JUDGMENT 1. - The instant criminal jail appeal has been filed by the life convict Hazari Ram S/o Moda Ram from Central Jail, Bikaner against the judgment dated 25.2.2006 passed by the learned Addl. Sessions Judge (Fast Track) No.1, Bikaner in Sessions Case No.70/2005 whereby the accused appellant was convicted for the offence under Section 302 and 201 IPC on the basis of circumstantial evidence. 2. Brief facts of the case are that a written FIR (Ex.P/12) was filed by PW-6 Bhanwar Lal at 8.00 a.m. on 1.4.2005 before the Police Station, Napasar, District Bikaner in which it was stated that he is resident of Napasar and out of three brothers he and his younger brother Rameshwar Lal are residing in the opposite side in the locality. In the morning on 31.3.2005 at about 10.00 a.m. he alongwith his brother Rameshwar and other persons namely Arjun Ram, Mohan Lal were sitting with his old father, at that time, his neighbour Hajari Ram S/o Moda Ram came there and took his brother Rameshwar with him for the purpose of cutting the Kheep. After some time, due to some work, the complainant went to the house of accused Hajari Ram for calling his brother where his brother Rameshwar and Hajari Ram were sitting and they were taking liquor. As per the author of the FIR, he asked his brother Rameshwar Lal (deceased) to come with him back to the home, but Hajari Ram told that he will come after some time, the complainant came back to the house but Rameshwar Lal did not come, therefore, in the evening he again went to the house of Hajari Ram to call his brother where he saw that the room of Hajari Ram was closed and both Hajari Ram and deceased Rameshwar Lal were not there. The complainant came back to the home and go for sleep. 3. It is further alleged that in the morning on 1.4.2005 when Rameshwar Lal not found in the home then again he went to the house of Hajari Ram and saw that room of Hajari Ram was closed and blood was spread on the floor. The complainant came back to the home and go for sleep. 3. It is further alleged that in the morning on 1.4.2005 when Rameshwar Lal not found in the home then again he went to the house of Hajari Ram and saw that room of Hajari Ram was closed and blood was spread on the floor. The author of the FIR stated in the complaint that when he was going back to home near the house of Mangtu Ram, Hajari Ram met and upon inquiry about Rameswhar Lal it is replied by Hajari Ram that he went alongwith Rameshwar Lal in the house of in-laws at village Sithal where he was beaten by the in-laws and due to the injuries caused to Rameshwar Lal he is lying there you may go there and bring your brother home. The complainant alongwith Arjun Lal and Mohan Lal went to the village Sithal where they saw that body of Rameswhar Lal was lying in the area of Meghwalon Ka Mohallha and upon search it is found that there were number of injuries upon the neck and both the legs and hands were cut down and separated from the body of deceased Rameswhar Lal and there were sign of cycle tyre upon the place of occurrence. The author of the FIR PW-6 Bhanwar Lal suspecting that Hajari Ram has killed his brother Rameshwar Lal and brought his body on cycle and tried to hide the body of Rameshwar Lal. 4. Upon aforesaid complaint submitted by the complainant PW-6 Bhanwar Lal FIR No.29 dated 1.4.2005 (Ex.P/29) was registered under Section 362, 201 IPC by the SHO, Police Station Napasar, District Bikaner and commenced the investigation. 5. In the investigation, after post mortem the body of the deceased was handed over to the family members and during investigation the memos of site of accused and the statement of prosecution witnesses were recorded under Section 161 Cr.P.C.and after completion of investigation, the charge-sheet was filed against the accused appellant on the basis of circumstantial evidence in the court of Judicial Magistrate, First Class, Bikaner under Section 302 and 201 IPC from where the case was committed to the court of Sessions Judge, Bikaner. 6. The learned trial court after framing charge under Section 302 and 201 IPC proceeded to record the prosecution evidence. In support of prosecution case the statement of PW-1 Dr. 6. The learned trial court after framing charge under Section 302 and 201 IPC proceeded to record the prosecution evidence. In support of prosecution case the statement of PW-1 Dr. B.R. Meghwal, PW-2 Harbas Singh, PW-3 Bhanwaroo Khan, PW-4 Bhagirath, PW-5 Chhotu Khan, PW-6 Bhanwar Lal,PW-7 Mohan Lal, PW-8 Arjun Ram, PW-9 Kani Ram and PW-10 Shaitan Singh were recorded and 49 documents were exhibited. After, recording evidence of prosecution, the statement of the accused appellant were recorded under Section 313 Cr.P.C. in which it is categorically stated by the him that whole prosecution story is fabricated and far from the truth. A specific statement was made by the accused that on 31.3.2005 he did not went to the house of Rameshwar Lal nor Rameshwar Lal came to his house, therefore, there is no question of committing murder of him. More so, Rameshwar Lal was his good friend and there was no enmity in between them. 7. The accused appellant did not produce any evidence in defence and only one document was exhibited. 8. The learned trial court after hearing learned counsel for the parties convicted the accused appellant Hajari Ram under Section 302 and 201 IPC vide judgment dated 25.2.2006 in Sessions Case No.70/2005. 9. The learned counsel for the appellant while challenging the finding of the learned trial court vehemently submits that in this case there is no eye witness and prosecution case is based upon circumstantial evidence which is not proved beyond reasonable doubt and all the witnesses are interested witnesses, therefore, they concocted story so as to implicate the accused appellant with the crime on fabricated evidence because there is no evidence of motive on record for which it can be said that appellant was having an intention or motive to kill the deceased Rameshwar Lal. 10. The submission of the learned counsel for the appellant is that learned trial court has relied upon the statement of PW-6 Bhanwar Lal who is author of the FIR and brother of the deceased Rameshwar Lal and upon perusal of his statement it will reveal that the statement of this witness is far from the truth. 11. In the evening he saw the deceased along with the accused appellant Hajari Ram and after taking meal again went to search his brother but he was not found, therefore, after some time, he returned home and sleep. 11. In the evening he saw the deceased along with the accused appellant Hajari Ram and after taking meal again went to search his brother but he was not found, therefore, after some time, he returned home and sleep. As per the statement of this witness in the evening, he saw Rameshwar Lal and Hajari Ram sitting together in the home of Hajari Ram and they were taking liquor, therefore, the prosecution case become doubtful because as per the post moretem report dated 1.4.2005 (Ex.P/1) the body of the deceased Rameshwar Lal was examined at 11.40 a.m. in which doctor gave its opinion that death was caused before 20-22 hours. The learned counsel for the appellant submits that this circumstances disproved the prosecution case, therefore, the testimony of PW-6 Bhanwar Lal deserves to be disbelieved.12-13. The learned counsel for the appellant further invited attention of this court towards the fact that cycle as well as the weapon Kulhari which is said to be recovered at the instance of the accused were sent to the FSL vide communication dated 22.4.2005 but as per the report of FSL, Jodhpur (Ex.P/47) no blood group was detected upon them only human blood was found upon those articles. The learned counsel for the appellant submits that weapon Kulhari was recovered on 4.4.2005 and cycle was recovered on 1.4.2005 then why both these articles were sent for chemical examination after delay of near about 20 days on 22.4.2005. The learned counsel for the petitioner submits that the so called cycle was recovered as per the information given by the accused appellant vide Ex.P/10 on 1.4.2005 at 6.30 p.m. from the shop of one Bhagirath Bhargawa, but the said witness Bhagirath Bhargawa PW-4 specifically said in the cross-examination of his statement that cycle was taken from his shop at 12.30.14. Meaning thereby it is argued that the recovery of cycle is doubtful, so also the witness PW-6 Bhanwar Lal, PW-8 Arjun Ram and PW-9 Kani Ram all are close relatives and upon statements of these witnesses it will reveal that their statements is like the parrot statement, therefore, the conviction based upon such type of evidence is not sustainable in law, but the learned trial court committed grave error while believing the testimony of these witnesses so as to convict the accused appellant for the offence under Section 302 and 201 IPC.15. The learned counsel for the appellant lastly argued that it is a case in which the prosecution has completely failed to produce evidence complete the chain of circumstances so as to come to the conclusion that the accused appellant is guilty of committing offence under Section 302 and 201 IPC, therefore, the judgment may be quashed.16. Per contra, learned Public Prosecutor vehemently argued that no error has been committed by the learned trial court in convicting the accused appellant for offence under Section 302 and 201 IPC because there is trustworthy circumstantial evidence of last seen on record and weapon Kulhari and cycle was recovered at the instance of the accused appellant upon which human blood was found as per the FSL report (Ex.P/47), therefore, it is a case in which the prosecution has led trustworthy circumstantial evidence upon which the learned trial court has rightly convicted the accused appellant for offence of murder. Learned Public Prosecutor further argued that there was motive behind murder of the deceased Rameshwar Lal because there was quarrel in between the accused and his in-laws and to entangle the in-laws in criminal case Rameshwar Lal was murdered and his body was left in the locality of his in-laws house, thereafter, when he met with the witness PW-6 Bhanwar Lal on 1.4.2005 it was categorically informed the accused appellant that his in-laws not only given beating to Rameswhar Lal but him also, therefore, his body is lying in the locality of in-laws from where you can take his body. As per submission, the prosecution has proved the fact of motive by leading trustworthy evidence before the court, which is evident from the statement of PW-6 Bhanwar Lal, PW-7 Arjun Ram and PW-9 Kani Ram, therefore, no interference is called for in the finding given by the learned trial court to convict the accused appellant under Section 302 and 201 IPC.17. Lastly it is submitted by the learned Public Prosecutor that it is a case in which by leading trustworthy and reliable evidence of circumstances, the prosecution has proved its case beyond reasonable doubt, therefore, it cannot be said that finding given by the learned trial court suffers from any illegality or perversity so as to convict and punished the accused appellant for offence under Section 302 IPC.18. After hearing the learned counsel for the parties, we have minutely scanned the entire evidence and considered the grounds taken by the parties. It is evident from the record that there is no eye witness of the incident and the learned trial court has relied upon the testimony of PW-6 Bhanwar Lal, PW-8 Arjun Ram and PW-9 Kani Ram, who are close relatives and upon perusal of their statements it is revealed that none of them are eye witnesses and the circumstances narrated by them are far away from the truth because PW-6 Bhanwar Lal, author of the FIR is real brother of deceased Rameswhar Lal but in very causal manner he has deposed in his statement that in the evening of 31.3.2005 after searching his brother Rameswhar Lal for some time returned back to the home and sleep and in the morning when his father said that Rameswhar Lal has not come back in the night again went to the house of the accused Hajari Ram where Hajari Ram was not found but upon return, he met and narrated the incident to him but no investigation was made from the in-laws of the accused appellant whom allegation was levelled by the accused. In our opinion, without trustworthy and corroborative evidence, the testimony of this witness cannot be accepted in view of the fact that motive which is said to be genesis of this case is not established by any evidence, so also, the story, which is framed by the prosecution to prove the motive is also not established to convict the accused appellant for alleged offence of murder because it is very risky to kill a person and brought the body near the house of in-law so as to implicate them in a criminal case. It may be possible that due to quarrel in between the accused appellant and his wife only to take his wife or to take revenge from in-laws house accused can kill a person who has nothing to do with the family dispute. In view of above the learned trial court is wrong to rely upon such type of concocted evidence so as to accept the evidence for motive. In our opinion, no such story can be accepted merely on presumption so as to convict the accused for offence under Section 302 and 201 IPC. In view of above the learned trial court is wrong to rely upon such type of concocted evidence so as to accept the evidence for motive. In our opinion, no such story can be accepted merely on presumption so as to convict the accused for offence under Section 302 and 201 IPC. The prosecution has heavily relied upon the recovery of cycle as well as the Kulhari upon which no blood group was found, therefore, solely on the basis of recovery of cycle and weapon no conviction can be based in view of the judgment of the Hon'ble Supreme Court 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 merely on the basis of recovery of weapon at the instance of accused when no other trustworthy corroborative evidence is on record to establish the prosecution case.19. 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. 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. 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." 20. 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. 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. 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.21. We have considered the evidence produced on record in the light of the aforesaid adjudication made by the Hon'ble Supreme Court. Admittedly, the witness PW-6 Bhanwar Lal gave the following statement in the trial to prove the last seen, which reads as under:- " 'kke ds le; rwM+h ykus ds fy;s esjs firkth us dgk fd rqe vkSj jkes'oj nksuksa tkdj rwM+h ys vkvksA ml le; jkes'oj ugha FkkA eSa gtkjh ds ?kj jkes'oj dks ryk'kus x;kA gtkjh o jkes'oj nksuksa cSBdj gtkjh ds edku ij 'kjkc ih jgs FksA eSaus jkes'oj dks dgk fd esjs lkFk rwM+h ysdj vkuh gS rks jkes'oj us eq>s dgk fd vki pyks eSa ihNs&ihNs vk jgk gwWaA bl ij eSa gtkjh ds ?kj ls vk x;kA jkes'oj ?kj ugha vk;kA rks esjs firkth us dgk fd rw tkdj rwM+h vdsys gh tkdj ys vkA ftl ij eSa rwM+h ysus vdsyk pyk x;kA rwM+h ykus ds ckn eSa jkensoth ds efUnj pyk x;kA 'kke dks oDr gks x;kA bl ij esjs firkth us dgk fd rw [kkuk [kkdj jkes'oj dks ys vk oks vHkh rd ugha vk;kA fQj eSa b/kj&m/kj ?kwedj okil vkdj lks x;kA vkSj eSa jkensoth ds efUnj ds ikl x;k tgka mldh mB cSB Fkh ogka ,d nks txg x;k oks eq>s ugha feyk eSa ?kj vkdj lks x;kA " 22. For recovery of cycle, PW-4 Bhagirath Bhargawa stated before the court that " iqfyl us tc lk<+s ckjg cts fy[kk i<+h dh rks dksbZ fy[kk i<+h ugha dhA iqfyl us ,d ckj gh esjs c;ku fy;s FksA iqfyl us 'kke dks lk<+s N% cts eq>ls lkbZfdy dh dksbZ cjkenxh ugha dhA "23. For recovery of cycle, PW-4 Bhagirath Bhargawa stated before the court that " iqfyl us tc lk<+s ckjg cts fy[kk i<+h dh rks dksbZ fy[kk i<+h ugha dhA iqfyl us ,d ckj gh esjs c;ku fy;s FksA iqfyl us 'kke dks lk<+s N% cts eq>ls lkbZfdy dh dksbZ cjkenxh ugha dhA "23. Admittedly, in this case there is no eye witness of the incident, and while relying upon circumstantial evidence of last seen and recoveries of cloths and weapon the trial court held the accused appellant guilty for offence under Section 302 IPC,but in our opinion, as per the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra), the circumstances upon which finding of conviction is given should be of a conclusive nature and tendency and must be a chain of evidence so complete that not to lead any reasonable ground for the conclusive consisting with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In this case, we have no hesitation to hold that story of motive which is relied upon by the prosecution is highly improbable so also we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt on the basis of circumstantial evidence brought on record. The recovery of cloths and weapon cannot be relied upon so as to hold accused appellant guilty. Likewise the casual approach shown by the witnesses in their statement for search of deceased loudly speaks that there is no strength in the evidence of prosecution so as to hold accused appellant guilty for offence under Section 302 IPC. Therefore, the benefit of doubt goes in favour of the accused appellant.24. Consequently, the instant jail appeal is hereby allowed. The judgment dated 25.2.2006 passed by the learned Addl. Sessions Judge (Fast Track) No.1, Bikaner in Sessions Case No.70/2005 for conviction and sentence of life imprisonment against the accused appellant Hajari Ram for the offence under Section 302 and 201 IPC is hereby quashed and set aside. The accused appellant shall be released forthwith if not needed in any other case.Appeal allowed. *******