JUDGMENT : Sanjay Kumar Jaiswal, J. 1. Invoking jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973, the Appellants herein have preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 18.8.2020 passed by the First Additional Sessions Judge, Katghora, District Korba (Chhattisgarh) in Sessions Trial No.42 of 2019 by which they have been convicted and sentenced as under: Conviction Sentence Under Section 302/149 of the Indian Penal Code Imprisonment for life and fine of Rs.1,000 each, in default of payment thereof, additional rigorous imprisonment for 3 months Under Section 201/149 of the Indian Penal Code Rigorous Imprisonment for 5 years and fine of Rs.1,000 each, in default of payment thereof, additional rigorous imprisonment for 3 months The jail sentences are directed to run concurrently 2. Name of deceased is Sanjay Adil. He was a resident of Village Mangamar, Police Station Dipka. On 30.4.2019, he along with his neighbour Anand Abhishek/Appellant No.5 went to Village Nevsa, Police Station Kusmunda to attend a marriage ceremony of Umarbai, who is sister of Appellant No.1 Lalitram Gond. Sanjay Adil and Umarbai had a love affair. In the intervening night of 30.4.2019 and 1.5.2019, Umarbai came out to badi (fence) to attend the call of nature. Sanjay Adil asked her to leave her house and run away with him. In the meantime, Appellant Anand Abhishek saw them together. He told about this to brother of Umarbai, Lalitram Gond and other Appellants. Then all the Appellants inculcated Sanjay Adil that marriage of Umarbai had been performed and, therefore, he should leave her. On his not agreeing, the Appellants assaulted him with danda (stick), hands and fists. They caused him to fall down. By climbing on his chest and strangulating him, they caused his death. Thereafter, they threw away his dead body in Turipahad Forest of Village Nevsa. 3. In the morning of 4.5.2019, Village Kotwar Barnuram came to know that a dead body was lying near Turipahad Forest of Village Nevsa. He along with Ram Singh, husband of Village Sarpanch went and saw the dead body and thereafter he informed about this in the police station. On the information of the Village Kotwar, a morgue was registered on zero as No.0/2019. He along with Ram Singh, husband of Village Sarpanch went and saw the dead body and thereafter he informed about this in the police station. On the information of the Village Kotwar, a morgue was registered on zero as No.0/2019. Thereafter, Crime No.164/2019 was registered in Police Station Kusmunda for an offence punishable under Section 302 of the Indian Penal Code. 4. During investigation, a panchnama of the dead body was prepared. Aadhar card and pan card were recovered from the pant worn by deceased Sanjay Adil. Both the cards contained the name of the deceased. Family members of the deceased were informed about the death. Plain and blood stained soil were seized from the spot. Spot map was got prepared. One shirt and one empty bottle of 1 litre of sprite cold drink were recovered and seized from near the dead body. Memorandum statement under Section 27 of the Evidence Act was recorded. At the instance of Appellant Lalitram, shoes of the deceased were recovered and seized from the badi (fence) of Appellant Lalitram. At the instance of Appellant Jivan Singh, one danda was recovered and seized from the badi of Appellant Lalitram. At the instance of Appellant Hiralal alias Golu, one another danda was recovered and seized. At the instance of Appellant Indra Pal, one another danda was recovered and seized. At the instance of Appellant Anand Abhishek, one T.V.S. Sports Motorcycle bearing registration No.CG 12 AJ 2488 was recovered and seized. The Appellants were arrested. 5. Medical Query Report was obtained regarding all the seized danda. The baniyan (vest), underwear, belt and wrist watch recovered and seized from the dead body during post mortem examination and the shirt and soil seized from the place of occurrence were sent to Forensic Science Laboratory (FSL) for examination and report thereof was placed on record. Statements of witnesses were recorded. On completion of investigation, a charge-sheet was filed against the Appellants. The Trial Court framed charges against them. 6. To rope in the Appellants, the prosecution examined as many as 14 witnesses and exhibited 46 documents. In examination under Section 313 of the Code of Criminal Procedure, the Appellants pleaded innocence. They did not examine any witness in defence. 6 documents were admitted in evidence for the defence. On completion of the trial, the Trial Court convicted and sentenced the Appellants as mentioned in first paragraph of this judgment. In examination under Section 313 of the Code of Criminal Procedure, the Appellants pleaded innocence. They did not examine any witness in defence. 6 documents were admitted in evidence for the defence. On completion of the trial, the Trial Court convicted and sentenced the Appellants as mentioned in first paragraph of this judgment. Hence, the instant appeal. 7. Learned Counsel appearing for Appellant No.1 and Learned Counsel appearing for Appellants No.2 to 5 jointly submit that the impugned judgment of conviction passed by the Trial Court is against the principle of law applicable to the facts and circumstances of the instant case. The prosecution witnesses have made contradictory statements and there are so many omissions and improvements in their statements and as such their statements do not inspire confidence to convict the Appellants. The Trial Court has failed to see that there is no eyewitness in this case. The case of the prosecution is based on circumstantial evidence and evidence of last seen together. The memorandum and seizure witnesses and other important witnesses have either been declared hostile or they have denied the prosecution story. Even from the seized articles involvement of the Appellants in the incident has not been established. The Trial Court has erred in appreciating the chain of circumstances. The evidence of last seen together is a weak evidence and mere the evidence of last seen together is not sufficient to convict the Appellants. The witnesses of last seen together have also given contradictory statements and there are so many discrepancies in their statements and as such the evidence of last seen together is not found proved. Hence, the Appellants deserve acquittal. 8. Learned Counsel appearing for the Respondent/State supports the impugned judgment and submits that considering the entire evidence available on record the Trial Court has rightly convicted the Appellants. 9. We have heard the rival contentions put-forth on behalf of the parties and perused the entire evidence available with utmost circumspection. 10. The first question for consideration is whether the death of Sanjay Adil was homicidal in nature? 11. In the post mortem report (Ex.P39), which is proved by Dr. A.N. Kanwar (PW12), who conducted post mortem examination over the dead body of Sanjay Adil, it is opined by him that cause of the death was asphyxia due to injury in chest and neck and nature of the death was homicidal. The statement of Dr. 11. In the post mortem report (Ex.P39), which is proved by Dr. A.N. Kanwar (PW12), who conducted post mortem examination over the dead body of Sanjay Adil, it is opined by him that cause of the death was asphyxia due to injury in chest and neck and nature of the death was homicidal. The statement of Dr. A.N. Kanwar (PW12) has remained unrebutted. The evidence on record clearly establishes that the death was homicidal in nature and this has not been disputed on behalf of the Appellants. Therefore, we hereby affirm the finding of homicidal death arrived at by the Trial Court. 12. The next question for consideration is whether the Appellants are the persons who committed the crime in question? 13. The case of the prosecution is not based on the direct evidence. It is based on the circumstantial evidence and the Trial Court has found incriminating circumstances established. The five golden principles, which constitute panchsheel of the proof of a case based on circumstantial evidence, have been laid down by their Lordships of the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 as under: “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made: Certainly, 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. (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.” 14. In the instant case, according to the prosecution evidence, the incident took place on 30.4.2019. Dead body of Sanjay Adil was seen near Turipahad Forest of Village Nevsa on 4.5.2019 by Kotwar Barnuram (PW3) of Village Nevsa and police was informed. Thereafter, panchnama (Ex.P2) of the dead body was prepared. Thus, it is clear that dead body of Sanjay Adil was not recovered on the basis of the information given by any of the Appellants and the dead body was found 4 days after Sanjay Adil went missing on 30.4.2019. 15. According to the Trial Court, the Appellants have been convicted on the basis of 3 major circumstantial evidence, which are as follows: A. Deceased Sanjay Adil was in love-affair with Umarbai, sister of Appellant Lalitram, due to which the Appellants had a grudge against Sanjay Adil and which became a cause of the incident. B. Deceased Sanjay Adil was last dropped at the house of Appellant Lalitram and was found with Appellant Anand Abhishek, after that Sanjay Adil was not seen. C. The shoes of the deceased were seized from Appellant Lalitram. Sticks (danda) used in the incident were seized from Appellants Indrapal, Hiralal, Jivan and the motorcycle used in the incident was seized from Appellant Anand Abhishek. Circumstantial Evidence No.A: 16. Ramakant Urre (PW2), who had acquaintance with the deceased and the Appellants, has stated that Sanjay Adil (deceased) himself had told him that he was in love with Umarbai, sister of Appellant Lalitram and at the time of the incident marriage of Umarbai was taking place in which Sanjay Adil wanted to go and he had also gone. Apart from this, no other clear evidence has come out in the prosecution evidence regarding the cause. Apart from this, no other clear evidence has come out in the prosecution evidence regarding the cause. In the case of circumstantial evidence, cause becomes a basis, but, it is a weak piece of evidence and the same having not been corroborated in material particulars, no reliance can be placed thereupon. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 , it is held by the Supreme Court that a motive may be an important circumstance in a case based on circumstantial evidence, but, it cannot take place of a conclusive proof. 17. On the basis of the statement of Ramakant Urre (PW2) alone, it cannot be believed that the Appellants killed Sanjay Adil because of his love affair with Lalitram's sister Umarbai. This motive in itself does not constitute the sole and sufficient ground for conviction. Circumstantial Evidence No.B: 18. Sanjay Adil (deceased) was last seen and dropped with Appellant Anand Abhishek and at the house of Appellant Lalitram. Ramakant Urre (PW2) and Rakesh Kumar Gond (PW5) are important witnesses on this point. They have stated in their Court statement that Appellant Lalitram's sister Umarbai's marriage was in Village Nevsa in which Sanjay Adil wanted to go. Then they dropped Sanjay Adil and Appellant Anand Abhishek on a motorcycle to the house of Appellant Lalitram in Village Nevsa where the marriage was taking place and then they went back. Ramakant Urre (PW2) has admitted in paragraph 4 that after 3-4 days of dropping Sanjay Adil at the house of Appellant Lalitram, it was learnt that Sanjay Adil's dead body was found in the forest of Village Nevsa. Dealing with the similar issue, in Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 , the Supreme Court has held that only the circumstance of last seen together cannot be made a basis for conviction. In that case, the Supreme Court reversed the conviction. 19. In the context of Anjan Kumar (supra), if we consider the statements of Ramakant Urre (PW2) and Rakesh Kumar Gond (PW5), it becomes clear that when they, along with Appellant Anand Abhishek, left Sanjay Adil at the house of Appellant Lalitram, where the marriage was taking place, 3 to 4 days later Sanjay Adil's dead body was found in Village Nevsa. It is clear that many people come and go to a marriage house. It is clear that many people come and go to a marriage house. It cannot be assumed that when these witnesses took Sanjay Adil along with Appellant Anand Abhishek and left him at the house of Appellant Lalitram, Sanjay Adil did not meet anyone else. In the manner, it is said that Sanjay Adil was left at the marriage house and 3-4 days later his dead body was found, which was not found even on identification of any of the Appellants. Then, in such a situation, in the light of Anjan Kumar (supra), it is not appropriate to hold Appellant Lalitram or Appellant Anand Abhishek guilty of the offence of murder on the basis of last seen together theory. Circumstantial Evidence No.C: 20. In this case, Sub-Inspector Anand Kumar Sahu (PW11), as the Investigating Officer, has stated that he seized the TVS Sports motorcycle on the basis of memorandum statement (Ex.P12) of Appellant Anand Abhishek and on his identification. However, it is clearly not supported by the statements of independent witnesses Mohammad Rafiq (PW6) and Suryanarayan Gond (PW9). No witness has been produced by the prosecution to link the motorcycle with the incident. In such a situation, the motorcycle said to be seized does not support the prosecution case against Appellant Anand Abhishek. 21. Sub-inspector Anand Kumar Sahu (PW11), as the Investigating Officer, has stated that he had seized a saja wooden stick under seizure (Ex.P18) on the basis of memorandum statement (Ex.P10) of Appellant Indrapal, a eucalyptus stick under seizure (Ex.P17) on the basis of memorandum statement (Ex.P11) of Appellant Hiralal and a saja wooden stick under seizure (Ex.P15) on the basis of memorandum statement (Ex.P13) of Appellant Jivan. However, the seizures have not been clearly proved by the statements of the independent witnesses. The seized sticks have not been examined by a doctor and the seized sticks have not been sent to the laboratory for chemical examination. Thus, the prosecution has failed to establish the use of the seized sticks in the incident. Therefore, the said seizures do not provide any support to the prosecution case against Appellants Indrapal, Hiralal and Jivan. 22. The seized sticks have not been examined by a doctor and the seized sticks have not been sent to the laboratory for chemical examination. Thus, the prosecution has failed to establish the use of the seized sticks in the incident. Therefore, the said seizures do not provide any support to the prosecution case against Appellants Indrapal, Hiralal and Jivan. 22. Investigating Officer Sub-Inspector Anand Kumar Sahu (PW11) has stated that memorandum statement (Ex.P9) was prepared after taking the statement of Appellant Lalitram and at his instance, a pair of grey colour shoes was seized after he took them out from the pairavat (straw) and presented them. This seizure has also not been clearly confirmed by the independent witnesses. Panchnama (Ex.P21) is said to have been prepared by getting the said shoes identified from Pratap Singh, father of deceased Sanjay Adil. Regarding which Pratap Singh (PW4) has said that the shoe of his son Sanjay Adil was found in the house of Appellant Lalitram. However, this witness has not made such a clear statement that the shoes were identified by him. The said identification proceedings have also not been confirmed by Mohammad Rafiq (PW6) and Suryanarayan Gond (PW9). 23. With reference to recovery, it is appropriate to notice the relevant decision of the Supreme Court in Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 in which it is held as under: “37. The shirt of Appellant 2 recovered from him in pursuance of his statement under Section 27 of the Evidence Act, 1872 is allegedly matched with the small broken button found at the scene of crime. This has been relied upon by the courts below as another circumstance to corroborate the presence of the appellants at the scene of crime. However, there is nothing on record to show that the shirt is unique and cannot be matched with the shirt of any other person. PW 13 has admitted in his testimony that shirts of the same kind are easily available in the market. In such circumstances, it cannot be conclusively proved that the shirts are in any way unique to the appellant’s shirt to the exclusion of everyone else. Therefore, the reliance placed with analysis of the shirt in the absence of any unique make thereof is improper.” 24. In such circumstances, it cannot be conclusively proved that the shirts are in any way unique to the appellant’s shirt to the exclusion of everyone else. Therefore, the reliance placed with analysis of the shirt in the absence of any unique make thereof is improper.” 24. In the light of Digamber Vaishnav (supra), it is clear in the instant case that the recovery of the shoes on the identification of Appellant Lalitram is not proved beyond doubt in the absence of confirmation by independent evidence. The identification of the alleged seized shoes has also not been done in a proper manner. Panchnama of which has said to have been prepared by police. That Panchnama (Ex.P21) has also not been confirmed by the independent witnesses. The father of the deceased has also not stated that he was separately asked to identify the shoes. It has also not come in the evidence that the father of the deceased was asked to identify the shoes along with some other shoes. The father of the deceased has stated that the shoes of his son Sanjay Adil were recovered from the house of Appellant Lalitram. This reflects that no action like identification was taken, rather he knew only from the police or from other persons that the shoes of his son Sanjay Adil were seized from the house of Appellant Lalitram. There is no specific mark or identification on the shoes which could differentiate them from the shoes available in the market or in other houses and it could be clearly and definitely said that they were the shoes of deceased Sanjay Adil. Hence, the prosecution has failed to establish a direct link between the deceased Sanjay Adil and the shoes allegedly seized. The seizure of the shoes does not support the prosecution case against Appellant Lalitram. 25. From the above discussion, we find that the circumstantial evidence on the basis of which the Appellants have been convicted is not proved beyond doubt. It is a very weak evidence. In the light of Sharad Birdhichand Sarda (supra), their links do not match with each other. In such a situation, the conviction of the Appellants on the basis of that evidence is not appropriate. Therefore, interference with the judgment in question is found necessary. 26. In the result, the criminal appeal is allowed. The impugned judgment of conviction and sentence is set aside. In such a situation, the conviction of the Appellants on the basis of that evidence is not appropriate. Therefore, interference with the judgment in question is found necessary. 26. In the result, the criminal appeal is allowed. The impugned judgment of conviction and sentence is set aside. All the Appellants are acquitted. 27. Appellants Lalitram Gond and Anand Abhishek are reported to be in jail. They be set at liberty forthwith, if not required in any other case. Both these Appellants shall execute bail bonds and two sureties each in the like amount to the satisfaction of the Trial Court concerned as required by Section 437A of the Code of Criminal Procedure. 28. Appellants Indrapal Singh, Hiralal alias Golu and Jivan Singh are reported to be on bail. Their bail bonds shall continue for a further period of 6 months under Section 437A of the Code of Criminal Procedure. Thereafter, the said bonds shall stand discharged. 29. Record of the Trial Court be sent back along with a copy of this judgment forthwith for necessary compliance.