JUDGMENT 1. - This appeal is directed against the judgment dated 22.7.1994 passed by learned Additional Sessions Judge, Raisinghnagar against the conviction and sentence of accused appellant Babulal for the offence under section 302 IPC. The learned Additional Sessions Judge passed a sentence of life imprisonment and a fine of Rs. 100/- and in default to undergo R.I. for one month for the offence under section 302 IPC. 2. The facts of the case lie in a brief compass. On 27.5.1992, Ashok Kumar reported to the SHO, Ghadsana at 8.00 a.m. that on 26.5.1992 his brother-in-law Surjan and the accused appellant Babulal came to his house at about 5 p.m. in order to take wheat from Kishorilal who is the younger brother of Ashok Kumar. They obtained wheat in two containers and went away. The containers were left at the house of Surjan and then both of them went to bazar in Nai Mandi. Since then Surjan did not come back. In the morning of 27.5.1992 Ashok Kumar came to know that the dead body of Surjan was lying in a maidan near hospital of Ghadsana. He went there and identified the dead body of Surjan who was killed by somebody. He had a doubt that it was Babulal who murdered Surjan. On this report a case under Section 302 IPC was registered and the police started investigation. 3. During the course of investigation, site plan Ex. P/3 was prepared. Memo of the condition of dead body Ex. P/4 and Panchayatnama were also prepared. Clothes of deceased were seized vide Ex. P/9 and a kassi was recovered from the site vide Ex. P/10. It had blood stains. Blood stained soil as well as control soil was recovered. Some foot prints were taken vide Ex. P/13 and a cot, torch, trouser etc. were recovered vide Ex. P/14. Photographs were snapped. Accused appellant was arrested on 9.6.1992. He made a disclosure statement on 10.6.1992 and at his instance blood stained pant and shirt as well as pair of chappal were recovered vide Ex. P/19. Blood smeared soil, control soil, kassi and open shirt of the deceased were sent for chemical examination. were recovered vide Ex. P/14. Photographs were snapped. Accused appellant was arrested on 9.6.1992. He made a disclosure statement on 10.6.1992 and at his instance blood stained pant and shirt as well as pair of chappal were recovered vide Ex. P/19. Blood smeared soil, control soil, kassi and open shirt of the deceased were sent for chemical examination. Open shirt and pant of accused appellant which were blood stained were also sent for examination to the FSL and it was found that the blood group on the pant and shirt of the accused was AB and blood group of blood smeared soil, kassi and open shirt of the deceased was also the same. Accused was charge-sheeted and then committed to the learned Additional Sessions Judge who tried him. Charge under section 302 IPC was read over to the accused appellant who denied it and claimed trial. Thereafter prosecution examined as many as 14 witnesses. Accused appellant was examined under section 313 Criminal Procedure Code He did not produce any witness in his defence. Learned Sessions Judge after hearing both the parties convicted and sentenced the accused appellant as stated above. 4. We have heard the learned counsel for the accused appellant as well as learned P.P. at length. 5. Learned counsel for the appellant has rightly admitted that the death was homicidal. He has submitted that there is absolutely no evidence against the accused appellant and he deserves acquittal. He has submitted that the case is based on circumstantial evidence but the circumstances are not such which may lead to the only conclusion that it was the appellant who committed the crime. 6. On the other hand learned Public Prosecutor has tried to support the judgment of the learned Additional Sessions Judge. 7. The two circumstances on which the case of the prosecution hinges are (1) that the deceased was last seen together with the accused and (2) that pant and open shirt of the accused appellant were found stained with human blood of AB group which was also found on the open shirt as well as on the blood smeared soil taken from the place of occurrence. So far as the cases based on circumstantial evidence are concerned, we may quote the principles laid down in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622 which are as follows : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the light of above principles, we have examined the case of the prosecution. 8. So far as the evidence regarding the fact of deceased being seen last with the appellant is concerned, we find that it is very unsatisfactory, According to PW-2, Surjan deceased and Babulal appellant came to his house at about 2 p.m. and took wheat from his brother Kishorila in two containers but this transaction took place in his absence. So he did not see them at 2 p.m. Later on at about 5 or 6 p.m. both of them met him at bus stand and at that time Surjan told him that he had brought wheat in two Containers from his house and them this witness went to his residence. Next day he found the dead body of deceased in the compound of hospital, the Second witness is PW 11 Kishorilal who is the brother of Ashok Kumar. He testifies that he saw the deceased and the accused together at about 2 p.m. in his house when they had come and asked for wheat. Thereafter he saw the dead body of Surjan next day in the compound of hospital. He testifies that he saw the deceased and the accused together at about 2 p.m. in his house when they had come and asked for wheat. Thereafter he saw the dead body of Surjan next day in the compound of hospital. When the case of the prosecution is that it was Ashok Kumar who saw the deceased and the accused appellant together at about 5 or 6 p.m. at the bus stand, statement of Kishorilal PW 11 is not much relevant because his evidence is not of the last seen together So it is Ashok Kumar who is the most important witness in this respect. We have scrutinised his evidence with care and caution. He did say that both the accused and deceased, met him at the bus stand at about 5 to 6 p.m. and then after meeting them he went to his own house. In the night he went to the house of his father-in -laws about 9 or 9.30 p.m. where deceased Surjan did not reach, HE assured his in his in-law that Surjan would return as he had met him at the bus stand. Then he brought his wife from her parent's house. He has stated in the cross-examination that he did not know as to where Babulal appellant and Surjan Wanted to go When they met him at the bus stand. Neither did he inquire. It si very strange as Surjan is the real brother in law of this witness even then he did not ask him about destination. He has categorically stated that Babulal and the deceased never quarrelled There fore, the prosecution is not able to exp;ain as to what could have been the motive of the appellant in murdering Surjan, Besides the case of the prosecution hinges on the statement of this witness and we find from the record that he did not mention the fact of having seen them together at bus stand at about 5 or 6 p.m. in the FER Ex. P/2. In the facts and circumstances of this case it was a material fact which he omitted to mention in the FIR. Therefore, he cannot be relied for another reason s will. P/2. In the facts and circumstances of this case it was a material fact which he omitted to mention in the FIR. Therefore, he cannot be relied for another reason s will. It is Pw7 Papi alias Zulfikar who saw the accused and the deceased together at about 10.05 p.m. when he was returning after closing his shop which was situated at bus stand he found that the accused and the deceased were quarrelling at about 10.30 p.m. They did not have any arm.. The witness tried to pacify them and advised not to quarrel.According to him both of them were pacified and then the witness went away. Next day he came to know that Surjan was murdered. We find that this witness has been introduced for the first time on 31.5.1994 when his statement was recorded. The prosecution is not in a position to explain as to why and how this delay was caused in examining him so late. The occurrence had taken place some time during the night falling in between 26th and 27th May, 1992 but this witness has been examined on 31.5.1994. This unexplained delay is fatal to prosecution. 9. We have scrutinised the site plan Ex. P/3 which is proved by the Investigating Officer and PW 8 Satish Kumar motbir. We find that the dead body was lying at place 'A' which is just the middle of open space near Primary Health Centre, Ghadsana. We find that there is a staff quarter of Primary Health Centre, Nai Mandi, Ghadsana on the western side. Then the Primary Health Centre itself is situated at place 'C' which is in the South-West corner of the open space. On the Eastern side premises of office of Water Works Department is situated. The residence of Assistant Engineer of Water Works as well as his office are situated nearby. A cot was also lying at place 'B' which is in front of quarter of Assistant Engineer, Water Works. It is very strange that when at about 10.30 both, accused and the deceased, quarrelled, none came from these quarters or the offices where at least the Chowkidars must be living. The police did not examine anyone from these premises. There is no explanation as to why it was not so done. One of the strange facts is that a cot was found lying in front of the quarter of Assistant Engineer. The police did not examine anyone from these premises. There is no explanation as to why it was not so done. One of the strange facts is that a cot was found lying in front of the quarter of Assistant Engineer. A photograph of this cot has been snapped. This cot was lying at about 96 paces away from the dead body. Some foot prints were lifted and they were sent for comparison. They were of some hawai chappal but there is no evidence to the effect that accused appellant was wearing hawai chappal. So this circumstance of being last seen together both the accused and the deceased is not such which may connect the accused appellant with the crime. 10. The next piece of evidence relied by the prosecution is the presence of blood of AB group on the open shirt and pant of the appellant which was also the group of blood found on blood smeared soil as well as open shirt of the accused appellant and on the kassi. So far as grouping on the open shirt of the deceased and the blood smeared soil is concerned, it is also not going to connect the accused with the crime firstly because the blood of the accused appellant was not taken and was not sent for analysis. So we are unaware as to what is the blood group of the accused appellant. Secondly, the pant and shirt of the accused were not seized immediately after the occurrence. Accused appellant was arrested on 9.6.1992 and his blood stained pant and shirt were seized on 10.6.1992. We are surprised how the accused would be keeping them for such a long period. If these clothes were stained with the blood of the deceased, the accused appellant would get rid of them as soon as possible and would not keep them for such a long period. It may be possible that the blood group of the accused might be the same as was that of the deceased. 11. Learned PP cited Khujji alias Surendra Tiwari v. State of M.P., AIR 1991 SC 1853 and submitted that this evidence is sufficient to connect the appellant with the crime. In the above citation there was direct evidence that accused inflicted knife blow on deceased. Human blood on knife and clothes of accused was found. 11. Learned PP cited Khujji alias Surendra Tiwari v. State of M.P., AIR 1991 SC 1853 and submitted that this evidence is sufficient to connect the appellant with the crime. In the above citation there was direct evidence that accused inflicted knife blow on deceased. Human blood on knife and clothes of accused was found. Therefore, the Hon'ble Supreme Court observed that it corroborated direct testimony. In the case in hand the circumstantial evidence of human blood found on the clothes of the accused appellant is not sufficient. In State of Rajasthan v. Girdharilal, reported in RLR 1989(2) 641 it was observed that the recovery of blood staind axe by itself is not sufficient to hold the accused guilty of murder. It was further observed that since blood group of accused was not known, presence of blood on axe would not connect the appellant with crime.We find that there is nothing on record to establish that the blood group of accused appellant was 'AB' as was found on the clothes of the deceased. The possibility of manipulation cannot be ruled out because clothes of the accused were recovered on 10.6.1992. We are of the opinion that the accused appellant would not preserve the clothes for such a long time. This circumstance also does not help the prosecution. 12. Recovery of kassi does not connect the accused appellant with crime as no finger print was lifted from it. The prosecution has not proved any motive behind the murder. There is no doubt that a murder did take place but the prosecution is not able to establish that it is the accused and accused alone who committed it. In view of above discussion the appeal should succeed. 13. In the result, the appeal is allowed and accused appellant Babulal alias Ashok Kumar is acquitted of the charge of murder under section 302 IPC. He is in jail and shall be released forthwith if not required in any other case.Appeal allowed. *******