JUDGMENT : BHARATI H. DANGRE, J. 1. Being aggrieved by the judgment passed by the Additional Sessions Judge of Greater Bombay in Sessions case no.310 of 2009 (State of Maharashtra vs. Nijamuddin A. Shaikh & Ors.), the two Appellants have preferred the present Appeal for their conviction under section 302, 342 read with section 34 of the Indian Penal Code. The Additional Sessions Judge, Bombay convicted the present Appellants for the offences punishable under Sections 302 read with Section 34 of the IPC and sentenced them to suffer imprisonment for life and to pay fine of Rs.3,000/-, in default, to suffer simple imprisonment for six months. The learned Additional Sessions Judge has also convicted the present Appellants for the offences punishable under section 342 read with Section 34 of the IPC and sentenced them to suffer simple imprisonment for three months and to pay fine of Rs.5000/-, in default, to suffer further imprisonment for one month. By the said judgment, the accused no.3-Shabbir Jamil Badshah came to be acquitted since no clinching evidence to rope the said accused was brought on record by the prosecution. 2. The case of the prosecution is that on 9th February, 2009, Police Inspector Borade attached to Trombay Police Station, Thane, received phone call from police constable Shri Bhosale who was posted on duty at Shatabdi Hospital. It was informed by him that one person has been admitted to the said hospital in an unconscious condition. Two persons who had brought the injured to the hospital were named as Hanif Jamal Shaikh and one Dilshad Wajidmiya Shaikh (Appellant no.2). The medical officer examined the said person who was brought to the hospital and he was declared dead. On the basis of said information, AD No.17 of 2009 was registered under Section 174 of the Code of Criminal Procedure (Cr.P.C.). On receipt of the said information, the police officials from Trombay police station proceeded to the Shatabdi Hospital for the purpose of further inquiry. On reaching hospital, the dead body of the person was shown to Police Inspector Borade who was identified as Sayyad Jafar, aged 26 years and the two persons who had brought the said person to the hospital were also pointed out. It was noticed that the dead body did not bear any external injuries barring an injury on the left leg below the ankle and an abrasion on the right hand. It was noticed that the dead body did not bear any external injuries barring an injury on the left leg below the ankle and an abrasion on the right hand. The inquest panchanama was carried out and the body was forwarded for conducting the postmortem. During the course of investigation it was revealed that the person who was admitted in Shatabti hospital on 9th February, 2009, was working as a worker in a Jari workshop owned by appellant no.1 located at V Sector Chita Camp, Trombay, Mumbai. The investigation revealed that he was working with one employer namely Nijamuddin Shaikh and he had borrowed an amount of Rs.20,000/- from his employer and had failed to return an amount of Rs.10,000/-. The investigation reveal that the said employer Nijamuddin with the assistance of two other person including accused no.2 Dilshad and accused No.3 Shabbir had called the deceased to the workshop, confined him at the said place and with a common intention and common object inflicted injuries on the said person which had caused his death. On the basis of the said information received, FIR was registered with Trombay Police Station and on the basis of the said FIR, the investigating machinery was set into motion. During the course of investigation, the investigating agency recorded the statement of co-worker who was working along with the deceased Sayyed Jafar. The postmortem report was obtained and on suspicion three accused persons amongst whom two are the appellants before this Court were arrested for the offences punishable under Sections 342 and Section 320 read with Section 34 of IPC. During the course of investigation, disclosure and recovery panchanama was also executed at the instance of accused no.3 Shabbir, which resulted into recovery of one iron chain, a set of lock and keys. On arrest of the accused persons, the clothes which were worn by them were sent for Chemical Analysis. On completion of investigation, charge-sheet was filed in the competent Court. On receipt of the charge-sheet, the Court framed charges against the three accused persons and alleged that all the accused persons in furtherance of their common intention had wrongfully confined the deceased Sayyad on 9th February, 2009 at the Jari workshop situated at B-sector, Chita Camp, Trombay, in between 3:30 p.m to 4:30 p.m. and, thereby committed an offence punishable under Section 342 of IPC. The accused persons were further charged that in furtherance of their common intention they tied the deceased Sayyed Jaffar and assaulted him and also throttled him thereby causing his death with the knowledge that such act would cause his death and such act of the accused persons was sufficient to cause death of the deceased. All the three accused persons pleaded not guilty and prayed for being tried. 3. Learned Additional Sessions Judge, Bombay proceeded with the trial in Sessions Case No.310 of 2009. In order to bring home guilt of the accused person, the prosecution has examined 11 witnesses and also relied upon the evidence in the form of spot panchanama, inquest panchanama, postmortem report, report of Chemical Analysis and the PMR's from the hospital. The accused person were offered an opportunity of recording their statement under Section 313 of the Cr.P.C. The learned Sessions Judge, Bombay, proceeded with the trial by framing the point as to whether the prosecution has proved that Sayyed met with homicidal death and as to whether the prosecution proved that on 9th February, 2009, in between 3:30 to 4:30 p.m., accused in furtherance of their common intention wrongfully confined deceased Sayyed at Jari workshop and committed an offence punishable under section 342 of the IPC. Learned Sessions Judge also framed a point as to whether in furtherance of the common intention all the accused persons had throttled the deceased with an intention and knowledge that said act of their would result in to his death and, thereby committed an offence punishable under Section 302 read with Section 34 of the IPC. 4. Learned Sessions Judge also framed a point as to whether in furtherance of the common intention all the accused persons had throttled the deceased with an intention and knowledge that said act of their would result in to his death and, thereby committed an offence punishable under Section 302 read with Section 34 of the IPC. 4. On consideration of the evidence brought on record by the prosecution and on consideration of the supporting material, the Additional Sessions Judge held that the death of the deceased had occurred within four walls of the workshop and, based on evidence brought on record by prosecution, an inference was drawn that the evidence which was brought by the prosecution was sufficient to prove that it was accused nos.2 and 3 who had asked deceased to accompany them to the Jari workshop and it was in their company the deceased was seen during the period immediately preceding the period of his death and on that basis, the learned Sessions Judge recorded that there may be possibility that Jafar had denied to repay the loan or denied to attend the duty in the factory/workshop of accused no.1 and that may have become the motive for the accused persons to commit the crime. The learned Sessions Judge was of the opinion that there was no direct evidence to prove the guilt of the accused, he relied upon the chain of circumstances which according to him was wholly established by the prosecution and that it was the only accused persons who were responsible for causing the death of the deceased. The learned Sessions Judge was of the opinion that there was no direct evidence to prove the guilt of the accused, he relied upon the chain of circumstances which according to him was wholly established by the prosecution and that it was the only accused persons who were responsible for causing the death of the deceased. The following chain of circumstances was relied upon by the learned Sessions Judge for establishing guilt of accused nos.1 and 2, namely: (1) Deceased Jafar was in due of Rs.11,500/- to accused no.1 Nijamuddin; (2) Accused no.1 Nijamuddin and accused no.2 Dilshad are related to each other; (3) Deceased Jafer was left in the company of accused on 9th February, 2009 around 3:30 p.m.; (4) Around 4:30 p.m to 5:00 p.m., accused no.1 Nijamuddin voluntarily reported to the mother of deceased that Jafer was shifted to hospital; (5) Around 4:30 to 5:00 p.m., Jafar was shifted in dead condition to Shatabdi Hospital by accused no.2 Dilshad; (6) Accused no.2 Dilshad and accused no.1 Nijamuddin were admittedly had been to Shatabdi Hospital soon after the incident; and (7) Hospital register entry and EPR entry discloses that accused no.2 Dilshad brought patient in dead condition to hospital. Relying upon the last seen theory, learned Sessions Judge derived an inference that accused nos.1 and 2 were in the company of the deceased at around 3:30 p.m. and there was a close proximity of the last seen of the deceased alive at 3:30 p.m. and the demise of the injured in the hospital within two hours. The learned Sessions Judge, therefore, concluded that the close proximity between these two incidents, itself competes the circle without leaving any fracture or point to penetrate a complete circle. As regards accused no.3 Shabbir, learned Sessions Judge arrived at conclusion that the case of the accused stands on different footing and he is entitled for reasonable benefit of doubt since there is no adequate material brought on record by the prosecution to rope him in the commission of crime. The learned Sessions Judge held accused nos.1 and 2 guilty of the offences punishable under Sections 342 and 302 read with 34 of the IPC and acquitted accused no.3 Shabbir of the said charges levelled against him. 5. It is this judgment which is impugned in the present Appeal. The learned Sessions Judge held accused nos.1 and 2 guilty of the offences punishable under Sections 342 and 302 read with 34 of the IPC and acquitted accused no.3 Shabbir of the said charges levelled against him. 5. It is this judgment which is impugned in the present Appeal. The present Appeal though filed by two appellants i.e. Nijamuddin, accused no.1 and Dilshad, accused no.2, the record reveals that during the time, when the Appeal was pending for adjudication before this Court, on 27th September, 2017, appellant no.1 has expired and hence appeal filed by him stands abated. The appeal is, therefore, to be decided only as far as appellant no.2, is concerned. 6. Learned Counsel Shri Pradhan appeared on behalf of appellant no.2 and he would argue that the learned Sessions Court has acquitted the appellant No.3 on the basis of same set of evidence which has been lead by prosecution to implicate the present appellant and according to him no sufficient material is brought on record by the prosecution resulting into his conviction. He would argue that the learned Sessions Judge has erred in convicting the said appellant of the charges under Sections 342 and 302 read with section 34 of the IPC and according to the learned counsel, the prosecution has not brought any cogent material on record to connect his client to the homicidal death of the deceased. He invited our attention to the evidence of the prosecution witness and he vehemently urged that on perusal of the said evidence that there are several contradictions on material aspects of the case where the prosecution has failed to establish the guilt of Appellant No.2 conclusively. According to the learned counsel for the appellant, the prosecution has failed to prove the guilt of his client beyond reasonable doubt and it is only mere suspicion which was drawn on the basis of the evidence of some of the witnesses the court derived an inference that the deceased was last seen in the company of Appellant Dilshad Ahmed and it was the appellant no.2 who had been to the house of the deceased and asked him to accompany him to appellant no.1 is workshop, he has been roped in and falsely implicated. According to the learned counsel, the circumstance that his client was present in the hospital and had carried deceased Sayeed into hospital and was present in the hospital along with the deceased when he was declared dead, is not a sufficient to prove the charge that he has caused the death of the deceased. According to the learned counsel, the prosecution has failed to prove the charges levelled against Appellant No.2 and the learned Sessions Judge has also erred in relying upon mere surmises and conjectures and conviction based on it, according to him is not sustainable and needs to be set aside. We have also heard the learned APP Mrs. Deshmukh, who supported the case of the prosecution and the judgment of the Sessions Court. According to the learned APP, the case of the prosecution was based on circumstantial evidence and in her view the chain of circumstances pointed out and brought on record by the prosecution is complete and lead to an inference that it was only appellant no.2 with the assistance of appellant no.1 who was responsible for causing death of the deceased. According to her, the circumstances of last seen of the deceased in the company of the appellant no.2 is a sufficient circumstance to demonstrate that it is appellant no.2 who had an opportunity to kill deceased person and in fact he had availed of the said opportunity and caused death of the deceased. The learned APP also laid strong emphasis on the fact that time gap which is essential relying on the last seen theory has been very short, as the deceased was last seen alive at 3:30 p.m. in the company of the appellant, when the appellant had accompanied the deceased along with his mother to the workshop belonging to accused no.1 and it is in his presence, the deceased was last seen when he was brought and admitted to the hospital and thereafter declared dead. According to the learned APP, this circumstance is sufficient to implicate the present appellant. She relies on the evidence on record and particularly, the statement of P.W.1, mother of the deceased, P.W.8, the co-worker to demonstrate the prosecution case based on last seen theory. According to the learned APP, this circumstance is sufficient to implicate the present appellant. She relies on the evidence on record and particularly, the statement of P.W.1, mother of the deceased, P.W.8, the co-worker to demonstrate the prosecution case based on last seen theory. She also relies upon the evidence of the Doctor who conducted Postmortem (P.W.7) to urge that the death of deceased was an unnatural death and the postmortem reveals external injuries on the body of the deceased. According to her, taking a holistic view of the entire material brought on recorded by the prosecution, the inference can be safely drawn that appellant no.2 has caused the death of the deceased and the Sessions Judge has rightly convicted appellant no.2 and sentenced him accordingly. 7. With the assistance of the learned counsel for the appellant and the learned APP, we have perused the entire record. The prosecution has relied upon testimony of 11 witnesses who were examined during the course of trial. It would be necessary to have a brief reference to the testimony of these witnesses recorded by the learned trial Court in order to appreciate the contentions raised by the appellant in the Appeal. In order to rely upon the theory of last seen, the prosecution has placed reliance on prosecution witness no.1, mother of the deceased Nasimbano Sayyed Ibrahim. The said witness has deposed before the Court that she was residing in Chita Camp with her family members and Jafer was her son. She was also deposed that Sayyed was working in Jari workshop of accused no.1 Nijamuddin and on 9th February, 2009, her son was at home being an holiday. She also deposed that her son Jafar had obtained an advance amount from accused no.1 towards labour work and he was to pay an amount of Rs.10,000/- to accused no.1. She states that on 9th February, 2009, two brother in laws of accused no.1 had been to her house at 3:30 p.m and asked Jaffar to accompany them to workshop. She states that she was asked by her son to accompany him since her son had categorically stated that he was frightened as accused no.1 Nijamuddin used to always beat him. She states that she was asked by her son to accompany him since her son had categorically stated that he was frightened as accused no.1 Nijamuddin used to always beat him. According to the said witness, they all went together in the work shop where accused no.1 Nijamuddin was present and he inquired from her son as to why he is not attending work and scolded her son, on which her son tendered apology and assured him that he would attend the work. This witness further deposed that accused no.1 Nijamuddin asked her son to return the amount and then he asked her to go away and also said to her that she should return the amount and rescue her son. This witness has deposed that her son thereafter remained at the workshop of accused no.1 and she returned home alone. It is further stated that around 4:00 p.m., accused no.1 Nijamuddin came to her house in a frightened condition and stated to her that he had done nothing to her son but had sent him to the hospital and that she should visit Shatabdi hospital. Thereafter, this witness went to hospital along with her husband and found dead body of her son lying in the hospital and she was informed by doctor that her son was already dead. The said witness stated that she identified the clothes of the deceased and doctor informed her that death of her son was caused due to throttling. This witness was cross-examined and in the cross-examination, she admitted that her son used to consume alcohol at night and he was working with the accused no.1 for about five to six years prior to his death. She further deposed that she had not seen injuries on the person of her son in the hospital. The testimony of the witness is important as it throws light on the case of the prosecution to the extent that this witness accompanied her son to the workshop of accused no.1 at around 3:30 p.m. on the date of incident and left her son at the workshop and she returned home alone and at around 4:00 p.m. she was informed by accused no.1 that her son admitted in the Shatabdi hospital. 8. Another witness which the prosecution has relied upon to prove that the deceased was last seen in the company of the accused person is prosecution witness P.W.8. 8. Another witness which the prosecution has relied upon to prove that the deceased was last seen in the company of the accused person is prosecution witness P.W.8. Prosecution witness no.8 Mohammad Hanif is the worker working in the Karkhana of accused no.1 Nijamuddin. The testimony of this witness reveals that on 9th February, 2009, he had been to the Karkhana on duty and at about 3:00 to 3:15 p.m., accused no.1 Nijamuddin had come to the Karkhana and asked accused no.2 Dilshad (present appellant) whether all the workers had arrived and he was informed that all workers are present except Jafar. He further deposed that Nijamuddin had told accused no.2 Dilshad and accused no.3 Shabbir to go and call Jafar and within a short time Jafar came along with his mother. He also deposed before the Court that Nijamuddin scolded Jafar since he was not attending duty for last 20 days and consuming liquor. He further deposed that mother of Jafar also scolded the deceased and requested Nijamuddin to take him on work and, thereafter, Nijamuddin asked Jafar to attend duty from next day to which Jafar agreed and left the place with his mother. According to this witness at around 5:00 p.m. one person by name Yunus and his friend arrived in the Karkhana and informed that Jafar is lying under the influence of alcohol near Den of one Kani and, thereafter, all the persons including mother of Jafar went to the said place where Dilshad tried to wake up Jafar. He also further testified that during that time Altaf came with Auto-rickshaw and then this witness along with the present appellant no.2 took Jafar and admitted him to the Shatabdi hospital where he was declared dead by doctor. The said witness was cross-examined by the learned APP extensively in view of the fact that said witness was not supporting the case of the prosecution. Perusal of the said examination by the APP makes a reference to certain marked portions in the police statement. The said witness was cross-examined by the learned APP extensively in view of the fact that said witness was not supporting the case of the prosecution. Perusal of the said examination by the APP makes a reference to certain marked portions in the police statement. However, perusal of the said statement will reveal that though extensively this witness has been put to scrutiny qua his statement made before the police, this witness did not depart from the narration of events which he gave in the examination-in-chief to establish that the deceased had accompanied appellant no.2 to the workshop but, immediately he left the workshop with the promise to accused no.1 that he would return to duty from next day. The prosecution also relies upon statement of P.W.5 Yunus who is Jari worker though not working in the workshop of accused no.1. The prosecution witness no.5 has deposed that on 9th February, 2009 at around 3:30 to 3:45 p.m., he had been to Janta Hotel for having a cup of tea and at that time he saw some persons were putting an unconscious man in Auto by carrying him and they took him away and he came to know that it was deceased Jafar who was taken away by Auto-rickshaw. He also deposed that he was knowing Jafar as he also doing Jari work and when all the accused persons present in the court were shown to him, he categorically stated that none of them were present amongst the persons who carried Jafar in the Auto Rikshaw. This witness is also extensively cross-examined and unsuccessful attempt was made to create doubt on his narration of events on the ground that he was not able to see the actual incident happening, but his testimony remains unshaken. This witness has also admitted that Jafar was habitual drinker. The prosecution has also examined the auto-rickshaw driver Mohd. Ibrahim, prosecution witness nos.6. The said witness had deposed before the Court that he was plying auto rickshaw and on 9th February, 2009, around 5:00 p.m. he was waiting near Janta Hotel for passengers and at that time one boy approached him and said that one person is ill and he requires to be shifted to the hospital. Ibrahim, prosecution witness nos.6. The said witness had deposed before the Court that he was plying auto rickshaw and on 9th February, 2009, around 5:00 p.m. he was waiting near Janta Hotel for passengers and at that time one boy approached him and said that one person is ill and he requires to be shifted to the hospital. He further stated that the boy took him to the place near the gutter where one person was lying and 4 to 5 persons were standing at the said place. He stated that at that time two persons lifted the person who was lying and put him in the auto-rickshaw and he carried those persons to the Shatabdi Hospital. This witness was specifically asked whether the two persons who came in his rickshaw and who had lifted the person lying were present before the Court, he answered in negative by stating that they were not present. In view of these prosecution wittiness’s, namely, P.W.1, P.W.5, P.W.6 and P.W.8 on which the prosecution placed reliance to establish that the deceased person had been taken to the workshop of accused no.1 around 3:30 p.m. By appellant No.2 & 3 and the deceased was accompanied by his mother and in the workshop, accused no.1 and accused no.2 (present appellant) were present. The prosecution further relies on the testimony of P.W. No.5 to prove that at around 5:00 p.m. the said deceased was lying in an unconscious condition in front of Janta hotel near the nullha and he was put in an auto-rickshaw belonging to prosecution witness no.6 and the he was carried to the hospital. 9. The prosecution further places reliance on the evidence in the form of two medical officers, one PW 4 Madhukar Shankar Bhosale, Doctor on duty at Shatabdi Hospital. The said doctor has deposed before the Court that on 9th February, 2009, when he was on duty, at around 5:50 p.m. he was called in the casualty department by a medical officer who informed that a patient was brought dead to and at that time two persons namely, Mohd. Hanif and Dilshad came and informed that they had brought the injured person to the hospital. Prosecution witness no.4 has stated before the court that these two persons had informed him that the injured was working in Karkhana where he had become unconscious and, therefore, they had brought him in the hospital. Hanif and Dilshad came and informed that they had brought the injured person to the hospital. Prosecution witness no.4 has stated before the court that these two persons had informed him that the injured was working in Karkhana where he had become unconscious and, therefore, they had brought him in the hospital. The witness further deposed that entry has been taken in the EPR Register and written message was forwarded to the Trombay police station. The said witness identified the two persons who met him in the hospital and had brought the deceased to the hospital and he specifically pointed out towards Dilshad i.e. present appellant who was present in the Court. The prosecution has further relied upon the testimony of P.W.7 Dr.Sunil Javale, who conducted the Postmortem on the dead-body of the deceased. The said witness deposed before the Court that on 9th February, 2009 and 10th February, 2009, he was on duty at Rajawadi Postmortem Centre and dead-body of the deceased was brought by PSI Borade of Trombay Police Station at around 10:00 p.m. alongwith the inquest panchanama. He deposed before the Court that he started the postmortem at about 12:00 noon and concluded it at around 1:00 p.m. on 10th February, 2009. On examination of the dead-body, he noted two external injuries on the corpus, which he had mentioned in column no.17 of the postmortem note. The said injuries has been described by him as follows: (1) Abraded contusion at left palm posterior 3 x 2 c.m., reddish irregular; (2) Contusion 1 x1c.m. at right shin, reddish irregular. He opined that the injury found and mentioned in column no.17 is ante-mortem in nature. The said witness has also given particulars of the internal examination which he has specifically mentioned in the postmortem report. He stated that on internal examination, he found that brain was congested and cerebral vessels were engorged and there were petecheal hemorrhage over brain surface. He further deposed that on examination of neck, it was found that the neck was oedematous on cut section bilateral patchy contusion over neck muscles, dark reddish oedematous. Cornues of hyoid bone seen fractured and displaced bilateral with contusion of surrounding tissues and ligament. P.W. 7 deposed that the cause of death is Asphyxia due to throttling with contusion. He further deposed that on examination of neck, it was found that the neck was oedematous on cut section bilateral patchy contusion over neck muscles, dark reddish oedematous. Cornues of hyoid bone seen fractured and displaced bilateral with contusion of surrounding tissues and ligament. P.W. 7 deposed that the cause of death is Asphyxia due to throttling with contusion. In the cross-examination, the medical expert admits that if a person falls on hard and rough substance than injuries mentioned in column no.17 are possible. However, he denied the suggestion that person can get throat injury as found in this case by coming into contact with his own hand or by simple fall due to accident. The postmortem report Exhibit – 26 was proved by this prosecution witness. 10. The prosecution has also relied upon evidence of one Babu Abdul Kadar Shaikh who is examined as prosecution witness no.9. This witness has proved Exhibit–29 which is recovery panchanama. In his deposition before the Court, he stated that on 14th February, 2009, he was called by police of Trombay police station and informed that one accused had to disclose and he should attend the police station and thereafter one person namely Shabbir was pointed to him and he has stated that he would produce a iron chain which was kept in the house of Nijamuddin. The said witness further deposed that thereafter police officer took the accused Shabbir to the residence of Nijamuddin and then Shabbir went upstairs and he took out a bundle of clothes from behind television which was containing one iron chain, one lock and four keys. Panchanama of seizure was prepared and this witness put signature on the said panchanama, which was exhibited as Exhibit – 29. 11. In order to prove the material brought on record during the course of trial, the prosecution has examined the investigating officer P.W.11 Narsappa Ramchandra Ambupe. Prosecution has also examined Bajirao Pawar, Assistant Police Inspector, Trombay Police Station who had registered the First Information Report and arrested the accused persons. The prosecution witness no.11 Narsappa in his deposition before the Court gave the details of the investigation carried out by him in pursuance of registration of an FIR by P.W.10. He refers to the recovery of chain, lock and keys in presence of two panchas. The prosecution witness no.11 Narsappa in his deposition before the Court gave the details of the investigation carried out by him in pursuance of registration of an FIR by P.W.10. He refers to the recovery of chain, lock and keys in presence of two panchas. He also refers to the seizure of clothes from the accused persons and the clothes of the deceased which were forwarded for Chemical Analysis. He also refers to the statements he had recorded during the course of investigation. 12. It is this material, which we referred, was considered by the learned Sessions Judge in support of the prosecution case that the deceased met with homicidal death and it was the accused persons who had caused the death of the said person. The scrutiny of evidence adduced by the prosecution reveals that the prosecution has brought on record the evidence in the form of witness to prove its case by circumstantial evidence and relied on the last seen theory to implicate the present appellant. According to the prosecution, the circumstances demonstrated and brought before the Court through the witnesses and the material on record establishes beyond doubt that it was only the accused persons who had an opportunity to commit the said crime and in the backdrop of the motive that an amount was due from the deceased to accused no.1, and, since he was not reporting for duty, the accused persons with common intention had confined the deceased Sayyad on 9th February, 2009 in a Jari workshop and assaulted and throttled him and caused his death. 13. At this juncture, we feel it necessary to refer to the principle of law laid down by the Hon'ble Apex Court, while relying on circumstantial evidence and while convicting the accused persons on the basis of such evidence. It is, no doubt, that while relying upon circumstantial evidence, the Court must adopt very conscious approach and should record the conviction only if the chain is complete pointing out the guilt to the accused only. The Honble Apex Court in case of Hanumant Govind Nargundkar & Anr. Vs. State of Madhya Pradesh AIR 1952 SC 343 , has expressed a word of caution and has observed thus: “10 …... In dealing with circumstantial evidence the rules especially applicable to such evidence must be borne in mind. The Honble Apex Court in case of Hanumant Govind Nargundkar & Anr. Vs. State of Madhya Pradesh AIR 1952 SC 343 , has expressed a word of caution and has observed thus: “10 …... In dealing with circumstantial evidence the rules especially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge (1838) 2 Lawin 227) where he said : “The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete”. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused”. In the words of the Hon'ble Apex Court every link produced by the prosecution should lead to a firm conclusion that it is the only accused who has committed the offence and a link which may only suggest a suspicion is not sufficient, as it may not take place of a proof and sufficient to sustain the conviction. In the words of the Hon'ble Apex Court every link produced by the prosecution should lead to a firm conclusion that it is the only accused who has committed the offence and a link which may only suggest a suspicion is not sufficient, as it may not take place of a proof and sufficient to sustain the conviction. The circumstances must be fully established and all facts so established must be consistent with the hypothesis regarding the guilt of the accused and they must exclude every possible hypothesis except the one sought to be proved. The Hon'ble Apex Court in case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 has laid down five guiding principles which are subsequently followed in a Catena of judgments. The five conditions to be fulfilled before a case against he accused which is fully established on circumstantial evidence are as under: “1. The circumstances from which the conclusion of guilt is to be drawn should be fully established, 2. The facts so established should be consistent with the hypothesis of guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, 3. The circumstances should be of a conclusive nature and tendency, 4. They should exclude every possible hypothesis except the one to be proved, and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” Applying the test as mentioned above, in order to establish a case based on circumstantial evidence, the Court can rely on legally admissible evidence and not arrive at a conclusion based on mere conjectures and surmises. The evidence brought on record by the prosecution in the present case points out towards suspicion, but, in our opinion, scrutinizing the entire evidence of the prosecution, we are of the opinion that there is no single credible piece of evidence linking the appellant to the crime in question. It is not in dispute that the deceased met an unnatural death, and, prosecution has proved through prosecution witness no.7 that he died unnatural death. It is not in dispute that the deceased met an unnatural death, and, prosecution has proved through prosecution witness no.7 that he died unnatural death. The moot question is whether the appellant is the person who has caused the death of the deceased and, therefore, we are required to scan the evidence brought on record by the prosecution to connect the present appellant to the death of the deceased. After careful scrutiny of evidence brought on record by the prosecution, in our view, the evidence against the appellant does not appear to be cogent, reliable and trustworthy which points out only towards the guilt of the present appellant and being responsible for causing death of the deceased person. The evidence brought on record by the prosecution suffers from several infirmities, discrepancies and the prosecution has not been able to establish that it is solely by the appellant who is responsible for causing death of the deceased. 14. Evidence of prosecution witness no.1, mother of the deceased, reveals that the deceased had accompanied appellant no.2 and appellant no.3 to the Jari factory on the day of incident at around 3:30 p.m. According to the version of this witness, the deceased thereafter stayed in the factory/workshop and the witnesses returned home alone. On careful examination of testimony of P.W.8 Mohd. Hanif who is co-worker working in the factory, who was present in the workshop when the deceased was brought there by appellant no.2 supports the version of prosecution witness no.1 to the extent that a talk took place between appellant no.1 and the deceased and appellant no.1 scolded the deceased for not attending the duty and remaining absent. According to his evidence, prosecution witness no.1 also scolded the deceased and requested appellant no.1 to permit her son to resume the duty and on assurance given by appellant no.1, he offered to resume the duty from the next day. According to the evidence of prosecution witness no.8, the deceased left the workshop with his mother PW 4. As far as the presence of appellant no.2 on the spot is concerned, the prosecution witness no.1 refers to two persons who had come to her house at 3:30 p.m. on the day of incident as the brother-in-laws of the appellant Nijamuddin, though she has not named them. As far as the presence of appellant no.2 on the spot is concerned, the prosecution witness no.1 refers to two persons who had come to her house at 3:30 p.m. on the day of incident as the brother-in-laws of the appellant Nijamuddin, though she has not named them. In a statement under Section 313, the present appellant has admitted that he is brother in law of Nizamuddin. Prosecution witness no.8 categorically states that appellant no.2 was present at the time of incident, however, on careful scrutiny of the evidence of these two witnesses, it is clear that there is a contradiction on the material point and a material circumstance as to after coming to the workshop around 3.30 p.m whether the deceased stayed in the workshop or he left the workshop along with his mother. The prosecution has failed to bring on record any cogent evidence as to this circumstance barring the evidence in the form of these two witnesses which is in contradiction to each other. As far as the present appellant no.2 is concerned, the prosecution witness no.8 has further deposed that at 5:00 p.m., one Yunus came to the workshop and informed that the deceased was lying in an unconscious condition and, therefore, this prosecution witness along with Appellant no.2 went to the spot and both of them together carried the deceased to the hospital in an auto-rickshaw. Thus, the prosecution has failed to adduce any cogent evidence demonstrating that it was appellant no.2 who was present in the workshop and it was appellant no.2 who had caused death of the deceased specifically when prosecution witness no.8 has categorically stated in his evidence that at 5:00 p.m. i.e. at the point of time after the deceased left the place, one Yunus came into the workshop and informed that the deceased was lying in an unconscious condition and both the witnesses approached the place where he was lying and carried him into the hospital. The material witness has, thereafter, testified and attempted to help the prosecution case by pointing out a needle of suspicion to the present appellant no.2. The said suspicion cannot take form of legally admissible evidence and cannot help the prosecution to fetch a conviction. The material witness has, thereafter, testified and attempted to help the prosecution case by pointing out a needle of suspicion to the present appellant no.2. The said suspicion cannot take form of legally admissible evidence and cannot help the prosecution to fetch a conviction. The other evidence of the prosecution in the form of the disclosure and recovery panchanama Exhibits–29 and 30 in form of seizure of chain and lock and keys is also not of any assistance to the prosecution as barring the two injuries mentioned by the prosecution witness no.7, the medical officer who has pointed out the external injuries ante-mortem, it is not the case of the prosecution that this chain is not used to assault and was not inflicted any injury to the deceased person by the same. The inquest panchanama in fact does not refer to any such external injuries. In any case, it is not the case of the prosecution that he was confined by means of the chain which was recovered at the instance of accused no.3 and the said was used as a weapon to assault the deceased. In such circumstances, the said disclosure statement made by accused no.2 do not assist the case of the prosecution. The reliance on the Chemical Analysier report in form of Exhibit–31 also does not assist the case of the prosecution, as the clothes seized from accused persons were sent for Chemical Analysis, however, perusal of Exhibit – 37 reflects that clothes of appellant no.2 which were identified and marked as “d” do not bear any blood stains to be considered as an material incriminating against him. 15 The evidence brought on record by the prosecution, therefore, is not sufficient to establish the guilt of the accused. Though the learned trial Court has referred to 7 circumstances, in arriving at a conclusion that these circumstances, form a chain and led to an inevitable conclusion that it is only the appellant who has caused death of the deceased and each of the circumstances are linked with one another and are so connected that there is no breaking of the link of each of the factor constituting a circumstance. 16. 16. Based on the aforesaid chain of evidence, the learned Sessions Judge has come to the conclusion that the circumstantial evidence brought on record clearly establishes that it is only the appellants who are perpetrators of crime and circumstances are of such a conclusive nature that they exclude the possibility of any other infirmities. 17. On consideration of entire evidence on record, we are unable to agree with the observations of the learned Sessions Judge. On examination of the evidence on record in the form of testimony of witnesses and so also the other evidence produced by the prosecution on record, we are of the firm opinion that the conclusion reached by the Sessions Judge is not sustainable, and, according to us the prosecution has failed to lead evidence which would inspire confidence. According to us, the case of the prosecution is based on mere suspicion and, there is no cogent and reliable material placed on record which would link the present appellant to the offence of causing death of the deceased. We cannot be swayed by the gravity of the offence and just because a young boy of 26 years has succumbed to death, cannot secure a conviction in the absence of any credible evidence, and, we would be doing great violence to the basic elements of the criminal jurisprudence. We are expected to examine the case of the prosecution in its entirety, and, when we have taken a overall view of the prosecution case and the evidence adduced before the trial Court and arrive at a conclusion that the appellant is entitled to benefit of doubt, which is consistent with his innocence which is to be presumed, unless contrary is proved by the evidence brought on record. The evidence led by the prosecution fails to satisfy the said test and according to us, the prosecution has failed to prove beyond reasonable doubt that it was the appellant who had caused the death of the deceased. 18. Though Mr. Pradhan, learned Senior Counsel had agreed before us that the acquittal of accused no.3 was sufficient to establish his case and press for acquittal of appellant No.2, however, according to us, that is not the sole ground on which the present appellant is entitled for order of acquittal. 18. Though Mr. Pradhan, learned Senior Counsel had agreed before us that the acquittal of accused no.3 was sufficient to establish his case and press for acquittal of appellant No.2, however, according to us, that is not the sole ground on which the present appellant is entitled for order of acquittal. On our independent appraisal and appreciation of all the prosecution materials, we are of the firm opinion that the impugned judgment and order of conviction is wholly erroneous and illegal. The case is of circumstantial evidence. We have pointed out how the chain is incomplete and the link is broken at vital places. If the trial Court has failed to apply correct legal principles and appreciate and appraise the evidence in that light, then, it is but our duty as an appellate Court to step in and correct the errors committed by the Court below. That is how we conclude that the impugned judgment and order be set aside. 19. For the aforesaid reasons recorded by us, we allow the appeal and pass the following order: ORDER : 1. The Appeal abates as far as Appellant No.1 is concerned; 2. Appeal is allowed as far as Appellant No.2 is concerned; 3. We set aside the judgment and order dated 9th March, 2010, passed in Sessions Case No.310 of 2009, convicting appellant no.2 for the offences punishable under Sections 342 and 302 read with Section 34 of the IPC; 4. We set him at liberty and appellant no.2 be released forthwith, if not required in any other offence.