JUDGMENT : Manoj Kumar Garg, J. The instant Cr. appeal has been filed by the State of Rajasthan against the judgment dated 9.9.1993 passed by the learned Addl. Sessions Judge, Nagaur camp Deedwana in Sessions Case No. 9/1992 whereby the learned trial court acquitted the respondent Parmeshwar Singh @ Bhawaria from the charges levelled against him under Section 302, 397 and 364 IPC and convicted the respondent for the offences under Sections 404 and 414 IPC and passed the sentence for two year alongwith fine of Rs. 4,000/- for offence under Section 404 IPC and two years alongwith fine of Rs. 4,000/- for offence under Section 414 IPC and in default of payment of fine to further undergo one and half month SI. Further, it is ordered that both the sentences run concurrently. 2. As per facts of the case, a written complaint was filed by complainant Bhanwaroo Khan (P.W.7) at Police Station Deedwana on 10.7.1991 in which an allegation was made by him that his 11 years son Ranjeet Khan has been kidnapped by unknown person alongwith female horse and vehicle Tanga. Upon aforesaid complaint, FIR No. 65/91 (Ex.P/6) was registered at Police Station Deedwana for offence under Section 365, 379 and 342 IPC. After investigation, the charge-sheet was filed against the respondent on the basis of circumstantial evidence of last seen under Section 302, 397 and 364 IPC in the court of Munsif and Judicial Magistrate, Nagaur from where case was committed to the court of Addl. District & Sessions Judge, Nagaur Camp Court Deedwana. 3. The learned trial court after providing an opportunity of hearing framed charge against the respondent under Section 302, 364 and 397 IPC and commenced trial. 4. District & Sessions Judge, Nagaur Camp Court Deedwana. 3. The learned trial court after providing an opportunity of hearing framed charge against the respondent under Section 302, 364 and 397 IPC and commenced trial. 4. In the trial, statement of 32 prosecution witnesses were recorded and after recording statements of 32 witnesses, statement of the respondent under Section 313 Cr.P.C., 1973 were recorded by the learned trial court and thereafter an opportunity to lead evidence was given to the respondent in which respondent gave following explanation: ^^eSa flDdk tke uxj] xqtjkr esa fnfXot; lhes.V QSDVjh esa helper ds in ij rSukr gwa o rc Hkh ogha FkkA esjh iRuh mu fnuksa chekj Fkh ftldk medical certificate is'k dj jgk gwa fQj djhc 2 ekg ckn og ej x;hA tc eSa vius NksVs cPps dks ysdj MhMokuk esjh nknh ds ikl vk;k esjh ufugky Hkh ;gh gSa rc iqfyl us fxjQrkj dj fy;kA eSa j.kthr [kka dks ugha tkurk u gh rkaxs esa mlds lkFk x;k u gh eSaus mls ekjkA^^ 5. The learned trial court finally heard the arguments and acquitted the respondent from the charge levelled against him vide impugned judgment dated 9.9.1993 in Sessions Case No. 9/1992. 6. In this appeal the State of Rajasthan has challenged the impugned dated 9.9.1993 on various grounds. Learned Public Prosecutor vehemently argued that the judgment of acquittal passed by the learned Addl. Sessions Judge, Nagaur is contrary to law and facts, so also, there is circumstantial evidence on record to prove that deceased was murdered by the respondent but the learned trial court disbelieved the evidence of last seen so also, recovery of horse cart as per information of the respondent. Sessions Judge, Nagaur is contrary to law and facts, so also, there is circumstantial evidence on record to prove that deceased was murdered by the respondent but the learned trial court disbelieved the evidence of last seen so also, recovery of horse cart as per information of the respondent. It is also argued by learned Public Prosecutor that motive and intention of the accused is completely established from the evidence on record because respondent with the intention to sale the horse and cart tempted the deceased and brought him at lonely place to commit his murder, but the learned trial court disbelieved the testimony of witnesses who proved the prosecution case and all the circumstances so also, held respondent guilty for alleged offence of murder, therefore, the judgment impugned may kindly be set aside and on the basis of circumstantial evidence of last seen and recovery of horse and cart at the instance of respondent, the respondent may kindly be held guilty for offence under Section 302, 397 and 364 IPC and may be punished accordingly. 7. Per contra, learned counsel appearing for the respondent vehemently argued that there is no eye witness of the case, so also, entire prosecution case is based upon circumstantial evidence, which has not been proved by the prosecution. It is also argued that two witnesses were produced by the prosecution to prove the fact of last seen together but the learned trial court considered the testimony of both the witnesses of last seen P.W.2 Deva Ram and P.W.30 Rafiq and held that on the basis of statement of these witnesses it cannot be said that prosecution has proved its case beyond reasonable doubt on the basis of circumstantial evidence of last seen. 8. The learned trial court specifically observed in the judgment that during investigation statement of P.W.30 Rafiq were recorded under Section 164 Cr.P.C., 1973 which is on record as Ex.P/17 in which though he has said that one person was sitting alongwith Ranjeet Khan (deceased), but he has specifically said that he has not seen his face when he was sitting in the horse cart but in the court when his statements were recorded he has improved his statement. 9. 9. The learned trial court considered the fact that PW-2 Deva Ram specifically said in his statement that he has not seen respondent in the horse cart on the date of incident, therefore, there is no question to accept this appeal because prosecution has failed to prove its case beyond reasonable doubt. Learned counsel for the respondent invited our attention towards 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 in which golden principles are laid down to consider the evidence of last and circumstantial evidence and submits that this appeal may kindly be dismissed. 10. After hearing learned counsel for the parties, we have perused the entire evidence so also finding of acquittal recorded by the learned trial court. Admittedly, in this case, there is no eye witnesses, so also, FIR was filed by the complainant Bhanwaroo Khan against unknown person under Section 365, 379 and 342 IPC. During investigation, the dead body of deceased Ranjeet Khan was recovered on 11.7.1991 vide Ex.P/7 in a room situated upon the road going towards Naguar to Deedwana. The respondent was arrested on the basis of evidence of last seen of PW-30 Rafiq and other witness PW-2 Deva Ram. We have perused the statement of PW-2 Deva Ram. The said witness turned hostile and did not support the prosecution case. The statement of other witness of last seen PW-30 Rafiq were recorded under Section 164 Cr.P.C., 1973 during investigation which is on record as Ex.P/17 in which it is specifically stated by him that ^^rkaxs esa ihNs dksbZ cSBk Fkk ftlus dkys jax ds diM+s igus gq;s FksA eSaus ml vkneh dh 'kdy ugha ns[khA flQZ ihB ns[kh FkhA^^ 11. But in the court he has improved his statement and stated that respondent Parmeshwar was sitting in the horse cart (Tanga). The learned trial court while taking into consideration the aforesaid facts disbelieved the testimony of PW-30 Rafiq because during investigation, when his statements were recorded under Section 164 Cr.P.C., 1973 he has not disclosed the name of respondent Parmeshwar. Therefore, the learned trial court held that prosecution has failed to prove its case beyond reasonable doubt on the basis of circumstantial evidence. Therefore, the learned trial court held that prosecution has failed to prove its case beyond reasonable doubt on the basis of circumstantial evidence. The learned trial court after discussing the medical evidence and place of occurrence and the fact that as per FSL report blood group was not found held that there is serious doubt upon the circumstantial evidence led by the prosecution. 12. Upon assessment of entire evidence, we are of the opinion that there is no ample evidence on record for last seen together so as to connect the respondent with the crime. As per prosecution case, no weapon was recovered by which any inference is drawn, therefore, on the basis of statement of two witnesses of last seen PW-30 Rafiq and PW-2 Deva Ram it cannot be said that prosecution has proved its case beyond reasonable doubt to establish the fact of last seen. 13. There is no eye witness in this case. No weapon was recovered, so also, FIR was filed against unknown person and as per prosecution case the prosecution was launched against respondent on the basis of circumstantial evidence of last seen, but it has not been proved beyond reasonable doubt by the prosecution. As per statement of doctor injuries found upon the body of the deceased can be caused if injured fell down from the horse cart. 14. In view of the above, we are of the opinion that no error has been committed by the learned trial court so as to acquit the respondent from the charge levelled against him on the basis of circumstantial evidence. 15. Recently in the judgment of the Hon'ble Supreme Court in the case of Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan reported in (2013) 5 SCC 722 , the Hon'ble Apex Court while discussing earlier judgments rendered by Apex Court, held as infra: "21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone off dispassionate judicial scrutiny based upon a complete and comprehensive appreciation off all features off the case, as well as the quality and credibility off the evidence brought on record. The Court must ensure, that miscarriage off justice is avoided and if the facts and circumstances off a case so demand, then the benefit off doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.. ........ 22. In Kali Ram v. State off Himachal Pradesh, AIR 1973 SC 2773 , this Court observed as under: "Another golden thread which runs through the web off the administration off justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt off the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt off the accused is sought to be established by circumstantial evidence." xxx 24. In M.G. Agarwall v. State off Maharashtra, AIR 1963 SC 200 , this Court held, that if the circumstances proved in a case are consistent either with the innocence off the accused, or with is guilt, then the accused is entitled to the benefit off doubt. In M.G. Agarwall v. State off Maharashtra, AIR 1963 SC 200 , this Court held, that if the circumstances proved in a case are consistent either with the innocence off the accused, or with is guilt, then the accused is entitled to the benefit off doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference off guilt on the part off the accused person or not, and in dealing with this aspect off the problem, benefit off doubt must be given to the accused and a final inference off guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence off the accused, and is entirely consistent with his guilt. 26. Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as under: "Graver the crime, greater should be the standard off proof. An accused may appear to be guilty on the basis off suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour off the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit off doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence." xxx 47. In view off the above, we have no hesitation in holding that the prosecution failed to prove the case against the Appellant beyond reasonable doubt and thus, he becomes entitled for benefit off doubt. Thus, the appeals succeed and are allowed. The conviction and sentence imposed on the Appellant are set aside. The Appellant be released forthwith unless wanted in some other case." 16. In view of the above, while following the aforesaid judgment, the instant appeal filed by the State of Rajasthan lacks merit and therefore, the same is hereby dismissed.