JUDGMENT 1. The instant criminal leave to appeal has been filed by the State of Rajasthan under Section 378 (iii) and (i) of Cr.P.C. against the judgment dated 17.05.2016 passed by learned Addl. Sessions Judge, Rajgarh, District Churu in Session Case No. 54/2013, by which the learned trial court acquitted the accused respondent, Pawan Kumar from the charges under Sections 302 and 201 of IPC. 2. As per facts of the case, complainant, Sundermal Sub-Inspector, Police Station-Rajgarh, submitted a written report (Ex.P/12) to the effect that in connection with F.I.R. No. 22/2013 he went near Burji No. 226-06-226-7 on railway line and saw a dead body of an unknown lady lying upon the railway track. The head of the dead body was separate from rest of body and lying 5? ahead towards eastern side of railway line. During investigation, there were some signs of dragging on the place of occurrence and aforesaid signs were towards the railway line from the field of one Sanwal Ram. A ''Dupatta'' ¼vks<+uh½ was also found lying there. It is also reported that there were some signs of footprints of three persons and human blood was also scattered at the place where the dead body was lying. 3. Upon the aforesaid written report submitted by S.I.-Sundermal, of Police Station Rajgarh, an F.I.R. No. 318/2013 was registered against unknown person for the offence punishable under Sections 302 and 201 of IPC. 4. After registration of the FIR, regular investigation was conducted and on the basis of circumstantial evidence of last seen and recovery of knife at the instance of accused respondent, charge sheet was submitted against the respondent in the court of Addl. Chief Judicial Magistrate, Rajgarh, from where the case was committed to the court of Addl. Sessions Judge, Rajgarh, District Churu for trial. 5. Learned trial court after providing opportunity of hearing to the respondent framed charge against the accused respondent for the offence under section 302 and 201 of IPC, which the respondent denied and claimed for trial. 6. In support of its case, prosecution examined 15 witnesses and exhibited 34 documents. After recording the prosecution evidence, statements of respondent were recorded under Section 313 Cr.P.C. 1973 in which he denied all the allegations levelled against him and pleaded his innocence. 7. 6. In support of its case, prosecution examined 15 witnesses and exhibited 34 documents. After recording the prosecution evidence, statements of respondent were recorded under Section 313 Cr.P.C. 1973 in which he denied all the allegations levelled against him and pleaded his innocence. 7. The learned trial court after hearing both the parties proceeded to acquit the respondent from the charges levelled against him under Sections 302 and 201 of IPC vide judgment impugned dated 17.05.2016. 8. The instant leave to appeal has been filed by the State of Rajasthan against the impugned judgment with a prayer to convict the respondent for the allegations levelled against him under section 302 & 201 of IPC. 9. Learned Public Prosecutor vehemently argued that prosecution case was based upon circumstantial evidence of last seen, which the prosecution has amply proved that deceased, Rajpati was lastly seen along with accused respondent and the burden was upon the respondent to prove that he was not involved in the case. However, the learned trial court acquitted the respondent from the charge levelled against him while disbelieving the evidence of last seen. It is further argued that the recovery of knife at the instance of accused respondent was proved, however, the trial court erroneously disbelieved the testimony of investigating officer as well as witness of recovery of knife. Thus, on both these grounds which are proved by the prosecution, the respondent was required to be held guilty but learned trial court erroneously acquitted the respondent from the charges under Sections 320 and 201 of IPC levelled against him. He, therefore, submits that leave may kindly be granted against the impugned judgment. 10. Per contra, learned counsel appearing on behalf of respondent vehemently argued that the whole case of prosecution case is based upon evidence of last seen and recovery of knife at the instance of respondent, however, both these circumstantial evidences have not been proved by the prosecution beyond reasonable doubt, therefore, there is no question to grant leave against the judgment impugned. 11. After hearing the learned Public Prosecutor and learned counsel appearing for respondent, we have perused the entire evidence and finding of acquittal, so also, considered the documents exhibited in the trial. 12. 11. After hearing the learned Public Prosecutor and learned counsel appearing for respondent, we have perused the entire evidence and finding of acquittal, so also, considered the documents exhibited in the trial. 12. Learned trial court considered the documents Ex.D/1, D/A1 and D/2 and observed that father of deceased submitted a written complaint at Police Station-Uchana, upon which FIR No. 240/2013 was registered on 26.08.2013, in which fact of missing of Rajpati (deceased) was disclosed. Father of the deceased nowhere stated in the written complaint that deceased Rajpati went out along with her brother-in-law, Pawan Kumar on the date of incident, whereas in this case allegations were levelled by PW.1-Ramchandra in his statement that deceased Rajpati went out from the house along with accused respondent, Pawan Kumar. 13. We have also perused the statements of other witnesses and find that fact of last seen has not been proved by the prosecution beyond reasonable doubt. 14. The recovery memo was prepared in the presence of two witnesses viz. Sajjan Singh and Shyamlal out of two only Shyamlal was produced before the court to prove the fact of recovery. The witness PW.8 Shyamlal witness of recovery of knife, gave following statement, which reads as under: ^^fnuakd 05-09-2013 dks iqfyl iou dqekj dks ysdj gekjs xkoa xbZ FkhA iou dqekj ds ?kj iqfyl xbZ FkhA rc eSa Hkh ekSdk ij FkkA iqfyl us iou dqekj ds ?kj dh ryk'kh Hkh yh FkhA iqfyl us gh lUnwd esa ls ,d dkxt fudkyk Fkk tks ,d nl :i;s dk LVkEi dk dkxt FkkA iou dqekj ds ?kj ls fudkyk FkkA mDr lUnwd Lysc ds mij dejk esa j[kk FkkA xsV ds ikl tehu esa ls pkdw feyk FkkA tks iou dqekj ds ?kj ls feyk Fkk vkSj iqfyl us oks pkdw fudkyk FkkA iou dqekj ckgj xkM+h esa cSBk FkkA tks vUnj ugha vk;k FkkA** 15. Admittedly, the above evidence of recovery of knife create serious doubt, therefore, it cannot be said that prosecution has proved the recovery of knife at the instance of respondent. The other witness Sajjan Singh has not been examined by the prosecution in the trial to prove the recovery of knife. 16. Admittedly, the above evidence of recovery of knife create serious doubt, therefore, it cannot be said that prosecution has proved the recovery of knife at the instance of respondent. The other witness Sajjan Singh has not been examined by the prosecution in the trial to prove the recovery of knife. 16. We have perused the statements of witness PW.10-Bhagalram, who is the investigating officer of the case, gave following statement: ^^;g Hkh lgh gS fd fd jktifr ,ao iou dks vafre ckj tkrs gq;s ';keyky ,oa lquhrk us ugha ns[kkA ;g lgh gS fd tks 'kiFki= tCr fd;k mlds Åij vaxwBk fu'kkuh dh tkap ugha djokbZA ;gh lgh gS fd eSa ugha crk ldrk fd 'kiFki= Án'kZ ih&17 vaxwBk fu'kkuh fdldh gS ijUrq vaxwBk fu'kkuh ij jktifr fy[kk gSA ;g lgh gS fd eSaus ujok.kk vkfn esa jktifr fdl lk/kku ls fdlds lkFk xbZ iwNrkN ugha dhA ;g lgh gS fd jktifr cl ls vkbZ Fkh vkSj eSaus cl okys ls iwNrkN ugha dhA vxj cl okys ls iwNrkN djokrs rks cl okyk Hkh ugha crk ldrk Fkk fd jktifr fdl ds lkFk vkbZ FkhA ;g lgh gS fd jktifr ds firk }kjk 26-08-2013 dks mpk.kk Fkkus esa xqe'kqnxh ntZ gqbZ FkhA mDr xqe'kqnxh esa jktifr fdl ds lkFk xbZ blesa dksbZ gokyk ugha gSA** 17. So far as place of recovery is concerned, the investigating officer PW.10 gave following statement to prove the recovery of knife, which reads as under: ^^eSaus pkdw dejs ds vUnj ls cjken fd;k FkkA ;g lgh gS fd Án'kZ ih&9 esa pkdw dks dejs ls cjken djuk ugh crk;k xsV ds ikl ls tehu ls cjken djuk crk;k gSA tehu ,oa dejk ,d gh ckr gS bl dj.k vadu dejk ckcr ugha fd;kA** 18. Upon assessment of entire evidence, we are of the opinion that prosecution has failed to prove the fact of last seen of accused with deceased, and recovery of knife at the instance of accused respondent, therefore, no case is made out for granting leave to appeal against the judgment impugned. Dismissed accordingly.