Judgment ( 1. ) APPELLANT has preferred this appeal under Section 374 of the Code of criminal Procedure, 1973 against the judgment dated 10-11-1997 passed by additional Sessions Judge, Sabalgarh, District Morena in Sessions Trial no. 262/94, whereby the appellant has been convicted for the offence under section 302, IPC and sentenced to undergo life imprisonment and fine of Rs. 1,000/- and in default of payment of fine, further three months S. I. ( 2. ) AS per prosecution story, deceased Chand Shah was residing in sabalgarh near Chandrapura Khartal along with Dildar Shah (father), kampooribai (mother), Mamuddin and Raju (brothers) and other family members. At some distance of his house accused Gattiram @ Maniram, Raju @ rajendra and Seth @ Rajaram are also residing. Deceased Chand Shah was working as mechanic of jeep-motor. He was also engaged in running Thela and he used to go along with band party with Gatti @ Maniram and Seth @ Rajaram. It is stated that a sum of Rs. 1,000/- was not given by accused Seth, Gatti and Raju to deceased Chand Shah and in the year of 1994 on the occasion of "holi" there was some quarrel between Gattiram, Seth and father of the deceased with one shriram Thakur of Kishoregarh. In that quarrel Shriram Thakur was beaten. After some days one Bharosi Nut had lodged report against Shriram Thakur and some other persons at Morena, in which Bharosi Nut and Dildar Shah, father of the deceased, were witnesses before Harijan Police Station. Though Bharosi nut refused about the aforesaid incident in Harijan Police Station. But there was some ill-will between them. On the day of incident deceased Chand Shah had purchased some pouch of Guru Tobacco from the wife of Charan Singh owner of pan shop. At that time all the accused persons were present at that place and they were involved in gossiping. At the same time accused Seth asked deceased Chand Shah to go to his house, wear shirt, bring one match box and also purchase "prasad" worth Re. 1/- to offer in sacrifice. Thereafter Chand shah went to his house to wear shirt and brought match box. At that time the mother of Chand Shah was ill and lying in the house. She interrupted and asked chand Shah to keep the bucket (Tamhedi) inside the house but Chand Shah went out telling that he will come back soon. 1/- to offer in sacrifice. Thereafter Chand shah went to his house to wear shirt and brought match box. At that time the mother of Chand Shah was ill and lying in the house. She interrupted and asked chand Shah to keep the bucket (Tamhedi) inside the house but Chand Shah went out telling that he will come back soon. Thereafter Chand Shah went along with three other accused persons but did not return back till 11-12 oclock in the night. Raju and Kampooribai mother of the deceased went to search him towards Tal but he was not traceable. Thereafter, she went to the house of gattiram, Raju @ Rajendra and Seth @ Rajaram but Chand Shah was not available. In the morning also he did not come back, he was also searched at the house of Seth and Gatti Nut. It was informed that Chand Shah might have gone to Morena for pulling rickshaw. Thereafter Raju informed all that story to his father at the shop of Iqbl Tailor. The father also enquired from Gatti and Seth about the whereabouts of Chand Shah but they refused to have any information. It was also found that Pooran is also not available. On enquiry Raju has also not given any information. Thereafter, he was searched in the relations at Village kulholi and Dabera. On 2-6-94 one deaf person, who had gone towards Khar tal for grazing goats, saw one dead-body lying near Khar Tal. On getting information Raju and Imamuddin went on the spot and saw the dead- body of their brother, which was full of wounds. Thereafter, Dildar Shah lodged FIR at police Station Sabalgarh on 2-6-94 between 9-10 p. m. Crime was registered and matter was investigated. Naksha Panchayatnama Lash was prepared, spot was inspected and spot map was also prepared and the accused persons were arrested. Thereafter, on memorandum under Section 27 of Evidence Act appellant Gattiram gave information about the clothes and the weapon and at the instance of Gattiram one blood- stained knife, blood-stained pant and shirt were recovered and seized. One blood-stained bushirt was also recovered and seized on the basis of the information given by accused Seth @ Rajaram on the memorandum under Section 27. On the similar information given by Pooran one blood-stained shirt and one lungi from Raju @ Rajendra were recovered and seized. After investigation charge sheet was filed. ( 3. One blood-stained bushirt was also recovered and seized on the basis of the information given by accused Seth @ Rajaram on the memorandum under Section 27. On the similar information given by Pooran one blood-stained shirt and one lungi from Raju @ Rajendra were recovered and seized. After investigation charge sheet was filed. ( 3. ) DURING trial all the accused persons abjured their guilt and they denied the prosecution story as well as their involvement in the commission of crime and it was their defence that they have been implicated falsely. During trial prosecution examined Dildar Khan (P. W. 1), Jalaluddin (P. W. 3), mamuddin (P. W. 5), Ahmed Khan (P. W. 6), Mahila Kampooribai (P. W. 7), raju (P. W. 8) and Shadik (P. W. 9 ). Investigating Officer Jainarayan Singh parihar (P. W. 12) was examined and the post-mortem of the dead-body was performed by one Dr. J. C. Sharma (P. W. 2), according to which, the deceased has received one incised wound on the chest towards right side of 9th and 10th ribs, they were broken; one incised wound on the chest towards left side of 8th rib which was broken; one incised wound on epigastrium; one incised wound on abdomen just below injury No. (3); two incised wounds on right side of abdomen; two incised wounds just above umbilicus; two incised wounds on left side of abdomen; and two incised wounds just left to umbilicus. Post-mortem report is exh. P-7. As per medical opinion, all the injuries were sufficient to cause death in the ordinary course of nature and the cause of death was excessive bleeding and he died between 48-72 hours from the post-mortem. Trial Court found that no challenge was made to the post-mortem report or the death of the deceased. ( 4. ) TRIAL Court after considering the various circumstances and the evidence of the witnesses on record "as well as the chemical examination report exh. P-18 held that the case rests on the circumstantial evidence. Trial Court found that on the knife which was recovered from the appellant human blood was found. On the clothes of the deceased blood of a group was also found but as the blood on knife was not sufficient for testing its group, the same was not tested. P-18 held that the case rests on the circumstantial evidence. Trial Court found that on the knife which was recovered from the appellant human blood was found. On the clothes of the deceased blood of a group was also found but as the blood on knife was not sufficient for testing its group, the same was not tested. Trial Court also found that no motive was found in the case and the evidence of last seen was available against all the accused persons but that alone was not sufficient, therefore, acquitted three accused persons, namely, Raju @ rajendra, Seth @ Rajaram and Pooran s/o Shankar but convicted the appellant on this additional evidence that the human blood was found on the knife and the knife was recovered at the instance of the appellant on the evidence of memorandum, Exh. P-ll. On the basis of this evidence of recovery of blood-stained knife from his house the Trial Court convicted the appellant under Section 302, IPC and sentenced as aforesaid. Against which, the appellant has filed this appeal. ( 5. ) LEARNED Counsel for the appellant submitted that the evidence of recovery of blood-stained knife on the memorandum under Section 27 of the evidence Act is not supported by Ahmed Khan (P. W. 6) and Shadik (P. W: 9), who have not supported the prosecution and were declared hostile. It was stated by them that in their presence accused has not disclosed any fact about the recovery of article. It was further argued that seizure memos Exhs. P-13 and P-14 were also not found proved and the seizure memos Exhs. P-15 and P-16 were also not proved. It was also argued that there is nothing in the Serologist report that human blood was found on the clothes of the appellant. The appellant has been implicated falsely and no reliance can be placed on the evidence of kampooribai (P. W. 7), Raju (P. W. 8) and Mamuddin (P. W. 5) and submitted that the chain of circumstantial evidence is not complete against him and his conviction is bad in law and is liable to be set aside. He placed reliance on the decisions in the cases of Sharad Birdhiehand Sarda Vs. State of Maharashtra ( AIR 1984 SC 1622 ); Kansa Behera Vs. He placed reliance on the decisions in the cases of Sharad Birdhiehand Sarda Vs. State of Maharashtra ( AIR 1984 SC 1622 ); Kansa Behera Vs. State of Orissa ( AIR 1987 SC 1507 ); and on the question of last seen he placed reliance on the decision in the case of ramreddy Rajeshkhanna Reddy and another Vs. State of Andhra Pradesh ( AIR 2006 SC 1656 ). In reply, Shri M. P. S. Bhadoriya, learned Government Advocate appearing for the respondent-State, supported the judgment and submitted that the appellant has rightly been convicted. Admittedly, the State has not preferred any appeal against the acquittal of remaining three accused persons. ( 6. ) HAVING heard the learned Counsel for the parties and on perusal of the evidence on record we find that even the evidence of last seen is of poor nature in the case. Kampooribai (P. W. 7) in Paras 12 and 13 of her cross- examination has narrated a different story contrary to her statement under section 161, Cr. PC, which was recorded by the police and marked as Exh. D-3. She has stated that when one Raju came to call her son Chand Shah, he was taking meals and at that time Gatti and Seth were also standing out side her house along with Raju. Raju was wearing one black Lungi and Baniyan, Seth and gatti were also wearing Lungi and Baniyan. It was summer season. All these things were stated by her to the police but why the police has not written them in her case diary statement Exh. D-3, she cannot give any reason. She has further stated that she was lying in the house and hand pump was also visible from there and there was quarrel between Bharosi and Thakur with Nut and the name of her husband was cited as witness. All these things were informed to the police, but why the police has not mentioned all these facts in her case diary statement, she cannot give any reason. Subsequently she has stated that when Raju came, chand Shah was cooking food but this fact has also not been mentioned in case diary statement Exh. D-3. When Raju came to call her son, she had refused and this was also informed to the police but this fact does not find place in the case-diary statement. Subsequently she has stated that when Raju came, chand Shah was cooking food but this fact has also not been mentioned in case diary statement Exh. D-3. When Raju came to call her son, she had refused and this was also informed to the police but this fact does not find place in the case-diary statement. From this statement even the evidence of last seen does not seems to be of reliable and conclusive nature. ( 7. ) THE next evidence about the recovery of blood-stained knife is also not proved. Memorandum Exh. P-ll was prepared at the instance of the appellant and Ahmedkhan (P. W. 6) and Shadik (P. W. 9) are the witnesses of the memorandum, they have not supported the prosecution. By Exhs. P-13 and P-14 bloodstained knife and blood-stained clothes of the appellant were seized but ahmedkhan (P. W. 6) and Shadik (P. W. 9) have also not supported the evidence of seizure memos. ( 8. ) WE have perused Exh. P-18, in which it has been mentioned that from the spot one shirt and full pant, which were marked as H1 and H2, were seized but it is not the prosecution story that any material was seized from the spot. On the contrary, blood-stained clothes of the appellant were seized but from chemical examination report Exh. P-18 it is clear that those clothes were not referred for chemical examination. ( 9. ) SO far as the presence of blood on the knife is concerned, as per exh. P-21 the knife was marked as i at item No. 30 and it was found that the knife was stained with human blood and the blood was not found sufficient for testing its group, therefore, admittedly as per report of Serologist and chemical examiner (Exh. P-21) though the human blood was found on the Chaku (knife)which was marked as i, but blood grouping was not done. In the absence of serologist report and blood group of knife it cannot be affirmatively held that it was the same knife which was used in the commission of crime as the recovery is not found proved at the instance of the appellant. In the absence of serologist report and blood group of knife it cannot be affirmatively held that it was the same knife which was used in the commission of crime as the recovery is not found proved at the instance of the appellant. The Trial Court has placed reliance on the report of examination of knife by the chemical examiner and on the presence of human blood thereon but in our opinion that would not be the sufficient evidence to connect him in the crime. Trial Court held that shirt l2, which was of the deceased, was cut by knife and it was found possible that the same might have been cut by the same knife but in our considered opinion such an evidence cannot be held to be reliable as it is too for latches and it cannot be held that the shirt was cut by that knife alone. When there is no reliable evidence of memorandum under Section 27 of the Evidence Act and recovery and seizure memo of the knife at the instance of the appellant, the same evidence cannot be used as one of the circumstantial evidence against the appellant and in our considered opinion conviction cannot be based thereon unless there is positive report of the Serologist that the blood which was found on the knife was of the appellant and in the absence of the blood group such a finding does not carry any weight. ( 10. ) IN the case of Sharad Birdhichand Sarda (supra) the Supreme court has held that following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:-" (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) the circumstances should be of a conclusive nature and tendency. The circumstances concerned must or should and not may be established. (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) the circumstances should be of a conclusive nature and tendency. (iv) they should exclude every possible hypothesis except the one to be proved, and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. " ( 11. ) IN the case of Kansa Behera (supra) the Supreme Court has held that in the evidence of the Investigating Officer or in the report it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood-stains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood-stains with the deceased. That evidence is absent and in this view of the matter, in the opinion of the Apex court even this was not a circumstance on the basis of which any inference could be drawn. ( 12. ) CONSIDERING the evidence on record that only the evidence of last seen was available against all the accused persons including the appellant, and on the basis of the aforesaid evidence the Trial Court has acquitted three other accused persons and has convicted the appellant on the additional circumstance that the knife (Chaku) was recovered from his house at his instance on the evidence of memorandum prepared under Section 27 of the Evidence Act. This glaring fact cannot be ignored that two witnesses namely Ahmed Khan (P. W. 6)and Shadik (P. W. 9) both have not supported the evidence of memorandum exh. P-ll and seizure memo (Exh. P-13) and as per the report Exh. P-21 even if the human blood was available on the knife (Chaku), there is no report as to what was the blood group which was found on knife. P-ll and seizure memo (Exh. P-13) and as per the report Exh. P-21 even if the human blood was available on the knife (Chaku), there is no report as to what was the blood group which was found on knife. In the absence of the blood group and in view of the doubtful evidence regarding recovery of knife at the instance of the appellant and seizure memo, the conviction of the appellant cannot be upheld. ( 13. ) WE have noticed one very important circumstance that by Exh. P-ll along with knife one full pant and shirt of the appellant were recovered and by Exh. P-13 knife and clothes were seized but from Exhs. P-18 and P-21, it is clear that only knife was referred for chemical examination and pant and shirt of the appellant though were seized, were not referred for chemical examination, but the Trial Court has wrongly placed reliance that the blood was also found on the clothes of the appellant. When the clothes were not referred for chemical examination, how such a finding can be recorded and conviction can be based thereon. ( 14. ) NO doubt, in a case of circumstantial evidence the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established and the facts so established should be consistent only with the hypothesis of the guilt of the accused and there must be positive and firm finding that the accused is guilty. The other possible hypothesis has to be excluded. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the case in hand, on the basis of the evidence on record we are of the view that the prosecution has failed to prove the chain of circumstances against the appellant. There is no proved evidence against the appellant and the evidence of last seen alone is also very weak kind of evidence, in the absence of other proved circumstances on record it cannot be held that the accused is guilty. The other evidence on which the Trial Court has placed reliance is not found either established or proved. There is no proved evidence against the appellant and the evidence of last seen alone is also very weak kind of evidence, in the absence of other proved circumstances on record it cannot be held that the accused is guilty. The other evidence on which the Trial Court has placed reliance is not found either established or proved. Therefore, it can be held that in this case the prosecution has failed to prove the circumstances of guilt against the appellant by producing the evidence beyond reasonable doubt. Thus, the circumstantial evidence on record did not lead to this conclusion that it is the appellant, who has committed murder of the deceased. ( 15. ) THUS, this appeal is allowed and the judgment of the Trial Court is set aside. The appellant is entitled for benefit of doubt. Accordingly, he is acquitted from the charges. He is on bail. His bail bonds be discharged. Criminal Appeal allowed.