JUDGMENT 1. - Convicted for offence under Section 302 read with 34 IPC, and sentenced to life imprisonment, and imposed with a fine of Rs. five thousand, and further directed to undergo six months of simple imprisonment in default thereof, by the Additional Sessions Judge (Fast Track) No.1, Ajmer, both the appellants, Sanjay alias Bhaiya, and Santosh Kumar, have sent this jail appeal to this court. 2. Briefly the facts of the case are that on 20.10.2002 around 7:00 AM the Police Station Nasirabad City received a telephone call from an unknown person who informed the police that near the Temple of Lord Ram, situated in Godam Mandi, a dead body of a woman is lying in a house. When the police tried to seek further information, the unknown person disconnected the phone. Having received the said information, Sub-inspector Ramavtar Sahay (P.W.18) and Sepoy Shankar Lal (P.W.9) were sent to the place revealed by the unknown informant. When they reached the house belonging to one Sushila alias Shashi, they found lot of people standing around the house. Ramavtar (P.W.18) sent a written report (Exhibit-P.21) to the S.H.O. Police Station Nasirabad City. In the written report he mentioned the fact that the Police Station had received a call from an unknown person. He further claimed that when he reached the place he found lot of people standing around the house. The door of the house was open. When he entered the house he discovered a naked body of a woman who had sustained a deep cut on her neck, and another injury below the collar bone, and lot of blood was lying around. On the southern wall the words " jke ekjk " ('Ram killed') was scribbled in blood. Although this entire word was unclear, the letter " Hkw " ('Bha') was clear. According to him, it seems that some unknown people had killed the woman. He stayed back to control the spectators who had gathered there. On the basis of this written report (Exhibit-P.21), a formal FIR namely FIR No.150/2002 (Exhibit-P.48) was registered for offence under Section 302 IPC, and the investigation began. 3. During the course of investigation the police arrested Sanjay alias Bhaiya - appellant No.1, and Santosh Kumar - appellant No.2. However, during the course of pendency of the present appeal, Sanjay alias Bhaiya has expired. Therefore, the present appeal has abated qua him. 3. During the course of investigation the police arrested Sanjay alias Bhaiya - appellant No.1, and Santosh Kumar - appellant No.2. However, during the course of pendency of the present appeal, Sanjay alias Bhaiya has expired. Therefore, the present appeal has abated qua him. The present appeal is being decided only qua the appellant, Santosh Kumar. 4. Both the appellants were charged for offence under Section 302 and in the alternative 302/34 IPC. In order to prove its case the prosecution examined thirty-one witnesses, and submitted sixty-six documents. Although the defence did not examine any witness, it did submit three documents in its favour. After going through oral and the documentary evidence, the learned Judge has convicted the appellants as aforementioned. Hence, this appeal before this court. 5. Mr. Vinay Pal Yadav, the learned counsel for the appellant, had raised the following contentions before this court : firstly, the entire case is based on circumstantial evidence, but the evidence is so weak that it does not prove the guilt of the appellant. 6. Secondly, the prosecution has relied upon the following evidence to bring home the guilt of the appellant Santosh : (a) the evidence of last seen, (b) the discovery of chance fingerprints on a glass, (c) the recovery of the knife and the anklets (paijeb), (d) the recovery of clothes of the deceased Sushila alias Shashi, and the recovery of clothes of the appellant Santosh at his instance, (e) The FSL Report (Exhibit-P.56), which revealed that the clothes of the deceased, the clothes of the accused, and the blood on the recovered knife all had blood group-'A' on it. 7. Thirdly, however even these evidences are extremely weak : Satya Narayan (P.W.20), who claims in his examination-in-chief that on the fateful night he had visited his sister Sushila alias Shashi, and had found both the accused persons sitting at her house, in his cross-examination admits that this fact was not mentioned by him to the police at the time of making of the panchnama of the dead body. He further denied having given any statement to the police under Section 161 Cr.P.C. (Exhibit-D.3) on 20.10.2002. Moreover, Satya Narayan has not been supported by his mother Smt. Kamla (P.W.10). Therefore, he is an unreliable witness as far as the evidence of last seen is concerned. 8. He further denied having given any statement to the police under Section 161 Cr.P.C. (Exhibit-D.3) on 20.10.2002. Moreover, Satya Narayan has not been supported by his mother Smt. Kamla (P.W.10). Therefore, he is an unreliable witness as far as the evidence of last seen is concerned. 8. Fourthly, both Smt. Meera (P.W.4) and Mahesh (P.W.16), have also been produced by the prosecution in order to create the evidence of last seen. But both these witnesses have turned hostile. Therefore, these two witnesses have also not supported the case of the prosecution with regard to last seen evidence. 9. Fifthly, even the chance fingerprints lifted by the Investigating Agency do not connect the appellant to the alleged offence for the report of the FSL was never submitted by the prosecution. Furthermore, the learned Judge has quoted a letter written by Superintendent of Police to the S.H.O. Police Station Nasirabad City, wherein he had clearly indicated that since the chance fingerprints were unclear, it could not be compared with the finger prints of the accused persons. 10. Sixthly, although the prosecution has claimed that the police had recovered a blood stained knife and the anklets belonging to the deceased, both the independent witnesses, namely Suresh (P.W.5) and Govind (P.W.22) have turned hostile with regard to recoveries of these two articles. Further the anklets allegedly recovered were never identified either by Smt. Kamla (P.W.10) or by Satya Narayan (P.W.20), the mother and brother of the deceased (respectively). Therefore, even recovery of these two articles would not connect Santosh to the alleged offence. 11. Seventhly, although according to FSL Report (Exhibit-P.56) the clothes of the deceased, the clothes of Santosh, and the knife allegedly recovered, do contain blood group-'A', but the prosecution has not revealed the blood group of the deceased. Therefore, a distinct possibility does exist that the deceased Sushila, and the accused may have shared the same blood group. 12. Lastly, according to the Investigating Agency the southern wall had the words " jke ekjk " (Ram killed) written in blood. According to the prosecution, and specially according to the testimony of Satya Narayan (P.W.20), Shashi was married to Ram Charan. Since Ram Charan used to physically assault Shashi, she had left him and was living separately at Nasirabad. Moreover, Shashi had also bought the house from one Ram. According to the prosecution, and specially according to the testimony of Satya Narayan (P.W.20), Shashi was married to Ram Charan. Since Ram Charan used to physically assault Shashi, she had left him and was living separately at Nasirabad. Moreover, Shashi had also bought the house from one Ram. Therefore, the words " jke ekjk " written in blood on the southern wall may indicate that the killer was either her husband, or the previous owner of the house. But under no circumstances do the words " jke ekjk " connect the accused to the alleged offence. Thus, according to the learned counsel, the chain of circumstances forged by the prosecution does not unerringly point to the guilt of Santosh. 13. On the other hand, Mr. N.S. Dhakad, the learned Public Prosecutor, has made the following submissions before this court : firstly, that there is the evidence of Satya Narayan (P.W.20) which proves that on the fateful night he had seen both the accused persons with Shashi, the deceased. On the next morning her dead body was discovered by the police. 14. Secondly, according to both, the panchnama of the dead body (Exhibit-P.13) as well as the Post-Mortem Report of Smt. Shashi (Exhibit-P.16), it was a homicidal death. 15. Thirdly, according to the FSL Report (Exhibit-P.56) the clothes of the deceased, Santosh's clothes, and the blood stained knife all three of them contained the blood group-'A'. Thus, it clearly proves that the blood group-'A' belonged to the deceased. Furthermore, Santosh has not given any explanation as to how his clothes had the blood of the deceased upon them. Thus, an adverse inference should be read against the appellant. Hence, the prosecution has succeeded in establishing its case beyond a reasonable doubt. Therefore, the learned Public Prosecutor has supported the impugned judgment. 16. Heard the learned counsel for the parties and perused the material on record. 17. Admittedly, the entire case is based on circumstantial evidence. The principle with regard to appreciation of evidence in a case based on circumstantial evidence is well known. Therefore, the learned Public Prosecutor has supported the impugned judgment. 16. Heard the learned counsel for the parties and perused the material on record. 17. Admittedly, the entire case is based on circumstantial evidence. The principle with regard to appreciation of evidence in a case based on circumstantial evidence is well known. Recently in the case of Balkar Singh v. State of Haryana (Criminal Appeal No. 606/2008, decided on 17-11-2014) the Hon'ble Supreme Court has reiterated the said principle as under: "...Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." While dealing with the evidence in the present case, the principle mentioned above would have to be kept in mind. 18. Undoubtedly, the panchnama of the dead body (Exhibit-P.13), the Post-Mortem Report of the deceased (Exhibit-P.16), the testimonies of Dr. Rajendra Patni (P.W.13), Dr. Madhu Sharma (P.W.14), and Dr. R.K. Rai (P.W.15) clearly prove that Shashi had died a homicidal death. 19. However, the issue before this court is whether Santosh is guilty of having committed murder of Shashi alias Sushila or not? 20. The prosecution had produced three witnesses in order to substantiate its plea of last seen, namely Smt. Meera (P.W.4), Mahesh (P.W.16), and Satya Narayan (P.W.20). However, both the first two witnesses, Smt. Meera (P.W.4) and Mahesh (P.W.16) have turned hostile. Therefore, they have not supported the case of the prosecution. 21. In his examination-in-chief, Satya Narayan (P.W.20) does claim that he had gone to meet his sister, Shashi at the instance of their mother, Smt. Kamla (P.W.10). However, both the first two witnesses, Smt. Meera (P.W.4) and Mahesh (P.W.16) have turned hostile. Therefore, they have not supported the case of the prosecution. 21. In his examination-in-chief, Satya Narayan (P.W.20) does claim that he had gone to meet his sister, Shashi at the instance of their mother, Smt. Kamla (P.W.10). He further claimed that when he went to meet his sister it was around 10 o'clock at night. Both the accused persons, present in the court, were sitting with her; he knew them from before. He asked his sister as to why she did not get rid of them. His sister told him that these persons are bothering her and they even fight with her. She told him not to speak to them as they are likely to assault him. He further claimed that he did not stay there at night, but returned back to Kota. On the next day, in the morning, he was informed that his sister has been killed. He was asked to come to Nasirabad. 22. However, in his cross-examination he clearly admits that he did not tell the police about seeing both the accused persons at the time when panchnama was drawn out on 20.10.2002. He clearly denied the fact that his statement, produced in the trial as Exhibit-D.3, were given by him on 20.10.2002. According to him, his statement was recorded on 21.10.2002. Therefore, he disowned his entire statement (Exhibit-D.3) given by him to the police. 23. Surprisingly, Smt. Kamla (P.W.10) does not corroborate the statement of Satya Narayan (P.W.20) that she had asked him to go and visit his sister Shashi. Considering the fact that Satya Narayan did not tell the police, immediately, the fact that he had seen the accused appellants with his sister on the fateful night, considering the fact that he is not supported by the testimony of his mother, this witness cannot be believed on the point of last seen. Even otherwise, the evidence of last seen is too weak an evidence to convict an accused especially when the prosecution case is bereft of cogent evidence. 24. The prosecution has harped on the point that Santosh had made a statement under Section 27 of the Evidence Act (Exhibit-P.50) on 19.10.2002. Consequently, from his house the police had recovered one pant, one t-shirt, and one underwear. The pant and t-shirt had blood upon them. 24. The prosecution has harped on the point that Santosh had made a statement under Section 27 of the Evidence Act (Exhibit-P.50) on 19.10.2002. Consequently, from his house the police had recovered one pant, one t-shirt, and one underwear. The pant and t-shirt had blood upon them. The said clothes were sealed. Moreover, these clothes were sent to the FSL, and according to the FSL the clothes contained blood group-'A'. According to the prosecution the clothes of the deceased also contained the blood group-'A'. Therefore, the blood group of the deceased was blood group-'A'. Thus, according to the prosecution there was connecting evidence, connecting the appellant Santosh to the alleged crime. 25. However, Shiv Charan (P.W.2) and Sunil (P.W.31) have denied the recovery of the clothes from Santosh's house. According to Shiv Charan (P.W.2) the police did not recover any clothes in front of him. Further according to Sunil (P.W.31) police had brought two persons near the Nagori Mohalla Godam Mandi, Nasirabad. The police had shown them a pant and a t-shirt in a bag. He further stated that he does not know where the police got these clothes from. The police had merely stopped and asked him to sign on some papers, which he did. Both these witnesses have been declared hostile. Thus, the recovery of clothes is highly doubtful since the independent witnesses have not supported the said recovery. 26. The prosecution has also relied on the recovery of knife and anklets at the instance of Santosh. However, both the independent witnesses of the said recovery, namely Suresh (P.W.5) and Govind (P.W.22) have denied the recovery of knife before them. Thus, they too have been declared as hostile. Hence, the recovery of the knife cannot be believed. 27. Since the recovery of clothes of the accused, and the alleged recovery of knife cannot be believed, therefore, the presence of blood group-'A' on these two articles does not connect the accused to the alleged crime. Furthermore, it was the primary duty of the prosecution to establish the blood group of the deceased, and to establish that these two articles were duly recovered from Santosh's possession. Only after establishing these two facts could the burden of proof be shifted to Santosh under Section 106 of the Evidence Act to explain the presence of blood group-'A' on his clothes and on the knife. Only after establishing these two facts could the burden of proof be shifted to Santosh under Section 106 of the Evidence Act to explain the presence of blood group-'A' on his clothes and on the knife. However, as the prosecution has failed to, prima facie, establish the charge against the appellant, Section 106 of the Evidence Act cannot be invoked against the appellant. 28. Although the prosecution claims that it had recovered the anklets of the deceased, although both the recovery witnesses Suresh (P.W.5) and Govind (P.W.22) have denied the recovery, the fact does remain that the anklets were never subjected to a test identification parade despite the availability of Smt. Kamla (P.W.10), the mother of the deceased, and Satya Narayan (P.W.20), the brother of the deceased. The Investigating Agency never asked them to identify the anklets which allegedly belonged to Shashi. Therefore, even the alleged recovery of the anklets, at the instance of Santosh, does not connect him to the alleged crime. Furthermore, although the Investigating Agency claimed that they had picked up chance fingerprints from a glass left in the room, but no report of the FSL has been submitted with regard to the chance fingerprints. The learned Judge has merely noticed a letter written by the Superintendent of Police to the S.H.O. Police Station Nasirabad City, wherein he has merely noticed that the former had informed the latter that the FSL could not reach any conclusion as the chance fingerprints as they were too fudged to be compared with the admitted fingerprints of the accused appellant. Therefore, even the alleged recovery of the chance fingerprints does not buttress the prosecution case. 29. For the reasons stated above, this court is of the opinion that the prosecution has failed to establish a chain of circumstances unerringly pointing to the guilt of the appellant, Santosh. Thus, this appeal succeeds. The impugned judgment dated 10.2.2004 is quashed and set aside. The appellant Santosh is acquitted of the offence under Section 302 read with 34 IPC.. 30. In view of the acceptance of the appeal, we order that the appellant No.2, namely Santosh Kumar s/o. Mangal Das Harijan, resident of Nagaur Mohalla, Nasirabad, be released forthwith, if not required in any other case. 31. The appellant Santosh is acquitted of the offence under Section 302 read with 34 IPC.. 30. In view of the acceptance of the appeal, we order that the appellant No.2, namely Santosh Kumar s/o. Mangal Das Harijan, resident of Nagaur Mohalla, Nasirabad, be released forthwith, if not required in any other case. 31. Keeping, however, in view the provisions of Section 437A of the Code of Criminal Procedure, the appellant No.2, namely Santosh Kumar is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- [Rupees Twenty Thousand Only] and a surety bond in the like amount, before the trial Court. The bonds, so furnished shall be effective for a period of six-months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeal allowed. *******