JUDGMENT 1. - The learned Sessions Judge, Rajsamand, by his order dated 7.6.1994 convicted the accused for offences under Sections 147,364 and 302, 302/149, Indian Penal Code. Each of the accused was sentenced as follows : Offence under Section 147, Indian Penal Code : Rigorous Imprisonment for one year and fine of Rs. 1000/-, in default of payment of fine, to further undergo 3 months' rigorous imprisonment Offence under Section 364, Indian Penal Code : Rigorous Imprisonment for 10 years and fine of Rs. 2000/-, in default of payment of fine, to further undergo 6 months' rigorous imprisonment Offence under Section 302 or 302/149, Indian Penal Code : Life Imprisonment and fine of Rs. 2000/-, in default of payment of fine, to further undergo 6 months' rigorous imprisonment All the sentences were ordered to run concurrently. 2. The prosecution case, briefly stated, is that on or about 1.6.1992, the accused hired a jeep, belonging to one Babu Singh and reached the house of Uda Kalbelia, where Mst. Partapi (PW 8) and her husband Saina (deceased) were sitting. The accused wanted to forcibly take Saina in the jeep but Babu Singh, the owner of the jeep, did not agree. The accused persons, therefore, left the jeep and caught hold of Saina and forcibly took him in a truck. Thereafter Mst. Partapi did not hear anything about her husband. After three days of the aforesaid incident, she went to Diwer where she found her husband lying in the jungle near Amet road. By that time Saina was alive but was in a serious condition. Mst. Partapi then reached Police Station, Diwer and lodged the First Information Report (Ex.P. 10) on 4.6.1992 at 10.00 a.m. On receipt of the above report, the Police registered a case under Section 364, Indian Penal Code and commenced investigation. 3. The Investigating Officer reached the place of occurrence and prepared site plan Ex. P 4 as well as Inquest Report Ex. P5. According to the Investigating Officer, the deceased died of head injuries. The Police thereafter arrested the accused. One of the accused, namely Dhanna, made a disclosure statement, while in custody, regarding recovery of lathi and the same was recovered in pursuance of the above information. After usual investigation, challan was filed in the Court of learned Munsif and Judicial Magistrate, Devgarh. 4. The Police thereafter arrested the accused. One of the accused, namely Dhanna, made a disclosure statement, while in custody, regarding recovery of lathi and the same was recovered in pursuance of the above information. After usual investigation, challan was filed in the Court of learned Munsif and Judicial Magistrate, Devgarh. 4. The learned Magistrate framed charges against the accused persons under Sections 147, 364, 302 or in the alternative 302 read with 149, Indian Penal Code. The prosecution examined fifteen witnesses. No defence witness was adduced by the accused persons. 5. It may be stated that there is no eye-witness to the occurrence and the whole prosecution case hinges on the circumstantial evidence and, the only circumstantial evidence is that the deceased was `last seen' in the company of the accused. The learned Sessions Judge after appreciation of evidence held the accused guilty of the above offences. 6. It may also be noted that during the pendency of this appeal, accused No.5 -Thania son of Nimba Kalbelia has died. The proceeding against him, therefore, stands abated. 7. We have heard the learned counsel for the appellants and the learned Public Prosecutor. 8. The learned counsel has assailed the findings of the learned trial Judge on the ground that there is absolutely no evidence on which conviction of the accused persons could be based. The only evidence adduced by the prosecution is that the deceased was last seen with the accused persons when the former was forcibly taken in a truck to some unknown place. He has contended that the deceased was found in a very serious condition but alive, after three days of aforesaid occurrence. From the evidence of Medical Officer, the deceased smelled of liquor. He, therefore, submitted that the possibility cannot be ruled out that the deceased, in a state of intoxication, fell down and sustained the above fatal injuries. In short, his contention is that there is absolutely no acceptable -Legally sound evidence to sustain the conviction of the accused persons. 9. Learned Public Prosecutor has supported the judgment of the learned trial Judge. He submitted that the accused forcibly took the deceased in a truck to some unknown destination and thereafter nothing was heard of the whereabouts of the deceased. After three days, the deceased was found in a very serious condition and he died shortly thereafter. 10. 9. Learned Public Prosecutor has supported the judgment of the learned trial Judge. He submitted that the accused forcibly took the deceased in a truck to some unknown destination and thereafter nothing was heard of the whereabouts of the deceased. After three days, the deceased was found in a very serious condition and he died shortly thereafter. 10. We have carefully considered the rival contentions and gone through the evidence. It can at once be stated that the whole prosecution case hinges on the circumstantial evidence, which consists of the fact that the deceased was `last seen' in the company of accused persons. It is very important to state that the deceased was found in the jungle in a very serious condition, after three days. He was alive by that time. The evidence of last seen together is relevant but its probative value has to assessed with reference to the facts and circumstances of the individual case. By nature, this is a weak type of evidence, unless corroborated by other evidence. The prosecution has not explained as to what happened to the deceased for three days from the time he was taken forcibly in a truck to some unknown destination. It is an admitted fact that he did not die in the company of the accused persons but was found in an injured condition in the jungle near Amet Road. Hence, it cannot be said positively that the deceased died or sustained the fatal injuries while in the company of the accused persons. 11. Hon'ble Supreme Court in Dev Narain Mishra's case, 1955(2) SCR 570 has held that in order to convict a person of circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the (sic). 12. In the present case, the circumstances from which the conclusion of guilt is to be drawn should be consistent only with the hypothesis of the guilt of the accused. In our opinion, the above evidence does not qualify the above test to prove the offence of the accused. 13. 12. In the present case, the circumstances from which the conclusion of guilt is to be drawn should be consistent only with the hypothesis of the guilt of the accused. In our opinion, the above evidence does not qualify the above test to prove the offence of the accused. 13. We may also point out that the learned Magistrate was not right in convicting the accused under Section 302 as also under Section 302/149, Indian Penal Code in the alternative, for the reason that to convict the accused for offence under Section 302, Indian Penal Code it must be proved that every person individually was guilty of murder whereas in case of offence of common intention, the accused is held liable on the principle of vicarious liability. 14. For the aforesaid reasons, we allow the appeal, set aside the judgment of the learned Sessions Judge, dated 7.6.1994 and acquit the accused persons of the offences under Sections 147,364 and 302,302/149, Indian Penal Code.Appeal allowed. *******