JUDGMENT 1. 1. These two appeals arise out of the judgment dated October 8, 1987, passed by the Additional Sessions Judge No. 1, Hanumangarh, by which the learned Additional Sessions Judge convicted the accused-appellants under Section 302/34 IPC and sentenced each of the accused to undergo imprisonment for life and a fine of Rs. 100/-, and in default of payment of fine further undergo 15 days rigorous imprisonment.Accused-appellants Bhoop Ram and Chanan Ram were tried by the learned Additional Sessions Judge No. 1, Hanumangarh, for the offence under Section 302/34 IPC for the murder of one Pappu alias Ramu Ram on the next day of Deepawali in the year 1986 in the out-skirt of village Mammad. The case of the prosecution, as unfolded in the FIR which was lodged at Police Station, Lalgarh, at about 1.30 p.m. on November 3, 1986, by Hukma Ram the father of deceased Ramu Ram, is to the effect that yesterday, in the morning, his son Papu alias Rumu Ram had gone in the village for Ramshama, but did not turn-up up to the evening and there after he searched him in the village, but he was not traceable. Today, in the morning, he again went in search of his son and was informed by Ranveer Singh that yesterday, at about 2.00/2.30 p.m. Chanan Ram, Bhoop Ram and Papu came to his shop and took half kilogram of Bhujiya and went away. At about 5.00 p.m., accused Chanan Ram and Bhoop Ram came to his shop but at that time they were scared. Chanan Ram took Rs. 50/- as a loan from him and went to away. At that time, Pappu was not with them. The informant was further informed by Leelu Ram that yesterday, at about 2-00/3-00 p.m.. accused Chanan Ram, Bhoop Ram and Pappu were seen by him going towards the field of Gurubachan Singh. Leelu Ram and the informant thereafter proceeded towards the field of Gurbachan Singh and when they reached there, Milkiyat Singh met them in the way and he informed them that yesterday at about 3.00 p.m. Chanan Ram, Bhoop Ram and Pappu were seen by him near the water tank of Gurubacchan Singh. On further search, they found the deadbody of Ramu Ram alias Pappu in the Narma crop of Gurubacchan Singh. On further search, they found the deadbody of Ramu Ram alias Pappu in the Narma crop of Gurubacchan Singh. It has, also, been stated in the First Information Report that sometime before, an altercation took place between the accused-appellants and Pappu regarding the cattles and that was the bone of contention between them he suspects that his son has been murdered by Chananram & Bhoopram. On the basis of this information, a case under Section 302/34 IPC was registered against the accused Chanan Ram and Bhoop Ram and the police, after necessary investigation, presented the challan and the accused were tried by the learned Additional Sessions Judge No. 1, Hanumangarh. The prosecution, in support of its case, examined nine witnesses and placed reliance over 17 documents. The accused, in defence, did not examine any witness. The learned Additional Session Judge No. 1, Hanumangarh, after trial, convicted and sentenced the accused, as stated above. 2. The nature of evidence, produced by the prosecution, consists of PW 1 Ram Chandra, who is a witness of the arrest of both the accused, as well as the recovery of the clothes of these two accused and the site plan of these recoveries made. He is, also, a witness to the site plan Ex. P. 7 the place where the deceased Ramu Ram was allegedly murdered. He is, also, a witness to the extra-judicial confession alleged to have been made by the accused Chanan Ram before him PW 2 Ranveer Singh is a shop-keeper who has last seen the deceased in the company of the accused-appellants at about 2.00/2.30 p.m. in his shop and saw the accused at his shop at about 5.00 again and at that time the deceased Pappu was not with them. PW 3 Leelu Ram and PW 4 Milkiyat Singh are the two witnesses regarding the last seen of the accused, but they have not supported the prosecution case and have been declared hostile. PW 5 Chandu Ram is the witness, who has seen the accused Chanan Ram on the date of the occurrence washing his clothes, PW 6 Hukma Ram is the father of the deceased, who had lodged the report and has stated that Chanan Ram, on the date of the occurrence called his son Ramu Ram alias Pappu and both went together. This witness has, also, been declared hostile as he has not supported the prosecution cases PW 7 Ashok Kumar is the Foot Constable, who took the sealed packets to the State Forensic Science Laboratory. Rajasthan, Jaipur, for examination. PW 8 Mansingh is the In charge of Malkhana, in whose custody, the sealed articles remained in the Malkhana. PW 9 is Dr. H.S. Kang, who conducted the post-mortem on the dead body of deceased Ramu Ram. The Investigating officer Jai singh did not appear in the witness box. 3. We have heard the learned counsel for the appellant and the learned Public Prosecutor and perused the record of the case and the judgment passed by the Court below. 4. There is no eye witness of the occurrence and the case of the prosecution mainly rests upon the circumstantial evidence. The circumstantial evidence, relied upon by the prosecution consists of: (i) PW 6 Hukma Ram, in whose presence deceased Ramu Ram went alongwith accused Chanan Ram on the next day of Deepawali; (ii) the evidence of PW 2 Ranveer, who had seen the deceased in the company of the accused-appellants at about 2.00/2.30 p.m. on November 2, 1986 and who purchased Bhujiya from his shop and thereafter in the evening, both the accused came there, but at that time the deceased Ramu Ram was not with them and accused Chanan Ram borrowed a sum of Rs. 50/- from him; (iii) the deceased Ramuram was seen in the company of the accused-appellants near the place of the occurrence by PW 3 Leelu Ram and PW 4 Malkiyat Singh; (iv) accused Chanan Ram was seen washing his clothes near the water-pond near the place of the occurrence by PW 5 Chandu Ram; (v) recovery of two blood-stained bricks from the place of the occurrence and the recovery of Bhujiya; and (vi) the motive and the extra-judicial confession alleged to have been made by the accused Chanan Ram before PW 1 Ram Chandra. 5. Though there is no difference between the direct evidence and the circumstantial evidence and the conviction can be based even on the basis of the circumstantial evidence, provided the circumstantial evidence produced by the prosecution should be conclusive in nature and the chain of the evidence should be so complete, which should be consistent only with the hypothesis of the guilt of the accused. 6. 6. Now, we have to see : whether the cumulative circumstances, on which reliance has been placed by the prosecution, are such that the act of murder of Ramuram has been done by the present two accused-appellants ? So far as the evidence of PW 3 Leeluram, PW 4 Malkiyat Singh and PW 6 Hukmaram is concerned, though they have been declared hostile by the prosecution, but merely declaring them hostile, their whole evidence cannot be wiped-off. The evidence of hostile witness is not automatically wholly effaced from the record, but the acceptable part of the evidence can be acted upon. In the light of this fact, we have to scrutinise and assess the evidence of these witnesses, on the point. PW 6 Hukmaram is the father of the deceased. He has not supported the prosecution case on all the points, but he has stated that on the next day of Deepawli, that is, on the day of Ramashama, his son Ramuram was called by accused Chananram and both went together. He waited the return of his son upto evening, but he did not turn-up and, therefore, he searched him in the evening. Next day also, he made search of his son and enquired from Leeluram, but he was, also, unable to tell about the where abouts of Ramuram. They both searched Ramuram in the village and ultimately found the dead body of his son in the field near the Kotha. This witness, though has stated in the examination-in-chief that his son went away with accused Chananram on the next day of Deepawali, but in the First Information Report, he has only stated that on the day of Ramashama, his son had gone to the village for paying Ramashama. There he did not state that he went with Chananram and, therefore, the evidence of this witness on this point that the deceased went with accused Chananram on the next day of Deepawali, cannot be relied upon. 7. There he did not state that he went with Chananram and, therefore, the evidence of this witness on this point that the deceased went with accused Chananram on the next day of Deepawali, cannot be relied upon. 7. The next circumstance, on which the reliance has been placed by the prosecution, relation the statement of PW 2 Ranveer, who has stated that about six months before, on the next day of Deepawali, accused Chananram and Bhoopram along with deceased Pappu came to his shop and purchased Bhujiya from him and in the evening, both the accused Chananram and Bhoopram came there, but at that time deceased Pappu was not with them and accused Chananram borrowed a sum of Rs. 50/- from him and after that, nobody came to him. The police came after two/three days of that day and he informed the police only and before informing the police, he did not inform about this fact to anybody. In the cross-examination, he has admitted that he does not know, who were the other persons who came to his shop and as he does not remember the names of those persons, he cannot name them out. He, also, does not remember the names of these two accused, but as the police enquired about the names of these two accused persons, he, therefore, gave the names of these persons. He, also, stated that when the accused came there along with the deceased Pappu, 6 to 7 persons were, also, present at his shop. He has admitted that he had seen these three persons in his shop and where they went, he cannot say. After taking Bhujiya, with whom they went, he cannot say. If we critically examine the evidence of this witness then this witness has already stated that he did not inform any person about the coming and going of the accused persons along with the deceased Pappu to his shop before telling this fact to the police. If he had not stated this fact any other person then how Hukmaram the father of the deceased came to know regarding this fact. He has, also, specifically stated that he does not remember the name of any of the persons who came to his shop on the day concerned, including the names of these accused persons, but he gave the names of these accused only when it was enquired by the police. He has, also, specifically stated that he does not remember the name of any of the persons who came to his shop on the day concerned, including the names of these accused persons, but he gave the names of these accused only when it was enquired by the police. Further more, his statement is that from his shop, after taking Bhujiya, the accused persons went with whom, he does not know. He had only seen them in the shop and the accused and the deceased Pappu might have come to his shop separately as, according to this witness, certain other customers were, also, there and, therefore, his evidence that the two accused and the deceased Pappu were present in the shop of this witness at the same time, is of not much help to the prosecution and does not connect the accused with the crime. 8. The next circumstance, relied upon by the prosecution, is the evidence of PW 3 Leelu Ram, who had seen the deceased Pappu in the company of the accused near the place where the dead body was found. This witness has been declared hostile as he has not supported the prosecution case. But, however, in the cross-examination, conducted by the Additional Public Prosecutor, he has stated that the dead body of deceased Ramu Ram was found in the field of Gurubacchan Singh and near the dead body, there were lying two bricks, which were smeared with blood and one Chappal and some Bhujiyas were, also, lying there. This witness has, however, denied presence of the accused-appellants along with Ramuram in the field of Gurubacchan Singh. This witness is, therefore, of no help to the prosecution and this circumstance of last seeing the accused with the deceased Ramuram near the place of occurrence, also, does not find support from the evidence produced by the prosecution. 9. There is another witness PW 4 Malkiyat Singh regarding the last seeing of the deceased Ramuram in the company of the accused at a distance of about four Bighas from the place where the dead body was recovered. This witness has, also turned hostile as he has not supported the prosecution case. 9. There is another witness PW 4 Malkiyat Singh regarding the last seeing of the deceased Ramuram in the company of the accused at a distance of about four Bighas from the place where the dead body was recovered. This witness has, also turned hostile as he has not supported the prosecution case. In the cross-examination, this witness has, however, admitted that he had seen the deceased in the company of the accused-appellants at a distance of about four Bighas from the water pond on that day, but he has denied that Hukma Ram and Leelu Ram met him on the next day. He has, also, denied that he informed Hukmaram about his son as he never enquired from him. In the cross-examination, conducted by the counsel for the accused, he has denied that he did inform the police regarding the last seeing of deceased Pappu in the company of accused Chanan Ram and Bhoopram and has wrongly been mentioned in Ex. P 9 that he saw accused Chanan Ram, Bhoop Ram and the deceased Pappu together near the water pond. He has, also, admitted in the cross-examination that he was examined by the police on 30th while his statement has been alleged to be recorded on 28th. This witness was examined by the police for the first time on November 29, 1986, while the incident took place on November 2, 1986, and the so called report was lodged in the Police Station on November, 3, 1986. When this witness has seen the deceased in the company of the accused on the date of the occurrence then why he was examined so late? The late examination of this witness by the prosecution/police creates a doubt in the credibility of the evidence of this witness and further-more, there is a discrepancy in the statement of this witness given in the examination-in-chief than in the cross-examination, conducted by the prosecution and later on, in the cross-examination, conducted by the accused, and, therefore, in our view, this witness is not speaking the truth and no reliance can be placed on the evidence of this witness. 10. The next circumstance, relied upon by the prosecution, is regarding the recoveries of two blood-stained bricks and Bhujiya made from the place of the occurrence. These recoveries have not been proved by any of the prosecution witnesses. 10. The next circumstance, relied upon by the prosecution, is regarding the recoveries of two blood-stained bricks and Bhujiya made from the place of the occurrence. These recoveries have not been proved by any of the prosecution witnesses. Even the investigating officer Jai Singh did not appear in the witness-box. The learned counsel for the appellant has submitted that as the Investigating Officer himself did not appear in the witness-box, therefore, the whole trial and conviction of the accused-appellants stand vitiated and the accused-appellants deserve to be acquitted. We have considered this aspect of the case. Merely because the Investigating Officer did not appear in the witness-box, the whole case of the prosecution cannot be thrown-away. Only that part of the prosecution can be relied upon which stands proved from the evidence produced by the prosecution and the remaining part can be rejected. It is, no doubt, true that the Investigating Officer is an essential witness and his examination is absolutely necessary to unfold the narration of the fact made by the prosecution witnesses and it is only then that the Court is placed in a position to consider the effect of his testimony on the story on which the prosecution of an accused is based, but merely because the Investigating Officer has not been produced by the prosecution, it will not vitiate the trial & the case can be decided on the basis of the evidence produced by the prosecution. If the remaining evidence inspires some confidence the accused can be held guilty on the basis of such reliable evidence. In this view of the matter, the recoveries made by the Investigation Officer, which have not been proved by the prosecution, cannot be relied upon. But so far as the ocular testimony of the other witnesses is concerned where there is no contradiction from the statement recorded under Section 161 Cr. PC and which have not been confronted to, that part of the statement of the witnesses can be relied upon and the prosecution case cannot be thrown away merely on account of the non-production of the Investigating Officer. Therefore, the alleged recoveries of the two blood-stained bricks and Bhujiya, which are sought to be recovered from the place of the occurrence, cannot be read in evidence as no such recoveries have been proved by the prosecution by producing the Investigating Officer. 11. Therefore, the alleged recoveries of the two blood-stained bricks and Bhujiya, which are sought to be recovered from the place of the occurrence, cannot be read in evidence as no such recoveries have been proved by the prosecution by producing the Investigating Officer. 11. The next circumstance, relied upon by the prosecution, relates to the motive. It is, no doubt, true that in the First information Report itself, the motive given by the informant Hukma Ram is that some days before the date of the occurrence, on account of some cattles, a quarrel took place between the deceased on the one hand and the accused-appellants on the other hand, but this incident was neither reported before the police nor the grievance was reported to any other person. Moreover, this small quarrel in the villages on account of cattles is not such a strong motive which provides a cause to the accused to commit the murder of deceased Ramu Ram and we find ourselves unable to place reliance over such a weak type of motive. 12. The last circumstance, relied upon by the prosecution is regarding the extra-judicial confession made by accused Chanan Ram before PW 1 Ram Chandra. Though the learned trial Court has not placed reliance over this evidence, but we will like to consider this evidence also. PW 1 Ram Chandra has stated that on last Deepawali's day, the accused Chanan Ram was arrested in his presence and some recoveries were made in his presence. He has, also, stated that accused Chanan Ram informed him that he killed Ramu Ram and will show the plaee of occurrence to him and accused Chanan Ram, after stating so, showed the place of occurrence to him. In the cross-examination, he has admitted that when the accused made this confession before him, at that time the police was, also, present there. He has, also, admitted that he is not the Sarpanch or Panch of the Gram Panchayat and he was called by the Thanedar from his house. Regarding the recoveries, he has admitted that the clothes were not produced by the accused Chanan Ram, but they were produced by his mother. He has, also, admitted that he is not the Sarpanch or Panch of the Gram Panchayat and he was called by the Thanedar from his house. Regarding the recoveries, he has admitted that the clothes were not produced by the accused Chanan Ram, but they were produced by his mother. He has, also, admitted in the cross-examination that the confession was made by the accused Chanan Ram in the presence of the police and he showed the place of occurrence to the police in his presence and before going to the site in order to show the place of the occurrence, he gave this confessional statement. So far as the place of occurrence is concerned, that was already known to the witness, as prior to that, the deadbody was found there. Moreover, in the statement of this witness, he has nowhere given the time, date & the place where the accused made the confessional statement before him and he has, also, admitted that the confessional statement was made by accused Chanan Ram before him in the presence of the police. This witness was not intimately known to the accused nor was he in a position to help the accused in any way and he was almost a stranger to the accused. He had no previous connection with the confessing accused &, therefore, there was no question of making any extra-judicial confession by accused Chanan Ram before this witness. Moreover, as per his own version, the statement was made by the accused in the presence of the police and in this view of the matter, the statement of the accused Chanan Ram cannot be read in evidence as the confessional statement under Section 24 of the Evidence Act. Moreover, the evidence of the extra-judicial confession is a weak type of evidence and in itself it cannot form the basis of conviction, but it can be called in aid to lend assistance to the other evidence produced by the prosecution. Moreover, the evidence of the extra-judicial confession is a weak type of evidence and in itself it cannot form the basis of conviction, but it can be called in aid to lend assistance to the other evidence produced by the prosecution. The evidence of extra-judicial confession, alleged to have been made by accused Chanan Ram before PW 1 Ram Chandra, therefore, does not inspire any confidence and we are of the view that no such confessional statement was made by accused Chanan Ram before this witness and we are of the opinion that it is highly improbable that the accused would have gone to him and had made any confession before him as this witness was not such a person on whom the accused could have reposed confidence. 13. There is one other aspect of the case, also. Though it has been mentioned that the First Information Report was lodged at Police Station Lalgarh, on November 3, 1986 at 3.00 p.m. and the dead body of deceased Ramu Ram was recovered on November 3, 1986 itself, but the postmortem on the deadbody of Ramu Ram was conducted on November 4, 1986. at 11.00 a.m. If the First Information Report would have been lodged on November 3, 1986 and the investigation would have started at 3-00 p.m. on November 3, 1986, the natural consequence would be that immediately after the recovery of the dead body, it should have been referred for post-mortem examination on November 3, 1986, itself. But the post-mortem has been conducted on November 4, 1986 and even the requisition, which was sent to the doctor for conducting the post-mortem, also, does not bear the number of the FIR. This FIR reached in the Court on November 4, 1986 at 1.20 p.m. Hukma Ram, who lodged the report, in his cross-examination has admitted that the police did not record the First Information Report at the Police Station when he went to lodge the report and he was asked by the policemen that first the site will be inspected and thereafter the First Information Report will be registered. The Investigating Officer in the case Shri Jai Singh, who conducted the investigation and filed the challan, did not appear in the witness-box to explain this infirmity. The Investigating Officer in the case Shri Jai Singh, who conducted the investigation and filed the challan, did not appear in the witness-box to explain this infirmity. The over-all attending circumstances create a doubt in the prosecution case and it shows that probably the First Information Report was not registered at the Police Station at the time and date when it is shown to be registered. 14. The combined effect of all the circumstantial evidence, put together, answers the question essential to the proof of the offence only vaguely and inadequately and not incompetible with the innocence of the accused and does not establish the guilt of the accused. If we weigh all the circumstantial evidence produced by the prosecution as an integrated then it is not proved that the act has been done by the present accused appellants and the prosecution has failed to prove the case against the accused-appellants beyond reasonable manner of doubt. 15. Consequently, we allow the appeals, filed by the accused-1 appellants Chanan Ram and Bhoop Ram; set-aside the conviction and sentence passed under Section 302/34 IPC against them by the learned Additional Sessions Judge No-1 Hanumangarh, and acquit the accused-appellants of the offence they were charged-with and tried. The accused-appellants are in jail. They may be released forthwith, if they are not required in any other case.Appeal allowed. *******