JUDGMENT 1. - On the intervening night of 22nd and 23rd November, 2006 Pappu son of Kalawati (P.W.2) was murdered in the jungle falling between village Baghar and Singawali. Pratap singh (P.W.1) brother of the deceased Pappu on 23.11.2006 submitted a written report (Ex.P.1) before the SHO, Police Station Rajakheda, District Dholpur wherein he stated that his brother Pappu was engaged in husbandry and grazing of goats and for grazing, his flock, he had built a "Gher" near the "Bada" of Natthilal. Pappu used to sleep at the "Bada" while guarding his flock. On 22.11.2006 Kalawati (P.W.2) had taken meals for his son Pappu and after she had served dinner to his son Pappu, she returned to her house. When Kalawati (P.W.2) had taken meals for her son, at that time Jawahar son of unknown, Kallu S/o. Sahab Singh and Karua S/o. Charan Singh were taking liquor alongwith Pappu and Kalawati had left Pappu with them. In the morning when children had gone to graze the cattle, they found the dead body of Pappu. They returned and gave information upon which complainant Pratap Singh (P.W.1) along with Laxman Singh (P.W.7), Madho Singh had gone to the spot and identified the dead body to be of his brother Pappu. A suspicion was expressed that Jawahar, Kallu and Karua had committed murder. Jawahar Singh is father-in-law of Karua. 2. On the basis of written report (Ex.P.1) formal FIR (Ex.P.2) bearing FIR No.167/06 was registered at Police Station Rajakhera.Pratap Singh is not the witness of last seen. He has stated the fact regarding the last seen in the written report (Ex.P.1) on the basis of information relayed to him by his mother Kalawati (P.W.2).The Court of Additional Sessions Judge (Fast Track) No.2, Dholpur vide impugned judgment dated 2.6.2008 convicted Kallu S/o. Sabbe @ Sahab Singh, Karua @ Kalicharan S/o. Charan Singh and Jawahar Singh S/o. Punita Ram for offence under Section 302/34 IPC and vide a separate order of even date had sentenced the appellants as under:- U/s. 302/34 IPC: Life imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo six months additional imprisonment. 3. Aggrieved against their conviction and sentence, the appellants have preferred the instant appeal. 4. In the present case, conviction of the appellants has been recorded on the basis of circumstantial evidence. 10,000/- and in default thereof to undergo six months additional imprisonment. 3. Aggrieved against their conviction and sentence, the appellants have preferred the instant appeal. 4. In the present case, conviction of the appellants has been recorded on the basis of circumstantial evidence. During investigation and deposition of the witnesses in the court, following four circumstances have emerged for consideration of the court:- (a). Motive. (b). Evidence of last seen. (c). Recovery of rope and knife from the appellant Karua @ Kalicharan. (d). Appellant Karua @ Kalicharan made a disclosure statement and got the spot identified. 5. The prosecution in all examined fifteen witnesses and proved on record twenty-five documents bearing Exhibits-P.1 to P.25. After prosecution closed its evidence, statements of the accused were recorded under Section 313 Cr.P.C. They denied all incriminating circumstances and pleaded innocence. No witness was examined in defence. However, the defence got exhibited on record statements made by Pratap Singh, Smt. Kalawati, Smt. Leelawati, Rajendra Singh and Madho Singh under Section 161 Cr.P.C. before police as Exhibits-D.1 to D.5. 6. Pratap Singh (P.W.1) stated that he was informed by his mother that 7-8 months before in the night she had gone to the cattle shed where Pappu was staying. There Karua, Jawahar and Kallu were sitting and taking liquor. Pappu had asked her mother to go back to the house. In the morning when mother reached at the spot she saw that Gunna brother of Kallu was taking goats. Gunna had informed his mother that he had purchased goats from the deceased. It was further stated that in the morning his mother had found the dead body 4-5 fields away from the cattle shed. Having found the dead body they ran towards the spot and found that Pappu had received knife blows on neck, chin and cheek. Upon this, Pratap Singh had submitted written report (Ex.P.1) upon which formal FIR (Ex.P.2) was registered. This witness further stated that at the spot, shawl and knife were lying and Pappu was dragged from his Gher (cattle shed) to the place where the dead body was lying and thus, trail of blood was visible. The witness proved on record the inquest proceedings (Ex.P.3), memo (Ex.P.4) whereby dead body was taken into possession. The witness further stated that the dead body was handed over to him by the police vide memo (Ex.P.6) after the post-mortem. 7. The witness proved on record the inquest proceedings (Ex.P.3), memo (Ex.P.4) whereby dead body was taken into possession. The witness further stated that the dead body was handed over to him by the police vide memo (Ex.P.6) after the post-mortem. 7. Kalawati (P.W.2) is the prime witness. She had deposed regarding the evidence of last seen. Kalawati (P.W.2) in court stated that Pappu his son used to graze the goats. He was not married. He was staying away at a distance of 3-4 fields from the village as he used to confine his goats there. On the day of occurrence, she had gone to the place where Pappu was residing. She kept sitting there and had conversation with Jawahar Singh. Jawahar Singh and his son both ply tractor in the village. The witness further stated that daughter of Jawahar was married with Karua. At the place where Pappu was residing, she had a talk with Jawahar Singh for 1/2 hours. Karua had gone to take liquor bottle. When Karua had not returned, then Kallu brought the liquor bottle. She stated that she had reached the place where her son was staying at 8.00 PM and she returned at 8.30 PM. Thus, it is apparent that Kalawati (P.W.2) alone is the witness of last seen. She further stated that in the morning she had gone at the spot. Gunna brother of Kallu was coming with goats and he stated that he had purchased goats after paying the amount in cash. Gunna further stated that some Badmash people had taken Pappu in order to throw him in the well. Thus, this witness also introduced the fact that due to sale of goats his son deceased Pappu was in possession of the cash amount. This cash amount is stated to be motive for committing offence. 8. However, so far recovery of knife and rope from the accused Karua @ Kalicharan S/o. Charan Singh is concerned, Kalawati (P.W.2) had demolished the case of the prosecution by saying in her cross-examination that in the morning Laxman Singh etc. called the police and when police came, four knifes and rope were lying around the dead body. 8. However, so far recovery of knife and rope from the accused Karua @ Kalicharan S/o. Charan Singh is concerned, Kalawati (P.W.2) had demolished the case of the prosecution by saying in her cross-examination that in the morning Laxman Singh etc. called the police and when police came, four knifes and rope were lying around the dead body. The witness stated " iIiw dh yk'k ds ikl gh pkj Nqfj;k Myh FkhA 'kkWy iIiw dh yk'k ls rhu pkj [ksr nwj iM+h FkhA ge lHkh us Nqfj;ksa dks ns[kk Fkk tks [kwu ls fcxM+ jgh FkhA "The witness further stated " mlh le; y{e.k flag] oxSjk tkdj iqfyl dks cqyk yk,A tSls gh iqfyl vkbZ rks pkjksa Nqjh o jLlh iqfyl us mBk yh FkhA jLlh o dqYgkM+h dYyw us gh iqfyl dks crkbZ FkhA " 9. Leelawati (P.W.5) is sister of deceased Pappu. She has also deposed in the court that in the night her mother had taken dinner for his brother Pappu. At that time, accused were sitting there and taking liquor. In the morning when her mother had gone to meet Pappu, Gunna brother of Kallu was taking away the goats and he had disclosed that he had purchased the goats for Rs. 70,000/-. In cross-examination, this witness stated that she along with her mother had gone to the spot from where the dead body was recovered. Police had reached at the spot after one hour. She further stated that police had found knives near the "shawl" which was at a distance of one field. The witness in cross-examination stated as under:- " lkSy ds ikl Nqfj;ka dk feyuk Hkh iqfyl us gesa crk;k FkkA iqfyl us og Nqfj;ka gesa fn[kk;h Hkh FkhA lksy ds ikl rhu Nqfj;ka Fkh eq>s ;g /;ku gSA yk'k ds ikl dksbZ Nqjh ugha FkhA yk'k dq,a ds ikl Fkh] fQj dgk yk'k ls dqvk ,d [ksr nwj FkkA dqvk vej flag dk gSA " 10. Admittedly, Pappu had died due to violence and receipt of incised injuries. Dr. Ram Prakash Gupta (P.W.11) on 23.11.2006 at 2.15 PM had conducted autopsy on the dead body of Pappu and as per post-mortem report (Ex.P.17) he had found three incised injuries on the person of deceased Pappu on the neck and face. Admittedly, Pappu had died due to violence and receipt of incised injuries. Dr. Ram Prakash Gupta (P.W.11) on 23.11.2006 at 2.15 PM had conducted autopsy on the dead body of Pappu and as per post-mortem report (Ex.P.17) he had found three incised injuries on the person of deceased Pappu on the neck and face. As per opinion of the Doctor, cause of death was massive hemorrhage and shock as a result of cutting of large blood vessels of left side of neck. The injuries were ante-mortem and were caused with sharp object. 11. Gajendra Singh (P.W.3) had not supported the prosecution case and was declared hostile.Ravindra Singh (P.W.4), Constable, stated that in his presence, Kallu was arrested on 3.12.2006 vide memo (Ex.P.6) and on 5.1.2007 he had carried six sealed packets to the FSL. 12. Mohar Singh (P.W.6), Constable, stated that he had accompanied the investigating officer on 12.1.2007 alongwith accused Kallu and had prepared the site plan of the spot vide memo (Ex.P.8) on the pointing out of the spot by Kallu. This witness further stated that he had attested arrest memo (Ex.P.9) whereby Jawahar was arrested. This witness further stated that Karua got recovered a knife vide memo (Ex.P.11) in pursuance of disclosure statement (Ex.P.21) made by him. 13. Laxman Singh (P.W.7) stated that he knew Pappu. He had been murdered last year. This witness further stated that in his presence, mother of Pappu had not stated anything to the police. This witness was declared hostile by the prosecution. 14. Rajendra Singh (P.W.8) stated that on 12.1.2007 he was posted as Constable at Police Station Rajakhera. On that day, he had accompanied SHO Bihari Lal at the jungle of Baghar from where Karua got recovered a knife and a rope. 15. Yadram (P.W.9) stated that in his presence personal belongings of Pappu deceased were taken into possession by the police vide memo (Ex.P.15). 16. Mahesh Chand (P.W.10) stated that he was posted as Head Constable in the S.P. Office. Constable Ravindra Singh had obtained a letter addressed to the FSL for delivery of six sealed packets. 17. Hari Om (P.W.12) stated that on 30.12.2006 he was posted as Constable at P.S. Rajakhera. He had attested the memo whereby belongings of the deceased Pappu were taken into possession by the police. 18. Dayanand (P.W.13) stated that on 23.11.2006 he was posted as ASI at P.S. Rajakhera. 17. Hari Om (P.W.12) stated that on 30.12.2006 he was posted as Constable at P.S. Rajakhera. He had attested the memo whereby belongings of the deceased Pappu were taken into possession by the police. 18. Dayanand (P.W.13) stated that on 23.11.2006 he was posted as ASI at P.S. Rajakhera. Pratap Singh presented written report (Ex.P.1) before him. This witness has proved disclosure statement (Ex.P.20) wherein accused Kallu stated that he can get the place of occurrence identified. This witness also proved various facets of investigation. 19. Lakhan Singh (P.W.14) proved arrest memo (Ex.P.6) whereby Kallu @ Sahab Singh was arrested. 20. Bihari Lal Yadav (P.W.15) being the investigating officer has also proved various facets of investigation. 21. Prosecution has relied upon the report of the Forensic Science Laboratory (Ex.P.25) wherein regarding recoveries affected and packets sent to the Laboratory, following report was made:- Result of The ExaminationOn serological examination, following results were obtained:- Sr. No. Packet Marked No. & Name of the Exhibit Blood detection Origin Blood Group 1. A 1 Blood smeared soil Positive Human Inconclusive 2. B 2 Control soil Negative - - 3. C 3 Shawl Positive Human Inconclusive 4. D 4 Churra Positive Human 'AB' 5. E 5 Plastic rope Positive Human 'AB' 6. F 6 Shirt Positive Human 'AB' " 7 Baniyan Positive Human 'AB' Note:- Exhibit No.1 (from A) and 2 (from B) have been forwarded to Physics Division for necessary examination." 22. Shri S.S. Naruka learned counsel for the appellants has submitted that recovery of knife and rope from the accused is a padding as the said articles were already recovered by the police. It is further contended that the evidence of last seen is not sufficient to uphold the conviction of the appellant and furthermore, it is contended that no recovery of any amount was made from the accused from which it can be gathered that motive for the accused was to deprive the deceased of cash and on this count they had committed murder. 23. 23. Shri N.S. Dhakar, learned Public Prosecutor, submitted that after the post-mortem was conducted, Baniyan (vest) of the deceased was having human blood of group-'AB' and the same group of human blood 'AB' has been found on the rope and the knife recovered at the instance of accused Karua vide recovery memo (Ex.P.11) in pursuance of disclosure statement (Ex.P.21) and therefore, the prosecution by proving evidence of last seen and recovery had proved that it is the accused who had committed the offence. 24. We have heard the learned counsel for the parties. So far the appellant Jawahar is concerned, no recovery has been affected from him. The prosecution relied upon the disclosure statement (Ex.P.20) made by Kallu to say that he knew the place of occurrence and can get the place of occurrence identified. For us, disclosure made on 6.12.2006 is meaningless as it has come in evidence that in the statement of Pratap Singh (P.W.1), Kalawati (P.W.2) and Leelawati (P.W.5) that before the accused could be arrested, they had seen the place of occurrence and had found the dead body. Thus, disclosure and identification of the place of occurrence after the same was known to the police will not advance the case of the prosecution and is insignificant, as the fact disclosed was already in the knowledge of the police, therefore disclosure made is not worthwhile. 25. So far recovery of knife and rope from the appellant Karua in pursuance of disclosure statement (Ex.P.21) vide recovery memo (Ex.P.11) is concerned, same stands belied by the testimony of Kalawati (P.W.2) who had stated that when the police had arrived at the spot, they had already taken into possession knife and rope. To similar effect is the statement made by Leelawati (P.W.5). She stated that knife was recovered by the police when they took the dead body into possession. Thus, knife and rope found near the dead body having blood of the deceased will not advance the case of prosecution against the accused. Once knife and rope were already recovered by the police, disclosure statement (Ex.P.21) made by Karua and recovery vide memo (Ex.P.11) cannot be taken into consideration. Both the documents, Exhibit-P.21 and Exhibit-P.11, have been created to connect Karua @ Kalicharan with the offence. Therefore, we shall exclude the recovery affected from Karua @ Kalicharan from the consideration. 26. Once knife and rope were already recovered by the police, disclosure statement (Ex.P.21) made by Karua and recovery vide memo (Ex.P.11) cannot be taken into consideration. Both the documents, Exhibit-P.21 and Exhibit-P.11, have been created to connect Karua @ Kalicharan with the offence. Therefore, we shall exclude the recovery affected from Karua @ Kalicharan from the consideration. 26. Having said so, we are left with the motive and the evidence of last seen. 27. Kalawati (P.W.2) is the only witness of last seen. She had stated that she had taken dinner for her son Pappu and when she had gone there, three accused were taking liquor with Pappu. She left the place at 8.30 PM. At that time, she was not aware about the sale of goats by her son Pappu. In the morning, when she went there she was told by Gunna that he had purchased the goats from Pappu deceased by paying Rs. 70,000/- in cash. At what time Gunna had purchased the goats has not come in the evidence. Therefore, Gunna was the last person who was with the deceased and had purchased the goats and had handed over the cash to the deceased Pappu. Gunna has not been examined by the prosecution. He was the best person to say when he struck bargain with the deceased and paid the amount, whether at that time accused were sitting with the deceased or not? 28. Even otherwise, the Hon'ble Apex Court regarding evidence of last seen has observed in the case of State of Goa v. Sanjay Thakran and Anr. reported in (2007) 3 SCC 755 , 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. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodhraj v. State of J & k 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. 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" 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. 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. 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". 29. Thus, we can very safely say that evidence of last seen is a weak type of evidence. In the facts and circumstances of the case, we cannot rule out that after the accused had left, somebody knowing that the deceased Pappu had sold the goats and is in possession of Rs. 70,000/- may have committed the murder. 29. Thus, we can very safely say that evidence of last seen is a weak type of evidence. In the facts and circumstances of the case, we cannot rule out that after the accused had left, somebody knowing that the deceased Pappu had sold the goats and is in possession of Rs. 70,000/- may have committed the murder. Even otherwise, on the evidence of last seen alone, we cannot uphold the conviction of the appellant as we cannot say with certainty that it were the appellants only were responsible for the offence committed and nobody else. 30. The Hon'ble Supreme Court in Hanumant Govind Nargundkar v. State of M.P. [ AIR 1952 SC 343 and in another judgment recently passed in the case of Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 , have reiterated the principles governing the appreciation of evidence in a case based on circumstantial evidence. It has been held as under:- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.". 31. Taking totality of the circumstances, we are of the view that the prosecution has failed to complete the chain of circumstances so as to arrive at the conclusion that the offence, in present case, has been committed alone by the appellants and by nobody else. 32. As a result of above discussion, the appeal is allowed. The conviction and sentence awarded upon the appellants by the trial court is set aside. They are acquitted of the charges framed against them.Appeal allowed. *******