CHAUHAN, J. - (1.)THE discovery of the dead body of Ashok in a culvert (Nala), the alleged illicit relationship between the appellant-Santosh and the co-accused-Geeta, the wife of the deceased, the feeble evidence of last seen, the conviction of Santosh and the acquittal of co-accused Govind and Smt. Geeta have compelled the accused appellant, Santosh, and the State to file two separate appeals before this Court. Since, both the appeals challenge the judgment dated 18th October, 2003, they are being decided by this common judgment.
(2.)VIDE judgment dated 18th October, 2003, the learned trial Court has convicted Santosh of offence under Section 302 of Indian Penal Code ("ipc", for short) and has sentenced him to life imprisonment and also imposed a fine of Rs. 2,000/- and in default thereof to further undergo six months simple imprisonment. However, the learned trial Court has acquitted the appellant Santosh of offence under Section 120-B of IPC. Simultaneously, the learned trial Court has acquitted the co- accused Govind and Smt. Geeta of offences under Sections 302/34 and 120-B IPC.
According to the prosecution, on 20. 12. 02 Banwari (P. W. 12) lodged a written report (Ex. P-14) at Police Station Bandikui, wherein he alleged that in the afternoon, he saw a crowd of men standing at a culvert (Nala ). He also saw a dead-body of a person lying in the culvert (Nala ). When he went close to the dead-body, he realised that it was the body of his nephew-Ashok. According to him, the dead-body had sustained two or three injuries on the head and the face was covered with blood. He alleged that someone had killed Ashok and had thrown away the body in the culvert. On the basis of the said report, a formal FIR (Ex. P-45) was chalked out for offence under Section 302. After a thorough investigation, the police submitted the challan against Santosh, Govind and Smt. Geeta for offences under Sections 302/34 and 120- B IPC. In order to prove its case, the prosecution examined thirty witnesses and submitted fifty-seven documents. The defence did not examine any witness, but did submit a few documents. After going through the oral and documentary evidence, the learned trial Court pronounced the judgment as aforementioned.

During the course of trial, the prosecution tried to establish that Ashok and Santosh were partners in the business of running Bugga (an indigenous manufactured motor vehicle used by agriculturist in the countryside ). However, Ashok was arrested in a murder case and sent to the judicial custody for four-five months. During this period, Santosh looked after Ashok's family. While Ashok was incarcerated, Santosh used to take Ashok's wife to the Jail to facilitate their meeting. However, during this period, allegedly Santosh and Geeta developed an illicit relationship. The prosecution also claimed that Santosh helped Ashok in being released from the judicial custody. When Ashok came back, he objected to the closeness of relationship between Santosh and Geeta. The prosecution claimed that in order to get rid of Ashok, Santosh, Govind and Smt. Geeta entered into a conspiracy in furtherance of which Santosh and Govind killed Ashok.

Since, the case is based entirely on circumstantial evidence, the learned trial Court relied on the following circumstances to convict Santosh of offence under Section 302 of IPC. Firstly, the illicit relationship between Santosh and Geeta was proved. Secondly, Santosh and Govind were last seen with the deceased in "jhalani Ki Bagichi". Thirdly, on the next day, dead- body of the Ashok was discovered in a nearby culvert (Nala) and the FIR was lodged immediately. Fourthly, according to the post- mortem report, the death was homicidal in nature. Fifthly, a "barchi" (Small Axe) was recovered upon the information given by Santosh. Lastly, immediately after the alleged crime, Santosh had gone to Geeta's house and told her that "he may have to spend sometime in Jail". Considering the chain of circumstances, while Santosh was convicted, the other two co-accused persons namely Govind and Geeta were acquitted.

Mr. Reashm Bhargava, the learned counsel for the appellant, has raised the following contentions before us : firstly, Gopal (P. W. 2), the witness of "last seen" is a chance witness and is wholly unreliable. Secondly, the prosecution has failed to establish a motive for the crime. The absence of motive in a case based on circumstantial evidence leaves a gaping hole in the story of the prosecution. Thirdly, Hemlata (P. W. 7), daughter of the deceased, is a child witness and is also unreliable one. Fourthly, the alleged stray statement made by Santosh that "he may have to spend sometime in jail"cannot be treated as an extra- judicial confession as it is not inculpatory in nature. Fifthly, the mere recovery of Barchi does not connect the accused to the alleged crime. According to the learned counsel, the case rests solely on a strong suspicion. The chain of circumstances do not unerringly point towards the guilt of the accused-appellant. Therefore, the prosecution has failed to prove its case.

(3.)ON the other hand, Mr. Ashwini Sharma, the Public Prosecutor for the State, has vehemently argued that Gopal (P. W. 2), is a resident of same village; he could, therefore, easily identify the accused persons while they accompanied the deceased-Ashok. Secondly, since illicit relationship had developed between Santosh and Geeta, there is a strong motive to get rid of Ashok. Thirdly, although Hemlata is a child witness, but her testimony is reliable. Therefore, he has supported the impugned judgment.
We have heard both the learned counsels for the parties, have perused the impugned judgment and have critically examined the record.

Principle covering the case of circumstantial evidence has been repeated often by the Hon'ble Supreme Court. Recently, in the case of Ramreddy Rajesh Khanna Reddy vs. State of Andhra Pradesh (2006) 10 SCC 172, the Hon'ble Supreme Court observed that to base a conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Moreover, suspicion, however, grave cannot be a substitute for a proof and the courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.