Judgment Rajiv Sharma, J. This appeal is instituted against the judgment dated 31.5.2010 rendered by the Sessions Judge, Shimla in Sessions Trial No. 19-S/7 of 2009 whereby the appellant-accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offence punishable under section 302 and 376 of the Indian Penal Code, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/- and in default of payment of fine he was further directed to undergo simple imprisonment for a period of four years for offence under section 302 of the Indian Penal Code. However, he was acquitted of the charge for commission of alleged offence under section 376 of the Indian Penal Code. 2. Case of the prosecution, in a nutshell, is that Smt. Janki Devi wife of Sahi Ram, resident of village Bhot Gadog, Post Office Chambi, Tehsil Chopal, District Shimla on 11.9.2008 went to the house of her daughter Asha, resident of village Saran, but did not come back till 17.9.2008. When on 17.9.2008, PW-1 Prem Singh, her son telephonically inquired from his sister PW-2 Asha Devi why they have not sent his mother, PW-2 Asha Devi disclosed that their mother has already returned home on 13.9.2008. He told his sister that his mother has not come back. He asked his brother-in-law Suresh to search for his mother towards Thundal side. He alongwith Vikram alias Vicku, Surat Singh and Raju proceeded to village Bhuni in search of Janki Devi. At about 11 – 11.30 P.M., they reached near the house of one Mohan Singh of village Bhuni. They called him. Mohan Singh and his wife Vidya Devi came out. He asked Mohan Singh whether he has seen his mother passing from there. Vidya Devi wife of Mohan Singh told that on 13.9.2008, i.e. on Saturday at about 4 – 4.30 P.M., she had seen his mother proceedings towards his house. Accused followed and accompanied her and was talking with her. PW-1 Prem Singh alongwith others came back. On the following morning, i.e. 18.9.2008, several persons, including Suresh, Raju, Surinder and Vikram alias Vicku proceeded towards Bhuni Forest in search of Janki Devi. At about 9 – 9.30 A.M., dead body of his mother was found lying over a big stone at a distance of 60 meters down from the path in Bhuni Forest. On the following morning, i.e. 18.9.2008, several persons, including Suresh, Raju, Surinder and Vikram alias Vicku proceeded towards Bhuni Forest in search of Janki Devi. At about 9 – 9.30 A.M., dead body of his mother was found lying over a big stone at a distance of 60 meters down from the path in Bhuni Forest. They disclosed Dhani Ram about the same. Dhani Ram informed the police. Police reached the spot. It was raining heavily. Police visited the spot in the morning. Police took photographs of the dead body and spot Ex.PW-1/A-1 to Ex.PW-1/A-11. No injury was visible on her dead body. However, string of the salwar was loose. Police prepared inquest papers. Statement of PW-1 Prem Singh under section 154 of the Code of Criminal Procedure was recorded vide Ex.PW-1/E. FIR was registered on the basis of Ex.PW-1/E. Dead body was removed from the spot. Dead body was kept in the mortuary on 20.8.2008. Post-mortem examination upon the dead body was conducted in Indira Gandhi Medical College, Shimla by PW-22 Dr. Peeyush Kapila and other doctors. Since PW-1 Prem Singh has suspected the accused, police was searching for him. PW-20 Sapinder Singh received a telephonic message from Basti Ram resident of Jhalu Moad that the accused has been apprehended by him and Geeta Ram etc. and has been detained there. He alongwith PW-17 Ratti Ram proceeded to Jhalu Moad and reached in the house of Geeta Ram at 7.30 A.M. Accused was found detained there by Basti Ram, Geeta Ram, Prem Singh and Laiq Ram. PW-20 Sapinder Singh arrested the accused. Spot map was prepared. Report of DNA was also received vide Ex.PW- 21/E. Investigation was completed and the challan was put up in the Court after completing all the codal formalities. 3. Prosecution examined as many as 22 witnesses in all to prove its case against the accused. Statement of the accused under section 313 of the Code of Criminal Procedure was also recorded. Accused has taken up the defence of complete denial. According to him, he has been falsely implicated. Learned trial court convicted and sentenced the accused, as noticed hereinabove. Hence, the present appeal. 4. Ms. Archana Dutt has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment passed by the learned Sessions Judge, Shimla. 6. Learned trial court convicted and sentenced the accused, as noticed hereinabove. Hence, the present appeal. 4. Ms. Archana Dutt has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment passed by the learned Sessions Judge, Shimla. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. PW-1 Prem Singh has deposed that his sister Asha was married with Suresh resident of village Saran. On 11.9.2008, his mother Janki Devi went to the house of his sister. His mother did not return till 17.9.2008. He on 17.9.2008 telephoned his sister Asha and asked her why they were not sending his mother back. His sister Asha disclosed that their mother has already returned home on 13.9.2008. He asked his brother-in-law Suresh to search for his mother towards Dhundal side and disclosed to him that they were also proceeding for her search. He alongwith Vikram alias Vicku, Raju and Surat Singh proceeded to village Bhuni in search of his mother. They reached near the house of Mohan Singh at about 11 – 11.30 P.M. They called Mohan Singh. Mohan Singh and Vidya Devi came out. He asked Mohan Singh whether he has seen his mother passing from there. Vidya Devi wife of Mohan Singh disclosed that on Saturday, i.e. 13.9.2008 at about 4 – 4.30 P.M., she has seen his mother going towards her house. She has also disclosed that accused was accompanying her. On the following morning several persons about 30-35, including Suresh, Raju, Surinder and Vikram alias Vicku proceeded towards Bhuni forest in search of his mother. At about 9 – 9.30 A.M., dead body of his mother was found lying over a big stone at a distance of about 60 meters from the path in Bhuni forest. They informed Dhani Ram. Dhani Ram informed the police. The dead body was checked by the police in his presence. No injury was visible on her body. The string of the salwar was loose. The police prepared the inquest papers Ex.PW-1/B-1, Ex.PW-1/B-2 and Ex.PW-1/B-3. In his cross-examination, he has deposed that village Saran was at a distance of about 4-6 kilometers from their village. Only one path leads to village Saran from their village. In between their village and village Saran, two villages, namely, Bhuni and Thundal fall. The police prepared the inquest papers Ex.PW-1/B-1, Ex.PW-1/B-2 and Ex.PW-1/B-3. In his cross-examination, he has deposed that village Saran was at a distance of about 4-6 kilometers from their village. Only one path leads to village Saran from their village. In between their village and village Saran, two villages, namely, Bhuni and Thundal fall. His statement was recorded by the police on 19.9.2008. He came to know for the first time on 18.9.2008 at about 9 – 9.30 A.M. that dead body of his mother was lying on the spot. Somebody had disclosed by calling him at his home that dead body of his mother was lying in the jungle. He has admitted that the dead body was intact. They did not notice any injury on the dead body. Hira Singh is the brother of Jhukroo Ram. Sohan Singh and Mohan Singh are the sons of Hira Singh. He has also admitted that in Bhuni jungle, people used to graze goats and bring grass and leaves. 8. PW-2 Asha has deposed that she received a telephone call from his brother PW-1 Prem Singh, who asked her to send their mother to home. She disclosed that her mother has returned home on 13.9.2008. 9. PW-3 Dhani Ram has deposed that on 18.9.2008 at about 10.00 A.M. he received a telephonic message on his mobile from Prem Singh and Beli Ram of village Bhot disclosing that the dead body of Janki Devi was lying near Gadogh Nullah in Bhuni forest. He went to the spot. He telephonically informed the police of Police Station, Chopal. According to him also, no visible injury was noticed by them on the dead body. Police prepared inquest papers. In his cross-examination, he has admitted that villagers used to collect grass from the jungle. 10. PW-4 Vidya Devi has testified that Hira Singh is her father-in-law. Hira Singh and Jhunkru Ram were real brother. She is daughter-in-law of Hira Singh. She has further stated that on 17.9.2008 at about 10.30 – 11.00 P.M, somebody called her husband. She found that PW-1 Prem Singh, Vicku, Raju and one another person were standing outside. PW-1 Prem Singh asked her husband Mohan Singh whether he has seen his mother Janki Devi. Her husband stated that he has not seen his mother. She has further stated that on 17.9.2008 at about 10.30 – 11.00 P.M, somebody called her husband. She found that PW-1 Prem Singh, Vicku, Raju and one another person were standing outside. PW-1 Prem Singh asked her husband Mohan Singh whether he has seen his mother Janki Devi. Her husband stated that he has not seen his mother. However, she disclosed that she has seen his mother Janki Devi on 13.9.2008 in the evening at about 4.30 P.M. proceeding towards her house through the path. She was accompanied by the accused. In her crossexamination, she has admitted that their family was not on talking terms with the family of Jhunkru. She did not know the reason. He has seen both the families not in visiting terms since her marriage. There were about 10-12 houses in their village Bhuni. She was grazing the cattle. When she saw Janki Devi and accused together proceeding on the path, she was proceeding to bring grass. She went to bring grass from her fields from the opposite direction. 11. PW-5 Sohan Singh has testified that on 13.9.2008, he was working in his fields and was cutting grass. At about 11 – 11.30 A.M. accused came to him. He was carrying plastic bottle of liquor with him. One peg was consumed by accused and he provided one peg to him. They took the liquor without water directly from the bottle. Accused demanded Rs. 50/- from him. He showed his inability. In the evening, at about 4 – 4.30 P.M. he saw him going with Janki Devi on the path towards village Bhot. They were talking with each other. At about 5.00 P.M., he went to his Dogri, which was at a distance of about one kilometer from his house. At about 6.00 P.M. he was present at his Dogri, accused was coming upwards through the path towards his house. He was coming from the side of Gadhog khad, which was below the Bhuni forest. In his cross-examination, he has deposed that Mohan Singh was his brother. PW-4 Vidya Devi is the wife of his brother Mohan Singh. He has admitted that verandah of his house and the house of Mohan Singh is common. He has also admitted that he was not on talking terms with accused. 12. In his cross-examination, he has deposed that Mohan Singh was his brother. PW-4 Vidya Devi is the wife of his brother Mohan Singh. He has admitted that verandah of his house and the house of Mohan Singh is common. He has also admitted that he was not on talking terms with accused. 12. PW-6 Prem Singh has deposed that on 24.3.2009, he was taking peas on mule in a gunny bag to Koti Padhog road. At 10.00 P.M., he noticed that somebody had urinated on the road. It was fresh. He did not notice any body. He was carrying torch with him. When he proceeded 10-15 meters, accused was seen hiding in the bushes with the help of torch. He went to him and asked as to why he was sitting there. He disclosed that he has absconded after committing murder of Janki Devi and police was searching for him. Accused disclosed that he has to go to village Thundal and by selling a field he has to arrange for money to get himself bailed out. He took him to the house of Gita Ram. Gita Ram also inquired from the accused. Accused disclosed that he has committed murder of Janki Devi. 13. PW-7 Gita Ram has deposed that at about 11.30 P.M., PW-6 Prem Singh called him. PW-6 Prem Singh and accused were there alongwith two mules. He recognized the accused. He asked accused why he was absconding. He took him to his house. He gave him food and liquor. Thereafter, he took him to a room in the ground floor of his house. He asked accused why he was absconding. Accused disclosed that he has committed rape upon Janki Devi when Janki Devi threatened him to report the matter, he committed her murder. He offered him Rs. 300/- and a wrist watch. He refused to accept the same. He informed the police. A boy of their village Bir Singh was serving in the police department and posted at Solan. His mobile number was available with him. He telephoned to Bir Singh and disclosed him about the incident. Bir Singh assured him to intimate Police Station, Chopal. He received a telephone from Police Station, Chopal. The police asked him not to leave the accused. His mobile number was available with him. He telephoned to Bir Singh and disclosed him about the incident. Bir Singh assured him to intimate Police Station, Chopal. He received a telephone from Police Station, Chopal. The police asked him not to leave the accused. In his cross-examination, he has deposed that he has made the statement to the police that firstly he telephoned to Police Station, Theog and thereafter to Bir Singh, who in turn intimated the police of Police Station, Chopal. Thereafter, he received telephone from police of Police Station, Chopal. He was confronted with the previous statement mark ‘A’, in which it was not so recorded. He has told that the accused offered him Rs. 300/- and a wrist watch and asked to leave him. He was again confronted with statement mark ‘A’ wherein it was not so recorded. He has disclosed to the police that during night once accused tried to break the iron affixed to the window and tried to flee away. He was confronted with his statement mark ‘A’ wherein it was not so recorded. 14. PW-8 Satya Devi has deposed that the dead body of Janki Devi was found near Bhuni Nullah in the Jungle on 18.9.2008. On the following day, i.e. 19.9.2008, she visited the spot alongwith Masto Devi, other villagers and police. They checked the dead body of Janki Devi. On search, no injury was found on the dead body of Janki Devi. The string of salwar was open. 15. PW-9 Laiq Ram has deposed that he was associated by the police during investigation. Accused was in the custody of the police. They went to the house of accused. Accused was taken to Bhuni Nullah. Police asked the accused as to what he has done. Accused disclosed that he has committed murder of Janki Devi. Memo Ex.PW-9/A was prepared on the spot. 16. PW-10 Mohan Lal has prepared the spot map Ex.PW-10/A. 17. Statement of PW-11 Dr. A. Banerjee is formal in nature. 18. PW-12 Dr. Dev Dutt has examined the accused. He issued MLC Ex.PW-12/B. 19. PW-13 Ajay Sehgal has submitted the report Ex.PW-13/A. 20. Statements of PW-14 Rakesh Chandel, PW-15 Ganga Ram, PW-16 Laiq Ram, PW-17 Ratti Ram, PW-18 Pritam Singh and PW-19 Yog Raj are formal in nature. 21. Statement of PW-11 Dr. A. Banerjee is formal in nature. 18. PW-12 Dr. Dev Dutt has examined the accused. He issued MLC Ex.PW-12/B. 19. PW-13 Ajay Sehgal has submitted the report Ex.PW-13/A. 20. Statements of PW-14 Rakesh Chandel, PW-15 Ganga Ram, PW-16 Laiq Ram, PW-17 Ratti Ram, PW-18 Pritam Singh and PW-19 Yog Raj are formal in nature. 21. PW-20 Sapinder Singh has deposed that at about 12 – 12.30 A.M. on the intervening night of 24/25.3.2009, he received a telephonic message from Basti Ram, resident of Jhalu Moad that accused has been apprehended by him and Gita Ram. He alongwith constable Ratti Ram and HHC Dimple proceeded towards spot. Accused was apprehended. He was taken to Police Station, Chopal. He was got medically examined. Basti Ram has not disclosed the name of his father nor he inquired the name of his father. The house of Gita Ram was at some distance below the road about ½ KM. He had asked from Basti Ram about the location of the house of Gita Ram when he received telephone. He did not inform the police of Police Station, Theog regarding his visit to the house of Gita Ram. He has not recorded the statements of Basti Ram, Sahi Ram and Laiq Ram. 22. PW-21 Bhim Singh has deposed that he received information on mobile from Police Station, Chopal that dead body of Janki Devi wife of Sahi Ram was lying near Godak Nullah in Jungle Bhuni. He alongwith ASI Sunder Singh and Constable Ratti Ram proceeded to the spot at Gadok Nullah in Bhuni Jungle and reached there at about 8.00 P.M. He took photographs of the dead body. He prepared inquest report. He recorded statement of Prem Singh under section 154 Cr.P.C. vide Ex.PW-1/E. The post-mortem was got conducted. 23. PW-22 Dr. Piyush Kapila has conducted the post mortem with his team. He has issued post mortem report Ex.PW-22/B. According to the post-mortem report, deceased died as a result of combination of asphyxia and ante mortem head injury. 24. The trial court has convicted the accused on the theory of last seen together and extra-judicial confession made by the accused before PW-6 Prem Singh and PW-7 Gita Ram. The prosecution has relied upon statements of PW-4 Vidya Devi and PW-5 Sohan Singh in order to prove the theory of last seen. 24. The trial court has convicted the accused on the theory of last seen together and extra-judicial confession made by the accused before PW-6 Prem Singh and PW-7 Gita Ram. The prosecution has relied upon statements of PW-4 Vidya Devi and PW-5 Sohan Singh in order to prove the theory of last seen. PW-1 Prem Singh has deposed that his sister was married with Suresh resident of village Saran. On 11.9.2008, his mother Janki Devi went to the house of his sister. She did not return till 17.9.2008. He inquired from his sister why they were not sending his mother back. She told that their mother Janki has already returned to home on 13.9.2008. He alongwith Vikram alias Vicku, Raju and Surat Singh proceeded to village Bhuni in search of his mother. They reached near the house of Mohan Singh at about 11 – 11.30 P.M. They called Mohan Singh. Mohan Singh and his wife Vidya Devi came out. He asked Mohan Singh whether he has seen his mother passing from there. Vidya Devi wife of Mohan Singh disclosed that on Saturday, i.e. 13.9.2008 at about 4 – 4.30 P.M. she has seen his mother going towards her house. According to him, distance between village Saran and their village is 4 - 6 kilometers. PW-4 Vidya Devi has testified that on 17.9.2008 at about 10.30 – 11.00 P.M. somebody called her husband. She alongwith her husband came outside. PW-1 Prem Singh asked her husband whether he has seen his mother Janki Devi. Her husband stated that he has not seen his mother. However, she disclosed that she has seen his mother Janki Devi on 13.9.2008 in the evening at about 4.30 P.M. proceedings towards her house through path. She was accompanied by accused. PW-5 Sohan Singh has testified that accused came to him at 11 – 11:30 A.M. He was carrying plastic bottle of liquor with him. They consumed the liquor. Thereafter, in the evening at about 4 - 4.30 P.M., he saw him going with Janki Devi on the path towards village Bhot. They were talking to each other. In his cross-examination, he has admitted that Mohan Singh is his brother and PW-4 Vidya Devi is the wife of his brother Mohan Singh. Mohan Singh was the material witness and he has not been examined. They were talking to each other. In his cross-examination, he has admitted that Mohan Singh is his brother and PW-4 Vidya Devi is the wife of his brother Mohan Singh. Mohan Singh was the material witness and he has not been examined. According to PW-4 Vidya Devi, Mohan Singh told PW-1 Prem Singh that he has not seen his mother. PW-4 Vidya Devi has admitted in her cross-examination that her family was not on talking terms with the family of Jhukroo Ram. Jhukroo Ram and her father-in-law are real brothers. Hira Singh was her father-in-law. PW-5 Sohan Singh son of Hira Singh has also admitted that he was not on talking terms with the accused. It is evident from the combined reading of statements of PW-4 Vidya Devi and PW-5 Sohan Singh that they were inimically deposed towards the accused. Accused is son of Jhukroo. Jhukroo and Hira Singh are real brothers. 25. Conduct of PW-1 Prem Singh is also unusual. According to him, his mother went to the house of his sister on 11.9.2008 and did not come back till 17.9.2008. The distance between village Saran and his village is about 4 -6 kilometers. It is not believable that PW-1 Prem Singh’s mother Janki Devi remained missing for five days and the family did not take any steps to trace her. The prosecution has not even examined the husband of the deceased, namely, Sh. Sahi Ram. 26. According to the prosecution, accused has made extra-judicial confession before PW-6 Prem Singh and PW-7 Gita Ram. Statement of PW-6 Prem Singh does not inspire confidence at all. According to him, he was taking peas on mule in a gunny bag to Koti Padogh road. At 10.00 P.M., he noticed that somebody had urinated on the road. He found the accused hiding behind the bushes. He asked him why he was sitting and hiding himself. He disclosed that he has absconding after committing murder of Janki Devi and police was after him. He asked him to save him. How he noticed urine on the road at 10.00 P.M. is not understandable. His presence on 24.3.2009 at 10.00 P.M. is also doubtful. According to PW-7 Gita Ram, PW-6 Prem Singh has brought the accused to his house. Accused made a confession before him that he has killed Janki Devi. He telephoned Bir Singh. Bir Singh asked him to inform Police Station, Chopal. His presence on 24.3.2009 at 10.00 P.M. is also doubtful. According to PW-7 Gita Ram, PW-6 Prem Singh has brought the accused to his house. Accused made a confession before him that he has killed Janki Devi. He telephoned Bir Singh. Bir Singh asked him to inform Police Station, Chopal. Thereafter, he received message from Police Station, Chopal and the police came on the spot. In his cross-examination, he has deposed that he provided half bottle of brandy to accused. It was consumed by him and accused. One peg was taken by PW-6 Prem Singh. It took about one hour to consume the liquor. Accused tried to flee away from the room at 1.00 P.M. He was confronted with his statement mark ‘A’, wherein it was not so recorded. Statements of PW-6 Prem Singh and PW-7 Gita Ram do not inspire confidence for the simple reason that the manner in which PW-6 Prem Singh has found the accused hiding behind the bushes is not trustworthy. 27. PW-1 Prem Singh, in his examination-in-chief, has categorically stated that on checking, no injury was visible on the dead body. PW-8 Satya Devi has also not noticed any injury on the dead body of Janki Devi. However, PW-22 Dr. Piyush Kapila has found the following injury on head and face: “Gross abrasions over left side of face and left temporal area scalp. Contusion over left temporalis muscle with gross sub arachnid hemorrhage below it on left hemisphere, however, global subarachnoid maemorrhhage was also present. Facture of nasal bone with contusion over bridge of the nose on cutting the area round the mouth contusion was present in the under line muscle.” 28. Post-mortem is not substantive evidence. However, statement of the doctor, who conducted the post-mortem, is significant. In the instant case, as noticed above, PW-1 Prem Singh and PW-8 Satya Devi have not noticed any injury on the dead body. Thus, there is variance in the ocular statement made by PW-1 Prem Singh and PW-8 Satya Devi and PW-22 Dr. Piyush Kapila. 29. The case is based on circumstantial evidence. In order to prove case against the accused based on circumstantial evidence, chain of circumstances must be complete. The motive is also important in case of circumstantial evidence. There is no motive attributed to the accused why he killed deceased Janki Devi. Piyush Kapila. 29. The case is based on circumstantial evidence. In order to prove case against the accused based on circumstantial evidence, chain of circumstances must be complete. The motive is also important in case of circumstantial evidence. There is no motive attributed to the accused why he killed deceased Janki Devi. PW-1 Prem Singh has admitted in his cross-examination that he only suspected that accused has committed the murder. The dead body of Janki Devi was detected on 18.9.2008. In order to prove case based on last seen theory, dead body must be recovered within a reasonable period to link the accused with the commission of offence. In the instant case, accused as per the prosecution case, was seen in the company of deceased on 13.9.2008 and the dead body was recovered on 18.9.2008. 30. Learned trial court has also relied upon another circumstance that the accused has absconded. Merely, that the accused has absconded after commission of offence, of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him, as it would go against doctrine of presumption of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. 31. Their Lordships of Hon’ble Supreme Court in S.K. Yusuf vs. State of West Bengal, (2011) 11 SCC 754 have held that theory of last seen together comes into play where time gap between point of time when deceased was last seen alive with accused and when deceased was found dead is so small that possibility of any person other than accused being author of crime becomes impossible. Their Lordships have further held that in case a person is absconding after commission of offence, of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him, as it would go against doctrine of presumption of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. Their Lordships have held as under:- “21. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. Their Lordships have held as under:- “21. The last seen theory comes into play where the time gap between the point of time when the accused and 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. (Vide: Mohd. Azad alias Samin v. State of West Bengal, (2008) 15 SCC 449 ; and State thr. Central Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC 109 ). 31. Both the courts below have considered the circumstance of abscondance of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment. (Vide: Matru @ Girish Chandra v. The State of U.P., AIR 1971 SC 1050 ; Paramjeet Singh @ Pamma v. State of Uttarakhand AIR 2011 SC 200 ; and Rabindra Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490 ) Thus, in view of the law referred to hereinabove, mere abscondance of the appellant cannot be taken as a circumstance which give rise to draw an adverse inference against him. 32. The dead body was found on 18.9.2008 and the accused was arrested on 25.3.2009. According to PW- 6 Prem Singh, the house of accused, i.e. village Bhuni was at a distance of 18-20 kilometers from his village. The distance between the house of PW-6 and PW-7 was one or half Kilometer as per the statement of PW-7 Gita Devi. It is not believable that accused would have remained in the area for a period of about six months without being noticed. The dead body has been found in jungle, which even as per statement of PW-1, was frequented by the villagers for grazing their cattle and to bring grass. It is not believable that accused would have remained in the area for a period of about six months without being noticed. The dead body has been found in jungle, which even as per statement of PW-1, was frequented by the villagers for grazing their cattle and to bring grass. PW-3 Dhani Ram has admitted that the villagers used to collect the grass from the jungle. Thus, the dead body could not remain unnoticed if found at a place which was frequented by the villagers. 33. According to PW-20 Sapinder Singh, he received a telephonic message on the intervening night of 24/25.3.2009 at about 12 – 12.30 A.M. from Basti Ram resident of Jhalu Moad. According to him, accused was apprehended by him, Prem Singh and Gita Ram and has been detained. Neither PW-6 Prem Singh nor PW-7 Gita Ram has deposed that Basti Ram was alongwith them at the time when the accused apprehended and brought to the house of PW-7 Gita Ram. Basti Ram has not been examined. It also casts doubt the manner in which the accused was apprehended. According to PW-7 Gita Ram accused tried to flee from the room. However, PW-6 Prem Singh has deposed that accused did not try to flee or abscond and he remained with them. According to PW-6 Prem Singh, Gita Ram informed the police. However, PW- 7 Gita Ram has deposed that he telephoned to Bir Singh of his village and disclosed him about the incident. Bir Singh assured him to intimate police of Police Station, Chopal. 34. Learned trial court has also taken into consideration the previous conviction of the accused. It is settled law by now that the previous conduct of the accused cannot be taken into consideration for the purpose of conviction. 35. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the theory of last seen together, extra-judicial confession, motive and that the accused absconded from the spot and was not traceable for about six months. The circumstances noticed by us hereinabove creates reasonable doubt in the version of prosecution. 36. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 31.5.2010 and order dated 2.6.2010 rendered in Sessions Trial No.19-S/7 of 2009 are set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. The circumstances noticed by us hereinabove creates reasonable doubt in the version of prosecution. 36. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 31.5.2010 and order dated 2.6.2010 rendered in Sessions Trial No.19-S/7 of 2009 are set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case. 37. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.