Judgment A.K.Prasad, J. 1. These two appeals have arisen from judgment and order dated 4th October, 1985 of Shri Mohammad Alam Mohnavi. 1st Additional Sessions Judge, Muzaffarpur, in Sessions Trial No. 5/1979 in which the appellant in each appeal were tried and convicted for the offences punishable under Secs. 364 and 302/34 of the Indian Penal Code: The appellants Satyadeo Mishra (Cr. A. No. 328/85) and Ram Narayan Mishra (Cr. A. No. 373/85) have been sentenced to undergo rigorous imprisonment for life under Sec. 302/34 of the Indian Penal Code. Appellant Satyadeo Mishra has further been sentenced to undergo rigorous imprisonment for 10 years under Sec. 364 of the Indian Penal Code. 2. The charge against the appellants was that on 31-1-1978, the appellant. Satyadeo Mishra, enticed away Surendra Kumar Mishra and later he was murdered by these appellants and one Ram Naresh Rai (since acquitted). 3. Deceased Surendra, Kumar Mishra, an Amin was inhabitant of village Rajwara in the District Muzaffarpur. He lived with his younger brother, Nagendra Kumar Mishra who is the informant of the case. The prosecution story is that on 31-1-1978 at about 10 a.m. Surendra Kumar Mishra was at his house when appellant Satyadeo Mishra came and asked the deceased to accompany him to Boccha Haat. 4. At about 12 noon Surendra Kumar Mishra (deceased) left his house alongwith Satyadeo Mishra. At about 9 p.m. in the night Satyadeo Mishra came to the house of the informant and gave him some fishes and told him that the deceased Surendra Kumar Mishra would be coming later. When Surendra Kumar Mishra did not return home in the night, Narendra Kumar Mishra went out in search of his missing brother but he could not be traced. He suspected that his brother had been murdered and his dead body has been disposed. On 3-2-1978 he submitted a written report to the Officer In-charge, Sadar P.S. Muzaffarpur, in which he stated the facts stated above. He, however, did not express suspicion against Satyadeo Mishra. However. Officer-in-charge registered a case against Satyadeo Mishra under Sec. 364 of the Indian Penal Code. 5. It is significant that in his written report the informant is silent whether he had met any person in course of search of his brother. The Officer-in-charge (PW 13), Harish Chandra Narain Lall, after registering the case took up investigation. However. Officer-in-charge registered a case against Satyadeo Mishra under Sec. 364 of the Indian Penal Code. 5. It is significant that in his written report the informant is silent whether he had met any person in course of search of his brother. The Officer-in-charge (PW 13), Harish Chandra Narain Lall, after registering the case took up investigation. On the same day he went to Boccha Bazar alongwith the informant and examined several witnesses who turned up as the prosecution witnesses. He also visited the house of the informant, which is at a distance: of 1/2 kilometre south to Gandak river and Boccha Bazar is at a distance of 3 kilometres away. 6. On 5-2-1978 at about 8.15 a.m. the dead body of deceased Surendra Kumar. Mishra was seen hanging on a broken branch of Baniyan tree on the bank off a river by Bilash Sah who has deposed as PW 10. PW 10 lived near the bank of river Budi Gandak, Bilash Sah had informed the father of the deceased about the recovery of the dead body of Surendra Mishra. 7. PW 15 is the Doctor. On the same day autopsy of the deceased was performed by Dr. Amrendra Sahay. Tutor in Department of Forensic Medicines in S.K. Medical College. Muzaffarpur. According to the findings recorded by him the dead body of the deceased was in decomposed state and whole body was swollen. The eyes were closed and mouth open and tongue protruded and under surface of lips were lacerated. There was bleeding from mouth and nostril. There were bruises on root of neck base of which was dry and hard with tearing of platysm-muscles. There was bruising of chest on both sides with corresponding fracture of ribs. In the opinion of Surgeon death was due to application of pressure over mouth, neck and chest, resulting into asphyxia. The Doctor ruled out the possibility of suicide. It is also not clear from the postmortem report that it was a case of homicide. However, the trial Court has found that it was a case of homicide. 8. We also proceed on assumption that it was a case of homicide. There is no eye-witness of the murder of the deceased. The learned trial judge having analysed the circumstantial evidence reached to the conclusion that the appellants were responsible for murder of the deceased. However, the trial Court has found that it was a case of homicide. 8. We also proceed on assumption that it was a case of homicide. There is no eye-witness of the murder of the deceased. The learned trial judge having analysed the circumstantial evidence reached to the conclusion that the appellants were responsible for murder of the deceased. The first circumstance noticed by the trial Court was that the appellant Ram Narayan Mishra had earlier brought a criminal case against the deceased for enticing away his wife in which the deceased was acquitted. That case was instituted in the year. 1965 and was decided in the year. 1967. As per the testimony of the informant deceased and Ram Narayan Mishra were not on talking term but no enmity is alleged against the appellant Satyadeo Mishra. As a matter of fact, Satyadeo Mishra and the deceased were close friends. Poshon Paswan (PW 5) has stated that Satyadeo Mishra and the deceased were often seen going to the bazar together. PW 7. Anandi Paswan has stated that Satyadeo Mishra and the deceased Surendra Kumar Mishra were taking wine together. According to PW 12 Narendra Kumar Mishra the deceased and Ram Narayan Mishra were not on talking term but another witness. Anandi Paswan stated otherwise. He has stated that all three Satyadeo Mishra, deceased Surendra Kumar Mishra and Ram Narayan Mishra of the same Chauki were seen together and they used to smoke and drink together. 9. The deceased went in company of Satyadeo Mishra at about 12 noon cannot be doubted and has not been challenged soon thereafter both of them went to the house of Radha Krishna Mishra. (PW 1). The deceased gave Rs. 7.00 to this witness for purchasing fish for him saying that he would take the fish on his return and thereafter both the deceased and accused Satyadeo Mishra went away towards Boccha Bazar. This witness also went to Bazar later on and purchased one kilo fish. 10. PW 3. Raghuni Sahni is a fisher man and he has stated that while he was selling fish in Boccha Bazar accused Satyadeo Mishra and the deceased Surendra Kumar Mishra came to his shop. The deceased selected a particular fish and asked him to give the same when Radha Krishna Mishra (PW 1) would come to him for purchasing fish. PW 3. Raghuni Sahni is a fisher man and he has stated that while he was selling fish in Boccha Bazar accused Satyadeo Mishra and the deceased Surendra Kumar Mishra came to his shop. The deceased selected a particular fish and asked him to give the same when Radha Krishna Mishra (PW 1) would come to him for purchasing fish. This witness further stated that Surendra Mishra gave him his Chunauti for preparing khainiand he asked for his knife for cutting garya upon which this witness gave his knife to Surendra for cutting garya. After half an hour Radha Krishna Mishra (PW 1) came to him and he gave him one, kilo fish stated by Surendra. This witness while returning from a toddy shop in the market saw Satyadeo Mishra and Surendra Mishra sitting in a Bhatti and both were taking liquor. Surendra called, this witness. This witness was also offered wine, which he took and returned to his shop. This witness also stated that on the next day he met Ramanand Mishra (PW 2) to whom narrated these facts and gave him a Chunauti. 11. Ramanand Mishra. PW 2 had deposed that he had seen Raghuni Sahni at 10 p.m. on 31-1-1978. Raghuni Sahni was coming from Pothia and while he was going towards his house he appeared to be in highly intoxicated. He has also deposed that on the next day appellant. Satyadeo Mishra came to his house in search of Surendra Mishra. This witness told him that Raghuni Sahni had stated. Satyadeo Mishra also handed over a knife telling him that he should hand over to Raghuni and that Chunauti was given to Satyadeo Mishra to return the same to Surendra Mishra. There is evidence of Ganauri Sahni. PW 4 that after an hour of night-fall on 31-1-1978 (the day the deceased left his house) he was knocked by the deceased Surendra Kumar Mishra when this witness was returning after answering the can of nature from the Bandh. He also saw appellant Satyadeo Mishra with him. There is evidence of Ganauri Sahni. PW 4 that after an hour of night-fall on 31-1-1978 (the day the deceased left his house) he was knocked by the deceased Surendra Kumar Mishra when this witness was returning after answering the can of nature from the Bandh. He also saw appellant Satyadeo Mishra with him. This appellant came to him and begged apology from his and requested him not to make any hullah as Surendra Mishra was highly intoxicated and thereafter both the deceased and appellant Satyadeo Mishra proceeded ahead on the bandh and after sometime this witness saw four persons going on the bandh in the same direction whom he could not identify as it was a dark night. Poshan Pashwar. PW 5 is Pashi by profession who had deposed that after half an hour of the night-tall on 31-1-1978 when he was liting lantern some body collided with has tatti. He came out with his lantern and saw that it was Surendra Mishra who had collided with his tatti and appellant Satyadeo Mishra was going ahead and he came back to him and requested him not to raise alarm. This witness has stated that Surendra Mishra was Amin in Chakbandi Office. 12. Indradeo Mishra. PW 5 has deposed that on Wednesday, i.e. 1-2-1978 at about 6.30 a.m. he was standing on the road in front of his house. He saw both the appellants Satyadeo Mishra and Ram Narayan Mishra and one Dr. Ram Naresh Rai (since acquitted) going towards Boccha road. After sometime the informant, Narendra Kumar Mishra came in search of his brother Surendra Mishra and told this witness that on the previous day (31-1-1978) his brother Surendra Mishra alongwith Satyadeo Mishra. Ram Narayan Mishra and Dr. Ram Naresh had gone to Boccha and they did not return and he asked as to whether he had seen him. upon which this witness told that some time before he had seen Satyadeo Mishra. Ram Narayan Mishra and Dr. Ram Naresh Rai going towards Boccha. All these facts have not been stated in written report filed by the informant before the Officer-in-charge of Sadar Police Station. Muzaffarpur, on 3-2-1978. Anandi Paswan. PW 7 had also seen the deceased alongwith Satyadeo Mishra taking liquor in Boccha Bazar. 13. Next important witness, Jhapas Sahni (PW 8) is boatman. Ram Naresh Rai going towards Boccha. All these facts have not been stated in written report filed by the informant before the Officer-in-charge of Sadar Police Station. Muzaffarpur, on 3-2-1978. Anandi Paswan. PW 7 had also seen the deceased alongwith Satyadeo Mishra taking liquor in Boccha Bazar. 13. Next important witness, Jhapas Sahni (PW 8) is boatman. This witness had deposed that on Tuesday at about 12 noon i.e. the day Surendra Kumar Mishra left his house with Satyadeo Mishra both of them came to Rajwara Ghat, both crossed the river on boat of this witness and they went towards Dhab. At about 8 p.m. Satyadeo Mishra returned alone and he crossed the river in the boat of this witness and when this witness questioned him about the whereabouts of the deceased. Surendra Mishra, appellant told Satyadeo Mishra that he was left behind and he would come later on. This witness waited for Surendra Mishra but Surendra did not return. 14. Shrikant Mishra PW 11, has stated that he was at his Bathan in the night between 9-10 p.m. He saw both the appellants. Satyadeo Mishra and Ram Narayan Mishra talking in low voice going towards the ghat of the river. This witness was examined after two months. 15. Narendra Kumar Mishra. PW 12 is the informant and the brother of the deceased who had stated that appellant. Satyadeo Mishra came to his house at 10 a.m. and took his brother. Surendra, Kumar Mishra, away with him at 12 noon on the pretext of seeing his fields and for going to Boccha Bazar. This witness has stated that the appellant Satyadeo Mishra returned alone with fish to his house at 9 p.m. and on query made by him as to whereabouts of Surendra Mishra, appellant Satyadeo Mishra told him that the Surendra Mishra deceased was coming from behind and fish be prepared and kept ready for him. But Surendra Mishra did not return. Rest all the witnesses are hearsay witnesses. When his brother did not return, he became suspicious and went out in search of him. He went to the house of Satyadeo Mishra who was found absent. He searched for his brother at several places but his efforts yielded no fruit and he returned in the night. Next day also he did not find Satyadeo Mishra. The informant in his written report also, not stated these facts. 16. He went to the house of Satyadeo Mishra who was found absent. He searched for his brother at several places but his efforts yielded no fruit and he returned in the night. Next day also he did not find Satyadeo Mishra. The informant in his written report also, not stated these facts. 16. In the light of the evidence analysed above the trial judge enumerated eleven circumstances against the appellants to hold that the chain of the circumstances availed on the record established beyond doubt that the appellants had committed murder of the deceased. Surendra Kumar Mishra. The circumstances are as follows: " I. That the deceased Surendra Kumar Mishra had difference with accused Ram Narayan Mishra and not on even speaking terms with him as the latter (accused Ram Narayan Mishra) had earlier brought a criminal case against the deceased for enticing away his wife. II. That accused Satyadeo Mishra was a common friend of both the deceased. Surendra Kumar Mishra and accused Ram Narayan Mishra. III. That on Tuesday, i.e. 31-1-1978 at about 10 a.m. accused Satyadeo Kumar Mishra had come to the house of the deceased Surendra Kumar Mishra and had taken him away with him at about 12 noon on the pretext of seeing his fields and for going to Bochha Haat. IV. That thereafter accused Satyadeo Mishra took the deceased Surendra Kumar Mishra to the house of accused Ram Narayan Mishra where the deceased was given ganja to smoke and they remained there for a considerable period. V. That thereafter both accused Satyadeo Mishra and the deceased Surendra Kumar Mishra crossed the river on a boat and then they went together to Bochtia Bazar where in a wine shop of Baldeo Chaudhary they took wine and in course of the same deceased Surendra Kumar Mishra was made highly drunken with the result that while returning in the night the deceased who had been highly intoxicated dashed against the tatti of Poshan Paswan(PW 5) and also dashed against Gonour Sahni (PW 4) on Bandh and on protest made by them accused Satyadeo Mishra begged apology and requested them not to make any hulla. VI. That the deceased was taken to the house of Radha Krishna Mishra (PW 1) by accused Satyadeo Mishra and Rs. 7.00 was given to the said witness for purchasing fish by the deceased. VII. VI. That the deceased was taken to the house of Radha Krishna Mishra (PW 1) by accused Satyadeo Mishra and Rs. 7.00 was given to the said witness for purchasing fish by the deceased. VII. That accused Satyadeo Mishra alone returned to the house of PW 1 and took the fish with him from PW 1 and thereafter accused Satyadeo Mishra went to the boatman Jhapas Sahni (PW 8) at 8 p.m. and crossed the river without giving any satisfactory explanation to PW s 1 and 8 about the whereabouts of his companion. namely, Surendra Kumar Mishra who had earlier crossed the river with him. VIII. That thereafter accused Satyadeo Mishra returned to the house of the deceased at 9 p.m. in the same night alone and gave some fish to the informant (P.W 12) and on a query made by the informant about the whereabouts of the deceased Surendra Kumar Mishra, accused Satyadeo Mishra told him that the deceased was coming behind and asked him that the fish be prepared and kept ready for him. IX. That the, deceased Surendra Kumar Mishra never returned- back and in spite of the rigorous search made by the informant, his dead body could only be found on 5-2-1978 in a lonely place by the side of Gandak river at Budhnagra village. X. That the three accused persons were members of the same Chaukri and they smoke and drank together. XI. That before the recovery of the dead body, the informant had on the very next day of the abduction of the deceased, gone to the house of accused Satyadeo Mishra and on further enquiry from him accused Satyadeo Mishra apart from admitting that he had taken the deceased to Bochha Bazar where the deceased was intoxicated, gave a different version about the where about of the deceased by saying that while returning from Bochha Bazar the deceased was lost in the Rahar field of the Dhab. 17. It is settled by the Hon ble Supreme Court in a case of Eradu and others V/s. State of Hyderabad: "It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused" . The appellants before the Supreme Court were convicted on circumstantial evidence and the whole case rested on circumstantial evidence and the evidence consisted of the testimony of three witnesses, the wife of the deceased, the young son of the deceased and a neighbour, who deposed that on the evening of the day in question, all the four accused had gone to the house of the deceased and accosted him asking him to accompany them to the well of one Deshmukh. There was evidence of ill-will between the deceased and the accused in that the accused were alleged to have abducted the deceased a month before the alleged murder and set him at liberty on payment of a ransom of Rs. 350/ - and also that the accused had, only three days before, deprived the deceased of a goat belonging to him from the possession of Kumari Sayiga and slaughtered it and ate it away. Further more there was evidence of recovery of silver kardoda at the instance of one of the accused, white turban from the house of the other accused. The alleged silver kardoda was removed from the person of the deceased and buried in a secluded spot which was pointed out by accused 2 and the white turban was alleged to have been stained with human blood. These were the pieces of circumstantial evidence on the strength of which the appellants were held guilty of murder. The conviction of the appellants was confirmed by the High Court. The Hon ble Supreme Court accepted evidence that the deceased was approached by the accused persons and he went with them later he was found murdered but held that the conviction to be unsustainable applying the settled rule of circumstantial evidence. 18. In a case of Bry Bhushan Singh V/s. Emperor, the appellant, a member of Civil Services was convicted under Sec. 304, IPC for the murder of his maid, servant. The conviction was based on circumstantial evidence. There was evidence that the appellant had beaten his maid, servant. Thereafter she was not seen alive. There was also evidence that the dead body of the maid, servant was placed in the appellants car and was disposed of by the accused persons. The conviction was based on circumstantial evidence. There was evidence that the appellant had beaten his maid, servant. Thereafter she was not seen alive. There was also evidence that the dead body of the maid, servant was placed in the appellants car and was disposed of by the accused persons. In this case Privy Council observed:- "A long motor-car journey was undertaken in the middle of the night, and that a false reason was given in explanation, raises a suspicion that the object of the journey may have been to dispose of the dead body of Bilasia, and that suspicion is much strengthened by finding that from the time when the motorcar left the appellants house, Bilasia was never seen alive by any independent witness and that admittedly, she had disappeared the next day. The appellant has only himself to blame for much of the cause, which the case has taken. But suspicion is not proof. It is impossible to say that the only legitimate inference to be drawn from this motor-car journey and the disappearance of Bilasia is that the appellant killed Bilasia". 19 In a case of Bambhir V/s. State of Maharashtra, the appellant before the Supreme Court, were tried and convicted for murder of the deceased and her two children. The evidence was that on 26th February, 1975 Bambir was seen in the house of Laxmi in the evening. He was also seen in the company of Laxmi at about 10.00 p.m. at night on the same, day under a Neem tree. Thereafter neither Laxmi nor her children were seen alive; Next morning i.e. on 27th of February the neighbours found that the thatched door of the house of Ramdeo was open and household utensils and other goods in the house were lying in disorder. Laxmi and her children were not found there. The dead body of the deceased was found in decomposed state at a far place. A dog squad was requisitioned. The dog went to the house of the appellant and stopped there. The appellant was arrested and at the time of his arrest some injuries were found on his person. On interrogation, the accused offered to Point out the well where the dead bodies of Laxmi and her daughter Manda were lying. 20. A dog squad was requisitioned. The dog went to the house of the appellant and stopped there. The appellant was arrested and at the time of his arrest some injuries were found on his person. On interrogation, the accused offered to Point out the well where the dead bodies of Laxmi and her daughter Manda were lying. 20. During trial two witnesses had deposed that the accused was seen in the house of Laxmi in absence of her husband from the village on 26-2-1975. At mid-night they heard some noise from the house of Ramdeo. They woke up and opened their door and they found accused coming out from the house of Ramdeo in white Dhoti, full sleeves shirt with a cap on his head. Some of the evidences were not accepted by the Supreme Court and held that the three conditions which are necessary to be satisfied before circumstantial evidence can be made on the basis for conviction have not been fulfilled. There may be suspicion against the accused but the suspicion cannot take the place of evidence. 21. In a case of Barhoo Raut V/s. The State of Bihar, the appellant was convicted for murder of his Sarhu on the basis of circumstantial evidence. The evidence was that the appellant was sleeping alongwith the deceased in the cattle shed. In the next morning the mother of the deceased finding her son still sleeping went to the cattle shed in order to wake him up, as it was getting late for giving fodder to the cattle. She called out her son and when she went inside the cattle-shed she wanted to wake him up by touching his head but dead having cut injury on the neck. The further evidence was that the appellant had illicit connection with the wife of the deceased. Further evidence was that the appellant had come to the village of the deceased on 4th of November, 1967 and he was found in the company of the deceased in the evening as well as in the night and he was also sleeping with the deceased. There was also evidence that the appellant had absconded after the occurrence for a long time. There was also evidence that the appellant had absconded after the occurrence for a long time. It has been held that conviction was not proper and reliance was placed on Dukhharan Mian V/s. State of Bihar, where it was held that the evidence of last seen alone could not be said to be conclusive evidence for holding a person guilty of such a type of offence as murder. 22. In a case of Raghav Prapanna V/s. State of U.P.6, the appellant was charged with the murders of his wife and son aged 4 years. The deceased was shot at the house of the appellant in village Hamirpur Roora. The motive for this conduct is said to be that the appellant was not caring for the deceased and ill- treating her after his marrying one Bimla in 1954. The dead body was disposed of and could not be recovered by the police the appellant was convicted on the basis of the following circumstantial evidence: A. On April, 1961, Kamla and Madhusudhan were in the house of Ramanuj Das. B. Kamla and Madhusudhan were last seen alive on April 5, 1961, in the evening. C. On April 5, 1961, Raghav Prapanna was also in the house of Ramanuj Das. D. On April 5, 1961, at about 5 or 6 p.m. three gun shots were fired on the roof of Ramanuj Das. E. On April 5, 1961, at about 9 or 10 p.m. Raghav Prapanna, Mohan and Udham Singh left village Hamirpur Roora on the Jeep of Raghav. F. On April 5, 1961, at about 11 p.m. Raghav Prapanna purchased petrol from Bidhuna -Petrol Pump. G. On April 6, 1961, at about 8.30 p.m. Raghav Prapanna crossed Rawatpur barrier in Kanpur. H. On April 6. 1961, Raghav Prapanna got a post card sent by his sister that Kamla had reached Lucknow, safely. I. On April 7, 1961, bloodstained earth was recovered from the house of Ramanuj Das from 11 different places. J. On April 14, 1961, bloodstained earth, was recovered from the house of Ramanuj Das from 7 different places. K. All the accused absconded after the alleged murder. L. Blood-stained shirt and pyjama belonging to Raghav Prapanna were recovered from the possession of Snowhite Dyers and Cleaners, Lucknow. M. The police could not trace out the Jeep of Raghav Prapanna in spite of vast efforts. K. All the accused absconded after the alleged murder. L. Blood-stained shirt and pyjama belonging to Raghav Prapanna were recovered from the possession of Snowhite Dyers and Cleaners, Lucknow. M. The police could not trace out the Jeep of Raghav Prapanna in spite of vast efforts. Some of the circumstantial evidence were not accepted by the Supreme Court but despite numerous strong circumstances against the appellant, the Hon ble Supreme Court, by majority verdict acquitted the appellant before the Hon ble Supreme Court since in their opinion the circumstantial evidence was adequate convict the appellant. 23. It would be appropriate at this stage to examine the various circumstances pressed by the prosecution to established charge against the appellant. The first circumstance was that the appellant Ram Narain Mishra was on hostile term with the deceased on account of fact that this appellant had earlier brought a criminal case against the deceased for enticing away his wife. The informant himself has to testify to the fact that the deceased and both the appellants were very close and they used to smoke Gaya together. In view of this statement made by the informant the first circumstance referred to above cannot be said to be established. It may be that this appellant was secretly nursing a grudge having enticed away his wife. However, no enmity has been alleged against Satyadeo Mishra. This actual is not a circumstance only but motive for the crime. 24. The fact that the deceased gone with the appellant, Satyadeo Mishra, on 31-1-1978 has rightly been accepted and has not been denied by the appellant. However, it cannot be said to be an incriminating circumstance against the appellants in view of the admitted fact that both the appellants and the deceased were close friends. The deceased was first of all taken to house of accused Ram Narayan Mishra by appellant Satyadeo Mishra, where the deceased was given Ganja to smoke, and they remained there for a considerable period. This fact has been stated by Rajendra Mishra (PW 9). This witness has also stated that he had seen the deceased smoking Ganja since long. All three were friends. This circumstance cannot be said to be an incriminating circumstance against the appellants. 25. This fact has been stated by Rajendra Mishra (PW 9). This witness has also stated that he had seen the deceased smoking Ganja since long. All three were friends. This circumstance cannot be said to be an incriminating circumstance against the appellants. 25. The next circumstance is that the appellant Satyadeo Mishra and deceased Surendra Mishra had come to Rajwara Ghat at 12 noon and they crossed the river from the boat of Jyapsi Sahni (PW 8). They went towards Dhab. It is significant to note that it is only Satyadeo Mishra who was with the deceased and not Ram Narayan Mishra. In the evening according to the evidence of PW 3, Raghu Sahni, the deceased Surendra Mishra and the appellant Satyadeo Mishra were seen and on the same day Satyadeo Mishra alongwith the deceased had gone to the house of PW 1, Radha Krishna Mishra. Later both were seen by Baldeo Choudhary in Bochha Bazar. The other appellant was not with them. On the evening the appellant Satyadeo Mishra returned to the house of the informant (PW 12) and on interrogation made by him as to whereabouts of deceased Surendra Mishra the appellant handed over fish to the informant saying that Surendra Mishra would be coming later. This circumstance is not against the appellant Satyadeo Mishra, if he was responsible for unfortunate death of the deceased he would not have gone to the house of the deceased. There is also evidence that on the next day. Satyadeo Mishra had gone to the house of Ramanand Mishra (PW 2) in search of the deceased. 26. The next circumstantial evidence appears against Satyadeo Mishra was that on the next day the informant went to him in search of his brother and enquired from him about whereabouts of his brother (deceased). He admitted that he had taken the deceased to Bochha Bazar/and he is said to have given different version about whereabouts. It is noticed that in the FIR, the informant has not stated these facts. He has not stated that even he had gone to the house of appellant Satyadeo Mishra, On the other hand the prosecution case is that this accused was not found at his house. It is noticed that in the FIR, the informant has not stated these facts. He has not stated that even he had gone to the house of appellant Satyadeo Mishra, On the other hand the prosecution case is that this accused was not found at his house. This evidence appears to be of a confused nature and the circumstance relied upon by the prosecution cannot be said to form chain of evidence as he does not stick to the fact that only appellants were responsible for the death of the deceased. 27. It would be pertinent to note that both the appellants were tried and charged under Sec. 302. IPC. Motive is alleged only against appellant Ram Narain Mishra. Only one witness has stated that both the appellants were seen going together towards the Ghat of the river and they were talking slowly. 28. Another fact to be noticed was discovery of the dead body by PW 10. Bilas Sah and the condition in which the dead body of the deceased was discovered by Bilas. The dead body of the deceased was seen lying on the branch of a baniyan tree on the bank of river. How the dead body came there is mystery. No proper investigation was made by the Investigating Officer also. The dead body was found four days after the deceased went alongwith the appellant Satyadeo Mishra. Ram Bilas Sah stated in his evidence that fresh cut Bank Palki plants were found by the sides of the dead body. No such plant was growing where the dead body of the deceased was found. Probably the dead body had floated to that place. 29. According to the medical evidence the death was due to pressure over mouth, neck and chest. The dead body was in decomposed state. The Doctor opined that the bleeding in this case was due to decomposition. Ribs may be fractured and there may be injury on mouth if there is violent fall dashing against hard blunt substance from height. It is difficult to hold from the medical evidence that it was a case of suicide. 30. In our opinion accepting the prosecution story at its face value it is not possible or legally permissible to convict the appellant under Sec. 302/34, IPC. It is difficult to hold from the medical evidence that it was a case of suicide. 30. In our opinion accepting the prosecution story at its face value it is not possible or legally permissible to convict the appellant under Sec. 302/34, IPC. There is no reliable evidence to hold that the deceased was murdered in furtherance of intention of all these two appellants, the third accused having been acquitted. 31. Thus, there is also serious infirmity in the examination of the appellants under Sec. 313. Cr. PC. The learned trial Judge has not put all the circumstantial evidence used against the appellants in their examination under Sec. 313. Cr. PC, only few of them were put to the appellants. The circumstance, put to the appellants in examination under Sec. 313, Cr. PC do not constitute chain of circumstantial evidence, which would lead to the conclusion that both the appellants were involved in the alleged murder of the deceased. The conduct of the appellants in circumstance, no doubt, is suspicious but suspicion is no proof. 32. In the result, we hold that the evidence on the strength of which the appellants have been convicted under Sec. 302, IPC, appears to be inadequate for convicting the appellants on circumstantial evidence as held by the numerous decisions of the Hon ble Supreme Court referred to above. Both the appeals are accordingly, allowed. Conviction of the appellants, Satyadeo Mishraand Ram Narayan Mishra, is hereby set aside and they are acquitted by giving benefit of doubt. The appellants are discharged from the liability of their bail bonds.