JUDGMENT H.S. Bhalla., J.:- This appeal is directed against the judgment dated 18/19.11.1997 passed by Sessions Judge, Sonipat, whereby he convicted the appellant under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and he was ordered to pay a fine of Rs.2000/-; in default thereof, he was further directed to undergo rigorous imprisonment for a period of one year. He was also ordered to pay Rs.10,000/- to be given to the legal heirs of deceased Sunil. In case of non-payment of the amount, he was directed to undergo imprisonment for one year. 2. The facts required to be noticed for the disposal of this appeal are that a written complaint was made by Ram Chander, complainant, alleging therein that he is the resident of House No.2043, Basti Julahan, Sadar Bazar, Delhi, where he resides along with his family. In his neighbourhood, Suresh Kumar has been residing with his wife Darshan Bala in House No.2201. Suresh Kumar is married in village Kharkhoda. On 26.11.1995 at about 12.00 noon, Suresh Kumar called his son Sunil from his house No.2043 for going to Kharkhoda at the house of his in-laws. Sunil did not return till evening. On 27.11.1995 Ram Chander and his son Madan Lal went at the house of Suresh and inquired about his son Sunil. Suresh replied that from his in-law’s house, they had returned to Bus Stop, Kharkhoda and thereafter, Sunil, on the pretext of urinating himself, departed and when Sunil did not return to the place of departure, he returned to his house. He assured him that he is going again to Kharkhoda in search of Sunil. At that time, Suresh was perplexed and within their sight, he disappeared. They suspected something foul when Suresh did not return to Delhi till 28.11.1995. Then Ram Chander along with his wife went to Kharkhoda at the house of in-laws of Suresh. Suresh was found there. His father-in-law Chander Bhan was also present there. They inquired about their son Sunil. They told them that Sunil will be alright and they, on their assurance, returned to Delhi. On 29.11.1995, Madan Lal and Nihal Singh again went to Kharkhoda, where Suresh was not available. Suresh was found there. His father-in-law Chander Bhan was also present there. They inquired about their son Sunil. They told them that Sunil will be alright and they, on their assurance, returned to Delhi. On 29.11.1995, Madan Lal and Nihal Singh again went to Kharkhoda, where Suresh was not available. Then they went to Police Station Kharkhoda to lodge a report about disappearance of Sunil, but the Station House Officer told them that the dead body of Sunil, who is friend of Sunil, had been identified by one Chander Bhan, which is lying in a abandoned well. On the statement of Chander Bhan, dead body of Sunil had been sent to Civil Hospital, Sonipat and complainant was asked to go to Sonipat to identify the dead body. Ram Chander, Madan Lal, and Nihal Singh came to Civil Hospital, Sonipat, where dead body of Sunil was lying. They identified the dead body, but Chander Bhan purposely did not disclose about this fact to the police that Sunil had come with his son-in-law Suresh and he has been murdered and his dead body had been thrown in a well. In spite of that Chander Bhan, Suresh, and Darshan Bala did not inform the complainant and they had eliminated the life of Sunil by administering poison to him. Ram Chander suspected that his son had been murdered by Chander Bhan, Suresh, Darshan Bala, and Rattan Lal. The police officials of Police Station Kharkhoda, after taking out dead body of Sunil from the well, conducted inquest proceedings, got, dead body postmortemed and the thereafter doctor took viscera, which was sent to Director, Forensic Science Laboratory. On receipt of the report, it was found that death of Sunil had taken place by having consumed some poisonous substance. Rough site plan of the place of recovery of dead body was prepared. Statements of the witnesses were recorded. On completion of necessary investigation, accused was sent for trial. 3. Accused was charge-sheeted under section 302 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. Prosecution, in order to prove its case, examined Dr. S.K. Dhattarwal (PW-1), Inder Pal, Draftsman (PW-2), Ram Chander (PW­ 3), Madan Lal (PW-4), Raju (PW-5), Durga Dass (PW-6), Jagbir Singh Constable (PW-7), ASI Pirthi Singh (PW-8), and Assistant Sub Inspector Ram Avtar (PW-9~and clo’sed its evidence. 5. 4. Prosecution, in order to prove its case, examined Dr. S.K. Dhattarwal (PW-1), Inder Pal, Draftsman (PW-2), Ram Chander (PW­ 3), Madan Lal (PW-4), Raju (PW-5), Durga Dass (PW-6), Jagbir Singh Constable (PW-7), ASI Pirthi Singh (PW-8), and Assistant Sub Inspector Ram Avtar (PW-9~and clo’sed its evidence. 5. In his statement recorded under Section 313 of the Code of Criminal Procedure, he denied all the prosecution allegations levelled against him and pleaded that he has been falsely implicated in the present case. Accused was afforded an opportunity to lead evidence in defence, but he did not prefer to do so and closed the same. 6. We have heard the learned counsel for the parties and have also gone through the record of the case carefully. 7. The entire case of the prosecution revolves around the circumstantial evidence and no direct evidence could be collected during, investigation by the Investigating Agency. The chain of circumstantial evidence should be so far complete as to leave no reasonable ground for a conclusion consistent with the innocence of the accused and must be such as to justify the conclusion that within all human probability the act must have been done by the accused and none else. In regard to the question of the effect and sufficiency of circumstantial evidence for the purpose of conviction, it is now settled law that before conviction based solely on such evidence as to be conclusive of the guilt of the accused and must be incapable of explanation on any hypothesis consistent with the innocence of the accused. We are conscious of the fact that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however, extravagant and fanciful it might be. Further, is not necessary that every one of the proved facts must in itself be decisive of the complicity of the accused or point conclusively to his guilt. While deciding the question of sufficiency, we are to consider what is the total cumulative effect of all the facts put forward by the prosecution in order to prove the guilt of the accused. The entire case has to be scrutinised in view of what has been observed by us above. While deciding the question of sufficiency, we are to consider what is the total cumulative effect of all the facts put forward by the prosecution in order to prove the guilt of the accused. The entire case has to be scrutinised in view of what has been observed by us above. In the instant case, accused has been convicted only on the basis of last seen theory and no other incriminating material have been collected by the prosecution during investigation except for the recovery of the dead body of the deceased. Moreover, 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 person coming in between exists. 8. In the present case, as per the statements of Ram Chander (PW-3), father of the deceased and Madan Lal (PW-4), brother of the deceased, Sunil and Suresh were friends and they are the residents of Basti Julahan, Sadar Bazar, Delhi. Suresh used to reside in House No.2201, while Sunil used to reside with his parents in House No. 2403. Ram Chander (PW-3), father of the deceased, disclosed that about one year and three months back, accused Suresh came at his house and had taken away Sunil on the pretext that they were going to Kharkhoda at the house of in-laws of Suresh. Mother of Sunil, namely, Laxmi was also present. She also saw going Suresh and Sunil together. A similar statement has also been made by Madan Lal, brother of the deceased, by disclosing that Suresh called Sunil and then accused took Sunil to Kharkhoda. Sunil had taken Rs.50/- from him while leaving the house and thereafter Sunil never returned to his house. His dead body was found lying in a well near Bus Stand of Kharkhoda. Ram Chander returned late at night. On the next day, he left to the place of his employment early in the morning, but even on the next day, Sunil did not return. He inquired from Suresh. His dead body was found lying in a well near Bus Stand of Kharkhoda. Ram Chander returned late at night. On the next day, he left to the place of his employment early in the morning, but even on the next day, Sunil did not return. He inquired from Suresh. Suresh told him that Sunil had departed at the Bus Stand of Kharkhoda. Then Ram Chander suspected some foul play because Suresh was not in a position to speak properly. Then Ram Chander and Laxmi went to Kharkhoda and inquired from father-in-law of Suresh, where Sunil had gone. Suresh was also found present there. They told him that Sunil had departed Suresh to Bus Stop Kharkhoda. They went in search of Sunil to Kharkhoda and they informed the police, whereupon, they learnt that Chander Bhan had already informed police that dead body of Sunil was lying in the well, which was taken out from the well and the same was taken to civil Hospital, Sonipat and on the basis of the report of the Forensic Science Laboratory, it was found that the death of Sunil had taken place by poisoning. On the basis of this evidence, the learned Sessions Judge concluded that this evidence of last seen given by Ram Chander and Madan Lal is sufficient to hold the accused guilty of the offence because accused had taken Sunil with him from his house and thereafter Sunil never returned home. 9. Now the question would arise whether this circumstantial evidence of last seen can be said to be inconsistent with the innocence of the appellant and on the basis of this circumstance that the deceased was seen alive in the company of the appellant and the recovery of the dead body, it can be held that the appellant was a party to the murder of the deceased? The circumstances that have been found established are that the deceased was last seen alive in the company of the appellant and that the dead body of the deceased was found in the well. 10. Before proceeding further, we would also like to observe that Durga Dass (PW-6) was examined, before whom accused is alleged to have suffered extra-judicial confession, but this witness did not support the prosecution case and was declared hostile and when cross-examined at length, nothing of importance could be elicited in favour of the prosecution. 10. Before proceeding further, we would also like to observe that Durga Dass (PW-6) was examined, before whom accused is alleged to have suffered extra-judicial confession, but this witness did not support the prosecution case and was declared hostile and when cross-examined at length, nothing of importance could be elicited in favour of the prosecution. Rather, he categorically deposed that it is incorrect to suggest that on 1.1.1997 accused had come to him and told him that he along with Sunil Kumar had taken liquor and he had administered poison in the peg of Sunil, which he consumed and he became unconscious and thereafter, he had thrown his dead body into a well. He also categorically deposed that he had confronted with his statement, Ex. PE, but no such statement was made by him to the police and nor he took the accused to the police station. In such like circumstances, the prosecution is left only with the last seen theory and the recovery of the dead body. Face with this situation, learned counsel appearing for the State further submitted that the medical evidence corroborates the prosecution case. The first corroboration, we must note, is only to the extent of cause of death, but it does not in any manner implicate the appellant. The only evidence relied upon by the prosecution is that the deceased was seen in the company of the appellant, but that by itself is not sufficient to bring the guilt to the accused and at the most, it may raise suspicion, which, however strong, cannot take the place of proof. The circumstance that the appellant was last seen in the company of the deceased can be accepted as proved but no inference can arise therefrom that the appellant had committed the murder. The appellant was known to the deceased and that they were working together and there was nothing unnatural in the appellant being in the company of the deceased. This fact may raise a cloud of suspicion, but nothing more. The circumstance of last seen by itself cannot bring home the guilt to the accused and moreover, the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded. The circumstance of last seen by itself cannot bring home the guilt to the accused and moreover, the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded. We would like to observe that in cases where the prosecution rests purely on circumstantial evidence, motive undoubtedly, plays an important part in order to tilt the scale against the accused. But in the present case, no motive has been provided by the prosecution. Rather, it is admitted by the father of the deceased when he stepped into the witness box as PW-3 that the accused had taken his son Sunil under the assurance that he shall manage marriage of his son. with his sister-in-law, but he was not agreeable to this proposal and had declined that offer. Meaning thereby that father of the deceased was opposing this marriage and the possibility of deceased having consumed poison on account of this and committed suicide, cannot be ruled out. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events, as would permit to conclusion other than the one of guilt of, the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The Court is required to avoid the risk mere moral conviction or a suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion, howsoever grave it may be, cannot take the place of proof. Hence, the circumstantial evidence in this case falls short of the required standard on all material particulars and in the final analysis, appeal is allowed. Appellant is acquitted of the charge by giving him the benefit of doubt. Conviction and sentence recorded by the learned Sessions Judge, is set aside. The result is unfortunate, but it cannot be helped. It is pity that murder is going unpunished ———————————