JUDGMENT Kanwaljit Singh Ahluwalia, J. (Oral) - Pooran son of Bhagwat (PW-3) submitted a written-report (Exhibit-P/6) before Satyaprakash (PW-14). Satyaprakash (PW-14) in the Court deposed that on 07.08.1987 he was posted as A.S.I. Police Station Pahadi District Bharatpur when Pooran (PW-3) appeared and presented written-report (Exhibit-P/6). 2. Pooran (PW-3) in the written-report (Exhibit-P/6) stated that on 07.08.1987 at around 11:00 A.M. he received an information from Dhanmat son of Soni and Gopal son of Pamati that his nephew, namely Ramchandra is lying dead in the field of Jalla situated at the jungle of Jhurjhuri and his neck has been severed. Pooran (PW-3) stated that upon receipt of such information, he along with co-villagers reached at the place of alleged occurrence and found that his nephew was lying dead and somebody in the evening of 06.08.1987 had committed murder of his nephew - Ramchandra. He further stated that his nephew on 06.08.1987 at around 07:00 P.M. had left along with accused-appellant - Jogendra Singh son of Dalip Singh, resident of Gadhi from the shop of Bhola Panwadi. It was further stated that as per information received, both had gone to the tea shop of Mohini and, there from they purchased 100 grams salty snack and had taken a tea. Thereafter, they went towards Bazar. The complainant stated in the written-report (Exhibit-P/6) that afterwards where his nephew had gone, he is not aware but he has been caused incised injuries. 3. On the basis of the above said written-report (Exhibit-P/6), a formal First Information Report (Exhibit-P/7) bearing No.97/1987 was registered at Police Station Pahadi District Bharatpur for offence punishable under Section 302 I.P.C. 4. Thus, from perusal of the above said written-report (Exhibit-P/6) on the basis of which a formal First Information Report (Exhibit-P/7) was registered, it is evident that none has witnessed the alleged occurrence. Thus, there is no eye-witness account. The prosecution relied upon circumstantial evidence. 5. In the written-report (Exhibit-P/6) only evidence of last seen has been divulged against the present appellant by saying that on 06.08.1987 at around 07:00 P.M. deceased had accompanied accused from the betel selling shop of Bhola Panwadi. Thereafter, they had gone to the tea vend shop and had purchased salty snack also. 6. The prosecution relied upon circumstantial evidence. 5. In the written-report (Exhibit-P/6) only evidence of last seen has been divulged against the present appellant by saying that on 06.08.1987 at around 07:00 P.M. deceased had accompanied accused from the betel selling shop of Bhola Panwadi. Thereafter, they had gone to the tea vend shop and had purchased salty snack also. 6. The prosecution in order to secure conviction of the appellant examined as many as twenty witnesses, namely Harmukh (PW-1), Brahmanand (PW-2), Pooran (PW-3), Sher Singh (PW-4), Girraj (PW-5), Badluram (PW-6), Mohan (PW-7), Bhagwat Prasad (PW-8), Kedar (PW-9), Dhanmat (PW-10), Ramswaroop (PW-11), Ramhans (PW-12), Hukam Singh (PW-13), Satyaprakash (PW-14), Kiddee (PW-15), Vijay (PW-16), Pooranmal (PW-17), Bhawani Singh (PW-18), Dr. Kamal Kishore Vashistha (PW-19) and Lekhan Singh (PW-20) respectively. 7. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C., 1973 He denied all incriminating circumstances and pleaded false implication. No witness was examined in the defence. 8. The trial Judge, after hearing arguments, vide its impugned judgment dated 31.05.1989, held the appellant guilty of offence punishable under Section 302 of the Indian Penal Code. 9. Having convicted the appellant for having caused murder of Ramchandra, nephew of Pooran (PW-3), the trial Judge, vide a separate order of even date, sentenced the appellant as under :- "For offence under section 302 I.P.C. The appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo one month simple imprisonment." 10. Aggrieved against the judgment of conviction and the order of sentence rendered by the Court of Additional Sessions Judge, Deeg District Bharatpur, the appellant has filed instant appeal. We shall have a quick glance over the evidence led by the prosecution. 11. Harmukh (PW-1) deposed that a year before, Ramchandra had died. Pooran (PW-3), uncle of Ramchandra came and informed that in the field of Jalla, Ramchandra has been murdered. Upon which, he (Harmukh), along with Brahma, Pooran, Sarpanch Sheri and some other persons had gone to the spot, where they saw that Ramchandra was lying on his back and his neck was cut by sharped-edged weapon. Thereafter, Sarpanch and Pooran had gone to lodge the report at Police Station. The Police reached at the spot. This witness has attested the Inquest/Panchayatnama (Exhibit-P/1). Thereafter, Sarpanch and Pooran had gone to lodge the report at Police Station. The Police reached at the spot. This witness has attested the Inquest/Panchayatnama (Exhibit-P/1). This witness further stated that from the pockets of the deceased, one or two rupees and sulfi used for smocking ''ganja'' were recovered vide memo Exhibit-P/2. This witness stated that in his presence vide memo Exhibit-P/3, Police had taken into possession blood stained soil and the simple soil. The Police had also taken into possession one quarter of country-made-liquor vide memo Exhibit-P/4. 12. Brahmanand (PW-2) has also gone to the spot. He has also witnessed the recovery from the spot and has supported Harmukh (PW- 1). 13. Similarly, Pooran (PW-3) has also proved lodging of the written-report(Exhibit-P/6), attestation of the Inquest/Panchayatnama (Exhibit-P/1) and the memos prepared at the spot vide which blood stained earth was taken into possession. The witness further stated that Pooran Sunar, Ramhans and Kedar informed that a day before the alleged occurrence, deceased and the accused were smocking ganja together. Except the hear say evidence regarding the last seen, this witness except the recoveries from the spot has not advanced the case of the prosecution. 14. Shersingh (PW-4) in the Court stated that he, along with Pooran (PW-3), Brahmanand (PW-2), Chudmal, Harmukh (PW-1) etc., had gone to the spot. The Police had prepared Inquest and also prepared site-plan of the spot vide Exhibit-P/5, which he attested. 15. Girraaj (PW-5) stated that the Police came to the spot where the dead-body was lying. He had attested Panchnama/Inquest. The Police had also recovered sulfi and one empty quarter of country-made-liquor. 16. Badluram (PW-6) in the Court stated that he was having a betel shop at Bus-stand, Gopalgarh. On the alleged day of occurrence, Ramchandra came to the shop to purchase pan. At that time, Pooran Sunar, Kedar and other persons were also present at the shop. The witness stated that on the same day at afternoon, Jogendra Singh, accused had come to his shop and he inquired about Prahlad Gurjar, the witness informed that Prahlad Gurjar had gone to the Village. The witness stated that where Ramchandra had gone, he is not aware. The witness was not declared hostile by the prosecution. As per this witness, Ramchandra had come to his shop in the evening at 06:00 P.M., whereas accused has come to his shop on the same day at afternoon. The witness stated that where Ramchandra had gone, he is not aware. The witness was not declared hostile by the prosecution. As per this witness, Ramchandra had come to his shop in the evening at 06:00 P.M., whereas accused has come to his shop on the same day at afternoon. Thus, both were not seen together. 17. Mohan (PW-7) stated that he is having a tea-vend shop at Gopalgarh. On the alleged day of occurrence, in the evening at 07:30 P.M. deceased - Ramchandra and accused Jogendra Singh came to his shop. Jogendra Singh gave him Rs. 2/- and purchased 100 gram salty snack. At that time, Jogendra Singh and Bhagwat had exchanged words. Ramchandra told that he has not taken alcohol. Bhagwat kept cycle there and then all three left together towards Village. Thus, as per this witness - Mohan (PW-7), Jogendra Singh, accused, Ramchandra, deceased and Bhagwat had left his shop together on the alleged day of occurrence after 07:30 P.M. 18. Bhagwat Prasad (PW-8) in the Court stated that on the day of alleged occurrence, in the evening at about 06:00 P.M. he was sitting on the tea shop of Mohini. At around 07:00 P.M. accused and deceased came together at the tea shop of Mohini. They purchased salty snack worth Rs. 2/- from Mohini. The witness had left the place, along with cycle of the accused towards temple. The accused started giving abuses. Ramchandra told him that accused is not under the influence of liquor. The witness stated that he handed over cycle to Ramchandra. Thereafter, accused and Ramchandra had left together as to where they had gone, the witness is not aware. 19. Kedar (PW-9) stated that on the day of alleged occurrence, at about 05:00 P.M. he, along with Pooran, Ramhans and Vijay were smocking hookah (chilam) at the shop of Bhole situated at bus-stand. Jogendra came to us and asked Ramchandra, who was sitting there to accompany him and then accused and deceased had left together. 20. Dhanmat (PW-10) stated that he had gone to the jungle at around 10:00 A.M. He saw that one man was lying in the field of Jalla. He went there and saw that a dead-body was lying with cut on neck. 21. 20. Dhanmat (PW-10) stated that he had gone to the jungle at around 10:00 A.M. He saw that one man was lying in the field of Jalla. He went there and saw that a dead-body was lying with cut on neck. 21. Ramswaroop (PW-11) in the Court stated that the Police arrested Jogendra Singh, accused from his house and got recovered sword, tahmad, bu-shirt and two pouches of blood from his house vide memo Exhibit-P/8. It will be apposite here to notice the contents of memo Exhibit-P/8. 22. In the presence of Ramswroop (PW-11) and Hukam Singh (PW-13) accused got recovered one shirt, one tehmad and one sword from his house. 23. Ramhans (PW-12) in the Court deposed that on the day of alleged occurrence, at 06:00/06:30 P.M. he (Ramhans), Kedar, Pooran and Ramchandra were smoking hookah (chilam) in the shop of Bhole. The accused came and took Ramchandra away towards Bazar. 24. Hukam Singh (PW-13) has also deposed regarding recovery of sword, tehmad and bu-shirt from the house of accused vide memo Exhibit-P/8. 25. Satyaprakash (PW-14), as stated earlier, on presentation of the written-report (Exhibit-P/6) had registered a case. He had gone to the spot. He had prepared Inquest (Exhibit-P/1). He took into possession sulfi of ganja from the shirt of deceased vide memo Exhibit( P/2. He also took into possession blood stained soil and simple soil vide memo Exhibit-P/3. He also took into possession a quarter of liquor vide memo Exhibit-P/4. This witness also prepared site-plan of the spot vide memo Exhibit-P/5. 26. Kiddee (PW-15) stated that in the night of alleged occurrence, at about 08:00/09:00 P.M. both Ramchandra and Jogendra came to his house. Both demanded liquor from him. When he said that he is not selling liquor, they went away. The accused was having two bottles of liquor. The witness stated that accused was taking liquor in his ''nohra''. After sometimes, he told accused and Ramchandra to go away, then they left his ''nohra''. In cross-examination, this witness stated that he had not narrated the above facts to anybody that accused came to his ''nohra'' and they had taken liquor together. The witness stated that the Police recorded his statement after two months of the occurrence. 27. Vijay (PW-16) has stated that he was sitting in the shop of Bhola Panwadi at Gopalgarh. At that time, Ramhans, Kedar, Pooran and Ramchandra were smoking tobacco. The witness stated that the Police recorded his statement after two months of the occurrence. 27. Vijay (PW-16) has stated that he was sitting in the shop of Bhola Panwadi at Gopalgarh. At that time, Ramhans, Kedar, Pooran and Ramchandra were smoking tobacco. The accused came and took Ramchandra together along with him. 28. Pooranmal (PW-17) also stated that he was sitting at the shop of Bhola Panwadi when accused came and took away Ramchandra. 29. Constable - Bhawani Singh (PW-18) on 27.10.1987 had taken six sealed packets to the State Forensic Science Laboratory Rajasthan, Jaipur. 30. Dr. Kamal Kishore Vashistha (PW-19), being Medical Officer, Government Hospital, Sikri, had conducted autopsy on the dead-body of deceased - Ramchandra vide Exhibit-P/13. 31. We need not notice the deposition of this witness - Dr. Kamal Kishore Vashistha (PW-19), as admittedly, deceased - Ramchandra died because of violence. 32. From the above evidence, it is evident that the prosecution has relied upon following circumstances : (A) The evidence of last seen and (b) The recovery of sword, tehmad and shirt from the house of the accused, which were allegedly stained with the blood. 33. The prosecution has also relied upon the report of the State Forensic Science Laboratory Rajasthan, Jaipur, not exhibited. The same was also not admitted by the defence Counsel. As per the said report, blood stained soil, sword recovered from the accused, tehmad, bu-shirt, sulfi, underwear, dhoti and shirt were stained with the human blood. Furthermore, blood smeared soil, tehmad, dhoti and shirt were having blood group ''B''. 34. The trial Judge taking evidence of last seen and recovery effected from the house of the accused on the ground that the same are having blood group ''B'', which was also found on the blood smeared soil, has convicted the present appellant. 35. Mr. Mohit Balwada, learned counsel appearing for the accused-appellant, has submitted that as per the Post Mortem Report (Exhibit-P/13), duration between post mortem and death was between 6 to 12 hours. Counsel has further submitted that the Post Mortem Report (Exhibit-P/13) was conducted on 07.08.1987 at 03:50 P.M. Therefore, according to the Counsel, death occurred on the intervening night of 6th & 7th of August, 1987 at around 04:00 A.M. 36. Counsel has further submitted that the Post Mortem Report (Exhibit-P/13) was conducted on 07.08.1987 at 03:50 P.M. Therefore, according to the Counsel, death occurred on the intervening night of 6th & 7th of August, 1987 at around 04:00 A.M. 36. Counsel appearing for the accused-appellant has contended that as per the evidence led by the prosecution, deceased and accused had left betel shop at about 06:00 P.M. Thereafter, they went to the tea vend/shop where they purchased salty snack at around 07:30 P.M. Counsel has further contended that even if we believe the evidence of Kiddee (PW-15) in the night accused came to his ''nohra'' and took drinks together that will not be sufficient to rely upon evidence of last seen. Thus, learned counsel contends that on the day of alleged occurrence, accused and deceased were seen last in the night at around 09:00/10:00 P.M. and they were taking drinks together and thereafter, they had left shop of Mohini and ''nohra of Kiddee, latest by 09:00/10:00 P.M., whereas occurrence has taken place at 04:00 A.M. 37. Counsel appearing for the accused-appellant has argued that there is no evidence that after 09:00/10:00 P.M. accused and deceased were seen together. Counsel further argued that both under the influence of liquor may have left for their houses and Ramchandra may have been murdered by some unknown person or persons in the field. It is contended by ld. counsel that none has accused at place of occurrence as accused went towards house and not jungle. Counsel has submitted that there is no evidence that deceased and accused had a quarrel, fight or accused had any motive to commit murder. Counsel has contended that no evidence has come on record that the relations between accused and deceased were estranged. Rather, it has been contended by the learned counsel that the very fact that the accused met together at the betel shop, went together to buy the liquor and had taken the liquor together, is sufficient to infer that the relations between accused and deceased were cordial. 38. After hearing Counsel for the parties, we are of considered opinion that the evidence of last seen in itself is not sufficient to infer that the appellant alone has committed the alleged offence. 39. 38. After hearing Counsel for the parties, we are of considered opinion that the evidence of last seen in itself is not sufficient to infer that the appellant alone has committed the alleged offence. 39. We may also notice here that the statement of Kiddee (PW- 15) was recorded by the Police, after two-months of the alleged occurrence and, thus, he may have been introduced as a convenient witness. 40. Be that as it may, we may say at cost of repetition that last seen itself is not sufficient to infer that the appellant has committed the alleged offence. 41. Now we shall come to the recovery of sword, tehmad and shirt from the house of the accused vide memo Exhibit-P/8. 42. Memo Exhibit-P/8 is witnessed by Ramswaroop (PW-11) and Hukam Singh (PW-13) respectively. 43. The prosecution, in the present case, has not proved any disclosure statement on the part of the accused under section 27 of the Indian Evidence Act. No disclosure statement has been exhibited. 44. The Investigating Officer, who effected the recovery, being Station House Officer, Police Station Pahadi, has not been examined. As per prosecution case, the prosecution has also got information that the bu-shirt, tehmad and sword are lying at the house of the accused. Arrest memo of the accused has also not been proved on record. As to on which date accused was arrested, there is no evidence on record. How Investigating Agency learnt that articles are lying at the house of accused, no evidence has come on record. 45. We have perused the statement of accused recorded under Section 313 Cr.P.C., 1973 46. No date of arrest has been put to the accused in statement recorded under Section 313 Cr.P.C., 1973 47. We have already noted that the report of the State Forensic Science Laboratory Rajasthan, Jaipur has not been exhibited and same was also not admitted. What we find that neither the report nor contents of the report of State Forensic Science Laboratory Rajasthan, Jaipur, were put to the accused in his statement recorded under Section 313 Cr.P.C., 1973 It is a material evidence. The accused must have been informed regarding the factum of report or contents of the report of State Forensic Science Laboratory Rajasthan, Jaipur so that accused can take a stand regarding blood group found on the clothes. The accused must have been informed regarding the factum of report or contents of the report of State Forensic Science Laboratory Rajasthan, Jaipur so that accused can take a stand regarding blood group found on the clothes. The prosecution has not even proved the blood group of the accused. Had this material circumstance put to the accused, he could have explained or taken a stand regarding his blood group and the blood group of the deceased. 48. We cannot rely upon any circumstance as incriminating against the accused, until it is put to the accused in his statement recorded under Section 313 Cr.P.C., 1973 Recording of the statement of the accused under Section 313 Cr.P.C., 1973 is not formality. Any circumstance which prosecution intend to rely against accused, it being incriminating circumstance ought to be put to the accused. 49. We cannot rely upon the report of the State Forensic Science Laboratory Rajasthan, Jaipur, merely for the reason that neither the factum of report nor contents of the same were put to the accused in his statement recorded under Section 313 Cr.P.C., 1973 Hence, we shall ignore the report of State Forensic Science Laboratory Rajasthan, Jaipur. We would have remitted the matter to the trial Court to put the contents of the State Forensic Science Laboratory Rajasthan, Jaipur to the accused, but in the present case, we find that the occurrence had taken place in the year, 1987 and the impugned judgment was rendered by the trial Judge on 31.05.1989. We find no justification to remit the matter to the trial Judge after twenty-eight years. There is a serious lapse on the part of the prosecution not to exhibit the report of the State Forensic Science Laboratory Rajasthan, Jaipur. Equally, there is an apparent error in the impugned judgment on the part of the trial Judge to rely upon the report of the State Forensic Science Laboratory Rajasthan, Jaipur without putting the same or contents thereof to the accused in the statement recorded under Section 313 Cr.P.C., 1973 Thus, we are constrained to ignore the report of the State Forensic Science Laboratory Rajasthan, Jaipur. Having excluded the report of the State Forensic Science Laboratory Rajasthan, Jaipur from consideration, we are of the view that merely on the basis of the evidence of last seen, we cannot sustain the conviction of the present appellant, as the prosecution has failed to complete chain of circumstances to arrive at a conclusion that offence, if any, was committed by the appellant alone and by none else. 50. Consequently, we accept the present appeal, set aside the impugned judgment of conviction pronounced and the order of sentence, whereby sentence was awarded upon the appellant and he is acquitted of the charge.