Judgment V.K. Sharma, J. 1. As the challenge in these appeals, arising out of a single judgment/order dated 06.12.2006, rendered by the learned Additional Sessions Judge, Fast Track Court, Shimla, Himachal Pradesh, in Sessions Trial No. 1-S/7 of 2006, State of Himachal Pradesh vs. Vishal Thapa and another, whereby the appellants herein, who shall hereinafter be referred to as the accused and denoted as A-1 Vishal Thapa and A-2 Deepak Bahadur, were jointly tried for the offences under Sections 302 and 201/34 of the Indian Penal Code (for short ‘IPC’) and were convicted and sentenced as under, the same are being disposed of by a common judgment: Name Sections Sentence A-1 Vishal Thapa 302 and 201/34 IPC Imprisonment for life and fine of ` 10,000/- and in default imprisonment for two years under Section 302 IPC and rigorous imprisonment for seven years and fine of ` 10,000/- and in default rigorous imprisonment for one year under Section 201/34 IPC. A-2 Deepak 201/34 IPC Rigorous imprisonment for seven Bahadur years and fine of ` 10,000/- and in default imprisonment for one year. All the sentences were ordered to run concurrently. 2. Briefly stated case of the prosecution is as follows: On 04.03.2006 at 9:20 p.m. one Kuldeep Rachaik (not examined) accompanied by Kanwar Singh Rachaik (PW-3) visited Police Station, Chopal, District Shimla, to lodge a report to the effect that on that day in the evening their uncle, Hariman Rachaik (PW-1) told them that a large number of crows had gathered in his field situate at Pandrot, from where very foul smell was emanating. Both of them also went there and saw that many crows had gathered in middle of the field and it was appearing as if something was buried under ground and there was very foul smell. They requested the police to visit the spot and look into the matter. Consequently, DDR No. 21, Ex. PW-3/A, dated 04.03.2006 came to be recorded in the said Police Station. As the report disclosed suspicious circumstances and it was already late in the night, a constable and a Home Guard Volunteer were deputed to secure the spot. The matter was also reported to the SDPO and SHO telephonically, who directed PW-5, ASI Gulam Akbar, to visit the spot alongwith other police officials in the following morning and told him that they would also follow suit. The matter was also reported to the SDPO and SHO telephonically, who directed PW-5, ASI Gulam Akbar, to visit the spot alongwith other police officials in the following morning and told him that they would also follow suit. He was also asked to request the SDM to visit the spot. 3. On 05.03.2006 PW-14, SI Chaman Lal, the then SHO Police Station, Chopal, alongwith SDPO, Theog, went to the spot where SDM, Chopal, Niab Tehsildar, Chopal, PW-1 Hariman and PW-5 ASI Gulam Akbar were already present. The SDM directed to dig the spot in his presence. Accordingly, Rai Bahadur (PW-4) and one Kaman Singh (not examined) were engaged to carry out the digging. As a result, one dead body with abdomen open and intestines having bulged out was found buried there. The police had also called a Medical Officer, PW-10, Dr. Surender Kumar, on the spot. The police also got the spot photographed before digging and subsequently after the dead body was noticed and recovered, vide photographs, Ex. A-1 to A-26. The dead body was identified by PW-1 Hariman and the aforesaid Kaman Singh as that of Ajay, the deceased. It was also identified by Rai Bahadur (PW-4) and A-2 Deepak Bahadur. The dead body was examined on the spot by the Medical Officer. Inquest report, Ex. PW-1/B, was prepared by the police. 4. Thereafter, statement of PW-1, Hariman, was recorded by PW-14, Shri Chaman Lal, under Section 154 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’), which is in Hindi and when translated into English, is as follows: “Stated that I am resident of the address mentioned above and an agriculturist. My land is situate at Pandrot, where I have raised an apple orchard besides constructing a room. Nepali Gurkhas, namely, Ajay (deceased) and Vishal (A-1) had worked in my land intermittently since July last year. However, for the last two months both of them had been continuously working with me in the aforesaid land and were residing together in the said room and were joint in mess. Whereas the deceased was aged about 22/23 years, A-1 Vishal Thapa was also aged about 22 years. On 02.02.2006, at about 3 p.m., I had gone to my orchard where A-1 Vishal met me. Whereas the deceased was aged about 22/23 years, A-1 Vishal Thapa was also aged about 22 years. On 02.02.2006, at about 3 p.m., I had gone to my orchard where A-1 Vishal met me. I asked him about the whereabouts of the deceased, on which he told that he (deceased) had decamped the previous night and had also stolen ` 1500/- belonging to him and had also taken along his belongings. In this very orchard the deceased and A-1 Vishal Thapa alongwith Rai Singh and Deepak Bahadur(A-2) Gurkhas had together prepared the field. On 12.02.2006 Vishal (A-1), Rai Singh and Deepak (A2) alongwith wives of Rai Singh and Deepak, who were accompanied by my daughter Reeta had together sown potatoes in that field. I had also gone to the orchard on that day at noon. On 26.02.2006 on the day of Shivratri A-1 Vishal told me that he would go to Nepal and come back within 10/15 days alongwith 3/4 Nepali labourers and he asked me to pay ` 4000/- to him, which I gave to him in cash and he went to Nepal on the same day. On 04.03.2006 at about 4/5 p.m. I went to my orchard. There a large number of crows had gathered in middle of the field in which potatoes were sown. I also went near that place where very foul smell was emanating and it was appearing as if something was buried there. I apprised my nephews Kuldeep and Kanwar Singh (PW3) and asked them to report the matter to the police and accordingly they had gone to lodge report at Police Station, Chopal, the previous night. Today (05.03.2006) the police, SDM and Niab Tehsildar, Chopal, came to the spot and got the aforesaid place in the field dug from where dead body of the deceased with injuries on the nose and left side of the head and intestines bulging out, has been recovered. I am of the firm belief that the deceased has been done to death by Vishal by causing injuries with some weapon and buried his dead body in the potato field, as it was he who had told me on 02.02.2006 that the deceased had decamped the previous night alongwith a sum of ` 1500/- belonging to him and on 26.02.2006 after taking ` 4000/- from me has himself absconded to Nepal. I have heard the statement, which is correct.” Consequently, FIR, Ex. PW-13/A, was registered. 5. PW-10, Dr. Surender Kumar, who was present at the time of exhumation of the dead body of the deceased had carried out preliminary autopsy on the spot and observed and opined as under vide report, Ex. PW-10/A; “External appearance: Condition of Exhumed body. Body was buried in the field of Sh. Hariman Subject: at Pandroth. It was exhumed in the presence of S.D.M. Stout, amaciated Chopal and other officials (Required). It is of average built decomposed etc. Nepali person and is identified as Ajay. Foul smell present there, lots of flies present. Abdominal wall not present and abdominal cavity soiled with soil. Wounds, bruises, (1) (Rt) Side of nose contain lacerated wound 4x1 cm size, position size, bone deep at the bridge of nose. (2) Penetrating injury at nature etc. lateral angle of. (3) Post mortem eating away (Lt) eye. Mark of ligature Not present. Defect present over abdomen. on neck & dissection etc. Clothes: Bluish black jacket stained with soil, torn white shirt, Navy blue lower, vest green in colour torned, underwear green in colour. Cranium and spinal cord: Scalp Skull and Vertebrae Membranes-Brain Spinal Cord There was Not examined Not examined crackling of bones of (Rt) Parietotemporal region Abdomen: The abdominal wall was not present. Muscles, bones, joints: Injury Disease of deformity Fractures Dislocations (1) (Rt) Side of -Nil- # -Nil nose contain Parietotemporal lacerated wound bones 4x1 cm size, bone deep. (2) Penetrating injury at lateral angle of (Lt) eye. Opinion: I Dr. Surender Kumar M.B.B.S. is of the opinion that the deceased might have died by head injury, but the final opinion will be given by the Forensic experts.” 6. Thereafter, the dead body was sent for further post mortem examination and Forensic opinion to I.G.M.C., Shimla, vide application, Ex. PW-11/A, where a team of doctors carried out autopsy vide report, Ex. PW-11/B, proved in evidence by PW-11, Dr. Piyush Kapila, who has given the following account of the injuries and cause of death: “I examined the dead body in the presence of other members and noticed the following injuries:- 1. There was around 4x1x bone deep wound present on the bridge of nose towards right side, underline nasal bone and maxilla present, antemortem in nature. 2. There was a penetrating injury on left eye’s angle (Lateral) antemortem in nature. 3. There was around 4x1x bone deep wound present on the bridge of nose towards right side, underline nasal bone and maxilla present, antemortem in nature. 2. There was a penetrating injury on left eye’s angle (Lateral) antemortem in nature. 3. There was a gross contusion of scalp on right side after skin reflection, with gross antemortem fracture of skull bone with multiple radiating fissured fractures and pieces of bone. Brain was liquefied (putrified). 4. There were multiple fractures on skull on the right side of temporal and parietal bone. 5. Intact membranes but brain was liquefied. However, no contrecoup Haemorrhage could be appreciated. There was no abnormality except parchmentisation of skin. Except upper end of trachea no thoracic organ was present. There was a gross defect in the abdominal wall which was post mortem in nature. No abdominal visera was present. The mouth and face skin was present parchmentised skin preserved with partial mummification. Also penis and testes in scrotum present and were normal. Based on the above findings we were of the opinion that deceased died as a result of antemortem head injury leading to death. The probable time which elapsed between injury and death was instantaneous and between dead and post mortem was around 4 to 5 weeks. We issued report which is Ext. PW-11/B.(which is 4 leaves and 6 pages). As per my examination I have ruled out the possibility of fall on the basis of that there was no contecoup haemorrhage. Head injury could be caused by weapon shown as Ext. P-3 in the court. This injury was sufficient to cause death in the normal course. The report Ext. PW-11/B bears the signatures of Dr. Dhillon and Sekhon.” 7. On 05.03.2006 the aforesaid room belonging to PW-1, Hariman, where the deceased and A-1 Vishal Thapa were stated to be residing together, was searched and a notebook and two photographs were recovered by the police vide memo, Ex. PW-1/E. 8. The report Ext. PW-11/B bears the signatures of Dr. Dhillon and Sekhon.” 7. On 05.03.2006 the aforesaid room belonging to PW-1, Hariman, where the deceased and A-1 Vishal Thapa were stated to be residing together, was searched and a notebook and two photographs were recovered by the police vide memo, Ex. PW-1/E. 8. It was revealed during investigation that a quarrel had taken place between the deceased and A-1 Vishal Thapa at the ‘Dera’ (residential quarter) of PW-4, Rai Bahadur, at Maravag (eMkox) on 01.02.2006 during night and both of them had gone to their quarter at about 9.45 p.m. On 12.03.2006 A-1 Vishal Thapa while returning from Nepal had called PW-1, Hariman from Haridwar on his mobile phone to inquire whether there was anything abnormal at Chopal and he had told him that everything was normal. This information was passed on by him to the police, who laid a ‘Naka’ at Shogi, near Shimla, where A1 Vishal Thapa was nabbed by the police while traveling in a bus bound from Tanakpur to Shimla. 9. Pursuant to the disclosure statements made by A-1 Vishal Thapa to the police on 13.03.2006 and 15.03.2006, the places where the dead body of the deceased was initially kept in the nullah and thereafter with the assistance of A-2 Deepak Bahadur the same was buried in the field of PW-1, Shri Hariman, were identified by him and recoveries of the weapon of offence, that is, a wooden plank from the nullah and implements, that is, ‘belcha’ and ‘kassi’ said to have been used to burry the dead body, were also effected at his instance. Similarly, A-2 Deepak Bahadur also disclosed and identified the places in the nullah from where the dead body of the deceased was allegedly removed by A-1 Vishal Thapa with his assistance and then buried in the field of PW-1 Hariman. 10. On 16.06.2003 statements under Section 164 Cr.P.C. of PW-4 Rai Bahadur and Jiwan Thapa (not examined) were also got recorded by the police from the Judicial Magistrate First Class, Rohru, Camp at Chopal. 11. Ex. PW-6/A is Aks Sajra and Ex. PW-6/B jamabandi of the place of recovery of the dead body. Ex. PW-14/A to Ex. PW-14/D are the site plans of the place of recovery of dead body, place of occurrence and the spot where the dead body was initially disposed in the nullah. 12. 11. Ex. PW-6/A is Aks Sajra and Ex. PW-6/B jamabandi of the place of recovery of the dead body. Ex. PW-14/A to Ex. PW-14/D are the site plans of the place of recovery of dead body, place of occurrence and the spot where the dead body was initially disposed in the nullah. 12. On completion of investigation, the accused were sent up to face trial. When charged, they did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined as many as 14 witnesses. 13. On close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. While denying in toto the incriminating circumstances appearing against them in the prosecution evidence, they pleaded innocence and false implication. However, they did not lead any evidence in defence. 14. On conclusion of the trial both the accused were convicted and sentenced, as already noticed. 15. We have heard the learned Senior Additional Advocate General for the appellant-State, the learned counsel for the respondents-accused and perused the record. 16. Whereas the impugned judgment holding the appellants guilty has been attacked by the defence mainly on the grounds that the circumstantial evidence led by the prosecution in support of its case is not sufficient in content to uphold the verdict, the same suffers from glaring improbabilities which go to the very root of the case and investigation carried out by the police is also not above board, the findings returned by the learned Trial Court have been supported by the prosecution. 17. In absence of there being any ocular account about the occurrence leading to the death of the deceased, the case rests solely on circumstantial evidence. By now it is fairly settled by a series of authoritative pronouncements of law rendered by the Hon’ble Apex Court, including Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 Supreme Court Cases 116, that in order to return a finding of guilt in a case based on circumstantial evidence, the following requirements stated in para 153 of the report are liable to be established by the prosecution: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made (SCC para 19, p. 807: SCC (Cri) p. 1047. “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the fact must have been done by the accused.” 18. In Vithal Eknath Adlinge vs. State of Maharashtra, AIR 2009 Supreme Court 2067, while reiterating the above principles, enunciated in Sharad Birdhichand Sarda (supra), the Hon’ble Apex Court has further held as under, vide paras 6 to 19 of the report:- “6. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilty of any other person. (See Hukam Singh v. State of Rajasthan ( AIR 1977 SC 1063 ), Eradu and Ors. V. State of Hyderabad ( AIR 1956 SC 316 ), Earabhadrappa v. State of Karnataka ( AIR 1983 SC 446 ), State of U.P. v. Sukhbasi and Ors. ( AIR 1985 SC 1224 ), Balwinder Singh v. State of Punjab ( AIR 1987 SC 350 ), Ashok Kumar Chatterjee v. State of M.P. ( AIR 1989 SC 1890 ). V. State of Hyderabad ( AIR 1956 SC 316 ), Earabhadrappa v. State of Karnataka ( AIR 1983 SC 446 ), State of U.P. v. Sukhbasi and Ors. ( AIR 1985 SC 1224 ), Balwinder Singh v. State of Punjab ( AIR 1987 SC 350 ), Ashok Kumar Chatterjee v. State of M.P. ( AIR 1989 SC 1890 ). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab ( AIR 1954 SC 621 ), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 7. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence….”. 8. In Padala Veera Reddy v. State of A.P. and Ors. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence….”. 8. In Padala Veera Reddy v. State of A.P. and Ors. ( AIR 1990 SC 79 ), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused; (3) the circumstances, taken cumulatively should form a conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 9. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl. LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inference, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 10. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 10. Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted”. 11. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. 12. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, ( AIR 1952 SC 343 ), wherein it was observed thus: “it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 13. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 13. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, ( AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction should be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 14. These aspects were highlighted in State of Rajasthan v. Raja Ram ( 2003 (8) SCC 180 ), State of Haryana v. Jagbir Singh and Anr. ( 2003 (11) SCC 261 ) and Kusuma Ankama Rao v. State of A.P. (Criminal appeal No. 185/2005) disposed of on 7.7.2008). 15. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [ 2005 (3) SCC 114 ] it was noted as follows: “22. 15. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [ 2005 (3) SCC 114 ] it was noted as follows: “22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW-2.” 16. In Ramreddy Rajeshkhanna Reddy v. State of A.P. [ 2006 (10) SCC 172 ] it was noted as follows: “27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration”. (See also Bodh Raj v. State of J&K ( 2002(8) SCC 45 ).)” 19. In a recent judgment reported as Madhu vs. State of Kerala, (2012) 2 Supreme Court Cases 399, the Hon’ble Apex Court has made the following observations with regard to evaluation of circumstantial evidence, vide para 5 of the report: “5. The care and caution with which circumstantial evidence has to be evaluated stands recognised by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, as accused would be entitled to the benefit of doubt.” 20. In the present case, the prosecution has relied upon the following circumstances to prove its case against A-1 Vishal Thapa and the learned Court below has held the same to be duly proved: 1. The deceased and A-1 Vishal Thapa having been last seen together. 2. False explanation given by A-1 Vishal Thapa about whereabouts of the deceased. 3. Telephonic inquiry made by A-1 Vishal Thapa from PW-1, Shri Hariman from Haridwar on 12.03.2006, whether there was anything abnormal at Chopal. 4. Disclosure statements made by A-1 Vishal Thapa and A-2 Deepak Bahadur and the consequent recoveries/discoveries effected/made by the police pursuant thereto. 21. The case is liable to be looked into in the light of the law laid down by the Hon’ble Supreme Court on appreciation of circumstantial evidence as above and we embark upon the exercise by taking up the circumstances one by one. Circumstance No. 1 22. Be it stated at the very outset that in para 9 of the impugned judgment the learned Trial Judge has proceeded on the premises that “It is also an admitted fact that deceased Ajay was found in the company of accused Vishal on 1.2.06 at about 9.30 P.M.” However, in reply to question No. 2 of the statement under Section 313 Cr.P.C. A-1 Vishal Thapa has categorically denied this circumstance. 23. This circumstance is based on the statement of PW-4, Shri Rai Bahadur, and one Jiwan Thapa (not examined). It is stated by PW-4, Shri Rai Bahadur, that he was residing at Maravag for the last 15/16 years. The deceased (Ajay) and A-1 Vishal Thapa were working with PW-1, Shri Hariman and were residing in his orchard. On 01.02.2009 the deceased had come to his residence at about 9 a.m. Thereafter, he alongwith the deceased and A-2 Deepak Bahadur went for fishing. According to the witness, they had also taken liquor. The deceased (Ajay) and A-1 Vishal Thapa were working with PW-1, Shri Hariman and were residing in his orchard. On 01.02.2009 the deceased had come to his residence at about 9 a.m. Thereafter, he alongwith the deceased and A-2 Deepak Bahadur went for fishing. According to the witness, they had also taken liquor. They brought fish and came back at about 9.30 p.m. As soon as they reached the quarter, A-1 Vishal Thapa came there and a quarrel ensued between him and the deceased, as the former was asking the latter as to why he had gone for fishing without him. The witness separated them. Then, firstly, the deceased went out of the residence of the witness followed by A-1 Vishal Thapa, who also left after about five minutes. In cross-examination he has stated that he was knowing A-1 Vishal Thapa and the deceased for the last one year since when they were working with PW-1, Shri Hariman. They used to visit him normally. His residence is situate at a distance of about 2 kilometers. According to him, after the quarrel, the deceased and A-1 Vishal Thapa had left his quarter at about 9:45 p.m. They had told him that they were going to their residence. 24. What emerges out of a combined and harmonious reading of the above deposition of PW-4, Shri Rai Bahadur, is that on 01.02.2006 at about 9.30 p.m. A-1 Vishal Thapa had gone to his residence. Thereafter, a quarrel had taken place between the deceased and A-1 Vishal Thapa, as the latter had asked the former as to why he had gone for fishing without him. However, the witness had separated and pacified them. Then, firstly, the deceased went from there, followed by A-1 Vishal Thapa, who also left after about five minutes, meaning thereby that four persons, namely PW-4, Shri Rai Bahadur, the deceased, A-2 Deepak Bahadur and A-1 Vishal Thapa were together at the residence of PW-4 Shri Rai Bahadur on 01.02.2006 between 9.30 p.m. to 9.45 p.m. Thereafter, firstly, the deceased left that place followed by A-1 Vishal Thapa, who also left after about five minutes. Thus, in view of this evidence, when the deceased had left the residence of PW-4, Shri Rai Bahadur, five minutes prior to A-1 Vishal Thapa, it cannot be said that both of them were last seen together in the strict sense of the term. Thus, in view of this evidence, when the deceased had left the residence of PW-4, Shri Rai Bahadur, five minutes prior to A-1 Vishal Thapa, it cannot be said that both of them were last seen together in the strict sense of the term. Admittedly, the deceased had left first and A-1 Vishal Thapa only after five minutes thereafter. Though the further case of the prosecution is that thereafter the deceased had also visited the ‘Dera’ of the aforesaid Jiwan Thapa at about 10 p.m. followed by A1 Vishal Thapa and thereafter both of them had gone together to their ‘Dera’, yet presence of Jiwan Thapa could not be procured by the prosecution for making statement before the learned Trial Court, as is apparent from zimni order dated 22.09.2006 recorded by the said court. Even otherwise the deposition of PW-4, Shri Rai Bahadur, on this score does not inspire much confidence for the reason that admittedly he was also associated by the police to exhume the dead body of the deceased on 05.03.2006, but had not disclosed this fact to the police at that time and his statement under Section 161 Cr.P.C., which is available on the record of the case, was recorded by the police quite belatedly only on 08.03.2006 and still further his statement under Section 164 Cr.P.C. was got recorded by the police through Judicial Magistrate, Court No. 2, Rohru, Camp at Chopal, much thereafter, on 16.03.2006. 25. Even otherwise the time gap between the deceased and A-1 Vishal having been last seen together on 01.02.2006 at about 9:45 p.m. and recovery of the dead body of the former on 05.03.2006 is too long to be taken into consideration in the peculiar facts and circumstances of the present case. Reliance placed on Arun Bhakta Alias Thulu vs. State of West Bengal, (2008) 17 Supreme Court Cases 367, wherein it has been held as under by the Hon’ble Apex Court vide paras 9 and 10: “9. In State of U.P. v. Satish it was noted as follows: (SCC p. 123, para 22) “22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.” 10. In Ramreddy Rajesh Khanna Reddy v. State of A.P. it was noted as follows: (SCC p. 181, para 27) “27. The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.”” It being so, neither this circumstance can be said to be of a definitive and conclusive nature and tendency nor proved beyond reasonable doubt. Circumstance No. 2 26. PW-1, Shri Hariman and PW-4 Shri Rai Bahadur have stated about this circumstance. According to PW-1, Shri Hariman, on 02.02.2006 at about 3 p.m. he had gone to his orchard where A-1 Vishal Thapa had met him. On inquiry he had told that the deceased “took away Rs. 1500/- from him and went to Nepal alongwith his belongings”. 27. PW-4, Shri Rai Bahadur, has stated that the following day (02.02.2006) A-1 Vishal Thapa met him on the road at about 5 p.m. and told that the deceased “took his Rs. 1500/-and ran away alongwith belongings”. This is the entire evidence on this circumstance. 28. 1500/- from him and went to Nepal alongwith his belongings”. 27. PW-4, Shri Rai Bahadur, has stated that the following day (02.02.2006) A-1 Vishal Thapa met him on the road at about 5 p.m. and told that the deceased “took his Rs. 1500/-and ran away alongwith belongings”. This is the entire evidence on this circumstance. 28. As far as the testimony of PW-1, Shri Hariman, relating to this circumstance is concerned, it would be seen that he had stated about it for the first time while making statement under Section 154 Cr.P.C. to the police after the dead body of the deceased was exhumed on 05.03.2006 and thus does not inspire intrinsic confidence. Furthermore, the way his statement as PW-1 has been recorded by the learned Trial Court leaves much to be desired. As per prosecution, intimation about hovering of crows in the potato field, belonging to PW1, Shri Hariman, and very foul smell emanating from that place and thus arousing suspicion that something had been buried there, was received on 04.03.2006 at 9.20 p.m. on the information given to the police by one Kuldeep Rachaik (not examined) accompanied by PW-3 Kanwar Singh Rachaik vide DDR, Ex. PW-3/A, and it was thereafter that the dead body of the deceased was exhumed from that place on 05.03.2006. However, in his deposition as PW-1, Shri Hariman, has stated that on 02.02.2006 at about 3 p.m. he had gone to his orchard where A-1 Vishal Thapa met him. On inquiry about the deceased, he told that the deceased “took away Rs. 1500/- from him and went to Nepal alongwith his belongings”. On 12.02.2006, he again went to his land and found crows hovering there and thereby arousing the above suspicion. Accordingly, he called PW-3, Kanwar Singh, and sent him to the Police Station to report the matter on the same day and two constables had reached his land on that very day. On 13.02.2006 DSP, SDM and Naib Tehsildar also reached there. He has further stated that “on Shivratri day 26.03.2006 Vishal had took a sum of Rs. 4000/- from him for bringing the labour from Nepal and I had paid the money to him. Police dug the land and found the dead body of one person named Ajay. I and other Gurkhas identified the dead body. On the head I had seen 3-4 injury marks on the body of Ajay deceased. 4000/- from him for bringing the labour from Nepal and I had paid the money to him. Police dug the land and found the dead body of one person named Ajay. I and other Gurkhas identified the dead body. On the head I had seen 3-4 injury marks on the body of Ajay deceased. I had also noticed intestines had been eaten by some animals.” In further examination-in-chief he has stated in the end that “about 4-5 days prior to 12.02.2006 deceased Ajay and accused Vishal had met him”. As far as the statement that the deceased alongwith A-1 Vishal Thapa had met PW-1, Shri Hariman, about 4-5 days prior to 12.02.2006, meaning thereby that on or about 7/8.02.2006 the deceased was alive in contradiction to the case of the prosecution that he was killed by A-1 Vishal Thapa during the night intervening 1/2.02.2006, is concerned the same is in utter contradiction to the Hindi Version of his statement, which as per settled legal position, is the primary evidence, as per which it was only A-1 Vishal Thapa, who had met PW-1, Shri Hariman, about 4-5 days prior to 12.02.2006. It being so, the English version of his statement that the deceased alongwith A-1 Vishal Thapa had met him about 4-5 days prior to 12.02.2006 is liable to be excluded from consideration. Similarly, that part of the statement wherein he has stated that Shivratri festival fell on 26.03.2006 can also be safely ignored for the reason that as per calendar for the year 2006, Shivratri festival fell on 26.02.2006. Thus, it can be safely inferred that the date has been incorrectly recorded as 26.03.2006 instead of 26.02.2006. However, insofar as the statement of the witness that he again went to his land on 12.02.2006 and found crows hovering there, giving rise to the above suspicion cannot be lightly overlooked as on 12.02.2006 potatoes were sown in the field from where the dead body of the deceased was later on exhumed. PW-1, Shri Hariman, has categorically stated in the end of 13th line and beginning of 14th line of his deposition as PW-1 at page 1 of English record that “I had sown potatoes”. PW-1, Shri Hariman, has categorically stated in the end of 13th line and beginning of 14th line of his deposition as PW-1 at page 1 of English record that “I had sown potatoes”. This part of his deposition is in continuity to his visit to his land on 12.02.2006 and sending information to the police through PW3, Shri Kanwar Singh, and arrival of two police constables on the same day, that is, 12.02.2006 followed by arrival of DSP, SDM and Naib Tehsildar on the spot on 13.02.2006. This aspect of the matter has been considered by the learned Trial Court vide para 34 of the impugned judgment, which is extracted below: “34. Learned counsel Sh. Himanshu Panwar, urged that there is variations and contradictions in the statement of PW-1 Sh. Hariman Rachaik. According to him the information to Police Station was sent on 12.2.2006 and police had reached the spot along with SDM, DSP on 13.2.2006. His testimony further showed that on 26.3.2006 Vishal had taken a sum of Rs. 4000 from him to bring labourers. If these facts were true, there was no occasion for the Police to recover the dead body on 5.3.2006. PW-1 Sh. Hariman is resident of village Pandroth and exact date and place cannot be remembered, he might have given wrong date but the evidence on record led by the prosecution sufficiently proved that the crows and vultures were found hovering over the field of Hariman Rachaik on 4.3.2006 and on that day Hariman Rachaik called PW-3 Sh. Kanwar Singh to his field and thereafter Kanwar Singh went to police Station. The substratum of the evidence led by the prosecution sufficiently proved that dead body was recovered on 5.3.2006 and in my humble opinion there is no contradiction or falsity in the prosecution case. The cogent and reliable evidence cannot be ignored by the court. This contention has no legal force.” However, the narrative, as stated by PW-1, Shri Hariman, and noticed hereinabove, cannot be lightly overlooked in the peculiar facts and circumstances of the present case, as the Investigating Officer, PW-14 SI Chaman Lal, has stated during cross-examination that PW-1, Shri Hariman, was visiting his orchard daily. PW-1, Shri Hariman, has also admitted during cross-examination that potatoes were sown by him with the help of Gurkhas on 12.02.2006. PW-1, Shri Hariman, has also admitted during cross-examination that potatoes were sown by him with the help of Gurkhas on 12.02.2006. However, his further statement that potatoes were not sown in the field where the dead body was found cannot be believed to be true in the face of the deposition of PW-4, Shri Rai Bahadur, who has stated that “on that very place Vishal had sown the potatoes himself”, which part of his (PW-4, Shri Rai Bahadur) testimony does not fit into the earlier part of his deposition wherein he has stated that all of them had sown the potatoes and appears to be a deliberate deviation to show, though unsuccessfully, that as A-1 Vishal Thapa alone had sown potatoes in that field, dead body of the deceased could not be noticed by others on that day, that is, 12.02.2006. 29. It is in evidence that on 12.02.2006 A-1 Vishal Thapa, PW4 Shri Rai Bahadur and A-2 Deepak Bahadur alongwith wives of Rai Bahadur and Deepak Bahadur accompanied by daughter of PW-1, Shri Hariman, by name Reeta, had together sown potatoes where the dead body of the deceased was allegedly buried by both the accused during the night of 02.02.2006. Thus, it was highly improbable that at that time the dead body of the deceased, which was later on exhumed on 05.03.2006, was not noticed by any one on 12.02.2006 when potatoes were sown in that field. 30. In view of the above, it appears that the factum of a human body having been buried in the potato field had already surfaced at least on 04.03.2006, that is why a police Constable and a Home Guard volunteer were deputed by the police to secure the spot during night and the matter was also reported by PW-5 ASI Gulam Akbar to the SDPO and SHO telephonically on 04.03.2006 itself, who had directed him to visit the spot alongwith other police officials in the following morning and told him that they would also follow suit. Furthermore, the SDM was also requested to visit the spot. Still further, a Medical Officer (PW-10, Dr. Surender Kumar) was also called to the spot. All this gives an inkling that a deliberate twist was given to the case which also castes some doubt on the very genesis of the prosecution case. 31. Furthermore, the SDM was also requested to visit the spot. Still further, a Medical Officer (PW-10, Dr. Surender Kumar) was also called to the spot. All this gives an inkling that a deliberate twist was given to the case which also castes some doubt on the very genesis of the prosecution case. 31. Furthermore, the allegation that the dead body of the deceased, which was initially disposed of by A-1 Vishal Thapa in the nullah, was later on buried by him in such a conspicuous place as the potato field of PW-1, Shri Hariman, also does not stand to reason and appears to be highly improbable. 32. As already observed, PW-4, Shri Rai Bahadur, was also associated by the police during exhumation of the dead body of the deceased on 05.03.2006. However, he had not disclosed about this circumstance to the police at that time. It has also been already noticed that his statement under Section 161 Cr.P.C. was recorded by the police quite belatedly only on 08.03.2006 and still further his statement under Section 164 Cr.P.C. was got recorded by the police through the Judicial Magistrate, Court No. 2, Rohru, Camp at Chopal, much thereafter on 16.03.2006. It being so, his deposition also does not inspire instant and intrinsic confidence. Circumstance No. 3 33. This circumstance is based on the sole testimony of PW1, Shri Hariman, who has stated that on 12.03.2006 A-1 Vishal Thapa had made a telephone call to him from Haridwar and had inquired whether there was anything abnormal in Chopal and I had told him everything was normal”. This circumstance has been pressed into service by the prosecution to prove the guilty mind of A-1 Vishal Thapa. In this regard, it would be seen that it is alleged that after a quarrel had taken place between the deceased and A-1 Vishal Thapa, as the deceased had gone for fishing alongwith PW-4, Shri Rai Bahadur and A-2 Deepak Bahadur without taking A-1 Vishal Thapa along and consequently the deceased was killed at the hands of A-1 Vishal Thapa. The motive for commission of the crime as ascribed by the prosecution to A-1 Vishal Thapa is, in the peculiar facts and circumstances of the present case, of a very weak nature. The motive for commission of the crime as ascribed by the prosecution to A-1 Vishal Thapa is, in the peculiar facts and circumstances of the present case, of a very weak nature. It does not stand to reason and even otherwise appears to be highly improbable that a person would kill his companion with whom he is joint in residence and mess for the last about one year on such a trifling matter and more so when there is nothing to suggest that there was any prior ill-will between the two. Furthermore, PW-4, Shri Rai Bahadur, has stated that he alongwith the deceased and A-2 Deepak Bahadur had gone for fishing, brought fish, had also taken liquor and reached back his residence at about 9.30 p.m. and A-1 Vishal Thapa had also come there soon thereafter, meaning thereby that it is not the case of the prosecution that A-1 Vishal Thapa had also consumed liquor. However, the fact remains that admittedly the deceased had taken liquor alongwith PW-4, Shri Rai Bahadur, and A-2 Deepak Bahadur. 34. In any case it is not understandable that had A-1 Vishal Thapa killed the deceased during the night intervening 1/2.02.2006 and had disposed of the dead body in the nullah and thereafter on 02.02.2006 during night buried the same in the potato field belonging to PW-1, Shri Hariman, with the help of A-2 Deepak Bahadur, after which he had gone to Nepal after taking ` 4000/- from PW-1, Shri Hariman, with a promise that on return he would bring additional labour for him, he would have been the last person to have returned from his native country, Nepal to the area of Chopal where he had allegedly committed the murder of the deceased, and that too alongwith his sister and wife who were with him alongwith another person by name Tikka Ram, when he was intercepted by the police at Shogi while traveling in Tanakpur-Shimla bus, as stated by PW-1, Shri Hariman, during cross-examination. 35. In view of the above, it appears that an usual inquiry made by A-1 Vishal Thapa from Haridwar whether everything was all right in the area, a deliberate twist was given to the same to show that he was inquiring about anything abnormal at Chopal and thus it simply appears to be a make belief story. It being so, this circumstance also does not inspire much confidence. It being so, this circumstance also does not inspire much confidence. Circumstance No. 4 36. This circumstance relates to the disclosure statements allegedly made by A-1 Vishal Thapa and the consequent recoveries alleged to have been made by the police at his behest. The first statement said to have been made by him on 13.03.2006 is Ex. PW-3/B, a bare perusal whereof would go to show that it is in the nature of an all embracing confession to the effect that on 01.02.2006 during night he had killed his companion, the deceased, with a danda and had kept the dead body during the night in the nullah and thereafter on 02.02.2006 during night had buried the dead body in a pit in the potato field with the assistance of A-2 Deepak Bahadur and both of them alone are in the know of that place and that he could get the same identified. The inculpatory part of the statement, being in the nature of a confession to the police, is hit by Sections 25 and 26 of the Evidence Act. In pursuance of the above statement A-1 Vishal Thapa is said to have identified the aforesaid places vide memo, Ex. PW-1/F, which again is in the nature of an all embracing confession and is thus liable to be excluded from consideration. 37. Similarly, A-1 Vishal Thapa is also said to have made another disclosure statement, Ex. PW-5/A, on 15.03.2006 relating to the alleged weapon of offence that is danda (wooden plank) Ex. P-3 and belcha, Ex. P-1 and kassi, Ex. P-2, said to have been used by him to bury the dead body of the deceased with the assistance of A-2 Deepak Bahadur, which are said to have been recovered vide memos, Ex. PW-7/A, dated 15.03.2006 and Ex. PW-5/C dated 15.03.2006. Again, this disclosure statement and the recovery memos are in the nature of all embracing confessions deserving the same treatment as above. 38. Apart from the disclosure statements and the recovery memos being in the nature of all embracing confessions, the same also suffer from other infirmities. PW-7/A, dated 15.03.2006 and Ex. PW-5/C dated 15.03.2006. Again, this disclosure statement and the recovery memos are in the nature of all embracing confessions deserving the same treatment as above. 38. Apart from the disclosure statements and the recovery memos being in the nature of all embracing confessions, the same also suffer from other infirmities. Insofar as the identification of the places where the dead body was allegedly initially disposed of in the nullah and later on buried in the potato field of PW-1, Shri Hariman, are concerned, these places were already in the know of the police as far back as 05.03.2006 and nothing new was discovered pursuant to the disclosure statement allegedly made by A-1 Vishal Thapa. As far as the recovery of wooden plank, Ex. P-3, is concerned there is no evidence to connect the same with commission of the alleged crime, as the same was not sent for chemical examination. Similarly, belcha and kassi also do not stand connected with the commission of the alleged crime. 39. True it is that “fact discovered” within the meaning of Section 27 of the Evidence Act is not equivalent to the object produced and instead “information” relating to concealment of an object concerning the offence is also “a fact discovered” and it is relevant though by such “information” no material object was discovered as has been held by the Privy Council in Pulukuri Kottaya and others vs. Emperor (Sir John Beaumont), AIR 1947 Privy Council 67, and the Hon’ble Supreme Court in Pandurang Kalu Patil and another vs. State of Maharashtra, AIR 2002 Supreme Court 733 and State (N.C.T. of Delhi) vs. Navjot Sandhu, AIR 2005 Supreme court 3820. However, as already observed, there is no evidence to connect, wooden plank, Ex. P-3, with commission of the alleged crime as the same was not sent for chemical examination, discovery thereof pursuant to the alleged statement made by A-1 Vishal Thapa under Section 27 of the Evidence Act is of no consequence. There is also no independent evidence to connect belcha, Ex. P-1 and kassi, Ex. P-2 with commission of the alleged offence. 40. Furthermore, according to the prosecution, disclosure statement, Ex. PW-3/B, dated 13.03.2006 was made by A-1 Vishal Thapa in the Police Station at Chopal. However, PW-19, Shri Hariman, who is a marginal witness to this statement, as also to the consequent identification memo, Ex. P-1 and kassi, Ex. P-2 with commission of the alleged offence. 40. Furthermore, according to the prosecution, disclosure statement, Ex. PW-3/B, dated 13.03.2006 was made by A-1 Vishal Thapa in the Police Station at Chopal. However, PW-19, Shri Hariman, who is a marginal witness to this statement, as also to the consequent identification memo, Ex. PW-1/F, has stated during cross-examination that “at police station no paper was prepared. Documents were prepared at the spot”. It castes a serious doubt on the veracity of disclosure statement, Ex. PW-3/B. 41. The sole circumstance on the basis of which A-2 Deepak Bahadur has been arraigned as an accused in this case, apart from the aforesaid disclosure statements said to have been made by A-1 Vishal Thapa and the consequent recoveries/discoveries, which stand already excluded from consideration, being in the nature of all embracing confessions, is his disclosure statement, Ex. PW-8/A, dated 16.03.2006 said to have been made by him under Section 27 of the Evidence Act to the effect that on 02.02.2006 during night he in concert and alongwith A-1 Vishal Thapa had lifted the dead body of the deceased from the nullah and thereafter buried the same in the field after digging a pit and that he could identify both the places, pursuant to which he is said to have identified those places vide memo Ex. PW-9/A, dated 16.03.2006, which again are in the nature of self-inculpatory confessions. However, the fact remains that as already noticed, both these places were already in the know of the police, as also everybody in the village and around. A finding of guilt cannot be returned against A-2 Deepak Bahadur solely on the basis of this evidence. 42. Apart from the above discussion on the circumstances alleged by the prosecution against the accused, it shall be pertinent to further observe that as alleged by the prosecution, the deceased was done to death during the night intervening 01/02.02.2006. The dead body was recovered on 05.03.2006. Preliminary autopsy was conducted on the spot by PW-10, Dr. Surender Kumar on 05.03.2006 itself. At that time, the medical expert had observed presence of foul smell and lots of flies on the dead body. Organs of generation, external and internal, were found to be normal. 43. The dead body of the deceased was subjected to further postmortem examination at IGMC, Shimla, by PW-11, Dr. Piyush Kapila, who vide PMR, Ex. At that time, the medical expert had observed presence of foul smell and lots of flies on the dead body. Organs of generation, external and internal, were found to be normal. 43. The dead body of the deceased was subjected to further postmortem examination at IGMC, Shimla, by PW-11, Dr. Piyush Kapila, who vide PMR, Ex. PW-11/B, under head ‘II-Cranium and Spinal Cord’, Column ‘Membranes-Brain’ had observed that “Intact Membranes But brain was liquefied. However no countercoup haemorrhage could be appreciated”. Organs of generation, external and internal, viz. “Penis and testes in scrotum” were also found to be normal. 44. According to PW-11, Dr. Piyush Kapila, probable time that had elapsed between death and postmortem was around 4-5 weeks, which though co-relates with the alleged occurrence, that is, 01/02.02.2006, yet this finding does not synchronize with the medical evidence on record. The reasons to arrive at this inference are set-aside hereinafter. 45. As already observed, when the dead body was exhumed on 05.03.2006 it was found to be in a decayed condition. Though putrefaction or decomposition of human body depends upon many factors such as altitude and climatic conditions etc., yet since both the medical experts, PW-10, Dr. Surender Kumar and PW-11, Dr. Piyush Kapila, had found the organs of generation, external and internal, normal and further that PW-11 had found that the brain was in liquefied condition, the period between death and postmortem examination could not have been as long as 4-5 weeks, even in severe winter at a high altitude, as in the present case, and more so when as per Modi’s Medical Jurisprudence & Toxicology, Twenty-Second Edition (Student Edition), at pages 234 to 239, penis and scrotum become enormously swollen from 18 to 36 or 46 hours after death and an adult brain becomes soft and pulpy within 24 to 48 hours in summer and becomes a liquid mass from 3 to 4 days. This aspect of the matter is also not in consonance with the warp and woof of the prosecution case. Rupchand Chindu Kathewar vs. State of Maharashtra, (2009) 17 Supreme Court Cases 37, relied upon. Paras 10 to 13 of the judgment, being relevant, are extracted below: “10. We have perused the evidence of PW-4 Dr. Satish Jaiswal. The post-mortem examination itself is tell tale and indicates some very significant facts. Rupchand Chindu Kathewar vs. State of Maharashtra, (2009) 17 Supreme Court Cases 37, relied upon. Paras 10 to 13 of the judgment, being relevant, are extracted below: “10. We have perused the evidence of PW-4 Dr. Satish Jaiswal. The post-mortem examination itself is tell tale and indicates some very significant facts. Column 12 of the form talks about the body being highly decomposed, Column 13 refers to the fact that insects and maggots were crawling all over the face, whereas Column 19(iii) reveals that the brain was absent and that maggots were crawling in the skull cavity. The doctor also deposed that in his opinion the death had occurred about 60 hours before the post-mortem examination but in the cross-examination he modified his statement to say that it could be less than 60 hours but not less than 48 hours under any circumstances. We have also gone through the inquest report which is equally revealing and refers to the fact that maggots were crawling all over the body and that the anus was swollen and that the skin thereat had peeled off. 11. Relying on the aforesaid information gathered from the prosecution evidence Mr. P. Ramesh Kumar, the learned counsel for the appellant has submitted that the eyewitness account was not borne out by the medical evidence. He has referred us Modi’s Medical Jurisprudence and Toxicology, 23rd Edn., pp. 439-40. We find from a perusal thereof that the rectum and uterus protrude within 48 to 70 hours after death. Likewise we see from the chart on p. 438 that maggots come on to the body within a minimum of 24 hours 18 minutes and a maximum of 76 hours, making an average of 39 hours 43 minutes. We must, accordingly, take the average as the basis of our decision and, therefore, observe that the death had occurred at least 40 hours before the body was first examined at the time of the inquest report on 14-5.1999. It is also significant that while dealing with the condition of the brain after death this is what Modi says with regard to its putrefaction (p.440): “Adult Brain.-The putrefaction of the adult brain initially begins at its base, and then proceeds to the upper surface. It is hastened if any injury to the brain or skull is present. It is also significant that while dealing with the condition of the brain after death this is what Modi says with regard to its putrefaction (p.440): “Adult Brain.-The putrefaction of the adult brain initially begins at its base, and then proceeds to the upper surface. It is hastened if any injury to the brain or skull is present. The brain becomes soft and pulpy within 24 to 48 hours in summer, and becomes a liquid mass from three to four days.” 12. It is clear from the inquest and the post-mortem reports that the brain had disappeared. In this background, and taking the medical evidence to be correct, the incident could not have happened on 13-5-1999 at 6.00 a.m. and must have happened much earlier in any case between 40 to 70 hours before the alleged time of death. 13. It is true that Modi has himself referred to the fact that the putrefaction and decomposition of a dead body would be dependent on several facts including the age of the person, the nature of the weapon used, the health of the deceased, the climate, etc. but Modi has taken the mean as the basis for the various putrefactive processes so as to generalise the evidence in such cases, as an exact time schedule with regard to the stages of decomposition cannot always be made available. We, therefore, find that the eyewitness account is in fact diluted by the medical evidence.” 46. It shall be pertinent to notice that as per zimni order dated 02.06.2006 recorded by the learned Trial Court the accused had stated that they had no counsel to defend them and accordingly, Mr. Himanshu Panwar, Advocate, was appointed as Defence Counsel from the approved list of counsel to defend the accused on State expenses. In a like case reported as Kishore Chand v. State of Himachal Pradesh, (1991) 1 Supreme Court Cases 286, the Hon’ble Apex Court has observed as under vide paras 12 to 14 of the report: “12. Before parting with the case, it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appellant, a peon, the driver and the cleaner for a ride and trampled upon their fundamental personal liberty and lugged them in the capital offence punishable under Section 302, IPC by freely fabricating evidence against the innocent. Undoubtedly, heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. At the same time the liberty of a citizen is a precious one guaranteed by Article 3 of Universal Declaration of Human Rights and also Article 21 of the Constitution of India and its deprivation shall be only in accordance with law. The accused has the fundamental right to defend himself under Article 10 of Universal Declaration of Human Rights. The right to defence includes right to effective and meaningful defence at the trial. The poor accused cannot defend effectively and adequately. Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an inbuilt right to liberty and life envisaged under Articles 14, 19 and 21 of the Constitution. Weaker the person accused of an offence, greater the caution and higher the responsibility of the law enforcement agencies. Before accusing an innocent person of the commission of a grave crime like the one punishable under Section 302, IPC, an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which undermines the public confidence reposed in the investigating agency. Therefore, greater care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies, evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State, i.e. Central or State Governments to organize periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investigation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution. 13. Though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the bar who has either a little experience or no experience is assigned to defend him. Though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency. 14. We fervently hope and trust that concerned authorities and senior advocates would take appropriate steps in this regard.” 47. However, it appears that in the present case the accused did not get legal assistance of the requisite standard to defend them for the respective charges against them. 48. The above discussion brings us to hold that the circumstantial evidence led by the prosecution to prove its case against the accused was not sufficient in content and up to the mark to return a finding of guilt against them and they are entitled for benefit of doubt, as it is settled that suspicion, howsoever strong, cannot take place of legal proof as has been held by the Hon’ble Apex Court in Padala Veera Reddy vs. State of Andhra Pradesh and others, AIR 1990 Supreme court 79. 49. In the result, the appeals succeed and are accordingly allowed. Consequently, the impugned judgment/order dated 06.12.2006 are set-aside and both the accused are acquitted of the respective charges against them. They shall be set free to their liberty forthwith unless required in any other process of law. The amounts of fine, if already deposited, shall be liable to be refunded to them after the period for laying challenge against this judgment is over, in which event the same shall be subject to the orders of the Hon’ble Appellate Court.