JUDGMENT : A.K. Trivedi, J.- Petitioner/informant has challenged the judgment of acquittal dated 10.10.2002 passed by Sri A.S. Lal, Presiding Officer, 1st, Fast Track Court, Samastipur in Sessions Trial No. 301 of 1993/15 of 2001 acquitting Opposite Party Nos. 1 and 2. 2. It has been submitted on behalf of petitioner that learned lower Court had not appreciated the evidence adduced on behalf of prosecution during course of conduction of trial as well as did not record sound reasoning for disapproving the same. The learned lower Court failed to consider that it was a case based upon circumstantial evidence that too on last seen theory. PW 1, PW 2, PW 3 and PW 4 were examined on last seen theory. The remaining witnesses were corroborative in nature. PW 11, the doctor who held post-mortem over deceased probablized the closed proximity in between the time of disappearance in consonance with the time of death without giving any occasion to the stranger an opportunity to access. Therefore, instead of acquitting the Opposite Party Nos. 1 and 2 the learned lower Court should have found him guilty. 3. It has also been submitted that the reasons so assigned for discarding the evidence of PW 1 to 4 was wrong and flimsy. All the witnesses have shown probability to witness the deceased Sidharth Shankar Dev @ Amit in company of opposite parties Sanjay Poddar and Tuntun Sah. It has also been submitted that prosecution had supported the motive for occurrence on account of land dispute. Hence, the chain of circumstance leading to culpability of the O.Ps has completely been interlinked leading to only and only inference regarding their guilt. As such, the judgment impugned is fit to be set aside. 4. On the other hand, the learned lawyer for the Opposite Party submitted that the learned lower Court had minutely observed evidence adduced on behalf of prosecution to search out whether chain of link is found to be inter connected in such manner pointing out guilt of O.Ps. It has further been submitted that none of the prosecution witness save and except PWs 1 to 4 are a witness to last seen. PWs 1 to 4, apart from being a chance witness, from their own conduct has shown their unreliability. Hence their evidence has lightly been discarded by the learned lower Court. 5. It has further been submitted that none of the prosecution witness save and except PWs 1 to 4 are a witness to last seen. PWs 1 to 4, apart from being a chance witness, from their own conduct has shown their unreliability. Hence their evidence has lightly been discarded by the learned lower Court. 5. It has further been submitted that post-mortem was conducted on 21.11.1992 at 4:40 p.m. wherein the time elapsed since death has been estimated within 72 hours. The missing of child is after 5:00 p.m. since 19-11-1992. That means to say even taking into account the evidence of doctor 19.11.1992 comes within 48 hours. The doctor in para-6 had stated that within 72 hours means after 48 hours and within 72 hours. That means to say the evidence of PW 1 to 4 that they have seen the deceased in company of Opposite Party on 19.11.1992 at 5:00 p.m. is nothing but a false and frivolous story because of the fact that till then, the deceased had already met his unfortunate death. Therefore, the judgment impugned did not require inference. 6. The learned Additional Public Prosecutor followed the same line of action. 7. On 21.11.1992 at about 1:45 p.m. informant PW 15, Shambhu Prasad Poddar had recorded his statement to the effect that on 19.11.1992 his son Sidharth Shankar Dev @ Amit aged about 11 years had gone to school situated at Patori Badhar. When he did not return at evening, he rushed to search him out but could not get any clue. On the following morning he rushed to Police Station and recorded Sanha for his missing. Even thereafter a sincere effort was being taken by him to locate his son and during course thereof, he came to know that during course of returning his son was called by his co-villager Sanjay Poddar, Tuntun Sao who were sitting since before at the shop of Dhannu Sao and provided 'Katchari' to him. Thereafter, they both took away his son. He had also gone to the houses of Sanjay Poddar as well as Tuntun but found them absconding. Then he came to know that a dead body of a boy has been taken out from a well whereupon he came and found the dead body that of his son. He further disclosed that Sanjay Poddar happens to be his nephew. He had also gone to the houses of Sanjay Poddar as well as Tuntun but found them absconding. Then he came to know that a dead body of a boy has been taken out from a well whereupon he came and found the dead body that of his son. He further disclosed that Sanjay Poddar happens to be his nephew. The motive for occurrence has been shown as the land dispute prevailing since before amongst them. 8. The police after registration of the case submitted charge-sheet whereupon trial commenced and concluded in a manner, the subject manner-of instant revision. 9. It is also evident from the lower Court record that apart from exhibiting the documentary evidence, the prosecution had examined altogether nineteen PWs. As stated above, PW 1 to 4 are the witnesses whose evidence would affect the ultimate prospect because of the fact that they are the witnesses who have supported the theme of last seen theory. The others are corroborative one. 10. PW 1 had stated that the occurrence is about 13-14 months ago. It was 5:00 p.m. While he was going to his house he had seen Amit in the shop of Dhannu where Amit, Sanjay and Tuntun who were eating 'Katchari'. He further stated that he had asked for Amit to accompanying him over which Sanjay had disclosed that they are coming on bicycle. Thereafter, he came to his house. On the following day he came to know that Amit was murdered after being kidnapped. His dead body was taken out from a well. In paragraph 6 he had stated that on the following morning at about 7-8 a.m. when he heard the news, he rushed to the place of informant and narrated the same. As such from his evidence, it is evident that the murder of deceased was on the following day of the day on which he had seen the deceased in company with O.P. Sanjay and Tuntun. He had affirmed the same by stating that dead body was taken out on the following day. That means to say, if his evidence is accepted then in that circumstance the deceased was seen in the company of Sanjay and Tuntun on 19.11.1992 at 5:00 p.m. and his dead body was found on 20.11.1992 and not on 21.12.1992 as stated by the prosecution. That means to say, if his evidence is accepted then in that circumstance the deceased was seen in the company of Sanjay and Tuntun on 19.11.1992 at 5:00 p.m. and his dead body was found on 20.11.1992 and not on 21.12.1992 as stated by the prosecution. That means to say from his evidence not only the factum of recovery of dead body rather reliability of whole prosecution case has become under interrogation mark. 11. PW 2 had stated that on 19.11.1992 at about 5:00 p.m. while he was returning from Purani Bazar Patori, and reached near Cinema Chowk, he found Amit siting over bicycle which was being pedalled by Sanjay. Tuntun was following on another bicycle. They were going towards Eastern direction. On the same night there was uproar over non-returning of Amit. On the following morning his dead body was found. In cross-examination at para-6 he had stated that he arrived at his house at 6:30-07:30 p.m. He had not gone to the place of informant to inform that he had seen Sanjay taking away Amit followed by Tuntun. Again from this evident, it is crystal clear that the dead body was found on the following day that of 19.11.1992, the day on which he had witnessed the deceased in company with Sanjay followed by Tuntun and so like PW 1, he had improbalized the prosecution version, as narrated. 12. PW 3 had stated that when he reached at Patori Dhaba he found Sanjay and Tuntun taking away Amit. Both were on two different bicycles. Amit was over Sanjay's bicycle. They have came out from a Katchari shop. On the following morning he came to know that Sanjay and Tuntun had murdered Amit. He had gone to see the dead body. Again from his evidence the similar kind of disclosure is coming out whatever been stated by the PW 1 and PW 2 and so, his evidence also rules out authentication of prosecution version as suggested. 13. PW 4 had stated that on 19.11.1992 at about 5:30 p.m. while he was sipping tea at tea stall near Cinema Chowk. He saw Amit over bicycle of Sanjay followed by Tuntun Sao. After two days, he came to know that both of them have murdered Amit. In para-5 he had disclosed that informant happens to be his friend. In para-7 he had stated that he had talked with informant on 22.11.2012. He saw Amit over bicycle of Sanjay followed by Tuntun Sao. After two days, he came to know that both of them have murdered Amit. In para-5 he had disclosed that informant happens to be his friend. In para-7 he had stated that he had talked with informant on 22.11.2012. From this part of evidence, his unnatural conduct is exposed as being friend of informant, it was expected by way of natural conduct to have informed the informant whatsoever been seen by him on 19.11.1992 at about 5:00 p.m. 14. PW 5 is formal witness. PW 6 is the witness who had seen the dead body in the well and the same was taken by the police. PW 7 also happens to be on that very score. PW 8 is the inquest witness. PW 10, PW 11, PW 14, PW 16, PW 18 and PW 19 are formal witness. 15. PW 9 is uncle of deceased who had stated that when his nephew Sidharth Shankar Dev did not return from his school. Sarswati Shishu Mandir, Patori then he along with his brother and some more gone to Patori Bazar but failed to locate him and on account thereof, on the following morning Shambhu had gone to P.S. and informed the police. 16. During course of search, at about 2:00 p.m. they came to know that on 19.11.1992 in the evening Amit was in company of Sanjay and Tuntun at the Katchari Shop of Dhannu Sao. This information was given to him by Ram Pravesh (PW 1) over which they have gone to search the accused but found them missing. On 21.11.1992 during course of search they gone to Patori where they came to know about presence of dead body in a well. When they reached they found police since before. He had further stated that there was land dispute and so he apprehends hands of accused in the crime. In para-7 of his cross-examination he had stated that on 20.11.1992 itself he was informed by Ram Pravesh Chaudhary regarding Amit having in company of Sanjay and Tuntun, even then he had not informed the police. He had further stated that there was land dispute and so he apprehends hands of accused in the crime. In para-7 of his cross-examination he had stated that on 20.11.1992 itself he was informed by Ram Pravesh Chaudhary regarding Amit having in company of Sanjay and Tuntun, even then he had not informed the police. In para -8 he had stated that on 21.11.1992 at about 9:00 a.m. he had made statement regarding disappearance of accused as well as with regard to incidence relating to Dhannu Sao Katchari Shop while the dead body was recovered at 11:00 a.m. He had also informed that he had stated before the police regarding source of information from Ram Pravesh. From his evidence, it is crystal clear that he is not an eye-witness to occurrence save and except, the narration whatever stated happens to be based upon information given by Ram Pravesh, PW I, who did not utter a word on this score. Hence, this witness lost his identity as hearsay witness. 17. PW 13 is the elder brother of deceased. He had narrated the incident in same and similar tone with a disclosure that on the following day while they were in search to deceased they met with Ram Pravesh Chaudhary who had disclosed that he had seen Amit in company of Sanjay and Tuntun yesterday evening. He had further stated that they have rushed to P.S. and narrated the same. They have gone to place of Sanjay and Tuntun and found them absent which was also informed to the police. On 21.11.1992 the dead body was recovered. So from his evidence, it is apparent that on the following morning they have already known to the fact that deceased was taken away by Sanjay and Tuntun. However, this witness had step ahead by stating that they have gone to police and had informed the same but surprisingly enough no case was instituted on 20.11.1992 nor is supported by the evidence of the Investigating Officer. 18. PW 15 is the informant himself. During examination-in-chief he had narrated the same version which he had stated by, way of fardbeyan including the motive. He had further stated that he came to know from Ram Pravesh Choudhary as well as Dhannu Sao, a new fact to the extent of Dhannu Sao. 18. PW 15 is the informant himself. During examination-in-chief he had narrated the same version which he had stated by, way of fardbeyan including the motive. He had further stated that he came to know from Ram Pravesh Choudhary as well as Dhannu Sao, a new fact to the extent of Dhannu Sao. He had further admitted in para-5 of his cross-examination that he had not mention in his fardbeyan regarding source of knowledge from Ram Pravesh and Dhannu. 19. PW 17 happens to be the Investigating Officer who had stated that on 21.11.1992 at about 12:30 hours he heard rumour regarding presence of dead body in a well at Sahpur Mundi over which he rushed, and taken out the dead body. Till then, the father of deceased had also arrived who identified dead body and on account thereof, recorded fardbeyan. Prepared inquest report. Inspected the place. Also inspected shop of Dhannu Mahto and then recording statement of the witnesses, he submitted charge-sheet. During cross-examination he had fairly admitted that he had not gone to the school to see the attendance register, to take statement of the teacher. 20. PW 11 is the doctor who had conducted post-mortem over the dead body of Amit Kumar on 21.11.1992 at 4:40 p.m. and found the following ante-mortem injury : Rigor mortis was absent in all four limbs. Decomposition started. (i) Bruise 2" x 1" transverse our front of neck, in. middle (not legible) skin 1/2'. (ii) On Dissection ecymosis of subcutaneous tissues below injury No. 1 present on further dissection trachea of thyroid bone present. Laceration of fracture present. Blood clot present in the hymen of trachea. (iii) Time elapsed since death within 72 hours. Nature of weapon hard and blunt substance. Death in the opinion of doctor was due to shock and asphyxia caused by throttling. Injuries were sufficient to cause death in the ordinary course of nature. 21. In Majendran Langeswaran v. State (NCT of Delhi) & Anr., reported in (2013) 7 SCC 192 the principles decided by the Hon'ble Apex Court over nature of evidence requiring for proving a case based upon circumstantial evidence been taken into consideration and dealt with in following way: “17. 21. In Majendran Langeswaran v. State (NCT of Delhi) & Anr., reported in (2013) 7 SCC 192 the principles decided by the Hon'ble Apex Court over nature of evidence requiring for proving a case based upon circumstantial evidence been taken into consideration and dealt with in following way: “17. In the case of Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 , this Court observed as under : “10.......It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be• fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far 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." 18. In the case of Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706, this Court opined as under : "10. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests : (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 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; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351 )." 19. In the case of C. Chenga Reddy & Ors. v. State of A.P., (1996) 10 SCC 193 , this Court while considering a case of conviction based on the circumstantial evidence, held as under: "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the Courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence." 20. In the case of Ramreddy Rajesh Khanna Reddy v. State of A.P., 2006 (2) East. Cr C 202 (SC) : (2006) 10 SCC 172 , this Court again considered the case of conviction based on circumstantial evidence and held as under: "26. In the case of Ramreddy Rajesh Khanna Reddy v. State of A.P., 2006 (2) East. Cr C 202 (SC) : (2006) 10 SCC 172 , this Court again considered the case of conviction based on circumstantial evidence and held as under: "26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603 )." 21. In the case of Sattatiya v. State of Maharashtra, 2008 (2) East Cr C 132 (SC) : (2008) 3 SCC 210 , this Court held as under : "10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The Court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." This Court further observed in the aforesaid decision that : "17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial Court and the High Court Bharat v. State of M.P., (2003) 3 SCC 106 . In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime." 22. In the case of State of Goa v. pandurang Mohite. (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593 , this Court elaborately dealt with the subject and held as under: "23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction, must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction, must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the Court has to Judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the Court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the Court." 24. In the case of Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 , while dealing with the case based on circumstantial evidence, this Court observed as under : "12. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime. 13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person." 25. Last but not least, in the case of Brajendrasingh v. State of M.P., (2012) 4 SCC 289 , this Court while reiterating the above principles further added that: "28. Last but not least, in the case of Brajendrasingh v. State of M.P., (2012) 4 SCC 289 , this Court while reiterating the above principles further added that: "28. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. (Ref. Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220 ; Shivu v. High Court of Karnataka, (2007) 4 SCC 713 and Shivaji v. State of Maharashtra, (2008) 15 SCC 269 )" 26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else." 22. The deficiency persisting in the evidence of PW 1 to 4 had already been pointed in forgoing paragraph which exclude claim of PW 1 to PW 4 to be an eye-witness over last seen theory. Apart from this, from the evidence of doctor PW 11 it is also evident that it rules out status of PW 1 to PW 4 to stand as an eye-witness on the theme of last seen having the deceased Amit in company of Sanjay and Tuntun on 19.11.1992 because of the fact that till then, as per evidence of PW 11, deceased had already met with his unfortunate death. The evidence of brother of informant, elder son of informant, and informant himself with regard to complicity of these two petitioners cannot be relied upon because of the fact that they have come to know from Ram Pravesh, PW 1, who had not supported the same. The informant had developed by way of suggesting that he also got information from Dhannu, the shopkeeper. However, the prosecution withheld the Dhannu reason best known to it. 23. The next circumstance with regard to motive is not found at all supported by the Investigating Authority as the Investigating Officer was not shown the place alleged to have encroached by the accused Sanjay nor the witnesses ascribe it by khata number, khesra number. As stated above, with regard to case based upon circumstantial evidence, the chain of circumstances should be interlinked in, such manner that no other hypothesis than the guilt of the accused comes out. Now coming to the facts of the case, it is evident that the chain of circumstances is not at all found to be duly interlinked. 24. When two views could be found on the evidence available on the record then the view having in favour of accused is to be adopted, more particularly when there happens to be judgment of acquittal. Consequent thereupon, the finding recorded by the learned lower Court acquitting the opposite party. Sanjay and Tuntun is found to be just, legal and proper. The instant petition lacks merit and is dismissed accordingly. Petition dismissed.