K. C. BHARGAVA, J. ( 1 ) IN this case there were two appellants, namely Bhagwan Din and Prabhu Dayal alias Prabhoo. Prabhu Dayal alias Prabhoo died during the pendency of the appeal. ( 2 ) BHAGWAN Din and Prabhu Dayal alias Prabhoo (since dead) were convicted by III Additional Sessions Judge, Hardoi by judgment and order dated 11/09/1980 under S. 302 read with S. 34 and S. 201 of the Indian Penal Code and sentenced to each of them to undergo imprisonment for life and five years rigorous imprisonment and a fine of Rs. 300. 00 respectively under each count and in default of payment of fine to undergo further imprisonment for one year. The sentences were made to run concurrently. ( 3 ) ACCORDING to the prosecution on 13-4-1979 at about 1-00 p. m. Bhagwan Din alias Bhagannu and Prabhu Dayal alias Prabhoo appellants came to the house of the complainant Sumer, the father of the deceased Shyam Lal, and took Shyam Lal along with them on the pretext of cutting the grass. Shyam Lal at that time was aged about 22 years and he was taken away by the accused-appellants in the presence of his father Sumer, his mother Nanhi and his wife Smt. Ramguni. Both the accused-appellants and Shyam Lal deceased used to gamble together and the appellants had also taught the deceased to commit thefts. Sometime before the incident there was a dispute between these three persons about the distribution of theft property and thereafter the dispute was patched up. The complainants son, Shyam Lal, took one Khurpi and one old Dhoti of his wife and went away along with the accused-appellants to cut the grass, on 13-4-1979. The complainant waited for Shyam Lal for a long time in the night but Shyam Lal did not come back. Thereafter they went to sleep. In the morning they tried to search Shyam Lal but he was not available. Ram Bharosey (P. W. 4) who is resident of the complainants village came and told on 14-4-1979 in the evening that the accused appellants and the deceased Shyam Lal were seen cutting the grass near the tube well of Ram Bharosey. They were cutting the grass on the eastern wing of the tube well at about 6-00 p. m. Thereafter they were not seen by any body. They were cutting the grass on the eastern wing of the tube well at about 6-00 p. m. Thereafter they were not seen by any body. The complainant thereafter again went for search of the deceased Shyam Lal and when he reached in the grove of Ram Autar which is towards north-west of the abadi he saw some blood stains on the pucca boundary of the tube well. He got suspicious and after bringing Kanta took out one piece of Dhoti which came out of the well inside the Kanta. He also came to know that something heavy was tied in the dead body which could not be pulled by him. He got suspicious that Bhagwan Din and Prabhu Dayal accused-appellants had killed his son and had thrown his dead body into the well the same night. He got a report written from Arun Kumar and lodged it at the police station which is Ext. Ka-1. He also took with him the cloth piece of the Dhoti which came out of the well. The report of this incident was scribed by Constable Ashfaq Husain (P. W. 2 ). When the report was lodged Bhagwati Prasad S. I. (P. W. 11) was present at the police station Shahabad. He started investigation of the case and took the statement of the complainant Sumer at the police station. Thereafter he went to the well and made arrangement for taking out the dead body. The dead body of Shyam Lal was taken out of the well which was recognised. He prepared the Fard of the clothes present on the body of the deceased and other articles. He also took blood stained and simple plaster from the boundary of the well and prepared Fard. Thereafter he recorded the statements of the witnesses. He also prepared the site plan and after completing the investigation he submitted chargesheet against the accused-appellants which is Ext. Ka-2. Post mortem examination of the deceased was conducted on 16-4-1979 by Dr. A. N. Singh (P. W. 10 ). At the time of examination the deceased had died 2-3 days before. The dead body of the deceased was in the advanced stage of decomposition. Abdomen was distended. Penis and scortum were cut. Hairs were loose and could be easily pulled out. The skin of hand and feet was black showing corrogated and sodden appearance. At the time of examination the deceased had died 2-3 days before. The dead body of the deceased was in the advanced stage of decomposition. Abdomen was distended. Penis and scortum were cut. Hairs were loose and could be easily pulled out. The skin of hand and feet was black showing corrogated and sodden appearance. Loope of bowels were coming out from the wound of abdomen. On external examination he found the following ante mortem injuries on his person :- 1. Incised wound 3 cm. x 1 cm. x cranial cavity deep on left side of head, 7 cm. above the left ear. Margins were clean cut. 2. Incised wound 2 cm. x 1 cm. x cranial cavity deep on the left side of the forehead 2. 5 cm. above the left eyebrow. Margins were clean cut. 3. Incised wound 2 cm. x 1 cm. x skin deep on the tip of nose. ( 4 ) INCISED wound 11 cm. x 6 cm. x abdominal cavity deep on the left side of abdomen, 3 cm. below umbilicus. ( 5 ) ABRASION 4 cm. x 1. 5 cm. on the left side of chin and upper part of neck. 4. On internal examination he found that left parietal bone was cut under injury No. 1. Left frontal bone was also cut under injury No. 2. He prepared the post mortem examination report which is Ext. Ka-10. 5. The prosecution examined Sumer complainant (P. W. 1), Constable Ashfaq Husain, scribe of the first information report (P. W. 2), Jagannath Prasad (P. W. 3), Ram Bharosey (P. W. 4), Ram Nath (P. W. 5), Shishu Pal Singh (P. W. 6), Chet Ram (P. W. 7), Mahro Khan (P. W. 8), Smt. Ram Guni (P. W. 9), Dr. A. N. Singh (P. W. 10) and Bhagwati Prasad I. O. (P. W. 11 ). The defence did not examine any witness. The accused persons had not pleaded guilty. The learned III Additional Sessions Judge, Hardoi after considering the evidence on record convicted and sentenced the accused-appellants as aforesaid. ( 6 ) WE have heard learned counsel for the appellants as well as learned Additional Government Advocate. In the present case there is no direct evidence of the murder of Shyam Lal. The prosecution has led circumstantial evidence to show that the appellants had committed the murder of Shyam Lal in the manner suggested by it. ( 6 ) WE have heard learned counsel for the appellants as well as learned Additional Government Advocate. In the present case there is no direct evidence of the murder of Shyam Lal. The prosecution has led circumstantial evidence to show that the appellants had committed the murder of Shyam Lal in the manner suggested by it. Now we have to scrutinise the evidence in order to see as to whether the circumstantial evidence is sufficient to prove the guilt of the accused persons. The circumstances relied upon by the prosecution consist of; (1) Motive, which is alleged to be the dispute between the appellants and the deceased over the distribution of the stolen property. (2) The evidence of last seen. The appellants and the deceased are alleged to have been seen together cutting the grass near the tube well, a day before the murder. (3) Hearing of the noise of putting down the dead body into the well by the appellants. ( 7 ) NOW we have to see as to whether the circumstances on which reliance has been placed by the prosecution have been established to prove the guilt of the appellants. In the case of Sharad Birdhichand Sarda v. State of Maharashtra 1984 SCC (Cri) 487 : (1984 Cri LJ 1738) the Honble Supreme Court has laid down the following conditions which must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence :- (1) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely may be fully established. (2) The fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable to any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ( 8 ) IN the case of Jabar Lal Das v. State of Orissa. ( 8 ) IN the case of Jabar Lal Das v. State of Orissa. 1991 SCC (Cri) 527 : (1991 Cri LJ 1809) three conditions were laid down by the Honble Supreme Court which need to be established by the prosecution in order to sustain conviction which are more or less the same conditions as has been mentioned in the above noted case. ( 9 ) IN the case of Tarseem Kumar v. The Delhi Administration (1994) 5 JT (SC) 264 : (1995 Cri LJ 470) the Honble Supreme Court has held as under (para 6) : -"the case of prosecution solely rests on circumstantial evidence. As the case is based solely on the circumstantial evidence, the Court has to be satisfied that (i) the circumstances from which conclusion of guilt is to be drawn has been fully established, (ii) all the facts so established are consistent only with the hypothesis of guilt of the appellant and they do not exclude any other hypothesis except the one sought to be proved, (iii) the circumstances on which reliance has been placed are conclusive in nature, and (iv) the chain of the evidence in the present case is such that there is no scope for any reasonable ground for a conclusion consistent with the innocence of the accused. " ( 10 ) NOW we take up the circumstances which appear against the appellants. The first circumstance against the appellants is the motive. According to the prosecution case the appellants were friends of Shyam Lal deceased and they had taught him to commit thefts. Evidence has been led to show that there was some dispute between these three persons on the distribution of theft property but at the same time it has come in the evidence that the dispute had been patched up and thereafter they were working together to commit the same offences. It is alleged by the prosecution that the appellants came to the house of the deceased and took away the deceased Shyam Lal on the pretext of cutting the grass. There is no evidence on record that after the dispute between the appellants and the deceased was patched up any other dispute between them flared up at any time thereafter. They were having cordial relations and they used to work together in their nefarious activities. There is no evidence on record that after the dispute between the appellants and the deceased was patched up any other dispute between them flared up at any time thereafter. They were having cordial relations and they used to work together in their nefarious activities. When the appellants and the deceased were on good terms before the incident there does not appear any reason to believe that the appellants were harbouring any ill will against the deceased. It appears that this theory was later on developed by the prosecution in order to create motive for this crime. On the basis of the evidence on record it cannot be believed that enmity on the side of the appellants remained and they took revenge from the deceased after patching up of the differences. ( 11 ) ON the question of motive the Honble Supreme Court in the case of Tarseem Kumar v. The Delhi Administration (1995 Cri LJ 470) (supra) has observed in para 8 as under :-"it has been repeatedly pointed out by this Court that where the case of prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purposes of recording a finding that it was the accused who committed the crime in question even in absence of proof of motive for commission of such a crime, the accused can be convicted. "in view of this case law it is clear that in the case where the entire evidence is of circumstantial nature motive for committing the crime assumes importance. In such case all the circumstances which are necessary for proving the guilt of the accused should be established. If any of the circumstances is not established then the accused cannot be held guilty of the crime and cannot be convicted. ( 12 ) IN the earlier part of the judgment we have seen that there was no immediate motive for commission of the murder of Shyam Lal deceased by the appellants. It may be mentioned that Sumer (P. W. 1) is the complainant. From the perusal of the first information report, Ext. ( 12 ) IN the earlier part of the judgment we have seen that there was no immediate motive for commission of the murder of Shyam Lal deceased by the appellants. It may be mentioned that Sumer (P. W. 1) is the complainant. From the perusal of the first information report, Ext. Ka-1, it is clear that he was not present when the deceased was called by the appellants from his house and was taken away by the appellants for cutting the grass. In the examination-in-chief this witness has tried to say that he was also present but it can only be said as an afterthought and his statement on this point cannot be believed. Thus we find that the prosecution has utterly failed to prove motive on the part of the appellants to commit the murder of Shyam Lal deceased. ( 13 ) THE next circumstance relied upon by the prosecution is the evidence of last seen. The evidence of last seen consists of the deceased seen by the witnesses along with the appellants on 12-4-1979 cutting the grass on the eastern mend of the tube well of Ram Bharosey. This fact was narrated to Sumer (P. W. 1) by Ram Bharosey (P. W. 4) and Chet Ram (P. W. 7 ). Ram Bharosey (P. W. 4) has stated that at about 6-00 p. m. on Friday he and Chet Ram were going to cut Ukhani and when they reached near the field of Ram Bharosey they saw Prabhu Dayal and Bhagwan Din appellants along with deceased cutting the grass. One red Dhoti was lying there. He did not see the accused persons or the deceased going anywhere nor coming from anywhere. On that day he had no suspicion because the accused persons and the deceased were cutting the grass together. They also used to commit theft together. On the next day Sumer (P. W. 1) reached his residence searching the deceased Shyam Lal then he told Sumer that yesterday he had seen the accused persons along with the deceased cutting the grass and also told that Chet Ram was also with him at that time. Chet Ram (P. W. 7) has also stated about this fact. The statements of these witnesses show that the deceased Shyam Lal was cutting grass along with the accused persons on the day on which he was taken away from his house. Chet Ram (P. W. 7) has also stated about this fact. The statements of these witnesses show that the deceased Shyam Lal was cutting grass along with the accused persons on the day on which he was taken away from his house. The grass was being cut from the mend of the tube well of Ram Bharosey. The place where the grass was being cut by these persons was seen by the investigating officer but no site plan of that place has been prepared by the investigating officer for the reasons best known to him. This was an important link in the evidence of the prosecution to prove that the witnesses had last seen the appellants along with the deceased cutting the grass. Thereafter the deceased was found dead and his body was taken out of the well. It was an important piece of evidence and it was the bounden duty of the investigating officer to prepare the site plan of the place where these persons were cutting the grass if actually the grass was cut by these persons. Non-preparation of the site plan of that place by the investigating officer creates doubt in the prosecution case. ( 14 ) BHAGWATI Prasad (P. W. 11) is the investigating officer of this case. He was cross-examined on this point. He has stated in the cross-examination that he had seen the place where it is alleged that these persons were cutting the grass but he did not prepare any map of that place. He also could not state as to whether he found any place where the grass was cut. The fact that any grass was cut from the place where these persons i. e. the accused appellants and the deceased were cutting the grass, has not been proved on record. If these three persons were cutting grass as alleged by the prosecution then the portion from where the grass was cut would have been clearly visible and it should have been indicated by the investigating officer that grass was freshly cut and he should have prepared a site plan of that place. Non-preparation of the site plan by the investigating officer goes to show that no grass was cut and this case has been falsely set up to implicate the accused-appellants on account of the fact that they were partners in their nefarious activities. Non-preparation of the site plan by the investigating officer goes to show that no grass was cut and this case has been falsely set up to implicate the accused-appellants on account of the fact that they were partners in their nefarious activities. ( 15 ) THUS on the evidence on record it is held that the statements of Ram Bharosey (P. W. 4) and Chet Ram (P. W. 7) on this point cannot be believed and the prosecution has utterly failed to prove that these witnesses had last seen the accused-appellants along with the deceased cutting the grass. This link relied upon by the prosecution is also snapped. ( 16 ) THE last circumstance which has been relied upon by the prosecution is about dropping of the dead body of the deceased by the appellants in the well. This evidence consists of the statements of Ram Nath (P. W. 5) and Shishu Pal Singh (P. W. 6 ). Ram Nath (P. W. 5) has stated in his examination-in-chief that he was coming back on bullock cart from the station after leaving his mother there. Shishu Pal Singh (P. W. 6) was also with him. When they were on the north-western corner of the grove of Ram Autar they heard some noise which indicated that some heavy article has been dropped inside the well situated in the grove. They stopped the bullock cart and saw two persons there. He stated that these two persons were just like the accused-appellants. This witness was declared hostile by the prosecution and in cross-examination he has stated that he had recognised the accused persons at that place. He also stated that the investigating officer recorded his statement under S. 161, Cr. P. C. after one month. He admitted that before the investigating officer he had stated that he heard the noise and asked the accused persons as to what had been dropped in the well then they stated that two rotten water melons had been thrown into the well. He further stated that both the persons were about 25-30 paces away from them and it was midnight. ( 17 ) SHISHU Pal Singh (P. W. 6) has stated that when they reached the north-western corner of the grove of Ram Autar they heard the noise. At that time the accused persons came out of the grove and passed near the bullock cart. ( 17 ) SHISHU Pal Singh (P. W. 6) has stated that when they reached the north-western corner of the grove of Ram Autar they heard the noise. At that time the accused persons came out of the grove and passed near the bullock cart. He stated that these persons were at a distance of about 30-40 paces from him and he recognised them. On enquiry the accused persons told him that two water melons were thrown into the well. ( 18 ) AS is evident from the statements of these two witnesses the appellants had informed these witnesses that they had thrown water melons inside the well. It is not possible that these witnesses would have placed reliance on the statements of the accused-appellants that they had thrown water melons inside the well because water melons could have been thrown anywhere and it was not necessary that they should be thrown inside the well. The story put forward by the prosecution about throwing rotten water melons inside the well appears to be fabricated. These two witnesses should have become suspicious when this fact was told to them and they should have enquired deeply as to what was thrown inside the well because it was not believable that rotten water melons would have been thrown inside the well. ( 19 ) RAM Nath (P. W. 5) has stated that his statement was recorded by the investigating officer under S. 161, Cr. P. C. after one month. It does not appeal to reason as to why the statement of this witness was recorded by the investigating officer after one month. No reason has been given by the investigating officer as to why his statement was recorded by him after one month. The statement which has been recorded after one month cannot be relied and can be rejected straightway. This witness was present in the village and it was the duty of the investigating officer to have recorded his statement immediately thereafter. This evidence, it appears has been later on concocted which fact also finds support from the statement of Sumer (P. W. 1 ). He has stated in his cross-examination that he was told about this fact that the appellants and the deceased were cutting the grass at the tube well but he did not state this fact to the investigating officer. He has stated in his cross-examination that he was told about this fact that the appellants and the deceased were cutting the grass at the tube well but he did not state this fact to the investigating officer. Had this fact been correct then Sumer (P. W. 1) would have certainly told this fact to the investigating officer. Non-examination of Ram Nath (P. W. 5) for one month by the investigating officer and non-disclosing the fact of cutting the grass by Sumer (P. W. 1) to the investigating officer goes to show that this fact was not in existence and this theory has been later on developed which cannot be relied upon and is not believable. ( 20 ) EXHIBIT Ka-20 is the site plan prepared by the investigating officer of the well from where the dead body of the deceased Shyam Lal was recovered. According to both the witnesses of this fact they were passing through the north-western corner of the grove of Ram Autar. On the north-western corner of the grove there are two open fields as has been shown in the site plan. One field belongs to Jagtara widow of Ram Naresh. In these fields no rasta has been shown on the north-western side by the investigating officer. If there was any rasta then it must have been shown by the investigating officer. Therefore on record it has not been proved that there was a rasta towards north-western side of the grove of Ram Autar. When there was no rasta there was no question of these two witnesses passing through it on bullock cart. Thus the prosecution has failed to prove that there was a rasta where these two witnesses stopped their bullock cart on the north-western side. Only fields have been shown on the north-western side of the grove of Ram Autar. Thus the prosecution has also not succeeded in proving this circumstance against the accused-appellants. ( 21 ) THUS from the entire evidence on record which has been discussed above and after applying the principles of law on circumstantial evidence it can safely be held that the prosecution has utterly and miserably failed to prove that the appellants committed the murder of Shyam Lal in the manner alleged by it. The findings to the contrary recorded by the trial court cannot be upheld and are set aside. ( 22 ) AS. The findings to the contrary recorded by the trial court cannot be upheld and are set aside. ( 22 ) AS. Prabhu Dayal alias Prabhoo has died his appeal abates. ( 23 ) THE appeal of Bhagwan Din appellant is allowed and the judgment and order dated 11-9-1980 passed by the trial Court convicting the appellant under S. 302 read with S. 34 and S. 201 of the Indian Penal Code are set aside. The appellant is on bail. He need not surrender. His bail bonds are discharged. Appeal allowed. .