Judgment S.N.Jha and Rajendra Prasad JJ. 1. Sole appellant of this appeal has been convicted under section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life. He has also been convicted under section 201 of the Penal Code and sentenced to rigorous imprisonment for seven years. 2. The aforesaid convictions have been awarded for committing the murder of one Rajendra Singh of village Palakiya, RS. Sherghati, District-Gaya. The prosecution case is based on the fardbeyan of his son Dhiru Kumar. On 8.1.1993 at 9.45 A. M. he told Sub-Inspector J.N. Singh of Sherghati police station that his father used to go to Sherghati every day. On 7.1.1993 too he went to Sherghati Bazar but did not return in the evening. He (informant) thought that he might have stayed somewhere at Sherghati. When he did not return by the next morning he started making search. He came to learn from the villagers that the dead body of his father was lying in the Morhar river. He went there and found the dead body. It appeared to him that his father had been killed by some unknown by strangulating his neck. 3. On the above fardbeyan of Dhiru Kumar, Sherghati P.S. Case no. 1/1993 was registered against unknown. Later, in course of investigation, police took the appellant in custody, submitted chargesheet against him and put him on trial. 4. At the trial, the prosecution examined nine witnesses to prove its case. Out of them P.W.6 is a witness on the point of seizure. Doctor Arvind Prasad, who held post mortem was examined as P.W. 7. P.W.9 Arvind Kumar Singh examined on the point of attachment of house effects of the appellant to prove that he was absconding. The remaining witnesses were examined on facts. Amongst them P.W. 1 Sanjay Kumar, P.W.4 Dharmendra Kumar Sinha and P.W. 5 Ram Kumar Singh were examined on the point of last seen, while P.W.2 Kail Manjhi and P.W. 3 Binay Kumar Sinha were examined to prove that the appellant was seen at 10 P.M. near the river bank where the dead body was recovered, P.W.6, the informant, re-iterated his fardbeyan version. 5. We have gone through the evidence of prosecution witnesses with the assistance of Shri Manoj Kumar Ambastha who appeared as Amicus curiae, and Shri Lala Kailash Bihari Prasad, learned counsel for the State. 6. 5. We have gone through the evidence of prosecution witnesses with the assistance of Shri Manoj Kumar Ambastha who appeared as Amicus curiae, and Shri Lala Kailash Bihari Prasad, learned counsel for the State. 6. Admittedly, there is no eye witness to the occurrence and the conviction of the appellant is based on circumstantial evidence. Only two circumstances in this case have been proved, namely that the deceased and the appellant were seen together and that after a few hours the appellant was seen returning to his village by P.W. 2 and P.W. 3. 7. On the point of last seen P.W. 1, P.W. 4 and P.W. 5 stated that they saw the deceased and the appellant at 7.30 - 8 P.M. at Sherghati Bazar. When asked, the deceased told them that he would return home later. P.W. 2 stated that when he was returning home after parking the tractor at its owners house, on the way he saw the appellant. Seeing him he became nervous. P.W. 3 stated that while he was returning home on a motor bike he saw the appellant and on seeing him he became nervous. The point for consideration is whether these two circumstances conclusively prove the guilt of the appellant. 8. It is well settled that in a case of circumstantial evidence the circumstances should form a complete chain, and they should be wholly consistent with the guilt of the accused and inconsistent with his plea of innocence. It is true, as submitted by the State counsel, that the length of the chain would depend on the facts of the case. It is also true that the circumstances of last seen or seen near the place of occurrence are strong circumstances against the accused. In the instant case, we are of the opinion that the proved facts do not conclusively establish the guilt of the appellant. 9. The appellant was seen in the company of the deceased at about 7.30-8 P.M. at Sherghati Bazar. The distance between the place where the accused was seen by P.Ws. 2 and 3 from the place where the dead body was recovered is not known. It is also not known whether the place where P.Ws. 2 and 3 saw him fell en route between Sherghati Bazar and village of occurrence. If that place was en route no inferance can be drawn against him. 2 and 3 from the place where the dead body was recovered is not known. It is also not known whether the place where P.Ws. 2 and 3 saw him fell en route between Sherghati Bazar and village of occurrence. If that place was en route no inferance can be drawn against him. It is said that when P.Ws. 2 and 3 saw him he sped. At 10 RM. a person is not supposed to walk in a leisurely manner. He would be rushing home. Therefore presence of appellant near the orchard is not a circumstance from which inference of guilt can be drawn. 10. The trial court, in fact, appears to have been swayed by the fact that the appellant absconded for some time but that cannot be an incriminating circumstance. The appellant was not asked any question to explain this. In the facts and circumstances, we are of the view that the evidence of last seen or seen near orchard does not conclusively prove the guilt of appellant and he is entitled to benefit of doubt. 11. In the result, the appeal is allowed and the conviction and sentence of the appellant are set aside. He is in custody since 2.5.1995. He is directed to be set free, if not wanted in any other case. 12. Before parting with the case we may mention that when the case was taken up Mr. Manoj Kumar Ambastha informed the court that the pairvikar of the appellant had told him one and half years ago that he will engage senior lawyer. However, no such engagement has been done. Considering that the appellant is in jail for the last seven years we did not think it proper to adjourn the hearing of the case. Mr. Ambastha was appointed as Amicus curiae at the time of admission of the appeal and we, accordingly, asked him to represent the appellant in that capacity. He will be entitled to his fees from the Patna High Court Legal Aid Committee.