JUDGMENT Imtiyaz Murtaza, J. – Challenge in this appeal is to the judgment and order dated 15-12-2006, passed by Additional Sessions Judge/FTC, Room No. 10, Sultanpur in Sessions Trials No. 53/99 and 54/99, convicting the appellant under Section 302,1 PC and sentencing him to undergo imprisonment for life and fine of Rs.5000 and in default of payment of fine, further imprisonment for two years and under Sections 3 and 25 of the Arms Act, imprisonment for two years and fine of Rs. 2000 and in default of payment of fine, further imprisonment for one year. 2. Briefly stated, according to the prosecution case, informant Om Prakash Prajapati was a servant in the house of Ram Deo Verma, a retired engineer. On 12-11-1998, he returned home at 9 p.m. after his master had taken his dinner. At about 1 O'clock in the night, he heard a gunshot and hue and cry. He came out of his house and reached the house of his master where several persons had gathered. The people collected there informed him that some miscreants had come and they had fired at his master. He then through a ladder reached the verandah of the house and saw that his master Ram Deo was lying dead. He cried that someone had committed his murder by firing a bullet on his head. Thereafter he lodged a report of the occurrence at the police station. 3. After registration of the case, P.W. 8 Vijay Singh commenced investigation. He recorded the statement of the first in formant. On his pointing out, he prepared the site-plan. He recovered a blood stained bullet from the spot and prepared its recovery memo Ext.Ka-2. He also collected blood-stained bed-sheet and pillow cover and prepared its memo Ext. Ka-3. He also recovered an empty cartridge of 315 bore vide memo Ext.Ka-4. On 14-1-1998, he recorded the statements of inquest witnesses. He also prepared a seizure memo of ladder, which is Ext.Ka-7, On 15-11-1998, he interrogated the accused, nephew of the deceased and there after he was arrested. On his pointing out, a 315 bore country-made pistol was re covered and recovery memo Ext.Ka-8 was prepared. He also prepared the site-plan of the place of recovery this fire-arm, Ext.Ka-10. On conclusion of the investigation, he submitted charge-sheet Ext.Ka-11 against the accused: 4. After submission of the charge- sheet, the case was committed to the Court of sessions. On his pointing out, a 315 bore country-made pistol was re covered and recovery memo Ext.Ka-8 was prepared. He also prepared the site-plan of the place of recovery this fire-arm, Ext.Ka-10. On conclusion of the investigation, he submitted charge-sheet Ext.Ka-11 against the accused: 4. After submission of the charge- sheet, the case was committed to the Court of sessions. The Sessions Judge framed charges against the accused under Sections 302, I.PC. And Section 25 of Arms Act, to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution has examined twelve witnesses. 6. P.W. 1 Indrasen Singh is not an eye witness of the case. He deposed that Ram Deo Verma was a retired engineer and Om Prakash Prajapati was his servant. He also reached the spot after hearing the shot fired at Ram Deo Verma Some boys reached the Verandah through a ladder and saw the dead-body of Ram Deo Verma-lying there. He also proved the inquest report Ext. Ka-1 as well as recovery memos and police papers Exts. Ka-2, Ka-3, Ka-4 and Ka-5. 7. P.W.2 is the first informant. He is not an eye-witness of the incident. He proved his signature on the First Information Report which is Ext.Ka-6. He was declared hostile. He admitted his signatures on Exts. Ka-5, Ka-7 and Ka-8. 8. P.W.3 is Surendra Bahadur Singh alias Bajaee Singh. He is also not an eye witness of the occurrence. He deposed that Ram Deo was an engineer by profession. After retirement, he settled at his village and lived in his ancestral house. His nephew Onkar Nath and his brothers were also living in the same house. Prior to his retirement, his fields were being cultivated by Onkar Nath and his family members. 9. P.W. 4 Pradeep Kumar Singh de posed that Ram Deo was residing in his village. He had heard the gun-shot. On hearing the hue and cry, he reached the place of occurrence, where several villagers had collected. Ram Deo was lying dead on his cot. He was also declared hostile. 10. P.W. 5 is Bhutendra Bahadur Singh, who has proved recovery memos Exts. Ka-2 and Ka-3. 11. P.W. 6 Ram Abhilakh deposed that he studied in Primary School alongwith Ram Deo Verma. His did not know whether relations of the deceased with Onkar Nath were cordial. Ram Deo was lying dead on his cot. He was also declared hostile. 10. P.W. 5 is Bhutendra Bahadur Singh, who has proved recovery memos Exts. Ka-2 and Ka-3. 11. P.W. 6 Ram Abhilakh deposed that he studied in Primary School alongwith Ram Deo Verma. His did not know whether relations of the deceased with Onkar Nath were cordial. He did not support the prosecution case about the recovery of country made pistol on the pointing out of the accused, but he ad mitted his signature on the recovery memo relating to country-made pistol Ext. Ka-8. 12. P.W. 7 Yogendra Kumar proved his signature on recovery memo Ext. Ka- 7. He deposed that at times, Ram Deo and Onkar Nath used to quarrel with each other. Ram Deo was living separately and his servant Om Prakash used to cook his meals. He expressed his ignorance about the enmity of the deceased, with Onkar Nath over the selling of Pakadi field. 13. P.W. 8 Vijay Singh is the Investigating Officer of the case. This case was registered in his presence. He inspected the spot, prepared the site-plan of the place of occurrence, recorded the statements of witnesses and completed all necessary formalities. On conclusion of the investigation, he submitted charge-sheet Ext. Ka-11 against the accused. 14. P.W. 9 Bankey Yadav was posted as Constable Moharrir at P.S.Chanda. He prepared Chik report on the basis of written report submitted by the first informant and made relevant entries in the G.D. 15. P.W. 10 Dr. C.P.Tiwari conducted the post-mortem examination on the dead-body of Ram Deo Verma. He found the following ante-mortem injuries on the dead-body: (1) Fire-arm wound of entry in an area of 9 cms and 4 cm x brain deep over left side temporal region including whole left ear, blackening and tattooing present all around wound. Margins were inverted. (2) Fire-arm wound of entry in an area of 2 cm x 2 cm x chest cavity deep, 15 cms below from left axilla. Margins were inverted, blackening, tattooing and charring present all around wound. (3) Lacerated wound 2 cms. x 2 cms x chest cavity deep over right lateral side of chest, nearly 18 cm. below-froni right axilla. Margins were everted. Injuries No. 2 and 3 were corresponding to each other. 16. Margins were inverted, blackening, tattooing and charring present all around wound. (3) Lacerated wound 2 cms. x 2 cms x chest cavity deep over right lateral side of chest, nearly 18 cm. below-froni right axilla. Margins were everted. Injuries No. 2 and 3 were corresponding to each other. 16. In the opinion of the doctor, death occurred due to coma, shock and haemorrhage as a result of fire-arm ante-mortem injuries. 17. P.W. 11 Kandhaee Yadav has proved the sanction granted by the District Magistrate for prosecution of the accused under Section 25 Arms Act, which is Ext.Ka-23. 18. P.W. 12 is constable Ram Keval Pathak. He has proved the recovery of fire arm used in the commission of the crime at the pointing out of the accused. 19. The Court has examined one Ram Siromani Verma, C.W. 1, who is the son of deceased Ram Deo Verma. He has stated that after retirement, his father Ram Deo Verma was residing in the village. Ram Deo Verma had turned his wife (mother of the witness) out of the house on seduction of the mother of Onkar Nath, who had also got executed a will in favour of her children from the deceased. Ram Deo stayed with Onkar Nath for five or six months and thereafter he started living separately due to indifferent behaviour of the accused. Ram Deo had sold some land, the possession of which was denied to be delivered by the accused, who was stating to the vendees that he had got a will in respect of the said land executed in his favour. This episode was told by Ram Deo to some of his friends in the village, to whom he had also expressed his apprehension that there was danger to his life at the hands Onkar Nath. The witness further stated that when Onkar Nath came to know about all these things, he under the apprehension that his uncle (Ram Deo Verma) would get his name removed from revenue papers relating to agricultural land, committed his murder and also got removed the name of this witness and the name of his mother from Kutumb Register so that he may not be able to get any share in the property. 20. The Sessions Judge after considering the entire evidence on record, convicted the appellant and sentenced him as mentioned above. 21. 20. The Sessions Judge after considering the entire evidence on record, convicted the appellant and sentenced him as mentioned above. 21. We have heard Sri A. P. Misra, Advocate for the appellant and Sri S.B. Verma, learned AGA for the State. 22. Counsel for the appellant challenged the findings of the trial Court on the ground that the appellant has been falsely implicated in this case and chain of circumstantial evidence is not complete. 23. Per contra, learned AGA has supported the prosecution case. 24. In order to appreciate the sub mission made by the parties' Counsel, we have gone through the entire evidence on record. 25. In the instant case there is no eye-witness account of the prosecution and the case rests upon circumstantial evidence. The settled preposition of law regarding the circumstantial evidence is clear as held by the Apex Court in the ease of Padala Veer a Reddy v. State of A.P., reported in AIR 1990 SC 79 , wherein it was laid down 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 conclu sion 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." 26. The Sessions Judge, while convicting the appellant, has considered the following incriminating circumstances against him: (i) Deceased Ram Deo was uncle of accused Onkar Nath. The motive for committing the crime was that the accused wanted to grab the properties of the deceased. (ii) On the night of incident, when the servant of the deceased went to his house after giving food to the deceased who slept on his bed, the accused was sleeping on the ground floor. The motive for committing the crime was that the accused wanted to grab the properties of the deceased. (ii) On the night of incident, when the servant of the deceased went to his house after giving food to the deceased who slept on his bed, the accused was sleeping on the ground floor. At about 1 O'clock, the accused reached near the deceased through a wooden ladder, shot one bullet on his head which broke the bones of the head of the deceased. The bullet was recovered from the head. The accused fire second shot which hit the deceased on his chest and passed through and through and the bullet was recovered from the bed. (iii) Recovery of country made pistol from the pile of bricks kept behind the house of-the accused on his pointing out. (iv) In order to mislead, the accused had fired from his licensed gun and he did not lodge the report. He was also not disturbed on account of incident. 27. We have considered the aforesaid incriminating circumstances and have also perused the entire evidence on record. 28. So far as the first incriminating circumstance regarding motive for committing the murder in order to grab the properties of the deceased is concerned, the evidence of C.W. 1 Ram Siromani Verma is relevant. He is son of the de ceased. He has proved the motive for committing the crime. It is a settled position that presence of a motive is not enough for convicted a person for a crime. In the case of Sunil Rai v. UT, Chandigarh, (2011) 12 SCC 258 , the Apex Court has held that: "(31)... In any event, motive alone can hardly be a ground for conviction. (32) On the materials on record, there may the some suspicion against the accused, hut as is often said, suspicion, howsoever strong, cannot take the place of proof." 29. The second incriminating circumstance relied upon by the trial Court is about the manner of the crime com mitted by the appellant. The Sessions Judge has held that on the night of occurrence, the appellant reached near the deceased and fired two shots. We have perused the entire evidence on record and we are of the opinion that there is no legally admissible evidence to support this incriminating circumstance. The Sessions Judge has held that on the night of occurrence, the appellant reached near the deceased and fired two shots. We have perused the entire evidence on record and we are of the opinion that there is no legally admissible evidence to support this incriminating circumstance. The Sessions Judge placed reliance on the confessional statement of the accused recorded by the Investigating Officer before recovery of the weapon on his pointing out. Section 25 of the Evidence Act discards the admissibility of such confessions made to a police officer. It reads as hereinunder: "25. Confession to police officer not to be proved. -- No confession made to a police officer, shall he proved as against a person accused of any offence." 30. In view of the above, we are of the opinion that the Sessions Judge has wrongly relied upon this incriminating circumstance. 31. The third incriminating circum stance is about the recovery of country- made pistol on the pointing out of the accused under Section 27 of the Evidence Act. Another important point for consideration in connection with this circumstance is that the empty cartridge, which is alleged to have been recovered from the place of crime, tallied with this pistol. The ballistic expert's report is on the record which shows that the empty cartridge Ext. 1 tallied with the weapon. It is significant to note that none of the independent witnesses has supported this evidence, but on this ground recovery of weapon cannot be disbelieved. The contention of the Counsel for the appellant is that nothing has been recovered on the pointing out of the accused and this pistol has been planted by the police to support a false case against him. It is submitted that even if recovery is believed under Section 27 of the Evidence Act, it is not sufficient to connect the appellant with the crime. We have perused the evidence on record. The bal listic expert's report shows that the weapon of the crime was received by the ballistic expert on 8-1 -1999 whereas the recovery of the weapon was made on 15- 11-1998. The empty cartridge Ext. 1 was received beyond reasonable doubt. 32. All the appeals are, therefore, allowed. The judgment and order under appeal is set aside. 33. Appellant Shri ram is in jail. He shall be released forthwith unless wanted in some other case. 34. The empty cartridge Ext. 1 was received beyond reasonable doubt. 32. All the appeals are, therefore, allowed. The judgment and order under appeal is set aside. 33. Appellant Shri ram is in jail. He shall be released forthwith unless wanted in some other case. 34. The office is directed to communicate this judgment and order immediately to the trial Court for necessary compliance. Appel allowed.