Judgment S. B. DESHMUKH, J. ( 1 ) THE appellants were tried for offences punishable under section 302 read with section 34 of the Indian Penal Code and sections 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989, in Sessions Case No. 171 of 1997. At the conclusion of the said sessions trial, the appellants (hereinafter referred to as the "accused" as per their original status in the sessions case) were convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 500/- each, in default to suffer rigorous imprisonment for six months by the impugned judgment and order dated 12-5-2000 passed by the learned Additional Sessions Judge, Amhednagar. The accused, however, have been acquitted of the offence punishable under section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) act, 1989 (for short, hereinafter referred to as the "atrocities Act" ). The impugned judgment, conviction and sentence is challenged in this appeal. ( 2 ) THE facts of the prosecution case were as follows : (i) PW 1 Renabai w/o Subhash Bhosale was the complainant in the present case. Subhash Peslya Bhosale was alleged to have been murdered. Deceased subhash was the resident of Belwandi Station in Taluka Shrigonda of District ahmednagar. Subhash along with his wife Renabai, parents and brother Satish was residing at the relevant time at Belwandi station and the said family was holding an agriculture land of about 5 acres. Accused No. 1 Bhausaheb Maruti kalane is also resident of Belwandi Station and was having acquaintance with the deceased Subhash. Ten months prior to the incident, accused No. 1 Bhausaheb had been to the farm house of deceased Subhash. At that time, he demanded an amount of Rs. 10,000/- by way of loan for taking a borewell in his agriculture land. He also promised to repay the amount of loan after about one and half months. At that time, deceased Subhash was having sufficient funds and therefore, lent the amount of Rs. 10,000/- to accused No. 1 Bhausaheb. After completion of period of one and half months, deceased Subhash along with PW 1 renabai had gone to accused No. 1 Bhausaheb for recovery of the said amount of rs. At that time, deceased Subhash was having sufficient funds and therefore, lent the amount of Rs. 10,000/- to accused No. 1 Bhausaheb. After completion of period of one and half months, deceased Subhash along with PW 1 renabai had gone to accused No. 1 Bhausaheb for recovery of the said amount of rs. 10,000/- At that time, accused No. 1 Bhausaheb and his two sons namely : rajendra and Pandurang who are also accused Nos. 2 and 3 in the present appeal have flatly refused to repay the amount of Rs. 10,000/- lent by deceased Subhash to accused No. 1 Bhausaheb. Deceased Subhash was assaulted and was threatended by the accused persons. No complaint was lodged regarding this incident either by Subhash or PW 1 Renabai. (ii) The occurrence in the present case took place on August 28, 1997. Deceased Subhash had gone to Ahmednagar for recovering sale proceeds of monkey-nut. He returned to belwandi at about 12 noon. It was Thursday and a bazar day for Belwandi. Subhash, PW 1 Renabai, Satish - brother of deceased subhash and Sonabai - wife of Satish had gone to Belwandi at about 3 pm. At about 5 p. m. all of them were in the Bazar and more specifically under a tree whereat accused No. 2 Rajendra and accused No. 3 Pandurang met them. At that time some discussion took place between them. It was resolved that all of them would go to Shivaji Kalane and would settle the money transaction amicably. Thereafter deceased Subhash was taken by the accused persons along with them. Satish brother of deceased Subhash, his wife and complainant PW 1 Renabai returned to their house. (iii) In the evening while PW 1 Renabai and other family members of deceased Subhash were watching television at their house one Shivaji Kalane came to them and informed that the husband of PW 1 Renabai was lying near the railway bridge. According to the information of Shivaji Kalane, blood was oozing from ears and mouth of Subhash. (iv) On receipt of this information, PW 1 Renabai, PW 2 Satish, his wife and one Baban Bhosale went to the Railway bridge. They found that Subhash was lying near the Railway Bridge. He was dead. Blood was oozing from his nose and mouth. They found head injury on the deceased. They also found that one stone was lying near the dead-body of Subhash. They found that Subhash was lying near the Railway Bridge. He was dead. Blood was oozing from his nose and mouth. They found head injury on the deceased. They also found that one stone was lying near the dead-body of Subhash. They sat near the dead-body during the whole night. (v) On August 29, 1997, Renabai i. e. widow of deceased Subhash, Satish and others went to Shrigonda Police Station and PW 1 Renabai lodged a report (Exhibit 15) at 9. 45 a. m. This report is recorded by PW 8 Shirish Arjunrao shinde. Police Sub-Inspector of Shrigonda Police Station. Based on the said report at Exhibit 15, PW 8 Shirish registered an offence punishable under section 302 read with section 34 of the Indian Penal Code and section 3 (2) (v) of the atrocities Act. PW 8 Shirish took over the investigation of the said crime. He proceeded to the scene of offence. He drew the scene of offence panchanama in the presence of PW 4 Divakar Premchand Dhongade on August 29, 1997. He also drew the inquest panchanama on the dead-body of Subhash which is at exhibit 10, The accused No. 1 Bhosale was arrested under arrest panchanama on 29. 8. 1997 (Exh. 30 ). At the time of the arrest, the panch witnesses found that accused No. 1 Bhausaheb had fresh injuries on his knee and blood was clotted. The dhoti worn by accused No. 1 Bhusahueb found to be stained with red colour like blood. His wearing apparels namely ; white shirt with full sleeves, tunic and dhoti were seized and sealed under panchanama at Exhibit 30. The inquest panchanama is admitted on behalf of the accused under section 294 of the Code of Criminal Procedure. This inquest came to be performed during 10. 30 am to 11 am on August 29, 1997. After the inquest, the dead-body was sent for post- mortem examination. (vi) PW 7 Dr. Baban Ganpat Thavale performed post-mortem examination on the dead-body of Subhash on August 29, 1997, during 2 p. m. to 3. 40 p. m. Dr. Baban found nine external injuries as detailed hereinbelow :1. Abrasion 1" diameter over left shoulder joint. Clotted blood. 2. Abrasion 1" x 1/2" over right elbow joint. Clotted blood. 3. Abrasion 1" x 1" oblique over right side infra axillary area clotted blood present. 4. 40 p. m. Dr. Baban found nine external injuries as detailed hereinbelow :1. Abrasion 1" diameter over left shoulder joint. Clotted blood. 2. Abrasion 1" x 1/2" over right elbow joint. Clotted blood. 3. Abrasion 1" x 1" oblique over right side infra axillary area clotted blood present. 4. Abrasion 5" x3/4 " oblique middle of left forearm. Posterior, clotted blood present. 5. Abrasion 3" x 1" anterior - posterior direction over right shoulder joint, clotted blood present. 6. Abrasion 31/2" x 1/2" vertical, lateral to right eye, clotted blood. 7. Contusion 21/2 x 2" obliquor above and lateral to left eye colour reddish. 8. C. L. W. 1" x 1/4" scalp deep over left side pariatal region. 3" above posterior to left external ear, Gaping present, margins irregular. Deeply stained. 9. Contusion 3" diameter behind left ear, colour reddish". PW 7 Dr. Baban on examination of the dead-body also found the following internal injuries : 1. Crack fracture on left side skull 7" x length extending from temporal region to middle of base of skull. Subdural haematoma of 3" diameter underneath, compressing brain matter, colour, reddish, corresponding to external injury Nos. 7 and 8. 2. Fracture of ribs 7, 8 and 9th right side, infra axillary area, corresponding to external injury No. 3. 3. 2 litres blood present in cavity due to rupture of liver stomach contains 500 ccs of brownish fluid. Rupture of liver 5" x +/2" x 1"size. Irregular margins corresponding to injury No. 3 (external ). According to PW 7 Dr. Baban viscera preserved and was sent for chemical analysis to the Forensic Laboratory. He issued the post-mortem report (Exhibit 25 ). (vii) PW. 8 Shirish arrested accused No. 2 Rajendra on 30. 8. 1997 under arrest panchanama at Exhibit 12. He also arrested the accused No. 13, in the presence of panch witnesses. The clothes of the accused Nos. 2 and 3 were not found to have been stained with blood. There were no fresh injuries on their person. PW 8 Shirish forwarded the incriminating articles to the Chemical analyser along with the letter dated 11. 9. 1997 at Exhibit 31. (viii) PW 8 Shirish interrogated several witnesses including PW 2 Satish (brother of the deceased) PW 3 Yousf Shaikh, PW 5 Arun Ankush Chavan and pw 6 Bhiva Lahanu Kalane. There were no fresh injuries on their person. PW 8 Shirish forwarded the incriminating articles to the Chemical analyser along with the letter dated 11. 9. 1997 at Exhibit 31. (viii) PW 8 Shirish interrogated several witnesses including PW 2 Satish (brother of the deceased) PW 3 Yousf Shaikh, PW 5 Arun Ankush Chavan and pw 6 Bhiva Lahanu Kalane. PW 9 D. R. Nimkar, Deputy Superintendent of police also participated in the investigation for sometime. He forwarded the viscera to the Forensic Science Laboratory along with a letter dated 16. 5. 1997 (Exhibit 34 ). Reports of the Chemical analyser, Aurangabad (Exhibits 35 and 36) are included in the papers of investigation. After completion of the investigation, charge-sheet was filed in the Court of learned Judicial Magistrate, First Class, shrigonda, against the accused persons. (ix) After committal of the case to the Sessions Court, charge at Exhibit 3 was framed for offence punishable under section 302 read with section 34 of the indian Penal Code and section 3 (2) (v) of the Atrocities Act by the learned additional Sessions Judge, Ahmednagar, on September 23, 1999. ( 3 ) THE accused denied the charge and claimed to be tried. The accused have filed written statement in their examination under section 313 of the Code of Criminal Procedure. Apart from their defence of denial, according to the accused persons, deceased Subhash was indulging in money-lending. He had lent an amount of Rs. 50,000/- to one Sunderbai Namdeo Kale. Deceased Subhash and his brother Satish (PW 2) were harassing Sunderabai on account of money transaction. The dispute between Sunderabai and deceased Subhash was amicably settled by the intervention of accused No. 1 Bhausaheb. At the time of the said settlement, accused No. 1 abused PW 2 Satish and assaulted him. Satish, since then, was having animus against the accused persons. One week prior to the incident there was quarrel between the deceased Subhash and his brother Satish (PW 2) and one Jamlaya Bhosale. At that time, deceased Subhash and PW2 satish were labouring under the belief that Jamlaya Bhosale was being supported by accused No. 1. According to the accused persons, this was the reason for PW 2 Satish to give false evidence against them. Deceased Subhash according to the accused persons, was a known thief in the area. There was a case against Subhash regarding attempted railway robbery. According to the accused persons, this was the reason for PW 2 Satish to give false evidence against them. Deceased Subhash according to the accused persons, was a known thief in the area. There was a case against Subhash regarding attempted railway robbery. Many people from the village have filed cases against deceased Subhah. Deceased Subhash was suspecting that accused no. 1 used to give tips to the police. According to the accused persons, they have been falsely implicated in the case. They have no concern with deceased subhash. They have not borrowed any amount from deceased Subhash. ( 4 ) THE sessions trial commenced. The prosecution in support of its case examined nine witnesses. The trial Court convicted and sentenced the accused for offence punishable under section 302 read with section 34 of the Indian Penal code but acquitted of the offence punishable under section 3 (2) (v) of the atrocities Act as noted above. ( 5 ) WE have heard Shri A. R. Phadnis, learned Advocate for the appellants- accused and Shri Kishor Patil, learned Additional Public Prosecutor for the State. It is contended on behalf of the accused that undisputedly it is a case based on the circumstantial evidence. The circumstances alleged against the accused persons are two in number. The first circumstance, according to the prosecution, was that deceased Subhash was last seen alive in the company of the accused on 28-8- 1997. According to the prosecution, in the evening of 28-8-1997, the accused persons along with deceased Subhash left for settling the dispute to the office/house of Advocate Shri. Shivaji Kalane at Belwandi. Thereafter, deceased subhash was not seen alive and his dead-body was found. Another circumstance alleged on behalf of the prosecution is of finding of blood-stains of wearing apparel i. e. Dhoti of accused No. 1. The learned trial Judge accepted the first circumstance and convicted the accused persons as noted above. According to the learned Counsel for the accused, even the first circumstance i. e. deceased subhash was last seen alive in the company of the accused persons is not established. Regarding the blood-stains found on Dhoti of accused No. 1 bhausaheb, it is pointed out to us that the time of arrest of accused No. 1 bhausaheb, there were fresh injuries on his knees. Those injuries have been noted in the arrest panchanama (Exhibit 30 ). Regarding the blood-stains found on Dhoti of accused No. 1 bhausaheb, it is pointed out to us that the time of arrest of accused No. 1 bhausaheb, there were fresh injuries on his knees. Those injuries have been noted in the arrest panchanama (Exhibit 30 ). The blood of accused No. 1 Bhausaheb was not drawn by the police and sent for analysis. Finding of blood-stains on dhoti of accused No. 1 therefore, cannot be a clinching circumstance against accused No. 1 Bhausaheb. For eliminating this possibility, the prosecution ought to have drawn blood of accused No. 1 Bhausaheb and sent it for examination. The blood found on the clothes of deceased Subhash i. e. of A group is of no assistance to the prosecution. Even if the first circumstance is accepted to be proved, it is not sufficient since other links in the chain are missing. He therefore, seeks acquittal of the accused persons. ( 6 ) SHRI Kishor Patil learned Additional Public Prosecutor for the State, supports the judgment of the trial Court. According to him, PW 3 Jamir and PW 6 Bhiva are eye witnesses to the incident. In the present case, PW 3 Jamir and pw 6 Bhiva are declared hostile. However, their evidence cannot be rejected entirely. According to the learned Additional Public Prosecutor, deceased subhash was lastly seen alive in the company of the accused and it is for the accused to offer explanation. It is also pointed out that no probable explanation is given on behalf of the accused. On the contrary, the accused have offered false explanation and it provides a missing link. ( 7 ) WE have seen the record and the proceedings of the case. Admittedly, the prosecution case is based on the circumstantial evidence. The circumstance that Subhash was last seen alive in the company of the accused is tried to be established in the evidence of PW 2 Satish. Apart from the evidence of PW 2 satish, there is no other evidence led on behalf of the prosecution in support of the circumstance that deceased Subhash was last seen alive in the company of the accused on 28. 8. 1997 at 5 p. m. ( 8 ) AN omission in the statement of PW 2 Satish recorded during the course of investigation is brought on record in the cross-examination of PW 2 Satish. 8. 1997 at 5 p. m. ( 8 ) AN omission in the statement of PW 2 Satish recorded during the course of investigation is brought on record in the cross-examination of PW 2 Satish. PW 2 Satish admits that he did not tell the police in his statement that at about 12 noon he himself and his brother had gone to weekly market. However, the omission is not properly proved through the evidence of the Investigating officer. Fact that the deceased was last seen alive in the company of the accused is very relevant. This circumstance taken together with other independently proved circumstances forming a complete chain shall be sufficient for proving the commission of murder. This circumstance in itself alone, could not be made sole ground for conviction. In the present case, the prosecution did not examine the Advocate Shri Shivaji Kalne. His evidence could have been significant even for weighing time lag. ( 9 ) FROM the record we find that accused No. 2 Rajendra and accused No. 3 pandurang were arrested on 30. 8. 1997 under arrest panchanama at Exhibit 12, and Exhibit 13, respectively. Accused No. 1 Bhausaheb was arrested on 29-8- 1997 under arrest panchanama (Exhibit 30 ). Though the panch witness examined on behalf of the prosecution are not supporting the prosecution case, the panchanama have been established in the evidence of PW 8 Shirish. It is clear from the arrest panchanama at Exhibit 30 that there was blood stain on Dhoti worn by accused No. 1 Bhausaheb. Fresh injuries on both the knees of accused no. 1 were, however, noted in the said panchanama at Exhibit 30, Dhoti seized under panchanama (Exhibit 30) along with other incriminating articles was forwarded to the Forensic Science Laboratory. From the perusal of the report (Exhibit 36), it does appear that Dhoti seized from accused No. 1 was stained with blood of A group. The stone and other articles along with shirt and pyjama of deceased (which were also blood-stained) were sent for analysis. They were also found to have stains of blood of A group. Since fresh injuries were noted on the knees of accused No. 1 and blood of accused No. 1 was not drawn and sent for analysis the possibility of blood-stains of blood of accused No. 1 on said dhoti cannot be ruled out. They were also found to have stains of blood of A group. Since fresh injuries were noted on the knees of accused No. 1 and blood of accused No. 1 was not drawn and sent for analysis the possibility of blood-stains of blood of accused No. 1 on said dhoti cannot be ruled out. ( 10 ) THUS, the second circumstance i. e. Dhoti of accused No. 1 Bhausaheb found stained with blood of A group cannot be said to be an incriminating circumstance against the accused No. 1. The first circumstance even if accepted to be proved, in our considered view is not sufficient to sustain the conviction. In the absence of any other circumstance or links it cannot be said that the circumstances alleged and proved by the prosecution are sufficient to form a complete chain pointing out guilt of the accused persons alone. ( 11 ) IT is apposite to refer to the judgment of the Apex Court in the case of bharat vs. State of M. P. , 2003 (3) SCC 106 . The circumstances alleged in bharats case (supra) have been detailed by the Apex Court in paragraph 7 of the judgment, which is reproduced hereinbelow :"7 The two circumstances on the basis whereof the appellant has been convicted are : (i) the appellant having last seen with the deceased and recovery of ornaments made at his instance. "thus, in Bharats case (supra) there were only two circumstances alleged by the prosecution. The first circumstance was that deceased was last seen in the company of the accused and the second circumstance was of recovery of ornaments at the instance of the accused. The Apex Court, however, recorded a finding that the circumstance of recovery of ornaments made at the instance of accused is not established and therefore, conviction cannot be maintained alone on the first circumstance i. e. appellant having been last seen in the company of the deceased. According to us, the facts of the case at hand are identical to the facts in Bharats case (supra) and therefore, ratio of the said judgment of the apex Court squarely applies to the present case. The prosecution case was of eye-witness account. PW 3 Jamir and PW 6 bhiva Kalane are eye-witnesses. They turned volte-face. In this fact-situation, the prosecution cannot resort to section 106 of the Evidence Act. The prosecution case was of eye-witness account. PW 3 Jamir and PW 6 bhiva Kalane are eye-witnesses. They turned volte-face. In this fact-situation, the prosecution cannot resort to section 106 of the Evidence Act. For this proposition, we may refer to the judgment of the Apex Court, in the matter of murlidhar and others vs. State of Rajasthan, reported in AIR 2005 SC 2345 . ( 12 ) WE have perused the judgment of the trial Court. It appears that the trial Court has considered the evidence of witnesses who were declared hostile at the instance of the prosecution. True it is that the evidence of the quisling witnesses cannot be rejected in its totality. We have examined the evidence of pw 3 Jamir and PW 6 Bhiva in the present case. The evidence of these witnesses is not of any assistance to the prosecution. We are not rejecting the evidence of these witnesses simpliciter branding them as hostile witnesses. For sustaining conviction under section 34 of the Indian Penal Code, the facts should firmly and wholly warrant the inference that more than one accused persons acted in furtherance of common intention of all; they must be wholly incompatible with the contrary inference and incapable of being explained on any other reasonable hypothesis. We may say that there is no such material on record against the accused. ( 13 ) IN the result and for the aforesaid findings, the appeal filed by the accused needs to be allowed by quashing and setting-aside the impugned judgment and order of conviction and sentence of the accused for offence punishable under section 302 read with section 34 of the Indian Penal Code. ( 14 ) ACCORDINGLY, the appeal is allowed. The conviction and sentence of the accused for offence punishable under section 302 read with section 34 of the indian Penal Code in Sessions Case No. 171 of 1997 is quashed and set-aside. The accused are acquitted of the offence with which they were charged, tried and convicted. Fine, if paid by the accused, shall be refunded to them. The bail bonds of the accused stand cancelled. Appeal allowed.