JUDGMENT A.K. Shrivastava, J. Feeling aggrieved by the judgment of conviction and order of sentence dated 6-4-1991 passed by the learned Additional Sessions Judge, Narsinghpur in Sessions Trial No. 115/89, convicting the appellant u/s 302 of the Indian Penal Code (in short the 'IPC') and sentencing him to undergo life imprisonment, the appellant has preferred this appeal. The facts shorn of unnecessary details are that Kripala Bai (hereinafter referred to as the deceased) was the wife of G.P. Mishra (PW-15). At the time of the occurrence said G.P. Mishra was serving as A.S.I, in the Police Station, Narsinghpur. Lavlesh Prasad is the near relative of G.P. Mishra. Acquitted co-accused Bajrang alias Munna is the nephew (sister's son) of the deceased. In brief, the case of prosecution is that accused persons namely, Iqbal and Bajrang @ Munna are the close friends. Accused Iqbal is the resident of Guna. Both of them conspired on 25-5-1989 to murder Kripala Bai, the wife of G.P. Mishra. Lavlesh Prasad (PW-14) is the resident of Pratapgarh (U.P.). Both the accused persons made a plan that accused Bajrang would take out Lavlesh Prasad under some pretext from the house of G.P. Mishra and the accused Iqbal would thereafter murder the deceased. It was known to both the accused persons that on 25-5-1989, G.P. Mishra would go to adduce evidence in some murder case at Sihora, district Jabalpur and at that time his wife, the deceased, would be alone in the house. On the fateful day, 25-5-1989 at 8 in the morning said G.P. Mishra proceeded to Sihora for adducing the evidence, on that day to give positive effect to their plan, anyhow was able to bring out Lavlesh Prasad from the house and took him away to Narsinghpur Railway Station, as a result of which the deceased remained alone in the house. It is alleged that in the evening at about 6.30 when said Lavlesh Prasad came back and knocked the door, nobody opened it. Thereafter he got opened the door. After entering inside the house, he found that the deceased besmeared with the blood was lying dead on the bed. She was having umpteen injuries on her head. He immediately rushed and reported the matter at the Police Station, Narsinghpur, on the basis of said oral information, Town Inspector Chhagan Dube (PW-17) wrote the First Information Report (Ex. P-20) and merg intimation (Ex.P-29). She was having umpteen injuries on her head. He immediately rushed and reported the matter at the Police Station, Narsinghpur, on the basis of said oral information, Town Inspector Chhagan Dube (PW-17) wrote the First Information Report (Ex. P-20) and merg intimation (Ex.P-29). In this manner, the criminal law set into motion. According to the prosecution, one Narendra Karnik (PW-8) on the date of incident i.e. 25-5-1989 at about 3.30 p.m. went to eat beatle near Shyamanand Talkies. On the way he saw accused Iqbal going towards the house of G.P. Mishra in a perplexed and worried manner. Thereafter he heard that the wife of G.P. Mishra had been murdered. It is the further case of prosecution that on the fateful day in the hotel of Raju @ Rajendra (PW-12), both the accused persons had tea and Raju went to Railway Station along with co-accused Bajrang and Lavlesh Prasad (PW-14). Chhagan Dubey (PW-17) went to the spot and in the presence of witnesses, seized the dead-body of the deceased, prepared the Panchanama of the dead-body, seized the ordinary and blood-stained earth from the spot, seized an axe and one stick from the spot and sent the dead-body for postmortem at the District Hospital, Narsinghpur, where Dr. A.K. Dubey (PW-6) on 26-5-1989 performed the post-mortem of the dead-body of the deceased. On a request being made by the police, the doctor examined the seized axe and the knife and his reports are Ex. P-12 and Ex. P-13 respectively. In furtherance of investigation, Chhagan Dubey prepared the spot map, arrested the accused Iqbal and at his instance on 31-5-1989 seized the wrist-watch, bullet, medal and one golden nose bud. In the presence of the witnesses Madhu Rai (PW-5) and one Rajesh memorandum u/s 27 of the Indian Evidence Act was prepared. According to this memorandum, it was stated by the accused Iqbal that he had kept the articles in his house at Guna and some articles he had thrown in a Well of village Kareli. On the basis of this information of the accused, he was brought to his house at Guna, from where one golden nose bud, medal, Rico wrist-watch, a letter, trouser, a bushirt, a piece of cotton saree were seized. Upon the information being supplied by the accused Iqbal, at his instance the bullets were recovered from the Well of village Kareli. On the basis of this information of the accused, he was brought to his house at Guna, from where one golden nose bud, medal, Rico wrist-watch, a letter, trouser, a bushirt, a piece of cotton saree were seized. Upon the information being supplied by the accused Iqbal, at his instance the bullets were recovered from the Well of village Kareli. A knife was also recovered from the possession of the accused on 4-6-1989 and a belt of bullet was seized near the cremation ground of Kareli. Smt. Usha (PW-9) who was serving as Naib Tehsildar, on 8-6-1989 conducted the test identification parade of the accused in which the witness Narendra Karnik (PW-8) identified the accused. The said officer also performed the test identification parade of the seized articles which were identified by G.P. Mishra. The seized articles were sent for serological examination. After investigating the case, charge-sheet was filed in the competent court which committed the case to the Court of Session and eventually it was tried by the learned Additional Sessions Judge. The trial Court framed charges punishable u/s 302 read with section 120(B)Indian Penal Code against the accused/appellant and u/s 302 read with section 120(B) against the acquitted co-accused Bajrang. Both the accused persons abjured their guilt and pleaded complete innocence as well as maladroit implication. In order to bring home the charges, the prosecution examined as many as 17 witnesses and placed Ex. P-1 to P-49 on record. In defence the accused persons examined two witnesses. The learned Trial Judge after recording the evidence and hearing the rival contentions of the parties acquitted the co-accused person Bajrang @ Munna from the charges punishable u/s 302 read with section 120B, Indian Penal Code, but, found the charge u/s 302, Indian Penal Code to be proved against the present appellant and convicted him to suffer regorous imprisonment of life. Mr. H.K. Upadhyaya, learned counsel for the appellant, submitted that there is no eye-witness, in the case and the case of prosecution rests entirely upon circumstantial evidence. According to him, the circumstantial evidence should be consistent with the guilt, of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete, as not to lead any reasonable ground, for the conclusion consistent, with the innocence of the accused. According to him, the circumstantial evidence should be consistent with the guilt, of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete, as not to lead any reasonable ground, for the conclusion consistent, with the innocence of the accused. The incriminating circumstances for being used against the accused must be such, as to lead only to a singular hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. It is further submitted that in a case of circumstantial evidence the whole endeavour and effort of the prosecution should be, to prove whether the crime was committed by the accused and the circumstances proved weave and unite themselves into a complete chain unerringly pointing to the guilt of the accused and if the circumstances proved, against the accused in a case are not totally consistent with his guilt, he is entitled, to the benefit of doubt. The learned counsel further canvassed that the important links are missing and, therefore, the chain is not complete and the accused/appellant is entitled for acquittal. He has also drawn our attention, to the material discrepancies and omissions, that had come in the statements of the prosecution witnesses. Combating the submission of learned counsel for the appellant, Mrs. Chanchal Sharma, learned Panel Lawyer for the State, vehemently urged that the prosecution has proved its case beyond reasonable doubt against the accused/appellant, and the learned trial Judge has dealt each and every aspect of the matter, and there is no warrant for unsettling the order of conviction. The question that arises for consideration is whether any of the circumstance can be said to have not been proved and if all the circumstances can be said to have been proved then whether the circumstances thus proved are so complete that they point only towards the guilty of the accused and are inconsistent with the hypothesis of his innocence. The Supreme Court in the case of K.V. Chacko @ Kunju Vs. State of Kerala, has laid down the tests. In para 5 these tests have been enumerated, which read as under : 5. The law regarding basing a conviction by the courts on circumstantial evidence is well settled. The Supreme Court in the case of K.V. Chacko @ Kunju Vs. State of Kerala, has laid down the tests. In para 5 these tests have been enumerated, which read as under : 5. The law regarding basing a conviction by the courts on circumstantial evidence is well settled. When a case rests upon circumstantial evidence, such evidence must satisfy three tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (3) 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. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The learned Trial Judge took note that the accused was seen near the house of Mr. G.P. Mishra in a perplexed and worried state by Narendra Karnik; that he was identified by the said witness in test identification parade; that the accused had led to discovery as per section 27 of the Indian Evidence Act; and that at his instance different articles were seized which were later on identified by Mr. G.P. Mishra, and accordingly found him guilty of the offence. Presently we shall have a look at the evidence to find out whether the material brought on record justify the conclusion arrived at by the learned trial Judge. Raja Mohan (PW-1), Suresh Kumar (PW-2), Pooranlal Rai (PW-3), Ramdayal (PW-4), P.R. Sadaphal (PW-7), Bacchu Prasad Kourav (PW-10) and Umesh Kumar Raikwar (PW-13) are the formal witnesses. Madhu Rai (PW-5) is the witness of memorandum u/s 27 of the Indian Evidence Act. The other witness Rajesh has not been examined by the prosecution. This witness is a chance witness. On the relevant date, when he was passing by the police station, the concerned Inspector called him and in his presence the statement of accused was recorded which is Ex. The other witness Rajesh has not been examined by the prosecution. This witness is a chance witness. On the relevant date, when he was passing by the police station, the concerned Inspector called him and in his presence the statement of accused was recorded which is Ex. P-5 and thereafter in the evening one Constable of the Police Station came to his house and directed him to accompany the police party up to Guna as a result of which from his village Kareli, he went to Guna along with other witness Rajesh Sahu and the police party. At the house of the accused at Guna, the police party recovered Rico wrist-watch, one nose bud of gold, one medal, one shirt, a trouser and one letter. From Guna, they came back to Kareli and thereafter at the instance of accused Iqbal seized the bullets from a well which were being kept in a small bag. Thereafter, accused stated that near the Kareli Bus Stand beneath the shop of co-accused Bajrang a knife had been kept by him. It was seized at his instance. Further at his instance a belt (to keep the bullets) was seized near the cremation ground. Mr. Upadhyaya, learned counsel for the appellant has drawn our attention on the memorandum Ex. P-5 and putforth that this memorandum does not bear the signature of the accused Iqbal and thus it is of no use. To bolster his submission, he placed reliance upon the decision rendered in the case of Jackaran Singh Vs. State of Punjab, wherein their Lordships have held that in the absence of signature or thumb impression of accused on the statement, renders such statement unreliable. We have given our anxious consideration on this proposition and we find that there is merit in the aforesaid contention. We have seen the document Ex. P-5 and we find that it does not bear the signature of the accused. Thus no reliance can be placed on this document and as the seizure of the articles, based on the said document, is of no consequence. The Investigating Officer has also admitted that the signature of the accused was not obtained on the memorandum u/s 27 of the Evidence Act. We could not understand why this witness and other witness Rajesh was taken away by the police party from village Kareli District Narsinghpur to Guna which is far away from Kareli. The Investigating Officer has also admitted that the signature of the accused was not obtained on the memorandum u/s 27 of the Evidence Act. We could not understand why this witness and other witness Rajesh was taken away by the police party from village Kareli District Narsinghpur to Guna which is far away from Kareli. From the statement deposed by this witness in para 9, it transpires that this witness along with other witnesses, namely, Rajesh and accused Iqbal proceeded with the police party to Guna at 11 in the night and after travelling 4-5 hours the Van of the police became disordered, as a result of which another vehicle was called from Police Station Narsinghpur which reached next day at 2 p.m. and thereafter they proceeded for Guna at 3 p.m. and could reach Bhopal in the evening about 7-7.30, and from where they proceeded for Guna at 10 in the night and reached Guna the next day. At Guna they straightway went to the house of accused Iqbal and seized the articles. From the testimony of this witness, it transpires that witnesses of the seizures were brought to Guna by the police party along with the accused, we fail to fathom why the police party carried these witnesses along with them, which amounts to creation of heavy doubt on the story of the prosecution. Dr. A.K. Dubey (PW-6) is the autopsy surgeon, he has stated that he performed the post-mortem on the dead-body of the deceased and noticed as many as 10 injuries. His report is Ex. P-11. According to the doctor, the deceased died on account of head injury due to shock and haemorrhage. We have minutely scrutinised the testimony of the doctor. From his testimony we could gather that the seized weapon axe and knife were sent by the Station Officer Incharge of Police Station, to this witness, who on examining the axe, opined that the injuries No. 1 to 4 could have been sustained by this weapon. The Injuries No. 1 to 4 are incised wounds on the forehead, parietal region, of scalp, right frontal region of scalp and right side of the forehead. However, on examining weapon knife, he opined, the injuries sustained to the deceased could not have been caused by the said weapon. The Injuries No. 1 to 4 are incised wounds on the forehead, parietal region, of scalp, right frontal region of scalp and right side of the forehead. However, on examining weapon knife, he opined, the injuries sustained to the deceased could not have been caused by the said weapon. It be seen that the case of prosecution is that the accused used the seized article, knife, as weapon of the offence but according to the doctor, the injuries sustained by the deceased could not have been caused by the said knife. Thus, it raises a dent in the truthfulness of the story of the prosecution. Needless to say, under the criminal jurisprudence, the benefit of doubt is always being given to the accused. The other star witness of the prosecution is PW-8, Narendra Karnik. According to this witness, he saw the accused/appellant at 3-3.30 p.m. near Shyamanand Talkies going in an unusual and in perplexed manner towards the house of the deceased. He identified the accused to be the same person present in the Court. In cross-examination, he has deposed that the person he saw, was of fair complexion and the accused is of fair complexion, further he has stated that so many persons used to cross through Shyamanand Talkies. This witness was called at the police station 4-5 days after 27-5-1989 which means that he was called somewhere on 30-5-1989 or 1-6-1989, and the investigating officer inquired whether he would be able to identify the accused. From the record, we find that the accused was in police custody from 30-5-1989 to 4-6-1989 and was in the lock-up of the police station, during this period this witness was called to the police station. This witness admits that the lock-up of the police station is having door of iron bars and one can easily see the detenu from outside. This witness talked with the Station Officer Incharge of the Police Station in front of the lock up. According to this witness, he identified the accused in the test identification parade. We had x-rayed the testimony of this witness and after scrutinising it minutely, we find that the evidence of this witness is not trustworthy. The house of the deceased is near the Cinema House as it is apparent from the spot map (Ex. P-8) and it has also come in the evidence of this witness. We had x-rayed the testimony of this witness and after scrutinising it minutely, we find that the evidence of this witness is not trustworthy. The house of the deceased is near the Cinema House as it is apparent from the spot map (Ex. P-8) and it has also come in the evidence of this witness. Merely, because the accused was seen near the house of the deceased, which is on busy locality, having accessibility of thousands of persons, no prudent man will digest such type of evidence of identification. We have also perused the cross-examination of this witness and after perusing the same the possibility that before the test identification parade, the accused was shown to this witness in the lock-up cannot be ruled out. We have discussed hereinabove that this witness was called by the Station Incharge of the Police Station and the place where they were talking to each other, the police lock up was visible and one could easily see the detenu inside the lock up. We have also discussed hereinbefore that the accused was taken into the custody and was in the lock up of the police between 31-5-1989 to 4-6-1989. As per the deposition of this witness, he was called 4-5 days after 27-5-1989, which would mean that when this witness was called in the police station, during the period when the accused/appellant was in the lockup. At this juncture, to bolster his contention, Mr. Upadhyaya, learned counsel for the appellant placed heavy reliance upon the case of Shaikh Umar Ahmed Shaikh vs. State of Maharashtra, AIR 1998 SC 1922 , State of Madhya Pradesh Vs. Samaylal Vishwanath Chandra and Others, and Babulal vs. State of M.P., 1998(1) WN 188 and contended that as the accused was shown earlier to the test identification parade, the same has no meaning and the conviction cannot be based on the basis of the said faulty test identification parade. According to us, the contention of the learned counsel has substantial force. We have discussed in detail the evidence of this witness and in the obtaining factual matrix the possibility of this witness seeing the accused before the test identification parade cannot be ruled out. Thus, in our considered opinion, the evidence of this witness is not of much assistance to the prosecution. We have discussed in detail the evidence of this witness and in the obtaining factual matrix the possibility of this witness seeing the accused before the test identification parade cannot be ruled out. Thus, in our considered opinion, the evidence of this witness is not of much assistance to the prosecution. Smt. Usha (PW-9) is the Naib Tehsildar and Executive Magistrate before whom the test identification parade of the accused was conducted. She also performed test identification of the seized articles. We have already discussed that the manner in which the articles were seized and the accused was identified. The same cannot be relied upon. Hence, the version of the said witness is not helpful to the prosecution. PW-10, Bacchu Prasad, is the Patwari who prepared the spot map. PW-11, Sadashiv, is again a formal witness. PW-12, Raju alias Rajendra is an employee in a restaurant where acquitted co-accused Bajrang had come with one more person on the fateful day and had tea. However, he could not identify that 'another person'. According to him, co-accused Bajrang with that other person ate some snacks and thereafter he along with those two persons went to the Railway Station. In cross-examination, he has deposed that in the restaurant 1000-1500 customers happen to come every day. This witness has said nothing about the co-accused Bajrang who has already been acquitted. PW-13, Umesh Kumar is a formal witness, PW-14, Lavlesh Prasad Mishra is the near relative of the deceased and her husband. He has deposed against the co-accused Bajrang who had already been acquitted. According to this witness, he went along with the co-accused Bajrang on the fateful day to the Railway Station and when he came back to the house in the evening and knocked the door nobody opened it. Thereafter he pushed the door and saw her aunt (Bua) besmeared with the blood lying dead. He has deposed that before going to the Railway Station. Bajrang offered him tea and he had tea with him and accused Iqbal in one restaurant near Shyamanand Talkies. From the evidence of this witness, it transpires that both the accused persons and this witness had a tea in a restaurant, but nothing is found in his testimony implicating the present appellant. PW-16 Sitaram is a witness of seizure and PW-17, Chhagan Dubey is the investigating officer. We have discussed each and every witness of the prosecution. From the evidence of this witness, it transpires that both the accused persons and this witness had a tea in a restaurant, but nothing is found in his testimony implicating the present appellant. PW-16 Sitaram is a witness of seizure and PW-17, Chhagan Dubey is the investigating officer. We have discussed each and every witness of the prosecution. We have also scanned the testimony of the star witnesses, namely, PW-5, Madhu Rai and PW-8, Narendra Karnik, hereinabove and we have held that their testimony is not at all helpful to the prosecution. There is so other connecting link so as to complete the chain of circumstantial evidence. In the case of circumstantial evidence, the motive has significance. In the case of Tarseem Kumar Vs. The Delhi Administration, , their Lordships have held as under : 8. Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been suggested or established on behalf of the prosecution. In the present case, the prosecution has failed to prove any motive, further, there is no evidence of last seen. In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been suggested or established on behalf of the prosecution. In the present case, the prosecution has failed to prove any motive, further, there is no evidence of last seen. PW-8, Narendra Karnik, cannot be said to be the witness of last seen because none of them has said that the accused was last seen with the deceased. It will be apposite to refer the pronouncement of the Supreme Court in the case of C. K. Raveendran Vs. State Of Kerala, , in this context. We may note here that Mrs. Chanchal Sharma, learned Panel Lawyer for the State, placed heavy reliance on the letter written by Bajrang to the present accused/appellant but this letter cannot be relied upon because accused Bajrang, which according to the prosecution wrote this letter, has already been acquitted by the trial Court. If the entire factual scenario is appreciated on the anvil of the evidence produced by the prosecution, we have no iota of doubt that the prosecution has utterly failed to prove its case. In view of the aforesaid premised reasons, we are of the opinion that the Trial Court has erred in convicting the appellant for the offence punishable u/s 302, Indian Penal Code. In the result, the appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence are hereby set-aside. Accused/appellant be set at liberty forthwith, if not required in any other case. Final Result : Allowed