JUDGMENT : Rajendra Kumar, J. This Jail Appeal has been filed by accused-appellant-Ram Naresh alias Chunnu Gaur, Dinesh alias Tunnu Gaur and Baniya alias Rajesh through Jail Superintendent, Bijnor against judgement and order dated 08.07.2011 passed by Additional Sessions Judge / Special Judge, Bijnor, in Sessions Trial No. 987 of 2010 (State v. Ram Naresh alias Chunnu Gaur and Others, Case Crime No. 97 of 2010) under Sections 302/34, 394, 411 IPC, Police Station Nangal, District Bijnor convicting all three accused-appellants under Sections 302/34, 394, 411 IPC and sentenced them under Section 302/34 IPC to undergo for life imprisonment and Rs. 10,000/-. In default of fine, they shall further undergo six months' imprisonment; under Section 394 IPC for R.I. of five years and fine of Rs. 2,000/-; in default of fine, they shall further undergo two months R.I.; and under Section 411 IPC for R.I. of two years and fine of Rs. 1000/- and in default of fine, they shall further undergo one month. 2. Prosecution story, in brief, is that on 22.09.2010, PW-1 Katar Singh made a written Tehrir Ex. Ka-1 in the Police Station concerned stating that a dead body of one young unknown person was seen, lying in the Sugarcane field near tube-well of PW-1. Its head was bleeding. There was a stone nearby the body. PW-1 suspected that he was killed by someone. 3. On the basis of Written Tehrir Ex Ka-1, chick FIR, Ex. Ka-19 was registered in Police Station concerned by Constable Clerk as Case Crime No. 97 of 2010, under Section 302 IPC against unknown accused person, entry whereof was made in General Diary, copy whereof is Ex. Ka-20 on record. 4. Pw-7 commenced investigation, proceeded to spot, visited the same and prepared Site Plan Ex.Ka-13, collected blood stained and simple earth, prepared memo Ex.Ka-15. After completing entire formalities of investigation, he submitted charge-sheet Ex. Ka-17 against accused persons. 5. Pw-6, under the dictation of PW-7, held inquest over dead body of unknown person, later on identified as Ajay, and prepared inquest report Ex.Ka-6 and other relevant papers thereto, body was duly sealed and sent for postmortem. 6. Pw-5 Dr. Anil Kumar Agarwal conducted autopsy of dead body of Ajay, aged about 24 years, son of Ramlal Jaiswal and prepared postmortem report Ex. 6. Pw-5 Dr. Anil Kumar Agarwal conducted autopsy of dead body of Ajay, aged about 24 years, son of Ramlal Jaiswal and prepared postmortem report Ex. Ka-2, expressing his opinion that death was possible at about 1-2 days prior to postmortem due to coma and hemorrhage on account of ante-mortem injuries, Doctor found following ante-mortem injuries on the body of deceased, which read as under :- i. Lacerated wound 2cm x 1cm on the right eyebrow. ii. Lacerated wound 3cm x 1cm on the right side of the head above 6 cm right ear. iii. Lacerated wound 6cm x 2cm on the ocipital region. iv. Lacerated wound 3 cm x1 cm on the left side of face on the mandible region. 7. Case, being exclusively triable by Court of Sessions, was committed to Sessions Judge. After making compliance under Section 207 Cr.P.C. by Chief Judicial Magistrate concerned, case was committed to Sessions Judge, Bijnor. 8. Trial Court framed charges on 29.01.2011 against accused Ramnaresh and Baniya alias Rajesh under Sections 302/34 and 394 IPC and accused-Dinesh under Sections 302/34, 394 and 411 IPC respectively, which reads as under :- (A) "I, S.C. Batra, Sessions Judge, Bijnor, do hereby charge you Ramnaresh @ Chunnu Gaur, and Baniya @ Rajesh @ Mohan @ Babu as follows : Firstly-That both of you along with co-accused Dinesh @ Dunnu Gaur on the intervening night of 21/22.9.2010 at some unknown time in the sugarcane field of one Katar Singh of Jangal village Jeetpur Khas, P.S. Nangal, District Bijnor in furtherance of your common intention knowingly in intentionally did commit murder by causing the death of Ajay and thereby you committed an offence punishable under Section 302 read with Section 34 I.P.C. and within the cognizance of this Court. Secondly- That both of you along co-accused Dinesh @ Dunnu Gaur on the aforesaid date, time and place committed loot of mobile phone (Nokia), and Rs. 1000/- cash from Ajay in committed murder of said Ajay and thereby you committed an offence punishable under Section 394 I.P.C. and within the cognizance of this Court. Secondly- That both of you along co-accused Dinesh @ Dunnu Gaur on the aforesaid date, time and place committed loot of mobile phone (Nokia), and Rs. 1000/- cash from Ajay in committed murder of said Ajay and thereby you committed an offence punishable under Section 394 I.P.C. and within the cognizance of this Court. And I hereby direct that you be tried on the said charge." (B) I, S.C. Batra, Sessions Judge, Bijnor, do hereby charge you Dinesh @ Dunu Gaur as follows : Firstly-That you along with co-accused Ramnaresh @ Chuunu Gaur and Baniya @ Rajesh @ Mohan @ Babu on the intervening night of 21/22.9.2010 at some unknown time in the sugarcane field of one Katar Singh of Jangal village Jeetpur Khas, P.S. Nangal, District Bijnor in furtherance of your common intention knowingly and intentionally did commit murder by causing the death of Ajay and thereby you committed an offence punishable under Section 302 read with Section 34 I.P.C. and within the cognizance of this Court. Secondly-That you along co-accused Ramnaresh @ Chunnu Gaur and Baniya @ Rajesh @ Mohan @ Babu on the aforesaid date, time and place committed loot of mobile phone (Nokia), and Rs. 1000/- cash from Ajay and committed murder of said Ajay and thereby you committed an offence punishable under Section 394 I.P.C. and within the cognizance of this Court. Thirdly-That on 27.9.2010 at about 8:00 a.m at platform of Railway Station Najibabad, P.S. Najibabad, District Bijnor you dishonestly retained stolen property viz Rs. 440/- and mobile phone (Nokia-1209) belonging to Ajay (deceased), knowing the same, to have been transferred in commission of loot and thereby you committed an offence punishable under Section 411 I.P.C. and within the cognizance of the is Court. And I hereby direct that you be tried on the said charge." 9. Accused-Appellants pleaded not guilty and claimed trial. 10. In order to substantiate its case, prosecution examined as many as seven witnesses in the following manner :- Sr.No. Name of PW Nature of witness Paper proved 1 Katar Singh Formal Ex.Ka-1 2 Babu Lal Jaiswal Fact - 3 Amit Kumar Jaiswal Fact - 4 Chandra Prakash Formal Panchnama 5 Dr. Anil Kumar Agarwal Formal Ex.Ka-2 6 Madan Pal Singh Formal Ex. Ka-6 7 Nanak Chand Formal - 11. Anil Kumar Agarwal Formal Ex.Ka-2 6 Madan Pal Singh Formal Ex. Ka-6 7 Nanak Chand Formal - 11. In the statement under Section 313 recorded by Trial Court, explaining entire evidence and other incriminating circumstances, accused -appellants denied prosecution story in toto. Entire story is said to be wrong, they claimed false implication but did not choose to lead any defence evidence. 12. Ultimately, case came to be heard and decided by Additional Sessions Judge / Special Judge, Bijnor, who after hearing learned counsel for parties and analysing entire evidence (oral and documentary) led by prosecution, found accused-appellants guilty, convicted and sentenced, as stated above. 13. We have heard Sri Noor Mohammad, learned Advocate for appellant 1-Ram Naresh and learned Amicus Curiae for appellants 2 and 3, and Sri M.C. Dixit, learned AGA for State and traveled through record with valuable assistance of learned counsel for parties. 14. Learned counsel for accused-appellants assailed order of conviction and sentence, took us through the record and advanced following submissions :- i. There is no eye witness of occurrence. Case rests upon the circumstantial evidence i.e. last seen theory and recovery of Mobile. ii. Accused-appellants have been implicated in the present crime on the basis of disclosure statement of co-accused and recovery of one Mobile allegedly belong to deceased. iii. There is no motive of incident to accused-appellants to commit present crime. iv. Prosecution failed to establish the recovery of Mobile allegedly belong to deceased. v. There are several contradictions in the statements of prosecution witness, which may dent prosecution case. vi. Prosecution has failed to establish its case beyond reasonable doubt against accused-appellants and they are entitled to get benefit of doubt. 15. Learned A.G.A. vehemently opposed submissions made by learned counsel for accused-appellants, submitted that prosecution case rests upon the circumstantial evidence based on last seen theory and recovery of one Mobile allegedly belong to deceased; there is no reason to witnesses PW-2 and PW-3 to connect accused-appellants falsely in the present case, This is a case of circumstantial evidence, in which, Ajay was assaulted and assassinated by accused-appellants, thus prosecution proved its case beyond all shadow of reasonable doubt and appeal is liable to be dismissed. 16. 16. Although place, time and date of occurrence, nature of injuries found on body of deceased, have not been disputed from the side of accused-appellants but according to learned Advocate they are not responsible for murder of Ajay. Even otherwise from evidence of PW-1, 4, 5, 6 and 7, it is established that Ajay was assassinated at the time, date, place and in the manner, as stated by prosecution. 17. Thus the only question remains for consideration is "whether accused-appellants committed murder of Ajay and Trial Court rightly convicted them or not?" 18. We may now briefly consider evidence led by prosecution. PW-1 is not witness of incident. He deposed that on 22.09.2010 at about 2-2:30 p.m. he went to his tube-well where he saw a dead body of young unknown person in Sugarcane field near Tube-well with a blood stained Danda, one blood stained stone and head was bleeding. He suspected that he was killed by someone with stone, which was lying there. He wrote a Tehrir Ex. Ka-1 and presented in Police Station concerned for information. PW-2 Babulal Jaiswal happens to be Uncle of deceased Ajay, deposed that on 19.09.2010, his nephew Ajay went along with accused Ramnaresh, Dinesh and Baniya to work as labour. Amit told him that on 22.09.2010, Ajay informed him that he along with three accused arrived at Najibabad. Later on, Amit was informed by Police that dead body of Ajay was kept in the district hospital Bijnor. Thereafter, he along with PW-3 and one Kailash came to District Hospital Bijnor and identified the dead body as Ajay and received it. Witness withstood cross-examination in which he admitted that he did not see anybody assaulting Ajay. He did not have any receipt of Mobile, which is alleged to be of Ajay. 19. Pw-3, Amit Jaiswal, happens to be younger brother of deceased Ajay, deposed that on 19.09.2010 his brother (victim) came to Chandela from his house along with accused Ramnaresh, Dinesh and Baniya. Thereafter, they came to Najibabad. At that time victim was having Rs. 3,000/-, one Mobile Nokia Type-1269, No. 9977563773. He received the information by Police regarding murder of his brother through telephone on 21.09.2010 whereupon, he along with his uncle Babulal, PW-2, and one Kailash reached in the intervening night of 23/24.09.2010 at District Hospital, Bijnor through Max (a four wheeler vehicle). At that time victim was having Rs. 3,000/-, one Mobile Nokia Type-1269, No. 9977563773. He received the information by Police regarding murder of his brother through telephone on 21.09.2010 whereupon, he along with his uncle Babulal, PW-2, and one Kailash reached in the intervening night of 23/24.09.2010 at District Hospital, Bijnor through Max (a four wheeler vehicle). In District Hospital, he and his uncle identified dead body as that of Ajay. This witness withstood cross-examination in which, he stated that accused Ramnaresh, Dinesh and Baniya took Ajay from his house on 19.09.2010 at about 6:00 a.m. when there was nobody in his house. He did not leave his brother at Railway Station. Nobody has assaulted his brother Ajay before him. 20. According to Advocate for defence, PW-2 and 3 did not see victim Ajay in the association of accused-appellants. PW-2 and 3 are only the witnesses of last seen but they did not clearly state that accused-appellant took victim in their presence or they have last seen victim in the association of accused persons. 21. We are also of the view that both the witnesses PW-2 and 3 did not see Ajay in the company of accused-appellants last time. There is no other evidence to establish the theory of last seen. 22. PW-6 deposed that on 22.09.2010, he was posted in Police Station Nangal. On that day, at about 4:00 p.m., he under the direction of PW-7 held inquest over the dead body of one unknown person, prepared inquest report Ex. Ka-6, handed over dead body to Constable Vijendra and Jaiveer for postmortem. At the time of inquest, two railway tickets, from Allahabad to Najibabad dated 20.09.2010, along with one plain paper containing Mobile No. 9685731879 belonged to PW-3, Amit Jaiswal, were recovered from the right pocket of Pant of deceased. Mobile number was contacted through the Mobile number of S.O., PW-7, and found it belonged to Amit Jaiswal. He was informed whereabouts of deceased who was identified as Ajay. Amit told that victim had gone to Haridwar with Dinesh and his two other colleague for doing service, 3-4 days ago. Thereafter, he along with other Police Officials on the information of Informer, arrived at Najibabad Railway Station and arrested accused-Dinesh and on his search, recovered one Nokia-1209 of black-cocacola colour allegedly belong to deceased without any SIM from right pocket of his Pant. Thereafter, he along with other Police Officials on the information of Informer, arrived at Najibabad Railway Station and arrested accused-Dinesh and on his search, recovered one Nokia-1209 of black-cocacola colour allegedly belong to deceased without any SIM from right pocket of his Pant. It is further deposed by PW-6 that accused-Dinesh confessed his guilt admitting assassination of Ajay by him along with other two accused-appellants. In cross-examination, witness admitted that during the course of inquest, Amit was contacted by PW-7 and that kind of Mobile can easily be available in market. 23. According to Advocate for defence, Mobile recovered from possession of accused-Dinesh could not be got identified by any witness or any family member of deceased. There is no cogent evidence that Mobile which is said to be recovered from the possession of accused belonged to deceased-Ajay. Witness of recovery of Mobile have also not been produced in the Court, therefore, recovery could not be established by prosecution. We find substance in the submission of learned counsel for accused-appellants for the reasons that Mobile could not be got identified by any of the witness led by prosecution so as to prove that it belong to Ajay. Witness of recovery could be produced by prosecution but not. 24. In case in hand there is no eye witness of occurrence. Case of prosecution rests on circumstantial evidence. There cannot be any dispute as to the well settled proposition that the circumstances from which the conclusion of guilt is to be drawn must or "should be" and not merely "may be" fully established. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explicable through any other hypothesis except that the accused was guilty. Moreover, the circumstances should be conclusive in nature. There must be a chain of evidence so complete so as to not leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must show that in all human probability, the offence was committed by the accused. 25. In Hanumant Govind Nargundkar & Anr. v. State of M.P., 1952 AIR(SC) 343, a basic judgment of Supreme Court on appreciation of evidence, when a case depends only on circumstantial evidence, where Court said: "... 25. In Hanumant Govind Nargundkar & Anr. v. State of M.P., 1952 AIR(SC) 343, a basic judgment of Supreme Court on appreciation of evidence, when a case depends only on circumstantial evidence, where Court said: "... 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...... it must be such as to show that within all human probability the act must have been done by the accused." 26. In Hukam Singh v. State of Rajasthan, 1977 AIR(SC) 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person. 27. In Sharad Birdhichand Sarda v. State of Maharashtra, 1984 AIR(SC) 1622, Court, while dealing with a case based on circumstantial evidence, held that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the 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. (emphasis added) 28. (emphasis added) 28. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, 1989 AIR(SC) 1890, Court said: "...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and, (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." (emphasis added) 29. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996 (10) SCC 193 , Court said: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." (emphasis added) 30. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002 (8) SCC 45 Court said : "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." (emphasis added) 31. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007 (4) SCC 713 and Tomaso Bruno v. State of U.P., 2015 (7) SCC 178 . 32. In the present case, there is no eye witness. None has seen the accused-appellants murdering deceased-Ajay. PW-2 and 3 failed to establish last seen theory. Mobile recovered could not be got proved to be of deceased-Ajay. There is no other evidence on record to connect accused-appellants with the present crime. Hence it can be said that crime could have been committed by somebody else. There is no complete chain of circumstances to indicate that accused-appellants are the only person who murdered Ajay. 33. Looking into entirety of facts and circumstances of the case, as discussed above, we are of the view that Trial Court has not marshalled entire evidence on record with care and caution and is not correct in convicting accused-appellants, solely relying on last seen theory and recovery of Mobile, as stated by prosecution, that too not supported by any other witnesses, overlooking other major contradictions in their evidence and missing chain of circumstantial evidence. In our view, accused-appellants are entitled to benefit of doubt and it cannot be said that prosecution has been successful in proving guilt of accused-appellants beyond reasonable doubt. 34. In the result, appeal succeeds and is allowed. Impugned judgment and order dated 08.07.2011 passed by Additional Sessions Judge / Special Judge, Bijnor, in Sessions Trial No. 987 of 2010 is hereby set aside. Accused-appellants are acquitted of charges leveled against them. They are in jail and shall be released forthwith, if not wanted in any other case. 35. Keeping in view provisions of Section 437-A Cr.P.C., accused-appellants are directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellants on receipt of notice thereof shall appear before Hon'ble Supreme Court. 36. Lower Court record along with a copy of this judgment be sent immediately to District Court concerned for compliance and further necessary action. 37. 36. Lower Court record along with a copy of this judgment be sent immediately to District Court concerned for compliance and further necessary action. 37. Before parting, we provide that Sri Noor Mohammad, Advocate, who has appeared as Amicus Curiae for appellants 2 and 3 in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.