JUDGMENT : B.N. Agrawal, J. - Heard learned counsel for the parties. 2. The Trial Court convicted appellant-Anokh Singh and accused- Sanjay Yadav under Section 302 read with Section 34 of the Indian Penal Code [for short, 'the Indian Penal Code'] and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/- each; in default, to undergo rigorous imprisonment for a period of six months. They were further convicted under Section 392 Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs. 500/- each; in default, to undergo rigorous imprisonment for a period of three months. Both the sentences were, however, ordered to run concurrently. On appeal being preferred, High Court confirmed the convictions. So far as accused-Sanjay Yadav is concerned, it appears that he did not move this Court and the present appeal by special leave has been filed by appellant-Anokh Singh alone. In the present case, undisputedly, there is no eye witness to the occurrence and convictions of both the accused persons are based upon circumstantial evidence. 3. First circumstance alleged against the accused is that the deceased-Jaspal Singh @ Babbu was last seen in the company of the two accused persons. To prove this circumstance, the only evidence is that of Wassan Singh-P.W.2, who has stated in the evidence that he had seen the two accused persons driving tonga of deceased Jaspal Singh. Nowhere in the evidence this witness stated that the deceased was also seen along with the accused persons in the tonga. That apart, there is no other evidence in support of this circumstance. This being the position, we are of the view that the prosecution has failed to prove this circumstance against accused persons. 4. Another circumstance which the prosecution has tried to prove against the accused is that recovery of tonga and mare from the possession of the accused person. In this regard, the only evidence adduced is that of S. Surinder Singh (P.W.8), who was Station House Officer at the relevant time, and stated that one Ajaib Singh, Lumberdar, produced the accused persons along with tonga and mare. So far as Ajaib Singh is concerned, he has not been examined and no explanation is forthcoming for non-examination of this witness who is said to have produced the accused persons before P.W.8 along with tonga and mare. So far as Ajaib Singh is concerned, he has not been examined and no explanation is forthcoming for non-examination of this witness who is said to have produced the accused persons before P.W.8 along with tonga and mare. From the evidence of this witness, it cannot be said that the tonga and mare were recovered from the possession of the accused persons. This being the position, we have no option but to hold that the prosecution has failed to prove this circumstance as well. 5. The last circumstance is that footmarks of the appellant were found near the place of occurrence. In support of this circumstance, the only evidence is that of Wassan Singh, P.W.2 who stated that on the date of occurrence, i.e., 30th October, 1999, several persons assembled at the place of occurrence and the footmarks were lifted from the place of occurrence on the next day, i.e., 31st October, 1999. From this fact, it cannot be inferred that the accused persons were the assailants. 6. In any view of the matter, the same at the highest may show that the accused persons might have assembled there which may be along with other villagers after the alleged occurrence. This being the position, we have no difficulty in holding that the prosecution has failed to prove this circumstance also. 7. In view of the foregoing discussion, we are of the view that prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in upholding convictions of both the accused persons. Though only appellant-Anokh Singh moved this Court and accused Sanjay Yadav has not filed any special leave petition against his conviction, but as his case also stands on the same footing, he is also entitled to the same benefit, in spite of the fact that he has not moved this Court. 8. Accordingly, the appeal is allowed, convictions and sentences of the appellant and accused-Sanjay Yadav are set aside and they are acquitted of all the charges. The appellant, who is in custody, is directed to be released forthwith, if not required in connection with any other case. So far as accused-Sanjay Yadav is concerned, in case he is still in custody, he is also directed to be released forthwith, if not required in connection with any other case.