G. D. DUBE, J. This appeal has been preferred against the judgment and order of third Additional District and Sessions Judge, Gorakhpur, convict ing and sentencing the appellants under Sections 302, 364 and 201 all read with Section 34, I. P. C. Each of them have been sentenced to imprisonment for life under Section 302, five years R. I. under Section 364 and three years R. I. under Section 201, I. P. C. 2. The case of the prosecution was that Ram Briksh had taken a loan of Rs. 200 from Gauri (deceased) who was resident of village Lalpur Tikar, Police Station Khorahar, district Gorakhpur. A day before the occurrence, a quarrel bad taken place between Ram Briksh and Gauri about repayment 01 loan. Vibhuti had intervened it about sunset on 11th March, 1977 Ram Briksh and Ram Nagina appellants came to the house of Gauri. At that time, Gauri, after taking his meal, was going for fishing. The two appellants asked Gauri to accompany him to his house and take the money. At about 9. 00 p. m. in the night, Moti came to the house of Gauri and informed the family members that Gauri had not reached the river for fishing. Thereafter, Moti, Chandra Bahan, Mukwal and Hari Pal stated for searching Gauri, when they reached near the field of Moorat, then Moorat told him that he had seen the appellants taking Gauri to the house of Ram Briksh for payment of loan. The search party went to the house of the two appellants, but they were not found there. They also went to the house of Chandra Bali Pandey where Ram Briksh used to work as a servant, but he was not found there. Next morning, they four some fresh earth one in a field towards south of the house of Ram Briksh. They also found some burnt clothes at a little distance, the place was dug and the dead-body was found. Hari Pal went lo police station and dictated the first information report at 10. 05 a. m. on 12-3-1977 to Ram Dhiraj, Head Moharrir, who registered a case in the general diary. 3. The investigation was taken up by Anant Shukla, Sub-Inspector (P. W. 5 ). He interrogated Hari Pal at the police station and went to the place of occurreance. 05 a. m. on 12-3-1977 to Ram Dhiraj, Head Moharrir, who registered a case in the general diary. 3. The investigation was taken up by Anant Shukla, Sub-Inspector (P. W. 5 ). He interrogated Hari Pal at the police station and went to the place of occurreance. He conducted the inquest proceedings and sent the dead-body for post mortem to the mortuary. He conducted the other investigations and submitted charge-sheet against the appellants. 4. The autopsy of the dead-body had been conducted by Dr. M. N. Gope of the District Hospital, Gorakhpur at 1. 00 p. m. on 13-3-1977. He found three incised wound on the person of the deceased. One was on the neck, the other on the abdominal region and the third on left arm. The death was said to have been caused as a result of haemorrhage. 5. The prosecution had examined eight witnesses. Smt. Lawangi (P. W. 1) is the mother of the deceased. She had stated that, in her presence, the two accused had taken her son to the house of Ram Briksh for giving money. She had also stated about the motive that eight to ten days back Rs. 200 were handed over to Ram Briksh by Gauri, Chandra Bhan (P. W. 2) has stated about the search made by him and other witnesses about Gauri. He had also stated that next day in his presence the dead dody was dug out from a trench which had recently been dug. Murali, (P. W. 3) has stated that in the alleged night of occurreance he had seen the two appellants in an Arhar field. There was some light. When they were asked by this witness as to what they were doing there, they informed that they had come to see their sugar-cane field. Vibhuti (P. W. 4) is about the previous incident when a few days before the occurreance Gauri and Ram Briksh had come to exchange of words. Ram Moorat (P. W. 5) has stated that he had seen the appellants going along with the deceased at about sun-set. P. W. 6 is Medical Officer who has proved the post-mortem report prepared by Dr. M. N. Gope. The role of P. Ws. 7 and 8 has already been stated above. 6. Ram Moorat (P. W. 5) has stated that he had seen the appellants going along with the deceased at about sun-set. P. W. 6 is Medical Officer who has proved the post-mortem report prepared by Dr. M. N. Gope. The role of P. Ws. 7 and 8 has already been stated above. 6. The accused had pleaded not guilty to the charges, they alleged that they had falsely been implicated in this case on account of enmity. They had not produced any evidence in defence. 7. The prosecution is based on circumstantial evidence. The learned Sessions Judge has found two incriminating circumstances intact against the accused. The Sessions Judge observed that the first circumstance was that a quarrel about loan between the deceased and the appellant Ram Brichha and others had taken place and the second was that daceased was last seen alive in the company of both the appellants. The learned Sessions Judge came to the conclusion that the second one was inconsistent with the reasonable hypo thesis about innocence of both appellants. These evidence were accepted as sufficient by the learned Sessions Judge to ential the conviction of the appel lants under Section 302 and 364 and 201 read with Section 34 of Indian Penal Code. 8. The learned Sessions Judge opined after discussing the prosecution evidence that the deceased must have died before mid-night in the night between 11th and 12tb March 1978. After discussing the evidence the learned Sessions Judge also came to the conclusion that the prosecution evidence as far as it relates to taking of the deceased from his house was concerned was reliable and therefore, it was established conclusively that the appellants were last seen in the company of the deceased. 9. The prosecution had stated that the appellants were not found in their respective houses. Appellant Rambrichha was also not found at the house of his employer Chandrabali. The learned Sessions Judge came to the conclusion that the evidence of P. W. 1 Smt. Lawangi and P. W. 2 Chandrabhan to the effect that they had gone to the house of the appellant separately in the night between 11 and 12 March, 1978 but none of these appellant were found was (sic ). The learned Sessions Judge came to the conclusion that the evidence of P. W. 1 Smt. Lawangi and P. W. 2 Chandrabhan to the effect that they had gone to the house of the appellant separately in the night between 11 and 12 March, 1978 but none of these appellant were found was (sic ). The learned Sessions Judge held that this was not at all any incriminating circumstance to form a link in the chain of circumstance leading to the guilt of the appellant. 10. It has been argued by the learned counsel for the appellant that the two circumstances as held (o have been established by the learned Sessions Judge are taken into consideration then it will not appeal reason that in the perspective of the motive the events would have happened in the manner as they are alleged to have taken place. 11. According to the prosecution the whole dispute was about Rs. 200 alleged to have loaned to Rambrichha by the deceased Qauri. If the appellant had any intention to return this money then they could have easily brought the money to the house of Gauri and returned it back. The theory of the prosecution that the two appellants had asked the deceased to accompany them to the house of Rambrichha for taking the money does not appeal to the reason. In the circumstances of the case that a quarrel had taken place earlier about the return of this money, then the deceased would have asked Ram brichha and his companion to bring the money and there was no necessity to go to his house for taking the money. At the very request of the appellant to the deceased to go to the house of appellant the deceased would have become cautious and would have refused to go to their houses. 12. The learned Sessions Judge has placed implicit reliance on the statement of Smt. Lawangi P. W. 1. Smt. Lawangi had stated in the first infor mation report that the two appellants had taken Gauri deceased alongwith them at about sunset. But in her cross- examination Smt. Lawangi stated that the two appellants had taken Gauri forcibily. They had tied the mafalar* around the neck of Gauri and bad forced him to go with them. Smt. Lawangi had stated in the first infor mation report that the two appellants had taken Gauri deceased alongwith them at about sunset. But in her cross- examination Smt. Lawangi stated that the two appellants had taken Gauri forcibily. They had tied the mafalar* around the neck of Gauri and bad forced him to go with them. If this was state of affair then from very beginning Smt. Lawangi would have become cautious with the intention of two appellants were bad. In such a circumstances she would nut have allowed the two appellants to take her son to their houses. She stated that she did not folow the two appellants because the appellants had promised that they will leave him soon. We find it difficult to accept this explanation. From the very act of the appellants any mother would not have accepted the explanation of the two appellants. She would have taken all steps to get her son released. In view of these circumstances, we find it difficult to accept the statement of Smt. Lawangi that the deceased was taken by the two appellants, keeping in view the whole matter the version of Smt, Lawangi does not inspire confidence. It appears to be only a product of after thought. 13. P. W, 5 Ram Murat had stated in his examination-in-chief that at about sunset he had seen the two appellants taking Gauri alongwith them. He contradicted P. W. 1 Lawangi by stating in his cross- examination that Oauri was not being taken forcibly but he was going himself. He admitted in his cross- examination that the house of Rambrichha was situtated at a distance of 1j mile from the house of Gauri. According to Smt. Lawangi the deceased had taken meal and was going for fishing purpose in the nearby river. If it was so then for taking paltry of a sum of Rs. 300 Gauri would have never agreed to cover a distance of 1 miles leaving his main purpose of going fjr fishing. The statement of Ramsurat believe the whole prosecution story. 14. We have heard the learned counsel for the State. It was open to the Government Advocate to show that there was other evidence also to indicate that the appellant had actually committed the murder. We have gone through the evidence of other witnesses also. The statement of Ramsurat believe the whole prosecution story. 14. We have heard the learned counsel for the State. It was open to the Government Advocate to show that there was other evidence also to indicate that the appellant had actually committed the murder. We have gone through the evidence of other witnesses also. These evidences do not show that none except appellant had committed the crime. P. W. 4 Bhabhooti had stated that on previous incident on demand of money a quarrel had taken place between the deceased and the appellant. The learned Sessions Judge had not relied upon the statement of P. W. 2 Chandrabhan and P. W. 3 Murari. Therefore, on consideration of the evidence we find that the sole circumstance that the appellants had taken Gauri in the evening of llth March, 1978 from his house is not based from reliable evidence. We feel that the learned Sessions Judge had erred on relying on the statement of P. W. 1 Smt. Lawangi and P. W. 5 Ram Murrat. 15. For the reasons mentioned above we are of the opinion that the learned Sessions Judge had erred in holding the appellants of guilty punishable under Section 302, 364 and 201 of I. P. C. 16. As regards offence of under Sec. 201 of I. P. C. there was no evidence at all showing that the appellant had actually concealed the dead body. The learned Sessions Judge had not believed the statement of P. W. Chandrabhan and P. W. 3 Murari, without recording any finding as to on what basis the offence under Section 201 of I. P. C. was made out the learned Sessions Judge had held that the appellants are guilty of the offence of Sec. 201, I. P. C. 17. In order to hold any person guilty under Section 304 of I. P. C. it was necessary for the prosecution to prove that the person was kidnapped with no intention to kill him. No such conclusion had been drawn by the learned Sessions Judge after appraisal of the evidence. The conviction of the appel lants under Section 364, I. P. C. was based on no evidence at all. 18. For the reasons mentioned above we find that the appellants deserve acquittal. They have been wrongly convicted and sentenced. The appeal is allowed. The judgment and order of the lower court are set aside. The conviction of the appel lants under Section 364, I. P. C. was based on no evidence at all. 18. For the reasons mentioned above we find that the appellants deserve acquittal. They have been wrongly convicted and sentenced. The appeal is allowed. The judgment and order of the lower court are set aside. The appellants are acquitted of the charges levelled against them. They are on bail. Their bail bonds are cancelled and sureties are discharged. Appeal allowed. .