JUDGMENT R.L, Khurana, J.—The two appellants, hereinafter referred to as the accused, stand convicted by the learned Sessions Judge, Nahan, in Sessions Trial No. 59-ST/7 of 1997 vide judgment dated 13.11.1998 for the offences under Sections 302 and 201 read with Section 34, Indian Penal Code. Upon such conviction each of the two accused has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 read with Section 34, Indian Penal Code, and to pay a fine of Rs. 2,000/- each. In default of payment of fine, each of the two accused has been sentenced to undergo rigorous imprisonment for a further period of two months. No separate sentence was imposed upon the two accused for the ancillary offence under Section 201 read with Section 34, Indian Penal Code. 2. Briefly, the prosecution story may be thus stated. The two accused are residents of Panipat (Haryana). In the month of July, 1997 accused Yash Pal was a partner of the firm Messrs. Bhagwati Yarn Traders of Panipat. Accused Rajesh Sharma in those days was residing in Model Town, Panipat. One Shiv Kumar, aged about 20 to 22 years, was working as a Salesman with the Panipat branch of Dinesh Textile Mills of Amritsar. He was residing with his maternal uncle. PW 4 Suresh Goyal at Panipat. 3. The abovesaid Shiv Kumar left his shop in the afternoon of 21.7.1997 on his Scooter. He did not go to his house for lunch. He went to the shop of PW 10 Gulshan Kumar, a mechanic, for the repair of his Scooter. After leaving the Scooter with such mechanic for repair, he left assuring the mechanic that he would come to collect the Scooter in the evening. He, however, did not return to take back his Scooter. PW 10 Gulshan Kumar, therefore, sent the Scooter to the shop of Shiv Kumar on the same evening. When PW 4 Suresh Goyal came to know about the non-return of Shiv Kumar, he carried out a search for him and having failed to trace him out, he lodged a report with the police on 22.7.1997 at Police Post, Killa Panipat about Shiv Kumar being missing. 4. When PW 4 Suresh Goyal came to know about the non-return of Shiv Kumar, he carried out a search for him and having failed to trace him out, he lodged a report with the police on 22.7.1997 at Police Post, Killa Panipat about Shiv Kumar being missing. 4. On the evening of 23.7.1997, PW 1 Geeta Ram, who is running a restaurant on the roadside at Kanlog, within the local limits of Police Station, Pachhad of District Sirmaur, noticed a dead body lying about 33 feet below the road in a gorge. Telephonic information about this fact was given by him to the police. On the basis of such information PW-32 Sub-Inspector Kaur Chand, Officer incharge of Police Station, Pachhad, reached the spot at about 8 p.m. On examination of the dead body, injuries were found on his forehead. There was cut mark on the neck of the deceased. Photographs of the dead body were taken. During the course of search of the place where the dead body was found a knife Ex. M-1 and a shirt piece Ex. M-2 were found near the dead body. Both these articles were taken into possession by PW 32. Sub Inspector Kaur Chand. Inquest report was prepared in the presence of PW 1 Geeta Ram and one Ram Chand. During the course of search of the pockets of the deceased one bill (Ex. P-46) of Messrs. Prabhu Dayal Associates alongwith currency notes worth Rs. 1,243/-was recovered. Sub Inspector Kaur Chand thereafter sent "Rukka", Ex. P-36, to the Police Station, Pachhad whereupon a case for the offences under Sections 302 and 201, Indian Penal Code, came to be registered vide F.I.R. No. 47/97, Ex. P-37. 5. The dead body was subjected to post-mortem. Such post mortem was conducted by PW 8 Dr. Manoj Kumar on 24.7.1997 at about 1 p.m. The following injuries were found on the person of the deceased: 1. Incised wound below the thyroid cartilage in right antero lateral aspect, linear shape, transverse in direction of 15 cm x 10 cm size; 2. Incised wound on the scalp right side, spindle shape 5 cm x 1 cm in size; and 3. Abrasion on the right wrist joint on antero lateral aspect 2 cm x 2 cm in size. Clotted blood was present. 6. There was no ligature mark. Cranium and spinal cord was normal. Incised wound on the scalp right side, spindle shape 5 cm x 1 cm in size; and 3. Abrasion on the right wrist joint on antero lateral aspect 2 cm x 2 cm in size. Clotted blood was present. 6. There was no ligature mark. Cranium and spinal cord was normal. There was no evidence of extra dural haemorrhage. There was no fracture on the body or skull. Sub cutaneous tissues were emphysematous. Both lungs were edematous and congested. Heart was congested. Internal jagular veil right side and common carrotidartery right sale, right sterno cleidomastoid, right omohyoid muscle were transversely cut. Thyroid gland was also cut. Left sterno cleidomastoid muscle 1/2 cut of its thickness. Trachea also cut. Abdomen was distended and full of foul smelling gases. Abdominal organs showed sign of putrefication. No rigor mortis was present. 7. In the opinion of PW 8 Dr. Manoj Kumar, the death of the deceased had occurred because of cut throat injury due to massive haemorrhage leading to hypo volumic shock and air ombolism, all leading to cardio pulmonary arrest. The probable time that elapsed between death and post mortem was between two to five days. Death after the injuries was opined to be instantaneous. Injury Nos. 1 and 2 were opined to have been caused by a sharp edged weapon, while injury No. 3 was opined to have been caused by a blunt weapon. All the injuries were ante mortem in nature and sufficient in the ordinary course to cause death. 8. Since the dead body was of an unidentified person, on the basis of the bill Ex. P-46 recovered from the pocket of the deceased, information was sent to Police Station, Panipat regarding the recovery of the dead body near Kanlog. The Panipat police in turn informed about the report regarding a missing person and that relations of such missing person would be reaching for identifying the dead body. PW 4 Suresh Goyal accompanied by some other relations reached Sarahan on 24.7.1997 and he identified the dead body to be that of his nephew Shiv Kumar. 9. Investigation revealed that in the months of June/July, 1997, the deceased Shiv Kumar had purchased a number of silk yarn cartons on different dates vide bills Ex. P-5 to P-16 from Messrs. Kesho Ram Rayons. 9. Investigation revealed that in the months of June/July, 1997, the deceased Shiv Kumar had purchased a number of silk yarn cartons on different dates vide bills Ex. P-5 to P-16 from Messrs. Kesho Ram Rayons. Out of the cartons so purchased, he had sold 75 cartons on credit to accused Yash Pal, who in turn had delivered 26 cartons to accused Rajesh Sharma. Though 75 cartons of silk yarn were purchased by deceased Shiv Kumar from Messrs. Kesho Ram Rayons in his capacity of being the Salesman of Messrs. Dinesh Textiles Mills, he had never accounted for the same in the books of account of the said firm being maintained by him. 10. The two accused, in order to avoid their liability of payment of price of 75 cartons of silk yarn amounting to about Rs. 7.5 lacs, wanted to eliminate Shiv Kumar and for this purpose they had taken him to Mussoorie on 17.7.1997 in a Fiat Car bearing No. HP-17-1597. This car belongs to DW 2 S.P. Sharma, the father of accused Rajesh Sharma. Since the two accused could not get an opportunity to eliminate the deceased Shiv Kumar at Mussorie, they returned to Panipat alongwith the deceased Shiv Kumar on 19.7.1997. 11. Having failed in their first attempt at Mussorie, the two accused on 21.7.1997 in the afternoon brought the deceased in Sirmaur area in the same car No. HP-17-1597. This car entered Himachal Pradesh through Behral check post and barrier at about 5.20 p.m. and it returned the same day at about 11 p.m. as per the entries recorded at such check post and barrier. According to the prosecution, the two accused after having killed the deceased Shiv Kumar, had thrown the dead body in a gorge at Kanlog with a view to screening themselves from the offence of murder. 12. During the course of investigation 37 cartons of silk yarn were recovered from the godown of accused Yash Pal. 12 cartons were found to have already been sold by him and 26 cartons had been delivered by him to accused Rajesh Sharma. Accused Yash Pal after his arrest is also alleged to have produced a sum of Rs. 64,000/-, Rs. 1,25,000/- and Rs. 2,33,000/- before PW 32 Sub Inspector Kaur Chand on 1.2.1997, 3.9.1997 and 8.9.1997 respectively. 13. 12 cartons were found to have already been sold by him and 26 cartons had been delivered by him to accused Rajesh Sharma. Accused Yash Pal after his arrest is also alleged to have produced a sum of Rs. 64,000/-, Rs. 1,25,000/- and Rs. 2,33,000/- before PW 32 Sub Inspector Kaur Chand on 1.2.1997, 3.9.1997 and 8.9.1997 respectively. 13. A search of the poultry farm of the accused Yash Pal was carried out on 30.8.1997 and during the course of such search one "Jack" Ex. M-11, which is alleged to have been used as one of the weapons of offence, was recovered therefrom. This "Jack" on chemical examination was found to be stained with human blood. 14. Accused Rajesh Sharma whilst in custody is alleged to have made a disclosure statement on 1.9.1997 leading to the recovery of one gold chain, Ex. M-7, from the shop of Subhash Jewellers of Sarafa Bazar, Panipat with whom the accused Rajesh Sharma is alleged to have pawned the same for a sum of Rs. 5,400/-. This gold chain was identified by PW 4 Suresh Goyal to be that of the deceased. 15. Accused Rajesh Sharma is also alleged to have made a disclosure statement on 30.8.1997 leading to the recovery of 26 carbons of silk yarn from a room which the said accused is alleged to have taken on rent from PW 23 Kalu Ram. 16. Thus, on a case having been found against the two accused for the offences under Sections 302 and 201 read with Section 34, Indian Penal Code, they were sent up for trial. 17. The accused pleaded not guilty. They pleaded false implication. Accused Yash Pal in his statement under Section 313, Code of Criminal Procedure, admitted that he had purchased 49 cartons of silk yarn from the deceased Shiv Kumar in the month of July, 1997. He stated that such cartons were purchased on cash basis and not on credit. He denied having gone to Mussorie or towards Himachal Pradesh alongwith accused Rajesh Sharma and/or the deceased Shiv Kumar. 18. Accused Rajesh Sharma admitted that Fiat Car No. HP-17-1597 is owned by his father. He also admitted having gone to Mussoorie by this car on 18.7.1997. He however, denied having gone to Mussoorie in the company of accused Yash Pal and/or the deceased Shiv Kumar. 18. Accused Rajesh Sharma admitted that Fiat Car No. HP-17-1597 is owned by his father. He also admitted having gone to Mussoorie by this car on 18.7.1997. He however, denied having gone to Mussoorie in the company of accused Yash Pal and/or the deceased Shiv Kumar. He stated that he had gone to Mussoorie accompanied by his uncle and a friend of his uncle. He further denied having received 26 cartons of yarn from accused Yash Pal and having taken a room on rent from PW 23 Kalu Ram. He also denied having pawned the gold chain with Subash Jewellers. Making of disclosure statements were denied. Accused Rajesh Sharma also denied having gone towards Kanlog on 21.7.1997 by the abovesaid car. 19. The prosecution in support of its case in order to bring home the offences against the two accused, examined as many as 32 witnesses. The accused examined three witnesses in their defence. 20. The learned Sessions Judge, upon consideration of the evidence led before him. convicted and sentenced the two accused as aforesaid. 21. Feeling aggrieved by the conviction and sentence imposed upon them, the two accused have come up before this Court by virtue of the present appeal under Section 374, Code of Criminal Procedure. 22. We have heard the learned Counsel for the parties and have also gone through the record of the case. 23. The case of the prosecution rests solely on circumstantial evidence. In convicting and sentencing the two accused, the learned Sessions Judge has placed reliance on the following circumstances:— (i) The two accused were having business dealings of sale and purchase of silk yarn with the deceased Shiv Kumar; (ii) Accused Yash Pal had purchased 75 cartons of silk yarn from the deceased on credit in the month of July, 1997 and out of these 75 cartons, he had delivered 26 cartons of silk yarn to accused Rajesh Sharma; (iii) The two accused were in close proximity with the deceased Shiv Kumar for few days before his death; (iv) The two accused had taken the deceased Shiv Kumar from « Panipat to Haridwar and then to Mussoorie on 17.7.1997 and had returned from there on 19.7.1997; (v) Accused Yash Pal was found missing from his shop Messrs. Bhagwati Yarn Traders, Panipat from the afternoon of 17.7.1997 to 22.7.1997; (vi) The two accused had taken the deceased Shiv Kumar towards Himachal Pradesh in Fiat Car No. HP-17-1597 belonging to the father of accused Rajesh Sharma on the afternoon of 21.7.1997 when the deceased Shiv Kumar was last seen alive at Panipat in the company of the two accused; (vii) Fiat Car No. HP-17.1597 had entered Himachal Pradesh from Behral Police Barrier at 5.20 p.m. on 21.7.1997 and it had returned back via the same Barrier on the same day at about 11 p.m.; (viii) The dead body of the deceased Shiv Kumar was found lying in a gorge below the road on the evening of 23.7.1997; (ix) During the course of search at the poultry fram of accused Rajesh Sharma on 30.8.1997 "Jack’ Ex. M-11 was recovered which "Jack" was one of the weapons of offence; (x) Disclosure statement made by accused Rajesh Sharma leading to recovery of 26 cartons of silk yarn from the house of Kalu Ram (PW 23); (xi) Accused Rajesh Sharma had taken the house on rent from PW 23 Kalu Ram from where 26 cartons of silk yarn were recovered, at about the time of murder of the deceased Shiv Kumar; (xii) Purchase of two drums by accused Rajesh Sharma on 21.7.1997 from PW 24 Jagdish Kumar for the purpose of^ keeping 26 cartons of silk yarn ; and (xiii) False denial of certain proved facts by the two accused in order to distance themselves from the crime. 24. The learned Counsel for the accused contended that the circumstances relied upon by the learned Sessions Judge besides being untrue and concocted, have not been fully and congently established. The learned Sessions Judge in assessing the evidence has relied upon imaginary possibilities. The chain of events furnished by the circumstances is not complete and there exists reasonable grounds for conclusion consistent with the innocence of the accused. 25. The learned Assistant Advocate General, on the other hand, has supported the conviction and sentence imposed upon the two accused by the learned Sessions Judge for the reasons and on the grounds detailed in the impugned judgment. It was contended that all the circumstances relied upon stand fully proved and such circumstances are consistent only with the hypothesis of the guilt of the accused. 26. It was contended that all the circumstances relied upon stand fully proved and such circumstances are consistent only with the hypothesis of the guilt of the accused. 26. It is well established principle of law that where the inference of guilt of an accused person is to be drawn from circumstantial evidence, only those circumstances must, in the first place, be congently established. Further, these circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else. (See: Rama Nand and others v. The State of Himachal Pradesh (1981 Cr. L.J. 298). 27. The Supreme Court in Jaharlal Das v. State of Orissa (1991 Cr. L.J. 1809) while dealing with a case of rape and murder based on circumstantial evidence, has held:— "It is well settled that the circumstantial evidence in order to sustain conviction must satisfy three conditions: (i) the circumstances from which an inference of guilt is sought to be drawn, must be congently and firmly established; (ii) those circumstances, should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused/ 28. The Supreme Court further sounded a word of caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of innocence of the accused. 29. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of innocence of the accused. 29. In Akhilesh Hajam v. State of Bihar, (1995 Supp (3) SCC 357) it has further been held that from the evidence it may appear that in all probability the accused may be the culprit but probabilities and moral convictions have no place or any role to play to convict a person in the absence of legal evidence. There is a long distance to be travelled between the expression "may be" and "must be". However strong the emotional considerations may be, but the same cannot take the place of proof. 30. Bearing the above principles in mind, we now proceed to consider each of the circumstances relied upon by the learned Sessions Judge and the reasoning given in coming to the conclusion that the two accused alone had committed the offence and none else. Circumstances No. (i) and (ii). 31. Both these circumstances can be conveniently discussed together. Accused Yash Pal, in his statement recorded under Section 313, Code of Criminal Procedure, has admitted that the deceased Shiv Kumar used to work as a Salesman with Messrs. Dinesh Textiles Mills of Amritsar at Panipat and that in such capacity he used to purchase silk yarn from Messers. Kesho Ram Rayons, Panipat branch. Accused Yash Pal also admitted having purchased 49 cartons of silk yarn from the deceased Shiv Kumar. He, however, denied that the purchase of silk yarn was on credit. 32. Accused Rajesh Sharma has pleaded ignorance to the fact that the deceased Shiv Kumar was a salesman with Messrs. Dinesh Textiles Mills or that he was dealing in sale/purchase of silk yarn. He specifically denied that 26 cartons of silk yarn was sold to him by accused Yash Pal out of the cartons purchased by him from the deceased Shiv Kumar. 33. As per the prosecution story, the deceased Shiv Kumar in the month of July, 1997 had received a supply of 207 cartons of silk yarn from Messrs. Kesho Ram Rayons on behalf of his employer Messrs. Dinesh Textiles Mills worth about Rs. 18 lacs vide bills Ex. 33. As per the prosecution story, the deceased Shiv Kumar in the month of July, 1997 had received a supply of 207 cartons of silk yarn from Messrs. Kesho Ram Rayons on behalf of his employer Messrs. Dinesh Textiles Mills worth about Rs. 18 lacs vide bills Ex. P-5 to P-l-6 and that the deceased did not account for 75 cartons of silk yarn worth about Rs. 7.5 in the books of account of his employer. These 75 cartons of silk yarn were instead sold by him to accused Yash Pal on credit. Accused Yash Pal further sold 26 cartons of silk yarn to accused Rajesh Sharma. 34. Though, in view of the admissions made by the accused Yash Pal, the prosecution has been able to prove that accused Yash Pal was having business dealings with the deceased Shiv Kumar, evidence is lacking to show that accused Rajesh Sharma also was dealing in silk yarn and that he was having business dealings with the deceased Shiv Kumar. 35. PW 3 Ghanshyam Dass is the Manager of Messrs. Kesho Ram Rayons. He is alleged to have sold 207 cartons of silk yarn to the deceased in July, 1997 worth about 18 lacs vide bills Ex. P-5 to P-16. A perusal of bills Ex. P-5 to P-16 reveals that during the period 12.6.1997 to 21.7.1997 a total of 135 cartons is shown to have been sold to Messrs. Dinesh Textiles Mills. Therefore, even the sale of 207 cartons of silk yarn to the deceased has not been proved. Evidence is also lacking to show that 75 cartons were not accounted for by the deceased Shiv Kumar in the books of account of his employer Messrs. Dinesh Testiles Mills. Neither anyone from the said firm Messrs. Dinesh Textiles Mills has been examined nor the books of account of the said firm have been produced to prove the non-accounting of 75 cartons of silk yarn. 36. As stated above, accused Yash Pal has admitted having purchased 49 cartons of silk yarn from the deceased in cash. The case of the prosecution that the sale of silk yarn by the deceased to accused Yash Pal was on credit, does not stand proved. The onus was heavily on the prosecution to prove that such sale was on credit basis. The case of the prosecution that the sale of silk yarn by the deceased to accused Yash Pal was on credit, does not stand proved. The onus was heavily on the prosecution to prove that such sale was on credit basis. The learned Sessions Judge has gravely erred in placing the onus on the accused Yash Pal to prove that cartons of silk yarn were purchased by him from the accused in cash and then drawing an adverse inference against him on his failure to prove that cartons of silk yarn were purchased in cash. Besides, it is in the statement of PW 2 Jagdish Kumar that he was told by PW 4 Suresh Goyal that accused had purchased 49 cartons of silk yarn from the deceased Shiv Kumar in cash. 37. The prosecution has not been able to prove the two circumstances against the two accused. It has only been able to show that accused Yash Pal was having business dealings with the deceased Shiv Kumar. Once it is held that the prosecution has not been able to prove that cartons of yarn were sold by the deceased to accused Yash Pal on credit, the very motive for the murder of the deceased, as relied upon by the prosecution, stands belied and falsified. Circumstances No. (iii) and (iv). 38. These two circumstances being co-related and interconnected, can be conveniently discussed together. In order to prove that the deceased Shiv Kumar had gone to Haridwar and then to Mussoorie in the company of the two accused on 17.7.1997, the prosecution has examined PW 3 Ghanshyam Dass, who is alleged to have met the deceased Shiv Kumar at Haridwar on 17.7.1997 at night. This witness has deposed that the deceased Shiv Kumar had told him that he would be going to Mussoorie the next day, that is, on 18.7.1997 with his friends. PW 3 Ghanshyam Dass is silent as to the identity of such friends of the deceased. There is nothing in the statement of PW 3 to show that the deceased was present at Haridwar on 17.7.1997 and had gone to Mussoorie on 18.7.1997 in the company of the two accused. 39. PW 3 Ghanshyam Dass is silent as to the identity of such friends of the deceased. There is nothing in the statement of PW 3 to show that the deceased was present at Haridwar on 17.7.1997 and had gone to Mussoorie on 18.7.1997 in the company of the two accused. 39. PW 15 Smt. Santosh Goyal who is the wife of PW 4 Suresh Goyal, the maternal uncle of the deceased Shiv Kumar, has stated that the deceased had informed her on phone from Haridwar that he would be going to Mussoorie on 18.7.1997 with his frineds and that he would be returning to Panipat on 20.7.1997. However, the deceased returned on 19.7.1997 and she was told that since the deceased and his friends could not get a parking place at Mussoorie, they had to return. PW 15 Smt. Santosh Goyal is also silent as to the identity of the "friends" with whom the deceased had gone to Haridwar and then to Mussoorie. 40. PW 4 Shri Suresh Goyal, the maternal uncle of the deceased, has stated that the deceased Shiv Kumar after informing him on the evening of 16.7.1997 had gone to Haridwar in a Fiat Car in the afternoon of 17.7.1997 with his friends. He has categorically admitted that he did not ask the names of the friends from the deceased Shiv Kumar. From the statement of PW 4 Suresh Goyal also it cannot be presumed and inferred that the deceased had gone to Haridwar and Mussoorie in the company of the two accused. 41. The next witness is PW 11 Pramod Kumar, a co-employee of the deceased. This witness is alleged to have dropped the deceased Shiv Kumar at Panipat Bus stand in the afternoon of 17.7.1997 since the deceased had told him that he was going to Haridwar with his friends. PW 11 has further stated that when he dropped the deceased Shiv Kumar at the Bus stand, he had seen a Fiat Car parked there. He could read the registration No. as HP-17. PW 11 did not state that he had also seen any of the two accused at the Bus stand. Nor he had seen the deceased sitting in any car. Therefore, the testimony of PW 11 also does not help the prosecution case to show that the deceased Shiv Kumar had gone to Haridwar in the company of the two accused. 42. Nor he had seen the deceased sitting in any car. Therefore, the testimony of PW 11 also does not help the prosecution case to show that the deceased Shiv Kumar had gone to Haridwar in the company of the two accused. 42. While accused Yash Pal has denied having gone to Haridwar or Mussoorie on 17.7.1997 or 18.7.1997, accused Rajesh Sharma has, in his statement recorded under Section 313, Code of Criminal Procedure, admitted that he had gone to Mussoorie on 18.7.1997 by car No. HP-17-1597. He has stated that he had gone to Mussoorie accompanied by his uncle and a friend of his uncle. He has denied that he had gone to Haridwar and Mussoorie in the company of the deceased Shiv Kumar and accused Yash Pal. 43. The story of the prosecution that accused Yash Pal had gone to Haridwar on 17.7.1997 and from there to Mussoorie on 18.7.1997 stands belied by PW 7 Shri Vimal Goyal, a business partner of the accused Yash Pal. According to PW 7, accused Yash Pal had come to the shop on 18.7.1997 at about 10.30 a.m. and had remained there for about two hours. If accused Yash Pal was present at his shop at Panipat on 18.7.1997 till the afternoon, he cannot be said to have gone to Haridwar in the company of the deceased Shiv Kumar on 17.7.1997 and from there to Mussoorie on 18.7.1997. 44. Both these circumstances, therefore, have not been cogently and firmly established and proved by the prosecution. The learned Sessions Judge was thus in error in relying on these circumstances. Circumstance No. (v). 45. This circumstance that the accused Yash Pal was found missing from his shop from the afternoon of 17.7.1997 till 22.7.1997 has also not been proved. As stated above, PW 7 Vimal Goyal, a business partner of the accused Yash Pal, has stated that accused Yash Pal was present at the shop till the afternoon of 18.7.1997. During the course of cross-examination PW 7 has admitted that on 18.7.1997 while leaving the shop, accused Yash Pal had told him that he was not feeling well. As stated above, PW 7 Vimal Goyal, a business partner of the accused Yash Pal, has stated that accused Yash Pal was present at the shop till the afternoon of 18.7.1997. During the course of cross-examination PW 7 has admitted that on 18.7.1997 while leaving the shop, accused Yash Pal had told him that he was not feeling well. PW 7 has also admitted that he did not enquire about accused Yash Pal from his house during the period 19.7.1997 to 21.7.1997 and that on 22.7.1997 when accused Yash Pal came to the shop he told him that he was not feeling well and as such, had not come-to the shop. 46. Assuming that accused Yash Pal was not present at his shop from the afternoon of 18.7.1997 till 21.7.1997, the same would not mean that he was not present at Panipat during this period. No evidence has been led by the prosecution to show that accused Yash Pal was not in Panipat during this period. Circumstances No. (vi) & (vii). 47. The only evidence coming on record to prove these two circumstances is in the form of statements of PW 20 Ramesh Kumar, PW 26 Head Constable Raghubir Singh and PW 27 Constable Ranjit Singh, and the entries contained in the register Ex. P-45. 48. PW 26 and PW 27 on 2 1.7.1997 were posted at the Police Barrier, Behral, which is located on the border of Haryana and Himachal Pradesh. It was their duty to record the registration number of all the vehicles entering or leaving Himachal Pradesh and the time of arrival and departure. Register Ex. P-45 was being maintained by them. As per entry at serial No. 46 dated 21.7.1997 car bearing registration No. HP-17-1597 crossed the police barrier for entry to Himachal Pradesh at about 5.20 p.m. As per entry at serial No. 65 of the same date this car went out of Himachal Pradesh and crossed the police barrier at about 1L00 p.m. 49. Assuming that car No. HP-17-1597 had entered Himachal Pradesh, on 21.7.1997 at 5.20 p.m. and returned on the same day at about 11 p.m., there is no evidence forth-coming as to who were the occupants of the car at the relevant time. Assuming that car No. HP-17-1597 had entered Himachal Pradesh, on 21.7.1997 at 5.20 p.m. and returned on the same day at about 11 p.m., there is no evidence forth-coming as to who were the occupants of the car at the relevant time. The prosecution was required to prove that while entering Himachal Pradesh, there were three occupants in the car, that is, the two accused and the deceased, and that on return there were only two occupants, namely, the two accused. 50. Much reliance was placed by the learned Sessions Judge on the evidence of PW 20 Ramesh Kumar. This witness in his examination-in-chief has deposed to the following effect: "Stated that I carry on a wood shop at Panipat. I was knowing Shiv Kumar. On 21st July, 1997, at about 3.00 p.m. I had seen three persons going in light cream coloured Fiat Car No. HP-17-1597 towards Karnal. One of the occupants was Shiv Kumar, one occupant was accused Yash Pal Sharma. I did not identify the third occupant of the car." 51. PW 20 while explaining that he knew deceased Shiv Kumar because his house was situated at 200 to 300 yards from that o£ the deceased, has not stated as to how he knew accused Yash Pal. Further, though he claims that he knew the deceased, he has stated that he did not know PW 4 Suresh Goyal, the maternal uncle of the deceased. It is the admitted case of the prosecution that the deceased was living with his maternal uncle PW 4 Suresh Goyal. 52. PW 20 Ramesh Kumar has stated in his cross-examination in the following terms:— "I had seen the car referred to by me above from my scooter on the red light signal on the road towards Delhi side of the bus stand. I was going towards Sanjay Chowk in the opposite direction. There was a divider between the two portions of the road and there is a post where a Police Constable stands in between the two roads. I was in the last on my side of the road and 3-4 vehicles were in front of me. I do not remember the number of make of the vehicles, but the same were truck and bus. It is correct that as per traffic rules, I was on the extreme left side of the divider. I was in the last on my side of the road and 3-4 vehicles were in front of me. I do not remember the number of make of the vehicles, but the same were truck and bus. It is correct that as per traffic rules, I was on the extreme left side of the divider. There were 5 or 7 vehicles parked standing on the opposite side of the road in which the car referred to by me was also included. The distance between my scooter and the car in which Shiv Kumar was occupying was 10-15 metres. I do not know the number of the other vehicles which were parked alongwith the car occupied by Shiv Kumar....." 53. From what has been stated by PW 20 in his cross-examination it cannot be believed that he could have either noticed the number of the car or could have been able to identify the occupants of the car through the wind-screen glass and that too on a busy crossing when, admittedly, some vehicles were in front of him. This witness appears to have been introduced by the prosecution subsequently just to create evidence as to the deceased having been last seen alive at Panipat in the company of the two accused. Moreover, PW 20 has not actually seen the car going towards Karnal or out of Panipat town. It is surprising that PW 20 could note and remember the registration of the car in which he is alleged to have seen the deceased with the accused Yash Pal. However, he could not tell the registration number of those vehicles which were just in front of him. The learned Sessions Judge had observed in this regard: "Shiv Kumar was not owning a car of his own and, therefore, his travelling by a car might have made PW Ramesh Kumar a little curious to know as to by whose car, Shiv Kumar, a person known to him, was travelling. In that situation, the remembering of the number of the car by Ramesh Kumar cannot be ignored altogether as contrary to normal human conduct." 54. The above observations of the learned Sessions Judge are without any basis. Firstly, PW 20 Ramesh Kumar has not given any such reason for having either noted the registration number of the car or for having remembered it. The above observations of the learned Sessions Judge are without any basis. Firstly, PW 20 Ramesh Kumar has not given any such reason for having either noted the registration number of the car or for having remembered it. Secondly, there is nothing on the record to suggest that the deceased Shiv Kumar was not owning a car of his own. As stated above, it was not possible for PW 20 either to note the number of the car or to identify the occupants thereof in the manner stated by him. 55. From the evidence coming on record, circumstance No. (vi) has not been cogently and firmly proved arid established. Though evidence has come on record that car No. HP-17-1597 had entered Himachal Pradesh at about 5.20 p.m. on 217.1997 and had returned on the same da}/ at about 11 p.m. via Behral Police barrier, such circumstance alone cannot be used against the two accused in the absence of evidence to show that the two accused and the deceased Shiv Kumar had undertaken this journey. Circumstance No. (viii). 56. Though it has been proved that the dead body of the deceased Shiv Kumar was found in a gorge below the road in the area of Kanlog on the evening of 23,7.1997 by PW 1 Geeta Ram, such circumstance alone in the absence of any other corroborative circumstance(s) is not sufficient to infer that the deceased was either killed by the two accused or that the dead body was thrown there by them. 57. It may not be out of place to mention here that the evidence led by the prosecution as to the identification of the deceased is not at all convincing and reliable. 58. The prosecution case is that having failed to trace out the whereabout of the deceased, PW 4 Suresh Goyal had lodged a report with the police at Panipat regarding the deceased being missing. 59. The prosecution case further is that after the recovery of the dead body on the basis of the bill Ex. P-46 information was given to Panipat police by PW 32 Sub Inspector Kaur Chand regarding the recovery of a dead body of an unidentified person in the area of Kanlog. 59. The prosecution case further is that after the recovery of the dead body on the basis of the bill Ex. P-46 information was given to Panipat police by PW 32 Sub Inspector Kaur Chand regarding the recovery of a dead body of an unidentified person in the area of Kanlog. PW 32 was then informed by Panipat police that there was a report about a missing person with them and that relations of such missing person would be reaching soon for identifying the dead body. PW 4 Suresh Goyal and certain others then went to Sarahan to identify the dead body. PW 4 Suresh Goyal has stated in this regard as follows:— "On 24th July, 1997, I received a message from Panipat police that a dead body was recovered at Sarahan and we may identify the dead body if this dead body belongs to Shiv Kumar. We could see the dead body at Civil Hospital, Sarahan, in the morning of 25.7.1997 and we identified the same to be of Shiv Kumar." 60. PW 32 Sub Inspector Kaur Chand has also deposed that on 25.7.1997 PW Suresh Goyal and Amar Nath had identified the dead body to be that of Shiv Kumar. 61. Thus, as per the version of both PW 4 and PW 32, the dead body of the deceased Shiv Kumar was identified only on the morning of 25.7.1997. 62. Ex. P-28 is the post mortem report prepared by PW 8 Dr. Manoj Kumar. A perusal of the same shows that the post mortem of the dead body was carried out at about 1 p.m. on 24.7.1997. In other words, the post mortem was carried out before the dead body came to be identified by PW 4 Suresh Goyal. However, it is mentioned in the report Ex. P-28 that the dead body has been identified by Suresh Goyal, the maternal uncle of the deceased. If the dead body was in fact identified only on the morning of 25.7.1997 as stated by PW 4 and PW 32, then how the factum of the dead body having been identified by PW 4 came to be incorporated in the post mortem report dated 24.7.1997. PW 4 and PW 32 have specifically stated that the dead body was identified and thereafter the same was handed over to PW 4 after post mortem. PW 4 and PW 32 have specifically stated that the dead body was identified and thereafter the same was handed over to PW 4 after post mortem. Therefore, according to PW 4 and PW 32 post mortem was carried out after the dead body had been identified. 63. The evidence coming on record, therefore, casts a shadow of doubt as to the truthfulness of the prosecution story with regard to the recovery and identification of the dead body. Circumstance No. fix). 64. "Jack" Ex. M-l 1 of the Fiat Car No. HP-17-1597 is alleged to have been recovered from the poultry farm of the accused Rajesh Sharma during the course of the search on 30.8.1997 in the presence of PWT 14 Mohan Lal and one Mangat Ram. 65. PW Mohan Lal has deposed that "Jack" Ex. M-11 was taken out by Raj Kumar, a servant of accused Rajesh Sharma and handed over to the police. He did not say a single word about the search of the poultry farm. Madan Lal, the other witness of the recovery, has not been examined. PW 32 Sub Inspector Kaur Chand, the investigating officer, has gone to state that "Jack" Ex. M-11 was recovered consequent upon the search. The "Jack" is alleged to have been taken into possession vide memo. Ex. P-34. 66. A perusal of Ex. P-34 shows that a search is stated to have been carried out in the rented premises of poultry farm belonging to accused Rajesh Sharma. In other words, the premises of the poultry farm did not belong to accused Rajesh Sharma. He is alleged to be a tenant thereof. Then who is the owner thereof? There is no answer to this question. Nor any evidence has come on the record to show that the poultry farm was in fact taken on rent by accused Rajesh Sharma. 67. The "Jack" Ex. M-11 has not been established to be belonging to accused Rajesh Kumar or his father. The best person, who could have deposed in this regard, was Raj Kumar who had produced the same to the police by taking it out from the poultry farm. He has been withheld and not examined in the case. 68. The learned Sessions Judge in his impugned judgment has not discussed the point with regard to the recovery of "Jack" Ex. M-11. Even if it be assumed that "Jack" Ex. He has been withheld and not examined in the case. 68. The learned Sessions Judge in his impugned judgment has not discussed the point with regard to the recovery of "Jack" Ex. M-11. Even if it be assumed that "Jack" Ex. M-11 was in fact recovered as alleged by the prosecution, such "Jack" has neither been identified with any of the two accused nor with the commission of offence^ Therefore, no reliance can be placed on this circumstance. Circumstances No. (x), (xi) and (xii). 69. The accused Rajesh Sharma whilst in police custody is alleged to have made the disclosure statement Ex. P-56 on 30.8.1997 in the presence of S/Shri Mohan Lal and Amar Nath leading to the recovery of 26 cartons of silk yarn from the house of PW 23 which is alleged to have been taken on rent by accused Rajesh Sharma. It is also the case of prosecution that accused had purchased two drums on 21.7.1997 from PW 24 Jagdish Kumar for the purpose of keeping 26 cartons of silk yarn therein. 70. Taking up the question of purchase of two drums by accused Rajesh Sharma first, suffice to say, that PW 24 has not supported the prosecution story. This witness has stated that he had sold the drums to a customer vide a cash memo on 21.7.1997 but he did not remember the customer. He has also stated that the name of "Rajesh" on the cash memo was not recorded by him. Such name was recorded by the police. No other evidence is coming on record in this regard. Besides, such drums also do not appear to have been taken into possession by the police for linking the accused with their purchase. 71. Next comes the question whether the disclosure statement Ex. P-56 has been proved to have been made by accused Rajesh Sharma. Such statement is alleged to have been made in the presence of PW 14 Mohan Lal and PW 6 Amar Nath. Both these witnesses are silent on this aspect. They have not stated even a single word about the making of a disclosure statement like Ex. P-56 by the accused Rajesh Sharma. 72. PW 32, Sub Inspector Kaur Chand, the investigating officer though in his examination-in-chief has deposed that the accused Rajesh Sharma on 30.8.1997 while in police custody had made a disclosure statement Ex. They have not stated even a single word about the making of a disclosure statement like Ex. P-56 by the accused Rajesh Sharma. 72. PW 32, Sub Inspector Kaur Chand, the investigating officer though in his examination-in-chief has deposed that the accused Rajesh Sharma on 30.8.1997 while in police custody had made a disclosure statement Ex. P-56, during the course of cross-examination has gone to state: — "I formally arrested Rajesh on 27.8.1997. During the period of two days, I have been interrogating the accused at Police Station Sarah an. I did not record any statement of the accused at Sarahan under Section 27 of the Indian Evidence Act excepting with regard to the place of throwing the dead body. This disclosure regarding the place of throwing the dead body was made by Rajesh on 29.8.1997." 73. Thus, as per PW 32 only one statement of accused Rajesh Sharma with regard to the place of throwing the dead body was recorded by him and that too on 29.8.1997. Therefore, the factum of making of the disclosure statement Ex. P-56 by the accused Rajesh Sharma does not stand proved. 74. If no disclosure statement like Ex. P-56 was made by the accused Rajesh Sharma, the alleged recovery of 26 cartons of silk yarn in pursuance thereof also stands falsified. 75. Even otherwise the alleged recovery of 26 cartons of silk yarn in pursuance of disclosure statement Ex. P-56 is not free from doubt. These 26 cartons are alleged to have been recovered in the presence of PW 6 Amar Nath and PW 25 Sat Narain Garg. While PW 6 Amar Nath has not stated anything about such recovery, PW 25 Sat Narain has not supported the prosecution case. Though he has admitted that 26 cartons of silk yarn were recovered from the house of PW 23 Kalu Ram, he has stated that none of the two accused was present at that time. 76. Admittedly, the 26 cartons of silk yarn were recovered from the house of PW 23 Kalu Ram. The prosecution case is that this house was taken on rent from PW 23 Kalu Ram by accused Rajesh Sharma. PW 23 Kalu Ram has stated that one Sukkar is the owner of the house. He had taken the same on rent from the owner and had further let it out to accused Rajesh Sharma about 8/9 months back. The prosecution case is that this house was taken on rent from PW 23 Kalu Ram by accused Rajesh Sharma. PW 23 Kalu Ram has stated that one Sukkar is the owner of the house. He had taken the same on rent from the owner and had further let it out to accused Rajesh Sharma about 8/9 months back. No rent note was executed. He has also admitted that accused Rajesh was not known to him prior to renting out the house to him. 77. There is no convincing evidence to show that the house, from where 26 cartons of silk yarn were recovered, was in fact let out to accused Rajesh Sharma. 78. There three circumstances relied upon by the learned Sessions Judge do not stand proved on the record and, as such, cannot be taken notice of. Circumstance No. (xiii). 79. In view of the fact that the above referred to circumstances have not been conclusively proved, the accused cannot be said to have falsely denied proved facts in order to distance themselves from the crime. 80. Since none of the circumstances relied upon by the learned Sessions Judge stands cogently and firmly proved, the conviction and sentence imposed upon the two accused cannot be sustained and the same are liable to be set aside. 81. As a result, the present appeal is allowed. The conviction and sentence imposed upon the two accused by the learned Sessions Judge are set aside. The two accused are acquitted of the offences under Sections 302 and 201 read with Section 34, Indian Penal Code. 82. The two accused, who are in jail undergoing sentence shall be released forthwith if not required in any other case. The amount of fine, if already paid, shall be refunded to them forthwith. The case property be dealt with as per the directions of the learned Sessions Judge. Appeal allowed.