ORDER : MOHAMMAD RAFIQ, J. 1. This appeal is directed against the judgement of learned Additional District and Sessions Judge (Fast Track), Sikar in Sessions Case No.37/2009, whereby the accused-appellant Narendra Kumar Rao @ Parsiya has been convicted for offence u/s.302 IPC and sentenced to life imprisonment with fine of Rs.10,000, in default whereof, he was to further undergo rigorous imprisonment of six months and was also convicted for offence u/s.201 IPC and sentenced to rigorous imprisonment of seven years and fine of Rs.5000 and in default whereof, he was to further undergo rigorous imprisonment of six months. Both the sentences were ordered to run concurrently. 2. As per the case of the prosecution, a written report Ex.P. 9 was submitted by one Sanwar Mal (PW8) to the S.H.O. Police Station Sadar, Sikar in connection with the dead body of unknown person found in the truck No. RJ-18-G-2259 in Bajor near Kaharon Ki Dhani. It was mentioned therein that today at 5-6 A.M. one Truck No. RJ-18-G-2259, which is full of bags, was standing and its front side was towards Jaipur at Kaharon Ki Dhani (Bajor) Bus Stand. Doors of cabin were locked. Nobody came near the truck. At about 1.25-1.30 PM, when he came and saw blood lying on the ground, which came from the cabin, he called 2-3 boys of the village and tried to open the door, which was locked. From window glass, they saw that one person was tied from his neck with pole of the cabin and there was injury on his head, from which the blood was oozing out. That person has been murdered by someone after tying him in the vehicle, who left that place keeping the vehicle at stand. The police on the basis of this report registered the FIR (Ex.P28) at Police Station Sadar, Sikar on 08.05.2009 at 3.00 PM bearing No. 114/2009. The police arrested the accused appellant and on conclusion of the evidence, filed charge-sheet against him for offence u/s.302 and 201 IPC. The charge sheet was filed in the Court of Chief Judicial Magistrate, wherefrom it was committed to the Court of Sessions, Sikar and thereafter it was made over the Court of Additional District & Sessions Judge (Fast Track), Sikar for trial. The accused denied the charges and claimed to be tried. Prosecution examined as many as 10 witnesses and exhibited 33 documents. The accused denied the charges and claimed to be tried. Prosecution examined as many as 10 witnesses and exhibited 33 documents. The defence produced 6 witnesses and exhibited one document. The accused in examination under Section 313 Cr.P.C. alleged false implication and pleaded alibi. On conclusion of the trial, the accused was convicted and sentenced in the manner as indicated above. Hence this appeal. 3. Shri A.K. Gupta, learned senior counsel submitted that the conviction of the accused appellant has been recorded against the material and evidence available on record as well as the law. Admittedly, there is no eye witness of the occurrence and the case hinges entirely on the circumstantial evidence. The learned trial court has failed to consider the basic principle of circumstantial evidence and has illegally convicted and sentenced the accused appellant. The learned trial court in paragraph 38 at page 31 of the impugned judgement has mentioned five major circumstances against the appellant viz. Last seen, recovery of documents of the truck, recovery of mobile phone, recovery of weapon with blood stained and blood on the clothes of the accused and deceased. It is important to note that most of the circumstance as mentioned above, have not been individually proved by the prosecution, let alone making as chain of circumstances against the accused-appellant. Yet, however, the learned trial court has convicted and sentenced the accused appellant. 4. It is submitted that the first circumstance is related to last seen. Admittedly, there is no evidence to show that the accused appellant was with the deceased at Kaharon Ki Dhani (Bus Stand Bajor) or nearby area. The basic principle related to the last seen is that the accused must be seen in the proximity of time and place, when and where the deceased was murdered and his body was found. The case of the prosecution is that the deceased Beni Prasad was murdered in the truck at that place, where the truck was found standing. When there is no evidence to this effect, the question of last seen of the accused with the deceased does not arise. Thus, in these circumstances, conviction of the appellant cannot be sustained at all. The prosecution has examined Rahul Mali (PW1) and Basti Ram (PW9), who are son and brother of the deceased Beni Prasad respectively to prove the evidence of last seen. Thus, in these circumstances, conviction of the appellant cannot be sustained at all. The prosecution has examined Rahul Mali (PW1) and Basti Ram (PW9), who are son and brother of the deceased Beni Prasad respectively to prove the evidence of last seen. Both of them have stated that the accused appellant, who was conductor in the truck, left the village along with Beni Prasad, who was driving the truck, on 07.05.2009 at about 8.00 PM from Chirawa. Thus, Rahul Mali (PW1) and Basti Ram (PW9) are the witnesses, who saw the accused appellant with the deceased at Chirawa, which is situated at a long distance from where the dead body of deceased was found. Thus, both of them are not witnesses of the last seen. The learned trial court has totally failed to consider this aspect of the matter and committed an illegality in convicting and sentencing the accused appellant on the basis of the testimony of these two witnesses in connection with the last seen. 5. Shri A.K. Gupta, learned senior Counsel argued that the learned trial court has not properly considered the statements of Rahul Mali (PW1) and Basti Ram (PW9), who are related to the deceased Beni Prasad, being his son and brother. Both of them have made improvements over their previous version and their statements are full of contradictions and omissions. If the statements of both these witnesses are taken into consideration it is becomes clear that both of them are making false statements, which cannot be believed. There are contradictions between the statements of these two witnesses in regard to seeing the accused appellant with the deceased Beni Prasad. These two persons admittedly saw the accused appellant at Chirawa with the deceased Beni Prasad. Thus, in these circumstances, no reliance can be placed on the testimony of these witnesses for convicting the accused appellant. The prosecution produced Neki Ram (PW2) to show that he is also a witness of last seen. This witness has stated that he saw the accused appellant along with Beni Prasad at Ghoribara Balaji Stand, where his father is having a shop of Tea etc. This witness is real nephew of Rajendra Singh (PW7), who is Investigation Officer in this case. Admittedly this witness does not know the accused appellant. It is also an admitted case that no test identification parade has been held. This witness is real nephew of Rajendra Singh (PW7), who is Investigation Officer in this case. Admittedly this witness does not know the accused appellant. It is also an admitted case that no test identification parade has been held. There is no evidence to show that how Rajendra Singh (PW7) came to know about this fact that this witness saw the accused appellant, as stated by him. He has made improvements/omissions in his testimony. 6. Shri A.K. Gupta, learned senior counsel submitted that as per Section 54A of Cr.P.C., it was the duty of the Investigation Officer to put the accused persons for test identification parade. Admittedly, Neki Ram (PW2) did not know the accused appellant. Thus, in these circumstances, not conducting test identification parade clearly goes to show that this witness did not know the accused appellant and he is a planted witness. Learned trial court has observed that the accused appellant has failed to explain that what happened after he left with deceased Beni Prasad and no explanation has come from him, thus, in view of the section 106 of Evidence Act, the accused appellant is liable to be convicted. The learned trial court has not considered the basic provisions of law. It is well settled law that in a criminal case and especially in a case of circumstantial evidence, this Section 106 of the Evidence Act is not applicable. In these circumstances, the conviction of the accused appellant is bad in law and the same is liable to be quashed and set aside. 7. Shri A.K. Gupta, learned senior counsel submitted that the next circumstance is recovery of the documents related to the truck. The prosecution has come out with the case that on 12.05.2009 the information Ex.P26 was given by the accused appellant in connection with recovery of document in the bag, from the house of accused-appellant. The prosecution case is to the effect that vide Ex.P4, these documents were recovered on the same day in the presence of Bhanwar Lal (PW4) and one Bhoma Ram, who has not been examined. This recovery itself is false one. If the statements of Bhanwar Lal (PW4) and Rajendra Singh (PW7) are taken into consideration along with other material, it becomes clear that no such articles were recovered. This recovery itself is false one. If the statements of Bhanwar Lal (PW4) and Rajendra Singh (PW7) are taken into consideration along with other material, it becomes clear that no such articles were recovered. There was no occasion for the accused appellant to keep all these articles with him as there was no necessity for the same. If the accused appellant wanted anything, then he would have taken the truck after throwing the dead body of Beni Prasad in night. Thus, instead of taking truck, which was valuable, why would he take useless documents with him. These articles were also recovered from an open place, which was never in his possession. The accused appellant was arrested on 11.05.2009 and he was in judicial custody. His house was opened and there was no lock in the house. No reasonable man can believe about recovery of these documents. Admittedly, no independent witness was associated by the Investigation Officer with the recovery. There were many houses in the village but nobody was called. The motbir witness of the prosecution is Bhanwar Lal (PW4), who is a Constable. Thus, in these circumstances, the conviction of the accused appellant cannot be sustained on the basis of this recovery. 8. Learned senior counsel further argued that another circumstance is recovery of mobile phone. The information was given vide Ex.P26 and mobile phone was seized by the police. This mobile phone was not put for test identification parade to Rahul Mali (PW1) and Basti Ram (PW9). There is nothing on the record to show that mobile phone belonged to the deceased Beni Prasad but in spite of these facts, the prosecution has placed reliance on this recovery. The case of the prosecution is that one iron rod and one Lathi was recovered. It is alleged that the accused appellant gave information vide Ex.P21 and recovery of iron rod was made vide recovery memo is Ex.P. 24. Again Rajendra Singh (PW7) is the Investigation Officer and Motbir is Sanwar Mal (PW8). Sita Ram, however, has not been produced. If the statements of these witnesses are taken into consideration, it becomes clear that the rod was recovered from the open place. Learned trial court has not properly considered the statements of Bhanwar Lal (PW4), Rajendra Singh (PW7) and Sanwar Lal (PW8) in connection with recovery. Sita Ram, however, has not been produced. If the statements of these witnesses are taken into consideration, it becomes clear that the rod was recovered from the open place. Learned trial court has not properly considered the statements of Bhanwar Lal (PW4), Rajendra Singh (PW7) and Sanwar Lal (PW8) in connection with recovery. If the statements of these witnesses would have been taken into consideration in accordance with law, there was no occasion for the learned trial court to convict the accused appellant. Admittedly, seal was with the Investigation Officer and it was not handed over to the independent witness. There is no evidence produced by the prosecution to show that the articles, which were seized, remained in sealed condition till it reached to the office of FSL before the court. 9. Learned senior counsel submitted that the trial court has not properly considered that no blood was found on the clothes of the accused appellant. These clothes were even not sealed and seized. But in spite of this fact, the learned trial court has mentioned in its judgment that recovery of these clothes, which were stained with blood, are important evidence against the accused appellant. The learned trial court in a mechanical manner, without going through the material and statements of the witnesses, convicted and sentenced the accused appellant. 10. Learned senior counsel submitted that the learned trial court has not properly considered and critically examined the statements of the defence witness, which is clear from the impugned judgment. No reason has been assigned for not considering these statements. The impugned judgment shows that the learned trial court has only taken into consideration one line of the statement of these witnesses. It seems that it has forgotten the fact that defence has examined six witnesses. It was the duty of the learned trial court to consider the statements of the defence witnesses but the learned trial court failed to consider the same. The conviction of the accused-appellant is based on surmises and conjectures and not based on legal evidence of the prosecution. From a bare perusal of the impugned judgment, it is clear that the learned trial court has given benefit of doubt to the prosecution and convicted the accused appellant only on the basis of conjectures and surmises. 11. The conviction of the accused-appellant is based on surmises and conjectures and not based on legal evidence of the prosecution. From a bare perusal of the impugned judgment, it is clear that the learned trial court has given benefit of doubt to the prosecution and convicted the accused appellant only on the basis of conjectures and surmises. 11. Shri A.K. Gupta, learned senior counsel for the accused-appellant has cited from the Medical Jurisprudence, Toxicology & Forensic Science by Prof. (Dr.) A.S. Deoskar published by All India Reporter Pvt. Ltd., 1st Edition, July 2010 page 296 and contended that according to this authority, the mean cerebral blood flow is 54 ml/100 gm/min. Grey matter flow is higher 70 ml/100 gm/min and that of white matter is 20 ml/100 gm/min. This proves that deceased must have been murdered only an hour or so, prior to the time when the truck was noticed by Sanwar Lal (PW8). Learned senior counsel has relied on the judgement of Supreme Court in Harjit Singh and others Vs. State of Punjab with State of Punjab Vs. Harjit Singh and others – AIR 2002 Supreme Court 3040, Rameshwar and Others Vs. State of Rajasthan – 2015 (1) Criminal Law Reporter (Page-399), Vikram and Others Vs. State of Rajasthan – 2015 (3) Crl.L.R. 158 in support of his arguments and prayed that the impugned order be set aside and the accused-appellant be acquitted of all the charges. 12. Shri R.S. Raghav, learned Public Prosecutor has argued that the guilt of the accused-appellant has been proved beyond reasonable doubt by circumstantial evidence, the most significant of which is that he was lastly seen with the deceased. Rahul (PW1), the son of the deceased and Neki Ram (PW2) have proved this fact. Sanwarmal (PW8) first of all informed the police about the dead body of the deceased lying in the truck. The accused-appellant was ‘khalasi’ with the deceased, who was owner as well as driver of the truck. Number of items belonging to the deceased have been recovered at the instance of accused-appellant. On the basis of information given by accused to police under Section 27, vide seizure memos Ex.P4 and Ex.P5, one mobile set 1209 without sim, one Registration Certificate, insurance, permit, bag, tax receipts, fitness and temporary permit of Truck No.RJ 18G 2259 have been recovered. Number of items belonging to the deceased have been recovered at the instance of accused-appellant. On the basis of information given by accused to police under Section 27, vide seizure memos Ex.P4 and Ex.P5, one mobile set 1209 without sim, one Registration Certificate, insurance, permit, bag, tax receipts, fitness and temporary permit of Truck No.RJ 18G 2259 have been recovered. The seizure memo of iron rod recovered at the instance of accused is Ex.P24. The accused failed to give any explanation as to how such items were recovered from his possession and at his instance. Rahul (PW1) the son of the deceased has rightly identified the recovered articles. The accused has set up a false defence by producing as many as six witnesses that he left for Mumbai on 2nd May with his ‘bhabhi’, whereas he was seen in the company of the deceased in the night on 7th May. There was no question of his going to Mumbai on 2nd May. 13. Learned Public Prosecutor argued that although each of the circumstances of the appellant has been individually proved beyond reasonable doubt and when joined together they form the chain of circumstance so complete so as to rule out every reasonable hypothesis that may be compatible with the innocence of the accused-appellant. Moreover, false plea of alibi set up by the accused, should also be taken as additional circumstance against him. This false plea set up by the appellant should also be supplying the missing links, if any, in the chain of circumstances. Appellant failed to give any explanation in his examination under Section 313 Cr.P.C. as to how and when he parted company with the deceased. Minor omissions or discrepancies in the investigation should not be blown out of proportion and are liable to be overlooked. It is therefore prayed that the appeal be dismissed. 14. We have given my thoughtful consideration to the rival submissions and perused the material on record. 15. The most significant circumstance that has weighed with the learned trial court in convicting the accused-appellant is that of the evidence of his being lastly seen with the deceased. Rahul (PW1) is the key witness of the prosecution. He has stated that his father owned the truck and he also used to drive it. Accused-appellant Narendra Kumar was ‘khalasi’ with the truck. Rahul (PW1) is the key witness of the prosecution. He has stated that his father owned the truck and he also used to drive it. Accused-appellant Narendra Kumar was ‘khalasi’ with the truck. He came with the truck to his house at about 8-8.15 PM on 7th May, 2009. His father and the accused-appellant both had dinner and then left for Jaipur around 9-9.15 PM. He received a telephone call from the accused-appellant in the evening of 8th May, 2009 informing that in the night of 7th May, 2009, his father (deceased) forced him to get down from the truck at Bagad and gave him a sum of Rs.2,000 and he has left for Mumbai to drop his ‘bhabhi’ and that he stated that he would return back after 7-8 days. This witness in cross examination stated that the relationship between his father (deceased) and accused-appellant seemed to be cordial and both were happy with each other. He received such a telephone call from the accused-appellant from Mandrela on 8th May, 2009. 16. As regards the plea of alibi set up by the accused-appellant, here the argument of the defence assumes significance that the Investigating Officer Rajendra Singh (PW7) did not make any enquiry from Bagad whether the accused was dropped by the deceased in the mid night at around 1-1.30 pm and how he reached Mandrela from there. A specific query was put to the Investigating Officer Rajendra Singh (PW7) by the defence in cross examination thereabout and his answer was that he did not enquire from Bagad about the fact of accused getting down from the truck there in the night at 1.30 AM, but his investigation from residents of Ghoribara transpired that accused was with deceased in the truck till Ghoribara. Thus, the Investigating Officer has not been categorical in stating that his investigation proved the presence of the accused with the deceased upto Kaharon Ki Dhani or Bajor, which is situated beyond Sikar while moving towards Jaipur. The distance between the village Kaharon Ki Dhani (Sikar), Bajor and Mandrela is more than 100 kms. If the deceased died in the noon or afternoon sometime on 8th May, 2009, as a result of the fatal injury, how possibly could the accused reach Mandrela 12.21 pm and make a phone call to the son of the deceased Rahul (PW1) from STD booth of Farooq Ali. If the deceased died in the noon or afternoon sometime on 8th May, 2009, as a result of the fatal injury, how possibly could the accused reach Mandrela 12.21 pm and make a phone call to the son of the deceased Rahul (PW1) from STD booth of Farooq Ali. The prosecution has not produced the STD booth owner Farooq Ali and, therefore, adverse inference should be drawn against it for deliberately withholding him that had he been produced, he would have proved that it was accused, who made the phone call from STD booth. Otherwise also, this fact has to be accepted as such because the prosecution itself has relied on the STD slips (Ex.P27), which has been proved by the Investigating Officer Rajendra Singh (PW7), showing that the appellant made an STD call from booth of Farooq Ali to Rahul (PW1) at 12.21 PM on the same day when dead body of deceased was found in the truck. Besides, the Investigating Officer has not proved categorically as to the location of Village Ghoribara, a village in District Jhunjhunu. 17. Nekiram (PW2) has stated that at about 10-10.45 PM on 7th May, 2009, a vehicle coming from the Jhunjhunu side stopped near his hotel, in which deceased was a driver and the accused-appellant was ‘khalasi’. They had dinner there, but then left at about 11.00 PM. In cross examination, he stated that he did not mention the name of ‘khalasi’ in his police statement and that on that day about 200-250 vehicles came to his hotel, but he could not give the name of driver or ‘khalasi’ or number of any other vehicle except this one. In examination-in-chief, he stated that he remembered the name of this ‘khalasi’ in particular – namely; the appellant because the deceased Beni Prasad used to call him (‘khalasi’) by that name, but in cross-examination he stated that he did not mention this fact in his police statement. Vinod Sharma (PW3) in cross examination, he has stated that when first telephonic call was answered from the accused at his residence, it was answered by his daughter. Appellant disclosed his name to be Narendra. His daughter neither earlier heard his voice, nor ever met him, but subsequently, he again called from STD/PCO. Vinod Sharma (PW3) in cross examination, he has stated that when first telephonic call was answered from the accused at his residence, it was answered by his daughter. Appellant disclosed his name to be Narendra. His daughter neither earlier heard his voice, nor ever met him, but subsequently, he again called from STD/PCO. Basti Ram (PW9), another witness produced by the prosecution has stated that deceased and accused left from the house of deceased at about 9.00 pm after taking dinner. He received information from the police on 8.5.2009 about the incident informing that a dead body was lying in the truck no.RJ-18-2259, whereupon he along with three others started for the place and reached Kaharon Ki Dhani. In cross examination, this witness has stated that when deceased and accused started from his residence, there seemed to be no quarrel between them and their relations appeared to be quite normal. 18. While Rahul (PW1) has stated about the presence of the accused-appellant at his house in the evening of 7.5.2009 at 9-9.15 PM, Neki Ram (PW2) has stated about the presence of deceased on his hotel around 10.30-11.00 pm, but the prosecution has failed to prove distance between these two places. Prosecution has also failed to prove by any evidence whatsoever whether the accused was lastly seen at Kaharon Ki Dhani or near Bajor, where the dead body of deceased was found in the truck. Here the statement of Rahul (PW1), Nekiram (PW2) and Vinod Sharma (PW3) need to be critically analysed. Rahul (PW1), who happens to be son of the deceased, has stated that he received a phone call in the noon of 8th May, 2009 from the appellant informing that his father had dropped him in Bagad previous night and gave him a sum of Rs.2,000 stating that he was going to Mumbai to drop his Bhabhi. Vinod Sharma (PW3) has also stated that he received a phone call at around 10-10.30 AM from the accused-appellant informing that the deceased dropped him in the mid night around 1-1.30 AM and gave Rs.2,000. Vinod Sharma (PW3) has also stated that he received a phone call at around 10-10.30 AM from the accused-appellant informing that the deceased dropped him in the mid night around 1-1.30 AM and gave Rs.2,000. Had it been only for these two statements, probably the defence plea set up by the appellant could not have been accepted, but the Investigating Officer Rajendra Singh (PW7) himself has proved Ex.P27, the STD phone call slips obtained from the STD booth located at Mandrela in District Jhunjhunu and stated that this was the STD slips of the shop of the Farooq Ali resident of Rajgarh Road, Village Mandrela. His STD booth number was 01559-277649. According to Investigating Officer, the phone was made from Mandrela at about 12.21 PM on 8.5.2009 on telephone no.9636836485, which phone number finds mention in the statement of Rahul (PW1), who has claimed it to be his number and corroborates that he received call from the accused-appellant on this number. Thus, what is evident from the evidence of prosecution itself is that the appellant made a phone call to Rahul at about 12.21 or so, in the afternoon of 8.5.2009. 19. Sanwarmal (PW8), the Sarpanch of the Village Kharon Ki Dhani has stated that the truck was noticed on the road at about 1.30-2.00 PM. 2-4 boys of the Village informed him about the truck and that drops of blood were trickling down from left side of the cabin of truck. When he peeped into the cabin of the truck from certain height, he noticed that a dead body was lying tied to a pole in its cabin. His attempts to open the doors failed because they were locked. He therefore informed the police thereabout. In cross-examination, he further stated that at the time when he informed the police, the drops of the blood were still falling from the truck, but he was not in a position to say whether the deceased received injuries 2-3 hours ago. The drops of the blood were collected by certain policemen, but he did not know any of them. Circle Inspector of Police was present there at that time. The normal time of blood clotting in human is very short approximately about 5 to 11 minutes as per the Medical Jurisprudence. According to the authority of Medical Jurisprudence, Toxicology & Forensic Science by Prof. Circle Inspector of Police was present there at that time. The normal time of blood clotting in human is very short approximately about 5 to 11 minutes as per the Medical Jurisprudence. According to the authority of Medical Jurisprudence, Toxicology & Forensic Science by Prof. (Dr.) A.S. Deoskar published by All India Reporter Pvt. Ltd., 1st Edition, July 2010 page 296 the mean cerebral blood flow is 54 ml/100 gm/min. Grey matter flow is higher 70 ml/100 gm/min and that of white matter is 20 ml/100 gm/min. If this much is the flow of the blood and the statement of various prosecution witnesses is that when dead body in the truck was noticed by certain persons, the blood was still oozing out of the body and the drops of the bloods were falling from the truck on the road, not much time must have passed from when the deceased was murdered. That means that the deceased must have been put to murder within less than an hour before the truck was noticed at 1.30 – 2.00 pm with blood trickling down from the cabin of truck on the road, which was seen by certain boys of Village Kharon Ki Dhani who informed Sanwarmal (PW8), the Sarpanch thereabout. This is therefore an irreconcilable situation that the accused-appellant, who would be making a phone call to Rahul, son of the deceased at 12.21 pm on that very day from Mandrela, which is situated at 100 kms from Kharon Ki Dhani where the dead body of his father was found in a truck at about 1.30 to 2.00 pm, could have committed the murder. 20. Coming now to the recovery at the instance of accused-appellant, nature of recoveries are not such which can inspire confidence in a case of circumstantial evidence to hold the accused-appellant guilty on the basis of the kind of evidence of last seen available on record. What is shown to have been recovered at the instance of accused-appellant pursuant to information given by him vide memo Ex.P4 are- (i) one mobile set Nokia-1209 without sim, (ii) one original Registration Certificate of the truck, (iii) insurance papers, (iv) permit, (v) hand bag, (vi) tax receipts, (vii) fitness and temporary permit of Truck No.RJ 18G 2259. What is shown to have been recovered at the instance of accused-appellant pursuant to information given by him vide memo Ex.P4 are- (i) one mobile set Nokia-1209 without sim, (ii) one original Registration Certificate of the truck, (iii) insurance papers, (iv) permit, (v) hand bag, (vi) tax receipts, (vii) fitness and temporary permit of Truck No.RJ 18G 2259. Rajendra Singh (PW7), the Investigating Officer in his statement has proved the site plan of the place of these recoveries (Ex.P10) by stating that these recoveries were made from an open land in a cloth bag in the corner of the house of accused in village Chhoti Nasal. Investigating Officer thus wanted to show that all these articles were taken away by the accused-appellant from a cabin of the truck in a cloth bag to his residence in his native village. Surprisingly, the arrest of the petitioner has been shown from Sadar Sikar itself at 7.05 PM vide Ex.P2 on 11.5.2009 and how and in what way the accused could find time to go to his native village to conceal all these articles, which apparently has no value for him, has not been explained. However, interestingly, when we check from the record, we find that Village Nassal is neither in Sikar District, nor in Jhunjhunu District, but falls in Churu District, which is beyond Jhunjhunu District. One can easily visualise, how convenient, it would have been for the Investigating Officer to show these recoveries at the instance of accused because all these items would have been easily found in the cabin of the truck itself. And there was no reason why, if at all, any murderer, be it accused-appellant or some other person, would have carried them with him after committing the crime to offer a clue to the police at any later point of time to link him with the crime. Aside of being contrary to normal human conduct, it rather sounds quite illogical. All these recoveries are thus nothing but result of police padding. 21. Two weapons of offence are shown to have been recovered by the police. One three feet and one inch long bamboo stick, which was thicker on one end and thinner at another end, also containing number of blood stains vide Ex.P14 from the cabin of the truck itself. All these recoveries are thus nothing but result of police padding. 21. Two weapons of offence are shown to have been recovered by the police. One three feet and one inch long bamboo stick, which was thicker on one end and thinner at another end, also containing number of blood stains vide Ex.P14 from the cabin of the truck itself. An iron rod has been shown to have been recovered at the instance of accused-appellant vide memo Ex.P24. In the memo, it is mentioned by the Investigating Officer Rajendra Singh (PW7) that on the basis of the information given by the accused, two feet and five inches long and one inch thick rod was recovered from a 15 feet deep pit on the northern side of the NH-11 at some distance from the bus stand of Kaharon Ki Dhani, which contains blood stains. While the FSL report (Ex.32) is positive for the presence of human blood of A-group on the bamboo stick, which is also found on the shirt of the deceased, the blood found on the iron rod has not been found to be of human origin inasmuch as it has been found not sufficient for test as far as grouping is concerned. 22. Apart from these recoveries, recovery of a plastic rope vide Ex.P18 was also made from the cabin of the truck and blood stained hair vide Ex.P13. However, the postmortem report Ex.P7, shows a lacerated wound in the size of 4x3x3 cms. on right occipital parietal region of scalp of deceased. Second injury is postmortem ligature mark around neck, without any ecchymosed in forehead. So far second injury is concerned, it has been described as postmortem injury, which means that his body was tied to the pole in the cabin as is seen from the photographs available on record after the deceased was put to death, but the only antemortem injury caused to his head and scalp is injury no.1, which has been opined to be the cause of death. Therefore, the case sought to be set up by the prosecution that two weapons were used to cause one injury, does not appear to be convincing enough to accept. Therefore, the case sought to be set up by the prosecution that two weapons were used to cause one injury, does not appear to be convincing enough to accept. Recovery of iron road with few marks of blood at some distance from the place of incident in a 15 feet deep pit, cannot therefore be believed to connect the accused with the crime particularly when the bamboo stick was found recovered from the cabin itself and same has been found to contain blood of human origin of A-group as per the FSL report. 23. The Supreme Court in Subhash Chand vs. State of Rajasthan- (2002) 1 SCC 702 has held that to constitute evidence of last seen together, the evidence must definitely permit an inference being drawn that the victim and the accused were seen together at a point of time in close proximity with the time and date of commission of crime. In the present case, the incident has taken place in day light and if the accused had accompanied the deceased to village ‘Kaharon Ki Dhani’, there should have been some evidence of his being lastly seen there in the truck or getting down from the truck and going from there. 24. No doubt, the petitioner in the present case has set up a plea of alibi, which does not inspire confidence and which he has utterly failed to prove. For that, he has produced six witnesses to claim that he left for Mumbai with his ‘bhabhi’ on 2.5.2009, but in the facts of present case, when the evidence otherwise does not prove his guilt beyond reasonable doubt and the individual circumstances sought to be proved against him are, in fact, not proved by clinching and convincing evidence and, therefore, do not form a chain of circumstances so complete as to rule out every reasonable hypothesis that may be compatible with his innocence, failure of the appellant to substantiate the defence of alibi cannot be taken as substitute for the proof of his guilt. Upholding conviction of the accused-appellant on the evidence available on record is fraught with grave danger of an innocent person being punished, rather than a guilty being punished. Upholding conviction of the accused-appellant on the evidence available on record is fraught with grave danger of an innocent person being punished, rather than a guilty being punished. Merely because the defence has ill-advisely produced certain witnesses to prove the plea of alibi, in the facts of the present case, when otherwise the chain of circumstances sought to be proved by the prosecution against the appellant is having very many missing links, this circumstance cannot be taken as an additional link in such chain to hold the accused-appellant guilty. 25. In view of above discussion, the present appeal succeeds and is accordingly allowed. The impugned judgement dated 15.2.2011 is quashed and set aside and the accused-appellant Narendra Kumar Rao @ Parsiya is acquitted of all the charges. He shall be released forthwith, if not required to be detained in relation to any other case. 26. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.