JUDGMENT Mr. Rakesh Kumar Jain, J.: - Three appeals bearing CRA-D-1124-DB of 2009, CRA-D-115- DB of 2010 and CRA-D-701-DB of 2010 are being disposed of together as they arise out of order of the Trial Court dated 04.12.2009 by which all the appellants were convicted under Sections 302 & 201 read with Section 34 of the Indian Penal Code, 1860 [for short “IPC”] for committing the murder of Shamshad and were sentenced as under:- Under Section 302/34 IPC Imprisonment for life and fine of Rs.5,000/-. In default of payment of fine to undergo RI for a period of six months. Under Section 201/34 IPC Rigorous Imprisonment for a period of three years and fine of Rs.5,000/-. In default of payment of fine to undergo RI for a period of six months. 2. Both the sentences were ordered to run concurrently and the period spent by the appellants during investigation and trial was ordered to be set off from the substantive sentence awarded. 3. Sagir Ahmed (PW1), brother-in-law (Sala) of Shamshad (hereinafter referred to as the “deceased”) recorded his statement Ex.PA to SI/SHO Bijender Singh at Police Station Manesar on 11.11.2007 at 9.30 p.m. on the basis of which formal FIR Ex.PA/1 was registered to the following effect:- “It is submitted that I, Sagir Ahmed son of Shri Baccha Hussain am r/o A 220, Savitri Nagar, Delhi. We originally belong to V. Bela, PS Ramgarh, Distt. Motihari, Bihar and I am driver by profession. My brother-in-law (Jeeja) Shamshad s/o Nathuni Dewan and my sister Samina also live with me in Delhi. In the month of June, my Jeeja had not returned to home for 6/7 days and I lodged missing report of my Jeeja in PS Malviya Nagar in the month of June, and I have been searching for my brother-in-law during this period. Today, I was told by my friend Iqbal Hussain son of Mohd. Muslim Dewan, resident of Khanpur, Delhi, that there was a news in the newspaper Punjab Kesri about ¾ months earlier that in Gurgaon District near village Binola, half burnt dead body of a young man was found. Today, I was told by my friend Iqbal Hussain son of Mohd. Muslim Dewan, resident of Khanpur, Delhi, that there was a news in the newspaper Punjab Kesri about ¾ months earlier that in Gurgaon District near village Binola, half burnt dead body of a young man was found. Age of that person was about 35 years, which he had read and I suspected that and for verification I accompanied by my friend Iqbal Hussain reached Police Station, Manesar today on dated 11.11.2007, where I told this fact to the Mohirrir of that Police Station, upon which the Mohirrir of the Police Station show me a packet containing half burnt cloth and after examining it minutely it appeared to be part of shirt of red shite strips colours, and when I had lodged report of missing of my brother-in-law on that day, my sister had told me that when my brother-in-law had left the house, on that day, she and my brother-in-law had gone with Pappu Singh to Agra and were returning from Agra to Delhi and on the way, my brother-in-law had told Pappu that after leaving the children at Delhi, they will go to Gurgaon to settle their accounts with Kamaljeet and as such my brother-in-law had left her at their home had accompanied Pappu to Kamaljeet to Gurgaon and on that my brother-in-law was wearing red and white coloured strips shirt, and since then there was no clue about my brother-in-law and today I have identified in Police Station Manesar clothes of my brother-in-law Shamshad which he was wearing and I am sure that my brother-in-law Shamshad had been murdered by Pappu and Kamaljeet jointly and to destroy the dead body it was put on fire and that legal action be taken against Pappu and Kamaljeet.” 4. There is a reference in the FIR of a missing report lodged by Samina (PW6), wife of the deceased. The missing report lodged at Police Station Malviya Nagar, New Delhi, reads as under:- “It is submitted that I suspect that my husband Mohd. There is a reference in the FIR of a missing report lodged by Samina (PW6), wife of the deceased. The missing report lodged at Police Station Malviya Nagar, New Delhi, reads as under:- “It is submitted that I suspect that my husband Mohd. Shamshad after having gone missing may have been murdered, because when I along with my husband had gone to Agra on that date 7.6.07 when we were coming back from Agra when my husband had received a telephone call from a person named Kamal who was saying, reach early, as meal was going to become cool and on 8.6.07 in the evening my husband left us at Mehrauli turning, had gone to the house of Kamal at Gurgaon. Along with my husband was driver by the name of Pappu and my husband had gone along with Pappu in vehicle No.Toyota Corolla No.DLIC.3-1235 and they had gone in that vehicle to the house of Kamal at Sushant Lok Gurgaon (A287) and we have come to know that said car was found parked there for 3 days. We visited Gurgaon many times and one Guard told us that the said Car was parked there. We showed photo of my husband to that Guard and asked about him then he told that said person had come there and along with my husband were Pappu and Kamal. Before that we had waited for him for 10/12 days but neither we received any phone call from my husband nor he himself returned. Therefore, we had lodged this report to Malviya Nagar Police Station.” 5. It is, however, an admitted fact that no investigation was conducted by the officials of Police Station Malviya Nagar, New Delhi, on the aforesaid missing report. 6. The dead body of the deceased was recovered on 10.06.2007 on which autopsy was conducted by Dr. Vinod Kumar Kangra (PW7) on 13.06.2007, who filed his affidavit (Ex.PM) and proved Post Mortem Report (Ex.PM/1) of the deceased. After examining the FSL report (Ex.PL), which was in negative, found that the burns on the dead body was post mortem in nature by which cause of death might have changed. However, he found that facial features were not identifiable and there was no mark of injury. 7. After examining the FSL report (Ex.PL), which was in negative, found that the burns on the dead body was post mortem in nature by which cause of death might have changed. However, he found that facial features were not identifiable and there was no mark of injury. 7. In order to prove its case, the prosecution examined complainant Sagir Ahmad (PW1), Pawan Kumar, Photographer (PW2), ASI Vir Dutt (PW3), Samay Singh (PW4), HC Rajbir (PW5), Samina (PW6), Dr. Vinod Kumar Kangra (PW7), Manoj Kumar, Draftsman (PW8), Inspector Rajeev Kumar (PW9), ASI Narender Singh (PW10), HC Kanwar Singh (PW11), Rampal Patwari (PW12), Constable Krishan Lal (PW13), Inspector Bijender Singh (PW14), HC Mukesh Kumar (PW15), HC Ram Niwas (PW16) and Dr. Hazari Lal (PW17). 8. After evidence of the prosecution was over, statement of the appellants was recorded under Section 313 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] in which they denied their involvement in the commission of crime and pleaded their false implication. However, no evidence in defence was led by them. 9. Samina (PW6) stated that on 07.06.2007, she along with her two children and husband (deceased) went to Agra in a car driven by Pappu (appellant) and returned on 08.06.2007. Since Kamaljeet (appellant) was making regular phone calls to the deceased for lunch and to settle the accounts of money transactions with him, therefore, the deceased along with Pappu (appellant), after dropping her at her residence, left for Gurgaon. Her husband was wearing a red and white stripe shirt, but he did not return on that day. On 09.06.2007, she talked with the deceased on telephone, who told her that he would return after taking money from Kamaljeet (appellant) as assured by him. In her cross examination, she stated that the missing report was lodged within 2/3 days. She read after 8-10 days in the newspaper about the discovery of a dead body by the police at Gurgaon. 10. Sagir Ahmad (PW1) stated that on 07.06.2007, family members of deceased went to Agra in a Toyota Corolla car driven by Pappu (appellant) and came back on 08.06.2007. In the evening of 08.06.2007, the deceased dropped his wife and kids at home and went with Pappu (appellant) to Gurgaon to the house of Kamaljeet (appellant) for settlement of accounts. Since he did not return till night, therefore, a search was conducted. In the evening of 08.06.2007, the deceased dropped his wife and kids at home and went with Pappu (appellant) to Gurgaon to the house of Kamaljeet (appellant) for settlement of accounts. Since he did not return till night, therefore, a search was conducted. His sister rang up the deceased on mobile phone, but it was found to be switched off. After waiting for 2-3 days, a report was lodged with Police Station Malviya Nagar, New Delhi. He also searched the deceased at the residence of Pappu and Kamaljeet, but they were also not available. They continued to search the deceased for 2-½ months and then on 11.11.2007, his friend Iqbal Hussain informed him about a news in the newspaper “Punjab Kesri” regarding discovery of a half burnt body of an unknown person in village Binola near Manesar. He went to Police Station Manesar and recognized the red and white coloured striped shirt and made his statement (Ex.PA). In his cross-examination, he stated that he did not talk to the deceased on his return from Agra. However, on his return from duty at 8.00 p.m., his sister told him that the deceased had gone to Gurgaon to the house of Kamaljeet. On return from Agra, his sister received a telephonic call from some person known by the name of Kamaljeet from Gurgaon. After waiting for 2-3 days, he went to attend his duties and did not search for the deceased, but lodged the missing report after 2 days at Police Station Malviya Nagar, New Delhi. He also stated that he along with his sister had gone to the house of Pappu (appellant) and continuously searched for 10-20 days at various places including, Delhi, Agra and Bihar. He also stated that he had seen the deceased wearing red shirt with stripes when he left for Agra, but he was not aware of the shirt the deceased was wearing when he left for Gurgaon. He did not see Pappu (appellant) while going to Agra with the deceased nor did he see while leaving for Gurgaon. Rather, all the facts were told to him by his sister. He also stated that he was told by his sister that the deceased was wearing a Dharidar shirt when he had gone missing. 11. He did not see Pappu (appellant) while going to Agra with the deceased nor did he see while leaving for Gurgaon. Rather, all the facts were told to him by his sister. He also stated that he was told by his sister that the deceased was wearing a Dharidar shirt when he had gone missing. 11. SI/SHO Bijender Singh (PW14), the Investigating Officer, stated that Pappu (appellant) was arrested on 13.11.2007, suffered disclosure statement (Ex.PG), in the presence of EHC Rajbir Singh and Const. Satpal Singh, got demarcated the place of occurrence vide memo Ex.PH and Ex.PK. He also took them to the house of Suppa Lama (appellant) in Sangam Vihar, Delhi, who, after his arrest, suffered his disclosure statement (Ex.PF) and got demarcated the place of occurrence vide memo Ex.PJ and Ex.PI. On 08.02.2008, custody of Kamaljeet was taken on production warrants, who suffered disclosure statement (Ex.PT) on 08.02.2008 and another disclosure statement (Ex.PT/1) on 09.02.2008 stating that earlier disclosure statement dated 08.02.2008 was not correct. 12. In his disclosure statement (Ex.PF), Suppa Lama (appellant) stated that he was working as Driver of Kamaljeet (appellant). On 08.06.2007, Kamaljeet (appellant) called him at his residence for settling the accounts. When he reached the house of Kamaljeet, found the deceased and Pappu (appellant) having discussions regarding settlement of accounts with Kamaljeet. There were exchange of hot words and at about 12.30/1.00 noon, he and Pappu caught hold of deceased and Kamaljeet gave blows on the chest and neck of the deceased with a Kirpan. Resultantly, he fell down and breathed his last. All the three of them jointly concealed the dead body in the bath room and stayed there during the night and on the next day, i.e. On 09.06.2007, in the evening, all the three jointly put the dead body of deceased in Toyota Corolla car bearing registration No.DLIC-J-1235 and started towards Daruhera for throwing it somewhere. When they reached near village Binola, they threw the dead body near NH-8. Thereafter, he and Pappu took out petrol from Corolla car and Pappu sprinkled it on the dead body which was put on fire by Kamaljeet. 13. In his disclosure statement (Ex.PG), Pappu (appellant) has stated that they had reached the house of Kamaljeet on 07.06.2007, took their dinner and slept there as Kamaljeet told them that the accounts would be settled after arrival of Suppa Lama. 13. In his disclosure statement (Ex.PG), Pappu (appellant) has stated that they had reached the house of Kamaljeet on 07.06.2007, took their dinner and slept there as Kamaljeet told them that the accounts would be settled after arrival of Suppa Lama. On 08.06.2007, Suppa Lama reached at the house of Kamaljeet in the morning. There were exchange of hot words at about 12.30/1.00 noon. He and Suppa Lama caught hold of deceased and Kamaljeet gave blows on the chest and neck of the deceased with his Kirpan resulting into his death. The rest of the story of disposal of dead body is the same as narrated by Suppa Lama (appellant). 14. In his disclosure statement (Ex.PT/1), Kamaljeet (appellant) has also given the same version as has been given by Pappu in his disclosure statement (Ex.PG). 15. Learned counsels for the appellants have argued that it is a case of blind murder in which the dead body could not be identified. It is submitted that there is no recovery of the sword which is alleged to have been used by Kamaljeet (appellant) for causing injuries to the deceased resulting into his death. There is no recovery of the Toyota Corolla vehicle which was used by the deceased for going to Agra and Gurgaon and was further used by the appellants for destroying the evidence by putting the dead body of the deceased on NH-8 and setting it at fire. It is further submitted that the conduct of PW1 and PW6 is highly improbable. It is further submitted that the FSL report (Ex.PL) is in negative and the post mortem report (Ex.PM/1) does not disclose any mark of injury on the neck and chest of the deceased causing his death as the burns have been found to be post mortem in nature, mearning thereby burning was not the cause of death and the actual cause of death has not been deciphered in the post mortem report. It is further submitted that the dead body of the deceased could not be identified simply on the basis of a piece of shirt by a person who had not seen the deceased wearing the same when he left for Gurgaon, rather PW1 has stated that he was told by PW6 that the deceased was wearing a Dharidar shirt. It is further submitted that the dead body of the deceased could not be identified simply on the basis of a piece of shirt by a person who had not seen the deceased wearing the same when he left for Gurgaon, rather PW1 has stated that he was told by PW6 that the deceased was wearing a Dharidar shirt. It is further submitted that the prosecution could not collect any evidence except for disclosure of the place of occurrence which was already within the knowledge of the prosecution who had recovered the dead body from that place. The disclosure statements of the appellants could not be used against them as they are not recorded in the presence of an independent person but be that as it may, it entirely runs contrary to the version of PW1 and PW6. It is also submitted that in case of conviction on the basis of circumstantial evidence, inference of guilt, which is sought to be drawn, must be cogently and firmly established. 16. Learned State counsel has argued that the prosecution has proved the motive of the crime as Kamaljeet (appellant) was owing money to the deceased. There was an alleged quarrel between the parties in which all the appellants acted in furtherance of a common object, Pappu and Suppa Lama caught hold of the deceased and Kamaljeet gave the fatal blows with his Kirpan on his chest and neck. He further submitted that PW6 had last seen Pappu Singh in the company of the deceased and also lodged the missing report at Police Station Malviya Nagar, New Delhi suspecting involvement of Pappu Singh and Kamaljeet, who were continuously talking to him on his telephone while they were returning from Agra and forced the deceased to come to Gurgaon. PW6 had also stated that the deceased was wearing red and white striped shirt which has been recovered from the dead body and has been identified by PW6, which leaves no manner of doubt that the dead body was of the deceased. PW6 had also stated that the deceased was wearing red and white striped shirt which has been recovered from the dead body and has been identified by PW6, which leaves no manner of doubt that the dead body was of the deceased. He also submitted that delay of 5 months and 3 days in discovery of death of the deceased has been explained becuase the face of the deceased was unidentifiable and as a matter of chance, they reached upto the Police Station Manesar when Iqbal Hussain, a friend of PW1 told him that he had seen a notice in the newspaper “Punjab Kesri” about recovery of an unknown dead body. He further submitted that all the appellants have suffered disclosure statements which are almost the same detailing about the manner in which the murder was committed and the dead body was disposed of. 17. We have heard counsel for the parties, perused the record with their able assistance and are of the view that the learned Trial Court has committed a patent error while convicting and sentencing all the appellants in this case of blind murder. 18. The first version has come from PW6 who had lodged the missing report (Ex.PU) stating therein that the deceased had gone to Gurgaon in the evening of 08.06.2007. They came to know that the car in which the deceased had gone to Gurgaon remained parked there for 3 days. The guard, who identified photograph of the deceased, stated that the deceased had come to this place along with Pappu. The report was lodged on 26.06.2007, whereas, while appearing as PW6, wife of the deceased, had given another version that on 09.06.2007, she had talked to the deceased who told him that he would return after taking money from Kamaljeet which has been assured. She also stated that missing report was lodged within 2-3 days and came to know about the discovery of dead body through the newspaper after 8-10 days. 19. PW1 had no first hand information and is a witness of hearsay. He stated that his sister told him that in the evening of 08.06.2007, the deceased had gone to Gurgaon. They waited for 2-3 days and then lodged the missing report at Police Station Malviya Nagar, New Delhi. 19. PW1 had no first hand information and is a witness of hearsay. He stated that his sister told him that in the evening of 08.06.2007, the deceased had gone to Gurgaon. They waited for 2-3 days and then lodged the missing report at Police Station Malviya Nagar, New Delhi. According to the prosecution story, the appellants had committed murder of Shamshad (deceased) at about 12.30/1.00 noon on 08.06.2007 and in that circumstance, PW6 is telling lies that she had talked to her husband (deceased) on 09.06.2007 who had assured her that he would come soon after taking money from Kamaljeet. Moreover, no call details have been produced on record by the prosecution in order to prove that there in fact was a talk between the deceased and PW6. The guard, who identified the deceased and stated that the car remained parked for 3 days at that place, was also not produced as a witness. The post mortem report is not supporting the prosecution case that before eliminating the evidence of murder by burning the dead body, the deceased was given severe injuries on his neck and chest with Kirpan, which too has not been recovered at all. Another important piece of evidence missinig is the recovery of Toyota Corolla car which has been used by the deceased for going to Agra and Gurgaon and by the appellants for taking the dead body of the deceased to NH-8 for its disposal. The prosecution has also failed to prove any other identification of the deceased except for the piece of a shirt which cannot be considered to be a conclusive piece of evidence to identify the dead body, which could have been easily identified by DNA test which has not been conducted. Moroever, there is no independent witness of the disclosure of the place of occurrence and also of the disclosure statements which is altogether contrary to the version of PW1 and PW6 because in the disclosure statements, the occurrence is alleged to have taken place at about 12.30/1.00 noon on 08.06.2007, whereas according to PW6, the deceased left for Gurgaon in the evening of 08.06.2007 and even talked to her on 09.06.2007, meaning thereby he was alive on 09.06.2007. If this facts is admitted, then the disclosure statements of all the three appellants are patently false and cannot be believed. 20. If this facts is admitted, then the disclosure statements of all the three appellants are patently false and cannot be believed. 20. In view of the missing links in the prosecution story, benefit of doubt is extended to the appellants. Hence, all the three appeals are hereby allowed, order of conviction and sentence dated 04.12.2009 is hereby set aside and all the three appellants are ordered to be acquitted of all the charges against them. It is further ordered that all the three appellants, who are stated to be in custody, be released forthwith, as puer rules.