JUDGMENT By the Court.—Since both the aforenoted appeals arise from the same occurrence and the same judgment passed in S.T. No. 609 of 2002 in State v. Saudan alias Sonu and others, by Special Judge (E.C.) Act, Ghaziabad on 30.3.2005, they have been heard together. 2. Accused appellants Teetu and Saudan in ST. No. 609 of 2002 were charged under Sections 302/34, 394/34, I.P.C., 201/34 I.P.C. read with Section 411 I.P.C. They were tried by Additional Sessions Judge (Special Judge, E.C. Act), Ghaziabad, who vide judgment dated 30.3.2005 convicted them on all the counts and sentenced them to undergo a term of life imprisonment under Sections 302/34, 394/34 and to pay a fine of Rs. 2,000/- each on each count, and also to undergo a term of three years rigorous imprisonment and to pay a fine of Rs. 500/- under Section 201, I.P.C, and to undergo a term of one year rigorous imprisonment under Section 411, I.P.C. and in default to pay the fine to undergo a term of one month and fifteen days simple imprisonment respectively, and ordered to run all the sentences concurrently. The Trial Judge acquitted co-accused Vipin, who stood trial on the charge under Section 411, I.P.C, alongwith these accused appellants. 3. According to the prosecution version, accused Teetu and Saudan alias Sonu on 22.4.2002 in presence of Mahendra P.W. 2 and Indrapal P.W. 3 engaged on hire a Bhainsa Buggi of informant’s ( P.W. 1) son Raju and took the deceased Raju alongwith them. Thereafter Raju did not return for two days. The informant (P.W.1) searched his son Raju and did not find him. On 24.4.2002, he came to know from the people that accused Teetu and Saudan alias Sonu killed Raju on 22.4.2002 and had thrown his dead-body in a Nala nearby. A written report of this incident was prepared by the informant Kalu, PW-1 on 22.4.2002 at 6.30 P.M. at Police Station Murad Nagar, District Ghaziabad. 4. The investigation was commenced by P.W. 8 S.I. P.K. Agnihotri, who proceeded with the informant from the police station and arrested accused Teetu and Saudan around 10-11 P.M. who in presence of the informant made a discovery statement to the Police that they after killing Raju had thrown the dead-body in the Nala nearby the bridge, and had given his Bhainsa Buggi to one Vipin (co-accused) of village Amheda. The accused, thereafter led the police to the place of occurrence where in presence of witnesses P.W. 6 Chhidda and one Rajveer on pointing out of the accused, police recovered the dead-body of Raju from the Nala lying between the fields of Hoshiyar Singh and Nirankar Singh in the forest of Village Chhittaura vide effecting recovery memo Ex. Ka-4, and subsequent to it, the Cart lying standing in front of the house of co-accused Vipin in village Amheda and Bhainsa from his courtyard vide effecting seizure memo Ex. Ka-5. 5. The inquest on the dead-body was conducted by P.W. 9 S.I. R.S. Arya who sent the dead-body of Raju for post-mortem to District Hospital, Ghaziabad. The post-mortem on the dead-body of Raju was conducted by PW. 7 Dr. A.K. Mahendru who vide report Ex. Ka-7 opined the cause of death of Raju as Asphyxia, as a result of ante-mortem injuries found over his neck. 6. The Investigating Officer, S.I. P.K. Agnihotri, PW-8 after completing the investigation, filed the charge sheet against the accused-appellants and the other accused Vipin. 7. The Trial Sessions Judge found the evidence of the prosecution dependable, but exonerated co-accused Vipin and convicted the accused appellants. 8. That is what brings the appellants to this Court. 9. To prove its case, the prosecution produced PW-1, Kalu, PW-2 Mahendra, PW-3 Indrapal, PW-4, Rohtash, PW-5 H.C.P. Pratap Singh, PW-6 Chhidda, PW-7 Dr. A.K. Mahendru, PW-8, S.I. P.K. Agnihotri and PW-9 Ram Sanehi Arya in it’s evidence in the Court. The case of the accused is of denial simpliciter and they produced no evidence in their defence. 10. To prove its case, the prosecution examined P.W. 1, father of the deceased Raju. He proved the first information report, Ex. Ka-1, and stated, that after lodging the first information report, the investigating officer had gone with him to arrest accused Teetu and Saudan from the police station. The accused were arrested the same night between 10 to 11 and revealed before the investigating officer that they killed Raju, and threw his dead-body in the Nala and gave away the Bhainsa and Buggi to one Vipin Giri of village Amheda. 11. The accused were arrested the same night between 10 to 11 and revealed before the investigating officer that they killed Raju, and threw his dead-body in the Nala and gave away the Bhainsa and Buggi to one Vipin Giri of village Amheda. 11. P.W. 2 Mahendra and P.W. 3 Indrapal stated that on 24.4.2002 P.W. 1 Kalu had asked them about Raju and they informed him that they had seen accused Teetu and Saudan on 22.4.2002 engaging the Buggi of Raju on hire and taking Raju with them to the jungle. P.W. 3 Inderapal stated that both the accused had taken the police to the spot and got the dead-body of Raju recovered from the Jungle of Chittaura in his presence. The accused had revealed the police in his presence that they after assassinating Raju had sold Bhainsa Buggi to one Vipin Giri of Village Amheda District Meerut. 12. P.W. 6 Chhidda, who is the brother of P.W. 1 and father of P.W. 3 Inderapal stated that at the instance of accused Teetu and Saudan police had recovered the dead-body of Raju on 25.4.2002 from the Jungle of Chittaura in his and Rajveer’s presence. He stated the accused had also revealed the police that it was the allurement of Bhainsa Buggi that they eliminated Raju, and after his elimination, they had disposed of the said Bhainsa Buggi to one Vipin Giri of Village Amheda and they may get the Bhainsa and Buggi recovered. 13. The accused, thereafter, led the police to Vipin’s house in village Amheda, the same day on 25.4.2002 where, the police at the instance of accused recovered the Bhainsa and Buggi from the house of accused Vipin Giri vide seizure memo Ex. Ka.5. 14. P.W. 4 Rohtash Kumar is the scribe of the written report Ex. Ka-1. He stated that on 24.4.2002 at the instance of P.W. 1 Kalu, he had written the report, which this witness has proved. 15. P.W. 5 H.C. Pratap Singh on 24.4.2002 was the Head Moharrir at Police Station Moradnagar. He stated that he had received a written report Ex. Ka-1, from P.W. 1 informant Kalu at 6.30 P.M. instituted the case crime, vide chick report Ex. Ka-2, and entered it into G.D. Ex. Ka-3, which this witness has proved. 16. 15. P.W. 5 H.C. Pratap Singh on 24.4.2002 was the Head Moharrir at Police Station Moradnagar. He stated that he had received a written report Ex. Ka-1, from P.W. 1 informant Kalu at 6.30 P.M. instituted the case crime, vide chick report Ex. Ka-2, and entered it into G.D. Ex. Ka-3, which this witness has proved. 16. P.W. 9 S.I. Ram Sanehi Arya stated that after the institution of the case crime, and the arrest of the accused, he alongwith S.I. P.W. 8 P.K. Maheshwari, went to the place of occurrence, where on 25.4.2002 at 7 O’clock in the morning, he prepared the Panchnama Lash Ex. Ka-6 of the dead-body of Raju and after preparing the requisite papers Ex. Ka-13 to 15 for the post-mortem had sent the dead-body for post-mortem examination to District Hospital Ghaziabad. He has stated that he seized the wooden plank (Palla) smothered with blood and collected the sample of plain and blood stained earth from the place of occurrence by affecting seizure memo Ex. Ka-20 , which this witness has proved. 17. P.W.7 Dr. A.K. Mahendru stated that he was Senior Medical Officer at District Hospital Ghaziabad. On 25.4.2002 at around 2.30 O’clock, he conducted the post-mortem on the dead-body of deceased Raju aged 26 years and found two ante-mortem injuries on his person. The injuries found by the doctor on the person of deceased Raju are as follows : “Lacerated wound 8 cm. x 2 cm. x scalp bone deep (L) side skull obliquely placed 7 cm. above (L) ear, on exploration, underneath brain matter is liquefied. Ligature mark 29 cm. x 1 cm. horizontally placed continuous, upper part neck, on exploration underneath muscles are congested, on further exploration. Tracheal rings are broken, there is of hyoid bone, trachea is congested”. 18. He has stated that the ante-mortem injuries found on the person of Raju were responsible for his death and the cause of death was strangulation. He has proved the post-mortem report Ex. Ka-7 of deceased Raju. 19. P.W. 8 S.I. P.K. Agnihotri is the investigating officer of the case. He has stated that after the institution of the case Crime, he commenced the investigation. He proceeded to arrest accused Teetu and Saudan and arrested both between the night of 24/25.4.2002. He has proved the post-mortem report Ex. Ka-7 of deceased Raju. 19. P.W. 8 S.I. P.K. Agnihotri is the investigating officer of the case. He has stated that after the institution of the case Crime, he commenced the investigation. He proceeded to arrest accused Teetu and Saudan and arrested both between the night of 24/25.4.2002. On the discovery statement of both the accused given, to him and on their pointing out he recovered the dead-body of Raju the same night from a Nala located between the field of Kedar Singh and Nirankar Singh of village Chittaura by affecting recovery memo Ex. Ka-4 in presence of the witnesses. He has stated that he had deputed S.I. Ram Sanehi to prepare Panchanama Lash of the dead-body of the deceased. On the discovery made by the accused and on their pointing out he recovered Bhainsa and Buggi from the house of Vipin Giri of village Amheda in presence of the witnesses by affecting seizure memo Ex. Ka-5. He prepared the site plan Ex. Ka-8 of the place from where the cart and the Bhainsa were recovered. 20. The case of the accused is of denial Simpliciter. 21. It will appear from the above that the prosecution evidence consists the evidence of last seen, and of recovery under Section 27 of the Evidence Act, and thirdly, of extra judicial confession. The evidence has to be adjudged in this perspective. 22. As regards, the evidence of last seen, there is the evidence of PW-2 Mahendra and PW-3 Indrapal that the accused hired Bhainsa Buggi of the deceased by saying that they wanted buggi for transporting the wheat and thereafter the two accused went alongwith the deceased in the buggi. 23. The dead-body was recovered 60 hours after this. The potency of the evidence of last seen depends primarily on the time gap between the factum of the last seen and the recovery of the dead-body. Here the time gap is 60 hour and the evidence consequently looses much of its shine and resilience and cannot, therefore, he considered sufficient enough to provide adequate inference about the involvement of the accused in the commission of crime. 24. Here the time gap is 60 hour and the evidence consequently looses much of its shine and resilience and cannot, therefore, he considered sufficient enough to provide adequate inference about the involvement of the accused in the commission of crime. 24. As regards, the evidence of extra judicial confession of PW-1 Kalu, PW-3 Indrapal and his father PW-6 Chhidda, that accused Teetu and Saudan stated to the police that they had killed the deceased in order to appropriate the buggi and the Bhainsa, which is supposed to be the motive for the commission of crime. There is an obvious defect in this evidence, which makes it unacceptable, and that, is that the confessional statement, was made to the Police and not to them, and they only heard the statement being made. When the statement made by the accused to the Police is inadmissible in evidence, and consequently, the evidence of extra judicial confession becomes otiose. 25. As regards the recovery of dead-body at the instance of the accused, about which there is evidence of P.W. 1, P.W. (2) and P.W. 6 that evidence also become redundant, because it is mentioned in the first information report that the dead-body was lying at the particular place. When it was already known where the dead-body was lying, the question of its recovery at the instance of the accused, is meaningless. 26. Even the motive, which is that, the accused wanted to appropriate the Bhainsa Buggi of the deceased, looks on the face of it very unsubstantial and insufficient. It does not go down the throat that the deceased will be killed, only for the sake of Bhainsa Buggi. 27. The consequence is that the evidence against the accused flops, and the accused have, therefore to be acquitted. 28. A word must be said about the manner, in which the sessions trial was conducted and which leaves much to be desired. The formulation of question Nos. 2 and 3 under Section 313, Cr.P.C. put to co-accused Vipin Giri was not framed properly, and it was not emphasized that the accused Vipin Giri should have explained the presence of stolen Bhainsa Buggi in his house. 29. The Additional’ District Government Counsel for the prosecution did not discharge his responsibility properly and dealt with the case in a very casual manner. 29. The Additional’ District Government Counsel for the prosecution did not discharge his responsibility properly and dealt with the case in a very casual manner. Sample this statement in the examination-in-chief of P.W. 3 Inderpal “later I came to know that the accused taking the police to the spot had got the body of deceased Raju recovered in his presence from the jungle of village Chittaura nearby bridge”, there is contradiction in terms in this statement, and the Counsel for the State did not pay any attention to this statement and did not get the statement rectified. Over all, it was a very poor show by the entire prosecution set up, and the same has resulted in a murder going unpunished. 30. Appeals allowed. Accused acquitted. ————