JUDGMENT BARIN GHOSH, C. J. (Oral) By the judgment dated 24th October, 2007, challenged in these Appeals and in the Revision, Amarmani Tripathi (hereinafter referred to as ‘A1’), Madhumani Tripathi (hereinafter referred to as ‘A2’), Rohit Chaturvedi (hereinafter referred to as ‘A3’) and Santosh Kumar Rai (hereinafter referred to as ‘A4’) have been convicted and sentenced, and Prakash Chandra Pandey (hereinafter referred to as ‘A5’) has been acquitted, by the Special Judge / Sessions Judge, Dehradun. 2. A1, A2, A3, A4 and A5, and also Sri Yagya Narayan Dixit (hereinafter referred to as the deceased accused, in short ‘DA’), who died in course of trial, were charged for various offences punishable under the Indian Penal Code (IPC) in connection with murder of Madhumita Shukla (victim). 3. A1 was charged under Section 201 of IPC on the ground that he tried to destroy the evidence of murder by trying to destroy the foetus of the victim. A1 was also charged under Section 342 of IPC for wrongfully confining Rishi Khare (PW58) on 10th May, 2003 at the residence of A1 situate at C-2, Lawrence Terrace, Hazratganj, Lucknow, with active connivance of DA. A1 was further charged under Section 506 of IPC for 3 threatening PW58 with dire consequences, with active connivance of DA, on 10th May, 2003 at the afore-mentioned residence of A1 for not supporting wedding of the victim with Anuj Mishra (PW60). 4. A1, A2 and A3 were charged under Section 120B, read with Section 302 of IPC, for entering into criminal conspiracy during the months of March, April and May, 2003 at the afore-mentioned residence of A1 and at different other places to commit murder of the victim in association with A4, A5 and DA, knowing fully well that the victim was carrying unborn child of A1. They were also charged under Section 109, read with Section 302 of IPC, for abetting commission of offence of murder of the victim by A4 and A5. 5. A4 and A5 were charged under Section 120B, read with Section 302 of IPC, for entering into criminal conspiracy in the months of March, April and May, 2003 at the afore-mentioned residence of A1 and at a shop near IT Crossing to commit murder of the victim, knowing fully well that the victim was carrying unborn child of A1. 5. A4 and A5 were charged under Section 120B, read with Section 302 of IPC, for entering into criminal conspiracy in the months of March, April and May, 2003 at the afore-mentioned residence of A1 and at a shop near IT Crossing to commit murder of the victim, knowing fully well that the victim was carrying unborn child of A1. They were also charged under Section 302, read with Section 34 of IPC, for committing murder of the victim at the house of the victim situate at Paper Mill Colony, Lucknow, with common intention and in furtherance of criminal conspiracy. 6. By the judgment, A1, A2, A3 and A4 have been convicted under Section 120B, read with Section 302 of IPC, and each one of them has been sentenced to imprisonment for life with fine of Rs. 50,000/-, in default, the defaulter has been directed to serve out additional rigorous imprisonment for two years. In addition to that, A1 has been convicted under Sections 342 and 506 of IPC and sentenced to further rigorous imprisonment for one year and two years respectively. A4 has been convicted by the judgment under Section 302/34 of IPC and sentenced to imprisonment for life. 7. Aggrieved by the conviction and sentence, A1, A2, A3 and A4 have preferred the above Appeals. Since A5 has been exonerated, Central Bureau of Investigation (CBI) has preferred an Appeal. Nidhi Shukla (PW50), elder sister of the victim, who lodged the First Information Report, filed the above Criminal Revision. While the Appeal preferred by CBI is confined to exoneration of A5 of the charges leveled against him, the Revision filed by PW50 challenged acquittal of A1 of the offence punishable under Section 201 of IPC and acquittal of A1, A2, A3 and A4 of the offence punishable under Section 109, read with Section 302 of IPC, and acquittal of A5 of the charges leveled against him. 8. Before the court below, defence unsuccessfully disputed the place and time of occurrence. No such dispute, however, has been raised and, even if raised, not argued before this Court. 8. Before the court below, defence unsuccessfully disputed the place and time of occurrence. No such dispute, however, has been raised and, even if raised, not argued before this Court. The murder of the victim was committed at about 03:15 p.m. on 9th May, 2003 in the house of the victim situate at Paper Mill Colony, Lucknow, by a bullet, which was seated in the heart cavity of the victim and which entered her body from the left side of her left nipple and fractured her third and the fourth left ribs and also damaged her lungs membrane, as was found by Dr. K.P. Pathak (PW2), who conducted autopsy of the dead body of the victim. 9. A written report filed at about 07:45 p.m. on 9th May, 2003 by PW50 with the Mahanagar Police Station, Lucknow, resulted in lodgment of the First Information Report, which, in turn, was registered as Case No. 162 of 2003 under Section 302 of IPC. According to the evidence of PW50, the written report, thus lodged by her, was dictated to her by the officers posted at the said Police Station. In the report, persons accused were Satya Prakash and an associate of Satya Prakash. At the time of lodgment of the said report, media reached the Police Station, when PW50 asserted before the media involvement of A1 and A2 in the crime alleged in the report. 10. Initial investigation was made by the S.O. of the said Police Station Sri Ajay Kumar Chaturvedi (PW16). PW2 conducted autopsy. In course thereof, he found what has been mentioned above and also a male foetus of seven months, measuring 34 cm. in length and 880 grams in weight, which had already taken shape with rosy skin and soft hair, in the uterus of the victim. Without removing the foetus, the dead body was handed over for cremation. On receiving information about the foetus, PW16 brought the same to the notice of higher authorities, when he was told to get the body back and to remove the foetus. Accordingly, the dead body was brought back from Sitapur. PW16 obtained permission from the District Magistrate, Lucknow, for second post mortem. At 08:00 p.m. on 10th May, 2003, the foetus was removed and the same was preserved. Accordingly, the dead body was brought back from Sitapur. PW16 obtained permission from the District Magistrate, Lucknow, for second post mortem. At 08:00 p.m. on 10th May, 2003, the foetus was removed and the same was preserved. When PW16 and other senior police officers reached the place of occurrence, they found, amongst others, a mobile set lying on the bed of the victim and a bullet lying below the dead body. 11. At the request of Shanti Shukla, the mother of the victim residing at Lakhimpur Khiri, the Government ordered transfer of investigation of the case to CB-CID. On 17th May, 2003, Amitabh Yash, the then SP (Crime), CB-CID, Lucknow (PW23) constituted a team of investigators to investigate the crime. The sealed foetus was sent by CB-CID to CDFD, Hyderabad for DNA Test, along with certain material evidences collected in course of investigation. The request made by CB-CID to provide blood sample was refused by A1. 12. On 17th June, 2003, PW23 was suspended and, by a Notification dated 24th June, 2003, the case was transferred to CBI. CBI completed the investigation. In course of investigation, CBI arrested A1, A3, A4 and A5 and recovered a country made pistol. The pistol, along with bullet retrieved from the body of the victim as well as the bullet found lying beneath the body of the victim, were sent to CFSL, New Delhi. Those were examined by Sri Nilendra Vikas Vardhan (PW14). He reported that those bullets were fired from two different pistols. He did not match the bullets with the pistol sent. As a result, the bullets and the pistol were sent back to CFSL, New Delhi, when, upon examining and matching the same, PW14 reported that the pistol sent for examination was used for firing the bullet, which was found inside the body of the victim. In the meantime, on 13th August, 2003, blood sample of A1 was taken at the instance of CBI by Dr. Kapil Suri, Chief Medical Officer (PW13) and sent to CDFD, Hyderabad for comparison of DNA profile thereof with the DNA profile of the foetus. 6 CDFD, Hyderabad, reported that DNA profile of the foetus matched the DNA profile of the victim as also of A1. CBI conducted test identification parades of A4 and A5 for identification by Desh Raj (PW25). Kapil Suri, Chief Medical Officer (PW13) and sent to CDFD, Hyderabad for comparison of DNA profile thereof with the DNA profile of the foetus. 6 CDFD, Hyderabad, reported that DNA profile of the foetus matched the DNA profile of the victim as also of A1. CBI conducted test identification parades of A4 and A5 for identification by Desh Raj (PW25). Certain writings containing signatures and handwriting of A1 were collected from the house of the victim and CBI also obtained specimen handwriting and signatures of A1 and sent the same for comparison by handwriting expert Sri V.K. Khanna (PW3) Principal Scientific Officer, who reported that the same matched. CBI collected call records of various telephones/mobiles and recorded the statements of A3 under Section 164 of the Code of Criminal Procedure (hereinafter referred to as the ‘CrPC’) on 17th November, 2003 and filed a charge-sheet on 19th December, 2003, whereon cognizance was taken and the case was committed to the court of Sessions Judge, Lucknow. In order to prosecute, CBI presented Mangal (PW1) as the first witness before the court of Sessions Judge, Lucknow. Subsequently, by an order of the Hon’ble Supreme Court dated 8th February, 2007, the trial of the case was transferred to Dehradun Judgeship in the State of Uttarakhand, with a request to the Hon’ble Chief Justice of Uttarakhand to create a special court for trial of the case and that is how the case was tried by the Special Judge / Sessions Judge, Dehradun. 13. The principal contention of A1, A2 and A3 in the appeals preferred by them is that, since they have been exonerated of the charge framed under Section 109, read with Section 302 of IPC, they cannot be convicted under Section 120B, read with Section 302 of IPC. It is their contention that aiding, abetting or conspiracy are the ingredients of abetment. The court below has acquitted all of them under Section 109, read with Section 302 of IPC. Therefore, the court below has opined that there is no act of abetment for murder by aiding or abetting or by conspiracy. Once such a conclusion has been drawn, conviction of A1, A2 and A3 under Section 120B, read with Section 302 of IPC, is not sustainable. It was submitted that abetment is the set and conspiracy is its sub-set. Therefore, the court below has opined that there is no act of abetment for murder by aiding or abetting or by conspiracy. Once such a conclusion has been drawn, conviction of A1, A2 and A3 under Section 120B, read with Section 302 of IPC, is not sustainable. It was submitted that abetment is the set and conspiracy is its sub-set. Hence, when there is acquittal for abetment, i.e. the set; there cannot be conviction for the sub-set, i.e. conspiracy. It was submitted that, in the absence of a Government Appeal, the finding of acquittal under Section 109, read with Section 302 of IPC, cannot be disturbed. It was also submitted that the Criminal Revision filed by PW50 was belated. 14. The charge, as was framed, though indicated commission of an offence of murder punishable under Section 109, read with Section 302 of IPC, but the charge did not indicate either an action of aiding or abetting or conspiracy; whereas the charge framed under Section 120B, read with Section 302 of IPC, clearly indicated the action of entering into criminal conspiracy to commit murder. The court below dealt with the charge under Section 109, read with Section 302 of IPC, in the manner as follows: “Accused A2 and A3 are further charged U/s 109 IPC read with Section 302 IPC. In my view, from this charge both the accused persons are liable to be acquitted as this charge is dependent on conspiracy, in other words, charge U/s 109 read with Section 302 IPC is based on the assumption that these two accused abetted the conspiracy under which deceased was killed. Since conspiracy is not an act, there is no question of its abetment. Only an act can be abetted, conspiracy is an agreement and by mere agreement between two or more persons to do an unlawful act, the offence of conspiracy as punishable U/s 120B IPC is complete, as such it is not an act which can be abetted. AIR 1936 Rangoon 358, 164 IC 522.” 15. Therefore, the court below did not bind itself with a finding recorded to the effect that there was no aiding or abetting or conspiracy on the part of A1, A2 and A3 either individually or collectively. The court below felt that conspiracy is not an act and, therefore, there was no abetment. AIR 1936 Rangoon 358, 164 IC 522.” 15. Therefore, the court below did not bind itself with a finding recorded to the effect that there was no aiding or abetting or conspiracy on the part of A1, A2 and A3 either individually or collectively. The court below felt that conspiracy is not an act and, therefore, there was no abetment. This finding may be a right or a wrong finding, but, by reason of that finding, the court below did not conclusively or otherwise held that there was no conspiracy and, accordingly, did not prevent himself from going into the question of conspiracy and holding A1, A2 and A3 guilty of offence punishable under Section 120B, read with Section 302 of IPC. For the present purpose, we think we need not say a word more. Further, as would be evident from the judgment, the opinion expressed in relation to charge under Section 109, read with Section 302 of IPC, was recorded after a clear pronouncement pertaining to commission of offence punishable under Section 120B, read with Section 302 of IPC. Thus, we are unable to accept that, since the court below exonerated A1, A2 and A3 of the charge under Section 109, read with Section 302 of IPC, the court below debarred himself from convicting A1, A2 and A3 under Section 120B, read with Section 302 of IPC, as was urged. 16. A1 was charged under Section 201 of IPC. The charge, as was framed, made it clear that A1 tried to destroy the evidence connected with offence of murder by trying to destroy the foetus of the victim. Section 201 of IPC has two limbs, namely, (i) causing any evidence of the commission of an offence to disappear; and (ii) giving any information respecting the offence knowing or believing to be false. A look at the charge would make it amply clear that A1 was charged under the first limb of Section 201 of IPC and not under the second limb of the said Section. The prosecution failed to establish that A1 tried to destroy the evidence connected with the offence of murder by trying to destroy the foetus of the victim. The revisionist tried to contend that the prosecution had duly established commission of an offence by A1 under the second limb of Section 201 of IPC. The prosecution failed to establish that A1 tried to destroy the evidence connected with the offence of murder by trying to destroy the foetus of the victim. The revisionist tried to contend that the prosecution had duly established commission of an offence by A1 under the second limb of Section 201 of IPC. It appears that CBI had also urged before the court below to the effect as has been urged by the revisionist. We think that the court below rightly held that the same is not permissible by taking note of Sections 211 and 212 of CrPC. 17. No argument was advanced before us on behalf of A1 in relation to offences punishable under Sections 342 and 506 of IPC, probably because, at the time when the appeal was taken up for consideration, A1 had already undergone imprisonment for a period in excess of two years, since he was sentenced for one year and two years respectively for having been convicted under Sections 342 and 506 of IPC. 18. While A1, A2, A3 and A4 have been convicted under Section 120B, read with Section 302 of IPC, A4 has been convicted also under Section 302, read with Section 34 of IPC. It was urged that conviction of A4 under Section 302, read with Section 34 of IPC, is not sustainable. A4 has been convicted under Section 302, read with Section 34 of IPC, only on the basis of the evidence tendered by PW25. If the evidence of PW25 is believable, then conviction of A4 under Section 302, read with Section 34 of IPC, is not interferable. 19. On 6th April, 2007, PW25 deposed before the court when he was 18 years’ old. Therefore, at the time of the incident, i.e. on 9th May, 2003, he was 14 years’ old. He was, therefore, a child during the period in respect whereof he deposed before the court. Statements of PW25 were recorded time and again by three investigating agencies, referred to above. Such statements were produced before the court below. Defence could not point out any inconsistency in such statements. His examination-in-chief before the court was lengthy. He was subjected to lengthy and rigorous cross-examination. In course of examination, his father accompanied by a lawyer wanted to interfere, which was firmly refuted by him. Such statements were produced before the court below. Defence could not point out any inconsistency in such statements. His examination-in-chief before the court was lengthy. He was subjected to lengthy and rigorous cross-examination. In course of examination, his father accompanied by a lawyer wanted to interfere, which was firmly refuted by him. He had nothing to gain or lose by giving evidence to the effect he gave before the court below. The defence, in course of cross-examination, could not bring out anything, which can question the veracity of the evidence tendered by him. 20. On being introduced by his Uncle, namely PW1, PW25 started working as a domestic help to the victim from 25th March, 2003. He remained such domestic help until the date of occurrence. It is he, who informed the death to the brother and mother of the victim at Lakhimpur Khiri over telephone from a nearby PCO. He accompanied PW50 and her friend Nazib to report the incident. He remained with the investigating agencies for a long period of time. He was a village lad forced to come to earn a livelihood as a domestic help in view of pathetic financial condition of his family. He correctly identified Satya Prakash in court out of A1, A3, A4 and A5. The person, who was identified as Satya Prakash, disclosed that he is in fact Santosh Kumar Rai (A4). He had named Satya Prakash and the companion of Satya Prakash to every person as people responsible for the murder. 21. He stated in his evidence that, on 8th May, 2003 at about 04:00 p.m., victim was away from her residence when somebody knocked at the door and, through the window, he found two people were standing on the door, one of them disclosed his name as Satya Prakash and enquired about the presence of the victim and, on being told that the victim is not at home, both of them left. He stated that, on 9th May, 2003 at about 11:00 a.m., PW1 asked the victim when she proposed to send PW25 to his home. Victim agreed to send PW25 on that day itself. Victim asked PW1 to deliver dirty clothes to washer man, which were delivered. After PW1 returned, PW1 and PW25 were told by the victim to bring her clothes from laundry and also to bring some mangoes. Victim agreed to send PW25 on that day itself. Victim asked PW1 to deliver dirty clothes to washer man, which were delivered. After PW1 returned, PW1 and PW25 were told by the victim to bring her clothes from laundry and also to bring some mangoes. PW25 and PW1, therefore, left the residence of the victim for those purposes. When he and PW1 returned, they found Pinku, an earlier servant of the victim, was with the victim. PW1 was asked to return some of the mangoes. Victim asked PW1 to return at about 04:00 p.m. to take PW25 to his home, whereupon, PW1 left. PW25 stated that, thereafter, he went to cook the meal. Meanwhile, Pinku left and PW25 bolted the door from inside. PW25, then, stated that, at about 03:30 p.m., when he and the victim were taking their meals, there was a knock on the door. PW25 saw through the window the same two people, who had visited on 8th May, 2003, have come and one of them, again, disclosed his name as Satya Prakash. PW25 informed the victim as to arrival of those two people and the victim asked PW25 to remove plates. Victim then let those two people in. PW25 stated that Satya Prakash, after entering the house, handed over a slip to the victim and, after going through the same, she passed on the slip to PW25 and PW25 kept the same with him and went to prepare tea for the visitors, as he was directed by the victim, after having had served water to the visitors. PW25 stated that the said two visitors sat on two chairs in the bedroom brought by him from the other room and the victim seated herself on the bed. PW25 stated that, while he was preparing tea in the kitchen, someone bolted the connecting door in between the kitchen and the bedroom from the side of the bedroom. PW25 stated that, after preparing the tea, he gave knock to the door, but received no response. PW25 stated that he left the tea in the cups in the kitchen and went to wash the clothes. PW25 stated that, while washing clothes, he heard a loud sound, but could not understand what caused the same and continued washing clothes. While he was still inside the kitchen, PW25 said he heard someone crying what happened madam. PW25 stated that he left the tea in the cups in the kitchen and went to wash the clothes. PW25 stated that, while washing clothes, he heard a loud sound, but could not understand what caused the same and continued washing clothes. While he was still inside the kitchen, PW25 said he heard someone crying what happened madam. PW25, then, stood on a stool to reach to the height of the duct (a hole made for ventilation on the wall between the kitchen and the bedroom) and, through that, saw the victim lying on the floor at a corner of the room in a pool of blood. PW25 stated that, through the duct, he managed to reach inside the room and found the visitors have left. PW25 stated that he tried to go outside, but found the outer door bolted from outside. Accordingly, through the window, he requested a lady, who was there outside, to unlock the door. The door was unlocked, whereupon, he stepped outside and put a lock on the outer door and proceeded to inform PW1 and, on way towards the place of PW1, met PW1 and disclosed the incident. PW1 advised him to inform the mother of the victim on phone and, accordingly, he informed the mother as well as the brother of the victim over phone through the local PCO. Subsequently, PW50, along with Nazib, came and, thereafter, the First Information Report was lodged. PW25 identified Satya Prakash at Barabanki Jail and Prakash Chandra Pandey at Unnao Jail, as those two persons, who came on 8 and 9 of May, 2003, in identification proceedings and similarly identified them in the court. 22. This piece of evidence is not corroborated by any other ocular evidence. PW1 accepted that he got PW25 employed as domestic help to the victim. PW1 stated that, at about 12 noon of 9th May, 2003, he went to the house of the victim, when the victim entrusted him with certain laundry work and also gave Rs. 300/- for purchase of clothes for PW25 and for few other items and asked him as well as PW25 to return back by 04:30 p.m. According to PW1, he returned at about 04:30 p.m. of 9th May, 2003, but found the door of the house bolted from inside. 300/- for purchase of clothes for PW25 and for few other items and asked him as well as PW25 to return back by 04:30 p.m. According to PW1, he returned at about 04:30 p.m. of 9th May, 2003, but found the door of the house bolted from inside. He went back and returned within 10 minutes and, again, knocked the door and the door was opened by PW50, when he saw the victim was lying on the carpet and, on query, PW50 disclosed that two people, out of which one was Satya Prakash, have killed the victim and had ran away. PW1 was declared hostile. The statements given by him under Section 161 of CrPC were contrary to what he stated before the court. If the evidence of PW1, as given in court, is accepted, then the evidence given by PW25 before the court cannot be accepted, for PW1 insinuated that PW25 was not at the residence of the victim at the time of occurrence. As against the evidence of PW1, there is Ex. M7 in the form of a photograph, not disputed by the defence, taken by the police photographer, who went to the place of occurrence after the First Information Report was submitted, showing three cups of tea lying ready for being served on the kitchen table. There was no suggestion on behalf of the defence that PW25 did not make and pour tea in three cups and that the same was done by the victim. PW25 was the domestic servant of the victim. The dead body of the victim was littered with vomits, which suggests that the victim took her afternoon meal before she was done away with. It was not the case of the defence that the victim cooked her own meal and not PW25. Further, relevant page of the call register maintained in the usual course of business by Sri Radheyshyam Singh (PW66), the local PCO owner, Ex. Ka. 141, duly proved by him before the court, established that a call was made from the said PCO to the telephone installed at the residence of the victim situate at Lakhimpur Khiri on 9th May, 2003 at 03:50 p.m. In the circumstances, a prudent person will give credence to the evidence given by PW25 as to what happened immediately before the victim was murdered. 23. 23. The evidence, thus tendered by PW25, would only show that A4 and another were last seen with the victim immediately before she was murdered. The said evidence casted an obligation on A4 to explain. He having not done so, law required a prudent person to take adverse inference against him. In the circumstances, law required to hold that A4 was one of the assailants of the victim. 24. A person came to the house of the victim along with another, first time on 8th May, 2003 and then on 9th May, 2003, and gave his name to PW25. Soon thereafter, PW25 came to know about the gruesome murder of his employer. He gave the name as was given to him to all and sundry. The one, who gave his name, was identified by PW25 in course of test identification parade as well as in court. There is, therefore, hardly any scope of interference with the conviction of A4 under Section 302, read with Section 34 of IPC. 25. Great emphasis was given on Ex. M20, which was allegedly handed over by A4 to the victim, who, in turn, handed over the same to PW25. M20 was a chit of paper containing two telephone numbers, name of the victim and the name of the colony where the victim used to reside. M20, according to PW25, was handed over by A4 to the victim, who, in turn, handed over the same to PW25 and, later, PW25 handed over the same to PW50. Ex. M20 was lost and, then, retrieved by PW16 from outside the front door of his house in an envelope upon making a passionate plea for making the same over to him. Handwriting expert reported that the writing on M20 was neither by A1 or A2 or A3. The court below felt that M20 was fabricated by PW16. Having had done so, court below disbelieved handing over of M20 to the victim by A4. M20, as it stood, did not help the prosecution a bit. By fabricating M20, prosecution did not gain anything. According to PW25, when the victim saw A4 and his companion on 9th May, 2003, the reaction of the victim was “oh brother you are”. Having had done so, court below disbelieved handing over of M20 to the victim by A4. M20, as it stood, did not help the prosecution a bit. By fabricating M20, prosecution did not gain anything. According to PW25, when the victim saw A4 and his companion on 9th May, 2003, the reaction of the victim was “oh brother you are”. Still then, according to PW25, M20 was handed over by A4 to the victim, who, in turn, handed over the same to PW25 and, later, PW25 handed over the same to PW50. This part did not form part of the statements of PW25 and PW50 when their statements were taken by PW16 and the group of investigators assisting him. However, the same having been recorded in the statements recorded by subsequent investigating agencies, existence of Ex. M20 was brought into existence in course of evidence. If Ex. M20 was fabricated, it may be possible that the same replaced the original. Despite knowing that Ex. M20 is not going to help the prosecution a bit, the same was placed before the court as statements to that effect had been made by PW25 and PW50 before the subsequent investigating agencies and, therefore, even if Ex. M20 was a fabricated document, it could not be said that PW25, who glanced at Ex. M20 or its original at the age of 14 and gave evidence before the court 4 years’ later at the age of 18 to the effect that Ex. M20 was the self-same chit of paper, gave tutored concocted version. 26. As aforesaid, PW25 identified A4 at Barabanki Jail. That happened on 9th November, 2003. He also identified him as Satya Prakash in the court amongst four male accused people. We have, therefore, not been able to persuade ourselves to take a different view that there was not enough evidence to conclusively hold that A4 is guilty of commission of an offence punishable under Section 302, read with Section 34 of IPC, as A4 and 14 another, in the background of the case, as would appear to a prudent person, committed the murder caused by one single bullet injury and there can be no other conclusion. 27. 27. The court below has not believed that A5 was the companion of A4 for the reason that, on 9th November, 2003, PW25 became free at about 04:00 p.m. after conclusion of identification proceedings of A4 at Barabanki Jail. According to unchallenged evidence of Constable 42 C.P. Bhagat Prasad Sharma (DW4), distance between Lucknow and P.S. Kesarganj can be covered in three hours by bus. PW25 was taken from P.S. Kesarganj, the closest Police Station from the village residence of PW25, to Barabanki by Jeep. Barabanki is closer to Kesarganj than Lucknow. According to Ex. Kha. 30, PW25 did not return to P.S. Kesarganj, nor to his residence on 9th November, 2003. GD No. 11 of 10th November, 2003 indicates that PW25 returned to P.S. Kesarganj at 08:15 a.m. PW25, therefore, as opined in the judgment, stayed in the intervening night of 9th / 10th November, 2003 at Dalibagh Guest House, Lucknow, and at the same time, A5 reached Dalibagh Guest House from Gorakhpur on 10th November, 2003, as such, A5 was shown to PW25 at Dalibagh Guest House on 10th November, 2003, since according to Hari Singh (PW76), A5 reached Dalibagh Guest House at 10:00 a.m. on 10th November, 2003 and, according to Sri Amit Srivastava (PW72), he brought A5 at Dalibagh Guest House in the morning of 10th November, 2003. Though, as evident from arrest memo (Ex. Ka. 152), A5 was arrested at 10:00 a.m. on 10th November, 2003, but before that, as is the case of the prosecution, A3 was confronted with A5, whereafter A5 was formally arrested and, thereafter, arrest memo must have been made, is the finding of the court below. The arrest memo was a computer printout. Because PW76 stated in his evidence that A5 was made baparda, but, since the same was not endorsed on the arrest memo, the court below got suspicious. The court below concluded that, since PW25 returned to P.S. Kesarganj at 08:15 a.m. on 10th November, 2003 and A5 reached Dalibagh Guest House in the morning of 10th November, 2003, there is a strong possibility of PW25 seeing A5 at Dalibagh Guest House at Lucknow in the morning of 10th November, 2003. The court below concluded that, since PW25 returned to P.S. Kesarganj at 08:15 a.m. on 10th November, 2003 and A5 reached Dalibagh Guest House in the morning of 10th November, 2003, there is a strong possibility of PW25 seeing A5 at Dalibagh Guest House at Lucknow in the morning of 10th November, 2003. While doing so, the court below did not November, 2003, which suggested that PW25 reached P.S. Kesarganj at 08:15 a.m. on 10November, 2003, nor did he hold that distance between Lucknow and Kesarganj can be covered in less than three hours by bus (a motor vehicle). Therefore, in order to reach at P.S. Kesarganj at 08:15 a.m., it was required for PW25 to leave Lucknow at or about 05:15 a.m. Assuming morning of 10November, 2003, when PW72 reached Dalibagh Guest House along with A5, started at 05:00 a.m. (which is difficult to assume in the month of November), CBI had about 15 minutes’ time to show A5 to PW25. However, as has come on evidence and which has not been suspected, nor anything contrary to that has been shown by A5, A5 was first confronted with A3, which resulted in identification by A3 of A5, that had taken some time. Taking into account that time, the time available to show A5 to PW25 would be a very small period of time. There would be, therefore, great hustle and bustle to achieve the objective of showing A5 to PW25. In answer to questions under Section 313 of CrPC, A5 did not project anything to suggest any such hustle or bustle. Suspect GD No. 11 of 10th 28. Furthermore, baparda of A5 was not at all necessary for the purpose of investigation or for presenting him before A3 in order to enable A3 to identify A5. Baparda is not taken recourse to before arrest, whether formal or otherwise. A5 would not have been arrested, but for identification of him by A3, who in the meantime disclosed in his statement under Section 164 of CrPC about involvement of A5 with the crime in question. Normally an arrested person is made baparda at the time of presenting him before the Magistrate for remand. In the absence of the remand order, there was no reason to suspect that A5 was not made baparda before he was presented before the Magistrate for remand. Normally an arrested person is made baparda at the time of presenting him before the Magistrate for remand. In the absence of the remand order, there was no reason to suspect that A5 was not made baparda before he was presented before the Magistrate for remand. In his statement under Section 313 of CrPC, A5 held out to be a man of substance having various business interests. He, accordingly, tried to project that his social and financial status was such that the same would not permit him to spoil his such status, for it has not come on evidence that he was to make a very large gain by associating himself with the crime alleged. However, although it is very easy for a person having such financial and social status to prove the same in court, A5 did not make any endeavour to that effect. Therefore, making A5 baparda or not making him baparda on 10th November, 2003 could not be a factor to suspect identification of A5 by PW25 in court. As aforesaid, PW25 not only identified A5 as the other person, who accompanied A4 to the house of the victim on 8th and 9th of May, 2003 in court, but also he identified independently A5 in Unnao Jail in course of identification proceedings. Evidence to that effect remained unchallenged. Despite such identification, both in court and in jail, court below exonerated A5 erroneously on the proposition of law “the evidence of mere identification of the accused person at the trial for the first time is from its very nature inheritably a weak character”. We, accordingly, hold that the court below, while exonerating A5 of the charge under Section 302, read with Section 34 of IPC, misdirected itself and erred in not accepting the evidence of PW25. We, accordingly, allow the appeal preferred by CBI and convict A5 of the offence punishable under Section 302, read with Section 34 of IPC, in connection with the murder of the victim. 29. At the same time, we reject the contention of CBI that the murder weapon was discovered in consequence of information received from A5, inasmuch as, information given by A5 to the police, while in custody, did not lead to discovery of the murder weapon from the person or from the place from where the same was supposed to have been discovered on the basis of such information. Instead, such information helped the investigation to investigate further, which investigation, ultimately, led to discovery of the murder weapon. It is surprising that the person, from whom the murder weapon was, ultimately, discovered, was not charged for helping commission of the offence with which we are concerned. 30. This leads us to the last question, whether conviction of A1, A2, A3 and A4 under Section 120B, read with Section 302 of IPC, is or is not interferable. 31. CBI wanted us to accept the statements recorded by A3 under Section 164 of CrPC. A1, A2, A3 and A4 correctly held out that, even if the said statements are accepted, the same cannot, alone, be the sole basis of conviction. The statements, if accepted, can only, at the best, help the court to reconfirm its conviction that the crime, as alleged, stands otherwise proved to the hilt. We would, therefore, deal with the said statements if at all necessary to convince us further. Our endeavour would be to ascertain whether the prosecution has been able to independently prove commission of offence by A1, A2, A3 and A4 punishable under Section 120B, read with Section 302 of IPC. 32. In order to put home the charge under Section 120B, read with Section 302 of IPC, prosecution has relied upon such evidence, which shows intimate relationship at one stage between A1 and the victim, which caused annoyance to A2, fading out of such intimate relationship between A1 and the victim, calls made by and between A1 and A3, A2 and A3, A3 and A4 and meeting of A1 and A4. There is no evidence as to what they spoke when they called each other and when they met each other. The intimate relationship between the victim and A1 was established principally by matching the DNA profile of the foetus, undisputedly recovered from the uterus of the victim, with the DNA profile of A1, purchase of a refrigerator by the victim by using the money belonging to A1, A1 helping the victim in organizing Kavi Sammelans, A1 contributing Rs. 50,000/- towards purchase of the house of the victim in Paper Mill Colony, A1 helping the victim in obtaining bail at Udaipur, A1 arranging a service for her brother, A1 providing servants to the victim for carrying out household work, victim accompanying A1 on his visit to Delhi, etc. 50,000/- towards purchase of the house of the victim in Paper Mill Colony, A1 helping the victim in obtaining bail at Udaipur, A1 arranging a service for her brother, A1 providing servants to the victim for carrying out household work, victim accompanying A1 on his visit to Delhi, etc. Annoyance of A2 was proved by tendering evidence through PW50 to the effect that A2 came to the house of the victim, when A1 was present, A2 created a ruckus and, by arranging a vehicle, victim arranged safe passage for A1 and also through the evidence of Sri Manvendra Pratap Singh (PW32), a neighbour of the victim in Paper Mill Colony, to the effect that A2 introduced herself to PW32 by name and enquired about the occupants of the house of the victim, when A2 informed PW32 that the husband of a lady, who is known to her, makes frequent visits to the house of the victim and she wants to help her and, accordingly, made a request to keep an eye on the house of the victim. A2, thereafter, left after obtaining telephone number of PW32, whereafter, she used to ring the said telephone to enquire about presence of any vehicle outside the house of the victim and even allured him to give a job. 33. It is not in dispute that A3 is the son of maternal Uncle of A1. According to prosecution, A3 was the pivot. There was conspiracy between A1, A2 and A3 to eliminate the victim and, to achieve the object, A3 conspired with A4 and A5. To prove the same, prosecution has relied upon calls made by A1 and A2 to A3, and A3 to A4. Prosecution has also brought in evidence presence of A4 at the house of A1. As aforesaid, contents of these calls are not available on evidence, nor there is any evidence as regards the talk when A4 was present in the house of A1. 34. According to A3, he does not know A4 and he never talked to A4. He talked only to Santosh Pandey (PW48) on mobile No. 9415018379, registered in the name of PW48, as the father of A3 and the father of PW48 purchased lands contiguous to each other in Industrial Area, Gorakhpur. 34. According to A3, he does not know A4 and he never talked to A4. He talked only to Santosh Pandey (PW48) on mobile No. 9415018379, registered in the name of PW48, as the father of A3 and the father of PW48 purchased lands contiguous to each other in Industrial Area, Gorakhpur. If this piece of evidence is accepted, then the link between A4 on the one hand and A3 on the other will stand snapped, benefit whereof will automatically reach A1 and A2. Apart from the evidence of PW48 that mobile No. 9415018379, registered in his name, was with A4, there is evidence of Rajeshwar Singh (PW59), C.O. Mahanagar, Lucknow, to the effect that A4 held out to PW59 that mobile number of A4 is 9415018379. Defence contended that the evidence of PW59 is not trustworthy. We have to, therefore, scrutinize, very carefully, the evidence of PW59. He stated that, in July, 2003, he was posted as C.O. Gomti Nagar, Lucknow. During that time, he was in search of a wanted criminal named Amit Mohan Verma. The said criminal was a resident of Gorakhpur. He came to learn that A4 was then in University, a resident of Gorakhpur, and residing in Room No. 91, Chandrashekhar Azad Hostel. He also came to know that A4 knows wanted criminals. On receiving that information, he went to Chandrashekhar Azad Hostel, but found that A4 has gone to attend some marriage at Baradari. He, accordingly, went to Baradari and located A4. A4 informed PW59 that J.P. Singh, residing in Sector 19, House No. 779, Indra Nagar, Lucknow, can help him. A4 took PW59 to the residence of J.P. July, 2003 at 22:24 hours and, again, for 30 seconds at 22:38 hours of the same date. It was not suggested to PW59 that mobile No. 9415027068 was not his official mobile number. The call records further suggest call between 9415027068 and 9415018379 for 94 seconds on 7Singh, where they waited for him up to 02:30 a.m., but in vain. A4, then, gave PW59 his mobile No. 9415018379. PW59 fed the number in his the then official mobile No. 9415027068. From that number, he called on mobile No. 9415018379 and talked to A4. In the month of October, 2003, PW59 called on mobile No. 9415018379, but found the same switched off. PW59 recognised A4 in the court. A4, then, gave PW59 his mobile No. 9415018379. PW59 fed the number in his the then official mobile No. 9415027068. From that number, he called on mobile No. 9415018379 and talked to A4. In the month of October, 2003, PW59 called on mobile No. 9415018379, but found the same switched off. PW59 recognised A4 in the court. He stated that no case was registered in Gomti Nagar Police Station against Amit Mohan Verma, nor he was investigating any case relating to him or was supervising any case pertaining to him. It was submitted on behalf of the defence that, since no case was registered against Amit Mohan Verma, nor any case pertaining to Amit Mohan Verma was being investigated or supervised by PW59, the evidence of PW59 that, in connection with search of Amit Mohan Verma, he came across A4, when A4 held out that the mobile number of A4 was 9415018379; is not creditworthy. The defence did not bring on record any evidence, even while cross-examining PW59 or even by giving suggestion to PW59, that a police officer cannot initiate search of a wanted criminal without registration of a case against the said criminal with the Police Station with which the police officer is attached or that Amit Mohan Verma was not a wanted criminal. Further, PW59 met A4 on 6th July, 2003. Call made to A4 at mobile No. 9415018379 from mobile No. 9415027068 took place thereafter, but before October, 2003. Call records of mobile No. 9415018379 clearly suggest call taking place between the said number and mobile No. 9415027068 for 70 seconds on 6th th July, 2003 at 23:11 hours. The call records also suggest call between 9415027068 and 9415018379 for 67 seconds on 7th August, 2003 at 19:08 hours. On top of that, PW59 recognised A4 in court and said that he talked to A4 after having had met him from his mobile No. 9415027068 on the mobile No. 9415018379, which was given to him by A4 as his mobile number. PW59 had nothing to do with the case. He had nothing to gain by giving the evidence as was given by him. 35. According to PW48, he had taken the sim card for mobile No. 9415018379. Until 28th February, 2003, A4 was using mobile No. 9415028359, taken in the name of Abhay Prasoon (PW43). PW59 had nothing to do with the case. He had nothing to gain by giving the evidence as was given by him. 35. According to PW48, he had taken the sim card for mobile No. 9415018379. Until 28th February, 2003, A4 was using mobile No. 9415028359, taken in the name of Abhay Prasoon (PW43). At the request of PW43, PW48 exchanged with A4 his sim of mobile No. 9415018379 with the sim of mobile No. 9415028359. PW48 returned sim of 9415028359 to PW43 after using the same up to the month of July / August, 2003, as corroborated by PW43, but his sim No. 9415018379, which was with A4, became non-functional due to non-payment of bill. PW48 stated that Prabhakar Pandey and A4 were residing unauthorisedly in Room No. 91 of Chandrashekhar Azad Hostel. He stated that he was residing in Room No. 41, Mohammad Khan Hostel. He stated that he did not know A4 was residing in Room No. 25 of Lal Bahadur Shastri Hostel. 36. Defence proved Ex. Kha. 11 through DW2, a clerk of Lucknow University. Ex. Kha. 11 contained relevant entries in the Register suggesting, on the basis of an application (Ex. MD1), Room No. 25 of Lal Bahadur Shastri Hostel was allotted to A4. DW2 also proved Ex. Kha. 12, issued by Prof. R.B.S. Verma, Warden of Hostel, on the basis of allotment register of Chandrashekhar Azad Hostel, which suggested that Room No. 91 thereof was not allotted to any student in the academic session 2002-2003. DW2 expressed ignorance that unauthorized people live in hostel. 37. Taking all these evidence together, it would be difficult not to conclude that A4 was using mobile No. 9415018379 after 28th February, 2003. 38. The call records show that there was admitted exchange of calls between the admitted and accepted mobile number of A3 with mobile No. 9415018379 after 28th February, 2003, when the same was being used by A4. But A3 does not know A4, nor did he call on mobile No. 9415018379 to talk to A4, but called the said number to talk to PW48 on account of business, inasmuch as, the father of A3 and the father of PW48 purchased lands situate contiguous to each other in the Industrial Area, Gorakhpur. The logical conclusion would be that A3 talked to A4 after 28th February, 2003 over mobile No. 9415018379. The logical conclusion would be that A3 talked to A4 after 28th February, 2003 over mobile No. 9415018379. The link between A4 and A3 is, thus, established. It is true that, after having had talked over phone with another, it is difficult to remember four years’ later what conversation took place between the caller and the receiver, but, when the caller and the receiver both plead ignorance of each other and denied having had ever talked to each other over phone, an inference can be drawn that the subject matter of the talk was such that, if the same is disclosed, that will go against them. It is established that A4 was associated in the commission of the murder. It is not established that A3 had any other business with A4. Given the evidence as stood, the irresistible conclusion would be that A3 and A4 talked to each other in respect of something, which they wanted to keep concealed. But for the murder in question, as the evidence stands, there could be no other talk between A3 and A4, provided A3 was interested in the murder in question. 39. The evidence on record does not suggest that A3 had any independent interest in the murder in question. He, however, was a close relative of A1 and A2. It is, now, not in dispute, provided the call records are accepted as evidence, that large calls of various durations were exchanged between A2 and A3 almost on daily basis during the months of March, April and May, 2003 and they stopped suddenly soon after the murder took place. What was the subject matter of dialogue between A2 and A3 in course of such calls is not known. A relative may call another relative in the usual course of family affairs, no doubt. But, when substantial large calls are made between two relatives during a particular period and then suddenly the calls stop, even after four years, the relatives will remember the family affair, which compelled them to talk over phone for such substantially large quantum of time. A2 and A3, however, did not at all bother to remember the same. But, when substantial large calls are made between two relatives during a particular period and then suddenly the calls stop, even after four years, the relatives will remember the family affair, which compelled them to talk over phone for such substantially large quantum of time. A2 and A3, however, did not at all bother to remember the same. That would raise, in the backdrop of the link between A3 and A4 and association of A4 in the commission of the murder, a reasonable inference that the subject matter of the talk between A2 and A3 was nothing, but something to do with the murder in question, provided A2 was interested in the murder in question. 40. Call records, as were produced by the prosecution, were proved in accordance with the provisions of Section 65B of the Indian Evidence Act, 1872. In order to discredit the contents of the call records, by an application made to the court below, A1 produced a telephone bill pertaining to billing period 1st April, 2002 to 30th April, 2003 of mobile No. 9415048577 clearly stating in the application that he will produce appropriate witness(s) to prove the said bill. The object of production of the said bill was to show lesser number of calls generated from the said mobile during the said period than what had been shown in the call records produced by the prosecution. No witness was, however, called to prove the said bill. The prosecution witnesses, who proved the call records tendered in evidence by the prosecution, were also not confronted with the said bill. In the circumstances, no case of even a doubt has been cast on the contents of the call records tendered in evidence by the prosecution. Though the mobile No. 9415048577 was registered in the name of A1, but it has been conclusively established by the call records that the same used to be used by A2, inasmuch as, a call generated through the said mobile on 6th May, 2003 talked to the recipient of the call terminating at landline No. 2380091, placed at the residence of PW32 for 116 seconds. 41. According to the prosecution, A2 was interested in the murder of the victim for her husband A1 had developed a great deal of intimate relationship with the victim. Evidence of such annoyance has been brought through PW50 and PW32. 41. According to the prosecution, A2 was interested in the murder of the victim for her husband A1 had developed a great deal of intimate relationship with the victim. Evidence of such annoyance has been brought through PW50 and PW32. An unnecessary attempt was made in cross-examination of PW50 to cast an aspersion as regards her character. PW50 gave evidence pertaining to intimate relationship of A1 with the victim, which stands practically admitted. PW50 also gave evidence to establish financial support provided to the victim by A1. That is also not in dispute. If the evidence of PW50 is ignored altogether, then the incident that A2 created a ruckus in front of the house of the victim, when A1 was with the victim at her house, and escape of A1 in a car arranged by the victim, will be obliterated. In the backdrop of the evidence led by the prosecution, we are not in a position to ignore the evidence of PW50 to the effect that A2 created a ruckus in front of the house of the victim as stated above. In any event, the evidence of PW32 would, in such circumstances, supply the gap, as he had established in his evidence the concern of A2 pertaining to the victim and her sister PW50. In other words, even if the evidence of PW50 is altogether ignored, it is established, by reason of the evidence of PW32, that A2 had full knowledge that A1 is having some kind of a relationship with the victim and her sister PW50. What was the depth of such knowledge is the question. 42. At the relevant time, A2 was married to a Cabinet Minister of the State. How powerful her husband was, would be noted later. A2 was M.A.B.Ed. The husband of her elder sister was a Director of TRAI (TRIC), Government of India; whereas the husband of her second sister was on a high post in Cement Corporation, Bangalore and the husband of her third sister was an Aeronautic Engineer in Germany. Her elder brother was in a high post in a Multi National Company and the other brother was a Computer Engineer working in America. She herself was a Director of Modern Academy Public Schools. She, therefore, was an educated, intelligent and accomplished person and came from a highly placed and connected family. 43. Her elder brother was in a high post in a Multi National Company and the other brother was a Computer Engineer working in America. She herself was a Director of Modern Academy Public Schools. She, therefore, was an educated, intelligent and accomplished person and came from a highly placed and connected family. 43. The husband of A2, namely A1, was son of a police officer and his family had zamindari of many villages. His Uncle was elected six times as MLA, who had been a Minister in Uttar Pradesh Cabinet many a times. His younger Uncle was a renowned Advocate of Gorakhpur. His elder brother was Chief Manager in IOC, a Government of India Enterprise and his younger brother is a renowned businessman of Gorakhpur. He himself had a Masters’ Degree. While he was studying Law, he was drafted into politics. He was the National President of a Youth Organisation and Secretary to the committee of a State political party. He was elected for the first time as MLA in the year 1989 and, for the first time, became a Minister in Uttar Pradesh Government in 1996. Since then, he continuously remained Minister with Chief Ministers in all the Governments up to 2003. In April, 2003, under his leadership, many MLAs left the then Government, resulting in dissolution of the Government. At the same time, it has come on record that he was jailed, when the victim had visited him in jail. Therefore, the husband of A2, namely A1, was an educated, rich and a very influential political person at the relevant time with some criminal background. At the time of occurrence, A1 was about 45 years’ old. 44. At the same time, victim was aged about 20 years on the date of occurrence. The father of the victim died in 1996. She used to reside with her mother, sister and younger brother at House No. 2404, Mohalla Mishrana, district Lakhimpur Khiri, Uttar Pradesh. Her stepbrother used to reside at Rajaji Puram, Lucknow. Victim was a Poetess. On 22nd November, 1999, she met A1. In early 2000, she, along with PW50, shifted to Lucknow and started residing in the vacant house of her father’s sister at Choptia Chowk, Lucknow, until May, 2001. Since June, 2001 till August, 2001, victim and PW50 resided in House No. 1301, Bahukhandi, Lucknow, allotted to A1. Victim was a Poetess. On 22nd November, 1999, she met A1. In early 2000, she, along with PW50, shifted to Lucknow and started residing in the vacant house of her father’s sister at Choptia Chowk, Lucknow, until May, 2001. Since June, 2001 till August, 2001, victim and PW50 resided in House No. 1301, Bahukhandi, Lucknow, allotted to A1. Around that time, victim got pregnant for the first time, which pregnancy was terminated on the asking of A1. In August, 2001, through the assistance of A1, victim purchased her house in Paper Mill Colony at Rs. 1,10,000/-, of which Rs. 50,000/- was contributed by A1. In October, 2001, victim became pregnant for the second time. The said pregnancy was terminated in the natural process. On 16th May, 2002, victim visited Dr. Chandrawati (PW8) for the purpose of ascertaining whether she can conceive and safely deliver a child and obtained necessary advice to that effect. In October, 2002, at the request of the victim, A1 arranged a service for the brother of the victim. Victim was murdered on 9th May, 2003, when she had a male foetus of seven months in her uterus. This pregnancy she conceived in October, 2002. There is no dispute that, at least, the last pregnancy was through the contribution of A1. Victim was a Poet and used to attend Kavi Sammelans. That appears to be her only source of income, apart from what she received from A1 by reason of intimate relationship that A1 had developed with her. At the same time, she planed her last pregnancy and wanted to give birth to a child. Therefore, while the victim was in intimate relationship with A1, she was largely dependent on the support provided by A1 and, at the same time, ignoring the advice of A1, wanted to retain the pregnancy that she got through A1 and wanted to give birth to the child begotten by her through A1. 45. Immediately before 9th May, 2003 what was the nature of relationship between the victim and A1 has been depicted in a letter written by her, but which remained with her. The said letter was in the handwriting of the victim, is not in dispute. The said letter was tendered in evidence as Ex. Ka. 90 by the prosecution through PW50. Prosecution contended that the said letter is admissible in evidence under Section 32(1) of the Indian Evidence Act. The said letter was in the handwriting of the victim, is not in dispute. The said letter was tendered in evidence as Ex. Ka. 90 by the prosecution through PW50. Prosecution contended that the said letter is admissible in evidence under Section 32(1) of the Indian Evidence Act. The court below, according to us, correctly did not accept such contention. We, however, think that the court below could and should have looked into the contents of the said letter only for the purpose of ascertaining what was passing through the mind of the victim immediately before she was murdered as to her relationship with A1, by taking recourse to Section 32(2) of the Indian Evidence Act. The said letter spoke of the feeling of the victim that, by reason of two abortions and the then pregnancy, she was no longer that attractive and, accordingly, A1 has started neglecting her. 46. Even if the said letter is ignored, the fact remains that it has come on evidence that, before the victim was about 18 years’ old, she already had two pregnancies and both of them got aborted. She then conceived for the third time and was determined to retain her pregnancy. She retained such pregnancy for seven months before she was murdered. Thus, at around the time she was murdered, she had already lost her bodily charm. A1 had any other interest in the victim, apart from her bodily charm, is not what A1 had stated in his statement recorded under Section 313 of CrPC, although it stands established that it was he, who made the victim pregnant immediately before her death. 47. Therefore, the conclusion would be that, while A1 lost the charm in the victim, having regard to the stand taken by the victim pertaining to the pregnancy, he must have got anxious. At the same time, A2 also created the ruckus mentioned above and contacted PW32 only after the victim got pregnant for the third time. 48. It was submitted on behalf of A1 and A2 that the motive of A1 and A2 cannot run parallel because their attitude towards the victim was quite opposite. At the same time, A2 also created the ruckus mentioned above and contacted PW32 only after the victim got pregnant for the third time. 48. It was submitted on behalf of A1 and A2 that the motive of A1 and A2 cannot run parallel because their attitude towards the victim was quite opposite. It was submitted that, while A2 wanted to cause harm to the victim on the belief that she was trying to snatch away A1 from her, victim was a paramour of A1 and, that too, a loving paramour and, as such, he could not have any motive to cause any harm to the victim. 49. The post murder conduct of A1 and statements recorded by A1 under Section 313 of CrPC do not suggest that A1 regarded the victim as his loving paramour. Immediately after the murder of the victim, as has come on evidence, A1 tried to project that she is married to PW60 and also tried, in vain, to prove such marriage before the media. He denied having any physical relationship with the victim in the statements recorded under Section 313 of CrPC. He held out in statements recorded under Section 313 of CrPC that the victim was one of those people, who normally meet a Minister or a MLA for the purpose of obtaining some favour. 50. The conclusion, therefore, would be that A2 as well as A1 desired that the victim, a plebeian in comparison to A1 and A2, do not live with a child born out of her physical relationship with A1, so as to give an opportunity to her to tarnish the social, political and economical status of A1 and A2 in future. The one and the only irresistible conclusion would, therefore, be that A2 and A1 had equal motive to commit the murder of the victim. They succeeded in doing so by hatching a conspiracy between them and with A3 and A4 to accomplish the motive. While A3 was the pivot, who organised A4, A1 did not hesitate to meet A4. It has come on evidence that Akshay Sharma (PW7) was sent by A1 to Udaipur in order to enable the victim to obtain bail in connection with a theft case. PW7 stated on oath that he met A3 and A4 at the residence of A1 at Lucknow. That was told by him for the first time in the court. It has come on evidence that Akshay Sharma (PW7) was sent by A1 to Udaipur in order to enable the victim to obtain bail in connection with a theft case. PW7 stated on oath that he met A3 and A4 at the residence of A1 at Lucknow. That was told by him for the first time in the court. The fact remains that, before A4 was identified and arrested, statements of PW7 were recorded and, accordingly, he had no occasion to give a statement that he met A4 at the residence of A1 at Lucknow, prior to his giving evidence in court. 51. Taking into account the facts as above, which stand the test of scrutiny and established by evidence, there is irresistible conclusion, as we find, that A1, A2, A3 and A4 conspired with each other for the commission of the murder of the victim and, accordingly, the finding of and conviction by the court below of A1, A2, A3 and A4 under Section 120B, read with Section 302 of IPC, is not interferable. In view of such irresistible conclusion, it is not necessary for us to go into the question whether statements of A3, recorded under Section 164 of CrPC, were legally recorded or not. 52. Accordingly, appeals preferred by A1, A2, A3 and A4 fail and they are dismissed. A1, A2, A3 and A4 are in jail. They are directed to serve out the remaining part of their sentence. 53. The appeal preferred by CBI is allowed and, accordingly, the judgment under appeal, to the extent the same exonerated A5 of the offence punishable under Section 302 read with Section 34 of IPC, is set aside and A5 is convicted under Section 302, read with Section 34 of IPC, for murder of the victim. A5 is sentenced to imprisonment for life and a fine of Rs. 50,000/-, in default, he shall further undergo rigorous imprisonment for two years. The judgment under the said appeal, exonerating A5 of the offence punishable under Section 120B read with Section 302 of IPC, is upheld, inasmuch as, there is no evidence of involvement of A5 in the conspiracy. A5 is directed to surrender and serve out the sentence as above. The Criminal Revision also stands disposed of. 54. The judgment under the said appeal, exonerating A5 of the offence punishable under Section 120B read with Section 302 of IPC, is upheld, inasmuch as, there is no evidence of involvement of A5 in the conspiracy. A5 is directed to surrender and serve out the sentence as above. The Criminal Revision also stands disposed of. 54. Let a copy of this judgment be sent to the court below, along with records, with a direction to the court below to ensure compliance of the directions as above.