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Madhya Pradesh High Court · body

2009 DIGILAW 737 (MP)

SAMANDAR SINGH v. STATE OF M P

2009-06-26

A.K.SHRIVASTAVA, B.M.GUPTA

body2009
Judgment ( 1. ) THIS judgment shall also govern the disposal of State of m. P. v. Samander Singh Criminal Death Reference No. 1/2008, referred to this court by learned Trial Judge under Section 366 of the Code of Criminal Procedure, 1973 for confirmation of the death sentence passed against the appellant. ( 2. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 22. 11. 2008 passed by the learned First Additional Sessions Judge, Guna in Sessions trial No. 122/06, convicting the appellant under Sections 376 (2) (f) and 302 of IPC and thereby sentencing him to suffer Life Imprisonment and fine of Rs. 10,000 and in default of payment of fine to suffer further r. I. of two years and to suffer death sentence and fine of Rs. 10,000 respectively, this appeal has been preferred under Section 374 of the Code of Criminal Procedure, 1973. ( 3. ) IN brief, the case of the prosecution is that the deceased was the daughter of meharban Singh and Shantibai. On 7. 2. 2006, the deceased went to her field but did not return to her house in the village, as a result of which her mother Shantibai became worried and went to search the deceased at the field nearabout 4. 00 p. m. It is said that when she did not find her daughter in the field of her husband Meharban singh, she enquired from one Chandan singh, who informed that he had seen the appellant and acquitted co-accused Girraj with the deceased on the mound (Medh) of the Gajraj Singhs field in between 2. 00-2. 30 p. m. The field of deceaseds father meharban Singh is adjacent to the field of Chandan Singh. ( 4. ) IT is the further case of prosecution that Shantibai came back to home and informed her husband Meharban Singh as well as to the elder brother of Meharban singh namely Kailash and father-in-law baijnath about the missing of the deceased. Thereafter, Shivcharan, Kailash, Baijnath, bhoora and Meharban along with some other inhabitants of the village started searching the deceased but failed to find her on 7. 2. 2006. ( 5. ) IT is said that during the dawn hours of 8. 2. 2006, the dead body of the deceased was found in the field of one Gajraj Singh, where crop of mustered was standing. 2. 2006. ( 5. ) IT is said that during the dawn hours of 8. 2. 2006, the dead body of the deceased was found in the field of one Gajraj Singh, where crop of mustered was standing. It was also noticed that after tearing her skirt, she was strangulated with the help of a string of a cloth. Her neck and face were also found to be tied. Her underwear was smeared with blood. Meharban Singhs elder brother kailash went to Police Station Vijaypur, where he gave the information of the death of the deceased. A marg report bearing No. 2/2006 was written and an enquiry under section 174 of Cr. P. C. was conducted by town Inspector Hari Charan Sahu (since deceased ). A spot map was prepared and the dead body of the deceased was sent for postmortem to Primary Health Centre. Vijaypur, where Dr. S. C. Tantia performed the post-mortem on 8. 2. 2006 at 3. 10 p. m. with the help of a lady doctor Premlata arya, and opined that the deceased had died on account of asphyxia due to strangulation. After examining her private part, it was also opined by the doctors that before her death, she was raped. The team of doctors also opined that the death is homicidal in nature and duration of death is within 18-36 hours. ( 6. ) THE prosecution agency also recorded the statement of witnesses. After the investigation was over, a charge sheet was submitted under Sections 376, 302 and 201 of ipc against the appellant. Another accused girraj Singh, since found to be juvenile offender, was tried before the Juvenile justice Board. ( 7. ) THE learned Trial Judge on the basis of the allegations made in the charge-sheet framed charge punishable under Sections 302 in the alternative charge under Section 302/34 IPC was also framed. Other charges under Sections 376 (2) (f) in the alternative 376 (2) (g) and also under Section 201 of IPC were also framed against the appellant, which he denied and requested for the trial. ( 8. ) IN Order to prove the charges, prosecution examined as many as 16 witnesses and placed Ex. P1 to P43 the documents on record. The defence of the appellant is of false implication on account of enmity and the same defence he set forth in his statement recorded under Section 313 of Cr. ( 8. ) IN Order to prove the charges, prosecution examined as many as 16 witnesses and placed Ex. P1 to P43 the documents on record. The defence of the appellant is of false implication on account of enmity and the same defence he set forth in his statement recorded under Section 313 of Cr. P. C. However, in support of his defence, he did not choose to examine any witness. ( 9. ) BEFORE recording the evidence of the witnesses, since a plea was taken by the appellant that he is juvenile, an enquiry in this regard was conducted by recording the evidence. However, the appellant was not found to be juvenile as a result of which he was tried by learned Trial Judge. ( 10. ) THE learned Trial Judge on close scrutiny of the evidence and the documents placed on record came to hold that the prosecution has failed to prove the charge under Section 201 of IPC, as a result of which acquitted the appellant from the said charge, however, the learned Trial Judge found that there is overwhelming evidence against the appellant to prove charges punishable under Sections 302 and 376 (2) (f) of the IPC and eventually, he has been awarded death sentence for the offence punishable under Section 302 IPC and life imprisonment and fine of Rs. 1. 0,000 for the offence punishable under Section 376 (2) (f)of IPC. Since the capital punishment has been passed by the learned Trial Judge, to confirm the said sentence, the learned Trial judge has referred the matter to this Court under Section 366 of Cr. P. C. Simultaneously, the accused has also preferred this appeal feeling aggrieved by the impugned judgment of conviction and order of sentence. ( 11. ) IT has been argued by Shri Dwivedi, learned counsel for the appellant that in the present case there is no direct evidence against the appellant and the prosecution has based its case on circumstantial evidence and if that is the position, the prosecution is obliged to prove that the circumstances, from which an inference of guilt is to be gathered, must be cogently and firmly established. The circumstances should be of a definite tendency unerringly pointing out the guilt towards the appellant and the circumstances, if taken cumulatively, should form a complete chain and there should not be escape from the conclusion that within all human probability the crime was committed by the appellant and none else. Further, to sustain conviction, the circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence. It has also been putforth by the learned counsel that in the present case barring the feeble type of evidence of last seen, there is no other incriminating circumstances and evidence in order to connect the appellant with the alleged offence leaving behind all other hypothesis. ( 12. ) BY putting deep dent on the testimony of Chandan Singh (PW14), who is the sole witness of the factum of last seen, it has been argued that if his evidence is taken into consideration in its entirety with proper perspective, no prudent man would accept his evidence, particularly when in his cross examination he has stated that after the departure of the appellant and acquitted coaccused Girraj, the deceased was seen alive. In support of his contention, learned counsel has placed reliance on the decision of the supreme Court Vikramjit Singh v. State of punjab 2006 (2) CAR 1055 (SO ). and submitted that the learned trial Judge has erred in placing reliance on the testimony of this witness. ( 13. ) BY hammering on the hallmark of the evidence of Chandan Singh, it has been argued by learned counsel that the statement of this witness was not recorded under Section 161 of Cr. P. C. , he was also not cited as witness in the charge sheet and in the trial programme also, which was submitted by the Public Prosecutor before the learned trial Judge, his name did not find place and therefore his evidence cannot be placed reliance upon. In support of his contention, he has placed reliance on the decision of the supreme Court Ram Lakhan Singh v. State of U. P. 1977 CAR 221 (SC ). By inviting our attention to the application under Section 311 of Cr. P. C. dated 21. 3. In support of his contention, he has placed reliance on the decision of the supreme Court Ram Lakhan Singh v. State of U. P. 1977 CAR 221 (SC ). By inviting our attention to the application under Section 311 of Cr. P. C. dated 21. 3. 2007 filed by the prosecution before the learned Trial Court, it has been submitted that after allowing the said application, this witness Chandan Singh was examined. The contention of learned counsel is that in these facts and circumstances, his testimony is not having any credential value. ( 14. ) IT has also been putforth by the learned counsel that co-accused Girraj, since he was found to be juvenile, was tried by the Juvenile Justice Board and was acquitted from all the charges. The contention of the learned counsel is that in these state of affairs, present appellant cannot be convicted. In support of his contention, learned counsel has placed heavy reliance on the decision of Supreme Court Pohalya Motya valvi v. State of Maharashtra AIR 1979 SC 1949 . On the point of last seen, learned counsel has placed reliance on two decisions of the Supreme court, they are: State of Goa v. Sanjay thakran (2007) 2 SCC (Cri.) 162. and K. T. Palanisamy v. State of tamil Nadu (2008)1 SCC (Cri.) 627. On these premised submissions, it has been argued by learned counsel for the appellant that by allowing this appeal, the appellant be acquitted from all the charges. ( 15. ) COMBATING the aforesaid submissions of learned counsel for the appellant, it has been submitted by Shri Dixit, learned Public Prosecutor that the cross-examination of chandan Singh (PW14) was deferred for nearabout five months and thereafter it appears that this witness was win over and therefore he had deposed that the deceased was seen alive after the departure of the appellant and hence, in view of the decision of the Supreme Court Khujji v. State of M. P. AIR 1991 SC 1853 . and also in Raju v. State of M. P. 2001 (1) JLJ 379 . even if the witness has deposed in favour of the accused, neither the case of the prosecution is diluted nor the same is somersaulted. Learned Public Prosecutor has also invited our attention to the finding of the learned trial Court from paras 48 to 53 of the impugned judgment in this regard. ( 16. even if the witness has deposed in favour of the accused, neither the case of the prosecution is diluted nor the same is somersaulted. Learned Public Prosecutor has also invited our attention to the finding of the learned trial Court from paras 48 to 53 of the impugned judgment in this regard. ( 16. ) FURTHER, it has been contended by learned counsel for the State that learned trial Court did not err in placing reliance on the evidence of Chandan Singh as well as that of Meharban Singh, Shantibai and kailash and has rightly convicted the appellant. By inviting our attention to the finding from para 61 onwards of the judgment of the Trial Court, it has been contended by the learned Public Prosecutor that each and every circumstance has been considered by learned Court below and ultimately it has been held that the given case comes under the purview of rarest of rare case and in this view of the matter, the learned Trial Judge has rightly passed the death sentence, which may be confirmed by this Court. ( 17. ) SHRI Choubey, who is appearing for the accused in Criminal Death Reference, has borrowed the arguments of Shri dwivedi, learned counsel appearing for the appellant. ( 18. ) HAVING heard the learned counsel for the parties, we are of the view that this appeal deserves to be allowed. ( 19. ) IN the present case, the entire case of the prosecution runs around the statements of four main witnesses, they are: Chandan singh (PW14), Shantibai (PW10), Meharban singh (PW9) and Kailash (PW4 ). Meharban singh and Shantibai are the father and mother of the deceased while Chandan singh and Kailash are her uncles. According to Shantibai (PW10), her deceased daughter had gone to the field at 11. 00 a. m. and to provide meals to her, this witness went to the field at 4. 00 p. m. , but she did not find the deceased there, however, she met to Chandan Singh, who told that acquitted co-accused Girraj and appellant were standing in their respective fields, which are adjacent to each other and the deceased was standing in the field of gram further, she has deposed that her field and the field of Chandan Singh are adjacent to each other and there is only one mound (Medh) in between the two fields. Thereafter, this witness after enquiring about her daughter, came back to her home and told her jeth (husbands elder brother) Kailash and father-in-law Baijnath as well as to her husband about the factum of missing of the deceased. Thereafter Shivcharan, Kailash, baijnath, Bhoora and other persons went to search the deceased and they searched her whole of the night and ultimately, when the deceased was not found, they came back to home at 4. 00 a. m. On the next day, in between 8-9 in the morning, in the field of gajraj Singh, the dead body of the deceased was found. According to this witness, her daughter (deceased) was a child of 7 years. The factum of lying of the dead body of the deceased in the field of Gajraj Singh was told by her husband to her and it was also told that the deceased was strangulated. Thereafter, Kailash went to the police station to lodge the report. ( 20. ) IN her cross-examination, Shantibai has admitted in para 4 that the filed of gajraj, where the dead body was found, is adjacent to her field. This witness was throughout present in the village but her case diary statement was recorded after 67 days of the incident. In para 5 of her crossexamination, the statement, which this witness is deposing, is a turning point of the case. According to this witness, after the incident had taken place, the police carried chandan Singh and he was confined in Police Station in the lock-up for 2-3 days. By clarifying her statement, this witness further says that on the same day, when the dead body was found, the police personnel carried Chandan and after 2-3 days he was released from the police station and later on the statement of Chandan was recorded by the police. On close scrutiny of the testimony of this witness, we find that nowhere chandan Singh informed this witness that he saw deceased along with the appellant. On the other hand, it is borne out that how the incriminating circumstances have been developed in the case against the appellant, as Chandan Singh was confined in the lock up of Police Station for 2-3 days and later on his statement was recorded. ( 21. ) MEHARBAN Singh (PW 9), who is the father of the deceased, has stated that at 3. ( 21. ) MEHARBAN Singh (PW 9), who is the father of the deceased, has stated that at 3. 00 p. m. , his wife (mother of the deceased)went to the field, where she met to Chandan singh and on being enquired from Chandan singh about the deceased, he told that the deceased came to the field at 12. 00 in the afternoon and after drinking the water, she went to her field. Further, this witness has stated that his wife also told that Chandan singh informed her that appellant and acquitted co-accused Girraj also arrived at the field. She also told that appellant and acquitted co-accused Girraj were standing nearby the deceased and this fact was told by Shantibai on the next day in the morning, but, later on, he says that on the same day in the evening after the sun set this fact was told by Shantibai to him. However, on close scanning of the evidence of Shantibai, we find that all these facts have not been so stated by her. Nowhere Shantibai (PW10)has said that Chandan told that deceased was standing along with appellant and acquitted co-accused Girraj. In the testimony of Shantibai, only this much has come that chandan Singh told her that acquitted coaccused Girraj and appellant were present in their fields and the deceased was in her field. Thus, this witness is deposing those facts, which were never told by his wife shantibai to him, since all these facts have not been so deposed by Shantibai in her testimony, according to us the evidence of meharban Singh is not reliable. ( 22. ) MEHARBAN Singh in para 5 of his cross examination has admitted that the factum of seeing the deceased last in the company of appellant and acquitted co-accused Girraj was not stated by him in his case diary statement. In his examination-in-chief, in para 4, this witness is saying that on the next day when the dead body was found in the field, Banwarilal and acquitted co-accused girraj were standing there and they flee away from that place on seeing this witness. He also says that appellant also ran away on seeing him but in the cross examination para 7, he has admitted that for the first time, he is narrating this fact in the court and he did not say this fact to the police in his case diary statement. He also says that appellant also ran away on seeing him but in the cross examination para 7, he has admitted that for the first time, he is narrating this fact in the court and he did not say this fact to the police in his case diary statement. Hence, according to us, there is material improvement in the evidence of this witness. ( 23. ) ANOTHER witness is Kailash (PW4 ). This witness is also the author of Marg intimation report (Ex. P5) dated 8. 2. 2006. This witness is also the uncle of the deceased. According to this witness, the deceased went to her field at 11. 00 in the morning. Thereafter, at 4. 00 p. m. mother of the deceased went to the field but she came back and told that the deceased is missing and is not found by her in the field. Thereafter this witness, his younger brother Meharban (father of the deceased) Shivcharan, father of this witness baijnath Singh and other inhabitants of the locality went to search the deceased, however they were unable to find her, as such all of them came back in the late night at 2. 00. Again at 5. 00 in the morning, these persons went to search the deceased and ultimately her dead body was found in the field of Gajraj Singh. The neck of the deceased was found to be strangulated by her skirt and her underwear was not on her body. Thereafter, this witness went to lodge the report. On scanning the entire testimony of this witness, we do not find any whisper in his evidence, that Chandan Singh told the mother of the deceased that the deceased was seen last in the company of the appellant as well as acquitted co-accused girraj, although there is some whisper in this regard in the testimony of Shantibai. Kailash (PW4) has also proved his Marg intimation report (Ex. P5) but in the said report this fact that Chandan Singh told shantibai about the factum of last seen, did not find place. ( 24. ) IF we read the evidence of these four witnesses conjointly, we find and it can be inferred that if Chandan Singh told shantibai that the deceased was seen last in the company of appellant and acquitted co-accused Girraj, why this important material fact has not been stated in the Marg intimation report (Ex. ( 24. ) IF we read the evidence of these four witnesses conjointly, we find and it can be inferred that if Chandan Singh told shantibai that the deceased was seen last in the company of appellant and acquitted co-accused Girraj, why this important material fact has not been stated in the Marg intimation report (Ex. P5), which was lodged by Kailash (PW4) and therefore an inference can be drawn that Chandan Singh did not tell about the factum of last seen to Shantibai. ( 25. ) WE shall now examine the testimony of key witness Chandan Singh (PW14 ). Before we examine the evidence of this witness, we would like to deal the submissions of Shri Dwivedi, learned counsel for the appellant that since the statement of this witness was not recorded under Section 161 of Cr. P. C. by the Investigating Agency and also because his name did not find place in the column of the charge sheet, where the names of the witnesses are written, therefore, no reliance can be placed upon the evidence of this witness. On going through the record, we find that after allowing the application under Section 311 Cr. P. C. by the prosecution, this witness was examined. Learned counsel for the appellant did not dispute that the statement of Chandan singh was recorded during Marg investigation on the basis of Marg intimation report (Ex. P5) lodged by Kailash (PW4 ). Thus, accord ing to us, this witness is not a total stranger. The decision of Supreme Court in ram Lakhan Singh (supra) holding that if the witness was not examined by the police nor he was cited in the charge sheet, his evidence should not be placed reliance, is not applicable in the present factual scenario, because in the said decision, the statement of witness was not recorded during the marg investigation. But in the present case the statement of this witness was recorded during the Marg investigation and therefore the decision of Ram Lakhan Singh (supra) is not applicable in the facts and circumstances of the case. However, what should be the credential value of the evidence of this witness, is altogether different aspect of the matter, which we shall deal hereinafter. ( 26. ) THE examination-in-chief of this witness was recorded on 10. 4. 2008 however, defence counsel put his inability to crossexamine this witness on that day. However, what should be the credential value of the evidence of this witness, is altogether different aspect of the matter, which we shall deal hereinafter. ( 26. ) THE examination-in-chief of this witness was recorded on 10. 4. 2008 however, defence counsel put his inability to crossexamine this witness on that day. An application was filed that he wants to get the case transferred to some other court and for this, he is moving suitable application, as a result of which the cross-examination of this witness was deferred. After the lapse of four months, the cross-examination of this witness was started. In the examination-in-chief, which was recorded on 10. 4. 2008, this witness has stated that deceased was present in her field and nearabout at 2. 30 p. m. the appellant and acquitted co-accused girraj arrived and went towards the field of the deceased. Further, he has stated that appellant, acquitted co-accused Girraj and the deceased were standing on the mound (Medh) of the field of Girraj. At 4. 00 p. m. , the mother of the deceased also went to her field, but she came back from her field, and enquired from this witness about the deceased. This witness told the mother of the deceased that deceased was in her field and he saw her at 2. 30 p. m. But, when this witness was cross-examined after four months on 12. 8. 2008, he somersaulted his earlier version and deposed that appellant and acquitted co-accused Girraj came to his field in between 2-2. 30 p. m. and after drinking the water, they went towards the field of girraj. Thereafter, both of them came together and again after drinking the water they went towards the village. Further, he has stated that after the departure of the appellant and acquitted co-accused at 4. 00 p. m. , deceased came and after drinking water she went away and this fact was told by him to the mother of the deceased. ( 27. ) LEARNED counsel for the appellant placed heavy reliance on the decision of the supreme Court in Vikramjit Singh (supra)and by putting emphasis on para 7 and 21 of the said decision, submitted that in view of the statement carved out in the cross-examination giving a complete go bye to what had been stated in the examination-in-chief, it is not possible to rely even upon a part of their statements. The contention of learned counsel is that in the case of Vikramjeet singh (supra) also examination-in-chief took place on 15. 4. 2003 and the cross-examination was held on, 16. 9. 2003, in which the witness was declared hostile and therefore by placing reliance on this decision, it has been argued that since Chandan Singh (PW14) has admitted in para 3 of his cross-examination that after the departure of the appellant, the deceased was seen alive, therefore appellant should be held to be innocent. According to us, the earlier decision of the Supreme Court on this point in Khujji (supra) was not taken note of in this later decision. The decision of Khujji (supra) is of three judge Bench decision while the decision of Vikramjit Singh (supra) is of two judge Bench decision. In State of U. P. v. Ram Chandra AIR 1976 SC 2547 . it has been held by the supreme Court that in cases where a High court finds any conflict between the views expressed by larger and smaller benches of the Supreme Court, the proper course for such High Court is to follow the opinion expressed by larger bench of the Supreme court in preference to those expressed by smaller bench of the Court. The Special bench (Five Judge Bench) of this court in jabalpur Bus Operator Association and others v. State of M. P. and others 2003 (1) JLJ 105 . has also placed reliance on the decision of Supreme court Ram Chandra (supra ). The Special bench of this Court in the abovesaid case has held that in case of conflict between two decisions of the Apex Court, benches comprising of equal number of Judges, decision of earlier bench is binding unless explained by the latter bench of equal strength, and in that case, the later decision would be binding. In the decision of Vikramjit Singh (supra), the earlier view of Khujji (supra)has not been taken note of and the decision of Khujji (supra) has also not been explained. Further, the decision of Vikramjit singh (supra) is of two Judge bench decision, while the decision of Khujji (supra) is of three Judge bench decision and thus according to us, the decision of Vikramjit singh (supra) is not at all helpful to the appellant. ( 28. Further, the decision of Vikramjit singh (supra) is of two Judge bench decision, while the decision of Khujji (supra) is of three Judge bench decision and thus according to us, the decision of Vikramjit singh (supra) is not at all helpful to the appellant. ( 28. ) HOWEVER, on close scrutiny of the testimony of Chandan Singh (PW14) we find that his evidence is very feeble on the point of last seen of the deceased in the company of appellant. According to this witness, nearabout at 2. 30 p. m. appellant and acquitted co-accused Girraj were going towards the field of deceased. Later on, these three persons were found standing on the mound (Medh) of the field of Girraj Singh. In para 2 of his examination-in-chief, this witness is saying that he informed Shantibai that he saw the deceased at 2. 30 p. m. in her field and thereafter this witness came back to his house. According to us, this type of evidence cannot be included under the ambit and sweep of the evidence of last seen. Nowhere this witness has stated that the appellant later on came back alone, on the contrary by changing the version in para 2 of his examination-in- chief, he is saying that at 2. 30 p. m. the deceased was seen in her field and therefore from the examination-in-chief itself, it is difficult to hold that the deceased was seen alive last in the company of the appellant. ( 29. ) ONE important fact, which cannot be marginalized and blinked away is that according to Chandan Singh, at 4. 00 p. m. when mother of the deceased went to her field and came back and enquired about the deceased from this witness, he told that the deceased was in her field and he saw her at 2. 30 p. m. Nowhere he has stated that the deceased was seen in the company of appellant in the field. Even for the sake of argument, if it is held that the deceased was seen alive along with the appellant and this was so stated by this witness to the mother of the deceased, why the mother of the deceased did not go and search the deceased in the field of Gajraj Singh. On going through the spot map (Ex. Even for the sake of argument, if it is held that the deceased was seen alive along with the appellant and this was so stated by this witness to the mother of the deceased, why the mother of the deceased did not go and search the deceased in the field of Gajraj Singh. On going through the spot map (Ex. P18), which has been prepared by the Senior Scientific Officer, F. S. L. , S. P. Office Guna, we find that the field of Gajraj Singh, where the dead body of the deceased was lying, is adjacent to the field of the deceased and her parents and if Chandan Singh would have said to the mother of the deceased that he saw the appellant and the deceased standing on the mound (Medh) of the field of Gajraj Singh, it is not humanly possible that the mother of the deceased would not have gone to search the deceased in the field of Gajraj, which is adjoining to her own field. At this juncture, we may also again go back and marshal the evidence of Meharban Singh, shantibai and Kailash that all of them searched the deceased throughout the night. If the factum of seeing the deceased alive along with the appellant on the mound (Medh) of the field of Gajraj was told by chandan Singh to Shantibai, certainly the male members namely; Meharban Singh, kailash etc. would have also searched the deceased in the field of Gajraj Singh. There is no iota of evidence that they ever searched the field of Gajraj Singh, which is adjoining to the field of complainant party and therefore it is difficult to hold that in between 2. 30 and 4. 00 p. m. the deceased was firstly raped and thereafter she was murdered by the appellant. ( 30. ) THE Supreme Court in K. T. Palanisamy (supra), in para 21 has held that it is difficult to hold that a judgment of conviction can be founded on the sole circumstances of the deceased having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses. In the present case also when the appellant was seen last along with the deceased, the family members of the deceased did not suspect the appellant in any manner whatsoever. In the present case also when the appellant was seen last along with the deceased, the family members of the deceased did not suspect the appellant in any manner whatsoever. They did not even go to the place of occurrence despite the fact that the deceased was missing. The Supreme Court in para 22 further held that the fact that the deceased was last seen with the appellant should have been specifically disclosed in the first information report. In the present case also when it was already disclosed by Shantibai to the male members of her family that the deceased was seen last in the company of the appellant, as told by Chandan Singh, why this fact was not stated in the Marg intimation report (Ex. P5), there is no explanation. ( 31. ) IN another decision of Sanjay thakran (supra), the Supreme Court has held that time gap between the last seen of the deceased along with the accused and the time when the dead body was found is having great significance. In the present case, as per the statement of Chandan Singh, the appellant and the deceased were seen last standing on the mound (Medh) of the field of Gajraj Singh on 7. 2. 2006 at 2. 30 p. m. and the dead body of the deceased was found in the field of Gajraj in the morning of 8. 2. 2006. There is no evidence led by the prosecution in order to prove the fact that there was no possibility of any other person approaching the deceased in the field, which is open to free access during the intervening period, when the appellant was seen last with the deceased and when the crime was detected. In these state of affairs, even if we hold that the deceased was seen last along with the appellant, looking to the time gap, it cannot clinchingly fasten the guilt on the appellant. The decision of Sanjay Thakran (supra) of the Apex Court is squarely applicable in the present case. ( 32. ) THE present case rests on circumstantial evidence only. What type of evidence should have been adduced when the case rests on circumstantial evidence is now well settled and the principles have been enumerated in several decisions. The decision of Sanjay Thakran (supra) of the Apex Court is squarely applicable in the present case. ( 32. ) THE present case rests on circumstantial evidence only. What type of evidence should have been adduced when the case rests on circumstantial evidence is now well settled and the principles have been enumerated in several decisions. In Sanjay thakran (supra), again the same tests have been enumerated, which reads as under: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ( 33. ) WE may further add that in the present case where the prosecution has based its case on circumstantial evidence, there is likelihood that conjectures and surmises may take place of legal proof and therefore the court should be cautioned and should not allow the conjectures and surmises to take place of legal proof. This has been so warned by Baron Alderson to the jury in Reg v. Hodge (1838) 2 Lewin 227. which has been placed reliance by the Supreme Court in hanumant Govind Nargundkar and another v. State of Madhya Pradesh AIR 1952 SC 343 . Thus, the flimsy evidence of Chandan Singh of last seen, according to us, should not and cannot take place of legal proof. ( 34. ) TRUE, on going through the evidence of autopsy surgeon, there is evidence that the deceased was firstly brutally raped and thereafter she was mercilessly killed, but the question still hinges that who has committed said heinous crime. Merely on the basis of the conjectures and surmises and on the basis of flimsy type of evidence against the appellant, it cannot be said that he had committed the said offence. ( 35. ) RESULTANTLY, this appeal succeeds and is hereby allowed. Merely on the basis of the conjectures and surmises and on the basis of flimsy type of evidence against the appellant, it cannot be said that he had committed the said offence. ( 35. ) RESULTANTLY, this appeal succeeds and is hereby allowed. The judgment of conviction and sentence passed by the learned trial Court hereby set aside and the appellant is acquitted from all the charges. The criminal Death Reference No. 1/08 is also accordingly disposed of. The appellant is in jail, he be set at liberty forthwith if not required in any other case. Fine amount, if deposited, be refunded to him. Appeal allowed. Death reference rejected.