Judgment : Rajani Dubey, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 06.05.2019 passed by Sessions Judge, Mungeli, District Mungeli (C.G.), in Sessions Trial No.72/2017 convicting the accused/appellants under Sections 201, 364, 302/34 and 120-B of IPC & sentencing them to undergo R.I. for 03 years with fine of Rs.1,000/-, imprisonment for life with fine of Rs.5,000/-, imprisonment for life with fine of Rs.10,000/- and R.I. for 03 years with fine of Rs.1,000/- respectively, plus default stipulations. 2. Prosecution story, in brief, is that on 14.06.2017 at around 5.00 PM, accused Om Narayan (A-1) called Bisahu Ram Verma on mobile phone to Beltukri (Sambalpur) turn saying that he will return the amount borrowed by him. Bisahu Ram Verma went there on his call, whom accused Om Narayan seated him on his motorcycle Passion Pro bearing registration No. CG-07-AJ-9076 and accused Om Narayan's friend accused Sachchidanand (A-2) seated Uttara Kumar on his motorcycle Hero Honda CD Dawn and all four of them went to Bhatapara. They watched a movie at Bhatapara City Mall at 6-9 pm. After the movie was over, all four of them brought liquor and came near the village Lamti crematorium and accused Uttara Kumar (died during the pendency of appeal) & accused Sachchidanand (A-2) consumed liquor. Accused Om Narayan (A-1) and deceased Bisahu Ram were sitting there, after which they left for home at around 10-11 pm. Deceased Bisahu Ram was walking in front and the accused persons. While accused/appellants were on the way, accused/appellant Om Narayan (A-1) put his gamchha around the neck of deceased Bisahu Verma and pulled him down, and all the three accused/appellants together strangulated the neck of deceased Bisahu with the gamchha and killed him by pressing his neck tightly. Thereafter, accused/appellant Om Narayan (A-1) took out petrol from his motorcycle and poured it on Bisahu and asked for a matchstick from accused Uttara Kumar and set the Bisahu’s body on fire. On the information that a human skeleton was found, merg intimation was recorded and inquest on the human skeleton was prepared. During Panchnama proceedings, the police seized the material mentioned in the seizure sheet near the site of the incident and took it into custody. The post-mortem of the human skeleton was conducted. On the information that a human skeleton was found, merg intimation was recorded and inquest on the human skeleton was prepared. During Panchnama proceedings, the police seized the material mentioned in the seizure sheet near the site of the incident and took it into custody. The post-mortem of the human skeleton was conducted. During investigation, the wife and heirs of the unknown human skeleton came to the police station on 02.09.2017 and identified the clothes seized from the site of the incident. According to the identification panchanama, the clothes belonged to Bisahu Ram Verma. Memorandum statement of Kunti Bai, wife of deceased Bisahu Ram, Saukhram Verma, father of deceased and witness Premlal Bhikhu Ram were recorded. In the statements, it was told that on 14.06.2017, accused/appellant Om Narayan Verma of village Jaitpuri called deceased Bisahu Ram on the pretext of returning the loan amount and with intention to kill him, made him drink alcohol near Lamti Brahmadih, strangled him with a towel and set his body on fire after pouring petrol on him. On the basis of circumstantial evidence and memorandum, a crime was registered against the accused/appellants and investigation was taken up. The accused/appellants were arrested. During investigation, the statements of the witnesses were recorded and after being found the involvement of the accused/appellants, Crime No.429/2017 was registered against them under Sections 302, 201, 120- B, 364 of IPC. Spot map was prepared. The postmortem of the deceased's body was conducted and medical opinion was obtained. After filing of charge sheet, the trial Court framed charge under Sections 120-B, 364, 302 and 201 of IPC. 3. So as to hold the accused/appellants guilty, the prosecution examined as many as 24 witnesses. Statements of the accused/appellants were also recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellants as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellants submit that the impugned judgment of conviction and order of sentence is illegal, bad and contrary to the law applicable to the facts and circumstances of the case. Hence, this appeal. 5. Learned counsel for the appellants submit that the impugned judgment of conviction and order of sentence is illegal, bad and contrary to the law applicable to the facts and circumstances of the case. The learned trial Court acquitted the appellants from other charges but convicted them under Sections 364, 302, 201 and 120-B of IPC. There is not a single cogent and reliable witness in the case who can independently described the incident. Learned counsel also submits that the learned trial Court has failed to appreciate the oral and documentary evidence properly. It is clear from the evidence that the prosecution story is false and has been concocted against the appellants with an ulterior motive. The impugned judgment and findings are bad in law and procedure, contrary to material on record, therefore, liable to be set aside. Learned counsel also submits that the learned trial Court has totally ignored the defence version, hence, the appreciation appears biased. As per the prosecution story, the place of incident is a public place where so many people were working around it but the prosecution has utterly failed to produce any independent witness. So, the impugned judgment and conviction is liable to be set aside. In support, learned counsel placed reliance on the decisions on Hon’ble Apex Court in the matter of Padam Bibhar Vs. State of Odisha reported in 2025 SCC OnLine SC 1190, Wadla Bheemaraidu Vs. State of Telangana reported in 2024 SCC OnLine SC 3589, Kattavellai @ Devakar Vs. State of Tamilnadu reported in 2025 SCC OnLine SC 1439, Karandeep Sharma alias Razia alias Raju Vs. State of Uttarakhand reported in 2025 SCC OnLine SC 773, Prakash Nishad alias Kewat Zainak Nishad Vs. State of Maharashtra reported in (2023) 16 SCC 357, Chunthuram Vs. State of Chhattisgarh reported in (2020) 10 SCC 733 , Kanhaiya Lal Vs. State of Rajasthan reported in (2014) 4 SCC 715 , Hon’ble Apex Court judgment dated 06.09.2023 passed in CRA No. 859/2011 [ R. Sreenivasa Vs. State of Karnataka ] and this Court’s judgment dated 22.02.2023 passed in CRA No.565/2022 [ Kishan Lal @ Champa Yadav Vs. State of Chhattisgarh ], judgment dated 23.08.2024 passed in CRA No. 965/2018 [ Tejprakash Sen Vs. State of Chhattisgarh ] judgment dated 06.05.2022 passed in CRA No.1118/2014 and other connected appeal [ Ram Prasad Yadav Vs. State of Karnataka ] and this Court’s judgment dated 22.02.2023 passed in CRA No.565/2022 [ Kishan Lal @ Champa Yadav Vs. State of Chhattisgarh ], judgment dated 23.08.2024 passed in CRA No. 965/2018 [ Tejprakash Sen Vs. State of Chhattisgarh ] judgment dated 06.05.2022 passed in CRA No.1118/2014 and other connected appeal [ Ram Prasad Yadav Vs. State of Chhattisgarh ], judgment dated 03.01.2017 passed in CRA No.441/2004 [ Ram Adhin @ Ramdin @ Charaka Vs. State of Chhattisgarh ] and judgment dated 12.01.2023 passed in CRA No.810/2013 [ Ranasram Rathiya Vs. State of Chhattisgarh ]. 6. On the other hand, supporting the impugned judgment it has been argued by the learned State counsel that the conviction of the accused/appellants is in accordance with law and there is no infirmity in the same. 7. We have heard counsel for the parties and perused the material available on record. 8. It is clear from the record of the learned trial Court that the learned trial Court framed charges under Sections 120-B, 364, 302 and 201 of IPC against the accused/appellants and during pendency of the trial, accused Uttara Kumar died and the learned trial Court, after appreciation of oral and documentary evidence, convicted accused/appellants Om Narayana (A-1) and Sacchidanand (A-2) under Section 120- B, 364, 302/34 and 201 of IPC & sentenced them as described in para 1 of this judgment. 9. The first question which arises for consideration by this Court is whether the death of deceased Bisahu Ram Sahu was homicidal in nature or not. 10. Bhikhuram (PW-2) is father-in-law of the deceased. He has stated that his daughter Gayatri (PW-1) had informed him over phone that his son-in-law (the deceased) went with Om Narayan (A-1) and did not come back for 2-3 days. He has also stated that when he went to village Bidbida to find accused Om Narayan, but he could not find him there. After that his samadhi Soukhram came there. After that his samadhi went to his house and from there they lodged a missing report in Nandghat Police Station. He has also stated that he went to village Kheda to accused Om Narayan to find out and asked him how much money he borrowed from his son-in-law then he (accused Om Narayan) said that he had borrowed Rs.20,000/- and thereafter they came back to home. He has also stated that he went to village Kheda to accused Om Narayan to find out and asked him how much money he borrowed from his son-in-law then he (accused Om Narayan) said that he had borrowed Rs.20,000/- and thereafter they came back to home. He has also stated in para 3 of his evidence that at the time of Teej Pora festival, his sister told him that there has been a murder in village Lamti, the bones were found there, thereafter he went to village Lamti and asked the Kotwar that when this incident happened, then Kotwar told him that there was light rain and the Nagar was not moving then the incident happened. Thereafter, he asked the Kotwar had there been any identification of the body, then Kotwar told that the body had no identification. The Kotwar told that the body was wearing a red colored gamchha, short pant, shirt and three different slippers. 11. Ramprasad Diwakar (PW-3) is the Kotwar of village Sargaon, District Mungeli. He has stated that he had informed the Sargaon Police Station about the human skeleton found in the pond at village Lamti vide Ex.P-2 and has admitted his signature on ‘A to A’ part. This witness has denied the inquest memo but he admitted his signature in notice of skeleton panchanama (Ex.P-4) and inquest memo (Ex.P-5). The prosecution has declared this witness hostile and cross-examined him then he stated that he had gone to the place where human skeleton was found. The police did not prepared map before him but he signed on it. He has also stated that he does not remember whether he had signed notice of skeleton panchanama or not. 12. Kripa Ram Nishad (PW-9) is the witness of seizure. He has admitted his signature on notice of skeleton panchanama (Ex.P-4) and inquest memo (Ex.P-5). The prosecution has declared this witness hostile and cross-examined him then he denied any proceeding before him but admitted his signature on ‘B to B’ and ‘A to A’ part in Ex. P-4 and P-5, respectively. 13. Lambodar Singh (PW-20) is the Sub Inspector. He has stated that on the information of village Kotwar, he registered the merg intimation being No. 0/17 (Ex.P-2) and admitted his signature on ‘B to B’ part. He has also stated that he issued notice to witnesses and prepared inquest memo under Ex.P-5 in presence of the witnesses. 13. Lambodar Singh (PW-20) is the Sub Inspector. He has stated that on the information of village Kotwar, he registered the merg intimation being No. 0/17 (Ex.P-2) and admitted his signature on ‘B to B’ part. He has also stated that he issued notice to witnesses and prepared inquest memo under Ex.P-5 in presence of the witnesses. 14. Dr. Amit Lal (PW-15) has stated that on 01.07.2017, one human skeleton was brought before him for postmortem examination by constable Rahul Yadav. The human skeleton was not having any muscles and organs, therefore, he referred it to CIMS, Bilaspur, for Forensic Science Expert opinion vide Ex.P-18 and admitted his signature on ‘A to A’ part on it. The prosecution did not examine any doctor and only postmortem report was filed by it, and according to this postmortem report, Dr. Ajay Bhengra, Assistant Professor, Dept. of Forensic Medicine, C.I.M.S., Bilaspur, conducted postmortem examination of human skeleton and as per this report, specimen was belonged to the male aged about 25- 30 years, time since death was 02 weeks to 02 months and it was not possible for him to opine the cause of death as the available portion of body was not bear any antemortem injury but injuries over the missing part (soft tissues) of the body cannot be denied. Further, according to the DNA report (Ex.P-52), Article - B (Ex.355) is DNA profile generated from blood sample of Saukhram Verma, father of deceased, Article - A (Ex. 354) is DNA profile generated from reminiscence of femur bones sample of deceased and Article - C (Ex.356) is DNA profile generated from blood sample of Smt. Kunti Bai Verma, mother of deceased & it was confirmed that the Article – A is the biological son of Article – B and Article -C. Thus, it is apparent that the skeleton found was of deceased Bisahu Ram Sahu, but it is clear from the record of the learned trial Court that the doctor conducting postmortem examination was not examined by the prosecution 15. B.R. Rajput (PW-18) – Investigating Officer has admitted this suggestion of defence that nature of death was not declared/opined by the doctor. In his detailed and long cross-examination, his most of the cross-examination is in the question and answer form, and the significant questions and answers are reproduced herein as under :- 16. B.R. Rajput (PW-18) – Investigating Officer has admitted this suggestion of defence that nature of death was not declared/opined by the doctor. In his detailed and long cross-examination, his most of the cross-examination is in the question and answer form, and the significant questions and answers are reproduced herein as under :- 16. It is clear from these questions and answers that the Investigating Officer admitted this fact that the doctor conducting postmortem examination of the skeleton did not opine about the cause of death and its nature, and the doctor specifically stated that postmortem was not possible. It is apparent from the un-exhibited postmortem report that the doctor of CIMS, Bilaspur opined that it was not possible to opine the cause of death as the available portion of skeleton did not bear any antemortem injury but injuries over the missing part (soft tissues) of the body cannot be denied. Thus, the prosecution has failed to prove this fact beyond reasonable doubt that the death of deceased was homicidal in nature. Further, the DNA report of the skeleton only proved this fact that the skeleton found was of deceased Bisahu Ram Sahu but is not proved beyond reasonable doubt that the death of deceased was homicidal in nature. The Investigating Officer has specifically admitted that as per the testimony of wife and other relatives they only suspected the murder of Bisahu Ram Sahu, therefore, he lodged the FIR under Section 302 of IPC. So, we have to examine the evidence of other prosecution witnesses with utmost circumspection. 17. Gayatri Verma (PW-1) is the wife of deceased Bisahu Ram Sahu. She has stated that her husband was missing from six months and her husband left home saying that accused/appellant Om Narayan (A-1) was calling him and had called him to come alone next week saying that he would give all his money. On 14.06.2017, accused/appellant Om Narayan (A-1) had made a call on her deceased husband's mobile, then she asked her deceased husband that whose call it was, and her husband told that it was accused/appellant Om Narayan's call and said that he would come at night or in the morning. On 14.06.2017, accused/appellant Om Narayan (A-1) had made a call on her deceased husband's mobile, then she asked her deceased husband that whose call it was, and her husband told that it was accused/appellant Om Narayan's call and said that he would come at night or in the morning. She has also stated that accused/appellant Om Narayan had also asked her deceased husband not to bring the motorcycle and Om Narayan had come in his motorcycle and had made her deceased husband to sit on his motorcycle at some distance away from their house. She has also stated in para 2 of her examination-in-chief that from that day onwards accused/appellant Om Narayan (A-1) had stopped coming to their house, before that accused/appellant Om Narayan used to come to their house and whenever she used to ask accused/appellant Om Narayan about her husband on phone, he used to say that he does not know and she used to tell him that he had taken her husband away and she used to tell him to come to her house and tell her but he had not come. She has also stated in para 3 of her examination- in-chief that when she used to call on her husband's mobile, it was reported to be switched off. Thereafter, all the family members searched the deceased but could not find him. When her husband Bisahu Ram was not found, her father-in-law Saukh Ram went to the Police Station- Nandghate and lodged a missing report. She has also stated that when her father Bhikhuram went to village Dakachaka to pick up his sister, someone told her father that there was a dead body and clothes lying in Dakachaka, and the police of police station Sargaon had taken the dead body. She has further stated that when her father told her about the said incident, she along with her father-in-law and father Bhikhuram went to the Sargaon Police Station. At the Sargaon Police Station, they said that her husband Bisahu Ram was missing and they have come here after hearing about the dead body, and requested the police to show them the body, then the police showed them the clothes etc. of the deceased, and on seeing the clothes, she recognized that the clothes were of her deceased husband. At the Sargaon Police Station, they said that her husband Bisahu Ram was missing and they have come here after hearing about the dead body, and requested the police to show them the body, then the police showed them the clothes etc. of the deceased, and on seeing the clothes, she recognized that the clothes were of her deceased husband. This witness in para 5 of her examination-in-chief has stated that accused/appellant (A-1) had borrowed Rs.78,000/- from her deceased husband in two installments. Her deceased husband used to write in the copy whenever he used to give money to someone and in the copy, name of accused/appellant Om Narayan (A-1) was also written. The police had seized the copy written by her deceased husband vide Ex.P-1. She has also stated that she has suspicion that accused/appellant Om Narayan has killed her husband. In cross-examination, this witness has admitted that the missing report was lodged by her father-in-law and the fact of going with accused/appellant Om Narayan (A-1) was not written in the report. She has also admitted that she had told the police that her deceased husband had gone with accused/appellant Om Narayan but if the same thing does not find place in her police statement (Ex.D-1) she cannot tell the reason. This witness has also admitted that she had asked her husband about accuse/appellant Om Narayan’s phone/call, and she did not state this fact in her police statement and is telling for the first time before the Court. Further, in para 24, this witness has admitted that she herself had not seen her husband being taken away by accused/appellant Om Narayan, and she denied this suggestion that accused/appellant Om Narayan did not borrow money from her deceased husband. 18. Bhikhuram (PW-2) is the father-in-law of accused/appellant Om Narayan (A-1). He has stated that his daughter Gayatri (PW-1) had informed him that his son-in-law was missing and he had gone with accused/appellant Om Narayan (A-1). 19. Kunti Bai Verma (PW-4) is the mother of deceased. 18. Bhikhuram (PW-2) is the father-in-law of accused/appellant Om Narayan (A-1). He has stated that his daughter Gayatri (PW-1) had informed him that his son-in-law was missing and he had gone with accused/appellant Om Narayan (A-1). 19. Kunti Bai Verma (PW-4) is the mother of deceased. She has stated that she and her son had gone to field and at around 11.00 AM, accused/appellant Om Narayan (A-1) ringed her son and stated that his (Appellant’s) father-in-law has sold the land, you (deceased Bisahu Ram) come for the money, the registry will be done and he will give him money and accused/appellant Om Narayan (A-1) said that he (deceased) do not come with motorcycle, he is coming with a motorcycle, then she (this witness) asked her son whose call was it, then her deceased son told that it was appellant’s Om Narayan call. She has also stated that thereafter, she and her son came home from the field and again at 1.00 pm accused/appellant Om Narayan called her son Bisahu on mobile and then reiterated the same thing that come near the turn in the evening, he (accused/appellant) is coming. Then accused Om Narayan tied his face with cloth and leaving two persons outside, took her son Bisahu from their house. She has also stated that at night, they made call on mobile of her son Bisahu, then he replied that he would come after half an hour, but her son did not come. Then they inquired around and also made calls but could not find him. Her son's mobile was switched off and then the missing report was lodged in the police station. She has also stated that the incident came to light in the last month of Bhado when her Samadhi went to village Dakachaka and he came to know that a man's clothes etc. have been brought to Sargaon Chowki from village Lamti sSe came to know about it when her Samadhi informed her. The village Kotwar told that the clothes etc. have been taken to Sargaon Police Station. Her Samadhi came to their house and told her husband and her daughter- in-law Gayatri Bai (PW-1) that they have to go to Sargaon Police Station, then her husband, her daughter-in-law, Samadhi and Kotwar of village Lamti went to Sargaon Chowki, and identified the skeleton to be her son’s by clothes. have been taken to Sargaon Police Station. Her Samadhi came to their house and told her husband and her daughter- in-law Gayatri Bai (PW-1) that they have to go to Sargaon Police Station, then her husband, her daughter-in-law, Samadhi and Kotwar of village Lamti went to Sargaon Chowki, and identified the skeleton to be her son’s by clothes. She has also stated that the death of her son Bisahu caused by accused/appellant Om Narayan. In cross- examination, this witness in para 8 has admitted that on the date of incident, she had not seen accused/appellant Om Narayan (A-1) in village. She had not seen accused/appellant Om Narayan tiding gamcha and she is telling at the instance of other. She has also admitted that her statement was recorded after six months of missing of his deceased son and she does not know what report was lodged by her husband. 20. Premlal Verma (PW-5) is the cousin brother of deceased. He has stated that he was informed by Saukhram, father of deceased, that accused/appellant Om Narayan (A-1) had called the deceased to take his money and deceased Bisahu left the house on 14.06.2017 but did not return, and thereafter on 17.06.2017, a missing report was lodged in police station by father of deceased Saukhram. He has also stated that the police recorded the memorandum statement of accused/appellant Om Narayan (A-1) vide Ex.P-6, accused/appellant Sacchidanand (A-2) vide Ex.P-7 and accused/appellant Uttara Kumar (died during pendency of trial) vide Ex.P-8, based on which, the police seized motorcycle from accused/appellant Om Narayan (A-1) vide Ex.P-9, one mobile and motorcycle from accused/appellant Sacchidanant (A-2) vide Ex.P-10 and one bottle was seized from the spot vide Ex.P-11 and one bank deposit slip of deceased Bisahu Ram was seized vide Ex.P-12. In cross- examination, this witness has admitted that even after coming to know about the missing of his cousin brother deceased Bisahu Ram on 17.06.2017, he did not lodge any report in any police station that accused/appellant Om Narayan (A-1) had taken his deceased brother with him. He has also admitted that he had only lodged missing report in police station saying that his brother was missing and did not name any particular person. 21. Santram Verma (PW-7) is another witness of memorandum and seizure. He has also admitted that he had only lodged missing report in police station saying that his brother was missing and did not name any particular person. 21. Santram Verma (PW-7) is another witness of memorandum and seizure. He has stated that police recorded the memorandum statement of accused/appellant Om Narayan (A-1) vide Ex.P-6, accused/appellant Sacchidanand (A-2) vide Ex.P-7 and accused/appellant Uttara Kumar vide Ex.P- 8 and he also admitted his signature on seizure memo vide Ex.P-9, P-10, P-11 and P-12. It was noted by the learned trial Court that this witness had written registration number of vehicle Passion Pro 9076 and C.D. Don 1395 on his palm. 22. Pintu Verma (PW-8) is brother-in-law (Jija) of deceased Bisahu Ram Verma. He has stated that on 14.06.2017 he had gone to the house of his deceased brother-in-law (Sala) Bisahu Ram Verma and both of them went to the house of tailor Doulat to get cloths stitched. He has also stated that he got his cloths measured there. After that, deceased Bisahu Ram also brought clothes from his house and wore them at the tailor’s shop. He asked him where he was going then he said that he is going to Sargaon. Deceased Bisahu Ram did not tell him any friend’s name. After that he saw him going on motorcycle. He does not know on whose bike he went on. The police had taken his statement. The prosecution declared this witness hostile and cross- examined him but he denied all suggestions of the prosecution and denied his police statement (Ex.P-17) on ‘A to A’ part. This witness has admitted the suggestion of defence that after deceased Bisahu Ram left from there, he did not see him again and he was with deceased Bisahu from 10.30 AM to 4.30 PM. 23. Nageshwar Rajput (PW-11) has stated that he knew deceased Bisahu Ram who is resident of Beltukri. Deceased Bisahu Ram had come along with his brother-in- law (Jija) Pintu (PW-8) to his shop to get the cloths stitched on the date from which he was missing. He has also stated that he took the measurement of the cloths’ of Pintu (PW-8) and at that time, deceased was talking over mobile phone and being asked as to with whom was he talking, he said that he was talking with a friend. Thereafter, both the deceased and Pintu (PW-8) left his shop. He has also stated that he took the measurement of the cloths’ of Pintu (PW-8) and at that time, deceased was talking over mobile phone and being asked as to with whom was he talking, he said that he was talking with a friend. Thereafter, both the deceased and Pintu (PW-8) left his shop. The prosecution declared this witness hostile and cross-examined him but he denied all suggestions of the prosecution and denied ‘A to A’ part of his police statement (Ex.P-19). This witness has admitted this suggestion of defence that deceased Bisahu Ram had come with his brother-in-law (Jija) Pintu (PW-8) and went back with him. 24. Close scrutiny of evidence of all the prosecution witnesses makes it clear that deceased Bisahu Ram was missing since 14.06.2017 and as per the merg intimation (Ex.P-2), one human skeleton was found near cremation ground on 01.07.2017 i.e. after 17 days of the incident. The merg intimation (Ex.P-2) reveals that “on 01.07.2017 at around 11.00 AM, when he (informant) went to pond for bathing, he was informed that one human skeleton was found near cremation ground which was scattered by the animals, and as per the statement of doctor, the cause of death of deceased was not opined. The human skeleton found near the cremation ground was not recovered at the instance of accused/appellant. 25. The conviction of the appellants is based on evidence of Gayatri (PW-1) witness to last seen, and evidence of Bhikhuram (PW-2), whom Gayatri told that the deceased went with accused/appellant Om Narayan (PW-1), Kunti Bai Verma (PW-4), before whom the deceased talked over mobile phone with accused/appellant Om Narayan (A-1), Premlal Verma (PW-5), whom father of deceased informed that the deceased was called by accused/appellant Om Narayan (A-1) to take his money back, Santram Verma (PW-7) before whom memorandum statements of the accused/appellants were recorded and Pintu Verma (PW-8) before whom the deceased had talked over mobile phone and left his company last. It is well settled position of law that the conviction cannot be recorded against the accused merely on the ground that accused was last seen with the deceased. In other words, conviction cannot be based on the only circumstance of last seen together and normally the Court is required to look for some other corroborative piece of evidence. It is well settled position of law that the conviction cannot be recorded against the accused merely on the ground that accused was last seen with the deceased. In other words, conviction cannot be based on the only circumstance of last seen together and normally the Court is required to look for some other corroborative piece of evidence. Most importantly, the theory of last seen comes into play where the time gap, between the point of time when accused and deceased were seen last alive and when the deceased found dead, is so small that possibility of any person other than accused being the perpetrator of crime, becomes impossible. In the instant case, deceased Bisahu Ram was missing from 1406.2017 and his skeleton was found on 01.07.2017 i.e. after 18 days. As such, there is huge gap between the last seen and the recovery of dead body. 26. The Hon’ble Apex Court in the matter of Padman Bibhar (supra) held in para 20, 21, 22 and 23 as under :- 20. This Court in Kanhaiya Lal v. State of Rajasthans 6 has held that evidence on 'last seen together is a weak piece of evidence and conviction only on the basis of last seen together' without there being any other corroborative evidence against the accused, is not sufficient to convict the accused for an offence under Section 302 IPC. The following passage from the judgment in paras 12 and 15 can be profitably referred: "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 be 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 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" 21. Similarly, this Court in Rambraksh Jalim v. State of Chhattisgarh has reiterated above legal position in the following words in paras 12 and 13: "12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused. 13. In a similar fact situation this Court in Krishnan v. State of ?.?., (2014) 12 SCC 279 held as follows: (SCC pp. 284-85, paras 21-24) "21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 this Court held as follows: (SCC p. 385, para 31) 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.’ 22. 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.’ 22. This Court in Bodhraj v. State of J&K, (2002) 8 SCC 45 held that: (SCC p. 63, para 31) 31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together. 23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4 -2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased. 24. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438 , this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed." 22. In the case at hand also the only evidence against the appellant is of 'last seen together. The evidence of motive does not satisfy us to be an adverse circumstance against the appellant inasmuch as if the appellant has any doubt about his wife's chastity, he would have caused injury or harm to his wife rather than to wife's cousin with whom he had no animosity. Moreover, the so-called weapon of the offence ie. the stone has not been recovered at his instance nor there is any memorandum statement of the appellant. 23. Moreover, the so-called weapon of the offence ie. the stone has not been recovered at his instance nor there is any memorandum statement of the appellant. 23. On the basis of above discussion, we are of the opinion that the nature of circumstantial evidence available against the appellant though raises doubt that he may have committed murder but the same is not so conclusive that he can be convicted only on the basis of evidence on 'last seen together.” 27. This Court in the Tejprakash Sen (supra) held in para 16 as under :- “16. However, in the matter of S. Kaleeswaran v. State by the Inspector of Police Pollachi Town East Police Station, Coimbatore District, Tamil Nadu [2022 SCC OnLine SC 1511] their Lordships of the Supreme Court have made exception to the rule of corpus delicti that if the entire chain is duly proved by cogent evidence, the conviction could be recorded even if the corpus is not found, but when as per the case of the prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else, and it was held as under :- “14. … but when as per the case of the prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else.” 28. In the instant case, it is clear from the merg intimation (Ex.P-2) and the statement of the prosecution witnesses that skeleton of unknown person was recovered on 01.07.2017 i.e. after 18 days of missing of deceased Bisahu Ram, and it is not a case of the prosecution that skeleton was recovered on the basis of memorandum statement of any of the accused persons. The police recorded the memorandum statement of accused persons wherein it was recorded in detail the mode and manner in which deceased Bisahu Ram was done to death and they set the deceased on fire after pouring petrol on him to destroy his identity, and the police only seized motorcycle, petrol bottle and one mobile. 29. Gayatri (PW-1), wife of deceased Bisahu Ram has stated that accused/appellant Om Narayan (A-1) had ringed her deceased husband Bisahu Ram and called him to take his money. The prosecution has collected the call details in this regard and examined Mohit Chelak (PW-22) – Head Constable, who has stated that a letter (Ex.P-41) was sent to obtain call details of mobile SIM Nos. 8719064332 and 9584471897 of missing deceased Bisahu Ram, in which suspected SIM No. 9770833191 and 8959227417 appeared in call details of missing deceased Bisahu Ram and a letter (Ex.P-43) was also sent to obtain call details of those suspected mobile numbers. This witness has also sent a letter (Ex.P-45) to Nodal Officer, Vodaphone to obtain call details of mobile SIM No.9584471897. In cross-examination, this witness had admitted this suggestion of defence that mobile SIM No.8959227417 and 8719064632 are registered in the name of Ranjeet Singh and Madhu Bai, respectively. This witness has also admitted that both these mobile SIM numbers were not registered in the name of deceased Bisahu and Soukhi Ram. He has also admitted that all four mobile SIM Nos. i.e. 8959227417, 8719064632, 9770833191 and 9584471897 were not registered in the name of accused/appellant Om Narayan (A-1) or Uttara Kumar (died during the course of trial). He has also admitted that mobile SIM No. 8959227417 was registered in the name of Ranjeet whose address was village and post office Rahant, Tahsil Ghatigaon, District Gwalior (M.P.). He has also admitted that from 11.06.2017 to 15.06.2017 the location of this mobile SIM No.8959227417 was village Rahant, Tahsil Ghatigaon, District Gwalior (M.P.). The prosecution has utterly failed to prove this fact that how this mobile SIM number connected with accused persons and also failed to prove this fact that on the date of incident, accused Om Narayan (A-1) ringed deceased Bisahu Ram. 30. The prosecution has utterly failed to prove this fact that how this mobile SIM number connected with accused persons and also failed to prove this fact that on the date of incident, accused Om Narayan (A-1) ringed deceased Bisahu Ram. 30. So far involvement of appellant Sacchidanand (A-2) is concerned, witnesses, in particular PW/1, in their entire evidence have not uttered even a single word about him and nothing specific has been brought by the prosecution to show his complicity in the commission of offence. Only on the basis of memorandum statement of accused/appellant Om Narayan (A-1), it cannot be said with certainty that it is the appellants who have committed murder of the deceased unless being corroborated by the substantive piece of evidence. Further, there is no evidence on record to suggest that both the accused persons after hatching criminal conspiracy has committed murder of the deceased. We are not very much impressed by the evidence of these witnesses for the reason that they (PW/1 and PW/4) have simply stated that accused/appellant Om Narayan (A-1) had ringed the deceased and called him to collect his money. Thus, these witnesses cannot be treated as a witness of last seen because nothing has been said by them with regard to last seen of accused/appellants with the deceased. Therefore, the finding of the trial Court accepting testimony of these witnesses for the purpose of last seen is not justified. Furthermore, though the facts involved in the case and the evidence on record give rise to the suspicion about the involvement of the accused/appellants in the crime in question, but in a series of cases it has been held by the Apex Court that howsoever strong the needle of suspicion moves, it cannot take the place of the evidence. One such judgment of the Apex Court dealing with this fact is Commissioner of Police, Delhi & Others V. Jai Bhagwan reported in 2011 (6) SCC 376 . 31. Thus, there is no any evidence produced by the prosecution which shows any link between the accused persons and deceased Bisahu Ram and only Gayatri (PW-1) & Kunti Bai Verma (PW-4), wife and mother of deceased Bisahu Ram, stated that accused/appellant Om Narayan had borrowed some money from deceased so he killed deceased Bisahu Ram and tried to establish the same as motive behind the crime. 32. 32. The Hon’ble Apex Court in the matter of Chunthuram (supra) held in para 17 as under :- “17. On the motive aspect, the land dispute was finally decided and it was stated by Mahtoram, PW 1 (father of the deceased) that Sildhar was murdered when the said land dispute was still pending. If this be the situation, without any further material to show any proximate and immediate motive for the crime, it would be difficult to accept the cited motive, to support the conviction.” 33. The prosecution case is rest upon the circumstantial evidence of last seen and the Supreme Court in the matters of Sattatiya @ Satish Rajanna Kartalla V. State of Maharashtra , (2008) 3SCC 210 and Sharad Birdhichand Sarda V. State of Maharashtra [ (1984) 4 SCC 116 ] has held that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. 34. In the light of above guidelines of Hon’ble Apex Court, looking to the evidence of prosecution witnesses discussed herein above and the documents filed by the prosecution, it is clear that the prosecution has utterly failed to prove that on the date of incident i.e. 14.06.2017, the deceased and accused/appellant Om Narayan was last seen together by Gayatri (PW-1) and he with the assistance of other accused Sacchidanant (A-2) committed the offence. The police have also failed to prove any discovery related to crime on the basis of memorandum statements of the accused persons and have also failed to prove any motive behind the crime. The police have also failed to prove any discovery related to crime on the basis of memorandum statements of the accused persons and have also failed to prove any motive behind the crime. The prosecution has utterly failed to prove the nature of death of deceased to be homicidal in nature but the learned trial Court did not appreciate all these facts and convicted the accused/appellants on the basis of memorandum of accused persons, which is not sustainable in the eye of law. 35. The learned trial Court in para 70 and 71 of its judgment considered the memorandum statement of accused persons and convicted them under Sections 201, 364, 302/34 and 120-B of IPC but considering the quality of evidence collected by the prosecution and the guideline of Hon’ble Apex Court, this Court is of the opinion that conviction of the accused/appellants under Sections 201, 364, 302/34 and 120-B of IPC is not based on due appreciation of the evidence available on record and that being so they are entitled for benefit of doubt. Consequently, the judgment impugned convicting the accused/appellants under Sections 201, 364, 302/34 and 120-B of IPC is set aside and they are hereby acquitted of the charges levelled against them. The appellants are in jail. They be set at liberty forthwith if not required in any other case. 36. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellants are directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 37. The Trial Court’s record along with the copy of this judgment be sent back immediately to the concerned trial Court and Jail Superintendent for compliance and necessary action. 38. Appeal is thus allowed.