SHIV SHANKER, J. This criminal appeal has been preferred against the judgment and order dated 17. 9. 2008 by Shri Shashank Shekhar, Additional Sessions Judge Court No. 1, Aligarh in Sessions Trial No. 1630 of 1999 (State of U. P. v. Kiran Pal and two others) in Crime No. 170 of 1996, P. S. Delhigate, District Aligarh convicting and sentencing the appellants Kiran Pal, Sombeer and Chandi under Sections 302,120- B of I. P. C. for death/capital punishment. 2. In nutshell, prosecution story is that Banwari Lal Pradhan, son of Udai Singh, resident of village Neevari, P. S. Delhigate, district Aligarh submitted a written report vide Ext. Ka-1 on 7. 6. 1996 in the concerned police station by stating that he was going to purchase oil from village Natha and when passed from Javan by-pass, he saw three dead bodies lying in the field of Hari Babu Sharma near a brook (Nala) towards village Bheempur. They were having injuries on their bodies and there was crowd there. Thereafter, he submitted the written report and on that basis, the case was registered under Section 302, I. P. C. and investigation of this case was entrusted to Sub-Inspector Sri R. K. S. Rathore. 3. Thereafter, dead bodies of deceased persons were taken in his possession by the Investigating Officer. Driving licence of Cham Singh, son of Kallu Singh and visiting card of Yaseen Ahmad (President), Tehsil Sambhal Bahujan Samaj Party Moradabad were taken into his possession and prepared its Fard vide Ext. Ka-2 and one piece of rope (Rassi), one pair of shoes, one pair of Havai Chappaland blood stained clothes were taken into custody and after sealing them in separate bundles, prepared its Fard vide Ext. Ka-2, Ka-3, Ka-4 & Ka-5 respectively. After inspecting the place of occurrence, the Investigating Officer prepared site plan vide Ext. Ka-12. After sealing dead bodies of deceased persons, inquest report of all the three deceased as unknown persons were prepared and sent the same for post-mortem alongwith other papers. After conducting the post-mortem of all the three dead bodies of the deceased persons, the same were handed over for their cremation. 4. On 13. 6. Ka-12. After sealing dead bodies of deceased persons, inquest report of all the three deceased as unknown persons were prepared and sent the same for post-mortem alongwith other papers. After conducting the post-mortem of all the three dead bodies of the deceased persons, the same were handed over for their cremation. 4. On 13. 6. 1996, Vinod Kumar, son of Ram Singh, resident of Kakrauli, P. S. Kakrauli District Muzaffarnagar submitted an application to the Station House Officer Delhigate by stating that Ved Prakash, son of Ram Singh was his brother and he was working upon Tanker of Subhash Jain bearing its No. U. P. 12a-3187. Subhash Jain had not paid his salary of three months for Rs. 18,000/ -. Therefore, some altercation took place between them and ultimately his brother had left service from there and he was working at another place. On 4th June, 1996, in the night, Subhash Jain took his brother with him by saying that his accounts will be cleared. On 5th June, 1996, he was sent by him to Mathura upon his Tanker by stating that his payment will be made after his return. Three other persons were also sent with him alongwith other Tankers, upon which Kiranpal, Sombeer drivers and Chandi and Tejpal helpers who used to drive vehicles. When Tankers reached near district Aligarh, Kiranpal accused got his brother drunk liquor and after intoxication, helper Tejpal was driving the Tanker and one unknown person also had sat in the Tanker from Iglas. Accused Kiranpal, Sombeer, Chandi and one another person had got Tanker of brother of Ved Prakash stopped by stating that his accounts would be cleared as he had left service of Lala for apprehending his business of illegal oil. Thereafter, Kiranpal, Sombeer, Chandi and one unknown persons committed murder of Ved Prakash, Tejpal and one unknown person who had sat down in the Tankers from Iglas. Subhash Jain who is owner of above tankers, had full hands (participation) in these murders. After committing murders, tanker of Ved Prakash was left by accused Kiranpal in the jungle of Gabhana and informed the owner Subhash through the telephone that drivers Ved Prakash and Tejpal had gone anywhere after leaving their tankers. Therefore, it was suspected that Ved Prakash and Tejpal have been murdered by accused persons namely Kiranpal, Sombeer, Chandi and one another person at the conspiracy of Suhash Jain. 5. Therefore, it was suspected that Ved Prakash and Tejpal have been murdered by accused persons namely Kiranpal, Sombeer, Chandi and one another person at the conspiracy of Suhash Jain. 5. During the course of investigation, the statements of witnesses were recorded by the Investigating Officer. After completion of investigation, charge-sheet was submitted in the concerned Court against all the accused persons. After commitment of the case, all the above three accused persons were charged by the concerned Sessions Judge for the offence under Section 302 I. P. C. read with Section 34, I. P. C. and Section 120-B, I. P. C. who pleaded not guilty and claimed to be tried. 6. All the above three accused persons have stated in their statements recorded under Section 313, Cr. P. C. that charge-sheet has been filed against them on the basis of false and fabricated evidence. The prosecution has examined P. W. 1 Banwari Lal, P. W. 2 Pramod Kumar, P. W. 3 Dharambeer Singh, P. W. 4 Vinod, P. W. 5 Dr. Ashok Kumar Jain, P. W. 6 S. I. Kaptan Singh and P. W. 7 S. I. Rajkumar in support of the case. 7. No any oral or documentary evidence has been adduced in defence on behalf of above accused persons. 8. Thereafter, the trial Court has convicted the accused persons namely Kiranpal, Sombeer and Chandi for the charges under Sections 302,120-B, I. P. C. by awarding the death sentence to them. Feeling aggrieved by it, they have filed the present criminal appeal before this Court. 9. The concerned Presiding Officer of the trial Court has also transmitted the reference for confirmation of death sentence awarded to above three accused persons. 10. We have heard submissions made by learned counsel for the appellants, Sri Karuna Shanker Bajpayee learned A. G. A. for respondent and perused the judgment and order passed by the concerned Additional Sessions Judge and whole evidence on record. 11. Learned counsel for the appellants submitted that this is the case of circumstantial evidence. There is no complete chain of the circumstances. They have been convicted merely on the basis of so-called last seen evidence and last seen evidence is also contradictory from the earlier statements made by the witnesses. However, conviction has been made against the appellants without any evidence or any reliable evidence. 12. There is no complete chain of the circumstances. They have been convicted merely on the basis of so-called last seen evidence and last seen evidence is also contradictory from the earlier statements made by the witnesses. However, conviction has been made against the appellants without any evidence or any reliable evidence. 12. It is further contended that there are several decisions of Apex Court that the death penalty can be given in the rarest of rare cases. The principles of Apex Court have also not been followed and in arbitrary manner and without any evidence, the appellants have been convicted and awarded sentences of death penalty which is liable to be quashed and appellants are entitled to be acquitted from all the charges levelled against them. 13. Learned A. G. A. submitted that there is last seen evidence of P. W. 3 and P. W. 4. They were taken by the appellants from their houses and co-accused Subhash Jain sent them on the said tanker and later on, they have committed murders of Ved Prakash, Tejpal and one another person and dead bodies of deceased persons were found and tanker was left by Ved Prakash in jungle of Gabhana and accused Kiranpal had given telephone message to co-accused Subhash Jain and dead bodies of deceased persons were identified on the basis of clothes etc. by P. W. 3 and P. W. 4 who were Ved Prakash and Tejpal. Seven persons have been examined in support of prosecution case and the trial Court has rightly convicted the appellants for the charges levelled against them and rightly awarded sentence of capital punishment to them. Therefore, the appeal does not deserve to be allowed. 14. This is the case of circumstantial evidence and such type of cases, there should be complete chain of circumstances to establish that the accused appellants have committed the said offence. 15. The first circumstance of the present case is that dead bodies of three unknown persons were found lying in the field of Hari Babu Sharma near a brook (Nala) towards Bheempur. 15. The first circumstance of the present case is that dead bodies of three unknown persons were found lying in the field of Hari Babu Sharma near a brook (Nala) towards Bheempur. After seeing dead bodies of all the three persons, P. W. 1 Banwari lal Pradhan submitted a written report against unknown persons and the case was registered under Section 302, I. P. C. Thereafter, investigation was entrusted to Sub-Inspector R. K. S. Rathore who prepared inquest report of three persons as unknown and the same were sent for post-mortem examination. P. W. 5 Dr. Ashok Kumar Jain conducted the post-mortem of all the deceased persons as unknown and ante-mortem injuries were found on their dead bodies as mentioned in their post-mortem examination reports. Therefore, dead bodies of three persons were not identified by any person till conducting the post-mortem. 16. The next circumstance is that the matter was published in the newspapers and on that basis, P. W. 3 and P. W. 4 reached at the concerned police station and identified dead bodies of their brothers from their clothes and driving licence of Tejpal and Ved Prakash. Therefore, the above dead bodies were identified by them in the concerned police station on 13. 6. 1996. 17. The next circumstance is that on 13. 6. 1996, P. W. 4 Vinod Kumar submitted an application to the concerned police station by stating that his brother Ved Prakash was taken by co-accused Subhash Jain who was owner of Tanker bearing its No. U. P. 12a-3187. Thereafter, he did not return to his house. His dead body was identified on 13. 6. 1996 in the concerned police station. Therefore, P. W. 4 has given evidence of last seen regarding his brother Ved Prakash. P. W. 4 has stated in his examination-in-chief that his brother was taken from his house by the above three accused appellants and he has admitted in his cross-examination that he was enquired by the Sub-Inspector, wherein he has stated that co-accused Subhash Jain had taken his brother on 4. 6. 1996 in the night by saying that his due amount will be paid. Application (Paper No. 11) is also the same that his brother was taken by co-accused Subhash Jain. Therefore, it is material contradiction and development at the stage of trial. It is not admissible in evidence that Ved Prakash was taken by the above accused-appellants. 18. 6. 1996 in the night by saying that his due amount will be paid. Application (Paper No. 11) is also the same that his brother was taken by co-accused Subhash Jain. Therefore, it is material contradiction and development at the stage of trial. It is not admissible in evidence that Ved Prakash was taken by the above accused-appellants. 18. P. W. 3 is brother of deceased Tejpal who has not given any evidence in his deposition that his brother was taken by the above accused appellants in his presence. He has given evidence against the accused appellants merely on the basis of suspicion. 19. So far as the identification of third dead body is concerned, his dead body was also identified by his clothes by his relative but no evidence has been adduced on behalf of prosecution regarding last seen against the present accused appellants. Therefore, evidence of P. W. 3 and P. W. 4 does not infer that the deceased Tejpal and Ved Pal were taken by the above accused appellants from their houses. Therefore, last seen evidence is not established. 20. The next circumstances is that driving licence of Tejpal deceased was recovered at the pointing out of Kiranpal appellant-accused as per evidence of P. W. 6 S. I. Kaptan Singh Chauhan. Therefore, P. W. 6 has stated that the alleged driving licence of deceased Tejpal was recovered from the pointing out of accused-appellant Kiranpal on 21. 6. 1996. This recovery also appears to be doubtful. P. W. 6 himself stated that two unknown dead bodies of Tejpal and Vedpal were identified by their family members on 13. 6. 1996. In this regard, P. W. 3 Dharam Vir Singh has been examined who stated that dead body of Tejpal was identified on the basis of clothes and his driving licence etc. on 13. 6. 1996, how such driving licence of Tejpal was recovered by P. W. 6 at the pointing out of Kiranpal on 21. 6. 1996. Therefore, evidence of P. W. 6 is supported with the evidence of P. W. 3 Dharam Vir Singh, brother of deceased Tejpal. Therefore, recovery of driving licence of deceased Tejpal at the pointing out of accused appellant Kiranpal is also highly doubtful. 21. The next circumstances is that last piece of rope was also recovered from the dead bodies of all the three deceased persons by which they were tied up. Therefore, recovery of driving licence of deceased Tejpal at the pointing out of accused appellant Kiranpal is also highly doubtful. 21. The next circumstances is that last piece of rope was also recovered from the dead bodies of all the three deceased persons by which they were tied up. It has been considered by the trial Court as recovery but it cannot be considered that such rope was recovered at the pointing out of any accused- appellant. 22. It has been observed in decision of Apex Court in case of Shared Birdhi chand Sarda v. State of Maharashtra, MR 1984 SC 1622, that "while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the built of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. " 23. Similar principles have been highlighted in State of Rajasthan v. Rajaram, ( 2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and another ( 2003 (11) SCC 261 ) and Criminal Appeal No. 180/2001 (Chatter Singh and others v. State of Haryana) disposed of on 26th August, 2008. 24. Therefore, it is well settled principles of law according to the above decisions of Apex Court that accused can be convicted on the basis of circumstantial evidence provided chain of circumstances is completed and prosecution has proved its case beyond reasonable doubt. 24. Therefore, it is well settled principles of law according to the above decisions of Apex Court that accused can be convicted on the basis of circumstantial evidence provided chain of circumstances is completed and prosecution has proved its case beyond reasonable doubt. The words proved, disproved and not proved have been defined in Section 3 of Indian Evidence Act which runs as follows: "proved"-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "disproved"-A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exists. "not proved"-A fact is said not to be proved when it is neither proved nor disproved. " 25. In the present case, there is no complete chain of circumstances. Therefore, accused-appellants could not be held responsible for committing murder of all the three deceased persons. However, the trial Court has committed manifest error in convicting the appellants against Provisions of law and he has not cared to consider the Provisions of Indian Evidence Act also. The trial Court has not only convicted the accused appellants but given the major punishment of death to all the appellants accused. The Presiding Officer of the Court below who is senior officer in the rank of U. P. Higher Judicial Services. It cannot be expected from such senior officer in convicting the appellants without any evidence and gave death penalty to all the appellants. This shows that there is lack of knowledge of Presiding Officer regarding Provisions of law, who has not paid attention to several decisions rendered by the Apex Court regarding death penalty. 26. This is not the case of direct evidence. The circumstance is also not proved. However, death sentence has been awarded to all the appellants-accused. Therefore, judgment of the trial Court is not sustainable at all. The same has been passed against provisions of law. Further reference sent by the concerned Sessions Judge has also no force and it is also liable to be set aside. 27. The circumstance is also not proved. However, death sentence has been awarded to all the appellants-accused. Therefore, judgment of the trial Court is not sustainable at all. The same has been passed against provisions of law. Further reference sent by the concerned Sessions Judge has also no force and it is also liable to be set aside. 27. In view of discussions made above, we are of the considered opinion that the present appeal succeeds and is allowed and judgment and order dated 17. 9. 2008 passed against all the three appellants by convicting them and awarded death sentence, is hereby set aside and they are acquitted from the charges levelled against them. 28. The reference for confirmation of death sentence awarded to above three accused persons is set aside. They should be released forthwith if they are not wanted in any other criminal case. 29. Copy of this judgment and order alongwith the record of Court below be sent to the concerned Sessions Judge immediately who will comply the order of this Court and send compliance report to this Court. 30. One copy of judgment and order of this Court be placed in the character roll of the concerned Presiding Officer. 31. Another copy of judgment and order of this Court be sent immediately to the concerned Sessions Judge for perusal and future guidance. .