Judgment Palok Basu, J. 1. The aforesaid three appeals have been filed against the judgment and order of Sessions Judge, Non-Metropolitan Area, Kanpur, dated 26-11-1977 convicting the appellants Ghafoora, Sri Narain and Brijesh Kumar under section 302/120-B. IPC and 201 IPC and sentencing them there under to imprisonment for life on the first two counts and five years R.I. on the second count. Appellant Sharif was, however, convicted under section 201 IPC only and sentenced to five years' R.I. and acquitted of the charge under section 302 IPC. 2. The charge against the appellants was that they had entered into a criminal conspiracy for commuting the murder of Sushil Kumar on 26-2-1974 at the shop of Brijesh Kumar and then actually committed the murder of Sushil Kumar sometime between 26th and 27th February, 1974, in Bilhaur whereafter they made attempts to disappear the evidence punishable under section 120-B, 302 and 201 IPC. The prosecution case is that the deceased Sushil Kumar and PW 13 Devendra Kumar are sons of PW 1 Bisbeshwar Nath who had an ornaments shop and Ice candy Factory in Bilhaur, looked after by both the sons. The shop used to be closed down by about 8 or 9 P.M. which used to be opened daily in the morning by the two sons at about 7 or 8 A.M. The motor cycle bearing Registration No. U.P. 1-9180 belonged to Devendra Kumar. The appellant Brijesh Kumar is the son of the nephew of informant Bisheshwar Nath PW 1. The appellant Sri Narain is the uncle (Phupha) of the appellant Brijesh Kumar. They and Sushil Kumar deceased were on friendly terms. Brijesh Kumar had a machinary shop of which PW 8 Onkar Shukla is the owner. The other appellants are also residents of Bilhaur being frinedly with Brijesh Kumar and Sri Narain. 3. The further case of the prosecution is that a few days prior to 26-2-1974 Brijesh and Sri Narain had demanded Rs. 1000.00 from Bisheshwar which was refused and this caused annoyance. The other appellants are also residents of Bilhaur being frinedly with Brijesh Kumar and Sri Narain. 3. The further case of the prosecution is that a few days prior to 26-2-1974 Brijesh and Sri Narain had demanded Rs. 1000.00 from Bisheshwar which was refused and this caused annoyance. Bye-election to the Council took place on 26-2-1974 In which the deceased Sushil Kumar supported a candidate named Moti Lal in which he remained busy till about 1 P. M. and then went to his house for the meals and again came to the shop with Devendra Kumar Appellants Brijesh and Sri Narain came to the ornaments shop at about 5.30 P. M. on 20-4-1974 end had a conversation with Sushil about bringing a tyre from Araul whereafter they left. They again came at 9.30 P.M. and took Sushil Kumar a little aside to talk to him and thereafter went away along with Sushil Kumar on the motor cycle bearing number U.P. 1-9180. Devendra was told by Sushil that he was going to bring the tyre from Araul and would be back soon and then go to their hose Devendra waited in vain and slept in the shop As Sushil (did not turn up Bisheshwar Nath contacted Devendra in the shop in that morning when the latter told him what had happened in the preceding night. A search commenced and the motor cycle U.P. 1-9180 was found standing near the shop of Brijesh in Ashiq Bagh having portion of the glass of the headlight broken. They were told by PW 10 Ramadhin a neighbouring shop-keeper of Brijesh, that at about 3.30 A.M. he had got up on the sound of the Shutters of Brijesh's shop. Brijesh thereafter bed been seen by him attempting to start the motor cycle which did not ingnite, at which Brijesh closed the shop and went towards the town. 4. Inspite of further search Sushil could not be found out and consequently Bisheshwar Nath lodged an FIR at Police Station Bilhaur on 27-2-1974 at 7.30 P. M., proved as Ex. ka-1. The corresponding general diary entry has been proved as Ex ka-2. PW 14 Ram Nath Tyagi, S.I. commenced investigation on 28- 2-1974 and reached the shop of the informant at 9 A.M. and interrogated some witnesses He also Inspected the shop of Brijesh and found motor cycle U.P.I.-9180 standing there with a broken head-light. ka-1. The corresponding general diary entry has been proved as Ex ka-2. PW 14 Ram Nath Tyagi, S.I. commenced investigation on 28- 2-1974 and reached the shop of the informant at 9 A.M. and interrogated some witnesses He also Inspected the shop of Brijesh and found motor cycle U.P.I.-9180 standing there with a broken head-light. A memo was prepared concerning the recovery of the motor cycle proved as Ex. ka-5 and handed over to informant for safe custody. A site plan Ex. ka-8 was also prepared. He searched the houses of Ghafoora, munna and Sharif, but none could be found. 5. S.I. Ran Nath Tygi is said to have arrested appellants Brijesh and Sri Narain in the night of 1-3-1974 near the Octroi Post Bilhaur. Ghafoora was also with them but escaped. Appellant Brijesh led the investigating Officer to his shop and discovered the broken pieces of the head-light of the motor cycle. A memo Ex. ka-6 signed by the witnesses and also appellant Brijesh was prepared and the glass pieces were material Ex. 1 in the trial Court. 6. Proceedings under sections 87 and 88 CrPC were taken against Munna, Ghafoora and Sharif vide attachment memos Ex. ka-17 ka-21 and ka-25 respectively Appellants Brijesh and Sri Narain were charge sheeted under section 364 IPC while accused Ghafoora, Munna and Sharif were shown as absconders. Appellant Sharif surrendered in court on 8-4-1974 and the Investigating Officer obtained Police remand for three days. During investigation of appellant Sharif he led the Investigating Officer to the dried up well of Salim at Idgah and at his pointing out, a dead body was discovered which was tied up by rope and kathri. It was a headless male body from which most part of the flesh had disappeared on decomposition which was also wearing a striped underwear and a Hawai chappal was also recovered Informant Bisheshwar and his son Devendra identified the body as that of Sushil and also the underwear and the Hawai Chappal as belonging to deceased Sushil. Memos were prepared which were proved as Ex. ka-7. Inquest report prepared by the Investigating Officer had been proved as Ex. ka-27 other, documents relating to the said discovery and the site plan have been proved as Ext. ka-28, ka-29 and ka-30. 7. It is said that, vide general diary entry proved as Ex. ka-31, the case was converted into section 302 IPC. 8. ka-7. Inquest report prepared by the Investigating Officer had been proved as Ex. ka-27 other, documents relating to the said discovery and the site plan have been proved as Ext. ka-28, ka-29 and ka-30. 7. It is said that, vide general diary entry proved as Ex. ka-31, the case was converted into section 302 IPC. 8. Ghafoora accused was arrested on 17-4-1974 and Munna accused was still absconding. Appellant Sharif was produced by the Investigating Officer before the Medical Officer Dr. S.K. Khare (PW 4) who examined him on 12-4-74 at 12.05 P.M. and found that he had one incised wound ½" x ¼" on the terminal, phalanx on the left index finger having overgrowth of granulation tissues and scar, which was said to be old and partially healed up wound. The dead body was sent for post mortem examination the report regarding which is Ex. ka-33 it was found at the post mortem examination held on 11-4-1974 at 2.30 P.M. that the body was of a male person in advanced stage of decomposition. No injury could be determined, no cause of death could be ascertained. 9. In order to prove its case the prosecution has examined in all 14 witnesses. It may be stated here that there is no eye-witness available regarding the actual murder and the case rests upon circumstantial evidence. If it can be held that all the circumstances have been proved and cumulative effect of all the proved circumstances is that the appellants have committed the murder of Sushil Kumar deceased, then only the charge under section 302 IPC and other allied offences can be said to have been made out. 10. Sri S.S. Tiwati and Sri Manzarul Islam, learned counsel for the appellants have been heard at length while Sri D.N. Yadav, learned AGA has been heard in support of the state. The entire evidence and record has been scrutinised. It may be mentioned here that Manna accused had also surrendered subsequently and tried along with other accused. However, the case as against him was held to have not been established at all and he was acquitted by the Trial Judge. The entire evidence and record has been scrutinised. It may be mentioned here that Manna accused had also surrendered subsequently and tried along with other accused. However, the case as against him was held to have not been established at all and he was acquitted by the Trial Judge. Similarly the learned Trial Judge held that the charge under section 302 IPC was not made oat as against Sharif and held him guilty only under section 201 IPC and sentenced him to five year's R.I. However, by recording a finding that the charge under sections 120-B, 302 and 201, IPC was brought home as regards appellants Brijesh Kumar and Sri Narain as also Ghafoora these three were convicted and sentenced as stated above 11. The State has not preferred any appeal as regards the acquittal of Munna and also acquittal of Sharif under section 302 IPC. Aggrieved by the conviction and sentence these three appeals have been filed in this Court. 12. The finding of the trial Judge that the dead body which was said to have been recovered from the well near Idgah on 10-4-1974 was that of Sushil Kumar, son of the informant, has been seriously challenged by the learned Counsel for the appellants. The only basis on which the said dead body is said to be that of Sushil Kumar is that a Chappal was found in the well and that a striped underwear which the dead body wearing belonged to Sushil Kumar. 13. The evidence of indentifying the Ghappal and the underwear as that of deceased Sushil Kumar consits of the testimony of Bisheshwar Nath and Devendra It may be remembered that the incident of alleged elopement had happened on 26-2-1974 and the alleged dead body was recovered/discovered on 10-4-1974. That means, more than one and a half months had elapsed when the said dead body was recovered. There was no tattooing or special mark of identification indicating the dead body to be that of Sushil Kumar. No mark of injury was found on the headless body. Cause of death of the said headless body could not be ascertained. Under the circumstances the body could It-self never have been identified to be that of Sushil Kumar. There was no tattooing or special mark of identification indicating the dead body to be that of Sushil Kumar. No mark of injury was found on the headless body. Cause of death of the said headless body could not be ascertained. Under the circumstances the body could It-self never have been identified to be that of Sushil Kumar. Assuming that the said body was patting on an underwear and a Chappal which were also found nearabout, it is impossible to believe any body identifying the said underwear as belonging to deceased Sushil Kumar there was no special mark of identification such as name etc on the underwear A chappal made of rubber is also a common thing and nothing special was recovered besides the chappal so that it must be said that it was belonging to Sushil Kumar, No test Identification parade of the two articles was held there is no other evidence whatsoever to suggest that the said headless body was that of Sushil Kumar Under the circumstances, it is not proved that the alleged discovery of the headless dead body was that of Sushil Kumar son of the Informant who is said to have been missing from 26-2-1974. 14. The second attack of the learned counsel for the appellants was on the evidence concerning the conspiracy which is said to have been hatched at the shop of Brijesh Kumar around 8.30 P.M. on 26-2-1974. The only evidence regarding the aforesaid conspiracy consists of the socalled testimony of PW 2 Ram Nath and PW 5 Jamil. Both these witnesses have said that they had gone together to the house of Onkar for having a shop on rent. They were standing at about 4 paces away at the shop of the Brijesh around 8.30 P.M. on the said night and they called Onkar by name twice or thrice but none responded. It is said that they had overheard Brijesh saying that Bisheshwar Nath (informant) will not part with any money and strong action is needed then accused Ghafoora said that day was quite opportune and Sushil Kumar should be brought quietly for settling the matter. It is said that they had overheard Brijesh saying that Bisheshwar Nath (informant) will not part with any money and strong action is needed then accused Ghafoora said that day was quite opportune and Sushil Kumar should be brought quietly for settling the matter. The criticums against the said testimony of these two witnesses is that they had admitted to be employees of the informant and were utterly chance witnesses and the entire testimony put forth by them smacks of artificiality and that a conspiractor would not talk so loud in the presence of outsiders so as to disclose conspiracy itself to them. It is argued that the very purpose of the conspiracy would fail if such conduct of accused in talking loudly in the presence of third person is accepted. 15. The Trial Judge has not denied the fact that both these witnesses were in the employment of Baijnath. He has not discussed the criticism that both these witnesses were utterly chance witnesses and the version is wholly artificial. A complete examination and combined reading of the statements of these two witnesses PW 2 Ramnath and PW 5 Jamil disclose that they are interested persons and had no business whatsoever to come to the residence of Onkar, much less have any reason to overhear the alleged conversation between the accused regarding Sushil Kamar in the night for settling the matter. The evidence is highly artificial and has the stamp of cooked-up evidence no reliance whatsoever can be placed on the testimony of these two witnesses. Consequently, the alleged conspiracy evidence falls through. 16. Another circumstance said to have been proved against the appellants was that Brijesh Kumar and Sri Narain appellants had come to the shop of Sushil Kumar and had promised to take him to Araul and they had come agate at 9 or 9 30 P.M and took away Sushil Kumar on a motor cycle UPI-9180. PW 7 Ram Kishan, a neighbouring shop keeper, is the only witness to support the said version put forward initialy by PW 13 Devendra Kumar, brother of the deceased the statement of PW 7 Ram Kishan is without any blemish and fully corroborates the testimony of PW 13 Devendra Kumar. PW 7 Ram Kishan, a neighbouring shop keeper, is the only witness to support the said version put forward initialy by PW 13 Devendra Kumar, brother of the deceased the statement of PW 7 Ram Kishan is without any blemish and fully corroborates the testimony of PW 13 Devendra Kumar. Ram Kishan says that his residence and shop are situate in the same building and that he had seen deceased Sushil Kumar going along with Brijesh Kumar and Sri Narain appellants on the motor cycle of Sushil Kumar towards Araul. 17. However, as to the other circumstance as to whether appellants Brijesh and Sri Narain had gone to the shop of Sushil Kumar at about 5.30 P.M. on 26-2-1974 or not it Is sot established by any independent witness on record. The aforesaid circumstance is sought to be proved only through the statement of Devendra PW 13. He is the brother of the deceased and the fact remains that he would be within the category of interested witness. In a case of the present nature some independent witness would be insisted noon to prove each circumtance. Therefore, it must be said that the prosecution has not proved the fact or circumstance beyond reasonable doubt that appellants Brijesh Kumar and Sri Narain had gone to the shop of Sushil Kumar/BriJnath's home at 5 or 5.30 P.M. 18. The other circumstance sought to be proved by the prosecution is that the deceased Sushil Kumar was seen along with appellants Brijesh Kumar, Sri Narain and Ghafoora on 26-2-1974 at 10.15 P.M. This circumstance is sought to be proved by the statement of PW 6 Meva Lal. This witness is Pradhan of village Deekall and was allegedly supporting the candidature of Moti Lal. He says that while returning after election work around 10.15 P.M. on 26-2-1974 he was going to take dinner in Papa Hotel situated in front of the Petrol Pump on G. T. Road. He had seen Sushil Kumar deceased along with accused Brijesh Kumar, Sri Narain, Ghafoora and Sharif and another accused. This witness was asked to Identify the accused whom he allegedly saw in the said night. He had seen Sushil Kumar deceased along with accused Brijesh Kumar, Sri Narain, Ghafoora and Sharif and another accused. This witness was asked to Identify the accused whom he allegedly saw in the said night. This witness wrongly identified Munna accused and Sharif appellant He has admitted in cross-examination that Papa Hotel will be about 1 furlong away from the shoo of Brijesh Kumar and that he had noticed the accused along with Sushil Kumar from a distance of about 150 or 200 yards away. 19. The learned counsel for the appellants criticised the testimony of Meva Lal on the ground that his power of observation was obviously unreliable inasmuch as he could not identify two of the accused and wrongly picked them up though he had named them It is true that this witness was also present per-chance and nothing has come out to indicate that be could really notice the appellants around 10.15 P.M on the night of the incident and his testimony does not inspire confidence. Hence the circumstance that the accused were last seen with the deceased at 10.15 P.M. on 26-2-1974 is not established beyond doubt. 20. A word should be said as to how this noticing of the appellants along with deceased on 26-2-1974 can be said to be furnishing 'last seen' evidence. The category Mast seen* can be fixed only when the death of a particular person is established beyond doubt. As stated above, since the dead body cannot be said to be that of missing Sushil Kumar who is taken to be the deceased, even if it is held that the appellants were seen on 26-2-1974 at 10.15 P.M. along with Sushil Kumar it will not be furnishing 'last seen' evidence. The question of alleged discovery of the dead body may also be examined independently of the question as to whose body was recovered. Since it is said that appellant Sharif had taken the investigating Officer PW 14 Ram Nath Tyagi who picked up two public witnesses, namely, PW 11 Liladhar and PW 12 Chhote Lal, in order to point out the dead body of Sushil Kumar, the exact statement as deposed to by PW 11 Liladhar may be quoted here for ready reference. "JAHAN USNEY GHAFOOR AUR UNKEY SATHIYON SEY SUSHIL KI MAR KAR DALA HAI MAIN BATA DOON GA". "JAHAN USNEY GHAFOOR AUR UNKEY SATHIYON SEY SUSHIL KI MAR KAR DALA HAI MAIN BATA DOON GA". Translated Into English it means that Sharif had volunteered to indicate the place where he (co-accused Ghaffor) and his other companions had put Sushil after merdering him, he would be indicating. The further case of the prosecution is that when Sharif reached the well in Idgah he pointed out to the Investigating Officer "ISI MEN DALA HAI" Translated into English this would mean "Thrown into this". 21. The learned Trial Judge has held that the statement of Sharif would be admissible under section 27 of the Indian Evidence Act. However, the actual provisions contained in the Indian Evidence Act would not permit the court to use the statement of the accused that the dead body was that of Sushil. The prosecution evidence as to whether the dead body, which was otherwise not identifiable as it is, cannot succeed by putting words into the mouth of an accused that the said unidentifiable dead body was that of the deceased. If the instant move adopted by the prosecution is permitted, disastrous result may ensure inasmuch as the prosecution would start finding it convenient to put into the mouth of an accused his alleged statement that the unidentifiable body was that of the deceased of a given case. This is not permissible under the Indian Evidence Act Consequently, the Trial Judge bad committed an error in reading the aforesaid statement of Sharif as admissible under section 27 of the Indian Evidence Act. This finding would also go to indicate that the prosecution has miserably failed to prove that the dead body of Sushil Kumar has at all been recovered, much less discovered. 22. THE only other circumstance which is sought to be proved by the prosecution consists of the testimony of PW 10 Ramdhin who has testified that he had seen Brijesh appellant standing near his shop (Brijesh's shop) in the night between 26th/27 of February 1974 at about 3.30 A M THEre is absolutely no reason to doubt the testimony of the aforesaid witness who is resident of the same place and lives in upper story of the Shop. Admittedly the shop of Brijesh is In the immediate neighbourhood of the shop of this witness. Admittedly the shop of Brijesh is In the immediate neighbourhood of the shop of this witness. THErefore, the fact that Brijesh was seen at about 3.30 A.M. in his shop and was on a motor cycle bearing Registration No. UPI-9180 is proved beyond doubt. THE proving of this circumstance does not, in any way, help the prosecution, inasmuch as isolated from the other facts and circumstance, this circumstance does not mean or Indicate that Sushil Kumar was abducted or killed.In view of the aforesaid discussion the prosecution has failed to prove the charges against any of the appellants beyond reasonable doubt 23. The result, therefore, is that these appeals succeed and are allowed. All the four appellants are acquitted of the offence with which they have been charged. They are on ball they need not surrender their ball bonds are discharged. Appeal allowed.