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2010 DIGILAW 811 (RAJ)

Gafoor v. State of Rajasthan

2010-04-09

G.S.SARRAF, NARENDRA KUMAR JAIN

body2010
JUDGMENT Hon'ble JAIN, J.-This appeal on behalf of accused-appellant Gafoor S/o Sultan Khan is directed against the impugned judgment and order dated 15th July, 1988 passed by Sessions Judge, Jaipur District, Jaipur in Sessions Case No.33/85, wherein appellant has been convicted and sentenced as under:- U/Sec. 302 IPC - Rigours Imprisonment for life and a fine of Rs.200/-; in default of payment of fine to further undergo one month's Rigorous Imprisonment. U/Sec.201 IPC - 7 Years Rigorous Imprisonment and a fine of Rs.100/-; in default of payment of fine to further undergo one month's Rigorous Imprisonment. UlSec.377 IPC - 6 month's Rigorous Imprisonment and a fine of Rs. 100/-; in default of payment of fine to further undergo one month's Rigorous Imprisonment. All the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that on 6th October, 1984, a written report was lodged by Hanuman Prasad (P.W.5) at Police Station, Bagru, District, Jaipur alleging inter alia that one boy aged about 10-11 years, whose name is Ramavtar S/o Sabu Lal, resident .of Village Sirsi was missing since 4th October, 1984. They also made extensive search about him and a report in this regard has been lodged in the Control Room. On 6th October, 1984 his dead body was found lying in Village Sirsi in front of Post Office. His one hand was missing and his neck was tied with a rope. Therefore, it appears that he has been murdered. On the basis of this report, F.LR. No.186/84 was registered under Section 302 I.P.C. and investigation commenced. During investigation, the accused appellant as well as co-accused Hanif Khan were arrested and after completion of investigation, the police filed a charge-sheet against both the accused persons. 3. The trial court framed charge against the appellant under Sections 302, 201 & 377 I.P.C. and against co-accused Hanif Khan under Section 302/34 and 201 I.P.C. Accused persons denied the charges and claimed trial. The prosecution in support of its case, examined as many as 23 witnesses and also produced documentary evidence. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C. and in defence statement of D.W.1 Sridhi Chand was recorded and documentary evidence Ex.D1 to Ex.D4 was produced. The prosecution in support of its case, examined as many as 23 witnesses and also produced documentary evidence. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C. and in defence statement of D.W.1 Sridhi Chand was recorded and documentary evidence Ex.D1 to Ex.D4 was produced. The learned trial court after considering the submissions of parties and examining the record, acquitted the co-accused Hanif Khan of the charges framed against him, but convicted and sentenced the appellant as , mentioned above. 4. Shri A.K. Bhandari, learned Sr. Advocate appearing on behalf of appellant argued that in the present case, there is no direct evidence and appellant has been convicted on the basis of following circumstantial evidence:- (A) Recovery of bloodstained wooden planks('Fantas'); (B) Recovery of two pieces of 'Patasas'; (C) Recovery of particles of fodder ('Khakhla') on the body and pocket of the trouser of the deceased; (D) Accused last seen in the company of deceased; He contended that recovery of weapon 'Chhura' (Knife) at the instance of appellant has been disbelieved by the trial court. Similarly, the Polygraphic report (Ex.P26) was not considered by the trial court as the same was not admissible in evidence in view of section 293 of the Code of Criminal Procedure. 5. He contended that bloodstained wooden planks were recovered from the shop, which was not in exclusive possession of the appellant as from the prosecution evidence, it is clear that shop was belonging to Sultan, Hanif and other family members of Sultan. The wooden planks were recovered vide Ex.P14 at the instance of accused without recording any information of the accused under Section 27 of the Evidence Act, the Motbir of recovery memo namely Hanuman Sahai was not examined by the prosecution. The shop was examined or inspected thoroughly on 9th October, 1984 itself by P.W.17 Roshan Singh and on other dates also before 29th November, 1984. The wooden planks were not recovered for one month and 23 days. The key of lock of the shop was with the police when it was opened by them on 29th November, 1984. Therefore, it is a case of planting of evidence by putting some drops of blood of group 'A' person on wooden planks subsequently. The Investigating Officer did not find any blood on wooden planks during this period of one month and 23 days i.e. upto 29th November, 1984. Therefore, it is a case of planting of evidence by putting some drops of blood of group 'A' person on wooden planks subsequently. The Investigating Officer did not find any blood on wooden planks during this period of one month and 23 days i.e. upto 29th November, 1984. Assistant o Director (Biology), FSL, Jaipur had no authority to direct Dr. M.L. Harsh (P.W.23) to visit the said shop without any notice by the Investigating Officer. The accused were arrested on 20th November, 1984. The recovery of wooden planks ('Fantas') was made on 29th November, 1984. He, therefore, contended that the evidence relating to recovery of wooden planks was not believable and it was wrongly believed by the trial court, the finding of the trial court in this regard is perverse and the same is liable to be set aside. 6. He further argued that recovery of two small pieces of 'Patasa'(a light, hollow sugar-cake) from the shop of appellant was also planted. He referred to the statement of P.W.1 Meena aged about 13 years, P.W.6 Ram Narayan,) P.W.10 Radha Mohan and P.W.11 Nand Kishore Gupta from whose shop the 'Patasa' were alleged to have been purchased and by referring to the statements, he contended that there is no evidence that the pieces of 'Patasa', which were recovered from the shop, were purchased from the shop of P.W.11 Nand Kishore Gupta. The recovered 'Patasa' were not produced in the court at the time of statement of P.W.14 Ram Ballabh. He contended that the story of prosecution in this regard is concocted and the same is liable to be discarded. 7. He also argued that so far as recovery of particles of 'Khakhla'(fodder) from the body and the pocket of trouser of the deceased is concerned, the same is also unreliable in the facts and circumstances of the case particularly in view of contradictions in the statements of P.W.1 Meena, P.W.5 Hanuman Prasad, P.W.12 Radheyshyam, P.W.17 Roshan Singh and D.W.1 Bridhi Chand in this regard. 8. 8. So far as accused last seen in the company of deceased is concerned, he contended that the said evidence is based on statement of P.W.10 Radha Mohan and by referring and criticising his statement, he contended that his evidence is absolutely false and cannot be relied upon particularly when he did not disclose this fact on 4th October, 1984 itself, 6th October, 1984 and till 23rd October, 1984, (for 19 days) when his statement was recorded under Section 161 Cr.P.C. 9. So far as commission of sodomy with the deceased is concerned, it is argued that there is no cogent, reliable evidence in this regard to connect the accused with the crime. He referred to the statement of P.W.18 Dr. Bhanwar Lal Jakhar, who opined that accused is not likely to be a habitual sodomist and about time that since how many days before he did sodomy is not possible. He, therefore, contended that finding of the learned trial court is illegal and perverse and the same is liable to be set aside and appellant be acquitted. 10. Per contra, learned Public Prosecutor argued that there is complete chain of circumstantial evidence in the present case. P.W.6 Ram Narayan had sent deceased Ramavtar to purchase 'Patasa', which was purchased by him from the shop of P.W.11 Nand Kishore and two pieces of 'Patasa' were found in the shop of accused, when his shop was inspected/examined. Two bloodstained wooden planks were recovered from the shop of Gafoor and the same blood group 'A' was found on the same, which was found on the clothes of the deceased. The recovery of fodder from the body and pocket of trouser of the deceased further corroborates that incident took place in the shop of the accused as he was doing the business of sale of fodder. He further contended that accused was seen lastly in the company of deceased by P.W.10 Radha Mohan, who had no enmity with the accused. P.W.10 Radha Mohan retired from the post of Vikas Adhikari and is a reputed person and there is no reason to disbelieve his testimony. He, therefore, contended that learned trial court has rightly convicted the appellant and no interference in the finding of the trial court is called for. 11. We have considered the submissions of learned counsel for the parties and minutely scanned the impugned judgment and record of the case. 12. He, therefore, contended that learned trial court has rightly convicted the appellant and no interference in the finding of the trial court is called for. 11. We have considered the submissions of learned counsel for the parties and minutely scanned the impugned judgment and record of the case. 12. Admittedly, there is no direct evidence available in the present case and prosecution case is based on circumstantial evidence which are as under:- (A) Recovery of two bloodstained wooden planks ('Fantas'). (B) Recovery of two pieces of 'Patasa' (a light, hollow sugar-cake). (C) Recovery of particles of fodder ('Khakhla') from the body and pocket of the trouser of the deceased. (D) Accused last seen in the company of deceased. 13. Before considering the circumstantial evidence, it will be appropriate to analyse the necessary conditions, which are required to be fulfilled before a case against an accused can be said to be fully established on the basis of circumstantial evidence. 14. The Hon'ble Apex Court in K.T. Palanisamy vs. State of Tamil Nadu ( 2008(3) SCC 100 = 2008(3) RLW 1942 (SC)) considered the five golden principles, which constitute the panchsheel of the proof of a case based on circumstantial evidence, enumerated in its earlier decisions in Shivaji Sahabrao Bobade vs. State of Maharashtra (1973 Vol.2 SCC 793) and Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 and held that it is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete. Para 19 of the judgment reads as under:- "It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete as has been held in Sharad Birdhichand Sarda vs. State of Maharashtra (1984 Vs. 4 SCC 116) in the following terms: (SCC pp.185-86, paras 153-154) "153(152). A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted-here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. It may be noted-here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahabrao Babade vs. State of Maharashtra (1973 Vol.2 SCC 793) where the following observations were made (SCC p.807, para 19) Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154(153). These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 15. The Hon'ble Apex Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved'. 16. We will now discuss and examine the evidence of the present case in the light of principles laid down by the Hon'ble Apex Court as quoted above with regard to circumstantial evidence. (A) Recovery of two wooden planks ('Fantas'): Deceased Ramavtar was missing between 4.10.1984 to 6.10.1984 and his dead body was recovered on 6.10.1984 in village Sirsi. P.W.17 Roshan Singh went with S.H.O., Police Station, Bagru on 9.10.1984 at Village Sirsi. The S.H.O. called the key of the shop of Sultan by sending his son Hanif. The shop was opened by Hanif. Shop was inspected by Roshan Singh and he found two small pieces of 'Patasa', which were recovered and put in a match box, which was sealed. The S.H.O. called the key of the shop of Sultan by sending his son Hanif. The shop was opened by Hanif. Shop was inspected by Roshan Singh and he found two small pieces of 'Patasa', which were recovered and put in a match box, which was sealed. Two wooden planks ('Fantas') were lying there, which were also checked by him and he did not find any blood on them and did not seize or recover them. He admitted in his cross examination that he had checked the shop fully and did not find any incriminating article. The shop was further examined and site-plan was prepared, but no blood stains were found on wooden planks. 17. Gafoor was arrested on 20th November, 1984 and no information was furnished by him with regard to bloodstained wooden planks and no recovery was made before 29th November, 1984. 18. Shop was inspected by P.W.23 Dr. M.L. Harsh not at the request of Investigating Officer but as per order given by the Assistant Director (Biology) FSL, Jaipur on 29th November, 1984 and he found blood stains on wooden planks. P.W.23 Dr. M.L. Harsh admits in his cross examination that ASI opened the shop, the shop was locked and key was available with ASI, who opened the lock with that key available with him. After completion of proceedings, the ASI closed the shop in lock and kept the key with him. The above facts show that no blood was found on the wooden plank lying in the shop from 6th October, 1984 to 29th November, 1984. The shop was inspected/examined on 6th October, 1984 and again when site-plan was prepared, thereafter key of the shop was with ASI and was not in possession of Gafoor or Hanif or Sultan. 19. On 29th November; 1984 the shop was in exclusive possession of police, which is clear from cross examination of P.W.23 Dr. M.L. Harsh, who admitted that ASI opened the shop with whom the key of lock of shop was available. 20. So far as possession of shop is concerned, from seizure memo (Ex.P/4) itself, it is clear that it was mentioned in it that it was rented shop of Sultan, who was tenant of temple Laxmi Narayan Ji. Ex.P/4 is a document produced by the prosecution and from it, it is clear that shop was belonging to Sultan and not to Gafoor. Ex.P/4 is a document produced by the prosecution and from it, it is clear that shop was belonging to Sultan and not to Gafoor. P.W.17 Roshan Singh stated that when he went at the shop with SHO on 9th October, 1984, the SHO called key of lock of shop of Sultan by sending his son Hanif and shop was got opened from Hanif. D.W.1 Bridhi Chand stated that shop was being opened by all the members of family of Sultan. The learned trial court while discussing the case has considered the prosecution evidence and has observed that shop was in possession of Hanif and Gafoor both, therefore, it cannot be said that the shop was not in possession of Gafoor also, meaning thereby even from the observation of the trial court, it is clear that appellant Gafoor was not in exclusive possession of the shop from where two bloodstained wooden planks were recovered. 21. P.W.20 Bansilal in his cross examination admitted that he did not record any information in writing from the accused for recovery of bloodstained planks and he cannot disclose any reason for not recording information in writing, meaning thereby, it is an admitted fact that no information with regard to two bloodstained planks, alleged to have been recovered at the instance of accused while he was in custody, whereas recovery memo (Ex.P14) reveals that the recovery of two bloodstained was made at the instance of accused Gafoor. 22. Section 27 of the Indian Evidence Act lays down that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The Section basically assumes that the information must have been first given and on the basis of the information given by the accused the recovery would have been made. Ex.P14 recovery memo clearly shows that prior to the article being found out, no prior statement was given by the accused. Consequently, the recovery of two bloodstained planks will be inadmissible in evidence under Section 27, Evidence Act. A reference in this regard be made to a judgment of Division Bench delivered in State vs. Bairagi Charan Mohanty (1972 The Cuttack Law Times 754). 23. Consequently, the recovery of two bloodstained planks will be inadmissible in evidence under Section 27, Evidence Act. A reference in this regard be made to a judgment of Division Bench delivered in State vs. Bairagi Charan Mohanty (1972 The Cuttack Law Times 754). 23. It is also relevant to mention that only two drops on one plank and three drops of blood on another plank were found, which were not possible as one hand of the deceased was completely chopped off from his body. 24. P.W.20 Banshilal admitted that before 29th November, 1984, he had gone to the place of incident i.e. shop number of times. The shop was easily accessible to police for all times, yet 'Fantas' were recovered only on 29th November, 1984. Therefore, the said recovery of 'Fantas' becomes doubtful and cannot be used against the appellant beyond all reasonable doubts. The finding of the learned trial court in this regard is illegal, perverse, based on surmises and conjectures and is liable to be set aside. (B) Recovery of two pieces of 'Patasa': 25. P.W.1 Meena brother of deceased stated that his grand-father Ram Narayan (P.W.6) gave one rupee to Ramavtar to bring Patasa. P.W.6 Ram Narayan also stated that he sent his grand son Ramavtar to purchase 'Patasai, but he did not turn up. 26. P.W.11 Nand Kishore Gupta was examined on behalf of prosecution and he stated that on 4-10-1984 at 9 to 9:30 AM Ramavtar had come to his shop and demanded 'Patasa' for 25 Paisa, but he had no stock of 'Patasa', therefore., he refused to him for the same. However, one another child came, who had purchased 'Patasa' of Rupee one from him, to return the Patasa on the ground that they have been smashed badly in the shape of powder/'Chura' and soon thereafter he called Ramavtar and sold 'Patasa' for 25 Paisa and returned 75 Paisa to him as he gave Rupee One. In his cross examination, he admitted that similar type of 'Patasa' are available in the market. He does not know the name of another child, who came to return the smashed 'Patasa' purchased by him. P.W.11 further stated that some 'Patasa' were seized from his shop on 7th October, 1984, but they have not been produced in the court to show him. 5 Therefore, he cannot say that which 'Patasa' were seized by police. 27. He does not know the name of another child, who came to return the smashed 'Patasa' purchased by him. P.W.11 further stated that some 'Patasa' were seized from his shop on 7th October, 1984, but they have not been produced in the court to show him. 5 Therefore, he cannot say that which 'Patasa' were seized by police. 27. From the evidence available on record, it is not clear that two pieces of 'Patasa' recovered from the shop of Gafoor were the same, which were purchased from the shop of P.W.11 Nand Kishore Gupta and 'Patasa' recovered from the shop of Gafoor were similar with the 'Patasa', which were seized on 7th October, 1984 from the shop of P.W.11 Nand Kishore. 28. It is also not understandable that 'Patasa', which had already been smashed and were returned by another customer, then how the same could have been purchased by Ramavtar. 29. From the evidence, it is not clear as to what happened to the sample seized vide seizure memo (Ex.P9) and the same was also not produced in the court, which is clear from statement of P.W.11 Nand Kishore Gupta. 30. In view of above discussions, we are of the view that the evidence relating to recovery of two pieces of 'Patasa' does not connect the accused with the crime beyond all reasonable doubts. The learned trial court has not appreciated the prosecution evidence correctly and its finding appears to be illegal and perverse and the same is liable to be set aside. (C) Recovery of particles of fodder ('Khakhla') from the body and pocket of trouser of the deceased:- 31. Ex.P3 inquest report (Panchayatnama) was prepared on 6th October, 1984 and from it, it is clear that dead body of deceased Ramavtar was lying in the heap of fodder outside the temple and in front of shop of Sultan. There are number of fodder shops around the shop of Sultan. From the statements of P.W.1 Meena, P.W.5 Hanuman Prasad, site-plan (Ex.P2) and inquest report (Ex.P3), it is clear that the dead body was found on the heap of fodder itself, therefore, it is but natural that some fodder might have gone in the pocket of trouser of the deceased and the said evidence cannot be said to be reliable or connect the accused with the crime. The finding of the learned trial court in this regard is based on surmises and conjectures. (D) Accused last seen in the company of the deceased:- 32. P.W.10 Radha Mohan is the star witness in this regard. He has stated that on 4th October, 1984 when he was coming from the Temple to his house, he saw that accused Gafoor was coming from his house. When he reached near a well, he saw that Ramavtar and Gafoor both were going towards the shop. Thereafter, he went to his house. There is only one witness to this last seen evidence against the accused. The learned trial court has relied upon the testimony of P.W.10. 33. We have examined the statement of P.W.10 carefully and examined the reasons given by the learned trial court for relying upon his testimony, but we are not agreeable to the same. 34. P.W.10 Radha Mohan in his examination in chief stated that on 4th October, 1984 he saw accused Gafoor and Ramavtar together going towards the shop of Gafoor and thereafter he came to his house and on the same day he went to Jaipur, but in evening he came back from Jaipur to his village Sirsi. He heard on the same day that Ramavtar is missing. On 6th October, 1984 when he was coming after Puja, he saw that number of persons were assembled near the well. He also went there and saw that the dead body of Ramavtar was lying near corner of shop of Gafoor. 35. From the statement of P.W.10, it is clear that on 4th October, 1984 itself, he came to know that Ramavtar was missing since morning, but he did not tell to anyone that he saw Gafoor and Ramavtar together in morning. On 6th October, 1984 he was present at the spot, where the dead body was lying, but he did not tell to anyone including father of the deceased or the police that he had seen the deceased Ramavtar in morning of 4th October with the accused. He did not tell this fact to anyone till 23rd October, 1984. Learned trial court has observed that accused Gafoor and Ramavtar both were known to P.W.10, but a close scrutiny of statement of P.W.10 shows that he did not state that he was knowing both persons earlier prior to the date of incident. 36. He did not tell this fact to anyone till 23rd October, 1984. Learned trial court has observed that accused Gafoor and Ramavtar both were known to P.W.10, but a close scrutiny of statement of P.W.10 shows that he did not state that he was knowing both persons earlier prior to the date of incident. 36. P.W.10 retired from the Post of Vikas Adhikari and was holding post of Post Master and was a responsible person, but it is very surprising that he did not disclose this important fact to police or the family members of the deceased. 37. P.W.10 in his cross examination stated that he disclosed this fact to P.W.12 Radheshyam and P.W.14 Ram Vallabh, but both the witnesses P.W.12 & P.W.14 had not stated that P.W.10 Radha Mohan had told them that he had seen deceased Ramavtar and Gafoor going together on 4.10.1984 towards the shop of Gafoor. 38. P.W.10 for the first time told this fact of last seen to police on 23rd October, 1984 i.e. after 19 days. P.W.10 was belonging to the same locality and was responsible person and it was expected from him that when an inquiry was being made on 4.10.1984 itself then to tell this fact to Babulal father of the deceased and his other family members or at least to some villagers, but surprisingly he did not tell this fact on 4.10.1984 and even on 6.10.1984 when dead body of Ramavtar was found and he was standing at the place of occurrence also. In these circumstances, the conduct of P.W.10 is unnatural and in the facts and circumstances, he cannot be said to be a reliable witness. He appears to be a false witness. 39. The Hon'ble Apex Court in Shantabai & Ors. vs. State of Maharashtra ( AIR 2008 SC 1571 ) observed that a fact that dead body of deceased found in open space in front of their house, which is public road, is not sufficient to connect accused with commission of death of deceased. The Hon'ble Apex Court further considering the evidence with regard to last seen of the deceased with the accused and in Para 19 of the judgment observed, "the testimony of this witness appears to be wholly inconsistent and unbelievable to hold that he, in fact, had seen the appellants and A-5 going to the bus stand in the evening of 14.8.1993. If he had seen the appellants along with A-5 going to bus stand, he could have disclosed this fact to P.W.1 at the earliest occasion at about 6.00 p.m. when he, for the first time, was asked by P.W.1 in regard to the whereabouts of his brother-Gunwant.. ... .... ..... ..... .... .... therefore, the testimony of this witness is not free from doubt and he does not appear to be a truthful witness to connect A-1, A02 and A-3 with the commission of the crime. Thus, these circumstances too have not been proved by the prosecution beyond reasonable doubt against the appellants." 40. Admittedly, on 4.10.1984 itself P.W.10 Radha Mohan came to know about missing of deceased Ramavtar and he did not disclose this fact regarding last seen of deceased with Gafoor to anyone including family members of Ramavtar and police also and for the first time his statement was recorded by the police on 23rd October, 1984 i.e. after 19 days. The Division Bench of this Court in Balvendra Singh v/s State of Raj (1983 RLR 883), where the statements of such witness was recorded by police after delay of 7-9 days, observed that from the abnormal conduct of the witness, it is not possible to place reliance on his testimony. Paras 12 & 13 of the judgment are reproduced as under:- "12. As regards the evidence that has been adduced by the prosecution to prove that the deceased was last seen in the company of the appellant, it may be observed that Smt. Nasib Kaur (P.W.6) is the wife of the deceased, who has stated that at about 8 p.m. the appellant, alongwith Labhsingh and Darshansingh, had come to her house and called her husband and that while taking the deceased with them, the appellant had said that they had some work and they would return shortly and that on the next day in the morning at 8 a.m., she learnt that her husband had been shot dead by the appellant. The statement of Smt. Nasibkaur under section 161 Cr.P.C. was recorded by the Investigating Officer on January 13, 1975, i.e. seven days after the incident. No explanation has been offered for this delay in recording the statement of Smt. Nasib Kaur. The statement of Smt. Nasibkaur under section 161 Cr.P.C. was recorded by the Investigating Officer on January 13, 1975, i.e. seven days after the incident. No explanation has been offered for this delay in recording the statement of Smt. Nasib Kaur. The conduct of Smt. Nasib Kaur also appears to be unnatural inasmuch as even though according to her, the deceased had left with the appellant at about 8 p.m. she did not take any step to inform anybody when the deceased did not return during the night. It was expected that Smt. Nasib Kaur would have contacted Kundansingh, the brother of the deceased and other relatives of the deceased when the deceased did not return during the night but Smt. Nasib Kaur did not do any such thing. Smt. Nasib Kaur has also stated that after she learnt that her husband had been killed she did not go to the spot. According to Kundansingh the filed of Laxmansingh, where the dead body of the deceased was found, is about 4 to 5 Murabbas from his house. In the circumstances it is highly unnatural that Smt. Nasib Kaur would not have gone to see the dead body of her husband on being informed about his death. Moreover the statement of Smt. Nasibkaur that the appellant alongwith Darshansingh and Labhsingh had come to her house to take the deceased with them is contradicted by the testimony of Darshansingh who have deposed that the appellant and Kundansingh had gone to bring the deceased from his house. In our opinion in view of the long delay of six days in recording the statement of Smt. Nasib Kaur and the abnormal conduct on her part as well as the contradiction between her statement and that of Darshansingh and Labhsingh it is not possible to place reliance on the testimony of Smt. Nasib Kaur that the deceased had gone with the appellant at 8 p.m. on the night on the alleged ate of occurrence. 13. The other witness examined by the prosecution in this regard is Kakusingh (P.W.10) who has deposed that at about 8.30 p.m., the appellant had come to his house and asked him to accompany him for the purpose of hiding the drum and that after coming out from the house he saw Baisakhasing, Darshansingh and Labh Singh standing at a distance of 11/2 killas away from his house. The said witness has deposed that after he had gone with the aforesaid persons for some distance, he started feeling cold and thereupon appellant said that they would take the deceased with them and that the appellant went to call the deceased and after the deceased had come, the appellant along with the deceased and Darshansingh, Baisakhasingh and Labhsingh went to hide the drum and he (Kakusingh) returned to his house. Kakusingh, during the course of cross examination, has stated that his statement was recorded by the police after 8 or 9 days and that he had remained in the village during this period. He has also stated that he had been going to the police for 2-3 days after the incident but his statement was not recorded and he had also asked the police to record his statement but they did not record it. Moreover the version given by Kakusingh is contradicted by Darshansingh, Labhsingh and Baisakhasingh who have deposed that the appellant and Kakusingh had gone to bring the deceased from his house. In view of the fact that the statement of Kakusingh is said to have been recorded by the police 8-9 days after the incident and no explanation has been offered for the delay in the recording of his statement, and the testimony of Kakusingh stands contradicted by the evidence of Darshan Singh, Labhsingh and Baisakha Singh, we do not find it safe to place reliance on the testimony of Kakusingh. For the reasons aforesaid we are of the opinion that no reliance can be placed on the evidence of Smt. Nasib Kaur and Kaku Singh that the deceased was last seen in the company of the appellant on the evening of 5.1.1975." 41. In view of above discussion of facts and law, we are of the view that• long delay of 19 days in recording the statement of P.W.10 Radha Mohan and his abnormal conduct of not disclosing this fact that he saw deceased Ramavtar and accused Gafoor going together on 4.10.1984 towards of shop of Gafoor for 19 days, without any explanation, creates serious doubt on his testimony and he cannot be said to be a trustworthy or reliable witness, therefore, it is not safe to base conviction of the appellant on his testimony, which is liable to be discarded. 42. 42. The recovery of knife at the instance of the appellant has already been disbelieved by the trial court. The polygraphic report was not found to be admissible by trial court in view of section 293 Cr.P.C. There is no reliable evidence in respect of offence of sodomy also. 43. It is relevant to mention that all the circumstantial evidence, as discussed above except the last seen evidence, was available against appellant Gafoor as well as co-accused Hanif Khan and learned trial court did not rely upon the same circumstantial evidence against co-accused Hanif Khan and acquitted him. The only additional evidence against the appellant was with regard to the last seen of deceased with appellant based on the statement of P.W.10, which we have already discarded. 44. In view of above discussions, we are of the view that there is no reliable or acceptable evidence that the offence has been committed by the appellant. Neither any direct nor circumstantial evidence had been brought on record to establish the guilt on part of the appellant herein. The learned trial court committed an illegality in passing its impugned judgment, which is liable to be set aside. Consequently, the appeal is allowed, the impugned judgment and order passed by the learned trial court is set aside and appellant is acquitted of all the charges. He is on bail and need not to surrender. His bail bonds are cancelled.