JUDGMENT 1. - Feeling sad and gloomy Hemraj stepped into the field. There was an eerie silence. Holding his breath and trading on, he saw his wife Sujya Bai, lying dead under the Babool tree. There were multiple abrasions on various parts of her body. Pieces of bangles were scattered nearby. Her death was homicidal. On Prakash @ Babloo, appellant herein, was put to trial for having committed murder of Sujya Bai, before learned Additional Sessions Judge (Fast Track) No.2, Kota, who vide judgment dated January 10, 2003 convicted and sentenced the appellant as under:- U/s. 302 IPC : To suffer imprisonment for life and fine of Rs. 2,000/-, in default to further suffer simple imprisonment for two months. U/s. 379 IPC : To suffer simple imprisonment for one year and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. Substantive sentences were ordered to run concurrently. 2. Hemraj (PW.2) submitted a written report (Ex.P.1) at Police Station Railway Colony Kota on March 27, 2002 at 7 PM with the averments that on March 26 his wife Sujya Bai had gone to the field to collect fodder. When she did not return till evening the informant along with Raja Ram and Ram Niwas went to search her. To their utter surprise Sujya Bai was found dead near the fields of Ghanshyam Mali and Sattar Khan. There were scratches on her neck and elbow. Dead body of Sujya Bai was first taken to the house and then removed to the hospital. On that report a case under Section 302 IPC was registered and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and no completion of investigation charge sheet was filed. In due course the case came up' for trial before the learned Additional Sessions Judge (Fast Track) No.2, Kota. Charges under Sections 302 and 379 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 27 witnesses. In the explanation under Section Cr.PC, the appellant claimed innocence. No witness in defence was however examined. Learned Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. Sujya Bai vide Post Mortem Report (Ex.P-34) received following ante mortem injury: 1. The prosecution in support of its case examined as many as 27 witnesses. In the explanation under Section Cr.PC, the appellant claimed innocence. No witness in defence was however examined. Learned Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. Sujya Bai vide Post Mortem Report (Ex.P-34) received following ante mortem injury: 1. Multiple abrasions 12 in number in the area of 10 x 6 cm on anterior aspect of neck. 2. Multiple abrasions 5 in number in the area of 5 x 3 cm on Rt. shoulder 3. Abrasion 3 x 2 cm on Rt. elbow 4. Abrasion 6 x 4 cm left thigh 5. Abrasion 3 x 1 cm on left hip. 6. Abrasion 3 x 1/2 cm left leg posterior. In the opinion of Dr. Rakesh Sharma (PW.22) the cause of death was asphyxia as a result of compressure of neck. 4. Indisputably there is no eye witness of the occurrence and the case of prosecution rests on the circumstantial evidence. We have therefore to examine whether: (i) the circumstances from which an inference of guilt is sought to be drawn, have been cogently and firmly established; (ii) those circumstances are of a definite tendency unerringly pointing towards the guilt of the appellants; (iii) the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellants and none else. 5. The circumstances on which learned trial court placed reliance to convict the appellant are as under : (i) Water boring of appellant was near the place of incident. (ii) Ali Hussain (PW.6) had seen the appellant around 12-1 PM at his boring on the date of incident. (iii) Madan (PW.7) had seen the appellant around 11 .AM on the date of incident to go on cycle towards the place of incident and at 3 PM coming back. (iv) Kalu Lal (PW.8) had also seen the appellant going on the cycle towards the place of incident. (v) the appellant sold gold-tops to Mukesh Jain (PW.12) on the date of incident. The tops belonged to Sujya Bai. . (vi) The tops got recovered at the instance of appellant. (vii) Motive behind murder was theft of ornaments. 6. We have given our anxious consideration to the submissions advanced before us. 7. (v) the appellant sold gold-tops to Mukesh Jain (PW.12) on the date of incident. The tops belonged to Sujya Bai. . (vi) The tops got recovered at the instance of appellant. (vii) Motive behind murder was theft of ornaments. 6. We have given our anxious consideration to the submissions advanced before us. 7. From the testimony of Karan Singh 10 (PW.26) it appears that Mrig Report No.2/2002 under Section 174 Cr.PC was registered on March 26, 2002. Place of incident got inspected on March 27, 2002 at 10.30 AM and site plan was drawn as per information provided by Hem Raj. Inquest report (Ex.P-1) was drawn on March 27, 2002 at 11 AM. A look at the inquest report goes to show that Nose-pin made of gold and silver ring were found on the dead body. These ornaments were handed over to Hem Raj on March 27, 2002 vide receipt Ex.P-6. Thereafter written FIR (Ex.P-1) was filed by Hem Raj at the police station Railway Colony Kota on March 27, 2002 at 7 PM. Karan Singh 10 admitted in the cross examination that Hemraj told him during investigation that Ali Mohd. had killed his wife. Karan Singh deposed thus:- 359189 8. The incriminating circumstances found established against the appellant was that on the basis of his disclosure statements golden tops got recovered from the Jewelry-shop of Mukesh Kumar Jain (PW.12). In his deposition Mukesh Kumar Jain stated that he had purchased tops from the appellant through bill No. 41. In his cross examination he stated that appellant had been his customer from the time of his grand-parents and when appellant got married the ornaments were purchased from his shop. He further stated that at the time of selling tops the appellant told him to keep them intact as he would purchase them back:- 359189 Receipt book (Ex.P.22) was produced by Mukesh Kumar Jain, wherein it was stated at page No. 41 that tops were purchased from Billu on March 26, 2002. It also appears that Todiya (anklets) made of silver and receipt of Mewara Jewlers dated March 26, 2002 were recovered vide memo (Ex.P-19) at the instance of appellant from his house on April 1, 2002. 9. To established that the tops and anklets belonged to the deceased, the prosecution examined informant Hem Raj (PW.2) and Abid Noor Pathan (PW.13). It also appears that Todiya (anklets) made of silver and receipt of Mewara Jewlers dated March 26, 2002 were recovered vide memo (Ex.P-19) at the instance of appellant from his house on April 1, 2002. 9. To established that the tops and anklets belonged to the deceased, the prosecution examined informant Hem Raj (PW.2) and Abid Noor Pathan (PW.13). Hem raj deposed that his wife used to wear Gold-tops and silver anklets and he did not find these ornaments on the dead body. Abid Noor Pathan (PW.13) visited the house of Hem Raj after dead body of Sujya Bai was taken to the house. In his deposition he stated thus : 359189 In his cross examination he however stated that 359189 In regard to nose-pin and ring, Abid Noor Pathan stated that he did not see these ornaments on the dead body: 359189 10. Factual situation emerges from the testimony of these witnesses may be summarised thus : (i) Gold tops were sold by appellant to Mukesh Kumar Jain on March 26, 2002. (ii) Appellant was old customer of Mukesh Kumar Jain and he used to purchase ornaments form the shop of Mukesh Kumar Jain from the -time of his grand-parents. (iii) Appellant asked Mukesh Kumar Jain to. keep gold tops intact since he wanted to purchase them back. (iv) Todiya (silver anklets) were purchased by appellant through receipt March 26, 2002, which was found along with todiya. (v) Abid Noor Pathan (PW.13) in his cross examination deposed that Sujya Bai was wearing something on the feet as well as on the her ears, but in his cross examination he admitted that he was not sure whether he had seen Sujya Bai wearing tops. (vi) Abid Noor Pathan did not see nose-pin and silver ring on the dead body of Sujay Bai, although these ornaments were found on the dead body and handed over to Hem Raj 11. Other incriminating circumstance relied upon by learned trial court was that Ali Mohd. (PW.6) had seen the appellant around 12-1 PM at his water boring. The appellant was wearing half pant and was washing his teeth. Madan Khan (PW.7) deposed that he had seen the appellant along on his cycle around 11 AM towards his field. Thereafter around 3 PM the appellant was seen coming back from the field. (PW.6) had seen the appellant around 12-1 PM at his water boring. The appellant was wearing half pant and was washing his teeth. Madan Khan (PW.7) deposed that he had seen the appellant along on his cycle around 11 AM towards his field. Thereafter around 3 PM the appellant was seen coming back from the field. Kalu Lal (PW.8) also saw the appellant around 230 PM on cycle coming back from the field. 12. Having carefully gone through the evidence of Ali Mohd. (PW.6) Madan Khan (PW.7) and Kalu Lal (PW.8) we find that the only fact that could be established by the prosecution was that the appellant was present on the day of incident at his 'boring' between 11 to 3 PM. But the testimony of these witnesses simultaneously shows that at the relevant time they were also present at their respective fields. We earlier noticed that Hem Raj told Karan Singh IO that Ali Mohd. committed murder of his wife. Why Karan Singh IO ignored the statement of Hem Raj and instead of nabbing Ali Mohd. in the crime, made him witness? This question could not be answered by the prosecution. There is nothing on record to show that the deceased and the appellant on the day of incident, were seen together. Karan Singh IO deposed that on the day of incident appellant was wearing full pant which was found stained with blood, whereas Ali Mohd. stated that he had seen appellant wearing half pant. This material contradiction shows that Ali Mohd. was telling lie. 13. The prosecution then made attempt to connect the appellant with the crime by showing that Chappals of deceased got recovered at his instance and injuries were found on his person. We find it difficult to believe that the culprit whose motive behind murder was to commit theft of ornaments, would conceal the chappal of the deceased so that the Investigating Officer could recover it subsequently. From the injuries found on the person of appellant by Dr. P.K. Tiwari vide injury report (Ex.P-33) we cannot infer that the same were sustained at the time of incident. It is also difficult to believe that theft articles were sold to a jeweler by the culprit without concealing his identity. From the injuries found on the person of appellant by Dr. P.K. Tiwari vide injury report (Ex.P-33) we cannot infer that the same were sustained at the time of incident. It is also difficult to believe that theft articles were sold to a jeweler by the culprit without concealing his identity. From the testimony of Mukesh Kumar Jain this possibility cannot be ruled out that the tops sold by the appellant belonged to him and he purchased silver anklets from Mukesh Kumar Jain. 14. In (1) Pawan Kumar v. State of Haryana (2001) 3 SCC 628 the Apex Court held that where two inferences are possible, one that is favourable to accused should be accepted. It was indicated as under:- "Success of the prosecution on the basis of circumstantial evidence will depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused persons. The evidence on record ascribed to be circumstantial, ought to justify the inference of the guilt from the incriminating facts and circumstances which are incompatible with the innocence of the accused or guilt of any other person. While it is true that there should be no missing links in the chain of events so far as the prosecution is concerned, it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. Circumstances of strong suspicion without however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. In any event, on the availability of two inferences, the one in favour of the accused must be accepted." 15. We also find that the prosecution failed to examine such a witness who had seen the appellant with the deceased or near the place of incident. 16. In any event, on the availability of two inferences, the one in favour of the accused must be accepted." 15. We also find that the prosecution failed to examine such a witness who had seen the appellant with the deceased or near the place of incident. 16. In (2) State of U.P. v. Satish (2005) 3 SCC 114 , their Lordships of Supreme Court had occasion to consider "last seen theory" and it was indicated as under:- (Para 22) "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen 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 conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." 17. In (3) Ramreddy Rajesh Khanna Reddy v. State of AP (2006) 10 SCC 172 , the Apex Court held that last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and 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. 18. In (4) Sunny Kapoor v. State (2006) 10 SCC 182 the Apex Court held that for proving guilt of an accused under Section 302, the prosecution must lead evidence to connect all links in a chain so as to point guilt of the accused alone and nobody else. The evidence adduced was found short of the requirement and conviction of accused under Section 302/34 was held unsustainable. 19. In (5) Lakhan Pal v. State ( AIR 1979 SC 1620 ) it was propounded by Hon'ble Supreme Court 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. 20. 19. In (5) Lakhan Pal v. State ( AIR 1979 SC 1620 ) it was propounded by Hon'ble Supreme Court 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. 20. In (6) Mohibur Rahman v. State of Assam (2002) 6 SCC .715 the Apex Court held as under:- "The circumstances of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be,, persuaded to reach in irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. The dead body had been recovered about 14 days after the death of which the deceased was last seen in the company of the co- accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together does not bear such close proximity with the death of the victim by reference to time or place. Merely because the co-accused was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence, under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal. Accordingly, the co-accused's conviction under Sections 302/34 and 201/34 IPC along with the sentence passed thereon is set aside. He is acquitted. He shall be released forthwith unless required to be detained in connection with any other offence." 21. He is entitled to an acquittal. Accordingly, the co-accused's conviction under Sections 302/34 and 201/34 IPC along with the sentence passed thereon is set aside. He is acquitted. He shall be released forthwith unless required to be detained in connection with any other offence." 21. In (7) Bodhraj v. State of J&K (2002) 8 SCC 45 the Apex Court held that 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 was also held that it would be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together. It was further held that where two views are possible, the view in favour of the accused has to be preferred. But where the relevant materials are not considered to arrive at a view by the trial court, the High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial court. On facts, reversal of acquittal by High Court was held proper. 22. In (8) State of Karanataka v. MV Mahesh (2003) 3 SCC 353 , the Apex Court indicated as under:- (Para 3) "Even if we proceed on the basis that the DNA examination resulted in identifying the bones found by the police as that of Beena, still what has to be established is involvement of the respondent in the commission of her murder. For the purpose reliance is placed upon the evidence of PWs. 2, 6, 17, 28 and 29 who claim to have seen Beena in the company of the respondent. The explanation sought to be offered by the respondent is that he took her to the place of her relatives next morning at about 5.45 am. while the evidence of the witnesses referred to just now is that they saw her last on 28.11.1985. The statement made by the respondent was false is not established. Merely being seen last together is not enough. while the evidence of the witnesses referred to just now is that they saw her last on 28.11.1985. The statement made by the respondent was false is not established. Merely being seen last together is not enough. What has to be established in a case of this nature is definite evidence to indicate that Beena had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in absence of the corpus delicit it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court. In this case no such material is made available to the Court." 23. The Hon'ble Supreme Court in (9) Harendra Narain Singh v. State of Bihar ( AIR 1991 SC 1842 ) observed that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the court should adopt the later view favourable to the accused. 24. In (10) Harjit Singh v. State of Punjab (2002) 6 SCC 739 observed that it is unbelievable that all the accused persons who have alleged to use their firearms /weapons kept all the arms concealed in an open field in a gunny bag under a heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could not be relied on by the trial court to convict the accused by treating it as eyewitness account. 25. In (11) Bhagwan Singh v. State of MP (2003) 3 SCC 21 , the Apex Court held that as far as the evidence of recoveries of certain articles of the deceased on the alleged information given by the accused is concerned, such evidence in itself is too weak a piece of evidence to sustain the conviction of the accused. 26. So far as recovery of soil stained clothes of appellants is concerned, we find that it does not link the appellant with the crime. 26. So far as recovery of soil stained clothes of appellants is concerned, we find that it does not link the appellant with the crime. It is inexplicable as to why appellant would have carried uncleaned soil stained clothes after committing a crime. 27. Applied the lucid tests of the case of circumstantial evidence to the facts of the case on hand we find that evidence adduced at the trial is not qualitatively such that on every reasonable hypothesis the conclusion is that appellants are guilty. 28. The Investigating Officer of the case, it appears was not well versed with the techniques of his job. He did not make efforts to collect the threads of evidence finding out the path which leads to the culprit. Undoubtedly the culprit who committed the crime did not intend to commit theft of an ordinary silver anklets or tops. Instead of nabbing actual culprit, about whom suspicion was raised by the husband of deceased, the Investigating Officer appears to have solved a case by involving appellant. Their Lordships of the Supreme Court in (12) Subhash Chand v. State of Rajasthan (2002) 1 SCC 720 , indicated about clueless crimes thus:- (Para 26) "The ends, which the administration of criminal justice serves, are not achieved merely by catching hold of the culprit. The accusation has to be proved to the hilt in a court of law. The evidence of the investigating officer given in the court should have a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him." 29. In the ultimate analysis we find that in the instant case the doctrine of confirmation by subsequent fact could not be made applicable properly and the prosecution has failed to bridge the gap between 'may be true' and 'must be true' by clear, cogent and unimpeachable evidence and guilt against the appellant is not proved beyond reasonable doubt. There are many missing links in the chain of circumstantial evidence and this aspect was not properly considered by the learned trial court. 30. For these reasons, we allow the appeal and set aside the impugned judgment dated January 10, 2003 of the learned Additional Sessions Judge No.2 (Fast Track) Kota. We acquit the appellant of the charges under Sections 302 and 379 of the Indian Penal Code. 30. For these reasons, we allow the appeal and set aside the impugned judgment dated January 10, 2003 of the learned Additional Sessions Judge No.2 (Fast Track) Kota. We acquit the appellant of the charges under Sections 302 and 379 of the Indian Penal Code. Appellant Om Prakash @ Babloo, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.Appeal allowed. *******