JUDGMENT Vinit Kumar Mathur, J. These two criminal appeals arise out of a common Judgment dated 06.04.2015 and therefore, the same are being decided by this common judgment. 2. The present criminal appeals under Section 374(2) of Cr.P.C. have been preferred by the accused-appellants Radheyshyam and Asha Devi against the judgment and order of conviction dated 06.04.2015 passed by the learned Additional Sessions Judge No. 4, Bikaner in Sessions Case No. 49/2012 whereby the accused-appellants have been convicted and sentenced as under :- Offence Sentence U/s 302/34 IPC Life Imprisonment with fine of Rs. 10,000/- each, in default of payment of fine to further undergo 06 months S.I. U/s 120-B IPC Life Imprisonment with fine of Rs. 10,000/- each, in default of payment of fine to further undergo 06 months S.I. U/s 201/34 IPC 5 years R.I. with fine of Rs. 5,000/- each, in default of payment of fine to further undergo 3 months S.I. 3. The prosecution case arose out of a complaint (Ex.P/1) filed by one Vinod Kumar (P.W. 1), who is resident of Bangla Nagar, Bikaner, wherein it was stated that in the morning of 20.09.2010 while he was reading the news-paper, he read a news item that a dead body of one Ratan Singh Soni had been recovered. He immediately called up his brother Indra Chand and told him that a dead body was recovered from the water tank situated in JodBeed. They went to the mortuary of P.B.M. Hospital, Bikaner and saw the dead body of their brother Ratan Lal. They informed their relatives and friends. The dead body was cremated after conducting the postmortem. On enquiring the facts, he came to know that the deceased Ratan Lal was being harassed by Radheshyam, Asha Devi and his mother-in-law Roopa Devi because of some financial transactions between them. He also came to know that when he went to the house of Harinarayan Kothari, the residents of the area told him that Ratan Lal was assaulted quite often by the appellants as well as his mother-in-law Roopa Devi. He also came to know that when he went to the house of Harinarayan Kothari, the residents of the area told him that Ratan Lal was assaulted quite often by the appellants as well as his mother-in-law Roopa Devi. After the cremation, when he tried to enquire about the incident and went to the house of the mother-in-law of the deceased, she was not available at her residence but landlord Harinarayan Kothari, his wife and other tenants informed him that on 18.09.2010 at around 9.00 10.00 A.M., Ratan Lal was assaulted by his mother-in-law, Radheshyam Suthar and wife Asha Devi. He was further informed that Radheshyam Suthar and Babulal were most of the time staying in the house of Roopa Devi because of certain financial transactions between them. On 18.09.2010 at around 10.00 P.M., Ratan Lal was taken away by Radheshyam from the house of Roopa Devi and thereafter, on the same night, they were seen on the motorcycle near Karni Mandir, Nokha Road by one Sanjay Singh, who was coming from Jodhpur. Ratan Lal was a pillion rider. Shiv Choudhary who was coming from Camel Farm to Nagnechiji saw two persons going on a motorcycle on the Bhojanshala Road and Ratan Lal was sitting in between them. He suspected that Radheshyam, Babulal Mali, Roopa Devi and Asha Devi along with his in-laws have hatched a conspiracy and murdered Ratan Lal. After tying with a stone slab, the dead body of the deceased Ratan Lal was thrown in the water tank situated in the Jod Beed to eliminate the evidence. 4. On this information, a formal F.I.R. No. 157/2010 was registered at Police Station Jai Narain Vyas Colony, Bikaner for the offences under Sections 302, 201 & 147 of I.P.C. 5. After conclusion of investigation, the police dropped the names of Babulal Mali, Roopa Devi, Nand Kishore and Babulal alias Amrit Kumar but filed charge-sheet against the accused appellants for the offences under Section 302, 201 & 120-B of I.P.C. 6. Learned trial court framed, read over and explained the charges for the offences under Sections 120-B, 302 in the alternate Section 302/34, 201 in the alternate Section 201/34 of I.P.C. to the accused appellants who pleaded not guilty and sought trial. 7. During the trial, the prosecution examined as many as 27 witnesses and Ex.P/1 to Ex.P/23A documents were exhibited. Learned trial court framed, read over and explained the charges for the offences under Sections 120-B, 302 in the alternate Section 302/34, 201 in the alternate Section 201/34 of I.P.C. to the accused appellants who pleaded not guilty and sought trial. 7. During the trial, the prosecution examined as many as 27 witnesses and Ex.P/1 to Ex.P/23A documents were exhibited. The accused-appellants were examined under Section 313 of Cr.P.C. and they were confronted with the evidence adduced against them during the course of trial to which they denied and stated that they were falsely implicated in the present case by producing false and fabricated evidence. They were innocent. They were not connected with the offences alleged and had been implicated only on the basis of suspicion. However, the accused-appellants did not wish to lead any oral evidence but got exhibited Ex.D/1 to Ex.D/10 documents in the defence. 8. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellants as above vide judgment dated 06.04.2015. Hence these appeals. 9. We have heard learned counsel for the appellants, learned Public Prosecutor and learned counsel for the complainant. 10. Learned counsel for the appellants vehemently submitted that present is a case purely of circumstantial evidence which too cannot even remotely connect the appellants with the offences alleged. He further submits that there are marked contradictions in the evidence of last seen relied upon by the trial court being statements of P.W. 2 Pukhraj, P.W. 3 Mahendra Soni, P.W. 19 Shivlal and P.W. 20 Sanjay Singh. Not only this, the evidence of last seen was not being corroborated by any other evidence to connect the present appellants with the commission of the offence alleged in the present case. The trial court failed to appreciate the evidence on record in an appropriate manner and thus, erred while convicting the appellants vide Judgment dated 06.04.2015. 11. He further submits that all other independent prosecution witnesses i.e. P.W. 5 Jaiprakash, P.W. 6 Harinarayan and P.W. 18 Mangi Devi who are neighbours have not supported the case of the prosecution and thus, have been declared hostile. 11. He further submits that all other independent prosecution witnesses i.e. P.W. 5 Jaiprakash, P.W. 6 Harinarayan and P.W. 18 Mangi Devi who are neighbours have not supported the case of the prosecution and thus, have been declared hostile. He further submits that the recovery of motor-cycle from the accused-appellant Radheshyam vide Ex.P/22 does not in any way support the prosecution case as no witness has seen the same motor-cycle having been used by the accused-appellant Radheshyam for carrying the deceased Ratan Lal soon before his death. Therefore, in these circumstances, he submits that it is a case of no evidence against the accused-appellants. 12. Learned counsel further submits that there was no meeting of minds between the accused-appellants and other persons, namely, Roopa Devi and Babulal and therefore, there was no question of having a common intention between the accusedappellants to eliminate deceased Ratan Lal. The prosecution miserably failed to bring home the charge under Section 34 of I.P.C. as there was nothing on record to remotely connect the appellants for the charge of committing the offence with the aid of Section 34 of I.P.C. in the present case. 13. Learned counsel on the strength of these arguments submits that there are material contradictions, omissions and improvements in the statements of the prosecution witnesses and that the prosecution could not prove beyond reasonable doubt that present appellants are guilty of the alleged offences and therefore, the trial court committed grave factual and legal error while convicting the appellants for the alleged offences. 14. Per contra, learned Public Prosecutor as well as learned counsel for the complainant while opposing the contentions of the learned counsel for the appellants have supported the judgment dated 06.04.2015 and submitted that the witnesses examined before the trial court have stated affirmatively that the appellants often used to assault the deceased Ratan Lal. The deceased Ratan Lal was maltreated at the hands of the appellants as well as Roopa Devi and Babulal Mali and there were certain financial transactions between them. He further submits that P.W. 3 Mahendra Soni who is son of the accused-appellant Asha Devi and the deceased Ratan Lal stated that there was illicit relationship between Radheshyam and his mother Asha Devi and therefore, they were assaulting his father and also indulged in intoxicating him by force. He further submits that P.W. 3 Mahendra Soni who is son of the accused-appellant Asha Devi and the deceased Ratan Lal stated that there was illicit relationship between Radheshyam and his mother Asha Devi and therefore, they were assaulting his father and also indulged in intoxicating him by force. He further submits that in order to eliminate Ratan Lal, the appellants hatched a conspiracy to murder the deceased who was creating a hurdle in the illicit affair between the accused-appellants Asha Devi and Radheshyam. He further submits that the deceased Ratan Lal was last seen alive in the company of Radheshyam as stated by P.W.2 Pukhraj, P.W. 3 Mahendra Soni, P.W. 19 Shivlal and P.W. 20 Sanjay Singh and thereafter, the dead body of the deceased Ratan Lal was found. He further submits that the statement of P.W. 23 Dr. Sanjeev Buri who conducted the postmortem upon the dead body of the deceased Ratan Lal shows that the cause of death was strangulation and the injuries sustained by him. He further submits that the recovery of the stone slabs and the motor-cycle on the information given by the accused-appellant Radheshyam proves beyond doubt the involvement of the accused-appellants in the alleged crime and therefore, the appellants were rightly convicted vide Judgment dated 06.04.2015. 15. We have considered the submissions made at the bar and minutely gone through the record of the learned trial court. The trial court basically relied upon the four circumstances in the present case for arriving at the conclusion that the accused-appellants were guilty of having committed the offences alleged against them. For the sake of brevity, the same are reproduced as under :- ^^99- vfHk;kstu i{k us ifjfLFkfrtU; lk{; ds fuEuizdkj ls pkj lsV izLrqr fd;s gS %& 1- var es e`rd jruyky dks vfHk;qDr jk/ks';ke ds lkFk ns[ks tkus ds rF; dks lkfcr djus ds fy, xokgku ihŒMŒ 2 iq[kjkt] ihŒMŒ3 egsUnz lksuh] ihŒMŒ 19 f'koyky o ihŒMŒ20 lat; flag dh ifjlk{; 2- MWk latho Hkwjh ihŒMŒ23 vkSj iksLVekVZe fjiksVZ izn'kZ&ih&14 dh fpfdRldh; lk{; ;g lkfcr djus ds fy, fd jruyky dh e`R;q ekuoo/k e`R;q FkhA 3- vfHk;qDr jk/ks';ke }kjk nh xbZ QnZ bRryk izn'kZ&ih&20 ds vuqlj.k esa QnZ rLnhd ?kVuk LFky ,oa cjkenxh HkhyokM+k iRFkj o tks/kiqjh iRFkj ¼iVVh½ ds VqdMs izn'kZ&ih&10 4- vfHk;qDr jk/ks';ke }kjk nh xbZ QnZ bRryk izn'kZ&ih&21 ds vuqlj.k esa QnZ cjkenxh eksVjlkbZfdy izn'kZ&ih&22^^ 16. On the close reading of the statements of P.W. 2 Pukhraj, P.W. 3 Mahendra Soni, P.W. 19 Shivlal and P.W. 20 Sanjay Singh, we find that although, P.W. 2 Pukhraj stated that on 18.09.2010 his father went away with Radheshyam and on the next day i.e. 19.09.2010, Radheshyam came back and took away his mother and his maternal grand-mother to Tilak Nagar and came back after 2-4 hours but in his cross-examination, he was confronted with the previous statements (Ex.D/2 and Ex.D/3). In the statement (Ex.D/2), it was stated by him that his father took Rs. 30/- from Mahendra and went to the bus coming from Jaipur to meet somebody and thereafter did not return home. Similarly, in the statement (Ex.D/3), he stated that his father took Rs. 30/- from his brother Mahendra and went to a bus which was going to Jaipur to meet his friend and settle the accounts with him. 17. On the same lines, P.W. 3 Mahendra Soni stated in his statement but when confronted with the statement made in Ex.D/4 wherein he stated that his father took Rs. 30/- at around 9.30 P.M. on 18.09.2010 and went to the bus which was going to Jaipur for settling some accounts with his friend but did not return back. 18. Thus, P.W. 2 Pukhraj and P.W. 3 Mahendra Soni cannot be considered to be reliable witnesses of the circumstances of last seen as the evidence given by them to this effect is a sheer improvement from what they stated to the investigation officer when they were examined under Section 161 of Cr.P.C. Both were confronted with their previous investigational statements and could not reconcile with the material omission / improvements in their sworn testimony. Thus, their evidence on this aspect has to be discarded. 19. P.W. 19 Shivlal stated that he saw Ratan Lal on the motorcycle but he could not see the person who was driving the motorcycle. Similarly, P.W. 20 Sanjay Singh stated that Ratan Lal was seen by him on the motor-cycle as a pillion rider but he could not see the person who was driving the motor-cycle. Hence, their testimony as witnesses of last seen is also not reliable. In both these statements, the deceased Ratan Lal was seen on the motorcycle but the witnesses did not state that Radheshyam was driving the motorcycle. 20. Hence, their testimony as witnesses of last seen is also not reliable. In both these statements, the deceased Ratan Lal was seen on the motorcycle but the witnesses did not state that Radheshyam was driving the motorcycle. 20. Therefore, in the statements of P.W. 2 Pukhraj, P.W. 3 Mahendra Soni, P.W. 19 Shivlal and P.W. 20 Sanjay Singh, the reliability and conclusiveness of the fact that the deceased Ratan Lal was last seen alive in the company of accused-appellant Radheshyam is falling well short of satisfactory proof. Thus, in our opinion, these four witnesses failed to establish the fact that the deceased was last seen alive in the company of the accused-appellant Radheshyam beyond reasonable doubt. Hence, the testimony of these four witnesses is not reliable and needs to be discarded by us. 21. In the case of Anjan Kumar Sarma & ors. Vs. State of Assam reported in, (2017) AIR SC 2617, the Hon'ble Supreme Court held in Para 18, 21 & 22 as under :- “18. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 , this Court held that : 12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the Accused who committed the crime. There must he something more establishing connectivity between the Accused and the crime. Mere non-explanation on the part of the Appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. 15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the Appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the Accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan, (2010) 15 SCC 588. In Arjun Marik v. State of Bihar, (1994) Supp2 SCC 372 this Court held that: 31. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan, (2010) 15 SCC 588. In Arjun Marik v. State of Bihar, (1994) Supp2 SCC 372 this Court held that: 31. Thus the evidence that the Appellant had gone to Sitaram in the evening of 19-7- 1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the Appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the Accused and, therefore, no conviction on that basis alone can be founded. 21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under : 34. It was held in the above judgment as under : 34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the Accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the Accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the Accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot he said that the evidence of last seen together is to be rejected merely because the time gap between the Accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such Accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the Accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case. 22. Due to the lack of chain of circumstances which lead to the only hypothesis of guilt against the accused, we set aside the judgment of the High Court and acquit the Appellants of the charges of Section 302, 201 read with 34 Indian Penal Code. The Appellants are directed to be set at liberty forthwith, if not required in any other case.” 22. The statement of P.W. 23 Dr. Sanjeev Buri and the postmortem report (Ex.P/14), of course, suggested that the death of the deceased Ratan Lal was caused by strangulation but in the absence of satisfactory proof regarding the identity of the culprit(s), the prosecution cannot merely get supported by the statement of the doctor P.W. 23 and the postmortem report (Ex.P/14) for sustaining the conviction of the accused-appellants in the present case. 23. 23. The information of the place of incident (Ex.P/20) and the recovery of stone slabs leads us nowhere as the place of recovery of the dead body of deceased Ratan Lal was already within the knowledge of the police as informed by Shaitan Singh on 19.09.2010 itself and the recovery of stone slabs is absolutely inconsequential in the present case as the place from where the stone slabs were recovered was an open place near the water tank situated in the center of the village and therefore, there is nothing specific or unusual about it. 24. The recovery of motor-cycle on the information given by the accused-appellant Radheshyam vide Ex.P/22 does not lead us to believe that it had any bearing in the matter as nothing has come on record which shows that the motor-cycle on which the deceased Ratan Lal was seen, was the same as recovered from the accused by the investigation agency. Merely the recovery of motor-cycle on the information given by the accused-appellant Radheshyam cannot form the basis of conviction of the accusedappellants in the present case. 25. As far as the conviction of the accused-appellants with the aid of Section 34 of I.P.C. is concerned, there is nothing on record which shows that the accused-appellants had meeting of minds and in furtherance of their common intention, a conspiracy was hatched to murder Ratan Lal. In the absence of any material evidence, the charges alleged against the accused-appellants with the aid of Section 34 of I.P.C. have not been proved beyond all reasonable doubt by the prosecution in the present case. 26. In view of the above discussion, we find that the chain of circumstances is not so complete so as to lead to the irrefutable conclusion that the appellants and none else are the only persons who committed the offences alleged. The benefit of doubt is required to be given to the accused-appellants as the prosecution was not able to prove the alleged charges against the accused-appellants beyond all reasonable doubt. 27. Our view gets fortified from the observations made by the Hon'ble Supreme Court in the case of Navaneethakrishnan Vs. The State by Inspector of Police (Criminal Appeal No. 1134 of 2013) decided on 16.04.2018. 27. Our view gets fortified from the observations made by the Hon'ble Supreme Court in the case of Navaneethakrishnan Vs. The State by Inspector of Police (Criminal Appeal No. 1134 of 2013) decided on 16.04.2018. The relevant Para 23 of the judgment is reproduced as under :- “23) The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove.” 28. Thus, in view of whatever stated above, the judgment dated 06.04.2015 passed by the trial court is not sustainable and deserves to be quashed and set aside. 29. Resultantly, both the appeals are allowed. The impugned judgment dated 06.04.2015 passed by the learned Additional Sessions Judge No. 4, Bikaner in Sessions Case No. 49/2012 is hereby quashed and set aside. Thus, in view of whatever stated above, the judgment dated 06.04.2015 passed by the trial court is not sustainable and deserves to be quashed and set aside. 29. Resultantly, both the appeals are allowed. The impugned judgment dated 06.04.2015 passed by the learned Additional Sessions Judge No. 4, Bikaner in Sessions Case No. 49/2012 is hereby quashed and set aside. The appellants Radheshyam and Asha Devi are acquitted of the charges for the offences under Sections 302/34, 120-B & 201/34 of IPC. The accused-appellants are in custody. They shall be released from prison forthwith if not wanted in any other case.