JUDGMENT : Banwari Lal Sharma, J. The present appeal has been preferred by applicant accused Jhuntha Ram who has been convicted and sentenced by the impugned judgment and order dated 11.02.2008 passed by learned Additional Sessions Judge (Fast Track), Chomu, District Jaipur in Sessions Case No.07/2008 for offence under Section 302 Indian Penal Code (for short 'IPC') to undergo life term imprisonment and a fine of Rs. 500/-, in default thereof to further undergo simple imprisonment for three months. Under Section 379 IPC to undergo 3 years impriosnment with a fine of Rs. 200/- in default thereof to further undergo 1 month's simple imprisonment. It was also ordered that all the sentences shall run concurrently and benefit of provisions of Section 428 Cr.P.C. shall also stand extended. 2. The brief facts of the case are that Surja Ram complainant father of the deceased Shanker Lal submitted a written report addressed to SHO Police Station Govindgarh, Jaipur (Rural) to the effect that on 19.11.2007 at about 9 AM his son Shanker Lal, after taking meals went to workshop of Phool Chand Bajiya situated at Bhabruji turn, Ringus, as usual. In that workshop, the work of motor body parts was being done. Thereafter, on 20.11.2007 in the evening, at about 6 PM, his son telephonically informed him that he will come home shortly but he did not return till late night. On next day morning, at about 5.30 AM his neighbour Har Lal called and asked him ^^HkS;k mBrs ugha gks D;k** Thereafter, Har Lal went away. After getting up from bed, he departed for his shop, on the way, he saw in dark that one person was lying there, then he lit the match stick and saw that it was none else but his son Shanker. On hue and cry raised by him, his neighbours Neki Ram and Har Lal reached there to whom he told that body of his son is lying there, someone left him thereafter committing his murder. Thereafter, Neki Ram and Har Lal made a telephone call to Sarpanch of the village Smt. Kamla Devi. In response, she told that she will make a call to the police station and shall also reach there. Thereafter, the husband of Sarpanch Nathu Lal, other neighbours and 300-400 persons arrived at the spot. After that police officials of police station Govindgarh also reached there. In response, she told that she will make a call to the police station and shall also reach there. Thereafter, the husband of Sarpanch Nathu Lal, other neighbours and 300-400 persons arrived at the spot. After that police officials of police station Govindgarh also reached there. Lastly, it was prayed that assailants may be arrested and action may be taken. 3. On the above said report FIR No.386/2004 under Section 302 IPC was registered and investigation commenced. 4. During the course of investigation, the police prepared a rough site plan of the place of incident and inquest report. FSL team was also called. There were foot prints of unknown persons near the dead body of the deceased. Therefore, foot print moulds were taken and the froth which were oozing from the nose of the deceased, was lying on soil therefore same and control soil were also taken. The dead body was sent for postmortem and belongings of deceased Shanker Lal i.e. trouser, shirt, shoes, Nokia mobile battery, diary which was there in the pocket of trouser of deceased were seized. Statements of witnesses were recorded during investigation and on 20.11.2007, the complainant Surja Ram submitted a complaint to the effect that people were coming for paying condolence at his home, out of them, Phool Chand told him that on 20.11.2007, at about 8.30 PM, the deceased Shanker Lal went with Jhuntha Ram in his Jeep. Shyoram also saw Shanker Lal with Jhuntha Ram. Neighbour Govind Ram stated that on 20.11.2007, at about 11 PM, he saw that Jhuntha Ram with his vehicle (Jeep) was standing near the Railway crossing. 5. Thereafter, the supplementary statement of Surja Ram was recorded, postmortem report of Shanker Lal was taken on record. Statements of Arjun Lal, Govind Ram and Phool Chand were also recorded. Jhuntha Ram was apprehended and in pursuance of information submitted by Jhuntha Ram, his sleepers were seized and sealed. His Jeep bearing registration No.RJ-14-TA- 3156 was also seized. The vallet of deceased Shanker Lal, paper regarding accounts, phone bill in the name of deceased Shanker Lal, 17 visiting cards, cash amounting to Rs. 900/- and one mobile phone sim and six photos of deceased Shanker Lal were also recovered from his residential house. In pursuance of, information submitted by accused, he identified place of occurrence. The vallet of deceased Shanker Lal, paper regarding accounts, phone bill in the name of deceased Shanker Lal, 17 visiting cards, cash amounting to Rs. 900/- and one mobile phone sim and six photos of deceased Shanker Lal were also recovered from his residential house. In pursuance of, information submitted by accused, he identified place of occurrence. Seized articles were sent to FSL for examination and photographs (Ex.P- 24) were taken on record. 6. Thereafter, challan was filed against the appellant accused for the offences under Sections 302 and 379 IPC, in the Court of learned Judicial Magistrate, First Class, Chomu on 04.1.2008. Since, the alleged offence under Section 302 IPC was exclusively triable by the Court of Sessions, therefore, the learned Magistrate after compliance of provisions envisaged under Section 207 Cr.P.C., committed the case to the court of learned Sessions Judge, Jaipur District Jaipur. The learned Sessions Judge thereafter, entrusted the matter to the learned Additional Sessions Judge (Fast Track) Chomu, Jaipur District Jaipur (hereinafter referred to as 'the trial court'). 7. The learned trial court after hearing framed charges against the accused for offences under Sections 302 and 379 IPC, for which accused denied and claimed for trial. 8. In support of its case, the prosecution examined as many as 20 witnesses and 97 documents were produced and duly exhibited. The accused appellant was examined under Section 313 Cr.P.C. wherein it was stated that he was falsely implicated in this case. The accused appellant examined as many as 3 witnesses in defence. Thereafter, the learned trial court, after hearing, convicted the appellant-accused for offence under Section 302 & 379 IPC and sentenced as aforesaid. 9. Feeling aggrieved by the judgment of conviction and order of sentence, the accused appellant preferred this appeal for quashing and setting aside the judgment of conviction and the order of sentence awarded by the learned trial court. 10. The learned counsel for the appellant accused submitted that entire case of the prosecution rests on circumstantial evidence. The proverbial chain of circumstances of prosecution is incomplete and the same has not been completed by the prosecution. 11. 10. The learned counsel for the appellant accused submitted that entire case of the prosecution rests on circumstantial evidence. The proverbial chain of circumstances of prosecution is incomplete and the same has not been completed by the prosecution. 11. The first incriminating circumstance of the prosecution is last seen of accused with deceased for which, prosecution examined Phool Chand (PW-2), Govind Ram (PW-9), Arjun Lal (PW-10) and Shyoram (PW-13), according to the counsel for the appellant, their testimony is riddled with numerous incongruencies and embellishments, rendering the same to be highly doubtful. The contemproaneous conduct of these witnesses, including their reticence is not disclosing the fact of last seen to the Investigating Agency which discriminate them. Learned counsel submits that in the case resting on circumstantial evidence, motive has to be established beyond any reasonable doubt but in the present case prosecution has failed to prove any motive. As per FSL report (Ex.P-95), the deceased consumed Organophosphorus insecticide and Ethyl Alcohol and prosecution miserably failed to prove that the same was administered to the deceased, by the appellant. He submits that the learned trial court, without recovery of Rs. 20,000/,- wrongly held the appellant guilty for offence under Section 379 IPC. The recovery of vallet in pursuance to Section 27 of the Evidence Act has also not been proved. Recovery of pair of sleepers of the appellant, is of no consequence and same does not connect the accused with the alleged crime and without considering these facts, the learned trial court wrongly convicted and sentenced the appellant-accused. Therefore, the appeal may be allowed and appellant-accused may be acquitted from the alleged offences. 12. The learned Public Prosecutor supported the impugned judgment of conviction and order of sentence. He submits that deceased was last seen by the witnesses with appellant soon before his death. He submits that foot prints of sleepers of appellant accused were found near the dead body, valet of deceased containing the personal documents was recovered in pursuance of information submitted by the accused from his conscious possession. Not only this, deceased was having Rs. 20,000/-. which were also missing, therefore, there was clear motive that for the sake of Rs. 20,000/,- the appellant-accused committed this crime. Not only this, deceased was having Rs. 20,000/-. which were also missing, therefore, there was clear motive that for the sake of Rs. 20,000/,- the appellant-accused committed this crime. He submits that appellant accused failed to controvert these circumstances and also failed to put any explanation for that the chain of circumstances leads only the conclusion that the appellant-accused is guilty. 13. He lastly submits that the learned trial court rightly convicted the appellant-accused and prays that appeal may be dismissed. 14. To decide the issue raised by the learned counsel for the parties, a brief synopsis of evidence on record, as led by the prosecution is apposite to be noted. 15. Surja Ram PW-1 complainant is the father of deceased Shanker Lal, who corroborated the facts mentioned in the FIR. 16. Phool Chand PW-2 deposed that on 20.11.2007, at about 8-8:30 pm Shanker followed by Jhuntha Ram came with him and he gave Rs. 20,000/- to Shanker Lal. Thereafter, Shanker Lal and Jhuntha Ram went away by the vehicle of Jutha Ram. On next day, he came to know about the death of Shanker from Harphool who also stated that at the time of cremation of Shanker, he deposed this fact to father of Shanker. He also stated that vide Ex.P-5 jeep of Jhuntha Ram and vide memo Ex.P-6 his sleepers were seized and Jhuntha was arrested vide arrest memo Ex.P-7. 17. Sanjeev Kumar @ Sanwar Mal PW-3 stated that on 20.11.2007, at about 10:00 p.m. when he was returning from Kishan Manpura to Ringus by jeep at that time Shanker and Jhuntha were sitting on Tiba (Sand dune) near the house of Banwari Banwara and were smoking 'Bidi' and DI Jeep of Jhuntha Ram was also there. In morning, he came to know that Shanker was murdered. At the time of cremation, he told this fact to the family members of Shanker. 18. Ram Singh PW-4 stated that on 20.11.2007, at about 7:00 p.m. parents of Shanker requested him to make call and talk to Shanker on telephone, therefore, he gave a miss call to Shanker from his mobile. In response, Shanker called back on his mobile and said that he is calling from Ringus and is reaching home within half an hour. Ram Singh PW-4 stated that on 20.11.2007, at about 7:00 p.m. parents of Shanker requested him to make call and talk to Shanker on telephone, therefore, he gave a miss call to Shanker from his mobile. In response, Shanker called back on his mobile and said that he is calling from Ringus and is reaching home within half an hour. On next morning, when he was going to take care of buffaloes with his father, people were sitting at the shop of Shanker and saying that Shanker has died. He also stated that when he called Shanker at that time, Jhuntha was there with Shanker at Ringus. 19. Nekiram PW-5 stated that in the early morning at 5 AM on 20.11.2007 his neighbour Harlal woke him up and informed that a dead body was lying near the dairy on the way. On his request, he went towards dead body where he saw that Surja Ram was examining the dead body in the light of match stick. On asking, Surja Ram started crying, saying that the said dead body is of his son Shanker. Thereafter, they put stones near the dead body, so that nobody can come near the dead body. There were foot prints of sleepers and tyres of vehicle as also signs of dragging the dead body. Thereafter with the help of younger brother on his phone he called Nathu Lal husband of Sarpanch Kamla and informed him regarding the incident. On this, Nathu Lal assured them that he is calling police. 20. Phool Chand PW-6 has turned hostile. 21. Har Lal PW-7, corroborated the statement of Neki Ram and also stated that Sheo Ram told that he saw Shanker and Jhuntha on 20.11.2007 at 9:00 pm in Ringus near the SBI Bank. 22. Richhpal PW-8 stated that he was partner with deceased Shanker in wine business. He also turned hostile. 23. Govind Ram PW-9 stated that on 20.11.2007 at about 10:30-10:45 pm when he was going to his agricultural field at that time he saw at the railway crossing near, dairy of Shanker that a jeep came and stopped near the dairy of Shanker as railway crossing was closed, jeep was of Jhuntha Ram. On asking, Jhuntha Ram replied that jeep was parked there and he further replied that he is standing there without any rhyme or reason. On asking, Jhuntha Ram replied that jeep was parked there and he further replied that he is standing there without any rhyme or reason. Thereafter, he went to his fields and in next morning he came to know that dead body of Shanker was lying near dairy. He also stated that Sheoram told him that he saw Shanker and Jhuntha together at Ringus. 24. Arjun Lal PW-10 also stated that at about 11:00 PM jeep of Jhuntha was there near the dairy of Shanker thereafter, Jhuntha took it away towards his house. 25. Har Phool PW-11 prepared site plan Ex.P-2, inquest report Ex.P-3, photographs of place of incident Ex.P-11, moulds of foot prints Ex.P-12, Seizure Memo of foam Ex.P-13, Seizure Memo of pair of sleepers Ex.P-14, Moulds of foot print Ex.P-15, identification memo of place of occurrence by accused Ex.P-16. 26. Bodu Ram PW-12 stated that trouser, shirts of deceased Shanker Lal were seized at the time of postmortem and seizure memo was prepared as Ex.P-17, a diary and mobile battery were also seized vide Ex.P-18. Shoes of deceased were seized vide Ex.P-19. At the instance of accused Jhuntha, a vallet with 4-5 papers, receipts of Rs. 982/- were seized from the residential house of Jhuntha. Vide memo Ex.P-20, the site plan of the place of recovery was also prepared as Ex.P-21. 27. Sheoram PW-13 stated that on 20.11.2007 at about 8.45 PM while returning from the marriage when he reached Bajaiya ki dhani, Bheruji turn, Ringus near SBI Bank Shanker and Jhuntha were there in the jeep of Jhuntha Ram. Shanker on being asked about his return to home, he replied that he will come later and on 21.11.2007 in morning at about 7 AM he came to know that somebody had thrown the body of Shanker after committing his murder. Shanker on being asked about his return to home, he replied that he will come later and on 21.11.2007 in morning at about 7 AM he came to know that somebody had thrown the body of Shanker after committing his murder. He further stated that vide Seizure Memo Ex.P-13 foam was seized, the DI jeep of accused Jhuntha Ram was also seized vide memo Ex.P-5, sleepers of accused were seized vide memo Ex.P-6, accused Jhuntha Ram was arrested vide arrest memo Ex.P-7, foot print mould of Jhuntha Ram were taken vide memo Ex.P-12, foot prints were taken by the police at police station Chomu vide Ex.P-14, after taking the foot print mould of sleeper was also seized vide memo Ex.P-14 and the foot moulds were taken into possession at the police station vide memo Ex.P- 15, the place of occurrence was identified by accused vide Ex.P-16. 28. Chhitarmal PW-14 Malkhana Incharge deposed about depositing the case property in Malkhana. 29. Om Prakash PW-15 stated that he took four photographs of dead body. 30. Dr. R.S. Rundal PW-16 being a member of Medical Board, conducted the postmortem of dead body and noticed that froth was coming out of mouth and nose. There was discharged stool and semen and he noticed the following injuries:- 1. Abrasion about 1 cm long with clotted blood (seems to be fingure nail) situated on the inner aspect of left ear pinna it was antemortem in nature. 2. Abrasion of about ¼ x ¼ cm with clotted blood (seems to be fingure nail) situated on the back of right ear pinna it was antemortem in nature. 3. Multiple abrasion of about ½ x ½ cm to ½ x cm (seems to be fraction abrasion) situated just below the right knee. 4. Two abrasion of about ½ cm x ½ cm (seems to be fraction abrasion) situated just below the left knee. 5. Contusion of about ½ cm x ½ cm situated on the inner muscle of left lower lip which was antemortem in nature. 6. Bruise of about 4cm x 2 cm situated on the left side of the neck on dissection there was a hoematoma of about 2 cm present in the left stermnocleidonastond muscle which was antemortem in nature. The cause of death was opined as throttling and strangulation. He proved postmortem report Ex.P-77. 31. Babulal PW-17 proved site plan Ex.P-78. 32. 6. Bruise of about 4cm x 2 cm situated on the left side of the neck on dissection there was a hoematoma of about 2 cm present in the left stermnocleidonastond muscle which was antemortem in nature. The cause of death was opined as throttling and strangulation. He proved postmortem report Ex.P-77. 31. Babulal PW-17 proved site plan Ex.P-78. 32. Tara Chand PW-18 stated that he took foot print of left and right sleepers of accused Jhuntha Ram vide memo Ex.P-15. Thereafter, his sleeper was seized vide memo Ex.P-14. 33. Dalveer Singh PW-19 is the witness of site plan but he turned hostile to prosecution, but he admitted his signature Ex.P- 78. 34. Ravindra Pratap Singh PW-20 SHO police station Govindgarh deposed regarding the various facets of the investigation. 35. Thereafter accused was examined under Section 313 Cr.P.C. wherein he pleaded that incriminating evidence advanced by the prosecution is wrong and he has been falsely implicated in this case and he is an innocent. 36. In defence so far as Banwari DW-1 stated that on 20.11.2007 he was awake from 5 pm to 11 pm, neither he saw deceased Shanker nor Jhuntha Ram nor jeep of Jhuntha Ram. 37. Sheopal DW-2 also stated that on 20.11.2007 he went to Malakali Village at 5 PM with Phool Chand and remained there till 10 pm but he did not see Jhuntha Ram or Shanker there. 38. Bannaram DW-3 stated that on 20.11.2007 he went to attend the marriage of sons of Bhaguram where Sanwar Mal also reached, they remained there from 6 pm to 11 pm but however Sanwara do not corroborate the statement made by the witness. 39. We have considered submissions advanced by learned counsel and perused the available record. 40. From the perusal of above prosecution evidence reveals that there is no eye witness of the incident, prosecution case stands on last seen and recovery. So far as, the cause of death of deceased Shanker Lal is concerned it is not disputed by the learned counsel for the appellant accused that it is homicidal death due to throttling and administering of poison. As per FSL report Ex.P-95, blood sample and urine sample which gave positive tests of the presence of Organophosphorous insecticide and Ethyl Alcohol and quantity of alochol in blood sample was found 115.00 mg/100ml. As per FSL report Ex.P-95, blood sample and urine sample which gave positive tests of the presence of Organophosphorous insecticide and Ethyl Alcohol and quantity of alochol in blood sample was found 115.00 mg/100ml. Therefore, it is proved that Organophosphorous insecticide and Ethyl Alcohol was administered to the deceased. Therefore, the death of Shanker is homicidal. As per postmortem report Ex.P-77 the time of death is within 14 to 16 hours before 3.30 PM dated 21.11.2007 when the postmortem was conducted. 41. In the case of Ram Reddy Rajesh Khanna & Anr. v. State of Andhra Pradesh JT 2006(4) SCC 16, the Hon'ble Supreme Court opined as under:- "The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and 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. Even in such a case courts should look for some corroboration." 42. In view of above let us now see as to whether the prosecution proved the case beyond reasonable doubt. 43. In the present case on 20.11.2007 at 8-8.15 pm deceased and Jhuntha Ram were seen together by PW-2 Phool Chand. At about 7 PM when Shanker Lal got Rs. 20,000/- from Phool Chand. Thereafter, 10 PM they were seen by Sanjeev Kumar @ Sanwar Mal PW-3 while smoking 'Bidi' near the house of Banwari Banwara on Tiba (Sand dune) 44. Ram Singh PW-4 gave a missed call to Shanker thereafter Shanker called Ram Singh and informed that he is returning within half an hour. Thereafter, at about 10-30 to 10.45 pm Govind Ram PW-9 also saw Jhuntha Ram alone at railway crossing and 11 pm Jhuntha Ram crossed him. 45. At about 9.00 pm Arjun Lal PW-10 saw Shanker and Jhuntha Ram and Sheo Ram PW-13 saw them near SBI Bank Bajaiya ki dhani. Thereafter, at 5 AM dead body of Shanker was recovered. 46. No enmity came on record of the appellant accused with these prosecution witnesses. Appellant accused also has not give any explanation in regard to Shanker, whether he left him there alive or not. He simply stated that he is innocent and has been falsely implicated in this case. Thereafter, at 5 AM dead body of Shanker was recovered. 46. No enmity came on record of the appellant accused with these prosecution witnesses. Appellant accused also has not give any explanation in regard to Shanker, whether he left him there alive or not. He simply stated that he is innocent and has been falsely implicated in this case. When prosecution witnesses clearly stated that they saw Shanker with appellant accused then accused is only person who can explain as to what has happened with Shanker. In the early morning at 5 am Shanker was found dead and cause of death is homicidal. It shows that the murder was committed for Rs. 20,000/- which were taken by Shanker Lal from Phool Chand and were with Shanker thereafter till 10.00 pm. Shanker was seen with appellant accused. The time period between the last seen and death of deceased being too less corroborates prosecution version and leads to only inference that murder was committed by the appellant accused. Not only this, vallet, containing visiting cards, receipts and photographs of Shanker were also recovered at the instance of appellant accused from his residential house for which also appellant accused failed to give any explanation, as to how they came into his possession. Non explanation of both the counts lend credence to the prosecution version. 47. Thus, there is positive evidence of prosecution regarding accused last seen with the deceased as per prosecution witnesses. Therefore, the arguments advanced by learned counsel for appellant have failed to cause dent in the prosecution case and hence no ground is made out to cause interference in the impugned judgment. 48. The learned trial also after considering all the incriminating circumstances i.e. last seen and recovery came to the conclusion that accused appellant committed murder of Shanker and also committed theft of his vallet therefore rightly convicted and sentenced the accused appellant hence no interference is warranted and this appeal being devoid of any merit is hereby dismissed. Appeal dismissed.