J. C. GUPTA, J. ( 1 ) CRIMINAL Appeal No. 2079 of 1986 is by Shambhoo Sharan Pandey and his son Kaushal Kumar Pandey against their conviction and sentence for imprisonment of life under Section 120-B/302 I. P. C. The connected Criminal Appeal No. 2128 of 1986 has been preferred by accused convict Dinesh Chandra Misra who has been sentenced to imprisonment for life under Section 120-B/302 I. P. C. It may be mentioned here that one more accused Ranjeet Singh was also tried but since he died during the pendency of trial his case stood abated. ( 2 ) THE prosecution case in short was that deceased Shiv Harsh Upadhyay was manager of Kisan Degree College, Basti. He was shot at about 9. 30 p. m. on 31-7-1980 near Kisan Degree College, Civil Lines, Basti. A telephonic message from Sri Chandra Deo Dwivedi (P. W. 3) was received at police station Kotwali at 9. 36 p. m. that Sri Shiv Harsh Upadhyay has been shot in front of his house and he has been sent to hospital. Injuries of Sri Shiv Harsh Upadhyay were medically examined at 9. 45 p. m. and information was sent for recording his dying declaration but before the same could be recorded Sri Upadhyay breathed his last and died at 10. 05 p. m. in the same night. Thereafter the case was converted under section 302 I. P. C. On a request made by the District Magistrate, Basti, Sri Ganga Prasad Dwivedi, Deputy Secretary, State of U. P. made a request to Inspector General, C. B. , C. I. D. to get the case investigated through C. B. , C. I. D. During investigation it was found that appellant Shambhoo Sharan Pandey was officiating as Principal of Kisan Degree College (herei-nafter referred to as the degree College ). Deceased Shiv Harsh Upadhyay was Manager of the said Degree College. Sri Surendra Nath Dubey (P. W. 3) was appointed as Principal in place of appellant Shambhoo Sharan Pandey. In the capacity of manager the deceased gave a telegram Ext. Deceased Shiv Harsh Upadhyay was Manager of the said Degree College. Sri Surendra Nath Dubey (P. W. 3) was appointed as Principal in place of appellant Shambhoo Sharan Pandey. In the capacity of manager the deceased gave a telegram Ext. Ka-2 to Sri S. N. Dubey, Lecturer, Rajasthan University, Jaipur to join as Principal of the Degree College, Whereupon Sri S. N. Dubey joined the Degree College as Principal but accused appellant Sri Shambhoo Sharan Pandey did not hand over the complete charge of the office of Principal despite efforts and requests of Sri S. N. Dubey. The matter was then finally reported to the manager Sri Upadhyay who directed the stoppage of pay of Shambhoo Sharan Pandey and then in his order dated 28-7-80 he found a prima facie case of misappropriation against Sri Shambhoo Sharan Pandey and further directed recovery of embezzled amount from him. It is the further case of prosecution that Sri Upadhyay wrote a letter to the Secretary of the College requesting that an urgent meeting be called for suspending the appellant Shambhoo Sharan Pandey. The appellant Shambhoo Sharan Pandey and his son Kaushal Kumar Pandey were thus highly aggrieved on account of actions taken by deceased Manager, Sri Upadhyay. In short, as per prosecution case the appellants Shambhoo Sharan Pandey and Kaushal Kumar Pandey had a strong motive to eliminate deceased manager Sri Upadhyay and in order to achieve this object they had hatched a criminal conspiracy with Dinesh Chandra Misra and Ranjeet Singh to commit murder of Sri Upadhyay. Consequently on 31-7-80 at about 9. 30 p. m. Dinesh Chandra Misra and Ranjeet Singh both fired at deceased Sri Upadhyay in front of his house and at that time appellant Shambhoo Sharan Pandey and Kaushal Kumar Pandey were seen standing on a scooter near the place of incident. ( 3 ) IN order to prove its case the prose-cution produced before the trial Court as many as 20 witnesses. ( 3 ) IN order to prove its case the prose-cution produced before the trial Court as many as 20 witnesses. They were P. W. 1, Sri Chandra Deo Dwivedi, P. W. 2, Shiv Pujan Dubey, P. W. 3, S. N. Dubey, P. W. 4 Chandrika Prasad Advocate, P. W. 5, Jabbar (Rikshaw puller), P. W. 6 Head Constable Bodh Nath Tripath, P. W. 7 Manik Ram Misra, P. W. 8 Raj Bahadur Singh, P. W. 9 Ram Sumer Yadav P. W. 10, Constable Ram Bahadur Singh, P. W. 11 Constable Vikramaditya, P. W. 12 Dr. B. P. Shukla, P. W. 13 Sri Ram Yagya Singh, Magistrate who conducted identification parade, P. W. 14, Ram Balak, P. W. 15 Sri Onkar Nath Shukla, P. W. 16, Ramji Ram, P. W. 17, Chandra Mohan Misra, P. W. 18 Budal Ram Ballastic Expert P. W. 19 Anwarul Haq, and P. W. 20, C. P. Saxena (Inspector C. B. , C. I. D.) ( 4 ) ACCUSED persons denied the prosecution allegations and stated of their false implication. They produced three witnesses in defence who stated about certain withdrawal made by the Principal. ( 5 ) WE have heard Sri G. S. Chaturvedi, Senior Advocate for the appellants and learned A. G. A. for the State and Sri P. N. Misra, Senior Advocate for the comp-lainant. ( 6 ) SRI G. S. Chaturvedi, Senior Advocate submitted before us that so far as charge of criminal conspiracy against appellants Shambhuu Saran and Kaushal Kishore is concerned there is absolutely no evidence on record and the same canot be inferred from the mere fact that relations of accused Shambhoo Sharan Pandey with deceased Shiv Harsh Upadhyay were strained before the incident. He argued that the motive alleged by prosecution in this case could at best provide a suspicion against appellant Shambhoo Sharan Pandey and his son Kaushal Kumar Pandey but this suspicion alone is not sufficient to hold these appe-llants guilty in the absence of any other piece of evidence. He argued that the motive alleged by prosecution in this case could at best provide a suspicion against appellant Shambhoo Sharan Pandey and his son Kaushal Kumar Pandey but this suspicion alone is not sufficient to hold these appe-llants guilty in the absence of any other piece of evidence. It was further submitted that as far as charge of murder of deceased by Dinesh Chandra Misra and co-accused Ranjeet Singh (since deceased) is concerned, only two witnesses were examined before the trial Court namely Manik Ram (P. W. 7) and Raj Bahadur Singh (P. W. 8) to state of the commission of murder by firing by these two accused persons but their evidence is wholly unreliable and untrustworthy. ( 7 ) THE factum of death of Shiv Harsh Upadhyay on account of fire arm injuries has neither been assailed nor disputed before us by the learned counsel for the appellants. This fact is also otherwise established from the post mortem report Ext. Ka-13 and the statement of Dr. B. P. Shukla (P. W. 12) who conducted autopsy on the dead body of deceased Shiv Harsh Upadhyay. It is also not disputed that deceased was shot during night hours of 31-7-80. ( 8 ) AS per the prosecution case murder of deceased Shiv Harsh Upadhyay was committed by appellant Dinesh Chandra Misra and accused Ranjeet Singh who died during the pendency of trial. To state about the commission of murder by these two accused persons we have before us testimony of Manik Ram (P. W. 7) and Raj Bahadur Singh (P. W. 8 ). Both these accused persons were neither named in the F. I. R. nor in the statements given by the witnesses during investigation. Both these accused persons were put up for identification. The identification parade was held on 15-1-1981 by Magistrate Ramagya Singh (P. W. 13 ). Accused persons were admitted in jail on 26-12-1980. Undisputedly the identification parade was held after a long gap of the incident i. e. 168 days after the date of incident. In the said parade Manik Ram Misra correctly identified the accused Dinesh Chandra Misra but committed one mistake in the parade of accused Ranjeet Singh. Similarly Raj Bahadur Singh (P. W. 8) correctly identified the accused Ranjeet Singh but committed one mistake in the parade of Dinesh Chandra Misra. In the said parade Manik Ram Misra correctly identified the accused Dinesh Chandra Misra but committed one mistake in the parade of accused Ranjeet Singh. Similarly Raj Bahadur Singh (P. W. 8) correctly identified the accused Ranjeet Singh but committed one mistake in the parade of Dinesh Chandra Misra. Thus both these witnesses committed one mistake each while identifying one accused correctly. Their identification value thus comes to 50% which in our opinion in the absence of any other piece of evidence cannot be made the basis of conviction. That apart from a close scrutiny of the evidence of these two witnesses it further becomes donbtful that they had sufficient opportunity to identify the assailants of Shiv Harsh Upadhyay particularly when incident had occurred during night hours. According to P. W. 7, Manik Ram Misra the night of occurrence was a dark night and he identified the assailants in moon light when assailants were moving away on cycle. In cross-examination P. W. 7, Manik Ram Misra further admitted that he had seen Shiv Harsh Upadhyay moving on a rikshaw and 4-5 minutes thereafter he heard the sound of fire. He was himself going on a cycle. It would thus appear that he had only a glimse of fleeing assailants on moving cycle after the commission of murder. He further admitted that 15-20 persons had collected at the scene of occurrence but he did not disclose to them that he had seen two assailants running away. He further admitted that he did not go to the house of Upadhyayji which was close by to inform about the incident. It has also been admitted by him that Superintendent of Police, District Magistrate and City Kotwal had come to hospital but to them also he did not disclose that he had himself seen the assailants. This strange conduct of this witness makes his evidence highly unreliable. P. W. 8, Raj Bahadur Singh also stated likewise. From the perusal of his statement he appears to be a chance and got up witness. He also admitted that he was prosecuted in two criminal cases and in one of them he was convicted by the trial Court but was acquitted by the appellate Court. He stated that he was interrogated by the Investigating Officer after 3-4 days of the incident. He also admitted that he was prosecuted in two criminal cases and in one of them he was convicted by the trial Court but was acquitted by the appellate Court. He stated that he was interrogated by the Investigating Officer after 3-4 days of the incident. This witness was attracted on the scene of occurrence on the alarm raised by P. W. 7 Manik Ram Misra. This witness also thus had no sufficient opportunity to identify the fleeing assailants. As already pointed out above both these witnesses had committed one mistake each in the identification parade and their performance at the parade was only 50%. It is thus not safe to hold the appellant Dinesh Chandra Misra guilty of the charge of murder. ( 9 ) AS far as appellants Shambhoo Sharan Pandey and Kaushal Kumar Pandey are concerned they have been found guilty by the trial Court for the offence of criminal conspiracy. In order to bring a charge of criminal conspiracy the prosecution has to prove :-1. that the accused agreed to do or cause to be done an act; 2. that such act was illegal or was to be done by illegal means; and 3. that some overt act was done by one of the accused in pursuance of the agreement. It is true that direct evidence to prove criminal conspiracy is rarely available and the same can be inferred from the proved circumstances. Before such an inference is drawn the facts established must rule out any likelihood of innocence of the accused. If there are circumstances compatible with the innocence of the accused persons, the prosecution will fail. A clear link has to be established and the chain has to be completed from the circumstances relied upon by the prosecution otherwise it is too risky to accept a part of the link as a complete one had to base conviction on the basis of such incomplete evidence. ( 10 ) IN the present case the learned Sessions Judge has heavily relied upon the circumstance of motive against these appellants. Assuming that the motive as alleged by the prosecution has been substantiated to some extent that will simply raise a suspicion against these appellants. ( 10 ) IN the present case the learned Sessions Judge has heavily relied upon the circumstance of motive against these appellants. Assuming that the motive as alleged by the prosecution has been substantiated to some extent that will simply raise a suspicion against these appellants. P. W. 7, Manik Ram Misra and P. W. 8 Raj Bahadur Singh have not named Shambhoo Sharan Pandey as the person sitting on pillion of the scooter which is alleged to be driven by appellant Kaushal Kumar Pandey. Both the witnesses stated on oath before the trial Court that the person who was sitting on the pillion of the scooter was not known to them from before the incident. As far as Kaushal Kumar Pandey is concerned though both these witnesses stated that they had seen this appellant driving the scooter, P. W. 7, Manik Ram Misra deposed that when he had reached in the officers colony he saw one scooter passing through that place hurriedly towards crossing and it was being driven by Kaushal Kumar Pandey. Though there is a great deal of doubt that this witness had seen appellant Kaushal Kumar Pandey going on the scooter but assuming the same to be correct there is nothing in his statement to indicate any association of the said appellant with the real assailants. Raj Bahadur Singh (P. W. 8) made an improvement by stating that he had seen two persons standing near the post office and one cycle was also standing there and on a scooter two persons came there, one of whom was Kaushal Kumar Pandey appellant. All the three persons talked to each other. He however did not say clearly in his statement that the persons standing near the post office were the persons who later committed the murder of deceased Shiv Harsh Upadhyay. From his cross-examin-ation a doubt is also created if this witness knew Kaushal Kumar Pandey from before the incident. From the evidence of these two witnesses and the circumstances appearing in the case it is hazardous to infer a charge of criminal conspiracy against both these appellants, merely on the ground that appellant Shambhoo Sharan Pandey was highly aggrieved with deceased Shiv Harsh Upadhyay. The motive as suggested by the prosecution in the present case could at best give rise to a suspicion only. The motive as suggested by the prosecution in the present case could at best give rise to a suspicion only. It is well established that suspicion however strong it may be cannot be a substitute of legal proof. ( 11 ) THE resultant affect of our discussion is that all the appellants are entitled to get the benefit of doubt. Accordingly we are unable to sustain their conviction. ( 12 ) FOR the reasons stated above both the appeals are allowed. Order of conviction and sentence passed by learned Sessions Judge is set aside and all the appellants are acquitted of the offences charged for. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeals allowed. .