JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 13.10.2011 passed by Additional Sessions Judge, court no.-3, Kaushambi, in Sessions Trial No.215 of 2007 (State Vs. Lalman and others), arising out of case crime no.27 of 2007, under Section 364 IPC, Police Station- Charwa, District- Kaushambi, whereby accused appellant- Dharam Raj Pasi- has been sentenced to 10 years R.I. coupled with fine of Rs.5000/-, and in default of payment of fine, he will have to undergo additional two months simple imprisonment. 2. Heard Sri Kamal Krishna, learned Senior Advocate, assisted by Sri A.K. Srivastava, learned counsel for the appellant and Sri Pradeep Kumar, learned A.G.A. for the State assisted by Sri Sharad Srivastava, learned brief holder and perused the record of this appeal. 3. Course of events leading up to this appeal have its genesis rooted in the first information report lodged by Jitendra Kumar Pandey s/o late Sita Ram r/o Mohammadpur Aswa, Police Station- Kokhraj, district- Kaushambi on 20.02.2007 at 03.30 P.M. to the effect on 19.02.2007 at 2.00 P.M., informant's brother- Birendra Kumar @ Sarkari told him that Dharamraj Lekhpal has telepathically called him at Tehsil- Chayal and he is going to Tehsil- Chayal. When informant's brother reached near Tehsil- Chayal, he met with informant's nephew Bebi, Jabi and Ruchi. Informant's brother was also coming from Tehsil- Chayal side to his home on road leading towards Kaju. Besides, informant's nephew- Pankaj also saw the informant's brother coming on motorcycle with one pillion rider whom he did not know. The pillion rider was a man of average age with medium height. When informant's brother did not reach home, then his whereabouts was searched. On search being made informant's brother-in-law- Sandeep r/o Koudiha told that motorcycle of informant's brother (UP 73 B 2871) was lying abandoned by the side of the road in village Harduwa, which is detained in police station- Charwa. Enmity exists between the informant and Lalman s/o Sarju Prasad Pandey of the village, informant has apprehension that Lalman has abducted informant's brother and after killing him has caused disappearance of the dead body, because three years back informant's elder brother was killed by sons of Lalman- Babbu @ Pawan Kumar and Raju. It was requested that report be lodged against Lalman and action be taken. It was requested that report be lodged against Lalman and action be taken. This report is Exhibit Ka-1. 4. Relevant entries were made in the concerned check F.I.R. at Case Crime No.27 of 2007, under Section 364 I.P.C. at Police Station- Charwa, which is on record as Ex.Ka.3. Pursuant to the entries so made in the check F.I.R., a case was registered against the accused at Rapat No.36 at 15.30 hours of the concerned General Diary of date (20.09.2007) at aforesaid case crime number under aforesaid section of Indian Penal Code, copy whereof is on record as Ex.Ka.4. 5. Record further suggests that after the report was lodged, Investigating Officer S.I. Chauthi Ram Sonkar P.W.8 commenced the investigation and recorded the statement of witnesses and the informant and prepared the memo of recovery of Hero Honda C.D. Dawan U.P. 73 B 2871. He also prepared the site map, which is Exhibit Ka-5. He has also got the call- details of the accused, which is Exhibit Ka-6. Thereafter, he arrested the accused and recovered the mobile on the pointing out of the accused(Dharmraj), which recovery memo is Exhibit Ka-7, he also recovered the motorcycle Motorcycle UP-73B/0105, which was used in the incident, Exhibit Ka-9. Site plan of the motorcycle is Exhibit Ka-10. 6. Thereafter, after completing all necessary formalities of investigation, the Investigating Officer filed charge-sheet, Exhibit Ka-11 against the appellant under Section 364 IPC. 7. Consequently, proceeding of the case was committed to the court of Sessions. As a sequel to that, this case was made over for trial and disposal to the court of Additional Sessions Judge, court no.-3, Kaushambi where it was numbered as S.T. No.215 of 2007. The appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case against the accused-appellant. Therefore, it framed charge against the accused-appellant under Sections 364 IPC. Charges were read over and explained to the accused, who abjured charges and opted for trial. 8. In turn, prosecution was asked to adduce its testimony in order to prove the guilt. The prosecution produced in all 8 witnesses out of whom, four are witnesses of fact and the rest four are formal witnesses. Brief reference of the eight prosecution witnesses is ut-infra:- Jitendra Kumar Pandey P.W. 1 is the first informant and witness of fact of telephonic call which the victim received from the accused. The prosecution produced in all 8 witnesses out of whom, four are witnesses of fact and the rest four are formal witnesses. Brief reference of the eight prosecution witnesses is ut-infra:- Jitendra Kumar Pandey P.W. 1 is the first informant and witness of fact of telephonic call which the victim received from the accused. He has proved written report Ext. Ka.-1. Virendra Kumar Prajapati P.W. 2 and Sandeep Kumar Tripathi P.W. 3 are the two witnesses of fact and claim to be witness of last seen and saw the victim and accused together the occurrence. Narendra Kumar Pandey P.W. 4 is the brother of the victim and witness of fact of occurrence. Constable Ramesh Chandra Tiwari P.W.5 is the scriber of the recovery memo of motorcycle. Mahesh Chandra Singh, Sub-Inspector P.W.6 has proved Exhibit Ka-2, recovery of motorcycle. Constable Sri Radheyshyam Sharma P.W.7 has entered relevant entries in the concerned check first information report and concerned general diary and has proved Exhibits Ka.-3 and Ka.-4 respectively. S.I. Chauthiram Sonkar P.W. 8 is the Investigation officer. He has detailed about various steps he took in completing the investigation and has filed charge sheet, vide Exhibit Ka.-11 against the accused persons. 9. Except as above, no other evidence was produced and statement of accused was recorded u/s 313 Cr.P.C., wherein he claimed his implication false on account of enmity and he has also stated that the informant- Jitendra Kumar Pandey (informant in the present case)- was the accused of murder case of his bahnoi (son-in-law)- Pawan @ Bababu. 10. However, no evidence was led by the defence. 11. Consequently, the case was posted for hearing of arguments. After considering the case on its merits and appraisal of facts and circumstances and evaluation of evidence on record, the learned trial judge returned aforesaid finding of conviction against the accused and sentenced him to 10 years R.I. coupled with fine Rs.5000/-, and in default of payment of fine, he will have to undergo additional two months simple imprisonment, which gave rise to this appeal. 12. Consequently, this appeal. 13. 12. Consequently, this appeal. 13. Learned counsel for the applicant has vehemently persuaded on certain specific and vital points touching on the merit of the case and has contended that the entire case is admittedly based on circumstantial evidence, but not a single link of the evidence in the chain of circumstances is complete so as to render the prosecution case reasonable and the witnesses are partisan and interested and their testimony, on the whole, is full of improvement and contradictions. Improvement so made is in the sense that witnesses of fact have developed their own theory in order to falsely involve the appellant in the crime, whereas, the appellant has nothing to do with the crime in question. 14. The very motive, which forms an essential part in cases based on circumstantial evidence, is missing. Last seen theory mooted by the prosecution, has not been established. There is no coherence and the various chains of circumstances have not even been properly identified and what to say about completeness of the chain of circumstance. The entire case is based on conjuncture and imagination and the Investigating Officer has also tried to improve the situation and has without any base filed charge-sheet against the appellant. Testimony on point of last seen theory itself goes into oblivion then the further link/evidence in the chain of circumstances also goes and no credence can be given to the improved and contradictory testimony of the prosecution witnesses of fact. The trial Judge was under misconception of last seen theory and he wrongly believed the call details, Exhibit Ka-6, whereas, the same was not admissible under provisions of the Evidence Act. Informant's nephew- Pankaj- is stated to have seen Virendra Kumar @ Sarkari on motorcycle near village- Geriya with one pillion rider. But the informant's nephew- Pankaj did not recognize him. This fact has not been proved and informant's nephew- Pankaj has not been produced in court. The first information report casts apprehension on Lalman Pandey with whom the informant is having enmity and animosity. But the trial court overlooked all aforesaid aspects and based its finding on conjecture and surmises. 15. On the contrary learned AGA has stated that it is correct to say that it is a case based on circumstantial evidence and all the relevant links in the chain of circumstances have been consistently proved and established. But the trial court overlooked all aforesaid aspects and based its finding on conjecture and surmises. 15. On the contrary learned AGA has stated that it is correct to say that it is a case based on circumstantial evidence and all the relevant links in the chain of circumstances have been consistently proved and established. The Investigating Officer has collected every relevant evidence which is sufficient to prove guilt of the accused. Witnesses of fact have proved last seen, which last seen has nexus and is in- proximity with the disappearance of the victim- Virendra Kumar @ Sarkari. It is natural that testimony of witnesses of fact will be somewhat different from each other in description. But that difference should not be treated to be contradiction of stature that it would be branded tutored or improved one. The call details collected by the Investigating Officer throws light on the complicity and the involvement of the appellant in the offence. The trial court has taken just view of the entirety of the fact and circumstances of the case and has rightly recorded findings of conviction. 16. After weighing the entire factual and evidenciary material available on record and contemplating its nature and offshoots, the core consideration that arises for adjudication of this appeal, relates to fact, as to whether, the prosecution has successfully established the chain of various circumstances, so complete as to brush aside, every hypothesis of innocence of the accused, pointing to only conclusion that it was the accused and the accused alone, who committed the crime? 17. At the very onset, it is noticeable that this is admittedly a case based on circumstantial evidence. The genesis of the entire case rests on the FIR, which describe the incident in a manner that upon receiving telephonic call on 19.02.2007 at about 2 P.M., informant's brother- Virendra Kumar @ Sarkari told him that Dharamraj Lekhpal has called him on to Tehsil- Chayal and he is going to Tehsil, thereafter, victim- Virendra Kumar @ Sarkari went to Tehsil, where he also met with informant's nephew/niece. Informant brother was coming to home on road leading from Chayal to Kaju, when on way near village- Geriya, Pankaj (informant's nephew) sighted him on a motorcycle with a pillion rider. When informant's brother did not return home, which gave concern to the informant, then he searched for his brother. Informant brother was coming to home on road leading from Chayal to Kaju, when on way near village- Geriya, Pankaj (informant's nephew) sighted him on a motorcycle with a pillion rider. When informant's brother did not return home, which gave concern to the informant, then he searched for his brother. He met with his brother-in-law Sandeep, who told him that motorcycle of Virendra Kumar @ Sarkari was found abandoned at some place near Village- Harduwa and which has been detained in the police station- Charwa. After this, some apprehension has been expressed regarding the possible culprit, who may be involved in the commission of the offence to the effect that enmity exists between informant's family and one Lalman. Apprehension was expressed that he(Lalman) has abducted informant's brother and has killed him because three years ago informant's elder brother was murdered by the sons of Lalman. 18. In the backdrop of aforesaid factual aspects of the case, testimony of the prosecution witnesses particularly that of informant P.W.1 Jitendra Kumar Pandey is quite relevant, wherein, he has supported factual allegations made in the first information report that his brother told him that he has been telephonically called by the appellant at Tehsil- Chayal and his brother started for Tehsil. Thus, his testimony to the fact that his brother started for Tehsil after receiving telephonic call from the appellant is on the point beginning of the entire episode. Obviously, he did not accompany his brother nor anyone else accompanied his brother from home to Tehsil- Chayal. This is also admitted position. 19. Virendra Kumar Prajapati P.W.2 has also been examined as witness on another aspect of the case. He has testified on point that on 19.02.2007 he was walking all along the road after he had left his home and met with Sandeep Tripathi. He asked him as to where he was going, whereupon, he told him that he was going to make domicile certificate of his sister. He also accompanied him to Tehsil- Chayal, when both of them reached Tehsil- Chayal, then they saw Sarkari Pandey @ Virendra and Dharamraj Lekhpal (appellant) talking to each other on staircase of Tehsil. Thereafter, after some time this witness also went to his home. Therefore, this witness also throws light on a partial aspect of case that he saw the victim talking to the appellant at Tehsil- Chayal and he (witness) left the scence. Thereafter, after some time this witness also went to his home. Therefore, this witness also throws light on a partial aspect of case that he saw the victim talking to the appellant at Tehsil- Chayal and he (witness) left the scence. It means he cannot testify as to what transpired later on whether the accused accompanied the victim outside the tehsil or was seen anywhere with the victim around Tehsil premises or around place where motorcycle of the victim was found abandoned. 20. Similar is the version of P.W.3 Sandeep Kumar Triapthi and he has supported testimony of P.W.2 has testified on the same line, with addition that he greeted the victim while talking in Tehsil. 21. Narendra Kumar Pandey P.W.4 has testified to the fact that his brother Sarkari Pandey @ Virendra was seen in the company of Dharamraj Lekhpal at about 7 P.M. on 19.2.2007. However, in his cross-examination he has testified that he is telling above fact at the instance of Vakil Sahib, therefore, his testimony on this aspect the whole becomes partisan, tutored and not reliable. 22. Thus cumulative outcome of testimony of all the four witness of fact, render their testimony sketchy, tutored and improved one and full of improbabilities and contradictions which testimony on the whole does not inspire confidence and not reliable for the following reasons:- 23. Assuming it to be that some telephonic call was received by victim Sarkari Pandey @ Virendra at 2 P.M. on 19-02-2007 from the appellant and then he started for Tehsil- Chayal; and assuming it to be that the victim was seen talking to the appellant at Tehsil- Chayal by Virendra Kumar Prajapati P.W.2 and Sandeep Kumar Tripathi P.W.3, even then, it is not a case that Sarkari Pandey @ Virendra (victim) was taken by appellant-Dharamraj with him or that the victim was seen accompanying the appellant leaving the premises of the Tehsil- Chayal and going outside the Tehsil. But the fact is that there is no iota of evidence or cicumstance touching on point that appellant left Tehsil premises with the victim-Sarkari Pandey @ Virendra and accompanied him either on any vehicle or on foot or by any other means on road or was seen in company with the victim anywhere near place where motor cycle of the victim was lying abandoned. 24. 24. Next, though the first information report mentions that the victim was sighted by informant's nephew Pankaj, but this fact remains unproved one for the specific reason that Pankaj has not been brought in witness- box and testified on that point. Therefore this piece of testimony remains heresay evidence and not proved. 25. Merely, discovery of motorcycle of the victim near village- Harduwa will not ipso facto prove fact that the victim brought it to that spot accompanied with accused. 26. Next, the theory developed by the prosecution witnesses of fact that telephone contact was made with the victim around 6 P.M. is on the whole highly improved one and the Investigating Officer never recorded any such statement (under section 161 CrPC) nor did the Prosecution witnesses of fact ever made any such particular statement to the Investigating Officer during the investigation. Suggestion so put to the I.O (P.W 8) has been claimed straight away. 27. In such scenario upon careful scrutiny of fact, it is obvious that not a single fact has been established by the prosecution which may be termed or accepted to be last seen in the case. Virtually this case stands minus last seen theory. The theory of last seen even fails in totality and thereafter all the links in the shape of evidence in the chain of circumstance are woefully missing and cannot be juxtaposed so as to give clarity to the accusation and guilt of the accused that it was the accused and accused alone who was the perpetrator of the crime. The chain of circumstances is incomplete. 28. Upon careful sentencing of facts, evidence and circumstances of this case it is obvious that such vital aspects of the case were completely overlooked by the trial court and it blundered both in law and on fact and wrongly recorded conviction against the accused under Section 364 IPC on the basis of last seen theory which was no where established. There is nothing on record to connect involvement of the appellant in the commission of the offence. The trial court wrongly based its finding of last seen theory, whereas there is no convincing evidence of last seen at all. 29. In the backdrop of aforesaid discussion, this Court is fully convinced that the prosecution has not been able to establish all the vital links in the chain of circumstances and the chain remained incomplete. The trial court wrongly based its finding of last seen theory, whereas there is no convincing evidence of last seen at all. 29. In the backdrop of aforesaid discussion, this Court is fully convinced that the prosecution has not been able to establish all the vital links in the chain of circumstances and the chain remained incomplete. Learned trial court while appraising evidence and marshaling facts on record misread the evidence and based its conviction more on whims and imagination than on evidence on record, leaving aside the guiding principles to be applied in cases based on circumstantial evidence. In case evidence and circumstances of the case allude to alternative way to alternative hypothesis then benefit of doubt should and must be given to the accused persons. 30. Consequently, judgment and order of conviction dated 13.10.2011 passed by Additional Sessions Judge, court no.-3, Kaushambi, in Sessions Trial No.215 of 2007 (State Vs. Lalman and others), arising out of case crime no.27 of 2007, under Section 364 IPC, Police Station- Charwa, District- Kaushambi is hereby set aside and the appeal is allowed. Accused-appellant is acquitted of all charges as above. 31. In this case, the accused-appellant is already on bail. He need not surrender in this case. His bail bonds are cancelled and sureties are discharged. However, he shall furnish surety bonds in compliance with Section 437-A Cr.P.C. 32. Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.