JUDGMENT : (Bhuwan Goyal J.) : 1. The appellant-State of Rajasthan has preferred instant appeal under Section 378 of the Code of Criminal Procedure, 1973 against impugned Judgment and Order dated 24.10.2002 passed by the Additional Sessions Judge (Fast Track), Sikar in Sessions Case No. 36/2001 titled as "State of Rajasthan vs. Gajanand", whereby accused-respondent - Gajanand was acquitted of offences under Sections 302 & 201 of I.P.C. 2. Brief facts relevant and essential for disposal of present appeal are that on 24.11.2000, complainant - Suwalal (P.W. 2) submitted the typed report (Ex.P/2) before the S.H.O. Police Station Sadar, Sikar, wherein it was alleged that his younger brother Hari Prasad was running a small shop in their village but on account of less margin, his younger brother Hari Prasad was in search of another employment. On 12.11.2000, Gajanand came to their house in his presence and told his brother Hari Prasad in his presence that he was having contact with big contractors at Sikar and he will get him permanently employed with them, for which you will have to come to Sikar with him tomorrow on 13.11.2000, upon which, his brother Hari Prasad agreed. On 13.11.2000, his brother Hari Prasad with said Gajanand departed for Sikar. Hari Prasad told him and other family members that he will return by evening after purchasing household items and goods for the shop. But his brother did not return to village for 3-4 days, upon which, he and his family members started worried about Hari Prasad and they searched Hari Prasad at Sikar and in their relatives but did not find his whereabouts. The marriage of his maternal cousin Sanwarmal son of Premchand was fixed on 18.11.2000 and the marriage of his niece Ms. Geeta was scheduled at his house on 21st & 22nd November, 2000. At that time also, Hari Prasad did not return to the house, so they got worried. On 23.11.2000, one Satyanarayan Master informed that a news was published under the heading "Naale me sada gala shav mila" in the Rajasthan Patrika on 20.11.2000, upon which, he read said news and saw photograph and description then, he felt like his brother, whereupon, he along with Ramswaroop, Suresh Kumar, Puranmal Jangid, Premchand of their village came at Police Station Sadar, Sikar and saw the photographs and clothes, which were of his brother Hari Prasad. Further, it was alleged that said Gajanand who was "Dharam Bhaai" of his brother Hari Prasad, used to visit house of Hari Prasad. Said Gajanand was having illicit relations with wife of Hari Prasad, namely, Chhoti Devi and on account of said illicit relations, Gajanand with the help of his companions murdered his brother Hari Prasad and threw his dead body in the drainage at Nani Ki Beed in order to conceal the criminal act of his murder. Further, it was alleged that strict legal action may be taken against said Gajanand and his companions, who were involved in this murder. 3. On the basis of said report, an F.I.R. No.343/2000 (Ex.P/3) came to be registered at the Police Station Sadar, Sikar for the offences under Sections 302 & 201 of I.P.C. and investigation was commenced. After conclusion of investigation, police submitted charge-sheet against accused-respondent for the offences under Sections 302 & 201 of I.P.C. before the court of Chief Judicial Magistrate, Sikar, who took cognizance of aforesaid offences against accused-respondent and committed the case to the Court of Sessions, from where it was transferred to the court of Additional Sessions Judge (Fast Track), Sikar (hereinafter referred to as "learned trial court"). 4. Learned trial court framed charges against accused-respondent for the offences under Sections 302 & 201 of I.P.C. The accused-respondent pleaded not guilty and claimed trial. The prosecution examined as many as 23 witnesses and exhibited Ex.P/1 to Ex.P/31 documents to prove its case. After conclusion of the prosecution evidence, accused-respondent was examined under Section 313 of Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution case, which he denied and claimed that prosecution evidence was false, he was innocent and had been falsely implicated in the case. The accused-respondent did not produce any oral evidence but got exhibited Ex.D/1 to Ex.D/5 documents in his defence. 5. Learned trial court, thereafter, proceeded to hear the arguments of the Public Prosecutor and the defence counsel, appreciated evidence available on record and delivered impugned judgment dated 24.10.2002, whereby accused-respondent was acquitted of charges levelled against him. Aggrieved with the same, present appeal has been filed by the appellant - State of Rajasthan before this Court. 6. Heard learned counsel for the parties. 7. Aggrieved with the same, present appeal has been filed by the appellant - State of Rajasthan before this Court. 6. Heard learned counsel for the parties. 7. Learned Additional Government Advocate appearing for the appellant - State has submitted that prosecution has produced cogent evidence and proved its case against accused-respondent beyond reasonable doubt. He has also submitted that wife of the deceased Hari Prasad, namely, Chhoti Devi was having illicit relations with accused-respondent Gajanand, in which Hari Prasad was a hurdle, therefore, accused-respondent Gajanand in the garb of getting him permanently employed at Sikar, took deceased Hari Prasad with him and committed his murder by strangulation and thereafter, threw dead body of Hari Prasad in the drainage in order to cause disappearance of evidence of his murder, which has been established from testimony of P.W. 2 - Suwalal. But despite that the trial court without appreciating the evidence on record, wrongly acquitted accused-respondent for the offence alleged against him. Therefore, he has prayed that appeal preferred by the appellant - State may be allowed and accused-respondent – Gajanand may be convicted and sentenced for the offences alleged against him. 8. Per contra, learned counsel appearing for the accused-respondent while supporting the judgment passed by the trial court, has submitted that entire prosecution case rests upon circumstantial evidence and there is no eye-witness of alleged incident in the present case. The prosecution has failed to complete the chain of circumstances so as to prove that deceased was murdered by the accused-respondent and none else. Learned counsel for the accused-respondent has also submitted that prosecution witnesses viz. P.W. 6 - Puranmal, P.W. 7 - Sohanlal, P.W. 8 - Bhawani Shanker, P.W. 9 - Vimal Kumar, P.W. 18 - Vasudev and P.W. 21 - Prabhu Dayal have not supported the prosecution story and declared hostile. Learned counsel for the accused-respondent has further submitted that from the evidence on record, it has not been established that accused-respondent came to the house of deceased on 12.11.2000 and thereafter, took deceased with him for getting him employed at Sikar on 13.11.2000. The prosecution story that deceased Hari Prasad was last seen in the company of the accused-respondent too has not been proved. Learned counsel for the accused-respondent has further submitted that the prosecution has also failed to prove that accused-respondent was having illicit relations with the wife of the deceased, namely, Chhoti Devi. The prosecution story that deceased Hari Prasad was last seen in the company of the accused-respondent too has not been proved. Learned counsel for the accused-respondent has further submitted that the prosecution has also failed to prove that accused-respondent was having illicit relations with the wife of the deceased, namely, Chhoti Devi. Neither any recovery was effected from accused-respondent nor his presence was proved at the place of incident because no mobile tower location of the accused-respondent has been produced on record by the prosecution. Learned counsel for the accused-respondent has further submitted that there is delay in recording police statements of witnesses Chhoti Devi and others and no explanation in this regard has been put forward by the prosecution. He has also submitted that there is delay in lodging the F.I.R. as report regarding incident was submitted much days after the incident and no explanation for such delay has been furnished by the prosecution. He has, thus, contended that the trial court has rightly appreciated material as well as evidence available on record and has not committed any error in passing the judgment and order of acquittal impugned herein. Learned counsel has, therefore, prayed that present appeal filed by the appellant-State may be dismissed. 9. We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through impugned judgment as well as record of the case and have minutely sifted through evidence available on record. 10. The law with regard to conviction on the basis of circumstantial evidence has been very well crystalised in the judgment of Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 . A close analysis of said decision would show that 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. A close analysis of said decision would show that 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. (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." 11. In the light of these guiding principles, let us examine the facts in the present case. 12. In the instant case, as per prosecution story in F.I.R. as well as statement of P.W. 2 - Suwalal, accused-respondent came to the house of deceased Hari Prasad on 12.11.2000 and at that time, he, Chhoti Devi and Suresh were present there but the above fact has not been established from the statements of P.W. 4 Suresh, who is brother of the deceased and P.W. 14 - Chhoti Devi, who is wife of the deceased because both these witnesses in their statements have not stated that accused-respondent came to their house on 12.11.2000. Thus, from the evidence of above witnesses, it has not been established beyond reasonable doubt that accused-respondent came to the house of deceased on 12.11.2000. 13. So far as prosecution story that accused-respondent had taken deceased with him at Sikar to get him employed there on 13.11.2000 is concerned, on perusal of the evidence on record, it reveals that deceased was physically disabled and was unable to do any heavy work due to paralysis. P.W. 2 - Suwalal in his cross[ examination has admitted that deceased Hari Prasad had paralysis in his right hand, right leg and complete right side, which was there for about last 8-10 years and he could not pick up bundle and matchbox with his right hand because fingers of his right hand were not working. P.W. 2 - Suwalal in his cross[ examination has admitted that deceased Hari Prasad had paralysis in his right hand, right leg and complete right side, which was there for about last 8-10 years and he could not pick up bundle and matchbox with his right hand because fingers of his right hand were not working. P.W. 14 - Chhoti Devi (wife of the deceased) also admitted in her examination-in-chief that her husband could not do any heavy work due to paralysis and he was not able to do heavy work being disabled. Thus, from the evidence of above witnesses, in our considered opinion, the prosecution story that accused-respondent took deceased Hari Prasad with him to Sikar on 13.11.2000 in order to get him employed does not appear to be believable. This circumstance is, thus, not established. 14. So far as prosecution story that deceased Hari Prasad was last seen with accused-respondent at bus stand is concerned, prosecution in order to prove said fact has produced P.W. 3 - Satyanarayan and P.W. 5 - Premchand. But the statement made by both above witnesses has not been corroborated from the evidence of P.W. 7 - Sohanlal & P.W. 8 - Bhawani Shanker, who are stated to be conductor and driver of the bus, in which deceased Hari Prasad is stated to have travelled with accused-respondent because P.W. 7 - Sohanlal and P.W. 8 - Bhawani Shanker have not stated that accused-respondent and deceased Hari Prasad travelled in their bus on 13.11.2000. P.W. 7 - Sohanlal in his cross-examination has stated that accused-respondent Gajanand did not come with Hari Prasad on 13.11.2000 and that Gajanand did not travel to Sikar in their bus on that day. P.W. 8 - Bhawani Shanker in his cross-examination has admitted that he did not notice Gajanand sitting in his bus. 15. It is pertinent to note that above-said fact is also not mentioned in the police statements of P.W. 3 - Satyanarayan and P.W. 5 - Premchand (Ex.D/2 & Ex.D/4). It is also pertinent to note that police statements of both these witnesses have been recorded after many days of the incident. 16. In the case of Ganesh Bhavan Patel & Anr. It is also pertinent to note that police statements of both these witnesses have been recorded after many days of the incident. 16. In the case of Ganesh Bhavan Patel & Anr. vs. State of Maharashtra reported in 1979 AIR 135, the Hon'ble Supreme Court has observed as under :- "In the instant case, some of the main reasons given by the trial court could not be effectively and rationally dispelled. One of such reasons, which cast a cloud on the credibility of the prosecution evidence, was that there was inordinate delay of several hours on the part of the police in recording the statement which was treated as F.I.R. and further undue delay in recording the statements of the alleged eye-witnesses by the investigating officer, and no credible explanation of these delays was forthcoming. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements were recorded on the following day. Such delay may not, by themselves, amount to a serious infirmity in the prosecution case. But they may assume such a character if there are circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such sinister significance to these delays, exists in the instant case, which inevitably lead to the conclusion that the prosecution story was conceived and constructed after a good deal of deliberation, in a shady setting highly redolent of doubt and suspicion." 17. Applying the ratio of law laid down in the case of Ganesh Bhavan Patel (supra), in the case in hand, it is an admitted position that police statements of P.W. 3 - Satyanarayan and P.W. 5 - Premchand i.e. Ex.D/2 & Ex.D/4 were recorded after 1 month & 11 days and 11 days of alleged incident, respectively and there is no evidence on record to show that after alleged incident, both of them had immediately left the village and were not available for recording their statements, therefore, in view of the proposition of law laid down by the Hon'ble Supreme Court, statements of both above witnesses do not appear to be worth credence. Thus, from the evidence of above witnesses, neither the prosecution story regarding last seen evidence has been established nor chain of circumstances is complete. 18. So far as the prosecution story that deceased Hari Prasad with accused-respondent went to the shop of Vimal Kumar and purchased the goods is concerned, it is pertinent to mention here that P.W. 9 - Vimal Kumar in his examination-in-chief has categorically stated that Hari Prasad was having paralysis and when Hari Prasad had come to purchase goods from his shop, at that time, no person came with him. From the evidence of this witness also, the chain of prosecution story is not complete. 19. Now adverting to the question of motive of the accused-respondent, as per prosecution story, accused-respondent was having illicit relations with wife of the deceased Chhoti Devi, in which deceased was a hurdle, therefore, accused-respondent murdered deceased Hari Prasad. In this regard, on perusal of the statement of P.W. 14 - Chhoti Devi, who is wife of the deceased, she in her examination-in-chief has stated that once Gajanand tried to molest him, then quarrel took place between her husband and Gajanand but Gajanand apologized for the same and thereafter, Gajanand used to visit their house. In our opinion, if wife of the deceased Chhoti Devi would have illicit relations with accused-respondent, then her husband and other members of in-laws family must have objected to accused Gajanand visiting their house. Thus, the prosecution has failed to establish the motive of the accused-respondent to murder the deceased. 20. It would be pertinent to mention here that neither any recovery has been effected from accused-respondent nor his mobile tower location has been produced on record by the prosecution to connect him with alleged offence. 21. So far as delay in F.I.R. is concerned, in the case in hand, the incident is stated to have taken place 13.11.2000, whereas, F.I.R. has been got instituted as late as on 24.11.2000 i.e. after 11 days of the incident and no explanation for said delay has been furnished by the prosecution, which enables to draw an adverse inference against the prosecution story. 22. In view of the above discussion, we are of the considered opinion that the trial court has not erred in passing the judgment and order dated 24.10.2002 acquitting accused-respondent for the offences alleged in the present case. 23. 22. In view of the above discussion, we are of the considered opinion that the trial court has not erred in passing the judgment and order dated 24.10.2002 acquitting accused-respondent for the offences alleged in the present case. 23. Accordingly, present criminal appeal filed by the appellant- State of Rajasthan is dismissed and the judgment and order dated 24.10.2002 passed by the trial court is upheld. 24. The record of the learned trial court be sent back forthwith.