JUDGMENT 1. - The instant cr. jail appeal has been filed by the life convict Ladu Puri @ Ladu Giri S/o Ghisa Puri Goswami, resident of Udaliyas, Police Station Kotdai, District Bhilwara against the judgment dated 4.4.2006 passed by the Addl. District & Sessions Judge (Fast Track) No.l, Bhilwara in Sessions Case no. 75/2005 whereby the accused appellant was convicted for offence under Section 302 IPC and sentenced for life imprisonment was passed against him by the learned trial court alongwith fine of Rs. 2,000/- and in default of payment of fine to further undergo 2 months imprisonment. 2. As per the facts of the case a written complaint Ex.P/1 was submitted by the PW-1 Ganpat Singh Ranawat, resident of village Udaliyas on 24.6.2005 before the SHO, Police Station Kotadi in which the complainant PW-1 Ganpat Singh stated that in his village one Ghisa Giri Goswami is performing Sewa Pooja in the temple of Lord Mahadev but today when he did not attend the temple to perform Pooja and an information is recevied from the villagers that dead body of Pujari deceased Gisha Giri is lying at a place known as Ghardu Ki Khal in the village Udaliyas. Upon the aforesaid information, the complainant PW-1 Ganpat Singh rushed to the place where dead body of the deceased Gisha Giri was lying and upon inspection it is found that there were injuries upon the head of the deceased Gisha Giri and blood was spread over in 10-15 feet of the area. It is apprehended that somebody has killed Gisha Giri by inflicting injuries upon his head, therefore, complaint was filed. The SHO, Police Station Kotadi registered the FIR (Ex.P/30) under Section 302 IPC against unknown person and commenced investigation. 3. In the investigation although there was no direct evidence found but some informations were given by the family members that the Ladu Puri son of Gisha Giri was regularly compelling Gisha Giri to sale his land and upon refusal he made quarrel with him. In the investigation, upon above information, the police recovered the cloths of the deceased Ghisa Giri and accused appellant wearing at the time of occurrence took place and also recovered axe (Kulhari) upon information given by the appellant vide Ex.P/9 in front of two witnesses PW-5 Kailash and PW-6 Devi Lal and as per both the witnesses blood was found upon the axe (Khulhari). The cloths of the accused appellant were recovered vide Ex.P/7 and sealed articles 'G', the blood smelled soil was also taken from the site and, thereafter, 13 articles were sent to the State Forensic Laboratory, Rajasthan, Udaipur and in turn the FSL report (Ex.P/23) was sent by the Forensic Laboratory. The police after completion of investigation, filed challan against the accused appellant Ladu Puri @ Ladu Giri under Section 302 IPC in the court of Judicial Magistrate, Kotadi on 8.9.2005. Thereafter, the case was committed by the learned Magistrate to the Sessions Court, Bhilwara from where the case was transferred to the Court of Addl. District & Sessions Judge (Fast Track) No.l, Bhilwara where the trial took place. 4. The trial court after framing the charge under Section 302 IPC against the accused appellant proceeded to record the evidence of prosecution. In the trial, the statements of 24 prosecution witnesses were recorded, thereafter, the statement of accused appellant were recorded under Section 313 Cr.P.C. in which he denied all the allegations leveled against him. The trial court finally heard the argument and vide judgment dated 4.4.2006 convicted the accused appellant for the offence under Section 302 IPC on the basis of the circumstantial evidence of last seen and recovery of cloths and weapon axe (Kulhari). The learned trial court gave finding that as per the statement of prosecution witnesses appellant being son of deceased Gisha Giri was compelling his father to sale his land but his father deceased Gisha Giri refused to sale his land, therefore, it was the motive of accused appellant to kill his father. The learned trial court passed sentence of life imprisonment against the appellant on the basis of aforesaid evidence. The appellant is challenging the validity of the judgment dated 4.4.2006 passed by the trial court on the following grounds : A. The appellant has been implicated in this case on the basis of fabricated and concocted story of the prosecution, therefore, the judgment impugned deserves to be quashed. The appellant is challenging the validity of the judgment dated 4.4.2006 passed by the trial court on the following grounds : A. The appellant has been implicated in this case on the basis of fabricated and concocted story of the prosecution, therefore, the judgment impugned deserves to be quashed. B. The learned counsel for the appellant vehemently argued that to prove the case against the accused it is obligatory duty of the prosecution to prove its case beyond reasonable doubt but in this case, admittedly, there is no eye witness or direct evidence on record to connect the accused appellant with the crime of committing murder of his own father which is punishable under Section 302 IPC, therefore, the judgment impugned deserves to be quashed. C. The learned counsel for the appellant submits that it is a case in which the learned trial court has wrongly relied upon the fact that upon cloths of the appellant and the deceased the same blood group 'A' was found as per the report Ex.P/23 given by the Forensic Laboratory but this finding is totally perverse for the simple reason that being son of deceased Gisha Puri the body of Gisha Puri was handed over to him by the police after post mortem vide Ex.P/6, therefore, obviously, if body of the deceased was handed over to the appellant being son of the deceased then obviously it cannot be ruled out that upon cloths of the appellant which is pent and shirt the blood of his father was not stained, only on the basis of recovery of blood stained shirt or pant of the accused appellant, the prosecution has proved its case beyond reasonable doubt so as to convict him. D. The learned counsel for the appellant further argued that as per the report Ex.P./23 of Forensic Laboratory no blood was found upon the axe (Kulhari), whereas the witnesses of recovery of weapon Kulhari PW-5 Kailash and PW-6 Devi Lal said before the court that Kulhari was stained with blood, meaning thereby there is major contradiction in between the statements of witnesses of recovery of weapon Kulhari and FSL report, therefore, it is a case in which the learned trial court has wrongly relied upon presumption that although blood was not found upon the weapon axe, but blood was found upon the cloths of the appellant, who is son of the deceased Gisha Puri, therefore, on this ground also, the judgment of the learned trial court deserves to be quashed. E. The learned counsel for the appellant argued that the so called circumstantial evidence produced by the prosecution is not acceptable because although the witness including PW-8 Laxman Singh, PW-9 Smt. Sohani Goswami, PW-10 Maju, PW-11 Rameshwar Lal and PW-12 Bheru Singh stated before the Court that they heard in the village that accused appellant Ladu Puri has murdered his own father due to quarrel of selling land but there is no direct evidence to prove the fact that he is guilty for offence us 302 IPC, but the learned trial court committed an error while accepting the testimony of hear say evidence of witnesses upon which no conviction can be based. F. With regard to evidence of last seen given by PW-15 Bheru Lal it is contended by the learned counsel for the appellant that this witness was planted by the prosecution so as to create evidence of last seen because admittedly, the statement of witness PW-15 Bheru Lal of last seen were recorded on 15.7.2005 whereas the accused appellant was arrested before 20 days of the recording of statement of last seen vide Ex.P/20 dated 24.6.2005, therefore, it is a case in which the trial court has relied upon the statement of PW-15 Bheru Lal whereas his statement under Section 161 Cr.P.C. were not recorded prior to arrest of accused appellant, therefore, the finding to convict the accused appellant upon the evidence of last seen is not acceptable as per the basic principle of law. 5. 5. While inviting attention towards above grounds it is submitted that it is a case in which the appellant son of the deceased Gisha Giri has been planted as an accused so as to convict him for offence under Section 302 IPC but it is a case of no evidence to prove the guilt of appellant, therefore, the judgment impugned may be set aside. 6. Per contra, learned Public Prosecutor vehemently opposed the prayer and said that although in this case there is no eye witness or direct evidence but prosecution has proved its case by producing trustworthy evidence of last seen because witness PW-15 Bheru Lal categorically stated in his statement that day before registration of FIR he saw the accused appellant Ladu Puri with his father Gisha Puri and they were going on bicycle and upon that cycle an axe was also hanging upon the handle. Meaning thereby, an independent witness PW-15 Bheru Lal was produced before the Court to prove the fact of last seen, therefore, the learned trial court has rightly relied upon the testimony of PW-15 Bheru Lal so as to convict the accused appellant for offence alleged against him. 7. The learned Public Prosecutor further argued that on the basis of recovery of cloths and weapon axe (Khulhari) at the instance of the accused appellant, the prosecution has proved its case beyond reasonable doubt against the accused appellant for committing offence under Section 302 IPC. It is also true that no blood was found upon the weapon Axe as per the report of FSL (Ex.P/23) but upon the cloths of accused appellant as well as the deceased blood group 'A' was found as per report of FSL (Ex.P/23), therefore, it is a case in which a trustworthy evidence was produced before the learned trial court to prove the prosecution case upon which the learned trial court has rightly recorded finding against the accused. 8. Lastly the learned Public Prosecutor argued that prosecution has performed its duty to lead transparent evidence of last seen and other circumstantial evidence of quarrel in between the father and son (appellant) to prove the motive, therefore, it cannot be said that prosecution has failed to prove its case beyond reasonable doubt, therefore, this appeal may be dismissed. 9. After hearing the learned counsel for the parties we have scanned the entire evidence. 9. After hearing the learned counsel for the parties we have scanned the entire evidence. Admittedly, it is a case in which allegation is against the son for murder of his own father without direct evidence, therefore, prosecution is required to prove its case beyond reasonable doubt because there is evidence of eye witness before whom the occurrence took place. The prosecution has led circumstantial evidence so as to prove its case beyond reasonable doubt. As per evidence, the PW-15 Bheru Lal stated before the Court that a day before registration of the FIR he has seen the accused appellant alongwith his father when they were going on bicycle and upon handle of bicycle an axe was hanging. To assess the credibility and truthfullness of this witness we have considered the most important aspect of the matter that accused appellant was arrested by the police vide Ex.P/20 on 24.6.2005 and the FIR was registered against unknown person by the Police Station, Kotadi upon written report filed by PW-1 Ganpat Lal on 24.6.2015, then on what basis the accused appellant was arrested on 24.6.2005 when no evidence of last seen was on record. It is also emerged from the statement of prosecution witnesses Smt. Sohani were recorded on 27.6.2005, statement of Smt. Maju were recorded on 28.6.2005, statement of Bheru Lal were recorded on 15.7.2005, the statement of Rajendra Singh was recorded on 27.6.2005 and statement of constable Jagdish was recorded on 15.7.2005. Likewise statement of other witnesses were recorded after the arrest of accused appellant. Meaning thereby on 24.6.2005 when accused appellant was arrested neither the circumstantial evidence was on record nor any evidence with regard to motive was on record, therefore, it is obvious that accused appellant was arrested by the investigating officer only on the basis of whispering of the villagers and later on the statement of last seen witness PW-15 Bheru Lal under Section 161 Cr.P.C. were recorded on 15.7.2005 so as to connect the accused with the crime. Therefore, it is a case in which after arrest of the accused, entire evidence was collected by the investigating officer but the learned trial court did not apply its mind towards the above fact which is very important and relevant so as to adjudicate the case of murder. Therefore, it is a case in which after arrest of the accused, entire evidence was collected by the investigating officer but the learned trial court did not apply its mind towards the above fact which is very important and relevant so as to adjudicate the case of murder. In our opinion, the finding of the circumstantial evidence given by the trial court against the accused appellant on the basis of hear say evidence and last seen is not sustainable in law. 10. We have also scanned the entire evidence for the purpose of assessing finding of the learned trial court to connect the accused appellant with the crime on the basis of recovery of cloths upon which human blood was found. Admittedly , the accused appellant Lalu Puri and deceased Gisha Puri are son and father. It is also admitted fact of the case that soon after the occurrence when body of deceased was taken to the hospital for post mortem the investigating officer handed over the dead body of Gisha Giri to the appellant vide Ex.P/6 and cloths of the deceased were taken into custody as well as the cloths of the accused appellant were recovered as per his information given by the accused and sent to the Forensic Laboratory, therefore, it is obvious that if the appellant received the body of deceased being son then there is possibility of having the same blood group upon the cloths of the accused appellant, therefore, the report of Forensic Laboratory with regard to existence of blood upon the cloths of the accused appellant cannot connect the accused appellant with the crime. Our above opinion is further supported form the fact that as per the FSL report no blood was found upon the axe, which is said to be recovered from the accused vide Ex.P/9. Therefore, the testimony of witness of recovery PW-5 Kailash and PW-6 Devi Lal deserves to be rejected solely on the ground that although they said in their statement before court that the blood was found upon the axe (Kulhari) but as per the FSL report Ex.P/23 no human blood was found upon Kulhari, which is evident from following abstract of report given by the FSL with regard to non-existence of blood upon Kulhari which reads as under:"DESCRIPTION OF ARTICLES S. No. Packet Marked Ex. No. Details of Ex. 1. A 1 Blood Smeared Soil 2. No. Details of Ex. 1. A 1 Blood Smeared Soil 2. A-1 2 Control Soil 3. B 3 Blood Smeared soil 4. C 4 Blood Smeared soil 5. D 5 Blood Smeared soil 6. E 6 Control Soil 7. F 7 8 9 Dhoti Safa Jooti (one Pair) 8. G 10 11 12 Bushirt Pent Chhappal (one Pair) 8. H 13 Kulhari RESULTS OF EXAMINATION 1. On Serological examination, the blood stains on the following exhibits were found to be of HUMAN origin:- Exhibit No.l(from A), 3 (from B), 4 (from C), 5 (from D), 7,8,9 (from F) 11,12 (from G). 2. Blood could not be detected in the following exhibits:- Exhibit No. 13( from H). 3. The origin of the blood stains on exhibits noted below not be determined for the reason stated:- Exhibit No.10 (from G):- Note sufficient for tests." 11. From perusal of the above report it is abundantly clear that after examination the FSL, Udaipur gave its opinion that no blood was found upon the axe (Kulhari) which is weapon alleged to be used to inflict Head injury t the deceased. Therefore, in our opinion, the prosecution has failed to prove its case beyond reasonable doubt on the basis of medical evidence. 12. We have also considered the argument of prosecution with regard to existence of motive. In our opinion, there is no strength in the argument of the learned Public Prosecutor that prosecution has proved its case beyond reasonable doubt to establish the motive because obviously, the appellant is son of the deceased Gisha Puri and as per the statement of PW-22 Ratan Lal, the land in question was mortgaged for Rs. 17,000/- and to redeem the same, the amount was paid by accused appellant Ladu Puri. 17,000/- and to redeem the same, the amount was paid by accused appellant Ladu Puri. The statement of PW-12 Ratan Lal is as under: " eSa yknqiwjh dks tkurk gwWaA blds firkth dk uke ?khlk iqjh gSA yknq iqjh gekjs xkao esa jgrkA yknqiwjh nk: ikuh ihrk gSA 2 lky rd ?khlk iqjh dk [ksr esjs ikl fxjoh FkkA ftls lky Hkj igys NqM+k fy;kA ;g tehu esjs 17 gtkj :0 esa fxjoh FkhA fxjoh dh fy[kki<+h dh FkhA yknqiwjh dks cM+k cPpk FkkA Nksjh ukrs xbZ mldk >xM+k vk;k FkkA tks :0 yknqiwjh ds lk<+q esa eq>s fn;sA esjs :0 vk tkus ls eSaus okil [ksr budks laHkyk fn;kA yknqiwjh eq>s tehu ds ckjs esa dqN ugha dgrk FkkA f?klh iqjh us esjs eqag ds lkeus ckr ugha dh yknqiwjh dh vkSjr igys xkWao esa gh jgrh FkhA fQj og mlds ihgj pyh xbZA yknqiwjh dh vkSjr ihgj D;ksa xbZ bldk eq>s irk ughaA vkSj esjs lkeus dksbZ ckr ugha gqbZA vly LVkEi esjs dks :0 ns fn;s vr% eSaus mls okil ns fn;sA " 13. In view of the above statement of PW-22 Ratan Lal accused appellant Ladu Puri made his all efforts to redeem the property from mortgage and if it was the intention of the accused appellant to take back land of his father and to get released from mortgaged then how the prosecution story for motive can be accepted that appellant was insisting his father deceased Gisha Lal to sale his land. 14. In our opinion it is a case in which the learned trial court has completely ignored the basic principle of law so as to convict the accused that prosecution is required to prove its case beyond reasonable doubt so as to connect any person with the crime if challan is filed on the basis of circumstances evidence. 15. As per the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 the Hon'ble Supreme Court held that if case is based upon circumstantial evidence then prosecution is required to prove its case beyond reasonable doubt while leading complete chain so as to held accused guilty. The following adjudication is made by the Hon'ble Supreme Court in paras nos. The following adjudication is made by the Hon'ble Supreme Court in paras nos. 152 and 153 of the said judgment, which reads as under: "A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (') where the following observations were made: "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. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 16. Last seen evidence is one of species of circumstantial evidence. Last seen evidence as per Part III Section 7 of Indian Evidence Act, 1872, is relevant evidence against accused. For proving this evidence it is essential for the prosecution to prove two things, being that the accused was seen alone in company of deceased and at place where no other person is expected to interfere. Once this is proved burden of proof under Section 106, Indian Evidence Act, 1872, falls upon accused to prove his innocence. For proving this evidence it is essential for the prosecution to prove two things, being that the accused was seen alone in company of deceased and at place where no other person is expected to interfere. Once this is proved burden of proof under Section 106, Indian Evidence Act, 1872, falls upon accused to prove his innocence. It is pertinent to mention that first burden of proof is on prosecution to prove above said elements and it is only after prosecution successfully proves them that burden shifts on accused to prove his defence. Last seen evidence does not by itself necessarily leads to inference that accused committed crime unless same is duly supported by other links in chain of circumstantial evidence unerringly pointing out guilt of accused. Theory of last seen together evidence is thus held to be not of universal application based on which conviction of accused can be sustained. It shall also be noted that last seen evidence is only relevant evidence to complete chain of circumstantial evidence; however, conviction cannot be solely based on this piece of evidence. 17. The aforesaid judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra) has been followed in the recent judgment delivered in the case of State of Himachal Pradesh v. Raj Kumar reported in 2014 Cr.L.J. 2480 and in the case of Sher Singh v. State of Haryana (Cr. Appeal No.1592/2011), decided on 9.1.2015 . 18. We have applied the aforesaid principle in the facts of present case and considered the evidence of prosecution upon which conviction is based. In our opinion, the chain of circumstances is not so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused appellant. It is not possible to say that in all human probability that the accused appellant who is son of deceased Gisha Puri is culprit for committing offence under Section 302 IPC. The finding of the learned trial court to convict the accused appellant for offence under Section 302 IPC is perverse and contrary to basic principle of law, therefore, the judgment impugned deserves to be quashed and set aside. 19. Consequently, this cr. jail appeal is hereby allowed. The judgment dated 4.4.2006 passed by the learned Addl. The finding of the learned trial court to convict the accused appellant for offence under Section 302 IPC is perverse and contrary to basic principle of law, therefore, the judgment impugned deserves to be quashed and set aside. 19. Consequently, this cr. jail appeal is hereby allowed. The judgment dated 4.4.2006 passed by the learned Addl. District & Sessions Judge (Fast Track) No.l, Bhilwara in Sessions Case no.75/2005 convicting and sentencing the accused appellant for the offence under Section 302 IPC is hereby quashed and set aside. The accused appellant Ladu Puri @ Ladu Giri be released forthwith if not need in any other case.Appeal allowed. *******