Judgement S. L. KOCHAR, J. :- Appellants Nos. 1 and 2 in Cr. Appeal No. 1016/2006 and appellant Ramesh s/o Bapulal in Cr. Appeal No. 1284/2006 have challenged their conviction under Section 302 read with Section 34 and section 201 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs. 5,000/- each and R.I. for seven years and fine of Rs. 1,000/- each respectively, in default of payment of fine on both counts to suffer additional R.I. for one year passed by the learned Sessions Judge, Shajapur in ST No. 189/2005 vide judgment dated 8-9-2006. 2. It would be appropriate here to mention that the learned trial Court has also passed some strictures against the applicant Kiran Lashkarkar, Town Inspector, Investigating Officer in the aforementioned Sessions Trial and also directed holding of Departmental Enquiry against him. He, therefore, filed the aforesaid Criminal Revision for quashment of the aforesaid order. Thus, both the appeals and the criminal revision arising out of one and the same judgment, are being decided by this common judgment. 3. Facts of the prosecution case as unfurled before the trial Court are that on 11-6-2005 at 10.30 Hemraj, elder brother of the deceased Elamsingh lodged a Dehati Nalishi Ex. P/3 at P. S. Sarangpur to the effect that they are three brothers, elder brother is Dinesh, the second is Hemraj (the complainant) and the third was the deceased Elamsingh. Elamsingh was carrying the work of supplying milk in addition to the agricultural work in the family. After supplying milk at Sarangpur, he used to look after the work concerning agriculture. A day prior to the date of incident, he had gone to Shajapur and on return therefrom he had gone to the well and from there did not return to the house. Thereafter, the complainant himself, his father Daulatsingh and Dinesh went to the well in search of Elamsingh, but they did not find him. On the next day when the deceased did not return home, the complainant himself and his friend Ramesh Malviya started to go in search of Elamsingh on a motor cycle of Bhagwansingh. At that time Dinesh told that some body has killed Elamsingh near the field of Devisingh. On this information, they went near the field of Devisingh and found the dead body of Elamsingh lying there. The body was having no head. At that time Dinesh told that some body has killed Elamsingh near the field of Devisingh. On this information, they went near the field of Devisingh and found the dead body of Elamsingh lying there. The body was having no head. Probably the murderer might have taken the head of Elamsingh after completely chopping off the neck. Complainant sent Bhagwansingh to the police Station to inform the police. The complainant stated in the report Ex. P/3 that Bhima alias Shivanarayan was having strained relation with the family of the deceased and before seven years Bhima had beaten the deceased under the belief that Elamsingh was dead, threw his body in the bushes. A report of this incident was lodged at P. S. Sarangpur. For this incident, Bhima was convicted and sentenced to seven years imprisonment. Bhima used to say that after his release, he would eliminate the family members of the deceased Elamsingh. Thus, the complainant bore doubt on Bhima for committing murder of Elamsingh. He also stated that Bhima also took away Rs. 4,000/- from the pocket of the deceased. 4. On this, Dehati Nalisnhi Ex. P/3, offence was registered at Sanha No. 391/05 under Section 302 IPC on 11-6-2005 at 5.10 vide Ex. P/16 by the ASI Shivharsh Mishra. Panchnama Ex. P/5 of the dead body of deceased (without head) and spot map of the place where the body was found were prepared. Blood stained and control earth were seized from the spot. A bamboo stick lying at a distance of 20 feet from the dead body and a part of the pant of the deceased lying at a distance of 5 feet from the dead body were also seized. At a distance of 200 feet from the body towards south there was a well, from where a diary (note book) having red cover and at a distance of 10 feet from this place, a Diary of Katthai (catechu) colour cover were also seized vide seizure memo Ex. P/11 on 11-6-2005. The Investigating officer Kiran Lashkarkar got the well empty and took out the head of the dead body of the deceased which was got identified by Hemraj, the brother of the deceased in presence of Panchas. Seizure memo and Panchanama of the head of the deceased was prepared vide Ex. P/6. It was also sent for postmortem examination and the postmortem report is Ex. P/18. Seizure memo and Panchanama of the head of the deceased was prepared vide Ex. P/6. It was also sent for postmortem examination and the postmortem report is Ex. P/18. Statements of complainant Hemraj, Daulatsingh and Bhagwansingh were recorded. In their statements, these witnesses threw their doubt on Bhima alias Shivanarayan that he had committed murder because he was threatening that he would not spare the family members of the deceased and that he had taken away Rs. 4,000/- of the deceased. 5. During the course of investigation Daulatsingh, father of the deceased disclosed that about two years prior to date of incident Bhanwarlal, resident of village Dhinka was taking his bullock cart through his field which was objected by his wife on which Bhanwarlal had abused his wife. Upon this, Daulatsingh and his son, the deceased had beaten Bhanwarlal and his wife, prosecution whereof was pending in the Court at Shajapur and the date of hearing of that prosecution was also the date of incident of the instant case and Daulatsingh and Dinesh had gone to the Court to attend the Court. Banwarlal and his relation Ramesh Pal had also come to attend the Court. Ramesh Pal had demanded Rs. 10,000/- in lieu of amicable settlement. They again demanded this amount at Sarangpur also. However, amicable settlement could not reach its finality. 6. On the basis of the statement of Daulatsingh and during investigation it revealed that on 27-6-2005 at 8.30 AM at Police Station Sarangpur, Hemraj, brother of the deceased gave information on telephone that Bhanwarlal Pal resident of village Dhinka had thrown away a blood stained jacket (BANDI) on the road in front of the house of Sarpanch of the village and a crowed has assembled there. This information was reduced into writing in Daily Diary at Sanha No. 1 and ASI Rathore went to village Dhinka at 8.50 and in presence of panchas, seized one blood stained jacket vide Ex. P/10 from in front of the house of Tulsiram. He also prepared the map of the place from where the jacket was seized. Identification memo of the jacket Ex. P/27 was also prepared in presence of panchas. This jacket was stitched by Madanlal tailor of village Mandoda. A diary belonging to tailor Madanlal was also seized by ASI Rathore vide Ex. P/1. He also prepared the map of the place from where the jacket was seized. Identification memo of the jacket Ex. P/27 was also prepared in presence of panchas. This jacket was stitched by Madanlal tailor of village Mandoda. A diary belonging to tailor Madanlal was also seized by ASI Rathore vide Ex. P/1. This diary contained the account in regard to stitching of clothes of appellants Ramesh and Bhanwarlal. T. I. Parade of the said jacket was got done by the Tehsildar wherein Tailor Madanlal disclosed that the said jacket belonged to accused Bhanwarlal and he had stitched it. On 27-6-2005 appellant Bhanwarlal and his son Ramesh were arrested and their memorandum, statements were recorded in presence of the witnesses, wherein they admitted that Bhanwarlal and his son Ramesh and relation Ramesh Pal resident of Pachawada and Shivanarayan Pal Resident of village Biloda Pal have committed murder of deceased Elamsingh by completely chopping off his neck and threw the head in the well of Kaniram and the sword with which they have used for chopping off was concealed in a drum used for storing wheat. On the very day, memorandum statement of Ramesh Pal under Section 27 of the Evidence Act was also recorded. He disclosed the same thing as has been disclosed by Bhanwarlal and also stated that the Farsi which he had used in the crime was kept in the cattle house. These memorandum statements were recorded by the Town Inspector Shri Lashkarkar on 28-6-2005. However, these weapons have not been recovered and seized. 7. On 1-9-2005, Town Inspector Lashkarkar arrested the accused Ramesh Pal (Kaka) and his memorandum statement Ex. P/15 was recorded wherein he disclosed that about two and a half months before, he himself, Bhanwarlal and his son Ramesh Pal had killed Elamsingh by chopping off the neck and the sword with which the neck of Elamsingh was chopped off was concealed in the bushes on the spot. But the sword was not seized from the disclosed spot. On 2-9-2005 again memorandum statement Ex. P/8 of Ramesh Pal (Kaka) was recorded that the sword has been concealed in the bushes near the idol of Lord Shiv and it was seized vide Ex. P/9. The seized articles were sent for examination to the FSL on 19-9-2005, report whereof is Ex. P/28. 8. On 2-9-2005 again memorandum statement Ex. P/8 of Ramesh Pal (Kaka) was recorded that the sword has been concealed in the bushes near the idol of Lord Shiv and it was seized vide Ex. P/9. The seized articles were sent for examination to the FSL on 19-9-2005, report whereof is Ex. P/28. 8. During investigation, a Diary (note book of Katthai (catechu colour) cover was seized from near the dead body of the deceased which was containing some finger impressions. It was sent to the Finger Print Expert. Finger Prints of accused Bhanwarlal and his son Ramesh were also taken on a paper and were sent to the Finger Print Expert. The Report of Finger Prints Expert disclosed that the Katthai Cover diary contained finger prints of left hand of accused Bhanwarlal. Report of the Finger Print Expert is Ex. P/28. On 9-9-2005 statement of Harish were recorded who had stated that the deceased used to supply him milk and before four five months Ramesh Pal resident of village Panchavada, Bhanwarlal Pal and his son Ramesh Pal were quarrelling with deceased Elamsingh in Sarangpur on an old incident and that he had pacified the quarrel. He further stated that before three months when he had gone to answer the call of nature near the river at 6.00-7.00 PM he saw that the aforesaid three accused persons were quarrelling with the deceased and were threatening that whenever he would come to the well they would see him. Thereafter, the deceased was not seen and he came to know that Elamsingh has been murdered by somebody by chopping off his neck. 9. On 13-9-2005 statement of Kevalsing was also recorded from which it revealed that he was a tractor driver. Before three months when he was returning after ploughing the field at 8.00 p.m., on Usmankhedi Sarangpur road, he saw that Ramesh Kaka of Village Pachavda, Ramesh Pal and his father Bhanwarlal of village Dhinka coming on motor cycle having sticks and Farsi with them. Next day he heard that Elamsingh was murdered by chopping off the neck. 10. On 30-7-2005 the complainant Hemraj submitted an affidavit to the Station House Officer PW-15 Lashkarkar which was sworn by Hemraj before the Notary Advocate of Sarangpur. Next day he heard that Elamsingh was murdered by chopping off the neck. 10. On 30-7-2005 the complainant Hemraj submitted an affidavit to the Station House Officer PW-15 Lashkarkar which was sworn by Hemraj before the Notary Advocate of Sarangpur. In the affidavit Hemraj stated that due to murder of his brother he was very sad and had lost his mental balance because of which he had named Shivnarayan before the police as murderer of his brother and now he is firm that Shivnarayan is innocent and he has not committed the murder of his brother and on the saying of others, he had named Shivnarayan and that Shivnarayan has no concern with the murder of his brother. He further sworn in the affidavit that if Shivnarayan is made accused, it would cause injustice against him. 11. After completion of investigation, the appellants were charge sheeted for the offences under Sections 302 and 201 IPC and Section 25 of the Arms Act. In the charge sheet it has been mentioned that Shivnarayan was made accused on suspicion and the complainant Hemraj had wrongly named him on suspicion. On investigation, he was found to be innocent. In support, the complainant Hemraj filed an affidavit. Therefore, Shivnarayan alias Bhima was not charge sheeted. Though the name of Shivnarayan alias Bhima was specifically mentioned in the FIR, yet the Investigating Officer has not filed any Khatma Report against him. 12. The accused persons denied the charges. They have pleaded innocence and that they have been falsely implicated by the prosecution witnesses who belong to one family. The learned trial Court finding the appellants guilty of the offences charged, convicted and sentenced them as indicated herein above. The trial Court also directed holding of Departmental Enquiry against the Investigating Officer Shri Lashkarkar and passed some strictures. Learned trial Court also directed for further investigation against Bhima alias Shivnarayan as per provision under Section 173 (8) of the Code of Criminal Procedure as well as investigation against Investigating Officer Kiran Lashkarkar for commission of offence under Section 201 of the Indian Penal Code and ordered for sending of a copy of the impugned judgment to the Director General of Police, Bhopal. 13. We have heard learned counsel for the parties and also perused the entire record carefully. 14. The homicidal death of Elamsingh has not been challenged in this case. 13. We have heard learned counsel for the parties and also perused the entire record carefully. 14. The homicidal death of Elamsingh has not been challenged in this case. Even otherwise it is found established from the evidence of the medical expert and the witnesses examined by the prosecution. Thus, it is held that Elamsingh died a homicidal death. 15. On culling up the finding of the learned trial Court in the impugned judgment and the prosecution evidence, it emerged that the conviction of the Appellants is mainly based on the statement of PW-6 Daulatsingh regarding motive against the appellants and the evidence of PW-9 Kevalsingh and PW-10 Harish about circumstantial evidence of seeing the appellant Govind going on motor cycle with weapon Farsi and lathi towards village Chaudliya and before PW-10 Harish there was a quarrel between the appellants and the deceased before three months from the death of deceased at Gandhi Chowk Sarangpur as well as beating of the deceased Elamsingh by the appellants in the evening at about 6.00 PM near a culvert and on the next day the dead body of the deceased was found in the field of one Devisingh and delivery of threats to the deceased, his brother Dinesh and father when they were returning from the Court. 16. The moot question for consideration before us is whether the statements of the above named three witnesses are reliable and sufficient to prove the circumstances leading to the complicity of the appellants in committing murder of deceased Elamsingh. 16. The moot question for consideration before us is whether the statements of the above named three witnesses are reliable and sufficient to prove the circumstances leading to the complicity of the appellants in committing murder of deceased Elamsingh. The Supreme Court in the case of Vitthal Tukaram v. State of Maharashtra (AIR 2002 Supreme Court 2715) : (2002 Cri LJ 3546) has observed as under :- The essential ingredients to prove guilt of an accused by circumstantial evidence are (a) the circumstances from which the conclusion is drawn should be fully proved; (b) the circumstances should be conclusive in nature; (c) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (d) the circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused." Also See : Sudama Pandey v. State of Bihar (AIR 2002 Supreme Court 293) : (2002 Cri LJ 582), Subhashchandra v. State of Rajasthan (2002)1 SCC 702 : (2001 AIR SCW 4209) and Gurpreetsingh v. State of Haryana (AIR 2002 Supreme Court 3217) : (2002 Cri LJ 4688). 17. Now we proceed to examine the prosecution evidence relied upon by the trial Court. PW-3 Hemrajsing is the brother of deceased Elamsingh. He lodged the report (Dehati Nalishi) Ex. P/3 recorded by the Investigating Officer PW-15 Town Inspector (Station House Officer) Kiran Lashkarkar. On the basis of Dehati Nalishi PW-14 ASI Shivharsh Mishra on the same day registered the First Information Report vide Crime No. 391/05 Ec. P/16. This registration of crime and recording of First Information Report was done on suspicion against one Shivnarayan alias Bhima Pal as per provision under Section 154 of the Code of Criminal Procedure in regard to commission of cognizable offence. The author of Dehati Nalishi Ex. P/3 Hemrajsingh (PW3), which is the basis of First Information Report Ex. P/16, has proved its contents in the Court. The say of this witness is that the deceased had gone to take round of their field in the evening at 7.00 PM having a torch and lathi and normally he used to return between 10.00 and 11.00 PM in the night, therefore, he himself, his father Daulatsingh (PW-6) and brother Dinesh (not examined) went to their well, but Elamsingh was not found. They thought that he might be sitting on the well of some neighbour and would return and they returned back to their house. When on the next day morning up to 5.00 AM the deceased did not return to the house, they waited for him, because he used to milking. Again all the three went in search of deceased Elamsingh. The further say of this witness is that he and one Ramesh (not examined) went on motor cycle of Bhagwansingh (PW-4) to forest and nearby well in search of the deceased. During the course of search, his brother Dinesh found the trunkless (without head) body of Elamsingh in the field of Devisingh (not examined). They all reached near the dead body and sent one Dayaram (not examined) to village Patel Bhagwansingh (PW-5) for sending information on telephone to the Police Station. 18. In para 3, this witness Hemraj has also stated that he was having suspicion on Shivnarayan son of Madanlal with whom they had animosity since last ten years. He had assaulted him and was also convicted and sentenced for ten years in the said case. He was released before 4/5 months of the death of his brother deceased Elamsingh from jail and was saying, not directly to him, but through other persons that he would kill any one member of their family. Shivnarayan was also known by his alias name 'Bhima'. He admitted his signature on Dehati Nalishi Ex. P/3 and also stated that Shivnarayan alias Bhima had taken four thousand rupees from the pocket of his brother. He also witnessed the inquest proceedings Ex. P/5 and finding of the trunk (head) of deceased in a nearby well situated at a distance of 200 feet from the field of Devisingh. The Station House Officer saw the blood stains near the said well and directed for pumping out the water through electric motor and prepared the memorandum to this effect Ex. P/6 signed by him at portion marked A to A. There is no cross examination by the defence to this witness. 19. We will later on consider the statement of this witness on the question of not making Shiv Narayan alias Bhima as accused by the Investigating Officer Lashkarkar (PW-15) and appreciation of evidence of motive. P/6 signed by him at portion marked A to A. There is no cross examination by the defence to this witness. 19. We will later on consider the statement of this witness on the question of not making Shiv Narayan alias Bhima as accused by the Investigating Officer Lashkarkar (PW-15) and appreciation of evidence of motive. This witness has not uttered even a single word against the present appellants regarding any kind of previous ill will, dispute or reason for indulgence of the appellants in commission of murder of Elamsingh. The prosecution has also not condemned the statement of this witness in the Court. 20. Learned counsel placed reliance on the testimony of PW-6 Daulatsingh, father of deceased Elamsingh and brother PW-3 Hemrajsingh on the question of motive. Daulatsingh has testified that on the date of incident deceased Elamsingh had gone to the well from the house in the night at about 8.00 to 9.00 PM and did not return after 10.00 to 11.00 PM, therefore, he himself and his elder son Dinesh went in his search but could not found him and thereafter returned back to the house. Elamsingh did not come even up to the next day morning Hence. Hemraj (PW-3) on motorcycle of Bhagwansingh (PW-4) went in search of Elamsingh. He too went in his search. The further say of this witness is that at about 8 to 9.00 AM there was a talk in the village about the incident and he was informed by his son Dinesh that a dead body without head was lying in the field of Devisingh. In para 2, he has stated about quarrel with Shivnarayan alias Bhima on account of twelve hundred rupees. Bhima assaulted his son Hemraj (PW-3) for which he was also convicted. In para 4, he deposed that they had quarrel before four to five years with appellant Bhanwarlal, because of taking of bullock cart and a case was pending. His son deceased Elamsingh and Dinesh had assaulted Bhanwarlal. He, his both sons Dinesh and Elamsingh had gone to attend the hearing of the case and in the same night instant incident took place. Appellants Bhanwarlal and Ramesh alias Kaka residents of village Pachawada also reached to the Court. His son deceased Elamsingh and Dinesh had assaulted Bhanwarlal. He, his both sons Dinesh and Elamsingh had gone to attend the hearing of the case and in the same night instant incident took place. Appellants Bhanwarlal and Ramesh alias Kaka residents of village Pachawada also reached to the Court. Ramesh alias Kaka asked them to come with them and made a proposal for compromise on payment of ten thousand rupees which was denied by deceased Elamsingh and told Ramesh for payment of only three/four hundred rupees. On refusal by Elamsingh, Ramesh threatened to see him. The further say of this witness is that when they proceeded from the Court, Ramesh alias Kaka asked them to go together. He had an apprehension of any misdeed, therefore, they alighted from the tractor at Jainagar near Sarangpur. He corrected his version and stated that they went in a tractor and in Jainagar they were approached by appellant Bhanwarlal and Ramesh alias Kaka for compromise and also threatened by them. At that time, Jagdish and Kaniram were also present there who had admonished the appellants and made them to go away. Thereafter they reached to their house. This witness has also voluntarily stated that the appellant Ramesh alias Kaka told them that he was providing RABDI sweet to the Station House Officer of Police Station Mohan Badodiya and would get them involved in any case. 21. In cross-examination, this witness has admitted that he had no quarrel directly with the appellant Ramesh alias Kaka son of Bapulal, but there are relatives of other two co-accused persons with whom quarrel was going on. He failed to point out specific relation of Ramesh alias Kaka with other two appellants. He has been confronted with his case diary statement Ex. D/1 wherein the fact of delivery of threat by Ramesh alias Kaka, if they would not entered into compromise and they went in a truck from Court followed by Ramesh alias Kaka and others. They also boarded the truck. Thereafter, they all left the truck in Jaynagar, Sarangpur where appellant Ramesh alias Kaka also asked them to enter into compromise, otherwise their matter would be decided the same day. There they were asked by people to go to their respective houses. They also boarded the truck. Thereafter, they all left the truck in Jaynagar, Sarangpur where appellant Ramesh alias Kaka also asked them to enter into compromise, otherwise their matter would be decided the same day. There they were asked by people to go to their respective houses. According to this witness, he mentioned all these facts to the police, but as to how the same are not available in his case diary statement Ex. D/1, he could not assign any reason. Further say of this witness is that from Jaynagar their village was situated at a distance of one mile (½ KOS). They all reached to their house and took their night meals between 8.00 and 9.00 PM. He also failed to explain the material omissions in his case diary statement Ex. D/1 that the appellant Ramesh alias Kaka told them that he was serving RABDI (milk sweet) to the Station House Officer of P. S. Badodiya, and he would get them involved falsely as well as the appellant Ramesh son of Bhanwarlal met them on the way. He admitted that in the house, he did not disclose about delivery of threat. He did not disclose about threatening and offer of compromise by the appellants to his family members in the house and also did not disclose to the police for about 2/3 days of the incident though he admitted of recording of his statement by the police on his reaching to the village for the first time after the incident. Both the witnesses Hemrajsingh (PW-3) (son of this witness) and PW-6 Daulatsingh have no- where stated in Court about submitting of any affidavit to the Investigating Officer Kiran Lashkarkar or any police officer of the said Police Station. The prosecution has also not put any question to them in this regard though according to the Station House Officer PW-15 Kiran Lashkarkar, he did not make Shivnarayan alias Bhima accused whose name was mentioned by PW-3 Hemrajsingh on account of having inimical terms with him. In the light of the statement of PW-3 Hemrajsingh and his father PW-6 Daulatsingh, strong motive could be against Shivnarayan alias Bhima, because he was convicted and sentenced for seven years imprisonment and against the appellants evidence of motive is of lesser degree. In the light of the statement of PW-3 Hemrajsingh and his father PW-6 Daulatsingh, strong motive could be against Shivnarayan alias Bhima, because he was convicted and sentenced for seven years imprisonment and against the appellants evidence of motive is of lesser degree. But, for the sake of argument, if it is accepted that the appellants had requisite motive for commission of murder of Elamsingh, then, the crucial question before us to decide is whether the statements of witnesses Keval (PW-9) and (PW-10) Harish are sufficient to form the chain of circumstantial evidence with the evidence of motive as relied upon by the trial Court. 22. PW-9 Kevalsingh has testified that before eight months from the date of his examination in Court i.e. 22-2-2006, he was returning back from village Kumhariya to his village Baseri and had seen the appellants on a motorcycle on the road going to village Usmankhedi. The appellants were having Farsi and lathi. Thereafter, he came to know that Elamsingh was murdered by beheading his head. In cross examination, para 2 he admitted that his statement was recorded by the police after one month and prior to that he did not disclose seeing of the appellants going on motorcycle with Farsi and lathi, after giving statement to police he disclosed this fact only before the Court for the first time. He admitted that the deceased was his brother in law by village relation and he himself had gone to the police after one month to give statement. The further say of this witness in para 4 is that it was a dark night and he had seen the appellant from a distance of 30-40 feet in the darkness. He had no talk with them and his tractor was running in fast speed. He failed to say about month and date or the season. This witness was confronted with his case diary statement Ex. D/2 which was recorded on 13-9-2005 wherein it is mentioned that he had gone to the village of his sister Sangeeta before three months i.e. from the date of recording of his statement by the police, but he denied to mention this fact. The version of this witness that he went to the Police Station and gave statement after one month of the incident, is not correct which has been contradicted by the case diary statement. The version of this witness that he went to the Police Station and gave statement after one month of the incident, is not correct which has been contradicted by the case diary statement. In para 6 of cross-examination, he was contradicted with his case diary statement Ex. D/2 about possession of specific weapon by specific appellant. We have gone through his case diary statement Ex. D/2 and entire Court statement. No- where in the Court statement, he has stated about possession of a particular weapon by a particular accused. Therefore, the question of contradicting this witness with his case diary statement or putting omission of these facts in the case diary statement would not arise. Learned trial Court as well as the prosecutor should have been vigilant when witness was being confronted with his case diary statement. 23. This witness has admitted in cross- examination that if he would have gone on his tractor from the road going from below the Railway bridge to village Chodliya which was three to four kilometer shorter than from the road going through Sarangpur town and he could have saved travelling distance of three to four kilometers. On consideration of total statement of this witness, we are not at all impressed to hold that his statement is worth for establishing any clinching circumstance against the appellants. According to us, this witness appears to be a got up witness and there is material contradiction about time of disclosure before the police i.e. one month and three months. If really he had seen appellants in the night of incident as stated by him, he could have very well remembered as to after how long he approached before the police, he has also not assigned any reason for keeping silence for such a long period when according to him, in the next day morning he came to know about murder of Elamsingh. He also could not identify the person in the dark night while going in a fast speed on a tractor and the persons going on motor cycle from a distance of 30 to 40 feet. Above and all, this could not be a material or clinching circumstance of seeing the appellants going on motor cycle with lathi and Farsi on a road which was a public place and not at or near the scene of occurrence. 24. Above and all, this could not be a material or clinching circumstance of seeing the appellants going on motor cycle with lathi and Farsi on a road which was a public place and not at or near the scene of occurrence. 24. Next witness PW-10 Harish has testified that the deceased Elamsingh was his milk vendor and three months prior to the date of death he had seen quarrel between the appellants and the deceased at Gandhi Chowk of Sarangpur town. He intervened and pacified their quarrel and the deceased Elamsingh had disclosed the names of the appellants. The further say of this witness is that after three months of the above quarrel when he had gone to ease himself near the bridge, again he had seen the appellants beating the deceased. According to this witness, he over-heard that appellants were saying Elamsingh to come to the well where they will assault him and the time of this incident was 6.00 PM. Thereafter, from the next day, Elamsingh did not come to supply milk and he came to know that he was murdered by chopping of his neck. In cross-examination, he admitted that his statement was recorded after four months of the incident and prior to that he did not disclose the above incident to any body. He also admitted that his house was situated at a distance of half kilometer from the Police Station and the same could be covered within 15 minutes. This witness has assigned reason for not disclosing about the above incident to the police, because he had gone to village Khaniyadhana and returned back after three months. He failed to give the date and month of going to the said village Khaniyadhana and also about his return therefrom. He has denied to mention the fact in his case diary statement Ex. D/3 that before 4 to 5 months from the date of recording of his statement, he had seen the above mentioned incident between the appellants and the deceased. Looking to the highly abnormal conduct of this witness and unusual delay in the disclosure, it would be very hazardous to rely on the statement of this witness. D/3 that before 4 to 5 months from the date of recording of his statement, he had seen the above mentioned incident between the appellants and the deceased. Looking to the highly abnormal conduct of this witness and unusual delay in the disclosure, it would be very hazardous to rely on the statement of this witness. The prosecution has also not adduced any evidence to establish the truthfulness of his explanation that he had gone to village Khaniyadhana and after 4 to 5 months he could go and give statement to the police about the aforesaid incident, he could have gone immediately the next day prior to leaving his house especially when the Police Station was situated nearby his house. Learned trial Court has not given due weight to all these circumstances while appreciating the statements of both these witnesses which makes their statements vulnerable and doubtful. 25. We have carefully noticed that the learned trial Court while appreciating the statement of P.W. 6 Daulatsingh in para 41 of the impugned judgment mentioned that the facts which have been stated in his police statement Ex. D/1 almost the same statement he has given in the Court. This shows that the learned trial Court used the police statement Ex. D/1 to corroborate the Court statement of Daulatsingh which is not permissible. Same kind of appreciation has been done by the learned trial Court in para 46 while appreciating the statement of P.W. 9 Kevalsingh. It is very well settled legal proposition rather to say basic principle of criminal law prevalent in our country that police statement recorded under Section 161 of the Code of Criminal Procedure can be used only to contradict the concerned witness in Court with his Court statement as prescribed under Section 162 of the Code of Criminal Procedure read with Section 145 of the Evidence Act. Corroboration to Court statement cannot be sought from the police statement. Learned trial Court has committed the same mistake while appreciating the statement of P.W. 10 Harish in para 50 of the impugned judgment. See Sat Pal v. Delhi Administration, AIR 1976 SC 294 : (1976 Cri LJ 295), Jagdish Narain v. State of U. P., 1996 SCC (8) 199 : ( AIR 1996 SC 3136 ) and Omkar Namdeo v. Second Additional Sessions Judge, Buldhana, 1996 (7) SCC 498 : (1997 Cri LJ 369). 26. See Sat Pal v. Delhi Administration, AIR 1976 SC 294 : (1976 Cri LJ 295), Jagdish Narain v. State of U. P., 1996 SCC (8) 199 : ( AIR 1996 SC 3136 ) and Omkar Namdeo v. Second Additional Sessions Judge, Buldhana, 1996 (7) SCC 498 : (1997 Cri LJ 369). 26. On the basis of the aforesaid survey of circumstantial evidence relied upon by the trial Court for bringing home the guilt of the appellants, we are of the considered view that the same are not satisfying the test of law of circumstantial evidence. The evidence of motive is available against Shivnarayan alias Bhima in Dehati Nalishi Ex. P/3 and the statement of P.W. 3 Hemrajsingh, elder brother of the deceased as well as the statement of P.W. 6 Daulatsingh, father of the deceased, but other circumstances as discussed hereinabove, are not fully proved and are not conclusive in nature. They are also not consistent only with the hypothesis of guilt of the appellants and are inconsistent with their innocence and to exclude possibility of guilt of any person other than the appellants. 27. In the result, the instant appeal succeeds and is allowed. The conviction and sentences of the appellants are hereby set aside. They are in jail. The trial Court is directed to release them forth, if not required in any other criminal case. REGARDING REVISION No. 980/2006 28. While appreciating the evidence adduced by the prosecution, the learned trial Court in para 37 of the impugned judgment issued direction for registration of case under Section 201 of the Indian Penal Code against the Station House Officer Investigating Officer P.W. 15 Kiran Lashkarkar for not taking specimen finger prints of the appellants in accordance with the provisions of law for comparison with the finger prints (chance finger prints) available in two diaries seized from the spot through seizure memo Ex. P/11, by the Finger Prints Expert and thereby caused disappearance of evidence of offence to screen the offender. Further, in paragraphs 54, 55 and 56, the learned trial Court passed the stricture for exonerating. P/11, by the Finger Prints Expert and thereby caused disappearance of evidence of offence to screen the offender. Further, in paragraphs 54, 55 and 56, the learned trial Court passed the stricture for exonerating. Bhima alias Shivnarayan from the case during investigation without having any lawful authority though cognizable offence was registered and in spite of availability of reasonable material to investigate the crime against Shivnarayan alias Bhima let him out by taking an affidavit of the complainant Hemraj (P.W. 3) illegally without having lawful authority and committed negligence in investigation as well as misuse of power during investigation in a serious crime like murder and ordered for sending a copy of the impugned judgment for compliance to the Director General of Police Madhya Pradesh, Bhopal for initiation of Departmental Enquiry. 29. The aforesaid order has been challenged by the applicant Station House Officer Shri Kiran Lashkarkar on the ground that he was not afforded opportunity of hearing before passing the said disparaging remarks. Learned counsel for the applicant vehemently argued that the learned trial Court, without observing the guidelines, laid down by the Supreme Court in the leading case of State of U. P. v. Mohammad Naim, AIR 1964 SC 703 : (1964 (1) Cri LJ 549) which has been followed in a catena of Supreme Court judgments as well as the judgments rendered by the High Courts of the country. He also cited the judgments passed in Samya Sett v. Shambhu Sarkar, (2005) 6 SCC 767 : (2005 Cri LJ 3739), K. B. Singh v. State of M. P. ( 2005 (2) JLJ 258 ), State of West Bengal v. Babu Chakravorty, AIR 2004 SC 4324 : (2004 Cri LJ 4858) and A. M. Mathur v. Shri Pramodkumar Gupta, 1990 JLJ 340 (SC) : (AIR 1990 SC 1337). 30. On the other hand, learned counsel for the State, in oppugnation, has supported the impugned order and direction passed by the learned trial Court and submitted that the same has been passed in consonance with the aforementioned case-laws. He invited our attention towards the relevant paragraphs of the impugned judgment. 31. 30. On the other hand, learned counsel for the State, in oppugnation, has supported the impugned order and direction passed by the learned trial Court and submitted that the same has been passed in consonance with the aforementioned case-laws. He invited our attention towards the relevant paragraphs of the impugned judgment. 31. Having heard learned counsel for the parties and after perusing the entire record carefully we are of the considered opinion that the learned trial Court has passed the remarks and directions as mentioned hereinabove against the Investigating Officer applicant Shri Kiran Lashkarkar in compliance with the guidelines laid down by the Supreme Court in the case of State of U. P. v. Mohammad Naim : (1964 (1) Cri LJ 549) (supra). In this judgment, in para 10 the Supreme Court has observed thus:- "The last question is, the present case a case of exceptional nature in which the learned Judge should have exercised his inherent jurisdiction under S. 561-A, Cr. P.C. in respect of the observations complained of by the State Government? If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of judge and magistrate must be maintained and then must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this Court. At the same time it is equally necessary that in expressing their opinion judges and magistrates must be guided by consideration of justice, fair play and restraint. It is not in frequent that sweeping generalization defeat the very purpose for which they are made. It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct come into consideration before Courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether, there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case 4, as an integral part thereof, to animadvert on the conduct. It has also has been recognized that judicial pronouncement must be judicial in nature, and should not normally depart from sobriety, moderation and reserve." 32. In the instant case. It has also has been recognized that judicial pronouncement must be judicial in nature, and should not normally depart from sobriety, moderation and reserve." 32. In the instant case. The prosecution had filed pan application under Section 319 as well as 193 of the Cr. P.C. On 30-11-2005 for impleading Shivnarayan alias Bhima as accused in the case before framing charge. It is stated in the application and also argued by the learned Addl. Public Prosecutor that in the First Information Report, name of Bhima alias Shiv Narayan as suspect was mentioned by the complainant with whom the complainant party was having old enmity and Bhima had delivered threats to the family members that after his release from jail, he would kill the family members of the complainant. It is also stated in the application by the learned Addl. Public Prosecutor that the police had deliberately deleted the name of Bhima alias Shivnarayan from the list of accused by taking affidavit of one Hemraj and on perusal of the case diary as well as the First Information Report, the Addl. Public Prosecutor was of the opinion to implead Bhima alias Shivnarayan as accused. Learned trial Court heard both the parties on 30-11-2005 and passed a reasoned order for issuance of show-cause notice to the applicant Shri Kiran Lashkarkar that as to how, on what basis and under which power/authority he had excluded the name of accused Bhima alias Shivnarayan especially when in the First Information Report, statements under Section 161, Cr. P.C. of the witnesses and memorandum statements recorded under Section 27 of the Indian Evidence Act of the co-accused persons his name is mentioned. Learned trial Court also directed the applicant Shri Kiran Lashkarkar to appear personally and submit reply as to why cognizance should not be taken against him for commission of offence under Section 201 of the Indian Penal Code. 33. The applicant appeared personally and submitted his reply on 25-12-2005 before the Trial Court. Learned trial Court while framing the charge and fixing the trial for recording of prosecution evidence ordered on this date for consideration of application under Section 319 filed by the prosecution and reply submitted by Shri Kiran Lashkarkar to the show-cause notice after recording of the statements of the prosecution witnesses. Learned trial Court while framing the charge and fixing the trial for recording of prosecution evidence ordered on this date for consideration of application under Section 319 filed by the prosecution and reply submitted by Shri Kiran Lashkarkar to the show-cause notice after recording of the statements of the prosecution witnesses. Learned trial Court discussed this issue in the impugned judgment in detail and held in para 58 of the judgment that the reply submitted by the applicant was not satisfactory and passed the strictures against him which are the integral part of the judgment. Learned trial Court dismissed the application filed by the prosecution on the ground that against Bhima alias Shivnarayan there was incomplete investigation and taking of cognizance would be premature, hence directed the police to start further investigation as per provision under Section 173(8) of the Code of Criminal Procedure against Bhima alias Shivnarayan and for commission of offence under Section 201 of the Indian Penal Code against the applicant. The trial Court also ordered for initiation of Departmental Enquiry. 34. Considering the rival contentions of the learned counsel for the parties, it would be apposite to mention here that the prosecution has levelled allegations against the investigating officer regarding deleting the name of Shivnarayan alias Bhima from the list of accused in the charge-sheet and filed an application under Section 319 read with Section 193 of the Cr. P.C. for impleading Shivnarayan alias Bhima as accused. The applicant Kiran Lashkarkar was the main Investigating Officer and he was served with Show Cause notice by the Court on 30-1-2005, as discussed hereinabove and reply thereto was filed on 15-12-2005. Learned trial Court was not satisfied with the reply and passed the aforementioned stricture and ordered against the applicant. The core question for determination is whether the applicant Kiran Lakshkarkar Station House Officer/Investigating Officer had no power to delete Shiv Narayan alias Bhima from the list of accused persons while filing the final charge-sheet under the provisions of Section 173 of the Cr. P.C. (for brevity, hereinafter referred to as the 'Code'). There is no dispute that the Dehati Nalishi Ex. P/3 was recorded by applicant Kiran Lashkarkar on zero number and in this Dehati Nalishi, the complainant Hemraj (P.W. 3) had specifically mentioned previous enmity with Shiv-narayan alias Bhima and suspicion against him. On the basis of this Dehati Nalishi First Information Report Ex. There is no dispute that the Dehati Nalishi Ex. P/3 was recorded by applicant Kiran Lashkarkar on zero number and in this Dehati Nalishi, the complainant Hemraj (P.W. 3) had specifically mentioned previous enmity with Shiv-narayan alias Bhima and suspicion against him. On the basis of this Dehati Nalishi First Information Report Ex. P/16 was registered under the provisions of Section 154 of the Code. Chapter XII of the Code is dealing with "Information to the police and their powers to investigate". Under Section 154 of the Code, it is obligatory on the part of the Officer In charge of the Police Station to reduce into writing every information relating to cognizable offence. In the instant case, on the basis of Dehati Nalishi, on a printed form, information was recorded vide Ex. P/16 and crime under Section 302 of the IPC was registered. After registration of crime, it is the duty of the concerned police to investigate into the matter under the scheme of Chapter XII of the Code. In the instant case, the First Information Report Ex. P/16 was registered and the name of Shiv Narayan alias Bhima was disclosed as a suspect on the basis of the positive material regarding motive. Therefore, the Investigating Officer Kiran Lashkarkar should have investigated the allegations and if he was of the opinion that there was no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to a Magistrate, he could release Shivnarayan alias Bhima on execution of personal bond with or without surety for his appearance if required before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. But, this procedure has not been followed by Kiran Lashkarkar. He has not filed any final report against Shiv Narayan alias Bhima stating therein that there is no sufficient evidence against him. The Investigating Officer had also not taken into custody Shivnarayan alias Bhima and also did not file report saying that no evidence is available against him for his production before the Magistrate to try or commit the case for trial. Jurisdiction lies with the learned Magistrate to accept such final report or direct for further investigation. The Investigating Officer had also not taken into custody Shivnarayan alias Bhima and also did not file report saying that no evidence is available against him for his production before the Magistrate to try or commit the case for trial. Jurisdiction lies with the learned Magistrate to accept such final report or direct for further investigation. If in the opinion of the Magistrate material collected by the police was sufficient, he could take cognizance of the offence and if there is no sufficient material, he could order for further investigation or if he was satisfied with the report of the police, he could accept the same and the matter would be closed against Shiv Narayan alias Bhima stating that there was no sufficient evidence or ground for suspicion regarding involvement of Shivnarayan alias Bhima in the crime. The applicant Kiran Lashkarkar having no jurisdiction closed the case and also not collected any evidence except the affidavit of P.W. 3 Hemraj and that too has not been proved in the Court. It has also not been exhibited and no question was put to P.W. 3 Hemraj regarding execution and submission of such affidavit before Kiran Lashkarkar or any other police officer of that Police Station empowered by him in the report (Dehati Nalishi Ex. P/3). On the basis of this Dehati Nalishi Ex. P/3, P.W. 13 Shivharsh Mishra registered crime No. 391/05 vide P/16. The applicant Kiran Lashkarkar has also admitted recording of Dehati Nalishi Ex. P/3 at the instance of P.W. 3 Hemraj. In Court statement Lashkarkar has not stated anything in examination-in-chief as to why he let out Shiv Narayan alias Bhima and what investigation he had done though his name appeared in the FIR as suspect with concrete evidence of motive. 35. In cross-examination para 7, he has stated that the Dehati Nalishi Ex. P/3 was got recorded by him by Jitendra Rathore and he signed on the same. In the said Dehati Nalishi the names of the appellants are not mentioned (as mentioned in the above mentioned appeals). In para 36, Kiran Lashkarkar has stated that the Senior Police Officials were having knowledge of affidavit of P.W. 3 Hemraj and the investigation was also supervised by them. In para 37, he has stated that he did not register crime against Shiv Narayan alias Bhima. In para 36, Kiran Lashkarkar has stated that the Senior Police Officials were having knowledge of affidavit of P.W. 3 Hemraj and the investigation was also supervised by them. In para 37, he has stated that he did not register crime against Shiv Narayan alias Bhima. His name was mentioned in the FIR only as a suspect but he has nowhere stated as to what steps he had taken to collect evidence against Shivnarayan alias Bhima. In his whole statement, he has nowhere stated that Shivnarayan alias Bhima was even called in the Police Station for interrogation though his name was mentioned in the First Information Report. The version of Kiran Lashkarkar that he has not registered the crime against Shivnarayan alias Bhima is not correct, because in the FIR Ex. P/16 in Column 7 the name of Shivnarayan alias Bhima is mentioned as suspect and there was reasonable ground for this. The police is taking cognizance of the offence and not the offender. Therefore, it was the duty of Shri Lashkarkar to investigate the suspicion and thereafter file the Final Report for consideration by the Magistrate as discussed hereinabove under Section 169 of the Code. (See Pancham Singh v. State of U. P. (1983 Cri LJ NOC 37 (All)), Raghavendra Singh Hazari v. State of M. P. ( 1981 MPLJ 664 ), Abhinandan Jha v. Dinesh Mishra ( AIR 1968 SC 117 ) : (1968 Cri LJ 97), and Hardeosingh Sandhu v. State of Rajasthan, (1986 Cri LJ 1515). 36. This is not a case where the learned Sessions Judge passed the disparaging remarks and the order directing further investigation has been passed without affording opportunity of hearing to the applicant Kiran Lashkarkar. The show cause notice dated 30-10-2005 was given to him wherein it is specifically mentioned that for not impleading Shiv Narayan alias Bhima as accused though there was sufficient material in the FIR, the statement of the witnesses recorded under Section 161 of the Code and memorandum statements of co-accused persons recorded under Section 27 of the Evidence Act and as to why offence under Section 201 of the Indian Penal Code should not be registered against him for causing disappearance of the evidence to screen Shiv Narayan alias Bhima. Kiran Lashkar submitted reply to this show-cause notice dated 15-12-2005 and stated that there was no evidence against Shri Narayan alias Bhima for his arrest which was not correct. His name was mentioned in the First Information Report as well as in the statements of the prosecution witnesses Hemraj, Bhagwansingh and Daulatsingh recorded under Section 161 of the Code, on the basis of previous enmity, because Shivnarayan alias Bhima was sentenced to R.I. for seven years. In reply para 2, he mentioned that though the name of Shivnarayan alias Bhima appeared in the memorandum statement of arrested accused Bhanwarlal and Ramesh, but Shivnarayan had denied his involvement in the offence and stated his presence some-where else than the place of incident which was found correct on inquiry by the Sub-Inspector Hitendra Singh Rathore. Kiran Lashkarkar has not filed any document along with his reply to support his statement and his version is not corroborated or supported by Hitendra Singh Rathore (P.W. 17). Hitendra Singh Rathore has not stated any kind of investigation against Shivnarayan alias Bhima especially regarding plea of alibi. Part of investigation was done by him, but nowhere he has stated about receiving of affidavit of P.W. 3 Hemraj Ex. P/15. 37. P.W. 12 Notary Shri G. P. Saxena has proved this affidavit, but he was not asked to identify the deponent Hemraj in Court. He had also not brought the register which was required to be maintained by Notary about particulars of deponent and signature or thumb impression. Therefore, it is very difficult to say that Ex. P/15 affidavit was sworn by P.W. 3 Hemraj, because it was not shown to him in Court and no statement was given by him regarding swearing of affidavit Ex. P/15 and giving the same to applicant Lashkarkar or any Police Officer of the concerned Police Station. 38. In reply Kiran Lashkarkar has also mentioned that the case history was apprised to the senior police officials and after perusal of the whole case by Additional Public Prosecutor, Shajapur, in good faith in absence of evidence Shivnarayan alias Bhima was not made accused. 38. In reply Kiran Lashkarkar has also mentioned that the case history was apprised to the senior police officials and after perusal of the whole case by Additional Public Prosecutor, Shajapur, in good faith in absence of evidence Shivnarayan alias Bhima was not made accused. His, this, statement also does not appear to be true, because if Public Prosecutor would have given clean chit to Lashkarkar for not making Shivnarayan alias Bhima as accused, the prosecutor would have not filed the application under Section 319 read with section 193 of the Code before the trial Court on 30-11-2005 making allegation that police had deliberately deleted the name of Shiv Narayan alias Bhima from the list of accused on the basis of affidavit of Hemraj and prayed for order by the trial Court to take cognizance and implead Shivnarayan alias Bhima as accused under Section 319 read with Section 193 of the Code. Learned trial Court has discussed all these aspects of the case from paras 54 to 58 considering the reply and found the reply of applicant Kiran Lashkarkar unsatisfactory. Learned trial Court in para 58 dismissed the application of the prosecution to implead Shivnarayan alias Bhima, because there was incomplete investigation against him and the trial Court directed for further investigation as per provision under Section 173(8) of the Code and initiation of punitive Departmental Enquiry. In view of the aforesaid discussion, on facts and law, we are of the considered view that the learned trial Court has followed three norms laid down by the Supreme Court in the case of Mohd. Naim (1964 (1) Cri LJ 549) (supra) i.e. show cause notice was given at the initial stage of commencement of trial to the applicant Kiran Lashkarkar and remarks passed by the learned trial Court is based and justified on the basis of the evidence available on record and it was necessary for decision of the case as an integral part thereof. In Chapter XII regarding information to the police and their power to investigate are prescribed, but the applicant/Station House Officer/Investigating Officer of the instant case, has not followed the procedure required to be followed for letting out a person against whom in his opinion, there was no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. (See Section 169 of the Code). 39. (See Section 169 of the Code). 39. There is sufficient prima facie material available on record to hold that the applicant Kiran Lashkarkar caused disappearance of the evidence against Shivnarayan alias Bhima and also departed from mandatory provisions regarding investigation after registration of FIR as per provision under Section 154 of the Code committed grave error during investigation as discussed in detail by the trial Court as well as this Court and his reply regarding letting out Shiv Narayan alias Bhima is just contrary to the material available on record. 40. In view of the Supreme Court pronouncement in the case of Mohd. Naim (1964 (1) Cri LJ 549) (supra), the learned trial Court has no jurisdiction to direct the authority for initiation of punitive Departmental Enquiry against the applicant. At the most, the trial Court, after passing the adverse remarks could have directed the superior authority to take necessary action in accordance with law. Therefore, the impugned order passed by the learned trial Court is maintained up to the extent of further investigation as per provision under Section 173(8) of the Code against Shiv Narayan alias Bhima as well as for the offence under Section 201 of the Indian Penal Code against the applicant Kiran Lashkarkar and sending a copy of the impugned judgment to the DGP Bhopal for taking action against the applicant in accordance with law. The direction by the learned trial Court regardinginitiation of Punitive Departmental Enquiry is hereby quashed. 41. In the wake of the aforesaid legal and factual discussion, both the appeals are allowed and the revision is allowed partly in terms indicated hereinabove. 42. Let the original judgment be retained in the record of Cri. A. No. 1016/2006 and a copy whereof be placed in the records of Cri A. No. 1284/2006 and Cri. Revision No. 980/2006. Order accordingly.