JUDGMENT : 1. Regard being had to the commonality of issue and since arising from the same judgment dated 20/5/2009 passed by Sessions Judge, Morena, both these appeals (Cr. A. No. 394/2009 and 500/2009) were heard analogously and decided by this common judgment. For convenience sake, facts from Criminal Appeal No. 394/2009 are being taken. 2. In Criminal Appeal No. 394/2009, appellant-Balveer Singh is aggrieved by judgment dated 20/05/2009 passed by Sessions Judge, Morena in Sessions Trial No. 69/2006; whereby, appellant/accused has been convicted for offence under Section 302 of IPC and awarded punishment for life imprisonment alongwith fine of Rs. 5,000/- and in default of payment of fine to further undergo one month's rigorous imprisonment. While passing the judgment, trial Court acquitted co-accused Radheshyam from charge of offence under Section 302/34 of IPC and acquitted Balveer Singh from charge of offence under Section 25/27 of the Arms Act, therefore, State has preferred Criminal Appeal No. 500/2009 against acquittal so recorded. 3. As per the case of prosecution, on 2/7/2005, Balveer Singh alongwith co-accused Radheshyam visited the house of deceased Surendra at 7 pm where he met his father Antram (PW/1) as well as Surendra and called Surendra for conversation. After 15-20 minutes of conversation, appellant and co-accused took Surendra alongwith them and later on appellant-Balveer Singh fired two gunshots from his country made pistol (Katta) and fled. Since, cousin of Surendra; namely Ravi Rajpoot was going from the same road, where this incident took place, therefore, he alongwith some other persons tried to take Surendra to hospital in Tractor Trolley but meanwhile police jeep came to the spot and took injured Surendra to Police Station, where FIR was registered at 7.50 pm. 4. After registration of FIR, injured was taken to Government Hospital, Jaura, where dying declaration was recorded and after primary treatment, he was referred to District Hospital, Morena but in transit, he succumbed to the injuries and found dead at District Hospital, Morena. Case was registered and investigation carried out. 5. Balveer Singh was arrested on 29/05/2006, after almost 11 months from the date of incident and Katta was seized on his information vide Ex. P/9 on 1/6/2006. Another co-accused Radheshyam was arrested on 3/1/2006 after statement of Uttam Singh (PW/6) on 2/1/2006. Case was registered and investigation carried out. 5. Balveer Singh was arrested on 29/05/2006, after almost 11 months from the date of incident and Katta was seized on his information vide Ex. P/9 on 1/6/2006. Another co-accused Radheshyam was arrested on 3/1/2006 after statement of Uttam Singh (PW/6) on 2/1/2006. Statement of father of deceased namely Antram was taken as PW/1, in which he referred the incident of last seen; whereby, both the accused took deceased Surendra alongwith them and evidence of Ravi Rajpoot was taken as PW/2 as eye witness. Evidence of Uttam Singh (PW/6), uncle of deceased was taken for purpose of extra judicial confession of co-accused Radheshyam. After investigation, charge-sheet was filed. 6. Prosecution lead evidence of total 17 witnesses in which some were eye-witnesses, two were for the purpose of last seen theory and some were departmental witnesses. Rakesh, brother of Surendra was Court Witness, CW/1. From defence side, one defence witness was examined. 7. After appreciating the evidence, documentary as well as oral; led by the parties and necessary facets of the controversy, trial Court acquitted the co-accused-Radheshyam from charge of offence under Section 302/34 of IPC and acquitted the present appellant-Balveer Singh from charge of offence under Section 25/27 of the Arms Act but trial Court convicted him for offence under Section 302 of IPC. Incidentally, trial Court disbelieved the prosecution story on the basis of dying declaration, eye witness account, seizure of weapon and extra judicial confession of co-accused Radheshyam but only on the basis of last seen theory, convicted the appellant-accused Balveer Singh for offence under Section 302 of IPC and sentenced him as mentioned hereinabove. 8. It is the submission of learned counsel for the appellant that trial Court erred in passing the impugned judgment convicting the present appellant-Balveer Singh under Section 302 of IPC because after full fledged trial, trial Court not only acquitted the co-accused Radheshyam from the charges but also acquitted the appellant-Balveer Singh from charge under Section 25/27 of the Arms Act while disbelieving the theory of prosecution propounded through eye-witness account. He specifically stressed on the lack of motive and submits that prosecution could not establish the motive for killing the deceased, therefore, in absence of any motive, especially in the case of circumstantial evidence, only on the basis of last seen theory, conviction cannot be recorded. He specifically stressed on the lack of motive and submits that prosecution could not establish the motive for killing the deceased, therefore, in absence of any motive, especially in the case of circumstantial evidence, only on the basis of last seen theory, conviction cannot be recorded. In the case in hand, eye-witness account has been disbelieved and therefore, case rests only on last seen theory, therefore, motive assumes importance. He relied upon Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 , State of Karnataka Vs. M.V. Mahesh, 2003 (1) Crimes 459 (SC) and Rambraksh alias Jalim Vs. State of Chhattisgarh, AIR 2016 SC 2381 in support of his submissions. 9. It is further submitted that learned trial Court from para 19 to 27 marshaled the evidence of Ravi Rajpoot (PW/2) and disbelieved him, therefore, eye-witness account of prosecution lacks credence. He relied upon Jarnail Singh and Ors Vs. State of Punjab, (2009) 9 SCC 719 in this regard. According to him, learned trial Court in para 48 disbelieved the version of Uttam Singh (PW/6) and the extra judicial confession made to him by co-accused Radheshyam. Similarly, he referred the findings given by learned trial Court from para 28 to 42 regarding dying declaration and disbelieved both the dying declarations. Therefore, appellant deserves acquittal from all charges. 10. Per contra, learned counsel for the respondent/State opposed the prayer and submits that last seen theory has been established by prosecution through evidence of Antram (PW/1) and therefore, on the basis of last seen theory, trial Court rightly convicted the appellant-Balveer Singh and erred in recording acquittal of co-accused Radheshyam because Ravi Rajpoot (PW/2) witnessed the presence of Radheshyam on scene of crime and he was riding the motorcycle, therefore, he shared common intention with prime accused appellant-Balveer Singh. He also referred testimony of Uttam Singh (PW/6) regarding extra judicial confession made by Co-accused Radheshyam before said witness about his involvement in the crime. 11. Learned counsel for the complainant also opposed the prayer and submits that dying declaration was recorded by Dr. Himanshu Sharma (PW/4), who was an independent witness and he had no interest to implicate the accused on false pretext. He relied upon Vijay Vs. Laxman and Anr., 2013 (3) SCC (Crimes) 246, and State of Karnataka Vs. Shariff, AIR 2003 SC 1074 . Himanshu Sharma (PW/4), who was an independent witness and he had no interest to implicate the accused on false pretext. He relied upon Vijay Vs. Laxman and Anr., 2013 (3) SCC (Crimes) 246, and State of Karnataka Vs. Shariff, AIR 2003 SC 1074 . Learned counsel also raised the point about the test identification parade conducted by prosecution; wherein, co-accused Radheshyam was duly identified by Ravi Rajpoot (PW/2). Trial Court after appreciating the evidence led by prosecution rightly convicted the appellant-Balveer Singh. He supported the impugned judgment and prayed for dismissal of the appeal. 12. Heard learned counsel for the parties at length through physical hearing mode and perused the record. 13. This is a case, where, appellant is facing conviction for offence under Section 302 of IPC. Certain dates and events are important for appreciating the controversy:- Date & time Events 2/7/2005 incident took place 2/7/2005 at 7.50 pm FIR Ex. P/15 was registered 2/7/2005 at 7.50 pm dying declaration Ex. P/5 at Government Hospital, Jaura was recorded 3/7/2005 Statement of witness Antram. Gorelal and Ravi Rajpoot were recorded under Section 161 of Cr.P.C. 2/1/2006 Statement of witness Uttam Singh (PW/6) was recorded under Section 161 of Cr.P.C. about extra judicial confession made by co-accused Radheshyam before Uttam Singh. 3/1/2006 co-accused Radheshyam was arrested 27/3/2006 Charge-sheet filed against Radheshyam 29/5/2006 appellant-Balveer Singh was arrested 12/6/2006 Katta was seized on information from appellant-Balveer Singh 14. First and foremost question is about the nature of death of Surendra Singh and from Postmortem Report (Ex. P/6), it is clear that deceased died due to excessive hemorrhage because of firearm injury and therefore, cause of death was homicidal in nature. 15. Prosecution led evidence oral as well as documentary in which material piece of documentary evidence is FIR (Ex. P/15) and dying declaration before the duty doctor (Ex. P/5) at Government Hospital, Jaura. As per the contents of FIR recorded at the instance of injured Surendra; at 7 pm, accused visited his place and called him to come alongwith them and he immediately rode the motorcycle alongwith accused persons. P/15) and dying declaration before the duty doctor (Ex. P/5) at Government Hospital, Jaura. As per the contents of FIR recorded at the instance of injured Surendra; at 7 pm, accused visited his place and called him to come alongwith them and he immediately rode the motorcycle alongwith accused persons. Here the said version of deceased Surendra appears to be at logger heads vis-a-vis the statement of his father Antram (PW/1) because father Antram specifically mentioned in para 2 of his examination-in-chief that accused Balveer Singh and his son Surendra sat for 15-20 minutes for conversation and he did not overhear what they were talking because of distance of about 10 feet. This is the first contradiction, although may be minor, crept into the testimony of maker of FIR and last seen witness. FIR was recorded at 7.50 pm and intimation at police station was received at 7.50 pm itself, and therefore, it is possible that after intimation being received at 7.50 pm, for recording contents of FIR 10-15 minutes would have been consumed including the signature made over it and a copy of FIR provided to the victim, therefore, by that time, it would have been already 8 pm or so, and therefore, if the witness would have reached the Government Hospital, Jaura then his examination would have taken further time of at least some minutes but interestingly, medical report Ex. P/4, prepared by Dr. Himanshu Sharma (PW/4) refers the time as 7.50 pm. 16. Minor deviation of factual pendulum can be ignored but here deviation is sufficiently wide enough. This renders the dying declaration doubtful, which has rightly been dealt with by the trial Court. Time of recording of dying declaration is 8 pm and it stretched for 20 minute till 8.20 pm. All these aspects have been dealt with by the trial Court in paragraphs 28 to 42. Trial Court has also dealt the manner of recording dying declaration in the form of question-answers and the type and manner of questions asked indicate that dying declaration (Ex. P/5) was prepared later on after the death of deceased Surendra and learned trial Judge further observed that document indicates that doctor had the knowledge of whole course of events. 17. Trial Court has also dealt the manner of recording dying declaration in the form of question-answers and the type and manner of questions asked indicate that dying declaration (Ex. P/5) was prepared later on after the death of deceased Surendra and learned trial Judge further observed that document indicates that doctor had the knowledge of whole course of events. 17. Even the conduct of then SHO-Seva Singh Singhadiya (PW/11) found doubtful by the trial Court and said witness, who was the Investigating Officer of the case also, admits in para 11-12 of his testimony that he made a written request for recording dying declaration to duty doctor but no such document is part of case diary nor the said document has been filed at the time of making statement. He did not care to intimate the Magistrate also under Section 157 of Cr.P.C. about the incident. 18. It is true that doctor can record dying declaration and there is no specific form and format for dying declaration but it should evoke credence and confidence to rely over it for convicting an accused specially when eye-witness account is rendered doubtful and accused is to be convicted on the anvil of circumstantial evidence or last seen theory. Even the doctor-Himanshu Sharma (PW/4) has nowhere referred in the dying declaration (Ex. P/5) that contents of dying declaration were read over to injured and after being satisfied, he caused signature. But in over enthusiasm, he mentioned this fact in para 5 of his examination-in-chief, which was otherwise not mentioned in dying declaration. He also admits that written requisition for dying declaration came from police station but same is not available in hospital record and he did not refer the said fact while recording dying declaration. 19. He also admits in para 21 that no record of dying declaration is available in hospital and no endorsement in any register regarding inward or outward has been made by him, therefore, cumulatively, conduct of Dr. Himanshu Sharma (PW/4), Investigating Officer Seva Singh Singhadiya (PW/11) and even eye-witness Ravi Rajpoot (PW/2) do not evoke credence and confidence enough to hold that dying declaration was recorded at the instance of deceased Surendra. It came into existence after two days in an envelope and possibility cannot be ruled out that it was a document prepared after the death of deceased Surendra, just to frame the appellant. 20. It came into existence after two days in an envelope and possibility cannot be ruled out that it was a document prepared after the death of deceased Surendra, just to frame the appellant. 20. Trial Court rightly dealt with the issue in this regard by appreciating the evidence. Even in this regard, the conduct of cousin of deceased Ravi Rajpoot (PW/2) also becomes doubtful when he says that deceased remained for 20-25 minutes at Government Hospital, Jaura and he remained outside the hospital and not participated in the proceedings. At that time, he did not inform this fact to the father of deceased namely Antram (PW/1), which is very unnatural conduct on the part of cousin of deceased because he is neither participating in the proceedings at hospital, nor informing the father or family of injured nor pleading for medical treatment to doctor or seeking help from Police personnel or people around. Instead of coming back to village with dead body of his brother when his brother succumbed, he went to his home at Morena. 21. The conduct of this witness appears to be doubtful because at the one hand he is the chance witness/eye witness and on the other hand, his testimony is doubtful. Police informed the father of deceased Antram in mid night about his son's death; whereas, this information should have been received by the father of deceased from cousin of deceased Ravi Rajpoot (PW/2) much prior in time. 22. Another doubtful disposition of doctor at Jaura Government Hospital is the fact that despite having all facilities including of X-Ray machine etc., he did not go for X-Ray of deceased or tried to save his life but focused mainly on dying declaration and without treating him referred to District Hospital, Morena. Here conduct of doctor appears to be doubtful and unprofessional because responsibility of a doctor in such emergent situation is to treat the patient and try to save his life rather than concentrating on legal aspects of the case. 23. Recently in the case of Purshottam Chopra and Anr. Vs. State (Govt. of NCT, Delhi), AIR 2020 SC 476 , Hon'ble Apex Court has considered the principles relating to recording of dying declaration and its admissibility and reliability. 23. Recently in the case of Purshottam Chopra and Anr. Vs. State (Govt. of NCT, Delhi), AIR 2020 SC 476 , Hon'ble Apex Court has considered the principles relating to recording of dying declaration and its admissibility and reliability. Principles culled out can be summed up as under:- "i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court. ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. vii) As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration." Considering those principles coupled with the legal position that prosecution has to prove its case beyond reasonable doubt so as to evoke confidence about the last wish of departing soul and it cannot be manipulated to implicate accused on flimsy pretext. Here the attending circumstances and evidence discussed above indicate doubtful charterer of dying declaration and possibility cannot be ruled out that deceased Surendra succumbed immediately after being hit by gunshots and either was dead on the spot or brought dead at Government Hospital, Jaura. But to cover up the case, dying declaration was prepared and suddenly came in the records of case diary. Therefore, this document viz. Dying Declaration (Ex. P/5) is rightly disbelieved by the trial Court. 24. Other documentary evidence is of Seizure Memo of Katta (Ex. P/9) which was recovered on 12/6/2006 i.e. after 11 months from the date of incident and this piece of evidence of prosecution has also been disbelieved by trial Court in para 44 and rightly so because of the discrepancies crept into the evidence and the witnesses of such seizure memo as well as memo prepared vide Ex. P/11 and P/12; whereby, accused Balveer Singh refused to make signature over seizure memo Ex. P/9. 25. Lalaram (PW/5) was the Armourer, who examined the seized weapon (Katta) but he was unable to disclose the fact about the period before it was last fired and in his cross-examination, he accepts that he gave report Ex. P/7 just tentatively by examination through his eyes and he did not use any cartridge in the Katta to fire (which would have been the right approach) and then give opinion about the position of Katta whether it was in working condition or not. 26. Beside that seizure was made after almost one year of the incident and for one year it was kept buried under the ground and no weathering took place and prosecution did not refer any such factual status of weapon and its status, therefore, this further renders the case of prosecution doubtful. Prosecution did not establish that said Katta was used for inflicting injuries to the victim. Therefore, on this count also, case of prosecution falters. 27. It is worth consideration that State has accepted the findings recorded by the trial Court so far as rejection of eye-witness account and dying declaration part is concerned and confines argument to the extent of acquittal of Balveer Singh for offence under Section 25/27 of the Arms Act and acquittal of co-accused Radheshyam under Section 302/34 of IPC. 27. It is worth consideration that State has accepted the findings recorded by the trial Court so far as rejection of eye-witness account and dying declaration part is concerned and confines argument to the extent of acquittal of Balveer Singh for offence under Section 25/27 of the Arms Act and acquittal of co-accused Radheshyam under Section 302/34 of IPC. Therefore, these findings stand affirmed and even otherwise from the discussion of trial Court it nowhere appears that any interference is required. 28. It is trite law that findings of trial Court unless contrary to law or suffers from sheer perversity, appellate Court ought to refrain to interfere. Several pronouncement of Hon'ble Apex Court are available in this regard (See: Chandrappa vs. State of Karnataka 2007 AIR SCW 1850 & Gamini Bala Koteswara Rao v. State of Andhra Pradesh AIR 2010 SC 589 ). 29. One more aspect deserves consideration is that police did not recover any spent cartridges from the spot nor any blood stained soil was recovered from the scene of crime and said fact has been referred in crime details form (Ex. P/1), therefore, it is highly improbable that no blood stained soil or one spent cartridge at least were recovered. On this count also it is not established by the prosecution beyond reasonable doubt that offence was committed by accused persons over the spot which has been referred by the prosecution. 30. Trial Court had appreciated the evidence of Ravi Rajpoot (PW/2) from para 19 to 27 threadbare and disbelieved the witness as eye-witness. He was not examined immediately by the police nor he participated in the proceedings at police station or at hospital and very conveniently he went away to his home at Morena in the night after death of his cousin. Police Head Constable Dayashankar (PW/15), who accompanied deceased from Jaura to Morena, nowhere referred in categorical terms the presence and participation of Ravi Rajpoot (PW/2) and that fact has been taken into account by the learned Judge of the trial Court. Police Head Constable Dayashankar (PW/15), who accompanied deceased from Jaura to Morena, nowhere referred in categorical terms the presence and participation of Ravi Rajpoot (PW/2) and that fact has been taken into account by the learned Judge of the trial Court. Even the statement in para 2 of the examination-in-chief of Ravi Rajpoot (PW/2) indicates that he apparently witnessed the event sharply and his attention was drawn by sound of gunshots which appears to be an improbable event, because narration indicates as if he was waiting for the incident to occur and he made no attempt to caught hold of assailants or to rescue his brother promptly. 31. Even otherwise, according to him, the time of incident is 7-7.15 pm; whereas, deceased himself refers in FIR (Ex. P/15) that at 7 pm, he was at his home and his father Antram (PW/1) refers conversation of 15-20 minutes between deceased and accused. Even, this witness nowhere refers the presence of his another cousin Rakesh (real brother of deceased) because police recorded the statement of Rakesh as Ex. D/6 in which he referred the same course of events as Ravi Rajpoot (PW/2) had, but later on as Court Witness (CW/1) Rakesh Rajpoot refers the fact that he was at Delhi at the time of incident and he never gave any statement to the police (Ex. D/6) about his presence on the spot and witnessing the event. 32. If Rakesh, who is real brother of deceased Surendra was present on the spot as per Ex. D/6 then why Ravi Rajpoot (PW/2) did not refer such fact in his statement under Section 161 Cr.P.C. during investigation and later on before the Court as Court witness. This makes the story further doubtful because real brother of deceased namely Rakesh is making two altogether different statements and such dichotomy of statements under Section 161 of Cr.P.C. and Court statement further renders the case of prosecution doubtful. One has to keep in mind that during investigation statement under Section 161 Cr.P.C. facilitates the progress of investigation and therefore, for investigation purpose, statement of Rakesh assumes importance but surprisingly, he makes altogether different statement before the Court. 33. Even the eye-witness Ravi Rajpoot (PW/2) could not explain the basis for him to be a chance witness because he could not explain the name of shop or any bill for purchase of fertilizer for which he went to Jaura. 33. Even the eye-witness Ravi Rajpoot (PW/2) could not explain the basis for him to be a chance witness because he could not explain the name of shop or any bill for purchase of fertilizer for which he went to Jaura. Even the location of shop and his reason for being a chance witness was not sufficiently and conclusively explained by the prosecution beyond reasonable doubts. Trial Court disbelieved the evidence after detail appreciation of evidence and this Court does not intend to dislodge the well reasoned findings given by the trial Court regarding doubtful character of eye witness account. 34. Since the eye-witness account is disbelieved, therefore, only ground remains for the prosecution was last seen theory for which father of deceased Antram was examined as PW/1. According to him, when Balveer Singh visited his house, they alongwith his son (Surendra) conversed for 15-20 minutes and he did not overhear the conversation because of distance of 10 feet. This fact goes contrary to contents of FIR, when Surendra refers that Accused came to his house and told him to accompany. In his whole examination-in-chief, he did not refer any motive for Balveer Singh to kill Surendra and it is settled in law that in absence of motive, merely on the evidence of last seen, conviction cannot be maintained. Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 is worth consideration in this regard and it is followed time and again and in the case of Babu Vs. State of Kerala, (2010) 9 SCC 189 . Observations as per para 25 to 28 of the said decision are as under:- "(III) Motive in cases of Circumstantial Evidence 25. In State of Uttar Pradesh Vs. Kishan Pal & Ors., (2008) 16 SCC 73 , this Court examined the importance of motive in cases of circumstantial evidence and observed: ".38...... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. 39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. 39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction." 26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (vide: Pannayar v. State of Tamil Nadu by Inspector of Police, (2009) 9 SCC 152 ). IV) Burden of Proof and Doctrine of Innocence 27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like Negotiable Instrument Act, 1881; Prevention of Corruption Act, 1988; and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those Statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. 28. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden on proof is on the accused. There may be difficulty in proving a negative fact. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden on proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution. (Vide: Hiten P. Dalal Vs. Bratindranath Banerjee, (2001) 6 SCC 16 ; Narendra Singh Vs. State of M.P., AIR 2004 SC 3249 ; Rajesh Ranjan Yadav Vs. CBI, AIR 2007 SC 451 ; Noor Aga Vs. State of Punjab & Anr., (2008) 16 SCC 417 ; and Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, AIR 2008 SC 1325 )." 35. This principle has been again reiterated in Kanhaiyalal Vs. State of Rajasthan, (2014) 4 SCC 715 , Shyamal Saha & Anr. Vs. State of West Bengal, (2014) 1 Crime 305, Nizam and Anr. Vs. State of Rajasthan, AIR 2015 SC 3430 , Ashok Vs. State of Maharashtra, (2015) 4 SCC 393 and State of Karnataka Vs. Chand Basha, AIR 2015 SCW 5370 and Rambraksh alias Jalim Vs. State of Chhattisgarh, AIR 2016 SC 2381 . In all these judgments, Hon'ble Apex Court has taken into account the last seen theory and/or prospects of circumstantial evidence. In this case, no other corroborative piece of evidence corroborating the last seen theory exists and father of deceased Antram (PW/1) admits in para 5 that he has no knowledge about point of dispute between his son Surendra and accused persons. Possibility cannot be ruled out that deceased after being murdered, family members with connivance of Police Authorities created evidence by way of Dying Declaration and eye witness account. 36. Appellant-Balveer Singh was an Army Personnel and used to visit his village whenever on leave and his marriage was solemnized in the village of deceased. Witness Antram (PW/1) himself admits that after marriage Balveer came in village twice and therefore, no plausible reason has been given for dispute and therefore, Balveer Singh had no motive to kill the deceased Surendra Singh. When there was no motive with the present appellant to commit crime then benefit of doubt ought to be given to the appellant. Witness Antram (PW/1) himself admits that after marriage Balveer came in village twice and therefore, no plausible reason has been given for dispute and therefore, Balveer Singh had no motive to kill the deceased Surendra Singh. When there was no motive with the present appellant to commit crime then benefit of doubt ought to be given to the appellant. (See: Sampath Kumar Vs. Inspector of Police, Krishnagiri, 2012 (2) Crimes 80). 37. Another last seen witness was Gorelal (PW/7), but he did not support the story of prosecution and declared hostile. Examination-in-chief of last seen witness Antram (PW/1) and contents of FIR as told by the deceased himself refer different courses of events since inception and overlapping of time adds to the woes of prosecution and therefore, last seen theory was not so plausible that it could add credence to the story of prosecution. If no eye witness account would have been there or if the case of prosecution would not have faltered on eye witness and dying declaration account then the last seen theory would have assumed much more credence and confidence but from the broken chain of circumstances, discrepancies and contradictions crept into the case. It appears that prosecution did not prove the case beyond reasonable doubt and trial Court caused illegality so far as convicting the appellant on the basis of last seen theory. 38. At this juncture, when the Court was in the midst of preparation of this judgment, an application has been received by the Office of this Court as PUD in which appellant-Balveer Singh has submitted a representation to the Principal Registrar of this Court through Jail Superintendent, Central Jail, Gwalior vide representation dated 11/12/2020 that he has already suffered 14 years of incarceration and completing 14 years and two months incarceration on 26th January, 2021 and State Government is going to give him benefit of remission on 26th of January, 2021 (Republic Day), therefore, he intends to withdraw the appeal. Letter dated 15/12/2020 of Jail Superintendent, Central Jail, Gwalior is also attached with the application and same was placed before us but since arguments were advanced on 3/12/2020 and draft was in the process of preparation, and this Court appeared convinced (prima facie) at that point of time about the innocence of appellant, therefore, this Court continued to record its findings and intended to decide the case conclusively so as to impart substantial justice to the accused. Regretfully appellant's 14 years (which otherwise he could have served the nation as Army Personnel) cannot be returned back but certainly he can be given solace by removing stigma of an accused from him, therefore, this Court proceeded to conclude its findings on merits. 39. Trial Court rightly disbelieved the version of Uttam Singh (PW/6) and the extra judicial confession made to him by co-accused Radheshyam. Uttam Singh is brother of Antram and deceased was his nephew. As per his own admission after incident on 2/7/2005, two and half months later, co-accused Radheshyam visited his house and made confession about his involvement in murder of his nephew Surendra and repented for the same. Radheshyam pleaded before the witness Uttam Singh to save him from implication. Surprisingly, after two and half months (tentatively September-October, 2005), co-accused Radheshyam visited his house but he did not disclose this fact to anybody and after two and half months on 2/1/2006, he referred this fact to police when he was called by the Investigating Officer. Statement under Section 161 Cr.P.C. was taken by the police and immediately thereafter, accused Radheshyam was arrested by the Police on 3/1/2006 vide Arrest Memo Ex. P/17. Why this witness kept silent for two and half months after visit of Radheshyam, is nowhere explained by the prosecution. 40. Even in his examination-in-chief, he did not refer the fact that co-accused Radheshyam visited his residence alongwith son-in-law of the said witness namely Janak Singh and during cross-examination he admits this fact and in fact Radheshyam was made accused after 2/1/2006 only and not before that and since accused Radheshyam visited this witness Uttam Singh (PW/6), therefore, in all probabilities son of Uttam Singh namely Ravi Rajpoot (PW/2) had all chances to know him when test identification parade was made by this witness identifying accused Radheshyam. This identification was held on 10/01/2006 vide Ex. P/2. 41. This identification was held on 10/01/2006 vide Ex. P/2. 41. This theory of extra judicial confession and then identification by the witness Ravi Rajpoot (PW/2) smacks doubts and contradictions, therefore, this theory of extra judicial confession and test identification was also disbelieved by the trial Court and rightly so because conduct of co-accused Radheshyam appears to be unacceptable because no accused would try to admit his guilt just to save himself from implication when he was already far from the radar of prosecution and at that point of time, he was nowhere in the spectrum of investigation. In fact till 2/1/2006, his name was not in list of accused and after his alleged extra judicial confession, charge-sheet was filed on 27/3/2006 while keeping investigation under Section 173(8) Cr.P.C. pending against Balveer Singh. Therefore, theory of extra judicial confession propounded by the prosecution lacks credence, credibility and bona fides. Therefore, it deserves to be rejected and trial Court rightly did so. 42. In cumulative analysis, while appreciating the evidence led by prosecution; oral as well as documentary, it is concluded that prosecution could not able to prove the case beyond reasonable doubt and there are material contradictions, omissions and discrepancies crept into the case of prosecution to give benefit to the accused. It is the duty of the prosecution to prove the case beyond reasonable doubt and here eye-witness account, dying declaration, last seen theory, absence of motive and documentary evidence nowhere evoke sufficient confidence to conclude that accused Balveer Singh committed offence. On such doubtful pretext, appellant could not have been convicted. Therefore, appeal preferred by appellant-Balveer Singh (Cr. A. No. 394/2009) deserves to be allowed and judgment of trial Court deserves to be and is hereby set aside and appellant Balveer Singh is directed to be released forthwith. Regarding Criminal Appeal No. 500/2009 43. Since the facts of the case have already been discussed in detail, therefore, it is to be seen whether the acquittal recorded by trial Court in respect of appellant Balveer Singh for offence under Section 25/27 of Arms Act and co-accused Radheshyam for offence under Section 302/34 of IPC, was bad in law or suffers from perversity or not. 44. Since the facts of the case have already been discussed in detail, therefore, it is to be seen whether the acquittal recorded by trial Court in respect of appellant Balveer Singh for offence under Section 25/27 of Arms Act and co-accused Radheshyam for offence under Section 302/34 of IPC, was bad in law or suffers from perversity or not. 44. So far as law in this regard is concerned, it is settled principle of law that if the trial Court after due appreciation of the evidence comes to the conclusion about the finding of acquittal then if the finding is not perverse or illegal, this should not be interfered with by the Appellate Court. For this, reliance can be placed on the decision of the Hon'ble Apex Court in the case of Chandrappa vs. State of Karnataka 2007 AIR SCW 1850, wherein the Hon'ble Apex Court laid down the legal principles to entertain the appeal against acquittal and held as under:- "39. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on question of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court". 45. In the case of Gamini Bala Koteswara Rao v. State of Andhra Pradesh AIR 2010 SC 589 , wherein it is observed as under:- "It is open to the High Court to re-appreciate the evidence and conclusions drawn by the trial Court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" to mean "against the weight of evidence"." 46. Trial Court has considered all the aspects in detail and after considering all the material evidence in this regard found the case of prosecution as doubtful. The Hon'ble Apex Court in the case of K. Prakashan Vs. P.K. Surenderan (2008) 1 SCC 258 and T. Subramanian v. State of Tamil Nadu (2006) 1 SCC 401 held that if two views are possible and one view is taken by the trial Court after due appreciation of evidence including the demeanor of witnesses then unless sheer perversity or illegality crept in to the judgment of trial Court scope of interference in appeal is limited. 47. Taking note of the guidance given by Hon'ble Apex Court as referred above and appreciation of the evidence made earlier, it appears that trial Court did not commit any illegality or perversity in recording acquittal in favour of appellant-Balveer Singh and co-accused Radheshyam to the extent referred above. It is for the prosecution to prove the case beyond reasonable doubt against the accused persons, in which prosecution failed. It is for the prosecution to prove the case beyond reasonable doubt against the accused persons, in which prosecution failed. In the case of Babu (supra), Apex Court had held that trial Court in fact has an advantage to watch the demeanour of the witnesses and was in better position to evaluate their credibility and in fact trial Court is always in better position to evaluate the demeanours and contents of statements from vantage point, therefore, in normal circumstances, Appellate Court must refrain from dislodging the findings, unless of-course suffers from illegality or perversity. 48. Here no such illegality or perversity is apparent on record, therefore, judgment of the trial Court stands affirmed so far as acquittal of accused Balveer Singh under Section 25/27 of Arms Act and co-accused Radheshyam under Section 302/34 of IPC is concerned. Appeal of State Government vide Criminal Appeal No. 500/2009 stands dismissed. 49. In result, appeal of appellant-Balveer Singh (Cr. A. No. 394/2009) is allowed and that of State Government (Cr. A. No. 500/2009) stands dismissed. Accused Balveer Singh be released forthwith, if not required in any other case. 50. A copy of this order be sent to the trial Court concerned and Jail Superintendent, Central Jail, Gwalior immediately for information and compliance.