Judgment Shiva Kirti Singh, J. 1. The sole appellant is aggrieved by judgment and order dated 5th January, 2002 passed by learned 5th Additional Sessions Judge, Gaya in Sessions Trial No. 232/98/385/98 whereby he has been convicted for the offence under sec. 302 I.P.C. and sentenced to undergo rigorous imprisonment for life and a fine of Rs. 15,000.00 and in default to undergo rigorous imprisonment for a further period of 3 years. He has also been convicted under sec. 201 I.P.C. and sentenced to three years rigorous imprisonment along-with a fine of Rs. 5000.00 and in default whereof he has to undergo rigorous imprisonment for a further period of one year. 2. This criminal case arises out of Gurua RS. Case No. 51 of 1997 lodged by informant Md. Shahabuddin (RW. 5) against this appellant and two unknown persons. The prosecution case in brief is that on 9.12.97 at 7 A.M. in the presence of the informant, this appellant came to Darwaja of the informant and called out his 16 years old son Md. Badud and urged him to accompany him to village Mugrain which happened to be the village home of maternal uncle of Md. Badud. Allegedly, at about 7.30 A.M. Md. Badud went out of the house with the appellant professing that he would go to village Mugrain. In the evening at about 7 the appellant came back to the village but Md. Badud did not return. The informant claims that the appellant on enquiry disclosed that Md. Badud had stayed in village Mugrain at his maternal uncles house and that he was planning to go out to some other place also. On the next day the informant made enquiry at village Mugrain and found that Md. Badud has not gone to that village. On returning he searched for the appellant but could not meet him then he went to another place Amas to make enquiry. On 11.12.1997 he went to another place Hemjapur to make enquiry then he made further enquiry from the appellant and on learning that Md. Badud has not gone to that village. On returning he searched for the appellant but could not meet him then he went to another place Amas to make enquiry. On 11.12.1997 he went to another place Hemjapur to make enquiry then he made further enquiry from the appellant and on learning that Md. Badud was planning to go out to some other place the informant allegedly went to Calcutta to search for his son at his relatives place and came back disappointed on 14.12.97 and on 15.12.97 in the evening when he was going to ease himself, some children in the village disclosed that a dead body was lying in a sugar cane field emitting foul smell. The dead body was located in the field of one Ram Swaroop Mahto and was identified as dead body of informants son Md. Badud. The dead body was guarded by the informant in the night and in the morning of 16.12.97 the police came to the village and recorded the fardbeyan of the informant. The signature of the informant on the fardbeyan has been marked as Exhibit-3 and the formal F.I.R. has been marked as Exhibit-4. 3. After preparing inquest report which has been proved by formal witnesses RWs. 3 and 4, the Investigating Officer Yamuna Prasad (RW. 6) sent the dead body for postmortem examination which appears to have been done by Dr. N.K. Sinha who could not be examined as a witness probably because he has retired from service as Head of the Department of Forensic Medicine in A.N.M.M.C.H., Gaya. However, his handwriting on the post mortem report was proved by Dr. Arbind Prasad (P.W. 7) and the post mortem report was marked as Exhibit-1. According to the post mortem report some parts of the dead body had decomposed and such post mortem injuries were marked as injury no. 1. The ante mortem injury was marked as injury no. 2 which was transversed incised wound over middle of neck on frontal side of the size 6 1/4" x 1 1/2" x 1/4" bone deep with sharp cut of cervical body of vertebra. The injury no. 2 as noticed was found to be cause of death and the time elapsed since death mentioned in the post mortem report is approximately within 5 to 7 days. The injury no. 2 as noticed was found to be cause of death and the time elapsed since death mentioned in the post mortem report is approximately within 5 to 7 days. The post mortem report shows that the autopsy was done on 16.12.1997 at 2.15 P.M. After recording the statement of witnesses and completing investigation the Investigating Officer submitted charge-sheet only against the appellant who was charged for the offence under sections 302 and 201 of the I.P.C. and convicted by the impugned judgment as noticed above. 4. From the trend of cross-examination it appears that the appellant has denied the allegations that he had gone out anywhere with the deceased. In fact the defence is of total denial of alleged occurrence in so far as allegations against the appellant are concerned. 5. The prosecution, in order to proye its case, has examined altogether seven witnesses. As noticed earlier P.Ws. 3 and 4 are formal witnesses who have admitted their signatures on the inquest report. P.W.6 is the Investigating Officer and P.W. 7 is Dr. Arbind Prasad who has proved the post mortem report prepared by another doctor. P.W. 5 Md. Shahabuddin is the informant in this case who is also the father of the deceased Md. Badud. RWs. 1 and 2 are the remaining material witnesses who have been examined to corroborate and support the prosecution case. P.W. 1, Sahmood Ali has stated that on 9.12.97 at 7 A.M. he was sitting at his Darwaja which is by the side of house of the informant and informants brother Imamuddin. At that time he saw appellant Anil Kumar at Shahabuddins house. The appellant called Badud. Badud came out and had a talk with the appellant. Thereafter he went with the appellant. On enquiry the informant told this witness that Badud and appellant had gone to Baduds maternal uncles house at Mugrain. The same day he enquired further from the informant and was told that Anil Kumar has come back and Badud has gone out, as told by the appellant. This witness has further said that the informant went to Mugrain, Hemjapur and Calcutta but could not locate Badud. He has deposed that on the information of children the dead body of Badud was found in the sugar cane field of Ram Swaroop Mahto. The sweater of Badud was also- near the dead body. This witness has further said that the informant went to Mugrain, Hemjapur and Calcutta but could not locate Badud. He has deposed that on the information of children the dead body of Badud was found in the sugar cane field of Ram Swaroop Mahto. The sweater of Badud was also- near the dead body. Nothing material has been elicited in the cross-examination of this witness except two contradictions with his statement recorded by the I.O. under sec. 161 Cr.P.C. However, those contradictions are not of much significance. 5A. P.W. 2, Imam Hasan is brother of the informant and his evidence is on the same lines as that of P.W. 1. In his examination-in-chief he has claimed that Badud went with the appellant in the morning of 9.12.97 and thereafter Badud did not return but the appellant came back to his house. On inquiry by the informant the appellant disclosed that Badud has stayed in village Mugrain and was planning to go to some other places. On enquiry it was found by the informant that Badud had not gone to village Mugrain. The informant searched at several places but without any success. On the 7th day from occurrence the dead body of Badud was found in the sugar cane field. Sweater and footwear of the deceased was also found near the dead body. In his examination-in-chief itself this witness has stated that in course of search Seraj Khan and Antu Yadav had disclosed that on 9.12.97 at 8 in the morning they had seen Badud and three other persons near the field of Ram Swaroop Mahto. However, prosecution did not examine either Seraj or Antu Yadav and no explanation has been given for their non-examination as witnesses. 6. The trial court noticed the entire evidence carefully and rightly came to the conclusion that there are no eye witnesses in this case. It held the appellant guilty of the concerned offences on the basis of three circumstances:- (1) he was last seen with the deceased, (2) he gave false informations to the informant regarding movement of the deceased, and (3) as an accused the appellant had absented himself from the village. 7 On a careful appraisal of the evidence of the informant (P.W. 5) and his fardbeyan it is found that the prosecution has based its case mainly on two circumstances. 7 On a careful appraisal of the evidence of the informant (P.W. 5) and his fardbeyan it is found that the prosecution has based its case mainly on two circumstances. Firstly that on 9.12.97 at around 7.30 A.M. the appellant after talking with the deceased went with him allegedly for going to village Mugrain and thereafter the dead body of Badud was found. The second circumstance alleged by the prosecution is that there was some minor altercation or exchange of hot words between the appellant and the deceased about ten days earlier of the lodging of the fardbeyan. 8. A perusal of entire material on record including the evidence of witnesses clearly shows that there is no evidence of any competent witness claiming that he had seen any altercation or exchange of hot words between the appellant and the deceased. In fact the prosecution has miserably failed to prove any motive for the alleged offence by this appellant. In this respect it is worth noticing that had there been any bad blood between the deceased and this appellant, neither the deceased would have agreed to accompany the appellant to any place nor his elders would have permitted him to do so. 9. The evidence on record i.e. the evidence of the informant as corroborated by his neighbour P.W. 1 and his brother P.W. 2 shows that there had been some talk between the appellant and the deceased and the two appeared to have left the house of the deceased together but there is no convincing or reliable material to show that they proceeded further to any place as alleged by the prosecution. There is no witness to have seen them going together out of the village. To the contrary, the evidence of P.W. 2 creates a doubt that after leaving his house the deceased was seen not only in the village at 8 P.M. by some others but at that time there were three persons with him besides this appellant. Thereafter there is no evidence to show how the developments took place, whether the deceased went with the three unknown persons or this appellant also accompanied him. The non-examination of persons named by RW. Thereafter there is no evidence to show how the developments took place, whether the deceased went with the three unknown persons or this appellant also accompanied him. The non-examination of persons named by RW. 2 i.e. Seraj Khan and Antu Yadav as well as Shivnandan Yadav who was named by the informant amongst persons who used to go with the informant allegedly to make enquiry from this appellant, leaves gaps in the chain of circumstances and also creates doubt. 10. The two circumstances besides the circumstance of last seen used by the trial court for convicting the appellant need a deeper scrutiny. The circumstance that the appellant/accused had given false information to the informant on the face of things creates suspicion and doubt against the appellant but on closer scrutiny it is found that all the corroborating witnesses like RWs. 1 and 2 have claimed to acquire knowledge of talks between the deceased and this appellant from the informant, but in cross-examination the informant, RW. 5 in paragraph 11, has admitted that he made no enquiry from the appellant and what this appellant told his son and what they talked was not audible to him. This evidence in cross-examination gives a serious dent to the prosecution case that according to the talks between the deceased and this appellant, they were to go to village Mugrain. That village was the village of maternal uncle of the deceased and the prosecution has failed to bring any material on record that the appellant had any connection with that village or had any need or occasion to visit that village. The evidence of RW. 1 in paragraph-2 shows that informant disclosed that appellant Anil has returned but Badud had gone out. This contradicts the claim of the informant that this appellant on the first day of enquiry disclosed that deceased has stayed back at Mugrain. Further if Mugrain was the fixed place for visit and had there been bad blood between the deceased and the appellant, on 10.12.97 itself, according to the informant it had become clear that the deceased had not visited village Mugrain. Thereafter further search by the informant itself creates doubt whether this appellant had given any false information. If false information had been supplied on the initial day, in all likelihood some information to the police should have been given without waiting for recovery of dead body after several days. Thereafter further search by the informant itself creates doubt whether this appellant had given any false information. If false information had been supplied on the initial day, in all likelihood some information to the police should have been given without waiting for recovery of dead body after several days. Hence on a deeper analysis of the evidence on record it is not possible to hold that this appellant had been guilty of giving false informations. Such a finding cannot be given with certainty on the basis of materials on record. The benefit of doubt therefore must go to the accused/appellant. 11. The third circumstance used against the appellant that he absented himself after the offence is not supported by the prosecution case itself. All the witnesses including the informant have admitted that they made enquiry from the appellant after 9.12.97. On getting information about the recovery of the dead body and lodging of the case if appellant had absconded for a long time that could have been used as a circumstance against him but it appears from the record that he surrendered in the court concerned on 3.1.98 i.e. within 18 days of lodging of the F.I.R. 12. Learned counsel for the appellant has placed reliance upon a judgment of the Apex Court in the case of Sharad V/s. State of Maharashtra, AIR 1984 SC 1622 to highlight the principles relating to circumstantial evidence and conviction on basis thereof. In that judgment the Apex Court has formulated five conditions which must be fulfilled before a case against an accused, based on circumstantial evidence can be said to be fully established. It is not necessary to reproduce all the five circumstances enumerated in that judgment because by now the relevant principles are well settled by catena of judicial pronouncements. Taking the required precautions in the light of such judgment this court finds no option but to agree with the submissions advanced by learned counsel for the appellant that the chain of circumstances as per evidence adduced by the prosecution in this case is not complete so as to reach to reasonable conclusions inconsistent with the innocence of the accused. The evidence on record as noticed above is not sufficient to show that in all human probabilities the act must have been done by the appellant/accused. 13. The evidence on record as noticed above is not sufficient to show that in all human probabilities the act must have been done by the appellant/accused. 13. In view of aforesaid discussions and findings we are of the considered view that the finding of guilt recorded against the appellant by the trial court cannot be sustained. On the basis of circumstances proved by the prosecution it is not possible to hold the appellant guilty of the charge either under sec. 302 I.P.C. or under sec. 201 I.P.C. As a result, the impugned judgment and sentence of punishment are set aside. The appellant is acquitted of all the charges. The appeal stands allowed. Since the appellant is said to be in custody, hence he should be released forthwith if not required in any other case.