JUDGMENT D. P. Jain, J. 1. THIS is an appeal against the judgment of 6th Additional Sessions Judge, Meerut, (Shri Rati Ram, M.J.S.) who has sentenced the appellant to imprisonment for life under Sections 302/34,I.P.C. The prosecution case is in brief that on 8th March, 1983 a dead body was found near Hotel of Lakshman Das P.W. 4 who reported the matter to the police and the case was registered. From investigation the identity of the deceased was established and it was found that it was Vishnu Rastogi Meerut. The investigation further revealed that on 7.3.1983 deceased Vishnu, his brother Mahesh and his:sons Raju. Manoj and Bobby were present in the house when accused Deep Chand accompanied by Rampal and Kalwa came there at about 4.00 p.m., and after taking Vishnu for sometime they took him from the market. Manoj and Bobby followed their father but accused Kalwa gave them one rupee each and asked them to come back. They were also told that their father Vishnu will come back in the evening. Vishnu did not return home in the night. Next day the family members searched for him and they were told by Sushil Kumar, (P.W. 8) that the deceased was in the company of Kalwa, Deep Chand and Ram Pal and the deceased left with Kalwa in a rickshaw which was followed by another rickshaw, in which Deep Chand and Ram Pal were sitting. Mahesh, the brother of deceased Vishnu, gave information to the police and on that basis the police went after Deep Chand. Ram Pal and Kalwa but they were absconding and therefore, a charge-sheet filed against all the three in which they were shown as absconders. After sometime accused Deep Chand was arrested in connection with some other case and in this way, he was committed to Sessions and after trial the learned Additional Sessions Judge 6th, convicted and sentenced the accused on 26.6.1987. Being aggrieved against the sentence Deep Chand has filed this appeal from Jail. 2. SHRI A. N. Mulla was appointed amicus-curie and SHRI V. S. Mishra has appeared for the State. We have heard the learned counsel for the appellant and the learned A.S.A. and have gone through the record. There can be no dispute about the fact that the death of Vishnu was homicidal in nature. His dead body was found on 8th March, 1983 with a head injury. We have heard the learned counsel for the appellant and the learned A.S.A. and have gone through the record. There can be no dispute about the fact that the death of Vishnu was homicidal in nature. His dead body was found on 8th March, 1983 with a head injury. The dead body was found by Lakshman Das, (P.W. 4) who reported the matter to the police and the post-mortem examination on the dead body of Vishnu was conducted by Dr. P. N. Khanna. Dr. Khanna has stated that there was ante mortem incised wound 9x1 cm. x bone deep on the middle of the head 7 cm. above the right ear. On internal examination. Dr. Khanna found the fracture of parietal as well as left temporal bone of the skull. According to Dr. Khanna the death of Vishnu was a result of direct head injury. It is further stated by Dr. Khanna that the injury was sufficient to cause death. Therefore, it is fully proved that the death of Vishnu was homicidal. 3. HOWEVER, the only evidence that has been led by the prosecution connect the accused with the crime is the fact that the accused was last seen with the deceased a day prior to day on which his dead body was found. Raju, (P.W. 1) who is the son of deceased Vishnu (aged about 17 years) has stated that accused Kalwa was related to him as an uncle though he was not real uncle. He has further stated that on the crucial day Deep Chand, Ram Pal and Kalwa came to his house at about 4.00 p.m., his uncle Mahesh and his brother and his father was also present. After taking to Vishnu for sometime Deep Chand, Ram Pal and Kalwa took the deceased to the market. Two younger brothers of the witness (Manoj and Bobby) followed their father but they came back after sometime and each of them showed a one rupee coin and said that this has been given to them by Kalwa who had said that their father will return in the evening. But the father did not come back. Two younger brothers of the witness (Manoj and Bobby) followed their father but they came back after sometime and each of them showed a one rupee coin and said that this has been given to them by Kalwa who had said that their father will return in the evening. But the father did not come back. (P.W. 2) Manoj is aged about 12 years and has repeated the same story and has said that he alongwith his younger brother Bobby followed their father but they were returned by Kalwa after paying one rupee each to them and their father left with Deep Chand, Ram Pal and Kalwa and did not come back. (P.W. 3) Sushil Kumar says that about 3/4 months prior to his statement at about 4.30 p.m. he was sitting in the shop of Nandu Sarraf when he saw Vishnu and three accused persons in the market. After talk they left in two rickshaws. Vishnu and Kalwa went by one rickshaw and Deep Chand and Ram Pal left in another rickshaw. 4. THE statement of Sushil Kumar (P.W. 3) cannot be implicitly believed because in cross-examination he admits that he has no shop in the market in which he was sitting. He was sitting alone and the shop of Nandu Sarraf was closed. In fact the whole market was closed. He says that he was sitting there waiting for somebody for about half an hour. He has not given the name of person for whom he was waiting and he was unable to tell the names of the owners of the shop in the neighbourhood. Even if it is taken to be proved that deceased Vishnu left house in the company of Deep Chand, Ram Pal and Kalwa and was in their company in the market, that does not take the prosecution case very far. It is said by Raju and Manoj that one of the accused (Kalwa) is distant relative and that these three persons were often coming to their house. Therefore, there was nothing strange in the accused coming to the house of Vishnu on that day or coming to the market with him. It should also be noted that according to (P.W. 3) deceased Vishnu went in a rickshaw with Kalwa and not with Deep Chand. Deep Chand was in a different rickshaw with accused Ram Pal. Therefore, there was nothing strange in the accused coming to the house of Vishnu on that day or coming to the market with him. It should also be noted that according to (P.W. 3) deceased Vishnu went in a rickshaw with Kalwa and not with Deep Chand. Deep Chand was in a different rickshaw with accused Ram Pal. It is possible that two rickshaws may have gone in different directions after covering some distance. The mere fact of last seen with the deceased is totally insufficient to bring home the guilt to the accused particularly when there was considerable gap between the two events. Vishnu was seen in the company of the accused persons on 7.3.1983. This fact was reported by Lakshman Das at 15.05 p.m., at the police station. Therefore, there was a gap of about 24 hours and there is no material on record regarding the movement of the accused or the deceased during this interval. Another peculiar feature of the case is that there is absolutely no motive for Deep Chand to murder Vishnu. There is no allegation of enmity etc. It has come in the evidence of Raju, (P.W. 2) that his mother has already expired and the ornaments of his mother and cash was kept by his father and this fact was in the knowledge of the accused. It is hinted that the motive was perhaps pecuniary. But even Raju has not stated that after the murder of father the cash or the ornaments were found missing from the house or that his father took the cash and ornaments with him while going with the accused persons. 5. AFTER carefully going through the evidence on record we find it extremely difficult to sustain the conviction of the accused on the charge of murder. 6. CONSEQUENTLY the appeal succeeds and is allowed. Appellant Deep Chand is acquitted of the charges framed against him. His conviction and sentence are set aside. He is in jail and he will be released forthwith unless wanted in any other case. A sum of Rs. 575 will be paid to Sri A. N. Mulla amicus-curie as his fee. Appeal allowed.