JUDGMENT : MD. MUMTAZ KHAN, J. 1. This appeal has been preferred by the appellant assailing the order of conviction and sentence dated August 18, 2004, passed by the learned Additional District and Sessions Judge, 1st Fast Track Court, Alipurduar in Sessions Trial No. 20 of 2004 arising out of Sessions Case No. 64 of 2004 whereby appellant was convicted and sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/- in default to suffer imprisonment for one year more for the commission of offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC) with a direction for set off in terms of provision of Section 428 of the Code of Criminal Procedure read with Section 433A of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). 2. The case of the prosecution, in brief, is as follows: On February 25, 2004 on receipt of a telephonic information about murder of a person PW-12 along with PW-11 went to Patkapara Tea Garden. On reaching there, PW-2 submitted a written complaint (Ext.1) to the effect that in the morning he came to know from his mother (PW-1) that there was a quarrel between her and the appellant. Appellant called his brother Dhuma Oraon (victim) and in the early morning his brother's dead-body was found lying on the back side of temple of Goddess Durga. PW-12 then forwarded the complaint to the P.S. for starting a case and endorsed the case to PW-11 for investigation. On the basis of that complaint, PW-9 started Alipurduar P.S. Case No. 45 dated February 25, 2004 under Section 302 IPC against the appellant. 3. On the same date (February 25, 2004) PW-11 held inquest over the dead-body of the victim in presence of PW-2 and others and prepared a report (Ext.2/2) and thereafter, sent the dead-body of the deceased to the Alipurduar Sub-Divisional Hospital Morgue for postmortem examination. 4. On the same date PW-5 conducted postmortem examination over the dead-body of the victim and during postmortem examination he found deep cut penetrating injuries on the person of the deceased from below sternum to umbilicus seven in number and opined that the death was due to cardio respiratory failure due to shock, excessive blood loss due to the above injuries which were ante mortem and may be homicidal in nature. He also opined that those injuries might have been caused by sharp cutting weapon. After post mortem examination he prepared a report (Ext.4). During postmortem examination he found smell of alcohol in the stomach of the deceased. 5. PW-11, thereafter on completion of investigation submitted charge sheet against the appellant under Section 302 of the IPC. 6. On June 29, 2004 charge under Section 302 IPC was framed against the appellant and on his pleading not guilty to the charge, trial commenced. 7. To prove the case, prosecution examined 12 witnesses and also produced and proved the written complaint, FIR, inquest report, seizure lists, PM report, rough sketch map with index etc. and thereafter on completion of trial and after examination of the appellant under Section 313 Cr.P.C. the learned trial judge passed the impugned judgment. 8. Mr. Kabir, learned advocate appearing for the appellant submitted that the judgment, order of conviction and sentence are not sustainable in law as there was no eyewitness to the crime and the prosecution has failed to complete the chain of circumstances, doubt with regard to the cause of death as the P.M. doctor himself was not sure whether death of the victim was homicidal or not, failure to recover the weapon of offence to connect the same with the murder, Alternatively, it was submitted that in case this Court found the appellant guilty of causing the death of the victim then at best provisions of 304 Part 1 IPC is attracted as nothing has been brought on record to show that the appellant had any motive or any intention to kill the victim. 9. Mr. Kabir relied on the decisions of Anjan Kumar Sharma and Others vs. State of Assam, AIR 2017 SC 2617 , Kanhaiya Lal vs. State of Rajasthan, (2014) 4 SCC 715 , Pohalya Motya Valvi vs. State of Maharashtra, (1980) 1 SCC 530 , Niranjan Panja vs. State of West Bengal, (2010) 6 SCC 525 , Rambraksh vs. State of Chhattisgarh, (2016) 12 SCC 251 , State of Goa vs. Sanjay Thakran and Others, (2007) 3 SCC 755 , Sanjeev vs. State of Haryana, (2015) 4 SCC 387 , Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 6 SCC 312 and Gurwinder Singh and Others vs. State of Punjab and Others, AIR 2018 SC 2277 in support of his submissions. 10. Mrs. 10. Mrs. Sinha, learned advocate appearing for the State submitted that though there are certain contradictory statements and embellishments but those are not so vital to disbelieve the prosecution case. She further submitted that though the time of death is not available but the time since the victim was last seen together with the appellant and death is not too long and there is no evidence that the victim was seen in the company of someone else. According to Mrs. Sinha, the circumstantial evidence available on record unerringly points towards the involvement of the appellant in the commission of murder of the victim. She further submitted that there was no scope to recover weapon of offence as the appellant was absconding for more than two months. 11. We have considered the submissions of learned advocates appearing for the respective parties and have perused the evidence and documents on record to consider the propriety of the impugned judgment. 12. Learned court below took into consideration the evidences of PW-1, PW-2, PW-3, PW-4, PW-6 and PW-10 to arrive at the conclusion that on the relevant night victim was and appellant were last seen together and on the next morning dead-body of the victim was found and after the incident appellant absconded from the village and all the circumstances taken together lead to conclude that it the appellant and none else has committed the murder of the victim and accordingly passed the impugned judgment. 13. PW-1 is the mother of the victim who has deposed that on the relevant night appellant forcibly took away the victim from the house and thereafter her son did not return back home on that night and on the next morning her son's dead-body was recovered from back side of Durga Temple bearing several injuries on his chest and belly. According to her appellant killed her son for money though admitted during cross that she has not seen who killed the victim. PW-2 is another son of PW-1 and FIR maker. He is a post-occurrence witness. According to her appellant killed her son for money though admitted during cross that she has not seen who killed the victim. PW-2 is another son of PW-1 and FIR maker. He is a post-occurrence witness. On the next morning after recovery of the dead-body of the deceased brother he heard from his mother (PW-1) that the appellant had come to her house on the previous night around 10-10.30 p.m. and called the deceased and thereafter his brother did not return back and on the next morning his dead-body was recovered by the side of the Durga Temple of the village. PW-1 has nowhere deposed that she narrated the incident of appellant taking away the victim from her house to PW-2. PW-3, sister-in-law of the victim, is also a post occurrence witness. Her evidence with regard to leaving of the victim with the appellant is also hearsay one. She too reportedly heard from PW-1 but PW-1 has nowhere deposed that she narrated the incident of appellant taking away the victim from her house to PW-3. PW-4 is the sister of the victim who was reportedly present in the house on the relevant night and saw the appellant to take away the victim from the house for taking liquor. PW-5 is the Autopsy Surgeon who conducted postmortem examination over the dead-body of the victim and during postmortem examination he found deep cut penetrating injuries of about 1" x ½" x 6" from below level of sternum to umbilicus 7 in number and opined that the death was due to cardio respiratory failure due to shock, excessive blood loss which were ante-mortem in nature and may be homicidal caused by sharp cutting weapon. PW-6 is a co villager and ex Panchayat Pradhan. He is also a post occurrence witness. He too reportedly heard from PW-1 that appellant came to her house on the previous night and called the victim and thereafter both went away but PW-1 has nowhere deposed that she narrated all these to him. PW-7 is a co-villager. He has not stated anything with regard to the murder of the victim or involvement of the appellant in the commission of murder of the deceased. He was not declared hostile by prosecution. PW-8, a co-villager did not support the prosecution case for which he was declared hostile by the prosecution. PW-7 is a co-villager. He has not stated anything with regard to the murder of the victim or involvement of the appellant in the commission of murder of the deceased. He was not declared hostile by prosecution. PW-8, a co-villager did not support the prosecution case for which he was declared hostile by the prosecution. PW-9 is the recording officer who on receipt of the complaint started the case and filled up the formal FIR. PW-10 is a co- villager who reportedly saw the victim and the appellant in his house on the relevant night at about 10.30 p.m. in a drunken condition. He then went to sleep and on the next morning he heard that deceased was murdered and his dead-body was lying by the side of the Durga Temple. PW-12 is the then Inspector-in-Charge of the Alipurduar P.S. who received the complaint at the place of occurrence from PW-1 and forwarded the same to the Police Station for staring a case and endorsed the case to PW-11 for investigation. PW-11 is the Investigating Officer who on receiving the telephonic information about murder went near the Durga Temple at Patkapara Tea Garden along with PW-12 and going there found the dead-body of the deceased. He made inquest and sent the dead-body for post mortem examination, prepared rough sketch map with index, examined witnesses and recorded their statement under Section 161 Cr. P.C. seized blood-stained earth and controlled earth by a seizure list, also seized wearing apparels of the deceased by another seizure list, collected the postmortem report and thereafter on completion of investigation submitted charge-sheet. According to him PW-12 received one Telephonic Message at 7.25 a.m. and GDE No. 742 was recorded and after that they left the Police Station. Admittedly, he did not send the seized blood-stained mud or other seized articles to FSL. 14. Thus from the above, we find that none of the witnesses examined by the prosecution are the witnesses of the occurrence and the entire case is based on the theory of last seen together and reported absconsion of the appellant after the incident. 15. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstance are found to be incompatible with the innocence of the accused. 15. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstance are found to be incompatible with the innocence of the accused. The chain of circumstance should be of a conclusive nature and must be complete and most clearly point to the guilt of the accused. 16. Regarding the story of last seen of the victim in the company of the appellant, we find that prosecution has relied on the evidence of PW-1, mother of the deceased, PW-4, sister of the deceased, and PW-10 a co-villager. PW-1 has deposed that on the relevant night at about 10.00 p.m. appellant came to her house and almost forcibly took away her son, the victim, and thereafter her son did not return back home on that night and on the next morning her son's dead-body was recovered from back side of Durga Temple bearing several injuries on his chest and belly. She also deposed that her son had Rs. 5,000/- with him as he had meat business for which he had taken advance. She further deposed that the appellant killed her son for money. During cross she admitted that she had not seen the money nor could say from whom her son took money. She also admitted that when appellant took her son there was no altercation and her son also did not shout as he had a friendship with the appellant. She admitted that she has not seen the appellant kill her son nor can say where and how her son was killed. The above statements of PW-1 also found corroboration from her daughter, PW-4. PW-4 has also deposed that on the relevant night at about 10.00 p.m. her deceased brother back came back home after consuming liquor. Then appellant came to their house and asked the deceased to have another bottle of liquor and caught hold the hand of her brother and asked him to go with him. Thereafter, in the morning she heard that her brother was murdered and as such she went to Durga Temple of their village and found dead-body of her brother lying there bearing several injuries over his chest and belly. During cross-examination she admitted that her deceased brother used to drink but she had not seen with whom he used to drink. Thereafter, in the morning she heard that her brother was murdered and as such she went to Durga Temple of their village and found dead-body of her brother lying there bearing several injuries over his chest and belly. During cross-examination she admitted that her deceased brother used to drink but she had not seen with whom he used to drink. The evidences of PW-2, PW-3 and PW-6 with regard to the claim of last seen together are only hearsay being not corroborated by PW-1 from whom they reportedly heard and as such can not be taken into account. 17. PW-10 has deposed that on the relevant night at about 10.30 p.m. appellant and the deceased came to his house and they were in drunken condition and they remained at his house for about 10 minutes. He then went to sleep and on the next morning he heard that deceased was murdered and his dead-body was lying by the side of the Durga Temple. During cross examination he admitted that on the relevant night he slept in a nearby house at about 9.00 p.m. and came back home at about 10.00/10.30 p.m. and coming to his house he saw the appellant and the deceased in his house. During their stay he did not hear them quarreling. He also admitted that other persons also came to his house. Upen Roy and others also come to his house. So, as per his version on the relevant night appellant and victim had been to his house and they were in a drunken condition. It has also come out from his evidence that other people also came to his house. Even accepting the claim of PW-1 and PW-4 that the deceased did accompany the appellant on the relevant night from his house for taking drink but this circumstances by itself does not lead to the irresistible conclusion that the appellant had killed the victim and thrown the dead-body near the Durga Temple of their village. It can not be presumed that the appellant was responsible for the murder, though grave suspicion arises against him. Even if we believe PW-10, then in that case too both victim and appellant were found in drunken condition in his house. It can not be presumed that the appellant was responsible for the murder, though grave suspicion arises against him. Even if we believe PW-10, then in that case too both victim and appellant were found in drunken condition in his house. He has nowhere stated that he saw the victim to go out with the appellant from his house nor stated who were the other persons who had come to his house on the relevant night. 18. Thus from the above, we find that the claim of PW-1 and PW-4 with regard to the story of victim last seen together with the appellant comes to an end at the house of PW-10 where they were seen in a drunken condition. Moreover, circumstances of last seen together does not by itself and necessarily lead to the interference that it was the appellant who committed the crime. Reference may be made to the decision of Kanhaiya Lal vs. State of Rajasthan, (2014) 4 SCC 715 . 19. In such circumstances, no presumption could be drawn on the issue of last seen together merely relying on such statements of above witnesses. Learned court below completely overlooked the above aspect. As such the decision of the learned court below on this score is not sustainable in law. 20. Another circumstances which the prosecution has tried to prove against the appellant is that he was absconding from his house on the relevant night. In this regard prosecution has relied on the evidence of PW-3, PW-4, PW-6 and PW-11. According to PW3, since after death of her brother-in-law, appellant went away from the place of occurrence and came back home after two months. According to PW4, after the incident appellant left the village and came back after 2/2½ months and was caught by the police. According to PW-6, since after the incident appellant was away from the village and two months thereof he returned back and asked him whether any police case was instituted against him or not and he along with his sister got the appellant surrendered at the P.S. He was the then Pradhan of the village. He has also deposed that victim was permanent worker of Patkapara tea garden while appellant was a temporary worker of that tea garden and he used to reside in the house of his sister. He has also deposed that victim was permanent worker of Patkapara tea garden while appellant was a temporary worker of that tea garden and he used to reside in the house of his sister. According to PW-11, appellant left the village, so he failed to arrest him and then showing him absconder submitted charge- sheet. During cross-examination he stated that he visited the place of occurrence for arresting the appellant. There was no evidence that he visited the house of the appellant or the house of his sister, where appellant used to reside, to arrest him but he was not found there. On the other hand from the evidence of PW-6 it appears that appellant after coming to know from him about starting of case against him surrendered at the P.S. Moreover, mere absconding by itself does not necessarily lead to a firm conclusion of guilt of mind unless corroborated from other circumstances. It is a settled legal position that mere abscondence can not be taken as a circumstance to draw an adverse inference. Reference may be made to the decision of Sk. Yusuf vs. State of West Bengal, (2011) 11 SCC 754 . 21. Thus, we find that the circumstance from which the conclusion of guilt is to be drawn has not been fully established. 22. Furthermore, we find from the evidence on record that the victim and the appellant were friends and they had cordial relationship. None of the witnesses has ever seen them quarrel with each other. PW-1 tried to bring some motive behind the death of the victim. But the claim of PW-1 that the appellant killed her son for money did not find corroboration from any quarter nor even from the investigating officer. Even she herself admitted that she had not seen the money nor could say from whom her son took the money in question. The entire case of the prosecution, as it appears, is based on suspicion. The conviction of the appellant can not be maintained merely on suspicion, however, strong it may be. 23. In view of the foregoing discussions, we find that the prosecution has failed to establish the chain of circumstances which could link the appellant with the crime. The entire case of the prosecution, as it appears, is based on suspicion. The conviction of the appellant can not be maintained merely on suspicion, however, strong it may be. 23. In view of the foregoing discussions, we find that the prosecution has failed to establish the chain of circumstances which could link the appellant with the crime. In this background, we are of the considered opinion that learned court below has fallen in error in coming to the conclusion that the prosecution has established its case based on circumstantial evidence beyond all reasonable doubts. 24. In the result appeal is allowed and the conviction and sentence imposed on the appellant/accused Parmeshwar Munda are set aside and he is acquitted of the charge by giving him benefit of doubt. He is directed to be released from the custody forthwith, if his detention is not required otherwise. 25. Send back the Lower Court's Records along with a copy of this judgment to the learned court below forthwith by a special messenger for taking necessary action in this regard. 26. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. I agree – Jay Sengupta, J.