JUDGMENT Hon’ble S.C. Agarwal, J.—This jail appeal has been filed against the judgment and order dated 18.9.1997 passed by III Additional Sessions Judge, Aligarh in Sessions Trial No. 420 of 1996, whereby the appellant Shyambir Singh was convicted under Sections 302, 201 I.P.C. and sentenced to undergo imprisonment for life under Section 302 I.P.C. and R.I. for 10 years under Section 201 I.P.C. Both the sentences were ordered to run concurrently. 2. The incident took place on 13.11.1995 at about 7:00 a.m. in the house of Kamar Pal Singh in Mohalla Bhujpura, P.S. Kotwali, District Aligarh. The F.I.R. exhibit ka-1 was lodged by the complainant Bhallu (P.W.1) on 15.11.1995 at 17:45 hours at P.S. Kotwali, District Aligarh. The distance of police station from the place of occurrence is two kilometers. 3. The prosecution story, as unfolded in the F.I.R., is that on 13.11.1995 at about 7:00 a.m., the complainant Bhallu (P.W.1) was sitting at his house along with Zahid Ali (P.W.2), Naeem, his elder brother Bhurey Khan and tenant Anwar. His neighbour Shyambir called Bania, the son of the complainant, aged about 8 years to his house to bring beedi and match box. Thereafter, the complainant and his companions got busy in their work. Bania did not return home till evening. A search was made, but the boy could not be found. Later on, the complainant came to know that Shyambir was detained in jail on 13.11.1995 itself after surrendering in some case. On 15.11.1995 at about 5:30 p.m., the complainant went to the house of Kamar Pal Singh, the uncle of accused Shyambir and found the dead-body of Bania in the latrine gutter of Kamar Pal Singh. On the basis of the written report exhibit ka-1, case crime No. 246 of 1995 under Sections 302, 201 I.P.C. was registered against the appellant by head moharrir Ravindra Singh. 4. S.S.I. D.K. Sharma (P.W.4) commenced the investigation. He went to the spot, got the dead-body of Bania extracted from the gutter, performed inquest and sent the dead-body for post-mortem examination. He also interrogated the witnesses, inspected the spot and prepared the site plan. Appellant was already in jail. His custody warrant in this crime was prepared on 17.11.1995. After investigation, charge-sheet was submitted against the appellant. 5. Autopsy on the dead-body of Bania was performed by Dr. He also interrogated the witnesses, inspected the spot and prepared the site plan. Appellant was already in jail. His custody warrant in this crime was prepared on 17.11.1995. After investigation, charge-sheet was submitted against the appellant. 5. Autopsy on the dead-body of Bania was performed by Dr. R.P. Singh (P.W.3) on 16.11.1995 at 1:20 a.m. As per the post-mortem report, the deceased was about 8 years of age. The death was caused about 3 - 4 days earlier. Following ante mortem injury was found on the person of the deceased : Multiple contusions in area of 10 cm. x 9 cm. on the forehead. On internal examination, membranes, brain, pleura and both the lungs were found congested. Larynx and trachea filled with mud. Skin was peeled of at places. In the opinion of the doctor, death was caused due to drowning. Post-mortem report is exhibit ka-2. 6. Learned Sessions Judge framed charge under Section 302, 201 I.P.C. against the appellant, who denied the charge and claimed to be tried. The prosecution examined four witnesses in this case. Bhallu (P.W.1) and Zahid Ali (P.W.2) are the witnesses of last seen and recovery of dead-body. Dr. R.P. Singh (P.W.3) had conducted the post-mortem examination on the dead-body of the deceased and S.S.I. D.K. Sharma (P.W.4) is the Investigating Officer. 7. The appellant, in his statement recorded under Section 313 Cr.P.C., denied the prosecution allegations and claimed that he was falsely implicated in the case. However, no oral evidence was adduced in defence on behalf of the appellant. 8. Relying upon the prosecution version and the evidence adduced on behalf of the prosecution, learned trial judge convicted and sentenced the appellant as aforesaid. This appeal was sent to this Court through Superintendent, District Jail, Aligarh in the year 1997, but was admitted on 30.10.2007 after condonation of delay. Since the appellant was not represented by any counsel, he was summoned from jail on 8.3.2010 and on his request for a counsel at the expense of the Government, Sri Brijesh Sahai, advocate was appointed as Amicus Curiae to present his case in Court. 9. We have heard Sri Brijesh Sahai, learned Amicus Curiae appearing on behalf of the appellant, learned A.G.A. for the State and perused the records. Learned counsel Sri Brijesh Sahai submitted that the case is based on circumstantial evidence and the chain of circumstances is not complete. 9. We have heard Sri Brijesh Sahai, learned Amicus Curiae appearing on behalf of the appellant, learned A.G.A. for the State and perused the records. Learned counsel Sri Brijesh Sahai submitted that the case is based on circumstantial evidence and the chain of circumstances is not complete. There was no motive for the crime. None of the incriminating circumstances pointed out by the trial Court were established by evidence. It was submitted that none of the witnesses saw the appellant taking the boy with him nor there was any evidence to show that the boy actually met the appellant. The recovery of dead-body from open gutter in the house of Kamar Pal Singh cannot be linked to the appellant nor the fact that the appellant went to jail after surrendering in a case on 13.11.1995 can be taken as an incriminating circumstance. 10. Per contra, learned A.G.A. vehemently supported the trial Court judgment and submitted that the deceased had gone to the house of appellant on his call and his dead-body was found in the house of Kamar Pal Singh, which was in sole occupancy of the appellant. It was further submitted that the appellant had illicit relations with a lady named Saina and wanted her to live in the house of the complainant as a tenant. The request was declined by the complainant causing annoyance to the appellant. 11. In this case, there is no direct evidence to connect the appellant with the murder of the deceased. The prosecution case is entirely based on circumstantial evidence. We have to keep in mind that in a case based on circumstantial evidence, it is essential that the chain of circumstances must be complete, each circumstance must be fully proved by reliable evidence and must point towards the guilt of the accused, and the cumulative effect of all incriminating circumstances taken together must be to exclude any possibility of the crime being committed by anyone else except the accused. 12. Learned trial Court has passed the judgment of conviction on the basis of the following incriminating circumstances : 1.Motive 2.The deceased went to the house of the appellant at his call, but never returned. 3.The dead-body was recovered from the gutter in the house where the appellant lived. 4.The conduct of the appellant in surrendering before the Court in some other case on that very day i.e. 13.11.1995. 13. 3.The dead-body was recovered from the gutter in the house where the appellant lived. 4.The conduct of the appellant in surrendering before the Court in some other case on that very day i.e. 13.11.1995. 13. We propose to examine each and every circumstance relied upon by the learned trial Court in the light of the submissions advanced by learned counsel for the appellant, learned A.G.A. and the evidence available on record. As regards motive, there is not a whisper of motive in the First Information Report. Only in his deposition in Court the complainant Bhallu (P.W.1) stated for the first time that about 10 - 12 days before the incident, Shyambir brought a girl named Saina to his house and requested him to accommodate her as a tenant. Since Saina had illicit relations with the accused, the complainant refused. The appellant got annoyed and harboured enmity. On cross-examination, Bhallu (P.W.1) admitted that there was a rumour in the locality about the bad character of Saina, but he had no personal knowledge about the same. He further admitted that there are 7 - 8 rooms in the house where Shyambir resides. One barber also resides in that house. From this admission, it is obvious that there was no occasion for the appellant to take Saina to the complainant for letting her a room. The house of the appellant had 7 - 8 rooms and he could very well accommodate her in that house as a tenant. The allegations against the character of Saina are based on rumours with no evidence coming forward in this regard. Moreover, the fact that the appellant was annoyed with the complainant, as he refused to let the room to Saina, is not mentioned in the First Information Report and is an improvement and an afterthought. The First Information Report was lodged after recovery of dead-body. If there was any motive for the appellant to kill the deceased, the same would have found place in the F.I.R. Itself. On one hand Bhallu (P.W.1) alleged that the appellant harboured enmity with him on account of dispute regarding Saina, on the other hand he admitted in his examination-in-chief itselt that Shyambir did not maintain enmity with him. In cross-examination also he admitted that Shyambir was his neighbour. They used to sit together and their relations were not bad at all. On one hand Bhallu (P.W.1) alleged that the appellant harboured enmity with him on account of dispute regarding Saina, on the other hand he admitted in his examination-in-chief itselt that Shyambir did not maintain enmity with him. In cross-examination also he admitted that Shyambir was his neighbour. They used to sit together and their relations were not bad at all. In the teeth of this admission by the complainant, the story of ill will due to Saina does not hold water. After carefully analysing the evidence on record, we have come to the conclusion that the prosecution has failed to prove any motive against the appellant to cause the murder of the son of the complainant. 14. Next circumstance against the appellant is that on the fateful day, he called the deceased to his house to bring beedi and match box. The deceased went towards the house of the accused, but never returned. The statements of Bhallu (P.W.1) and Zahid Ali (P.W.2) show that Shyambir gave a call to Bania to bring beedi and match box and Bania (deceased) went away to bring beedi and match box. No such inference can be drawn from this statement that Bania went to the house of appellant. The only inference that can be drawn is that on the call of the appellant, Bania went to bring beedi and match box. There is no evidence on record to show that after purchasing beedi and match box, Bania went to the house of appellant. None saw him going to the house of the appellant. There is no evidence on record to show that Bania actually met the appellant after bringing beedi and match box. After 7:00 a.m. the prosecution witnesses became busy in their professional work and only in the evening they found that the deceased had not returned home. Simply a call by the appellant to the deceased to bring beedi and match box cannot itself be deemed to be incriminating circumstance against him. 15. The third circumstance against the appellant is that the dead-body of the deceased was found floating inside the gutter of the house of Kamar Pal Singh, uncle of the appellant. Site plan exhibit ka-9 reveals that there are two entrances to the house of appellant. One entrance is in the southern eastern corner of the house. There is an open door. Site plan exhibit ka-9 reveals that there are two entrances to the house of appellant. One entrance is in the southern eastern corner of the house. There is an open door. In front of the door there is a gutter measuring 3 ft. x 3 ft. and 5 ft. deep. The dead-body was found in this gutter. Another door to the house of the appellant is towards south. The deceased was a child of 8 years. There is no evidence on record to show that the gutter was covered. The possibility that the deceased, while going to the house of the appellant, fell in the gutter by accident cannot be ruled out. There were contusions found on the forehead of the deceased, but these contusions could be caused by falling in the gutter also. The house belongs to Kamar Pal Singh, uncle of the appellant. Bhallu (P.W.1) did not say that the appellant resided in the house of his uncle. Only Zahid Ali (P.W.2) stated that Shyambir lived in the house of Kamar Pal Singh. Since the gutter is in the open area of the house and is situated near the door, it is possible that the deceased might have fallen in the gutter accidentally. As per the post-mortem report, cause of death was drowning and not the injuries found on the forehead. Zahid Ali (P.W.2) also admitted that there are 10 - 12 rooms in the house of Shyambir and one barber was also a tenant, who lives there with his family. The barber or his family members have not been examined in evidence nor were they interrogated by the Investigating Officer. They live in the same house from where the dead-body was recovered. Their testimonies could have shed light on the fact that the deceased fell in the gutter by accident or he was thrown in the gutter by the appellant. Non-interrogation and non-examination of barber and his family members in evidence amounts to withholding the best evidence. Surprisingly, the portion in occupation of barber has not been indicated in the site plan. 16. Non-interrogation and non-examination of barber and his family members in evidence amounts to withholding the best evidence. Surprisingly, the portion in occupation of barber has not been indicated in the site plan. 16. The allegation made by Zahid Ali (P.W.2) that the house of Kamar Pal Singh was in exclusive possession of the appellant was not put to the appellant in his statement under Section 313 Cr.P.C. It is established law that if an incriminating circumstance is not put to the accused in his examination under Section 313 Cr.P.C., the same circumstance cannot be relied upon against him. As stated earlier that the family of a barber also resided in the same house belonging to Kamar Pal Singh, thus the house cannot be said to be in exclusive possession of the appellant. There is no evidence on record to show that the deceased was pushed or thrown in the gutter by the appellant. The deceased could also have fallen in the gutter by accident and drown. Thus, this circumstance does not conclusively prove the complicity of the appellant in the death of Bania. 17. The last circumstance relied upon by the trial judge is the conduct of the appellant that he hurriedly surrendered in Court and went to jail on 13.11.1995. Learned trial judge pointed out that the defence had not shown that the accused was compelled to surrender in compliance of some coercive process pending against him in any criminal Court and contrary to that he was already on bail in a prior criminal case. This approach on the part of learned Sessions Judge cannot be appreciated. If the surrender of appellant in Court was considered suspicious by the Investigating Officer or the prosecution, the fact regarding that criminal case could have been brought on record to show that there was no urgency for the appellant to surrender on 13.11.1995. There is nothing on record to show that in the case in which the appellant surrendered, he was previously on bail or that any coercive process was issued against him or not. This circumstance was also not put to the appellant in his statement recorded under Section 313 Cr.P.C. and again needless to repeat that the circumstance not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him. This finding of learned trial Court is based on conjectures and surmises. This circumstance was also not put to the appellant in his statement recorded under Section 313 Cr.P.C. and again needless to repeat that the circumstance not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him. This finding of learned trial Court is based on conjectures and surmises. We are conscious of the fact that in the trial Court, the appellant was not represented by a competent defence counsel. He was provided the services of Amicus Curiae by the trial Court. Even the witnesses were not effectively cross-examined. In such circumstances, to expect from the appellant that he would bring or file documents in the defence of his case is too much. The reasoning of the trial Court that there should have been some reasonable and acceptable explanation showing the emergency of surrender is perverse. There is nothing on record to show that the appellant surrendered in a case in which he was already on bail or he surrendered in a new case in which he was wanted. In the absence of any documentary evidence on record, it cannot be presumed that there was no reasonable or acceptable explanation showing the emergency of such surrender and no adverse inference can be drawn against the appellant only on the ground that he surrendered in Court in a criminal case on 13.11.1995. 18. Learned Amicus Curiae drew our attention to the statement of the complainant in cross-examination that when his son did not return, he gave information at the police station that his son was missing and he did not name any person in that information. This admission shows that he gave a missing report at the police station probably in the morning of 14.11.1995, but no such missing report is forthcoming. The Investigating Officer denied any missing report having been lodged at the police station earlier by the complainant. 19. In view of the above discussions, we find that none of the circumstances relied upon by the trial Court have been proved. The prosecution has failed to prove that there was any motive for the appellant to commit murder of the deceased. 19. In view of the above discussions, we find that none of the circumstances relied upon by the trial Court have been proved. The prosecution has failed to prove that there was any motive for the appellant to commit murder of the deceased. Though the appellant called the deceased to bring beedi and match box, and the deceased went away to bring or purchase beedi or match box, there is no evidence on record to show that the deceased actually met the appellant after bringing beedi and match box. The recovery of dead-body from the open gutter situated in front of the gate is in itself not an incriminating circumstance which could conclusively prove the guilt of the appellant. The possibility of the deceased falling down in the gutter by accident cannot be ruled out and no exception can be taken from the fact that the appellant surrendered in the Court on 13.11.1995 in another criminal case. 20. In view of what has been stated above, the appellant is entitled for benefit of doubt and we hold that the prosecution has not been able to establish its case by means of reliable evidence beyond reasonable doubt. The chain of circumstances is not complete nor does it conclusively point towards the guilt of the accused. The judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment and order dated 18.9.1997 passed by III Additional Sessions Judge, Aligarh in Sessions Trial No. 420 of 1996 is set-aside. 21. The Appeal is accordingly allowed. The appellant Shyambir Singh is in jail since November 1995. He is acquitted of the charges under Sections 302, 201 I.P.C. He shall be set at liberty forthwith unless wanted in some other case. In the end we would like to place on record our appreciation for the valuable assistance provided to us by Sri Brijesh Sahai as Amicus Curiae for the appellant. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance. ————