NIZAM & ANR.versusSTATE OF RAJASTHAN

                       [2015] 10 S.C.R. 786


A                         NIZAM&ANR.
                                v.
                     STATE OF RAJASTHAN
                (Criminal Appeal No.413 of 2007)
B                    SEPTEMBER 04, 2015
            [DIPAK MISRA AND R. BANUMATHI, JJ.]
        Penal Code, 1860- ss. 302 and 201 - Prosecution under
   - Based on circumstantial evidence - Conviction by courts
C below - On appeal, held: For establishing the guilt on the
   basis of circumstantial evidence, the circumstances must be
   firmly established and the chain of circumstances must be
   complete from the facts - There are many loopholes in the
   prosecution case - In the facts of the case, chain of
 D circumstances were not complete so as to point only to the
   guilt of the accused and no other inference :- If more than
   one inferences can be drawn, then the accused must have
   the benefit of doubt - Therefore, conviction of appe/lants-
.E accused cannot be sustained - Evidence - Circumstantial
   Evidence.
       Evidence - Circumstantial evidence - 'Last seen theory'
  - Applicability of - Held: The theory should be applied by
  taking the prosecution case, in its entirety keeping in mind
F the circumstances that precede and follow the point of being
  so last seen - Only if the prosecution proves that the
  deceased was last seen alive in the company of accused,
  an inference can be drawn against the accused and only then
  onus can be 'shifted on accused u/s. 106 of Evidence Act- It
G is not prudent to base the conviction solely on 'last seen
  theory' - Where the time gap between the deceased last seen
  and the recovery of his body is long, it would be unsafe to
  base the conviction without looking for corroboration from any
H other circumstances and evidence -- Evidence Act, 1872 -
  s.106.
                                786
         NIZAM &ANR. v. STATE OF RAJASTHAN                    787


     Constitution of India, 1950-Art. 136 - Jurisdiction under A
- Held: Normally, interference with concurrent findings is not
permissible - But where material aspects have not been
taken into consideration and where the findings of courts are
unsupportable from the evidence resulting in miscarriage of
justice, interference in exercise of such jurisdiction is B
permissible.
    Allowing the appeal, the Court

    HELD: 1.1 Case of the prosecution is entirely based C
on the circumstantial evidence. In a case based on
circumstantial evidence, 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 0
circumstances should be complete, forming a chain 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
tOtally inconsistent with his evidence. [Para 8] [794-0-E] E
     Bodhraj@ Bodha and Ors. vs. State of Jammu &
     Kashmir 2002 (2) Suppl. SCR 67: (2002) 8 SCC
     45; Trimukh Maroti Kirkan vs. State of
     Maharashtra 2006 (7) Suppl. SCR 156: (2006)
                                                              F
     10 SCC 681; Sunil Clifford Daniel vs. State of
     Punjab 2012 (7) SCR 1100: (2012) 11 SCC 205;
     Sampath Kumar vs. Inspector of Police,
     Krishnagiri 2012 (2) SCR 289: (2012) 4 SCC 124;
     Mohd. Arif@Ashfaq vs. State (NCT of Delhi) 201-1         G
     (10) SCR 56: (2011) 13 SCC 621 - relied on.
    1.2 Courts below convicted the appellants on the
evidence of PWs 1 and 2 that deceased was last seen
alive with the appellants on 23.01.2001. Undoubtedly,         H
788       SUPREME COURT REPORTS              [2015] 10 S.C.R.

A "last seen theory" is an important link in the chain of
  circumstances and holds the courts to shift the burden
  of proof to the accused and the accused to offer a
  reasonable explanation as to the cause of death of the
  deceased. It is not prudent to base the conviction solely
B on "last seen theory". "Last seen theory" should be
  applied taking into consideration the case of the
  prosecution in its entirety and keeping in mind the
  circumstances that precede and follow the point of being
  so last seen. [Para 14] [797-H; 798-A-C]
c
         State of Rajasthan vs. Kashi Ram 2006 (8) Suppl.
         SCR 501: (2006) 12 SCC 254; Kiriti Pal vs. State
         of West Bengal (2015) 5 Scale 319 - referred to.

 o      1.3 Only if the prosecution has succeeded in proving
   the facts by definite evidence that the deceased was last
   seen alive in the company of the accused, a reasonable
   inference could be drawn against the accused and then
   only onus can be shifted on the accused under Section
 E 106 of the Evidence Act. [Para 16] [799-F-G]

        1.4 Where time gap is long, it would be unsafe to base
   the conviction on the "last seen theory"; it is safer to
   look for corroboration from other circumstances and
 F evidence adduced by the prosecution. From the facts
   and evidence, no other corroborative piece of evidence
   corroborating the last seen theory is found. In view of
   the gap between the time when the deceased left in the
   truck and the recovery of his body and also the place
 G and circumstances in which the body was recovered,
   possibility of others intervening cannot be ruled out. In
   the absence of definite evidence that appellants and
   deceased were last seen together and when the time gap
   is long, it would be dangerous to come to the conclusion
 H that the appellants are responsible for the murder. [Para
         NIZAM &ANR. v. ~TATE OF RAJASTHAN                      789


18] [800-D-F]                                                   A

     1.5 In the present case, neitt~er t: 1e weapon of murder
nor the money allegedly looted by the appellants or any
other material was recovered from the possession of the
appellants. There are many apparent lapses in the               B
investigation and missing links: - (i) Non-recovery of
stolen money; (ii) The weapon from which abrasions
were caused; (iii) False case lodged by PW-2 alleging
that he was being robbed by some other miscreants;
(iv) Non-identification of the dead body and (v) Non-           C
explanation as to how the deceased reached the village
where his dead body was found and injuries on his
internal organ (penis). Thus, there are many loopholes
in the case of the prosecution. For establishing the guilt
on the basis of the circumstantial evidence, the                D
circumstances must be firmly established and the chain
of circumstances must be completed from the facts. The
chain of circumstantial evidence cannot be said to be
concluded in any manner sought to be urged by the
prosecution. [Para 19] [800-G-H; 801-A-C]                       E

    1.6 Based on the evidence of PWs 1 and 2, courts
below expressed the view that motive for n:iurder of the
deceased was the lust for the money which he was
carrying. Courts below based the conviction of the F
appellants on the circumstances "last seen theory" as
stated by PWs 1 and 2 along with recover/ of bilty and
receipt by PW-6 on which the name of the accused
person was printed. But neither the amount of Rs.20,000/
- nor any part of it was recovered from the appellants. If G
the prosecution is able to prove its case on motive, it
will be a corroborative piece of evidence lending
assurance to the prosecution case. But even if the
prosecution has not been able to prove the motive, that H
790       SUPREME COURT REPORTS               [2015] 10 S.C.R.


A will not be a ground to throw away the prosecution case.
  Absence of proof of motive only demands careful
  scrutiny and deeper analysis of evidence adduced by
  the prosecution. Apart from non-recovery of the amount
  from the appellants, serious doubts arise as to the motive
B propounded by the prosecution. [Paras 12 and 13] [797-
  B-F]

      1.7 None of the circumstances relied upon by the
  prosecution and accepted by the courts below cai:i be
C said to be pointing only to the guilt of the appellants and
  no other inference. If more than one inferences can be
  drawn, then the accused must have the benefit of doubt.
  In the facts and circumstances of the case, the
  conviction of the appellants cannot be sustained. [Para
D 20] [801-E-G]                                      .

        2. Normally, this Court does not interfere in exercise
   of its powers under Article 136 of the Constitution of India
   with the concurrent findings recorded by the courts
 E below. But where material aspects have not been taken
   into consideration and where the findings of the Court
   are unsupportable from the evidence on record resulting
   in miscarriage of justice, this Court will certainly
   interfere. [Para 20] [801-D-E]
 F
                      Case Law Reference
       2002 (2) Suppl. SCR 67         relied on.   Para 9
       2006 (7) Suppl. SCR 156        relied on.   Para 10
G      2012 (7) SCR 1100              relied on.   Para 10
       2012 (2) SCR 289               relied on.   Para 10
       2011 (10) SCR56                relied on.   Para 10
       2006 (8) Suppl. SCR 501        referred to. Para 15
 H
        NIZAM &ANR. v. STATE OF RAJASTHAN                    791


  (2015) 5 Scale 319              referred to. Para 15       A
    CRIMINALAPPELLATE JUDISDICTION: Criminal Appeal
No. 413of2007.

    From the Judgment and Order dated 01.07.2005 of High
Court of Rajasthan at Jaipur in Criminal Appeal No. 1248 of B
2002.

   Shekhar Prit Jha (A.C.), Vikrant Bhardwaj for the
Appellants.
                                                             c
      Ram Naresh Yadav, Milind Kumar, Sunil Kumar Sharma
for the Respondent.

    The Judgment of the Court was delivered by

     R. BANUMATHI, J. 1. This appeal assails the correctness D
of the judgment dated 01.07.2005 passed by the High Court
of Judicature at Rajasthan Jaipur Bench in Criminal Appeal
No.1248 of 2002, whereby the High Court confirmed the
conviction of the accused-_appellants under Sections 302 and E
201 IPC and sentence of life imprisonment imposed on each
of them with a fine of Rs.2, 000/- with default clause and also
two years rigorous imprisonment with a fine of Rs.500/- with
default clause respectively.

     2. Case of the prosecution is that deceased-Manoj was F
the helper on the truck No. MP-07-2627 and had gone to Pune
and thereafter to Barar alongwith his first driver Raj Kumar
(PW-2) and second driver Ram Parkash (PW-1) and from
Barar they loaded the truck with pipes for destination to G
Ghaziabad on 23.01.2001. Accused-appellants Nizam and
Shafique who were the driver and cleaner respectively on the
truck No.DL-1 GA-5943 also loaded their truck with pipes from
the same company on the same day at Barar and started for
                                                             H
792       SUPREME COURT REPORTS               (2015] 10S.C.R.


A Ghaziabad alongwith truck No.MP-07-2627. During this period
  drivers and cleaners of both the trucks developed acquaintance
  with each other. While on the way to Ghaziabad, driver Raj
  Kumar (PW-2) of truck No.MP-07-2627 got into quarrel with
  some local persons and consequently Barar police detained
B him alongwith his truck. Faced with such situation, Raj Kumar
                                               '
  (PW-2) instructed his second driver Ram Parkash (PW-1) to
  hand over the amount of Rs.20,000/-to Manoj with instructions
  to give the money to the truck owner. Accordingly, Manoj left
  for Gwalior with accused persons by the truck No. DL-1 GA-
C 5943 on 23.01.2001.

        3. Dead body of deceased-Manoj was found on
  26.01.2001 under suspicious circumstances in a field near
  village Maniya. On 26.01.2001 at about 3.00 O'clock, one Kake
D Singh (PW-13) went to collect the fodder and found a dead
  body lying in the field and the same was informed to Shahjad
  Khan (PW-4). Based on the written information by Shahjad
  Khan (PW-4), case was registered in FIR No.16/2001 under
  Sections 302 and 201 IPC on 26.01.2001 at Thana-Maniya,
E District Dholpur. Gullu Khan(PW-16)- Investigating Officer
  seized the dead body and prepared a Panchnama. One bilty
  (Ex. P17) of Uttar Pradesh, Haryana Roadlines (Pune) and
  one receipt (Ex. P18) of Madhya Pradesh Government,
F Shivpuri Naka pertaining to truck No. DL-1GA-5943 were
  recovered from the pocket of trouser of deceased- Manoj and
  in the said bilty (Ex.P-17), name of the driver was mentioned
  as Nizam and truck No.DL-1GA-5943 and some phone
  numbers. Based on the clues obtaining in the bilty, accused
G Nizam and Shafique were arrested on 27.01.2001 and the
  truck No.DL-1GA-5943 was recovered. After due
  investigation, chargesheet was filed against the appellants-
  accused under Sections 302 and 201 IPC.

        4. To bring home the guilt of the accused-appellants,
 H
         NIZAM &ANR. v. STATE OF RAJASTHAN                          793
                 [R. BANUMATHI, J.]

prosecution has examined twenty one witnesses.                      A
Incriminating evidence and circumstances were put to
accused-appellants under Section 313 Cr. P.C. and the
accused denied all of them and accused stated that Manoj
had never travelled in their truck DL-1GA-5943. Additional
Sessions Judge, Fast Track Court No.2, Dholpur held that the        B
appellants-accused committed murder of deceased-Manoj to
grab Rs.20,000/- and the prosecution has established the
circumstances proving the accused-appellants guilty under
Sections 302 and 201 IPC and sentenced each of them to
undergo life imprisonment with a fine of Rs.2, 000/- with default   C
clause and two years rigorous imprisonment with a fine of
Rs.500/- with default clause respectively. Aggrieved by the
verdict of conviction, appellants-accused preferred appeal
before the High Court of Rajasthan, which vide impugned
                                                                    0
judgment dismissed the appeal thereby confirming the
conviction of the accused-appellants and also respective
sentence of imprisonment and fine amount imposed on each
of them. Being aggrieved, the appellants have preferred this
appeal.                                                             E

     5. Learned counsel for the appellants submitted thatthe
"last seen theory" is not applicable to the instant case as there
were serious contradictions as to the date and time in which
Manoj allegedly left with the appellants. It was further argued F
that the amount of Rs.20,000/- which was allegedly taken by
deceased-Manoj was not recovered from the possession of
the appellants. Learned counsel submitted that the
circumstances relied upon by the prosecution are not firmly
established and the circumstances do not form a complete G
chain establishing the guilt of the accused and the appellants
are falsely roped in.

    6. Per contra, learned counsel for the respondent-State
contended that the deceased having huge amount of money H
794        SUPREME COURT REPORTS                 [2015] 10 S.C.R.


A travelled in the company of the accused-appellants and when
  the prosecution has established that the deceased-Manoj was
  last seen alive in the company of the accused- appellants, it
  was for the accused to explain as to what happened to the
  deceased and in the absence of any explanation from the
B accused and based on the circumstantial evidence courts
  below rightly convicted the appellants and the impugned
  judgment warrants no interference.

       7. We have considered the rival contentions and perused
C the impugned judgment and material on record.

        8. Case of the prosecution is entirely based on the
   circumstantial evidence. In a case based on circumstantial
   evidence, settled law is that the circumstances from which the
 o conclusion of guilt is drawn should be fully proved and such
   circumstances must be conclusive in nature. Moreover, all
   the circumstances should be complete, forming a chain and
   there should be no gap left in the chain of evidence. Further,
   the proved circumstances must be consistent only with the
 E hypothesis of the guilt of the accused totally inconsistent with
   his evidence.

        9. The principle of circumstantial evidence has been
   reiterated by this Court in a plethora of cases. In Bodhraj @
 F BodhaAnd Ors. vs. State of Jammu & Kashmir,(2002) 8 SCC
   45, wherein this court quoted number of judgments and held
   as under:-
          "10. It has been consistently laid down by this Court that
          where a case rests squarely on circu.mstantial evidence,
 G·
          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
 H        Rajasthan (1977) 2 SCC 99, Eradu v. State of
        NIZAM &ANR. v. STATE OF RAJASTHAN                     795
                [R. BANUMATHI, J.]

     Hyderabad AIR 1956 SC 316, Earabhadrappa v. State A
     of Karnataka (1983) 2 SCC 330, State of U.P. .v.
     Sukhbasi (1985) Suppl. SCC 79, Ba/winder Singh v.
     State of Punjab (1987) 1 SCC 1 and Ashok Kumar
     Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560)
     The circumstances from which an inference as to the guilt B
     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 C
     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
                                                               0
     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)                                       E
        "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 arid
        such circumstances must be conclusive in nature. F
        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." G
    10. In Trimukh Maroti Kirkan vs. State of Maharashtra,
(2006) 1osec 681, this court held as under:

     "12. In tr~ case in hand there is no eyewitness of the
     occurrence and the case of the prosecution rests on H
796         SUPREME COURT REPORTS                 (2015] 10S.C.R.


A          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
B          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
c          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
    vs.State of Punjab, (2012) 11SCC205, Sampath Kumar vs.
D Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd.
    Arif @Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621
  · and a number of other decisions.

           11. By perusal of the testimonies of PWs 1, 2 and 3, it is
 E    seen that PW1 -Ram Parkash and PW2-Raj Kumar along with
      deceased cleaner Manoj got their truck No. MP-07-2627 ·
      loaded with pipes at Barar and at the same time another truck
      No:DL-1 GA-5943 of the accused Nizam and Shafique was
      also loaded with pipes. On the way to Ghaziabad, quarrel took
 F    place between the drivers of the truck No. MP 07-2627 and
      some local persons and Raj Kumar (PW-2) was detained by
      the police. Raj Kumar (PW-2) instructed Ram Parkash (PW-
      1) to hand over the amount of Rs.20,000/- to Manoj with
      instructions to give this money to the truck owner and he was
 G    sent along with accused Nizam and Shafique in the other truck
      DL-1 GA-5943. PWs 1 and 2 further stated that after being
      released from the police station, they went to Gwalior and
      enquired about Manoj from their owner Rajnish Kant (PW- 3)
 H    who had no knowledge about Manoj. In the meanwhile, based
      on the bilty and the receipt recovered from the pocket of the
        NIZAM &ANR. v. STATE OF RAJASTHAN                       797
                [R. BANUMATHI, J.]

trouser of deceased-Manoj, Maniya police contacted PW-3- A
owner of the truck and on being so contacted, PWs 1 to 3
went to Maniya Police Station and identified the deceased
person as Manoj through his clothes and photographs.

      12. Based on the evidence of PWs 1 and 2, courts below B
expressed the view that motive for murder of Manoj was the
lust for the money which Manoj was carrying. Courts below
based the conviction of the appellants on the circumstances
"last seen theory" as stated by PWs 1 and 2 along with recovery
of bilty and receipt by PW-6 on which the name of the accused C
person (Nizam) was printed. The appellants are alleged to
have committed murder of Manoj for the amount which Manoj
was carrying. But neither the amount of Rs.20,000/- nor any
part of it was recovered from the appellants. If the prosecution
is able to prove its case on motive, it will be a corroborative D
piece of evidence lending assurance to the prosecution case.
But even if the prosecution has not been able to prove the
motive, that will not be a ground to throw away the prosecution
case. Absence of proof of motive only demands careful scrutiny
and deeper analysis of evidence adduced by the prosecution. E

      13. Apart from non-recovery of the amount from the
appellants, serious doubts arise as to the motive propounded
by the prosecution. By perusal of the evidence of Sudama
Vithal Darekar (PW-17) it is clear that driver Raj Kumar came F
to. the police station complaining that by five to seven people
of other vehicle have robbed him and the money. However,
after investigation it was discovered that Raj Kumar gave false
information and a case under Section 182 IPC was registered
against him. Raj Kumar was produced before the Court and G
court imposed fine of Rs.1,000/- on him. This fact was also
verified from PW-16-investigating officer during his cross-
examination.

    14. Courts below convicted the appellants on the evidence   H
798         SUPREME COURT REPORTS                   [2015) 10 S.C.R.


A     of PWs 1 and 2 that deceased was last seen alive with the
      appellants on 23.01.2001. Undoubtedly, "last seen theory" is
      an important link in the chain of circumstances that would point
      towards the guilt of the accused with some certainty. The "last
      seen theory" holds the courts to shift the burden of proof to the
B     accused and the accused to offer a reasonable explanation
      as to the cause of death of the deceased. It is well-settled by
      this Court that it is not prudent to base the conviction solely on
      "last seen theory". "Last seen theory" should be applied taking
      into consideration the case of the prosecution in its entirety
C     and keeping in mind the circumstances that precede and follow
      the point of being so last seen.

          15. Elaborating the principle of "last seen alive" in State
      of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court
D     held as under.-

           "23. It is not necessary to multiply with authorities.
           The principle is well settled. The provisions of
           Section 106 of the Evidence Act itself are
E          unambiguous and categoric in laying down that
           when any fact is especially within the knowledge of
           a person, the burden of proving that fact is upon
           him. Thus, if a person is last seen with the
           deceased, he must offer an explanation as to how
 F         and when he parted company. He must furnish an
           explanation which appears to the court to be
           probable and satisfactory. If he does so he must
           be held to have discharged his burden. If he fails to
           offer an explanation on the basis of facts within his
G          special knowledge, he fails to discharge the burden
           cast upon him by Section 106 of the Evidence Act.
           In a case resting on circumstantial evidence if the
           accused fails to offer a reasonable explanation in
           discharge of the burden placed on him, that itself
H
         NIZAM &ANR. v. STATE OF RAJASTHAN                            799
                 [R. BANUMATHI, J.]

     provides an additional link in the chain of                      A
     circumstances proved against him. Section 106
     does not shift the burden of proof in a criminal trial,
     which is always upon the prosecution. It lays down
     the rule that when the accused does not throw any
     light upon facts which are specially within his                  B
     knowledge and which could not support any theory
     or hypothesis compatible with his innocence, the
     court can consider his falilure to adduce any
     explanation, as an additional link which completes
     the chain .. The principle has been succinctly stated            c
     in Naina Mohd., Re. (AIR 1960 Mad 218)"

      The above judgment was relied upon and reiterated in
Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319.
                                                                      D
     16. In the light of the above, it is to be seen whether in the
facts and circumstances of this case, whether the courts below
were right in invoking the "last seen theory." From the evidence
discussed above, deceased-Manoj allegedly left in the truck
DL-1GA-5943 on 23.01.2001. The body of deceased-Manoj                 E
was recovered on 26.01.2001. The prosecution has contended
the accused persons were last seen with the deceased but
the accused have not offered any plausible, cogent explanation
as to what has happened to Manoj. Be it noted, that only if the
prosecution has succeeded in proving the facts by definite            F
evidence that the deceased was last seen alive in the company
of the accused, a reasonable inference could be drawn against
the accused and then only onus can be shifted on the accused
under Section 106 of the Evidence Act.
                                                                      G
     17. During their questioning under Section 313 Cr.P.C.,
the accused- appellants denied Manoj having travelled in their
truck No.DL-1 GA-5943. As noticed earlier, body of Manoj was
recovered only on 26.01.2001 after three days. The gap
                                                                      H
800         SUPREME COURT REPORTS                  [2015] 1OS.C.R.


A     between the time when Manoj is alleged to have left in the
      truck No.DL-1 GA-5943 and the recovery of the body is not
      so small, to draw an inference against the appellants. At this
      juncture, yet another aspect emerging from the evidence needs
      to be noted. From the statement made by Shahzad'Khan (PW-
B     4) the internal organ (penis) of the deceased was tied with
      rope and blood was oozing out from his nostrils. Maniya village,
      the place where the body of Manoj was recovered is alleged·
      to be a notable place for prostitution where people from
      different areas come for enjoyment.
c
        18. In view of the time gap between Manoj left in the truck
  and the recovery of the body and also the place and
  circumstances in which the body was recovered, possibility of
  others intervening cannot be ruled out. In the absence of definite
D evidence that appellants and deceased were· last seen
  together and when the time gap is long, it would be dangerous
  to come to the conclusion that the appellants are responsible
  for the murder of Manoj and are guilty of committing murder of
  Manoj. Where time gap is long it would be unsafe to base the
E conviction on the "last seen theory"; it is safer to look for
  corroboration from other circumstances and evidence adduced
  by the prosecution. From the facts and evidence, we find no
  other corroborative piece of evidence corroborating the last
F seen theory.

       19. In case of circumstantial evidence, court has to
  examine the entire evidence in its entirety and ensure that the
  only inference that can be drawn from the evidence is the guilt
  of the accused. In the case at hand, neither the weapon of
G murder nor the money allegedly looted by the appellants or
  any other material was recovered from the possession of the
  appellants. There are many apparent lapses in the
  investigation and missing links:-(i) Non-recovery of stolen
H money; (ii) The weapon from which abrasions were caused;
           NIZAM &ANR. v. STATE OF RAJASTHAN                         801
                   [R. BANUMATHI, J.]

  (iii) False case lodged by PW-2 alleging that he was being A
  robbed by some other miscreants; (iv) Non-identification of
  the dead body and (v) Non-explanation as to how the deceased
  reached Maniya village and injuries on his internal organ
  (penis). Thus we find many loopholes in the case of the
  prosecution. For establishing the guilt on the basis of the B
  circumstantial evidence, the circumstances must be firmly
  established and the chain of eircumstances must be completed
  from the facts. The chain of circumstantial evidence cannot be
  said to be cor:icluded in any manner sought to be urged by the
· prosecution.                                                   C

       20. Normally, this Court will not interfere in exercise of its
 powers under Article 136 of the Constitution of India with the
 concurrent findings recorded by the courts below. But where
 material aspects have not been taken into consideration and D
 where the findings of the Court are unsupportable from the
 evidence on record resulting in miscarriage of justice, this Court
 will certainly interfere. The "last seen theory" seems to have
 substantially weighed with the courts below and the High Court
 brushed aside many loopholes in the prose9utiqn case. None E
 of the circumstances relied upon by the prosecution and
 accepted by the courts below can be sajd to be pointing only
 to the guilt of the appellants and no other inference. If more
 than one inferences can be drawn, then the accused must have F
 the benefit of doubt. In the facts and circumstances of the case,
 we are satisfied the conviction of the appellants cannot be
 sustained and the appeal ought tb be allowed.

      21. The conviction of the appellants under Sections 302
 and 201 IPC is set aside and the appeal is allowed. The G
 appellants are in jail and they are ordered to be set at liberty
 forthwith if not required in any other case.
 Kalpana K. Tripathy                               Appeal allowed.
                                                                     H