I. P. SINGH, J. ( 1 ) CRIMINAL Appeal No. 2505 of 1977 has been preferred by Rampat, convict- appellant, while the connected Criminal Appeal No, 2778 of 1977 has been preferred by Kalap Nath, convict appellant against the Judgment and order of Sri S. N. Misra, jjnd Addi. Sessions Judge, Basti dated 14. 10. 1977 convicting and sentencing each one of the two appellants under section 302 read with section 34 I. P. C. to imprisonment for life as well as under section 201 read with section 34 I. P. C. to 3 years R. I. Both the sentences to run concurrently. ( 2 ) THE prosecution case is that one Musey, deceased, maternal uncle of Kalap Nath, appellant was a well to do person in his village Keo Talia. He was constructing a well in one of his fields and in that connection be along with the two appellants bad slept on powal on that well in the night between 4th and 5th June, 1976. In due course bags of cement, two balties, one Iota, one thali, one kudal were also there. ( 3 ) IN the morning of 5. 6. 1976 at about 6. 30 a. m. Kalap Nath, appellant, lodged an F. I. R. at Police Station Mehdawal, three miles away, briefly to the effect that in the proceeding night Musey, deceased, was murdered by three or four unknown persons when they had come to steal away the above articles from that well. ( 4 ) POST mortem examination of Musey, deceased, was conducted by Dr. H. C. Pandey, Medical Officer, basti on 7/6/1976 at 8 a. m. The probable time since death was about 2 1/2 days. This duration fits in with the alleged time of the occurrence. According to him, the deceased, 55 years old, had the following ante mortem injuries: 1. erated wound 2. 5 cm x 1 cm x skin deep on outer corner of left eye. 2. Abrasion 3 cm x 1 cm on middle of left face. 3. Multiple abrasion in an area of 3 cm x 2 cm on right side of face 4 cm below right eye. 4. erated wound 2. 5 cm x 1 cm x skin deep on outer corner of left eye. 2. Abrasion 3 cm x 1 cm on middle of left face. 3. Multiple abrasion in an area of 3 cm x 2 cm on right side of face 4 cm below right eye. 4. Swelling on front of neck more towards left side at level of hyoid bone with a contusion 6 cm x 2 cm on left side of neck at level of hyoid bone and contusion 2 cm x 1 cm on right side of neck at same level. In the opinion of the doctor, death was caused due to asphyxia as a result of pressure over neck. During investigation it came to light that Ram Pat had made extra-judicial confession before Ram Lakhan P. W. i. ( 5 ) ONE June 9, 1976 , both the appellants were arrested and their arrest was followed by recovery of the above-mentioned articles from the bed of Kharachan river at the pointing out of both the appellants,. The recovery witnesses are Jagdish Narain Singh, S. I. ; P. W. 5 and hasan Raza, P. W. 2 and others. The defence of the two appellants is that they were falsely implicated in this case whereas Musey, deceased was murdered by three or four unknown persons. ( 6 ) ACCORDING to the prosecution case, there is no direct evidence of this murder. They rely upon the circumstantial evidence to prove their case against the appellants. The prosecution has put forward motive on the part of Kalap nath, appellant, to murder Musey with the help of his friend, Rampat, appellant. It is alleged that by murdering Musey, who was issueless, kalap nath expected to get his property which consisted of certain bighas of land plus the the cash amount of Rs. 6000/- which he had recently obtained by selling a part of his land. It is further alleged that kalap nath was carrying on with the wife of Musey, deceased, and these two factors prompted him to commit the murder. ( 7 ) THERE is no direct evidence about the fact that kalap nath was carrying on with the wife of Musey deceased. Moreover, the probabilities are against this fact as it is highly unbelievable that a nephew would be carrying on with his maternal aunt (Mami ). ( 7 ) THERE is no direct evidence about the fact that kalap nath was carrying on with the wife of Musey deceased. Moreover, the probabilities are against this fact as it is highly unbelievable that a nephew would be carrying on with his maternal aunt (Mami ). Even if the said motive is there, we do not think that it would be a clinching circumstances to fix the guilt on Kalap Nath and his friend, Ram Pat. ( 8 ) THE other piece of circumstantial evidence is that the above-mentioned articles were recovered at the pointing of the two appellants. However, the recovery comes forth after 5 days of the murder and it took place from the bed of the river which was accessible to everyone. Under the circumstances, no liability can be fix on the appellants on the ground of the said recovery because it might well be that during the intervening period of 5 days they might have come to know from various sources which cannot be enumerated or dilated upon but only visualized, that those articles were lying in the said river bed. Under these circumstances, it cannot be conclusively said that those things were damped by these appellants themselves. This circumstances cannot be used to fasten the guilt on the appellants. ( 9 ) IT was argued by the learned D. G. A. that Kalap Singh had lodged the F. I. R The contents where of are not supported by the medical evidence on record and this shows that he had made a false report to conceal the guilt of the appellants. It is pointed out that in the said F. I. R. he mentioned that those unknown persons were trying to steal away the articles and at that time the deceased was awakened and there was an exchange of abuses between the two and it was then that Musey was given lathi blows. It is argued that the post mortem examination report on the body of the deceased does not reveal any injury which could be said to have been caused by the lathi assault on him. One lacerated would appears on outer corner of left eye but that is 2. 5 cm x 1 cm into skin deep. It is argued that the F. I. R. does not contain a single word that any of those unknown persons had strangulated the deceased. One lacerated would appears on outer corner of left eye but that is 2. 5 cm x 1 cm into skin deep. It is argued that the F. I. R. does not contain a single word that any of those unknown persons had strangulated the deceased. It is pointed out that the post mortem examination report fixes the death of the deceased due to asphyxia as a result of pressure over neck. Besides, in the F. I. R. it is said that those unknown persons had even assaulted Kalap Nath, the maker of the F. I. R whereas the injury report of kalap Nath does not reveal any visible injury and is confined to a few complaints of pain on various parts of his body. The argument is that those complaints about pain on various parts of the body was nothing but a false pretence on the part of kalap Nath. From all these circumstances, it is argued that the said F. I. R. was deliberately lodged with false facts and that affords circumstances against the appellants. Learned counsel for the appellants has pointed out that the said F. I. R can be divided into two part; the exchange of abuses between the deceased and the unknown persons and the lathi assault on the deceased are said to have taken place before Kalap Nath and he was imagining those things. After he was awakened he does mention that he was assaulted by those unknown persons but the said assault was not said to be by lathis or any other weapon. It can as well be that he was main handled by slaps and fists and in those circumstances no visible injury was caused to him though some pain could be there. The argument is that the F. I. R cannot be said to be containing false facts and it should not be interpreted to afford a circumstance against Kalap Nath or the other appellant, Rampat. At any rate, we donot feel satisfied that the said F. I. R. can afford such a circumstance which can be regarded sufficient to prove the present guilt on the two appellants. ( 10 ) WE have discussed the three circumstances relied upon by the prosecution individually and are of the opinion that neither any of them taken singly nor taken collectively can lead to the only conclusion that the appellants are guilty. ( 10 ) WE have discussed the three circumstances relied upon by the prosecution individually and are of the opinion that neither any of them taken singly nor taken collectively can lead to the only conclusion that the appellants are guilty. Since such a conclusion cannot be emphatically drawn, thee does exist an element of doubt. The benefit of this doubt has to go to the appellants. ( 11 ) IN the result, both the appeals must succeed and are allowed. The conviction and sentence awarded to each one of the appellants are set aside. Both the appellants are acquitted of the charges leveled against them. They are on bail. They need not surrender their bail bonds which are cancelled. The sureties are discharged. Appeals allowed. .