Judgment B.C. Kandpal, J. Both these appeals arising out of the same judgment were taken up for hearing together and are being disposed of by this common judgment. 2. The accused 1 appellants have been convicted by the judgment and order dated 11-2-1988, passed by Add!. Sessions Judge, Nainital, in ST No. 131/1984, whereby both the appellants were convicted U/S 302/341.P.C. and were sentenced to undergo imprisonment for life and to pay a fine of Rs. 20001- each and in default of payment of fine to further undergo four months S.1. Appellant Surjit Singh was further convicted U/S 25 of the Arms Act and was sentenced to undergo three months R.1. All the sentences were to run concurrently. 3. Briefly stated the prosecution case is that on 13-11-1985, complainant Khim Singh lodged a written report, Ext. Ka. 1 at the Police Station, Kaladhungi with the allegations that on 12-11-1985 he had gone to Village Haripura and at about 10 P.M. he returned to his house from Haripura then he saw that his younger brother Vinod Kumar was lying dead due to injuries on his person and on enquiry Dhyan Singh his another younger brother, his sister and children told him that at about 6 P.M. accused Surjit Singh and Anand Sherpa took Vinod Kumar to the plot. At about 9.30 P.M. Lachhaman Singh told them that shrieks of some person were coming out from a plot where chowkidars live and on this information his brother Dhyan Singh and Madho Ram, a neighbour and his sister Padma Devi rushed to the spot and they brought his brother to the home whose condition was precarious and after some time, he breathed his last. On the basis of the written report, police registered a case U/S302 IPC. against the accused persons on 13-11-1985 at 7.30A.M. Thereafter, J.S. Aswal, S.O. along with other police personnel proceeded to the spot for investigation. The S.O.. prepared Panchayatnama, Ext. Ka. 2 of the dead body in the presence of witnesses. The dead body was sealed on the spot and sent for postmortem. The police also took into possession bloodstained cloth3s of the deceased, viz. an old pant, one shirt, under shirt (material exhibits 2, 3 and 4) and prepared recovery memo, Ext. Ka.3. The Police also took possession of sweater Uersey) (Ext.1) of the accused Surjit Singh from the spot, vide recovery memo, Ext. Ka.4. The police also took into possession bloodstained cloth3s of the deceased, viz. an old pant, one shirt, under shirt (material exhibits 2, 3 and 4) and prepared recovery memo, Ext. Ka.3. The Police also took possession of sweater Uersey) (Ext.1) of the accused Surjit Singh from the spot, vide recovery memo, Ext. Ka.4. The I.O. also took into possession the simple and blood-stained earth at the spot (material Exts.6 and 7) vide recovery memo Ext. Ka.5. On 13-11-1985 the I.O. arrested the accused Surjit Singh and during interrogation he confessed his guilt and recovered the weapon of assault, i.e. knife (Ext.5) at the pointing of accused Surjit Singh from nearby the place of occurrence, hidden underneath the grass. The I.O. prepared recovery memo Ext. Ka.6 and sealed the knife and submitted it at the police station, entry of which was made in the GD. by the Head Constable Gopal Dutt, copy of which is Ext. Ka. I.O. The I.O. also prepared site-plans, Ext. Ka.11 of the place of the occurrence and Ext. Ka.12 of the place from where the accused Surjit Singh handed over the knife to the I.O. The recovered articles were also sent to Agra for chemical examination. On completion of investigation the I.O. submitted charge sheet, Ext. Ka.13 against the accused persons. 4. On committal of the case, learned Sessions Judge framed charge U/S 302 read with Section 34 I.P.C. against the accused persons, to which they pleaded not guilty and claimed to be tried. 5. The prosecution to establish its case produced P.W.1, Khim Singh, P.W.2, Smt. Padma Devi, P.W.3, Dhyan Singh, P.W.4, Smt. Tara Devi, P.W.5, Chandra Sen, P.W.6, Narain Chandra, P.W.7, H.C. Gopal Datt, P.W.8, Dr. J.S. Pangtey and P.W.9, Jagdish Singh Aswal. 6. P.W.1, Khim Singh is the complainant. He has deposed as to how he got the information about the death of his brother Vinod Kumar on his return from Village Haripura on the day of the occurrence. He deposed that the report of the incident was lodged by him at 7 A.M. on 13-11-1985 at P.S. Kaladhungi. 7. P.W.2 Smt. Padma Devi and P.W. 3, Dhyan Singh, both have narrated that on the day of the occurrence at about 6 P.M. their brother Vinod Kumar was called and taken by the accused persons from their house and took him towards the plot. Thereafter Vinod Kumar did not return back. 7. P.W.2 Smt. Padma Devi and P.W. 3, Dhyan Singh, both have narrated that on the day of the occurrence at about 6 P.M. their brother Vinod Kumar was called and taken by the accused persons from their house and took him towards the plot. Thereafter Vinod Kumar did not return back. At about 8 P.M. Lachhman Singh came to them and told that some shrieks were coming out from the plot. On this they both along with neighbour Madho Ram went to the plot and saw that Vinod Kumar was lying naked having injuries on his person. His clothes were blood-stained. Thereafter they brought Vinod Kumar to their house where he breathed his last. In the night on the same day at about 9.00 P.M. their brother Khim Singh reached there and he was told the whole incident. 8. P.W. 4, Smt. Tara Devi, has deposed that the deceased was her 'Dewar'. This witness also corroborated the statement as given by P.W.2 Smt. Padma Devi. 9. P.W.5, Chandra Sen is the witness of recovery of jersey, pant, shirt and undershirt. He also proved the recovery memos Ext. Ka.3 and Ka.4. He also proved the fard taking into possession of simple and blood-stained earth. Ext. Ka.5. This witness further has deposed that knife, Ext. 5 was recovered at the instance of accused Surjit Singh from the spot and fard, Ext. Ka.6 was also prepared on the spot. 10. P.W.6, Narain Datt is the witness of inquest and also of the recovery of various articles during the investigation. He has narrated about the recovery made by the police. 11. P.W.7, H.C. Gopal Datt has prepared the chick report, Ext. Ka.7 on the basis of the written complaint and proved the entry regarding report No.8 dated 13-11-1985, Ext. Ka.8. 12. P.W.8, Dr. J.S. pangtey has conducted post mortem examination on the dead body of Vi nod Kumar on 14-11-1985, at 11 A.M. in the Civil Hospital Haldwani. The Medical . Officer found the following anti mortem injuries on the person of the deceased: 1. Lacerated wound 2 x 1 cm x muscle deep, right side of forehead, %cm above right eyebrow, clotted blood present. 2. Bruising 3 x % cm in area of outside of forehead and right side of fore head, 2% above right eye brow reddish in colour. 3. Lacerated wound 2 x 1 cm x muscle deep, right side of forehead, %cm above right eyebrow, clotted blood present. 2. Bruising 3 x % cm in area of outside of forehead and right side of fore head, 2% above right eye brow reddish in colour. 3. Lacerated wound 2% cm above left side of lower face above left lower jaw at its middle. 4. Abrasion 4 x 2cm on back of right arm, 6cm above right elbow joint. 5. Multiple abrasion on lower right side of chest, upper abdomen both front and back in size 10 x2cm to 5cm x 2cm redish in colour. 6. Bruise on the right side of upper thigh front of hip joint. Redish in colour 5cm x 2cm in size. 7 Bruise 15cm x 10cm front of right thigh on lower % of right thigh. 8. Compound injuries and fracture of bone in seven pieces 15cm x 1 cm front of lower half of right legs. 9. Lacerated wound 4cm x %cm on front of left legs at muscle deep 15cm above left ankle joint. 10. Lacerated wound 8cm x 1 cm x bone deep on front of left leg, 8cm above left ankle joint. 11. Bruises in front of left hip joint variable in size 2 x %cm, 1 cm x %cm reddish in colour extending in an area of 10cm x 4cm left hip joint. The Medical Officer has opined that the death was caused due to anti-mortem injuries sustained by the deceased. The doctor has deposed that there was no injury of knife on the person of the deceased. He has proved the post mortem report, Ext. Ka.9. 13. P.W.9, Sri J.S. Aswal is the Investigating Officer of the case. He has proved the various prosecution papers prepared by him during the investigation and has stated about the investigation carried by him. 14. The accused persons in their statements U/S 313 Cr.P.C. have denied the prosecution allegations and have stated that the witnesses have deposed falsely against them due to enmity. Accused Surjit Singh has also alleged that he has been falsely implicated in the case as the complainant party wanted to grab his land. 15. The learned Sessions Judge on appreciation of material on record found both the accused persons guilty U/S 302/34 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs. Accused Surjit Singh has also alleged that he has been falsely implicated in the case as the complainant party wanted to grab his land. 15. The learned Sessions Judge on appreciation of material on record found both the accused persons guilty U/S 302/34 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 2000/- each and in default of payment of fine further to undergo four months S.I. Accused appellant Surjit Singh was further convicted U/S 25 of the Arms Act and sentenced to undergo three months R.I. All the sentences were to run concurrently. 16. Feeling aggrieved the accused/appellants have preferred the appeal before the Allahabad High Court which was subsequently transferred to this Court for disposal after creation of new State. 17 . We have heard the learned counsel for the parties and perused the record. 18. This case rests on circumstantial evidence. The prosecution has come forward with three circumstances against the appellants in order to connect them with the crime. The first circumstance is that the victim was lastly seen in the company of the accused/appellants, second is that one Jersey (Jacket) belonging to the accused/appellant - Surjit Singh was recovered from the place of occurrence and the third circumstance is that one knife allegedly used during the commission of crime was handed over to the police by the appellant - Surjit Singh confessing his involvement in the crime and also confessing that the victim was done to death with the help of this knife. 19. The prosecution in order to establish the aforesaid circumstances examined nine witnesses, namely, P.W.1 Khim Singh, who lodged the written report to the police informing the murder of his brother Vinod Kumar. P.W.2 Smt. Padma Devi, elder sister of victim Vinod Kumar on the point of last seen as she has stated that the appellant Surjit Singh and his another associate Anand Sherpa took the victim Vinod Kumar from his house. She has also deposed that one Lachhaman Singh informed her that some shrieks were coming out of the plot where he was deputed as a choukidar and on this information she along with her brother Dhyan Singh and one Madho Ram went to the plot where Vinod Kumar was lying naked with injuries on his person. P.W.3 Dhayan Singh and PW. P.W.3 Dhayan Singh and PW. 4 Smt. Tara Devi produced by the prosecution have deposed that accused/appellant Surjit Singh and his associate Anand Sherpa took Vinod Kumar from his house and subsequently one Lachhaman Singh informed them that some shrieks were coming out of the plot, on which they went to the spot and saw the victim in an injured condition. PW.5 Chandra Sen is the witness of the recovery of Jersey (Jacket) from the scene of the occurrence. The prosecution has alleged that Jersey (Jacket) recovered from the scene of the occurrence, belongs to the accused/appellant - Surjit Singh. P.W.6 Narain Datt is a witness of the inquest memo and recovery of shirt and pant belonging to the deceased. P.W. 7 H.C. Gopal Datt is a witness who prepared the chick report. P.W. 8 Dr. J.S. Pangtey has conducted the postmortem on the body of Vi nod Kumar. PW. 9 Sri J.S. Aswal is the Investigating Officer who investigated the matter and submitted the chargesheet against the accused/appellant. 20. Now, it is to be seen whether all the links in the chain of circumstances are complete and as to whether on the basis of the circumstances an inference of guilt can be drawn and in case, if all the circumstances taken into account cumulatively form a chain so complete that there is no escape from the conclusion that within all human probability the crime is committed by the accused / appellants and none else. 21. P.W.2 Smt. Padma Devi as well as P.W. 4 Smt. Tara Devi respectively stated that on the date of occurrence at about 06:00 p.m. accused/appellants - Surjit Singh and Anand Sherpa came to the house of Vinod Kumar and took him with them on some pretext. These witnesses have also deposed that the accused/appellants took Vinod Kumar to the plot. These witnesses have further deposed that after about two hours, one Lachhman Singh came to their house and informed that some shrieks were coming out of the plot. On this information P.W.2 Smt. Padma Devi, P.W. 4 Smt. Tara Devi and P.W.3 Dhyan Singh went to the plot. Lachhman Singh was also accompanying them. After reaching the plot they saw that Vinod Kumar was lying naked with the injuries on his person. Ttlese witnesses have thereafter deposed that they took Vinod Kumar to their house and after some time Vinod Kumar succumbed to injuries. Lachhman Singh was also accompanying them. After reaching the plot they saw that Vinod Kumar was lying naked with the injuries on his person. Ttlese witnesses have thereafter deposed that they took Vinod Kumar to their house and after some time Vinod Kumar succumbed to injuries. 22. The prosecution has further tried to complete the chain by adducing the evidence to this effect that one Jersey (Jacket) belonging to the appellant - Surjit Singh was also found having blood stains in it at the scene of the occurrence, and P.W. 5 Chandra Sen was produced as a witness in order to prove the recovery of the Jersey (Jacket) belonging to the accused/ appellant at the spot. This witness has stated in his examination-in-chief that he does not know as to whom the recovered Jersey (Jacket) belonged. He has admitted his signature over the recovery memo of the Jersey (Jacket) but nothing has come out in his deposition which may connect the recovered Jersey (Jacket) with the accused/appellant - Surjit Singh. This witness nowhere has stated that he had actually seen accused/appellant - Surjit Singh wearing this Jacket before the aforesaid occurrence. 23. The prosecution has tried to establish this fact that Jersey (Jacket) recovered from the spot in fact belonged to the accused/appellant - Surj it Singh on the basis of the statement of PW.1 Khim Singh, who has stated that the Jersey (Jacket) recovered in his presence and he also put his signature over the recovery memo pertaining to the Jersey (Jacket) and the other clothes belonging to the deceased Vinod Kumar. The deposition of this witness does find corroboration with the Ext. Ka. 3 which is the recovery memo pertaining to the Jersey (Jacket) as the recovery memo does not contain the signature of Khim Singh, P.W.1. 24. It is worthy to mention here that this recovery memo contains the signature of P.W.5 Chandra Sen in whose presence it is alleged by the prosecution that the Jersey (Jacket) belonging to the accused/appellant - Surjit Singh was recovered from the scene of the occurrence. Therefore, there is no cogent and plausible evidence establishing this fact that the Jersey (Jacket) which was recovered from the scene of the occurrence actually belongs to the accused/ appellant - Surjit Singh or not. 25. Therefore, there is no cogent and plausible evidence establishing this fact that the Jersey (Jacket) which was recovered from the scene of the occurrence actually belongs to the accused/ appellant - Surjit Singh or not. 25. The prosecution has also tried to establish the guilt of the accused/appellants on the basis of this circumstantial evidence that the knife allegedly used in the commission of crime was also recovered on the pointing out of the accused/appellant - Surjit Singh. So far as the recovery of knife is concerned, although the recovery is supported by an independent witness - P.W. 6 Narain Datt and P.W.9 Dr. J.S. Aswal-Investigating Officer but from the perusal of the recovery memo which is Ext.Ka3 it transpires that the Investigating Officer did not make the recovery of the knife under Section 27 of the Indian Evidence Act. Hence no confessionary part of recovery memo which is Ext. Ka.3 can be used against the accused/ appellants. The alleged recovery of the knife becomes useless in the light of the evidence of Dr. J.S. Pangtey who has clearly deposed in his evidence that no knife injury was found on the person of victim - Vi nod Kumar. This witness has conducted autopsy on the body of the deceased - Vinod Kumar. Therefore, we do not have any hesitation in coming to the conclusion that neither the confession made to the Police Officer by the accused/appellant - Surjit Singh is available for any help to the prosecution nor the stress that one knife was recovered from the possession of the accused Surjit Singh is available to the prosecution to connect the accused/ appellants with the guilt of murder. 26. The Hon'ble Apex Court in a catena of decisions has held that in a case of circumstantial evidence, the circumstances must be proved beyond reasonable doubt and must be shown to be closely connected with the principal fact. The chain of incriminating circumstances must be consistent only with the hypothesis of guilt of the accused. 27. Having regards to the nature of circumstantial evidence adduced by the prosecution, we are of the view that the inference of the guilt of the accused/appellants could have justified only when all the incriminating facts and circumstances were found to be incompatible with the innocence of the accused or the guilt of any other person. 27. Having regards to the nature of circumstantial evidence adduced by the prosecution, we are of the view that the inference of the guilt of the accused/appellants could have justified only when all the incriminating facts and circumstances were found to be incompatible with the innocence of the accused or the guilt of any other person. The cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offence seen alone in this case is not of a conclusive nature. The conviction on the basis of only last seen would not be safe unless it is corroborated by the other clinching and cogent connected circumstances. 28. As we have discussed that the evidence of last seen only is available in this case, and the factum of recovery of Jersey (Jacket) allegedly belonging to the appellant - Surjit Singh is not inspiring confidence as in view of the evidence adduced by the prosecution it is not clear that the Jersey (Jacket) recovered from the place of occurrence in fact belongs to the accused/appellant - Surjit Singh and non-else. 29. It is to be noted here that the deceased was found in fact in an injured condition at the scene of the occurrence. It is also note worthy that the injuries on the person of the deceased could not have been caused by the knife which is allegedly recovered on the pointing out of the accused/appellant - Surjit Singh in the instant case. Therefore, the prosecution on the basis of the strength of evidence, could not establish the second and third circumstances. 30. The prosecution has also not produced any evidence in order to show that in what manner this incident had taken place. It has come in the evidsnce of P.W.1 Khim Singh, p.w.2 Smt. Padma Devi, P.W.3 Dhyan Singh and P.W.4 Smt. Tara Devi that Lachhman Singh was deputed as a Chaukidar of the plot, where the victim was found in an injured condition. Lachhman Singh - Chaukidar informed these witnesses that some shrieks were coming out from the plot and when these witnesses reached at the spot they found Vinod Kumar lying injured over there. Lachhman Singh, Chaukidar of the plot was the best witness to show that actually in what manner the incident had actually taken place. Lachhman Singh - Chaukidar informed these witnesses that some shrieks were coming out from the plot and when these witnesses reached at the spot they found Vinod Kumar lying injured over there. Lachhman Singh, Chaukidar of the plot was the best witness to show that actually in what manner the incident had actually taken place. This witness has not been produced by the prosecution for the best reason known to it. Therefore, the prosecution is absolutely silent on this aspect of the matter as to how and in what manner, the incident in fact had taken place. P.W. 4 Smt. Tara Devi has deposed in her cross-examination that Lachhman Singh disclosed the name of the accused persons. She also deposed that when Lachhman Singh came to her house at about 09:00 p.m. then he disclosed the name of the accused persons. The deposition of this witness does not find corroboration with the evidence of other witnesses as none of the other witnesses produced by the prosecution have stated that Lachhman Singh in fact disclosed the name of the accused/appellants as assailants. Non-production of the material witness like Lachman Singh who could have thrown the light on the prosecution case with regard to the factual aspect, gives a serious jolt to the genesis of the prosecution case and withholding of this material witness creates an adverse inference about the prosecution case. 31 . We also again take a note to this aspect of the matter that according to the prosecution witnesses Vinod Kumar - injured was lying naked at the place of occurrence and the injured was taken to the house by the witnesses. The injured after sometime succumbed to injuries. Therefore, all the witnesses had sufficient opportunity to enquire about the actual occurrence from the injured itself but none of the witnesses have deposed in the evidence that they in fact tried to know from the injured as to how he sustained injuries. It is not the case of the prosecution that the injured Vinod Kumar was unconscious when the witnesses reached at the place of occurrence. It is also not the case of the prosecution that the injured was not in a position to speak till he died. Therefore, it is quite surprising that none of the witnesses made any effort to know about the real culprit and this circumstance again creates a doubt on the prosecution story. 32. It is also not the case of the prosecution that the injured was not in a position to speak till he died. Therefore, it is quite surprising that none of the witnesses made any effort to know about the real culprit and this circumstance again creates a doubt on the prosecution story. 32. From the above discussion we come to the conclusion that no inference of guilt of the accused/appellants can be drawn by the circumstances adduced by the prosecution. The circumstances in instant case are not forming a complete chain, which may suggest that there is no escape from the conclusion that within all human probability the crime is committed by the accused/appellants and none else. 33. The evidence available on record are insufficient and to our opinion the conviction cannot be held on the basis of the circumstantial evidence produced by the prosecution in this case. 34. The only evidence of last seen is not sufficient to warrant the conviction in absence of cogent and convincing corroborative evidence. 35. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the prosecution cannot be said to have established the guilt of the appellants herein beyond all shadow of doubt. The prosecution story has a large number of loopholes and thus, we have no other option but to hold that the appellants are entitled to the benefit of doubt. 36. We therefore, set aside the impugned judgment and order dated 11-02-1988 passed by the trial court convicting the accused/appellants under Section 302/34 I.P.C. 37. Thus both the appeals are allowed, the conviction and sentence imposed against the appellants is hereby set aside. 38. The appellants are on bail. They need not surrender. Their bail bonds and sureties stand discharged. * * *