JUDGMENT : Gopal Krishan Vyas, J. 1. In this cr. appeal filed under Section 374(2) Cr.P.C. accused appellant Seena @ Jeeva S/o. Sh. Shanker Dayma Meena has challenged the judgment dated 14.8.2008 passed by the learned District & Sessions Judge (FT), Dungarpur in Sessions case No. 82/2007 (77/2007) by which the learned trial court convicted the accused appellant for the offence under Section 302 and 394 IPC and passed the following sentence: Under Section 302 IPC Life imprisonment with fine of Rs. 2,000/- and in default of payment of fine to further undergo three months SI. Under Section 394 IPC Ten years RI with fine of Rs. 5,000/- and in default of payment of fine to further undergo three months SI. As per brief facts of the case, the complainant PW-3 Marta submitted a written report at Police Station, Dhambola, District Dungarpur at 10.30 am on 21.10.2007 in which it is reported by him that on 20.10.2007 at about 11-12 am my sister’s son Seena S/o. Shanker Dayma Meena (accused appellant) came to the house of my mother Smt. Ratan and after taking food he remained with her for the whole day and stayed in the night also. On the next day morning my brother Nanaji went to the house of my mother deceased Smt. Ratan, where the door of the house was half opened and body of my mother deceased Smt. Ratan was lying on floor. It is also stated that my mother Smt. Ratan used to wear silver Hasali in her neck but that Hasali was missing from her neck. In the report it was apprehended by the complainant that my sister’s son (accused appellant) has killed my mother by throttling her neck, therefore, it is prayed that after registration of the FIR, action may be taken against Seena. 2. Upon the said written report (Ex. P/5), filed by the complainant PW-3 Marta, FIR No. 252/2007 (Ex. P/14) was registered under Section 302 IPC at Police Station, Dhambola on 21.10.2007, thereafter, the SHO Police Station, Dhambola PW-14 Rakesh Kumar Rajora commenced investigation and immediately went on spot. During investigation, the site plan (Ex. P/1) was prepared in which details of the place of occurrence was recorded. Similarly, Panchayatnama of the dead body (Ex. P/2) was also prepared in the presence of Jaswant, Marta, Punji Lal, Barta and Bhagwan Lal by the SHO. During investigation, the site plan (Ex. P/1) was prepared in which details of the place of occurrence was recorded. Similarly, Panchayatnama of the dead body (Ex. P/2) was also prepared in the presence of Jaswant, Marta, Punji Lal, Barta and Bhagwan Lal by the SHO. The dead body of the deceased was taken to the Primary Health Center, Simalwara where the post mortem was conducted by the Senior Medical Officer and post mortem report (Ex. P/7) dated 21.10.2007 was handed over for further investigation. The dead body of the deceased was handed over to Marta, son of the deceased for cremation vide Ex. P/3. One nylon thread which was lying upon the neck of the deceased Smt. Ratan was taken in possession. The accused appellant was arrested vide arrest memo Ex. P/8 at 4.30 pm on 23.10.2007 and during custody accused appellant gave information under Section 27 of the Evidence Act (Ex. P/9) to the investigating officer that sliver Hasali which was taken from the body of the deceased is lying in my house from where it can be recovered. Upon aforesaid information vide Ex. P/6 the said silver Hasali was recovered in presence of two witnesses Haja and Panna vide Ex. P/6 on 24.10.2007 at about 10.15 am and after recording statement of prosecution witnesses, the charge-sheet was filed by the SHO Police Station, Dhambola in the court of Judicial Magistrate, Simalwara from where the case was committed to the Sessions Court, Dungarpur for trial, but later on, transferred to the court of Addl. District & Sessions Judge (FT), Dungarpur for trial. 3. The learned trial court framed charge under Section 302 and 394 IPC after providing an opportunity of hearing to the accused appellant but accused appellant denied the allegation and prayed for trial. 4. In the trial, statement of 14 prosecution witnesses were recorded to prove the prosecution case. Thereafter, the statement of accused appellant were recorded under Section 313 Cr.P.C. in which he denied all the allegations levelled against him by the prosecution witnesses and said that I am innocent and falsely implicated in this case on the basis of false and concocted allegation of prosecution. Thereafter, the statement of accused appellant were recorded under Section 313 Cr.P.C. in which he denied all the allegations levelled against him by the prosecution witnesses and said that I am innocent and falsely implicated in this case on the basis of false and concocted allegation of prosecution. In defence, oral statement of DW-1 Shanker lal were recorded and, thereafter, final arguments were heard by the learned trial court and ultimately convicted the accused appellant for offence under Section 302 and 394 IPC and passed the aforesaid sentence after recording conviction. 5. Learned counsel for the appellant submits that finding of the learned trial court for conviction under Section 302 and 394 IPC is totally based upon circumstantial evidence because there is no eye witnesses of the incident. With regard to the evidence of last seen and death of the deceased it is submitted that there is every possibility that other person may commit the crime, therefore, it cannot be said that accused appellant having close relation with the deceased being son of her daughter will commit such offence of murder only to get silver Hasali of the maternal grand-mother. The entire prosecution case is based upon concocted story of prosecution, therefore, finding of guilt recorded against the accused appellant by the learned trial court is not sustainable in law. Learned counsel for the appellant submits that the evidence of last seen cannot be relied upon so as to hold accused appellant guilty because there was sufficient time gap in between the evidence of last seen and the death of the deceased so also there was every possibility for other person to commit murder of late Smt. Ratan but it has not been investigated properly by the investigating officer. 6. Learned counsel for the appellant further argued that the recovery of article Hasali is also highly doubtful because no independent witness was present at the time of recovery and both the recovery witnesses of recovery are interested witnesses because they are close relative of the deceased. Further, there is no evidence of identification of Hasali which is said to be recovered at the instance of the accused appellant, therefore, the finding of conviction based upon the recovery of silver Hasali as well as last seen does not inspire any confidence so as to convict the accused appellant for the offence in question. Further, there is no evidence of identification of Hasali which is said to be recovered at the instance of the accused appellant, therefore, the finding of conviction based upon the recovery of silver Hasali as well as last seen does not inspire any confidence so as to convict the accused appellant for the offence in question. Learned counsel for the appellant further argued that prosecution has failed to produce reliable and trustworthy evidence to complete chain of circumstances beyond reasonable doubt, therefore, in view of the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 (SC) 1622 , the conviction and sentence recorded against the accused appellant for offence under Section 302 and 394 IPC may kindly be quashed and set aside. 7. Learned Public Prosecutor vehemently argued that there is ample evidence of eye witnesses on record to the evidence to prove the fact of last seen. All the witnesses categorically stated that the accused appellant Seena is grand-son (Dohita) of the deceased and on the date of occurrence, he was very much in the house where Smt. Ratan was residing and accused appellant stayed in the house of Smt. Ratan in the whole of the day and night and in the morning he left the house without informing to any person. In the morning when witness Nana son of deceased went to the house of the deceased and saw that dead body of Smt. Ratan was lying on floor and Hasali which she was wearing usually was missing from body. 8. Learned Public Prosecutor submits that Hasali was recovered upon the information given by the accused appellant, which is proved by the prosecution, therefore, the finding of the learned trial court so as to hold accused appellant guilty for offence under Section 302 and 394 IPC does not require any interference. As per learned Public Prosecutor proper investigation has been conducted by the prosecution to get truth of the incident and on the basis of circumstantial evidence it has been proved by the prosecution that it is the accused appellant who has committed murder of the deceased none-else, therefore, the instant appeal filed by the accused appellant may kindly be dismissed. 9. 9. After hearing the learned counsel for the parties, we have perused the finding of conviction recorded by the learned trial court so also the statement of the prosecution witnesses and documents exhibited in the trial. It emerges from the finding that conviction of the accused appellant for offence under Section 302 and 394 IPC is based mostly upon two grounds of last seen and recovery of Hasali as per information given by the accused appellant under Section 27 of the Evidence Act. 10. With regard to the evidence of last seen, the fact is come out from the FIR and prosecution witnesses that accused appellant is grand-son (Dohita) of the deceased Smt. Ratan wife of Jeeva and in the written complaint filed by the complainant Marta (PW-3), maternal uncle of the accused appellant made following allegation, which reads as under: lsok esa] Jheku Fkkusnkj lkgc iqfyl Fkkuk /kEcksyk fo"k; %& dkuquh dk;Zokgh djokus ckcr~A egksn;th] mijksDr fo"k; esa eq> izkFkhZ Jh Hkjrk s/o thok dksVMs eh.kk mez 52 o"kZ fuoklh cFkM+h P.S. /kEcksyk dk fuosnu gS fd ge lHkh HkkbZ vyx &vyx jgrs gSA esjh eka Lo- Jherh jru csok thok gekjs cM+s edku esa vdsyh jgrh gSA dy fnukad 20@10@07 dks esjk HkkUtk lhuk s/o 'kadj nk;ek eh.kk fuoklh Fkkedk rkykc Qyk nkekk djhc 11] 12 cts gekjs HkV~Vk vk;k Fkk 'kke dks lhuk esjh eka ds ikl [kkuk [kk;k rFkk jk=h esa eka ds ikl gh ?kj esa lks;k FkkA lqcg djhc 8 cts esjk HkkbZ ukuth us eka ugha mBus ij ?kj ij tkdj ns[kk rks fd;kM+ FkksMk [kqYyk gqvk eka jru fups ?kj esa iM+h Fkh rFkk xys esa ukbZyksu dh iryh jLlh cU/kh gqbZ FkhA ukuth us ge lHkh HkkbZ;ksa dks cqyk;k lhuk jk=h gekjh eka ds lkFk lks;k Fkk og lqcg ugha FkkA eka ds xys esa 'kknh dh vklyh Fkh og xys esa ugha Fkh esjk HkkUtk jk=h esa esjh eka jru dks xys esa jLlh Mky xyk xksV dj gR;k fd gSA rFkk xys esa igu j[kh vklyh ysdj Qjkj gks x;k gSA fjiksVZ drkZ gwa dk;Zokgh djkuk QjekosA fnukad 21@10@07 fu0 ejrk** 11. Admittedly, the author of the FIR Marta is not eye witness and only on the basis of presumption that accused appellant stayed in the night with his maternal grand-mother (Nani) on the date of occurrence it is apprehended by him that accused appellant killed his mother while throttling and taken away silver ornament Hasali from her neck but to prove aforesaid allegation no other evidence is on record except statement of complainant Marta (PW-3). In the cross-examination it is stated by him that there was no enmity in between the family of the deceased with accused appellant Seena. The land belonging to their father was also distributed and accepted by all the children of the deceased. 12. PW-6 Mana other son of the deceased and brother of the complainant Marta stated before the court that: **lhuk }kjk gR;k djus dk eSa blfy, dgrk gwa fd ml fnu lhuk gekjs ?kj esgeku vk;k gqvk Fkk vkSj ml jkr dks esjh ekad jru ds lkFk gh lks;k Fkk vkSj mlds ?kj gh jkr :dk FkkA nwljs fnu lqcg lhuk ugha feyk blfy, dgrk gwa fd gR;k blh us dh gSA eSa ?kVuk ds fnu ckgj x;k gqvk Fkk rks nwljs fnu lqcg eka ds ejus dh lwpuk feyh ftl ij eSa ?kj vk x;k A** 13. PW-7 Nanji, 3rd son of the deceased stated before the court that: **djhc 5 & 6 eghus igys dh ckr gS esjh eka jru dks lhuk us ekj Mkyk gSaA ml fnu lhuk gkftj vnkyr eqfYte esjh eka jru ds ikl vk;k gqvk Fkk eSaus lhuk dks 5 & 6 cts fnu esa ns[kk FkkA jkf= dks esjh eka ds ikl gh Bgjk FkkA lhuk dks gekjh cgw us rFkk xkao ds gekjs cPpksa us Hkh ns[kk Fkk y{eh us Hkh ns[kk FkkA nwljs fnu lqcg eka jru ds ?kj eSa lqcg 8 cts x;k] eSa jruiqjk tkus ds fy, fudyk Fkk ogka jru ds ?kj ds ikl igaqpk ogka ns[kk rks vk/kk edku [kqyk Fkk vkSj vk/kk cUn FkkA ogka tkdj ns[kk rks eka ejh gqbZ Fkh ,d jLlh ukbZyksu dh xys esa yisVh gqbZ Fkh jLlh iryh Fkh tks [kkV dh FkhA ge pkj HkkbZ gSaA lHkh vyx&vyx jgrs gSA esjh eka gekjs firkth ds cus edku esa vyx jgrh Fkh mlds lkFk nwljk dksbZ ugha jgrk FkkA esjh eka xys esa gkalyh igurh Fkh tks pkanh dh cuh gqbZ FkhA eSa x;k rc gkalyh xys esa ugha FkhA** 14. PW-8 Gangji 4th son of the deceased stated before the court that: **vkt ls pkj eghus igys lhuk us mldks ekj fn;kA ml fnu lhuk fnu dks 12 cts ogka vk;k Fkk jkr dks eka jru ds ?kj gh jgkA esjs dks lhuk 'kke dks 6 cts feyk Fkk tks eka ds ?kj gh feyk FkkA eSa eka ds ?kj esjh tehu ns[kus ds fy, x;k Fkk ogka ls eka ds ?kj x;k FkkA lhuk ls esjh ckr ugha gqbZA eSa x;k ml le; lhuk eka ds ?kj gh cSBk gqvk FkkA eka dk ?kj Fkk og HkkUtk Fkk blfy, ogka Bgjk FkkA nwljs fnu lqcg esjk HkkbZ ukuth esjh eka jru ds ?kj igaqpkA HkkbZ us dgk fd FkksM+k edku eka dk [kqyk gS] eka ?kVh ds ikl ?kj ds vanj ejh gqbZ iM+h FkhA** 15. PW-9 Laxmi @ Haj, daughter-in-law of the deceased reiterated the fact that accused appellant Seena came to the house of deceased. 16. Upon perusal of statement of these witnesses it is obvious that all the witnesses are relatives and the accused appellant is sister’s son of four witnesses. 17. PW-9 Laxmi @ Haj, daughter-in-law of the deceased reiterated the fact that accused appellant Seena came to the house of deceased. 16. Upon perusal of statement of these witnesses it is obvious that all the witnesses are relatives and the accused appellant is sister’s son of four witnesses. 17. With regard to the evidence of "last seen", the fact come out from PW-6 Mana, PW-7 Nanji, PW-8 Gangji and PW-9 Laxmi, it is clear that accused appellant is grand-son of deceased Smt. Ratan, therefore, obviously his presence cannot be questioned because there is no evidence on record with regard to motive and bad relation of accused appellant with deceased. The only allegation is that one silver Hasali was not found upon the body of the deceased and the said Hasali was recovered as per information given by the accused appellant under Section 27 of the Evidence Act. 18. To assess the evidence of recovery of Hasali, first of all, we have perused the recovery memo of Hasali (Ex. P/6). The said recovery was made in front of two witnesses Haja and Panna. Admittedly, no identification proceedings were undertaken by the investigating officer for identification of Hasali, which is said to be recovered upon information given by the accused appellant. In the recovery memo (Ex. P/6) it is specifically recorded that: *cjken dh xbZ gkalyh dks izkFkhZ ejrk s/o thok dksVMs ehuk R/o cFkM+h us oDr ?kVuk viuh eka Jhefr jru us iguh pkanh dh gkalyh gksuk lgh f'kuk[r fd;kA** 19. Upon perusal of the aforesaid fact incorporated in the recovery memo (Ex. P/6) it is obvious that at the time of recovery, the complainant Marta (PW-3) was with investigating officer, who has identified the said Hasali, when it is said to be recovered from the house of the accused appellant. The Ex. P/6 bears the thumb impression of Marta, therefore, his presence cannot be questioned. Upon assessment of recovery and upon the fact that no identification was conducted, we are of the opinion that such type of evidence cannot be relied upon so as to hold accused appellant guilty for alleged offence of murder. The Ex. P/6 bears the thumb impression of Marta, therefore, his presence cannot be questioned. Upon assessment of recovery and upon the fact that no identification was conducted, we are of the opinion that such type of evidence cannot be relied upon so as to hold accused appellant guilty for alleged offence of murder. As per procedure of law, the recovery article was to be identified before competent authority by the complainant, but her in this case, the investigating officer took complainant with him at the time of alleged recovery from the house of accused appellant who is said to be son of the daughter of the deceased. In absence of identification proceedings of Hasali, it is not safe to convict the accused appellant on the basis of such type of evidence of recovery, therefore, on this count, whole prosecution case became doubtful. 20. It is also relevant to mention here that out of two motbir witnesses, only PW-12 Haja appeared before the court to prove recovery of Hasali at the instance of the accused appellant. The witness PW-12 Haja stated in the cross-examination before the court that at the time of recovery of Hasali I and one Kalu S/o. Sardar and Seena were present. No other person was present at the time of recovery. Further it is stated by the said witness that Panna was not present. He was in his house at village. Meaning thereby, presence of motbir witness Panna recorded in Ex. P/6 is highly disputed because neither Panna appeared before the court nor PW-12 Haja corroborated the fact that Panna was present at the time of recovery. It is also worthwhile to observe that Haja is son of the brother of complainant Marta, meaning thereby, he is close relative of the complainant as well as deceased. It is also worthwhile to mention here that in the statement of PW-12 Haja it is nowhere stated by him that Hasali was identified by Marta or Marta was even present at the time of recovery. Meaning thereby, it is a case in which prosecution has failed to prove its case beyond reasonable doubt. 21. It is also worthwhile to mention here that in the statement of PW-12 Haja it is nowhere stated by him that Hasali was identified by Marta or Marta was even present at the time of recovery. Meaning thereby, it is a case in which prosecution has failed to prove its case beyond reasonable doubt. 21. In view of the fact that learned trial court has recorded conviction on the basis of evidence of last seen and recovery of Hasali, but the said finding of the learned trial court is not in consonance with law because all the witnesses are close relative. No independent witness corroborates the prosecution allegation, more so, the investigation of the case is faulty for the reason that so called recovery of Hasali has not been proved at the instance of the accused appellant was identified in the manner as provided under provisions of the Cr.P.C. It is also important aspect of the matter that there is no evidence of motive on record, more so, all the witnesses specifically stated that accused appellant is grand-son of deceased Smt. Ratan and he was stayed with her on the date of incident, therefore, in our opinion, the entire evidence of prosecution, which is not supported by any independent witness is seriously doubtful, but the learned trial court committed serious error while accepting such evidence, which is not even corroborated by the independent witnesses. The entire case is based upon circumstantial evidence, which has not been proved. It is settled principle of law that if prosecution case is based upon circumstantial evidence then prosecution is required to prove each and every circumstance and complete chain of facts so as to hold accused appellant guilty for the offence but here in this case prosecution has failed to prove its case beyond reasonable doubt. The Hon'ble Supreme Court in the case of Sarad Birdichand (supra) has held that conviction cannot be based upon the evidence of last seen or on the basis of so called recovery of article, which is not corroborated by the independent witnesses. 22. Further, the Hon'ble Supreme Court held that in a case based upon circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. 22. Further, the Hon'ble Supreme Court held that in a case based upon circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, to the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 23. In case of Trimukh Maroti Kiran v. State of Maharashtra reported in (2006) 10 SCC 681 , the Hon'ble Supreme Court held as under:- "12. In the case in hand there is no eye witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with the innocence." 24. The same principle were reiterated in Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205 , Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq v. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions. 25. On the basis of above discussion, we are of the view that there are manifest infirmities in the evidence of prosecution. Nothing positive has emerged from the evidence to hold accused appellant guilty for the alleged crime. The prosecution has miserably failed to establish its case beyond reasonable doubt. 26. Therefore, this cr. appeal filed by the accused appellant Seena @ Jeeva is hereby allowed. The judgment dated 14.8.2008 passed by the learned Addl. District & Sessions Judge (FT), Dungarpur in Sessions Case No. 82/2007 (77/2007) convicting and sentencing the accused appellant Seena @ Jeeva for the offence under Section 302 and 394 IPC is hereby quashed and set aside. Therefore, this cr. appeal filed by the accused appellant Seena @ Jeeva is hereby allowed. The judgment dated 14.8.2008 passed by the learned Addl. District & Sessions Judge (FT), Dungarpur in Sessions Case No. 82/2007 (77/2007) convicting and sentencing the accused appellant Seena @ Jeeva for the offence under Section 302 and 394 IPC is hereby quashed and set aside. The accused appellant Seena @ Jeeva may be released forthwith, if not needed in any other case. 27. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs. 20,000/- and a surety bond in the like amount each, before the learned 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 the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.