Appellants Har Prasad and Ram Khelawan were found guilty on the charges under Section 302/34 IPC and under Section 201 IPC vide the judgment and order dated 30-4-91 passed by the learned Sessions Judge, Sonbhadra in S. T No. 44 of 90, State v. Har Prasad and Ram Khelawan and were sentenced to un dergo life imprisonment on the charge under Section 302/34 IPC and 3 years R. I. on the charge under Section 201 IPC. Both the sentence have been ordered to run concurrently. 2. The prosecution case started on the basis of a written FIR lodged by Sri Chet Singh, s/o Shiv Narain Gaur, deceased. The incident is said to have taken place on 4-8-90 at 6 p. m. The report was lodged on the following day on 5-8-90 at 18. 05 p. m. The distance of police station is37kms. 3. It has been alleged that the complainants father Shri Shiv Narain (deceased) had gone to graze his cattle in the jungle. He did not return till 5 p. m. Therefore, an anxiety arose in the mind of the complainant and he went out along with others in search of his father. His companion Sri Vishwa Nath, complainants uncle was accompanying him. They found Dhansa, P. W. 3 coming there running. He told the complainant and others that the accused Ram Khelawan and Har Prasad, were pressing the neck of Shiv Narain under a Mahua tree with a lathi. But he himself could not collect strength and muster courage to go there and prevent the accused from doing so. Therefore, he informed the com plainant and others. Jai Lai and Udai Raj also came there running and all of them went towards the place of occurrence. After going on the hillock they saw that both the accused were pressing the neck of deceased Shiv Narain and thereafter mur dering him, they threw the dead body in a ditch. It was around 6 p. m. It started run- ning. Thereafter and darkness set in Shiv Narains dead body could not be recovered. Next morning i. e. on 5-8-90, the complainant along with others, including Dyali Pradhan went to the spot. The dead body was floating. It was taken out of the water and placed under a tree. There was injury around the neck of the deceased and also on the chest and stomach. Next morning i. e. on 5-8-90, the complainant along with others, including Dyali Pradhan went to the spot. The dead body was floating. It was taken out of the water and placed under a tree. There was injury around the neck of the deceased and also on the chest and stomach. Due to enmity, the accused have committed this murder. 4. On the basis of the written FIR, Exhibit Ka 1, the chik report was prepared at the police station by Constable Sri Ashok Kumar Dubey on 5-8-90 at 18. 05 p. m. He registered the case. 5. The I. O. Sri Chandra Prakash Singh, P. W. 9 took the investigation in his hands immediately and copied the chik and G. D n*ries in the case diary. After taking police force with him, he started for the place of occurrence, where he reached in the same night. But due to want of proper light, he postponed the Panchayat-nama business for the next morning. Meanwhile, he recorded the statement of Vishwa Nath Gaur. The investigation started at about 6 a. m. on 6-8-90. The I. O. prepared the panchayatnama and other relevant document. The clothes belonging to the deceased were also sealed on the spot. Thereafter, he entrusted the dead body to Constable Sri Uma Shankar Rai, PW-7, in a sealed condition. He produced the same before the Doctor in a sealed condition and identified the same. 6. Dr. P. N. Singh, then attached to P. H. C. Dudhi conducted the post-mortem examination on the dead body on 6-1-90 and collected the following datas: (1) Contusion 6 cm. x 3 cm on the both sides of neck just above the cartilages/brown in colour. Margins were congested. Highly depressed. (2) Contusion 7 cm x 5 cm on the front of right shoulder just below right humerus head. (3) Contusion 15 cm x 8 cm on the middle of chest above the manurium. 7. On internal examination, the doc tor found that ring of traches was frac tured. Both the lungs were deeply con gested. The stomach was congested and empty. Large intestine was full with facal matters and congested. Small infesting was congested. In the opinion of doctor, the cause of death was asphyxia due to stran gulation. Dr. Singh, PW-6 repelled the suggestion of the accused that the death of deceased was dueto drowning. 8. Both the lungs were deeply con gested. The stomach was congested and empty. Large intestine was full with facal matters and congested. Small infesting was congested. In the opinion of doctor, the cause of death was asphyxia due to stran gulation. Dr. Singh, PW-6 repelled the suggestion of the accused that the death of deceased was dueto drowning. 8. After sending the dead body, the I. O. recorded the statement of witnesses. The accused were arrested on 7-8-90 around 10. 30 p. m. Their statements were recorded. They told that they would be able to make available the deceased per sonal goods from their house, which be longed to the deceased and, thus, after recording their statements, proceedings under Section 127 of the Evidence Act were adopted. From the possession of the accused, a lathi. Dhoti, Ganji etc. were recovered at their instance. Memos for the same were prepared. Thereafter, P. W. 10, Lalta Prasad Pandey, S. O. took the inves tigation in his hands. He recorded the statements of remaining witnesses and perused the Sulahnama (Compromise) between the parties and submitted a charge-sheet, Exhibit Ka 15. 9. The prosecution has examined the following evidence to prove its case. 10. PW-1 is the complainant Chet Singh. He had supported the case as taken in the FIR an has alleged that some months prior to the incident, the accused Har Prasad has injured the she-buffalo of the complainant and caused damage to its feet. Consequently, the she-buffalo died within a week thereafter. Thereafter, Panchayat was convened by the father of the complainant and accused Har Prasad undertook to give him a He-calf of a cow and further undertook to pay Rs. 300/- as fine, which he did not comply with, of course, he handed over the calf to the deceased, on repeated requests, the ac cused did not pay the amount of fine. But they were extremely enraged with the com plainant and wanted to teach him a lesson. In this background and for this motive, he committed the crime. He has also proved the documents prepared in his presence, by the I. O. 11. But they were extremely enraged with the com plainant and wanted to teach him a lesson. In this background and for this motive, he committed the crime. He has also proved the documents prepared in his presence, by the I. O. 11. PW-2 Jai Lal was present when Dhansi informed the complainant about the impending murder of his father at the hands of the accused, He, alongwith others proceeded towards the spot and from a distance, saw that the accused were carry ing the dead body of the deceased and, ultimately, dumped in a ditch nearby and, thereafter, ran away in a dense forest. Next day, the dead body was recovered. Other part of his evidence is the same as done by PW-1. 12. PW-3 Dhanshah is the person who informed the" complainant with regard to the activities of the accused against his father. He was present at the time of recovery of the dead body also. Thereafter, in his presence, the I. O. recovered some clothes belonging to the deceased. 13. PW-4 Dev Baran Singh is the Pradhan of the village. He has deposed that in a Panchayat presided over by him, the accused was punished for the death of the cattle of the complainant. In the Panchayat, the accused undertook to give a He-calf and a fine of Rs. 300/- to the deceased. The matter was brought in black and white and the written document was signed by both the parties. He was present at the time of extrication of the dead body, from the ditch I. O. prepared the panchayatnairna and other relevant documents and sent the dead body in his presence, in a carriage to the Distt. Head quarters for post- mortem examination etc. 14. PW Sri Chandrabhan Singh has deposed that the accused had conveyed him that they were very much aggrieved by the conduct of the deceased and they would murder him. 15. PW-6 Dr. P. N. Singh had proved the post-mortem report as weh as other relevant documents, connected with that. 16. PW-8 Constable Sri Ashok Kumar Dubey prepared the chik and G. D. entries. 17. PW-7 Constable Sri Uma Shankar Rai conducted the dead body from the spot in a sealed condition and identified the same before the Dr.-P. N. Singh, PW-6. 18. PW-9, S. I. , Sri Chandrabhan Singh conducted the investigation upto near its end, when PW-10 Sri Lalta Pd. 17. PW-7 Constable Sri Uma Shankar Rai conducted the dead body from the spot in a sealed condition and identified the same before the Dr.-P. N. Singh, PW-6. 18. PW-9, S. I. , Sri Chandrabhan Singh conducted the investigation upto near its end, when PW-10 Sri Lalta Pd. Pandey took the investigation in his hands and after completing the formalities, sub mitted a charge-sheet against both the ac cused. 19. Accused in their statements under Section 313 Cr. PC. have denied the allegations against them and have said that on account to enmity, they have been im plicated falsely. The accused have led no evidence in their defence. 20. After conclusion of the trial after hearing learned Counsel for the parties, the learned trial Court came to the con clusion that the charges under Section 302/34ipc and 201ipc have been proved against the accused beyond a shadow of reasonable doubt. He, accordingly, con victed and sentenced them as noted above. 21. Both the accused are in Jail. They have sent this Jail appeal as they have no Counsel of their own. Sri. D. N. Wali learned Senior Advocate was appointed as Amicus curiae on behalf of the accused on 8-8-97. He has argued the case very-well today. The learned State Counsel has tried his best to rebut the arguments of the learned Counsel Sri Wali. 22. We have heard learned Counsel for the parties and gone through the record. We find that there is much force in this appeal and it deserves to be allowed. 23. In this case the FIR is said to have been lodged at 5-8-90 at 18. 05 p. m. Indicat ing theincident to be of 4-8-90 at 7 p. m. the distance of the police station from the place of occurrence is 37 Kms. On 4-8-90, the accused allegedly murdered Shiv Narain and threw the dead body in a ditch, which was very deep. It started raining thereafter. Therefore, none could manage to stay at or near the place of occurrence or at the place where the dead body was thrown. There was nothing unnatural if the witnesses returned to their houses on account of darkness, depth of the ditch and continuous rain fall. It was the peak season of monsoon when the incident is said to have taken place. There was nothing unnatural if the witnesses returned to their houses on account of darkness, depth of the ditch and continuous rain fall. It was the peak season of monsoon when the incident is said to have taken place. The admitted position is that on 5-8-90 in the morning, the com plainant and others went near the ditch and they saw the dead body floating. They arranged to take out the dead body and when it was taken, it was completely naked as the clothes had already been removed by the accused in the previous evening. Thereafter, the complainant went to lodge the report. 24. The complainant, PW-1 Sri Chet Singh is the son of the deceased in this case. He states in page 2 of his Examination-in-Chief that next morning at about 6 a. m. , he alongwith several other persons of the vil lage, including village Pradhan arrived on the spot and the dead body was fished out from the ditch. Thereafter, he got the FIR scribed from Sri Ram Baran and proceeded towards the police station alongwith his uncle Sri Ram Prasad. Ac cording to the FIR, the total distance was 37 Kms. but the complainant states at page 2 in the Examination-in-Chief that the total distance to be covered was 20 Koes i. e. 65 Kms. and it had to be negotiated on foot. There was jungle also in between. In the cross- examination at page 2, PW-5 Sri Deo Karan has admitted that at the time when the dead body was fished out, the accused Har Prasad and Ram Khelawan were also present. It was only after the dead body was recovered that the accused went away from the spot. If it were a fact that in the previous evening the murder had taken place and it was witnesses by the complainant and others, it is difficult to believe that the accused would have been present at the time of recovery of the dead body. This shows that all that has been stated about the incident of previous eve ning i. e. relating to the murder and throw ing away the dead body, is nothing but a product of a fertile mind. This throws the entire prosecution story to a dust-bin. Sri Ashok Kumar Dubey, PW-8 who prepared the Chik and G. D. states that the com plainant had reached the police station at 18. This throws the entire prosecution story to a dust-bin. Sri Ashok Kumar Dubey, PW-8 who prepared the Chik and G. D. states that the com plainant had reached the police station at 18. 05 p. m. on 5-8-90. 25. The I. O. Sri C. P. Singh, S. O. has stated at page 2 of his Examination-in-chief that due to paucity of proper light, he postponed the panchayatnama business for the next morning and thus he started the panchayatnama work at about 6 a. m. on 6-8-90 and that kept him busy upto 8. 30 a. m. on 6-8-90. Thereafter, he despatched the dead body. 26. PW-7. Sri U. S. Rai conducted the dead body from the spot in a sealed condi tion to the Doctor, who performed the post-mortem examination. He states that the place of occurrence is about 65 Kms. from the police station Dudhi, where the report was lodged, although it was ad dressed to outpost Incharge, Muirpur, which is about 40 Kms. from the spot and it was this distance of 40 Kms. , which was being negotiated for lodging the report. 27. It seems that the FIR was not ready at the time when the panchayatnama was prepared. The reasons are in myriads. 28. A look at the original panchayat nama shows that the crime number was originally not noted at the top. But it was done after some time in a different ink. Another peculiarity is that the incident is shown to have taken place on 5-8-90 at 18. 05 Hrs. and the I. O. started from the police station and reached the spot on 5-8-90 and started the investigation at 6 p. m. In it, the date of the report was written something else. But taking the recourse of overwriting, it was made as 5-8-90. The place of occurrence is shown to be 70 Kms, whereas in the FIR it has been written as 37 Kms. The I. O. had simply to copy the dis tance from the chik and G. D. Had he done so and if the FIR was lodged by that time, this mistake would not have occurred. Not only this, the date of starting the investiga tion was originally noted as on 5-8-90 but it was changed to 6-8-90. There is apparent overwriting on the same. In column No. 3, it was to be written. Not only this, the date of starting the investiga tion was originally noted as on 5-8-90 but it was changed to 6-8-90. There is apparent overwriting on the same. In column No. 3, it was to be written. According to the report i. e. , the manner of the assault had to be noted. This was written as strangula tion, whereas in the FIR, there is also a mention that the dead body was thrown in a ditch. This fact is omitting from the panchayatnama. The time when the panchayatnama was concluded, is not mentioned towards the end of the panchayatnama. 29. An the. . . . . . . . . . . . . sic. . . . . . . . . . . . letter to the R. I. Exhibit Ka 9, there is an overwrit ing in the letters letter 1 before 805. That is meant for showing the time of the FIR at the back of it the column meant for show ing the receipt of the dead body at the police headquarters, is completely blank. The distance of the headquarters from the place of occurrence had to be noted in column No. 3. There is an overwriting in it and the distance is written as 70 Kms. All these differences have occurred simply be cause the FIR was lodged after consider able delay. 30. Dr. P. N. Singh conducted the post-mortem examination on 6-8- 90 at 4 p. m. The dead body was received at the R. I. headquarters at 4 p. m. on 6-8-90. Why the dead body reached so late at about 4 p. m. is not explained. Had the dead body been dispatched as alleged by the I. O. at about 8. 30 in the morning, it could not have taken such a lot of time. This again indi cates that the FIR was not ready at 18. 05 p. m. on 5-8-90, as alleged. Thereafter, so much delay was caused in reaching the dead body from the place of occurrence. 31. Regarding the incident of 4-8-90, although several persons, including the complainant claimed to be eye-witnesses, but on a close scrutiny, it appears that they had not seen the incident at all, nor could they normally seen it. Thereafter, so much delay was caused in reaching the dead body from the place of occurrence. 31. Regarding the incident of 4-8-90, although several persons, including the complainant claimed to be eye-witnesses, but on a close scrutiny, it appears that they had not seen the incident at all, nor could they normally seen it. According to FIR Dhansha, PW-3 was coming running towards the complainant and he met them at about 6 p. m. He informed him that the accused were committing the murder of his father by pressing his neck. The post mortem report shows that there were only three contusions on the dead body of the deceased. The ring of trachea was frac tured. For causing only such a few injuries, the accused would have taken not more than 5 minutes only. In this 5 minutes, PW-3, Dhansha saw the incident and came running upto the place where he met the complainant. According to him, it was about 5 p. m. when he saw the incident and ran towards the complainant. Shiv Narain was about 65 years, an old man. According to the complainant, at page 4 of his state ment, he learnt about the murder of the deceased from Dhansha at 5. 30 p. m. The place of occurrence (Dandu-Ki- Pahari) was about 3 Kms. from the complainants house. Therefore, Dhansha had to cover this distance. That would take not less than an hour. Even then, according to the com plainant, after receiving the information, he reached near the spot and saw the ac cused committing the murder of his father. It is impossible that the accused would take so much time in order to provide an opportunity to the complainants side to come near the place of the occurrence and see the incident with his own eyes and the complainant and the witnesses would avail this opportunity and go near the place of occurrence and see the accused persons throwing the dead body in a ditch. The complainant states at page 1 of his-Examination-in-Chief that at about 6 p. m. , he and others went the hillock and from there, they saw the accused carrying the dead body of his father towards the ditch and they throw the dead body in the ditch and thus the complainant gathered the first hand information regarding the inci dent. It is impossible to believe it. It is impossible to believe it. A- 5 minutes job was made to be completed in about one hour according to the prosecu tion, as if the accused were waiting for the witnesses to come there and see the inci dent with their own eyes. Hence we find that neither the complainant nor Dhansha saw the incident on 4-8-90 at 6 p. m. That is why, so much delay was caused in reporting the matter and it is alleged to have been reported at the police station on 5-8-90 at 18. 05 hrs. This is the first major reason why we reject the prosecution story as it has been framed. 32. Another important feature of the case is that the accused removed all the clothes from the dead body on the spot on 4-8-90 and threw only the naked dead body in the ditch. Thereafter, the accused ran towards the dense forest. Hence they could not be chased. Not only this, these clothes are said to have been recovered from the accuseds i. e. joint possession, an evidence sought to be introduced under Section 27 of the Evidence Act. This is again an un natural conduct. The accused chose a to tally isolated place for murder nay, they threw the dead body in a deep ditch to avoid evidence against them. But they all along carried the clothes of the deceased, removed from his body and ran towards a dense forest alongwith the same. These are the clothes etc. , allegedly recovered from the accused from their joint possession as admitted by PW-2 Sri Jai Lal towards the end of the cross-examination at page 5. (Recovery from the joint possession is ipso facto illegal), after a long lapse of time on 8-8-90 at 10. 30 p. m. and thereafter, on their pointing out and from their joint possession, these articles were recovered. It appears to a fair tale prepared by the prosecution and indicates as an act of an insane person, who was knowingly carry ing the evidence against him alongwith him. That is not a natural conduct. It ap pears to be a product of a legal mind that we are satisfied from the oral evidence regarding the murder, full of lacunas and could not stand the scrutiny by the Judge. That is not a natural conduct. It ap pears to be a product of a legal mind that we are satisfied from the oral evidence regarding the murder, full of lacunas and could not stand the scrutiny by the Judge. Therefore, stepni type of evidence was created to be availed against the accused under Section 27 of the Evidence Act. That makes the entire prosecution story as well as the investigation a totally tainted effort. Hence we reject the theory or recovery from the accused, of the articles belonging to the deceased. The accused had passed through a dense forest. They could have thrown these articles in the Jungle or even in the same ditch, where they threw the dead body. It was not an inadvertent act on their part, rather it was a deliberate act on the part of the accused to collect these articles belonging to the deceased. The complainant says at page 2 at top that when he saw the accused carrying the dead body of his father towards the ditch, he shouted towards them. Thereafter, the accused hurriedly threw the naked dead body in the ditch and ran towards the Jungle carrying the shoes and lathi belonging to the deceased, with them. It means that this foolish act was repeated after knowing that the complainant and others had seen their activities of murder as well as throw ing the dead body. No normal person will act like that. Therefore, over-acting on the part of the prosecution in introducing the evidence under Section 27 of the Evidence Act, must be deprecated and condemned. 33. Dhansa, PW-3 was not at all inim ical towards the accused or vise-versa, he saw the accused committing the murder of Shiv Narain, an aged about of 65 years at about 5 p. m. He did not request the ac cused to desist from committing murder. He did not act like a prudent man in making even an appeal to the accused not to murder the deceased. After all, he had no fears from them. He could have ap pealed from a distance also. But he did not do that. Rather, he chose to cover a dis tance of about 3 Kms. and then informed the complainant and others, who by chance, were on their way towards the place of occurrence in search of the deceased. After all, he had no fears from them. He could have ap pealed from a distance also. But he did not do that. Rather, he chose to cover a dis tance of about 3 Kms. and then informed the complainant and others, who by chance, were on their way towards the place of occurrence in search of the deceased. Therefore, we find that the presence of Dhansha at the place of occur rence on 4-8-90 between 5 and 6 p. m. , is not probable. He had gone to collect wood from the Jungle. After he saw the incident, he threw the wood and proceeded towards the complainants house. The I. O. did not collect any wood, allegedly collected by Dhansha at or near the place of occur rence. Nay even the axe, which he might have used in cutting the branches of the trees, was not recovered nor it was shown to the I. O. Under these circumstances, there is no legal evidence on the record to convince the Court that Dhansha was present in that region or he could see the incident. Under these circumstances, the total evidence of Dhansha deserves to be rejected as being totally improbable. This way, we reject his evidence. Then we are left with no other substantial evidence to connect the accused with this crime. No doubt, there was enmity between the par ties and it could provide a motive for the murder of the deceased. But that would create only a suspicion towards the ac cused and nothing more. Suspicion is no substitute for evidence. Therefore, the prosecution must fail on this ground firstly and secondly, as observed earlier, the evidence sought to be procured under Sec tion 27 of the Evidence Act for proving the charge under Section 201ipc, also deser ves to be rejected, as totally unnatural. The sum total of this analysis is that nobody, including Dhansha saw the incident with his won eyes and the recovery under Sec tion 27 of the Evidence Act, is totally fake. 34. Taking all these factors into con sideration, we come to an irresistible con clusion that the prosecution has totally failed to prove its case against the accused beyond a shadow of reasonable doubt. The learned Sessions Judge did not go deeper into the matter and has came to a wrong conclusion, which cannot be upheld by this Court. 34. Taking all these factors into con sideration, we come to an irresistible con clusion that the prosecution has totally failed to prove its case against the accused beyond a shadow of reasonable doubt. The learned Sessions Judge did not go deeper into the matter and has came to a wrong conclusion, which cannot be upheld by this Court. The existence of motive and enmity between the parties is not disputed. 35. The appeal, is therefore, allowed. The Judgment and order passed by the learned Session Judge are set aside. The accused are in Jail. They should be released at once in case they are not wanted in some other case. 36. We are extremely obliged to Sri D. N. Wali, the learned senior Counsel, who has been appointed as an amicus curiae by the Court for rendering a very valuable service towards the dispensation of justice. As a token of this, we order that a sum of Rs. l. 000/- (Rs. one thousand only) shall be paid to him as a token of his fees because even the total payment of part of his fees is virtually impossible. The office is directed to make the payment to Sri Wali without fail and without delay, positively within a month from today and inform the Court accordingly. Appeal allowed. .