Judgment :- 1. This Criminal Appeal is filed against the judgment dated 15.11.2002 passed in S.C. No.64/2002 by the learned Principal District and Sessions Judge, Perambalur, convicting and sentencing the Appellant for the offence under Section 304(2) of I.P.C. to undergo three years’ Rigorous Imprisonment and to pay fine of Rs.1,000/-, in default to undergo months’ Rigorous Imprisonment. 2. The case of the Prosecution is as follows: a. PW.1-Kandasamy is the father of the deceased Palanivelu. There was a prior enmity between the Appellant/accused and the deceased with regard to some money transaction. On 27.2.2001 at 8.30 p.m. near Karambiam Water Tank the Appellant attacked the deceased with aruval on his left side hip. On receipt of information from one Kanakkan, PW.1 went to the place of occurrence and found the deceased with injuries and immediately admitted him in the Ariyalur Hospital and thereafter, in the Tanjore Government Hospital, where he died. b. PW.6-Doctor Ganesan attached to the Tanjore Government Hospital admitted the deceased in the said Hospital and prepared Ex.P6-Accident Register. PW.7-Doctor Vijayalakshmi conducted post mortem on the body of the deceased and opined in Ex.P8-Post-mortem Certificate that the deceased died due to the effects and complications of thoraco abdominal stab injury involving the diaphragm and stomach. c. PW.8-Sub-Inspector of Police attached to the Kunnam Police Station on receipt of information on 28.2.2001 went to the Tanjore Medical College and Hospital and recorded the statement of PW.1, since the deceased was not in good condition to speck about the occurrence and came to the Police Station and registered a case in Cr.86/2001 and prepared FIR-Ex.P9 and went to the place of occurrence and prepared Observation Mahazar-Ex.P10 and Rough Sketch-Ex.P11 and seized blood stained white stones-M.O.2, blood stained sand-M.O.3 and ordinary sand-M.O.4 under a mahazar-Ex.P12 in the presence of the witnesses Chinnsamy, Bakkiam, Kumari, Solaikannu, Sakundala, Kathiravan and Mohan and recorded the statement of those witnesses and since the deceased died, altered the case into one under Section 302 of I.P.C. and sent the express report Ex.P14 to the concerned Court and handed over the case file to PW.9-the Inspector of Police. d. PW.9 took up the case for further investigation and went to the place of occurrence and examined the witnesses Chinnasamy, Bakkiam, Kumari and Solaikannu, Sakundala, Chinnu @ Chinnasamy, Periasamy and recorded their statements and conducted inquest in the presence of the witnesses and panchayatdars and prepared Inquest Report Ex.P15 and sent a requisition for conducting post mortem through the Head Constable to the said Hospital and on 1.3.2001 at 4.15 p.m. arrested the accused near Ariyalur Railway Gate and on the confession statement given by the accused, sized the aruval-M.O.2 near a bush at Ponnery Water Tank under a mahazar-Ex.P3 in the presence of the witnesses and examined the Doctors who conducted post mortem and recorded their statements and sent a requisition-Ex.p17 for conducting chemical analysis and after completing investigation, filed a final report against the accused under Section 302 of I.P.C. 3. Thecase was taken on file in S.C. No.64/2002 on the file of the learned Principal District and Sessions Judge, Perambalur and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 9 witnesses (PW.1 to PW.9) and also relied on Exs.P1 to P21 and two material objects (M.Os.1 to 5). 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313, Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The Court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr. Arunkumar, the learned counsel for the appellant submitted that there is a material contradiction in the evidence of only witness PW.1 the father of the deceased, who is alleged to have seen the deceased going with the accused and even with regard to last seen theory projected by the prosecution, there is no clear and cogent evidence and none of the circumstances liking the accused with the crime has been proved by the prosecution. The learned counsel contended that when the prosecution relied upon the circumstantial evidence, as admittedly there is no eye witness to the occurrence, all the incriminating facts and circumstances have to be proved incompatible with the innocence of the accused. He placed reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Ramesh Bhai and another v. State of Rajasthan, 2009 Crl.L.J. 2991, wherein the Hon’ble Supreme Court held as follows: “It has been consistently laid down by this Court that 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 person. (See Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063 ; Eradu and Ors. V. State of Hyderabad, AIR 1956 SC 316 ; Earabhadrappa v. State of Karnataka, AIR 1983 SC 446 ; State of U.P. v. Sukhbasi and Ors., AIR 1985 SC 1224 ; Balwinder Singh v. State of Punjab, AIR 1987 SC 350 ; Ashok Kumar Chatterjee v. State of M.P., AIR 1989 SC 1890 . 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. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 , it was held down that where the case depends upon the conclusion drawn form circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.” 8. On the hand, the learned Additional Public Prosecutor for the Respondent supported the judgment of the trial Court placing reliance on the evidence of the Prosecution. 9. PW.2one Chinnu @ Chinnasamy, who is alleged to have seen the occurrence, turned hostile and no incriminating circumstance had been brought out in his cross examination done by the prosecution in support of the Prosecution theory. Even with regard to PW.3-Chinnasamy, he had only stated that he saw the deceased with injuries at a distance of 1/2 furlong from his hut and the deceased asked him to inform his relatives about his condition. Even with regard to PW.3-Chinnasamy, he had only stated that he saw the deceased with injuries at a distance of 1/2 furlong from his hut and the deceased asked him to inform his relatives about his condition. However, no incriminating circumstances or material has been brought out from the evidence of PW.2 and PW.3 and therefore, their evidence is of no avail to the prosecution. 10. The only witnesses available is that of PW.1 who, even according to prosecution, has not seen the occurrence. He had stated that his son left the house with two persons at 7.00 p.m. on the date of occurrence. It is seen from his evidence that the deceased told him that he was going to Kollakadu. But, the occurrence had occurred in Karambiam. According to PW.1, one Kanakkan came and told him that the deceased was lying in his thatched hut and immediately thereafter he and other family members went to the place of occurrence and found the deceased with injuries. He would state that the deceased told him that the accused had stabbed him. But, in his cross-examination, he admitted that the deceased did not tell him that he was stabbed in the Ponnerikarai as alleged by the Prosecution. 11. In the Complaint given by PW.1, it is not stated that the deceased went with the accused and another person as deposed by PW.1 before the court. As regards the oral declaration alleged to have been given by the accused to PW.1, a detailed account of what happened is stated in the FIR, which appears to be artificial and unbelievable. There is no corroboration of the said facts from the substantive evidence of PW.1 before the Court. At this juncture, it is pertinent to point that it is stated before the Doctor, Ariyalur Government Hospital that the deceased was stabbed by known persons, which is consistent with the evidence of PW.1 that two persons accompanied the deceased. So, it cannot be said with definite precision that it is the accused, who had taken the deceased to the place of occurrence and caused the injury as alleged by the prosecution. The testimony of PW.1 suffers from material contradiction and inconsistency and it does not establish any of the circumstances, in order to draw an inference with regard to the guilt of the accused. 12. The testimony of PW.1 suffers from material contradiction and inconsistency and it does not establish any of the circumstances, in order to draw an inference with regard to the guilt of the accused. 12. Apart from the above, there is an unexplained delay in the registration of the FIR. The occurrence had taken place on 27.02.2001 at about 8.30 p.m. The deceased had been taken to the Aranthagi Government Hospital at 2.30 a.m. on 28.02.2001 and had been referred to Tanjore Government Hospital at 4.05 a.m. itself. But, PW.8, the Sub-Inspector of Police, Kunnam Police Station has stated that he received information from Tanjore Government Hospital and went to the said hospital and received statement from PW.1 and registered the FIR at 16.30 hours i.e. 4.30 p.m. Even according to the prosecution, the deceased had been admitted in the Tanjore hospital at 4.05 hours i.e. early in the morning, but the FIR had been registered only at 4.30 p.m. in the evening. There is a delay of nearly 20 hours in lodging the Complaint. Ordinarily mere 20 hours delay cannot be a ground to reject the prosecution case, but coupled with other circumstances the aforesaid unexplained delay, causes a serious doubt with regard to the culpability of the accused with the crime. 13. It has been consistently laid down by the Honourable Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt is justified, only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. The circumstances, from which an inference as to the guilt of the accused to be 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 the circumstances. 14. In the case of C. Chenga Reddy and other v. State of A.P., 1996 (10) SCC 193 , it has been observed by the Honourable Supreme Court as follows: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence…” 15. In the case of State of U.P. v. Ashok Kumar Srivastave, 1992 Crl. L.J. 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 16. In this case, the last seen theory is not established, as PW.1 stated that the deceased went with the two accused persons and there is no evidence as to what happened in between the time when the deceased left and he was found injured by PW.3 near his thatched hut. In the absence of any positive evidence to prove that the accused and the deceased were last seen together, it will be hazardous to draw a conclusion of the guilt of the accused, based on the uncorroborative and inconsistent evidence of PW.1. 17. In such circumstances, when the prosecution has failed to prove the case beyond reasonable doubt, the conviction and sentence passed by the Trial Court cannot be sustained and the same is liable to be set aside. 18. Accordingly, the Appeal is allowed and the conviction and sentence passed by the learned Trial Judge on the appellant is set aside and the Appellant is acquitted of the charges levelled against him. It is seen from the records that the Appellant has been enlarged on bail by this Court and the bail bond if any executed by the Appellant shall stand terminated and the fine amount if any paid by the Appellant shall be refunded to him.