JUDGMENT Akhtar Husain Khan, J. 1. Present appeal has been filed by accused appellants Ashok Kumar and Shankar Lal under Section 374 Cr.P.C. against the judgment and order dated 7.7.1993 passed by Xth Additional District and Sessions Judge, Aligarh in S.T. No. 480 of 1992, State Vs. Ashok Kumar and others, whereby learned Additional Sessions Judge, Aligarh has convicted accused appellants Ashok Kumar and Shankar Lal for the offences punishable under Sections 302, 364, 201 I.P.C. and sentenced each of them for offence punishable under Section 302 I.P.C. with imprisonment for life, for offence punishable under Section 364 I.P.C. to rigorous imprisonment for three years and for offence punishable under Section 201 to rigorous imprisonment for two years. Learned Additional Sessions Judge, Aligarh directed that all the sentences of accused appellants shall run concurrently. 2. Sri Pramod Bhardwaj, learned counsel appeared for accused appellants and Sri Narendra Kumar Singh Yadav, learned A.G.A. appeared for State respondent. 3. We have heard the arguments of the parties and perused the records. 4. According to First Information Report Ext. Ka.-1 prosecution case is that Rani Sharma daughter of complainant Dhani Ram Sharma was married to accused Ashok Kumar on 4.3.1983. Complainant Dhani Ram Sharma invested Rs. 50,000/- for dowry but accused Ashok Kumar and his father were not satisfied with dowry and began to harass daughter of complainant for dowry immediately after marriage. Complainant tried to solve the issue and went to the house of accused with his brother-in-law Charan Singh several times to convince accused but they did not concede and kept continued harassment of his daughter. On 25.2.1988 they mercilessly beat her. She lodged F.I.R. and case was registered against accused but due to intervention of relatives settlement was made and accused assured that they shall not harass daughter of complainant in future. Whereupon complainant sent his daughter with accused Ashok Kumar and his brother-in-law Shanti Swaroop but again father-in-law Shankar Lal as well as mother-in-law and devars of complainant's daughter started harassment of her. Complainant's daughter and son-in-law accused Ashok Kumar took residence in Mohalla Chandaniya in the house of Chunni Lal, from where accused Ashok Kumar, his father accused Shankar Lal and his brother-in-law accused Shanti Swaroop took daughter of complainant and informed Chunni Lal landlord of the house that they are going for taking bath at Haridwar. Complainant's daughter and son-in-law accused Ashok Kumar took residence in Mohalla Chandaniya in the house of Chunni Lal, from where accused Ashok Kumar, his father accused Shankar Lal and his brother-in-law accused Shanti Swaroop took daughter of complainant and informed Chunni Lal landlord of the house that they are going for taking bath at Haridwar. They were seen by Banke Lal P.W.-1 also alongwith daughter of complainant in front of Gandhi Hospital in Aligarh City. At that time they also told to Banke Lal that they are going to Haridwar for taking bath. Thereafter complainant tried to know about his daughter with his son-in-law accused Ashok Kumar and his family members but they did not give satisfactory answer. Complainant himself made search of his daughter but could not trace her. 5. In F.I.R. Ext. Ka-1 complainant expressed apprehension that said three accused has abducted her daughter and killed her. 6. First Information Report Ext. Ka-1 was presented by complainant Dhani Ram Sharma on 5.4.1990 at 13.55 P.M. whereupon Crime No. 116 of 1990 under Section 364 I.P.C. was registered in P.S. Kwarsi, District Aligarh against accused Ashok Kumar, Shankar Lal and Shanti Swaroop and investigation was started by police. After investigation police submitted charge sheet against accused Ashok Kumar, Shankar Lal and Shanti Swaroop under Section 364 I.P.C., whereupon concerned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the court of Session for trial of all accused. Thereafter, Session Trial No. 480 of 1992, State Vs. Ashok Kumar and others was registered in the court of Session, Aligarh. Later on, said Session Trial was transferred to the court of Xth Additional Sessions Judge, Aligarh who framed charges against all accused for offences punishable under Sections 498-A, 364, 302 and 201 I.P.C. 7. All the accused pleaded not guilty and claimed to be tried. 8. Prosecution examined P.W.-1 Banke Lal, P.W.-2 Ram Autar Sharma, P.W.-3 Rajendra Prasad and P.W.-4 Suresh Chandra to prove charges levelled against accused. 9. After prosecution evidence statements of all accused were recorded under Section 313 Cr.P.C. in which they have stated that they have been falsely implicated. 10. No evidence was adduced by accused in defence. 11. Learned Xth Additional Sessions Judge, Aligarh heard the arguments of both the parties and passed impugned judgment and order whereby he has convicted and sentenced accused appellants as mentioned above. 12. 10. No evidence was adduced by accused in defence. 11. Learned Xth Additional Sessions Judge, Aligarh heard the arguments of both the parties and passed impugned judgment and order whereby he has convicted and sentenced accused appellants as mentioned above. 12. Learned counsel for accused appellants contended that prosecution has examined four witnesses namely P.W.-1 Banke Lal, P.W.-2 Ram Autar Sharma, P.W.-3 Rajendra Prasad and P.W.-4 Suresh Chandra. Out of which P.W.-2 Ram Autar Sharma, P.W.-3 Rajendra Prasad and P.W.-4 Suresh Chandra have not supported version of prosecution. 13. Learned counsel for accused appellants contended that P.W.-1 Banke Lal has stated that he has seen Rani Sharma alongwith complainant Dhani Ram and three named accused, therefore, statement of P.W.-1 Banke Lal is not sufficient to lead an inference that the accused appellants have committed murder of Rani Sharma and none else. Therefore, evidence on record is not sufficient to hold accused appellants guilty of offences punishable under Sections 302, 364, 201 I.P.C. 14. Learned counsel for accused appellants contended that the conviction recorded by trial court against accused appellants is against law as well as evidence on record. 15. Learned counsel for accused appellants contended that learned trial court has acquitted accused Shanti Swaroop while P.W.-1 Banke Lal has stated that he saw Rani Sharma alongwith three accused namely Ashok Kumar, Shankar Lal and Shanti Swaroop as well as complainant Dhani Ram. Therefore, accused appellants are also entitled to acquittal. 16. Learned counsel for accused appellants prayed that the appeal should be allowed and accused appellants should be acquitted of all charges levelled against them. 17. Learned A.G.A. contended that the conviction recorded by trial court against both accused appellants is in accordance with law and evidence. 18. Learned A.G.A. contended that Rani Sharma was last seen with accused appellants, therefore, under Section 106 of Evidence Act burden lies on accused appellants to explain as to where Rani Sharma has gone but they have failed to discharge their burden. 19. Learned A.G.A. prayed that the appeal should be dismissed. 20. We have considered the submissions made by the parties. 21. Out of four witnesses examined by prosecution, P.W.-1 Banke Lal has supported case of prosecution and has stated that complainant Dhani Ram Sharma has died about three or four months before his statement. 19. Learned A.G.A. prayed that the appeal should be dismissed. 20. We have considered the submissions made by the parties. 21. Out of four witnesses examined by prosecution, P.W.-1 Banke Lal has supported case of prosecution and has stated that complainant Dhani Ram Sharma has died about three or four months before his statement. He has further stated that Rani Sharma daughter of complainant Dhani Ram Sharma was married to accused Ashok Kumar. He has stated that accused Shankar Lal is the father of accused Ashok Kumar and accused Shanti Swaroop is brother-in-law of accused Ashok Kumar. 22. P.W.-1 Banke Lal has supported in his statement on oath version of F.I.R. Ext. Ka-1 regarding last seen of Rani Sharma daughter of complainant Dhani Ram Sharma with accused appellants and co-accused Shanti Swarup at Aligarh. 23. P.W.-2 Ram Autar Sharma, P.W.-3 Rajendra Prasad and P.W.-4 Suresh Chandra have not supported version of prosecution. All the said three witnesses have been declared hostile and have been cross examined by prosecution but prosecution has failed to draw anything with their statements to support the case of prosecution. 24. In their statements under Section 313 Cr.P.C. accused appellants have admitted that Rani Sharma daughter of complainant was married with accused Ashok Kumar but they have denied the fact that they have been seen with Rani Sharma by P.W.-1 Banke Lal and Rani Sharma and accused Ashok Kumar told him that they are going to Haridwar for taking bath. 25. Accused appellant Ashok Kumar has stated in his statement under Section 313 Cr.P.C. that complainant has enmity with him. He has taken money from him but did not return it. Accused appellant Ashok Kumar has further stated in his statement under Section 313 Cr.P.C. that complainant Dhani Ram had abducted him. Rani Sharma was at the house of complainant Dhani Ram at that time. 26. Accused appellant Shankar Lal has stated in his statement under Section 313 Cr.P.C. that Rani Sharma mostly resided in her father's house, she was not residing in her husband's house, whenever she came to his house she used to create problem. 27. Accused appellant Shankar Lal has further stated in his statement under Section 313 Cr.P.C. that Rani Sharma was saying to live at her father's house. 28. 27. Accused appellant Shankar Lal has further stated in his statement under Section 313 Cr.P.C. that Rani Sharma was saying to live at her father's house. 28. Both the accused appellants have stated in their statements under Section 313 Cr.P.C. that P.W.-1 Banke Lal is the man of complainant Dhani Ram. 29. After having considered the evidence on record, learned trial court is of the view that for getting rid of Rani Sharma accused appellants may commit her murder, therefore, the motive behind murder of Rani Sharma by accused appellants is proved. Learned trial court has placed reliance on statement of P.W.-1 Banke Lal regarding last seen of Rani Sharma with accused appellants. Learned trial court has observed in its impugned judgment that accused appellants Ashok Kumar and Shankar Lal did not try to search Rani Sharma. This conduct of accused appellants shows that Rani Sharma is no more and they have committed murder of her. Learned trial court has recorded finding in its impugned judgment that under Section 106 of Evidence Act the burden is on accused appellants to show where Rani Sharma has gone but they have failed to discharge their burden. 30. Placing reliance upon the pronouncement of Hon'ble Apex Court rendered in the case of Ramanand & another Vs. State of Himachal Pradesh, : A.I.R. 1981 S.C. 738 and in view of above findings trial court came to conclusion that offences punishable under Sections 302, 364, 201 I.P.C. are proved against accused appellants but the learned trial court acquitted the co-accused Shanti Swaroop from all charges levelled against him. 31. Now we have to see as to whether learned trial court has committed error in recording finding of conviction against accused appellants for offences punishable under Sections 302, 364 and 201 I.P.C. 32. Perusal of evidence adduced by prosecution shows that there is no direct evidence regarding murder of Rani Sharma and this is a case of circumstantial evidence. It is relevant to mention at this juncture that Rani Sharma was married to accused Ashok Kumar on 4.3.1983 and more than seven years had passed since the date of marriage, therefore, Section 304-B of Indian Penal Code as well as Section 113-B of Evidence Act is not applicable on the facts of this case. Therefore, no presumption may be made regarding dowry death of Rani Sharma under Section 113-B of Evidence Act. 33. Therefore, no presumption may be made regarding dowry death of Rani Sharma under Section 113-B of Evidence Act. 33. In the case of Musheer Khan Vs. State of Madhya Pradesh; : AIR 2010 SC 762 Hon'ble Apex Court has held that "The first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except of guilt of the accused. 34. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused." 35. In the case of Kanhaiya Lal Vs. State of Rajasthan; : (2014) 2 S.C.C. (Cri.) 413, Hon'ble Apex Court has held that, "It has been consistently laid down by this Court that where a case 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 other 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. 36. In the case of Kanhaiya Lal Vs. State of Rajasthan (supra) Hon'ble Apex Court has held that, " The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant." 37. Description of statements of witnesses mentioned above shows that P.W.-2 Ram Autar Sharma, P.W.-3 Rajendra Prasad and P.W.-4 Suresh Chandra have not supported the prosecution version, only P.W.-1 Banke Lal has supported version of prosecution in his statement. Complainant Dhani Ram Sharma has died and he could not be examined before trial court. 38. Description of statements of witnesses mentioned above shows that P.W.-2 Ram Autar Sharma, P.W.-3 Rajendra Prasad and P.W.-4 Suresh Chandra have not supported the prosecution version, only P.W.-1 Banke Lal has supported version of prosecution in his statement. Complainant Dhani Ram Sharma has died and he could not be examined before trial court. 38. P.W.-1 Banke Lal has stated in his statement on oath before trial court on 7.4.1993 that about 3 or 4 years ago in the evening he met with Dhani Ram Sharma near Gandhi Eye Hospital in Aligarh City. Rani Sharma and accused Ashok Kumar, Shankar Lal and Shanti Swaroop were also with him. At that time Rani Sharma and accused Ashok Kumar told him that they are going to Haridwar for taking bath. P.W.-1 Banke Lal has further stated that thereafter he has not seen Rani Sharma again. 39. Formal proof of F.I.R. has been dispensed with by defence, therefore, Ext. Ka-1 has been marked by trial court on F.I.R. Relevant portion of F.I.R. Ext. Ka-1 is reproduced below: - 40. In F.I.R. Ext. Ka-1 complainant has not mentioned that he has also seen his daughter Rani Sharma with accused appellants and co-accused Shanti Swaroop in front of Gandhi Eye Hospital in City Aligarh. In F.I.R. Ext. Ka.-1 he has mentioned that said three accused were seen with his daughter by Banke Lal P.W.-1 also in front of Gandhi Eye Hospital in City Aligarh and at that time they told to Banke Lal that they are going to Haridwar for taking bath. 41. The version of F.I.R. does not disclose that complainant Dhani Ram Sharma has himself seen his daughter Rani Sharma in City Aligarh with accused appellants and co-accused Shanti Swaroop and he was also with them in City Aligarh when P.W.-1 Banke Lal saw them near Gandhi Eye Hospital in City Aligarh but the statement of P.W.-1 Banke Lal shows that he saw complainant Dhani Ram Sharma and his daughter Rani Sharma alongwith accused appellants Ashok Kumar and Shankar Lal as well as co-accused Shanti Swaroop near Gandhi Eye Hospital in City Aligarh. Thus, there appears material contradiction between version of F.I.R. and statement of P.W.-1 Banke Lal. 42. According to F.I.R. Ext. Thus, there appears material contradiction between version of F.I.R. and statement of P.W.-1 Banke Lal. 42. According to F.I.R. Ext. Ka-1 accused appellants Ashok Kumar and Shankar Lal alongwith co-accused Shanti Swarup took Rani Sharma, daughter of complainant from Mohalla Chandaniya and informed Chunni Lal landlord of the house that they are going to Haridwar for taking bath but the prosecution did not examine landlord Chunni Lal to prove this version of prosecution. As mentioned above three witnesses namely P.W.-2 Ram Autar Sharma, P.W.-3 Rajendra Prasad and P.W.-4 Suresh Chandra examined by prosecution have turned hostile and have not supported version of prosecution. Therefore, in view of above, the single testimony of P.W.-1 Banke Lal regarding last seen does not appear free from doubt. 43. Statement of P.W.-1 Banke Lal shows that when he saw Rani Sharma in Aligarh City near Gandhi Eye Hospital, there was complainant Dhani Ram Sharma also alongwith accused Ashok Kumar, Shankar Lal and Shanti Swaroop. In F.I.R. Ext. Ka-1 complainant has not mentioned last seen of Rani Sharma by him in City Aligarh. F.I.R. Ext. Ka-1 does not discloses as to where Rani Sharma and accused Ashok Kumar, Shankar Lal and Shanti Swaroop went from Aligarh and as to where complainant Dhani Ram Sharma went from Aligarh. 44. There is no evidence on record to prove that Rani Sharma daughter of complainant Dhani Ram was living with accused appellants till her disappearance. 45. In the case of Dhanpal Vs. State by public prosecution Madras 2009, C.L.J. 4647 S.C. Hon'ble Apex Court held that," according to fundamental principles of the evidence Act it is for the prosecution to have proved its own case." 46. It is apparent from discussions made above that there is no substantive evidence on record to prove that Rani Sharma daughter of complainant was residing with accused appellants till her disappearance and solitary statement of P.W.-1 Banke Lal regarding last seen of Rani Sharma is not free from doubt. It is also apparent from statement of P.W.-1 Banke Lal that at the time of alleged last seen of Rani Sharma, complainant Dhani Ram Sharma was also with her daughter Rani Sharma alongwith accused Ashok Kumar, Shankar Lal and Shanti Swarup. Therefore, evidence on record does not prove that Rani Sharma was in exclusive company of accused appellants at the time of her alleged last seen. Therefore, evidence on record does not prove that Rani Sharma was in exclusive company of accused appellants at the time of her alleged last seen. Therefore, under Section 106 of Evidence Act burden cannot be shifted to accused to state where about of Rani Sharma daughter of complainant. 47. Motive may be an important piece of circumstantial evidence. But it may not be conclusive proof of guilt. Even if finding recorded by trial court regarding motive is upheld, it shall not be sufficient to hold accused appellants guilty. According to P.W.-1 Banke Lal at the time of last seen at Aligarh there were accused appellants Ashok Kumar and Shankar Lal as well as co-accused Shanti Swaroop with Rani Sharma but learned trial court has acquitted co-accused Shanti Swaroop and no appeal has been filed by State against acquittal of co-accused Shanti Swaroop. In such circumstances, accused appellants are also entitled to benefit of doubt. 48. Pronouncement of Hon'ble Apex Court rendered in the case of Ramanand and another Vs. State of Himachal Pradesh, A.I.R. 1981 S.C. 738, upon which trial court has placed reliance, is not applicable on the facts and evidence of present case. In the said case before Hon'ble Apex Court death was admitted to the parties and last seen as well as chain of circumstances leading to inference of guilt of accused was fully established. But in present case, chain of circumstances leading to inference of guilt of accused appellants is completely lacking. 49. After having gone through entire facts and circumstances of the case as well as whole evidence on record, we are of the view that evidence on record is not sufficient to hold accused appellants guilty of offences levelled against them. Conviction and sentences recorded by trial court are not sustainable in the eyes of law. Appeal deserves to be allowed. 50. Appeal is allowed. Impugned judgment and order passed by trial court is set aside and accused appellants are acquitted of all charges levelled against them. 51. Accused appellants are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged.