JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal under Section 374 of the Code of Criminal Procedure has been preferred by accused-appellants Neeraj Suman and Sonu Sharma alias Krishan Murari, against the judgment and order dated 29.09.2015 passed by the Additional Sessions Judge No.5, Kota, in Sessions Case No.05/2011, by which the accused-appellants have been convicted for offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs.10,000/-; in default of payment of fine, each of them was to further undergo one month’s simple imprisonment. 2. Fact of the case are that one Pathik Arora (PW-15) lodged a missing person report (Exhibit P-36) with the Police Station Vigyan Nagar, Kota, on 20.11.2009 alleging therein that his father Om Prakash Arora left the house on 19.11.2009 at about 1:00 PM in the afternoon for the factory situated in the Industrial Area and since then he has not returned back home. His cellphone number was 9269525085. When his father did not return back till morning of the following day, the informant went to the Mess run by his father, situated at 10-Ka-12, Parijat Colony, Mahaveer Nagar. Neeraj Suman (accused), their servant working in that Mess, who was present there, told that informant’s father was in the Mess till 9:00 PM in the night and left the Mess after halting there for sometime. The informant thereafter went to Sarita Industries situated in the Industrial Area, which belonged to Pannalal Ji Meena, as his father operated a stone mart from the open land adjacent to that Industry for export purpose. The ‘'Chowkidar'’ of Sarita Industries told him that informant’s father accompanied by two boys had come to the factory in the night between 12:30 AM to 1:00 AM on 19.11.2009 and stayed there for about two to five minutes and thereafter left. The ‘'Chowkidar'’ also told the informant that informant’s father came on his own Hero Honda CD 100 motorcycle bearing registration number RNV 7364. The informant further stated in the report that his father did not reach the home till filing thereof. 3. While the police was making enquiry into the missing person report lodged by Pathik Arora, the informant on his own also made extensive search and during that process, he came across certain circumstances which raised finger of doubt towards the accused-appellants. The informant further stated in the report that his father did not reach the home till filing thereof. 3. While the police was making enquiry into the missing person report lodged by Pathik Arora, the informant on his own also made extensive search and during that process, he came across certain circumstances which raised finger of doubt towards the accused-appellants. Based on the inputs which he received subsequently, Pathik Arora submitted another written report to the police on 21.11.2009 at about 12:35 PM alleging that his father had gone to their stone mart situated adjacent to Sarita Industries on 19.11.2009. When his father did not turn up till 8:00 PM, the informant made call on his cellphone. Thereupon, his father asked that he would return within ten minutes but when he did not come till morning of the following day, he went to their Mess in Parijat Colony. Neeraj Suman, who was servant in their Mess, informed that his father came to the Mess in the night at around 9:00 PM day before yesterday and left within ten to fifteen minutes. When he went to factory, Shyoji Rebari, the ‘Chowkidar’, informed that his father left the factory around 5:00 PM two days ago. But in the night between 12:00 Hrs. and 1:00 AM, he again came to the factory with two boys on motorcycle but left within two to five minutes. The ‘'Chowkidar'’ further stated that he could recognize those two boys. The informant further alleged that his father had given certain money on loan to Neeraj Suman and that raised a doubt in his mind and that is why the informant, accompanied by Nitin Meena and Monu Mewara, took Shyoji, the 'Chowkidar’ of the factory, to identify to show the man of Mess. Neeraj Suman and Sonu Sharma, a resident of his village, were present there and on seeing them, Shyoji, the 'Chowkidar’, told the informant that these two boys had brought Shyamji in the factory. Thereafter the informant enquired from Mahaveer Meghwal, an employee working in the Mess, about the father of the informant, who told the informant that he came in the Mess in the night of day before yesterday at about 9:00 PM and stayed there for an hour and thereafter Neeraj Suman and Sonu Sharma took him on his own motorcycle at about 10:00 PM and left for a certain place. The informant expressed a doubt in the written report that Neeraj Suman and Sonu Sharma, in order to avoid repayment of borrowed money, might have abducted his father with the intention to kill him. The cellphone of his father was switched off and his motorcycle was also missing. 4. The police on the basis of the aforesaid written report, registered a regular First Information Report No.741/2009 for offence under Section 364/34 IPC. On completion of investigation, the police filed charge-sheet against the accused-appellants for offence under Sections 364, 302 read with 34 IPC and Section 4/25 of the Arms Act. The matter being exclusively triable by the Court of Sessions, was committed to that court, where from it was made over to the court of Additional Sessions Judge No.5, Kota, for trial. Charges against the accused-appellants for offence under Sections 364 and 302 or 302/34 IPC were framed, who denied the same and claimed to be tried. The prosecution, in support of its case, produced 16 witnesses and exhibited 56 documents. The defence though did not produce any witness but exhibited 4 documents. Learned trial court, on completion of trial, convicted and sentenced the accused-appellants vide impugned judgment and order in the manner indicated above. Hence this appeal. 5. Mr. Sudarshan Laddha, learned counsel for accused-appellants, argued that the trial court has erred in law in convicting the accused-appellants for the alleged offences inasmuch as they have been falsely implicated in the case. Entire case of the prosecution hinges upon circumstantial evidence but the circumstances against the accused-appellants are not such which may form a chain so complete as to exclude every single possibility of the accused being innocent. There are material contradictions in the testimony of the prosecution witnesses. Learned trial court has though taken note of such material contradictions, yet it has relied on such evidence in covicting the appellants. Reference, in particular, is made to statement of Nitin Meena (PW-10) and Mahaveer (PW-3). If at all Pathik Arora had any doubt on the accused-appellants, he should have informed the police rather than himself undertaking the task of investigation by getting the accused identified from Shyamji Rebari. Reference, in particular, is made to statement of Nitin Meena (PW-10) and Mahaveer (PW-3). If at all Pathik Arora had any doubt on the accused-appellants, he should have informed the police rather than himself undertaking the task of investigation by getting the accused identified from Shyamji Rebari. Learned counsel argued that no test identification parade has been got conducted by the police from Shyoji Rebari for identifying the accused in the absence of which, a bald statement made by him during trial before the court cannot be relied to hold that the accused-appellants committed murder of Om Prakash. 6. Learned counsel submitted that Mahaveer (PW-3), the employee working at the Mess, stated that deceased came to the Mess at around 9:00 PM on the fateful day and returned back at around 10:00 PM. Neeraj Suman and Sonu Sharma were present in the Mess at that time. This witness is wholly unreliable because in the examination-in-chief he has gone to the extent of stating that accused-appellant Neeraj Suman and Sonu made extra judicial confession that they have murdered Om Prakash @ Shyamji. When confronted with the police statement (Exhibit D-1), he could not explain why he did not say so to the police earlier. This witness has also wrongly stated that in the night of that day the accused had an altercation with the deceased when the latter demanded his money. Learned counsel submitted that Dhanraj (PW-1), who was produced by the prosecution to prove recovery of the dead body vide Exhibit P-1, has denied having seen any crime and rather stated that he was made to sign the papers by the police but what is stated in those papers was not shown to him. Learned counsel submitted that even from the statement of Nitin Meena (PW-10), the prosecution story stands falsified. The statement of Nitin Meena S/o Pannalal Meena, owner of the Sarita Industries, is not reliable. Rajendra Pareta (PW-5) happens to be close friend of the deceased and he has been planted as a prosecution witness only to support the false allegation against the accused . His testimony also therefore could not be relied. Referring to statement of Monu Mewara (PW-7), learned counsel for the accused-appellants argued that this witness has stated that Shyoji Rebari, the ‘'Chowkidar'’ deployed at Sarita Industries, told them that the deceased came to the factory around 5:00 PM and left soon thereafter. His testimony also therefore could not be relied. Referring to statement of Monu Mewara (PW-7), learned counsel for the accused-appellants argued that this witness has stated that Shyoji Rebari, the ‘'Chowkidar'’ deployed at Sarita Industries, told them that the deceased came to the factory around 5:00 PM and left soon thereafter. When they made enquiry from Neeraj Suman, he told that the deceased came there at around 9:00 PM and left at around 10:00 PM from their own vehicle. There is thus contradiction in the version of various prosecution witnesses, which makes the story of the prosecution doubtful. 7. Learned counsel submitted that in the light of the statements of other witnesses, Shyoji Rebari (PW-12) cannot be relied as a witness of last seen because if those statements are read together, it would be seen that there are different versions as to when the deceased lastly went to the Mess and left it with the accused. Shyoji made tremendous improvement over his previous version in the statements given to the police. While in the court, he has stated that he could identify those two boys with whom the deceased came on motorcycle in the night around 12:00 Hrs. to 1:00 AM on the fateful day, but this was not stated by him in the police statement. This witness has failed to produce any evidence to substantiate that he was actually employed as 'Chowkidar’ in Sarita Industries. Neither its owner Pannalal Meena has been produced to prove it nor is there any evidence on record that PF was deducted in his name or salary was paid to him against receipt under his signature. In the absence of all this, he cannot be accepted to be a 'Chowkidar' deployed at Sarita Industries. If this witness claimed to identify the accused as those who accompanied the deceased in the mid night on the fateful day to the factory, there is no explanation why no identification parade was got conducted by the Investigating Agency thereabout. While this witness says that Pathik Arora and Nitin Meena took him to the Mess for identifying the accused at about 6:00-7:00 PM, Monu Mewara (PW-7), on the contrary, stated that Shyoji Rebari was taken there at around 10:00-10:30 PM. Pathik Arora (PW-15) has reiterated his version and made significant improvement in his testimony as compared to what he stated to the police. Pathik Arora (PW-15) has reiterated his version and made significant improvement in his testimony as compared to what he stated to the police. He failed to prove that his father had actually given a sum of Rs.1.5 lakh as loan to accused Neeraj Suman, but the fact is that this money was jointly given on loan by his deceased father and Pannalal Meena. He has rather gone to the extent of stating that his father earlier loaned an amount of Rs.1.5 lakh and in addition thereto also gave a sum of Rs.33000/- to Neeraj Suman against the receipt dated 16.11.2009, whereas no such receipt has been exhibited. Even otherwise, this subsequent loan was allegedly given for a period of two months, which period did not yet expire. There was no reason why the accused would commit murder of his employer for such reason. Learned counsel submitted that this witness when specifically asked whether the open land adjacent to Sarita Industries was taken on rent by his father against any rent-note/ lease-deed, he failed to produce any such document, therefore it cannot be accepted that the place where stone mart belonged to the deceased, was owned by his father. Pathik Arora (PW-15) in cross-examination, admitted that his father was habitual alcoholic and that he used to consume liquor i.e. in his home and outside in parties also, he would return back home quite late. Learned counsel therefore submitted that possibility of the deceased having died accidental death in the state of intoxication while riding the motorcycle cannot be ruled out. In that state, he might have fallen in the river where from the dead body as well as the motorcycle have been recovered. The cause of death in the postmortem report (Exhibit P-4) is that he died due to drowning, but it has not been fully explained. 8. Learned counsel argued that the postmortem was conducted at 9:30 AM on 20.11.2009, whereas the deceased was lastly seen in the mid night intervening 19th and 20th of November, 2009. Probable time of the death given in the postmortem was 36-48 hours, which would mean that the accused was alive before 9:30 AM even on 22.11.2009. In this connection, Dr. Arun Sharma (PW-2) has proved the postmortem report (Exhibit P-4). Probable time of the death given in the postmortem was 36-48 hours, which would mean that the accused was alive before 9:30 AM even on 22.11.2009. In this connection, Dr. Arun Sharma (PW-2) has proved the postmortem report (Exhibit P-4). In this connection, he has referred to the fact that while the cause of death of the deceased has been opined to be drowning antemortem in nature. Viscera was taken and handed over to the Investigating Officer, but apprehension of any kind of poison stands ruled out because the FSL report (Exhibit P-55) was negative for the presence of any kind of poison. Besides, the postmortem report also states that only incised wound that was found on the body of the deceased in the size of 9cm x 2cm x skin deep below thyroid calistoga transversely placed, was postmortem in nature. Dr. Arun Sharma (PW-2) has stated that this injury was sustained by the deceased after he was already dead. The recovery of the alleged blood stained knife on 24.11.2009 vide Exhibit P-6 by the police at the instance of both the accused and presence of human blood thereon is meaningless and cannot be relied to convict the accused-appellants. All these recoveries have been falsely attributed to accused-appellants, which is evident from the fact that number of memos were prepared under Section 27 of the Evidence Act within few minutes of the arrest of the accused-appellants and consequential recoveries were also shown soon thereafter. It is argued that accused-appellant Sonu Sharma was arrested by the police on 21.11.2009 at 2:25 PM vide Exhibit P-39, whereas accused-appellant Neeraj Suman was arrested on 21.11.2009 at 2:30 PM vide Exhibit P-40. Information under Section 27 of the Evidence Act at the instance of accused-appellant Neeraj Suman with regard to dead body of the deceased and the motorcycle involved in the incident on 21.11.2009 was recorded at 2:45 PM vide memo Exhibit P-41. Similarly, the information at the instance of accused-appellant Sonu Sharma under Section 27 of the Evidence Act with regard to dead body of the deceased and the motorcycle involved in the incident was recorded on 21.11.2009 at 2:50 PM vide memo Exhibit P-42, which shows that information with regard to both the set of recoveries were obtained with the interval of five minutes. The information under Section 27 of the Evidence Act at the instance of accused-appellant Neeraj Suman with regard to the knife used in the incident was recorded at 1:30 PM on 22.11.2009 vide memo Exhibit P-43. Similarly, the information memo under Section 27 of the Evidence Act at the instance of accused-appellant Sonu Sharma with regard to the knife used in the incident was prepared on 22.11.2009 at 1:25 PM vide memo Exhibit P-44. All this shows that when the police failed to otherwise solve the matter and nab the real culprit, they falsely implicated the accused-appellants in the present case. Learned counsel for the appellants argued that the missing person report (Exhibit P-36) has not been formally lodged and no registration number has been given nor any other record has been produced. Even though the first information report was lodged on 21.11.2009, but the same was sent to the ‘Ilaka’ Magistrate with enormous delay of four days on 25.05.2017. No explanation has been given for such an enormous delay, which is suggestive of the fact that manipulations were made before the first information report, which was an ante timed. 9. Learned counsel for the appellants, in support of the arguments, has relied on the judgment of this court in Hakamddin @ Momddin Vs. State of Rajasthan through P.P. - 2015 (2) Cr.L.R. (Raj.) 932 and that of the Supreme Court in Vijay Kumar Vs. State of Rajasthan – 2014 R.Cr.D. 712 (SC). It is therefore prayed that the appeal be allowed. 10. Learned Public Prosecutors as also learned counsel for the complainant supported the impugned judgment with reference to all the findings recorded therein. Learned Public Prosecutor read over the statements of the prosecution witnesses and also referred to various exhibits, which we, with a view to avoid repetition, shall take note of at the appropriate place herein-below. He however submits that apart from evidence of last seen proved by Shyoji Rebari, the clothes i.e. pant, shirt, underwear and vest of the deceased were recovered on the information given of the accused-appellants vide memos Exhibit P-45 by Neeraj Suman and Exhibit P-46 by accused-appellant Sonu Sharma, respectively on 25.11.2009 at 11:45 AM and 11:55 AM. Exhibit P-47 is the information memo by which accused-appellant Sonu Sharma gave information on 28.11.2009 at 1:35 PM with regard to pant, shirt, underwear and vest of the deceased. Exhibit P-47 is the information memo by which accused-appellant Sonu Sharma gave information on 28.11.2009 at 1:35 PM with regard to pant, shirt, underwear and vest of the deceased. Exhibit P-48 is the information memo by which accused-appellant Neeraj Suman gave information on 28.11.2009 at 1:30 PM with regard to pant, shirt, underwear and vest of the deceased. All these recoveries were made soon after arrest of the accused-appellants, and therefore, it cannot therefore be said that they have been falsely planted by the police. The PAN card and mobile handset of the deceased were also recovered by the police vide Exhibit P-7 on 27.11.2009 at 5:20 PM on the information furnished by the accused-appellants. 11. Learned Public Prosecutor submitted that the knife recovered at the instance of the accused-appellants has been found to contain human blood, which fact has been proved by the FSL report (Exhibit P-55). In the opinion of the doctor, the only injury caused to the deceased was postmortem in nature, but in the light of available evidence especially the recovery of knife, it cannot be believed. It is argued that the expert opinion as per Section 45 of the Evidence Act has only persuasive value and is not binding on the court. If it is found from the evidence otherwise available on record, be in the shape of eyewitness or circumstantial evidence, such expert opinion can be overlooked by the court. The opinion of the Medical Officer (PW-2) should therefore be discarded because Investigating Officer Bhanwar Singh (PW-16) has clarified that during interrogation, the accused informed that they first cut the throat of the deceased and threw his body into the river. Therefore even if the injury on the neck was not the eventual cause of the death, the deceased died due to drowning. Had this injury not been caused to deceased by the accused, he would have possibly not died. Learned Public Prosecutor, in support of his argument, has relied on the judgment of the Supreme Court in Himanshu Mohan Rai Vs. State of U.P. and Another – (2017) 4 SCC 161 . 12. We have given our anxious consideration to rival submissions and perused the material on record. 13. Learned Public Prosecutor, in support of his argument, has relied on the judgment of the Supreme Court in Himanshu Mohan Rai Vs. State of U.P. and Another – (2017) 4 SCC 161 . 12. We have given our anxious consideration to rival submissions and perused the material on record. 13. There are basically five major circumstances on which the prosecution has relied to bring home the guilt of the accused-appellants, which, according to the prosecution, formed the chain of circumstances to prove the charge of murder against them beyond reasonable doubt. These circumstances are – (1) last seen, (2) recovery of dead body of the deceased on 21.11.2009 vide Exhibit P-1 and the motorcycle on 21.11.2009 vide Exhibit P-12 at the instance of the accused, (3) recovery of blood stained knife on 24.11.2009 vide Exhibit P-6 from the Mess at the instance of the accused, which, as per the FSL report, was found to contain human blood, (4) recovery of mobile handset and PAN card from beneath the over bridge near the river at the instance of the accused-appellants on 27.11.2009 vide Exhibit P-7, and (5) motive. Now we shall proceed to examine each of the circumstances individually to find out whether they are indeed proved by cogent and reliable evidence. 14. As per the prosecution, the strongest evidence against the accused-appellants in the present case is that of last seen, which has been proved by Shyoji (PW-12). Although, the prosecution has failed to prove that he was actually employed as a 'Chowkidar’ with Sarita Industries as it has not produced any contemporaneous evidence in the shape of appointment order, pay slip, PF account number etc. We are however inclined to believe that low paid employees like ‘Chowkidar' can be hired without there being any formal order of appointment or without allotment of PF account number etc. But what is material for our purposing whether testimony of Shyoji Rebari (PW-12) inspires confidence and can be relied to hold that he actually saw the deceased in the company of the accused at the given place and time. He has stated that in the intervening night of 19th and 20th of November, 2009 two persons brought the deceased on a motorcycle to the premises of Sarita Industries in the day time on 19.11.2009 between 12:00 Hrs. He has stated that in the intervening night of 19th and 20th of November, 2009 two persons brought the deceased on a motorcycle to the premises of Sarita Industries in the day time on 19.11.2009 between 12:00 Hrs. and 1:00 PM and thereafter in the intervening midnight of 19th and 20th of November, 2017 between 12:00 Hrs. and 1:00 AM on motorcycle and the deceased was sitting between both of them. On the following day i.e. 20.11.2012, Pathik, the son of the deceased, and Nitin Meena (PW-10) S/o Pannalal came to him and enquired about the deceased. This witness informed them of having seen the deceased in the company of accused in the previous night. Then this witness stated that the son of the deceased and Nitin Meena took him to the Mess in Parajit colony. Mahaveer Meghwal (PW-3) was also present there. When they showed accused to him, he immediately identified them as the very same boys, who had brought the deceased on the motorcycle to the factory premise of Sarita Industries in the previous night. And even if thereafter this witness has identified the accused-appellants in the court, the prosecution has failed to clarify why the police was not associated with this process of identification. 15. Pathik Arora, son of the deceased, who is the informant and has appeared as PW-15, has stated that when his father did not turn up till morning on 20.11.2009, he went to their Mess in Parijat colony. Then Neeraj Suman told him that father of this witness had come there at about 9:00 PM previous night and thereafter left after sometime. This witness further stated that he then went to Sarita Industries situated in industrial area. The 'Chowkidar’ told him that he had seen his father on motorcycle with two boys day before yesterday and not yesterday. He has stated that 'Chowkidar' also told him that he could identify these two boys if brought before him. Here he has a different version that he had seen those two boys not only in the night but also during day time. But according to what was stated in the missing person report, he did not give such similar version. Nitin Meena (PW-10) has stated that the deceased used to run stone mart in the land adjacent to their factory. He stated that the deceased came to his stone mart at around 12:00 Hrs. But according to what was stated in the missing person report, he did not give such similar version. Nitin Meena (PW-10) has stated that the deceased used to run stone mart in the land adjacent to their factory. He stated that the deceased came to his stone mart at around 12:00 Hrs. in the noon on 19.11.2009 and then he left the place in the evening of the same day. He further stated that on the following day Pathik Arora, the son of the deceased, told him that his father has not returned back home since last night. On enquiry, his 'Chowkidar' informed that father of Pathik Arora came there in the mid night between 12:00 Hrs. and 1:00 AM and stayed for about five to ten minutes. Thereafter, this witness took Pathik Arora to the Mess, where Shyoji told them that in the previous night Neeraj Suman came there with the deceased father of Pathik Arora and only on that basis this witness had expressed a doubt that these persons had committed murder of father of Pathik Arora owing to the dispute of money transaction. In cross-examination, he has stated that they did not maintain any record of employment of Shyoji Rebari. He could not say whether any amount towards provident fund was deducted from his salary. In further cross-examination, he stated that the Mess was being run by deceased Om Prakash in the premise owned by his father Prahlad Meena. He had a strong doubt against the accused-appellants that they must have murdered the father of Pathik Arora. 16. Monu Mewara (PW-7) has stated that he accompanied Pathik Arora and Sonu (Nitin) Meena to the factory on 20.11.2009. Shyoji Rebari, the 'Chowkidar' at the factory, told that the deceased came there at about 5:00 PM in the evening on 19.11.2009. Then the 'Chowkidar' gave further details. They went to the Mess and enquired from Neeraj Suman as to when the deceased last visited the Mess. Neeraj Suman told that the deceased came there at 9 o’ clock in the previous night and left at 10 o’ clock. Thereafter they lodged the missing person report. Pathik Arora informed him (this witness) that his father had given some money to Neeraj Suman on loan and he has doubt that Neeraj Suman may have done something untoward to his father. Thereafter they lodged the missing person report. Pathik Arora informed him (this witness) that his father had given some money to Neeraj Suman on loan and he has doubt that Neeraj Suman may have done something untoward to his father. They then went to Shyoji Rebari to enquire about him on 21.11.2009. Shyoji Rebari informed that the deceased had come to their stone mart in the mid night at 1:00 AM on 19.11.2009 with two persons on the motorcycle. He could identify them. They then took Shyoji Rebari to the Mess who, in whispering tone, told them that Neeraj and Sonu were those two persons, who had brought the deceased on the motorcycle. One more person was there in the Mess, who too told that the deceased had left the Mess with Neeraj Suman. Rajendra Pareta (PW-5) informed him that dead body of Om Prakash Arora has been found. This information reached him at around 2-3 PM and that they told about this fact to Pathik. 17. Recovery of knife at the instance of both the accused has been shown by the police vide Exhibit P-6 on 24.11.2009 at 4:15 PM. accused-appellant Neeraj Suman gave information under Section 27 of the Evidence Act vide Exhibit P-45 with regard to the pant, shirt, underwear and vest of the deceased, on 25.11.2009 at 11:45 AM, whereas accused-appellant Sonu Sharma vide Exhibit P-46 with regard to those articles of the deceased, on 25.11.2009 at 11:55 AM. Dead body of the deceased was recovered in naked condition without any clothes, though the clothes were stated to have been thrown in the river, hence the same could not be recovered. As per the FSL report (Exhibit P-53), the knife, recovered at the instance of the accused-appellants, has been found to contain human blood. As per the recovery memo Exhibit P-12, the motorcycle was recovered on 21.11.2009 at 5:25 PM, the day on which the accused were arrested. As per the said memo, the motorcycle was found in the river. But the information obtained from the accused with regard to clothes of the deceased did not lead to any recovery. Besides, recovery of mobile handset and PAN card of the deceased vide memo Exhibit P-7, has been made from open place, which cannot be said to be in exclusive possession of the accused-appellants. But the information obtained from the accused with regard to clothes of the deceased did not lead to any recovery. Besides, recovery of mobile handset and PAN card of the deceased vide memo Exhibit P-7, has been made from open place, which cannot be said to be in exclusive possession of the accused-appellants. Coming back now to the recovery of knife, this also cannot be relied against the accused-appellants as an incriminating circumstance because there was only one incised wound found on the dead body of the deceased in the size of 9cm x 2cm x skin deep below thyroid calistoga, which was not opined by medical expert Dr. Arun Sharma (PW-2) to be antemortem in nature. The cause of death, however, has opined to be drowning, which was of course was antemortem in nature. As it looks like, this postmortem injury on the neck of the deceased might have been caused by any sharp iron object while his body was flowing in the river or at least that remains a proximity because as per the prosecution, the flow of water had to be stopped to discover the dead body. 18. Coming now to the recovery of the dead body and the motorcycle, we find that the information in this regard obtained under Section 27 of the Evidence Act is shown to have been obtained by the Investigating Officer both at the instance of accused-appellants Neeraj Suman and Sonu Sharma. Accused-appellant Neeraj Suman is said to have given information under Section 27 of the Evidence Act with regard to dead body of the deceased and the motorcycle involved in the incident at 2:45 PM on 21.11.2009 and the police prepared the information memo (Exhibit P-41). Similarly, accused-appellant Sonu Sharma is shown to have given information under Section 27 of the Evidence Act with regard to dead body of the deceased and the motorcycle involved in the incident at 2:50 PM on 21.11.2009 and the police prepared the information memo (Exhibit P-42). That shows that both such information with regard to those recoveries were recorded with the interval of five minutes. Arrest of accused-appellant Sonu Sharma is shown to have been made on 21.11.2009 at 2:25 PM vide Exhibit P-39, whereas arrest of accused-appellant Neeraj Suman was made on 21.11.2009 at 2:30 PM vide Exhibit P-40. That shows that both such information with regard to those recoveries were recorded with the interval of five minutes. Arrest of accused-appellant Sonu Sharma is shown to have been made on 21.11.2009 at 2:25 PM vide Exhibit P-39, whereas arrest of accused-appellant Neeraj Suman was made on 21.11.2009 at 2:30 PM vide Exhibit P-40. This shows that the recovery of the dead body and the motorcycle was made within a minutes of arrest of the accused-appellants. The manner in which the arrest of the accused has been shown and immediately thereafter the recovery of the dead body and the motorcycle from the river has been shown, raises doubt about the correctness of the same in the sense that the dead body and the motorcycle must have been already surfaced in the river and attracted notices of the people and the police and that the accused have been shown to be connected with these recoveries only because Shyoji Rebari had named them as those with whom deceased Om Prakash had come to the factory in the previous mid night. But then, Mahaveer (PW-3) has stated that deceased Om Prakash had come to the Mess at 9:00 PM on previous night and that he was already drunk still then accused Neeraj and Sonu again went to buy liquor. Then all three of them consumed liquor and went to some place on a motorcycle. Pathik Arora (PW-15), the son of the deceased, has stated that his father was habitual alcoholic and he used to consume alcohol both in private and at public place. Even Pathik Arora (PW-15) has also substantially corroborated this statement because he has said that when he first of all went to the Mess on 21.11.2009 between 10:00 and 12:00 AM, Neeraj Suman told him that father of Pathik Arora had come in the night at around 9:00 PM on 19.11.2009 and left the place after 10-15 minutes. Then Pathik Arora (PW-15) stated that he went to Sarita Industries and enquired from Shyoji Rebari, the 'Chowkidar', along-with Nitin and Monu Mewara. 19. And now a look at the manner in which recovery of knife has been made. The information with regard to knife under Section 27 of the Evidence Act was obtained from both the accused-appellants. Then Pathik Arora (PW-15) stated that he went to Sarita Industries and enquired from Shyoji Rebari, the 'Chowkidar', along-with Nitin and Monu Mewara. 19. And now a look at the manner in which recovery of knife has been made. The information with regard to knife under Section 27 of the Evidence Act was obtained from both the accused-appellants. Accused-appellant Neeraj Suman gave the information under Section 27 of the Evidence Act with regard to the knife used in the incident on 22.11.2009 at 1:30 PM and the police prepared the information memo (Exhibit P-43). Similarly, accused-appellant Sonu Sharma gave the information under Section 27 of the Evidence Act with regard to the knife used in the incident on 22.11.2009 at 1:25 PM and the police prepared the information memo (Exhibit P-44). The knife was recovered by the police vide Exhibit P-6 on 24.11.2009 at 4:15 PM at the instance of both the accused-appellants, but a common recovery memo of knife (Exhibit P-6) has been prepared for such knife. Both the accused-appellants have been made to say that they had concealed the knife in the almirah of the Mess, where they were working. In the first place, if the information was obtained in the afternoon of 22.11.2009, why they waited for two clear days to make such recovery on 24.11.2009 at 4:15 PM. This does not appeal to logic that an accused having murdered his own employer, would conceal the knife in the own Mess of the deceased so as to make such proof easily available to the police. It also does not appeal to the reason if the accused at all committed the murder, they would continue to work in the Mess of the deceased so as to be available to the sons of the deceased as also to the police. 20. The learned Public Prosecutor has relied on the judgment of the Supreme Court in Himanshu Mohan Rai, supra, wherein the Supreme Court relied on its earlier judgment in Brijpal Singh Vs. State of M.P. - (2003) 11 SCC 219, wherein it was observed that there was reliable ocular evidence of the accused having shot the deceased, however, the ballistic expert reported that though both the guns were found to have been discharged recently, but the empty cartridges they were seized from the spot did not match the rifle that was recovered. State of M.P. - (2003) 11 SCC 219, wherein it was observed that there was reliable ocular evidence of the accused having shot the deceased, however, the ballistic expert reported that though both the guns were found to have been discharged recently, but the empty cartridges they were seized from the spot did not match the rifle that was recovered. The Supreme Court observed that normally, if evidence of the eyewitnesses is absolutely acceptable, then such evidence could be accepted even if there is some contradiction in the medical or ballistics reports. The Supreme Court therein also relied on its earlier judgment in Gangabhavani Vs. Rayapati Venkat Reddy and Others – (2014) 1 ACR 147, wherein it was observed that in case there is a contradiction between medical evidence and ocular evidence, the law is that though the ocular testimony of the eyewitness has greater evidentiary value vis-a-vis medical evidence, but where the medical evidence goes so far that it completely rules out all the possibility of the ocular evidence being true, the ocular evidence may be disbelieved. In the present case there is no foundation for such an argument because neither any question has been put to Dr. Arun Sharma (PW-2) nor otherwise it has been shown on the basis of any other material as to why the court should not believe the version of the medical expert who has said that the injury aforesaid was a postmortem injury and not antemortem in nature, particularly when the cause of death has been opined to be drowning. In the present case, there is no direct ocular evidence. The entire case of the prosecution hinges on circumstantial evidence and therefore the relied judgments can be of no help to the prosecution. 21. The linkage of the knife with the injury itself would be of no use particularly when this injury has not been opined to be the cause of death. The recovery of knife itself being shrouded in doubt, cannot be believed. Moreover, the police has obtained the information from accused-appellant Neeraj Suman under Section 27 of the Evidence Act on 25.11.2009 at 11:45 AM with regard to the clothes of the deceased and from another accused-appellant Sonu Sharma on 25.11.2009 at 11:55 AM. The recovery of knife itself being shrouded in doubt, cannot be believed. Moreover, the police has obtained the information from accused-appellant Neeraj Suman under Section 27 of the Evidence Act on 25.11.2009 at 11:45 AM with regard to the clothes of the deceased and from another accused-appellant Sonu Sharma on 25.11.2009 at 11:55 AM. The memo of information at the instance of accused-appellant Sonu Sharma under Section 27 of the Evidence Act for indicating the place where the pant, shirt, underwear and vest of the deceased were thrown in the river is shown to have been prepared on 28.11.2009 at 1:35 PM. The memo of information at the instance of accused-appellant Neeraj Sumar under Section 27 of the Evidence Act for indicating the place where the pant, shirt, underwear and vest of the deceased were thrown in the river is shown to have been prepared on 28.11.2009 at 1:30 PM. The police has even prepared the site plan of the place (Exhibit P-49), where these articles were shown by the accused. But despite all this exercise, neither the pant, shirt, underwear nor even vest of the deceased were recovered by the police. This therefore cannot be used as circumstance against the accused-appellants to connect them with the crime. 22. Then comes the circumstance of motive. The motive is a weak type of evidence and cannot by itself be a basis for convicting the accused-appellants, although it can be used to provide corroboration to evidence otherwise available on record. Allegation is that accused-appellant Neeraj Suman owned to the deceased a sum of Rs.1,50,000/-, on account of which they had a quarrel with the deceased which may be the cause of his murder by them. But nothing has been produced on the record to show that the accused owned some loan amount to the deceased and thus the prosecution has failed to substantiate this circumstance against the accused-appellants to bring home their guilt home. Even the learned trial court has not attached much significance to the kind of motive attributed by the prosecution to the accused. Even the learned trial court has not attached much significance to the kind of motive attributed by the prosecution to the accused. In the first place, there is no evidence to prove that the deceased actually had given a sum of Rs.1.5 lakh as loan to his low paid employee and secondly this stands demolished when Pathik Arora himself in his court statement has said that his deceased father, in addition to Rs.1.5 lakh, had given further amount of Rs.33000/- on 16.11.2009 as loan against a receipt for a period of two months to Neeraj Suman. Though, neither the said receipt has been exhibited nor the period of two months had yet been expired. Even then, if the deceased still relied on the accused that he advanced further loan to him, this proves the cardinality of relationship of the two. The mobile handset and PAN card are shown to have been recovered on 27.11.2009 at 5:20 PM at the instance of both the accused from beneath of over bridge near the river. As per the defence case, when the dead body and the motorcycle of the deceased were carried away by the flowing water of the river to different location, the PAN card and the mobile handset recovered from an open place does not provide any proof against the accused-appellants, who continued to work with the Mess of the deceased till the FIR was lodged. Each of the circumstances against the accused-appellants, except the circumstances of last seen, cannot be held to have been proved against them by clinching evidence. Law is well settled that an accused only on the basis of last seen without anything more, cannot be held guilty of committing so serious offence of murder. 23. Not only the indirect incriminating circumstances have not been proved the pale of reasonable doubt, these circumstances when joined together cannot be said to form a chain of circumstances so complete against the accused as to rule out every hypothesis which may be compatible with his innocence. 24. In the result, the criminal appeal is allowed. 23. Not only the indirect incriminating circumstances have not been proved the pale of reasonable doubt, these circumstances when joined together cannot be said to form a chain of circumstances so complete against the accused as to rule out every hypothesis which may be compatible with his innocence. 24. In the result, the criminal appeal is allowed. The impugned judgment and order dated 29.09.2015 passed by learned Additional Sessions Judge No.5, Kota, in Sessions Case No.05/2011 is set aside to the extent of conviction and sentence of the accused-appellants for offence under Section 302/34 of the IPC, whereas the said judgment and order to the extent of their acquittal of the charge for offence under Section 364 IPC is affirmed. Accused-appellants, namely, Neeraj Suman and Sonu Sharma alias Krishan Murari are acquitted of the charge for offence under Section 302 read with Section 34 IPC. They are in the Central Jail, Kota. They be set at liberty forthwith if not required to be detained in any other case. 25. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, accused-appellants Neeraj Suman and Sonu Sharma alias Krishan Murari are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each and a surety bond in the like amount before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, with an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, they, on receipt of notice thereof, shall appear before the Supreme Court.