JUDGMENT 1. - Having allegedly murdered Raghunath, having been convicted for offence under Section 302 IPC, having been sentenced to life imprisonment, imposed with a fine of Rs. 500/-, and directed to further undergo one month of simple imprisonment in default thereof, by judgment dated 13.1.2005 passed by the Additional Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur, the appellant, Nasir Khan, has approached this court. 2. Briefly, the facts of the case are that Laduram (P.W.1) had lodged a written report (Ex.P.1) which is as under:- To, The In-charge Sahab, Police Station Sanganer. Sir, My brother, Raghunath S/o. Bhagwan Sahai Meena, manufactures iron grills and shutters. Yesterday, on 8.5.2003, his friends were playing cricket and he was watching them. His brother left with his friends towards the Kabristan (cemetery). He did not return back home at night. This morning, we came to know that a dead body of a man is lying in the Kabristan. When we looked at the body, we realised that it was the dead body of my elder brother, Raghunath Meena. Someone has killed him. I am filing this report, so that legal proceedings can be initiated. dated 9-5-03 Sd/- Laduram 3. This report was given at the cemetery and was sent by the police to the police station. Consequently, a formal FIR (Ex.P.38), FIR No.255/03, was chalked out for offence under Section 302 IPC and investigation began. During the course of investigation, on 10.5.2003 the police arrested the appellant, Nasir. Allegedly, upon his information, the police recovered a pair of slippers, a broken piece of wood, a thick stick, a pair of pant, and shirt belonging to him. After completing the investigation, police filed a charge-sheet against Nasir for offence under Section 302 IPC before the Judicial Magistrate, First Class, Sanganer. The case was committed to the learned Sessions Judge, Jaipur. It was transferred to the court of Additional Sessions Judge (Fast Track) No.1, Jaipur District. 4. In order to support its case, the prosecution examined twenty-one witnesses and submitted forty documents. In turn, the defence examined three witnesses and submitted four documents. After going through the oral and the documentary evidence, the learned Judge convicted the appellant, Nasir, for offence under Section 302 IPC and sentenced him, as aforementioned, by judgment dated 13.1.2005. Hence, this appeal before this court. 5. Mr. In turn, the defence examined three witnesses and submitted four documents. After going through the oral and the documentary evidence, the learned Judge convicted the appellant, Nasir, for offence under Section 302 IPC and sentenced him, as aforementioned, by judgment dated 13.1.2005. Hence, this appeal before this court. 5. Mr. Kamlendra Sihag, the learned amicus curiae, has raised the following contentions before this court: Firstly, the case is based entirely on circumstantial evidence as the dead body of Raghunath was discovered in the morning, but there are no eye-witnesses of the alleged murder. Secondly, the prosecution has failed to fully establish its case against the appellant. The prosecution has produced Bhagwan Sahai (P.W.4), Vijay Meena (P.W.8), Naveen (P.W.9), Bhori Devi (P.W.10). In order to make out a case that Raghunath had gone on the last occasion with Nasir and Mohd. Rafiq. However, their testimonies are inconsistent with each others. Hence, the evidence of "last seen" is unreliable. Moreover, even if the said evidence were to be accepted, it is too weak an evidence for convicting the appellant. Thirdly, although the prosecution claims that it has recovered a pair of slippers, and had lifted footprints from the scene of the crime, but there is no evidence to prove that the slippers and the footprints belonged to the accused. Fourthly, although the prosecution claims that it has sent the recovered items, namely the broken piece of wood, the thick stick, and the clothes recovered from the accused, and the clothes of the deceased to the FSL, but the FSL report (Ex.P.39) merely shows existence of human blood. Thus, the exact blood grouping has not been deciphered. Therefore, the prosecution has failed to prove that the recovered articles contain the blood of the deceased. Hence, the recoveries at the instance of the appellant are irrelevant. Lastly, since the prosecution has failed to prove its case beyond a reasonable doubt, the appellant should not have been convicted for offence under Section 302 IPC. 6. On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, has vehemently contended that the prosecution has established its case through cogent and convincing evidence. 7. Secondly, Bhagwan Sahai (P.W.4), Vijay Meena (P.W.8), Naveen (P.W.9), Bhori Devi (P.W.10), who are the relatives of the deceased, and were natural witnesses, have clearly testified that Raghunath had left the house in the company of Nasir and Mohd. Rafiq. 7. Secondly, Bhagwan Sahai (P.W.4), Vijay Meena (P.W.8), Naveen (P.W.9), Bhori Devi (P.W.10), who are the relatives of the deceased, and were natural witnesses, have clearly testified that Raghunath had left the house in the company of Nasir and Mohd. Rafiq. Moreover, next day, his dead body was recovered from the Kabristan. The appellant has not offered any explanation as to what became of Raghunath after he left with them. 8. Thirdly, the articles recovered at the instance of the appellant had blood upon it. Yet the accused could not explain as to how human blood was on different items. Therefore, the learned Public Prosecutor has supported the impugned judgment. 9. Heard the learned counsel for the parties, perused the record and examined the impugned judgment. 10. Undoubtedly, the case is based on circumstantial evidence. The rule governing appreciation of evidence in case based on circumstantial evidence is not only well known, but has also been recently reiterated by the Apex Court in the case of Balkar Singh v. State of Haryana [ 2014 (13) SCALE 63 ]. The Hon'ble Supreme Court has observed as under:- (1)....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. 11. Therefore, these principles would have to be kept in mind while appreciating the evidence in the present case. 12. Bhagwan Sahai (P.W.4), father of the deceased, claims in his examination-in-chief that "Nasir, Raghunath and Rafiq were working together for the last four to five years. On 8.5.2003, around 5.00 to 6.00 PM in the evening, all three of them had gone towards the Kabristan". 12. Bhagwan Sahai (P.W.4), father of the deceased, claims in his examination-in-chief that "Nasir, Raghunath and Rafiq were working together for the last four to five years. On 8.5.2003, around 5.00 to 6.00 PM in the evening, all three of them had gone towards the Kabristan". Further he claims that "he had seen them going as their shop is right opposite his house, and there is a road in between the shop and his house". 13. Vijay Meena (P.W.8), the son of the deceased, claims in his examination-in-chief that "his father has died eight to nine months ago. His grandfather, grandmother, Ladu, and my uncle were sitting at home. At that time, Nasir called out my father, and took him away. Nasir, Rafiq, Kaliya Khateek and Radheya went together towards the Kabristan. There they killed my father. I was told this by my grandfather and grandmother. I did not go to the Kabristan. My father use to manufacture iron shutters. Nasir used to work with him." In his cross-examination he admits that "he did not see his father leave with Nasir and Rafiq". 14. Naveen (P.W.9), the younger brother of the deceased, claims in his examination-in-chief that "it has been eight to nine months since my brother, Raghunath had died. Rafiq and Nasir had taken my brother on a bicycle around 4.00 to 5.00 O'clock in the evening. What happened thereafter I do not know. Subsequently, we discovered my brother's dead body in the Kabristan. Nasir had killed my brother. Nasir was arrested by the police". In his cross-examination he admits that he had told the police that he had seen Nasir and Rafiq taking away his brother on a bicycle. But why this fact is not mentioned in his statement (Ex.D.2) given under Section 161 Cr.P.C., he cannot say. He further claims that "Rafiq had called out his brother, Raghunath, and had taken him away". According to him, "the colour of the cycle was red". According to him, "his brother, Raghunath, was taken from the house". 15. Bhori Devi (P.W.10), mother of the deceased, in her examination-in-chief also claims that "Rafiq had come to her house around 10.00 O'clock in the night, and had taken Raghunath with him. At that time, Nasir was standing nearby. In the morning the police came. It inquired about Raghunath. The police told them that his dead body is lying in the Kabristan. At that time, Nasir was standing nearby. In the morning the police came. It inquired about Raghunath. The police told them that his dead body is lying in the Kabristan. I went to the Kabristan. There a stick was lying. There were injuries on his head and hands. His hand was broken. Subsequently, we discovered that Radheya, Kalu Khateek, Babu and one more person, in total about eight people, had killed my son, or had gotten him killed." 16. In her cross-examination, she claims that she had informed the police about the fact that Rafiq had taken her son on a bicycle and Nasir was standing at a distance. Why this fact has not been mentioned in her statement (Ex.D.3) recorded under Section 161 Cr.P.C., she cannot tell. According to her, Rafiq had taken her son from his shop. She further claims that eight persons were involved including Rafiq, Prabhu, Kalu, Radheya and others in getting her son killed. According to her, "she was sitting on a Chabutara (platform) at 10.00 O'clock at night when Rafiq had taken her son with him". 17. A bare perusal of the testimonies, quoted above, clearly reveals that the testimonies are contradictory to each-other. While Bhagwan Sahai (P.W.4) claims that his son had left with Rafiq between 6.00 to 7.00 O'clock in the evening, Bhori Devi (P.W.10) claims that her son had left at 10.00 O'clock at night. Moreover, while Bhagwan Sahai (P.W.4) and Naveen (P.W.9) claim that Rafiq had taken Raghunath from their house, Bhori Devi (P.W.10) claims that Rafiq had taken Raghunath from his shop. Thus, it is unclear as to what time and from which place Rafiq and Nasir had taken Raghunath with them. Furthermore, even if for hypothetical reasons the evidence of last seen were to be believed, event then it is too weak an evidence for convicting the appellant. 18. Moreover, according to Bhori Devi (P.W.10), her son was killed by eight persons and not just by the appellant. Thus, the prosecution has come up with two different stories. On the one hand, it claims that only Rafiq and Nasir had taken Raghunath with them, and only Nasir had killed him; yet, according to Bhori Devi (P.W.10), eight persons were involved in killing her son, Raghunath. 19. Most surprisingly, while the prosecution claims that it is Mohd. Thus, the prosecution has come up with two different stories. On the one hand, it claims that only Rafiq and Nasir had taken Raghunath with them, and only Nasir had killed him; yet, according to Bhori Devi (P.W.10), eight persons were involved in killing her son, Raghunath. 19. Most surprisingly, while the prosecution claims that it is Mohd. Rafiq who had taken Raghunath from his house, he has not been made an accused in the present case. In fact, he has been examined as P.W.12. If the evidence of last seen is to be believed, then as Raghunath had left with Rafiq, then he should have been arrayed as an accused and not as a prosecution witness. Therefore, the prosecution has failed to establish the evidence of "last seen". It has left evidence of "last seen" in a convoluted and confused state. 20. Bhajju Ram (P.W.21) is the Investigating Officer in the present case. According to him, there were eleven small pieces of wood which were blood stained, which were collected from the scene of the crime by Exhibit-P.7. Further, according to him, from the scene of the crime two footprints were picked up by Constable, Shishupal Singh (P.W.16), by Exhibit-P.10. Moreover, from the scene of the crime, a blood stained broken stick was picked up by recovery memo (Ex.P.14). Further according to him, Nasir was arrested on 10.5.2003. Upon his statement (Ex.P.32), a broken piece of wood was recovered from the Kabristan. Upon another statement (Ex.P.33) made by him, a pair of slippers was recovered from a shop at Surajpol. Upon another information (Ex.P.34), a thick stick was recovered from the polluted culvert (Ganda Nala). Further, according to him, upon another information given by the accused, the police had recovered a pant and a shirt by recovery memo (Ex.P.16). The said clothes were having blood on them. According to him, all these items were sent to the FSL for its report. But according to FSL Report (Ex.P.39), no distinct blood group could be traced out from these items. According to the report, these items had only "human blood" on them. 21. Since the FSL Report (Ex.P.39) does not reveal the blood group on these recovered items, it does not further the case of the prosecution. It was the duty of the prosecution firstly, to establish the blood group of the deceased, and the blood group of the accused. According to the report, these items had only "human blood" on them. 21. Since the FSL Report (Ex.P.39) does not reveal the blood group on these recovered items, it does not further the case of the prosecution. It was the duty of the prosecution firstly, to establish the blood group of the deceased, and the blood group of the accused. Secondly, it was the duty of the prosecution to prove that the recovered items/objects contain the blood group of the deceased and not the blood group of the accused. In the absence of such cogent evidence, the mere existence of human blood from the recovered items does not connect the accused to the alleged crime. Therefore, the recoveries, even if believed, are irrelevant and meaningless. 22. A critical analysis of the evidence clearly reveals that the prosecution case is riddled with gaping holes. The prosecution has failed to establish its case through cogent and convincing evidence. It has failed to forge the chain of circumstances which would unerringly point towards the guilt of the accused. Therefore, the prosecution is unsuccessful in establishing its case beyond a reasonable doubt. 23. For the reasons stated above, this appeal is hereby, allowed. The impugned judgment dated 13.1.2005 is quashed. The appellant is acquitted of the offence under Section 302 IPC. Since the appellant is languishing in Jail, he shall be released forthwith if not wanted in any other case. 24. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellant, namely Nasir Khan, is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- 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. *******