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Madhya Pradesh High Court · body

2011 DIGILAW 1081 (MP)

Amar Singh v. State of M. P.

2011-09-13

ANIL SHARMA, S.N.AGGARWAL

body2011
JUDGMENT S.N. Aggarwal, J. 1. Both these criminal appeals are proposed to be decided by this common judgment because they have been filed against the same impugned judgment of the trial court dated 25th November 1994, whereby all the six accused persons who faced trial in Sessions Trial Case No. 183/91 have been convicted for offences under Sections 302/ 149, 201 and 148 Indian Penal Code and one of them namely accused Kilab Singh has been additionally convicted for offence under Section 25 read with Section 27 of the Arms Act, 1959. They all were sentenced to varied terms of imprisonment maximum of which is life imprisonment besides fine with default stipulation. 2. The case of the prosecution against the accused persons who have been convicted by the trial court vide its impugned judgment is that they along with 8-10 unknown persons had committed the murder of the deceased Yudhishter Singh with deadly weapons viz. farsa, kulhari, ballam and lathis in the incident that took place on 8th June 1991. The further case of the prosecution against them is that they after committing his murder had thrown his dead body in "Naria" nearby the place of incident and had burnt it by covering his dead body with thatches of a nearby hut and this they are alleged to have done with an intention to demolish the evidence of murder against them. 3. The prosecution story goes like this that on 8th June 1991 around 3-30 p.m., the complainant (PW 6) Bhupender Singh along with his father deceased Yudhishter Singh had gone by truck from his village Lahar to Barha Ghat and after some time of their reaching there they saw the Appellants (Amar Singh, Lakhan Singh, Kilab Singh, Janak Singh, Balgutre alias Bhagwati and Suresh Kumar) along with 8-10 unknown persons coming towards them from Lilwari side and when they approached near them accused Kilab Singh fired a shot from country made pistol in air. Other accused persons hurled abused at them and shouted to catch hold of them i.e. complainant and his deceased father on account of which they got frightened and ran in different directions. The complainant (PW 6) ran towards Ghatoi side and while running he was chased by two members of the assailant party, whereas his father Yudhishter Singh who ran in another direction towards Khar side was chased by the remaining assailants including the Appellants. The complainant (PW 6) ran towards Ghatoi side and while running he was chased by two members of the assailant party, whereas his father Yudhishter Singh who ran in another direction towards Khar side was chased by the remaining assailants including the Appellants. The complainant (PW 6) managed to escape from the clutches of the assailants as both the persons who were chasing him had given up after a distance of 50-60 yards. The complainant after he managed to save himself from the assailants returned to his village in Lahar around 10-11 p.m. on that day i.e. on 8th June 1991. In the meanwhile, the complainant's cousin (P.W.5 Veer Singh) who along with his uncle Munshi Singh was present near the place of occurrence in connection with search of his cattle saw the assailants armed with deadly weapons chasing the deceased Yudhishter Singh and on seeing the same he came running to village Rohani Singpura and informed PW 1 and PW 8 (brothers of the deceased) that he had seen the Appellants and 8-10 unknown persons all armed with deadly weapons chasing the deceased towards the well of Jamuna Lala in village Barha. When PW 1 and PW 8 were informed about the same, they both rushed towards Barha village and on reaching near the well of Jamuna Lala climbed the "Karar" about 25' high from the ground level and saw that the deceased was encircled by the assailants including the Appellants and they were inflicting injuries on him with deadly weapons viz. farsa, kulhari, ballam, and lathis, etc. They also saw the assailants throwing the dead body of the deceased after committing his murder in the nearby "Naria" and burning it by covering the same with thatches of a nearby hut. Both PW 1 and PW 8 after witnessing the murder of their brother deceased Yudhishter Singh came back to their village Rohani Singpura around 7 -7.30 p.m. on 8th June 1991 itself. On the next morning on 9th June, 1991 around 5.00 a.m. the complainant along with his cousin Puran went in search of his father as he had not returned home till that time. He searched and made enquiries about his father first at the house of Sarpanch in village Chandawali and then in village Barha. On the next morning on 9th June, 1991 around 5.00 a.m. the complainant along with his cousin Puran went in search of his father as he had not returned home till that time. He searched and made enquiries about his father first at the house of Sarpanch in village Chandawali and then in village Barha. As he was not able to ascertain the whereabouts of his deceased father in Chandawali and in Barha, he went to Police Station Aswar and lodged a written complaint, Ex. P/8 regarding missing of his father since 8th June 1991. After lodging the written complaint, Ex. P/8 at Police Station Aswar, he came back to his village Rohani Singpura. The complaint lodged by the complainant with the police of Police Station Aswar around 8.30 a.m. on 9th June 1991 was given for enquiry to PW 13 Head Constable Shishupal Singh. PW 13 came to village Rohani Singpura and made enquiries about the incident from the complainant PW 6, PW 1, PW 5 and PW 8, who had allegedly seen the assailants chasing the deceased and killing him. He recorded their statements under Section 161 Code of Criminal Procedure and on that basis prepared a Dehati Nalishi (Ex. P/11) around 5.30 p.m. on 9th June 1991 and sent it for registration of FIR against the Appellants through PW 9 Constable Gop Singh. The FIR of the incident (Ex. P/12) was registered against the Appellants with the police of Police Station Aswar at 10.45 p.m. on 9th June 1991. In the meanwhile PW 13 had recovered a human skeleton and certain pieces of burnt bones found lying in "Naria" near the well of Jamuna Lala in village Barha. He also recovered the upper denture of 14 artificial teeth, burnt frame of a spectacle and burnt pieces of clothes allegedly worn by the deceased at the time of incident found lying there at the spot. Blood smeared earth and plain earth was also seized by him from the spot and these seizures were made vide seizure memos Ex. P/1 to Ex. P/3. The articles recovered by PW 13 from the place of occurrence vide Ex. P/1, P/2 and P/3 were sent for expert opinion to the Forensic Science Laboratory, Gwalior. The skeleton and bones recovered from the place of occurrence were sent for postmortem to PW 14 Dr. J.N. Soni on 14th June 1991. The postmortem report (Ex. P/1 to Ex. P/3. The articles recovered by PW 13 from the place of occurrence vide Ex. P/1, P/2 and P/3 were sent for expert opinion to the Forensic Science Laboratory, Gwalior. The skeleton and bones recovered from the place of occurrence were sent for postmortem to PW 14 Dr. J.N. Soni on 14th June 1991. The postmortem report (Ex. P/25) was collected from PW 14. The accused persons named in the FIR (Appellants in these appeals) were arrested on 30th June 1991/1st July 1991 and their disclosure statements (Ex. P/15 to P/19) were recorded and pursuant thereto the weapons of offence used by the assailants in the crime were recovered vide seizure memos (Ex. P/20 to Ex. P/24). After completion of the investigation of the case, the charge sheet was filed by the prosecution against the Appellants on the basis of which they were charged for offences under Sections 302/ 149, 201 and 148 Indian Penal Code and the Appellant Kilab Singh was additionally charged for offence under Section 25 read with Section 27 of the Arms Act. The Appellants pleaded "not guilty" to the charges framed against them and they claimed a trial. 4. The prosecution in order to prove its charges against the accused persons (named in the FIR Ex. P/12) has examined total 18 witnesses and they can be classified for the sake of convenience in three groups. The first group of witnesses comprises of PW 1 Jaswant Singh, PW 5 Veer Singh, PW 6 Bhupender Singh and PW 8 Indersen Singh. These are the witnesses examined to prove that they had seen the Appellants and 8-10 unknown persons chasing the deceased and committing his murder with deadly weapons. The second group of witnesses comprises of PW 9 Gop Singh, PW 13 Shishupal Singh, PW 16 R.B.Chaudhary, PW 17 Bhagwan Das and PW 18 Malkhan Singh Chauhan. All these five witnesses in the second group are police people and were examined to prove the various steps taken by them in the investigation of the crime registered against the Appellants. The third group of left over witnesses comprises of PW 2 Ramhet Sharma, Patwari, examined to prove the site plan (Ex. P/5) prepared by him; PW 3 K.N. Rai, Assistant Mining Officer Bhind, examined to prove letter dated 31st August 1991 (Ex. The third group of left over witnesses comprises of PW 2 Ramhet Sharma, Patwari, examined to prove the site plan (Ex. P/5) prepared by him; PW 3 K.N. Rai, Assistant Mining Officer Bhind, examined to prove letter dated 31st August 1991 (Ex. P/6) to the effect that No. mining lease was granted at Sindh river Barha Ghat in 1990-91; PW 4 Shiv Mangal Singh Kushwah, clerk in the office of D.M. Bhind, examined to prove sanction for prosecution of accused Kilab Singh for offence under Section 25/ 27 of the Arms Act given by D.M. Bhind vide letter Ex.P/7; PW 7 Brijmohan Singh, nephew of the deceased was a witness to the seizure memo (Ex. P/9) pursuant to which Kulhari (Ex. P/10) was recovered by PW 18 on 2nd July 1991 at the behest of accused Suresh; PW 10 Hukum Singh was a colleague of the deceased in the primary school in Rohani Singpura and was examined to prove certificate Ex. P/13 regarding age and height of the deceased; PW 11 Mahesh Chand Saxena was examined to prove report, Ex. P/14 given by him according to which the 12 bore country made pistol sent to him on 7th July 1991 for examination was found to be in working order; PW 12 Kishan Pal Singh, also a relative of the deceased, was a witness to the disclosure of the accused persons (Ex. P/15 to P/19); PW 14 Dr. J.N. Soni, Professor and Head of the Department of Forensic Medicines in G.R. Medical College, Gwalior was examined to prove postmortem report, Ex. P/25 and PW 15 Jagdish was the driver of the truck in which the complainant along with his deceased father had gone from Lahar to Barha Ghat on the date of incident on 8th June 1991. 5. After the prosecution had closed its evidence, the statements of the accused persons were recorded under Section 313 Code of Criminal Procedure in which they denied the incriminating evidence that came on record against them and took a plea of false implication in the case because of their previous animosity with the complainant party. 6. 5. After the prosecution had closed its evidence, the statements of the accused persons were recorded under Section 313 Code of Criminal Procedure in which they denied the incriminating evidence that came on record against them and took a plea of false implication in the case because of their previous animosity with the complainant party. 6. The Appellants being the accused persons have examined 8 witnesses in their defence and they are DW 1 Uttam Singh, DW 2 Mahendra Singh, DW 3 Satendra Pratap Singh, DW 4 Kishananand, DW 5 Durjan and DW 6, DW 7 and DW 8 are the accused persons Suresh Kumar, Janak Singh and Kilab Singh themselves. These witnesses were examined by the Appellants in their defence to prove that they were not present at the place of occurrence on the date of incident and that they have been falsely implicated in the case because of their previous animosity between the parties. 7. The learned trial court on the basis of evidence produced by the parties before it held the Appellants guilty for offences for which they were charged and accordingly sentenced them to undergo varied terms of imprisonment maximum of which is life imprisonment besides fine with default stipulation. It is aggrieved by their conviction; the Appellants have preferred these two criminal appeals under Section 374 of Code of Criminal Procedure 1973. The first appeal being Criminal Appeal No. 249/94 is by four persons namely Amar Singh, Lakhan Singh, Kilab Singh and Janak Singh and the second appeal being Criminal Appeal No. 268/94 is by the remaining two accused persons namely Balgutre alias Bhagwati and Suresh Kumar. The Appellant Janak Singh in Cr. A. No. 249/94 and the Appellant Suresh Kumar in Cr. A. No. 268/94 have died during pendency of these appeals and their names were ordered to be deleted from the array of Appellants vide orders passed by this Court in Cr. A. No. 249/94 on 3rd September 2007 and in Cr. A. No. 268/94 on 11th September 2006. 8. The earlier Division Bench of this Court (comprising of Hon'ble Mr. Justice S. Samvatsar and Hon'ble Mr. Justice Sanjay Yadav) vide its judgment dated 28th September 2007 had dismissed both the appeals and thereby the conviction of the Appellants was affirmed. A. No. 249/94 on 3rd September 2007 and in Cr. A. No. 268/94 on 11th September 2006. 8. The earlier Division Bench of this Court (comprising of Hon'ble Mr. Justice S. Samvatsar and Hon'ble Mr. Justice Sanjay Yadav) vide its judgment dated 28th September 2007 had dismissed both the appeals and thereby the conviction of the Appellants was affirmed. Aggrieved there from, the Appellants had preferred Special Leave Petitions (Criminal) before the Hon'ble Apex Court which were granted and vide order dated 30th November 2010 passed by the Hon'ble Apex court in Cr. A. No. 873, 872 and 874 of 2009 the case was remitted back to this Court for a fresh decision after thorough scrutiny of the evidence on record. The relevant portion of the remand order passed by the Hon'ble Supreme Court is extracted below: ...It may not be necessary to restate that the High Court, being first appellate court, is duty bound to re appreciate the entire evidence available on record in order to arrive at appropriate conclusions. The High Court in the case on hand upheld the conviction of the Appellants and sentenced them to various terms of imprisonment, including life imprisonment, without recording any independent conclusion of its own. Such course is not open in law. For the aforesaid reasons, we find it very difficult to sustain the impugned judgment under appeal and the same is, accordingly, set aside. The matters are remitted for fresh consideration by the High Court in accordance with law, uninfluenced by the observations, if any, made in this order. It is needless to state that we have not expressed any opinion whatsoever on the merits of the case. 9. After remand of these appeals by the Hon'ble Supreme Court, the case was listed for hearing before this Bench for the first time on 7th July 2011 and on that day the case was adjourned as last opportunity on a joint request of counsels for both the parties for 14th July 2011 and while adjourning the case the counsels were apprised of the directions given by the Hon'ble Apex Court in its remand order for expeditious disposal of these appeals. The matter was then placed for hearing on 15th July 2011 before another bench comprising of Hon'ble Mr. Justice S.K.Gangele and Hon'ble Mr. The matter was then placed for hearing on 15th July 2011 before another bench comprising of Hon'ble Mr. Justice S.K.Gangele and Hon'ble Mr. Justice Sheel Nagu, who on that day simply adjourned the matter for three weeks as prayed for by the counsel for the parties. Thereafter, the matter was again listed before this Bench on 18th August, 2011, 23rd August, 2011, 30th August, 2011 and lastly on today i.e. 13th September, 2011, on all these date we have heard the arguments of the Ld. counsels for the parties and with their assistance we have also gone through the evidence on record minutely. We have also perused the paper book of these appeals. 10. Ms. Nandita Dubey, learned Counsel appearing on behalf of the Appellants in Criminal Appeal No. 249/94 has put forward the following points in her arguments for our consideration: (i) The conduct of the witnesses particularly that of PW1, PW5, PW 6 and PW8 is unnatural; (ii) The evidence produced by the prosecution is highly suspicious and does not inspire confidence; (iii) The presence of PW 1 and PW 8 (eye witnesses) at the time and place of the incident is highly doubtful; (iv) No. independent witness has been examined by the prosecution -only relatives of the deceased who had enmity with the Appellants are made witnesses; (v) The identification of the dead body of the deceased remained unproved; (vi) There is No. cogent evidence to prove either recovery of weapons of offence or recovery of articles purported to be belonging to the deceased. It is submitted that the weapons of offence were recovered from open space accessible to all and they were not sent to FSL for forensic examination. No. blood stain was found on any of the weapons allegedly recovered pursuant to the disclosure statements of the accused persons; and (vii) There is non-compliance of statutory provisions contained in Section 157 of the Code of Criminal Procedure inasmuch as the information of the crime registered vide FIR, Ex. /12 was not sent to the Magistrate concerned. 11. On the basis of the above infirmities pointed out in the prosecution case, Ms Nandita Dubey has vehemently argued that the Appellants have been falsely implicated by the prosecution in the present case only on account of their previous animosity with the complainant party. /12 was not sent to the Magistrate concerned. 11. On the basis of the above infirmities pointed out in the prosecution case, Ms Nandita Dubey has vehemently argued that the Appellants have been falsely implicated by the prosecution in the present case only on account of their previous animosity with the complainant party. The learned Counsel appearing on behalf of the Appellants has prayed for setting aside of the impugned judgment of the Trial Court and for acquittal of the Appellants in the case. 12. Mr. R.K. Shrivastava, learned Counsel appearing on behalf of the Appellants in Criminal Appeal No. 268/94 has adopted the arguments of Ms. Dubey, learned Counsel for the Appellants in Criminal Appeal No. 249/94. He has not put forward any additional argument for our consideration. 13. Per contra Mr. Prabal Solanki, learned Public Prosecutor appearing on behalf of the Respondent/State has placed reliance on the reasoning given by the Trial Court in the impugned judgment for conviction of the Appellants. He has argued that the testimony of PW 1, PW 5, PW 6 and PW 8 who are the star witnesses of the prosecution is quite consistent and has been rightly believed and acted upon by the Trial Court. It is submitted by him that the benefit of faulty investigation cannot be extended to the accused persons. According to him, non-sending of the information of the crime to the Magistrate as required under Section 157 of Code of Criminal Procedure cannot be fatal to the prosecution case which is based on the ocular evidence of two eye witnesses namely PW 1 and PW 8, corroborated in material particulars by the testimony of PW 5 and PW 6. Reply of the Public Prosecutor in response to the doubts raised by the learned Counsel for the Appellants on the recovery of weapons of offence is that the weapons used in the crime could not have been recovered by the investigating officer but for the disclosure statements of the accused persons under Section 27 of the Evidence Act. According to the learned public prosecutor the weapons were not sent to FSL for forensic examination as No. blood stain was noticed on any of the weapons recovered in the case. According to the learned public prosecutor the weapons were not sent to FSL for forensic examination as No. blood stain was noticed on any of the weapons recovered in the case. The submission of the learned Counsel appearing on behalf of the Respondent/State is that there is No. infirmity in any of the conclusions arrived at by the Trial Court for convicting the Appellants for the offences for which they were charged. He has, therefore, prayed for the dismissal of these appeals. 14. An application (I.A. 8195/11) under Section 301(2) of the Code of Criminal Procedure, 1973 was moved on behalf of the complainant party through Mr. M.L. Yadav, Advocate for permission to assist the Public Prosecutor at the time of arguments on these appeals. We granted the said permission as prayed for to the counsel for the complainant. Mr. M.L. Yadav, Advocate appeared before us on behalf of the complainant party but he said that he has No. additional argument to put forward before this Court except what has already been argued in opposition by the learned Public Prosecutor for the State. 15. We have given our anxious thought to the above rival arguments advanced by the learned Counsel for the parties in the light of oral and documentary evidence on trial court record. We are of the view that the High Court being the first appellate court is the final court of facts and, therefore, we feel it our constitutional obligation to critically evaluate, analyse, sift and weigh the evidence of the parties before formulating any opinion on the crucial issues relevant to prove the culpability of the accused persons. 16. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of the witnesses. Every case, in the final analysis, would have to depend upon its own facts. The Court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions". Every case, in the final analysis, would have to depend upon its own facts. The Court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions". Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjectures. The law does not permit the Court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence". In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. Reliance is placed on judgments of the Hon'ble Supreme Court in Kashmira Singh v. State of Punjab AIR 1952 SC 159 ; State of Punjab v. Jagir Singh Baljit Singh and Anr. AIR 1973 SC 2407 , and Mousam Singha Roy and Ors. v. State of West Bengal (2003) 12 SCC 377 . 17. In Sarwan Singh Ratan Singh v. State of Punjab AIR 1957 SC 637 , it was observed by the Hon'ble Supreme Court as under: ...Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted. 18. The law regarding burden of proof is well settled that in a criminal trial involving a serious offence of brutal nature, the Court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. 19. 19. We have already mentioned herein above that the witnesses examined by the prosecution to prove its charges against the Appellants can be classified into three sets for the proper appreciation and evaluation of their evidence. The first set of witnesses which according to us is most crucial to determine the culpability of the Appellants in the crime comprises of four witnesses namely PW 1 Jaswant Singh, PW 5 Veer Singh, PW 6 Bhupender Singh and PW 8 Indersen Singh. All these four witnesses are closely related to the deceased inasmuch as PW 6 Bhupender Singh who had triggered the criminal machinery into motion by lodging a written complaint Ex. P/8 with the Police of Police Station Aswar at 8.30 a.m. on the next day of the occurrence is the son of the deceased; PW 5 Veer Singh, who had allegedly seen the Appellants along with 8-10 unknown persons armed with deadly weapons chasing the deceased just before his murder, is the real nephew of the deceased; and PW 8 Indersen Singh and PW 1 Jaswant Singh, who on being informed about the incident by PW 5 are alleged to have rushed to the spot of occurrence and had allegedly witnessed the entire occurrence, are real brother and cousin brother respectively of the deceased. 20. The law is not that the testimony of close relatives can be discarded only because they are the relatives of the complainant party. In Hardeep v. State of Haryana (2002) 7 SCC 11 it was observed by the Hon'ble Apex Court that the Court before acting upon the testimony of relatives and interested witnesses must scrutinize their evidence with great care and circumspection and should also look for corroboration of their testimony in material particulars. 21. A perusal of the impugned judgment of the Trial Court would reveal that the Trial Court has acted upon what PW 1, PW5, PW 6 and PW 8 have deposed in their examination-in-chief without testing their credibility and reliability by applying the yardstick of probabilities on the basis of normal human conduct. 22. The main striking feature of the prosecution case that seems to have been overlooked by the Trial Court is the highly unnatural conduct of the prosecution witnesses particularly that of the first set of witnesses namely PW 1, PW 5, PW 6 and PW 8. 22. The main striking feature of the prosecution case that seems to have been overlooked by the Trial Court is the highly unnatural conduct of the prosecution witnesses particularly that of the first set of witnesses namely PW 1, PW 5, PW 6 and PW 8. On the date of occurrence all these four witnesses claim to have seen the Appellants with 8-10 unknown persons armed with deadly weapons. PW 6 who is the son of the deceased, has testified that on the date of occurrence on 8th June, 1991 he had gone along with his deceased father by truck from Lahar to Barha Ghat at 3 -3.30 p.m. He has stated that when he saw the assailants including the Appellants armed with deadly weapons approaching towards them, he and his father both ran in different directions and were chased by the assailants. According to him, he was chased by two members of the assailant party whereas his father was chased by the Appellants and 8-10 unknown persons. He managed to save himself and returned to Lahar late night around 10 - 11.00 p.m. on 8th June, 1991. He says that when his father did not return to Lahar during night, he along with Puran went at 5.00 a.m. in search of him at Chandawali and Barha and when he could not know his whereabouts despite search, he went to Police Station Aswar and lodged a written complaint, Ex. P/8 there with the police of Police Station Aswar at 8.30 a.m. on 09th June, 1991. This witness has deposed that after lodging the report, Ex. P/8 at 8.30 a.m. at Police Station Aswar, he had returned to his village Rohani Singpura around 9 -9.30 a.m. and there he was informed by PW 5 and one Munshi Singh (not examined) that they had seen the Appellants and 8-10 unknown persons chasing his deceased father towards the well of Jamuna Lala in Barha village. PW 6 in para 3 of his evidence has stated that he was further told by Munshi Singh that accused Bhagwati was armed with lathi, accused Suresh and Lakhan both were armed with kulharis, accused Amar and Janak were armed with farsas, accused Kilab Singh was armed with country made pistol and 8-10 unknown assailants were armed with spears. PW 6 in para 3 of his evidence has stated that he was further told by Munshi Singh that accused Bhagwati was armed with lathi, accused Suresh and Lakhan both were armed with kulharis, accused Amar and Janak were armed with farsas, accused Kilab Singh was armed with country made pistol and 8-10 unknown assailants were armed with spears. PW 6 has further stated that he was also informed by PW 1 and PW 8 that they had witnessed the murder of his deceased father by the Appellants. 23. PW 6 has deposed in para 4 of his evidence that the police of Police Station, Aswar had reached his village Rohani Singpura after about 1-1 1/2 hours of his lodging the report, Ex.P/8 there. The Police had recorded his statement and the statements of PW 1, PW 5 and PW 8 under Section 161 Code of Criminal Procedure and thereafter he along with Munshi Singh (not examined), PW 5, PW 1 and PW 8 had gone with the Police to the place of occurrence where they found a denture of his father, burnt bones and burnt pieces of his clothes lying there. 24. PW 5 Veer Singh is the nephew of the deceased and as per his testimony, on the date of occurrence around 4.00 p.m. he along with Munshi Singh (not examined) had gone in the Beehad of Barha village in search of his buffalo which was missing for the last two days. In para 4 of his evidence, he has stated that he along with Munshi Singh had seen the Appellants along with 8-10 unknown persons chasing the deceased from behind. He says that he had also seen which accused was carrying what weapon when they were chasing the deceased. As per his testimony, after he had seen the assailants chasing the deceased, he along with Munshi Singh had come running to his village Rohani Singpura and informed PW 1 and PW 8 who were sitting in the Choupal that they had seen the deceased being chased by the assailant party towards the well of Jamuna Lala. According to PW 5, when he informed PW 1 and PW 8 about the deceased being chased by the Appellants towards the well of Jamuna Lala, PW 1 and PW 8 had rushed to the spot of occurrence. 25. According to PW 5, when he informed PW 1 and PW 8 about the deceased being chased by the Appellants towards the well of Jamuna Lala, PW 1 and PW 8 had rushed to the spot of occurrence. 25. PW 1 and PW 8, who claimed to have witnessed the murder of the deceased by the Appellants, have supported the version of PW 5 in their chief that they were told by PW 5 and Munshi Singh (not examined) about the deceased being chased by the assailants including the Appellants. PW 1 and PW 8, who are the brothers of the deceased, have further, testified in their respective evidence that they both had seen the Appellants along with 8-10 unknown assailants committing the murder of the deceased with deadly weapons. According to them, they had also seen the Appellants throwing the dead body of the deceased in a Naria nearby the well of Jamuna Lala. They have further deposed that on seeing the murder of the deceased they got frightened and came back to their house in village Rohani Singpura around 7 -7.30 p.m. on 8th June, 1991. In their cross examination all these four witnesses have deposed that they did not inform about the incident or what they had seen to anybody in the village or even to the family members of the deceased. According to PW 5 in Para 5 of his evidence, though the house of PW 6 was only at a distance of 4-5 houses away from his house in village Rohani Singpura but still he did not go and inform at PW 6's house about the deceased being chased by 16 armed assailants. 26. PW 1 and PW 8 are the brothers of the deceased and though they claim to have seen the Appellants committing the murder of the deceased on the date, time and place of occurrence, but strangely enough they did not inform the family members of the deceased or any of their relatives about the occurrence. PW 1 and PW 8 did not inform of their own even to PW 6 that they had seen the Appellants committing the murder of his deceased father. They informed PW 6 about the same only after PW 6 made enquiries from them regarding his father on the next day after more than 15 hours of the occurrence. 27. PW 1 and PW 8 did not inform of their own even to PW 6 that they had seen the Appellants committing the murder of his deceased father. They informed PW 6 about the same only after PW 6 made enquiries from them regarding his father on the next day after more than 15 hours of the occurrence. 27. The reaction, conduct and behavior of PW 1, PW 5, PW 6 and PW 8 regarding their not informing anybody about the occurrence renders their testimony highly improbable and beyond comprehension of a prudent human mind. It may be seen by a close look to the testimony of these witnesses in their respective cross examination that their presence at the place of occurrence or their having seen what they have deposed in their respective evidence is highly suspicious. We are fortified in our view in this regard by the testimony of PW 15 Jagdish who, in our opinion, is the only independent witness examined by the prosecution in the case. This witness is the person who was driving the truck in which the complainant (PW 6) along with his deceased father had allegedly gone from Lahar to Barha Ghat on the date of occurrence. Though PW 15 Jagdish has turned hostile to the prosecution case, but his testimony, in our view, cannot be rejected in toto. 28. Every criminal trial is a voyage in quest of truth for public justice to punish the guilty and restore peace, stability and order in the society. Every citizen who has knowledge of the commission of a cognizable offence has a duty to lay information before the police and to cooperate with the investigating officer who is enjoined to collect the evidence and if necessary summon the witnesses to give evidence. 29. In Radhey Mohan Singh @ Lal Saheb and Ors. v. State of U.P. (2006) 2 SCC 450 , it was held by the Hon'ble Supreme Court as under: ...It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.... 30. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.... 30. A similar view regarding the acceptability of the testimony of a hostile witness was reiterated by the Hon'ble Supreme Court in Govindappa and Ors. v. State of Karnataka (2010) 6 SCC 533, wherein it was observed that the deposition of even a hostile witness can be relied upon by the Court. 31. PW 15 Jagdish has stated in Para 2 of his evidence that PW 6 Bhupender Singh had not met him at Bhatpura road from where the complainant (PW 6) along with his deceased father had allegedly gone in his truck to Lilwari mines. According to PW 15, only the deceased and Lakhan had gone in his truck on that day. PW 6 in Para 14 of his evidence has deposed that he had good relations with PW 15 Jagdish. There seems to be No. reason why PW 15 with whom PW 6 had good relation would lie that PW 6 had not gone with him in his truck to Barha Ghat where the incident is alleged to have taken place. The presence of PW 6 at Lilwari mines near Barha Ghat on the date and time of occurrence is thus rendered highly suspicious. Even otherwise, it is quite unnatural that PW 6 being the son of the deceased would not inform anybody, had he actually seen the assailants armed with deadly weapons chasing his deceased father. If PW 6 had actually seen the Appellants chasing his deceased father on 8th June, 1991, he would not have slept quietly in his house at Lahar during night till he went in his search next morning around 5.00 a.m. Furthermore, if PW 6 had seen his deceased father being chased by the Appellants towards the well of Jamuna Lala as claimed by him in his chief, then why did he go next morning in search of his father, first to village Chandawali and then to Lahar also renders his version highly doubtful. PW 6 claims that he knew all the Appellants many years before the alleged occurrence, but strangely enough, though he claims to have seen the assailants chasing his deceased father, but did not disclose the name of accused Lakhan Singh and simply referred him as brother of accused Amar Singh in his written complaint Ex. P/8 lodged by him at 8.30 a.m. on 9/6/1991 with the Police of Police Station, Aswar. There are serious doubts about PW 6 having gone with his deceased father on the date of occurrence from Lahar to Barha Ghat or his having seen the assailants chasing his deceased father. Our doubt in this regard is further fortified from the testimony of PW 6 himself in Para 18 where he has deposed that he had not come to know about the names of any of the assailants including the Appellants till the time he had reached the spot. According to PW 6, he had reached the spot of occurrence around 5 -5.30 p.m. on the next day of the occurrence, i.e. on 9th June, 1991 and if that was so, we fail to understand how the names of the Appellants came to be mentioned in his written report Ex,P/8 and the same, in our opinion, could be possible only as a result of deliberation and consultation amongst the witnesses introduced by the prosecution in the case as eye witnesses. 32. According to PW 6, the police had arrived at his village Rohani Singpura around 10 - 11.00 a.m. on 9/6/1991 and had recorded his statement and the statements of PW 1, PW 5 and PW 8 there at that time. This testimony of PW 6 is belied by PW 13 Head Constable Shishupal Singh to whom the report Ex. P/8 was marked for enquiry. PW 13 has testified in his evidence that after receiving the report Ex. P/8, he along with PW 6 had gone in search of the deceased to village Dudha, then to Barha and from there to Lilwari and finally to Rohani Singpura where he reached in the evening around 5.00-5.30 p.m. and had prepared the Dehati Nalishi Ex. P/11. The Dehati Nalishi, Ex. P/11 contains all the minute details of the crime including the details of the recoveries alleged to have been made by the I.O. from the spot. Dehati Nalishi Ex. P/11. The Dehati Nalishi, Ex. P/11 contains all the minute details of the crime including the details of the recoveries alleged to have been made by the I.O. from the spot. Dehati Nalishi Ex. P/11, as per testimony of PW 13 was prepared at village Rohani Singpura at 5.30 p.m. PW 13 has deposed in Para 4 of his evidence that he had recorded the statement of PW 6 (Ex. D/3) at 18.17 hours and before that PW 6 has not told him that PW 1, PW 5 and PW 8 had any knowledge about the incident. If the statement of PW 6 was recorded by the I.O. at 18.17 hours and if till that time he had No. knowledge about the names of the assailants and if PW 13 being the I.O. of the case is to be believed that he had made the alleged recoveries from the spot vide Ex.P/1 to P/3 between 6.20 - 6.40 p.m.; then what is contained in Dehati Nalishi Ex. P/11 prepared by the I.O. at 5.30 p.m. at Rohani Singpura could only be a concoction and does not inspire our confidence regarding fair and impartial investigation. 33. As per testimony of PW 13, after he had received the report Ex. P/8, he along with P.W.6 had gone in search of the deceased to village Dudha then to Barha and from there to Lilwari. PW 13 has deposed that PW 6 was with him up to village Barha and from there he had returned to his village Rohani Singpura as he got frightened. This version given by PW 13 is highly suspicious and quite inconsistent with the testimony of PW 6. In case PW 6 had seen his deceased father being chased by the assailants including the Appellants on the previous day and in case he was informed by PW 1, PW 5 and PW 8 that they had seen the Appellants committing the murder of his deceased father near the well of Jamuna Lala in Barha village, then why PW 6 took the Investigating Officer in search of his father first to village Dudha and then to Barha. The said conduct of PW 6, in our opinion, renders the entire prosecution story highly improbable and unnatural. The matter does not rest here. The said conduct of PW 6, in our opinion, renders the entire prosecution story highly improbable and unnatural. The matter does not rest here. The version given by the deceased's real brother PW 8 Indersen Singh that he had seen the Appellants committing the murder of the deceased is highly doubtful in view of the testimony of PW 15 Jagdish according to whom PW 8 had visited him in the late evening on the date of occurrence to enquire about the whereabouts of his deceased brother. In case PW 8 is believed that he had seen the Appellants committing the murder of his deceased brother and that after witnessing the brutal and gruesome murder had returned to his village in Rohani around 7.30 p.m. then where was the need for him to have visited PW 15 in the late evening on that day to enquire about the whereabouts of his missing brother. The visit by PW 8 to PW 15 in the late evening on 8th June, 1991 to enquire about the whereabouts of his deceased brother indicates that he was not an eye witness of the crime. Furthermore, PW 8 Indersen Singh as per prosecution case had lodged a report Ex. P/27 at Lahar Police Station at 8.44 a.m. on 9th June, 1991 regarding missing of his deceased brother in which he did not mention that he had seen the Appellants or any other person committing the murder of his deceased brother. PW 16 Inspector R.B. Chaudhary has deposed that he had made enquiries on the missing report Ex.P/27 lodged by PW 8 at Police Station Lahar at 8.44 a.m. on 9th June, 1991 and had gone for enquiry to Lilwari sand mines on 9th June, 1991 where he found 20-25 people including Indersen searching the deceased there and also came to know that a report had already been lodged at Police Station Aswar regarding missing of the deceased. Thereafter, he came back from Lilwari to Lahar Police Station. In the later portion of his testimony, PW 16 has taken a shifting stand that Indersen who had lodged the report Ex. P/27 was some other Indersen and real Indersen had met him at Lilwari. In both these situations, PW 8 could not have been an eye witness because if PW 8 was the same person who had lodged the missing report Ex. P/27 was some other Indersen and real Indersen had met him at Lilwari. In both these situations, PW 8 could not have been an eye witness because if PW 8 was the same person who had lodged the missing report Ex. P/27 at Police Station Lahar, then he could not have seen the incident and if the Indersen who had met PW 16 at Lilwari was the real Indersen examined by the prosecution as PW 8, then also he could not be an eye witness as in that event there was No. need for him to go and search for the deceased at Lilwari because he claims to have seen the murder himself the previous day. From all this, it is evident that the presence of PW 8 and his being an eye witness to the crime is not free from doubts. 34. The alleged identification of the Appellants as assailants by PW 5 is highly doubtful having regard to his testimony that he had seen the Appellants chasing the deceased from back side. PW 5 has deposed that he had also seen from behind which accused person was carrying which weapon and has given the details thereof in his evidence. It is difficult to ram down the throat that a witness could see and identify the assailants with details of weapons carried by them by seeing them from their back side. Furthermore, his conduct of returning home, getting busy in his work and not informing anybody in the village of 776 people and even to the family members of the deceased is most unnatural and renders his testimony untrustworthy. Had PW 5 actually seen the Appellants chasing the deceased on the date of occurrence, his natural conduct being the nephew of the deceased ought to have been to raise an alarm for help or at least to go and inform the police or the villagers so that they could go to the place of occurrence and render whatever help at their end was possible to save the deceased. 35. It is also quite unnatural that PW 1 Jaswant Singh being the cousin brother of the deceased would remain silent after witnessing the brutal and gruesome murder of his brother. He neither raised any hue and cry nor tried to help or save the deceased. 35. It is also quite unnatural that PW 1 Jaswant Singh being the cousin brother of the deceased would remain silent after witnessing the brutal and gruesome murder of his brother. He neither raised any hue and cry nor tried to help or save the deceased. Strangely enough, he along with the deceased's real brother (PW 8) came back quietly to the village, told No. one nor lodged any report or informed any of their relatives who live next door about the occurrence. He disclosed the fact of his being an eye witness for the first time to PW 6 Bhupender on the next day of the incident and that too only when he came to enquire about his deceased father from him. The only explanation given by him in Para 14 of his evidence for his said conduct is that he was frightened and did not feel it necessary to inform about his having seen the occurrence to anyone. This conduct of PW 1 is highly unnatural and renders his testimony unreliable and untrustworthy. In our opinion, complete silence on the part of PW 1 for long and his not disclosing to any one that he was an eye witness to the brutal murder of his brother creates a serious doubt about his presence at the place of occurrence. 36. In State of Rajasthan v. Bhanwar Singh (2004) 13 SCC 147 it was observed by the Hon'ble Supreme Court that the improbability of presence of the eye witnesses at the scene of crime, their unnatural conduct post incident and medical evidence, improbabilising ocular evidence and delay of one day in filing of FIR is enough to render the prosecution case improbable. Similar view has been taken by the Hon'ble Court in State of Tamil Nadu v. Zubair and Ors. (2008) 16 SCC 319; Josesh v. State of Kerala (2003) 11 SCC 223 ; Mohan Singh v. Prem Singh (2002) 10 SCC 236; State of Maharashtra v. Raju Bhaskar Photphode (2007)11 SCC 261 and Birappa v. State of Karnataka (2010) 12 SCC 182 . 37. (2008) 16 SCC 319; Josesh v. State of Kerala (2003) 11 SCC 223 ; Mohan Singh v. Prem Singh (2002) 10 SCC 236; State of Maharashtra v. Raju Bhaskar Photphode (2007)11 SCC 261 and Birappa v. State of Karnataka (2010) 12 SCC 182 . 37. PW 1 and PW 8, who are examined by the prosecution as eye witnesses, have stated in their respective testimony that they had rushed to the spot and had seen the occurrence after they were informed by PW 5 that the deceased was being chased by the Appellants and 8 - 10 unknown assailants, who all were armed with deadly weapons. The said version of both these witnesses is highly improbable and lacks credibility. It is difficult to believe that the assailants including the Appellants would have waited for nearly 1 - 2 hours for the eye witnesses namely PW 1 and PW 8 to reach there and witness the brutal killing of the deceased. This, in our opinion, also creates a serious doubt on the prosecution story against the Appellants. 38. There is yet another important feature of the case which deserves to be noticed. The evidence on record suggests the motive on the part of the complainant party in falsely implicating the Appellants in the present case. PW 6 is the complainant and he has deposed that accused Amar Singh and accused Lakhan Singh are real brothers, accused Bhagwati and accused Suresh were real brothers, but he could not tell whether accused Janak Singh and accused Kilab Singh were cousin brothers or not. As per evidence of PW 6 in Para 8, he had business dispute with accused Bhagwati and he had asked him few days prior to the incident to pay him the payment due in connection with Morawali toll tax business in which he was a partner. PW 6 has further deposed that the payment as demanded by him was not made by accused Bhagwati and on that account he had a dispute with him. A few days prior to the incident in the present case Kalyan Singh, brother of accused Amar Singh was murdered and in that murder case the complainants' nephew Avadh Singh along with one Vikram Singh (absconder) were made the accused persons. A few days prior to the incident in the present case Kalyan Singh, brother of accused Amar Singh was murdered and in that murder case the complainants' nephew Avadh Singh along with one Vikram Singh (absconder) were made the accused persons. PW 6 as well as PW 1 and PW 8 have deposed that they used to believe on information furnished to them by the police that the accused Amar Singh had a doubt on the deceased that he had got the murder of his brother Kalyan Singh done from a hired assailant Vikram Singh. PW 6 being the complainant of this case has stated in his evidence that he always had a suspicion in his mind that his deceased father Yudhishter Singh would be falsely implicated by accused Amar Singh in the case of murder of his brother Kalyan Singh. PW 6 has further deposed that he had a dispute prior to the incident with accused Janak Singh also and the dispute with him was in relation to auction of sand mines at Lilwari. According to PW 6, the accused Janak Singh did not want him to participate in the auction of sand mines but despite his opposition, he had participated in the auction for grant of lease of sand mines to him. Thus, it may be seen that the complainant party had previous enmity with at least one member each of the three families implicated by them in the present case. It appears that the complainant party in order to settle their score with those with whom they had an axe to grind prior to the incident have implicated them in the present case after they came to know about the murder of deceased Yudhishter Singh. We are conscious of the legal position that the previous animosity between the complainant and the accused party as a motive of crime is a double edged weapon and can be used either side. However, having regard to the peculiar facts and circumstances of the present case, the possibilities of the Appellants being falsely implicated in the case on account of previous animosity cannot be completely ruled out and the benefit of the same necessarily shall go to the accused persons being the Appellants herein. 39. After having considered the testimony of the so called eye witnesses we would now also deal with the investigation aspect of the case. 39. After having considered the testimony of the so called eye witnesses we would now also deal with the investigation aspect of the case. We find several pot holes in the investigation of the case, which in our opinion, seems to have been completely overlooked by the trial court in the impugned judgment. There was delay of more than 15 hours in the registration of FIR after the occurrence of the incident. The incident of the murder of the deceased as per witnesses of the prosecution had taken place around 6 - 7 p.m. on 8th June 1991 but the FIR was registered at 10.45 p.m. the next day on 9th June 1991. PW 13 who is investigating officer of the case, has deposed in Para 7 of his evidence that he had not sent the information of the crime to the Magistrate as required under Section 157 Code of Criminal Procedure Thus, it may be seen that there was delay of more than 15 hours in registration of the FIR and that the information of the crime as required by Section 157 Code of Criminal Procedure was not sent to the Magistrate. In Thulkali v. State of Tamil Nadu (1972) 3 SCC 393 , it was observed by the Hon'ble Supreme Court that the delay in lodging of FIR quite often results in embellishment which is a creature of afterthought. It was held that on account of delay, the report of crime not only gets bereft of the advantage of spontaneity, danger creeps in of introducing coloured exaggerated version of concocted story as a result of deliberation and consultation by the complainant party with the witnesses. In Thulkalis case (supra) delay of 12 hours in registration of FIR was found fatal to the prosecution case. 40. In Bijoy Singh and Anr. v. State of Bihar (2002) 9 SCC 147 , it was held by the Hon'ble Apex Court that the sending of report to the Magistrate as required by Section 157 of Code of Criminal Procedure is the mandate of law as it is the only external check on the working of the investigating agency. 40. In Bijoy Singh and Anr. v. State of Bihar (2002) 9 SCC 147 , it was held by the Hon'ble Apex Court that the sending of report to the Magistrate as required by Section 157 of Code of Criminal Procedure is the mandate of law as it is the only external check on the working of the investigating agency. In that case, the Hon'ble Supreme Court was seized of a situation where there was delay on the part of the investigating agency in sending the report of the crime to the Magistrate and dealing with the said delay it was observed by the Hon'ble Supreme Court that wherever there is delay in sending the report of the crime to the Magistrate, the prosecution is required to explain such delay by cogent evidence, failing which court has to draw an adverse inference against the prosecution. Similar view was reiterated by the Hon'ble Supreme Court in State of Kerala v. Anila Chandran alias Madhu and Ors. (2009) 13 SCC 565 . 41. Judging the present case on the yardstick of law on the point of delay in lodging of FIR and effect of non sending of report of crime to the Magistrate laid down by the Hon'ble Supreme Court in the aforementioned cases we find the delay of 15 hours in registration of FIR in the present case coupled with non sending of report of the crime to the Magistrate create serious doubt on the fair and impartial investigation of the case by the Investigation Officer. 42. We further find from the evidence of the prosecution on record that the prosecution has also not been able to prove either the recovery of weapons or recovery of other articles of the deceased allegedly recovered by the I.O. from the spot. As per the I.O. (PW 13) Dehati Nalishi (Ex. P/11) was prepared by him in Rohani at 5.30 p.m. on 9th June 1991. Dehati Nalishi (Ex. P/11) besides names of the Appellants as accused persons also contains the details of the recoveries made by the I.O. from the spot vide seizure memos (Ex. P/1, P/2 and P/3) prepared between 6.20 p.m. to 6.40 p.m. The FIR, Ex. P/12 was registered later on at 10.45 p.m. on 9th June 1991. The seizure memo Ex. P/3 shown to have been prepared at 6.30 p.m. contains the number of the FIR. P/1, P/2 and P/3) prepared between 6.20 p.m. to 6.40 p.m. The FIR, Ex. P/12 was registered later on at 10.45 p.m. on 9th June 1991. The seizure memo Ex. P/3 shown to have been prepared at 6.30 p.m. contains the number of the FIR. This raises a doubt regarding authenticity of the documents of the recovery as the number of the FIR registered later in point of time after preparation of seizure memo could not have found mentioned in the seizure memo prepared at 6.30 p.m. However, the addition of the number of the FIR in the seizure memo (Ex. P/3) subsequently by itself is not fatal to the prosecution case as is so held by the Hon'ble Supreme Court in Radheshyam v. State of Haryana (2001) 10 SCC 206 . 43. Even the recovery of weapons of offence alleged to have been recovered by PW 18 Malkhan Singh Chauhan pursuant to disclosure statements of accused persons being Appellants herein is not free from doubts. The Appellants were arrested by the I.O. after almost three weeks of the occurrence on 30th June 1991/1st July 32 and in terms of the testimony of PW 12 Kishanpal Singh, who is a witness to their disclosure memos, Ex. P/15 to Ex. P/19, has stated that before recording of the disclosure statements he had seen all the accused persons being kept in a lock up at the police station and that their disclosures were not recorded by the I.O. in his presence. He has stated that all the weapons were recovered by the I.O. from the bushes near the well of Jamuna Lala and were visible to the general public. It may be seen from the evidence of the prosecution on record that the entire recovery comprising of weapons of offence and the artifacts belonging to the deceased was made by the police from open space visible to everybody. The weapons recovered by the I.O. were not sent for forensic examination and the explanation of the learned Public Prosecutor for not sending the weapons for forensic examination is that they were not sent for forensic examination as there was No. blood stain noticed on the weapons. The weapons recovered by the I.O. were not sent for forensic examination and the explanation of the learned Public Prosecutor for not sending the weapons for forensic examination is that they were not sent for forensic examination as there was No. blood stain noticed on the weapons. This explanation given by the Public Prosecutor for not sending the weapons of offence for forensic examination is quite unsatisfactory and does not establish the recovery beyond reasonable doubt so as to connect the accused persons with the crime. It may further be noticed that as per FSL report (Ex.P/29), No. blood stain was found on the artifacts of the deceased. If the prosecution witnesses are to be believed that the deceased was cut into pieces by inflicting injuries with sharp edged weapons on various parts of his body, then it is difficult to swallow that No. blood stain would be found on the clothes and undergarments worn by the deceased at the time of his murder. This also raises an eyebrow and renders the recovery highly doubtful. 44. As per the prosecution story, the Appellants being the accused persons had burnt the dead body of the deceased after committing his murder with an intention to destroy the evidence of murder against them. The case of the prosecution is that the I.O. (PW 13) had recovered the human skeleton and burnt pieces of bones from the spot on the next date of the occurrence which he had seized vide seizure memo (Ex. P/1). As per the I.O., the human remains of the dead body were seized in the evening around 6.20 p.m. on 9th June 1991 but they were sent for postmortem to PW 14 Dr. J.N. Soni, Professor and Head of Forensic Medicine, G.R. Medical College, Gwalior, after five days on 14.6.91, who vide his report (Ex. P/25) opined that the bones examined by him were of a male human being in the age group of 50 years with a height of 5'10". PW 1, PW 5, PW 6 and PW 8 have identified the human remains of the dead body found at the spot on the basis of burnt pieces of clothes and undergarments, and upper denture of 14 artificial teeth and a frame of spectacle also recovered from the spot, which according to them belong to the deceased. It has come in the evidence of PW 14 Dr. It has come in the evidence of PW 14 Dr. J.N. Soni and also in the evidence of I.O (P.W.13) Shishupal Singh that the human skeleton and the bones recovered from the spot were in highly mutilated condition and that there was No. flash found on the bones recovered from the spot and according to these witnesses the bones so recovered from the spot were partly found eaten by animals. The recovery of human remains of this nature almost within a day of the occurrence creates a strong suspicion in our mind as to how it can be said that the human remains found from the spot were that of the deceased. In our opinion, the learned trial court went wrong in its view that the human remains recovered by the I.O. from the spot were that of the deceased. It may be noticed that P.W.14, Dr. J.N. Soni, who had examined the bones recovered by the I.O. from the spot vide report Ex. P/25, has stated in his cross examination that 49 pieces of burnt bones were sent to him by the I.O. for his opinion. We are of the view that even by attempting to combine all these 49 pieces of burnt bones; it is difficult to say that those bones were of a specified human being. We also feel that in whatever brutal manner the deceased might have been murdered by the assailants, the previous day of recovery of his human remains, it is beyond comprehension of a prudent human mind that the dead body would become so mutilated that it would contain No. flash or blood stain, though its recovery was allegedly made within 24 hours of the murder. We find that the prosecution could not establish beyond reasonable doubt that the human remains recovered by the I.O. from the spot were that of the deceased Yudhishter Singh. There is No. cogent evidence on record to establish the identity of the deceased as the person who was murdered in the incident. 45. Though the aforementioned discrepancies and infirmities pointed out by us in the case of the prosecution may not affect the case of the prosecution individually but taking them cumulatively renders the case of the prosecution against the Appellant highly doubtful and it shall be totally unsafe to place reliance on such incredible and untrustworthy testimony of the prosecution witnesses. 46. Though the aforementioned discrepancies and infirmities pointed out by us in the case of the prosecution may not affect the case of the prosecution individually but taking them cumulatively renders the case of the prosecution against the Appellant highly doubtful and it shall be totally unsafe to place reliance on such incredible and untrustworthy testimony of the prosecution witnesses. 46. For the foregoing reasons, we find it extremely difficult to sustain the impugned judgment of the trial court whereby the Appellants have been convicted for the offences for which they were charged in relation to the murder of the deceased. We accordingly set aside the impugned judgment and allow this appeal. The Appellants are acquitted of charges against them by extending them benefit of doubt. Their bail bonds are discharged. The fine, if any, deposited by them be returned to them forthwith. 47. Before parting with this judgment, we would like to put on record our deep appreciation for the able assistance rendered to the court by Ms. Nandita Dubey, learned Counsel for the Appellants in Criminal Appeal No. 249/94. 48. A copy of this judgment be also kept in the file of connected appeal which has also been disposed of by this common judgment.