JUDGMENT : Goutam Bhaduri, J Heard. 1. This criminal appeal preferred by the appellants under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 20/01/2020 passed by the Fifth Additional Sessions Judge, Ambikapur, District-Surguja, C.G. in Sessions Trial No.21/2017 whereby Akhilesh Vishwakarma (A/1) & Ramesh Dewangan (A/2) have been convicted and sentenced as under:- Conviction Sentence Under Section 302/34 of IPC For life imprisonment and fine of Rs.1000-1000/-, in default of payment of fine 6-6 months additional imprisonment Under Section 201/34 of IPC R.I. for 3-3 Years and fine of Rs.1000-1000/-, in default of payment of fine 1-1 month additional R.I. Whereas Ramesh @ Guddu Vishwakarma (A/3) and Usha Vishwakarma (A/4) have been convicted under Section 201/34 of IPC and sentenced to undergo R.I. for 3-3 Years and fine of Rs.1000-1000/-, in default of payment of fine 1-1 month additional R.I. 2. The prosecution case, in brief, is that the dead body of deceased Karamdev Vishwakarma was found on 30/10/2016 at a place known as Kawalpara. Gaurishankar Vishwakarma (PW-2), who lodged the report stated that his uncle, the deceased, went to recover his dues of loan on 29/10/2016 and did not return back. Thereafter, the dead body was subjected to postmortem and it was reported that the death was homicidal in nature and the accused persons were apprehended as they had a monetary dispute in between them. The allegation was that the deceased had advanced money to the accused persons and was demanding it back. The accused having enraged by such demand hatched a plan, called the deceased to a particular place, consumed liquor and thereafter caused the suffocation by muffler and by assault on his abdomen by a screwdriver. The prosecution based its case on last seen theory as also recovery of the articles and extra judicial confession. 3. During the course of trial, the prosecution examined as many as 20 witnesses and exhibited 59 documents. The learned Sessions Judge after evaluating the facts & evidence convicted and sentenced the accused persons as aforesaid. Hence this appeal. 4. Ms. Priyanka Rai, learned Amicus curiae leading the arguments duly assisted by Shri R.V. Rajwade and Shri Keshav Prasad Gupta, learned counsel for the appellants would submit that the learned Sessions Judge has convicted the accused only on presumption. Hence this appeal. 4. Ms. Priyanka Rai, learned Amicus curiae leading the arguments duly assisted by Shri R.V. Rajwade and Shri Keshav Prasad Gupta, learned counsel for the appellants would submit that the learned Sessions Judge has convicted the accused only on presumption. She would further submit that there is no direct evidence or the circumstantial evidence which has connected the spot, to come to an irresistible conclusion about assault made by Akhilesh Vishwakarma (A/1) & Ramesh Dewangan (A/2). She would further submit that the last seen theory is further negated by the own evidence of the prosecution as from the spot certain incriminating articles were seized i.e. the liquor bottle and glasses but finger prints did not match, therefore, it would destroy the last seen theory and in absence of any evidence about the seizure, inasmuch as, the seizure witness have not supported the prosecution case, the conviction cannot be made. She would further submit that the FSL report is also inconclusive about the group of blood resulting into the fact that benefit of doubt holds to head high in acquittal. She placed her reliance in the cases of Sharad Birdichand Sharda Vs. State of Maharashtra { AIR 1984 SC 1622 } and Ramesh Bhai & another Vs. State of Rajasthan { (2009) 12 SCC 603 }. 5. Per contra, learned State counsel, on the other hand, opposes the arguments advanced by learned counsel for the appellants and would submit that the motive in this case has been proved beyond the reasonable doubt as the accused persons were reluctant to return the money which they had received from the deceased and having demanded back the same, they hatched a plan, called the deceased to a particular spot and suffocated him to death by a muffler on his neck. He would further submit that the assault on the abdomen was also caused by Screwdriver which was seized at the instance of the accused, therefore, no explanation has been provided as to how the blood came into such article, which would lead to irresistible conclusion about the commission of offence even in absence of any eye witness. The learned Sessions Judge was justified to convict the accused persons, therefore, the order is well merited which do not call for any interference. 6. We have heard learned counsel for the parties and perused the record. 7. The learned Sessions Judge was justified to convict the accused persons, therefore, the order is well merited which do not call for any interference. 6. We have heard learned counsel for the parties and perused the record. 7. According to the postmortem report the death of the deceased was homicidal in nature and after the dead body of Karamdev Vishwakarma was spotted it was sent for postmortem wherein the following injuries were found:- External Injuries:- Multiple punctured wound over epigastric region of abdomen, above left nipple single & medial side of left knee single of size 0.5 cm in diameter with depth 0.5 cm to 2 cm. Ligature mark:- Muffler removed from neck from above thyroid cartilage & over thyroid cartilage to back of neck to from up to thyroid cartilage horizontal encircling neck depression like and echymosis present irregular 30cmx2-3cm. Lacerated wound Right side oxyput 2cmx1cm oblique contusion -Left zygomatic region lateral to eye 3x1 cm in size. Lacerated wound right Pinna anteriorly horizontal with cartilage cut 2cmx0.5 cm. Contusion right mastoid region. 8. The cause of death was asphyxia and shock due to strangulation and injury to the vital organs and was within 24 hours from the date of examination i.e. 30/10/2016. The merg intimation was given by the nephew of the deceased Gaurishankar Vishwakarma (PW-2) vide Ex. P/8. According to him, the deceased went on his motorcycle on 29/10/2016 to get back his money which he had lent but he did not return and subsequently his dead body was found. After the accused were apprehended, as per the memorandum of Ramesh Dewangan (A/2) a Hero CD Delux Motorcycle bearing registration No.CG15-CB-2866 was seized vide Ex. P/13 and the place of recovery has been shown at village Savtar particulars have not been shown. 9. Gaurishankar Vishwakarma (PW-2) at para 7 of the cross-examination states that no seizure of any article was made from Ramesh Dewangan. He never went to the village Satvar. He further states that no articles were also seized from any accused before him. Gaurishankar Vishwakarma (PW-2) interestingly is nephew of the deceased but he too has not supported the seizure thereby the prosecution. 10. He never went to the village Satvar. He further states that no articles were also seized from any accused before him. Gaurishankar Vishwakarma (PW-2) interestingly is nephew of the deceased but he too has not supported the seizure thereby the prosecution. 10. The other witness Jitendra Vishwakarma (PW-6) has also not supported the case of the prosecution and the witness was declared hostile and even in cross-examination, nothing was elucidated to support the fact that the vehicle of the deceased was seized at the instance of the accused. 11. Likewise, Akhilesh Vishwakarma (A/1) who along with other accused Ramesh Dewangan (A/2) went on their motorcycle bearing registration No.C.G.15-CC-4446 gave his memorandum vide Ex. P/25 and thereafter the seizure was made vide Ex. P/19 in respect of the motorcycle bearing registration No.C.G.15-CC-4446. The seizure witness Vijay Vishwakarma (PW-4) & Kamlesh Vishwakarma (PW-16) have not supported such seizure and nothing has been elucidated in the cross-examination to support the same. Even by seizure of motorcycle no conclusion or inference can be drawn. 12. The articles including the cash of Rs.300/- and the screwdriver without the head length 6.5 inches, red black colour micromax mobile having two sims with number 8435061481 and 8224025280 were seized vide Ex. P/14. According to the prosecution Kamlesh Vishwakarma (PW-16) who is witness to the memo and seizure this fact was also disclosed that the mobile of the deceased was thrown into a pond named Bouribandh but having searched the same, it was not found. There is no call detail on record to draw in inference as to before the incident took place the accused and the deceased had a talk, which is necessary to draw minimum inference. The seizure of the screwdriver only becomes relevant in such case. Even the statement of the witness to the seizure Gaurishankar Vishwakarma (PW-2) and Jitendra Vishwakarma (PW-6) are sidelined and they have not supported the case of the prosecution. The seizure of the screwdriver only becomes relevant in such case. Even the statement of the witness to the seizure Gaurishankar Vishwakarma (PW-2) and Jitendra Vishwakarma (PW-6) are sidelined and they have not supported the case of the prosecution. The screwdriver was sent for FSL, the FSL report which was filed by the prosecution dated 31/12/2016 shows that bloodstained articles were found i.e. head of the screwdriver, pen, pencil, button, soil with blood, watch, shirt, muffler FSL shows that the soil with blood which was marked as 'E' human blood was found but on the incriminating article i.e. screwdriver marked as 'I' recovered at the instance of Akhilesh Vishwakarma (A/1) presence of blood was shown, however, whether it was human blood it was also not clear that blood was of which blood group. Thus, in absence of any evidence of specification of blood group or conclusion that it was human blood on such incriminating article and was used to cause death i.e. the screwdriver, no inference can be drawn in favour of the prosecution. 13. The records further would show that from the spot white cap wherein Blue Russian was written, one blue cap and cigarette wherein Flake-Excel was written were found vide Ex. P/17. One bottle wherein Blue Russian White Vodka and one bottle wherein Blue Russian Orange Vodka were written were seized vide Ex. P/18. The finger print on those bottles were subjected to examination. According to Pramod Kumar Yadav (PW-20) at para 20 he has stated that he had obtained finger print of the accused though there is no documentary evidence on record to support, however, even if the statement of Pramod Kumar Yadav (PW-20) is believed that such finger prints were obtained that of the accused and was sent for finger print expert report. Finger print expert report (Ex. P/58) shows that the finger print of the accused with the articles seized from the spot according to the prosecution were unidentical. 14. In such circumstances, when it was the case of the prosecution that the accused was last seen in the company of the deceased and they went together, consumed alcohol and thereafter was killed vide Ex. P/58 wherein finger print has been shown to be unidentical, the theory of last seen together itself is being superseded by the own opinion of the prosecution. P/58 wherein finger print has been shown to be unidentical, the theory of last seen together itself is being superseded by the own opinion of the prosecution. Meaning thereby the prosecution evidence the theory that the accused and the deceased were got separated. Statement of Deepak Kumar (PW-5) by which the prosecution tried to develop the story of last seen together in the cross-examination this fact is negated and he has stated at para 4 in the cross-examination that the deceased alone went on his motorcycle. 15. The Supreme Court in the matter of Jagroop Singh Vs. State of Punjab { (2012) 11 SCC 768 } has held thus in paragraphs 12, 13, 14 & 15 which is reproduced hereunder:- “12. In Sharad Birdhichand Sarda v. State of Maharashtra [ (1984) 4 SCC 116 ] a three-Judge Bench has laid down five golden principles which constitute the “panchsheel” in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra [ 1973 2 SCC 793 ], it was opined that it is a primary principle that the accused “must be” and not merely “may be” guilty before a Court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that 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; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that 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. 13. 13. In Padala Veera Reddy v. State of Andhra Pradesh and others [1989 Supp (2) SCC 706], this Court held that when a case rests upon circumstantial evidence,the following tests must be satisfied: “10.........(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.” A similar view has been reiterated in Ramreddy Rajesh Khanna Reddy and another v. State of A.P.[ (2006) 10 SCC 172 ]. 14. In Balwinder Singh v. State of Punjab [1995 Supp(4) SCC 259], it has been laid down: “4. ........that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.” 15. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.” 15. In Harishchandra Ladaku Thange v. State of Maharashtra [ (2007) 11 SCC 436 ], while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasised that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.” 16. Further the Supreme Court in the matter of Pradeep Kumar Vs. State of Chhattisgarh { (2023) 5 SCC 350 } has observed thus in para 27:- 27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to accused must be adopted. 17. When the case is entirely based upon the circumstantial evidence, the chain of such circumstantial evidence in all probabilities 'must' indicate towards guilt of accused and circumstances 'must be' and not 'may be' lead towards guilt of accused. 18. Applying the aforesaid principles in the facts of this case, we are of the view that the prosecution has failed to prove the guilt of Akhilesh Vishwakarma (A /1) & Ramesh Dewangan (A/2) beyond the reasonable doubt and the case of the prosecution itself has negated the theory by their own evidence on record. Hence their conviction under Section Under Sections 302/34 & 201/34 of IPC deserve to be set aside. 19. Hence their conviction under Section Under Sections 302/34 & 201/34 of IPC deserve to be set aside. 19. Further, in respect of Ramesh @ Guddu Vishwakarma (A/3) & Usha Vishwakarma (A/4) also, the main ingredients having not been proved as there is no evidence on record to show that they tried to conceal the evidence so as to warrant conviction under Section 201/34 of IPC and the same also deserves to be set aside. 20. Accordingly, we allow the appeal and set aside the impugned judgment dated 20/01/2020. Appellants stand acquitted of the charges under Section 302/34 & 201/34 IPC. Appellants Akhilesh Vishwakarma (A / 1) & Ramesh Dewangan (A/2) are reported to be in jail, they be set at liberty forthwith if not required to be detained in any other case. Appellants Ramesh @ Guddu Vishwakarma (A/3) & Usha Vishwakarma (A/4) are reported to be on bail, their bail bonds stands cancelled and the sureties stand discharged.