JUDGMENT Anil Kumar Srivastava-II, J. – Heard Shri R.N.S. Chauhan learned counsel for the appellant and Ms. Madhulika Yadav learned A.G.A. for the State. 2. Instant appeal have been preferred against the judgment and order dated 22.8.2008 passed by learned Additional Sessions Judge, Fast Track Court No.4, Lucknow in Sessions Trial No.762 of 2005, case crime no.234 of 2001, under section 302/34 IPC and 201 IPC, Police Station Malihabad, District Lucknow, State v. Naushad and others whereby accused Naushad and Usman alias Khalnayak were convicted under section 302 IPC read with section 34 IPC and section 201 IPC and sentenced to imprisonment for life and fine of Rs.15,000/- and imprisonment for five years and fine of Rs.3,000/- respectively. Accused Babboo, Sirdar and Siraj were acquitted of charges under section 302 IPC read with section 34 and 201 IPC. 3. According to the prosecution version, a written report was lodged by complainant Gulzar on 13.8.2001 at 07.50 PM at Police station Malihabad stating that on 09.8.2001 at about 06.00PM he sent his son Munish to Naushad son of Sirdar for bringing the amount from him. Munish went to village Kahla through LBM and met Naushad at his house. Rauf, son of Razzak was also present there. They purchased 100 gms andharse from the shop of Puttan halwai. Rauf asked Munish to accompany him to Baldevkhera. Munish told Naushad that he will accompany him after getting the amount from Naushad. Naushad told Munish that he will pay the amount at Charbagh railway station. Munish and Naushad proceeded towards Kahla railway station. Rauf stayed at the house of Puttan. When Munish did not return to his house then complainant inquired about him then Rauf told him all these facts. When complainant inquired from Naushad, he told him that Munish accompanied him in local train up to Alamnagar and got down at Alamnagar. Thereafter he slept and went to Barabanki. On the basis of this information a chik FIR was lodged about disappearance of Munish. 4. On 10.8.2001, an unknown dead body was found near village Kahla on the railway line. Inquest proceedings were conducted on 10.8.2001. Postmortem was conducted on 11.8.2001 at 03.30 PM. 5. Thereafter, another application was moved by one Sharif son of Gulzar on 20.8.2001, stating that report of disappearance of Munish was lodged by his father Gulzar on 13.8.2001. 4. On 10.8.2001, an unknown dead body was found near village Kahla on the railway line. Inquest proceedings were conducted on 10.8.2001. Postmortem was conducted on 11.8.2001 at 03.30 PM. 5. Thereafter, another application was moved by one Sharif son of Gulzar on 20.8.2001, stating that report of disappearance of Munish was lodged by his father Gulzar on 13.8.2001. Complainant Sharif came to know that unknown dead body was recovered by the police on 10.8.2001. When he inquired from the police station GRP Charbagh Lucknow and saw the shoes which were recovered near the dead body. He identified the shoes of his brother Munish. It is further stated that Naushad, Babboo, Sirdar have committed murder of his brother. On the basis of this information GD entry was made at GD No.34 dated 20.8.2001 and a case at crime no.234 of 2001 under section 302, 201 IPC was registered. Investigation was handed over to investigating officer. During investigation investigating officer arrested one accused Usman alias Khalnayak. Recovery of pant, shirt and angauchcha of deceased was made on his pointing out under section 27 of Evidence Act. Site plan was prepared. Recovered clothes were identified by Gulzar. After investigation charge sheet was submitted against the accused person namely Naushad, Babboo, Siraj, Usman alias Khalnayak and Siraj. Accused were charged under section 302, read with section 34 and 201 IPC. They denied the charge and claimed trial. 6. In order to prove its case prosecution has produced PW-1 Gulzar complainant and father of the deceased, PW-2 Sharif brother of the deceased, PW-3 Rauf who was declared hostile, PW-4 Ram Prakash Yadav who was declared hostile, PW-5 Rajjan Awasthi declared hostile, PW-6 Shahid Ali declared hostile, PW-7 Nasir declared hostile, PW-8 Barkat Ali witness of recovery of clothes, PW-9 Magre, PW-10 Usman, PW-11 Maloha Prasad who was declared hostile, PW-12 Shakir Ali declared hostile PW-13 Avinash Chandra Pandey Investigating Officer, PW-14 HC Kanhaiya Prasad who has prepared the chik FIR and entered the same in the GD, PW-15 Nepal Singh Investigating Officer, PW-16 Mahesh Prasad Station Master Station Dilavar Nagar Lucknow, PW-17 Dr R.K. Khanna who has conducted the postmortem and opined that the whole body was crushed from top to bottom except one big piece of chest and abdomen. Oil black greese soaked body with unidentifiable limbs. Cause of death was crush injuries. Oil black greese soaked body with unidentifiable limbs. Cause of death was crush injuries. According to Doctor death could have been caused on 09.8.2001 at about 06.00 PM. Duration of death was three and half day. Cause of death was due to crush by train. PW-18 Inspector Rangnath Shukla subsequent Investigating officer who has submitted the charge sheet, PW-19 SI Ram Badan Ram Investigating officer. In the statement under section 313 Cr.P.C. accused have denied the allegations levelled against them and stated that they have been falsely implicated due to enmity. No evidence was adduced in defence. 7. Learned trial court had appreciated the evidence and came to the conclusion that accused Naushad and Usman have committed the murder and have taken active part in causing death of the deceased. Accordingly, impugned judgment was passed. We have gone through the record. 8. Learned counsel for the appellants argued that the learned trial court has given no finding whereby guilt of the appellants could be proved. It is a case of circumstantial evidence wherein no link is proved between the date of disappearance of the deceased till the time of recovery of the dead body. It is further submitted that recovery of shirt and pant under section 27 Evidence Act could also not be proved by the prosecution. Body was recovered as unidentified body having crush injuries by train. No clothes were recovered on the body, rather shoe was found near the body which was identified by the complainant. 9. Learned A.G.A. submitted that although it is a case of circumstantial evidence but the chain of circumstances is complete. There is no discrepancy in the evidence. Deceased left the house, thereafter, appellant Usman and Naushad were seen in his company and they are responsible for the death of the deceased. 10. First information report of the occurrence was lodged on 13.8.2001 while the deceased left his house on 09.8.2001. First information report was lodged by Gulzar, father of the deceased wherein it is mentioned that Rauf told him about the fact that deceased met Naushad then Naushad went with him to Kahla Railway station. These facts were told to PW-1 Gulzar by Rauf PW-3. Rauf was declared hostile. PW-3 Rauf has stated that he had seen the deceased on the road but he has no discussion with him. This witness has not supported the prosecution version. These facts were told to PW-1 Gulzar by Rauf PW-3. Rauf was declared hostile. PW-3 Rauf has stated that he had seen the deceased on the road but he has no discussion with him. This witness has not supported the prosecution version. It means that the whole story as narrated by the PW-1 Gulzar is falsified because according to PW-1 Gulzar all these facts were told to him by Rauf. So far as other evidence is concerned, PW-2 Sharif is brother of the deceased who has stated that Munish did not leave the house in his presence. This statement was made in the examination-in-chief. Now, there remains the evidence of PW-9 Magre only who has stated that on the date of occurrence at about 08.00 to 09.00 PM he was waiting for the local train at Dilavar Nagar Railway station where Naushad, Sirdar, deceased and brother of Naushad and three four other persons met him. All of them went towards the western side of Dilavar Nagar railway station. Thereafter, they did not come back and he went to Lucknow by train. Evidence of PW- 9 Magre is not at all reliable and trustworthy. He is a chance witness who used to sell the milk. Why he was present at Dilavar Nagar railway station is not explained by him although he knows Munish but he did not tell his name even in the 8 (Criminal Appeal No.2040 of 2008) (Criminal Appeal No.2039 of 208) examination-in-chief. This witness has not named Usman who is also accompanying the deceased. His statement was also not recorded by the investigating officer. Hence, evidence of PW-9 Magre on the point of last seen could not be a trustworthy and reliable evidence. It is settled legal principle that evidence of last seen alone could not be made the sole ground for conviction. It was held in Rambraksh alias Jalim v. State of Chhattisgarh, 2016 SCC Online SC 508 : - “ 11. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, 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 perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.” 11. It was also held in Praful Sudhakar Parab v. State of Maharashtra 2016 SCC Online SC 620 that : - “15. …………………… Last seen theory is a circumstance, which can be relied but it is well settled that only on the basis of last seen together conviction cannotbe recorded. Further, if there is long time gap between last seen together and the date of incident, the evidence of last seen together losses much of its importance…………………….” Hence, we are of considered view that evidence of PW-9 Magre on the last seen evidence is not trustworthy and reliable. 12. An application was moved by Sharif, brother of the deceased, showing the name of Naushad, Babboo, Sirdar who have committed the murder of the deceased. This witness has stated in his examination-in-chief that when his brother left the house, his sister was there but this witness himself has not seen Munish leaving the house. He has given the statement on the basis of information given by one Rauf. Rauf have been declared hostile who has not supported the prosecution version. Hence, evidence of PW-2 Sharif is also neither reliable nor trustworthy. 13. A recovery of a shirt, pant and angauchcha was made by the police on the pointing out of Usman alias Khalnayak under section 27 of the Evidence Act. So far as recovery is concerned PW-4 Ram Prakash Yadav has denied that any recovery was made before him. This witness was declared as hostile. Even identification of the clothes was not proved by this witness. So far as recovery is concerned PW-4 Ram Prakash Yadav has denied that any recovery was made before him. This witness was declared as hostile. Even identification of the clothes was not proved by this witness. He is also a witness on exhibit ka-12 memo wherein clothes were shown to the complainant Gulzar who has identified them to be the clothes of his son. Rajjan Awasthi PW-5 was also declared hostile and stated that no clothes were shown to the complainant in his presence. Recovery of clothes under section 27 of Evidence Act is also not proved by the evidence of PW-6 Shahid Ali, who was declared hostile, PW-7 Nasir, PW-8 Barkat Ali has stated that Usman was interrogated in the police station wherein he has confessed that he has committed the murder of Munish by strangulating him by angauchcha. Usman went to the pond where clothes of Munish were recovered by the police on the pointing of Usman. Police cleaned the clothes, kept them in the vehicle and the recovery memo was prepared at the police station. Recovery could not be proved by this witness as he has stated that he reached at the place of recovery later on while police personnels were already there. There was a crowd of about 125 persons. Interrogation was made at the police station. All the proceedings were conducted at the police station. Memo was also written at the police station. PW-15 Inspector Nepal Singh has given a very casual statement that on the pointing out of Usman, clothes of deceased were recovered. This statement itself is not admissible in evidence. Necessary ingredients to prove a recovery under section 27 Evidence Act is not proved. Whether Usman has made any confessional statement inculpating himself and thereafter making a statement that he can get the cloth recovered was made or not is nowhere stated by this witness. PW-15 Nepal Singh has stated that recovery memo was prepared at the place of recovery while the public witness has said that it was prepared at the police station, hence, it cannot be accepted. PW-20 S.I. Raj Bahadur Singh was also accompanying the police party at the time of recovery whose statement is also not believable. It is stated that they took Usman from tempo stand itself but he has not stated name of any person who was present at the time of recovery. 14. PW-20 S.I. Raj Bahadur Singh was also accompanying the police party at the time of recovery whose statement is also not believable. It is stated that they took Usman from tempo stand itself but he has not stated name of any person who was present at the time of recovery. 14. Evidence of PW-20 Raj Bahadur Singh and PW-15 Inspector Nepal Singh did not find support from the evidence of other public witnesses. 15. Except evidence of recovery of clothes there is no evidence against the accused. Recovery of clothes was made on the pointing out of accused Usman and a recovery memo exhibit ka-6 was prepared but the evidence shows that the clothes were washed by the police at the spot thereafter they were taken to the police station and other formalities were conducted at the police station itself. It is settled legal proposition that recovery under section 27 of Evidence Act could be made the sole ground for conviction but such recovery must inspire confidence. In the present case public witnesses of recovery did not support and prove the recovery. Further clothes were not sealed at the spot, rather they were washed and necessary proceedings were conducted at the police station, thereafter recovery memo was also prepared at the police station while it should have been prepared at the place of recovery. Hence, evidence of police personnels only could not prove the recovery under section 27 of Evidence Act. 16. We are of the considered view that the prosecution has utterly failed to prove its case against the accused beyond reasonable doubt. Learned trial judge has misinterpreted the evidence on record. Order of conviction and sentence is liable to be set aside and is accordingly set aside. Accordingly appeals are allowed. Judgment of conviction and sentence passed by the learned trial court is set aside. Accused are in Jail. They shall be released forthwith if not wanted in any other case. 17. Office is directed to certify this order to the learned trial court to ensure compliance. Office is further directed to transmit the lower court record forthwith. Appeals allowed.