JUDGMENT : [Goutam Bhaduri, J.] Heard. 1. Instant appeal is against the judgement dated 8/01/2013 passed by the Second Additional Sessions Judge, Raipur in Sessions Case No.123/2012 whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo RI for life with fine of Rs.500/-, in default of payment of fine amount, to undergo additional RI for 6 months and under Section 25 & 27 of Arms Act, the appellant has been sentenced to undergo RI for three years with fine amount of Rs.500/-, in default of payment of fine amount, additional RI for six months and both the sentences were directed to run concurrently. 2. The prosecution case, in brief, is that the accused Durgesh Dewangan and Sanjay Diwan (since deceased) were the friends and used to hobnob with each other. On the date of incident on 19/02/2012 in between 3 pm to 8.30 pm they consumed liquor. Thereafter, certain more liquor was demanded by the deceased, the same could not work out and in the process, certain obscene words were uttered by the deceased against the wife of the accused. Being enraged by such act, the accused went back to his house and came back with a chopper with an intention to eliminate deceased Sanjay Diwan. Having found him in the house, he assaulted him on various parts of the body, thereafter concealed the chopper in the house of the deceased behind the pot at the roof. The merg (Ex.P/2) was registered at the behest of the father of the deceased. The dead body of the deceased was subjected to postmortem and it was reported to be homicidal in nature vide postmortem report (Ex.P/14). Thereafter, FIR (Ex.P/1) was registered and investigation was carried out. Subsequently, the accused was apprehended and on his memorandum he admitted to have committed the guilt. Further at his instance, the weapon used for commission of crime was seized from the house of the deceased as also the T-shirt and pant were also seized. The said seized articles were sent for FSL and after recording the statement of the various witnesses and after committal, the charge sheet was filed. 3. During the course of trial, the appellant abjured his guilt. The prosecution examined as many as 17 witnesses and after trial the appellant was convicted under Section 302 of IPC and Section 25, 27 of Arms Act. Hence, this appeal. 3. During the course of trial, the appellant abjured his guilt. The prosecution examined as many as 17 witnesses and after trial the appellant was convicted under Section 302 of IPC and Section 25, 27 of Arms Act. Hence, this appeal. 4. Learned counsel for the appellant would submit that the conviction is based on circumstantial evidence of last seen theory of PW-8, PW-9 and PW-11. He would further submit that if their statements are examined, no body has stated the happening of the incident and fact that after first consumption of liquor when the accused went back to his house, he again entered to the house of the deceased there is no evidence. He would submit that therefore there is a strong apprehension that the author of the crime may be some one different. He would submit that when the conviction is based on circumstantial evidence, then prosecution has to establish the chain of evidence to prove the guilt, it cannot be on the presumption. He would submit that even the alleged weapon which was used in the crime and the T-shirt and the full pant which were seized alleging that it contained the blood stains, though it was sent for FSL but the report is not filed by the prosecution even to show the presence of human blood, therefore the conviction is completely illegal and only on the basis of presumption. Thus, the accused needs to be acquitted. 5. Per contra, learned State counsel would submit that statement of the PW-8, PW-9 and PW-11 would categorically demonstrate the fact of motive and the intention. Referring to the statement of PW-11, State counsel would submit that after reading the statement, the commission of the crime is established which is followed by the motive and since after quarrel the accused went back and came back with a weapon to cause the murder the chain is established. He would submit that order of conviction is well merited which do not call for any interference. 6. We have heard learned counsel for the parties and perused the evidence as also the record. Reading of the judgement would show that the learned Sessions Judge has relied on the statement of PW-8, PW-9 and PW-11 apart from the memorandum and seizure. 6. We have heard learned counsel for the parties and perused the evidence as also the record. Reading of the judgement would show that the learned Sessions Judge has relied on the statement of PW-8, PW-9 and PW-11 apart from the memorandum and seizure. Admittedly, the witnesses cited by the prosecution are not eye witnesses who have seen the incident and the conviction is based on last seen theory, meaning thereby the conviction is based on circumstantial evidence. 7. The Supreme Court in the matter of State of Goa Vs. Sanjay Thakran & Anr. reported in (2007) 3 SCC 755 had evaluated the last seen theory subject. The Court has reiterated the view from the Bodhraj v. State of J & K. reported in (2002) 8 SCC 45 wherein it laid down that the 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 would be a relevant factor if the time is small to draw inference that any person other than the accused being the author of the crime becomes impossible. 8. Para 31 and 32 of the judgement State of Goa Vs. Sanjay Thakran (supra) would be relevant to evaluate the statement of the witness in this case which are reproduced hereunder:- “31. xxxx It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodhraj v. State of J & K (2002) 8 SCC 45 as under: (SCC p. 63, para 31) "31. The last-seen theory comes into play where the timegap 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 author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. .." [See also : State of U.P. v. Satish, JT 2005(2) SC 153 = (2005) 3 SCC 114 (para 22) and Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172 (SCC para 27).” “32. In Ramreddy Rajesh Khanna Reddy (2006) 10 SCC 172 , this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.” 9. Statement of PW-8 Prakash Sharma shows that he has only stated that while he was going with a friend, he saw Sanjay the deceased and Durgesh the accused were quarreling in the lane, they were advised why they are quarreling, then it was stated that they were not fighting but there is some misunderstanding and on the subsequent date they came to know that Sanjay Diwan is dead. This witness has not stated anything about the time of the incident of such quarrel. PW-9 Kartik Ram stated that at about 9 am when he went to the house of Sanjay Diwan, he was present there, the deceased demanded some money from him but he refused. At that time, the accused came to his house and he went out for his duty. Subsequently, at about 9 pm the police reached to the spot. PW-9 was declared hostile and was confronted with his 161 statement Ex. P-13 and reading of the said statement also do not divulge any accusation to the appellant except the fact that they were seen last together at about 9 am. 10. PW-11 Radhika Prasad Tiwari stated that at about 11.30 am when he went to the house of Sanjay Diwan, the deceased as he wanted to take the house on rent, he saw the deceased and the accused there. 10. PW-11 Radhika Prasad Tiwari stated that at about 11.30 am when he went to the house of Sanjay Diwan, the deceased as he wanted to take the house on rent, he saw the deceased and the accused there. They were in drunken state as such he left the place. When he was leaving such site Sanjay uttered some word against the wife of the accused which he advised not to say, thereafter in order to stop further aggravation of the dispute, he advised Durgesh the accused to go to his house and Durgesh thereafter went out from the house of the deceased. When he came back he again saw that certain quarrel was going on in between the deceased and Durgesh. He advised Durgesh again to go back and he went back to his house. On the subsequent date, he came to know about death of Sanjay Diwan. 11. According to the prosecution, the accused went back from his house with a weapon i.e. chopper and assaulted Sanjay at his house. There is no evidence to the fact that when again at what time Durgesh (the accused) again went back and entered the house of the deceased, though on the basis of the last seen theory and the circumstantial evidence, the accused is being inculpated but time gap of re-entering to house of deceased is absent. In merg Ex.P-2 of 19/02/2012 the incident has been shown in between 3 pm to 8.30 pm, so the time gap between the incident and the last seen theory has not been satisfactorily connected. There is no explanation when the actual assault took place to say certainly that after last seen together in morning again the accused went back to house of deceased and assaulted him in evening. As per the postmortem report Ex.P-14 which was carried out on 20/02/2012, the duration of death was 24 hours prior to the postmortem and was homicidal in nature. This may raise a suspicion but conviction cannot be maintained merely on suspicion, howsoever strong it may. 12. The Supreme Court in the matter of Baiju Kumar Soni & anr. Vs. As per the postmortem report Ex.P-14 which was carried out on 20/02/2012, the duration of death was 24 hours prior to the postmortem and was homicidal in nature. This may raise a suspicion but conviction cannot be maintained merely on suspicion, howsoever strong it may. 12. The Supreme Court in the matter of Baiju Kumar Soni & anr. Vs. State of Jharkhand reported in (2019) 7 SCC 773 has laid down the principle to be followed in cases of circumstantial evidence to say that every circumstance must be fully proved and all the circumstances must form a chain of evidence so complete to exclude every hypothesis other than the guilt of the accused. The Court in para 15 and 16 has held as under:- “15. The law on the point is very well settled that in a case based on circumstantial evidence, every circumstance must be fully proved and all the circumstances must form a chain of evidence so complete as to exclude every hypothesis other than the guilt of the accused. It was stated by this Court in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 (SCC p. 185, para 153) “153. 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. 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 v. State of Maharashtra, (1973) 2 SCC 793 , where the following observations were made: (SCC p. 807, para 19) '19....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, and (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.” “16. In Nizam v. State of Rajasthan (2016) 1 SCC 550 , the law on the point was reiterated while acquitting the accused of the charges under Section 302 read with 201 IPC. Paras 9 and 10 of the decision were:- (SCC pp. 555-56) “9. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj v. State of J&K (2002) 8 SCC 45 , wherein this Court quoted (2016) 1 SCC 550 a number of judgments and held as under: (SCC pp. 55-56, paras 10-11) 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 person. 55-56, paras 10-11) 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 person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99 , Eradu v. State of Hyderabad AIR 1956 SC 316 , Earabhadrappa v. State of Karnataka (1983) 2 SCC 330 , State of U.P. v. Sukhbasi (1985) Supp SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P. (1989) Supp (1) SCC 560. 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 v. 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 home the offences beyond any reasonable doubt. 11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: (SCC pp. 206-07, para 21) ‘21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.’” 10. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 , this Court held as under: (SCC p. 689, para 12) '12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 , this Court held as under: (SCC p. 689, para 12) '12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.' The same principles were reiterated in Sunil Clifford Daniel v. State of Punjab (2012) 11 SCC 205 , Sampath Kumar v. Inspector of Police (2012) 4 SCC 124 and Mohd. Arif v. State (NCT of Delhi) (2011) 13 SCC 621 and a number of other decisions.” 13. Examination of the evidence in view of the aforesaid principle, the evaluation of the statement of witnesses PW-8, PW-9 and PW-11 do not prove or point out the completion of chain to draw the inference. Faintly the prosecution has tried to fall back to the memorandum Ex.P/8 to show the seizure of the weapon i.e. chopper from the house of the deceased by Ex.P/9 at the instance of accused. The memorandum witness PW-5 has not supported the memorandum and another witness PW-6 in his cross-examination would show that he stated that he had signed in many papers which also creates a doubt. By such memorandum, apart from the weapon, the T-shirt and pant were also seized by Ex.P/11 that was of the deceased and it was sent for FSL. No FSL report is on record. So in absence of positive material to indicate that stained blood was of human origin and of the same blood group as that of the accused/deceased it would be difficult for the Court to rely upon the aspect of recovery of weapon as also the blood stained cloths. This proposition was further laid down by the Supreme Court in case of Balwan Singh Vs. State of Chhattisgarh & Anr. This proposition was further laid down by the Supreme Court in case of Balwan Singh Vs. State of Chhattisgarh & Anr. reported in (2019) 7 SCC 781 . Consequently, the recovery so made without support of FSL report would also not help out the prosecution in any manner. 14. In view of the aforesaid discussion, we are of the view that judgement and conviction passed by the learned Court cannot be sustained. 15. Accordingly, conviction and sentence imposed on the appellant under Section 302 of the IPC and Sections 25 and 27 of the Arms Act are set aside and he is acquitted of the said charges. The appellant is on bail. His bail bonds shall remain in operation for a period of six months from today in view of the provisions contained under Section 437(A) of the Cr.P.C. The appellant shall appear before the higher court as and when directed. 16. Accordingly, appeal stands allowed.