JUDGMENT Birendra Kumar, J. - The three appellants named above faced trial in sessions case No. 89/2013 arising out of FIR No. 123/2013 registered with Police Station Laxmangrh, Sikar. Learned trial Judge by the impugned judgment and order dated 30.06.2016 found all the appellants guilty for offence under Section 302 read with Section 34 and 120B IPC as well as for offence under Section 201 IPC. Rigorous imprisonment for life alongwith fine of Rs. 5,000/- was awarded for offences under Section 302 read with Section 34 and 120B IPC and in default of payment of fine, two months rigorous imprisonment was ordered. For offence under Section 201 IPC, seven years rigorous imprisonment alongwith fine of Rs. 2,000/-was awarded and in default of payment of fine, one month's rigorous imprisonment was ordered. Appellant Vijay Prakash @ Birju was further convicted under Section 182 IPC and six months simple imprisonment alongwith fine of Rs. 1,000/- was awarded and in default of payment of fine, 15 days simple imprisonment was ordered. 2. The prosecution case as disclosed in the written report dated 04.04.2013 submitted by appellant Vijayprakash @ Birju is that in the evening of 03.04.2013, his father was in the village, however in the morning of 04.04.2013, the informant got information that dead body of his father is laying at the Laxmangarh Beead. The informant suspected that FIR named seven persons who are agnates of informer would have committed murder of his father as they had attacked the house of informant in the past also for property dispute. 3. For proper appreciation of the case, it would be apt to look at the genealogy of family of parties. One Jhabar had three sons namely Kana Ram, Kesar Dev and Mahaveer. Mahaveer is victim of murder in this case. Appellant Vijay Prakash is son of Mahaveer, appellant Sohni Devi is wife of Mahaveer and appellant Ramswaroop is brother of Sohni Devi. The FIR named accused persons Kana Ram and Kesar Dev are brothers of the deceased. Bhagirath and Subhash are sons of Kana Ram and Kaushalya Devi is daughter of Kana Ram and FIR named accused Mahipal is son of accused Kesar Dev. 4. The written report of appellant Vijay Prakash was submitted to the police at the place where dead body of Mahaveer was found. Bhagirath and Subhash are sons of Kana Ram and Kaushalya Devi is daughter of Kana Ram and FIR named accused Mahipal is son of accused Kesar Dev. 4. The written report of appellant Vijay Prakash was submitted to the police at the place where dead body of Mahaveer was found. The written report was sent for registration of police case and the dead body, after panchnama, was sent for post mortem examination and after post mortem examination, the dead body was handed over to appellant Vijay Prakash for cremation and cremation was performed by Vijay Prakash. 5. On 04.04.2013 itself, FIR named accused Kana Ram submitted a written complaint to the police alleging therein that Kana Ram suspects that murder of Mahaveer was committed by his wife Sohni Devi, son Vijay Prakash and Sanjay S/o Omkar as these accused were in litigation with the deceased. On completion of investigation, the police found that in fact, the appellants were involved in murder of Mahaveer. 6. The prosecution case is based on circumstantial evidence. The prosecution has examined altogether 24 witnesses, produced several documents and materials which are exhibited. The defence has not produced any evidence. 7. Out of 24 prosecution witnesses, PW-1 Ganpat Singh, PW-2 Banwari Lal, PW-4 Ramgopal, PW-5 Harphool Singh, PW-14 Richpal Singh, PW-15 Mahaveer Prasad, PW-16 Manoj Kumar, PW-17 Rajneesh Poonia, PW-18 Sanwar Mal, PW-19-Girdhari Lal Meena, PW-20, Jagdish Prasad and PW-23 Bhanu Choudhary are formal witnesses who have either proved the documents or witnessed the seizure made in the case during investigation. PW-21 is a hostile witness. 8. PW-3 Dr. Gangadhar Tholad had performed the post mortem examination. The doctor found multiple crushed wounds at the right parital region-Ribs of both sides had multiple fractures. Crushed wound was there at left illiac fossa and crushed and penetrating wound at the right lumber besides other crushed wounds. The penetrating wound was caused by the glass piece of the bottle of wine. PW-24 Surendra Singh is the investigating officer of the case. PW-6-Kesar Dev is FIR named accused. PW-7 Tiju Devi is mother of FIR named accused Kesar Dev and Kana Ram. PW-12 Dharampal is son of PW-6 and PW-11 Vinod Devi is wife of PW-12. PW-22 Rajendra Kumar is brother of Tiju Devi and PW-13 Sachin Kaushik is business helper of PW-22 Rajendra Kumar. PW-6-Kesar Dev is FIR named accused. PW-7 Tiju Devi is mother of FIR named accused Kesar Dev and Kana Ram. PW-12 Dharampal is son of PW-6 and PW-11 Vinod Devi is wife of PW-12. PW-22 Rajendra Kumar is brother of Tiju Devi and PW-13 Sachin Kaushik is business helper of PW-22 Rajendra Kumar. As such, these witnesses are interested and partisan witnesses, therefore their evidence requires scrutiny with great care and caution. 9. The prosecution has relied upon the following circumstances (a) The appellants had motive to commit murder of Mahaveer for property dispute as Mahaveer had sold the property to his nephew Subhash. (b) Appellants Vijay Prakash and Ramswaroop were last seen alongwith the deceased in the mid night and dead body was found in the early morning on 04.04.2013. (c) Appellant Vijay Pakash was arrested by the police when he had gone to police station, vide statement of PW-4 and Exhibit P/5. Vijay Prakash confessed before the police while in police custody that he had committed murder of his father by crushing him under the wheels of four wheeler. Thereafter appellant Vijay Prakash disclosed the place where the four-wheeler was hidden. Then the four wheeler was recovered. Appellant Vijay Prakash further disclosed the place where he had hidden the gloves used at the time of incident and gloves were also recovered. From the fourwheeler, purse of the deceased having 10 Rs. note and identity card was also recovered. The prosecution has relied on these corroborative evidences also to support the completion of chain of circumstances. Learned trial Judge believed the prosecution case on the aforesaid material and recorded conviction. 10. Learned counsel for the appellants contends that there is evidence on record regarding enmity between the appellants and the prosecution witnesses which has been relied upon by the prosecution itself. Likewise, there is evidence on record that deceased was not pulling well with his wife and both had lodged cases against each other. Wife had brought a case for maintenance under Section 125 Cr.P.C. as well as a case under Domestic Violence Act whereas the husband had filed a civil case for injunction against the wife appellant from selling out immovable property. Counsel submits that enmity cuts both ways, hence chances of false implication by taking the police under influence cannot be ruled out. Counsel submits that enmity cuts both ways, hence chances of false implication by taking the police under influence cannot be ruled out. Counsel for the appellants next contends that in fact, there is no credible evidence at all that appellants were last seen along with the deceased, before death, rather evidence of prosecution witnesses, is confronted with the evidence of PW-8 Arun Kumar who is an independent witness and not a hostile witness. Learned counsel contends that learned trial Judge failed to appreciate that Kana Ram was not produced as prosecution witness hence written report vide P-67 dated 04.04.2013 was not established which was basis of submission of charge-sheet against the appellants. Learned counsel contends that statement before the police while in police custody cannot be proved in evidence in view of specific bar contained in section 25 and 26 of Indian evidence Act. The evidence as regards recoveries at the instance of appellant Vijay Prakash is just of corroborative nature and cannot be the sole basis for conviction. Learned counsel submits that there is complete lack of evidence on prior meeting of mind amongst the appellants or hatching of a criminal conspiracy by the appellants, therefore conviction with the aid of Section 34 or Section 120B IPC is completely misconceived. Learned counsel contends that ingredients of offence under Section 201 IPC does not found established in this case hence conviction was recorded on conjecture and surmises. Likewise the police (PW-24), has not deposed before the court that after investigation, it found that appellant knowingly gave a false information intending thereby to cause or knowing it to be likely that he will thereby cause, such public servant to act in the manner as mentioned in Section 182 IPC. 11. Learned State counsel as well as learned senior counsel for private respondent contends that there is overwhelming evidence on record to support that the appellants had motive to commit murder of Mahaveer. Obviously for the reason that after Sohni Devi sold some of the properties, Mahaveer also sold the property in his name in favour of Subhash S/o Kana Ram and for that appellants had serious grudge against Mahaveer. Learned counsel contends that only for the witnesses being relatives, their testimony cannot be discarded, rather requires careful scrutiny. Obviously for the reason that after Sohni Devi sold some of the properties, Mahaveer also sold the property in his name in favour of Subhash S/o Kana Ram and for that appellants had serious grudge against Mahaveer. Learned counsel contends that only for the witnesses being relatives, their testimony cannot be discarded, rather requires careful scrutiny. The appellants except Sohni Devi were seen along with the deceased in the late night and the recovery of vehicle and other items on disclosure of the appellant Vijay Prakash corroborates that in fact, the appellants have committed murder of Mahaveer under a conspiracy. 12. The law is well settled that where prosecution case entirely rests on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstance are found to be incompatible with the innocence of accused or the guilt of any other person. The circumstance relied upon by the prosecution must be duly proved and they must form complete chain pointing to the guilt of accused and excluding every hypothesis of innocence of accused. Motive 13. PW-6 Kesar Dev deposed that since Mahaveer had sold his two plots in favour of Subhash S/o Kana Ram, his wife and son having grudge against Mahaveer. In the evening of 03.04.2013, when Mahaveer returned to his house, Sohni Devi had quarrel with him and abused him. In the evening, Ramswaroop and Vijay Prakash had gone on a four wheeler and in the morning only Vijay Prakash had returned alongwith his vehicle. The cross examination of this witness would reveal that he had not made such statement under Section 161 Cr.P.C. The witness was confronted and attention of the police witness PW-24 was also drawn on this issue. PW-7 Tiju Devi, mother of PW-6 deposed that since Mahaveer had sold his plots to Subhash, there was quarrel in his family with his wife and son. The wife and son threatened him not to allow him to be in peace. In the evening, Vijay Prakash and Ramswaroop left the house on a vehicle and in the morning, they returned back. The witness was confronted with police statement and attention of the police has also been drawn to that. PW/11 and 12, the husband and wife, deposed that at 9.00 PM on the date of incident they heard the appellants talking that since Mahaveer has destroyed the property he should be finished. The witness was confronted with police statement and attention of the police has also been drawn to that. PW/11 and 12, the husband and wife, deposed that at 9.00 PM on the date of incident they heard the appellants talking that since Mahaveer has destroyed the property he should be finished. However, these witnesses have admitted that they did not make such statement to the police or to any other witness after the occurrence. Since these witnesses are interested witnesses, their testimony is not consistent with their earlier statements, therefore it cannot be believed. Exhibit P-85 is an application under Section 125 Cr.P.C. filed by appellant Sohni Devi on 12.05.2008 against her husband Mahaveer. Ex. P-86 is a suit for injunction brought by Mahaveer on 23.07.2008. Ex.P-87 is a case of domestic violence filed by Sohni Devi against her husband and PW-6, PW-7, as well as other in-laws including Kana Ram and Subhash on 15.12.2006. Ex.P-81 is an application of Mahaveer to the S.P. of the District dated 17.08.2007 complaining against Sohni Devi and on the basis whereof a proceeding under Section 107 Cr.P.C. was drawn subsequently vide ex.P/82. The aforesaid documents show that there were old differences between husband and wife however that cannot lead to an irresistible conclusion on motive for murder, as in the event of murder of Mahaveer, Sohni could not have got maintenance for which she was fighting since years. 14. The record shows that Sohni Devi had lodged two criminal cases against the FIR named accused persons. One was FIR No. 299/2008 registered with Kotwali police station dated 16.07.2008 and another was with Laxmangarh Police station FIR No. 45/2007 dated 23.02.2007. Though the police had already submitted negative report in the above cases stating a case of property dispute between the parties, however the documents show grudge on the part of the agnates also to falsely implicate the appellants; pendency of domestic violence case on the date of incident fortifies the chances of false implication. 15. PW-22 Rajendra Kumar stated that Mahaveer used to complain that his son (Appellant Vijay Prakash) had gone into association with anti-social elements and he might commit his murder. 15. PW-22 Rajendra Kumar stated that Mahaveer used to complain that his son (Appellant Vijay Prakash) had gone into association with anti-social elements and he might commit his murder. This witness is not a hostile witness rather relative of prosecutors, hence accused can rely upon the evidence of this witness to make prosecution claim doubtful that motive for commission of murder against the appellants was sale of property by Mahaveer to Subhash. In the result, we are of the view that the prosecution had failed to prove and establish that only the appellants had motive to commit murder of Mahaveer rather other materials available on record would go to suggest that the agnates who had deposed against the appellant had greedy eye on the property of Mahaveer after disqualification of appellants from inheritance/succession on the property of Mahaveer as murderers are disqualified to inherit as per law. Last Seen 16. PW-8 Arun Kumar, PW-10 Narendra Kumar, PW-13 Sachin Kaushik and PW-22 Rajendra Kumar are prosecution witnesses, on 'last seen'. PW-8 deposed that in the night at about 12.30 am on 03.04.2013 at his tea stall near Kalyan circle, Sikar, Rajendra Bhukkad (PW-22) and Narendra Kumar owner of Satyam Hotel (PW-10) and helper Sachin (PW-13) alongwith deceased Mahaveer had come. Rajendra had ordered for tea and Mahaveer was inebriated with liquor. All took tea then Mahaveer asked for money from Rajendra, Rajendra gave two 10 Rs. notes which Mahaveer torn away. Thereafter Narendra and Sachin went away, Rajendra asked Mahaveer to go home but Mahaveer refused then Rajendra also left for his house. 10 to 15 minutes, thereafter, Mahaveer also walked away towards court-side. 17. PW-8 is not a hostile witness. In Raja Ram Vs. State of Rajasthan reported in 2005 (5) SCC 272 Hon'ble Supreme Court said that 'if a witness is not declared hostile by prosecution, the defence can rely upon evidence of such witness and it would be binding upon the prosecution.' 18. Evidently, according to PW-8, the appellants were not there at the referred time, moreover other witnesses PW-10 Narendra Kumar, PW-13 Sachin Kaushik and PW-22 Rajendra Kumar had already left the place 10-15 minutes prior to Mahaveer walked towards court-side. Therefore, if these witnesses PW-10,13 and 22 make some contrary statement, not made before the police during investigation, that would loose its evidentiary value being in contradiction with the prosecution evidence of PW-8. Therefore, if these witnesses PW-10,13 and 22 make some contrary statement, not made before the police during investigation, that would loose its evidentiary value being in contradiction with the prosecution evidence of PW-8. On consideration of the evidence on record, we are of the view that the prosecution has failed to establish that the appellants were last seen along with the deceased. 19. The doctor has deposed that he was not of definite opinion that death was caused in a road rage for the reason that in road accidents, glass pieces are not found in the body of the deceased. The aforesaid statement is based on conjectures without considering the fact that since the deceased was in inebriated condition and was asking for money from PW/22, it cannot be ruled out that he would have produced the bottle of wine and was carrying the same at the time of accident. The forensic experts were not sure that the ceased gloves were having blood of the same group which was of the deceased. The witnesses who saw the appellant Vijay Prakash returning to his house on the same vehicle in the morning did not notice any blood on the vehicle or its wheels nor the soil taken from the wheels were sent for forensic examination. These lapses in the prosecution case cannot be ignored coupled with other circumstances of the case. There is prosecution evidence on record that deceased was inebriated in the night at 12.30 am on 03.04.2013. He had consumed liquor as per PW-8, 10 and 13. PW-22 has gone to the extent that Mahaveer was in heavy intoxication at that time, the evidence that Mahaveer was inebriated and at the time of his death, a bottle of wine was also found at the place of incident and some glass of the wine bottle was found pierced in to the body of Mahaveer, chances of his otherwise death in road accident cannot be completely ruled out in view of the nature of injuries found by the Doctor (PW-3). The Investigating Officer PW/24 is specific that telephonic information was received at the police station that a dead body is lying at the place, thereafter Mr. Mohanlal officer on duty at Police Station rushed to the place of the dead body and he remained there till arrival of PW/24. The Investigating Officer PW/24 is specific that telephonic information was received at the police station that a dead body is lying at the place, thereafter Mr. Mohanlal officer on duty at Police Station rushed to the place of the dead body and he remained there till arrival of PW/24. Neither Mohanlal was examined by the prosecution nor the Roznamcha was produced which could have revealed regarding nature of information received by the police about the incident. Mr. Kana Ram did not appear in the witness box to support his report submitted to the police. The aforesaid lapses creates further doubt on the prosecution version. 20. The materials available on the record suggest that the prosecution failed to establish that only the appellants had motive for commission of murder of Mahaveer, rather evidence suggests chances of false implication, due to greed of agnates witnesses over the property of Mahaveer, as murderers are disqualified to succeed as such false implication cannot be completely ruled out. There is conflicting evidence on last seen circumstance put forward by the prosecution, therefore prosecution evidence is doubtful in this regard also. The statement made by accused before the police while in police custody cannot be proved in evidence in view of the bar under Section 25 and 26 of Indian Evidence Act nor can it be relied upon by prosecution. The recoveries made in the case at the instance of one of the appellant would have some corroborative value only when the prosecution could have proved and established other parts of the chain of circumstances i.e. motive and last seen. There is complete lack of evidence on prior meeting of mind of the accused person or of hatching a conspiracy or of being involved in screening the evidence of crime. Therefore, conviction under these heads is also unwarranted. Learned trial Judge has failed to appreciate that the prosecution failed to establish a complete chain of circumstances excluding any hypothesis of innocence of accused or some other persons committing the crime. Doctor has found crushed injuries besides fracture of different ribs, hence chances of otherwise accidental death in road rage cannot be completely ruled out. 21. For the aforesaid reason, we are of the view that prosecution has failed to prove charges against appellants beyond doubt as such giving benefit of doubt to the appellants. Doctor has found crushed injuries besides fracture of different ribs, hence chances of otherwise accidental death in road rage cannot be completely ruled out. 21. For the aforesaid reason, we are of the view that prosecution has failed to prove charges against appellants beyond doubt as such giving benefit of doubt to the appellants. The impugned judgment and order are hereby set aside and these appeals are allowed. 22. Appellant Sohni Devi is already on bail. Bail bonds earlier furnished by appellant Sohni Devi in Criminal Appeal No.842/2016 be treated cancelled. Other two appellants be released forthwith in this case. 23. Appellants are directed to furnish a personal bond of Rs. 50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy registrar (Judicial) within two weeks from the date of release, to the effect that in the event of filing of Special Leave petition against this judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bonds will be effective for a period of six months.