G. BIKSHAPATHY, J. ( 1 ) A-1 to A-4 were tried for the offence punishable under Section 302 IPC. A-1 was also tried for the offence punishable under section 404 IPC. The learned III Addl. Sessions Judge, Kurnool, acquitted A-2 to a-4, however convicted A-1 for the offence under Section 302 IPC and imposed sentence of imprisonment for life and a fine of Rs. 500/-, in default to undergo Simple imprisonment for a period of one year. A-1 was further convicted for the offence under section 404 IPC and he was sentenced to undergo Rigorous Imprisonment for a period of two years and a fine of Rs. 100/-, in default to undergo Simple Imprisonment for a period of six months. Both the sentences were directed to run concurrently. Aggrieved by the convictions and sentences imposed against A-1, the present appeal has been preferred. ( 2 ) THE case of the prosecution in brief is that A-1 is a resident of Nossam village and a-2 to A-4 are residents of Jammalamadugu village of Kadapa District. The deceased panyam Venkata Narayana was a resident of Akumalla village. It is alleged that prior to 5-12-1999, the date of incident, A-1 kidnapped Subbamma (P. W. 5), who is no other than his sister-in-law, in order to marry her. However, it was fizzled out and she was married to the deceased. A-1 appears to have married elder sister of P. W. 5 viz. , gunekka. It is alleged that A-1 bore grudge against the deceased for marrying P. W. 5 and he has developed intention to kill deceased, so as to again have the company of P. W. 5. On 5-12-1999, the deceased left his village Akumalla at about 8. 00 a. m. , on his cycle, carrying a bundle of clothes to sell them in the nearby villages. ( 3 ) THE prosecution case is that A-1 hired a-2 to A-4 to murder the deceased and in furtherance of their plan, at about 12. 30 p. m. , accused waited for the deceased at Appanna Bawi Vanka, and when the deceased and returning to Akumalla village, all the accused pushed the cycle of the deceased, as a result of which deceased fell down and thereupon committed murder of the deceased by strangulation. A-1 also committed theft of cycle belonged to deceased and kept with one Madduleti (P. W. 2) of Singanapalli. A-1 also committed theft of cycle belonged to deceased and kept with one Madduleti (P. W. 2) of Singanapalli. P. W. 1, the father of the deceased, and paternal uncle searched for the deceased and in that process they found dead body of the deceased with bundle of clothes in the field of B. Prakasa rao. Therefore, they went to the Owk Police station and gave Ex. P-1 report to A. S. I. , who registered a case in Crime No. 244 of 1999. P. W. 21, Inspector of Police, investigated the offence. Autopsy was conducted over the dead body and Doctor opined that deceased died due to Asphyxia, due to strangulation. Ex. P-12 is the Post-mortem certificate. Accused were arrested on 25-1-2000 and at the instance of the accused, cycle (M. O. 6), was seized from the house of P. W. 2. After completion of investigation, charge-sheet was laid before the Magistrate concerned. Since the offence under Section 302 read with 34 IPC is exclusively triable by the sessions Court, the case was committed to sessions Court for further proceedings. ( 4 ) THE prosecution examined 21 witnesses in support of its case and marked exs. P-1 to P-17 and also M. Os. 1 to 6. The learned trial Judge after considering the evidence adduced by the prosecution and the documents marked, came to the conclusion that the prosecution failed to establish the case against A-2 to A-4, but however, convicted A-1 for the offences under Sections 302 and 404 IPC, and accordingly sentenced the appellant as referred to above. The said conviction and sentence are questioned in this appeal by the appellant/a-1. ( 5 ) THE learned counsel appearing for the appellant submits that the trial court gravely erred in convicting and sentencing A-1 without there being any evidence available on record, in respect of A-1. He further submits that when the evidence adduced by the prosecution failed to establish the guilt of a-2 to A-4, there is no reason why the trial court should convict A-1 on the set of very same evidence. Thus, the learned Counsel submits that there is total non-application of mind to the evidence available on record. He also submits that there is no additional or specific evidence with regard to the overt-act or other circumstantial evidence to establish the guilt of the appellant/accused. Thus, the learned Counsel submits that there is total non-application of mind to the evidence available on record. He also submits that there is no additional or specific evidence with regard to the overt-act or other circumstantial evidence to establish the guilt of the appellant/accused. He further submits that, when the entire case depended on circumstantial evidence, the evidence is not forthcoming, so as to form a complete chain of link in respect of material particulars and thus the trial court gravely erred in convicting and sentencing the appellant/ accused. He further submits that this case was foisted against the appellant for disputes between the deceased party and the accused party. With regard to the conviction under Section 404 IPC, also, the learned Counsel submits that the same cannot be sustained inasmuch as the identity and the ownership of the cycle was not established. He refers to the evidence of p. W. 12 in this regard and thus he submits that A-1 is liable to be acquitted. ( 6 ) ON the other hand, the learned Public prosecutor submits that inasmuch as there is evidence of P. Ws. 10 to 12, the conviction imposed against A-1 cannot be set aside. P. Ws. 10 and 11 have categorically deposed that they have seen A-1 and another pushing and kicking the deceased and thereby committing the murder. In the absence of any motive attributed to them, the lower court had maintained the convictions and sentences, which cannot be said to be illegal. He further submits that motive behind the offence was that A-1 though wanted to marry P. W. 5 could not marry her and he still wanted to marry her after murdering the husband of P. W. 5, the deceased. So, in pursuance of the said motive, he has committed murder of the deceased. Therefore, the motive is also established in this case. Under those circumstances, the judgment of the trial court is quite legal and correct. ( 7 ) WE have heard the learned Counsel for the appellant and also the learned Public prosecutor. We have also gone through the judgment of the court below. ( 8 ) THE entire case stands on the circumstantial evidence. Under those circumstances, the judgment of the trial court is quite legal and correct. ( 7 ) WE have heard the learned Counsel for the appellant and also the learned Public prosecutor. We have also gone through the judgment of the court below. ( 8 ) THE entire case stands on the circumstantial evidence. It has been consistently laid down by the Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of rajasthan ( AIR 1977 SC 1063 ); Eradu v. State of Hyderabad (MR 1956 SC 316); earabhadrappa v. State of Karnataka ( AIR 1983 SC 446 ); State of U. P. v. Sukhbasi ( AIR 1985 SC 1224 ); Balwinder Singh v. State of Punjab ( AIR 1987 SC 350 ); Ashok kumar Chatterjee v. State of M. P. ( AIR 1989 sc 1890 ). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. As far back as in 1952 the Supreme Court in Hanumant Govind Nargundkar and another v. State of Madhya Pradesh #1 it was observed thus:"it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused". In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused". ( 9 ) IN Bhagat Ram v. State of Punjab #2, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. ( 10 ) A reference may also be made to a decision of Supreme Court in C. Chenga reddy v. State of AP. #3, wherein it has been observed thus:"in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, alt the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. . . . . . . " ( 11 ) IN Padala Veera Reddy v. State of a. P. #4, it was laid down that when a case rests upon circumstantial evidence, such evidence-must satisfy the following 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 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; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " ( 12 ) IN State of U. P. v. Ashok Kumar srivastava #5, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. ( 13 ) A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra #6. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the supreme Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ( 14 ) THE said principles were again reiterated in Bodh Raj v. State ofjandk and the Supreme Court observed thus:"before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it. differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. " ( 15 ) IN State of Haryana v. Jasbirsingh #8, while referring to the above said decision, the Supreme Court noted the principles laid down by Sir Alfred Wills in his book "wills circumstantial evidence" (Chapter VI) and referred to the following rules to be observed in the case of circumstantial evidence:" (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum, (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. " ( 16 ) THE aforesaid aspects has again been reiterated and highlighted by the supreme Court in State of Rajasthan v. Rajaram (2003 AIR SCW 4097) and Vilas pandurang Patil v. State of Maharashtra (2004 AIR SCW 3441 ). " ( 16 ) THE aforesaid aspects has again been reiterated and highlighted by the supreme Court in State of Rajasthan v. Rajaram (2003 AIR SCW 4097) and Vilas pandurang Patil v. State of Maharashtra (2004 AIR SCW 3441 ). ( 17 ) THEREFORE, it has to be seen whether the circumstances as alleged by the prosecution would form a link by itself, so as to record the conviction on the appellant herein. ( 18 ) IT is not in dispute that the appellant married P. W. 5 and earlier to the marriage of p. W. 5, there appears to have been some incident where A-1 alleged to have eloped p. W. 5. The motive sought to be established by the prosecution is that A-1 wanted to marry P. W. 5 and therefore, in order to achieve this end, he has committed the offence. But this motive alleged is a very weak point in favour of the prosecution. Except culling out the motive, no evidence is forthcoming on this aspect. Even P. W. 5 did not state that A-1 made any such attempts even after her marriage. She had only stated that he eloped her prior to her marriage with an intention to marry her. It is also incomprehensible that a person who already married elder sister, again would go for further marriage with younger sister, who was already married. Even coming to the evidence available on record we find that the evidence of P. Ws. 10 and 11 may throw some light on the incident. They are alleged to be the eye-witnesses, but when their evidence is scanty, we find their evidence as most unnatural. They have stated that they have seen the accused and another pushing and kicking the deceased, who was going on cycle and thereby they committed the murder by strangulation. But it is curious to note that when they have seen the accused attacking and killing the deceased, they did not inform anybody immediately after the incident. On the other hand, it is their case that P. W. 10 got fever for three days and he went to Nandyal for treatment. This is more unnatural conduct on the part of the witnesses. Even it is their case that they did not even inform their wife and children also. On the other hand, it is their case that P. W. 10 got fever for three days and he went to Nandyal for treatment. This is more unnatural conduct on the part of the witnesses. Even it is their case that they did not even inform their wife and children also. Thus they are most unbelievable and undependable witnesses to speak to the alleged factum of commission of offence. The trial Court failed to discuss these material issues and only holding that there was a motive, found the appellant guilty of the offences. But it is to be noted that when four accused were tried for the offence under sec. 302 IPC, it is not understood how A-1 alone could be convicted and others could be acquitted basing on the same evidence. ( 19 ) IT is not the case of the prosecution that there is additional evidence as against a-1 to come to the conclusion that A-1 had committed the offence. In fact the case of the prosecution is that A-1 himself hired A-2 to a-4 and all of them jointly and severally committed the offence. In such an event, separating A-1 and convicting him and acquitting other accused would be nothing but misappreciation of facts and also law. We find the ingredients necessary for convicting the appellant/accused on the basis of circumstantial evidence are totally lacking in this case and there was no chain of link of events at any point of time, leave alone the material events. Convicting A-1 on the basis of the statement made by P. W. 5 that on earlier occasion, he eloped her is totally unsustainable. ( 20 ) FOR the aforesaid reasons, we find that the prosecution has not been able to make out a case against the accused under section 302 IPC. ( 21 ) COMING to the offence under section 404 IPC, it is the case of the prosecution that immediately after committing the offence, he took the cycle of the deceased and kept it in the house of p. W. 12 saying that he would collect the cycle again. It is to be seen that he had never stated that the cycle belongs to deceased nor the cycle was identified as that belonging to deceased and nobody has deposed about the ownership of the cycle. It is to be seen that he had never stated that the cycle belongs to deceased nor the cycle was identified as that belonging to deceased and nobody has deposed about the ownership of the cycle. Therefore, the prosecution has failed to establish the offence against the appellant under Section 404 of IPC also. ( 22 ) FOR the aforesaid reasons, we find the judgment of the learned III Addl. Sessions judge, Kurnool, is not sustainable and accordingly it is set aside. ( 23 ) CRIMINAL Appeal is allowed. The convictions and sentences passed against the appellant/accused by the III Addl. Sessions Judge, Kurnool, in S. C. No. 425 of 2000 under Sections 302 and 404 IPC are set aside. The appellant is acquitted and he shall be set at liberty forthwith, if not required in any other case.