JUDGMENT 1. - The discovery of an injured person, on the outskirt of a city park, in the dead of the night, an alleged threat given by the appellant to the deceased forms the background of this appeal. Conviction for offence under Section 302 of Indian Penal Code (henceforth to be referred to as "IPC", for short) and sentenced to life imprisonment and imposed with a fine of Rs. 200/- and to further suffer a simple imprisonment for fifteen days in default thereof, the appellant challenges the judgment dated 17.8.2000 passed by the Additional Sessions Judge, No. 5, Kota. 2. According to the prosecution story, on 18.12.1992, at about 10 PM., one Mr. Ambalal Luhar, (P.W. 16), saw an injured person lying near the park. Immediately, he informed the Police Station Nayapura about his discovery. The police reached the spot and immediately rushed the injured person, Ram Chandra, a Constable in the Police Force itself to a hospital. However, on 19.12.1992 around 4.40 A.M., Ram Chandra succumbed to his multiple injuries. The accused, Dhanpal, also a Constable in the Police Force, was arrested on 19.12.1992. For, accordingly to the prosecution, it is he who had threatened the deceased over a quarrel that had taken place at the Police Line, where both of them were employed. The deceased was also seen for the last time in the company of the accused when both were seen along with one Mr. Virendra Singh. After investigation, a callant was filed and the accused was charged for offence under Section 302 I.P.C. In order to prove its case, the prosecution examined as many as twenty-three witnesses and submitted a number of documents. Although, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure (henceforth to be referred to referred to as 'Cr.PC.', for short), he did not examine any witness in defence. After going through the oral and documentary evidence, the appellant was convicted and sentenced as mentioned above. 3. Mr. Khurshid Ahmed Khan, the learned counsel for the appellant, has raised various contentions : firstly, that the entire case is based on circumstantial evidence. However, the circumstances do not form a complete chain unerringly pointing to the guilt of the appellant. Therefore, the prosecution has not been able to prove its case beyond a reasonable doubt. Secondly, there are many lacunae in the prosecution story. However, the circumstances do not form a complete chain unerringly pointing to the guilt of the appellant. Therefore, the prosecution has not been able to prove its case beyond a reasonable doubt. Secondly, there are many lacunae in the prosecution story. Although the prosecution claims that the deceased was last seen in the company of the appellant, the fact remains that he was also seen along with the appellant in the company of Mr. Virendra Singh. Ram Gopal, P.W. 14 had seen the three of them were seen coming out of the hospital. But the prosecution has not eliminated the possibility that the deceased might have gone subsequently with Mr. Virendra Singh. Thirdly, that according to Ram Gopal, all three of them were sober when they left the hospital. But when the deceased was found in the injured condition, he was drunk. Therefore, possibility cannot be ruled out that the deceased might have gone somewhere after he left the hospital and might have gotten into a fight while being drunk with someone else. Fourthly, that although the cloths of the appellant contained blood but according of the F.S.L. report, only human blood was discovered. However, the particular blood group could not be ascertained. Fifthly, although the prosecution claims that the appellant had stuck the head of the deceased against the iron gate of the park, no blood was found on the iron gate of the park. Sixthly, only P.W. 2, Radheyshyam, claims that the appellant had threatened the deceased that he will settle his score with him later on after both the deceased and the appellant had a verbal altercation at the Police Station. Lastly, that the eyewitnesses Mr. Virendra Singh, PW. 4, has turned hostile and has not supported the prosecution. Thus, the appellant has been convicted on flimsy evidence. 4. On the other hand, Mr. M.L. Goyal, the learned Public Prosecutor for the State, has argued that the circumstances are sufficient to form a complete chain pointing solely to the guilt of the accused appellant. Therefore, he was supported the impugned judgment. 5. We have heard the counsel for the accused appellant and the Public Prosecutor for the State and have perused the impugned order as well as the record, which has been submitted before us. 6. In case of Usman Mian and others v. State of Bihar, (2004) 10 SCC 786 : 2005(1) WLC (SC) Cr. 5. We have heard the counsel for the accused appellant and the Public Prosecutor for the State and have perused the impugned order as well as the record, which has been submitted before us. 6. In case of Usman Mian and others v. State of Bihar, (2004) 10 SCC 786 : 2005(1) WLC (SC) Cr. 182 , the Hon'ble Supreme Court has held, as under : For a crime to be proved it is necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue which taken together form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. Conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts.and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. The cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. 7. Thus, keeping in view the principle enunciated above, we need to scan the evidence meticulously. According to P.W. 2, Radheyshyam, on 17.12.1992 he was posted as "Hawaldar" at the Police Line, Kota. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. 7. Thus, keeping in view the principle enunciated above, we need to scan the evidence meticulously. According to P.W. 2, Radheyshyam, on 17.12.1992 he was posted as "Hawaldar" at the Police Line, Kota. In the morning at 8.00 A.M. after taking roll call, he came into the offence where the accused appellant, Dhanpal, came and asked him about his duty. The witness told Dhanpal that "why dont' you come to the roll call as duty is mentioned in the roll call?" Upon this, the appellant started misbehaviour with the witness. While the appellant was misbehaving, Ram Chandra intervened and told the appellant not to misbehave with the superior officer. According to Radheyshyam, Ram Chandra took away the stick, which was in the hands of the appellant. The appellant asked Ram Chandra to return his stick. He refused to do so, whereupon both of them had a verbal altercation. According to the witness, he left the room and went to complain to the R.I. about the appellant's misbehaviour. When he came back to the room, he heard the appellant threatening Ram Chandra that he would settle the score latter. The appellant also asked Ram Chandra "as to why he wants to die from his hand?" The witness told both of them to stop their verbal abuses and to go their own way. 8. According to P.W. 5, Mahendra Singh, on 18.12.1992 he was posted as Police Station Nayapura. Around 10.50 P.M. on Ambalal informed the police station that there is an injured person lying at one of the gates of the Umaid Park. Upon this information, both Mahendra Singh and S.I. Giriraj Singh left for the place. They discovered an injured person whom they sent for immediate treatment at the hospital. 9. According to P.W. 14, Ram Gopal, on 18.12.1992 at about 9.12 P.W., when he went to the M.B.S. Hospital, Kota for getting one Mangilal treated, he saw the appellant, Ram Chandra and Mr. Virendra Singh coming out of the hospital. According to his testimony, Ram Chandra was sober at the time. 9. According to P.W. 14, Ram Gopal, on 18.12.1992 at about 9.12 P.W., when he went to the M.B.S. Hospital, Kota for getting one Mangilal treated, he saw the appellant, Ram Chandra and Mr. Virendra Singh coming out of the hospital. According to his testimony, Ram Chandra was sober at the time. Further according to him, around 11 O'clock the S.I. Giriraj Singh and Satya Narayan brought an injured person into the hospital, but because his face was badly injured, he did not release that the injured person was none other than Ram Chandra, his own colleague. 10. According to P.W. 10, Shyam Kishore, from the appellant's house a pant, a shirt and a jacket were recovered which had few drops of blood on them. From one of the closets, three knifes and one live cartridge were recovered. The recovered items were sealed. 11. According to P.W. 13, Dr. G.S. Visnar and according to P.W. 15, Dr. V.K. Sharma, both of them as members of the Medical Board, had conducted the postmortem of the deceased. They had discovered eighteen injuries on the deceased. Out of these injuries, sixteen injuries were caused by blunt weapon. One was abrasion and one was a blood clot. Under the blood clot, the nose was fractured. According to the postmortem report, (Ex.R 7), the cause of death was ante mort em injuries. 12. Lastly, the sole eyewitness Virendra Singh, P.W. 4, has turned hostile and has not supported the case of the prosecution. 13. A bare perusal of the evidence extracted above merely reveals that in a fit of anger, the appellant had threatened the deceased that he may kill him with his hands. Although P.W. 14, Ram Gopal claims to be have seen the deceased in the company of the appellant, but the fact remains that at that time the deceased was sober and was also in the company of Mr. Virendra Sigh. Whereas when the deceased was taken to the hospital, he was found to be drunk. Thus, the possibility that the deceased may have entered into a brawl in a state of intoxication with someone else cannot be ruled out. Moreover, since the deceased was seen for the last time in the company of Virendra Singh, the possibility does exist that the appellant may not be the actual killer. Thus, the possibility that the deceased may have entered into a brawl in a state of intoxication with someone else cannot be ruled out. Moreover, since the deceased was seen for the last time in the company of Virendra Singh, the possibility does exist that the appellant may not be the actual killer. Thus, the evidence of last seen is not strong enough to connect the appellant to the alleged crime. 14. Similarly, the mere recovery of blood stained cloths on which only human blood was found by the F.S.L. is also not sufficient to connect the appellant to the alleged crime. It is not sufficient for the prosecution to prove that human blood has been discovered on the cloths of the accused. It is, in fact, the duty of the prosecution to eliminate the possibility that the human blood does not belong to the accused himself. And to further establish through the process of elimination that the blood belongs to the deceased. In the present case, the prosecution has failed to perform this duty. Therefore, the recovery does not connect the accused to the crime. A bare perusal of the report of the F.S.L., (Ex.R 15), also reveals that three knifes discovered at the appellant's house were not sent for the examination to the FS.L. Therefore, mere recovery of three knifes is immaterial. 15. There are also certain gaping holes in the prosecution story. According to the prosecution, the appellant had caught of the head of the deceased and had stuck him on the Iron Gate. But according to the site plan, no blood was found on the iron gate of the park. According to the prosecution, the murder occurred at night and yet no one heard the deceased crying for help. These lacunae and the reasoning given above clearly demonstrate that the circumstantial evidence do not form a complete chain unerringly pointing to the guilt of the appellant. 16. For these reasons, we allow the appeal and set aside the impugned judgment dated 17.8.2000 passed by the Additional Sessions Judge No. 5, Kota. We acquit the appellant Dhanpal of the charge under Section 302 I.P.C. The appellant, Dhanpal, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.Appeal Allowed. *******