him from behind. The accused was at the distance of twenty paces from him. Next day in the morning, he went to the field but did not inform any person about these facts. He returned to the village at 10.00 a.m. and by that time the whole of the villagers had collected there. His statement was recorded by the police. In his earlier statement this witness has not stated that the accused informed Kanku on her asking that his maternal uncle is on the Bol and on being confronted he stated that he stated so to the police, why it is not written in his earlier statement, he cannot say. When he was confronted with various improvements made by him, he stated that he stated so to the police but why it is not mentioned, he cannot say. He has, also, stated that he could recognise the accused by his voice. He was not known to the accused. In his statement recorded under Section 161 Criminal Procedure Code, he has not disclosed the name of the accused and has merely given the identification of the accused. He has, also, stated that he could recognise the accused by his voice. He was not known to the accused. In his statement recorded under Section 161 Criminal Procedure Code, he has not disclosed the name of the accused and has merely given the identification of the accused. When the accused was known to him and he identified him by his voice then he could have supplied this information to the villagers and if his name could have been given by the witness then in the FIR, which was registered on 26.8.86 at 10.00 a.m., the name of the accused should have found mention. Non-mentioning of the name of the accused at the time of lodging the FIR clearly shows that by that time the accused was not known to his witness and this witness has not seen the accused at that time. Moreover, at about 11.00/12.00 p.m. in the night, nobody will go to the cote for supplying fodder to the cattle. The fodder is served to the cattle either in the morning or by the time of Sun set. 11.00/12.00 p.m. in the night is abnormal time for serving fodder to the cattle and, therefore, there was no question of this witness coming to the lane and seeing the accused-appellant. Moreover, this witness has made material improvement during the trial from his earlier statement recorded during the investigation. We are of the opinion that the evidence of this witness, also, does not inspire confidence. 7. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the recovery of the ornaments of deceased Kanku on the information and at the instance of the accused-appellant. The accused was arrested vide Ex. P. 1 and he gave the information Ex. P. 26A and Ex.P. 27-B and Ex. P. 28 under See. 27 of the Evidence Act to PW 19 Natwal Lal Sharma - the Investigating Officer and in pursuance thereof, the recoveries of the ornaments were made vide Ex. P. 2 to Ex. P 1 in the presence of PW 1 Bhanwar Lal and PW 4 Gehri Lal from the house of the brother of the accused. The articles were seized and sealed by PW 19 Natwar Lal Sharma - the investigating officer - and were deposited in the Malkhana but the Malkhana Incharge of the Police Station has not been produced in evidence. The articles were seized and sealed by PW 19 Natwar Lal Sharma - the investigating officer - and were deposited in the Malkhana but the Malkhana Incharge of the Police Station has not been produced in evidence. PW 14 Pramod Kumar was the Constable posted at Police Station, Rajasmand, who took seven sealed packets from the Police Station and took the packets to the Office of the Superintendent of Police, Udaipur and after obtaining the forwarding letter therefrom, deposited the articles for F.S.L. examination in the State Forensic Science Laboratory, Jaipur. The link evidence in this regard that the seals on the articles remained intact, is missing because the Malkhara Incharge has not been produced in evidence. The recoveries of these ornaments, also, do not inspire confidence because PW 15 Mr. Banshi Mohan Chayal, the then Munsif and Judicial Magistrate, who held the identification of these articles, in his statement before the Court, has stated that witness Mithu identified the gold Bor, four Oganiyas of Gold, silver Kangan, silver Dunk, flat Madaliya of silver round Madaliya of silver and silver ring correctly and stated that these ornaments belong to him, which were brought by the police. He has, also, stated that thereafter Mangi Lal was called, who, also, correctly identified the articles as his own. When the ornaments were identified by these two witnesses as their own and not those of the deceased when how these articles connect the accused with the crime, has not been explained by the prosecution According to this witness, the ornaments were identified by the witnesses as belonging to themselves and not those of the deceased. The link evidence is, also, missing. The link evidence is, also, missing. The recoveries of the ornaments were made from the house of the brother of the accused and not from the house of the accused and this circumstance coupled with the fact that these ornaments were identified by witnesses Madho and Mangi Lal as belonging to them and the fact that the link evidence is, also, missing, therefore, cannot be said to be incriminating circumstance against the accused-appellant.As we have not found the recoveries of these ornaments from the accused-appellant in pursuance to the information and at the instance of the accused and they have not been believed to be belonging to the deceased, therefore, the offence under Section 397 Indian Penal Code does not stand proved against the accused-appellant and he deserves acquittal of this offence. 8. The last circumstance, relied upon by the prosecution and believed by the learned trial Court, is the recovery of the blood-stained Baniyan and the Dhoti of the accused containing `B' Group of human blood on his information and at his instance. It has come in the evidence that at the time when the accused was arrested, he had injuries on his person. He was medically examined by Dr. Anil Kumar Sharma on 27.8.86 and the injury report was prepared by this doctor. The blood group of the accused had not been determined and, therefore, the prosecution has not been able to establish that the blood found on the clothes of the accused-appellant was not the blood of the accused himself. Even otherwise, this solitary evidence is not sufficient to prove that the accused-appellant is the perpetrator of the crime. 9. There is no other evidence to connect the accused-appellant with the crime. The prosecution has, thus, failed to establish and complete the chain of circumstance connecting the accused-appellant with the crime. We are of the opinion that the prosecution has failed to prove the case against the appellant beyond reasonable manner of about and the learned trial Court was not justified in convicting and sentencing the accused-appellants for the offences under Sections 302 and 397 Indian Penal Code. The judgment, passed by the learned trial Court, convicting and sentencing the appellant for these offences, therefore, deserves to be set aside. 10. In the result, the appeal filed by accused-appellant Bhanwar Lal, is allowed. The judgment, passed by the learned trial Court, convicting and sentencing the appellant for these offences, therefore, deserves to be set aside. 10. In the result, the appeal filed by accused-appellant Bhanwar Lal, is allowed. The judgment dated 31.8.88, passed by the Additional Sessions Judge, Rajsamand, convicting and sentencing the accused-appellant for the offences under Sections 302 and 397 IPC is set-aside and the appellants acquitted of all the charges levelled against him. The appellant is in jail and he be released forthwith if not required in any other case.Appeal allowed. *******