JUDGMENT : Vivek Singh Thakur, J. 1. Aggrieved by acquittal of respondent-accused vide judgment dated 18.07.2012, passed by the learned Sessions Judge, Sirmaur, District at Nahan in Sessions Trial No. 29-ST/7 of 2011/2010, in case FIR No. 81 /2010 dated 16.04.2010 registered under Section 302 of the Indian Penal Code in Police Station Nahan District Sirmaur, H.P. the State has preferred present appeal with prayer to set aside impugned judgment and to convict respondent-accused under Sections 302 of the Indian Penal Code. 2. Mr. P.M. Negi, learned Deputy Advocate General for the appellant-State has advanced arguments that there is sufficient circumstantial evidence on record to prove the guilt of respondent-accused under Sections 302 of the Indian Penal Code and prayed for allowing the appeal to punish the respondent-accused under Section 302 IPC whereas Mr. Deepak Kaushal, learned counsel for respondent-accused has vehemently submitted that prosecution has failed to prove the case beyond reasonable doubt and there is no circumstance incriminating respondent-accused and has sought dismissal of the appeal by affirming the judgment of Sessions Judge, Sirmaur, District at Nahan. 3. Investigation agency in the present case was set in motion on the basis of telephonic call received by PW-5 Constable Love Kumar from PW-8 Dinesh Kumar(father of the deceased) which was recorded as rapat No. 23 dated 16.04.2010 Ex. PW-5/A in Police Post Kala Amb. Preceding this report, Head Constable Bhim Singh alongwith other staff had rushed to the spot. This information was further transmitted through telephonic message from Police Post, Kala Amb to Police Station, Nahan and on the basis of said message rapat Rojnamcha G.D. No. 12 dated 16.04.2010 Ex.4/A was recorded by PW-4 Constable Om Lal after receiving telephonic information, PW-18 SI/SHO Dharam Pal had also proceeded to the spot. He had recorded statement of PW-8 Dinesh Kumar under Section 154 of Code of Criminal Procedure which was sent to the Police Station as Rukka statement Ex. PW-8/A. On receiving Rukka Ex. PW-8/A, PW-14 ASI Sucha Singh had lodged FIR Ex. PW-14/A and thereafter endorsement Ex. PW-14/B on the Rukka statement was made by him. 4. As per statement of PW-8 Dinesh Kumar, he and his wife were working as construction labourers with contractor PW-12 Mahavir Singh in I.I.T.T. College, Kala Amb. PW-8/A. On receiving Rukka Ex. PW-8/A, PW-14 ASI Sucha Singh had lodged FIR Ex. PW-14/A and thereafter endorsement Ex. PW-14/B on the Rukka statement was made by him. 4. As per statement of PW-8 Dinesh Kumar, he and his wife were working as construction labourers with contractor PW-12 Mahavir Singh in I.I.T.T. College, Kala Amb. His family i.e. wife Shanti Devi, 7 years old daughter deceased Priyanka and 4 years old daughter Lovely were residing with him in a hut near College. PW-11 Madhuri mother-in-law of PW-8 Dinesh Kumar and her 3 sons namely Kalu (accused), Raj Kumar and Sanjay were also residing in adjoining hut. His mother-in-law used to stay in hut and look after his children. Accused Kalu, his brothers Raj Kumar and Sanjay were also working as labourers with same contractor at the same place. On 15.04.2010, Kalu accused was absent from work and remained in the hut. All other except PW-11 Madhuri were on the work at I.I.T.T. Kala Amb. At about 4.00 PM, PW-8 Dinesh Kumar had come to his hut for fetching water but hut was found locked. He called his deceased daughter but she was not found there. Thereafter, he took a small pot (Dibba) for taking water and went towards building of the college. At that time, he noticed Kalu accused alighting from stairs leading to bath room in the upper floor. Kalu accused had frightened on seeing PW-8 Dinesh Kumar and had proceeded towards gate of the building. After fetching water from the tap situated near College building, PW-8 had served water to labour and Kalu had also reached there. At about 4.20 PM PW-11 Madhuri, mother-in-law of PW-8 Dinesh Kumar had come on work place and informed that Priyanka was lying in the bath room. Thereafter, all of them including Manoj and Shyamu etc. reached on the spot and found Prinyaka lying in the bath room. On examination of her body bluish mark on her throat was noticed. Priyanka was taken to private Doctor at Johra who had advised to take her in some better place for want of his ability to treat the patient. Therefore, she was taken to Naraingarh Hospital by PW-8 Dinesh Kumar and PW-16 Vinod Kumar (Munshi of PW-12 Mahavir Singh contractor) where Priyanka was declared dead and cause of death was informed strangulation. Priyanka was taken to private Doctor at Johra who had advised to take her in some better place for want of his ability to treat the patient. Therefore, she was taken to Naraingarh Hospital by PW-8 Dinesh Kumar and PW-16 Vinod Kumar (Munshi of PW-12 Mahavir Singh contractor) where Priyanka was declared dead and cause of death was informed strangulation. They had come back with dead body of Priyanka and during night they remained in the hut and Kalu accused was also there. On next morning, PW-8 Dinesh Kumar had reported the matter to the police. On decision of PW-8 Dinesh Kumar to report the matter to Police, accused Kalu had fled away from the spot. Narrating aforesaid facts, it was stated that accused Kalu had killed Priyanka by strangulating her in bath room. 5. Present case of prosecution is based on circumstantial evidence. Prosecution has relied upon ’last seen together alive theory’ supported by ‘motive’ and ‘conduct’ of the accused and his brothers. 6. It is a settled law that in case of circumstantial evidence conviction should be recorded only if the chain pointing to the guilt of the respondent-accused is firmly established linking the accused with crime firmly and not only creating suspicion as the suspicion however strong evidence itself may not take place of proof. All the circumstances must be consistent only with hypothesis of the guilt. 7. Though, murders are also committed even without any pre-emptive motive. In cases based on circumstantial evidence motive, however is an important factor and a strong circumstance. 8. Prosecution has examined 19 witnesses to prove guilt of the accused. PW-2 Dr. Pankaj Gaur, PW-7 Shri Om Kumar and PW-15 Dr. Harpinder are witnesses related to medical evidence which is not disputed by accused. Testimony of official witnesses PW-1 HC Kanwar Singh PW- 3 Ishwar Chand Patwari, PW-4 Constable Om Lal, PW-5 Constable Love Kumar, PW-13 HHC Virender Singh, PW-14 Sucha Singh have also not been disputed by respondent-accused. PW-6 Satpal Saini has taken photographs Ex. PW- 6/ A-1 to PW-6/A-4. PW-18 SI/SHO Dharam Pal has investigated the case and after his transfer investigation was entrusted to PW-19 ASI Agya Ram. 9. PW-6 Satpal Saini has taken photographs Ex. PW- 6/ A-1 to PW-6/A-4. PW-18 SI/SHO Dharam Pal has investigated the case and after his transfer investigation was entrusted to PW-19 ASI Agya Ram. 9. PW-9 Manoj Kumar and PW-10 Shayamu have stated that accused Kalu had threatened to kill deceased Priyanka 3-4 days prior to death as accused Kalu was annoyed on account of her habit of backbiting which was heavily adverse impact on relations of accused Kalu with family of deceased. PW-16 Vinod Kumar has also stated that PW-8 Dinesh Kumar had informed him regarding threatening to kill Priyanka extended by accused Kalu. However, PW-8 Dinesh Kumar father of the deceased is silent in his deposition in Court with respect to motive of accused Kalu to commit murder. There is no mention of threatening in FIR also. There is no convincing evidence with regard to prove motive. 10. To prove ‘last seen together alive theory’, PW-8 Dinesh Kumar has stated that he had seen accused Kalu coming down from stairs of bathroom immediately before finding her daughter Priyanka lying in both room. PW-9 Manoj Kumar and PW-10 Shyamu have also deposed to the same effect, however, both of them have stated that PW-8 Dinesh Kumar had told them that he had seen accused Kalu alighting from the stairs leading to bathroom and on noticing PW-8 Dinesh Kumar accused Kalu had been perplexed. 11. It is prosecution case that PW-17 Smt. Neha Saroj had seen accused Kalu standing on stairs of bath room immediately before deceased Priyanka was found dead in bathroom. But in her statement she has shown her inability to identify accused Kalu by stating that she had not observed feature of the person standing on stair properly. Nothing material has been extracted in her cross examination by learned Public Prosecutor after declaring her hostile. It is also case of prosecution that PW-17 Neha Saroj had informed PW-11 Madhuri however PW-17 Neha has abstained from depositing so in the Court. PW-11 Madhuri has also denied to have been informed by PW-17 Neha Saroj regarding presence of accused Kalu on stairs of bathroom. PW-11 Madhuri has also been declared hostile for resiling from statement recorded under Section 161 Cr.PC. Her cross examination by learned Public Prosecutor is also of no help to the prosecution as she has denied all suggestions put to her in support of prosecution case. 12. PW-11 Madhuri has also been declared hostile for resiling from statement recorded under Section 161 Cr.PC. Her cross examination by learned Public Prosecutor is also of no help to the prosecution as she has denied all suggestions put to her in support of prosecution case. 12. PW-17 Neha Saroj has deposed that she did not recognized the person she had seen standing on stairs of bath room. No one has seen accused Kalu with deceased Priyanka and in any case, the deposition of PW-8 Dinesh Kumar is believed even then accused Kalu had only been seen coming down from stairs of bath room. In absence of other incriminating evidence on record, the conviction cannot be based only on the basis of ‘last seen together alive.” 13. PW-8 Dinesh Kumar, PW-9 Manoj Kumar and PW-10 Shyamu have stated that on decision of PW-8 Dinesh Kumar to report matter to police, accused Kalu had fled and had been arrested by police at Naraingarh with their help. However, Investigating Officer PW-18 SI/SHO Dharam Singh has denied the said fact by stating that accused Kalu was not arrested by him from bus stand Naraingarh but he was produced before him by HC Balbir Singh. HC Balbir Singh has not been examined. Therefore, allegation of fleeing from spot is also not substantiated by evidence led by prosecution. 14. Regarding conduct of accused Kalu and his brothers Raj Kumar and Sanjay pointing out finger towards accused Kalu, it has been stated by PW-8 Dinesh Kumar that brothers of accused Kalu namely Sanjay and Raj Kumar had asked him not to report the matter to the police and in lieu of that they had offered Rs.50,000/-. This had not been disclosed by him to the police at the time of recoding of his statement. PW-9 Manoj Kumar, PW-10 Shyamu who are also related to PW-8 Dinesh Kumar are silent on this issue whereas PW-16 Vinod Kumar has stated in cross examination that there was no conversation of demand of money on behalf of anybody. There is no satisfactory and convincing evidence with respect to offering of Rs.50,000/- by brothers of accused Kalu for not reporting the matter to the police. 15. There is no satisfactory and convincing evidence with respect to offering of Rs.50,000/- by brothers of accused Kalu for not reporting the matter to the police. 15. PW-12 Mahavir Singh contractor and his Munshi PW-16 Vinod Kumar have deposed that accused Kalu was absent from work on the day of incident and further that accused Kalu had killed deceased Priyanka daughter of PW- 8 Dinesh Kumar. However, in their statements they have not tendered any record like attendance register, notebook or any other document pertaining to attendance of their employees/labour/mason to substantiate their oral statement. PW-16 Vinod Kumar has admitted that what he had deposed was told to him by father of Priyanka i.e. PW-8 Dinesh Kumar. PW-12 Mahavir Singh has deposed on the basis of information supplied by PW-16 Vinod Kumar. Statements of these witnesses is hearsay evidence. 16. Postmortem of deceased Priyanka was conducted by PW-2 Dr. Pankaj Gaur on 16.04.2010 at 2.45 PM. As per Postmortem report, cause of death was found asphyxia as a result of manual strangulation. Death was reported to be immediately after receiving injury. Time between death and postmortem was stated to be 12 to 24 hours. No sign of sexual intercourse was found. Stomach, Liver, Kidney, Spleen and cloths of deceased Priyanka alongwith veginal slides were preserved and handed over to police which were deposited in Malkhana by PW-1 HC Kanwar Singh on 16.04.2010. These articles were sent to SFSL, Junga through PW-13 HHC Virender Singh vide RC No.89/2010 dated 19.04.2010. After receiving report from SFSL Junga, Ex. PW-18/G and Ex. PW-18/H, final opinion of PW-2 Dr. Pankaj Gaur was sought which remained the same as given at the time of postmortem. 17. PW-7 Om Kumar is helper of Dr. Pankaj Verma in Pankaj Clinic, Kala Amb. He has deposed that on 15.04.2010 at about 5.00 PM deceased Priyanka was brought to his Clinic. He had advised to take her to a better place as her treatment was not possible in their Clinic. 18. PW-15 Dr. Harpinder is Medical Officer in Civil Hospital, Nariangarh. He has abstained from lending support to the prosecution case and even had denied examination of deceased Priyanka by him on 15.04.2010. 19. PW-18 and PW-19 are the Investigating officers and their statements in absence of other incriminating evidence, are not sufficient to substantiate the allegations against the accused Kalu. 20. Harpinder is Medical Officer in Civil Hospital, Nariangarh. He has abstained from lending support to the prosecution case and even had denied examination of deceased Priyanka by him on 15.04.2010. 19. PW-18 and PW-19 are the Investigating officers and their statements in absence of other incriminating evidence, are not sufficient to substantiate the allegations against the accused Kalu. 20. It is evident from the aforesaid discussion that Chain of circumstantial evidence to prove the guilt of accused is not complete and prosecution evidence cannot be treated as cogent, reliable, credible and sufficient to prove the guilt of the accused-respondent beyond reasonable doubt. There are material contradictions in the testimonies of material witnesses. Thus, having perused the testimonies of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case that respondent-accused has committed offence under Section 302 of the IPC. It cannot be said that the learned trial court has not appreciated the evidence correctly and completely and acquittal of the accused has resulted into travesty of justice or has caused mis-carriage of justice. 21. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. The accused has been acquitted by the trial Court. No case for interference is made out. 22. The present appeal, devoid of any merit, is dismissed, as also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be sent back immediately.