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2017 DIGILAW 1964 (RAJ)

Ahmed son of Hukam Singh v. State of Rajasthan

2017-09-04

G.R.MOOLCHANDANI, KANWALJIT SINGH AHLUWALIA

body2017
JUDGMENT : Kanwaljit Singh Ahluwalia J. 1. Instant appeal has been preferred by Ahmad son of Hukam Singh, resident of Jaitgarh Bamniya in order to assail the impugned judgment dated 13.07.1987, whereby the appellant was convicted for offences punishable under Sections 302, 376 and 379 of the Indian Penal Code. 2. In the appeal, the order of the sentence of even date has been also challenged, whereby the appellant was sentenced as under :- “For offence u/s. 302 I.P.C. appellant was sentenced to undergo life imprisonment and to pay a fine of Rs.500/- and in default of payment of fine to further undergo two years rigorous imprisonment. For offence u/s 376 I.P.C. appellant was sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.200/- and in default of payment of fine to further undergo one year rigorous imprisonment. For offence u/s. 379 I.P.C. appellant was sentenced to undergo three years rigorous imprisonment. All the sentences were ordered to run concurrently.” 3. The case of the prosecution, in nut-shell, in the charges formulated against the accused-appellant is that the appellant on 01.05.1985 in the day in a revenue estate at Jaitgarh intentionally committed murder of Kumari Radha, aged eleven-years, daughter of Kishan Singh, first informant/ complainant (PW-4). 4. It is further case of the prosecution that the appellant on the said date, before committing murder of Kumari Radha, aged elevenyears committed rape with her and, thus, committed offence punishable under Section 376 of the Indian Penal Code. 5. The third charge formulated against the accused-appellant was that before committing rape and murder, the appellant had committed theft of the jewelry of Kumari Radha and, thus, committed offence punishable under Section 379 of the Indian Penal Code. 6. The appellant pleaded not guilty to above charges and claimed trial. 7. The prosecution in order to secure conviction of the appellant examined as many as nineteen witnesses, namely Krishna Murari (PW-1), Heera Lal (PW-2), Rajendra (PW-3), Kishan Singh (PW-4), Geeta (PW-5), Badami (PW-6), Bhuri (PW-7), Chainsingh (PW-8), Dhanna Singh (PW-9), Gainsingh (PW-10), Narain Singh (PW-11), Mohan Singh (PW-12), Dr. K.L. Jain (PW-13), Dr. H.C. Sharma (PW-14), Bhopal Singh (PW-15), Sikandar Ali (PW-16), Murlidhar (PW-17), Girdhari Singh (PW-18) and Magga Ram (PW-19) respectively. 8. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. All incriminating evidence was put to him and he denied the same. 9. K.L. Jain (PW-13), Dr. H.C. Sharma (PW-14), Bhopal Singh (PW-15), Sikandar Ali (PW-16), Murlidhar (PW-17), Girdhari Singh (PW-18) and Magga Ram (PW-19) respectively. 8. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. All incriminating evidence was put to him and he denied the same. 9. The prosecution, besides the witnesses examined, proved documents Exhibit-P/1 to Exhibit-P/28 on the record. 10. The accused has not examined any witness in defence but relied upon the statement of Dhanna Singh (PW-9) recorded under Section 161 Cr.P.C., as Exhibit-D/1. 11. After conclusion of the trial, as stated herein above, the trial Judge, vide its impugned judgment and the order of sentence of even date, convicted and sentenced the appellant in the aforesaid terms. 12. None had witnessed the accused-appellant committing offence of murder, rape or theft. 13. There is no direct evidence. 14. It is a case of circumstantial evidence. 15. The prosecution, in order to secure conviction of the appellant, relied upon following circumstances :- “A. The evidence of last seen : 16. This piece of evidence has emerged in the testimony of Geeta (PW-5), Badami (PW-6), Chain Singh (PW-8) and Dhanna Singh (PW-9) respectively. B. The evidence of recovery of hansli (piece of jewelry worn in the neck, article No.1) and kadia (silver anklets, article No.2), which were allegedly worn by Kumari Radha, deceased at the time of murder, from the person of accused in terms of the disclosure. 17. It is a case of the prosecution that the appellant suffered disclosure statement (Exhibit-P/23) on 04.05.1985 to the effect that the appellant concealed the kadia (silver anklets), article No.2 in his residential house. In pursuance of the said disclosure statement (Exhibit-P/23), vide memo Exhibit-P/13 attested by Narain Singh (PW-11) the appellant got recovered kadia (silver anklets), article No.2. 18. The prosecution to connect the accused-appellant with the alleged crime has further alleged that the accused-appellant suffered another disclosure on the next date vide memo Exhibit-P/24 on 05.05.1985 and in pursuance thereof got recovered hansli, (piece of jewelry worn in the neck, article No.1) from his residential house vide recovery memo Exhibit-P/11 and the same was attested by Gainsingh (PW-10). C. The recovery of underwear of the accused-appellant stained with the human semen. 19. The case of the prosecution is that the appellant at the time of his arrest i.e. on 04.05.1985 was wearing the underwear. C. The recovery of underwear of the accused-appellant stained with the human semen. 19. The case of the prosecution is that the appellant at the time of his arrest i.e. on 04.05.1985 was wearing the underwear. The said arrest memo has been proved on record as Exhibit-P/12 and the underwear was taken into possession by the Police vide memo (Exhibit- P/14). The said memo was also attested by Narain Singh (PW-11). 20. To lent force to the recovery of the underwear, the prosecution had sent underwear to the State Forensic Science Laboratory Rajasthan, Jaipur. 21. However, from perusal of the entire record, it is discernible that the said underwear was sent to the State Forensic Science Laboratory Rajasthan, Jaipur, but there is no report on the record to the effect that what kind of semen was found on the underwear. 22. As stated herein above, in support of the above circumstances, the prosecution examined as many as nineteen witnesses. 23. The witnesses can be divided into following categories. A. The witnesses of last seen. 24. Geeta (PW-5), Badami (PW-6), Chainsingh (PW-8) and Dhanna Singh (PW-9) were examined as witnesses of the last seen. B. The witnesses of recovery. 25. Narain Singh (PW-11) was examined to prove recovery of underwear vide memo Exhibit-P/14) and the recovery of kadia (silver anklets), article No.2 vide memo Exhibit-P/13. 26. Gainsingh (PW-10) was one among the persons, who searched for the dead-body of Kumari Radha. He found the same and informed Kishan Singh (PW-4) about the same. This witness has also witnessed the recovery of hansli (piece of jewelry worn in the neck, article No.1) at instance of accused vide recovery memo Exhibit-P/11. C. The witnesses regarding identification of hansli (piece of jewelry worn in the neck), article No.1) and kadia (silver anklets), article No.2. 27. The prosecution to prove identification of the above articles examined Kishan Singh (PW-4), father of deceased - Kumari Radha and Bhuri (PW-7), grand-mother of deceased – Kumari Radha, and also examined Maggaram (PW-19), Munsif cum Magistrate before whom identification proceedings were carried and a note thereof was prepared vide identification memo of property (Exhibit-P/28). 28. Gainsingh (PW-10) also can be termed as an important witness regarding identification of above articles but we shall deal with this evidence at a later stage. D. The formal witnesses : 29. 28. Gainsingh (PW-10) also can be termed as an important witness regarding identification of above articles but we shall deal with this evidence at a later stage. D. The formal witnesses : 29. Before we deal with the circumstantial evidence relied by the prosecution, we shall have a quick glance over the evidence of formal witnesses examined by the prosecution. 30. Krishanmurari (PW-1), registered a formal First Information Report (Exhibit-P/1) on the statement of complainant - Kishan Singh (PW-4), father and first informant of deceased - Kumari Radha. He had also effected the arrest of the accused on 04.05.1985 vide memo Exhibit-P/12. 31. Constable Heeralal (PW-2) and Constable Sikandar Ali (PW-16) had carried the sealed packets to the State Forensic Science Laboratory Rajasthan, Jaipur. They were examined to prove link evidence. 32. Rajendra (PW-3) had taken photographs of the spot. 33. Mohan Singh (PW-12) had attested the site-plan (Exhibit-P/15) and Panchayatnama/Inquest, Exhibit-P/16. He had also attested the memos regarding recovery effected from the spot. 34. Girdhari Singh (PW-18) had relayed information to Kishan Singh (PW-4), father of deceased -Kumari Radha to the effect that the dead-body has been found. E. The witnesses of medical evidence : 35. Dr. K.L. Jain (PW-13) had conducted autopsy on the deadbody of deceased – Kumari Radha, whereas Dr. H.C. Sharma (PW-14) examined accused and he opined that there is nothing to suggest that the accused is not capable of performing sexual intercourse. 36. Bhopal Singh (PW-15), Circle Officer, Police Station Beawar is the main Investigating Officer, whereas A.S.I. Murlidhar (PW-17) had partly investigated the case. 37. So far medical evidence is concerned, we need not notice the same, in the present judgment in detail as, it is an undisputed fact that Kumari - Radha died because of violence and she was also subjected to sexual intercourse. 38. Dr. K.L. Jain (PW-13) has proved on record the Post Mortem Report (Exhibit-P/21). The said Post Mortem Report was prepared on 04.05.1985. As per said Doctor, duration between death and the Post Mortem Report was seventy-two hours. The body was decomposed. The skin blisters were present over the body. The maggots, were crawling in the ears. There was a ligature mark present below the thyroid. It was encircling the neck horizontally. The ligature mark was having measurement of 3” x 1½”. There were twenty-one abrasions present on the body. The body was decomposed. The skin blisters were present over the body. The maggots, were crawling in the ears. There was a ligature mark present below the thyroid. It was encircling the neck horizontally. The ligature mark was having measurement of 3” x 1½”. There were twenty-one abrasions present on the body. As per opinion of the Doctor, it was a case of strangulation. Furthermore, labia majora was having abrasions. The vaginal wall was lacerated. The hymen was torn and both labias were swollen. 39. Complainant - Kishan Singh (PW-4), father of deceased – Kumari Radha had lodged First Information Report (Exhibit-P/1). In the said First Information Report (Exhibit-P/1), it was stated that he was resident of Jaitgarh Bamnia. On the morning of day before i.e. on 02.05.1985 at 08:00 A.M. his daughter Kumari - Radha, aged elevenyears had taken goats for grazing. Till evening, she had not returned but the goats had returned. Kishan Singh (PW-4) searched for his daughter at various places. Geeta (PW-5), who had gone with Kumari( Radha to graze cattle, informed that she had seen Radha going with Ahmad. Upon which, she made an enquiry from Ahmad, who informed that she had taken away watch and bottle. In the night, they searched all the wells and the fields, but Radha was not traceable. Complainant decided to lodge the report to the Police Station. When he was going to lodge the report at Police Station, meanwhile on the way Girdhari Singh (PW-18) met him and informed that the dead-body of Radha has been found but her kadia (silver anklets) from the feet are missing and her dead-body has been buried. Upon which he (complainant) and Girdhari Singh (PW-18) took Narain Singh (PW-11), Sarpanch to the place of occurrence and thereafter, they went to the Police Station. 40. The above said First Information Report (Exhibit-P/1) was registered on 03.05.1985. The accused was arrested on 04.05.1985 vide memo Exhibit-P/12). 41. Now we shall deal with the evidence of last seen. The evidence of last seen. 42. Geeta (PW-5) in the Court deposed that she and Radha had gone together to graze goats. Radha had sent her to the house to bring meals. Thereafter, Ahmad called Radha. Ahmad gave him watch and bottle and had sent Radha to his home. Thereafter, she slept. The witness further stated that she is not aware as to what happened later. Geeta (PW-5) in the Court deposed that she and Radha had gone together to graze goats. Radha had sent her to the house to bring meals. Thereafter, Ahmad called Radha. Ahmad gave him watch and bottle and had sent Radha to his home. Thereafter, she slept. The witness further stated that she is not aware as to what happened later. Thereafter, she had not seen Radha. The mother of Radha had come to her house. When Radha had left the house then she was wearing kadia (silver anklets) in the feet and hansli (piece of jewelry worn in the neck), article No.1) also. 43. In cross-examination, this witness Geeta (PW-5) stated that accused was taking liquor, along with Dhanna, Punna, Chena, Gaina and Hukma. The witness stated that Ahmad called Radha. Radha went to Ahmad. She was grazing cattle around the place where the accused was sitting. Ahmad handed over empty bottle of liquor and watch to Radha. Radha went to his house and thereafter Ahmad had also gone. 44. We reproduce here exact portion from the cross-examination in the words of this witness Geeta (PW-5) as under :- ^^dzkl ftjg odhy eqyfte ij tokc fn;k fd vgen jk/kk ds ikl nksigj dks vk;k FkkA eud nk: ih jgha Fks muesa ls HkkbZ /kUuk] iwuk] psuk] xsuk] vgen o gqDek FksA ;g nk: ih jgs FksA cknkeh gekjs lkFk FkhA og Hkh cdfj;ka pjk jgh FkhA vgen us jk/kk dks cqyk;kA jk/kk vgen ds ikl pyh xbZA ikl gh cdfj;ka pjk jgh FkhA vgen us nk: dh [kkyh cksry o ?kMh nhA jk/kk ysdj pyh xbZA vgen mlds ykjs ykjs gh pyk x;kA xkao fnu fNis xbZA eq>s D;k irk fdruh cksry nk: ih x;sA nwljs yksx tks nk: ih jgs FksA^^ 45. Badami (PW-6) stated that she was present at the well. Ahmad had sent Radha to fetch water. At that time, Radha was wearing kadia (silver anklets) in the feet and hansli (piece of jewelry worn in the neck). 46. In cross-examination, this witness Badami (PW-6) stated that Dhanna, Punna, Chena, Hukma and Gaina were present. They were consuming liquor. The exact words stated by this witness are as under :- ^^eSa dHkh&dHkh cdfj;ka pjkrh gWwA ogh esjss [ksr gSA eSa esjs dq,sa ij FkhA vgen us jk/kk dks HkstkA ;g dgk fd dkdh ikuh dk Mksyk HkjokykA^^ 47. 46. In cross-examination, this witness Badami (PW-6) stated that Dhanna, Punna, Chena, Hukma and Gaina were present. They were consuming liquor. The exact words stated by this witness are as under :- ^^eSa dHkh&dHkh cdfj;ka pjkrh gWwA ogh esjss [ksr gSA eSa esjs dq,sa ij FkhA vgen us jk/kk dks HkstkA ;g dgk fd dkdh ikuh dk Mksyk HkjokykA^^ 47. In cross-examination, this witness Badami (PW-6) stated that ^^/kUuk] iwuk] psuk] gqDek o xsuk Hkh FksA ;g yksx nk: ihrs FksA^^ 48. In cross-examination, Chainsingh (PW-8) stated that Radha was sent to the house Ahmad. Ahmad handed over his watch and bottle to Radha. Thereafter, he had not seen Radha. After Radha had left about forty-five minutes later, Ahmad had also left for his house. The relevant portion from the testimony of this witness reads as under :- ^^jk/kk vgen ds ?kksMs ij cSBh FkhA vgen us vius gkFk ls ?kMh [kksydj jk/kk ds gkFk ij cka/kh FkhA cksry o ?kMh ysdj vgen ds ?kj xbZA mlds ckn geus jk/kk dks ugha ns[kkA jk/kk ds tkus ds vk/kk ikSus ?kaVs ckn vgen Hkh vius ?kj x;kA fQj eSa esjss ?kj pyk x;kA^^ 49. Dhanna Singh (PW-9) stated that Ahmad had purchased two bottles of liquor by paying @ Rs.50/-. They had taken liquor together. The accused had handed over his watch, glass and bottle to Radha and had sent her to his home. They were sitting together and after sometime accused had also left. The exact words stated by this witness in cross-examination are as under :- ^^fQj /kMh fxykl o cksry nsdj jk/kk dks ?kj vgen eqyfte gkftj vnkyr us Hkst fn;kA fQj ge lc FkksMh nsj esa vius vius ?kj pys x;sA^^ 50. In cross-examination, this witness Dhanna Singh (PW-9) stated that Kishan Singh (PW-4) is his brother in relationship. 51. So far evidence of last seen is concerned, it is also only to the effect that the accused had handed over his watch and empty bottle of liquor to Radha and had told her to leave the same at house. Geeta (PW-5) stated that after sometime, accused had followed Radha. Badami (PW-6) has stated that when Radha had left Dhanna, Punna, Chena, Hukma, accused Ahmed and Gaina all were taking liquor. Geeta (PW-5) stated that after sometime, accused had followed Radha. Badami (PW-6) has stated that when Radha had left Dhanna, Punna, Chena, Hukma, accused Ahmed and Gaina all were taking liquor. Chainsingh (PW-8) has stated in the Court that the accused had handed over bottle and watch to Radha and the accused had left the place i.e. where they were sitting, after forty-five minutes. Dhanna Singh (PW-9) has stated that they all were sitting together and after sometime they left for their home. 52. Thus, there is no evidence available that the accused had accompanied Radha. At what time, accused left the spot from the place, where he was drinking liquor with others, the prosecution has not led any clinching evidence. 53. The evidence of prosecution varies: one witness Geeta (PW-5) has stated that accused - Ahmad left immediately after Radha departed for the home of accused, whereas Chain Singh (PW-8) has stated that the accused left after forty-five minutes. Dhanna Singh (PW-9) has stated that they all were sitting together and had left together, whereas Badami (PW-6) has stated that they all were taking liquor together and she has not said a word, as to when accused had left. 54. Therefore, it cannot be ruled out that Kumari - Radha while going on the way may have met somebody else and have been murdered by that person. It has come in the prosecution evidence that in the house of the accused, his wife Santosh was living and when accused has gone there to get recoveries effected, wife was also there. It has also come in the prosecution evidence that the accused remained in the Village and when in the evening, father of deceased had confronted the accused, he replied that he had given his watch and bottle to Kumari - Radha. Thus, it cannot be said that the accused was only person, who was last seen with Kumari Radha. When Kumari - Radha left at that time Chain Singh (PW-8), Dhanna Singh (PW-9) and number of persons were siting at the same place with accused-appellant – Ahmed. Therefore, it cannot be said that the deceased was last seen only with the present appellant. 55. From the above evidence, we cannot draw an inference that the deceased was last seen with the accused. Even otherwise, the evidence of last seen is a weak type of evidence. 56. In Hanumant Vs. Therefore, it cannot be said that the deceased was last seen only with the present appellant. 55. From the above evidence, we cannot draw an inference that the deceased was last seen with the accused. Even otherwise, the evidence of last seen is a weak type of evidence. 56. In Hanumant Vs. State of Madhya Pradesh, AIR 1952 SC 343 , Supreme Court observed as under:- “It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 57. Recently, in Vasanta Sampat Dupare Vs. State of Maharashtra, reported as (2015) 1 SCC 253 , it has been held as under:- “Regard being had to the aforesaid circumstances, it is to be seen whether on the basis of the said circumstances, it can be held whether such circumstances lead towards the guilt of the accused regard being had to the principle that they lead to a singular conclusion that the Appellant is guilty of the offence and it does not allow any other probability which is likely to allow the presumption of innocence of the accused. In this context, we may refer with profit to the decision rendered more than six decades back in Hanumant Govind Nargundkar v. State of M.P.: AIR 1952 SC 343 , wherein it has been held as follows: ...It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In Sharad Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC 116 , the five golden principles which have been stated to constitute the "panchsheel" of the proof of the case based on circumstantial evidence are that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established; that 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; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that 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. In C. Chenga Reddy v. State of A.P.: (1996) 10 SCC 193 it has been held that in a case based on circumstantial evidence, 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 evidence. That apart, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” 58. In the totality of the circumstances, the prosecution has utterly failed to prove the connection of the appellant with the crime. The only evidence which has been gathered against the appellant is of last seen which as pointed out earlier is a shaky one. Apart from it, evidence of last seen is not sufficient to record conviction of the appellant. In the totality of the circumstances, the prosecution has utterly failed to prove the connection of the appellant with the crime. The only evidence which has been gathered against the appellant is of last seen which as pointed out earlier is a shaky one. Apart from it, evidence of last seen is not sufficient to record conviction of the appellant. Reliance has been placed on the judgment of Supreme Court in State of Goa Vs. Sanjay Thakran and Anr. reported in (2007) 3 SCC 755 , wherein the Supreme Court in paras 31, 32, 33 & 34 of the said judgment has held, as under:- “31. . . . . It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodhraj v. State of J&k as under : (SCC p.63, para 31). "31. The 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 author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. .." [See also :State of U.P. v. Satish(SCC para 22) and Ramreddy Rajesh Khanna Reddy v. State of A.P. (SCC para 27)]. 32. In Ramreddy Rajesh Khanna Reddy, this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration. 33. 33. In Jaswant Gir v. State of Punjab, it was observed that (SCC p.441, para 5) "5. . . . . . In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the 'last seen' evidence, even if the version of PW 14 in this regard is believed. .." 34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case”. 59. Thus, taking totality of circumstances, we cannot hold that the evidence of last seen led by the prosecution is sufficient to connect the present appellant with the alleged crime. Therefore, we shall rule out the evidence of last seen from consideration, as it has in no way advanced the case of prosecution. Evidence of Recoveries : 60. Now we shall deal with the evidence of recoveries of articles hansli (piece of jewelry worn in the neck), article No.1 and kadia (silver anklets) article No.2). 61. It has been stated by the prosecution witnesses that the deceased was wearing hansli (piece of jewelry worn in the neck), article No.1 and kadia (silver anklets) article No.2). 62. The case of the prosecution is that the accused suffered disclosure statement (Exhibit-P/23) on 04.05.1985 to the effect that he had kept concealed in his house kadia (silver anklets) worn by the deceased. On the next day, accused also suffered another disclosure statement (Exhibit-P/24) that the hansli (piece of jewelry worn in the neck), article No.1 has been kept concealed by him in his house and he can get the same recovered. The disclosure statement (Exhibit-P/23) was suffered by accused appellant on 04.05.1985 at 06:00 P.M., whereas another disclosure statement (Exhibit-P/24) was suffered by accused-appellant on 05.05.1985 at 09:30 A.M. In pursuance of the disclosure (Exhibit-P/23), the accused got recovered kadia (silver anklets) vide memo Exhibit-P/13 on 04.05.1985 at 06:30 P.M., whereas as follow up of disclosure statement (Exhibit-P/24) the accused vide memo Exhibit-P/11 on 05.05.1985 at 10:00 A.M. got recovered hansli (piece of jewelry worn in the neck), article no.1. 63. 63. We have already noted that the arrest of accused was effected on 04.05.1985 at 05:00 P.M. vide memo Exhibit-P/12. 64. In the present case, the occurrence has taken place on 02.05.1985, though in the charge-sheet, it has been wrongly stated that the occurrence took place on 01.05.1985. The First Information Report (Exhibit-P/1) was lodged on 03.05.1985. Gain Singh (PW-10) in examination-in-chief has stated that he had told Kishan Singh (PW-4) and Girdhari Singh (PW-18) to lodge the report, then he and Gheesa Singh had gone to search for Ahmad. Ahmad, accused was found present near the well. They asked Ahmad to accompany and they brought Ahmad to the Village and handed over him to the Villager and then Police came and took away Ahmad. Thereafter, on second and third day, the Police came back and Ahmad was also present along with them. We reproduce here the relevant portion from the examination-inchief of Gainsingh (PW-10) as under :- ^^fd'kuflga o fxj/kkjhflga dks eSaus dgk fd fjiksVZ djus ljiap ds lkFk tkvksA ;g ykxs ogkW x;s eSa o /khlkflga vgen dks <Ww<us pysA vgen <kdk okys dqvk ds ikl ydfM;k dVokdj xkfM;ksa esa p<o+k jgk FkkA geus vgen ls dgk fd py og cksyk fd eSa D;k pywA cMh leL;k ls bldks ysdj xkao esa vk;sA xkoa esa vkrs gh xkoa okyksa dks lqiqnZ dj fn;kA fQj iqfyl vkbZA fxjrkj djds iqfyl ysdj x;hA fQj nwljs fnu ;k rhljs fnu iqfyl okil vkbZA vgen Hkh lkFk Fkk gFkdMh FkhA^^ (Emphasis supplied). 65. Thus, from the evidence of Gainsingh (PW-10), it is apparent that Ahmad was taken into custody by the Police on the day before the report was lodged. His arrest was shown subsequently on the next day i.e. on 04.05.1985. 66. The case of the prosecution is that the accused suffered disclosure statement (Exhibit-P/23) on 04.05.1985 at 06:00 P.M. and got kadia (silver anklets), article No.2 recovered on the same day at 06:30 P.M. If that was so, as to why disclosure regarding hansli (piece of jewelry worn in the neck) was taken on the next day. The recovery was effected on 04.05.1985 from the house of accused. The recovery of kadia (silver anklets) was effected on 04.05.1985 and hansli (piece of jewelry worn in the neck) on the next day i.e. on 05.05.1985. The recovery was effected on 04.05.1985 from the house of accused. The recovery of kadia (silver anklets) was effected on 04.05.1985 and hansli (piece of jewelry worn in the neck) on the next day i.e. on 05.05.1985. It look improbable that when the Police searched for the house of the accused, they will not find hansli (piece of jewelry worn in the neck) and, therefore, on next day another disclosure was recorded. 67. To us, it look improbable that accused will make any disclosure on the next day and will get recovery effected on the next day. Even if we extend the margin to the Investigating Agency to the extent that the accused suffered another disclosure on the next day and on the next day got another article recovered. We cannot ignore the cross-examination of Gainsingh (PW-10), who has stated that at the time of recovery of the articles, the same were shown to Kishan Singh (PW-4). Bhuri (PW-7) and Gheesa Singh, not examined. The relevant portion from the cross-examination of the testimony of Gainsingh (PW- 10) reads as under :- ^^tc gkla yh vkfVZdy 1 cjken dh rc fd’kuflga] Hkwjh o ?khlh dks Hkh cqykdj yk;s fd gkalyh rqEgkjh gh yMdh dh gS ;k nwljh gSA mUgksuas rhuksa us igpkuh vkSj dgk fd ;g gekjh gh yMdh dh gSA ,slh gkalyh xkao esa cgqr igurs gSA bl gkalyh esa ef.k;ksa esa ukyk dkyk gksrk gSA rFkk ;g tjk ls djus ij gh [kqy tkrh gS ml oDr EkSus ns[kh FkhA blfy;s eSus vkt igpku yhA vgen ds ?kj esa mldk firk] ekrk] mldh ?kjokyh o mldk NksVk lk cPpk jgrs gSA^^ 68. In case the articles immediately after recovery were shown to Kishan Singh (PW-4) and Bhuri (PW-7), their identification before Maggaram (PW-19), Munsif cum Magistrate who carried identification proceedings, Exhibit-P/28 is nothing but sham. 69. Thus, we cannot rely upon the evidence of recoveries. 70. It has also come in the prosecution evidence that similar kind of hansli (piece of jewelry worn in the neck) and kadia (silver anklets) are worn by the women and they are available in each and every house. Even otherwise, recovery alone is not sufficient to complete the chain of circumstances to come to a conclusion that the offence, if any, has been committed by the accused-appellant alone. Recovery of the underwear: 71. Even otherwise, recovery alone is not sufficient to complete the chain of circumstances to come to a conclusion that the offence, if any, has been committed by the accused-appellant alone. Recovery of the underwear: 71. So far as recovery of the underwear is concerned, it is a case of the prosecution that the same was sent to the State Forensic Science Laboratory Rajasthan, Jaipur. Exhibit-P/25 is the receipt of the deposit of the articles in the State Forensic Science Laboratory Rajasthan, Jaipur. However, on the record no report of the State Forensic Science Laboratory Rajasthan, Jaipur is available. Thus, we cannot say with certainty that the underwear of the accused was having a human semen. Even if we say so, there is no matching of human semen with the vaginal swab sent to the State Forensic Science Laboratory Rajasthan, Jaipur. Thus, this piece of evidence for lack of production of the report of the State Forensic Science Laboratory Rajasthan, Jaipur on the record, cannot be relied in favour of the prosecution and against the accused. 72. In view of the discussions made herein above, we are convinced that the prosecution has failed to prove the circumstances relied and, thus, the chain of circumstances is not complete to arrive at a conclusion that the offence, if any, has been committed by the appellant alone and by none else. 73. Therefore, as a matter of abundant caution because of many loop holes and lacunae in the prosecution evidence, we shall extend the benefit of doubt to the appellant. 74. Consequently, the present appeal is accepted. The impugned judgment of conviction pronounced and the order of sentence awarded upon the appellant is set aside. The appellant is acquitted of the charges. 75. We find from the record that immediately after admission of the appeal, the sentence awarded upon the appellant was suspended and he was ordered to be released on bail. Hence, the bail bonds and the surety bonds furnished by the appellant stand discharged. 76. The trial Court is directed to call the appellant to comply with Section 437-A Cr.P.C.