JUDGMENT 1. - Both these appeals are filed by the same appellant. Appeal No. 933/2007 has been filed by counsel for appellant whereas appeal No. 610/2008 has been sent through jail, hence both appeals are clubbed together and decided by this common judgment. 2. These appeals have been filed against the judgment dated 30.3.2007 passed by Additional Sessions Judge (Fast Track) No.1, Tonk in Sessions Case No. 64/2004(66/04) whereby the accused appellant has been convicted and sentenced as under: Section 302 IPC: Life imprisonment and fine of Rs. 10,000/- in default of payment of fine to undergo one month S.I. Section 201 IPC: 7 years R.I. and fine of Rs. 1,000/- in default of payment of fine to undergo three months S.I. (All the sentences were ordered to run concurrently.) 3. The short facts of the case are that PW/1 Ladulal lodged a written report on 18.5.2003 with the contention that today at 12.00 A.M, Dhannaram informed him that a dead body is lying in Kaukala Kua. On this written report, FIR No. 108/2003 was registered at Police Station Baroni Distt. Tonk and after investigation, charge-sheet was filed against the appellant. The case was committed and tried by Additional Sessions Judge (Fast Track) No.1, Tonk. 4. The charges were framed against the appellant for the offence under Section 302 and 201 IPC. The said charges were denied by the accused and he claimed to be tried. The prosecution examined PW/1 Ladulal, PW/2 Kamlesh, PW/3 Narayanlal, PW/4 Bhuri Singh, PW/5 Malkhan Singh, PW/6 Dhulichand, Jonwal, PW/7 Dr. Devendra Prasad Swarnkar, PW/8 Yograj, PW/9 Mustafa Beg, PW/10 Dharmendra Yadav, PW/11 Sanjay Chadda, PW/12 Raju S/o Lakhan, PW/13 Lokendra Paliwal, PW/14 Ujjwal Sharma and PW/15 Sundarlal to support its case. Prosecution has also relied upon documents Ex.P/1 to P/20. 5. Statements of accused were recorded under Section 313 Cr.P.C. In defence no witness was examined but documents Ex.D/1 and D/2 were produced. 6. After conclusion of trial, the present appellant has been convicted and sentenced, as referred above, hence these appeals. 7. The contention of the counsel for the appellant is that the appellant has been implicated falsely. 5. Statements of accused were recorded under Section 313 Cr.P.C. In defence no witness was examined but documents Ex.D/1 and D/2 were produced. 6. After conclusion of trial, the present appellant has been convicted and sentenced, as referred above, hence these appeals. 7. The contention of the counsel for the appellant is that the appellant has been implicated falsely. Admittedly, dead body was found on 18.5.2003 in District Tonk whereas appellant was arrested on 7.9.2004 about 15 months after the incident and on false recovery and evidence of last-seen he has been implicated, hence he be acquitted.Per contra, the contention of the learned Public Prosecutor is that witnesses PW/10 Dharmendra Yadav, PW/11 Sanjay Chadda and PW/12 Raju deposed against the appellant that he was Khalasi on the truck and deceased was driver and they left for Kota in truck No. RJ 05G 2742 and thereafter dead body of the deceased was found in Baroni and only appellant was accompanying the deceased and no explanation was given by the appellant for the death, hence evidence of last seen is sufficient to connect the appellant with the crime. Apart from it, Panna (tool) with which murder was committed is also recovered at the instance of the appellant and no interference is needed. 8. Heard the learned counsel for the parties and perused the judgment under appeal as well as paper book and original record of the case. 9. PW-1-Ladulal is the person who reported the incident to the police and his contention is that person grazing the cattle informed him that one dead body was lying in Kaukala Kua. He went to the well and saw dead body and thereafter reported the matter to the police. He also deposed about the investigation conducted by the police as regards the site inspection and lifting of the soil, preparation of Panchnama etc. PW/5 Malkhan Singh father of the deceased stated that his son Mahendra Singh was driver of truck of Kallu and Dhansu @ Jai Kishan, present appellant was Khalasi on the truck but in cross-examination he stated that vehicle owner informed him that Dhansu @ Jai Kishan was Khalasi on the truck. Mahendra Singh never told him that Jai Kishan is Khalasi on the truck and he has no knowledge that Jai Kishan is Khalasi on the truck. PW/6 Dhulichand Jonwal conducted autopsy on the dead body and found the following injuries: "1. Mahendra Singh never told him that Jai Kishan is Khalasi on the truck and he has no knowledge that Jai Kishan is Khalasi on the truck. PW/6 Dhulichand Jonwal conducted autopsy on the dead body and found the following injuries: "1. Lacerated wound 4" x 1/2"x bone deep on forehead middle and upper part. 2. Lacerated wound 21/2"x 1/2" bone deep on left side forehead. 3. Lacerated wound 3"x 1/2"x bone deep on right side forehead. 4. Lacerated wound 2"x11/2" bone deep on Rt. Temporal region. 5. Lacerated wound 11/2"x 1/2"x 1/4" Rt. Maxilla of face. 6. Lacerated wound 1/2"x 1/2"x 1/2" below Rt. Ear." As per post-mortem report (Ex.P/10), cause of death is Coma due to injuries to the head and all injuries were found to be ante mortem in nature and Medical Board was also of the opinion that death occurred before 5-6 days of the post-mortem examination i.e. on 18.5.2003 at 1.40 P.M. 10. The prosecution has mainly relied on the evidence of last seen the appellant with the deceased. PW/10 Dharmendra Yadav stated that he is owner of the truck No. 05 G 2742 and Patra @ Mahendra Singh was driver of the truck and appellant was Khalasi on the truck. On 13.5.2003, the truck left for Kota after loading glass bangles from Firojabad. He further deposed that when truck left for Kota, Mahendra was driver and Raju, the present appellant was Khalasi and later, he was informed that the truck had not reached to Kota. He searched for the vehicle and it was found in Sultanganj. He went there and saw cabin and six tyres in burnt condition. He informed the incident to police. Driver and Khalasi were not on truck. Later Malkhan Singh (PW/5) brought Jai Kishan to him who informed him that Mahendra Singh had put the truck on fire. He further deposed that Jai Kishan earlier phoned him that vehicle met with an accident. He further admits the fact that appellant informed him that on way to Jaipur, some persons abducted Mahendra Singh and vehicle was lying there. Later Malkhan Singh (PW/5) brought Jai Kishan to him who informed him that Mahendra Singh had put the truck on fire. He further deposed that Jai Kishan earlier phoned him that vehicle met with an accident. He further admits the fact that appellant informed him that on way to Jaipur, some persons abducted Mahendra Singh and vehicle was lying there. Further he stated that on making enquiry he found that truck had not met with an accident and Raju told him that appellant was driving the vehicle and they went upto Firojabad, U.P Border but all these facts have not been narrated by the witness in his earlier statement (Ex.D/1) and in cross-examination, he stated that he had not seen appellant and deceased going together. He further admits the fact that father of deceased levelled allegation against him for abduction of his son and he represented to S.P., Firojabad. 11. PW-11-Sanjay Chadda is the transporter from where the goods were loaded in the truck. He stated that truck owner was Kalu @ Dharmendra Yadav and he informed the police that truck driver was Patra and Khalasi Dhasu in reply to notice Ex.P/18 but in Ex.P/18 there is no narration of the fact that appellant was Khalasi on the truck and Investigating Officer has admitted the fact that first time on 6.6.2003, Dharmendra came in picture and he informed that Jai Kishan was Khalasi on the truck on the strength of statement of PW/10 Sanjay Chadda, prosecution tried to build a case that deceased and appellant left for Kota on Truck No. 05 G 2742 and thereafter Mahendra Singh was found dead. Hence the facts were especially within the knowledge of the appellant only that how Mahendra Singh died and he has to prove his innocence. 12. PW-10-Dharmendra Yadav denied the fact that truck had not met with the accident but he clearly admits that when truck was found at Sultanganj the cabin and tyres were in burnt condition which clearly rules out the fact that truck had not met with an accident and furthermore, he admitted the fact that father of deceased lodged complaint against him that he abducted the deceased. Further, distance between Firojabad and Kota is 550 K.M. as stated by PW/10 Dharmendra Yadav and truck was found at Tonk which is also in between Firojabad and Kota and nothing has been brought on record that what inspired when truck left from Firojabad till it reached to Baroni and defence came with a case that it was Dharmendra who abducted Mahendra Singh. 13. PW-12-Raju stated that three years back he saw the appellant driving the vehicle and on enquiry he informed him that the truck met with an accident and public caught hold of Mahendra Singh but in cross-examination he could not connect the incident with the date of present incident and he also made departure from his earlier statement Ex.D/2 and furthermore, his statement was recorded after 15 months of the incident which makes it doubtful. 14. PW-13-Lokendra Paliwal is the Investigating Officer who deposed that Dharmendra informed him that truck was found near Agra in burnt condition and Sanjay Chadda has not informed him about the name of Khalasi. He also admits the fact that during investigation, he had not collected any fact that deceased left Kota along with appellant and for the first time on 6.6.2003 Dharmendra told him that deceased went with Jai Kishan but no other witness corroborated this fact and it was only Dharmendra who introduced name of the present appellant and reason is also obvious that father of the deceased lodged complaint against Dharmendra for abduction of his son and possibility cannot be ruled out that to save his own skin, he coined the story that appellant left Kota with Mahendra Singh and story of last seen is designed by the witness. PW/13 Lokendra Paliwal Investigating Officer also admitted the fact that father of deceased lodged report against Dharmendra for abduction of his son and he also testified the fact that no witness deposed to him that appellant was taking truck to Jaipur or Firojabad. Hence from the deposition of the Investigating Officer it can be concluded that evidence of last seen is a creation of PW/10 Dharmendra Yadav as complaint was lodged against him for the abduction of deceased by the father of the deceased. Hence from the deposition of the Investigating Officer it can be concluded that evidence of last seen is a creation of PW/10 Dharmendra Yadav as complaint was lodged against him for the abduction of deceased by the father of the deceased. As per prosecution, deceased died 5-6 days prior to 18.5.2003 whereas the story that appellant left with deceased on 13.5.2003 from Firojabad was introduced first time on 6.6.2003 and statement of PW/12 Raju was recorded on 6.9.2004 to further fortify this fact, hence it is not safe to believe these witnesses. 15. It may be noted that while answering charge, the appellant raised the plea that Kallu @ Dharmendra Yadav and Bhaya abducted Mahendra Singh and thereafter by paying Rs. 1,50,000/- compromise was arrived in the matter and same narration is reiterated in statement under Section 313 Dr.P.C. The appellant took his defence on first opportunity and is also supported by the Investigating Officer. 16. In view of the above, the prosecution failed to prove the fact against the appellant that he was last seen with the deceased and otherwise also there is no evidence to support the contention that appellant left for Kota with deceased or he was last in the company of the deceased. For the sake of arguments, even if it is assumed that he left in Truck No. RJ 05G 2742 for Kota along with Mahendra Singh but he has made a plausible explanation which is also supported by the deposition of Investigating Officer that Dharmendra abducted Mahendra Singh on way to Kota, hence the fact cannot be termed as evidence of last seen and not sufficient to place reliance for conviction of the appellant. Furthermore the evidence of last seen is weak type of evidence and needs further corroboration which is missing here. Reliance has been placed on the judgment of Supreme Court in State of Goa v. Sanjay Thakran and Anr. reported in (2007) 3 SCC 755 , wherein the Supreme Court in paras 31, 32, 33 & 34 of the said judgment has held, as under:- "31. . . . . It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. . . . . It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodhraj v. State of J & as under : (SCC p.63, para 31) "31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. .." [See also : State of U.P. v. Satish, (SCC para 22) and Ramreddy Rajesh Khanna Reddy v. State of A.P., (SCC para 27)]. 32.In Ramreddy Rajesh Khanna Reddy, this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration. 33.In Jaswant Gir v. State of Punjab , it was observed that (SCC p.441, para 5) "5. . . . . . In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the 'last seen' evidence, even if the version of PW 14 in this regard is believed. . . . . . In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the 'last seen' evidence, even if the version of PW 14 in this regard is believed. .." 34.From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case". 17. The other fact which has been brought on record against the appellant is that Panna (tool) has been recovered at the instance of the appellant. PW/14 Ujjawal Sharma Investigating Officer stated that on the information of appellant, Panna was recovered but he admitted the fact that Panna was recovered after one and half years of the recovery of dead body and that too from an open place hence recovery of Panna cannot connect the appellant with the crime. 18. The other fact which has been brought on record is the identification of the place of occurrence by appellant vide Ex.P/8. Admittedly, dead body was first seen by Dhannaram who informed this fact to Ladulal (PW/1) and police recovered the same and Panchnama was prepared on 18.5.2003, hence again discovery of same fact at the instance of appellant is not a legally admissible evidence and cannot be relied upon to connect the appellant with the crime. 19. In the totality of the circumstances, it can be concluded that prosecution has not put any circumstance which can individually or collectively connect the appellant with the crime. The chain of circumstances is not complete so as to reach to a conclusion that it is only the appellant who committed the offence and none-else. The defence story is probable one and puts doubt on the veracity of the prosecution case and we are inclined to grant benefit of doubt to the appellant.In the result, the appeals are allowed. The judgment under appeal dated 30.3.2007 passed by Additional Sessions Judge (Fast Track) No.1, Tonk in Sessions Case No. 64/2004(66/04) is set aside. The appellant is acquitted of the charges levelled against him. The judgment under appeal dated 30.3.2007 passed by Additional Sessions Judge (Fast Track) No.1, Tonk in Sessions Case No. 64/2004(66/04) is set aside. The appellant is acquitted of the charges levelled against him. Appellant Jai Kishan @ Dhansu @ Raju is in jail, he be released forthwith, if not required in any other case. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellant Jai Kishan @ Dhansu @ Raju is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.Appeals allowed. *******