JUDGMENT : Pankaj Bhandari, J. 1. Accused/ appellant has preferred this appeal aggrieved by Judgment and sentence dated 05.04.2019 passed by Addl. Sessions Judge, Dudu, District Jaipur, whereby appellant has been convicted for offence under Sections 302, 201, 379 IPC. He has been sentenced with life imprisonment and fine of Rs.50,000/- and on non-payment of fine, to further undergo one year simple imprisonment for offence under Section 302 IPC. Sentence of three years and fine of Rs.5,000/- and on non-payment of fine, to further undergo one month simple imprisonment for offence under Section 379 IPC and seven years rigorous imprisonment and fine of Rs.20,000/-and on non-payment of fine, to further undergo six months simple imprisonment for offence under Section 201 IPC. 2. Succinctly stated the facts of the case are that on 14.05.2012, Police Station- Dudu received an information that a dead body was buried near falicity. On receipt of the information, officers of Police Station- Dudu went to the spot and the investigating officer- Vijay Sehra directed Subahsingh, ASI for registering FIR in the matter. On which, FIR No.178/2012 was registered for offence under Section 302/201 IPC. A missing person report was filed by Rekha Devi (wife of the deceased) at Police Station Khamnor, Rajsamand on 16.05.2012. During the course of search for missing person, police recovered JCB machine from Sighawali, Police Station Sikri, District Bharatpur and on the basis of location of mobile number, police arrested accused Samir from Rigad, District Nuh, Police Station Firojpur. Police Station- Dudu filed charge-sheet against the accused-appellant and the investigation was kept pending against the co-accused. The matter was committed to Addl. District & Sessions Judge, Sambhar Lake, which was later on, transferred to Addl. District and Sessions Judge, Dudu on 02.06.2018. After hearing the parties on the charge, learned Court below framed charges under Sections 302, 201, 379 IPC. Appellant denied the charges and claimed trial. Upon which, the prosecution examined as many as 22 witnesses and exhibited 44 documents. Explanation of the accused was recorded under Section 313 Cr.P.C., wherein he denied the case and stated that he has been falsely implicated in the case. After hearing the parties, learned Addl. District & Sessions Judge, Dudu vide impugned judgment dated 05.04.2019, convicted the accused-appellant for offence under Sections 302, 201, 379 of IPC and sentenced the accused as herein above mentioned. Aggrieved by which, the present appeal has been filed. After hearing the parties, learned Addl. District & Sessions Judge, Dudu vide impugned judgment dated 05.04.2019, convicted the accused-appellant for offence under Sections 302, 201, 379 of IPC and sentenced the accused as herein above mentioned. Aggrieved by which, the present appeal has been filed. 3. It is contended by counsel for the appellant that the case rests on circumstantial evidence. There are discrepancies which goes to the root of the matter. As per the prosecution version, the accused came to the house of the complainant and asked for twenty thousand rupees and papers of JCB and the same were given by Doli Bai who is mother of the deceased. It is argued that Doli Bai has not been produced by the prosecution as a witness. It is also contended that the CDR have not been filed by the prosecution in spite of many opportunities been given by the learned Trial Judge, which goes to show that no incriminating material was available in the CDR and it is only for that reason that the prosecution has not filed the CDR along with certificate under Section 65-B of the Evidence Act. 4. It is also contended that the circumstances do not form a complete chain, so as to infer that the accused has committed the alleged offence. It is contended that the dead body was recovered in Dudu near National Highway-8 on 14.05.2012 vide Exhibit P-3. JCB was recovered from Bharatpur on 20.05.2012 vide Exhibit P-9, the motorcycle was recovered from Haryana on 30.05.2012 vide Exhibit P-29 and the RC of JCB was recovered on 23.05.2012 vide Exhibit P-10 from the accused prior to his arrest. It is also contended that no CCTV footage of toll has been produced to establish that the JCB was taken away by the appellant. It is also contended that as per the charge which was framed against the accused, accused caused fatal injury on the head of the deceased, as a result of which, the deceased died and that the incident took place at the temple of Beruji Balaji and it was committed by the co-accused who is absconding. It is argued that as per the postmortem report, the cause of the death was not injury caused to the deceased on the head, but was due to strangulation. It is argued that as per the postmortem report, the cause of the death was not injury caused to the deceased on the head, but was due to strangulation. It is contended that the charge as framed does not tally with the evidence on record and in actual, the deceased has been strangulated as per the medical report produced before the Court. 5. It is also contended that the circumstance against the accused as made out by the prosecution is the last seen evidence. In this regard, prosecution has examined PW-2 (Rukmani), wife of the deceased, PW-5 (Sohan Singh), cousin of the deceased and PW-6 (Nathu Singh) who is also cousin of the deceased. It is argued that PW-2 in her cross-examination, has admitted that she does not know that on the last occasion, who was driving the JCB. She has also stated that when the accused came to the house to collect the documents of JCB, she was not at house, but was at the farm. As per PW-2, accused came in the morning at their house and took twenty thousand rupees from mother of the deceased for repair of JCB. As per her version, accused also took away the original papers of the JCB. It is also mentioned in her statement that the mother of the deceased asked the accused to call up the deceased and that she wanted to talk to the deceased before giving money. It is argued that mother of the deceased has not been produced by the prosecution and thus, hearsay evidence cannot be considered, as PW-2 was not present at the time when allegedly the accused came to the house of the deceased and took twenty thousand rupees and the documents of the JCB from mother of the deceased. In relation to PW-5 & 6, it is contended that both these witnesses are interested witness. 6. It is contended that the JCB was not recovered at the instance of the accused and that the same was recovered prior to the arrest of the accused and thus, no fact as such was discovered under Section 27 of the Evidence Act. It is also contended that the original RC of the JCB was seized on 23.05.2012 i.e. prior to the arrest of the accused and no fact as such has been discovered at the instance of the accused. It is also contended that the original RC of the JCB was seized on 23.05.2012 i.e. prior to the arrest of the accused and no fact as such has been discovered at the instance of the accused. Thus, the above mentioned recoveries cannot be considered as circumstance against the accused. It is also contended that it is not established that the motorcycle which was recovered by the police belonged to the deceased. No RC has been recovered by the police to establish the ownership of the motorcycle. It is contended that in his examination under Section 313 Cr.P.C., the accused has clearly stated that he has never worked as driver of the deceased and that no JCB or motorcycle were recovered from him and that the police has obtained his signatures on a blank paper. He has clearly stated that he is innocent and has been falsely implicated in this case. It is argued by counsel that police has not produced any driving license to establish that the accused was the driver and was having license to drive JCB which is a commercial vehicle. 7. Learned Addl. Government Advocate has opposed the appeal. It is contended that there is evidence of last seen that the accused after murdering the deceased carried the deceased in the cabin of the JCB and after disposing of the body, took away the JCB. It is also contended that the chain is connected and that the offence has been proved by the prosecution. 8. We have considered the contentions of counsel for the parties and have carefully perused the record. 9. Admittedly, PW-2 who is wife of the deceased has not seen the deceased going with the appellant. She has not seen the appellant taking money from her mother-in-law and the original documents of the JCB as she has clearly stated in her statement that when accused came to her house to take documents of JCB, she was at the farm and that nothing was witnessed by her and that it was her mother-in-law who gave the papers of JCB and twenty thousand rupees to the appellant. Surprisingly, mother of the deceased has not been produced in evidence to establish that she gave money and the original documents of JCB to the appellant. 10. Surprisingly, mother of the deceased has not been produced in evidence to establish that she gave money and the original documents of JCB to the appellant. 10. From perusal of the missing person report (Ex.P-6), as lodged by PW-2, it is revealed that she had mentioned that on Wednesday at about 8:00-9:00 pm, her husband went with the appellant to sleep at temple of Bheruji Balaji and that her husband told her that they would be sleeping in the temple and would go to Udaipur early morning for servicing of JCB. She has stated that in the morning at around 05:00 am, she saw Samir driving the JCB and her husband riding the motorcycle. Thereafter, after two hours, Samir returned on the motorcycle to her house and asked for twenty thousand rupees, on which, her mother-in-law gave him twenty thousand rupees. Thus, report (Ex. P-6) is not in conformity with the charges which have been framed against the appellant. As per the charge, the deceased was murdered on the night itself, whereas, as per the missing person report (Ex.P-6), PW-2 (wife of the deceased) had seen the deceased going on the motorcycle in the morning. Prosecution has thus utterly failed to establish that the deceased was murdered in the night at Bheruji Balaji Temple by causing head injury to the deceased. From perusal of the postmortem report (Ex.P-44) and the statement of Dr. Lokesh Agarwal (PW-20), the cause of death was due to suffocation. As per the postmortem report, there was no head injury caused to the deceased. Suresh Pal Singh (PW-8)-Scientific Officer, State Forensic Science Lab Mobile Unit, Jaipur, in his evidence has admitted that there was no visible injury on the person of the deceased. 11. It is pertinent to note that the JCB was taken from Rajasmand and was recovered from Bharatpur. Police had not made any efforts to obtain the CCTV footage of toll from Rajasmand to Bharatpur to establish that the same was driven by the accused or that body of the deceased was carried in the JCB from Rajasmand to Bharapur. 12. Apex Court in the case of Padala Veera Reddy Vs. State of Andhra Pradesh & Ors. Police had not made any efforts to obtain the CCTV footage of toll from Rajasmand to Bharatpur to establish that the same was driven by the accused or that body of the deceased was carried in the JCB from Rajasmand to Bharapur. 12. Apex Court in the case of Padala Veera Reddy Vs. State of Andhra Pradesh & Ors. AIR 1990 SC 79 has held that when a case rests on circumstantial evidence, such evidence must satisfy the following tests:- “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 13. Learned Trial Court has convicted the accused on the basis of statement of PW-2, 5 & 6. We are of the considered view that chain of the circumstances is not connected and the circumstances are not proved, so as to come to the conclusion that the accused and accused alone is guilty of committing the offence. The prosecution has not produced the CDR of mobiles of the deceased and the accused to establish that they were together. No CCTV footage of toll has been produced to establish that the JCB was taken from Rajasamand to Bharatpur and that the motorcycle was taken from Rajasmand to Haryana. As per missing person report lodged by PW-2, she had seen her husband going in the morning on the motorcycle, whereas in her Court statement, she has stated that she was not present at the time when the JCB and the motorcycle were taken in the morning. Thus, PW-2 does not seem neither to be a reliable witness nor a last seen witness. Prosecution has failed to examine the mother of the deceased, whose evidence was material to establish the fact that the amount of Rs.20,000/- was given to the accused-appellant. Thus, PW-2 does not seem neither to be a reliable witness nor a last seen witness. Prosecution has failed to examine the mother of the deceased, whose evidence was material to establish the fact that the amount of Rs.20,000/- was given to the accused-appellant. Prosecution has also not produced the driving license of the appellant to establish that he was the driver and was having license to drive JCB which is a commercial vehicle. We are thus of the view that the prosecution has utterly failed to establish the charges against the accused and the accused/ appellant is entitled for acquittal. 14. Consequently, the appeal filed by the appellant is allowed. Judgment and sentence dated 05.04.2019 passed by Addl. Sessions Judge, Dudu is quashed and set aside. The appellant is acquitted of the charges levelled against him. He is in jail, he be set at liberty forthwith, if not required in any other case or for any other purpose. 15. Appellant is directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon’ble Apex Court. The bail bond will be effective for a period of six months. 16. Record of the trial Court be returned back forthwith.