JUDGMENT : Biren Vaishnav, J. 1. The learned Additional Sessions Judge, Godhra, by his judgment and order dated 24.07.2012, in Sessions Case No. 72 of 2011, convicted the accused-appellant herein for the offences punishable under Sections 302, 427, and 201 of the Indian Penal Code. He was sentenced to undergo life imprisonment and fine of Rs. 5,000/- and in default of payment of fine simple imprisonment for six months was imposed on the accused by the learned Sessions Judge. The charge framed against the accused is at Exh. 5. It is the case of the prosecution that, Laxmanbhai Bhiliyabhai Rathva-the deceased, had lent an amount of Rs. 30,000/- to the accused. The deceased repeatedly asked the accused to return the amount. The accused avoided returning the amount. On 19.02.2011, when the deceased Laxmanbhai went to the accused place for demanding his money back, the accused inflicted blows with an axe and a stick. The charge further imputes that the accused got enraged with the fact that he found the deceased in a compromising position with the wife of the accused. After having indiscriminately hit the deceased with an axe and a stick, he with the help of accused No. 2 removed the body from his home to a ditch on the road on the vacant land of the Savapura Gram Panchayat. Accordingly, the present and the accused and the accused No. 2 were charged for the offences punishable under Sections 302, 201, 427 and 114 of the Indian Penal Code. 2. Since the present accused was convicted of the offences under Sections 302 read with Section 114 and 127 of the Indian Penal Code, the present appeal is at his instance. Accused No. 2 has been acquitted. 3. The case of the prosecution is that on 19.02.2011, Laxmanbhai, who was a teacher left his house in the morning carrying an amount of Rs. 15,000/- with him purportedly as he wanted to buy few things, on account of his daughter Leela's marriage. It is the further case of the prosecution that, when Laxmanbhai left his house, he informed his daughter that he would return late in the evening, primarily, because he was also to undertake duties for the census operations which are undergoing and also because he was to go to Vadesinh's place to fetch some milk and an amount of Rs. 30,000/- that Vadesinh owed to him. 4. 30,000/- that Vadesinh owed to him. 4. Since Laxmanbhai did not return the same evening and the following morning, efforts were made to trace him out. However, it was on the next day i.e. on 20.02.2011, that Lasmanbhai's body was found from the gauchar land of the Savapura Gram Panchayat from an open ditch. 5. Shaukatali Haji Abbas, was the first informant, who is the Sarpanch. According to his version in the complaint, it was he who found the body of the deceased Laxman from the vacant land of the Gram Panchayat in an open ditch. The body had blood marks and a motor-cycle was found thrown over the body. He, therefore, lodged the First Information Report, which is at Exh.11. Investigation was carried out and according to the prosecution, the accused Vadesinh was found to be a prime suspect in view of the fact that (A) he had a motive to kill Laxman, as repeated demand was made by Laxman for returning the amount of Rs. 30,000/- (B) that, even according to the prosecution, the fact that the accused found the deceased in a compromising position with his wife-Galiben, enraged the accused so much that he indiscriminately attacked the deceased with an axe and a stick. (C) The presence of the deceased at Vadesinh's place on the fateful day, is sought to be established on the basis of evidence of the relatives of the deceased, who had an information that the deceased was to be at Vadesinh-the accused place in the evening of the 19th to fetch milk and/or get his Rs. 30,000/- back. 6. With this aim in view, the investigation proceeded to examine several witnesses. 7. Meena, Laxman's daughter was examined as prosecution witness No. 2 at Exh. 12. In her testimony, she stated that her father was a teacher at Paaghora Vaavadi and used to commute regularly to the school. On 19th of February, her father left for the school in the morning. When he left, he informed her that after the school hours, he would undertake the census operations and thereafter, he would go to take the signatures of the person in-charge, and therefore, he will return late in the evening. According to Meena, her father was carrying cash of Rs. 15,000/- because the sister Leela was to get married. When he left, he informed her that after the school hours, he would undertake the census operations and thereafter, he would go to take the signatures of the person in-charge, and therefore, he will return late in the evening. According to Meena, her father was carrying cash of Rs. 15,000/- because the sister Leela was to get married. When she returned after her B.A Exams, she found that her father had not come back. Therefore, she called her father on the mobile, to which the father responded that he will be late as he would be going to Vadesinh's place to fetch milk and the Rs. 30,000/- that Vadesinh owed to him. She, therefore, waited for her father, who did not return. She, therefore, called her father again on his mobile, but there was no response. This witness further stated that, she expected that the father would have gone to Shamad-Kunva, where they had the second home. According to her, the possible reason for the father having gone to the Shamad-Kunva was for the purpose of carrying out agricultural operations as they had an agricultural land at the village. On the second day, when they tried to inquire about her father they did not get any information. In the evening at 5, Ravji Aapsingh Rathva informed her that her father had been done to death and the body was lying in the gauchar land of the Savapura village. Even the motor-cycle was lying over the body on the land. She, therefore, went to the Savapura village and found that her father's dead body was lying in a gutter. The body had blood all over the place. The father had sustained injuries on the back of the head. According to her, Vadesinh could have killed him because of the fact that he owed Rs. 30,000/- to her father. In order to destroy the evidence, with the help of accused No. 2 he had brought the body to the gauchar land. She, further, stated that she was aware of the fact that Vadesinh owed an amount of Rs. 30,000/- to her father. This witness has been cross-examined. In her cross-examination, she had disclosed the fact that the deceased was carrying Rs. 15,000/- to the police, but no investigation was carried out by the police in view of the fact that an amount of Rs. 15,000/- was missing from the father. 30,000/- to her father. This witness has been cross-examined. In her cross-examination, she had disclosed the fact that the deceased was carrying Rs. 15,000/- to the police, but no investigation was carried out by the police in view of the fact that an amount of Rs. 15,000/- was missing from the father. In her testimony, she gave the mobile numbers used by her and by her father. She, further, stated that she did not ask the father as to where he was. It was thereafter at about 9:30 or at 10 at night when she again called her father. The call was received, but nobody responded from the other side. She said that, she is aware of the fact that when a mobile call is received, the location of the mobile can be traced on the basis of the call records. She admitted that, she did not called up her father next day in the morning. Village Savapura is at a distance of about five kilometers from her village. Contradiction is brought out from her police statement when questioned about having informed the police of her version that she had stated before the police on the outstanding amount of Rs. 30,000/- that her father had lent to Vadesinh and whether an inquiry was made as to whether her father was at Vadesinh's place. 8. Meena's sister-the other daughter of the deceased Laxman was examined as Prosecution witness No. 3 at Exh. 13. According to her testimony, on 19.02.2011, her father had left for the school. The same evening after school hours, he was to go for the census operations. She stated that, in the evening, her brother had called up her father and asked him as to where he was. And the father told her brother that he was engaged in the census operation, and therefore, he will be late in returning home. Thereafter, her sister Meena had called up the brother when her father informed Meena that he was at Vadesinh's place and would return after getting the money back and that he will be late. This witness further stated that, when her sister Meena called the father, she was standing by her side, and therefore, she knew the fact that Meena had called her father. She had tried to make a call later in the night but could not connect. This witness further stated that, when her sister Meena called the father, she was standing by her side, and therefore, she knew the fact that Meena had called her father. She had tried to make a call later in the night but could not connect. This witness also stated that no further inquiries were made because they thought that their father would have gone to Shamad-Kunva and would have stayed back. It was on the next day that Ravji informed them of the fact that her father's body was lying in a drain in a gauchar land. When they went there, she found her father's body. He had sustained injuries on the head and on the right side of the ear. A motor-cycle was lying by the side. Since Vadesinh owed an amount of Rs. 30,000/- and her father was regularly following up for the return of the said amount, Vadesinh was regularly threatening her father. She was also cross-examined. She agreed that she had stated in the police statement, that it was her sister Meena, who informed her when she caller her father when her father was at Vadesinh's place. 9. Deceased Laxman's son Nidesh was examined as Prosecution Witness-4 at Exh 15. He also like the two sisters stated that the father had left on the morning of 19th carrying an amount of Rs. 15,000/- and informed that he would be late in the evening as he was to go for the census operations. Nidesh, further, in his testimony stated that when he called his father at 11 at night, his father informed him that he was still working and that he would be late. According to this witness, the sister Meena had called up her father in the evening and the father informed Meena that he was sitting at Vadesinh's place so that he could get the cash back. Meena had called the father later when he did not received the call. This witness also stated that they had the reason to believe that the father would have gone to the Shamad-Kunva house and stayed back that night. It was when Ravji Aapsingh Rathva informed him the next day that he was made aware that the father had been done to death and the body was lying on the gauchar land. This witness also stated that they had the reason to believe that the father would have gone to the Shamad-Kunva house and stayed back that night. It was when Ravji Aapsingh Rathva informed him the next day that he was made aware that the father had been done to death and the body was lying on the gauchar land. This witness stated that, when he called his father the last time, he told him that he was at Vadesinh's house. This witness have been cross-examined and contradictions have been brought on record in the version that he made in the police statement. In his cross-examination he admitted that no cash was found from the scene of offence. He admitted that when he called his father last, his father informed him that he had left Vadesinh's place with the cash and that he would be home soon. 10. Prosecution witness No. 5 at Exh 18 is Mokliben-the wife of the deceased. She also maintains what the other witnesses have stated as far as the motive behind the killing of her husband Laxman is concerned. She further in her testimony stated that when her husband did not return home in the evening, she told her son to call up his father. When called, the father told the son that he was to go to Vadesinh's place to bring back the amount that he owed, and therefore, he would be late in the evening. Later, when her son called, he could not connect. In cross-examination, she stated that when Nidesh called the father, the father answered the phone by saying that he would be late as he was still undertaking the duty of carrying out the census operation. 11. Doctor Manubhai Vrundavandas Sheth, Prosecution Witness No. 8 at Exh 22 is the doctor who carried out the Post-Mortem. The Post-Mortem Note at Exh 24 shows the nature of injuries that the deceased sustained. The injuries sustained by the deceased were deep incised wound on the head, a wound below the right ear. The cause of death according to the doctor was head injury and grievous injuries over the body. 12. Through a panchnama at Exh. 45, it was proved through the testimony of P.W. 13 Amarsinh. The injuries sustained by the deceased were deep incised wound on the head, a wound below the right ear. The cause of death according to the doctor was head injury and grievous injuries over the body. 12. Through a panchnama at Exh. 45, it was proved through the testimony of P.W. 13 Amarsinh. The log of wood, the axe, a piece of cloth with two sticks, which were used to carry the body to the gauchar land and a trouser were discovered. Blood stains were found on the axe and on the cloth, which was used as a support to carry the body to the land at the Savapura Gram Panchayat. The clothes also were stained with blood. The Investigating Officer Shantibhai Ramubhai Patel has been examined as Prosecution Witness No. 15 at Exh. 63. In the cross-examination of the Investigating Officer, it comes out that the body was found from a ditch on the Savapura road. There were other houses in the vicinity. Statements of persons residing there were not recorded. The Investigating Officer, further, in cross examination admits that from the various versions and the statements recorded, the witnesses who gave statement did not specifically point out the fact that the deceased had gone to Vadesinh's place to get his money back. No effort was made to collect the call details, so as to establish from the call records to show that witnesses had talked to the deceased. Moreover, Ravji Aapsinghji Rathva was also not examined. The Serological Report is also on record. Blood stains were found on the spade, the stick, on the cloth which they used to carry the dead body. 13. Based on this evidence, which is circumstantial in nature, in view of the fact that there is no eyewitness to the incident in question, the prosecution story has to be tested. The prosecution in order to bring home the charges as attributed motives to the accused. The motive as per the charge is (i) that the deceased was pursuing the recovery of Rs. 30,000/- (ii) that Galiben-wife of the accused was found in compromising position with the deceased, which enraged the accused. 14. The prosecution in order to bring home the charges as attributed motives to the accused. The motive as per the charge is (i) that the deceased was pursuing the recovery of Rs. 30,000/- (ii) that Galiben-wife of the accused was found in compromising position with the deceased, which enraged the accused. 14. The prosecution proceeds further to establish its case based on this theory of motive at the hands of the accused and on the basis of the testimonies of various witnesses, namely, the daughter and the son to show that on 19.02.2011, the deceased Laxman was present at Vadesinh's place. This presence is sought to be established on the basis of the evidence of daughter Meena, Leela and son Nidesh. 15. In the case, where the prosecution is based on circumstantial evidence, motive is a strong factor. However, when the case entirely rests on circumstantial evidence, in order to bring home the guilt of the accused, the links in the chain should be so complete, so as to lead to the only conclusion of guilt of the accused. If the link in the chain is not complete, the case based on circumstantial evidence could fail. Further failure to establish motive which is imputed would be a strong factor against the prosecution. It is in light of this principle that the evidence of record needs to be appreciated. 16. Before getting into the question whether the accused had a motive, what needs to be established is the circumstances, that is the presence of the deceased Laxmanbhai at Vadesinh's place on 19.02.2011. The prosecution based on the testimony of the daughters' and the son would contend the fact that the deceased when called up, informed them that he was to go to Vadesinh's place or that he was at Vadesinh's place, connected the link so as to establish his presence with the accused Vadesinh. The testimonies of the three witnesses i.e. Meena, Leela and Nidesh have to be so appreciated to find out whether the deceased was present at Vadesinh's place. 17. Meena in her testimony at Exh. 12 stated that, her father left on the morning of 19th February for school. He informed her that, he would be back late in the evening, as he was to go for the census operations. She further stated that, her father was carrying an amount of Rs. 17. Meena in her testimony at Exh. 12 stated that, her father left on the morning of 19th February for school. He informed her that, he would be back late in the evening, as he was to go for the census operations. She further stated that, her father was carrying an amount of Rs. 15,000/- to make purchase as her sister Leela was to get married. 18. She returned in the evening at 7:30 after her B.A examinations and having found that her father had not return, she called him upon the mobile. The father informed her that, he would be late as he will go to Vadesinh's place to fetch milk and be back. According to this witness, the father also added the fact that he will be back after going to Vadesinh, so as to get Rs. 30,000/- that were outstanding. When she called later, the call was not answered. In her cross-examination, she specifically gave her mobile number and the father's mobile number and further admitted that these numbers were given to the police. She further admitted that, she did not asked the father as to where he was. She further admits that, when she later called her father between 9 to 10, the phone did connect but nobody talked from the other side. She also admitted that, she is aware of the fact that the location of the person who has called is possible from the mobile records. 19. The son Nidesh was examined at Exh. 15 as prosecution witness No. 4. In his testimony he has stated that, it was when Meena had called up his father, the father stated that he was sitting at Vadesinh's place and when Vadesinh gives him the amount that he owed to him, he would return. When the father did not return, the sister called again on the phone, which was not received. This witness in examination-in-chief further stated that when his father was called upon a mobile, the father told him that he was at Vadesinh's place and would come back soon. In the cross-examination, he stated that father had told him that he had already left Vadesinh's house with money. Leela, the other sister also when examined at Exh. This witness in examination-in-chief further stated that when his father was called upon a mobile, the father told him that he was at Vadesinh's place and would come back soon. In the cross-examination, he stated that father had told him that he had already left Vadesinh's house with money. Leela, the other sister also when examined at Exh. 13 says that it was through her sister that she was made known of the fact that her father had not returned in the evening and that when Meena her sister had made a call, the father had informed that he was at Vadesinh's place and would return later. 20. Even the deceased wife Mokliben who is examined as prosecution witness, wife has no information of having interacted with the deceased. Her only information is based on the fact that she had told her son to make a call and find out the whereabouts of her husband. According to her version, when her son called the father, the father informed that he would be back soon after going to Vadesinh's place to collect the money. 21. Counsel for the prosecution, therefore, would contend that based on this testimony the fact that the accused was present with Vadesinh on the evening of 19 February is established. 22. When the testimony of Meena is appreciated what comes out is that when she called her father at 7:30 in the evening, her father informed her he would be back soon after going to Vadesinh's place to collect milk and the amount of Rs. 30,000/- It is categorically admitted in her cross-examination that, she did not inquired of the father as to where he was. The calls that were exchanged between the daughter and the father through mobile, records could have established the location of the mobiles. 23. Leela, the sister of Meena and Nidesh the brother have only secondary information because in their version what is elicited is that it was Meena who had informed him that she had spoken with the father on the mobile. Moreover, when brother-Nidesh's version is examined in comparison to that of what Meena states, there is a vast difference when he states that when Meena called the father, the father informed her that he was sitting at Vadesinh's place and would be back after getting the money. Moreover, when brother-Nidesh's version is examined in comparison to that of what Meena states, there is a vast difference when he states that when Meena called the father, the father informed her that he was sitting at Vadesinh's place and would be back after getting the money. This obviously is a major variation in his statement when seen in light of the statement of Meena where she states that she did not inquire about the father's whereabouts. Leelaben's testimony also, therefore, is to be seen in the same light. She is also a witness, who had received an information only through Meena. On a collective reading of the testimonies of this witnesses, that the deceased was present at Vadesinh's house on the 19th of February 2011, does not get established. Meena gave her mobile number and the mobile number of her father to the police. In the cross-examination of the Investigating Officer Shantibhai Ramubhai Patel, P.W. 15, he has categorically admitted that no attempt was made to inquire into the call details of the deceased. Thus the last seen together or last known to have been together theory is not established. In case of circumstantial evidence, this is an important factor. There are no eye-witnesses sighting deceased at the house of Vadesinh. Even if deceased had told his son or daughter on telephone that he was there, it would be in the nature of here-say evidence. We are prepared to proceed on the basis that such statement being in relation to circumstances of the transaction which resulted in his death, would be admissible in terms of Section 32 of the Evidence Act. However, as noted even on this aspect depositions of witnesses are inconsistent. 24. The prosecution would contend that, evidence has come on record in terms of the discovery panchnama at Exh. 45 and the scientific evidence and the Serological Report which shows that the muddamal axe, the stick, the cloth and other articles were discovered at the hands of the accused. Needless to say that this is not the primary evidence, which in this case has been failing in view of the fact that from the cogent reading of the testimonies, the prosecution has failed to establish the presence of the deceased at Vadesinh's house on that fateful date. 25. Needless to say that this is not the primary evidence, which in this case has been failing in view of the fact that from the cogent reading of the testimonies, the prosecution has failed to establish the presence of the deceased at Vadesinh's house on that fateful date. 25. Now coming to the question of the motive behind committing the offence, the witnesses, namely the two sisters and the brother and mother-Mokliben have consistently come out with the case in their testimony that the motive for killing Laxman was that the accused owed an amount of Rs. 30,000/- to the deceased, which he refused to return. When regularly follow-ups to get back the amount were made, the accused thought of putting an end to the life of the deceased. The later part of the charge also attributes the motive of the fact of the deceased found in a compromising position with the wife of the accused as being the motive. Except a bare version in their examination-in-chief that Vadesinh owed an amount of Rs. 30,000/- to the deceased nothing has come on record to bring home the issue of motive. It is in light of this fact that when the Investigating Officers cross-examination is seen, he has admitted that it has nowhere come on record that the deceased had gone to the place of the accused and that the investigation was made on the issue of the loan of Rs. 30,000/- to Vadesinh by the deceased. The prosecution also has not led any evidence so as to substantiate the theory of the illicit relationship between that of the deceased with the wife of the accused. An added factor has been tried to be brought by the witness of the prosecution that when the deceased left home in the morning of 19th February 2011, he was carrying Rs. 15,000/- as cash for making purchase for her daughter Leela's wedding. In fact, from the cross-examination of Meena herself it is an admitted fact which comes out that she had not mentioned this fact to the police. Investigation was not carried out on the lines of as to whether an amount of Rs. 15,000/- that the deceased was last carrying was missing. The purported missing of that cash also, therefore, does not get established. 26. Investigation was not carried out on the lines of as to whether an amount of Rs. 15,000/- that the deceased was last carrying was missing. The purported missing of that cash also, therefore, does not get established. 26. Having therefore appreciated the evidence independently from the version of the witnesses, the chain is not complete so as to establish the presence of the deceased Laxman at Vadesinh's place on 19.02.2011. The motive also as sought to be established by the prosecution fails. The links in the chain having snapped, we cannot arrive at a conclusion of the guilt of the accused. 27. The appeal is allowed. The conviction and sentence dated 24.07.2012, as rendered by the learned Additional Sessions Judge, Godhra, in Sessions Case No. 72 of 2011, for the offences punishable under Sections 302, 427, 201 of the Indian Penal Code, is quashed and set aside. The appellant be set free, if not otherwise required in any other offence. R & P be sent back to the trial court. Appeal Allowed