JUDGMENT Vinit Kumar Mathur, J. - The present appeal has been filed to challenge the judgment dated 19.11.2016 passed by learned Additional Sessions Judge No.1, Nimbahera District Chittorgarh in Sessions Case No.30/2013 whereby the appellants have been convicted for the offences under Section 302/34 & 201/34 IPC and sentenced for life imprisonment for offence under section 302/34 IPC with a fine of Rs. 5,000/-each, in default of payment of fine to further undergo one month simple imprisonment and also sentenced for three years simple imprisonment for offence under section 201/34 IPC with a fine of Rs. 1000/-each in default thereof to further undergo simple imprisonment for one month. 2. Briefly, the facts giving rise to the present appeal are that on 18.12.2012, a written report was filed by Kesar Singh (PW6) stating therein that he is resident of Palkhedi. In the morning at about 9:00 am, when he went to his field from his residence, while entering his field, he sensed some foul smell from nearby bushes. On going near the bushes, he saw a decomposed body lying there. Insects were there on face, hands and legs of the dead body of some unknown person wearing brown coat and black pant with stripes of white color. Color of the shirt which was worn by the dead body was gray. In one of the finger of the left hand one brass ring was seen. He reported accordingly. 3. On this report, a formal FIR No.171/2012 was registered and investigation was conducted. The police filed challan against the accused-appellants for the offences under sections 302, 201, 120-B/34 IPC. 4. Learned trial Court framed charges against the accused appellants for the offences under sections 302 IPC, 302/34, 201 read with section 302 IpC. The accused denied the same and preferred trial in the matter. 5. During the trial 18 prosecution witnesses were examined on prosecution side and in all 57 documents were exhibited. 6. Thereafter, accused appellants were examined under Section 313 Cr.P.C., 1973 and were confronted with the evidence adduced during trial to which they denied and submitted that they are innocent persons and have been falsely implicated in the matter. 7. Learned trial Court, after hearing the arguments advanced on both the sides and after taking into consideration the statements of witnesses and the documents exhibited, convicted and sentenced the accused-appellants vide judgment dated 19.11.2016. 8. 7. Learned trial Court, after hearing the arguments advanced on both the sides and after taking into consideration the statements of witnesses and the documents exhibited, convicted and sentenced the accused-appellants vide judgment dated 19.11.2016. 8. For appreciating the facts in detail, we have gone through the statements recorded during the trial along with documents produced and exhibited before the trial Court. 9. PW-1 Rukaiya Khan is star witness of the prosecution and she is also a witness of last seen produced on behalf of the prosecution. She has stated in her statement that she knows Sattu Lal Khatik. She did not know Kailash till one day, Kailash in his Car stopped at Sattu Bhai's Hotel. On that day, since there was no balance in the phone of Sattu Bhai, he spoke to Kailash from her phone. From that day, Kailash regularly kept in touch with her on telephone. Her relationship with Kailash is above board. She further stated that her meeting with Kailash was 3-4 months prior to the incident. Sattu Chandoria runs a Dhaba. She further stated that when on 7th she had gone to Shahpura at her sister's place, the deceased Kailash telephoned her and asked about her whereabouts. Kailash told her that he is at Mandal Choraha. Kailash asked her to go to Chittorgarh. She agreed to go right away. Thereafter, deceased asked her to meet him at Mandal Choraha and go after meeting him. She accordingly came to Mandal Choraha from Shahpura at about 2:00 pm where she and deceased Kailash had a cup of tea and Kachori. Thereafter, Madan Lal and Phoru joined them at the Tea Stall. They stayed there for 10-15 minutes. Kailash said that he will go to the market and thereafter, he will go to Ahmedabad for unloading the truck. She further stated that she said to Kailash that since he will go via Chittorgarh, therefore, she will also accompany him in the truck. On this, Kailash said that they will be going through four lane road and therefore, she should go by bus and offered to pay the bus fare. She, however, told Kailash to drop her at Medikhera Phatak in the truck. In the truck, Phoru Lal and Madan Lal were also accompanying them and on reaching Medikhera Ki Phatak, she disembarked. On this, Kailash said that they will be going through four lane road and therefore, she should go by bus and offered to pay the bus fare. She, however, told Kailash to drop her at Medikhera Phatak in the truck. In the truck, Phoru Lal and Madan Lal were also accompanying them and on reaching Medikhera Ki Phatak, she disembarked. After half an hour, Kailash called her to ask whether she has reached home to which she replied in the affirmative. Thereafter, she called Kailash on 11.12.2012 on mobile phone and heard Kailash and Phoru Lal talking. While talking to them, she could not make out whether it was voice of Kailash or Phoru Lal. It was not clear. She heard Kailash telling that he is calling from Mangalwad Toll Naka and when she asked, when he will come to Chittorgarh, he replied that he will reach in the morning. When she asked that as to what they are doing, he replied that they are four friends having a party. Kailash further said that Madan and Phoru Lal are sitting with him and one more name was told but she could not remember. This conversation took place at about 9:30 pm. In her statement before the Magistrate, she named the fourth person as Rama but she does not know who Rama was. After the night when she called Kailash on telephone, his phone was coming switched off but he was having one more Sim of Vodafone company which was in the name of Phoru Lal. She talked to Phoru Lal on that Sim and told him that she wanted to talk to Kailash, Phoru Lal replied that Kailash and his wife have settled the dispute, therefore, Kailash had gone there. Thereafter, there was no conversation. She could not remember the number on which she was calling Kailash. The earlier number of Kailash was 8290521767. In the cross examination of this witness, she admitted that she had friendship with the deceased and was regularly talking with him. It was further stated by her that her husband and family had no objection for talking on telephone with Kailash. She further refused that she has ever stayed with Madan Lal and Phoru Lal. She also stated that she had seen Madan Lal and Phoru Lal sitting in the truck but could not give the number of the truck being illiterate. She further refused that she has ever stayed with Madan Lal and Phoru Lal. She also stated that she had seen Madan Lal and Phoru Lal sitting in the truck but could not give the number of the truck being illiterate. She further states that on the day when she was travelling in the truck, she had met Madan Lal and Phoru Lal for the first time. Her last conversation with Kailash is said to be at 9:30 pm but she did not remember the date. PW2 Ratan Lal who is relative of deceased Kailash and had gone on the spot where the dead body of deceased Kailash was lying. He has been declared Hostile. PW3 Pappu is brother of deceased Kailash and he stated that the deceased was a Khalasi with accused appellant Phoru Lal and he had met his brother four days prior to the incident. He further states that Phoru Lal had told Kailash who went to Mandal Choraha for going to Gujrat. After seven days, Kailash called his cousin Kallu from Mandalgarh Choraha and informed him that they are having drink party. This was told to him by Kallu. After 7-8 days, when Kallu called Kailash, his phone was switched off. Kailash died after 15 days of receiving phone of Phoru Lal. He reached on the spot where the body of deceased Kailash was lying and identified the same. PW4 Manish is an attesting witness of the recovery of 'Tami' and knife but he does not support the prosecution case and thus, has been declared hostile. PW5 Ajay Dutt is also witness of recovery of Tami and knife i.e. the weapons used in the crime in question but he also does not support the prosecution case and thus, has been declared hostile. PW6 Kesar Singh who is first informant has stated that while he was going to his field, on having sensed foul smell, he went to the nearby bushes and saw dead body of a person lying there in a decomposed condition and he thereafter, informed the police about the same. He is also an attesting witness of bottle of Beer recovered from the spot. PW7 Gopal is an attesting witness of the dead body and has stated that he has affixed his signatures on the fard prepared (Exp. 10). He is also an attesting witness of bottle of Beer recovered from the spot. PW7 Gopal is an attesting witness of the dead body and has stated that he has affixed his signatures on the fard prepared (Exp. 10). PW8 Jagdish who has stated that in his presence, the police has recovered Safi (short turban) and bottle of Beer, he has attested the fard (Exp.7 & 8). PW9 Devi Lal is an attesting witness of recovery of pieces of mobile and has attested Exp. 12. PW10 Kailash Soni is the investigating Officer. He states that on 18.12.2012 while he was posted as Station House Officer at Police Station, Mangalwad, the complainant Kesar Singh resident of Palkhedi filed a written report. He visited the site at around 11:30 am and conducted the proceedings under section 174 Cr.PC. Thereafter, he conducted usual investigation i.e. preparation of memo of site plan, dead body, collection of samples of the articles lying there and thereafter recorded statements of the witnesses. He has conducted the investigation and has arrested the accused persons during the course of investigation, recovered the weapons of alleged offences, got call details of the conversation between the accused and other persons. Basically, in the entire statements, he has tried to justify the case of the prosecution on the basis of the recoveries effected on the basis of information supplied to him by the accused persons under section 27 of the Evidence Act. He also stated in his cross examination that bottle of Beer was recovered from the place of the incident. Finger prints were obtained for getting the same examined with the finger prints of the accused-appellants and the deceased but FSL report indicates that since the finger prints on the bottle were not clear, therefore, no opinion to that effect was expressed. PW11 Jhameshwar Singh is Head Constable who is an attesting witness of the articles recovered and deposited in the Malkhana Register. PW12 Mangi Lal who is having hotel business at Mangalwad Toll Naka states that he recognizes the accused persons as they were frequently coming to his hotel. He has stated that he does not remember the date when they last visited his hotel. He further states that around a year and half back they came to his hotel and purchased two bottles of Beer and one quarter of wine. He has stated that he does not remember the date when they last visited his hotel. He further states that around a year and half back they came to his hotel and purchased two bottles of Beer and one quarter of wine. One of the three accused persons paid money and did not take anything more from his place. He has been declared hostile by prosecution. PW18 Dr. Pyare Lal stated in his statement that on 18.12.2012 while he was working as Medical Officer at PHC, Mangalwad on report being received, he conducted postmortem of an unidentified body. Other members of the board were Dr. Madhav Meena and Dr. Batti Lal Meena. He stated that the deceased has suffered fracture of frontal parietal occipital bone and there were stabbed injuries in the stomach due to which intestine oozed out, having insects on the same. In the opinion of the Medical Board, the cause of death was head injury and excessive bleeding. 10. Heard learned counsel for the appellants as also learned Public prosecutor. 11. Learned counsel for the appellants has submitted that present is a case of circumstantial evidence and there is no direct evidence in the prosecution case. The accused appellants are innocent persons and they have been falsely implicated in the present case. There is no eye-witness of the incident, nor there is any clinching evidence to prove the offence alleged against the appellants. The prosecution has failed to prove the offence alleged beyond reasonable doubt. There are material contradictions in the statements recorded by the prosecution. The chain of circumstances not being complete and there is no direct evidence in the matter. It will not be appropriate and safe to convict the appellants in the present case. The prosecution has miserably failed to collect and connect the pieces of evidence in such a fashion that chain of circumstance is complete which indicates that accused appellants are the only persons who have actually killed the deceased Kailash. 12. He further submits that conviction in the present case is solely based on the statement of PW1 Rukaiya as there is no evidence which connects the appellants with the present incident. 12. He further submits that conviction in the present case is solely based on the statement of PW1 Rukaiya as there is no evidence which connects the appellants with the present incident. He further submits that Rukaiya (PW1) is basically a witness of last seen as the deceased was seen in the company of the appellants by her while travelling from Mandalgarh Choraha to Medikhera Ki Phatak as she was travelling in the same truck. He further submits that last telephonic conversation between the deceased and this witness was held on 11.12.2012 and thereafter, there was no contact and ultimately, on 18.12.2012, dead body of the deceased was recovered, therefore, there was a gap of almost seven days and the prosecution has failed to bring on record any evidence which connects the present appellants with the crime in question. The evidence of last seen of PW1 is, therefore, very weak as dead body was recovered after a period of six days and nothing has been said about the activities/ whereabouts etc. of the deceased Kailash in the intervening period. He further submits that there is material contradiction in the statements of the witnesses itself when compared with the statements of PW1 recorded under sections 161 & 164 Cr.PC. 13. It is further submitted by learned counsel for the appellants that PW2 Ratan Lal who is relative of the deceased and PW6 Kesar Singh who is first informant have been declared hostile by the prosecution. 14. The fact of recovery of the weapons of the offence also becomes doubtful as PW4 Manish and PW5 Ajay Dutt who are attesting witnesses of the weapons of offence i.e. 'Tami' and 'knife' have not supported the case of the prosecution and as thus, have been declared hostile. The counsel further submits that recovery of weapons of offence becomes highly doubtful and does not connect the present appellants with the crime in question. 15. The counsel further submits that PW12 who is owner of the liquor shop has also been declared hostile, therefore, in nutshell his argument is that there is nothing on record which connects the present appellants with the alleged crime. It is submitted that conviction of the appellants is not sustainable on the basis of the prosecution story as the evidence of last seen is six days old from the date of incident having no credence and secondly, recovery is highly doubtful. It is submitted that conviction of the appellants is not sustainable on the basis of the prosecution story as the evidence of last seen is six days old from the date of incident having no credence and secondly, recovery is highly doubtful. Moreover, there is no corroborating evidence to the same and therefore, the appellants are liable to be acquitted in the present case. 16. On the other hand, learned Public Prosecutor has supported the judgment under challenge and vehemently argued that the charge against the accused-appellants has been proved by the evidence produced on record and there is no deviation in the statements recorded during the course of trial. There are no contradictions in the statements of the prosecution witnesses. It is submitted that as per the call details, it has come on record that there were a number of calls between Seema and Phoru Lal which establishes that there was illicit relationship between them and therefore, he submits that motive was there to kill Kailash. He further submits that there were a number of Sim cards issued in the name of Phoru Lal and one of them was held by Seema wife of deceased Kailash. Thus, according to learned Public Prosecutor, this was the motive behind killing deceased Kailash. 17. Learned Public Prosecutor also submits that the weapons of offence were recovered at the instance of information divulged by the accused appellants under section 27 of the Evidence Act but he frankly admits that no Sim Card or telephone were recovered from Seema and Seema was not produced in the witness box. He further submits that as per the interrogation note of the accused persons, recoveries having been effected complete the chain of circumstances and conclusively prove the fact that these are the three persons who are involved in the murder of deceased Kailash. He submits that the conviction has rightly been made by the learned trial court on the basis of recovery and the same is not required to be interfered by this court as the prosecution has been able to prove the offence committed by the accused appellant beyond reasonable doubt. 18. We have considered the arguments advanced by learned counsel for the appellants and the learned Public Prosecutor. 19. 18. We have considered the arguments advanced by learned counsel for the appellants and the learned Public Prosecutor. 19. The detailed facts noticed by us reveal that there is no direct evidence in the matter and the statement of PW1 Rukaiya who is said to be star witness of the prosecution and witness of last seen does not specifically indict the present appellants as after the day on which PW1 Rukaiya travelled in the truck along with the accused persons, the dead body of deceased Kailash was recovered after 11 days. Moreover, even the last telephone call with deceased was made by PW1 on 11.12.2012. Even from this date, there was a gap of six days when the dead body was recovered. The prosecution has failed to bring on record anything to show or suggest about the whereabouts, company and the persons who were accompanying the deceased soon before his death. Evidence of last seen in the statement of PW1, therefore, cannot help the prosecution as the same is not soon before the death of the deceased. 20. The gap is too wide between the recovery of dead body and PW1 having lastly seen the deceased alive in the company of present accused persons. Possibility of the fact that in between this period, the deceased having met a number of persons before his death. There is no evidence to show presence of accused persons soon before the death of Kailash. Hence, it would not be safe to rely upon the testimony of this witness for convicting the accused appellants. The call details of the present appellants along with Rukaiya (PW1) and others cannot be taken as a conclusive evidence to show that the present appellants were involved in the murder of Kailash because admittedly, the deceased was known to the appellants and therefore, telephone conversation was not unusual between the persons who are known to each other. The same does not help the prosecution for maintaining conviction in the present case. 21. The Hon'ble Supreme Court in Criminal Appeal No.630/2009 (Ganpat Singh vs. State of M.P.) decided on 19.09.2017 too has held as under: "9. There are no eye-witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a two-fold requirement. The same does not help the prosecution for maintaining conviction in the present case. 21. The Hon'ble Supreme Court in Criminal Appeal No.630/2009 (Ganpat Singh vs. State of M.P.) decided on 19.09.2017 too has held as under: "9. There are no eye-witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a two-fold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the Accused must be established by the prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the Accused. The principle has been consistently formulated thus: The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence. 12. An important circumstance which weighed with the High Court was that the body of the deceased was recovered at the behest of the Appellant. There is a manifest error on the part of the High Court in arriving at this conclusion since the record would indicate that the body of the deceased was recovered several months before the arrest of the Appellant. The mere circumstance that the Appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder in this case. The lapse of time between the point when the Appellant was last seen with the deceased and the time of death is not minimal. The time of death was estimated to be between two to four weeks prior to the recovery of the body". 22. The Hon'ble Supreme Court vide judgment dated 23.05.2017 rendered in Criminal Appeal No.560/2014 (Anjan Kumar Sharma & Ors. vs. State of Assam) held as under:- "21. The time of death was estimated to be between two to four weeks prior to the recovery of the body". 22. The Hon'ble Supreme Court vide judgment dated 23.05.2017 rendered in Criminal Appeal No.560/2014 (Anjan Kumar Sharma & Ors. vs. State of Assam) held as under:- "21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction". 23. As far as recovery of weapons of offence is concerned, the same are recovered from an open place although on the information of the accused persons under section 27 of the Evidence Act but the same is not supported by the witnesses of the recovery i.e. PW4 Manish and PW5 Ajay Dutt as they have been declared hostile. 24. We also find from the statements of PW10 Kailash Soni who is Investigating Officer in the present case which shows or suggests that there are corroborating evidence in the present case in support of recoveries effected in the present case, especially when the witnesses of the recovery have been declared hostile. It is settled law that evidence of the last seen and recovery can add corroboration to the substantive piece of evidence adduced which connects a person with the crime in question unless there is no substantive piece of evidence to connect a person with the crime in question, the recoveries of its own and evidence of last seen of its own cannot solely be made the basis for conviction. For convicting a person, substantive piece of evidence has to come on record, in our considered opinion, the same is missing in the present case. 25. It is also a fact that owner of the liquor shop Mangi Lal (PW12) from whom two bottles of Beer and one quarter of Whisky were purchased has been declared hostile as he has not supported the prosecution case. 26. 25. It is also a fact that owner of the liquor shop Mangi Lal (PW12) from whom two bottles of Beer and one quarter of Whisky were purchased has been declared hostile as he has not supported the prosecution case. 26. Further, the finger prints on the bottles of the Beer also leads to no conclusion as the report of FSL suggests that there are no clear finger prints on the bottles which may be matched with the chance prints of concerned persons, therefore, FSL report is also not supporting the case of the prosecution to connect the appellants with the recovery of bottles of Beer from the place of the incident. 27. So far as motive of murder in the present case is concerned, neither Seema wife of deceased Kailash has been produced in the witness box nor any Sim or telephone was recovered from her. Even the theory of illicit relationship between Seema and accused Phoru Lal has not been established by the prosecution in the present case. 28. The Hon'ble Supreme Court in the case of Sonu vs. State of Haryana; AIR 2017 SC 3441 has held that in a case of circumstantial evidence certain principles are to be followed which are as under: "1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established. 2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 4. The circumstantial evidence in order to sustain conviction must be complete and incapable or explanation of any other hypothesis than that of the guilt of the accused and such evidence should not be consistent with the guilt of the accused but should be inconsistent with this innocence." 29. In the present case, the chain of circumstantial evidence is absolutely missing/the prosecution story is not corroborated by the statements of prosecution witnesses, recovery of articles is highly doubtful, the prosecution has miserably failed to prove the alleged motive. The offence alleged against the appellants has not been proved beyond all reasonable doubts. 30. In the present case, the chain of circumstantial evidence is absolutely missing/the prosecution story is not corroborated by the statements of prosecution witnesses, recovery of articles is highly doubtful, the prosecution has miserably failed to prove the alleged motive. The offence alleged against the appellants has not been proved beyond all reasonable doubts. 30. Resultantly, on the discussion made above, benefit of doubt is given to the accused appellants and thereby the appeal preferred by the appellants is allowed and the judgment of conviction and order dated 19.11.2016 passed by Learned Additional Sessions Judge No.1, Nimbahera District Chittorgarh is set aside and the appellants are acquitted of the charge leveled against them. The appellants be set at liberty forthwith if not required in any other case.