JUDGMENT 1. :- Dead body of Deep Chand, a boy of 14 years, was found lying partially buried in a yellow field of mustard. The appellant, who was seen with Deep Chand near the field, was placed on trial before learned Additional Sessions Judge Bayana (Bharatpur), who vide judgment dated September 29,2001 convicted and sentenced the appellant as under:-Under Section 302 IPC:To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer one month rigorous imprisonment.Under Section 364 IPC:To suffer rigorous imprisonment for seven years and fine of Rs. 500/-, in default to further suffer one month rigorous imprisonment.Substantive sentences were directed to run concurrently.In the instant appeal preferred by the appellant, since there is no eye witness of the incident, we have to adjudge as to whether the circumstances from which conclusion of guilt is drawn are fully proved and conclusive in nature and whether the established facts are consistent only with the hypothesis of the guilt of the appellant alone and totally inconsistent with his innocence. 2. The prosecution case, based on the circumstantial evidence, is as under:On February 20, 2000, informant Ved Ram (PW.8) submitted a written report (Ex. P- 1) at Police Station Bayana stating therein that his relations with the appellant were inimical and just about a month ago the informant and the brother of appellant had a quarrel. On Feb. 19, 2000 around 6 PM the appellant took informant's son Deep Chand, aged 14 years, towards jungle and returned from the jungle alone after two hours. Amar Singh, Kishan and other villagers had seen the appellant and Deep Chand going towards jungle. On being enquired about Deep Chand, the appellant stated that Deep Chand never accompanied him, when the villagers repeatedly told him that they had seen the appellant and Deep Chand going together towards jungle, the appellant kept mum. Thereafter the informant and villagers started searching Deep Chand and his dead body was found partially buried in the field of Prabhu Jatav. On the basis of this report a case under sections 302 and 201 Indian Penal Code was registered and investigation commenced. Autopsy on the dead body was performed, statements of witnesses were recorded, the appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Bayana (Bharatpur). Autopsy on the dead body was performed, statements of witnesses were recorded, the appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Bayana (Bharatpur). Charges under sections 302 and 364 Indian Penal Code were framed. The appellant denied the charges and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. In the explanation under section 313 Cr.P.C., the appellant claimed innocence. No witness in defence was, however, examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated hereinabove. 3. We have heard the rival submissions and scrutinised the record. 4. Following circumstances are relied upon by the learned trial court in convicting and sentencing the appellant:- (i) Death of Deep Chand was homicidal in nature. (ii) Immediately before his death, Deep Chand was last seen alive in the company of the appellant. (iii) Appellant had absconded after the incident. (iv) Human Blood was found on the rings worn by the appellant. (v) Abnormal conduct of the appellant. DEATH WAS HOMICIDAL: 5. Dr. K.G. Mittal (PW.8),m who conducted autopsy on the dead body, deposed that as per postmortem report (Ex.P-7) the cause of death was antemortem asphyxia produced by compression of the neck by human hands. It is thus established that death of Deep Chand was homicidal in nature.EVIDENCE OF LAST SEEN TOGETHER: 6. The prosecution has examined Sheela (PW.3), Guddi (PW.4), Amar Singh (PW.5) and Kishan (PW.7) to prove that soon before his death Deep Chand was seen alive in the company of appellant. Sheela (PW.3), in her deposition, stated that while she along with Guddi, was plucking 'Bathua' from her field she had seen the appellant entering into the mustard field of Prabhu around 6 PM. Guddi (PW.4) deposed that while she was on her field and plucking 'Bathua', she saw her real brother Deep Chand and appellant entering into the field of Prabhu. Thinking that both of them had gone to attend the call of nature, she had come back to her house. Amar Singh (PW.5), in his deposition, stated that on Feb. 19, 2000 he had seen appellant and Deep Chand entering into the mustard field of Prabhu. Thinking that both of them had gone to attend the call of nature, she had come back to her house. Amar Singh (PW.5), in his deposition, stated that on Feb. 19, 2000 he had seen appellant and Deep Chand entering into the mustard field of Prabhu. After two hours when Vedram enquired about his son Deep Chand, he had informed Vedram that Deep Chand was with the appellant. Vedram and Sukh Chand then took the appellant to 'Agahna' (fire place of the village) where the appellant started shivering. Appellant was taken by villagers to the field of Prabhu but from the boundary of the field he disappeared. On being searched, dead body of Deep Chand was found lying partially buried in the field of Prabhu. In the cross examination Amar Singh admitted that Vedram was his brother and Sheela and Guddi were his nieces. Kishan (PW.7) deposed that around 6 PM while he was in his field he had seen the appellant and Deep Chand going together towards the field of Prabhu. At that time his daughter Guddi and niece Sheela were plucking 'Bathua' from the field. When he came to the village he found Sukh Chand and Vedram searching Deep Chand. He then told them that he had seen Deep Chand with the appellant. Vedram and Sukh Chand proceeded to the house of the appellant and asked him about Deep Chand but he pleaded ignorance. On being threatened the appellant accompanied them to the boundary of Prabhu's field but from there he fled away. Dead body of Deep Chand was found in the field of Prabhu. 7. Placing strong reliance on the testimony of these witnesses learned trial court drew the inference that it was the appellant who had killed Deep Chand. Finding of learned trial Judge, in our opinion, is based on probability. By probability is meant the likelihood of anything to be true, deduced from its conformity to our knowledge, observation and experience. It is well settled that circumstantial evidence must be of a conclusive nature and circumstances must not be capable of a duality of explanation. In a case depending largely upon circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. It is well settled that circumstantial evidence must be of a conclusive nature and circumstances must not be capable of a duality of explanation. In a case depending largely upon circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. Ratio indicated in Lakhanpal v. State ( AIR 1979 SC 1620 ) is squarely applicable to the facts of the instant case wherein it was held that the mere fact that the accused and the deceased were together in the field prior to the occurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased.ABSCONDING: 8. Learned trial court in the impugned judgment also considered the circumstances that the appellant had absconded after he was taken by the villagers to the field of Prabhu. Testimony of Amar Singh (PW.5), Kishan (PW.7), Sukh Chand (PW.1) and Vedram (PW.8) was referred wherein it was alleged that the appellant accompanied the villagers upto the boundary of Prabhu's field and thereafter he fled away. When the villagers reached his house it was found locked. 9. In Raghuveer v. State, AIR 1971 SC 2156 it was held that the act of absconding even if proved, is normally considered some what as weak link in the chain of circumstances utilised for establishing the guilt. In the instant case even after the recovery of dead body, the appellant was very much in his house and he had not left the village. He was arrested on Feb.21, 2000 at 5 AM vide arrest memo (Ex.P-8). Thus the prosecution has failed to establish that the appellant had absconded after the incident.HUMAN BLOOD WAS FOUND ON THE RING OF APPELLANT: 10. Goverdhan Singh, IO (PW.12) deposed that at the time of arrest appellant worn two rings on his right hand fingers. Those rings that were stained with blood and soil, got seized by him vide memo (Ex.P-9). Testimony of Goverdhan Singh stood corroborated by Pooran Chand Constable (PW.9) who was associated with the arrest of appellant as well as the recovery of rings. In the cross examination Pooran Chand admitted that memo (Ex.P-9) was in his hand writing and it was drawn by him on the dictation of SHO. At that time Fateh Singh and Bal Kishan were also present but Bal Kishan was not asked to put his signatures on the memo. In the cross examination Pooran Chand admitted that memo (Ex.P-9) was in his hand writing and it was drawn by him on the dictation of SHO. At that time Fateh Singh and Bal Kishan were also present but Bal Kishan was not asked to put his signatures on the memo. It appears from the record that rings were sent to FSL for examination and as per FSL report (Ex.P-22), out of those two rings one was found stained with human blood, but group of blood could not be detected. Blood sample of the appellant, as per the deposition of Pooran Chand, was also taken, but its examination report has not been placed on record. Having carefully scrutinised the evidence of Goverdhan Singh 10 and Constable Pooran Chand, we find it difficult to believe that the appellant at the time of his arrest would have worn the rings stained with human blood on his fingers. Conduct of Investigating Officer in not associating independent witness Bal Kishan with the seizure of rings also creates suspicion in regard to fairness of the investigation. The appellant, as already noticed, while taken to the field of Prabhu by Kishan (PW.7), Sukh Chand (PW.1), Amar Singh (PW.5) and Vedram (PW.8) was not shown to have worn rings stained with blood and soil. None of the witnesses supported this fact. Thus the statements of Goverdhan Singh (PW.12) and Pooran Chand Constable (PW.9), in our opinion, do not inspire confidence.ABNORMAL CONDUCT: 11. Alleged conduct of appellant showing signs of fear at ' Agahna' of the village, was found by the learned trial court to be incriminatory. We find ourselves unable to agree with this finding. The state of a man's mind can be judged only by the surrounding circumstances. A piece of conduct of the accused can be held to be discriminatory which has no reasonable explanation, except on the hypothesis that he is guilty. The 'Conduct' made relevant by Section 8 of the Evidence Act is conduct which is directly and immediately influenced by a fact in issue or relevant fact, and it does not include actions resulting from some intermediate cause, such as questions or suggestions by other persons. If the appellant had rings of fear on his face on being threatened by the villagers, it does not lead us to infer that he was guilty.CONCLUSION: 12. If the appellant had rings of fear on his face on being threatened by the villagers, it does not lead us to infer that he was guilty.CONCLUSION: 12. In addition to what we have earlier discussed, we also noticed following infirmities, which in our opinion are fatal to the prosecution case:- (i) This fact came in the knowledge of informant Vedram that in the evening of February 19, 2000 that dead body of his son Deep Chand was lying partially buries in the field of Prabhu but he lodged the FIR on the next day i.e. on February 20, 2000 at 8 AM with the Police Station Bayana. (ii) Despite the fact that court of Magistrate Bayana situated just adjacent to the police station, the FIR was received by the Reader of the Court at 11 AM on February 21, 2000 i.e. after 27 hours. (iii) Although foot marks were seen near the dead body, they were not lifted by the Investigating Officer. (iv) Case was investigated in a slip shod manner by associating only near relatives of the deceased and police constables. No attempt to involve independent witness was made. 13. The circumstantial evidence adduced by the prosecution in the instant case only creates strong suspicion and it is not sufficient to justify conviction. There are many missing links in the chain of circumstantial evidence and no conclusion can be arrived at that it was the appellant who committed the crime. Learned trial Judge did not properly consider the material on record and committed illegality in convicting and sentencing the appellant. 14. For these reasons, we allow the appeal and set aside the impugned judgment dated September 29, 2001 of the learned Additional Sessions Judge Bayana (Bharatpur). We acquit the appellant Rajendra of the charges under sections 302 and 364 IPC. Appellant Rajendra, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.Appeal allowed. *******