Judgment [Per: Hon’ble U.C.-Dhyani, J.] In the instant case, P.W.1 Kamal Gupta lodged complaint (Ext.Ka-1) against accused persons on January 12, 2002. The same was registered as case crime no. 24/2002 under Sections 394, 302, 201 IPC by P.S. Lansdowne, District Pauri Garhwal on 12.01.2002 at 8:00 a.m. The occurrence took place on 11.01.2002 at unknown time. The distance between place of occurrence and P.S. Lansdowne was 27 kilometres. Hence, there appeared to be no delay in lodging chik FIR (Ext.Ka-9). 2. Prosecution story was narrated by P.W.1 Kamal Gupta before the trial court. He said amongst other things, that he was the Director/ Proprietor of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar. The said firm owned a truck no. UP06 5774. On 08.01.2002, Sudhir and appellant Gaurav were deputed as driver and cleaner on the said truck. Sudhir and appellant Gaurav were present before the trial court when P.W.1 Kamal Gupta deposed. Informant said in his examination-in-chief that the salesman of his firm was victim Naresh Agarwal. On 08.01.2002 the truck was sent for sale of various articles from Srinagar to Gopeshwar via Rudraprayag. Salesman Naresh Agarwal, driver Sudhir and cleaner Gaurav were sent with the truck. On 11.01.2002, victim Naresh Agarwal rang-up the informant from Rudraprayag that they were proceeding (to Kotdwar), but employees did not reach Kotdwar on 11.01.2002. On 12.01.2002 another driver Virendra Singh of the same firm informed proprietor of the firm that truck no. UP06 5774 was found by him near the bridge of river Kho in suspicious circumstances. Informant went to the bridge and found truck in damaged condition. The lock of cash box was broken. There was no cash inside it. Informant made a search for the corpus of driver, cleaner and salesman. At Krainkhal informant found dead body of cashier Naresh Agarwal. Driver and cleaner were not found. He suspected that driver and cleaner have looted the cash. P.W.1 Kamal Gupta proved complaint Ext.Ka-1. Then he accompanied police party. He further proved recovery memo of cash memo and diary (Ext.Ka-2). Truck was given in his supurdagi vide Ext.Ka-3. He obtained cash memo and diary from the Investigating Officer for accounting and payment. Accused persons looted a sum of Rs. 3,66,272.50 after killing Naresh Agarwal. P.W.1 Kamal Gupta also proved diary (Material Ext. 1 ) and cash memo (Material Ext.2). He further proved recovery memo of cash memo and diary (Ext.Ka-2). Truck was given in his supurdagi vide Ext.Ka-3. He obtained cash memo and diary from the Investigating Officer for accounting and payment. Accused persons looted a sum of Rs. 3,66,272.50 after killing Naresh Agarwal. P.W.1 Kamal Gupta also proved diary (Material Ext. 1 ) and cash memo (Material Ext.2). He also proved the application (Ext.Ka-4) which was addressed to the Station Officer for obtaining diary and cash memo. He also proved accounts presented before S.O. Lansdowne (Ext.Ka-5). 3. In his cross-examination, he admitted that in Material Ext.2 (cash memo) names of seller and purchaser were not mentioned. Cash memos of 01.01.2002,09.01.2002 and 10.01.2002 were not prepared. Name of victim was not mentioned in Material Ext.1 (diary). He admitted that it is not clear from diary (Ext. 1 ) whether victim received any money or not? Sudhir was deputed on the truck since last days of November, 2001. Appellant Gaurav was deputed on the said truck since December 2001. Names of these two appellants were recorded in the Labour Office as well as the Register (which was not produced before the court on the day of deposition but was offered to be produced in the court on the next date. This said registered was never produced). He admitted that Rs. 3,66,272.50 were neither mentioned in Ext.1 nor in Ext.2. Victim Naresh Agarwal carried Rs. 4,12,151.00 along with him as per statement Ext.5. He admitted that the goods were bought by victim on 08.01.2002. The description of the same was not presented before the court. He admitted that he did not see the occurrence. Ext.Ka-2 and Ext.Ka-3 were prepared near the bridge. A suggestion was put forwarded to the informant that the appellant was not in his employment as conductor to which the informant denied. He also denied that the appellant was not the culprit. 4. P.W. Kamal Gupta did not produce any document of the firm to show that appellant was in the employment of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar and was deputed on truck no. UP06 5774 as cleaner. P.W.1 Kamal Gupta had offered to produce such document in the court, but did not fulfill his promise. Recovery of a part of looted property was not believed by learned trial court. Recovery of country made pistol was also not believed by learned trial court. UP06 5774 as cleaner. P.W.1 Kamal Gupta had offered to produce such document in the court, but did not fulfill his promise. Recovery of a part of looted property was not believed by learned trial court. Recovery of country made pistol was also not believed by learned trial court. No recovery memo was prepared by police. No arrest memo was prepared either. On 11.01.2002 the said incident took place. On 12.01.2002 chik FIR was lodged. Accused were arrested at Meerut on 15.01.2002 in connection with a case under Section 307 IPC in which they were exonerated. There was, therefore no question of reappraisal of said evidence by learned trial court. 5. P.W.2 Uday Singh had a provision store at Shreekot. He said in his examination-in-chief that on 08.01.2002 clerk/accountant of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar came to him in a truck. He did not know the name of clerk-cum-accountant. The said munshi purchased articles worth Rs. 1000/-. Driver and conductor were also present with accountant. P.W.2 Uday Singh did not know the names of driver and conductor. He identified driver Sudhir in the court and said that he was present with victim. Nothing was said about appellant Gaurav. He did not remember as to how many persons were present with victim. When the truck came back in its return journey on 11.01.2002, this witness made the payment to the clerk/accountant. On return journey driver and conductor were also present with victim. 6. Prosecution tried to establish the fact that driver and appellant were present with victim when he was last seen. In the cross-examination P.W.2 Uday Singh stated that he did not know the clerk-cum-cashier by name. He was concerned only with said munim and no one else. He had no concern with driver or conductor according to his own admission. He recognised driver Sudhir because he drove the truck of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar on earlier occasions. Nothing was said about identification of appellant Garuav. He· admitted that (munim/victim) alone came to his shop (on 11.01.2002). Driver and conductor did not come to his shop. Driver and conductor never used to visit his shop. He never talked to driver and cleaner. He could not tell the registration number of truck of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar. He· admitted that (munim/victim) alone came to his shop (on 11.01.2002). Driver and conductor did not come to his shop. Driver and conductor never used to visit his shop. He never talked to driver and cleaner. He could not tell the registration number of truck of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar. He also admitted that he did not know the driver and conductor but knew only munim j victim. He further clarified that only munim (victim) came to his shop on 08.01.2002 & 11.01.2002 and none else came to his shop. He did not see anybody coming to his shop (except munim). The bill of 08.01.2002 was not in his possession. He was regular customer of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar for the last 8-10 years and was having very good relations with them. 7. The testimony of P.W.2 Uday Singh did not help prosecution in as much as, initially he tried to say that he knew driver and appellant but later on admitted that neither driver nor appellant came to his shop on 08.01.2002 or 11.01.2002. He knew only munim (victim), who alone had come to his shop when he was last seen. 8. P.W.7 Hemendra Singh owned a ration shop in Rudraprayag. He said in his examination-in-chief that he was a customer of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar. On 08.01.2002 truck no. UP06 5774 of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar brought certain goods for him. He purchased bidi, match boxes, soap, etc. from munim Naresh Agarwal and paid a cash of Rs.3927.80. Payment was made and a receipt thereof was obtained from munim Naresh Agarwal. Driver and appellant conductor were also present in the truck. 9. In the cross-examination, only four suggestions were forwarded to P.W.7 Hemendra Singh. The first suggestion was that this witness did not purchase anything from M/s Shiv Dayal Gupta Agency Pvt: Ltd. Kotdwar. The second suggestion was that this witness did not make any payment (to munim). The third suggestion was that appellant never visited P.W.7 Hemendra Singh’s shop. The last suggestion was that he was making a false statement against appellant. P.W.7 Hemendra Singh replied in the negative (in response to all the suggestions). 10. Thus, P.W.7 Hemendra Singh did not identify appellant in the court. Although the appellant was named by him but he did not identify the appellant. The last suggestion was that he was making a false statement against appellant. P.W.7 Hemendra Singh replied in the negative (in response to all the suggestions). 10. Thus, P.W.7 Hemendra Singh did not identify appellant in the court. Although the appellant was named by him but he did not identify the appellant. How did he name him? How did appellant come into his contact? The statement was vague when this witness said that driver Sudhir and cleaner Gaurav were present in the truck. Whether this witness saw them in the truck or said so on the basis of presumption that a truck must be driven by a driver who is usually accompanied by a cleaner. 11. Apart from above witnesses, P.W.4 Head Constable Ram Chandra was the witness of commission of offences punishable under Section 3071PC and Section 25 Arms Act. P.W.5 Dr. B.P. Kaushik conducted post mortem on the dead body of victim Naresh Agarwal on 13.01.2002 and proved post mortem report Ext.Ka-8. According to him the cause of death of victim was coma as a result of ante-mortem injuries over head which were caused by firearm. P.W.6 SI Jagdish Tewari was also a witness to commission of offences punishable under Section 307 IPC and 25 Arms Act. P.W.8 SI Ramesh Chand was also witness to firing by appellant on police party and recovery of country-made pistol, cartridges and cash. The same held good for P.W.4 Head Constable Ram Chandra and P.W.6 SI Jagdish Tewari also. P.W.9 SI Devraj Sharma was head moharir at P.S. Lansdowne on 12.01.2002 who proved chik FIR (Ext.Ka-9) and copy of GD. (Ext.Ka-10). P.W.10 S.l Sayyed Munawwar Husain was a witness of inquest report (Ext.Ka-12) and many other documents including Ext.Ka-12 to Ext.Ka-16, site plan (Ext.Ka-16) and charge sheet (Ext.Ka-29). He also proved many other police documents. P.W.11 Constable Yogendra Singh was a witness to recovery memos (Ext.Ka-24 and Ext.Ka-27). None of these witnesses saw killing of victim by appellant. These witnesses were produced in order to fill in the gaps in the prosecution story. 12. P.W.1 Kamal Gupta, P.W.2 Uday Singh and P.W.7 Hemendra Singh were not the witnesses to gruesome murder of clerk-cum-accountant Naresh Agarwal. It is not a case of direct evidence. Even the last seen evidence did not bear any fruits. Test identification parade of appellant was not conducted. 12. P.W.1 Kamal Gupta, P.W.2 Uday Singh and P.W.7 Hemendra Singh were not the witnesses to gruesome murder of clerk-cum-accountant Naresh Agarwal. It is not a case of direct evidence. Even the last seen evidence did not bear any fruits. Test identification parade of appellant was not conducted. When the statements of appellant was taken under Section 313 Cr.P.C., he denied everything including his employment with M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar. Learned trial court himself acknowledged serious infirmities in investigation of the case. 13. It was not established that appellant was with victim when the latter was last seen. Whether the appellant was in the truck on 11.01.2002 has not been established. It has also not been established whether appellant was really in the employment of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar on the fateful day. Nobody saw killing of victim by appellant. Last seen evidence is fragile. The chain of circumstances could not be completed. Hence, it comes out to be a case of interference in the judgment and order of learned trial court giving the appellant benefit of doubt. 14. There is yet another very important aspect of the matter which takes away the entire case of prosecution so far as present appellant is concerned. The informant/proprietor of M/s Shiv Dayal Gupta Agency Pvt. Ltd. Kotdwar wrote in FIR that driver Sudhir Singh, cleaner and salesman Naresh Agarwal proceeded on 11.01.2002 at 3:30 p.m. from Rudraprayag to Kotdwar on a truck bearing registration no. UP06 5774. In this way, present appellant was not named by him in the complaint (Ext.Ka-1). No document was filed by informant P.W.1 Kamal Gupta before the trial court in this behalf. Although he offered to produce the papers, but did not fulfill his obligation of producing the papers in relation to the fact that present appellant was, in fact, doing the job of cleaner on the said truck. Secondly, the complaint could not be forwarded no sooner another driver Virendra Singh deputed on another truck gave information to the informant regarding the fact that truck no. UP06 5774 was found in suspicious circumstances. P.W.1 Kamal Gupta lodged the report only after the dead body of salesman Naresh Agarwal was found. ln other words, the informant came to know of the incident only when he found the dead body of salesman/munim. UP06 5774 was found in suspicious circumstances. P.W.1 Kamal Gupta lodged the report only after the dead body of salesman Naresh Agarwal was found. ln other words, the informant came to know of the incident only when he found the dead body of salesman/munim. Driver Virendra Singh of another truck had informed informant/proprietor that truck was lying under suspicious circumstances. Unlike the names of other two employees, the informant did not name present appellant in FIR. It was held out in FIR that a cleaner was also there. Present appellant was not held out to be on truck by name.This is great lacuna in the prosecution story. 15. The criminal appeal preferred on behalf of appellant Gaurav s/o Madhonand Sharma is thus allowed. The conviction and sentence awarded to the appellant by the learned trial court on 13.08.2010 is hereby set aside. The accused/appellant Gaurav is in jail. He be set at liberty forthwith, if not required to be detained in any other case. Let an information to this effect be sent to the superintendent of jail where appellant Gaurav is presently serving out the sentence. Let the lower court record be also sent back to the court concerned along with a copy of this judgment.