SHIV SHANKER, J. This appeal has been preferred against the judgment and order dated 27. 5. 1982 passed by nd Additional Sessions Judge, Kanpur in S. T. No. 585 of 1980, State v. Lala Ram and another convicting and sentencing the accused-appellants to imprisonment for life under Section 302 read with Section 34, I. P. C. years R. I. under Section 364, I. P. C. and 2 years R. I. under Section 201, I. P. C. 2. The relevant facts of the case as per the prosecution are that Sanjay Kumar, S/o Dinkar Dutt aged about 9 years had returned to his house from his school on 13. 11. 1980 at 4. 30 p. m. After taking breakfast, he went to the shop of the Sarju for purchasing ground nut. Thereafter he had not returned to his house. P. W. 1 Rama Kant who is brother of Dinkar Dutt submitted a written report Ext. Ka-14 on 14. 11. 1980 at police station Bhognipur by stating that his nephew had disappeared from 13. 11. 1980 and same was entered in G. D. and its copy is Ext. Ka-13. The case was investigated by P. W. 9 S. I. Ram Sajiwan Upadhyaya on 15. 11. 1980, he went to village Gungaon and recorded the statement of informant Rama Kant. He sent report to the police office also for searching the boy. On 21. 11. 1980 he again went to Gungaon and recorded the statements of some other witnesses. On 23. 11. 1980, dead body of Sanjay Kumar was found in Khajuriatal of his village. P. W. 1 Vinod Kumar submitted a written report vide Ext. Ka-15 regarding the recovery of the dead-body of Sanjay Kumar. The Investigating Officer then went to Gungaon again and prepared the inquest report Ext. Ka-2. Photolash Ext. Ka-3 and challan lash Ext. Ka- 4. Then dead body of deceased was wrapped and sealed and despatched the same for post mortem examination along with letters Ext. Ka-5 and 6 and other necessary papers. 3. He also took the clothes of the deceased in his possession vide Fard Ext. Ka-7. He also prepared the site plan of the place where the dead body of deceased was found vide Ext. Ka-8. On 25. 11. 1980 he returned to the police station and got the case converted into one under Section 302, I. P. C. vide Ext. He also took the clothes of the deceased in his possession vide Fard Ext. Ka-7. He also prepared the site plan of the place where the dead body of deceased was found vide Ext. Ka-8. On 25. 11. 1980 he returned to the police station and got the case converted into one under Section 302, I. P. C. vide Ext. Ka- 9 a copy of which is the relevant G. D. entry and he recorded the statement of some other witnesses also on that day. He also prepared a site plan Ext. Ka-10 of the place where the boy was seen for the last time. 4. Dr. Man Singh conducted the postmortem on 25. 11. 1980 and prepared the post mortem examination report vide Ext. Ka-1. According to the post mortem report, the deceased was aged about 10 years and had died about 10 days before. Rigor mortis had passed off. The body was in the stage of decomposition. No. outer mark of injury was found on the person of the deceased. Thyroid cartilages were broken. Both the lungs were congested. The cause of death was due to asphyxia. 5. On 30. 11. 1980, both the accused persons were arrested. Thereafter, on the same day, he submitted the charge-sheet, vide Ext. Ka-11 against both the accused persons. Both the accused persons were charged for the offences levelled against them and who pleaded not guilty and claimed to be tried. They further stated that they have been falsely implicated. They used to work as labourers at the house of Dinkar Dutt Shukla but as Dinkar Dutt did not pay them their wages. Thereafter, they left the work and on this account that they have been falsely implicated by him with the help of one of his uncles who happened to be a Sub-Inspector of police. 6. Prosecution examined P. W. 1 Rama Kant, P. W. 2 Dinkar Dutt, P. W. 3 Mitthu Lai, P. W. 4 Hoti Lai, P. W. 5 Kalyan Singh, P. W. 6 Jauhari, P. W. 7 Pramod Kumar, P. W. 8 Man Singh, P. W. 9 R. S. Upadhyay S. I. , P. W. 10 Kamal Prasad H. C. and P. W. 11 Vinod Kumar Sachan who have proved its case. 7. On the other hand, no any oral or documentary evidence has been adduced on behalf of accused persons in their defence. 8. 7. On the other hand, no any oral or documentary evidence has been adduced on behalf of accused persons in their defence. 8. Thereafter, both the above accused persons have been convicted by the trial Court against the charges levelled against them and awarded the sentences as mentioned above. Feeling aggrieved by it, both the accused appellants above have filed the present appeal. 9. Heard Sri B. N. Rai, learned counsel for appellants and Sri K. N. Bajpai, learned A. G. A. for the respondent as well as perused the record. 10. Learned counsel for the accused-appellants submitted that this is the case of circumstantial evidence. The death of deceased has been shown due to strangulation and only last seen evidence has been adduced against the appellants-accused. There is no any other evidence. In absence of missing of complete circumstances, the appellants could not be convicted. The case rests upon the circumstantial evidence. However, the trial Court has committed error in convicting them against evidence on record. 11. On the other hand learned A. G. A. submitted that 11 witnesses have been examined on behalf of prosecution and chain of circumstances is complete. Motive has also been given by the witnesses and death of deceased is homicidal. No any reason has been assigned to implicate the appellants falsely in this case, although motive is not necessary in the case of kidnapping. Some amount of wages was due upon father of deceased and the same was not given. Thereafter, the appellants-accused had grievances. Consequently they kidnapped and committed murder of deceased. P. W. 4 is although hostile witness but he has stated that dacoit wanted one boy. P. W. 6 has given evidence of last seen which is unchallenged and no reason has been given as to why he has given evidence against the accused- appellants. Evidence of P. W. 5 is also unchallenged. The evidence of P. W. 1 is also corroborated with the evidence of P. W. 5. It is also unchallenged. P. W. 3 has also stated that something had been thrown in the pond. Therefore, chain of circumstances was complete and trial Court has rightly convicted the accused-appellants. 12. Evidence of P. W. 5 is also unchallenged. The evidence of P. W. 1 is also corroborated with the evidence of P. W. 5. It is also unchallenged. P. W. 3 has also stated that something had been thrown in the pond. Therefore, chain of circumstances was complete and trial Court has rightly convicted the accused-appellants. 12. It has been observed in the decision of Apex Court in case of Vinay D. Nagar reported in (2008) 5 SCC 597 that "where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " 13. It has been observed in the decision of Apex Court in case of Sudama Pandey and others v. State of Bihar, (2002) 1 SCC 679 that "in the case of circumstantial evidence, the various circumstances should be able to form a chain pointing to the guilt of the accused. In cases where there Hs only circumstantial evidence the Court has to consider the evidence adduced by the prosecution and decide whether the evidence proves particular facts relevant for the purpose of the case and when such facts are proved the question arises whether the facts are capable of giving rise to any inference of guilt of the accused person or not. An inference of guilt can be drawn only if the proved fact is wholly consistent with the guilt of the accused and certainly he is entitled to the benefit of doubt if the proved fact is consistent with his innocence. " 14. An inference of guilt can be drawn only if the proved fact is wholly consistent with the guilt of the accused and certainly he is entitled to the benefit of doubt if the proved fact is consistent with his innocence. " 14. It has been observed in the decision of Apex Court in case of Ashish Patham v. State of M. P. , (2002) 7 SCC 317 that "accused is presumed to be innocent till charges against him are proved beyond reasonable doubt-^-Mere heinous or gruesome nature of the crime not enough to punish the accused - Mere suspicion, however strong it may be, cannot take the place of legal proof. "though case based on circumstantial evidence, but circumstances not proved beyond doubt and vital links in the circumstances missing - Differential and contradictory standard of appreciation of evidence adopted by Courts below to the detriment of the accused-appellant - Conviction of accused by Courts below based on conjectures and surmises - In view of glaring infirmities and illegalities in the prosecution case and error apparent on the face of record. " 15. According to the testimony of P. W. 1 he had submitted missing report in the concerned police station on 14. 11. 1980 by stating that Sanjay Kumar, son of Dinkar Dutt (P. W. 2) had returned to his house from his school on 13. 11. 1980 at 4. 30. p. m. and after taking breakfast and wearing other clothes he had gone at the shop of Sarju and purchased groundnut. Thereafter he had not returned to his house. He was searched. Thereafter a written report was submitted. 16. This circumstance is only inferred that Sanjay Kumar deceased had gone to the shop of Sarju and purchased ground nut and returned from there. Thereafter he had disappeared. Therefore, this witness has not named any appellant in his evidence as well as in his report Ext. Ka-14. 17. Next circumstances is that Sanjay Kumar was returning from shop of Sarju after taking groundnut. Lala Ram accused-appellant was also going accompanied with him and P. W. 6 Jauhari and one Subhash witness had also proceeded behind them up to 10-15 steps and Lala Ram and Sanjay Kumar deceased had turned towards the house of Lala Ram. Thereafter, Sanjay Kumar was not seen alive by these witnesses. Lala Ram accused-appellant was also going accompanied with him and P. W. 6 Jauhari and one Subhash witness had also proceeded behind them up to 10-15 steps and Lala Ram and Sanjay Kumar deceased had turned towards the house of Lala Ram. Thereafter, Sanjay Kumar was not seen alive by these witnesses. After 8-10 days, the dead body of deceased was found in the pond situated in his village. Testimony of P. W. 6 only reveals last seen evidence against one appellant-accused Lala Ram. He has not stated anything against another appellant-accused Ram Prakash. P. W. 6 has admitted in his cross- examination that he had gone to his field in the same night after taking meal and returned on the next day at about 12 noon at his house, then he got information regarding missing of the son of P. W. 2 Dinkar Dutt. Thereafter, he had told the ladies of his house and villagers regarding last seen evidence. When this fact was told to the ladies of P. W. 1 and P. W. 2, how this fact was not mentioned in the missing report while it was submitted on the next day of the missing. P. W. 9, the Investigating Officer Ram Sajivan Upadhyay has admitted in his evidence that he had gone to the village of deceased on 15. 11. 1980 and 21. 11. 1980 for searching the"boy and recorded the statement of informant Rama Kant. P. W. 6 has not stated to the father of the victim regarding last seen evidence till the recovery of dead body of deceased, even he has not told to the Investigating Officer who had reached to his village two days prior to the recovery of dead body of deceased. His statement was recorded by the Investigating Officer after recovery of dead body of deceased. No sufficient explanation has been given on behalf of this witness as to why he was quite mum regarding last seen evidence in not disclosing this fact earlier to the father of victim. He has given evidence against the appellant Lala Ram only which is afterthought. Therefore, the circumstances of last seen evidence appears to be doubtful. 18. Next circumstance is that P. W. 5 Kalyan Singh has stated that he was watering on wages by pumping set in the night in the field of Satya Swaroop. He has given evidence against the appellant Lala Ram only which is afterthought. Therefore, the circumstances of last seen evidence appears to be doubtful. 18. Next circumstance is that P. W. 5 Kalyan Singh has stated that he was watering on wages by pumping set in the night in the field of Satya Swaroop. He saw that the appellants Lala Ram and Ram Prakash were going through the cycle and one boy of 8 or 9 years was sitting upon the cycle of appellant Lala Ram. On the next day in the evening he returned to his village and got information regarding missing of Sanjay. Thereafter, it was told to several persons regarding it. This witness has not identified such boy at the time of taking by the appellants in the night. Therefore it cannot be presumed that such boy was the deceased. It is also worthwhile to mention here that he had returned to his house on the next day at about 6-7 p. m. and this fact was told to P. W. 2. RW. 2 has stated that this fact was told to him by P. W. 5 at 10 a. m. However, it is believed that appellants-accused were taking one boy. It cannot be deemed that boy of P. W. 2 was being taken by them. It is also worthwhile to mention here that this fact was also not disclosed prior to 23. 11. 1980 when dead body of deceased was found by P. W. 9 who is Investigating Officer while he had gone to his village two times as mentioned above. Therefore, this circumstance is not believable that both the appellants-accused were seen in the jungle in the night by taking the deceased. 19. Next circumstances is that P. W. 3 Mitthoo Lal was present in the sugarcane field which was situated near Khajuria pond and saw Lala Ram and Ram Prakash appellants, armed with Ballam and Kanta who were going towards Khajuria pond by taking something upon their shoulders and same was thrown in the said pond. Therefore, they were identified when they were returning from there. 20. Evidence of this witness does not disclose that dead body of deceased was taken and thrown in the said Khajuria pond next day of his missing. Therefore, they were identified when they were returning from there. 20. Evidence of this witness does not disclose that dead body of deceased was taken and thrown in the said Khajuria pond next day of his missing. Therefore, merely throwing something in the Pond, does not mean that dead body of deceased was thrown by the appellants-accused in the presence of this witness. 21. He has further stated that next day he had gone to other village on death of his relative. However, this witness has also not disclosed this fact to any person in the village. He has not stated where he had gone and stayed there 10-12 days. After recovery of dead body on 23. 11. 1980, his statement was recorded by the Investigating Officer that he had gone next day on the death of his relative and returned after 10-12 days, was afterthought. Therefore, his testimony is not reliable and trustworthy that something was thrown by the appellants-accused in his presence next day of the occurrence in the night in the said pond. 22. Next circumstances is that dead body of deceased was found in the said pond. Therefore, P. W. 1 gave information regarding it to the concerned police station and on that basis, inquest report and other papers were prepared by P. W. 9 and the same was sent for post mortem. It was found in the post mortem examination report of the decease that he was killed by pressing his neck. Therefore, cause of death has been shown of throttling. No doubt, it is a case of homicide. Merely on the basis of homicide, it cannot be presumed that the appellants-accused are responsible for the murder of deceased and there is no complete chain of circumstances. 23. Prosecution must always stand upon its legs. No benefit can be given to the prosecution regarding weakness of the defence. Motive shown or evidence adduced by P. W. 2 is also not strong as no F. I. R. was lodged regarding theft of motor and dispute in gambling. Testimony of P. W. 4 and 7 has already been discarded by the trial Court. There is no need to consider it again in this appeal. Complete chain of circumstances was not proved. Therefore, the case against the present appellants-accused was not fully proved beyond reasonable doubt. However, they have been wrongly convicted by the trial Court. Testimony of P. W. 4 and 7 has already been discarded by the trial Court. There is no need to consider it again in this appeal. Complete chain of circumstances was not proved. Therefore, the case against the present appellants-accused was not fully proved beyond reasonable doubt. However, they have been wrongly convicted by the trial Court. In these circumstances, the trial Court has committed manifest error and passed such order against the provisions of law. 24. In view of discussions made above, this appeal has great force and deserves to be allowed. 25. Consequently, this criminal appeal is allowed and the judgment and order dated 27. 5. 1982 passed by the trial Court is set aside and both the appellants are acquitted for the charges levelled against them. . They are in custody. Let them be released forthwith if they are not wanted in any other case. If the appellants-accused have deposited fine awarded by the trial Court, the same be returned to appellants-accused by the trial Court. .