JUDGMENT 1. - Aggrieved by the judgment dated 27.5.2006, passed by the Addl. Sessions Judge, Sambhar Lake, District Jaipur, Ayub Khan, Shyam Singh and Savitra Devi have filed three different appeals before this court. While Ayub Khan has filed D.B. Criminal Appeal No.660/2006, Shyam Singh has filed D.B. Criminal Appeal No.566/2006, and Savitri Devi has filed D.B. Criminal Appeal No.659/2006. Since these three appeals arise out of the same impugned judgment, they are being decided by this common judgment. 2. The prosecution case is a short one. On 29.5.2005, Brajendra Singh (P.W.4), S.I., submitted a investigation report (Ex.P.8) under Section 174 Cr.P.C. to the SHO, Police Station Phagi. The said report, when translated into English, reads as under:- "From: Brajendra Singh, S.I., P.S. Phagi. To: The SHO, Police Station, Phagi. Sub: Report for taking legal action in investigation report on Mrig No.8/05 under Section 174 Cr.P.C. whereby offences under Sections 302, 201 IPC have been committed. Sir, It is submitted that on 26.5.2005, a telephonic information was received that a dead body was lying in a well at Bhojpura. Upon receiving this information, I Sub-Inspector, the SHO, Police Station Phagi reached the designated place where Smt. Savitri W/o. Shrinath, r/o. Plot No.279, Maharani Farm, Durgapura, the wife of a worker in Help in Suffering (HIS), Jaipur, submitted a written report. According to her report, she claimed that her husband, Shrinath, left her house on 11.5.2005 at 7:00 PM telling her that he is going for a party along with his friends. But ever since then, he did not turn. She filed a missing report at Police Station Shipra Path. According to her, she and staff of Help in Suffering in Jaipur searched for him and even published a notice in the newspaper. On 18.5.2005, an unknown person informed on the phone that between Phagi and Renwal a dead body is floating in a well. Therefore, she and the employees of Help in Suffering searched for the said well. They finally located the well this morning between Renwal and Phagi, which is located near the road. The dead body is wearing a T-shirt belonging to HIS. Therefore, she submitted a report. On the basis of the report, a Mrig FIR, namely Mrig No.8/05, was registered under Section 174 Cr.P.C. and the investigation commenced. They finally located the well this morning between Renwal and Phagi, which is located near the road. The dead body is wearing a T-shirt belonging to HIS. Therefore, she submitted a report. On the basis of the report, a Mrig FIR, namely Mrig No.8/05, was registered under Section 174 Cr.P.C. and the investigation commenced. During the investigation, the place of the occurrence was visited where it was discovered that there was blood on the boundary wall of the well. There was blood even in the soil. Thus, the blood soaked soil was lifted. Near the well an empty beer bottle was also recovered. The Panchayatnama of the dead body was prepared. It was discovered that the wind pipe had been cut with a sharp edged weapon. The body had started decomposing. It was sent to the Medical Board for post-mortem. The body and the place of occurrence were photographed. The body was handed over to the legal heirs for being cremated. During the investigation, the statement of the complainant, Smt. Savitri, and of her other witnesses were recorded. The Post-Mortem Report was received from the medical officer. According to the Medical Board, the cause of death was the cutting of the wind pipe in the neck. Considering the place of the occurrence and the Post-Mortem Report, prima facie, a homicidal death was caused to Shrinath S/o. Ramkishan Maurya, aged about 42 years, r/o. Sighaigaur, P.S. Barajganj, District Gorakhpur (U.P.), presently r/o. Plot No.279, Maharani Farm, Durgapura, Jaipur. It was discovered that some unknown person had cut his neck and wind pipe with the use of sharp edged weapon. In order to eliminate the evidence, the body had been thrown into the well. Prima facie, offences under Section 302, 201 IPC has been committed. Therefore, this report is being submitted. Sd/- Shri Brajendra Singh, S.I. P.S. Phagi Dated 29.5.2005 3. On the basis of the said report (Ex.P.8), a formal FIR (Ex.P.9), namely FIR No.114/05, was registered for offence under section 302, 201; the police started the investigation. During the course of investigation, the police arrested, Ayub Khan, Shyam Singh and Smt. Savitri Devi. The appellants were charged for offences under Section 302 and 201 IPC. In order to support its case, the prosecution examined twenty-one witnesses, and submitted fifty-one documents. 4. During the course of investigation, the police arrested, Ayub Khan, Shyam Singh and Smt. Savitri Devi. The appellants were charged for offences under Section 302 and 201 IPC. In order to support its case, the prosecution examined twenty-one witnesses, and submitted fifty-one documents. 4. In the statement recorded under Section 313 Cr.P.C., Shyam Singh denied the fact that he had any illicit relationship with Smt. Savitri. He further claimed that on 29.5.2009 his brother, Surendra, had suffered an injury. He had helped his brother. Therefore, his clothes had blood stains on them. He further claimed that in second week of March, 2005 he had suffered an incident due to which his leg and hand were burned. When the police arrested him, he still had burned injuries upon him. Therefore, he could not move freely. Lastly, due to an animosity between him and Arjun Ram, the police had falsely implicated him in conspiracy with the employees of HIS; he was forced to sign on blank pieces of paper. 5. In his statement under section 313 Cr.P.C., Ayub Khan had stated that he had not supplied any information, nor got anything recovered. He was taken to the police station for investigation, because his father had worked with Shrinath at the HIS office. According to him, he was falsely implicated because the police wanted to save some culprits. Even according to him, his signatures were taken on blank pieces of paper. 6. In her statement given under Section 313 Cr.P.C., Smt. Savitri claimed that on 11.5.2005, her husband had left the house telling her that he is going to a party with his friends. Since he did not come back till the next morning, she took the help of employees of HIS and went out looking for him. She also filed a missing report at Police Station Shipra Path. On 26.5.2005, she was taken by the HIS staff members to Phagi. At Phagi, she gave a written report to the police. Having lost her husband, she had lost her mental balance. On the next day, the employees of HIS, and her sister asked her to sign some papers for getting the PF and gratuity of her late husband. She was pressurised to sign the blank pieces of papers. They threatened her that if she will not sign the blank pieces of papers, she will have to face the consequences. On the next day, the employees of HIS, and her sister asked her to sign some papers for getting the PF and gratuity of her late husband. She was pressurised to sign the blank pieces of papers. They threatened her that if she will not sign the blank pieces of papers, she will have to face the consequences. On 29.5.2005, the police of Police Station Phagi had beaten her in front of her children. Earlier she was staying in the house of Shyam Singh with her husband; Arjun Ram was also staying in the same house. But now, she is being forced to vacate the house. Shyam Singh is too young and I was never in physical relationship with him. She claimed innocence and claimed trial. 7. After completing the trial, the learned Judge has convicted and sentenced the appellants , as aforementioned. Hence, this appeal before this court. 8. Mr. Ashvin Garg and Mr. Jitendra Pandey have raised the following contentions before this court: firstly, the case is entirely based on circumstantial evidence. Even the prosecution has failed to complete the chain of circumstances so as to unerringly point to the guilt of the appellants. 9. Secondly, the prosecution has relied upon the following pieces of evidence to bring home the charge against the appellants: (a) the evidence of last seen, i.e. Shrinath was seen on the last occasion along with Shyam Singh and Ayub Khan, (b) Shyam Singh had identified the place of occurrence; upon his behest, the police had recovered his blood stained clothes; according to the FSL report (Ex.P.51), there was human blood on the said clothes, (c) at the insistence of Ayub, a knife was recovered. His clothes were recovered from a dickey of a scooter. The scooter and the shirt recovered at his instance were also having blood stains; lastly (d) there was an illicit relationship between Savitri and the accused, Shyam Singh. 10. However, according to the learned counsel, none of these pieces of evidence, even if put together, point irrevocably to the guilt of the appellants. Therefore, the prosecution has failed to establish its case beyond mere suspicion. 11. On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, has contended that the four pieces of evidence, mentioned above, unequivocally point to the guilt of the appellants. Therefore, the learned Public prosecutor has supported the impugned judgment. 12. Therefore, the prosecution has failed to establish its case beyond mere suspicion. 11. On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, has contended that the four pieces of evidence, mentioned above, unequivocally point to the guilt of the appellants. Therefore, the learned Public prosecutor has supported the impugned judgment. 12. Heard the learned counsel for the parties, perused the impugned judgment and examined the record. 13. According to Dr. K.K. Maheshwari (P.W.12), on 26.5.2005 he had performed the autopsy on the deceased, Shrinath. He has proven the Post-Mortem Report (Ex.P.23). According to him, Shrinath had suffered the following injuries:- “ pksV la[;k&1 dVk ?kko 12 ls0eh0 x 3 ls0eh0 x 4 ls0eh0 xys ds cka;s rjQ xys ds LVZukseLV~;wM ely ls gksrk gqvk lkeus dh nka;h rjQ eslV~;wc cksu ds pkj ls0eh0 uhps rd ?kko FkkA pksV la[;k&2 dqpyk ?kko nka;s gkFk ds vaxwBs ds vkxs dk vk/kk fgLlk iwjk dqpyk gqvk FkkA pksV la[;k&3 dqpyk ?kko cka;s gkFk dh vxz Hkqtk ij ihNs dh vksj 3 ls0eh0 x 3 ls0eh0 ely Mhi rdA pksV la[;k&4 fod'r 'kDy dk fMQjesfVo cka;s gkFk dh fupys rhljs fgLls esa fod'fr Fkh tks ckn esa QzsDpj esa ik;k x;kA mDr lHkh pksVksa esa fMdEiksft'ku izkslsl ds dkj.k pksV ds ckn Hkh fLFkfr;ka Li"V ugha FkhA e'rd dh xnZu ij mDr pksVksa ds vykok vU; dksbZ fu'kku ;k pksV ;k ?kko ugha FkkA 14. Moreover, according to him the cause of death was shock due to the cutting of the wind pipe. Thus, clearly Shrinath had died a homicidal death. 15. However, the issue before this court is whether the appellants have caused death of Shrinath or not? 16. Mukesh (P.W.6) has been produced in order to make out the evidence of last seen. According to him, his wedding anniversary falls on 11th May. On that day, in the evening he was going to pick up some vegetable. Shrinath was standing at the gate of the hospital. Shrinath took a lift from him as he too wanted to buy some vegetable. Therefore, he took Shrinath with him. Shrinath brought vegetable and some other things in front of him. Thereafter, he dropped Shrinath at his home. Around 8:00-8:30 O'clock he saw Shyam Singh, Ayub and Shrinath standing near Durgapura Phatak. When he came back, he did not find them standing there. Therefore, he took Shrinath with him. Shrinath brought vegetable and some other things in front of him. Thereafter, he dropped Shrinath at his home. Around 8:00-8:30 O'clock he saw Shyam Singh, Ayub and Shrinath standing near Durgapura Phatak. When he came back, he did not find them standing there. He claimed that he saw all of them standing at the Durgapura Phatak. 17. However, in his cross-examination when he was confronted with his previous statement (Ex.D.3) given under Section 161 Cr.P.C., he denies the part "A to B", denies the fact that he had seen Shrinath standing with Ayub and Shyam Singh at the gate of Man Singh's school. He insisted that he told the police that he had seen them standing at the Durgapura Phatak. He also claims in his cross-examination that "he does not remember how far they were standing from the road, as he was driving his vehicle, lost in himself. 18. A bare perusal of his testimony clearly reveals that since "he was lost in himself", he could not have well noticed the fact that Shrinath was standing with Shyam Singh and Ayub. Thus, on the point of last seen, his testimony does not inspire confidence. 19. Moreover, the evidence of last seen is generally considered a weak sort of evidence. In the case of Sahadevan v. State of Tamil Nadu, 2012 CrLJ 3014 the Hon'ble Supreme Court has summed up the principles with regard to the evidence of last seen as under:- "30. With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. In Arjun Marik v. State of Bihar, 1994 Supp. (2) SCC 372 , this Court took the view that the where the Appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. In Arjun Marik v. State of Bihar, 1994 Supp. (2) SCC 372 , this Court took the view that the where the Appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the Appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and therefore, no conviction, on that basis alone, can be founded. 33. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen." In Kanhaiyalal v. State of Raj., (2014) 4 SCC 715 the Apex Court observed as under:- "The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the Appellant, in our considered opinion, by itself cannot lead to proof of guilt against the Appellant.". 20. Therefore, the prosecution has failed to prove the evidence of last seen through cogent and convincing evidence. 21. In order to prove the alleged illicit relationship that existed between Shyam Singh and Smt. Savitri, the prosecution has examined a large number of witnesses, namely Sunil Kumar Chawla (P.W.1), Ashok Kumar Tanwar (P.W.2), Smt. Rakhi Sharma (P.W.17). However, the three witnesses claimed that they had merely "heard" that Smt. Savitri was having illicit relationship with her landlord's son, Shyam Singh. It is only Kanhaiya Lal (P.W.15), the son of the deceased, and Shyam Singh, a child witness, who tell the court that his mother and Shyam were seen in a compromising position. However, the three witnesses claimed that they had merely "heard" that Smt. Savitri was having illicit relationship with her landlord's son, Shyam Singh. It is only Kanhaiya Lal (P.W.15), the son of the deceased, and Shyam Singh, a child witness, who tell the court that his mother and Shyam were seen in a compromising position. But in his cross-examination, he admits that ever since he had lost his father, he has been staying with his paternal uncle and with paternal grand-father. He further claims, in his cross-examination, that he had heard that his father had been killed by Shyam Singh, Ayub Khan and by his mother. Therefore, he has stated the same fact in the court. Considering this admission, the distinct possibility that this witness may have been tutored by the grand-father and by his paternal uncle to get rid of Savitri, the daughter-in-law of the family, cannot be ruled out. Therefore, the alleged illicit relationship between Shyam Singh and Smt. Savitri has not been proven beyond a shadow of doubt. 22. There is even a contradiction between the prosecution evidence as to when and by whom the dead body was recovered. According to Brijendra Singh (P.W.4), the complainant having received a telephonic information that his dead body is lying in a well on the Phagi Renwal road, the body was recovered by the police from the said well. However, according to Lalaram (P.W.10) and Pappu Sharma (P.W.11), they were helping Savitri and her sister, Gayatri, in locating her husband. Therefore, according to him, when Savitri told both these witnesses that her husband had a habit of drinking liquor while sitting at a well with his friend, he went to Phagi. When they were coming back from Phagi, they discovered the dead body of Shrinath in the well. Savitri started crying there. The testimony of these witnesses has further been corroborated by the testimony of Abdul Aziz (P.W.19) who claims that he brought the accused in his taxi car. Since neither Lalaram (P.W.10), nor Pappu Sharma (P.W.11) has been declared hostile by the prosecution, the prosecution is bound by their testimonies. Hence, the discovery of the dead body by the police is suspect. 23. According to Phool Mohd. (P.W.21), the I.O., during the police custody, Ayub Khan and Shyam Singh had given statements under Section 27 of the Evidence Act. At their instance, the police recovered their clothes. Hence, the discovery of the dead body by the police is suspect. 23. According to Phool Mohd. (P.W.21), the I.O., during the police custody, Ayub Khan and Shyam Singh had given statements under Section 27 of the Evidence Act. At their instance, the police recovered their clothes. The police also recovered an iron knife by recovery memo (Ex.P.13) and a scooter by recovery memo (Ex.P.14) at the instance of Ayub Khan. The learned Public Prosecutor has vehemently contended that these recoveries directly connect the appellant, Shyam Singh and Ayub Khan to the alleged crime. However, the said argument is highly misplaced. For, according to the FSL report (Ex.P.41), the knife, recovered at the instance of Ayub Khan, did not show the presence of human blood. The pant and shirt belonging to Shyam Singh and Ayub merely tested positive for "human blood". Similarly, the clothes of the deceased also tested positive for "human blood". However, the prosecution could not detect the specific human blood group. Mere present of human blood on the clothes of the accused and on the clothes of the deceased is meaningless as the human blood could be of the accused themselves. In the absence of specific blood group of the deceased and of the accused, the mere presence of human blood does not connect the accused persons to the alleged crime. 24. A holistic appreciation of the evidence clearly reveals that the prosecution has marshaled out certain pieces of evidence. But the links of the chain are so disjointed and have so many gaping holes that the circumstances do not unerringly point to the guilt of the appellants. Hence, this court has no other option, but to give the benefit of doubt to the appellants. 25. Therefore, for the reasons stated above, the instant appeals are, hereby, allowed. The appellants, namely Ayub Khan, Shyam Singh and Savitri Devi, are acquitted of the charges levelled against them. In view of acceptance of the appeal, the appellants who are confined in jail shall be released forthwith, if not required in any other case. 26. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely Ayub Khan, Shyam Singh and Savitri Devi, are directed to forthwith furnish a personal bond in the sum of Rs. 26. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely Ayub Khan, Shyam Singh and Savitri Devi, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- [Rupees Twenty Thousand Only] each 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 appellants, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeal allowed. *******