B. C. VARMA, J. ( 1 ) THE appellant and one Satish were prosecuted for an offence under section 302 Indian Penal Code, for causing death of appellants brother Madanlal. Satish has been acquitted but the appellant has been convicted under section 302, Indian Penal Code and has been sentenced to imprisonment for life. By this appeal he challenges his conviction and sentence. ( 2 ) ACCORDING to the prosecution, appellant Shankarlal and deceased Madanlal had quarrelled over retention of price of betel sold in the market. This was late in the evening. Thereafter the deceased slept in his house while the appellant and other inmates also spent the night in. the same house. The next morning, i. e. 2-11-1982, the deceased was found missing and it is the case of the prosecution that Shankarlal made a search. He went on enquiring about his missing brother. Finally Debati Nalish (Ex. P/6) was recorded on 24-11-1982 and on that basis first information report (Ex. P/7) was lodged. Dead body of Madanlal was than found in a well situated near the house of the deceased. It was taken out at the instance of the police. Later, a knife said to be belonging to the appellant was also recovered from that very well. On post mortem examination of the dead body of Madanlal, it was found that he died as a result of throttling. Besides on the chin an injury was also found, which could be caused by a sharp edged weapon. At the trial witnesses were examined to show that the appellant was the person last seen with the deceased, that it is on his information that the dead body of Madanlal was found in the well and so also was discovered the knife. The trial Court accepted this evidence and on this basis has held the appellant alone guilty of causing Madanlals murder. For want of any evidence against the co-accused Satish, he has been acquitted. ( 3 ) ADMITTEDLY, there is no eye-witnesses of the incident. The case of the prosecution rested solely upon circumstantial evidence. It was, therefore, the bounden duty of the prosecution to show that the circumstances relied upon are wholly inconsistent with the innocence of the accused appellant. For want of any evidence against the co-accused Satish, he has been acquitted. ( 3 ) ADMITTEDLY, there is no eye-witnesses of the incident. The case of the prosecution rested solely upon circumstantial evidence. It was, therefore, the bounden duty of the prosecution to show that the circumstances relied upon are wholly inconsistent with the innocence of the accused appellant. In our opinion, the prosecution has failed to do so and the lower Court has committed an error in finding that the circumstances established conclusively point out the guilt of the appellant. The trial Court has found that the deceased was last seen with the appellant. Here there appears to be some misconception in the mind of the lower Court. Not only this, the evidence has also been miss-appreciated. What is contemplated is that the deceased and the accused should be seen together last and under circumstances which may lead to the Inference that thereafter alone the incident has taken place. In the present case, what we find is that not only the appellant but also his mother and other person slept in the house as usual There is nothing particular or suspicious about Shankarlals remaining in the house. The deceased and the appellant Shankarlal both used to normally remain in the house previously and on the fateful night also they slept in the house as usual. From this it is difficult to infer that the appellant and the deceased were together whereafter deceased was not seen. To our mind, the trial Court committed an error in holding that the deceased and the appellant were last seen together and that their residing in the house as usual in the night prior to the deceaseds missing from the house has to be taken as an incriminating circumstance against the appellant. ( 4 ) TRUE it is that being a case based upon circumstantial evidence the motive plays an important part. The trial Court has inferred motive from the quarrel, which took place between the two brothers over retaining the sale price. The appellant wanted to retain that price with him but the deceased was not prepared to part with it. However, the matter ended there and both went to sleep. It is difficult to infer any motive from this trifling quarrel between the two brothers. The appellant wanted to retain that price with him but the deceased was not prepared to part with it. However, the matter ended there and both went to sleep. It is difficult to infer any motive from this trifling quarrel between the two brothers. It is not the case of the prosecution that the deceased was denying the appellant his share of the income. The only question was as to who would keep the price with him before the division. Even assuming that the deceased was not prepared to part with any amount and pay to the appellant, there is nothing to indicate the immediate reaction on the appellant. The prosecution has not even established that there was an opportunity for the appellant to have throttled the deceased, to carry him up to the well and then throw him down therein. There is no indication to assume that the deceased went up to the well or was found near the well and throttled there and then thrown in the well. Under these circumstances, we are of opinion that the lower Court was not justified in attributing any motive to the appellant to commit the crime. ( 5 ) THE conduct of the appellant in going about in search of his deceased brother only militates against his being guilty. It is true, as deposed to by Jogi Prasad (P. W. 5), that the appellant did not go to look into the well in spite of suggestion from the witness. That, however, can be explained. It appears that the appellant never imagined his brother to be lying in the well. None of the villagers passing by or using the well even saw the body in that well. Nothing, therefore, turns on the appellants refusal to make a search of the body in the well. Similarly, the recovery of the knife from the well is also wholly innocuous. One does not know when the knife was thrown in the well. The trial Court has rightly found that it is rot connected with the offence at all for it is not the case of the prosecution that the appellant at the point of knife succeeded in throttling the deceased. The trial Court, in our opinion, is also not right in returning a finding that the body was recovered from the well at the instance of the appellant. The trial Court, in our opinion, is also not right in returning a finding that the body was recovered from the well at the instance of the appellant. The appellant had already made a report at the police station house. There he only stated that his brother Madanlal was missing. He never stated that he would get the body recovered. It is, therefore, difficult to hold that the body was recovered from the well pursuant to the discovery made by the appellant. ( 6 ) APART from the above circumstances, the prosecution has not pressed into service any other circumstances. We are of opinion that the above circumstances do not complete the chain to fasten the guilt upon the appellant and cannot be said to be inconsistent with the innocence of the appellant. Disagreeing with the lower Court, therefore, we hold that the prosecution has not established the circumstances conclusively to hold the appellant guilty of the charge of murder of his brother. The appellant is therefore, entitled to be acquitted. ( 7 ) THE appeal is allowed. The conviction and sentence of the appellant under section 302, I. P. C. are set aside and he is hereby acquitted. .