JUDGMENT Jaya Roy, J This appeal has been preferred against the judgment dated 31.7.1993 passed by Sri Satehdra Kumar Gupta, 3rd Additional Sessions Judge, Hazaribagh in Sessions Trial No 23/1990 whereby the appellant has been convicted under Section 302 of the Indian Penal Code and he has been sentenced to undergo imprisonment for life. The appellant was also convicted under Section 201 of the Indian Penal Code and he was further sentenced to undergo R.I. for five years. Both the sentences have been directed to run concurrently. 2. The prosecution case, in brief as stated in the written report of the informant Shankar Rajak, is that his maternal cousin brother Kesho Rajak (the deceased) who was a student of Class-X of Misraul High School, had gone to his School on 31.8.89 at 10.00 A.M. He did not return from his school. In the evening his parents made search from the relatives about him but his where about could not be known. They searched for the whole night but he was not found. On the next day i.e. 1.9.89 they came to know from the companions of Kesho Rajak who was also student of Class-X that after tiffin hours, five students of that school namely Dinesh Kumar Verma (the appellant), Arjun Kumar, Mahesh Kumar Verma, Charwa Oraon and Dilip Kumar Pathak were seen going towards the Forrest Office taking Kesho Rajak with them. Dinesh Kumar Verma was riding the bicycle and Kesho Rajak was sitting on the carrier. Other four students were also on their bicycle. It is further said that out of them only Dilip Kumar Pathak returned after two hours while other students did not return. On such information, when a search was made behind the forest office then dead body of Kesho Rajak was found in a small ditch and his bicycle was found at a distance of five hundred yards from his dead body. Therefore, it was suspected that those five students named above, murdered Kesho Rajak and concealed his dead body in the jungle. It is further stated in the written report that seeing the dead body of Kesho Rajak, their parents was very much disturbed and as such the information was lodged by this informant. 3. As the case was exclusively triable by the court of sessions, it was committed to the court of sessions. It is further stated in the written report that seeing the dead body of Kesho Rajak, their parents was very much disturbed and as such the information was lodged by this informant. 3. As the case was exclusively triable by the court of sessions, it was committed to the court of sessions. The trial court framed charges against all the five accused persons under Sections 302/ 201/34 of I.P.C. During the trial, the case with respect to accused Umesh Kumar Verma, Charwa Oraon and Dilip Kumar Pathak who were found to be Juvenile, below 16 years of age at the time of commission of the alleged occurrence, was separated. 4. The accused persons did not plead guilty to the charge framed against them and claimed to be tried. Further case of the defence is that they have been falsely implicated in this case but no evidence has been adduced on the side of the defence. 5. Prosecution has examined 13 witnesses. They are P.W. 1 Prem Chand Rana, P.W. 2 Bijoy Kumar Rajak, P.W. 3, Jai Kumar Singh who were classmates of Kesho Rajak (the deceased) at the time of occurrence. P.W. 4 Shankar Rajak (the informant), P.W. 5 Wakil Rajak, P.W. 6 Sarita Kumari, P.w. 7 Tulsi Rajak, PW. 8 Gaya Singh, P.W. 9 Dr. Nand Kishore Prasad who conducted the post mortem examination, P.W. 10 Cham an Dhobi is father of the deceased, P.W. 11 Anwarul Haque, P.W. 12 Basant Lal Modi is the I.O., P.W. 13 Kamlesh Ram. 6. After considering the evidence of the witnesses and materials on record, the trial court discharged the other accused Arjun Kumar Verma from the charges leveled against him and convicted the present appellant Dinesh Kumar Verma in the manner, as stated above. 7. Mr. Jai Prakash Sr. Counsel appearing for the sole appellant, submitted that there is no eye witness of the alleged occurrence. The prosecution case wholly rests on circumstantial evidence. P. Ws. 1, 2 and 3 who were classmates of Kesho Rajak, all have stated that Dinesh Kumar Verma took away Kesho Rajak on the cycle of Kesho Rajak and thereafter Arjun Kumar Verma and other three companions Dilip Kumar Pathak, Umesh Kumar and Charwa Oraon also followed them on their cycle. After Tiffin hours only Dilip Kumar Pathak retumed and other did not. After Tiffin hours only Dilip Kumar Pathak retumed and other did not. They further stated that on the next day P.W. 10 namely Chaman Dhobi (father of Kesho Rajak) and the villagers in course of search, found the dead body of Kesho Rajak in the Nawadih Jungle and his cycle was also found at the distance of five hundred yards from the place from where the dead body of Kesho Rajak was found lying. According to them, the dead body was crushed with stones as it appeared. Thus, from the evidence of these three witnesses, it is apparent that Kesho Rajak and all four aforesaid persons went to the Forest area together and Kesho Rajak was on his bicycle and the same was driven by Dinesh Kumar Verma (the appellant). Mr. Jai Prakash has contended that from this circumstance i.e. the appellant Dinesh Kumar Verma and Kesho Rajak, the deceased went on the same bicycle, it cannot be presumed that the appellant took away the deceased Kesho Rajak with him. It is just a chance that as there was five bicycles and six students, one has to be carried on the carrier of one of the cyclist. 8. On scrutinizing the evidence of P.W. 4 Shankar Rajak, P.W. 8 Gaya Singh, P.W. 10 Chaman Dhobi (father of the deceased), it has come to light that on search, the dead body of Kesho Rajak was found in the Nawadih Jungle and bicycle of Kesho Rajak was also found at some distance from the place where the dead body was lying. P.W. 12 Basant Lal Modi is the I.O. of this case. According to the I.O. also dead body was found in the Jungle and bicycle of Kesho Rajak was also found at a distance of five hundred yards from the place where the dead body of Kesho Rajak was found. P.W. 12 has stated in his evidence that from the place of occurrence a big stone weighing 10 to 15 Kg. which was blood stained and other four or five blood stained small pieces of stones were also found at the aforesaid place which were also seized. Seizure list was also prepared for the same. P.W. 12 has stated in his evidence that from the place of occurrence a big stone weighing 10 to 15 Kg. which was blood stained and other four or five blood stained small pieces of stones were also found at the aforesaid place which were also seized. Seizure list was also prepared for the same. The I.O. (P.W. 12) in his evidence has stated that one co-accused Dilip Kumar Pathak after his arrest, confessed before him and gave a vivid description of the occurrence and the manner of brutal murder of Kesho Rajak. It further appears that on the confessional statements of Dilip Kumar Pathak some parts of the cycle of Kesho Rajak were recovered from the Jungle. 9. Mr. Jai Prakash has argued that the confessional statement made before the police is not admissible in evidence. In fact,. from the record it appears that the confessional statements of the said accused were not recorded under Section 164 Cr.P.C. before any Magistrate. Therefore, the aforesaid confessional statements are of no importance. It is relevant only with respect to the recovery of certain parts of the cycle. 10. P.W. 9 Doctor Nand Kishore Prasad Jaiswal who conducted Post Mortem examination on the dead body of the deceased Kesho Rajak, has stated in his evidence that he found Ante Mortem injuries on the dead body and opined that death occurred due to haemorrhage and shock caused by the aforesaid injuries on skull and brain which was caused by hard and blunt substance and might have- been caused by stones. In his cross-examination he has stated that if a person falls on stones such injuries may be caused. 11. P.W. 10 the father of the deceased has stated regarding the motive of murder that a month ago, the accused appellant Dinesh Kumar Verma and Arjun Kumar Verma and three others often used to threaten him as he used to sit on the front bench of the class. In our view this cannot be said as a motive for committing the murder of Kesho Rajak by the aforesaid accused persons. 12. Mr. Jai Prakash has contended that merely because Kesho Rajak the deceased was last seen in the company of the accused appellant, accused cannot be pinned down to the charge of murder and the chain of the circumstances is not complete. 12. Mr. Jai Prakash has contended that merely because Kesho Rajak the deceased was last seen in the company of the accused appellant, accused cannot be pinned down to the charge of murder and the chain of the circumstances is not complete. As such it is true that except the circumstance that the accused was last seen with the victim, there is no other evidence to connect the accused with the crime of murder and it is not sufficient to convict the accused for murder. The mere fact that the accused and the deceased were last seen together is no ground for conviction. 13. Counsel for the State submits that in the Post Mortem report it has come "Time elapsed since death is forty-four hours". This fact shows that Kesho Rajak was done to death at about 2.30 P.M. on 1st September, 1989. From the evidence of P.Ws. 1, 2 and 3 it is clear that the deceased Kesho Rajak was taken by the appellant on his bicycle at the Tiffin hours i.e. nearly 1.00 to 1.30 hours. Therefore, the circumstances connected the accused with the offence and the trial court has rightly convicted him. 14. Mr. Jai Prakash lastly contended that the deceased Kesho Rajak was last seen in the company of the appellant and another accused Arjun Kumar Verma. The trial court has acquitted the said Arjun Kumar Verma by the impugned judgment. In this regard he has cited A.I.R. 1979 S.C. 1949 in which the Apex Court has held:- "Ordinarily, when a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character. But where two accused were last seen with the deceased and though both should explain the disappearance of the deceased, one of them is acquitted of the charge of murder and no appeal is filed against his acquittal, the very circumstance that the deceased was last seen with them ceases to be of an incriminating character and the other accused cannot also be convicted solely on that basis." 15. Considering the evidence of witnesses and the materials on record, and applying the test of circumstantial evidence and considering the principles laid down by the Apex Court as stated earlier, we are unable to sustain the impugned judgment passed by the trial court. Therefore, this appeal is allowed. Conviction of the appellant for the offence under Sections 302 and 201 I.P.C. and both sentences imposed upon him by the trial court is set aside. As the appellant is on bail, the appellant is discharged from his liabilities of the bail bonds.