JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals arise out of a judgment dated 31.01.2014 passed by the learned Additional Sessions Judge, Junagadh, in Sessions Case No. 9 of 2009. Accused No. 3 Lala @ Bala Nathubhai Rabari has filed Criminal Appeal No. 488 of 2014. The other two accused Dhirubhai Kadvabhai-accused No. 1 and Lakhabhai Lakhmanbhai-accused No. 2 have filed separate Criminal Appeal No. 487 of 2014. They have all been convicted by the learned Sessions Judge for offence under section 302 of Indian Penal Code and sentenced to undergo life imprisonment. Accused Nos. 2 and 3 have been granted bail, whereas, accused No. 1 Dhirubhai Kadvabhai has not been granted bail pending appeal. Noticing that he has served out a sentence close to eight and a half years, we had fixed these appeals today for final hearing. 2. Briefly stated, the prosecution version was that Lala-accused No. 3 was in contact with deceased Jahidmiya Mahommad Hussain. He enticed Jahidmiya into coming to an isolated spot at night of 21.08.2008 on the pretext of finding some secret treasure. There, as per the previous conspiracy between the three accused, Jahidmiya was killed. His belongings and valuables such as money, mobile phone and motorcycle were robbed. His dead-body was then thrown in the nearby well from where it was found two days later i.e. on 23.08.2008. All the accused were charged with offences punishable under sections 302, 397, 120B read with section 114 of Indian Penal Code and section 135 of the Bombay Police Act. The learned Sessions Judge convicted them for offence under section 302 read with section 114 of Indian Penal Code, but acquitted them for offences under sections 397 and 120B. 3. We may record the gist of evidence. Abbasmiya Mahommadhussain, PW-22, Exh. 76, the brother of the deceased was also the first informant. He deposed that he himself was a truck driver. His brother was engaged in the business of buying and selling of land. Previously, he was doing fishing. On 22.08.2008, in the afternoon, his brother's wife Rukhsanabibi came to him and told him that the brother had not returned home since last night. He therefore, went to Vishal Tractor Garage of Yusuf Mahommad Girnari, where he met Yusuf Mahommad and Abdul Razak. Previously, he was doing fishing. On 22.08.2008, in the afternoon, his brother's wife Rukhsanabibi came to him and told him that the brother had not returned home since last night. He therefore, went to Vishal Tractor Garage of Yusuf Mahommad Girnari, where he met Yusuf Mahommad and Abdul Razak. They told him that they and Jahid were sitting together till about 9:30 the previous night when a call came on his mobile, upon which, he immediately got up to leave. They asked him where he was going so suddenly. Jahid told them that he had got a call from Lala Rabari and he was called for urgent work and promised to return soon. This witness tried to contact Lala Rabari, but failed. He also tried to call his mobile number which was not picked up. On 23.08.2008 in the evening, he received a message that a dead-body was found from a deserted well. He identified the body of his brother. This witness had referred to the mobile number of his brother as 9904129390 and that of Lala Rabari as 9909395389. He stated that from the pocket of his brother's shirt a piece of paper was found, on which, name Shobhanaben was written with a mobile number. The FIR lodged by him was produced at Exh. 77. In the cross-examination, he agreed that he lived separately from his brother and had no idea about the business relations of the brother. He agreed that he did not know whether Jahid eventually went to the field of Lala Rabari from the garage of Yusufbhai. He did not know anyone by the name of Shobhanaben nor he knew if the deceased had any relations with her. 4. Yusufbhai Girnari, PW-27, Exh. 84, the garage owner deposed that on 21.08.2008, he was sitting at his garage with his employee Abdul Razak and Jahidmiya. At that time, Jahidmiya got a call on his mobile and then started to leave, upon which, he asked him where was he going. He stated that the phone was from Lala Rabari and he was going to his field. He left on his motorcycle. Next day, Abdul Razak told him that Jahidmiya had not returned after he left the garage. In the cross-examination, he agreed that after Jahidbhai left his garage, he did not know whether he reached the field of Lala and met him there. 5. Rukhsana Jahidmiya, PW-32, Exh. He left on his motorcycle. Next day, Abdul Razak told him that Jahidmiya had not returned after he left the garage. In the cross-examination, he agreed that after Jahidbhai left his garage, he did not know whether he reached the field of Lala and met him there. 5. Rukhsana Jahidmiya, PW-32, Exh. 93, the wife of the deceased deposed that on the date of the incident, her husband left home at about 5'O clock in the evening, but did not return till 10'O clock. She tried to call him but the mobile was switched off. She had spoken to Yusuf Girnari who told her that her husband had left the garage at about 9:30 after receiving call from Lala Rabari. She also referred to the dead-body of her husband being found two days later. She stated that some 4-5 days before the incident, the husband had spoken to someone on the phone after which she had asked him about it. The husband told her that he was speaking to Lala Rabari, he was not doing the work. She further stated that a day prior to the incident, her husband had spent the entire night at the field of Lala Rabari and when he returned home next morning, he was under severe tension. He also stated that on the date of incident, her husband had left home in the evening with two bundles of 500 rupee notes i.e. a total of Rs. 1 lakh with him. In the cross-examination, the defense brought out certain improvements, which she had made as compared to her police statement. Notably, it appears that she had not referred to her conversation with her husband four or five days before the incident regarding her husband talking on the phone and later telling her that it was Lala Rabari. She had also not stated about the husband's spending night at Lala Rabari's field and coming home next morning under tension. She had also not stated that the husband had left home in the evening with cash of Rs. 1 lakh. 6. Dr. Jayesh Dabhi, PW-21, Exh. 69, had carried out the postmortem. The postmortem note was produced at Exh. 70, in which, he had recorded following injuries: "I. Bite marks (6 in numbers) four at upper incisors and two at lower incisors are seen On dorsal cupect at the mid portion of forearm. II. 1 lakh. 6. Dr. Jayesh Dabhi, PW-21, Exh. 69, had carried out the postmortem. The postmortem note was produced at Exh. 70, in which, he had recorded following injuries: "I. Bite marks (6 in numbers) four at upper incisors and two at lower incisors are seen On dorsal cupect at the mid portion of forearm. II. Multiple scratches of disc to 1 cm are seen on face, neck and chest region along with area of redness in the surrounding portion. III. Cuo 14 x 8 cm on the scalp on it right tray extendly from 8 cm above right eye brow to end posteriorly 10 cm medial to right lobe of ear. In margins are irregular in mid portion and short at in end. With broconix red in color. Ends are acute angled shape. Under lying skull bone in fractured. IV. CLW 4 cm x 1 cm above belt martoid process with fracture of underlying bone. Margin are sharp and spindle shaped and are brown red in color. V. CLW 1 cm x 0.5 cm on right side of upper lip. VI. Bruise on left eye along with black eye covering an area of 7-8 cm of diameter. All above injuries 1 to 6 are ante-mortem in nature" He had opined that the cause of death was due to hemorrhage and shock on account of multiple head injuries. He had estimated the time of death to be between 12:00 hours on 22.08.2008 to 5:00 p.m. of 23.08.2008. In his opinion, injuries were caused by heavy and sharp objects. 7. In the cross-examination, he was shown the Muddamal article 'kosh' (Sometimes referred to as 'Dasto'. From the description of this article, neither of these two descriptions seem to be accurate. It appears to be an instrument made of solid metal and was one foot ten inches long and was considerably thick. For want of better description, we may refer it to as the iron rod.) and stated that the said object was not sharp. Its bottom edge was also not sharp. He was firm on the estimate of the time of death and stated that in his opinion, the death had not occurred before 12:00 hours on 22.08.2008. 8. The investigation was carried out by Ghanshyam Jhala, PW-35, Exh. 100 and later on by Hajabhai Lakhabhai, PW-36, Exh. 116. Its bottom edge was also not sharp. He was firm on the estimate of the time of death and stated that in his opinion, the death had not occurred before 12:00 hours on 22.08.2008. 8. The investigation was carried out by Ghanshyam Jhala, PW-35, Exh. 100 and later on by Hajabhai Lakhabhai, PW-36, Exh. 116. It is not necessary to refer to the detail testimonies of these witnesses. Instead, we would refer to the different documents in the nature of Panchnamas and other documentary evidences. Likewise, the two officers of mobile companies; Bhavik Arvind Joshi, PW-37, Exh. 141, and Manish Mangalbhai Patel, PW-38, Exh. 146 had only produced the mobile call details of the telephone number of the deceased. We would refer that documents since they are exhibited and the contents thereof are not seriously in dispute. 9. Exh. 17 is the scene of incident panchnama which shows that the well from which the dead-body was found, was an abandoned well. It was dry and had wild bushes grown all around it. The 'chappals' of the deceased were found nearby this well. Near the footwear, the investigating agency also found a jute bag with blood stains and a bed-sheet which also carried spots of blood. 10. Exh. 19 is a panchnama under which, upon search of the house of the accused No. 3, his clothes worn at the time of the incident, were discovered. 11. Under Panchnama, Exh. 36, certain articles were discovered at the instance of accused Nos. 1 and 2 as would be clear from the narration hereafter. As per this panchnama, the panch witness and the police party proceeded in the vehicle with both the accused in it. First portion of the panchnama is in the nature of demonstration panchnama. In absence of any evidentiary value of such statement, we have not referred to the said part. The panchnama however records collecting certain articles such as the blood stained soil and leaves from the place where the murder was actually committed. This panchnama records the discovery of a mobile handset of the deceased which was discovered at the instance of accused No. 2-Lakha Lakhman from underneath few stones behind his house. The panchnama also records that the iron rod was discovered at the instance of accused No. 1. 12. Under panchnama Exh. 39, the clothes worn by accused No. 1-Dhirubhai were discovered at his instance. 13. The panchnama also records that the iron rod was discovered at the instance of accused No. 1. 12. Under panchnama Exh. 39, the clothes worn by accused No. 1-Dhirubhai were discovered at his instance. 13. Under Panchnama Exh. 66, the investigating agency discovered the clothes worn by accused No. 3 at his instance. 14. Different articles collected by the investigating agency were sent for forensic analysis. The FSL report read with serological report Exh. 127, would establish that on the iron road, allegedly used for causing the murder, blood of group-A that belonging to the deceased was found. The blood of the same group was also found from the clothes of accused No. 1 and accused No. 2. 15. The call details of mobile number 9904129390 of the deceased would show that he had made multiple calls to the accused No. 3 on 20.08.2008 and 21.08.2008. In fact, on 20.08.2008, at 8'O clock, he had called the accused No. 3 about 10 times. Again on 21.08.2008, he had made multiple calls to the accused No. 3, starting as early as at 7:38 a.m. He called again at 11:58 a.m., 12:47 p.m., 5:06 p.m., 8:02 p.m. and lastly at 9:02 p.m. These were however, all outgoing calls from the mobile number of the deceased. Learned APP would however draw our attention to the deposition of Shri Manish Patel, PW-38, the Nodal Officer of Vodafone Mobile Company, in which, he had stated that upon perusal of the call details of mobile number 9909395389 of the accused No. 3, several calls were made by him on the deceased's phone number 9904129390 on 20th and 21st of August. This, in the nutshell, is the evidence on record. 16. Learned advocate Shri Ashish Dagli for the accused-appellants submitted that entire evidence is circumstantial in nature. The circumstances brought on record do not establish the involvement of the accused. The motive behind commission of the offence is not proved. Significantly, the Trial Court had acquitted all accused for offences under section 397 of IPC. According to the doctor, the iron road recovered by the investigating agency could not have been used for causing the fatal injuries. The doctor also opined that the time of death could not have been before 12'O clock in the afternoon of 22nd August. If that be so, the last seen theory can also not be applied. According to the doctor, the iron road recovered by the investigating agency could not have been used for causing the fatal injuries. The doctor also opined that the time of death could not have been before 12'O clock in the afternoon of 22nd August. If that be so, the last seen theory can also not be applied. If deceased Jahidbhai was in the company of the accused No. 3 all through the night, there is no evidence of him being detained. Mere stray recoveries and discoveries would not establish the guilt of the accused. Counsel submitted that the Trial Court has wrongly relied on the fact that accused No. 3 had absconded as an indication of his conduct. 17. On the other hand, learned APP Shri Himanshu Patel opposed the appeals contending that the three accused were engaged in a planned murder. The fact that Jahid and accused No. 3-Lala were in live contact, could be seen from the multiple calls made by both of them on 20th and 21st August, 2008. Witnesses have also referred to Jahid hurriedly leaving the garage to go to the field of Lala, after which, his dead-body was found couple of days later. Counsel would refer to various discoveries made by the investigating agency during the course of investigation and the serological report showing the blood on the murder weapon, iron rod and the clothes of the accused Nos. 1 and 2. 18. The case undoubtedly rests solely on circumstantial evidence. As per settled principles of law, in such an event, conviction can be recorded only if the proved circumstances form a complete chain so as to unerringly point to the guilt of the accused to the total exclusion of any other hypothesis to the contrary. In this context, we may appreciate the evidence on record. 19. The fact that Jahidbhai was last seen in the company of his friends and acquaintances at about 9:30 at night of 21st August, 2008, is beyond doubt. This has been stated by his friend and garage owner Yusuf Girnari, PW-27, Exh. 84. As per this witness, Jahidbhai would often come to his garage and spend time there. On 21st August, at night, Jahidbhai, the witness Yusuf and his employee Abdul Razak were at the garage, when at about 9:30, Jahidbhai received a phone call and after speaking to the caller for a few moments, started to leave. 84. As per this witness, Jahidbhai would often come to his garage and spend time there. On 21st August, at night, Jahidbhai, the witness Yusuf and his employee Abdul Razak were at the garage, when at about 9:30, Jahidbhai received a phone call and after speaking to the caller for a few moments, started to leave. The witness asked him why Jahidbhai was leaving in a hurry, he was told that he has got call from accused No. 3-Lala. He had urgent business with him and that he would return shortly. 10.03.2017 20. From here on, we do not have the first-hand account or even indirect evidence suggesting that deceased Jahidbhai did go to the field of accused No. 3-Lala. It would therefore be difficult for the prosecution to press in service the last seen together theory. This is not a case where the accused and the deceased were last seen together or even known to have been together. If there was any reliable evidence that the deceased did eventually reach to the field of Lala, the prosecution could have argued that it would be a relevant factor or a circumstance against the accused. In the present case, except for the deposition of the garage owner Yusuf Mahommad Girnari, PW-27, that Jahidbhai left his garage saying that he is going to the field of Lala, we have no further information. 21. Even the time of death could not be estimated with any degree of accuracy. There was a gap of nearly 36 hours between Jahidbhai last seen alive and finding of his dead-body. To apply last seen together theory, the proximity with the commission of the offence would be of importance. In this context, though the prosecution projected that Jahidbhai was done to death in the night of 21st August itself, the medical evidence suggested that the death occurred after 12'O clock in the afternoon on 22.08.2008. Dr. Jayesh Dabhi, who carried out the postmortem was emphatic that the death could not have occurred before 12'O clock in the afternoon of 22nd August. Two things emerge from this evidence. First is, if Jahidbhai was alive till 22nd August, even his intended visit to the field of Lala would be separated by more than 12 hours. Dr. Jayesh Dabhi, who carried out the postmortem was emphatic that the death could not have occurred before 12'O clock in the afternoon of 22nd August. Two things emerge from this evidence. First is, if Jahidbhai was alive till 22nd August, even his intended visit to the field of Lala would be separated by more than 12 hours. If on the other hand, the case of the prosecution is that it was Lala alone who in the company of other accused, caused the death of Jahidbhai, there was neither any evidence, nor any investigation as to where was Jahidbhai kept during the entire night. The field of Lala was surrounded by other agricultural lands owned by other people. It was possible to escape detection if the deceased had visited the field late at night, but it is difficult to believe that the neighbouring field owners and workers on such fields would not have noticed any movement the next day. 22. In our opinion, even the motive for committing the offence was not established. The prosecution suggested robbery as a motive. It was also suggested that the deceased was enticed into coming to the field of Lala late at night under the pretext of finding some hidden treasure. There was no evidence of any such story being cooked up by the accused. Except for allegations to this effect we came across no evidence in this respect. More importantly, even the theory of robbery was not established. PW-32, Rukhsanaben, wife of Jahidbhai did state that Jahidbhai had left home on the date of the incident with Rs. 1 lakh with him. However, such an important information she had not given to the police during investigation. No such amount was recovered by the investigation. Thus, looking to this improvement made by the witness and lack of any evidence of Rs. 1 lakh being carried by Jahidbhai at the time of his death, the theory of robbery being motive for commission of offence was also not proved. In a case which rests solely on circumstantial evidence, motive is always significant. This is not to suggest that no matter how strong the circumstances, in absence of motive, the case of circumstantial evidence could never result in conviction. In a case which rests solely on circumstantial evidence, motive is always significant. This is not to suggest that no matter how strong the circumstances, in absence of motive, the case of circumstantial evidence could never result in conviction. This is only to suggest that as per the settled principles of law, motive is of importance in a case of circumstantial evidence and when the prosecution suggests motive but fails to establish the same, it is detrimental to the case of the prosecution. 23. The evidence that we have seen so far would suggest that Jahidbhai was last seen at the garage of Yusuf Mahommad Girnari till about 9:30 on 21.08.2008. He then left the garage stating that he is going to the field of Lala. We however, do not know whether he reached there or not. We have also noticed that there were multiple calls mostly made by the deceased to Lala on 20th and 21st August, 2008. This would, at best, establish that the deceased and Lala knew each other well. This by itself, would not be any indication of involvement of the accused. There was no reliable evidence supporting the version that Jahidbhai got a call at almost 9:00 p.m. from Lala Rabari. All the calls between deceased and Lala Rabari in 20/8 and 21/8 were outgoing calls made by the deceased. There was no call received by him from Lala at night of 21/8. The contention that Lala Rabari had made calls to the deceased on another number cannot be accepted because we have no proof that such number was of the deceased or was used by him. None of the witnesses have referred to this. 24. In addition to these circumstances which in relation to the commission of the offence are rather innocuous, we only have a few stray discoveries made by the prosecution at the instance of one or the other accused. Such discoveries include the clothes of the accused No. 1 and accused No. 2 and the alleged murder weapon, the iron rod. In our opinion, such discoveries by themselves would certainly not provide sufficient proof of commission of the offence by the accused. The learned Sessions Judge has acquitted all the accused for conspiracy. Such discoveries include the clothes of the accused No. 1 and accused No. 2 and the alleged murder weapon, the iron rod. In our opinion, such discoveries by themselves would certainly not provide sufficient proof of commission of the offence by the accused. The learned Sessions Judge has acquitted all the accused for conspiracy. We may however observe that if the accused are held to be guilty of the offence of murder, and if we believe that such offence was committed in the manner in which the prosecution suggests, conspiracy can be inferred on the basis of such conclusions. However, this would be wholly inconsequential in view of our conclusions hereafter. 25. There is some controversy about even the iron rod having been used for commission of the offence. As per Dr. Jayesh Dabhi who carried out the postmortem, the fatal blows given on the head were by using a heavy and sharp edged instrument. When shown the Muddamal article, iron rod, he emphatically stated that the instrument had no sharp edge and could not have been used for causing the injuries. The weak evidence that the prosecution has brought on record, thus gets further depleted. 26. To summarize, in absence of motive, in absence of last seen together theory, in absence of other circumstances pointing out to the involvement of the accused, stray discoveries would not provide sufficient proof of commission of the offences by the accused. 27. In the result, the judgment of the Trial Court is reversed. All the accused are acquitted of all charges. Accused No. 1 is still in jail, shall be released forthwith if not required in any other criminal case. Bail bonds of accused No. 2 and accused No. 3 are discharged. Appeals are disposed of accordingly. 28. In view of disposal of Criminal Appeal No. 487 of 2014, Criminal Misc. Application No. 4803 of 2017 will not survive and hence, the same is also disposed of. Disposed off