Judgment K.S.Chauhan, J. ( 1. ) These criminal appeals arise out from the same incident, therefore, they are being disposed of by the common judgment. ( 2. ) These criminal appeals have been preferred under Section 374(2) of Cr.P.C. being aggrieved by the judgment, finding arid sentence dated 24.04.1998 passed by Additional Sessions Judge, Begumganj, District Raisen in Sessions Trial Nos.177/97 and 246/97, whereby the appellant Dinesh Pratap Singh and Sanjay Gour have been convicted under Section 302/34 and sentenced thereunder for life imprisonment with fine of Rs.500/-, in default S.I. for 3 months respectively. ( 3. ) The brief facts of the case are that on 07.02.1997 at 9:40 a.m. Mannulal Chowkidar intimated Police Station Begumganj that at about 9:30 a.m. he saw dead body of a man aged about 28 years behind old Harijan Hostel, Begumganj lying in a partially burnt condition. Marg intimation No.4/97 under Section 174 of Cr.P.C. was registered and the inquiry was made. Panchnama of dead body of Gauri Shankar Sharma was prepared. Dead body was sent for postmortem examination to P.H.C. Begumganj where Dr.M.R.Khan (PW-2) conducted postmortem examination and opined that death has occurred due to asphyxia, shock caused by incised wound over neck. Death was homicidal in nature which had occurred before 12 to 18 hours. The sealed packet containing clothes of deceased was seized. Spot map was prepared. Blood stained soil and controlled soil were also seized from the spot. After inquiry, the Crime No.38/97 under Section 302 IPC was registered at police station Begumganj.. Appellant Dinesh Pratap Singh was arrested on 11.04.1997. His disclosure statement was recorded under Section 27 of Indian Evidence Act. In pursuance to the disclosure statement, the knife was recovered at his instance. The seized articles were sent for chemical examination. The statement of the witnesses recorded under Section 161 of Cr.P.C. Appellant Sanjay Gour absconded. After completing investigation, the charge sheet was filed in the Court of Judicial Magistrate First Class, Begumganj where the Criminal Case No. 142/97 was registered which was committed to the Sessions Court for trial on 22.07.1997. Appellant Sanjay Gour was apprehended on 24.12.1997 and supplementary charge sheet was filed in the Court of Judicial Magistrate First Class, Begumganj wherein Criminal Case No.341/97 was registered which wag committed on 24.12.97 to the Sessions Court for trial. ( 4. Appellant Sanjay Gour was apprehended on 24.12.1997 and supplementary charge sheet was filed in the Court of Judicial Magistrate First Class, Begumganj wherein Criminal Case No.341/97 was registered which wag committed on 24.12.97 to the Sessions Court for trial. ( 4. ) The appellants were charged under sections 302/34 and 201/34 of IPC to the effect that in the intervening night of 6/7.02.1997 at Begumganj they in the furtherance of their common intention committed murder by intentionally (or knowingly) causing death of Gauri Shankar Sharma. They were further charged that on the same date, time and place they knowing or having reason to believe that an offence of murder has been committed caused the evidence of the commission of that offence to disappear by burning his body with intention to save themselves from legal punishment. ( 5. ) Accused persons abjured the guilt and claimed to be tried mainly contending that they have been falsely implicate in this case. ( 6. ) Prosecution examined as many as 14 witnesses in S.T.No.177/97 and 11 in S.T.No.246/97 and appellants examined 4 defence witnesses in each case. After considering the evidence, the trial Court acquitted appellants from the offence under Section 201/34 but convicted under section 302/34 of IPC and sentenced thereunder as stated in para No.1 of this judgment. Being aggrieved by the judgment, finding and sentence, these appeals have been preferred under section 374(2) of Cr.P.C. on the grounds mentioned therein. ( 7. ) Learned counsel for the appellants has submitted that there is no eye witness of this incident. The trial Court has based its judgment mainly on the circumstance of last seen together but the same has not been proved because there are material contradictions and omissions in the statement of Hari Om Sharma. His statement is wholly unreliable and the trial Court has committed an illegality in accepting his evidence. Seizure of knife has also not been proved by prosecution. Abscontion of Sanjay Gour has also not been proved. Learned counsel has further submitted that absconding is not the sole ground to connect accused with the offence. Prosecution has failed to prove the guilt beyond reasonable doubt against the appellants. The finding being erroneous, deserves to be set aside and the appellants are entitled for acquittal. ( 8. Abscontion of Sanjay Gour has also not been proved. Learned counsel has further submitted that absconding is not the sole ground to connect accused with the offence. Prosecution has failed to prove the guilt beyond reasonable doubt against the appellants. The finding being erroneous, deserves to be set aside and the appellants are entitled for acquittal. ( 8. ) On the other hand, Shri T.K.Modh, learned Dy.A.G. appearing on behalf of respondent/State supported the judgment, finding and sentence passed by the trial Court mainly contending that the prosecution has proved the case beyond reasonable doubt against the appellants, hence they have rightly been convicted and sentenced hence does not call for interference. ( 9. ) The main point for consideration in these appeals is whether trial court has committed any illegality in convicting and sentencing appellants under section 302/ 34 of IPC for causing death of Gouri Shankar Sharma? ( 10. ) We have perused the cases and the entire evidence recorded therein. ( 11. ) Mannulal Chowkidar has stated that no Marg intimation was given to police station Begumganj by him. However, Krishnakant Sharma has stated that such intimation was given which was recorded as Ex.P/1. Krishnakant Sharma reached at the spot, prepared panchnama of dead body of Gauri Shankar Sharma. The defence has tried to bring on record the fact that the dead body was in burnt condition and hence could not be identified but Hari Om Sharma has clearly stated that dead body was of his brother Gauri Shankar Sharma. He identified by face as well as by clothes and shoes which he was wearing. Thus, it has been well established that dead body was of Gauri Shankar Sharma. ( 12. ) Dead body was sent for postmortem examination which was conducted by Dr.M.R.Khan. He found 3 incised wounds which were ante mortem. According to his opinion, death occurred due to asphyxia, shock caused by incised wounds over neck which are homicidal. Death occurred between 12 to 18 hours. ( 13. ) Thus, from the ocular and medical evidence adduced in these cases, it is clearly established that death of Gauri Shankar Sharma was homicidal in nature. ( 14. ) There is no direct evidence to connect appellants with this offence. Their conviction is mainly based on the circumstantial evidence. Death occurred between 12 to 18 hours. ( 13. ) Thus, from the ocular and medical evidence adduced in these cases, it is clearly established that death of Gauri Shankar Sharma was homicidal in nature. ( 14. ) There is no direct evidence to connect appellants with this offence. Their conviction is mainly based on the circumstantial evidence. The main circumstance is last seen together, recovery of knife at the instance of Dinesh Pratap Singh and abscontion of Sanjay Gour after-commission of crime. ( 15. ) It is evident from the record that only Hari Om Sharma has given the evidence regarding last seen together. How far his statement is reliable, is a matter of consideration. ( 16. ) Hari Om Sharma has stated that on that day his brother Gauri Shankar Sharma and appellants were seen thrice under the intoxicated condition. Firstly at about 2 p.m. at bus stand, Begumganj, secondly at about 5:00 p.m. at Shyamnagar in front of State Bank and thirdly at 7:30 p.m. near house of Balkishan Sahu. This witness in Sessions Trial No. 177/97 further deposed that he remained at Begumganj Bus Stand upto 11 p.m. Thereafter he attended marriage of daughter of Balkishan Sahu. His brother and the appellants were also there. They went in a room after seeing him. At about midnight he heard some hot talks in that room. He went there and asked his brother to come out of the room but in turn he told him to go. Since they were prepared to quarrel, hence he went away. In S.T. No.246/97 he has stated that he followed them upto Dussehra ground and then went to his house. ( 17. ) This witness in examination-in-chief has given the evidence that he saw deceased with the appellants several times in a day in an intoxicated condition. The contradiction has been brought from his police statement Ex.D/1 wherein he has not stated that he himself saw them on that day. His statement was that he came to know about this fact but it is not mentioned as to from whom he came to know that they were seen together. Therefore, this witness has clearly made an improvement from his police statement Ex.D/1 deposing that he saw them together in intoxicated condition on that day. His statement was that he came to know about this fact but it is not mentioned as to from whom he came to know that they were seen together. Therefore, this witness has clearly made an improvement from his police statement Ex.D/1 deposing that he saw them together in intoxicated condition on that day. His entire statement has been contradicted from his police statement Ex.D/1 and the contradictions and omissions are oh the very material point which affects the prosecution case. As according to his police statement Ex.D/1, he did not see them together but in the Court statement he has given the evidence in such a way that he himself saw them together. Therefore, no reliance can be placed on such a statement. ( 18. ) Balkishan Sahu has clearly stated that no invitation was given to Hari Om Sharma, therefore, there was no occasion for him to remain present in marriage of daughter of Balkishan Sahu. No witness has stated that the appellants were present in that marriage. Hence the statement of Hari Om Sharma becomes false that he saw his brother and appellants in a room and heard hot talks in between them. ( 19. ) It is clear that no invitation was extended to this witness by Balkishan of the marriage of his daughter and there was no reason for him to have stayed till midnight at Begumganj whereas he resides at Pachepura. It has also not been brought on record whether he was residing temporarily at Begumganj also. Thus, his entire statement becomes totally false regarding the evidence of last seen together of the appellants with his brother at Begumganj on the day of incident. ( 20. ) Learned counsel of the appellants has placed reliance in the case of Bodhraj @ Bodha and others v. State of Jammu and Kashmir, (2002) 8 SCC 45 where the Apex Court has held thus: "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conduct that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.................." ( 21. ) In the case of Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702 , it has been held that: "To constitute evidence of last seen together, the evidence must definitely permit an inference being drawn that the victim and the accused were seen together at a point of time in close proximity with the time and date of commission of crime." ( 22. ) In the case of Lakhanpal v. State of M.P., AIR 1979 SC 1620 , it has been held that: "the mere fact that the appellant and the deceased were together in the field does not lead to the irresistible inference that the appellant must have murdered the deceased." ( 23. ) In the case of H.P. Admn. v. Om Prakash , AIR 1972 SC 975 , it has been held that: "In appreciating the evidence against the accused the prime duty of a court is firstly to ensure that the evidence is legally admissible, that the witnesses who speak of it are credible and have no interest in implicating him or have ulterior motive." ( 24. ) On appraisal of evidence of Hari Om Sharma in these cases we find that he is not a reliable witness and the circumstance of last seen together is not well established. ( 25. ) Another circumstance against appellant Dinesh Pratap Singh @ Bablu Singh is recovery of knife at his instance. Krishnakant Sharma has deposed that Dinesh Pratap Singh gave the disclosure statement Ex.P/13 and on its basis he recovered knife which was seized vide seizure memo Ex.P/14. But this witness has.admitted in cross examination that the knife was seized from the open field. The witnesses of these documents Balram and Murat Singh have not supported his testimony. Thus, this fact is not proved that appellant Dinesh Pratap Singh gave the disclosure statement and in pursuance thereof recovered the knife. ( 26. ) Other circumstance against Sanjay Gour is his abscontion after the incident. The witnesses of these documents Balram and Murat Singh have not supported his testimony. Thus, this fact is not proved that appellant Dinesh Pratap Singh gave the disclosure statement and in pursuance thereof recovered the knife. ( 26. ) Other circumstance against Sanjay Gour is his abscontion after the incident. The learned counsel of the appellants has submitted that this circumstance alone is not sufficient to connect the accused with the offence. ( 27. ) The learned counsel of the appellants has placed the reliance in the case of Matru @ Girish Chandra v. The State of U.P., AIR 1971, SC 1050, wherein it has been held that: "The appellants conduct in absconding was also relied upon. Now mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime: such is the instinct of sell-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the F.I.R. was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence." ( 28. ) In the case of Rahman v. The State of U.P., AIR 1972 SC 110 , it has been held that: "It is true that the appellant was concealing himself for nearly a month though he must have known that he was wanted by the Police and that he left his wife to face the situation alone. But absconding by itself is not conclusive either of guilt or of a guilty conscience. But absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason." ( 29. ) In the case of Datar Singh v. The State of Punjab, AIR 1974 SC 1193 , it has been held that: "We do not think that inferences from failure to surrender or even absconding of the appellant and the lack of interest shown by his brother. Avtar Singh, or other relations of the appellant in obstructing the prosecution of the appellant could possibly prove the guilt of the appellant. Indeed, the complaint of the prosecution, which is inconsistent with the last mentioned submission, was that the appellants relations had succeeded in winning over witnesses so much so that neither the Tall Keeper living behind the Nam House, nor even Harinder Singh, the son of Joginder Singh, who were witnesses of the seizure list, appeared as persecution witnesses." ( 30. ) Thus, in the light of pronouncements of Apex Court, we find that the circumstance of mere abscontion is not sufficient to connect Sanjay Gour to this offence. ( 31. ) On appraisal of entire evidence adduced in these cases, we find that prosecution has not proved the case beyond reasonable doubt against the appellants, therefore, trial Court has committed an illegality in finding them guilty under Section 302/34 of Indian Penal Code hence we set aside the finding of guilt and sentence awarded by the trial Court. ( 32. ) Consequently, these appeals succeed and are allowed. Judgments passed by trial Court in S.T.No. 177/97 and S.T,No.246/97 dated 24.04.1998 are hereby set aside. They are acquitted from charge under Section 302/34 IPC. They are on bail. Their bail bonds are discharged. They are set at liberty. Appeal allowed. RAHUL