JUDGMENT - R.K. BATTA, J.:---The appellant was tried for the murder of one Arvind s/o Nathu Bhimte, aged about 22 years, under section 302 of the Indian Penal Code. The prosecution had in all examined six witnesses in support of the charge. By impugned judgment dated 9th March 1994 which is the subject matter of challenge in this appeal, the appellant was held guilty under section 302 of the Indian Penal Code and was sentenced to suffer imprisonment for life. 2. The prosecution case in brief is that on 6-2-1992 at about 9.30 p.m., there was altercation and scuffle between the deceased Arvind and the appellant. P.W. 3 Dadaji, one Jiya, Prakash and Tarachand intervened on account of which the quarrel subsided. Tarachand took the appellant towards his house and the deceased Arvind went near video parlour. Later, the appellant also went towards video parlour. Subsequently, at about 2.30 a.m., the body of Arvind was found near hospital gate which is stated to be at a distance of more than two kms. from the place where the scuffle between Arvind and the appellant had initially taken place. P.W. 1 Bhaurao had seen the body of deceased Arvind at 2.30 a.m. near the hospital gate. Accordingly, he informed the doctor and Sarpanch and Sarpanch P.W. 4 Majhar Jamil lodged first information report with the police. The accused was arrested on 7-2-1992. Knife and clothes of the accused were recovered at his instance. The clothes of the deceased were also seized by the police. The seized articles were sent to the Chemical Analyser. The Chemical Analyser found blood stains on the full pant and baniyan which were seized from the accused as also on the blade of the knife. The said items were stained with human blood. The pant, baniyan of the accused and the blade of the knife were found to be stained with the blood of blood group "B". Nail clippings of the accused had also been taken on which human blood was found, but the blood group could not be determined. The blood group of the deceased was "B" and the blood group of the accused is stated to be inconclusive. 3. Nail clippings of the accused had also been taken on which human blood was found, but the blood group could not be determined. The blood group of the deceased was "B" and the blood group of the accused is stated to be inconclusive. 3. The trial Court took into account the recovery of the knife, pant and baniyan from the house of the accused, on which blood stains of blood group "B" were found; that there was scuffle between the appellant and deceased prior to the incident that the deceased and the appellant were last seen together and that there were injuries on the person of the accused indicating his involvement in the crime. 4. Learned Advocate for the appellant took us through the evidence of witnesses examined by the prosecution and urged before us that on the basis of evidence on record, the conviction cannot be sustained. He pointed out that the prosecution failed to prove recovery of knife under section 27 of the Indian Evidence Act and in this connection, our attention was drawn to the evidence of Panch witness P.W.2 Syambihari. From the same evidence, he also pointed out that the Panch does not speak of recovery of the clothes of the accused from his house nor the said clothes on which the Chemical Analyser had found blood, have been identified by any witness; that the injuries were found on the person of the accused, which at the most, suggests that scuffle between the accused and the deceased had taken place at about 9 p.m. on 6th of February 1992 and in this connection, our attention was drawn to the evidence of the Medical Officer Dr. Tulshiram who has stated that the injuries found on the accused could be caused in the scuffle and that the last seen theory cannot be pressed into service in the light of evidence of P.W.2 Syambihari who had stated that Tarachand had taken away the accused. 5. Learned A.P.P. tried his best in order to support the judgment of the trial Court and urged that on the basis of circumstantial evidence, the conclusion arrived at by the trial Court cannot be faulted with. 6. 5. Learned A.P.P. tried his best in order to support the judgment of the trial Court and urged that on the basis of circumstantial evidence, the conclusion arrived at by the trial Court cannot be faulted with. 6. The circumstances which are to be taken into consideration for the purpose of decision in the matter are: (i) scuffle between the accused and the deceased at 9.30 p.m., (ii) injuries on the person of the accused, (iii) recovery of the knife and clothes of the accused having blood stains of "B" group as per the report of the Chemical Analyser, and (iv) theory of last seen together. 7. Insofar as the first circumstance is concerned, the scuffle is not only established through the evidence of P.W. 3 Dadaji, but the accused in his statement under section 313 of the Criminal Procedure Code, has also admitted of the said scuffle. Therefore, the scuffle between the accused-appellant and the deceased at 9.30 a.m. stands established. The second circumstance is the injuries on the person of the accused. It is the duty of the prosecution to explain the injuries on the person of the accused and the explanation in the circumstances could obviously be that the said injuries were sustained in the scuffle. In fact, Dr. Tulshiram (P.W. 5) found seven injuries on the person of the accused including one contusion, one incised wound and abrasions on the person of the accused. According to Dr. Tulshiram, the age of the injuries was between 10 to 12 hours approximately and the same could be caused in a scuffle. The accused was examined on 7-2-1992 at 9.00 a.m. Therefore, the injuries on the person of the accused having been caused in the scuffle is consistent with the fact that the scuffle had taken place at 9 p.m. on 6-2-1992. Therefore, on the basis of this evidence, the accused cannot be implicated for the murder of the deceased. The third and important circumstance upon which the prosecution relied upon, is the recovery of the knife, pant and baniyan of the accused from his house on which human blood of "B" blood group was found by the Chemical Analyser. As already pointed out above, the blood group of the deceased is "B", but the blood group of the accused was inconclusive. As already pointed out above, the blood group of the deceased is "B", but the blood group of the accused was inconclusive. The recovery of the knife though purported to be under section 27 of the Indian Evidence Act, has not been proved since Panch P.W.2 Syambihari does not support disclosure theory. On the contrary, he states that the accused was arrested from his house and he was taken near the dead body of deceased Arvind from where the accused was taken to his house where the P.S.I. asked the witness: "Where is that knife?" P.W.2 Syambihari further stated that the accused was reluctant to produce the knife, but the other panch Ramrao Shrirame persuaded the wife of the accused who produced the knife from the house. As already pointed out, the Panch had not supported the prosecution case regarding disclosure under section 27 of the Indian Evidence Act and in such eventuality, the Public Prosecutor conducting the trial, could have declared him hostile or at any rate, should have examined the other Panch. But, unfortunately, nothing was done by the Public Prosecutor. 8. The other piece of evidence under this circumstance is the recovery of clothes viz. pant and baniyan of the accused from his house. However, Panch P.W.2 Syambihari did not utter a word about recovery of the said clothes from the house of the accused, which is again a lapse on the part of the officer/Public Prosecutor conducting the prosecution. The Public Prosecutor could have examined the other Panch as well, but that was also not done. Neither the attachment of the clothes of the accused has been proved by the prosecution, nor the said clothes have been identified by any witness examined by the prosecution. Therefore, this piece of evidence is lost by the prosecution on account of lapse of the Public Prosecutor conducting the trial. 9. The theory of last seen cannot be, strictly speaking, pressed into service since it is in the evidence of P.W.3 Dadaji that one Tarachand had taken the accused to his house and the deceased Arvind had gone near the video parlour. Though Dadaji (P.W. 3) has also stated that the accused also had gone towards the video parlour, yet Tarachand who had taken the accused initially, has not been examined. Though Dadaji (P.W. 3) has also stated that the accused also had gone towards the video parlour, yet Tarachand who had taken the accused initially, has not been examined. This Tarachand was cited as a witness in the chargesheet, but he was not examined for the reasons best known to the Public Prosecutor, though the said witness was duly served. In these circumstances, last seen theory raising suspicion does not help the prosecution. 10. Though the circumstances might cause suspicion or even strong suspicion, yet it is well settled that suspicion or even strong suspicion cannot take the place of proof. On what basis the trial Court concluded that the accused was the only person who had grudge or enmity with the deceased and that he must have taken revenge and must have stabbed deceased Arvind, is not known. There is difference between what may be true and must be true. The trial Court has come to the conclusion that the recovery of the pant and baniyan from the house of the accused had remained unchallenged, but as we have already pointed out, the prosecution had not led any evidence to establish recovery of the pant and baniyan of the accused from his house. We have absolutely no hesitation in stating that the case has partly failed on account of lapses of the Public Prosecutor in conducting trial and as such, it is considered necessary that the Director of Public Prosecution should take appropriate and necessary action so that such lapses are not repeated again and again, resulting in failure of cases. 11. For the aforesaid reasons, we are of the opinion that the prosecution had failed to establish the charge of murder under section 302 of the Indian Penal Code against the appellant-accused and the appellant-accused is entitled to acquittal. The appeal is accordingly allowed. The conviction and sentence of the appellant recorded vide judgment dated 9-3-1994 by the Additional Sessions Judge, Chandrapur in Sessions Case No. 139 of 1992 is set aside and the appellant-accused is ordered to be set at liberty forthwith in case he is not required in any other case. Copy of the judgment be sent to D.P.P. for N.A. Appeal allowed. -----