Judgment : Alok Singh, J. Present appeal is preferred against the judgment and order dated 06.10.2010 passed by learned Sessions Judge, Udham Singh Nagar, in Sessions Trial No.316 of 2007, whereby the appellant was held guilty for the offence punishable under Section 302 of IPC and was awarded life imprisonment and fine of Rs.5,000/-. 2. Brief facts of the case, inter alia, are that PW1 Babli Bhan submitted report to the Police Station Kichha on 27.9.2007 stating therein that her servant Chhotey Lal informed her that some unidentified dead body was laying in the agricultural field of Harendra Mann. On the report of PW1, case crime No. 263 of 2007 u/S. 302, IPC was got registered in P.S. Kichha, District U.S. Nagar. Thereafter on 28.9.2007, Smt. Munni (PW3) submitted one application before the P.S. Kotwali Kichha stating therein that her husband Shamshad (deceased) quarrelled with the appellant/accused Sudhir about 3-4 days before for the settlement of account. Therefore, appellant was annoyed with her husband Shamshad (deceased); in the morning of 26.9.2007, Sudhir came to the house of deceased and took Shamshad with him on the pretext of some work stating that they would come back within 10 minutes, however they did not come back even after expiry of one hour; on this, PW3 went to the gate to enquire about her husband; PW5 Rais Ahmed and PW4 Zahiruddin met her there and informed her that Shamshad (deceased) went somewhere else with appellant Sudhir in a Matador; when her husband Shamshad did not return in the evening, she started searching for him, however, in vain; on 28.9.2007, having read news in the newspaper that one dead body was recovered from the Kichha river, they went to the mortuary of the hospital; she identified the dead body of Shamshad (deceased). It is further written in the application that she (PW3) had suspicion that her husband might have been killed by the appellant Sudhir with the help of his friend. 3. Dead body of Shamshad (deceased) was taken into custody by the police after preparing the inquest report on the spot on 27.9.2007 and it was sent for post-mortem. Post-mortem was conducted on the dead body of Shamshad (deceased) on 29.9.2007 at 12:30 p.m. by Dr. R.K. Sinha (PW12); as per the post-mortem report and statement of PW12, cause of death of Shamshad (deceased) was due to head injuries sustained by him. 4. Post-mortem was conducted on the dead body of Shamshad (deceased) on 29.9.2007 at 12:30 p.m. by Dr. R.K. Sinha (PW12); as per the post-mortem report and statement of PW12, cause of death of Shamshad (deceased) was due to head injuries sustained by him. 4. PW15 Sub-Inspector K.R. Arya arrested the appellant Sudhir on 06.10.2007. Appellant confessed his guilt before the police and stated that in the evening of 26.09.2007, he had killed Shamshad by assaulting him with Patal and he could facilitate the recovery of Patal; then he took the police to his house and after taking out the Patal, he handed over the same to the police party. His pant, shirt, underwear and under-shirt were also taken into custody by the police party. 5. Having investigated the matter, charge-sheet was submitted against the appellant and after committal, charge was framed against him for the offence punishable u/S. 302, IPC. 6. To prove the prosecution story, the prosecution has proved PW1 Smt. Babli Bhan, PW2 Chotey Lal, PW3 Smt. Munni, PW4 Zahiruddin, PW5 Rais Ahmed, PW6 Raju alias Riyaz Ahmed, PW7 Afjal, PW8 Ashfaq Hussain, PW9 Zamil Ahmed, PW10 H.C. Chani Ram, PW11 Layik Ahmed, PW12 Dr. R.K. Sinha, PW13 Nasir Ahmed, PW14 Constable Manohar Singh and PW15 S.I. K.R. Arya. 7. Thereafter the statement of the accused/ appellant Sudhir was recorded u/S. 313, Cr.P.C. 8. Having perused the record, learned Trial Court was pleased to hold the appellant guilty for the offence punishable u/S. 302, IPC and was further pleased to award life imprisonment with fine of Rs.5,000/- against the appellant. Feeling aggrieved, appellant has preferred the present appeal. 9. We have heard Ms. Geeta Parihar, Advocate for the appellant and Mr. D.K. Sharma, Additional Advocate General, assisted by Ms. Sangeeta Bhardwaj, Brief Holder for the State and have carefully perused the record. 10. There is no eye-witness of the murder of Shamshad in the present case and the entire case is moving around the statements of PW3 Smt. Munni (wife of deceased), PW4 Zahiruddin, PW5 Rais Ahmed, PW7 Afzal, PW8 Ashfaq Ahmad and PW9 Zamil Ahmad, who have seen the deceased in company of accused Sudhir, till the forenoon of 26.9.2007. Prosecution is also relying upon the recovery of Patal (weapon) allegedly made from the house of appellant u/S. 27 of the Indian Evidence Act as well as the bloodstained shirt of the appellant. 11. Prosecution is also relying upon the recovery of Patal (weapon) allegedly made from the house of appellant u/S. 27 of the Indian Evidence Act as well as the bloodstained shirt of the appellant. 11. PW3 Smt. Munni is the wife of Shamshad (deceased). She has stated that appellant Sudhir was their neighbour; Shamshad (deceased) had taken loan from the appellant about 1-2 months before the incident; appellant had quarrelled with Shamshad (deceased) on account of return of loan amount; on 26.9.2007, when PW3 was sitting with her husband in her house in the morning, appellant Sudhir came and remained there for about 1½ - 2 hours and he also had tea there. Appellant Sudhir then took her husband on some pretext from the house towards the Goal Gate where they both had Tea and Pakora; she was watching them having Tea and Pakora and she went to the shop to make request to her husband to come back, however Shamshad (deceased) told PW3 that he would be coming back after some time; when her husband Shamshad did not come back after some time, she went towards the Goal Gate; PW4 Zahiruddin and PW5 Rais Ahmed met her and informed her that they had seen her husband Shamshad (deceased) going somewhere with the appellant in a Matador; she came to know on 28.9.2007 through newspaper that one dead body was recovered from Kiccha river, therefore, she went to the hospital along with Raju and identified the dead body to be of her husband Shamshad (deceased). 12. From the statement of PW3 (wife of deceased), the only conclusion would be that in her presence, Shamshad (deceased), after having some Tea and Pakora, left the house along with the appellant/accused Sudhir in the morning of 26.9.2007. She has not seen Shamshad (deceased) in the company of appellant/accused after the morning of 26-9-2007. 13. PW4 has stated that he had seen Shamshad (deceased) and appellant Sudhir consuming liquor in the morning of 26.9.2007 at about 9:30 a.m. PW4 has further stated that he had heard appellant Sudhir asking Shamshad (deceased) to go to Kichha and thereafter both of them went towards Kichha in a Matador. 14. 13. PW4 has stated that he had seen Shamshad (deceased) and appellant Sudhir consuming liquor in the morning of 26.9.2007 at about 9:30 a.m. PW4 has further stated that he had heard appellant Sudhir asking Shamshad (deceased) to go to Kichha and thereafter both of them went towards Kichha in a Matador. 14. From the statement of PW4, the only thing which can be said to be proved is that he has seen both of them, deceased and appellant/accused, consuming liquor at about 9:30 a.m. of 26.9.2007 and PW4 has seen both of them going in a Matador at about 9:30 a.m. in the morning of 26.9.2007 and he did not see both of them thereafter. 15. PW5 Rais Ahmad has also stated in line of the statement of PW4 Zahiruddin. He had also seen appellant as well as the deceased leaving the place after consuming the liquor at about 9.30 in the morning of 26.9.2007, and thereafter he also did not see both of them in the company of each other. 16. PW6 Raju alias Riyaz Ahmad is the brother-in-law of PW3 Smt. Munni, who has identified the dead body of Shamshad. 17. PW7 Afzal has stated that one and half years ago, at about 11 a.m., appellant as well as the deceased Shamshad came to the shop of gas cylinders where he was working as a servant and Shamshad (deceased) told him that both of them were going to Kichha. He has also not seen both of them, i.e. the accused and deceased, in each other- s company thereafter. 18. PW8 Ashfaq Hussain has stated that about one and half years before accused appellant Sudhir Kumar Saxena along with the deceased Shamshad came to his house at Kichha at about 11.30 a.m. and both of them were smelling liquor and they had lunch with him and having consumed the lunch in the noon, both of them left his house. He has also not seen both of them thereafter in the company of each other. 19. PW9 Jamil Ahmad has stated that at about 4-5 p.m. on 26.9.2007, he had seen accused Sudhir Kumar Saxena along with deceased Shamshad on the bank of the river near Diwan farm. Both of them were under the influence of liquor and were quarrelling. He has also not seen both of them thereafter in the company of each other. 19. PW9 Jamil Ahmad has stated that at about 4-5 p.m. on 26.9.2007, he had seen accused Sudhir Kumar Saxena along with deceased Shamshad on the bank of the river near Diwan farm. Both of them were under the influence of liquor and were quarrelling. However, he has left both of them on the spot at about 4-5 p.m. on 26.9.2007 and he has also not seen both of them thereafter. 20. As discussed hereinabove, neither PW3 nor PW4, PW5, PW6, PW7, PW8 or PW9 have seen both of them, i.e. the accused and the deceased, in the company of each other after 4-5 p.m. of 26.9.2007. None of the witnesses has stated that he/she had seen the accused armed with Patal. 21. As per the statement of PW12 Dr. R.K. Sinha, deceased could have died after the evening of 26.9.2007. There is absolutely no evidence to the effect that soon before the death of Shamshad, he was seen in the company of accused Sudhir Kumar Saxena. 22. There is another important aspect of the matter. Accused appellant Sudhir is said to have allegedly handed over the Patal (weapon) and his clothes after taking out the same from his house to the I.O. PW15 S.I. K.R. Arya in the presence of Raju alias Riyaz Ahmad (PW6) vide memo Ex. Ka-6. However, that recovery memo Ex. Ka-6 does not bear the signature of the accused Sudhir Kumar Saxena nor does it contain any recital to the effect that copy of the recovery memo was handed over to the accused and he refused to sign in order to acknowledge the receipt thereof. PW6 Raju alias Riyaz Ahmad is brother of the deceased. There is no other independent public witness of the alleged recovery. Therefore, much reliance should not be placed upon Ex. Ka-6. 23. When case is roaming around the last-seen/circumstantial evidence, then chain of the circumstantial evidence should be complete. PW6 Raju alias Riyaz Ahmad is brother of the deceased. There is no other independent public witness of the alleged recovery. Therefore, much reliance should not be placed upon Ex. Ka-6. 23. When case is roaming around the last-seen/circumstantial evidence, then chain of the circumstantial evidence should be complete. As held hereinbefore that none of the witnesses has seen the accused armed with the Patal and none of the witnesses has seen the accused in the company of the deceased after 4 p.m. on 26.9.2007, therefore, it cannot be said that the deceased was in the company of accused appellant in the late evening of 26.9.2007, which is the probable time of death of the deceased as per the statement of Dr. R.K. Sinha, PW12. Therefore, in our considered opinion, prosecution has failed to prove the prosecution story beyond reasonable doubt. 24. Consequently, appeal succeeds and it is hereby allowed. Impugned judgment and order is set aside. Conviction and sentence of the appellant for the offence punishable under Section 302, IPC are hereby quashed. Appellant Sudhir Kumar Saxena is on bail. He need not surrender unless wanted in connection with any other case. His bail bonds are cancelled and sureties are discharged. 25. Let a copy of this judgment and order, along with the LCR, be sent to the trial court for information. Appeal allowed.