JUDGMENT : (Ajai Tyagi, J.) : 1. By way of this appeal, the appellant-Ashok Kumar Jatav has challenged judgement and order dated 16.02.2010 passed by Special Judge (E.C. Act) Farrukhabad in Session Trial No.430 of 1996 (State Vs. Ashok Kumar) arising out of Case Crime No.561 of 1996 under Section 302 of IPC, Police Station-Kotwali Fatehgarh, District-Farrukhabad, by which the appellant was held guilty under Section 302 of IPC and sentenced for imprisonment for life and fine of Rs.5,000/-with one year imprisonment in default. 2. The brief facts of the case as culled out from the record and proceedings and the FIR are that a written report was submitted at police station Kotwali Fatehgarh by the brother of the deceased-Ayodhya Prasad on 05.07.1996 averring that his deceased brother was driver of Sudhanshu Agrawal for the last 1-1/2 -2 years. Accused Ashok Kumar was also driver with the same employer. Sudhanshu Agrawal used to give more importance to the deceased and usually used to take with him out of station, which was the reason of extra income for the deceased. The accused was jealous of him due to the said reason. It is also averred in the written report that the deceased was in the habit of drinking liquor and since the accused and deceased both were with the same employer, hence, they used to visit each other’s house for regular drinking. It is further stated that before some days his deceased brother and accused Ashok had stolen the stepny of the vehicle of their employer and sold it somewhere. When the employer got the knowledge of this fact then, the accused said to the deceased and his wife Munni Devi that they can contribute to Rs.1,500/-. Last night on 04.07.1996 at about 9:30 pm, accused Ashok Kumar and his deceased brother came in ricksaw to the house of the deceased having four pouches of liquor and told the wife of the deceased Munni Devi that they were going to Delhi and went back by the same ricksaw. At about 1:30 am (night) Ashok brought his deceased brother in the ricksaw to his house and told Munni Devi that he is over drunk and would be alright after some time. There was a cloth (Angauchha) all around his neck and he was laid on a cot by Ashok and ricksaw puller. At about 1:30 am (night) Ashok brought his deceased brother in the ricksaw to his house and told Munni Devi that he is over drunk and would be alright after some time. There was a cloth (Angauchha) all around his neck and he was laid on a cot by Ashok and ricksaw puller. Munni Devi at once saw the condition of his husband and found that he was in dead position. She made a noise. The children at home woke up. Ashok ran away in the same ricksaw. Lastly, it is mentioned that Ashok Kumar Jatav had killed his brother somewhere-else and had brought him to his house. 3. On the basis of written report, a first information report was lodged at Police Station-Kotwali Fatehgarh and investigation was taken up by S.I. Prem Narain Mishra. During the course of investigation, the investigation officer recorded the statement of witnesses, visited the spot and prepared site-plan. Inquest report of the deceased was prepared and the body was sent for post mortem, which was conducted by doctor and post mortem report was prepared. I.O. recovered Augauchha from the neck of the deceased and recovery memo was prepared. After completion of the investigation a charge sheet was submitted against the accused Ashok Kumar Jatav under Section 302 IPC. 4. Learned trial Judge framed charge against the accused for commission of offence under Section 302 of IPC. 5. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charge, examined seven witnesses, who are as under:- 1 Munni Devi P.W.1 2. Ajay Kumar P.W.2 3. Shiv Prasad P.W.3 4. Constable Indrajeet Singh P.W. 4 5. Dr. Saket Mohan Singh P.W. 5 6. S.I. Prem Narain Misra P.W. 6 7. Sanjeev Kumar P.W. 7 6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence: 1. F.I.R. Ext. Ka-1 2. Written report Ext. Ka-14 3. Recovery memo of Angauchha Ext. Ka-9 4. Post mortem report Ext. Ka-3 5. Inquest report Ext. Ka-4 6. Charge Sheet Ext. Ka-13 7. Site-plan Ext. Ka-8 8. Site-plan Ext.Ka-12 7. After completion of prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C, in which the accused denied his involvement in the crime and told that false evidence led against him. The accused has not examined any witness in defence. 8. Inquest report Ext. Ka-4 6. Charge Sheet Ext. Ka-13 7. Site-plan Ext. Ka-8 8. Site-plan Ext.Ka-12 7. After completion of prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C, in which the accused denied his involvement in the crime and told that false evidence led against him. The accused has not examined any witness in defence. 8. Heard learned counsel for the appellant, learned AGA for the State and perused the record. 9. Learned counsel for the appellant has submitted that the accused has been falsely implicated in this case as no one had seen the occurrence and the appellant was implicated only on the basis of suspicion. It is also submitted that as per PW1 Smt. Munni Devi, the deceased and the appellant have come to her house and her son Ajay also saw the fact that the deceased was brought to the house by the accused in dead condition. But Ajay has not supported the prosecution case. According to his version, he was sleeping on the roof of the house and had not seen the accused. Learned counsel for the appellant submitted that there was no motive with the accused to commit the murder of the deceased. 10. Learned counsel for the appellant further submitted that PW2 is the son of the deceased, who had not seen the accused in his house on the fateful night as is transpired from his testimony. Apart from it, PW3 Shiv Prasad is very important witness, who has given a written report in police station on which the case was registered. This witness has also not supported the prosecution case and turned hostile. He has specifically stated that he has not seen the person who has committed the crime. Recovery of plastic rope is also fake and planted. 11. Learned AGA submitted that PW1 Munni Devi has supported the prosecution version. She is eye-witness of the fact. When the deceased was brought to the house, she has stated in her testimony that the deceased was in almost dead condition when the accused brought him to the house and there was cloth all around his neck, which was in tight condition. This evidence is enough to prove the prosecution case. 12. She is eye-witness of the fact. When the deceased was brought to the house, she has stated in her testimony that the deceased was in almost dead condition when the accused brought him to the house and there was cloth all around his neck, which was in tight condition. This evidence is enough to prove the prosecution case. 12. Learned AGA further submitted that a rope was recovered by investigation officer on the pointing out of the accused and at the time of recovery accused admitted the fact that he had committed murder of the deceased with the help of that rope. It is further submitted that ocular evidence is well corroborated by medical evidence also as cause of death is asphyxia as a result of strangulation. 13. It is a case of circumstantial evidence. PW1 is wife of the deceased. She has categorically stated in her evidence that the deceased was a habitual drinker. She has reiterated a motive behind the crime as mentioned in FIR by the brother of the deceased that is regarding to the theft of stepney by the accused and the deceased. But in her testimony as PW1, the wife of the deceased has stated that stepney was stolen by the accused only and the deceased wanted to complain the employer regarding this theft and due to that reason the accused committed murder of her husband. This motive is twisted by PW1 in her statement. It is not with the consonance with the FIR. Moreover, the motive is not so strong that murder could be committed. It is not the case of prosecution that accused and deceased had quarrel on this motive rather it is the version of prosecution that at 9:30 pm both the accused and the deceased came to the house of the deceased and told to the PW1 that they were going to Delhi. So, it cannot be transpired that they had quarrel with each other. After that also nobody has seen them quarreling or having any hot exchanges. So there seems no immediate cause for commission of the crime like murder. Hence, we are of the opinion that the motive in this case is not well established and proved by the prosecution. In the case of circumstantial evidence, motive assumes greater importance, which is not proved by the prosecution. 14. So there seems no immediate cause for commission of the crime like murder. Hence, we are of the opinion that the motive in this case is not well established and proved by the prosecution. In the case of circumstantial evidence, motive assumes greater importance, which is not proved by the prosecution. 14. PW2 Ajay and PW3 Shiv Prasad are also examined by the prosecution. PW2 Ajay is son of the deceased. He has specifically stated that he did not see who brought his father and how he reached to the house, he had not seen with his own eyes. He has further stated that at about 2:00-2:30 am (night), he got the knowledge regarding the death of his father. Hence, the factum of bringing the deceased to his house by the accused at 1:30 am is not corroborated by PW2. 15. PW3 Shiv Prasad is complainant of this case and brother of the deceased. He has admitted in his statement that his brother was habitual drinker. At about 3:00 am (night) Munni Devi called him to her house and told that his brother has been murdered then the reached to the house of the deceased and found him lying on the cot. This witness was declared hostile and the State was given opportunity to cross-examine but in his cross-examination also nothing has come out which could help the prosecution. He has denied his statement u/s 161 Cr.P.C. also. 16. PW5 Dr. Saket Mohan Singh was examined, who had conducted the post mortem on the body of the deceased in which following three ante mortem injuries were found on the body:- (i) Ligature mark 31cm x 1 cm all around the neck at the level of thyroid cartilage (ii) Abrasion 3.5 x 0.5 cm on the chin (iii) Abrasion 2cm x 1.5 cm on the right side of the jaw. The cause of death was stated in the post mortem report as asphyxia as a result of strangulation. 17. Hence, it is established by the prosecution that the death of the deceased had taken place due to strangulation. Now the prosecution case is further twisted because according to the FIR, there was cloth all around the neck of the deceased which was recovered by I.O. and recovery memo was prepared. 17. Hence, it is established by the prosecution that the death of the deceased had taken place due to strangulation. Now the prosecution case is further twisted because according to the FIR, there was cloth all around the neck of the deceased which was recovered by I.O. and recovery memo was prepared. But during the course of investigation, at the time of arrest of accused, a plastic rope was recovered on his pointing out, which is said to be used for strangulation. It also makes the prosecution case suspicious. 18. In the case of circumstantial evidence, we may make a reference to the decision of the Apex Court in C. Chenga Reddy and others Vs. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: "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...." . 19. In Padala Veera Reddy Vs. State of A.P. and Others ( AIR 1990 SC 79 ), it was laid down the the Apex Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 20. In State of U.P. Vs. Ashok Kumar Srivastava (1992 Crl.LJ 1104), it was pointed out by the Apex Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 21. In Hanumant Govind Nargundkar and Anr. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 21. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, ( AIR 1952 SC 343 ), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the 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. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 22. A reference may be made to a later decision in Sharad Birdhichand Sarda Vs. State of Maharashtra, ( AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (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. 23. Keeping in view the aforesaid settled position of law, we have reached to the conclusion that the motive which was established by the prosecution could not be proved. There is no evidence. PW2 and PW3 have also not supported the prosecution case. Two modes of strangulation i.e. one by cloth and another by plastic rope have also made. The manner of strangulation is doubtful. Learned trial court has committed a grave error by placing reliance on the confessional statement of the accused, made to the investigating officer at the time of alleged recovery of the plastic rope on his pointing out. Motive is also wrongly believed by the learned trial court. 24. After the aforesaid discussion, we come to the conclusion that chain of circumstances is not complete in this case, so as to point out the guilt committed by accused only. There is no such evidence on record which could indicate that the offence is committed only by the accused and it could not be committed by anyone-else. Hence, we upturn the finding of trial court and hold that the accused is wrongly convicted and sentenced. Hence, appeal is liable to be allowed. 25. The appeal is accordingly allowed. 26. Conviction and sentence of the accused is set aside. The appellant is reported to be in jail, he is directed to be set free forthwith if not wanted in any other case. 27. Record be sent back to the court below.