JUDGMENT : RAKESH KUMAR, J. 1. The sole appellant, who was convicted and sentenced for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’), has preferred the present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’). The appellant by judgment dated 20-04-2013 was held guilty for commission of offence under Section 302 of the I.P.C. and by order dated 01-05-2013, he was sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- (fifty thousand). In default in payment of the fine, the appellant was directed to further undergo rigorous imprisonment for one year. The appellant was tried by Sri Subhash Chandra Srivastava, learned 5th Additional Sessions Judge, East Champaran at Motihari (hereinafter referred to as ‘Trial Judge’) in Sessions Trial No. 519 of 1997 (arising out of Kotwa P.S. Case No. 13 of 1997). 2. Short fact of the case is that on 21-02-1997 at 11:00 AM, one Sub-Inspector of Police R.V. Ram (P.W.12) recorded fardbeyan of Akloo Ram (P.W.6). The fardbeyan was recorded at Village - Karariya Tola Birti within Kotwa Police Station, District East Champaran at Motihari. In the fardbeyan, he disclosed that on 20-02-1997 in the morning at about 8:30 hours, Ekram Mian (appellant) came to his door and after calling his younger brother Sudama Ram (deceased) went to a corner and discussed something. At that very time, the informant was taking meal. After some discussion, his younger brother Sudama (deceased) along with Ekram Mian (appellant) started to go. The informant inquired, thereafter, it was replied by his younger brother Sudama that he was going to Motihari with Ekram Mian (appellant) since he was to purchase some medicine and there were some other work also. The informant asked him that if he was going to Motihari, he must meet his elder brother and the informant went out along with his Vkaxk (Tanga). In the evening at about 7:30 PM, when he returned and inquired from the inmates about Sudama (deceased), then he gathered information that Sudama (deceased) had not returned from Motihari. The informant thought that in the night, his brother Sudama might had stayed at Motihari with his elder brother. In the evening at about 7:30 PM, when he returned and inquired from the inmates about Sudama (deceased), then he gathered information that Sudama (deceased) had not returned from Motihari. The informant thought that in the night, his brother Sudama might had stayed at Motihari with his elder brother. In the morning thereafter, while he was returning after attending call of nature and he was near to his house, he heard some cry of female and children, which was coming from his house, then he went inside his house and he gathered information that the female members of his house had brought the dead body of Sudama by way of lifting from the canal of the village. After seeing the dead body, he noticed some scratches on his neck and neck had also swollen and blood had come out from his mouth. He further stated in the fardbeyan that in between Ekram Mian (appellant) and his family members, old land dispute and litigation was continuing. He stated that his younger brother Sudama (deceased) was doing work relating to toddy. Few days prior to the occurrence, with his villagers Jagdish Mahto (P.W.9), Bhagelu Mahto, Bharat Mahto, Jhabbu Mahto and Abhay Tiwary some occurrence had taken place, in which, case was also lodged. In the said case, in favour of Jagdish Mahto (P.W.9), his younger brother Sudama (deceased) stood as a witness and since thereafter, Bhagelu Mahto, Bharat Mahto, Jhabbu Mahto and Abhay Tiwary started threatening informant and his brother Sudama Ram (deceased). The informant stated that all the aforesaid accused persons instigated Ekram Mian (appellant) to carry Sudama to Motihari. According to informant, all the aforesaid accused, conspiring with each other, had killed his brother by strangulation. The informant claimed that Ekram Mian (appellant), Bharat Mahto, Bhagelu Mahto, Jhabbu Mahto and Abhay Tiwary, all residents of village Karariya Birti Tola, P.S. - Kotwa, District East Champaran due to old animosity by hatching criminal conspiracy had killed his brother by strangulation. The said fardbeyan was read over to him and after finding it correct, he put his signature. As a witness to the fardbeyan, Viswanath Sah (P.W.1), Nandu Ram (P.W.5) and one another person put their signature. 3. On the basis of said fardbeyan, on 21-02-1997 at 17.15 hrs. The said fardbeyan was read over to him and after finding it correct, he put his signature. As a witness to the fardbeyan, Viswanath Sah (P.W.1), Nandu Ram (P.W.5) and one another person put their signature. 3. On the basis of said fardbeyan, on 21-02-1997 at 17.15 hrs. (5:15 PM), a formal F.I.R., vide Kotwa P.S. Case No. 13 of 1997, was registered for offence under Sections 302/120(B) of the I.P.C. against 1. Ekram Mian (appellant), 2. Bharat Mahto, 3. Bhagelu Mahto, 4. Jhabbu Mahto and 5. Abhay Tiwary. After registering F.I.R., the case was investigated and during investigation, the accusation against all the five F.I.R. named accused persons was found true and thereafter, on 25-04-1997, chargesheet was submitted. Thereafter, the learned Chief Judicial Magistrate, East Champaran at Motihari on 14-05-1997 took cognizance of the offence. After completion of formalities under Section 207 of the Cr.P.C., on 30-09-1997, the case was committed to the court of sessions and as such, it was numbered as Sessions Trial No. 519 of 1997. On 22-01-1998, charge was jointly framed against all the five accused persons, which includes appellant, under Sections 302, 201, 120(B) of the I.P.C. 4. To prove its case on behalf of the prosecution, altogether 12 witnesses were examined. Out of 12 witnesses, P.W.2 Seema Devi (wife of the deceased), P.W.3 Shankar Ram, P.W.4 Shravan Ram, P.W.6 Akloo Ram (informant and elder brother of the deceased), P.W.7 Kishor Ram, P.W.8 Bhodna Ram and P.W.11 Renu Devi (neice of the deceased) were examined on the point, as if, before the occurrence, the deceased was lastly seen with the appellant. The evidence of P.W.9 Jagdish Mahto has got not much relevance. P.W.10 is the doctor i.e. Dr. Jitendra Nath Gupta, who had conducted post-mortem examination on the dead body of the deceased. P.W.12 R.V. Ram had recorded fardbeyan and investigated the case, however; during investigation, after examining some of the witnesses, he had handed over charge to another police officer, since he was transferred. P.W.1 Viswanath Sah, since did not support the prosecution case, was declared hostile. 5. After completion of the prosecution evidence, the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C. on 29-08-2013, in which, the appellant claimed to be innocent. However, on behalf of the appellant, no defence witness was examined. 6. P.W.1 Viswanath Sah, since did not support the prosecution case, was declared hostile. 5. After completion of the prosecution evidence, the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C. on 29-08-2013, in which, the appellant claimed to be innocent. However, on behalf of the appellant, no defence witness was examined. 6. Sri Rajendra Kishore Prasad, learned counsel for the sole appellant, after placing entire evidence, has argued that the appellant in the present case was made victim due to village politics. He submits that the prosecution, save and except showing as if deceased was lastly seen with the appellant one day prior to recovery of the dead body, no other evidence has been brought on record to show completion of the chain of circumstances. He further submits that though, learned Trial Judge has passed judgment of conviction and sentence on the basis of circumstantial evidence i.e. on the principle of ‘last seen’, the learned Trial Judge has completely failed to appreciate that prosecution during entire evidence has not brought on record any fact to suggest as to whether the appellant was having any animosity with the deceased or not. He submits that there is no evidence on record to show that appellant was having any motive for eliminating the deceased. On the point of animosity, Sri Prasad, learned counsel for the appellant has referred to the evidence of P.W.2 Seema Devi in paragraph 3 & 5, P.W.3 Shankar Ram in paragraph 3 and P.W.6 Akloo Ram in paragraph 19 & 23 of their evidence. He highlights that those witnesses, who are prosecution witnesses, are very much specific on the point that there was no dispute, even no land dispute in between appellant and deceased or his family members. In sum and substance, it has been argued that in a case of conviction on the basis of principle of ‘last seen’, it was mandatorily required on the part of the prosecution to bring on record evidences to connect the chain of circumstances. He submits that in the case, there is no chain nor there is any evidence to show connection of any chain, but only a case was made out, as if, the deceased was seen with appellant one day prior to the recovery of the dead body of the deceased. He submits that in the case, there is no chain nor there is any evidence to show connection of any chain, but only a case was made out, as if, the deceased was seen with appellant one day prior to the recovery of the dead body of the deceased. He further submits that of course, some of the witnesses have said that deceased was having some animosity with other four accused, who were named as accused in the F.I.R., during the trial, the prosecution miserably failed to establish any case against those accused persons and this was the reason that by the same judgment, other 4-5 F.I.R. named accused, against whom there was material of animosity with the deceased, were acquitted by the learned Trial Judge. Accordingly, it has been argued that the learned Trial Judge has committed serious error in passing the judgment of conviction and sentence. 7. Sri Ajay Mishra, learned Addl. Public Prosecutor, opposing the appeal, has argued that it is not a case that one day prior to recovery of the dead body, the deceased was seen with the appellant at 8:30 AM in the morning, rather the deceased was also seen with the appellant on the same day in the evening at 7:00 PM, while the deceased alongwith appellant had returned from Motihari and that witness (i.e. P.W.7) had offered some tea and snacks, but in the meanwhile, one unknown accused person arrived and he asked both i.e. the deceased and the appellant to go with him. He further submits that once prosecution was able to establish that deceased prior to recovery of dead body was seen with the appellant, onus was shifted on the appellant to dispute or bring on record anything that he was not with the deceased at the time of occurrence. 8. Besides hearing learned counsel for the parties, we have cursorily examined the evidences on record and after going through the same, prima facie, we are of the opinion that prosecution has not been able to establish its case beyond all reasonable doubt. However, before proceeding, it would be necessary to examine the evidence, which has come during the trial. 9. During the trial, the informant namely Akloo Ram was examined as P.W.6. In his evidence, P.W.6 has stated that on the date of occurrence at about 8:00 in the morning, he was taking meal at his residence. However, before proceeding, it would be necessary to examine the evidence, which has come during the trial. 9. During the trial, the informant namely Akloo Ram was examined as P.W.6. In his evidence, P.W.6 has stated that on the date of occurrence at about 8:00 in the morning, he was taking meal at his residence. The appellant came near to his door on a bicycle calling Sudama Ram (deceased). He discussed something with him and thereafter, Sudama (deceased) was ready to go with him. On inquiry, it was told that he was going with Ekram (appellant) to Motihari, since Ekram (appellant) was to purchase medicine. This witness asked the deceased that if he was going to Motihari, he must meet his elder brother Budhraj Ram (not examined). Thereafter, Sudama (deceased) and appellant both left for Motihari. The informant also went out of the house alongwith his Vkaxk (Tanga). In the evening at 6:30 PM when he returned back and did not find Sudama (deceased), he thought that Sudama must had stayed with his brother in Motihari. In the morning, when he had gone to attend natural call, he heard the cry of some female, which was coming out from his house and when he went there, he saw that female inmates had carried by lifting dead body of Sudama. On the dead body of deceased, he noticed the scratches on his neck, which was swollen and from mouth blood had come out. In paragraph 6 of his evidence, he stated that with family of Ekram Mian (appellant) earlier there was some land dispute. He stated that Sudama was using to sell toddy. He further stated that he was knowing Jagdish Mahto (P.W.9) and in between Jagdish Mahto (P.W.9) and Bhagelu Mahto, Bharat Mahto & Jhabbu Mahto, there was dispute. Jagdish Mahto (P.W.9) had lodged a case against Jhabbu, Bharat and Bhagelu and in the said case, the informant as well as his brother Sudama (deceased) were examined as witness. In paragraph 7 of his evidence, he further stated that accused Bhagelu, Bharat and Jhabbu were restraining the deceased (Sudama) from giving evidence. Jagdish Mahto (P.W.9) had lodged a case against Jhabbu, Bharat and Bhagelu and in the said case, the informant as well as his brother Sudama (deceased) were examined as witness. In paragraph 7 of his evidence, he further stated that accused Bhagelu, Bharat and Jhabbu were restraining the deceased (Sudama) from giving evidence. This witness stated that on his fardbeyan, which was recorded by the police, he had put his signature and his signature was marked as Ext.1/B. Though, this witness in his evidence as well as fardbeyan had stated that land dispute with him and Ekram Mian (appellant) was continuing since long. In paragraph 23 of his cross-examination, he stated that he was not knowing exactly the land, regarding which. With Ekram (appellant), there was dispute. He was also not knowing as to where the said land was situated. He further stated that there was no dispute in respect of land of bZnxkg (Idgah). Meaning thereby that though in initial version, the informant (P.W.6) had come out with a case that with the appellant, there was land dispute, on his cross-examination, this fact has vanished. Accordingly, inference can be drawn that since the deceased was seen one day prior to recovery of the dead body, a case was made out by the informant, as if, there was land dispute in between the parties and motive was tried to be introduced by the prosecution regarding the fact that there was land dispute. 10. Similarly, P.W.2 Seema Devi wife of the deceased as well as P.W.3 Shankar Ram have deposed. P.W.2 Seema Devi in paragraph 3 of her evidence has stated that four female members had lifted the dead body from the place, where it was found and it was carried to her door. She further stated that with Ekram Mian (appellant) and her family, there was nothing ^^,djke fe;k ls esjs ifjokj dks dqN ugha FkkA** nor there was any case. Rather she had stated that Jagdish (P.W.9) had lodged a case against all the four F.I.R. named accused persons, in which, those persons had got her husband killed. In paragraph 4, she further stated that there was dispute in respect of land with Jagdish Mahto (P.W.9). Rather she had stated that Jagdish (P.W.9) had lodged a case against all the four F.I.R. named accused persons, in which, those persons had got her husband killed. In paragraph 4, she further stated that there was dispute in respect of land with Jagdish Mahto (P.W.9). It is relevant to notice that in paragraph 5 of her evidence, P.W.2 (wife of the deceased) stated that due to the reason of doing work of toddy, number of persons were not happy. She stated that she had heard rumour that on the point of doing work of toddy, her husband was killed. While she had reached near the place of occurrence, there also people were saying that due to toddy work, murder had taken place. She further stated that on suspicion, she had given the name of Ekram (appellant). Again in paragraph 7 of her cross-examination, she had stated that due to the reason that there was dispute with Jagdish and his pattedars, her husband was killed. 11. P.W.3 Shankar Ram in paragraph 2 of his evidence had stated that on the date of occurrence at 3:00 PM Ekram Mian (appellant) with Sudama (deceased) had gone to the house of his elder brother. Both had come on bicycle and had demanded some money from his elder brother. This witness was given suggestion in paragraph 7 that the deceased was a patient of T.B., but same was denied by this witness. 12. P.W.4 Shravan Ram in his evidence has stated that on the date of occurrence in the morning at 7-8 AM, the appellant approached him and asked for his bicycle, which was provided to him. He further stated that on the next morning, he had taken back the bicycle from the appellant. His attention was drawn to his previous statement on the point that during investigation before the police he had stated that on being called by Ekram (appellant) he had taken back his bicycle. This witness was introduced with a view to substantiate that the deceased along with the appellant had gone on bicycle. 13. P.W.5 Nandu Ram is witness to the inquest report and he proved his signature as well as signature of one Viswanath Ram on inquest report, which were marked as Ext.1 and 1/A. 14. This witness was introduced with a view to substantiate that the deceased along with the appellant had gone on bicycle. 13. P.W.5 Nandu Ram is witness to the inquest report and he proved his signature as well as signature of one Viswanath Ram on inquest report, which were marked as Ext.1 and 1/A. 14. P.W.7 Kishore Ram is witness on the point that on the date of occurrence, in the evening at 7.00 hrs., the deceased with appellant after returning from Motihari had gone to his house. This witness further deposed that while both had come to his house, one unknown person, who had wrapped his face, arrived and asked both of them i.e. deceased and appellant to go with him, however; nothing has been brought on record regarding the said unknown person. 15. P.W.8 Bhodna Ram has stated that on the date of occurrence, in the evening at 7:00 PM, he was sitting near his door. Ekram Mian (appellant) Sudama (deceased) were talking with Kishore Ram (P.W.7). He stated that Sudama (deceased) had taken drink and he asked them to move from his door. In his cross-examination, in paragraph 4, he further reiterated that the deceased was in drunken condition. 16. P.W.9 Jagdish Mahto, with whom P.W.2 wife of the deceased had stated that there was land dispute in between Jagdish Mahto and deceased, this witness in his evidence has stated that no court case was going on with Bharat, Bhagelu and Jhabbu Mahto. This again suggests that whatever reason may be, but some dispute with deceased was with other accused persons, not the appellant. 17. P.W.10 Dr. Jitendra Nath Gupta on 21-02-1997 was posted as Civil Assistant Surgeon in Sadar Hospital, Motihari and he conducted post-mortem examination on the dead body of the deceased on the same date at 4:00 PM and he noticed following facts on the dead body:- “I. Legature mark horizontally round the neck between chin and thyroid size 3/4”. II. Sero Sanguinous blood coming out from nostril & mouth.” On Opening Neck Ecchymosis present in subcutuous tissue & muscle beneath the legature mark rupture of carohi veins - oozing - dark blood (cherry red). Thorax Lungs NAD Heart Chamber contain dark blood (cherry red) Abdomen Stomach contains semi-digested food Liver - NAD Spleen - NAD Kidney NAD Urine blooder contains 2 oz of urine. Thorax Lungs NAD Heart Chamber contain dark blood (cherry red) Abdomen Stomach contains semi-digested food Liver - NAD Spleen - NAD Kidney NAD Urine blooder contains 2 oz of urine. Cause of Death Due to Strangulation lead to Asphyxia & death. Time elapsed since death Within 24 hours.” The doctor has proved the post-mortem report, which was marked as Ext. 3. 18. P.W.12 R.V. Ram was the investigating officer of the case, who recorded fardbeyan of the informant, which was marked as Ext.4. He also proved formal F.I.R., which was marked as Ext.5 and inquest report, which was marked as Ext.6. In his evidence, though he had stated that he visited the first place of occurrence where dead body was found and he had noticed blood mark, on examination of the evidence, nothing has been brought on record regarding seizure of any blood soaked soil. He also examined some of the witnesses during investigation. He entrusted the charge of investigation to another police office, since he was transferred. In paragraph 8 of his cross-examination, while replying to the court question, he stated that blood was not in a position to be taken and this was the reason that he had not mentioned this point in the case diary. 19. The Court is of the opinion that once the investigating officer had noticed blood mark, even though he had not prepared seizure list, it was mandatorily required to state this fact in the case diary, but this witness failed to incorporate this fact in the case diary. Even on examination of the statement recorded under Section 313 of the Cr.P.C. of the appellant, it is evident that it was only completion of a formality, otherwise it was a strict violation of provision contained in Section 313 of the Cr.P.C. It is necessary to simply reproduce the statement recorded under Section 313 of the Cr.P.C., which is as follows:- ^^Á'u & D;k vkius xokgksa dk c;ku lquk gS \ mRrj & gkWA Á'u & vkids fo:} vkjksi gS fd fnukad 20@21 Qjojh 1997 dks jkf= xzke djfj;k o`fr Vksyk Fkkuk dksVok ftyk iwohZ pEikj.k esa vijkf/kd "kM;a= ds rgr lqnkek jke dh gR;k ds fy, rFkk mldh gR;k ls lacaf/kr lk{; dks u"V dj fn;s] D;k ;g lR; gS \ mRrj & ughaA Á'u & lQkbZ esa vkidks D;k dguk gS \ mRrj & funksZ"k gawA** 20. On examination of aforesaid facts, we are of the opinion that prosecution has completely violated the mandatory provision as contained in Section 313 of the Cr.P.C. Besides this, in entire evidence, nothing has been brought on record to show that appellant was having any animosity with deceased or his family members. There was no evidence to show as to whether the appellant was having any enimity to eliminate the deceased, rather on the basis of fact disclosed in the fardbeyan as well as evidence of witnesses, it appears that deceased was having good relation with the appellant and this was the reason that while on the date of occurrence in the morning at 8:30, the deceased was inquired by the informant, who has been examined as P.W.6, as to where he was going, the deceased replied that he was going with the appellant to Motihari, since the appellant was required to purchase medicine. The informant thereafter asked the deceased that if he was going to Motihari, then he must meet his elder brother at Motihari. This shows that the informant himself was not having any reason for apprehension of murder of his brother by the appellant. In his evidence as well as fardbeyan, the P.W.6/informant had deposed that the reason for the murder was old land dispute, however; during evidence, nothing has come on record as to whether there was any land dispute or not. The informant was specifically asked the question regarding the land if there was any dispute, he was not in a position to say any fact about the land. The wife of the deceased i.e. P.W.2 in her evidence has stated that there was no such animosity in between the deceased and the appellant. In such circumstance, only on the fact that the deceased had gone with the appellant in the morning at 8.30 hrs. on the date of occurrence and on the next date, dead body of the deceased was found, it would be difficult to come to a conclusive decision that it was only one person, who committed the crime i.e. appellant. It is settled principle of law that for holding one guilty in a case of circumstantial evidence as well as case of ‘last seen’, chain of other circumstances is required to be shown to be connected. It is settled principle of law that for holding one guilty in a case of circumstantial evidence as well as case of ‘last seen’, chain of other circumstances is required to be shown to be connected. In the present case, neither there is any chain shown to be connected nor there is animosity and as such, we are of the opinion that the learned Trial Judge was required to extend the benefit of doubt to the appellant, however; incorrectly he has passed the judgment of conviction and sentence. 21. In view of aforesaid facts and circumstances, we are of the considered opinion that the prosecution has miserably failed to establish its case beyond all reasonable doubt and as such, by way of extending benefit of doubt, it is necessary to interfere with the judgment of conviction and sentence. 22. Accordingly, the judgment of conviction dated 20-04-2013 and order of sentence dated 01-05-2013 passed in Sessions Trial No. 519 of 1997 (arising out of Kotwa P.S. Case No. 13 of 1997) by Sri Subhash Chandra Srivastava, learned 5th Additional Sessions Judge, East Champaran at Motihari is, hereby, set aside and appeal is allowed. 23. The appellant is in custody and since the judgment of conviction and sentence has been set aside, it is, hereby, directed to release him forthwith, if not wanted in any other case.