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2022 DIGILAW 1071 (ALL)

Pramod Kumar Parasar v. State of U. P.

2022-07-12

VIKAS BUDHWAR, VIVEK KUMAR BIRLA

body2022
JUDGMENT : VIKAS BUDHWAR, J. 1. This appeal under section 372 Cr.P.C. has been instituted by the appellant namely Pramod Kumar Parasar, father of the informant Rahul Kumar and of deceased challenging the judgment and order dated 10.01.2019 passed by Addl. Sessions Judge, Firozabad, Court No. 4 in S.T. No. 161 of 2011 (State vs. Sri Bhagwan and Others) under Sections 302, 201 IPC in Case Crime No. 453 of 2010, Police Station-Uttar, District-Firozabad. 2. The appeal was presented before this Court on 4.4.2019 and on 8.4.2019, lower court records were summoned. Thereafter on 9.7.2019, 16.7.2019, 23.7.2019, 30.7.2019, 4.9.2019, 13.9.2019, 20.9.2019, 27.9.2019, 15.10.2019, 23.10.2019 and 13.11.2019, this appeal was taken up but it was adjourned on every dates either on the illness slip of the learned counsel for the appellant or on adjournment which reveals that learned counsel for the appellant is avoiding hearing of the appeal and thus this Court was constrained to pass an order on 11.2.2022 observing that in case learned counsel for the appellant is not present on the next date so fixed, this Court may proceed to decide the appeal with the help of learned AGA. 3. Yet today when this case was taken up, nobody appeared to press this appeal, and thus this Court is proceeding to decide the appeal with the assistance of learned AGA. 4. The factual matrix of the case as worded in the present appeal are as follows: (i) One Rahul (PW-1) S/o Pramod Kumar, R/o mohalla - Dayal Nagar, Kotla Road, Police Station-Uttar, District-Firozabad had submitted a written complaint on 12.9.2010 before Police Station-Uttar. District-Firozabad with the allegation that his brother Gaurav has certain relationship with Puja, the daughter of Bangali Babu Badhai. In this connection, the informant had even beaten his brother and restricted him not to maintain any relationship with Puja and has also made a complaint and lodged his protest before Bangali Babu Badhai advising him to restrict his daughter Puja for continuing any relationship with his brother Gaurav. (ii) According to the first informant, on 12.9.2010 in the night, he was sleeping on the terrace of his house and his brother was sleeping inside the house. (ii) According to the first informant, on 12.9.2010 in the night, he was sleeping on the terrace of his house and his brother was sleeping inside the house. As per prosecution version when in the morning he woke up then one of his neighbour namely Anil Kumar, S/o Rameshwar Dayal apprised him that in the previous night at about 1:00 a.m. he saw his brother Gaurav standing just in front of the house of Bangali Babu Badhai and further informed that Rajesh Kumar S/o Radha Krishna and Satendra Babu S/o Ram Sanehi was also standing near bye-pass road and also witnessed that Sri Bhagwan was driving motorcycle and in between deceased Gaurav was sitting and in his back Satyadeo was sitting and deceased Gaurav was sitting in such a manner which reflected that his neck was hanging and according to prosecution case, the persons who had witnessed such event thought that Gaurav (since deceased) was ill and he was being taken to hospital. (iii) As per prosecution case, on the next date, dead body of Gaurav, who happens to be brother of the informant, was found near a small bridge. Accordingly, the first informant, who happens to be the brother of the deceased, submitted a written complaint against Sri Bhagwan, Satyadeo, Km. Puja and Bangali Babu. (iv) On the basis of the written complaint, an FIR was lodged at Police Station-Uttar, District-Firozabad on 12.9.2010 at 10:00 a.m. registering Case Crime No. 453 of 2010, under Sections 302, 201 IPC. (v) Investigation was put to motion consequent to the lodging of the FIR, while getting Panchayatnama prepared and sending the dead body for postmortem site plan was also prepared. (vi) The Investigating Officer conducted the investigation and submitted charge sheet purported under Section 302, 201 IPC against Sri Bhagwan, Satyadeo and Km. Puja. However, so far as Bangali Babu is concerned, final report was submitted against him as no criminality was found against him. (vii) The case was committed for trial. Charges were read-over to the accused, who are two in numbers. They pleaded not guilt and innocent. (viii) The prosecution produced following witnesses, namely: 1. Rahul PW-1 2. Satendra Babu PW-2 3. Anil Kumar PW-3 4. Dr. Manoj Kumar PW-4 5. Sanjeev Kumar Dubey PW-5 6. Surendra Singh (I.O.) PW-6 7. Rajesh Kumar PW-8 (ix) In order to prove the charges, the following documentary evidence have been produced: 1. They pleaded not guilt and innocent. (viii) The prosecution produced following witnesses, namely: 1. Rahul PW-1 2. Satendra Babu PW-2 3. Anil Kumar PW-3 4. Dr. Manoj Kumar PW-4 5. Sanjeev Kumar Dubey PW-5 6. Surendra Singh (I.O.) PW-6 7. Rajesh Kumar PW-8 (ix) In order to prove the charges, the following documentary evidence have been produced: 1. Written Complaint Ex-A-1 2. Postmortem report Ex-A-2 3. Chick FIR Ex-A-3 4. GD Ex-A-4 5. Panchayatnama Ex-A-5 6. Challan Ex-A-6 7. Photograph Ex-A-7 8. Letter of CMO Ex-A-8 9. Letter of Inspector Ex-A-9 10. Samples Ex-A-10 11. Site Plan Ex-A-11 12. Site Plan Ex-A-12 13. Recovery memo Ex-A-13 14. Site Plan of recovery memo Ex-A-14 15. Charge-sheet Ex-A-15 5. We have Sri Ratan Singh, learned AGA and with his assistance the present appeal is being decided. 6. To began with the deposition of the prosecution, witness is to be first analysed. 7. The first informant Rahul appeared as PW-1. According to his deposition his brother Gaurav had relationship with one Puja, who happens to be the daughter of Bangali Badu Badhai. He had not only beaten his brother (deceased) but had also restricted him not to keep any relationship with Puja. He also made a complaint and lodged his protest before Bangali Babu Badhai advising him to restrict his daughter Puja for continuing any relationship with his brother Gaurav. According to the first informant, on 12.9.2010 in the night, he was sleeping on the terrace of his house and his brother was sleeping inside the house. As per prosecution version when in the morning he was awake then one of his neighbour namely Anil Kumar, S/o Rameshwar Dayal apprised him that in the previous night at about 1:00 a.m. he saw his brother Gaurav just in front of the house of Bangali Babu Badhai and also informed that Rajesh Kumar, S/o Radha Krishna and Satendra Babu, S/o Ram Sanehi was also standing near bye-pass road and also witnessed that Sri Bhagwan was driving motorcycle and in between deceased Gaurav was sitting and in his back Satyadeo was sitting and deceased Gaurav was sitting in such a manner which reflected that his neck was hanging and according to prosecution case, the persons who had witnessed such event, thought that Gaurav (since deceased) was ill and he was being taken to hospital. 8. Satendra Babu appeared as PW-2 in the witness box. 8. Satendra Babu appeared as PW-2 in the witness box. He turned hostile. According to him, he has not seen the deceased on a motorcycle which was ridden by Sri Bhagwean and he was not aware about the said fact. 9. Anil Kumar appeared as PW-3 in the witness box. According to him, on the date of occurrence, he was in mohalla-Dayal Nagar, District-Firozabad and he is a driver and on 11.9.2010 in the night he has seen Sri Bhagwan, Satyedeo and Gaurav near the house of Bangali Babu and on the next date, search of the deceased was made and when he was standing near a one of the crossing road then Rahul came and asked him about whereabouts of the deceased Gaurav, then he told about the fact that he saw the deceased near the house of Bangali Babu. 10. Dr. Manoj Kumar appeared as PW-4 and in his examination-in-chief has stated that on 12.9.2010 he was on his medical duty, and at about 4:55 O’Clock the deceased who was 17 years of age was brought for postmortem, and the dead body was sent by the SHO of Police Station-Uttar, District-Firozabad in sealed condition. He had done medical examination of the deceased and found that both the eyes of the deceased were closed and from the nostril blood was oosing out and the body itself was in stiff situation. According to him, there were as many as six injuries sustained by the deceased. 11. Sanjeev Kumar Dubey appeared as PW-5 being a formal witness, is the scriber of the FIR. According to him on 12.9.2010, he was posted as Constable/Clerk in the Police Station-Uttar, District-Firozabad and he has registered the FIR in question. 12. Surendra Singh, the Investigating Officer and PW-6 is also a formal witness. According to him on 12.9.2010, he was posted as In-charge Inspector at Police Station - Uttar, District-Firozabad and on that date, a Case Crime No. 453 of 2010, under Sections 302, 201 IPC was registered against Sri Bhagwan and others and he after investigation submitted the charge sheet. 13. Rajesh Kumar appeared as PW-7 and in his statement he has deposed that the incident happened on 11.9.2010 in the night at 1:30 hours. 13. Rajesh Kumar appeared as PW-7 and in his statement he has deposed that the incident happened on 11.9.2010 in the night at 1:30 hours. He and Satendra both were standing in a tri-bye-pass road where there is a Ganga Resort and lights were glowing and there were movements of vehicles and he had returned after dropping one of his relatives then he at that time saw Sri Bhagwan riding motorcycle and in between Gaurav was sitting and his neck was hanging and Satyedeo who was sitting back on the motorcycle and he had held the deceased, but perceived that Gaurav was ill and he was being taken to hospital. According to PW-7, he had told the entire facts to the first informant itself at the time when the dead body of the deceased was found near a small bridge over the lake. 14. Anar Singh Diwakar (DW-1) has stated that he is the owner of the Ganga Resort which is situated at Bamba bye-pass road, Satya Nagar Tappa, near Baghel Colony, Firozabad. According to him on 11/12.9.2010 there was no marriage ceremony or any function organized in his Resort, and the functions which are orgnazied in his Resort are noted in diary. 15. Undisputedly as per prosecution version there is no eye witness, who had seen the commission of crime by the accused. According to the prosecution it is a case of circumstantial evidence. In the matter of circumstantial evidence, this Court has to bear in mind every link in the chain of circumstances necessarily to establish the guilt of accused which must be proved by the prosecution beyond reasonable doubt and the circumstances must be consistently pointing out towards guilt of the accused. 16. Before marshalling the deposition of the prosecution witness, this Court is to first analyse the fact as to whether the present FIR is anti-timed or not. 17. Admittedly, as per records, it reveals that the FIR has been lodged by the first informant on 12.9.2010 before the concerned police station at 10:00 hours in the morning. 18. Further as per prosecution case, the FIR was lodged on 12.9.2010, proceedings of panchayatnama (Exhibit-A-5) commenced at 11:10 hours and concluded at 12:40 hours. 17. Admittedly, as per records, it reveals that the FIR has been lodged by the first informant on 12.9.2010 before the concerned police station at 10:00 hours in the morning. 18. Further as per prosecution case, the FIR was lodged on 12.9.2010, proceedings of panchayatnama (Exhibit-A-5) commenced at 11:10 hours and concluded at 12:40 hours. According to the first informant, he had reached at the place of occurrence at 9:00 and he met the police official there and at that point of time the police took out the dead body of the deceased from a drain (Nala) and police thereafter proceeded from the place. According to prosecution, after identifying the dead body of his brother, the first informant proceeded to police station for lodging the FIR. The entire sequence of the events made it highly improbable that the FIR could have been lodged at 10:00 am when he received information at 9:00 am and the proceedings of panchayatnama has commenced at 10:00 O’clock and concluded at 11:00 hours and thereafter the first informant identified the body of his brother. 19. Another aspect which needed to be considered is that Anil Kumar (PW-3) in his statement has stated that at 10:00 - 11:00 hours in the morning of 12.9.2010, he found the dead body of the brother of the informant and thereafter he went to the hospital at 11:00 - 11:30. He was there for 1-2 hours where he met police. He thereafter took the family members of the deceased inclusive of Rahul and others to the concerned police station and thereafter, he remained there at the time of lodging of the FIR from 1:00 - 1:30 noon on the said date and he also stayed there till 2:00 - 3:00 hours. 20. Besides this Rajesh Kumar (PW-7) in his deposition has made statement that he had gone to the police station alongwith the first informant at 11:00 am and was accompanied with his father and he met Rahul at 11:00 a.m. and stayed there for 2-3 hours and he had informed the police that he had not seen the incident. 21. So much so, Surendra Singh (PW-6) the Investigating Officer, in his statement has deposed that when he reached the place of occurrence, the body was found in a drain and he prepared panchayatnama and the body was taken out at about 11:00 hours. 22. 21. So much so, Surendra Singh (PW-6) the Investigating Officer, in his statement has deposed that when he reached the place of occurrence, the body was found in a drain and he prepared panchayatnama and the body was taken out at about 11:00 hours. 22. The court below has analysed the entire aspect of the matter and recorded finding that the FIR in question is ante-timed FIR as it is highly improbable and not possible at all that the FIR has been lodged at 10:00 hours, particularly when the prosecution witness being Anil Kumar (PW-3), Surendra Singh (PW-6) and Rajesh Kumar (PW-7) have themselves given different time, from which it is evident that the FIR is anti-timed. 23. Hon’ble the Supreme Court in the case of Mehraj Singh (L/Nk) vs. State of U.P. (1994) 5 SCC 188 in Para-12 has observed as under: “12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW-8.” 24. Further in the case of Sudarshan and Another vs. State of Maharashtra, (2014) 12 SCC 312 , Hon’ble the Supreme Court had the occasion to consider the issue relatable to ante-timed FIR. In paragraphs-14, 15 and 16, the Supreme Court has held as under: “14. No doubt, different persons may react differently to the same situation. However, at the same time, as mentioned above, it appears very improbable that when there were as many as 15 to 20 persons, namely, the complainant and his friends, none of them even thought of going to the Police Station to report the matter, which is odd and out of ordinary behaviour in such cases. Instead, they chose to go to an Advocate, who was staying at a distance of 15 kms. The persons who were allegedly very scared would not take the risk of going a distance of 15 kms. rather than approaching the nearby Police Station within the jurisdiction of the area where the incident had taken place. Strangely, in the process of defending the said conduct of the complainant and his friends, the High Court became presumptuous as it itself gave an imaginary story that there was a possibility that these persons had consumed liquor and the material thrown by them included liquor as well. Strangely, in the process of defending the said conduct of the complainant and his friends, the High Court became presumptuous as it itself gave an imaginary story that there was a possibility that these persons had consumed liquor and the material thrown by them included liquor as well. It was not even the case of the prosecution, probable or otherwise. We may have agreed with the High Court that not reporting to the Police and going straightaway to an Advocate could have been because of the reason that all these persons were very scared, had it been a standalone fact. However, when this fact is examined in conjunction with other circumstances, which we narrate hereinafter, we find that approaching an Advocate instead of going to the Police Station to report the matter, was not that innocent a step as the prosecution has made us to believe. 15. Even after meeting their Advocate and his advise that the matter be reported to the police, these persons didn't come back to Ballarshah Police Station, which was the proper Police Station for this purpose. Instead, the FIR was lodged in Chandrapur Police Station. Things do not end here. Mr. Umesh, Sub-Inspector, was at Chandrapur Police Station, who had recorded the FIR. He has appeared as PW-12 during trial. The FIR which was lodged with him is proved as Exhibit-213. Column 15 of the FIR pertains to date and time of dispatch to the Court. This column is left blank, which means that no date and time of the dispatch/delivery of this FIR to the concerned Court is mentioned. In the cross-examination, PW-12 was specifically asked about the requirement of submitting a copy of the FIR to the concerned Magistrate within 24 hours. He replied in the affirmative insofar as this need is concerned. However, at the same time, he was candid in admitting that he was unable to say as to by whom and when the copy of Exhibit-213 was sent to the Magistrate. A specific suggestion was put to him that the copy of the FIR was not sent to the concerned Magistrate. Though he denied, but thereafter no attempt was made to prove as to when and how the copy was sent. The necessity of sending the copy of the FIR to the concerned Magistrate hardly needs to be emphasized. A specific suggestion was put to him that the copy of the FIR was not sent to the concerned Magistrate. Though he denied, but thereafter no attempt was made to prove as to when and how the copy was sent. The necessity of sending the copy of the FIR to the concerned Magistrate hardly needs to be emphasized. The primary purpose is to ensure that truthful version is recorded in the FIR and there is no manipulation or interpolation therein afterwards. For this reason, this statutory requirement is provided under Section 157 of the Code of Criminal Procedure, 1973. 16. We, thus, feel that it was a glaring omission on the part of the prosecution which lends credence to the plea of the defence about ante- timing the FIR. It gets strengthened on finding more glaring and intriguing events taking place thereafter, which are described hereinafter.” 25. Applying the above noted judgment, in the facts of the present case, it becomes apparently clear that the FIR could not have been lodged at 10:00 A.M. and thus the FIR in question is an ante-timed FIR, which had been lodged just in order to falsely implicate the accused herein. 26. Now another facet which needs to be considered which is as to what time, the death took place while considering the medical report in question. According to informant at 1:00 am of the intervening night/morning of 11.9.2010/12.9.2010, Anil Kumar (PW-3) apprised him that he saw deceased in the house of Sri Bhagwan alongwith Satyadeo. According to testimony of Dr. Manoj Kumar (PW-4), who had done the postmortem at 4:55 hours the death occurred on 11.9.2010 between 9:00 p.m. to 10:00 p.m. wherein difference can be of 3 hours. According to him after 3 hours of the death, there is stiffness in the dead body and fully get stiffed after 12 hours and it remains steady for 12 hours and in next 12 hours, the stiffness of the body gets removed. As per the postmortem report, death occurred 24 hours prior to the post mortem that means the death might have occurred between 9:00 p.m. - 10 p.m. on 11.9.2010 and in case difference of three hours is being calculated, then probably at 5:00 p.m. or 6:00 p.m. of 11.9.2010. As per the postmortem report, death occurred 24 hours prior to the post mortem that means the death might have occurred between 9:00 p.m. - 10 p.m. on 11.9.2010 and in case difference of three hours is being calculated, then probably at 5:00 p.m. or 6:00 p.m. of 11.9.2010. Thereafter, it is highly improbable that Anil Kumar (PW-3) could have seen the deceased to be standing near the gate of Sri Bhagwan at 1:00 a.m. in the intervening night of 11.9.2010/12.9.2010. 27. As per prosecution witness there is nobody who has seen commission of the crime. So far as Rahul (PW-1) is concerned, he was totally unaware about the whereabouts of his brother. So far as Satendra Babu (PW-2) is concerned, he turned hostile and said that he has not seen the deceased on a motorcycle which Sri Bhagwan was riding. 28. According to Anil Kumar (PW-3), he was apprised by Satendra Babu also that the deceased was in the motorcycle of Sri Bhagwan. However, Satendra Babu (PW-2) turned hostile and thus now the testimony of Rajesh Kumar (PW-7) is to be seen. 29. Rajesh Kumar (PW-7) in his statement has deposed that he had seen the deceased on 11.9.2010 at 1:30 hours in the night with the aid of light which was glowing in Gamga Resort. According to PW-7, he was accompanied with one Satendra near the bye-pass road. The reason of the presence of PW-7 as stated by him was that on 11.9.2010 his sister and his brother-in-law had come and they had stayed in his house for 7-8 hours as they come to his house at 2:00 - 2:30 noon and they had to go back to Delhi by train and he had taken them by Auto. On being specifically asked as to what is the detail of the train by which his sister and brother-in-law were to proceed to Delhi, he had expressed his ignorance. Further in the deposition PW-7 has stated that in the night of 11.9.2010 he has taken his sister and brother-in-law at 10:00 - 11:00 p.m. to railway station and thereafter he proceeded from railway station to his house walking. According to him, he stayed at the railway station for 1½ hours till 12:30 hours and the distance of railway station to his house is about 45 minutes. 30. According to him, he stayed at the railway station for 1½ hours till 12:30 hours and the distance of railway station to his house is about 45 minutes. 30. The Trial Court has noticed the inconsistency and material contradiction in the statements while recording a finding that it was humanly impossible for PW-7, Rajesh Kumar to have witnessed the accused along with deceased in a motorcycle, particularly when the resort in question was closed and there was no function or ceremony organized thereat, which stood proved from the statement of the owner of the Ganga Resort, who got himself examined as DW-1 and produced diary containing the details. In the night itself in the absence of any glowing light, it is not humanly possible to identify a person, who is sitting in a motorcycle. Additionally, as per PW-7, Rajesh Kumar, Satyendra was also present at that point of time, who along with him saw the accused with the deceased, but he turned hostile. Thus the statement of PW-7, Rajesh Kumar does not inspire confidence so as to pointedly mark that the accused had committed the crime. The Trial Court has also analyzed the issue relatable to the recovery of incriminating articles from the accused. According to the Trial Court, only a sealed bundle of ropes were found, which is easily available in most of the house holds. However, the said rope was found not even remotely connected with commission of crime, as the same is only a nylon rope without having any marks in it so as to prove that the same was used for strangulation or commission of the crime. 31. Even otherwise, analyzing the present case, from the four-corners of law, if it stretched too far, then the same can be said to be of circumstantial evidence, as there is no eye-witness testimony. It is well settled that in the cases of circumstantial evidence postulate two-fold requirement: (i) link in the chain of circumstances necessary to establish the guilt of the accused must be proved beyond reasonable doubt, (ii) the circumstances must be consistently pointed towards guilt of accused and nobody else. 32. It is well settled that in the cases of circumstantial evidence postulate two-fold requirement: (i) link in the chain of circumstances necessary to establish the guilt of the accused must be proved beyond reasonable doubt, (ii) the circumstances must be consistently pointed towards guilt of accused and nobody else. 32. In the case of Shard Birdhichand Sarda vs. State of Maharastra, (1984) 4 SCC 116 , the Hon’ble Supreme Court in Para-153 has observed as under: “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade and Another vs. State of Maharashtra, where the following observations were made: “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 33. The Hon’ble Supreme Court in the case of Bodhraj vs. State of Jammu and Kashmir, (2002) 8 SCC 45 , in Paras 9 and 10 has observed as under: “9. The Hon’ble Supreme Court in the case of Bodhraj vs. State of Jammu and Kashmir, (2002) 8 SCC 45 , in Paras 9 and 10 has observed as under: “9. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. 10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. [See: Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063 , Eradu and Others vs. State of Hyderabad, AIR 1956 SC 316 , Earabhadrappa vs. State of Karnataka, AIR 1983 SC 446 , State of U.P. vs. Sukhbasi and Others, AIR 1985 SC 1224 , Balwinder Singh vs. State of Punjab, AIR 1987 SC 350 , Ashok Kumar Chatterjee vs. State of M.P. AIR 1989 SC 1890 ]. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.” 34. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.” 34. Further in the case of State of Haryana vs. Jagbir and Another, (2003) 11 SCC 261 , the Hon’ble Court in Para-8 has observed as under: “8. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. [See: Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063 , Eradu and Others vs. State of Hyderabad, AIR 1956 SC 316 , Earabhadrappa vs. State of Karnataka, AIR 1983 SC 446 , State of U.P. vs. Sukhbasi and Others, AIR 1985 SC 1224 , Balwinder Singh vs. State of Punjab, AIR 1987 SC 350 and Ashok Kumar Chatterjee vs. State of M.P. AIR 1989 SC 1890 ]. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.” 35. More so, the last seen theory also does not stand attracted in the present case as it has come on record and proved by medical evidence that the death took place on 11.9.2010 approximately between 5:00 pm - 6:00 pm. However, Anil Kumar (PW-3) has deposed in his statement that he saw the deceased standing in the gate of Sri Bhagwan with the accused at 1:00 in the night. The time gap of presence of the accused with the deceased as stated by the prosecution and the time of death itself does not corroborate with each other. However, Anil Kumar (PW-3) has deposed in his statement that he saw the deceased standing in the gate of Sri Bhagwan with the accused at 1:00 in the night. The time gap of presence of the accused with the deceased as stated by the prosecution and the time of death itself does not corroborate with each other. The Hon’ble Supreme Court in the case of Rambraksh vs. State of Chhatishgarh, (2016) 12 SCC 251 in Para-12 has observed as under: “12. It is trite law 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 not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.” 36. None the less the postmortem report is fully proved by the medical evidence so produced by the prosecution, according to which while taking further clue from the same, it is highly improbable and inconceivable that the accused was found to be with the deceased on 11.9.2010 at 1:30 hours in the night. 37. As already discussed, the learned trial court has meticulously analyzed the entire case under four-corners of law while appreciating the evidences so adduced in the background of the ocular testimony. 38. Hence, in any view of the matter applying the principles of law so culled out by the Hon’ble Apex Court in the facts of the present case, we have no option but to concur with the view taken by the learned Sessions Judge. 39. The appeal is devoid of merits and is dismissed at the stage of admission stage itself. 40. Records of the present case be sent back to the concerned court below.