JUDGMENT : GOVERDHAN BARDHAR, J. 1. The instant criminal leave to appeal has been filed by the State of Rajasthan against the impugned judgment dated 12.04.2016 passed by the learned Addl. Sessions Judge, No. 2, Kota ('the learned trial court' for short) in Sessions Case No. 29 of 2013, whereby the accused respondent has been acquitted of the charges framed against him under Sections 302, 201, 364 and 120B IPC. 2. The brief facts of the prosecution case are that on 18.06.2012 complainant Ravindra Nagar s/o Gopi Ballabh submitted a complaint under section 190 Cr.P.C , 1973in the Court of learned Addl. Civil Judge (Jr. Division) & Judicial Magistrate No. 1, South Kota against Virendra Khati (accused respondent) and Co-accused Deepak Khati for the offences under sections 302 and 201 read with section 120B IPC to the effect that accused Virendra Kumar Khati @ Veeru and his father were known to each other and there were business relations between them. The books of accounts of the business were being maintained by his deceased father Gopi Vallabh. From time to time his father used to share and discuss about business activities carried out by them with family members. His father and mother used to carry on business activities in Kota. He also told the fact that despite making demand accused Virendra Nagar has not agreed to pay the due amount to him. Hence, there was personal enmity between them. His father shared and narrated about all this when disputes cropped up between them. On 26.04.2012, accused called his father from his mobile No. 9772044647. But his father Gopi Vallabh was not interested in going. But when he continuously called, his father relented and at last, his father went to the house of accused saying that if anything goes wrong he would make a call. After leaving house, his father did not return back. Thus, he was lastly seen in company of the accused. When he enquired about his father, the accused was unable to give any satisfactory reply. Thus, he lodged a missing report of his father on 7.5.2012 at Police Station Kunhadi. 3. After leaving house, his father did not return back. Thus, he was lastly seen in company of the accused. When he enquired about his father, the accused was unable to give any satisfactory reply. Thus, he lodged a missing report of his father on 7.5.2012 at Police Station Kunhadi. 3. The learned court below sent the complaint for investigation under section section 156(3) Cr.P.C, 1973 to the Police Station Kunhadi, District Kota City for registration of the FIR, upon which an FIR No. 384/2012 came to be registered for the offences under sections 302, 201 and 120B IPC. Police after investigation submitted charge-sheet against the accused respondent for the offences under sections 302, 364, 201, 120B & 34 IPC before the learned court below and co-accused Deepak Khati being minor submitted charge-sheet against him for the aforesaid aforesaid offences in the competent court. The case was committed to the Court of Session being triable under section 302 IPC from where the case was committed to the competent court for trial. 4. The learned trial court framed substantive charge against the accused respondent for the offences under sections 302 or 302 read with 34, 201, 364 and 120B IPC, who denied the charges and claimed to be tried. In support of prosecution case, statements of twenty seven witnesses were got recorded and fourty three documents were got exhibited. 5. Thereafter, the statement of the accused respondent was recorded under section 313 Cr.P.C., 1973 In defence the accused respondent produced five witnesses and got exhibited six documents. 6. Learned trial court after hearing the final arguments of both the parties, acquitted the accused respondent for the charges levelled against him vide impugned judgment dated 12.04.2016. 7. Mrs. Soniya Shandaliya, learned Public Prosecutor appearing for the State has argued that the learned trial court has erred in considering the statements of prosecution witnesses and documents by which the offence against the accused respondent is well proved but the learned trial court acquitted the accused respondent from the charges levelled against him, which is wrong and illegal. Learned trial court has erred in believing on the statement of PW4-Ravindra Nagar (complainant and son of the deceased Gopi Vallabh). From the statement of this witness it is clear that unfortunately, business partnership began to sour between his father and accused respondent. Learned trial court has erred in believing on the statement of PW4-Ravindra Nagar (complainant and son of the deceased Gopi Vallabh). From the statement of this witness it is clear that unfortunately, business partnership began to sour between his father and accused respondent. Learned Public Prosecutor argued that all the books of accounts of their business were being maintained by his deceased father Gopi Vallabh. On 26.04.2012 accused called his father continuously from Mobile No. 9772044647, however, his father was interested to go there. But he went there and did return. Thereafter, a missing report was submitted on 7.5.2012 at Police Station Kunhadi. Learned Public Prosecutor argued that the learned trial court has erred in considering the fact that the accused respondent initially made up a conspiracy against the deceased and killed him because there were enmity between them due to professional and personal reasons. Learned Public Prosecutor further argued that on the basis of bones, wrist watch of the accused and call details and location of mobiles of accused and the deceased, the offence is proved against the accused respondent. From the call detail and location of the mobiles of accused and deceased it is also clear that the last time they were together. From this, it is clear that accused Virendra Nagar has committed the crime but the learned trial court acquitted the accused respondent from the charges levelled against him. 8. Heard learned Public Prosecutor appearing for the State, perused the impugned Judgment and gone through the entire material made available to us including the record of the case. 9. As per the case of the prosecution, the case of the prosecution hinges on circumstantial evidence because prior to the alleged incident the deceased and the accused respondent were last seen together, from the testimony of Ravindra Nagar (PW4), Murli Manohar (PW5), Hemlata (PW6), Raju Suman (PW9) and Gyani Bharat Panchal (PW16). The deceased left home on call made by the accused and thereafter did return. The complainant Ravindra Nagar (PW4) while reiterating the contents made in complaint (Ex.P12) in examination-in-chief he deposed that on 24.04.2012 accused respondent called his father by making a call for settlement of account. His father refused to go there. Again on making call by accused respondent to his father in response, his father said the accused respondent himself to come at home but accused respondent did come. His father refused to go there. Again on making call by accused respondent to his father in response, his father said the accused respondent himself to come at home but accused respondent did come. But the accused respondent again made a call to his father that he was coming and told his father to come. Thereafter his father left the home and told his mother that accused respondent had called for settlement of account so he is going to take money from the accused respondent and if any thing goes otherwise, he would inform on phone. Thereafter his father did make any call in the evening. Then he made a call to his father, he received nobody's response. Thereafter, he asked the accused respondent but accused respondent told that his father never came. In cross-examination Ravindra Nagar (PW4) admitted that on 26.04.2012 when his father left the home, no conversation took place on phone. Ravindra Nagar (PW4) also admitted that on 26.04.2012 accused respondent did come at their home. Ravindra Nagar (PW4) admitted that in Ex.P17 he did allege the fact of committing murder of his father by the accused respondent or anybody else. He also admitted that after writing Ex.P17 the police did make enquiry so thereafter, he submitted the complaint in the Court. 10. Murli Manohar (PW5) in examination-in-chief deposed that on 25.04.2012 he made a call to Gopi Vallabh. Gopi Vallabh assured him to come on the next day (tomorrow). When on the next day Gopi Vallabh did come to the village then he made a call to Gopi Vallabh on 26.04.2012 which was picked up by Ravindra but no conversation took place with Gopi Vallabh. Murli Manohar (PW5) further deposed that when on 30.04.2012 at about 2:30 P.M he made a call on the mobile of Gopi Vallabh then somebody picked up the phone who disclosed his name as Virendra Khati (accused respondent) and told that Gopi Vallabh is lying in the vehicle in intoxicated condition. On hearing so, he disconnected the phone. Thereafter, he tried to make a call but his phone could connect. In cross-examination Murli Manohar (PW5) admitted that on 30.04.2012 when he made a call then person speaking did disclose his name. On hearing so, he disconnected the phone. Thereafter, he tried to make a call but his phone could connect. In cross-examination Murli Manohar (PW5) admitted that on 30.04.2012 when he made a call then person speaking did disclose his name. Hemlata (PW6), wife of deceased Gopi Vallabh and mother of complainant Ravindra Nagar in examination-in-chief deposed that quarrel took place between accused respondent and her husband and while going, her husband told that he was called by the accused respondent. Hemlata (PW6) further deposed that when her husband did return, her son submitted the missing report. The prosecution for proving the factum of circumstances of last seen of deceased Gopi Vallabh with the accused respondent, got examined Raju Suman (PW9) but Raju Suman (PW9) did support the prosecution story and turned hostile. In cross-examination Raju Suman (PW9) deposed that complete part of C to D, E to F and G to H of police statement (Ex.P21) is wrong. Gyani Bharat Panchal (PW16) in examination-in-chief deposed that he had last conversation with the deceased on 25th and 26th. Deceased informed that he had gone ahead of Rawatbhata but in cross-examination (PW16) deposed that Gopi Vallabh told him that he was collecting the amount and he never saw at any point of time Gopi Vallabh and accused respondent together. Gyani Bharat Panchal (PW16) admitted that he had talked Gopi Vallabh as he used to talk him in routine manner. Statements of above prosecution witnesses Ravindra Nagar (PW4), Murli Manohar (PW5), Hemlata (PW6), Raju Suman (PW9) and Gyani Bharat Panchal (PW16) of last seen were corroborating to each other. Thus, the prosecution failed to establish factum of circumstances of last seen together with the accused. 11. There being no eye-witness in the instant case, the entire case of the prosecution rests upon the circumstantial evidence. Circumstantial evidence is evidence of relevant facts from which, one can, by process of reasoning, infer about the existence of facts in issue or factum probandum. 11. There being no eye-witness in the instant case, the entire case of the prosecution rests upon the circumstantial evidence. Circumstantial evidence is evidence of relevant facts from which, one can, by process of reasoning, infer about the existence of facts in issue or factum probandum. In Hanumant, son of Govind Nargundkar v. State of Madhya Pradesh AIR 1952 SC 343 , this Court 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 hypotheses of the guilt of the accused. Again, the circumstances would be of a conclusive nature and tendency and they should be such as to exclude but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as 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." Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye-witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, accused may be convicted on the basis of such circumstantial evidence. 12. So far as recovery of bones (Ex.P3) of the deceased Gopi Vallabh by the police on 24.01.2013 on the basis of the information given by the accused respondent from the forest of Eklingpura is concerned, prosecution produced Durga Shankar (PW3), Ravindra Nagar (PW4), Ram Charan (PW24) and I.O Bhagwat Singh Hingad (PW18). Durga Shankar (PW3) in examination-in-chief deposed that on Panchnama (Ex.P1), Phard Jabti human bones (Ex.P3), site-plan (Ex.4), seizure memo of clothes of deceased (Ex.P5) thereon bears his signatures. Durga Shankar (PW3) in examination-in-chief deposed that on Panchnama (Ex.P1), Phard Jabti human bones (Ex.P3), site-plan (Ex.4), seizure memo of clothes of deceased (Ex.P5) thereon bears his signatures. Durga Shankar (PW3) admitted that from the possession of accused respondent wrist watch (Ex.P7), mobile (Ex.P8) and motor-cycle (Ex.P9) were recovered. Durga Shankar (PW3) in cross-examination deposed that bones and clothes were lying separately and no article was there nearby the bones. Ravindra Nagar (PW4) in examination-in-chief deposed that on 24th he got an information to the fact that the accused had committed murder of his father. Thereafter, he went to Kota and the police persons took along-with to Eklingpura Ghata where accused respondent after giving information told that on this place he had consumed liquor and thereafter he pressed throat of accused and committed murder. The accused respondent at Karai told that the dead body was thrown this place. When the police persons and the accused respondent searched that place they found at the distance of 2-3 meter pent, T-shirt, piece of handkerchief and underwear in torn condition and after at some distance they found the bones. Ravindra Nagar (PW4) deposed that the clothes were identified belonging to his father. On counting of bones it were 23 in number. On the back side of pocket of pent there was purse and comb. On opening of purse on the upper pocket one photo of Guru Ramlal Siyag was there, in big pocket papers and amount was lying, on one piece of paper there was defect of calculation, on one piece of paper address was mentioned and in the purse there were some rupees. 13. Police as per present case recovered bones vide Ex.P3, site-plan Ex.P4, clothes vide Ex.P5, purse vide (Ex.P5) and purse vide Ex.P6. Ravindra Nagar (PW4) in cross-examination deposed that there was sand on the bones, bones were lying in an open place in one side, clothes were lying on other side. The police prepared all the papers at Ghati and all the things were brought by the police from Karai. Ram Charan (PW24) in examination-in-chief witnessed seizure of bones of deceased Gopi Vallabh vide Ex.P3, siteplan (Ex.P4), seizure of clothes of Gopi Vallabh (Ex.P5) and seizure of purse vide Ex.P6. Ravindra Nagar (PW4) also admitted that on the information given by the accused respondent, the police recovered one wrist watch (Ex.P7), mobile (Ex.P8) and motor-cycle (Ex.P9). Ram Charan (PW24) in examination-in-chief witnessed seizure of bones of deceased Gopi Vallabh vide Ex.P3, siteplan (Ex.P4), seizure of clothes of Gopi Vallabh (Ex.P5) and seizure of purse vide Ex.P6. Ravindra Nagar (PW4) also admitted that on the information given by the accused respondent, the police recovered one wrist watch (Ex.P7), mobile (Ex.P8) and motor-cycle (Ex.P9). Ravindra Nagar (PW4) in cross-examination deposed that the bones and other things of Gopi Vallabh were brought by the police persons and the police persons prepared the documents on the rock situated at Karai and he signed on the same. Ravindra Nagar (PW4) further deposed that there was sand on the bones. Hemlata (PW6) wife of deceased Gopi Vallabh and mother of complainant Ravindra Nagar (PW4) in cross examination admitted that from home her son Ravindra had taken with him the purse, watch and other things of her deceased husband Gopi Vallabh as the police persons summoned the same. Thus, the prosecution failed to prove the recovery of aforesaid articles at the instance and possession of the accused respondent. 14. Dr. Surendra Meena (PW2) and Dr. Williom (PW10) who conducted autopsy on the dead body of the deceased on 25.01.2013 opined cause of death of deceased Gopi Vallabh as under:- "We have the opinion that skeleton is of male and aged 40+5 years. The bones are more than 4-5 months old. No opinion can be given regarding cause of death. However, fimer sent for DNA trynping." 15. DNA report is (Ex.P39). As per the DNA report (Ex.P38) it is clear that the bones which were recovered from Eklkingpura vide (Ex.P3) are of deceased Gopi Vallabh. The prosecution failed to clear doubt about the skeleton and for this reason the accused respondent cannot be connected with the crime. 16. With regard to motive due to stranged business relation of accused respondent and deceased are concerned, the prosecution got recorded the statements of Ravindra Nagar (PW4), Hemlata (PW6), Dhanraj (PW11), Rinku (PW13), Ghanshyam (PW22) and Birdhi Lal (PW23). Ravindra Nagar (PW4) deposed that there was a dispute in between the accused respondent and the deceased regarding amount. But Hemlata (PW6) admitted that whenever the accused respondent used to make demand of amount from the deceased, the deceased used to became annoyed. Hemlata (PW6) also admitted that accused respondent gave Rs. 40,000/- for the treatment of her son. Ravindra Nagar (PW4) deposed that there was a dispute in between the accused respondent and the deceased regarding amount. But Hemlata (PW6) admitted that whenever the accused respondent used to make demand of amount from the deceased, the deceased used to became annoyed. Hemlata (PW6) also admitted that accused respondent gave Rs. 40,000/- for the treatment of her son. As per agreement (Ex.P14) the accused respondent and the deceased purchased a Maruti Van Car RJ-34UA-0298 in the sum of Rs. 1,65,000/- upon expending the money in equal share. The prosecution has brought any material on record that accused respondent had malicious intention to cause death of deceased. Thus, the prosecution has failed to establish the motive. Thus, the prosecution failed to prove the motive. 17. Merely because the accused respondent had called up the deceased, would lead to the conclusion that the accused respondent was involved in the alleged murder. After all the contents of the call are unknown. Therefore, what conversation had taken place between the accused respondent and the deceased cannot be deciphered. Last seen 18. In the case in hand, the prosecution on the basis of reliable evidence failed to establish that a missing person was seen in the company of the accused and was never seen thereafter. The Hon'ble Apex Court in Rambraksh @ Jalim v. State of Chhattisgarh, in Criminal Appeal No. 462 of 2016 (Arising out of SLP (Crl.) No. 1962 of 2015) decided on 12.05.2016 has held ad-infra:- "It is trite that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, 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 perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused." 19. To record a conviction, the last seen together itself would be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused." 19. It is mandatory on the part of the prosecution to establish and prove the criminal culpability beyond reasonable doubt to fasten guilt but the afore-discussed evidence reflects that prosecution has miserably failed to adduce material and reliable evidence against the respondent. Nothing is positive in the evidence of the prosecution to connect the accused with the alleged crime. 20. In the case of Sukliya v. State of Madhya Pradesh reported in (2010) 15 SCC 745, the Hon'ble Apex Court has held as under :- "6. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other therefore his innocence, the view which is favourable to the accused should be adopted". 21. In the aforesaid scenario, we are of the considered view that prosecution has not succeeded in establishing its case beyond contours of reasonable doubt, so we do not find any reason to disturb the findings of the trial court. Therefore, the criminal leave to appeal filed by the State against acquittal is devoid of any merit, hence the same is dismissed.