JUDGMENT Hon’ble Shiv Charan, J.—The instant appeal has been instituted against the judgment and order dated 29.7.2005 passed by Addl. Sessions Judge/Fast Track Court No. 1, Firozabad in S.T. No. 402 of 2002. By the impugned judgment and order learned Sessions Judge convicted the appellants Lala and Sonu for the offence punishable under Section 302, I.P.C. and sentenced to life imprisonment alongwith fine of Rs. 2,000/- in default two months imprisonment. The accused persons further convicted for the offence under Section 201, IPC and sentenced to three years, R.I. and fine of Rs. 1,000/-. 2. Brief narration of the facts of the case are as follows : Rakesh Kumar Bharti lodged F.I.R. at the police station Eka on 16.3.2002 at about 10.30 a.m. with the allegations that his brother Suresh Chand is posted as Seasonal Collection Amin at Tahsil. On 15.3.2002 at about 10.00 a.m. Suresh Chand alongwith his peon Manoj Kumar went at Tahsil for the official work by Motor-cycle. Both of them returned from tahsil Jasrana at Pardham at 6.00 p.m. At village Pardham Suresh Chand told to Manoj to go to his village on Motor-cycle and he will come afterwards. At about 8.00 p.m. Manoj Kumar went from there on Motor-cycle and Suresh Chand stayed back at Pardham but Suresh Chand did not return at the house in the evening and night. In the morning on search dead-body of the deceased was recovered from Arind river at Pardham on the way to Nagla Kund near the bridge. Near the dead-body cycle and Basta were lying. Manoj Kumar informed that at about 7.00 p.m. when he was returning at his house on the road going towards Nagla Kund, he found that Suresh Chand was talking with Sonu and Lala resident of Pardham. As there was recovery against Sonu and Lala, Suresh Chand demanded the money from them some days earlier. Both of them resisted and threatened Suresh Chand to eliminate him within a week. Suresh Chand told about it at the house. At that time Manoj was also present. Due to this enmity these accused persons committed murder of Suresh Chand by strangulation as well as by causing knife injuries. 3. On this F.I.R. after registration of the case, investigation was entrusted to S.I. Raj Pal Singh, the then Station Officer. Suresh Chand told about it at the house. At that time Manoj was also present. Due to this enmity these accused persons committed murder of Suresh Chand by strangulation as well as by causing knife injuries. 3. On this F.I.R. after registration of the case, investigation was entrusted to S.I. Raj Pal Singh, the then Station Officer. During investigation he prepared inquest report of the dead-body alongwith other documents and sent the dead-body for post-mortem. He prepared Fard recovery of the articles lying on the spot. He also prepared site plan of the place of incident. On 19.3.2002 both the accused persons were arrested by him and on their pointing out knives weapon of committing the offence were recovered. Fard recovery was also prepared. He recorded the statement of other witnesses and performed other formalities and on the basis of the result of investigation he submitted charge-sheet against the accused persons. 4. Prosecution examined Manoj Kumar P.W. 1, Rakesh Kumar Bharti P.W. 2, Moti Lal P.W. 3, Kripal Singh P.W. 4 as the witness of the fact. Rakesh Kumar P.W. 2 also proved written F.I.R. Ex. Ka-1, Fard of cycle Ex. Ka-2, Supurdginama Ext. Ka-3, Moti Lal P.W. 3 is a witness of inquest report and other documents. He proved the inquest report Ex. Ka-4, Fard of simple and blood stained earth Ext.Ka-5 and Ka-6, Supurdginama Ext. Ka-7. Constable Bhupendra Singh P.W. 5 is a formal witness. He took the dead-body alongwith inquest report and other papers for post-mortem. He did not permit any body to touch or temper with the dead-body and proved Ext. Ka-4 also. HCP Mahesh Chand Gaud P.W. 6 is a witness of the factum of recovery of the weapon at the pointing of accused persons. He proved the Fard recovery Ext. Ka-5, knives and clothes Ext.1 to 4. Constable Veer Pratap P.W. 7 is also a formal witness. He prepared the chik F.I.R. Ext. Ka-6 and copy of G.D. Ext. Ka-7 Nanhe Ram P.W. 8 was the Nayab Tahsildar of Tahsil Jasrana. He is a witness of motive also and after knowing about the recovery of dead-body of Suresh Chand he visited at the spot. Fard Ext. Ka-7 was also prepared in his presence. Dr. R.K. Garg P.W. 9 conducted the post-mortem of the deceased. He proved the post-mortem report Ex. Ka-8 and clothes and other articles recovered from the dead-body Ext. 5 to 13. Fard Ext. Ka-7 was also prepared in his presence. Dr. R.K. Garg P.W. 9 conducted the post-mortem of the deceased. He proved the post-mortem report Ex. Ka-8 and clothes and other articles recovered from the dead-body Ext. 5 to 13. S.I. Raj Pal Singh P.W. 10 is the Investigating Officer. He proved the document inquest report Ex. Ka-4, challan Nas, Photo lash report to CMO Ext. Ka-9 to Ext. Ka-12, Fard Ext. Ka-2, Supurdginama Ext. Ka-3, Fard Ex. Ka-5 and Ka-6, simple and blood stained earth Ext. 15 to 20 site plan and Ext. Ka-13 Supurdginama Ext. Ka-7, Fard recovery of knife Ext. Ka-5, site plan of the place of recovery Ext. Ka-14, charge-sheet Ext. Ka-15. Bharat Singh P.W. 11 is the Investigating Officer of the recovery of knife. He proved the site plan of the place of recovery Ext. Ka-16 and Ka-17. Charge-sheet Ext. Ka-18 and Ka-19. 5. Accused appellants in their statement under Section 313, Cr.P.C. denied from the allegations of the prosecution. They have stated that they have been falsely implicated in this case due to enmity. No defence evidence was produced by the appellant accused persons. 6. We have heard learned Counsel for the appellants Sri Brij Raj Singh and A.G.A. Sri R.K. Singh and perused the entire material on record. 7. It has been argued by learned Counsel for the appellants that the entire case of the prosecution is based on circumstantial evidence and the evidence produced by the prosecution does not inspire reliance and from the circumstances alleged by the prosecution a complete chain has not been made out. Manoj Kumar P.W. 1 was the peon of deceased Suresh Chand and he was present with the deceased prior to the offence of murder. He has stated that deceased alighted from motor-cycle at village Padham and deceased stated that he will come afterwards and then Manoj Kumar went by his motor-cycle to his village. Seeing the speed of motor-cycle it was not possible for Manoj Kumar to see the deceased in the company of accused persons at village Padham at about 7.00 p.m. as has been stated by him and this fact shows that he is telling lie. Kripal Singh P.W. 4 is a close relation of the deceased and he has also stated that he also saw the deceased in the company of the accused persons on the date of incident. Kripal Singh P.W. 4 is a close relation of the deceased and he has also stated that he also saw the deceased in the company of the accused persons on the date of incident. But his statement is also not reliable. He is a closed-relation of the deceased and moreover, he has not stated this fact to the complainant prior lodging the FIR. The prosecution has also fabricated the evidence of recovery of the knives at the point out of the appellants but learned Sessions Judge disbelieved the factum of recovery of knives and both the appellants were acquitted for the offence under Section 4/25, Arms Art. Hence the evidence produced by the prosecution to prove the factum of recovery of knife shall not be considered at the appellate stage. He further argued that the factum of last seen was not put to the accused in the statement under Section 313, Cr.P.C. that there is no evidence against the accused appellants from which the inference can be drawn about the complicity of the accused persons in the offence. Learned A.G.A. opposed the argument of learned Counsel for the appellants and argued that the prosecution has produced the reliable evidence of Manoj Kumar and other witnesses and from the circumstances, only inference can be drawn of the complicity of the accused persons. 8. From the perusal of the averments of the prosecution it is obvious that the prosecution case is based purely on the basis of circumstantial evidence. There is evidence of last seen of the deceased in the company of the accused persons and there is evidence of motive available to the accused persons. It has also been stated above, that there is also the evidence produced by the prosecution about the recovery of the knives at the pointing out of accused. But this part of the prosecution story was disbelieved by the Sessions Judge and both the appellants were acquitted for the offence under Section 4/25, Arms Act. Hence that part of the evidence shall not to be considered. And for considering the complicity of the accused persons in the commission of offence of murder of Suresh Chand, the evidence of the factum of recovery is not to be considered. Undisputedly Suresh Chand deceased was working as Collection Amin at Tahsil Jasrana at the relevant period. Hence that part of the evidence shall not to be considered. And for considering the complicity of the accused persons in the commission of offence of murder of Suresh Chand, the evidence of the factum of recovery is not to be considered. Undisputedly Suresh Chand deceased was working as Collection Amin at Tahsil Jasrana at the relevant period. According to the averments of the FIR on 15.3.2002 in the morning Suresh Chand deceased went with his peon Manoj Kumar on his Motor-cycle on duty. In the evening deceased alongwith Manoj Kumar returned from Tahsil and Suresh Chand deceased got down from the Motor-cycle at village Padham and Suresh Chand stated that he will come afterwards and he may go by his Motor-cycle. Manoj Kumar went to his village on the Motor-cycle. But evidence has also been, produced of the fact that Manoj Kumar P.W. 1 while returning at his village from motor-cycle, saw the deceased talking with Sonu and Lala on the way to Nagla Kund near a pulia and he saw all the three persons and then went straightway to his village on motor-cycle. Manoj Kumar P.W. 1 has stated that on 15.3.2002 at about 7.00 p.m. returned at Padham on motor-cycle with Suresh Chand Amin and then Suresh Chand deceased went to his village Naya on cycle and he went at his house by motor cycle. But he further stated that when he was going to his village on motor-cycle at about 8.00 p.m. he saw the deceased in the company of the appellants. Thereafter on 16.3.2002 at about 8.00 p.m. when he returned from his village he saw the dead-body of Suresh Chand deceased Collection Amin lying in river and cycle and Basta were also lying near by. At that time Rakesh brother of the deceased was also present and he told to Rakesh that yesterday he saw the deceased in the company of Sonu and Lala talking near the place of incident. In cross-examination he admitted that he did not see any body to commit murder of Suresh Chand deceased. Both of them stayed at the S.T.D. of Verma at village Padham near Bus stand. From there both of them started simultaneously. Amin started on his cycle and he started on his motor-cycle. In cross-examination he admitted that he did not see any body to commit murder of Suresh Chand deceased. Both of them stayed at the S.T.D. of Verma at village Padham near Bus stand. From there both of them started simultaneously. Amin started on his cycle and he started on his motor-cycle. They reached at the Bus Stand at 5.30 p.m. and from that place, the place of incident is at a distance of 15-20 minutes about 2 km. He reached at about 8.00 p.m. at his house. No written information was given that he saw the deceased alongwith accused persons. It is also a fact that he has not stated in his statement under Section 161, Cr.P.C. that he saw the deceased in the company of accused persons prior to the incident. But this witness has stated that he stated this fact to the Investigating Officer and could not state the reason as to why the I.O. has not mentioned this fact. 9. This argument of learned Counsel for the appellants appears worth reliable that there is no possibility for this witness Manoj Kumar to see the deceased with accused persons talking on the road while this witness went by motor-cycle and the deceased by cycle. When the deceased get down from the motor-cycle in order to go to his village on his cycle and immediately after leaving the deceased at village Padham this witness is possible to go to his village on the motor cycle. There is a difference in the speed of the motor-cycle and cycle. If two persons will start from one place one by motor-cycle and another by cycle then there is no possibility that the person who had started on cycle will meet the person who had started on motor-cycle. The possibility is that the person who started on cycle shall reach later on, whereas the motor-cycle rider had already reached at that place. We agree with the argument of learned Counsel for the appellants that there is no possibility of Manoj Kumar to see the deceased alongwith accused persons. 10. Rakesh Kumar Bharti is the real brother of the deceased and this witness has not stated that he also saw the deceased in the company of accused persons after getting down from the motor-cycle at Padham. His entire statement is based on the information furnished by Manoj Kumar. 10. Rakesh Kumar Bharti is the real brother of the deceased and this witness has not stated that he also saw the deceased in the company of accused persons after getting down from the motor-cycle at Padham. His entire statement is based on the information furnished by Manoj Kumar. Hence we are of the opinion that Rakesh Kumar Bharti was not the witness of last seen and this witness has also admitted in his cross-examination that he is not an eye-witness of the incident and that he did not see any event relating to the incident. Kripal Singh P.W. 4 is also a witness of last seen. Learned Counsel for the appellants argued that he is also close relation of the deceased. This witness went at Achalpur to his relation and he returned from there on the same date at about 2.00 p.m. He returned at 4.00 p.m. at Padham. He had to met one person at Padham at the shop of Raj Pal. He had been waiting at that shop and stayed there for about three and half hours. When Raj Pal closed his shop then he alongwith Raj Pal reached at about 7.45 p.m. At Mustafa Bagh road. He saw at the pulia of Kund village Suresh Chand deceased alongwith the appellants. He inquired from Suresh Chand that whether he is not going to village. But no response was given by the deceased. The appellants Sonu and Lalla, were talking about money transaction and in the morning he came to know about the death of Suresh Chand. In his cross-examination he admitted that in his statement under Section 161, Cr.P.C. he has not stated in that connection to the Investigating Officer and that as to how the I.O. has mentioned this fact, he cannot state. He did not see any weapon in the hands of the accused persons. He has no relation with the deceased. He had never talked with the accused persons prior to the incident. On this statement the Counsel for the appellant stated that the witness was not acquainted with the accused persons from earlier. For the first time this witness saw the accused persons in the company of the deceased and the appellants’ Counsel further argued that this witness also is not reliable. There are some contradictions and discrepancy in the evidence of the witness. For the first time this witness saw the accused persons in the company of the deceased and the appellants’ Counsel further argued that this witness also is not reliable. There are some contradictions and discrepancy in the evidence of the witness. Merely on the basis of the statement of this witness it cannot be believed that he saw the deceased in the company of the accused persons on 15.3.2002. It appears highly doubtful for him seeing the deceased in the company of accused persons on 15.3.2002 at 7.45 p.m. Moreover, except this circumstance as stated by this witness Kripal Singh there is no other circumstance against the accused persons to hold them guilty. 11. It is also settled position of law that where there is circumstantial evidence the motive achieve significance. The prosecution also required to prove that what was the motive available to the accused persons to commit the murder of deceased. In the FIR the prosecution has alleged the motive available to the accused persons to commit the murder of deceased. It has been alleged that the deceased was a seasonal collection Amin of Tahsil and being the collection Amin it was his duty to recover the dues of the Government from the defaulters. The accused persons also had to pay the Government dues and some days earlier to the incident deceased demanded the money from the accused persons and on it there had been hot exchange in between the deceased and the accused persons and at that time accused persons threatened the deceased to eliminate him. Whereas it has been argued by learned Counsel for the appellants that nothing was due towards the appellants and no recovery was issued in the name of the appellants, hence motive itself failed. Manoj Kumar P.W. 1, Rakesh Kumar P.W. 2, Nanhe Ram P.W. 8 stated about the motive. Manoj Kumar P.W. 1 has admitted in his cross-examination that there was no recovery pending against Sonu and Lalla appellant and no notice of recovery was issued against them. Rakesh Kumar stated that no threat was given in his presence by the accused persons and he is also not aware about the recovery proceedings against the appellants. Nanhe Ram P.W. 8 is Nayab Tahsildar of Tahsil Jasrana. He stated in his statement that there was a recovery of Government money against them and their family members. Rakesh Kumar stated that no threat was given in his presence by the accused persons and he is also not aware about the recovery proceedings against the appellants. Nanhe Ram P.W. 8 is Nayab Tahsildar of Tahsil Jasrana. He stated in his statement that there was a recovery of Government money against them and their family members. Suresh Chand deceased use to demand money from them. One defaulter Ratan Lal son of Jwala Prasad resident of Padham was detained in the lock up of Tahsil on 13.12.2001 for the recovery of Rs. 4,350/-. On 14.12.2001 Ratan Lal paid the entire amount with interest Rs. 4,792/- and Ratan Lal was released by his order. Recovery certificate was also issued against Rajpati son of Pench Ram Mehtar r/o Padham of Rs. 4,211/- and against Ram Prakash of Rs. 4,228/- and recovery certificates were also issued against another persons. But he has not stated that recovery was pending against the appellants also. Hence we agree with the argument of learned Counsel for the appellant that the prosecution failed to prove the motive available to the accused persons. He further argued that recovery was pending against father of one of the appellant and the amount was paid much earlier to the incident. After payment of money there was no reason for the accused persons for having any grudge against Suresh Chand Amin. He also argued that there was no personal enmity with the deceased of the accused persons and if it may be presumed that the enmity was from collection Amin then Amin may be any person and the recovery of the Government dues is to be made by Amin and this cannot be the reason for committing the murder of Suresh Chand Amin. In the circumstances of the case this argument is most justified. 12. Learned Counsel for the appellant also cited a case reported in 1994 (1) SCC 726 , Bhalinder Singh alias Raju v. State of Punjab. It has been held by Hon’ble Apex Court “Criminal Trial-Circumstantial evidence. In the circumstances of the case this argument is most justified. 12. Learned Counsel for the appellant also cited a case reported in 1994 (1) SCC 726 , Bhalinder Singh alias Raju v. State of Punjab. It has been held by Hon’ble Apex Court “Criminal Trial-Circumstantial evidence. Held, on facts, circumstances not sufficient to conclusively establish the guilt of the accused.” In view of this judgment of the Apex Court the prosecution is required to prove all the event of the case which is based on the circumstantial evidence and in the present case we agree with the argument of the appellant’s Counsel that prosecution has not produced sufficient evidence so as to make out a complete chain of circumstance and from that chain no other inference can be drawn except the guilt of the appellants. In the present case there is no evidence regarding any of the circumstance. 13. Learned Counsel for the appellants also argued that in the statement under Section 313, Cr.P.C. Learned Sessions Judge did not put all the events regarding which evidence produced and the statement under Section 313, Cr.P.C. is also defective. We agree with the argument of learned Counsel for the appellants. It is the fact that the learned Sessions Judge has not put the evidence regarding circumstances produced by the prosecution against the appellants. 14. For the reasons mentioned above, we are of the opinion that the prosecution failed to establish the guilt of the accused persons beyond reasonable doubt by the circumstantial evidence. In the present case the chain of circumstances is not complete by which only inference can be drawn about the guilt of the accused. Prosecution has not produced any evidence except the last seen of the deceased in the company of the accused persons and moreover the evidence of last seen is also suffering from infirmities and improbabilities and even no reliance can be placed on the evidence of last seen. We are of the opinion that the learned Sessions Judge was not justified in recording the finding of conviction of the appellants. The judgment and order of learned trial Court cannot be affirmed. The appeal deserves to be allowed. 15. Appeal is allowed. The conviction and sentence awarded by learned Sessions Judge is set aside. The appellants are acquitted from the offence under Section 302 read with 34 and 201, IPC. The appellants are in jail. The judgment and order of learned trial Court cannot be affirmed. The appeal deserves to be allowed. 15. Appeal is allowed. The conviction and sentence awarded by learned Sessions Judge is set aside. The appellants are acquitted from the offence under Section 302 read with 34 and 201, IPC. The appellants are in jail. They shall be released forthwith from jail unless not wanted in any other case. 16. The copy of the judgment be sent to the trial Court alongwith original file for compliance. ————