JUDGMENT : The instant criminal appeal has been filed by the appellants under Section 374(2) Cr.P.C. challenging the judgment dated 29.01.2013 passed by learned Addl. Sessions Judge, Anoopgarh, District : Sri Ganganagar, in Sessions Case No. 22/2009, whereby the appellants were convicted for the offence under Sections 302, 364 and 201 of IPC and following punishment was passed against them : Under Section 302 IPC : Imprisonment for life with a fine of Rs. 5,000/-, in default of payment of fine to further undergo one month's SI. Under Section 364 IPC : Simple Imprisonment for 10 years with a fine of Rs. 5,000/- and in default of payment of fine, to further undergo one month's S.I. Under Section 201 IPC : Simple Imprisonment for 7 years with a fine of Rs. 3,000/ and in default of payment of fine, to further undergo of fifteen days' additional S.I. 2. Briefly stated, the facts of the case are that the FIR No. 26/2006 (Exhibit-P/12) was registered upon a complaint filed by Smt. Mahendra Kaur (PW.7) on 15.02.2006 at 05.15 PM at Police Station - Raisinghnagar, under Sections 363, 365 IPC and Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. In the FIR, it was alleged that on 10.02.2006, Avtar Singh S/o Gurbachan Singh Jat of 56 GB (B), who runs a Tempo, came to her house at 04.30 PM and asked her son, namely, Bhajan Singh, that he is coming back after leaving passengers you get ready to go with me, I will make arrangement for your employment as tempo driver at Anoopgarh. According to the complainant, her son was having driving licence and was plying a tempo. After some time, Avtar Singh, his brother, namely, Ravinder Singh and Rajia S/o Sardul Ram Naik came in a tempo at 05.30 PM to my house and asked my son to go with them. As per the complainant, her son said that I am going in tempo with above persons and will come back, my husband and neighbour's son, Gurjeet Singh, Gopal Singh were also present when Bhajan Singh went along with appellants, however, did not return back to the home till night. In the next morning, the complainant asked Harvinder Singh, Amrik Singh etc. about the said fact and went to the house of Gurbachan Singh along with them. In the next morning, the complainant asked Harvinder Singh, Amrik Singh etc. about the said fact and went to the house of Gurbachan Singh along with them. In the house, nobody was found, thereafter, they made search of Bhajan Singh, but not traced out Bhajan Singh. The complainant raised doubt against Avtar Singh, Ravinder Singh and Rajia as she apprehended that her son has bean kidnapped by them. The complainant lodged the FIR on 15.2.2006 at about 5.15 pm at Police Station, Raisinghnagar after five days. After registration of the FIR (Ex.P/12), the Station House Officer, Police Station Raisinghnagar commenced the investigation. 3. On 16.02.2006, complainant, Smt. Mahendra Kaur and Kashmir Singh appeared before the Police Station and informed that upon search, they reached 65 GB, near the agricultural field of Pal Singh, where they got information that something is lying in the crop of mustard (HINDI) and dogs were also walking there. In the said agricultural field, I found that dead body of my son is lying there. The investigating officer upon receiving such information went in the agricultural field of Pal Singh, resident of 65 GB, Murabba No. 49 Kila No. 21 and found that body of one person was lying there. Complainant Smt. Mahendra Kaur, identified the dead body of her son, Bhajan Singh. Thereafter, the Investigating Officer prepared Exhibit-P/1 and took the dead body of Bhajan Singh in his possession. The complainant, mother of deceased, put her thumb impression upon the memo of recovery of dead body. The police added offence under Section 302 and 365/34 of IPC read with Section 3 of the SC/ST Act and gave information to the higher authorities. 4. During the investigation, the accused appellants were arrested and upon completion of investigation, police filed charge sheet against the accused appellants for the offences under Sections 302, 364 and 34 of IPC and Section 3(2) of the SC/ST (Prevention of Atrocities) Act in the Court of learned Addl. Chief Judicial Magistrate, Anoopgarh, from where the case was committed to the court of learned Special Judge, SC/ST Act Cases, Sri Ganganagar for trial. 5. In the court of learned Special Judge, SC/ST Act Cases, Sri it Ganganagar, the charges were framed and commenced the trial. During trial, the case was transferred to the court of Addl. Sessions Judge, Anoopgarh, Sri Ganganagar, for trial vide order dated 17.06.2009. 6. 5. In the court of learned Special Judge, SC/ST Act Cases, Sri it Ganganagar, the charges were framed and commenced the trial. During trial, the case was transferred to the court of Addl. Sessions Judge, Anoopgarh, Sri Ganganagar, for trial vide order dated 17.06.2009. 6. In the trial the learned trial court recorded oral evidence of 29 prosecution witnesses end exhibited 59 documents from the prosecution side. After recording evidence of prosecution, the learned trial court recorded the statements of accused appellants under Section 313 Cr.P.C. in which they denied all the allegations made by the prosecution witnesses and said that allegations are false. In defence, statements of 9 defence witnesses were recorded, thereafter final arguments were heard by the trial court. 7. The learned trial court after evaluating the evidence on record finally decided the case vide judgment dated 29.01.2013, whereby both the accused appellants were convicted for the offences, mentioned above. 8. Being aggrieved by and dissatisfied with said judgment, the instant appeal has been filed by the accused appellants. 9. Learned counsel for the appellants vehemently argued that there is no direct evidence against the accused appellants to connect them with the alleged crime. The police filed charge sheet only on the basis of circumstantial evidence of last seen and recovery of 'Safa' (turban) from accused appellant, Rajia @ Rajaram. He further argued that out of 29 prosecution witnesses, the witness PW.1 Kashmir Singh, PW.3, Vichitra Singh, PW.5 Kamlesh Rani, PW.6 Manjeet Singh, PW.8 Jasvinder Kaur, PW.10 Hardeep Singh, PW.17 Ganesh Ram, PW.18 Gopiram, PW. 19 Sahab Ram, PW.20 Rakesh Kumar, PW.23 Narendra Singh, all turned hostile and did not support the prosecution story. He, therefore, submitted that it is a case in which judgment is based upon no evidence but learned trial court while relying upon the testimony of PW.7, Mahendra Kaur (author of FIR) and witness of last seen coupled with recovery held the accused appellants guilty of the offences under Sections 302, 364 and 34 of IPC but there is no corroboration for the allegations levelled by the witness PW.7, Mahendra Kaur. Therefore, the findings given by the learned trial court so an to convict the appellants for alleged offences are not sustainable in the eye of law. 10. Therefore, the findings given by the learned trial court so an to convict the appellants for alleged offences are not sustainable in the eye of law. 10. Learned counsel for the appellants submits that no recovery has been made upon the information furnished by the appellant Avtar Singh, but a diary was recovered from the place of occurrence to prove the allegation against the accused appellant that said diary belongs to accused Avtar Singh, but there is no trustworthy evidence on record to connect him with the alleged recovery of diary from the place of occurrence. 11. While inviting attention towards evidence of motive, it is submitted that wife of deceased PW.8, Smt. Jasvinder Kaur, who turned hostile and did not support the alleged motive of illicit relation with accused appellants and did not support the prosecution case. Therefore, the evidence of motive created by the prosecution is not sustainable in law because there is no trustworthy evidence to hold the appellants guilty for the alleged offence of murder. Learned counsel for the appellants submitted that one 'Safa' (turban) was recovered on the basis of so called information given by accused Rajia @ Rajaram under Section 21 of the Evidence Act, but there is no evidence to establish that at the time of last seen, deceased was wearing 'Safa' (turban), which is said to have been recovered upon the information given by the accused, Rajia. He also submitted that the 'Safa' and slippers were recovered upon the information given under Section 27 of the Evidence Act by the appellant, Rajia, but no blood was found upon the pair of slippers and 'Safa' blood group was not ascertained as per FSL report (Exhibit-P/56) dated 22.03.2006. Therefore, it is a case in which the prosecution has completely failed to prove its case beyond reasonable doubt on the basis of circumstantial evidence of last seen, and recovery of articles at the instance of appellants, therefore, the judgment impugned deserves to be quashed and set aside 12. The crux of arguments of the learned counsel for the appellants that there is no independent witness to prove the prosecution case, so also, there are material contradictions, improvements and omissions in the statement of PW.7, Smt. Mahendra Kaur and other witnesses, therefore, the findings of guilt arrived at by the learned trial court holding the appellants guilty, deserves to be quashed. While inviting attention towards the statement of PW.5, Kamlesh Rani owner of the Tempo, it is submitted that said witness categorically stated before the Court that accused appellant, Avtar Singh was not working as driver upon her tempo. The whole case is based upon evidence of last seen and recovery of turban and clothes of deceased, so also, diary from the site of occurrence, but there is no corroboration for the allegation to connect the accused appellant with the crime because prosecution has failed to prove the case on the basis of trustworthy and reliable evidence that the appellants an guilty for committing offence under Section 302, 364, 302/34 and 201 IPC, therefore, the judgment impugned may kindly be quashed. In support aforesaid submissions, the learned counsel for the appellants invited our attention towards to the judgment of the Hon'ble Supreme Court in the case Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 , C. Chenga Reddy and Ors. v. State of A.P. reported in 1996 (10) SCC 193 and Shivu and Anr. v. Registrar General, Rajasthan High Court Karnataka (sic.) and Anr. reported in 2007 (4) SCC 713 . 13. Per contra, learned Public Prosecutor vehemently submitted that prosecution has proved its case beyond reasonable doubt by leading trustworthy circumstantial evidence of last seen of the appellants with the deceased. While inviting attention towards the statement of PW-7 Mahendra Kaur, brother (sic. mother) of deceased, author of the FIR it is argued that till said witness categorically stated before the court hat accused appellant Avtar Singh asked my son Bhajan Singh that I will arrange employment for you on the post of driver, you may come with me and upon asking by Avtar Singh, went with Avatar Singh and Rajiya while sitting in tempo on 10.2.2006 but not come back. For five days when Bhajan Singh was not found then FIR Ex.P/12 was submitted by her. In the FIR Ex.P/12 it was categorically stated by PW-7 Mahendra Kaur that Bhajan Singh went along with the appellants and it was apprehended by her that Avtar Singh, Ravindra Singh and Rajiya illegally detained her son, therefore, action may be taken against them. The said FIR was filed on 15.2.2006 at about 5.15 pm for the missing of Bhajan Singh that took place on 10.2.2006. 14. The said FIR was filed on 15.2.2006 at about 5.15 pm for the missing of Bhajan Singh that took place on 10.2.2006. 14. After registration of the FIR, dead body of deceased Bhajan Singh was recovered from the agricultural field of Pal Singh resident of 65 GB Murraba No. 49 Killa No. 21 in the crop standing in the agricultural field and dead body was identified by the PW-7 complainant Mahendra Kaur and one Kashmir Singh and Gurdayal Singh. The identification memo Ex.P/6 was prepared on 16.2.2006. As per prosecution case a diary of accused Avtar Singh was recovered from the place of occurrence and taken in possession vide Ex.P/5 on spot. The investigating officer completed all the formalities of preparing site plan and on completion of proceedings on spot arrested the accused appellant Avtar Singh vide Ex.P/46 and Raja Ram @ Rajiya vide Ex.P/47 on 20.6.2006 and upon their information, the place was identified vide Ex.P/50 and P/51. The tempo of accused appellant Avtar Singh was also seized vide Ex.P/52 and other documents were also taken in the investigation. The statements of all the witnesses of prosecution were recorded under Section 161 Cr.P.C. Thereafter, on completion of investigation, challan was filed against the accused appellants. The prosecution proved its case beyond reasonable doubt by leading evidence of last seen, so also, recovery of turban and one pair of slippers upon information given by the accused appellant Raja @ Rajiya vide Ex.P/15 and proved the fact of last seen as well as recovery of turban, slippers and diary from the place of occurrence. The learned trial court while considering the entire evidence rightly convicted the accused appellants for offences under Section 302, 364 and 201 IPC and passed the sentence mentioned above. 15. Learned Public Prosecutor further submits that the finding given by the trial court so as to hold accused appellants guilty does not require any interference, therefore, this appeal may kindly be dismissed. 15A. After hearing the learned counsel for the parties, we have minutely examined the entire evidence. To prove the case, statements of 29 witnesses were recorded in the trial. Out of 29 witnesses, PW-10 Hardeep Singh, PW-15 Gurdev Singh, PW-17 Ganesh Ram, PW-19 Sahab Singh, PW-20 Rakesh Kumar and PW-13 Kala Singh turned hostile and did not support the prosecution case. After hearing the learned counsel for the parties, we have minutely examined the entire evidence. To prove the case, statements of 29 witnesses were recorded in the trial. Out of 29 witnesses, PW-10 Hardeep Singh, PW-15 Gurdev Singh, PW-17 Ganesh Ram, PW-19 Sahab Singh, PW-20 Rakesh Kumar and PW-13 Kala Singh turned hostile and did not support the prosecution case. PW-5 Kamlesh Rani categorically stated before the court that upon tempo which is said to be recovered as per information given by Avtar Singh whether he was working as driver I don't know, therefore, she was also declared hostile by the prosecution. The wife of the deceased PW-8 Jasvinder Kaur also turned hostile and specifically said that Bhajan Singh left the house as informed by the mother Mahendra Kaur (PW-8). She was not present in the house when Bhajan Singh left the house but upon coming back she was informed by her mother-in-law that Bhajan Singh went along with Rajiya and Avtar Singh. Meaning thereby, the wife of the deceased did not allege any suspicion against the accused appellants. 16. We have perused the statement of PW-7 Mahendra Kaur, author of the FIR. Admittedly, as per facts deceased Bhajan Singh was missing since 10.2.2006, but no FIR was filed by the mother PW-7 Mahendra Kaur or other family members till 15.2.2006. It is also very relevant to mention here that in the statement of PW-7 Mahendra Kaur it is nowhere stated by her from which date Bhajan Singh was missing but as per facts an FIR was filed after delay of 5 days. The witness PW-7 Mahendra Kaur specifically stated in her statement that Bhajan Singh was wearing blue coloured shirt and pants, black coloured slippers and dark coloured sweater. It is nowhere stated by her that Bhajan Singh was wearing turban of blue colour which is said to be recovered vide recovery memo Ex.P/15. As per information of accused Rajiya, PW-7 gave the o following statement in her examination-in-chief, which reads as under : " Hktuflag us ml le; vklekuh jax dh 'kVZ o isaV] dkyh pIiy] uhys jax dk LosVj iguk gqvk FkkA Hktuflag dks VSEiksa ij tkrs le; d'ehjflag] nythrflag] vejhdflag] xqjikyflag us ns[kk FkkA " 17. As per information of accused Rajiya, PW-7 gave the o following statement in her examination-in-chief, which reads as under : " Hktuflag us ml le; vklekuh jax dh 'kVZ o isaV] dkyh pIiy] uhys jax dk LosVj iguk gqvk FkkA Hktuflag dks VSEiksa ij tkrs le; d'ehjflag] nythrflag] vejhdflag] xqjikyflag us ns[kk FkkA " 17. PW-8 Jasvindra Kaur though turned hostile, but it is stated by her that " esjs ifr tc ?kj ls x;k Fkk rc mlus dkys jax dh pIiy] uhys vklekuh jax dh isUV deht o uhys jax dk lkQk iguk gqvk FkkA o uhys jax dh LosVj iguh gqbZ FkhA tc eSa okfil ?kj vkbZ rc Hktuflag ?kj ij ugha FkkA eSa tc ?kj vkbZ rc eSauas iwNk fd Hktuflag dgkWa gS rc esjh lkl us crk;k fd Hktuflag jkft;k o vorkjflag ds lkFk VSEiksa ij x;k gSA tc Hktuflag ugha vk;k rc geus Hktuflag dh ryk'k dhA esjs nsoj] lkl o vU; us Hktuflag dh ryk'k dhA eSaus vius ifr dh yk'k dks ugha ns[kk o u gh yk'k dks ?kj ij ysdj vk, FksA eq>s fdlh ij Hkh 'kd ugha gS fd esjs ifr dks fdlus ekjkA " 18. If author of the FIR did not disclose in her statement that deceased was wearing turban upon his head then recovery of turban became meaningless. It is very important to mention that vide Ex.P/15 one Safa (turban) and slipper were recovered as per information of Raja Ram @ Rajiya in front of two witnesses Kaku Singh and Sukhdev Singh, the witness Sukhdev Singh did not appear before the court to prove the fact of recovery, but statement of Kaku Singh (PW-13A) was recorded by the learned trial court. The witness PW-13A Kaku Singh although stated before the court that Ex.P/15 bears his signature but it is nowhere stated by him that turban and slippers were recovered at the instance of the appellant Raja Ram @ Rajiya. In our opinion, when out of two witnesses, one witness of recovery memo (Ex.P/15) was not produced before the court and another witness did not say that the recovery was made at the instance of the accused appellant, then how it can be presumed that prosecution has proved the recovery of turban and slippers. In our opinion, when out of two witnesses, one witness of recovery memo (Ex.P/15) was not produced before the court and another witness did not say that the recovery was made at the instance of the accused appellant, then how it can be presumed that prosecution has proved the recovery of turban and slippers. In our opinion, the prosecution has miserably failed to prove recovery of turban and slippers because no independent witness corroborates the fact of recovery in transparent manner. 19. The witness PW-9 Kulvindra Singh is real younger brother of deceased Bhajan Singh. It is stated by him that on the relevant date I came from my shop in the evening at 7'o Clock. On that date my brother was not at home and my father and mother informed that Bhajan Singh went with Avtar Singh for employment. Meaning thereby, the testimony of PW-9 Kulvindra Singh is based upon hearsay evidence. The witness PW-9 Kulvindra Singh was present at the time of recovery of dead body of Bhajan Singh. He has categorically stated in his statement that " ckn esa iqfyl ds }kjk irk pyk fd 65 th0ch0 ikyflag ds [ksr esa x,A ogkWa geus yk'k dks ns[kdj esjs HkkbZ Hktuflag dh yk'k gksuk f'kuk[r fd;kA esjs HkkbZ Hktuflag ds vklekuh jax dh isaV&'kVZ iguh gqbZ FkhA uhys jax dk /kkjhnkj lkQk] dkyh pIiy o LosVj vklekuh jax dk iguk gqvk FkkA " 20. Upon above statement also it is clear that at the time of recovery of body of the deceased, the turban, slippers and sweater were also found upon the body, therefore, it is a case in which the prosecution has failed to prove its case beyond reasonable doubt and failed to prove recovery of slippers and turban of the deceased at the instance of the accused appellants. 21. As per prosecution case one diary was found from the place of occurrence and that diary was taken in possession vide Ex.P/5. We have perused the Ex.P/5 whereby diary was taken in possession in presence of two witnesses Vichitra Singh and Kulvindra Singh. In the trial statement of PW-3 Vichitra Singh was recorded, but said witness turned hostile and did not support the prosecution allegation that diary was recovered from the place of occurrence. The second witness PW-9 Kulvindra Singh is real brother of the deceased. In the trial statement of PW-3 Vichitra Singh was recorded, but said witness turned hostile and did not support the prosecution allegation that diary was recovered from the place of occurrence. The second witness PW-9 Kulvindra Singh is real brother of the deceased. Although, he has stated that diary Ex.P/5 was taken in possession from the place of occurrence but independent witness did not corroborate the allegation of recovery of diary of accused appellant Avtar Singh from the place of occurrence. 22. In our view, even if it is accepted one diary was recovered from the place of occurrence then also it was the duty of the prosecution to obtain hand writing of accused appellant Avtar Singh for ascertaining whether hand writing in the diary belongs to accused appellant or not. In fact, it is a case in which the prosecution has miserably failed to prove its case on the basis of circumstantial evidence of last seen and recovery of articles at the instance of the accused appellants. 23. Upon assessment of entire evidence it is also revealed that there is no evidence of motive or intention on record. The prosecution has tried to create evidence of motive while saying that on one day Avtar Singh came to their residence and entered in the house at that time, Bhajan Singh insulted him, but the said fact cannot be treated as motive for killing the deceased Bhajan Singh. 24. The wife of the deceased PW-8 Jasvindra Kaur did not raise any suspicion against the accused appellants or anybody else. 25. Upon assessment of entire evidence on record, we find that all the independent witnesses turned hostile and did not support the prosecution story with regard to last seen and recovery of articles. It is also one of the important facts that on 3rd day of missing, the author of the FIR PW-7 Mahendra Kaur met along with Kulvindra Singh PW-9 brother of the deceased with the accused appellant and they gave reply that he might be roaming elsewhere, we don't know. PW-7 Mahendra Kaur stated in her statement that " fQj rhljs fnu eqyfteku VSEiksa jkeflagiqj ls ysdj ?kj vius vk, FksA rc esjs yM+ds dqyfoUnzflag us iwN fd esjk HkkbZ Hktuflag dgkWa gS rks eqyfteku us dgk ;gha dgha ?kwerk fQjrk gksxkA fQj eSaus Hkh eqyfteku ls Hktuflag ds ckjs esa iwNk rks dgk fd b/kj&b/kj dgha gksxkA " 26. PW-7 Mahendra Kaur stated in her statement that " fQj rhljs fnu eqyfteku VSEiksa jkeflagiqj ls ysdj ?kj vius vk, FksA rc esjs yM+ds dqyfoUnzflag us iwN fd esjk HkkbZ Hktuflag dgkWa gS rks eqyfteku us dgk ;gha dgha ?kwerk fQjrk gksxkA fQj eSaus Hkh eqyfteku ls Hktuflag ds ckjs esa iwNk rks dgk fd b/kj&b/kj dgha gksxkA " 26. If after three days from the date of missing the complainant did not get any satisfactory answer then obviously FIR was to be filed immediately upon rely given by them, but as per prosecution case, the FIR was filed on 15.2.2006 at 5.13 pm after 5 days and there is no explanation of delay on record. 27. In the totality of the circumstances and above discussion, we are of the opinion that finding given by the learned trial court to convict the accused appellants for offence under Sections 302, 364 and 201 IPC suffers from patent illegality because prosecution has failed to prove its case beyond reasonable doubt. 28. As per settled principle of law if prosecution case is based upon circumstantial evidence then it has to be proved by leading trustworthy evidence and chain of evidence so as to arrive at with the condition (conclusion) that offence has been committed by the accused appellant, none-else, but here in this case, the entire prosecution story is doubtful because most of the independent witnesses of last seen did not support the prosecution case, so also, the whole prosecution case is based upon testimony of two witnesses PW-7 Mahendra Kaur and PW-9 Kulvindra Singh, mother and brother of the deceased, but there are major contradictions and omissions in their statements, so also, the wife of the deceased PW-9 Jasvindra Kaur turned hostile and did not support the prosecution case. 29. In view of the above, we have no hesitation to say that prosecution has failed to prove its case beyond reasonable doubt against the accused appellants. Therefore, the finding of the learned trial court to hold the accused appellants guilty is not proper. 29. In view of the above, we have no hesitation to say that prosecution has failed to prove its case beyond reasonable doubt against the accused appellants. Therefore, the finding of the learned trial court to hold the accused appellants guilty is not proper. In the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 the following parameters/guidelines are laid down by the Hon'ble Supreme Court, which read 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 and 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." 30. 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. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 30. 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 lead 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. 31. In the case of C. Chenga Reddy and Ors. v. State of A.P. reported in 1996 (10) SCC 193 , the Hon'ble Supreme Court gave following verdict to assess the circumstantial evidence, which reads as under : "21. In a case based on 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 [pic] evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these 'settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence." 32. Similarly, in the case of Shivu and Anr. v. Registrar General, Rajasthan High Court of Karnataka (sic.) and Anr. In the present case the courts below have overlooked these 'settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence." 32. Similarly, in the case of Shivu and Anr. v. Registrar General, Rajasthan High Court of Karnataka (sic.) and Anr. reported in 2007(4) SCC 713 , the following adjudication is made by the Hon'ble Supreme Court, which reads as under : "12. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person [See Hulam Singh v. State of Rajasthan, 1977 (2) SCC 99 ; Eradu State of Hyderabad ( AIR 1956 SC 316 ), Earabhadrappa v. State of Karnataka 1983 (2) SCC 330 , State of U.P. v. Sukhbasi [1985 (Supp.) SCC 79, Balwinder Singh v. State of Punjab, 1987 (1) 50 SCC 16 and Ashok Kumar Chatterjee v. State of M.P. [1989 Supp.(1) SCC 560]. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely Tomaso Bruno and Anr. v. State of U.P. on 20 January, 2015 (4) connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt." 33. For acceptance of circumstantial evidence the latest judgment in the case of Kanhaiya Lal v. State of Rajasthan [ 2014 (4) SCC 715 ] is very important because in the said case, the Hon'ble Supreme Court held that circumstances of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. 34. There must be something more establishing the connectivity between the accused and the crime. 34. The above principle laid down by the Hon'ble Supreme Court clearly speaks that circumstantial evidence must be trustworthy and that there should not be any doubt to accept the said evidence so as to convict the accused. The circumstantial evidence must satisfy the following test : "(a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (b) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (c) 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 none else; and (d) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of by any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 35. In this case, even if it is accepted that there is evidence of last seen, then also this court cannot lose sight of the fact that FIR was filed after 5 days by the complainant for which there is no explanation on record and no other linking evidence is on record to connect the accused appellants with the crime. Therefore, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt. 36. Upon consideration and discussion made above coupled with verdict given by the Hon'ble Supreme Court, we are of the firm opinion that the prosecution has failed to prove its case beyond reasonable doubt because there is no reliable or credible evidence on record so as to maintain the finding of the learned trial court whereby the learned trial court held the accused appellants guilty for offences under Sections 302, 364 and 201 IPC, therefore, accused appellants are entitled for benefit of doubt. 37. Consequently, this cr. appeal is hereby allowed. The judgment dated 29.1.2013 of conviction and sentence passed by the learned Addl. 37. Consequently, this cr. appeal is hereby allowed. The judgment dated 29.1.2013 of conviction and sentence passed by the learned Addl. Sessions Judge, Anupgarh, District Sri Ganganagar in Sessions Case No. 22/2009 against the accused appellants Avtar Singh @ Tari and Raja Ram @ Rajiya convicting and sentencing the accused appellants for the offences under Sections 302, 364 and 201 IPC is hereby quashed and set aside. The accused appellant Raja Ram @ Rajiya is already on bail, therefore, his bail bonds are hereby forfeited (cancelled) and he need not surrender in the present case. The accused appellant Avtar Singh may be released forthwith, if not needed in any other case. 38. Keeping in view, however, the provisions of Section 437A Criminal Procedure Code the accused appellants are directed to forthwith furnish personal bonds in the sum of Rs. 20,000/- each 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 appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.