JUDGMENT : K.S. Jhaveri, J. 1. By way of this appeal original accused No. 1 has preferred this appeal against the judgment and order of the learned Additional City Sessions Judge, Court No. 9, Ahmedabad rendered in Sessions Case No. 144 of 2000 dated 31st July 2002, whereby the present appellant - original accused No. 1 has been convicted under section 302 of the Indian Penal Code read with section 201 of IPC and section 135(1) of the Bombay Police Act, and sentenced to rigorous imprisonment for life under section 302 of IPC and is sentenced to undergo rigorous imprisonment for a period of five years under section 201 of IPC and rigorous imprisonment for six months under section 135(1) of the Bombay Police Act and whereas the remaining accused Nos. 2 to 6 has been acquitted from the charges leveled against them. 2. It is the case of the prosecution that on 04.06.1999 accused No. 4-Dipesh was on scooter with his wife. Since the couple had married only on 05.02.1999 they had gone for a ride. The story put forward by the prosecution is that within a short span of matrimonial life accused No. 4 had become disillusioned with the marriage and in fact had become infatuated with one Nandita. As a result accused No. 4 wanted to put an end to the matrimonial relationship with the deceased and was forcing her to succumb to his demand of divorce. Though divorce document had been got prepared the deceased was not ready for divorce. Therefore, accused No. 4 got enraged and had consulted accused No. 5, a friend of school days. They had hired assailant on professional basis to do away with unwanted deceased-Hansa. Accused No. 5 had demanded a huge amount. Therefore, accused No. 4 had borrowed loan amounting to Rs. 4,00,000/- from one Chirag Babulal Shah and had also arranged for the remaining amount of cash, which had been paid to accused No. 5, who in turn, had engaged services of the remaining accused. Thus, all the accused persons, at the behest of accused Nos. 4 and 5 entered into conspiracy to commit the heinous crime. 3. 4,00,000/- from one Chirag Babulal Shah and had also arranged for the remaining amount of cash, which had been paid to accused No. 5, who in turn, had engaged services of the remaining accused. Thus, all the accused persons, at the behest of accused Nos. 4 and 5 entered into conspiracy to commit the heinous crime. 3. In order to prove the case the prosecution examined the following witnesses: PW No. Exibit No. Name 1 40 Mukesh Prabhudas Mistry, Panch witness 2 41 Vilasha Dilipsinh Chudasma 3 44 Kalpesh K. Pandya, witness relevant to accused no.1 4 45 Ravjibhai A. Thakore. 5 48 Rajubhai N. Shah, Panch witness 6 49 Haribhai Lavjibhai, Panch witness 7 50 Rajnikant Babubhai, Panch witness 8 51 Chetan M. Borisa, Panch witness 9 52 Prakashbhai Govindbhai, Panch witness 10 53 Pravinkumar M. Goswami, Panch witness 11 54 Kikaji M. Thakor, Panch witness 12 55 Dinesh Chelaji, Advocate, who allegedly prepared the divorce deed. 13 57 Chirag Babulal Shah, who advanced cash to accused no.4 14 60 Gopalbhai N. Chauhan, Panch witness 15 61 Devendra A. Patel, Panch witness 16 62 Rajubhai G. Arora, Panch witness 17 63 Sunil M. Lodha (witness to establish involvement of accused no.2 and with relation to the scooter of accused no.2 at the time of the offence). 18. 64 Bipin K. Solanki (witness to establish friendship between accused nos.4 & 5). 19 65 Meenaben L. Jhala (Working as nurse in the hospital of Tikoolala) 20 66 Jigar D. Patel. 21 69 Kamlesh G. Rathod, Panch witness 22 70 Sukhdev N. Borisa, Panch witness 23 71 Anil A. Lodha 24 77 Dr. Ravindra S. Bhise (who performed postmortem on the dead body of the deceased) 25 79 Dr. Sandip S. Shah (who treated accused no.4) 26 81 Indravadan M. Thakkar, Police Constable. 27 82 Rameshbhai M. Pandore, Police Constable. 28 83 Kamlesh M. Patel 29 84 Chahansinh S. Rajavat, father of deceased-Hansa. Ravindra S. Bhise (who performed postmortem on the dead body of the deceased) 25 79 Dr. Sandip S. Shah (who treated accused no.4) 26 81 Indravadan M. Thakkar, Police Constable. 27 82 Rameshbhai M. Pandore, Police Constable. 28 83 Kamlesh M. Patel 29 84 Chahansinh S. Rajavat, father of deceased-Hansa. 30 85 Hansaben Dhirubhai Sarasiya, mother of accused no.5 31 89 Jivanbhai M. Chavda 32 90 Mansingh Mohansingh (employee of accused no.4 – Chandrika Milk Centre) 33 91 Faruqbhai M. Chipak, Panch witness 34 92 Gajendrasinh Chahansinh Rajavat, brother of deceased-Hansa 35 95 Dineshbhai S. Nadia 36 96 Manish I. Sevak, Panch 37 97 Ajay D. Bhatt (Owner of Kinetic Honda Scooter bearing Registration No.GJ-1-A-1303 allegedly used in the commission of the offence) 38 98 Sahugiri L. Goswami (related to accused no.6) 39 101 Surendrasinh Gambirsinh Gohil (I.O.) 40 140 Dr. Himanshu B. Patel 4. The prosecution has also produced and relied upon several documentary evidence including Inquest Panchnama being Exh.14; Panchnama regarding seizure of clothes of deceased being Exh.46; promissory notes executed by accused No. 4 being Exh.58 and 59; receipt with regard to a telephone call allegedly made by accused No. 4 being Exh.68; photocopy of Income Tax Return of PW-13-Chirag Babulal Shah being Exh.73; statement of accounts with regard to bank account of PW-13 with Naroda Nagrik Cooperative Bank being Exh.74; photocopy of passbook of PW-13 with AMCO Bank being Exh.75; list of subscribers to Satellite Channel by PW-13 being Exh.76; postmortem report of deceased-Hansa being Exh.78; medical certificate with regard to treatment and injuries sustained by accused No. 4 being Exh.80; complaint lodged by accused No. 4 being Exh.102, Vardhi forwarded by V.S. Hospital being Exh.103; Vardhi establishing death of deceased Hansa being Exh.104; Vardhi regarding treatment given to accused No. 1 at V.S. Hospital being Exh.105; Panchnama with regard to scene of offence being Exh.106; extract of message forwarded to Navrangpura Police Station being Exh.107; report of preliminary investigation made by FSL at the scene of offence being Exh.108; Panchnama at scene of offence being Exh.109; Panchnama with regard to seizure of clothes of accuses Nos. 1 and 4 being Exh.110; Panchnama regarding seizure of Kinetic Honda Scooter bearing registration No. GJ-1-A-1303 being Exh.111; Panchnama regarding seizure of Bajaj Scooter from accused No. 3 being Exh.112; Panchnama drawn under provisions contained in section 27 of the Evidence Act leading to recovery of knife at the instance of accused No. 1 being Exh.113; Panchnama regarding drawing of blood samples of accused Nos. 1 to 4 being Exh.114; preliminary report given by FSL regarding visit at the scene of offence being Exh.115; Panchnama with regard to seizure of a foot rest of the Kinetic Honda Scooter bearing registration No. GJ-1-A-1303 being 116; Panchnama regarding seizure of articles from witness-Nandita being Exh.117; Panchnama regarding seizure of luxury articles such as fridge, video game, colour TV and cash from witness Hansaben being Exh.118; Panchnama regarding search of residential premises of accused No. 5 being Exh.119; Panchnama regarding seizure of articles purchased by accused No. 5 being Exh.120; Panchnama regarding seizure of a stereo system from accused No. 3 being Exh.121; Panchnama regarding seizure of clothes and drawing of blood samples of accused No. 6 being Exh.122; Panchnama drawn under the provisions of section 27 of the Evidence Act where a sheath of a sword was recovered at the instance of accused No. 6 being Exh.123; notification issued by Police Commissioner under section 135 of Bombay Police Act being Exh.124 forwarding letters to FSL being Exh.125 and 126; receipts issued by FSL being Exh.127 and 128; different reports of FSL being Exh.129 to 133; rough sketch of scene of offence being Exh.134; medical certificate of accused No. 1 being Exh.141 Panchnama regarding seizure of Rs. 50,000/- in cash from uncle of accused No. 5 being Exh.145; certified copy of statement of Kalupur Commercial Cooperative Bank related to bank account of accused No. 5 being Exh.150. 5. At the end of trial, the Court below recorded further statement of the accused u/s.313 of Code of Criminal Procedure and thereafter, passed the impugned judgment and order which has led to the filing of present appeal. 6. Vilasba Dilipsinh Chudasma, PW-2 is examined at Exh.41. She had deposed that the incident had occurred in the month of June 1999 at about 10.30 PM, during nocturnal hours. One person came running and fell down nearby her house. He was in injured condition. He had requested her to inform his house. 6. Vilasba Dilipsinh Chudasma, PW-2 is examined at Exh.41. She had deposed that the incident had occurred in the month of June 1999 at about 10.30 PM, during nocturnal hours. One person came running and fell down nearby her house. He was in injured condition. He had requested her to inform his house. Therefore, she had approached her neighbour - Kalpeshbhai, who in turn, informed the Police. During the course of conversation with the injured person she had learnt that he had sustained injury inflicted by 3-4 persons. 7. Kalpeshbhai Karunashankar Pandya, PW-3 is examined at Exh.44. He had deposed that on 04.06.1999, when he was at home around 10.00 to 11.00 PM, during nocturnal hours, Vilasba came to his house. She had informed her that a man in injured condition was lying near her house and he had given phone number of his house so that a message can be sent to his home. He had also deposed that having seen the injured person he thought it to be a police case, therefore, he had informed the Police. On a request made by the injured person he had also telephoned one Pappubhai, but Pappubhai did not turn up. 8. Chetan Mumbaji Borisa, PW-8 is examined at Exh.51. He is a Panch witness to discovery of knife alleged to have been used by the present accused during the course of alleged offence. He had deposed that the present appellant Hitesh had searched out premises of a bungalow near Boys' Hostel in University area and found out a knife and thereafter Panchnama was drawn. Therefore his deposition came to be admitted as evidence. 9. Rameshbhai Manjibhai Pandore, PW-27 is examined at Exh.82. He was serving as Police Constable at Navrangpura Police Station. While he was on duty he had received a message at 10.30 on 01.06.1999 that one man in injured condition was lying near Boys' Hostel in the vicinity of Gujarat University area. Upon receipt of that message he had reached the place of occurrence and saw a man lying in injured condition. Upon preliminary inquiry the said injured man identified himself as Hitesh Lodha. Upon further inquiry the injured person told the deponent that 3-4 persons had assaulted a lady and he had tried to intervene in order to rescue her and in the process he had sustained injuries. 10. Surendrasinh Gambhirsinh Gohil, PW-39 is examined at Exh.101. Upon preliminary inquiry the said injured man identified himself as Hitesh Lodha. Upon further inquiry the injured person told the deponent that 3-4 persons had assaulted a lady and he had tried to intervene in order to rescue her and in the process he had sustained injuries. 10. Surendrasinh Gambhirsinh Gohil, PW-39 is examined at Exh.101. He was working as Police Inspector, Navrangpura Police Station, Ahmedabad. He had carried out the investigation. He has also clearly deposed that while taking the accused to the hospital from the scene of offence, the accused had informed that 3-4 persons had attacked a lady and he had tried to save the lady and in the process he had sustained injuries. 11. Learned counsel Mr. Jayant Panchal for the appellant has taken us through the evidence of witnesses and contended that the State has not preferred appeal against acquittal granted to accused Nos. 2 to 6, whereas even if the case of the prosecution is to be believed, real conspiracy was plotted by accused Nos. 4 and 5 and there is no motive which could have been proved against the present appellant. Mr. Panchal further contended that no motive was established by the prosecution against the present appellant. Conspiracy is not believed and injury to the present appellant is not explained by the prosecution. He has taken us through the explanation and statement of two Police witnesses, namely, Police Constable, Rameshbhai M. Pandore, PW 27, Exh.82; and Police Inspector, Surendrasinh Gambhirsinh Gohil, PW 39, Exh.101, wherein it is clearly stated that while he was taken to hospital from the scene of offence, 3 - 4 persons had attacked the lady and he had tried to save the lady. Other Police official too had narrated the same version and so is the Investigating Officer. He has therefore, contended that the case is based on circumstantial evidence where chain of events ought to be completed. In the present case there are serious lapses. Presence of the present appellant though proved creates doubt inasmuch as same story is narrated by different persons within less than two hours while taking the injured to hospital. Therefore, the learned advocate for the appellant contended that benefit of doubt is required to be granted in favour of the accused. He further contended that even Panchnama, Mark 11/27 is not proper inasmuch as certain statements recorded therein are inadmissible as evidence. 12. Therefore, the learned advocate for the appellant contended that benefit of doubt is required to be granted in favour of the accused. He further contended that even Panchnama, Mark 11/27 is not proper inasmuch as certain statements recorded therein are inadmissible as evidence. 12. Learned APP for the respondent-State, Mr. Pujari supported the case of the prosecution and has contended that knife was recovered at the behest of the accused. Though presence of accused is proved the Court has not believed. The accused was residing in Dariapur and he had not explained as to how and why he had ventured into Gujarat University area. 13. We have heard Mr. Panchal for the appellant-accused and the learned APP for the respondent-State. Taking into consideration the overall facts and circumstances of the case it is true that there is no iota of evidence against the accused. The case is based on circumstantial evidence. Even the prosecution has not proved the element of 'last seen together'. The contention of Mr. Pujari, learned APP is true that he was found in injured condition from the place of incident but immediately he was taken to hospital from the scene of offence, when 3 - 4 persons had attacked the lady and he had tried to save the lady. In that view of the matter even if his presence is suspicious, but on that basis conviction cannot be confirmed. The story put forward that immediately "he had tried to save the lady" is required to be given some credential inasmuch as the same is supported not only by two Police officials but he has requested Vilasba to report to Police. Even otherwise when the case is required to be considered on the basis of circumstantial evidence, complete chain of events is required to be established. In our view, there are missing links in the present case. His presence though proved, his role is not coming forth clearly on record. Apart from that what is stated immediately to the Police is required to be considered in favour of the accused. 14. On overall appreciation of evidence on record the prosecution case shows that the crime was committed in pursuance of the conspiracy plotted to do away with the deceased. The ultimate act on the part of the accused is the product of the conspiracy hatched by the accused persons. 15. 14. On overall appreciation of evidence on record the prosecution case shows that the crime was committed in pursuance of the conspiracy plotted to do away with the deceased. The ultimate act on the part of the accused is the product of the conspiracy hatched by the accused persons. 15. However, after appreciation of evidence on record the learned Trial Judge has not believed the conspiracy and all the accused persons have been acquitted from the charges leveled against them under section 120B of the Indian Penal Code. In that view of the matter, conviction recorded against accused No. 1, who was found nearby the place of the incident is required to be dealt with by his individual act qua the incident in question. 16. On overall appreciation of evidence it is found that there is no direct evidence against accused No. 1. The prosecution has not examined any eye witness to the incident in question. The case rests merely on circumstantial evidence. Links alleged to have been tried to be established are also missing as observed hereinabove. So far as prosecution version is concerned that itself reveals that the injured accused was found at the place of incident in injured condition. He had put forth theory of having sustained injury while trying to save the deceased from the assault alleged to have been propelled by 3 - 4 unknown persons. During the course of trying to save the deceased he had sustained injuries. The said version is supported not only by two Police officials but he had also requested Vilasba to report to Police. 17. Therefore, even if his presence is believed then also the story put forth has been supported by the prosecution witnesses that he had sustained injury during the course of saving the life of the injured-lady and it cannot be ruled out. 18. The missing links in the chain of events could not be established. Guilt cannot be established merely by virtue of circumstantial evidence of discovery of weapon at the instance of accused. The learned Trial Judge has committed error in convicting accused No. 1 based on merely circumstantial evidence. Even statement of accused No. 1 is corroborated by Investigating Officer. Therefore, injuries sustained by the appellant was in the process of his efforts to save the deceased while scuffle had taken place with other accused persons. Besides, no motive is attributed to appellant-accused. Even statement of accused No. 1 is corroborated by Investigating Officer. Therefore, injuries sustained by the appellant was in the process of his efforts to save the deceased while scuffle had taken place with other accused persons. Besides, no motive is attributed to appellant-accused. 19. In that view of the matter benefit of doubt is required to be granted in favour of the accused. In that view of the matter the conviction is quashed and set aside. The Appeal deserves to be allowed. The same is allowed. The impugned judgment and order is quashed and set aside and appellant is acquitted of the offence charged against him. The appellant-accused is set at liberty if not required in any other offence. Bail bond stands cancelled. Record & Proceedings be sent to the court below forthwith.