JUDGMENT 1. - Laxman Singh, Lakhan Singh and Machhar @ Mahesh, the three appellants before us were prosecuted in Sessions Case no. 63/1994 under Sections 302 and 364 of the IPC in the court of Additional Sessions Judge No. 2 Bharatpur for committing the murder of Bachhu Singh, All of them were convicted and sentenced as under: (i) under Section 364 IPC 10 Years rigorous imprisonment and a fine of Rs. 500 on each of the accused appellants. (ii) Under Section 302 IPC Life imprisonment and a fine of Rs. 500/- on each of the accused appellants. In the event of non payment of fine totalling a sum of Rs. 1,000/- against each of the accused appellants for offences under Sections 364 and 302 IPC the accused appellants in default have been made liable for rigorous imprisonment for a further period of six months. The sentences awarded were to run concurrently. Aggrieved by their conviction and sentence the appellants have preferred this appeal. 2. The prosecution case as made out at the trial is as under- (a) On August 20, 1994, informant Mohan Singh instituted a written report at 11.15 p.m. at Police Station Sewar, stating therein that about two months ago his brother Bachhu Singh (deceased) had been espied in the house of Lakhan by Laxman. Thereupon, Laxman family member of Lakhan had beaten up Bachhu Singh on this account. However, the village folks had brought about a compromise subsequently. Ever since the incident Lakhan and Laxman continued to harbour a feeling of enmity against Bachhu Singh. Actuated by the enmity, Lakhan and Laxman on August 20, 1994 came to the village in their respective trucks and parked them near the shop belonging to Sarpanch Roop Singh. Thereafter at about 10 p.m. Laxman and Lakhan and another truck driver gave beating to Bachhu Singh iron rod and the tyre lever and pulled him from in front of Mohan Singh's house upto the main road and pushed him into truck No. MP 07 B 7099 announcing their intention to do away with him. Bachhu Singh had been taken towards Agra in the truck. Govind, Ghanshyam, Mohan Singh and other persons in the village were given out in the FIR as being the eye witnesses. It was stated by informant that he had been informed of the incident by Govind and on information received, the report was being filed. Bachhu Singh had been taken towards Agra in the truck. Govind, Ghanshyam, Mohan Singh and other persons in the village were given out in the FIR as being the eye witnesses. It was stated by informant that he had been informed of the incident by Govind and on information received, the report was being filed. A case under Section 364 IPC was initially registered by the Police Station Sewar bearing FIR No. 267/94 against Laxman, Lakhan and one another, which ultimately the police stated to be the accused Machhar @ Mahesh. The Police Control Room received the information that a body was lying on the road towards village Uncha Nagla. The SHO along with informant went to the site where the dead body laid and the informant identified the body as that of his brother Bachhu Singh. Early next morning the prescribed drill was undertaken by the police in respect of dead body, site plan was prepared, panchayat nama of the dead body was prepared, blood stained stone and ordinary sand were taken by way of panchanama., and post mortem examination of the dead body was conducted by Dr. Suresh Bansal. The statements of the witnesses were recorded. The accused appellants Laxman, Lakhan and Machhar @ Mahesh were arrested and truck was seized. Recoveries of iron rod at the instance of Laxman and trye lever at the instance of Lakhan were made by the Investigating Officer in the course of investigation under Section 27 of the Evidence Act. At the conclusion of the investigation chailan under Sections 364 and 302 IPC was filed against accused appellants Laxman, Lakhan and Machhar @ Mahesh. The case was committed and the learned trial court framed charge under sections 364 and 302 IPC against the accused appellants. The prosecution examined as many as 12 witnesses and placed reliance on 22 exhibits. Thereafter the statements of the accused appellants under Section 313 Cr.RC. were recorded. The accused appellants examined Udai Singh DW 1 as defence witness and exhibited as many as five documents. The learned trial court after hearing arguments of the parties, convicted the accused appellants as indicated above. 3. Mr. Thereafter the statements of the accused appellants under Section 313 Cr.RC. were recorded. The accused appellants examined Udai Singh DW 1 as defence witness and exhibited as many as five documents. The learned trial court after hearing arguments of the parties, convicted the accused appellants as indicated above. 3. Mr. Alok Sharma, learned counsel appearing for the accused appellants Laxman Singh and Lakhan Singh, canvassed that the prosecution has failed to prove either the enmity between the accused appellants and the deceased Bachhu Singh or the motive for the commission of the alleged act attributed to the accused appellants. The learned trial court erred grossly in relying and endorsing the mere opinion of Dr. Suresh Bansal, PW 7 in concluding that the death of the deceased Bachhu Singh had been brought about by the various injuries to his head and not by the deceased Bachhu Singh being over run by a heavy vehicle. The allegations against the accused appellants are confined to having forced the deceased on to an empty truck and driven towards Agra. There is no evidence available with the prosecution to indicate the specific injuries caused by the accused appellants on the person of Bachhu Singh. The case against the accused appellants for the offence under section 302 IPC following the death of Bachhu Singh is based on circumstantial evidence and there is no cogent evidence of any probative worth to exclude the real possibility of the deceased Bachhu Singh having died as a result of speedy vehicle on the road. The accused appellants Laxman. and Lakhan were alleged to be armed with an iron road and tyre lever respectively with which they inflicted injuires on the person of the deceased. Iron rod and tyre lever are blunt weapons and the injuires found on the person of the deceased Bachhu Singh were incised injuries not connected with the blunt weapons. The prosecution failed to connect the weapons of offence allegedly recovered at the instance of the accused appellants under section 27 of the Evidence Act with the injuries on the person of the deceased Bachhu Singh. The FIR iodged by informant Mohan Singh appears to have been anti-timed inasmuch as the Panchanama of the body of the deceased Bachhu Singh drawn on the morning of August 21, 1994 does not bear the details of the FIR. The witnesses produced by the prosecution are not sterling worth. The FIR iodged by informant Mohan Singh appears to have been anti-timed inasmuch as the Panchanama of the body of the deceased Bachhu Singh drawn on the morning of August 21, 1994 does not bear the details of the FIR. The witnesses produced by the prosecution are not sterling worth. The reliance was placed on L.N.K. Meharaj Singh v. State of Uttar Pradesh, (1994 Cr.L.R. (SC) page 455) . 4. Mr. Ravi Shanker, learned counsel for the accused appellant Machhar @ Mahesh contended that Machhar had not been named in the FIR even though written report was filed with regard to the incident. Machhar @ Mahesh has. been implicated in the case only subsequently as a result of illwili of Ghanshyam. Even on the prosecution case as laid before the learned trial court there was no motive whatsoever for Machhar @ Mahesh to have involved himself in the crime. As there is no evidence against Machhar @ Mahesh, he could not have been convicted under Sections 364 and 302 IPC. 5. On the other hand, Mr. S.M. Podar, learned Public Prosecutor for the State urged that all the accused appellants have been rightly convicted by the learned trial court. In the panchayatnama of the dead body FIR number was given and it cannot be said that the FIR anti- timed. It was not necessary to give names of the accused and witnesses in the panchayatnama. Ocular evidence has been corroborated by the statement of Dr. Suresh Bansal. Blood stained iron rod and tyre lever were recovered under Section 27 of the Evidence Act and they were blood stained and from the FSL report human blood was found on them. Human blood on the seat of the truck was also found. Accused Laxman and Lakhan had motive to kill Bachhu Singh as Bachhu Singh had been found in the house of Laxman in suspicious circumstances and actuated by this enmity, Laxman and Lakhan committed this murder with the help of Machhar @ Mahesh. In the FIR though name of Machhar @ Mahesh had not been mentioned along with Lakhan and Laxman, one truck driver had been named in the FIR and informant Mohan Singh in his statement has explained that at the time of instituting the FIR he did not know the name of the truck driver but it was subsequently revealed that his name is Machhar @ Mahesh. 6. 6. We have reflected over the rival submissions and carefully scanned the material on record. 7. So far as charge under Section 364 IPC is concerned the prosecution case rests mainly on the statements of eye witnesses Govind Singh PW 1, Kalyan Singh PW 2, Ghanshyam Singh PW 3 and Mohan Singh S/o Tara Singh PW 6. But in respect of charge under Section 302 IPC, the prosecution relies upon circumstantial evidence. 8. Govind Singh, PW 1 is the star witness of the prosecution on whose information Mohan Singh S/o Narain Singh, the brother of the deceased, instituted FIR, Govind Singh deposed that when he along with Mohan Singh S/o Tara Singh, Ghanshyam and Bachhu Singh (deceased) at about 10 RM. on August 20, 1994 were talking, the accused appellant Laxman, Lakhan and Machhar came over there in three trucks. After parking the trucks they got down and reached near Bachhu Singh. Lakhan was having Tyre Lever whereas, Laxman was armed with Sariya. Machhar dragged Bachhu Singh while Lakhan and Laxman inflicted blows with Sariya and Tyre Lever. When Govind Singh, Mohan Singh and Ghanshyam intervened, Lakhan told them not to interfere in their personal matter. Lakhan further told that Bachhu Singh had visited his wife and defamed him therefore, they wanted to teach him lesson. They would kill him. After dragging Bachhu Singh Lakhan, Laxman and Machhar and all of them proceeded in the truck towards Agra. Thereafter, Govind Singh went to Mohan Singh S/o Narain Singh, the brother of Bachhu Singh and informed him about the incident. In the cross-examination Govind Singh stated that he wrote the FIR and till that time he did not know the real name of Machhar. that is why he did not name him in the FIR but only mentioned 'the driver of the truck'. His statement under Section 161 Cr.RC. was recorded on the next day of the institution of FIR and before recording of his statement he came to know that the name of the third driver was Machhar. 9. Kalyan Singh PW 2, deposed that he had seen Lakhan, Laxman and Machhar dragging and beating Bachhu Singh and carrying him in the truck. was recorded on the next day of the institution of FIR and before recording of his statement he came to know that the name of the third driver was Machhar. 9. Kalyan Singh PW 2, deposed that he had seen Lakhan, Laxman and Machhar dragging and beating Bachhu Singh and carrying him in the truck. He further stated that he, Govind Singh, Ghanshyam Singh and Mohan Singh attempted to intervene but the accused told that it was their personal matter and they wanted to teach Bachhu Singh lesson as he visited the wife of Lakhan. Though initially in the cross- examination he stated that Govind Singh and he had known Machhar by his name before the incident but he clarified that Govind did not know Machhar by his name before the incident. 10. Ghanshyam PW'3 and Mohan Singh S/o Tara Singh PW 6'also narrated the same version as deposed by Goving Singh PW 1 and Kalyan Singh PW 2. We have carefully scanned the statements of these eye witnesses but contradictions elicited in their cross-examination are minor in nature and we are of the opinion that their testimony could not be shattered. The argument of Mr. Alok Sharma learned counsel that the prosecution had failed to prove either enmity between the accused appellants and deceased Bachhu Singh or the motive for the commission of the act, is devoid of merit. A look at the statements of the aforesaid witnesses goes to show that the accused appellants had motive to commit to criminal act. After Bachhu Singh found visiting the wife of Lakhan, both Laxman and Lakhan even after compromise, continued to harbour a feeling of enmity against Bachhu Singh. They wanted to take revenge from Bachhu Singh and Machhar assisted them. The FIR was lodged immediately after the incident and the eye witnesses Govind, Ghanshyam and Mohan Singh were named in the FIR. We are also not impressed with the arugment of Mr. Ravi Shanker Sharma, learned counsel appearing for accused appellant Machhar that benefit of doubt should be given to him as he was not named in the FIR. Eye-witnesses Govind. Ghanshyam, Mohan Singh and Kalyan Singh named him in their statements and he took active part in abducting Bachhu Singh. We are also not impressed with the arugment of Mr. Ravi Shanker Sharma, learned counsel appearing for accused appellant Machhar that benefit of doubt should be given to him as he was not named in the FIR. Eye-witnesses Govind. Ghanshyam, Mohan Singh and Kalyan Singh named him in their statements and he took active part in abducting Bachhu Singh. Moreover, Munni Lal PW 10, who was the joint owner of truck MP 07B/7099 used in the incident, categorically deposed that Machhar @ Mahesh was the Driver of the truck on the date of incident and he handed over Machhar to the Police and the said truck was seized by the Investigating Officer which was later on got released by him. Prashant Kumar PW 11 was also owner of the said truck with Munni Lal. Police served upon him notice Ex.R 17 to which he replied that Mahesh @ Machhar was the driver of the said truck on the date of incident. Man Singh PW 12 ASI stated that on August 25, 1994 he along with the witnesses had gone to Agra and found truck No. MP 078/7099 standing in front of the house of Munni Lal in Vishnu Colony. He seized the truck in the presence of Govind Singh and Kalyan Singh and arrested Mahesh @ Machhar from that place. He had also drawn seizure memos of blood stained seat of the truck and Tool Box. 11. Man Singh PW 12, also deposed that on the basis of information given by Lakhan and Laxman he recovered blood stained Sariya and Tyre Lever, he however stated that he did not find any mark of blood over the tyres of the said truck. 12. Shambhu Dayal PW 9, who was S.H.O. Police Station Sewar on the date of incident stated that informant Mohan Singh submitted written report Ex.R 2 to him on August 20, 1994. At the same time, he received information from the Control Room that a dead body was lying on the road towards Uncha Nagla. At about 12 A.M. he alongwith informant Mohan Singh reached at the spot where Mohan Singh identified the dead body as that of his brother Bachhu Singh. Early next morning Panchayatnama of the dead body was prepared. Shambhu Dayal in his cross-examination further stated that neck and ribs of the dead body were found broken. At about 12 A.M. he alongwith informant Mohan Singh reached at the spot where Mohan Singh identified the dead body as that of his brother Bachhu Singh. Early next morning Panchayatnama of the dead body was prepared. Shambhu Dayal in his cross-examination further stated that neck and ribs of the dead body were found broken. Marks of tyres were seen at the back of the body. Blood stained marks of tyres were also found on the road and he made a note in the site plan Ex.P. 5 that the vehicle which crushed the body had gone from Agra to Bharatpur. 13. Dr. Suresh Bansal PW 7 conducted Post Mortem examination of the dead body of Bachhu Singh on August 21, 1994. He found following major injuries 1. Incised wound 3cm long on right parietal region. 2. Incised wound 1.5 cm long on right parietal region just near the first injury. 3. Incised wound 5cm x 4 cm just near the second injury and over right ear surrounded by swelling. Cause of death was Head injury leading to shock. 14. Undeniably Sariya (iron rod) and tyre lever are the blunt weapons and incised wounds could not have been caused by them. Prosecution has not produced any witness who could testify the actual narration as to how and by whom the incised wounds were inflicted. Witnesses Govind Singh. Ghanshyam Singh, Mohan Singh and Kalyan Singh only deposed that on August 20, 1994 at 10.00 PM the accused beat Bachhu Singh with Iron rod and tyre lever and pulled him from in front of Mohan Singh's house up to main road and pushed him in the truck No. MP 07B/7099 announcing their intention to do away with him and took Bachhu Singh towards Agra. Thereafter, FIR was lodged by Mohan Singh around 11.10PM with the PS Sewar and dead body of Bachhu Singh was found around 12 AM i.e. after 50 minutes of the institution of FIR. As already stated Bachhu Singh sustained sharp edged injuries on his head and his body was found crushed on the road near Uncha Nagla by a vehicle which had gone from Agra towards Bharatpur. Though Sariya and Tyre lever were recovered at the instance of accused appellants Lakhan and Laxman but this recovery does not connect them with the injuries sustained by the deceased Bachhu Singh. 15. Though Sariya and Tyre lever were recovered at the instance of accused appellants Lakhan and Laxman but this recovery does not connect them with the injuries sustained by the deceased Bachhu Singh. 15. As has been stated earlier, there is no evidence to indicate the manner in which Bachhu Singh was killed. Conclusion on the same, therefore, has to be arrived at from circumstantial evidence. It is well settled that in a case of circumstantial evidence, the prosecution is bound to establish the circumstances from which the conclusion is drawn. The circumstances should be conclusive in nature, all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with innocence and the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. Before the court records conviction on the basis of circumstantial evidence it must satisfy itself that circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused. 16. Bearing in mind the aforesaid principles we have scrutinised the circumstances established by the prosecution and we are of the view that the prosecution has not established complete chain of circumstances which rules out beyond any shadow of doubt the involvement of any other person and the inevitable conclusion. Undoubtedly the accused appellants after inflicting injuries with the blunt weapon announced their intention to do away with Bachhu Singh and forcibly took him towards Agra in a truck and after some time his dead body was found on a road but incised wounds found on the head creates doubt in the prosecution story. Incised wounds could not have been caused by blunt weapons like Iron rod and Tyre lever. Thus, recovery of these weapons at the instance of the accused does not connect them with the murder of the deceased. According to the pro section, Truck No. MP 07B/709S was used in crushing the body of the deceased and blood stained marks of tyres were found near the dead body but Man Singh PW 12 deposed that he did not find any mark of blood over the tyres of truck No. MP 07B/7099. According to the pro section, Truck No. MP 07B/709S was used in crushing the body of the deceased and blood stained marks of tyres were found near the dead body but Man Singh PW 12 deposed that he did not find any mark of blood over the tyres of truck No. MP 07B/7099. So also Shambhu Dayal PW 9, exhibiting the site plan Ex.P. 5, stated that the truck which crushed the body of the deceased had gone from Agra to Bharatpur whereas the case of the prosecution is that the accused had gone from Bharatpur to Agra. Though Doctor Suresh Bansal PW 7 in his statement casually stated that incised wounds could be caused by blunt weapons but we are unable to accept this contention. The circumstantial evidence produced by the prosecution does not unequivocally prove that the accused were the persons who caused the death of Bachhu Singh. 17. In order to establish the charge under Section 364 IPC, it must be proved that a person charged with the offence had intention at the time of abduction that the person abducted should be murdered or would be so disposed of as to be put in danger of being murdered. The prosecution has. therefore, to prove that the accused had the particular intention at the time they took away Bachhu Singh. As already stated earlier, the eye witnesses categorically deposed that the accused Lakhan and Laxman beat Bachhu Singh with Iron rod any tyre lever and pulled him from in front of Mohan Singh's house up to main road and pushed him into truck announcing their intention to do away with him and took Bachhu Singh in the truck driven by accused Machhar towards Agra. Testimony of the eye witnesses stood in the cross-examination therefore, it may safely be held that prosecution has proved that the accused Lakhan, Laxman and Machhar had intention at the time If abduction that Bachhu Singh should be murdered or would be so disposed of as to be put in danger of being murdered. 18. Arguments of Mr. Alok Sharma, learned counsel that the FIR has lost its value and authenticity as the same is ante timed and had not been recorded till the inquest proceedings were over, does not appeal us. FIR was recorded in Rojnamcha No. 810 at 11.15 PM bearing No. 267/94. 18. Arguments of Mr. Alok Sharma, learned counsel that the FIR has lost its value and authenticity as the same is ante timed and had not been recorded till the inquest proceedings were over, does not appeal us. FIR was recorded in Rojnamcha No. 810 at 11.15 PM bearing No. 267/94. Wireless message received from control room in respect of dead body was recorded in Rojnamcha No. 811. Reference of FIR No. 267/94 was also given in the Inquest Report Ex.R 8. A look at FIR Ex.R 7 demonstrates that it was forwarded on August 21, 1994 at 9.30 AM and entry in that regard was made in Rojnamcha No. 862. The FIR was received in the Court of Additional Chief Judicial Magistrate No. 1 Bharatpur on August 22, 1994 at 11.00 AM. The testimony of Shambhu Dayal I.O. PW 9 ought to have been tested in this regard but no question was asked by the defence counsel that FIR. was ante timed and had been recorded after inquest proceedings were over. Thus, case of L/NK Mehraj Singh v. State of U.R (supra) relied upon by the learned counsel is distinguishable and is not applicable in the facts and circumstances of the case on hand. 19. Our independent analysis of the evidence on the record coupled with the infirmities which we have noticed above has created an impression on our minds that the prosecution has not been able to bring home guilt to each of the appellants under Section 302 IPC beyond a reasonable doubt. The trial court therefore, was not right in convicting them under the said section. But guilt under Section 364 IPC has been fully established against the accused appellants and the accused appellants have been rightly convicted and sentenced under this section. 20. In the ultimate analysis the appeal is partly allowed. The conviction and sentence awarded to accused appellants under Section 302 IPC stand set-aside and they are acquitted from the said charge. But conviction and sentence of the accused appellants Lakhan. Laxman and Machhar @ Mahesh under Section 364 IPC are maintained and stand confirmed. *******