JUDGMENT : A. K. SHRIVASTAVA, J. Feeling aggrieved by the judgment of conviction and order of sentence dated 18-10-1996 passed by learned Second Additional Sessions Judge, Seoni in Sessions Trial No. 94/1995 convicting the appellants under section 302, Indian Penal Code and thereby sentencing them to suffer life imprisonment and fine of Rs. 500/- each; in default of payment of fine additional S.I. of one month, the appellants have taken the shelter of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. During pendency of this appeal, appellant No. 2 Rajkumar s/o Jethu Gond died and eventually, his name was deleted from the cause title since the appeal has abated against him. 3. In brief, the case of the prosecution is that deceased, namely, Bajari (hereinafter referred to as "the deceased") had gone to the market to consume liquor and when he was coming back to home after consuming liquor, on the way, nearby temple of Hanumanji the accused persons who were four in number were sitting and they restrained the deceased to pass through the public path. On this point, the accused persons caused marpeet to the deceased and thereafter stone bolder was thrown upon him as a result of which he died. On 28-5-1995 Ramsingh (PW-12) found the dead body of the deceased upon which the stone bolder was also lying as a result of which this witness lodged the report against unknown persons. 4. A marg was registered and investigating agency arrived at the spot. The dead body of the deceased was sent for post-mortem. After collecting the evidence, investigating agency found that since the appellants had quarrelled with the deceased earlier to the incident, they have committed the offence and arrested them. 5. After the investigation was over, a charge-sheet was submitted in the committal Court which on its turn committed the case to the Court of Session where the appellants were tried. 6. Learned Trial Judge on the basis of the averments made in the charge-sheet, framed the charge punishable under section 302, Indian Penal Code against all the accused persons, which they denied and requested for the trial. 7. In order to bring home the charges the prosecution examined as many as 13 witnesses and also placed Ex.P-1 to P-18, the documents on record. 7. In order to bring home the charges the prosecution examined as many as 13 witnesses and also placed Ex.P-1 to P-18, the documents on record. The defence of the accused persons is of false implication and same defence they set forth in their statement recorded under section 313, Criminal Procedure Code and in support they examined one Shyamlal (DW-1), who has deposed that the deceased was quarrelling with one Sukrat and at that juncture the accused persons were not there. 8. Learned Trial Judge on the basis of the evidence placed on record found that the charge under section 302, Indian Penal Code has been proved against all the accused persons and eventually convicted the appellants and passed the sentence which I have mentioned herein-above. 9. In this manner, this appeal has been filed by the appellants assailing the judgment of their conviction and order of sentence. 10. The contention of learned counsel for the appellants is that in the present case there is no direct evidence against the accused persons and case of the prosecution is based upon circumstantial evidence. It has also been put forth that if the case rests upon the circumstantial evidence, the prosecution is obliged to collect all relevant pieces of evidence so as to form a complete chain unerringly pointing out the guilt towards the accused persons leaving behind no hypothesis. According to them, the only circumstance which has been collected against the appellants is that they were seen last along with the deceased in drunken condition and they were hurling abuses to each other. Learned counsel further submits that this could hardly be a ground unerringly pointing out the guilt towards the accused persons holding them to be guilty of the offence punishable under section 302, Indian Penal Code. It has also been put forth by learned counsel that motive part is also lacking in the case of the prosecution and therefore, on the basis of conjectures and surmises the accused persons cannot be convicted. Hence, it has been prayed that by allowing this appeal the appellants be acquitted from the charge punishable under section 302, Indian Penal Code. 11. Hence, it has been prayed that by allowing this appeal the appellants be acquitted from the charge punishable under section 302, Indian Penal Code. 11. On the other hand, Shri C. K. Mishra, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by learned trial Court convicting the appellants for the offence punishable under section 302, Indian Penal Code and passing the impugned sentence. Hence, it has been prayed that this appeal be dismissed. 12. Having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. 13. The Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 has laid down the principles to convict an accused if the case rests upon the circumstantial evidence and we think it apposite to quote those circumstances, 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 guilt 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. To us, the case based upon circumstantial evidence can be said to be proved only when there is certain and explicit evidence and no person can be convicted on moral conviction. To us, the case based upon circumstantial evidence can be said to be proved only when there is certain and explicit evidence and no person can be convicted on moral conviction. The same principle has been enumerated in another decision of the Supreme Court, K. V. Chacko alias Kunju vs. State of Kerala, (2001) 9 SCC 277 wherein, the Apex Court in para-5 of its judgment has laid down the same principles and we think it germane to quote the principles which are laid down, thus :- "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." The Supreme Court in a later decision Ashish Batham vs. State of M.P., (2002) (7) SCC 317 has also laid down the same principles. 14. On the basis of the principles laid down by the Apex Court in the aforesaid decisions, we shall now examine the evidence of the prosecution on the touchstone and anvil of the aforesaid tests. The prosecution has examined two witnesses of last seen and they are Banshilal (PW-8) and Dheersingh (PW-9). Banshilal (PW-8) has stated that he is acquainted with two accused persons only; they are Dilip and Rajkumar. According to him, on the fateful day in the evening he came to the place of occurrence because his Ox was missing and he was in search of his Ox. When he came nearby Hanumanji Ki Madia he found Dilip, Rajkumar and deceased at that place. According to him, what they were saying to each other, he cannot say, although he has stated that all these three persons were found in drunken state. He is further stating that some altercation was taking place between these three persons. When he came nearby Hanumanji Ki Madia he found Dilip, Rajkumar and deceased at that place. According to him, what they were saying to each other, he cannot say, although he has stated that all these three persons were found in drunken state. He is further stating that some altercation was taking place between these three persons. In the present case, there are two accused persons; first appellant Dilip is the son of Buddhulal while fourth appellant Dilip is the son of Sunderlal Gond. In these facts and circumstances, according to us, it was for the prosecution to prove that which Dilip was present when this witness arrived. At the most the only conclusion which could be arrived at on the basis of the evidence of this witness is that two persons, namely, Dilip and Rajkumar were present but what about other two co-accused persons whether they were present or not, this witness is not stating anything. If the statement of this witness is stretched to the last extent, at the most it can be inferred that some altercation was taking place between the deceased and two accused, namely, Dilip and Rajkumar and nothing more. According to us, this could hardly be a circumstance to hold that the appellants had committed the offence under section 302, Indian Penal Code. Nowhere this witness has stated that altercation was taking place upto the extent that the appellants were giving threat to kill the deceased. 15. True, the other witness Dheersingh (PW-9) who has also been examined on the point of last seen by the prosecution has deposed that all the four accused persons were present there and all of them were hurling abuses to the deceased. This witness also says that appellants as well as the deceased were in drunken state. According to this witness, the accused persons were adamant to beat the deceased. However, if the testimony of this witness is marshalled and considered upon the touchstone and anvil of the earlier eyewitness Banshilal (PW-8), according to us, it is not certain that which of the two accused persons were present at the spot because Banshilal (PW-8) states that only two accused persons were there while this witness says that in all there were four accused persons. 16. 16. The evidence of both the witnesses of last seen cannot be relied for another reason that it has come in the testimony of Dheersingh (PW-9) that he and Banshilal were together and they saw the deceased and accused persons hurling abuses to each other. Even if the statement of these witnesses is stretched upto the last extent it would be inferred that some altercation was taking place between the deceased and some of the accused persons but who were actual those accused persons, there is absolutely no definite evidence in this regard. Thus, it is difficult to place reliance upon the testimony of these two eyewitnesses that they had seen the accused persons last in the company of the deceased. 17. We do not find any substance in the submission of learned Public Prosecutor that Dheersingh (PW-9) is reliable because when after seeing the accused persons hurling abuses to the deceased he went to a restaurant where he was enjoying the sip of tea, at that juncture, all the four accused persons arrived there but the deceased was not there. Since there is absolutely no evidence that the deceased and accused persons had gone together and therefore, even if this piece of evidence is found to be true, it was not possible for the deceased to accompany the accused persons to the restaurant because as per prosecution's own case, all of them were quarrelling with each other and if that is the position, certainly deceased and accused will never go jointly to enjoy the tea. There is absolutely no evidence of this witness that after seeing the accused persons alone in the restaurant he again went to the spot to find out what had happened to the deceased. Therefore, according to us, the complete chain of evidence has not been formed unerringly pointing out the guilt towards the appellants. 18. In the present case, there is no motive to kill the deceased. According to us, if the case rests upon the direct evidence, the motive part is totally insignificant. However, it is having some significance if the case rests upon the circumstantial evidence. In this context, I may profitably place reliance upon the decision of the Apex Court, Surinder Pal Jain vs. Delhi Administration, 1993 Supp (3) SCC 681 wherein the Apex Court in para-11 has held as under :- "...... However, it is having some significance if the case rests upon the circumstantial evidence. In this context, I may profitably place reliance upon the decision of the Apex Court, Surinder Pal Jain vs. Delhi Administration, 1993 Supp (3) SCC 681 wherein the Apex Court in para-11 has held as under :- "...... In a case based on circumstantial evidence, motive assumes, pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof." This point was again considered by the Apex Court in Sukhram vs. State of Maharashtra, (2007) 7 SCC 502 . We think it apt to quote para-20 of the said decision, which reads thus :- "In the present case, indubitably there is no eyewitness and the prosecution had sought to establish the case against the appellants from circumstantial evidence. It is trite to say that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence. Therefore, the evidence has to be carefully scrutinized and each circumstance should be dealt with carefully to find out whether the chain of the established circumstances is complete or not. (See : Dhananjoy Chatterjee vs. State of W.B. (1994) 2 SCC 220 ). It also needs to be emphasized at this stage itself that in a case based on circumstantial evidence motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning." In the present case, since the motive part is lacking in the testimony of any witness, we do not have any scintilla of doubt that it is not proved. 19. 19. For the reasons stated hereinabove, even by accepting the sole circumstance of alleged last seen and by extending it to the last point it would not form a complete chain unerringly pointing out the guilt against the appellants so as to hold that they have committed the culpable homicide amounting to murder. Thus, we do not have any option except to allow this appeal by extending our benefit of doubt to them. 20. Ex consequenti, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellants are acquitted from the charge punishable under section 302, Indian Penal Code. The appellants are on bail. However, first appellant Dilip s/o Buddhulal jumped the bail and he was taken into custody. He be released forthwith, if not required in any other case. The bail bonds of the appellants shall stand discharged. At the cost of repetition, we may further say that second appellant Rajkumar died during pendency of the appeal and appeal has already abated against him.