JUDGMENT 1. - Both above criminal appeals are filed under Section 374 (2) Cr.RC. are arising out from the common judgment dated 14.02.2007 passed by learned Additional Sessions Judge (FT) No.1, Bhilwara in Sessions Case No. 28/2006 whereby, both the accused appellants were convicted for offence under Section 394/34 and Section 302/34 IPC and following punishment was imposed upon them:- Section 394/34 IPC:- Imprisonment for life and a fine of Rs. 2000/-, in default of payment of fine, to further undergo two months rigorous imprisonment. "Section 302/34 IPC:- Imprisonment for life and a fine of Rs. 2000/-, In default of payment of fine to further undergo two months rigorous imprisonment. Both the sentences were ordered to run concurrently." 2. As per the prosecution case, the complainant Bakshu PW/3, husband of deceased Smt. Badami filed a written report on 12.08.2005 at Police Station Sadar, Bhilwara in which following Incident was reported:- lsok esa] Jheku Fkkusnkj lkgc lnj HkhyokM+k fuosnu gS fd vkt eSa o esjh iRuh cknkeh mez 27 lky fuoklh dk.kksyh nksuksa esjs iks okyk dqvka ij FksA djhc nks <+kbZ cts dqvka ij ls vdsyh gh ?kj cdfj;ksa dh ysdj xbZA eSa dqvka ij lks x;kA djhc 4 cts esjs firk ukuw th us dqvk ij vkdj crk;k fd cknkeh dks dksbZ vKkr O;fDr ekj dj NksM+ pys x;s rks esjs firk ds lkFk laHkkyus u;k ckM+h ukyk Hkqr ckcth ds flj] dku] xjnu] ukd] gkFk ij fdlh /kkjnkj grh;kj uqdhyk thls pksVs ekj dj gR;k dj nh rFkk cnkuh ds nkbZus iSj ds fxfj;s ds mij ls dkV dj pkUnh dk dM+k dej dh pkUnh dh djrh xys ls nks eknyh;k lksus ds 1 jkeukuh dkV dj ys x;sA ,oe~ dksbZ vKkr O;fDr esjh iRuh dh gR;k dj mlds tsojkr mrkj dj ys x;s gSa] dkuwuh dk;Zokgh djsA tsojkr vkbZUnk ns[kdj igpku dj ldrk gwaA Sd/- fu'kkuh vaxqBk c{kq " 3. Upon aforesaid written report, SHO, Police station, Bhilwara registered an FIR No. 164/2005 under Section 302 IPC and after completing all formalities upon the place of occurrence, the body of deceased Smt. Badami was taken to hospital for the purpose of postmortem where Dr. Anil Lahoti (PW/21) conducted postmortem of the body of deceased Smt. Badami and gave report Ex.P/34 in which 29 Incised wounds were found. Anil Lahoti (PW/21) conducted postmortem of the body of deceased Smt. Badami and gave report Ex.P/34 in which 29 Incised wounds were found. In the Investigation, clip article 1 and some ornaments were found upon the body of deceased, therefore, alongwith clothes Odhanl, lehenga and blouse of Badami the ornaments were taken in possession. Blood stained soil from the site of occurrence was also taken for the purpose of examination by the FSL. The accused appellant Bagudiya @ Papudiya was arrested on 01.09.2005 vide memo Exhibit P/12 on the basis of the evidence of last seen and after his arrest, other accused Ram Lal @ Rama was arrested on 27.10.2005 vide Ex. P/14. Upon their Information, ornaments were recovered. 4. The investigation officer filed charge-sheet In the court of Civil Judge (JD) Cum Judicial Magistrate, First Class, Bhilwara from where the case was committed to the court of Sessions Judge, Bhilwara for trial but from where it was transferred in the court of Additional Sessions Judge (FT), Bhilwara for trial. 5. Learned Additional Sessions Judge (FT) Bhilwara framed charge under Section 302/34, 394 and 394/34 IPC against both the accused appellants and commenced the trial. 6. To prove the prosecution case, statements of 30 prosecution witnesses were recorded by the trial court and 45 documents were exhibited. 7. After recording evidence of prosecution, statement of accused appellants were recorded under Section 313 Cr.P.C. in which they denied the charges leveled against them and produced evidence of two witnesses DW/1 Smt. Rukma and DW/2 Taxman in the defence. 8. Learned trial court after recording evidence of both the sides, finally heard the case and convicted and punished the accused appellants for offence under Section 302/34 and 394/34 IPC vide judgment dated 14.02.2007. The said judgment Is under challenge In this appeal. 9. Learned counsel for the appellants vehemently argued that It is a case In which both the accused appellants are Innocent but Implicated In the case of murder on the basis of the evidence of last seen and the recovery of ornaments of deceased but prosecution has failed to prove the fact of last seen and recovery of ornaments Its case beyond reasonable doubt, therefore, conviction of the offence for aforesaid offences Is not sustainable In law. 10. 10. Learned counsel for the appellants raised following grounds for quashing the judgment Impugned In above appeals (A) Learned counsel for the appellant submits that trial court has wrongly relied upon the testimony of two minor girls PW/15 Ball and PW/26 Kali for the purpose of the last seen evidence because as per their statements In the court they are not the witnesses of last seen, therefore, the bone of finding for conviction of appellant is not sustainable in law. The statement of PW/12 Rajender has wrongly been relied upon as evidence of last seen because upon perusal of statement of PW/12 it will reveal that this witness is narrating the fact of 09.08.2005 which Is three days before the date of occurrence, which his 12.8.2005. (B) Learned counsel for the appellant further submits that recovery of ornaments of deceased Smt. Badami at the instance of accused appellant Ram lal after two and half months is totally doubtful because I as per Ex. P/4 no blood was found upon the ornaments which is said to be recovered at belated stage but those ornaments were sand for examination and In the FSL report, the blood was found upon the ornaments meaning thereby, a story was concocted framed by the prosecution so as to connect the accused appellants with the crime. (C) Learned counsel for the appellant argued that even If it Is presumed that ornaments were recovered as per information given by the appellants then also those ornaments were required to be identified before the Magistrate but surprisingly the complainant himself was present at the time of recovery of articles and after recovery of ornaments upon site itself, the ornaments were identified and upon that identification the accused appellants were connected with the offence but as per Rule 7.32 of Rajasthan Police Rules, 1965, the identification of property recovered In the investigation Is mandatory before the Magistrate, the finding of conviction upon so called recovery of ornament is contrary to law, therefore, the accused appellants are entitled for acquittal from the charges levelled against them. (D) Learned counsel for the appellant submits that so called weapon axe which is alleged to be used for inflicting Injury was recovered after two months from open place 'Nala' which was full of water, therefore, recovery of sharp edged weapon axe at the instance of appellant cannot be accepted for conviction because no blood was found upon recovered weapon axe. (E) It Is also submitted that all through identification parade was conducted vide Ex.P/16 infront of witness PW/15 Ball and PW/26 Kali but these witnesses failed to prove the memo of identification parade before the court In their statement. 11. Learned counsel for the appellants argued that on the basis of aforesaid ground, it Is obvious that appellants were arrested without any trustworthy evidence and in the trial also, the prosecution has failed to prove the fact of last seen and recovery of ornament and weapon beyond reasonable doubt, therefore, appellants are entitled for acquittal. In support of aforesaid arguments, learned counsel for the appellants invited attention of this Court towards judgments reported in the case of Bhupan v. State of Madhya Pradesh reported in AIR 2002 SC 820 and Mani v. State of Tamil Nadu reported in 2008 Cr.L.R (SC) 306 in which the Hon'ble Supreme Court held that conviction cannot be based on mere fact of recovery of weapon at the instance of accused when other evidence produced by the prosecution Is not trustworthy, therefore, the finding given by the trial court for conviction and sentence passed against the accused appellants may be quashed. 12. Per contra, learned Public Prosecutor submits that as per statement of PW/15 Ball and PW/26 Kali it is clear that the day on which the Incident took place, both these witnesses were taking bath In the water tank near the field and both the accused appellants were also jumped In water for taking bath, therefore, the trial court has rightly relied upon the testimony of these witnesses to prove the fact of last seen. 13. 13. With the regard to finding of conviction on the basis of recovery of ornaments, it is submitted that as per information given by the accused appellant Ram Lal @ Ram, the ornaments of deceased were recovered upon which blood was dected as per report of FSL, therefore, it is a case in which prosecution has proved its case beyond reasonable doubt so as to connect the accused appellants with the crime. 14. Learned Public Prosecutor vehemently submit that number of injuries were inflicted by sharp edged weapon by the accused so as to take ornaments from the body of deceased Badami, therefore, it is a case in which heinous offence has been committed by the accused appellants and the trial court has rightly relied upon the testimony of witnesses of last seen and recovery to give finding against the appellants, therefore, the judgment impugned based upon trustworthy evidence does not require any interference. 15. After hearing the learned counsel for the parties, we have considered the arguments advanced by the learned counsel for the appellants and perused the entire record of this appeal. The judgment Impugned is based upon the evidence of last seen as well as recovery of ornaments and weapon at the Instance of accused appellants, therefore the following question arise for consideration In the light of the arguments advanced by the learned counsel for the appellants, which is: "Whether the learned trial court has rightly arrived at with the finding that the accused appellants are guilty for offence under Section 302/34 and 394/34 IPC on the basis of evidence of last seen as well as recovery of ornaments and other articles on the basis of evidence on record? Consideration upon the evidence of last seen: 16. In this case, admittedly, there is no eye witness but conviction is based upon the circumstantial evidence of last seen. The accused appellant Bagudiya @ Pupudiya was arrested on 1.9.2005 as per arrest memo (Ex.P/12) and accused appellant Ram Lal was arrested vide Ex.P/14 on 27.10.2005. Meaning thereby, the accused appellant Bagudiya @ Pupudiya was arrested after 23 days of the occurrence on 1.9.2005 and accused Ram Lal was arrested on 27.10.2005 after two and half months. Both the accused appellants were arrested on the basis of statement of PW- 15 Bali, PW-26 recorded under Section 161 Cr.RC., so also, the statement of PW-12 Rajendra. Meaning thereby, the accused appellant Bagudiya @ Pupudiya was arrested after 23 days of the occurrence on 1.9.2005 and accused Ram Lal was arrested on 27.10.2005 after two and half months. Both the accused appellants were arrested on the basis of statement of PW- 15 Bali, PW-26 recorded under Section 161 Cr.RC., so also, the statement of PW-12 Rajendra. The witness PW-12 Rajendra stated in his statement that I am working in Ajay Synthetic Factory and on 9.8.2005 when I was going to home after performing duties, at that time, near bridge he saw that a person of round face and short height was trying to run away from the place when he was going on cycle. Meaning thereby, the statement of PW-12 Rajendra has nothing to do with the incident took place on 12.8.2005 because he has narrated the incident of (9.8.2005. 17. The witness PW-15 Bali is a girl of 13 years of age and in the statement it is stated by her that before 8 months when she went near Gawardl Dam for grudging cattle at that time, she get bath in the water tank along with PW-26 Kaliya when they come out from water tank at that time two persons jumped in the water tank, wearing the cloths and they washed their cloths also but none of the fact was disclosed by the witness PW-15 about last seen, therefore, this witness is not the witness of last seen with the deceased. In view of the above fact, even if It is presumed that In the identification parade she identified the accused appellants then also it cannot be said that she is the witness to prove the fact of last seen. In our opinion the statement of PW-15 Bali is not reliable so as to convict the accused appellants for alleged offence of murder on the ground of last seen. 18. We have also perused the statement of PW-26 Kail who has reiterated the facts stated by the witness PW-15 Ball. Meaning thereby, PW-26 Kali cannot be treated the witness to prove the fact of last seen. Upon above facts, the question of Identification of accused appellants by both the witnesses cannot be treated evidence to connect the accused appellants with the crime because nothing has been said by them with regard to last seen together with the deceased. Meaning thereby, PW-26 Kali cannot be treated the witness to prove the fact of last seen. Upon above facts, the question of Identification of accused appellants by both the witnesses cannot be treated evidence to connect the accused appellants with the crime because nothing has been said by them with regard to last seen together with the deceased. The finding of the learned trial court to accept their testimony for the purpose of last seen is not justified, therefore, upon the testimony of all the three witnesses It can be said that there is no strength In evidence to connect the accused appellant with the crime, therefore, conviction of appellant Is not sustainable In law.Regarding recovery of ornaments and other material: 19. Upon perusal of the entire evidence with regard to recovery, we find that as per the prosecution case, after arrest, the accused appellant Ram Lal identified the place of occurrence vide Ex.P/2 and P/3 and upon information given by him vide Ex.P/4 ornament of gold Ramnavami of 9.350 grams, two Madaliyas and one small Madaliya was recovered from the house of accused appellant Ram Lal. The recovery was made in the presence of two witnesses, but it is nowhere mentioned in the recovery memo Ex.P/4 that upon those ornaments were not stained with blood but it is very strange that those ornaments which were said to be recovered as per Information given by the accused Ram lal on 28.10.2005 after two and half months were sent to FSL, Udaipur and FSL, Udaipur gave It report (Ex.P/44) that blood was found upon those ornaments. 20. In our opinion, when in the recovery memo there is no mention that the ornaments are stained with blood then how the golden ornaments recovered at the instance of the accused appellant Ram Lal were sent for FSL examination and how the blood group "A" was found upon those ornaments. In view of the above, It Is beyond imagination that blood can be found upon the ornament after two and half months from the date of Incident. The recovery of ornaments from accused appellant Ram Lal Is seriously doubtful. We have also examined the fact of recovery of weapon axe upon Information given by the accused Bagudiya @ Pupudiya vide Ex.P/14. The weapon axe was recovered vide Ex.P/23 from water tank situated In right side of dam In the village. The recovery of ornaments from accused appellant Ram Lal Is seriously doubtful. We have also examined the fact of recovery of weapon axe upon Information given by the accused Bagudiya @ Pupudiya vide Ex.P/14. The weapon axe was recovered vide Ex.P/23 from water tank situated In right side of dam In the village. Admittedly, the axe was recovered from water tank, upon which no blood was found nor the said weapon was sent for chemical examination to the FSL. Further, the axe was recovered on 7.9.2005 upon Information given by accused appellant Bagudiya @ Pupudiya. In our opinion, the recovery of axe upon which no blood was found is not relevant so as to connect the accused appellant with the crime. Similarly, vide Ex.P/24 T-shirt of accused appellant Bagudiya @ Pupudiya was recovered upon that also no blood was found. Meaning thereby, the recovery of T- shirt is also not relevant so as to held the accused appellant guilty. The accused appellant Bagudiya @ Pupudiya gave information vide Ex.P/41 with regard to ornament and in pursuance of said information vide Ex.P/10 one silver ring of 600 grams and ornament Kargadi of silver of 900 grams was recovered as per information given by the accused appellant Bagudiya @ Pupudiya. 21. The accused appellant Bagudiya @ Pupudiya gave information vide Ex.P/41 with regard to ornament and in pursuance of said information vide Ex.P/10 one silver ring of 600 grams and ornament Kargadi of silver of 900 grams was recovered as per information given by the accused appellant Bagudiya @ Pupudiya. 21. We have perused the statements of PW-3 Baksu, who has categorically stated in this statement, which is as follows: " yk'k feyus ds 20&25 fnu ckn iqfyl us eq>s leksMh pkSjkgs ij cqyk;k eSa ogka x;k iqfyl ds lkFk cxqfM+;k FkkA tks yEcs dj dk FkkA ogka vkxs vkxs eq0 o ihNs iqgfy o eSa FkkA eqy- ogka >ksiM+h esa ys x;kA tks >ksiM+h [kqyh Fkh inkZ ugha FkkA ogka ,d isVh feyh ftldh pkch fudky dj rkyk [kksyk ftuesa ls d.kxrh o dM+h fudky dj iqfyl dks nhA iqfyl mudks diM+s esa cka/kdj fly yxkbZA ;s jdes esjs dks ogka igpuokbZ tks jdesa esjh iRuh cknkeh dh FkhA QnZ tCrh izn'kZ ih0 10 gSA ?kVuk ds Ms<+ eghus ckn iqfyl ds lkFk NksVs dn dk Nksjk gehjx<+ rkykc dh iky ekfy;ksa ds eksgYys ij ys x;kA vkxs vkxs eqy- o ihNs iqfyl o eSa x;sA ;s Hkaoj dh >ksiM+h ds ikl ys x;kA ogka >ksiM+h Fkh ftlds fdokM+ yxk FkkA mlesa ,d isVh esa ls jkeuoeh o ekafnfy;s fudky dj fn;sA iqfyl us mDr jkeueh o ekafnfy;s eq>s crk;sA eSaus ns[kdj igpkuk oks esjh iRuh ds FksA QnZ cjkenxh izn'kZ ih0 4 eSaus ns[kdj igpkuk oks esjh iRuh ds FksA QnZ cjkenxh izn'kZ ih0 4 gS ftl ij Hkh iqfyl us esjh fu'kkuh djkbZ FkhA iqfyl ds ckn iksLVekVZe yk'k eq>s ns FkhA izn'kZ ih0 11 gSA ftl ij esjh fu'kkuh gSA uksV%& bl dsl dk eky lacaf/kr Fkkuk ls vnkyr esa is'k fd;kA tks flyfpV can gS vnkyr ds vkns'k ls lhy rksM+h xbZ o eky [kksyk x;kA gkftj vnkyr d.kxrh o ikao ds dM+h ogh gS tks esjh iRuh dh gSA d.kxrh vkfVZdy ua0 1 gSA ikao dh dM+h vkfVZdy ua0 2 gSA uksV%& bl dsl dk eky ,d diM+s dh iksVyh ftl ij ,Q0,l0,y0 dh lhy yxh gSA vnkyr ds vkns'k ls lhy rksM+h xbZ o eky [kksyk x;kA gkftj vnky nks cM+s ekanfy;s o ,d NksVk o ,d jkeueh ns[kdj crk;k fd ;s esjh iRuh ds gS tks eqy- us cjken djk;sA nks ekanfy;s cM+s vkfVZdy ua0 3 gSA ,d NksVk ekanfy;k vkfVZdy ua0 4 gSA jkeuoeh vkfVZdy ua0 5 gSA gkftj vknyr vks<+uh] ygaxk o Cykmt tks cknkeh ds gSa vkfVZdy ua0 6 gSaA " 22. Upon perusal of above statement it is clear that the ornaments which is said to be recovered as per information given by the appellants were immediately identified by the complainant Baksu PW-3 and no identification was made before the Magistrate. Meaning thereby, it is a case in which the investigating officer has made very casual investigation because soon after recovery of ornaments, the ornaments were shown to the complainant Baksu and upon identifying by him, the investigating officer accepted the recovery of ornaments, in our opinion, when ornaments were not opened before the Magistrate for the purpose of identification then it cannot be said that prosecution has proved its case beyond reasonable doubt so as to connect the accused appellants with the crime on the basis of so called recovery of ornaments of deceased. We have also perused the Rajasthan Police Rules, 1965 submitted by the learned counsel for the appellants in which the procedure is laid down for identification of property in the investigation. Rule 7.32 in relation to identification of property is as follows: "7.32 Identification of property.- (i) it is of utmost importance that the articles of property seized by the investigating agency shall be properly sealed on the spot and it should be ensured that the seals are intact. (ii) The number of articles to be mixed up with the articles of property required to be put to identification test should rest with the Magistrate before whom the proceedings are to be carried on. (iii) The articles of property to be mixed up to with the articles of property put for the purpose of identification should also be contained in sealed bundles. (iv) The seals must be all along intact and can only be opened before the Magistrate conducting the identification proceedings. (v) As in the identification parade of suspects, witnesses are to be called on by one and no succeeding witness should communicate in any manner with the preceding one. (vi) It is also important to note that the articles to be mixed up should be similar in appearance to those for identification. (vii) The prosecuting inspector or the prosecuting sub-inspector may be present at the time of the identification proceedings. (viii) The articles to be mixed up should be arranged for production according to the instructions of the Government which they may issue in this behalf. (vii) The prosecuting inspector or the prosecuting sub-inspector may be present at the time of the identification proceedings. (viii) The articles to be mixed up should be arranged for production according to the instructions of the Government which they may issue in this behalf. However, there should be given no change, whatsoever for an objection that the articles brought for being mixed up were exposed to the identifying witness before identification proceedings took place. The arraying of such articles to all intents and purposes should be by an agency other than the police. (ix) Proceedings of the identification of property shall be recorded in Form 7.32 (ix)." 23. In this case, no identification test was conducted before the Magistrate with regard to ornament recovered from the accused appellants and in case of Bhupan v. State of Madhya Pradesh reported in AIR 2002 SC 820 the Hon'ble Supreme Court held that conviction cannot be based on merely fact of recovery of sword at the instance of the accused. There must be cogent and trustworthy evidence so as to convict the accused appellants with the crime. Para no.9 of the said judgment is as follows: "9. It is to be noticed that in this dying declaration, the deceased has stated that he was assaulted by Bappan, Ramji Bhura and 4- 5 other persons. So far as the appellant is concerned, the overt act attributed to him is confined to the act of slapping him only. The declarant then says that when he started running then he was attacked from behind with sword and farsi. He does not state or indicate which of the accused persons, as a matter of fact, attacked him, in that manner which resulted in his death. From the nature and number of injuries suffered by the deceased, it is clear it could have been caused not by a single person but by a group of persons and in such a swift manner when we was admittedly on the run the deceased had no occasion to notice which assailant caused the injuries particularly the total injuries to him. The courts below have chosen to discard this evidence, so far as it pertains to the other accused persons including Ramji Bhura whose name is specifically mentioned in the dying declaration. The courts below have chosen to discard this evidence, so far as it pertains to the other accused persons including Ramji Bhura whose name is specifically mentioned in the dying declaration. That being the case, it is rather difficult to accept this dying declaration as the sole basis to come to the conclusion that it has implicated the appellant of having caused the injuries leading to his death. That apart, in the dying declaration, it is shown that the appellant's caste is 'Thakur', whereas during the course of trial it has come in evidence that the appellant is, as a matter of fact, Yadav which is seen from certain court records maintained in some earlier proceedings. The courts below have rather brushed aside this factor which, in our opinion, is a material fact necessary to prove the identification of the person named in the dying declaration. If, as a matter of fact, the deceased know the appellant then he would not have committed the mistake of mentioning wrong caste which throws an element of doubt about his knowledge as to the possibility of the deceased having identified the appellant. In this regard, learned counsel for the appellant placed reliance on the judgment of this Court in the case of Bhopa Prasad v. State of Maharashtra wherein in a similar case of identification by a region from where the accused came, this court held that the difference pointed out as to the description of the assailant was a material difference casting doubt on the identification of the assailant. Therefore, we are of the considered opinion that it is not safe to rely on this dying declaration to base a conviction, if this piece of evidence is eschewed from consideration, then the mere fact of the prosecution having recovered a sword at the instance of the appellant, on facts and circumstances of this case, would not permit us to base a conviction under Section 302 IPC in the background of the fact that almost all other evidences produced by the prosecution are disbelieved by the courts below." 24. Similarly, in the case of Mani v. State of Tamil Nadu reported in 2008 Cr.L.R. (SC) 306 the Hon'ble Supreme Court held that discovery is a weak type of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Similarly, in the case of Mani v. State of Tamil Nadu reported in 2008 Cr.L.R. (SC) 306 the Hon'ble Supreme Court held that discovery is a weak type of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Para no.21 of the said Judgment Is as follows:- "21. The discovery is a weak kind of evidence and cannot be I wholly relied upon on and conviction In such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the , prosecution has failed to prove that the house where alleged blood stains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the Courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory. We also fail to understand the finding of the High Court in respect of the motive. In our opinion, there was no motive whatsoever much less entertainable by the present appellant. He had nothing to do with the straying cattle nor was he a party to subsequent altercation between P.W.1 Arunachalam and the accused No. 2 Moyyasamy. Lastly, there is nothing on record to show that he was a henchman set up to take revenge by accused no. 2 Moyyasamy and he was set up by the accused no. 1 to revenge. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive ' entertainable by the appellant. Therefore, even for that circumstance has to go." 25. 2 Moyyasamy and he was set up by the accused no. 1 to revenge. We also did not understand that if there was no motive for Moyyasamy, how could there be any motive ' entertainable by the appellant. Therefore, even for that circumstance has to go." 25. On the basis of above discussion, it is abundantly clear that due to lapse on the part of the prosecution for not making identification test before the Magistrate, we are of the opinion that recovery of alleged ornaments cannot be accepted as an evidence to held accused appellants guilty for offence under Section 302 and 394/34 IPC. The prosecution is required to prove its case beyond reasonable doubt but whole prosecution case is based upon evidence of last seen and recovery of weapon and ornaments, but none of the evidence produced against the accused appellants before the court can be accepted to connect the accused appellants with the alleged crime of murder. 26. The witness of last seen together were the same witnesses who were examined to prove the identity of the appellants, but in our opinion, as per the statement, identity of the accused appellants has not been established because it is a basic principle of law that to put in motion the theory of last seen together, identity of the accused and the deceased, both must be established beyond all reasonable doubts, but in this case, the prosecution has utterly failed to establish the fact of last seen of the accused appellants so as to prove the circumstances that the appellants and deceased were lastly seen together. 27. In the case of 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. 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. 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." 28. Last seen evidence is one of species of circumstantial evidence. Last seen evidence as per Part II 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. 29. In view of the above discussion it emerges from the evidence on record that there is no eye witness of the incident, so also, there is no evidence of last seen of appellants together with the deceased and the so called recovery of ornaments and weapon are not proved by leading trustworthy evidence by the prosecution. The unreliable evidence of last seen and the recovery of ornaments of deceased after delay of two and half months from the accused appellant Ram Lal cannot be treated as an evidence so as to connect and convict the accused appellants for offence under Sections 302/34 and 394/34 IPC, therefore, the finding of conviction given by the trial court against the accused appellants is totally perverse and contrary to the evidence on record, so also, the prosecution has failed to prove its case beyond reasonable doubt so as to connect the accused appellant with the alleged offence, therefore, the benefit of doubt goes in favour of the accused appellants. 30. Consequently, we are of the opinion that conviction and sentence passed under Section 302/34 and 394/34 IPC against the accused appellants is not sustainable in law, therefore, both these appeals are hereby allowed. The judgment dated 14.2.2007 passed by the learned Addl. Sessions Judge (Fast Track) No.1, Bhilwara in Sessions Case No.28/2006 against the accused appellants is hereby quashed and set aside. The judgment dated 14.2.2007 passed by the learned Addl. Sessions Judge (Fast Track) No.1, Bhilwara in Sessions Case No.28/2006 against the accused appellants is hereby quashed and set aside. The accused appellants may be released forthwith if not needed in any other case. *******