JUDGMENT 1. - This appeal is directed against the judgment dated 13.11.1990 gassed by the Additional Sessions Judge, Chittorgarh, convicting the appellant of offence under Section 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 500/- and in default to further undergo six months' rigorous imprisonment. He has also been convicted of the offence under Section 201 IPC and sentenced to three years' rigorous imprisonment and to pay a fine of Rs. 300/- and in default to further undergo three months' rigorous imprisonment. 2. The prosecution case in brief is that P.W. 4 Jeevan Singh, Sarpanch of the Gram Panchayat, Siyana, under the signatures of P.W. 1 Girdhari and some other villagers submitted a missing written report of Deu D/o Girdhari aged 15 years, on 18.3.1988 at Police Station, Rashmi. It was averred that Mst. Deu disappeared at 1 P.M. a day before, at that time she was wearing ornaments like Kandora etc. In the morning, appellant Uda had asked her to prepare food for him and thereafter she was not seen. On enquiry from Uda, he stated that she was being kidnapped by some dacoits and taken towards Indore. Thus, they expressed suspicion on appellant Uda. On this information, police registered a case for the offence under Sections 363, 366, 365 and 342 IPC. Appellant Uda was arrested on 10th April, 1988. On 23rd June, 1988, police gave a Final Report in the case. However, the case was re-opened on 24.10.88 on the information given by P.W. 14 Badrilal to the effect that there was bad smell from the house of Uda which was closed for long time. He suspected that his sister, who had disappeared sometime back, might have been killed and her dead body buried in the house. On receiving this information, the accused was re-arrested vide Ex.P. 5 on 24.10.1988 at 4 PM., and in pursuance of the information given by him vide Ex.P. 26, the dead body of Mst. Deu was recovered from the house of the appellant vide Ex.P. 6. After further investigation, police laid a chargesheet against the appellant for the offence under sections 302, 201 IPC. Appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 19 witnesses and produced certain documents. Deu was recovered from the house of the appellant vide Ex.P. 6. After further investigation, police laid a chargesheet against the appellant for the offence under sections 302, 201 IPC. Appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 19 witnesses and produced certain documents. Appellant in his statement under Section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against him. The learned trial Court found the circumstantial evidence produced by the prosecution sufficient to conclude that Mst. Deu was killed by the appellant. Accordingly, the learned trial Judge convicted and sentenced the appellant Uda as noticed above. 3. We have heard Mr. K.K. Shah, learned counsel for the appellant and Mr. I.S. Pareek, learned Addl. Public Prosecutor and scanned the prosecution evidence carefully. The prosecution has relied upon the following piece of circumstances : (i) The deceased Deu was last seen in the company of appellant Uda; (ii) Recovery of the dead body of Mst. Deu in pursuance of the information given by the appellant; (iii) Recovery of clothes of the deceased Deu in pursuance of the information given by the appellant; (iv) Recovery or ornaments of the deceased Deu in pursuance of the information given by the plaintiff; (v) Conduct of the appellant. 4. In order to prove first circumstance, the prosecution has examined P.W. 3 Bheru and P.W. 5 Mangu alias Mangilal. P.W. 3 Bheru has stated that at about 9 A.M., he had gone to the house of the Uda in village Medakheri to enquire from him about loan for the purchase of she-goats. At that time, Uda was asking Deu, daughter of Girdhari, to prepare food for him. Thereafter, he returned to his house. In the evening, he came to know that Girdhari's daughter was missing. In the cross examination, he admitted that the house of Uda and Girdhari are in the same `Gwri' (locality). He also stated that his so statement was recorded by the police two months after missing of Mst. Deu. He also admitted that Uda used to visit Medakheri occasionally as he used to reside at Bhilwara. 5. P.W. 5 Mangu alias Mangilal has stated that he had visited the house of Uda at about 10 A.M. in village Medakheri to inform about the sanction of loan. At that time, Deu was also there. Deu. He also admitted that Uda used to visit Medakheri occasionally as he used to reside at Bhilwara. 5. P.W. 5 Mangu alias Mangilal has stated that he had visited the house of Uda at about 10 A.M. in village Medakheri to inform about the sanction of loan. At that time, Deu was also there. He returned to his house after enquiry about the loan. In the evening, he heard that daughter of Girdhari has disappeared. He admitted in the cross examination that police did not record his statement. He was confronted with his statement Ex.D. 2 recorded on 19.3.88. He admitted that he did not disclose the fact of seeing Mst. Deu with appellant Uda to her father Girdhari. He also denied that appellant Uda was in service at Bhilwara. He also denied that appellant Uda used to occasionally visit village Medakheri. 6. It is contended by learned counsel Mr. Shah that both the witnesses of last seen are unreliable. It is submitted that on missing of girl, they did not immediately inform Girdhari, father of girl, that they had seen her in the company of appellant Uda. It is also submitted that PW. 3 Bheru has admitted that police recorded his statement after two months. Similarly, PW. 5 Mangu alias Mangilal has also stated that police did not record his statement. Learned counsel has also pointed out that even it the statements of these two witnesses are relied upon, the effect of their statements is that deceased Deu was last seen at about 9 or 10 A.M. at the house of appellant Uda but as per the F.I.R. she disappeared at about 1 P.M. Thus, according to the learned counsel, the evidence of these two witnesses cannot be said to be of `last seen'. 7. We have read the statements of both the witnesses carefully, both the witnesses are of village Medakheri. They have admitted that they came to know in the evening that Mst. Deu was missing, still they did not disclose it to Girdhari, father of girl, that they had seen Deu in the company of appellant Uda. PW. 3 Bheru has categorically stated that police had recorded his statement after two months of the incident. P.W. 5 Mangu alias Mangilal initially stated that his statement was not recorded by the police. The statements of these two witnesses do not inspire confidence. PW. 3 Bheru has categorically stated that police had recorded his statement after two months of the incident. P.W. 5 Mangu alias Mangilal initially stated that his statement was not recorded by the police. The statements of these two witnesses do not inspire confidence. Thus, on the basis of the statements of these two witnesses, it cannot be held that Mst. Deu was last seen in the company of appellant Uda and, as such, the prosecution has failed to establish the circumstance of last seen against the appellant. 8. As regards the second piece of circumstances i.e. recovery of dead body of Mst. Deu at the instance of accused, P.W. 19 Hamid Khan has stated that he re-arrested the appellant on 24.10.88 at 4 P.M. vide Ex.P. 5. On the same day at 5 PM., he gave information Ex.P. 26 leading to recovery of dead body of Mst. Deu vide Ex.P. 6. It is contended by Mr. Shah, learned counsel for the appellant that no key was found from the person of accused Uda when he was arrested vide Ex.P. 5 but P.W. 19 Hamid Khan has stated that accused Uda opened the lock of the house and took them inside the house. It is submitted that P.W. 1 Girdhari has admitted in the cross examination that lock of the house of Uda was broke open and then the search of the house was made. He also admitted that before arrival of the police, the S.D.M. and the Doctor were present on the spot. This clearly shows that the place where the dead body was dumped was already in the knowledge of the police. The accused is alleged to have given information at 5 PM. and the dead body has been recovered at 5.05 PM. It is difficult to comprehend that within five minutes, the police reached at the spot and could arrange the presence of the doctor and the S.D.M. The S.D.M. before whom the dead body alleged to have been exhumed, has not been produced, which creates doubt as to the credibility of the proceedings. 9. PW. 9 Dr. Purushottam Rathi has stated that on receiving the requisition from the Police Station, Rashmi, the skeleton was exhumed in his presence. He has admitted in the cross examination that he reached at the place where the dead body was exhumed on 26.10.88. 9. PW. 9 Dr. Purushottam Rathi has stated that on receiving the requisition from the Police Station, Rashmi, the skeleton was exhumed in his presence. He has admitted in the cross examination that he reached at the place where the dead body was exhumed on 26.10.88. The post mortem report Ex.P. 10 is also of 26.10.88. According to the police, the dead body was exhumed on 24.10.88. Learned Public Prosecutor has not made any effort to get clarification of the said contradiction. P.W. 1 Girdhari has stated that skeleton was that of his daughter. He could identify that on the basis of presence of ornament known as `bore' i.e. ornament like a search light put on the forehead. It is significant to notice that police alleged to have recovered `bore' in pursuance of the information given by the accused on 28.10.88. There could not have been two `bores', therefore, the entire evidence of recovery of dead body at the instance of accused is highly suspicious. The prosecution has failed to establish this piece of circumstance by cogent evidence firmly. 10. As regards the recovery of clothes of deceased, P.W. 19 Hamid Khan has stated that dead body of Mst. Deu was exhumed in the presence of rnotbirs. The inquest report Ex.P 3 was prepared. The clothes on the skeleton viz; `Ghaghra', blouse and `Odhni' (Sari) were seized vide Ex.P 7. P.W. 16 Laxmilal has stated that he was Sarpanch of the Gram Panchayat, Rashmi. On the request of the police, the identification of articles was arranged in his presence vide Ex.P 20. The clothes were identified by P.W. 14 Badrilal and P.W. 15 Mst. Raji. 11. P.W. 14 Badrilal has stated that clothes `Articles 2, 3 and 4', presented in the court, were of his sister Deu. P.W. 15 Mst. Raji also stated that clothes presented in the court were of her daughter Deu. 12. The entire identification proceedings appear to be false. The recovery memo of clothes Ex.P. 7 shows that the clothes on the skeleton were full of soil. It is difficult to comprehend that P.W. 16 could have arranged 30 five pieces of each article of similar identity for mixing up with the object articles for the purpose of identification. The identification Ex.P. 20 does not show that as to how the witnesses could identify the said articles. It is difficult to comprehend that P.W. 16 could have arranged 30 five pieces of each article of similar identity for mixing up with the object articles for the purpose of identification. The identification Ex.P. 20 does not show that as to how the witnesses could identify the said articles. In my opinion, it is not safe to rely upon such sort of evidence and the same is, accordingly, rejected. 13. As far as the recovery of ornaments at the instance of accused is concerned, P.W. 19 Hamid Khan has stated that on 25.10.88, appellant vide Ex.P. 33 gave information that he had sold the ornaments viz; silver `Kadiya', `Kandora' and `Kangaria' to the goldsmith at Bhilwara. He did not disclose the name of the goldsmith but stated that he can get the ornaments recovered from him. He has further stated that appellant took him to the shop of P.W. 11 Ganpatlal and stated that he had sold the said ornaments to PW 11 Ganpatlal. Ganpatlal produced ignote of the said articles. He has further stated that the accused also gave information Ex.P. 34 that a small piece of sheet from the `bore' has been concealed by him under the mattress in his house. He further as stated that subsequently that sheet was sold to Ganpatlal. A piece of `Kadiya' was also recovered vide Ex.P. 16 from Kailash Chandra. The recovery of these ornaments is of no use as they were not produced in the original form. P.W. 11 Ganpatlal and P.W. 12 Kailash Chandra have stated that the ornaments were melted and produced in the form of ignote. In view of this, the recovery of the ornaments does not connect the appellant with the alleged crime. 14. Regarding the conduct of the appellant, it is stated by P.W. 1 Girdhari, P.W. 3 Bheru and P.W. 15 Mst. Raji that initially, the appellant Uda was suspected and, as such the whereabouts of Mst. Deu were enquired from him on which he stated on behalf of an evil spirit in his body that some dacoits have taken her towards Indore side. Thereafter, he stated that Deu has been taken towards Maharashtra. On the basis of this part of evidence, it is contended on behalf of the prosecution that he misdirected the investigation. This circumstance cannot be said to be of conclusive nature. Thereafter, he stated that Deu has been taken towards Maharashtra. On the basis of this part of evidence, it is contended on behalf of the prosecution that he misdirected the investigation. This circumstance cannot be said to be of conclusive nature. This circumstance alone does not indicate that it was the accused appellant, who committed the murder of Mst. Deu. 15. Thus, the prosecution has failed to establish by cogent evidence firmly that it was the accused appellant, who committed murder of Mst. Deu. The learned trial Judge has committed error in convicting the appellant on the charge of murder of Mst. Deu. 16. Consequently, the appeal is allowed. The conviction of appellant Uda for the offences under Sections 302 and 201 IPC is set-aside. He is acquitted of the said offences. He shall be released forthwith, if not required in any other case.Appeal Allowed. *******