JUDGMENT 1. - By The Court (Per Hon'ble Mr. Shiv Kumar Sharma, J.) : The appellants were accused on the file of learned Additional Sessions Judge (Fast Track), Jaipur District Jaipur bearing Sessions Case No.3/2001. Learned Additional Sessions Judge vide judgment dated July 23, 2001 convicted and sentenced the appellants as under : Under Section 302 Indian Penal Code : (deceased Kana Ram) : To suffer Imprisonment for life and fine of Rs. 2000/- in default to further suffer two Months Rigorous Imprisonment. Under Section 302 IPC: (deceased Fauja Ram) : To suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer two Months Rigorous Imprisonment. Under Section 394 Indian Penal Code : To suffer Rigorous Imprisonment for five years and fine of Rs. 1000/-, in default to further suffer two Months Rigorous Imprisonment. Santosh and Ramesh Chand : (Each) Under Section 4111 PC: To suffer Rigorous Imprisonment for one year and fine of Rs. 1,000/-, in default to further suffer One Month Rigorous Imprisonment. Sentences were directed to run concurrently. 2. It is the prosecution case that on May 18, 1994 at 10 am Constable Suwa Lal of Police chowki Kanota informed Police Station Bassi that unknown dead body was lying in the river Dhoond. On receiving the information Kushal Singh, SHO along with police party reached at the spot and recovered the dead body. A criminal case against unknown culprit was registered and investigation commenced. Autopsy on the dead body was conducted and it was cremated. On May 20, 1994 Sita Ram (Pw.3) and Bhona Ram (Pw.26) came to the police station and identified the belongings recovered from the dead body as of Kana ram. In the course of investigation it was revealed that on March 13,1994 Kana Ram and Fauja Ram (now deceased) had gone with appellant Gopal who hired them as workmen for some labour work. At that time Kana Ram was wearing Hansli made of silver (round shape ornament) on his neck and ear-rings on his ears made of gold. When they did not return a report of missing was lodged on May 16, 1994 at police station Sodala. Thereafter another dead body was recovered on May 22, 1994 by Police Station Bassi. The dead body was identified as of Fauja Ram by Panchhi (Pw.4). A criminal case was registered and investigation commenced. When they did not return a report of missing was lodged on May 16, 1994 at police station Sodala. Thereafter another dead body was recovered on May 22, 1994 by Police Station Bassi. The dead body was identified as of Fauja Ram by Panchhi (Pw.4). A criminal case was registered and investigation commenced. The appellant Gopal was arrested in both the cases. On completion of investigation charge sheet was filed against the appellants. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Jaipur District Jaipur. Charges under Sections 302 and 394 Indian Penal Code were framed against appellant Gopal and under section 411 Indian Penal Code against the appellants Santosh Kumar and Ramesh Chand, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 31 witnesses and got exhibited 60 documents. In the explanation under section 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. 3. We have heard the submissions advanced before us and scrutinised the material on record. 4. The case is admittedly based on circumstantial evidence. The court has to bear in mind that the circumstantial evidence should be like spider's web, leaving no exit for the accused to slip away. It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests : (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 5. (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 5. In the instant case following circumstances were found established against appellant Gopal : (i) Deceased Kana Ram and Fauj a Ram prior to their death were last seen in his company; (ii) The axe allegedly used in commission of offence got recovered at his instance; (iii) The spades belonging to the deceased got recovered at his instance; (iv) Hansli (made of silver) belonging to deceased Kana Ram got recovered at his instance; (v) Ear-rings (golden) belonging to deceased Kana Ram got recovered at his instance; (iv) He was identified by Sita Ram (Pw.3) in the Identification Parade as the person accompanying the deceased prior to their death. Against appellants Santosh Kumar and Ramesh Chand, learned trial Judge found sufficient evidence to convict and sentence them. 6. In the light of afore quoted settled principles, we now proceed to consider the circumstances set out by the learned trial Judge in the impugned judgment.LAST SEEN TOGETHER : 7. On the point of last seen together there is testimony of Panchhi (Pw.4), Bhanwar Lal (Pw.20), Raymal (Pw.21) and Bhona (Pw.26). Panchi (Pw.4), the father of deceased Fauja Ram, in his deposition stated that some two years back Fauja Ram and Kana Ram who used to work with him near DCM Office, Jaipur, were hired by somebody as workmen and they went with him. Thereafter Kana Ram and Fauja ram did not return back. Dead body of Fauja Ram was identified by him.Bhanwar Lal (Pw.20), a relative of deceased Fauja Ram and Kana Ram, deposed that one person took Fauja Ram and Kana Ram with him for planting the trees. When they did not return back, brother of Kana Ram lodged the report with police station. Thereafter the dead body of Fauja Ram was found, at that time Kana Ram was wearing golden ear-rings and hansli on his neck. In his cross examination, Bhanwar Lal stated that when Kana Ram and Fauja Ram went for labour, he did not accompany them. He did not remember that who informed him that so as to with whom Kana Ram and Fauja Ram had gone. In his cross examination, Bhanwar Lal stated that when Kana Ram and Fauja Ram went for labour, he did not accompany them. He did not remember that who informed him that so as to with whom Kana Ram and Fauja Ram had gone. Raymal (Pw.21) in his examination in chief stated that Gopal (appellant) took Fauja Ram and Kana Ram with him after setting the wages as Rs. 100/- per day. He identified appellant Gopal in the court. He was called by police station Sodala to identify the clothes and he identified the clothes of Kana Ram. After few days he went to police station Bassi and saw the dead body of Fauja Ram. In the cross examination he however stated that Kana Ram and Fauja Ram were his relatives and when Fauja Ram and Kana Ram were taken by Gopal he was present. He further stated that he did not inform anybody that he saw Kana Ram and Fauja Ram with Gopal. Even the police was also not informed by him about this fact. He specifically stated that at the time of taking dead body of Fauja Ram and identifying the clothes of Kana Ram he did not inform the police that he saw Fauja Ram and Kana Ram with appellant Gopal. He did not inform the police that the appellant Gopal took Fauja Ram Kana Ram with him. It appears from the record that Raymal (Pw.21) did not name the appellant Gopal for a period of more than four years.Bhona (Pw.26) in his deposition stated that somebody hired Kana Ram and took with him. Thereafter whereabouts of Kana Ram could not be known. Bhona identified the clothes and shoes recovered by Police Station Bassi from unknown dead body as of Kana Ram. 8. Fact situation emerges from the testimony of aforequoted witnesses maybe summarised thus : (i) All the four witnesses were thickly related to the deceased Kana Ram and Fauja Ram, out of them three witnesses viz. Bhona identified the clothes and shoes recovered by Police Station Bassi from unknown dead body as of Kana Ram. 8. Fact situation emerges from the testimony of aforequoted witnesses maybe summarised thus : (i) All the four witnesses were thickly related to the deceased Kana Ram and Fauja Ram, out of them three witnesses viz. Panchhi (Pw.4), Bhanwar Lal (Pw.20) and Bhona (Pw.26) did not know the person who hired the deceased and took them with him; (ii) Raymal (Pw.21) although names appellant Gopal and stated that it was he who hired the deceased and took them with him but he did not inform the police that it was Gopal who hired Kana Ram and Fauja Ram and took them with him, although Raymal had gone to police station to receive the dead body of Fauja Ram and identified the clothes of Kana Ram. Raymal disclosed this fact for the first time after a gap of four years. 9. It is testimony of these four witnesses which has been relied upon by the trial court as the evidence of "last seen together". As already noticed that Panchhi (Pw.4), Bhanwar Lal (Pw.20) and Bhona (Pw.26) did not sets the person who took the deceased persons with him and Raymal (Pw.21) kept mum for a period of four years and no explanation was affordedly him about this mystrious silence. From the evidence of these witnesses in our opinion the prosecution has failed to establish the circumstances that the deceased and appellant Gopal were last seen together.RECOVERY OF AXE : 10. The prosecution examined Nanga (Pw.5) and Ram Kishan (Pw.22) as motbirs of memo of recovery of axe.Vide memo Ex.P-5 the axe got recovered at the instance of the appellant Gopal in the presence of Nanga and Ram Kishan on April 9,1995 at 1.15 PM. Both Nanga (Pw.5) and Ram Kishan (Pw.22) did not support the prosecution case and categorically sated that the axe was not recovered in their presence. Both these witnesses were declared hostile. Strangely the axe though discovered and seized on an information given by appellant under Section 27 of the Evidence Act, has not been produced and exhibited in the court. Having carefully examined the statements of Kushal Singh, Investigating Officer (Pw.29), we are of the view that the alleged recovery of axe does. not inspire confidence. RECOVERY OF SPADES : 11. Strangely the axe though discovered and seized on an information given by appellant under Section 27 of the Evidence Act, has not been produced and exhibited in the court. Having carefully examined the statements of Kushal Singh, Investigating Officer (Pw.29), we are of the view that the alleged recovery of axe does. not inspire confidence. RECOVERY OF SPADES : 11. The prosecution examined Shanker Das (Pw.2) and Hanuman Ram Vishnoi (Pw.16) as motbirs of recovery of spades. According to Shanker Das (Pw.2) Gopal did not come with two persons in his presence and when police reached the spades were already lying on the land and he did not know as to who put the spades there. Shanker Das was declared hostile by the prosecution. Constable Hanuman Ram Vishnoi (Pw.16) also stated that the spades were already lying on open land and who put the spades there he did not know. The prosecution thus failed to establish that the spades recovered vide recovery memo (Ex.P-2) belonged to deceased Kana Ram and Fauja Ram.RECOVERY OF HANSLI : 12. A look at the recovery memo (Ex.P-35) reveals that Hansli got recovered in the presence of two motbirs viz. Ram Kishan and Jagdish (Pw.13). The prosecution only examined Jagdish (Pw.13) who deposed that he remained seated in the jeep and put his signatures on some papers on the pursuation of Incharge of Police Station Bassi. In his presence neither any thing was recovered nor anybody was arrested. He did not recognise appellants Gopal, Santosh Kumar and Ramesh Chand. Such feeble testimony, in our opinion, is not sufficient to connect the appellants with the crime.RECOVERY OF EAR-RINGS : 13. Jagdish Narayan Sharma (Pw.23) and Hari Narayan (Pw.24) are two motbirs of memo of recovery of ear-rings. In his deposition Jagdish (Pw.23) stated that he was known to Kushal Singh, SHO, who took him to Jaipur. They reached Jaipur at 1.00 PM and went to a shop. He did not know the name of the shop. When one person handed over golden ear-rings to the SHO, he was sitting in the jeep and ear-rings were seen by him in the jeep which were not scaled there. On the other hand Hari Narayan (Pw.24), deposed that ear-rings were recovered from the person sitting on foot-path, whose name was not known to him. When one person handed over golden ear-rings to the SHO, he was sitting in the jeep and ear-rings were seen by him in the jeep which were not scaled there. On the other hand Hari Narayan (Pw.24), deposed that ear-rings were recovered from the person sitting on foot-path, whose name was not known to him. As per the evidence of these motbirs it cannot be held that ear-rings were recovered at the instance of appellant Gopal from the possession of appellants Santosh Kumar Gupta and Ramesh Chand.IDENTIFICATION PARADE : 14. A bare look at the memo of Identification Parade (EX.P-52) demonstrates that Peeru, Durga and Sita Ram were the persons who identified appellant Gopal in jail before the Magistrate. Out of these witnesses the prosecution only examined Sita Ram (Pw.3), who did not depose at the trial that he went to jail and identified appellant ('copal. He only stated that he identified the clothes of deceased Kana Ram at Police Station Bassi. The trial court has gone completely amiss in holding that appellant Gopal was identified by the witnesses. 15. Thus, none of the pieces of evidence relied on as incriminating by the trial judge, can be treated as circumstantial evidence against the appellants. In Subhash Chand Vs. State of Rajasthan (2002 R.C.C. (SC) 226) , the Hon'ble Supreme Court indicated as under:- (Para 24) "...Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forget as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused." The facts and circumstances of the case as indicated above cannot, in our opinion, form basis of conviction of the appellant for the offences charged. 16. For these reasons, we allow the appeals and set aside the impugned judgment dated July 23, 2001 of the learned Additional Sessions Judge (Fast Track) Jaipur District Jaipur. We acquit appellant Gopal of the charges under Sections 302 and 394 IPC. Appellant Gopal who is in custody shall be set at liberty forthwith if not required to be detained in any other case. Appellants Santosh Kumar Gupta and Ramesh Chand stand acquitted of the charge under Section 411 IPC. They are on bail, they need not to surrender and their bail bonds stand discharged. Appeals allowed. *******