JUDGMENT 1. - The appellants Chottya @ Chotu and Manisha were indicted before the learned Addl. Sessions Judge, Chabra District Baran in Sessions Case No. 77/1995 for having committed murder of Hajari Lal. Vide judgment dated June 29, 1996, they were convicted and sentenced U/s. 302 read with 34 of the Indian Penal Code to suffer imprisonment for life and fine of Rs. 200/-, in default, to further suffer two months rigorous imprisonment. The said judgment has been assailed by the appellants in the instant appeal. 2. The prosecution case, as unfolded during trial is that Ram Gopal Singh, S.H.O. Har Navda Shahji received a telephonic message around 4.15 PM. on July 9, 1995 to the effect that the inhabitants of village Har Navda Shahji were disturbed by the foul smell spreading out from the house of Hajari Lal, which was locked from the outside. Ram Gopal Singh, S.H.O. alongwith Suresh Singh, Ramesh, Narayan, Sher Singh and Ram Gopal proceeded to the spot. After breaking the lock of Hajari Lal's house when the police party entered inside, dead body of the Hajari Lal was found in a de-composed condition. There, Kailash Chand, brother of the deceased Hajari Lal submitted a written report (Ex.P-6) to the S.H.O. Police Station, Harnavda Shahji, which was registered as F.I.R. No. 111/1995 (Ex.P-7) U/s. 302 I.RC. and investigation commenced. Autopsy on the dead body of the deceased Hajari Lal was conducted, statement of witnesses U/s. 161 Cr.RC. were recorded, necessary memos were drawn, the appellants were arrested. On the basis of their disclosure statements, stone allegedly used in the commission of offence as well as the key, which was the fellow pair of lock, put on Hajari Lal's house were recovered. On completion of the investigation, the charge sheet was laid. In due course, the case came up for trial before the learned Addl. Sessions Judge, Chabra. Charges U/s. 302 and in the alternative U/s. 302/34 of the I.PC were framed against the appellants, who denied the charges and claimed trial, prosecution examined as many as 16 witnesses in support of its case. In the explanation U/s. 313 Cr.RC., the appellants claimed innocence. However, no witness in defence was examined. The learned trial court, on hearing the final submissions, convicted and sentenced the appellants as indicated here-in-above. 3. There is no eye witness in this case. The entire case is based on circumstantial evidence. In the explanation U/s. 313 Cr.RC., the appellants claimed innocence. However, no witness in defence was examined. The learned trial court, on hearing the final submissions, convicted and sentenced the appellants as indicated here-in-above. 3. There is no eye witness in this case. The entire case is based on circumstantial evidence. It is settled law that in a case based on circumstantial evidence, before the court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. It is on the basis of these principles that we shall examine the circumstantial evidence relied upon by the. prosecution in this case. 4. The circumstances relied upon by the learned trial judge to bring home the charge to the appellants, as can be culled out from the judgment are- (i) The appellants Chottya @ Chotu Lal and Manisha were last seen in the company of deceased Hajari Lal. (ii) Appellant Chottya @ Chotu Lal had illicit relation with appellant Manisha, who is the wife of deceased Hajari Lal. (iii) On the basis of disclosure statement given U/s. 27 of the evidence Act by the appellant Chottya @ Chotu Lal; key, which was the fellow/ pair of lock, put on the door of deceased Hajari Lal's house, was recovered. (iv) On the basis of disclosure statements of both the appellants Chottya @ Chotu Lal and Manisha, stone allegedly used in the commission of offence was recovered from the house of the deceased. (v) Both the appellants left together the village Harnavda Shahji and started residing as tenants in the house of Gokul Chand Nai at Manohar Thana, from where they were arrested by the police. 5. In order to prove the circumstance that the appellants were last seen in the company of deceased Hajari Lal, the prosecution examined Jagdish (RW. 5), Kailash (RW.11) and Shyama Bai (RW. 15). Jagdish and Kailash are the real brothers of the deceased Hajari Lal; whereas Shyama Bai is the mother. 5. In order to prove the circumstance that the appellants were last seen in the company of deceased Hajari Lal, the prosecution examined Jagdish (RW. 5), Kailash (RW.11) and Shyama Bai (RW. 15). Jagdish and Kailash are the real brothers of the deceased Hajari Lal; whereas Shyama Bai is the mother. In his deposition, Jagdish (P.W. 5) stated that in the intervening night around 12.00 or 2.00 A.M., when he awoke, he had seen Chottya coming out of the house of Hajari. He further stated that when he again awoke around 4.00 A.M., he had seen Manisha going towards bus stand. In his cross-examination, he explained that when he had seen Manisha going out of the house of Hajari Lal, he did not ask her as to where she was going. In his statement U/s. 161 Cr.RC (Ex.D-2), however, no such fact was mentioned that he had seen Manisha going out of the house of the Hajari around 4.00 A.M. Kailash (RW. 11) deposed that he had seen Manisha with Hajari last time on 6th and Chottya @ Chotu Lal was also seen with Manisha last time on the said date. In his cross-examination, he explained that he had seen Hajari in his house around 6-7 PM. and in the police statement (Ex.D-4), this fact was wrongly mentioned that he had seen Hajari around 8.00 PM. Shyama Bai (RW. 15) in her cross-examination stated that Manisha and Chottya @ Chotu Lal locked the house of Hajari in her presence. She further stated that the lock was actually put by Madho Teli and thereafter Madho Teli handed over key to Chottya @ Chotu and Manisha. Madho Teli was also examined as RW.7, but he did not support the prosecution story and was declared hostile. 6. From the testimony of the afore-quoted witnesses, we find that it is not trustworthy. There is a material contradiction in the statement of Jagdish given to the police and made before the Court. It is rather strange and inexplicable that Jagdish, who had seen Chottya @ Chotu Lal coming out of the house of Hajari Lal in the odd hours at night, would not ask Chottya as to what was he doing there. Similarly it cannot be believed that on seeing Manisha around 4.00 A.M. going towards bus stand, Jagdish would not express his anxiety as to where she was going. Similarly it cannot be believed that on seeing Manisha around 4.00 A.M. going towards bus stand, Jagdish would not express his anxiety as to where she was going. In the statement of Kailash (RW.11), it has not been clarified as to at which place, he had seen Hajari Lal alongwith Manisha or Chottya @ Chotu Lal with Manisha on 6th. We are also unable to place any reliance on the statement of Shyama Bai (RW. 15), wherein she stated that the accused appellant Manisha and Chottya received the key in her presence from Madho Teli and that Madho Teli put lock on the house of Hajari Lal. She did not state this fact in her earlier statement given to police (Ex. P-5) and Madho Teli also did not support her version. The testimony of Jagdish and Shyama Bai is of a partisan nature and it bristles in most parts with unnaturalness and embellishment and we are unable to place any reliance on it and we hold that the prosecution has failed to establish this circumstance that the appellants Manisha and Chottya were last seen in the company of deceased Hajari Lal. 7. In so far as the second circumstance regarding illicit relationship between Chottya and Manisha is concerned, the prosecution has examined Jagdish (RW. 5), Mangi Lal (RW. 9), Ramesh Chand (RW. 10), Kailash (P.W. 11) and Shyama Bai (RW. 15). The testimony of these witnesses is consistent and could not be shattered in so far as illicit relationship between Manisha and Chottya @ Chotu Lal is concerned and the prosecution has succeeded in establishing this fact that Chottya @ Chotu Lal and Manisha had illicit relationship. 8. The third circumstance is the recovery of key, which was the fellow pair of lock put on the door of the house of Hajari Lal from where his dead body was recovered. As per the prosecution version, after his arrest, the appellant Chottya @ Chotu Lal gave information U/s. 27 of the Evidence Act vide Ex. P-20 that the key of the lock was concealed by him in his tenanted portion of the house owned by Gokul Chand Nai. Pursuant to the information, the key was recovered vide recovery memo (ex. P-2) in the presence of Motbirs Gokul Chand and Rodu Lal. P-20 that the key of the lock was concealed by him in his tenanted portion of the house owned by Gokul Chand Nai. Pursuant to the information, the key was recovered vide recovery memo (ex. P-2) in the presence of Motbirs Gokul Chand and Rodu Lal. Before considering the statements of Gokul Chand and Rodu Lal, we deem it appropriate to refer to the F.S.L. report (Ex. P- 21). In the F.S.L., two packets D & E containing steel padlock with square body and partially rusted metallic key were sent for examination. The F.S.L. after examination of the lock and key gave the report that lock and key make a fellow pair and the key can easily operate the lock. 9. Out of two motbirs of recovery memo of key, one Rodu Lal (RW. 4) did not support the prosecution story and in his deposition, he stated that he was called at Police Station, Where he put his signatures on the recovery memo. This witness was declared hostile. Gokul (RW. 2) in his cross examination, however, deposed that police personnel's came alone to recover the key to his house and nobody was with them. He further stated that after two days of Manisha's arrest, police came to his house in search of key and recovered key. This fact goes to show that alleged recovery of key is also a weak link and it did not connect the appellants with the crime. There is yet another strange aspect. From the F.I.R. it is evident that the lock was broke open, therefore, it was incumbent on the prosecution to have established that the same lock, which was broken, was sent for examination to F.S.L. but such a fact could not be established from material on record. A close scrutiny of the statement of Ram Gopal I.O. (RW. 18) demonstrates that lock (Article -1) was broken open with the help of Sariya and there was a mark of Sariya over it, but from the F.S.L. report it is apparent that no such mark was found on the lock. This fact creates doubt about the recovery of lock and we hold that the circumstance of recovery of lock and key could not be established against the appellants beyond reasonable doubt. 10. That takes us to the circumstance of recovery of stone allegedly used in the commission of offence. This fact creates doubt about the recovery of lock and we hold that the circumstance of recovery of lock and key could not be established against the appellants beyond reasonable doubt. 10. That takes us to the circumstance of recovery of stone allegedly used in the commission of offence. Indisputably, when the lock was broke open and the police entered inside the house, the stone was not recovered. Even in the site plan, which was drawn on July 9, 1995, this fact was not mentioned that the stone used in the commission of offence was lying near the dead body. It could not be detected from the F.S.L. report (Ex. P-20), that the stone was stained with human blood and the recovery of the stone appears to be planted. Thus circumstance of recovery of stone also did not help the prosecution to connect the appellants with the crime. 11. The prosecution has, however, succeeded in establishing this circumstance that the appellants Chottya and Manisha were jointly residing as tenants in the house of Gokul Chand Nai (PW. 2). 12. From the above discussion, we find that the chain of circumstances is not complete in the case and very vital link to complete the chain of circumstantial evidence is missing in the instant case. All other circumstances, which are found established even if taken together do not prove guilt against the appellants beyond reasonable doubt. They may, however, point a finger of suspicion towards the appellants, but suspicion, however, strong cannot take the place of proof as is held by their Lordships of Supreme Court in Nesar Ahmed and another v. State of Bihar, 2001 (9) SCC, 736 . in our considered opinion the prosecution has failed to establish by unimpeachable evidence the charge U/s. 302 read with 34 of the I.RC. beyond reasonable doubt. The chain of circumstantial evidence is not complete so as to unerringly point only to the guilt of the appellants. The learned Court below has not properly appreciated the evidence adduced by the prosecution. 13. For the fore-going reasons, we allow the appeal and set-aside the conviction of the accused appellants Chottya @ Chotu Lal and Manisha U/s 302 read with 34 I.RC. We acquit both the accused appellants Chottya @ Chotu and Manisha from the said charges. The learned Court below has not properly appreciated the evidence adduced by the prosecution. 13. For the fore-going reasons, we allow the appeal and set-aside the conviction of the accused appellants Chottya @ Chotu Lal and Manisha U/s 302 read with 34 I.RC. We acquit both the accused appellants Chottya @ Chotu and Manisha from the said charges. The accused appellants Chottya @ Chotu and Manisha, who are in jail, shall be released forthwith, if not required in any other case.Appeal allowed. *******