JUDGMENT Hon’ble Anil Kumar Sharma, J.—Challenge in this appeal is to the judgment and order dated 7.8.2007, passed by Additional Sessions Judge Fast Track Court No. 4, Varanasi in S.T. No. 96 of 2004, whereby appellant Ghan Shyam Seth has been found guilty for the offence punishable under Section 411 IPC and had been sentenced to undergo rigorous imprisonment of one and half years with fine of Rs. 3,000/- with default stipulation. Appellants Sanjay Harijan and Mohd. Sartaz have been convicted under Section 302 and 392 IPC and each has been sentenced to undergo imprisonment for life and fine of Rs. 8,000/- and and seven years R.I. with fine of Rs. 5,000/- respectively with default stipulation. Since both the appeals emanate from common judgment of the learned trial Court, therefore, they have been heard together and are being decided by this judgment. 2. Succinctly stated the facts of the case are that on 29.8.2002 at 8.45 a.m. Salah-uddin son of Akbar Ali r/o Chandupura, P.S. Adampur, District Varanasi submitted his written report in P.S. Adampur, wherein he stated that in the night of 28/29.8.2002, his mother Batulan Bibi aged 80 years, niece Salika Bibi aged 12 years and Saina Bibi aged 7 years were sleeping in the front room of ground floor of the house. They did not come out from the room till 6.00 a.m. on 29.8.2002, so his sister-in-law Vashil Bano went in their room to wake them up, but there was no response, so she informed the complainant and his wife. When the complainant went to the aforesaid room, he found his mother and niece Salika Bibi dead. On search it was found that the jewellery of the mother worn by her and kept in the box was missing. On enquiry his niece Saina Bibi told him that an unknown person having mustaches came in the night and slept by her side. He threatened her to kill, if she spoke and said that they have killed two persons. The complainant suspected that some unknown persons have killed her mother and niece by throttling their neck. 3. On the basis of this report case at crime No. 170 of 2002 under Section 460 IPC was registered in P.S. Adampur, investigation whereof was taken up by S.O. Shiv Ganesh Gautam. The complainant suspected that some unknown persons have killed her mother and niece by throttling their neck. 3. On the basis of this report case at crime No. 170 of 2002 under Section 460 IPC was registered in P.S. Adampur, investigation whereof was taken up by S.O. Shiv Ganesh Gautam. He immediately rushed to the spot, where the complainant gave the list of stolen jewellery and thereafter he interrogated the complainant and Saina Bano. At the instance of the complainant he prepared site plan and also inspected the three iron boxes and attachie found in the room. The Kundi of the boxes was broken. Inquest of the cadaver of the deceased was conducted at 11.00 a.m. onwards and they were sent for autopsy in a sealed cover alongwith the usual papers. 4. Dr. R.A. Singh conducted the post mortem examination of both the deceased on 29.8.2002 from 3.45 p. m. onwards and has noted in his autopsy notes as under : Post Mortem Examination of deceased Km. Salika Bibi 12-years old dead body of young female child of average size and shape. Rigor mortis present all over the body. Eyes, mouth closed, nails cynosed, and conjunctiva congested. Ante-mortem injuries: 1. Multiple abraded contusion with multiple nail marks measuring 9 cm x 6 cm on full front of both sides neck. 2. Multiple nail marks over the back of forearm (7 cm x 3 cm area). In the internal examination the doctor found that the brain, pleura, both lungs, pericardium and peritoneum were congested. Heart was full and stomach contained 40 grams mucous. In the opinion of the doctor the deceased suffered death to asphyxia as a result of throttling pressed at neck about half day before. Post-Mortem Examination of deceased Batoolan 75-years old thin average body of a lady. Rigor mortis present all over the body, eyes and mouth closed and cynosed. Ante mortem injuries : 1. Multiple abraded contusions with multiple nails marks 14 cm x 10 cm over face, nose, both lips, cheek and left side neck. Total 12 number marks. 2. Contusion 2 cm x 2 cm on the back of right wrist. 3. Multiple contusion 10 cm x 6 cm on the back of left wrist and hand. In the internal examination the doctor found that brain, pleura, both lungs, pericardium and peritoneum of deceased Batoolan were congested. Total 12 number marks. 2. Contusion 2 cm x 2 cm on the back of right wrist. 3. Multiple contusion 10 cm x 6 cm on the back of left wrist and hand. In the internal examination the doctor found that brain, pleura, both lungs, pericardium and peritoneum of deceased Batoolan were congested. Heart was filled with blood and stomach contained 40 grams mucous. In the opinion of the doctor the deceased suffered death to to asphyxia as a result of smoothering, about half day before. 5. On 31.8.2002, the investigating officer arrested Sartaz @ Raju and Sanjay Harijan at about 11.30 a.m. At the time of their arrest they fired fire-arm shots on the police personnel and on personal search after their arrest, a country made pistol .315 bore and a live cartridge with an empty cartridge in the barrel were recovered from the possession of Sartaz @ Raju. Country made pistol .12 bore, two live cartridges .12 bore and empty cartridge in the barrel was recovered from the possession of accused Sanjay Harijan. During interrogation of both the accused, the complainant also arrived at the spot, they allegedly confessed their guilt. The accused persons told the police that they have sold the jewellery to goldsmith Kuldeep Seth in Mughal Sarai. They took the police party at the shop of Kuldeep Seth and he handed over a pair of silver chhagal, a silver clip and a pair of golden jhumka to the police. The complainant and his brother identified these articles and said that they have been stolen from their house. Recovery memo was prepared on the spot. Thereafter the accused persons took the police to Resham Katra at the shop of accused Ghan Shyam Seth and they got recovered the stolen jewellery a mang teeka, a pair of tops, golden nathuni, two golden nose pins and a pair of silver Bichhua from him. On seeing the jewellery items, the complainant and his brother identified them as belonging to their mother and daughter. Recovery memo was prepared and the articles were sealed at the spot. Thereafter the investigating officer interrogated other witnesses of recovery. Witness Abdul Farid was interrogated on 25.9.2002 and the investigation culminated into charge-sheet against the accused persons. 6. On seeing the jewellery items, the complainant and his brother identified them as belonging to their mother and daughter. Recovery memo was prepared and the articles were sealed at the spot. Thereafter the investigating officer interrogated other witnesses of recovery. Witness Abdul Farid was interrogated on 25.9.2002 and the investigation culminated into charge-sheet against the accused persons. 6. After committal of the case to the Court of Session, charge for the offence punishable under Sections 460 IPC and 392 IPC and alternative charge under Section 302 IPC were framed against accused Sartaz @ Raju and Sanjay Harijan. Accused Ghan Shyam Seth was charged for the offence punishable under Section 411 IPC. Accused persons abjured their guilt and claimed trial. The case of accused Kuldeep Seth was separated due to his juvenility. 7. In order to prove its case the prosecution examined complainant Salah-uddin PW-1, Hasin-uddin PW-2, child witness Saina Bano PW-3, Abdul Farid PW-4, Dr. R.A. Singh PW-5, S.I. Mohd. Mohit Khan PW-6, constable Ram Prasad PW-7 and S.I. Shiv Ganesh Gautam PW-8. 8. In their separate statement under Section 313 Cr.P.C. all the accused persons have again denied the prosecution story. Accused Sanjay stated that he has been falsely implicated in the case on account of his friendship with accused Sartaz. Accused Mohd. Sartaz has averred that the complainant and the witnesses are related and due to property dispute he has been falsely implicated in the case. According to accused Ghan Shyam Seth the police has falsely implicated him in the case after taking his jewellery from the shop. However, the accused persons have not adduced any evidence in their defence. 9. In appeal the appellants have filed copy of judgment dated 7.8.2007, whereby the learned Additional Sessions Judge had acquitted accused Sartaz and Sanjay in the case of alleged police encounter under Section 307 IPC in the incident dated 31.8.2002. We have heard learned counsel for the parties and perused the original record of the case carefully. 10. 9. In appeal the appellants have filed copy of judgment dated 7.8.2007, whereby the learned Additional Sessions Judge had acquitted accused Sartaz and Sanjay in the case of alleged police encounter under Section 307 IPC in the incident dated 31.8.2002. We have heard learned counsel for the parties and perused the original record of the case carefully. 10. Learned counsel for appellants in Criminal Appeal No. 6402 of 2007 has argued following points before us: (i) that no accused is named in FIR although PW-3 claims to have known them from before nor had she stated name of any accused-appellant in her police statement under Section 161 Cr.P.C.; (ii) that there was no source of light inside the room where the dead bodies of two deceased were found; (iii) that no test identification of any accused was held; (iv) that the accused-appellants have been acquitted by the Court in the case under Section 307 IPC, thus the manner of their arrest and further recovery of jewellery items at their instance from co-accused Ghan Shyam Seth is highly doubtful; (v) that PW-4 was interrogated about a month after the incident, so his testimony does not inspire confidence and further his house has not been shown in the site plan; Per contra learned Brief Holder and AGA have argued that accused Sartaz is a close relative of the complainant while accused Sanjay Harijan is friend of Sartaz and since the only eye-witness of the incident is of tender age and was threatened by the accused, so on account of fear she did not name any of the accused. It has further been contended that both the accused were seen by Abdul Farid in the night of the incident coming out from the house of the complainant. The stolen jewellery was recovered from the shop of appellant Ghan Shyam Seth at the pointing of accused persons in presence of complainant and his brother, so there was no need of its identification, so both the appeals are liable to be dismissed, argued the counsel for the respondent. 11. It is not disputed that accused Mohd. Sartaz is close relative of the complainant, being his sister’s son, therefore, he was known to his family members. None of the accused is named in the FIR. PW-3, the sole eye-witness of the incident at that time was only 7-years old. 11. It is not disputed that accused Mohd. Sartaz is close relative of the complainant, being his sister’s son, therefore, he was known to his family members. None of the accused is named in the FIR. PW-3, the sole eye-witness of the incident at that time was only 7-years old. She was sleeping in the front room of the ground floor of complainant’s house alongwith his grand mother and sister (both deceased), which has three floors. The upper most storey is occupied by Hasinuddin PW-2 while the complainant lives with his family in the first floor of the house. Both the deceased were allegedly sleeping in the front room of ground floor alongwith Saina Bano PW-3. The First Information Report of the incident was lodged with the police at 8.45 a. m. on 29.8.2002. The house of the complainant, as per Ex. Ka-12 check report is only two furlongs. In the written report it is mentioned that a person having mustaches slept by the side of PW-3, threatened her saying that they have killed two persons and would also be done to death if she speaks. There is no mention of any other accused in the written report. The only eye-witness of the incident PW-3 has not spoken the name of the any accused even in her statement under Section 161 Cr.P.C. She had give parrot-like version of the incident in his deposition before the Court, which had been not believed by the trial Court. We have carefully perused the statement of PW-3 and we fully endorse the findings of the learned trial Judge that from the facts and circumstances of the case she appeared to be a tutored witness. Thus, there is no other eye-witness of the incident in the case. 12. The learned trial Court has framed charge under Section 460 IPC and had alternatively charged accused Sartaz @ Raju and Sanjay Harijan for the offence under Section 302 IPC. They have been convicted and sentenced under Section 302 IPC, but the trial Court has erred in not acquitting them for the offence punishable under Section 460 IPC. It was the duty of the trial Court to see that either the accused is convicted or acquitted on charges framed against him. The only evidence to support the charge under Section 302 IPC was of PW-3 and PW-4. It was the duty of the trial Court to see that either the accused is convicted or acquitted on charges framed against him. The only evidence to support the charge under Section 302 IPC was of PW-3 and PW-4. Since the testimony of PW-3 had been discarded by the trial Court, so reliance has been place on the statement of PW-4 to convict the appellants of Criminal appeal No. 6402 of 2007. In our considered opinion, the sole testimony of PW-4 was not at all sufficient to return the guilty verdict against accused Sartaz @ Raju and Sanjay Harijan for the offence punishable under Section 302 IPC. 13. Since there is no eye-witness, so the case solely based on circumstantial evidence. It is trite law that where 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 guilt of any other person. The only circumstance relied upon by the prosecution is that PW-4 has allegedly seen these accused-appellants coming out from the house of the complainant in the night of the incident. The name of this witness does not find place either in the written report or in statements of PW-1 and PW-2 under Section 161 Cr.P.C. or examination-in-chief recorded by the trial Court. He has been interrogated by the I.O. on 25.9.2002 i. e. more than three weeks after the incident. The investigating officer PW-8 has stated in his cross-examination that Abdul Farid suo motu gave his statement to him. PW-4 Abdul Farid has stated in his cross-examination that his house is situated at a distance of 15-20 steps from the house of the complainant. However, the house of PW-4 had not been shown in the site plan. According to his witness the main door of complainant’s house opens towards northern side, which is palpably false in view of statement of PW-1 and the site-plan. PW-1 has stated in his examination-in-chief itself that the main door of his house opens in southern gali which had been shown as such in the site plan as well. PW-2 has stated in cross-examination that Abdul Farid resides in front of his house at a distance of 50-60 feet. PW-1 has stated in his examination-in-chief itself that the main door of his house opens in southern gali which had been shown as such in the site plan as well. PW-2 has stated in cross-examination that Abdul Farid resides in front of his house at a distance of 50-60 feet. He had gone to Mau at 6 a.m., returned after two days and then he told them that both the accused had come and gone from his house. But this fact was not disclosed by this witness to the investigating officer. 14. It appears that Abdul Farid PW-4 is a got up witness and had been introduced in the prosecution story for ulterior motive. This witness even could not correctly tell the direction of main door of the complainant’s house and has stated that from the door of his house, the complainant’s house is not visible but it can be seen from the window. The inordinate delay in interrogation of PW-4 also creates doubt about the veracity of his testimony. Even if for the sake of arguments it is accepted that PW-4 had seen the accused persons coming out of the house of complainant in the night of incident, this by itself would not be sufficient to convict the accused for the double murder of the deceased and stealing jewelery from the house of the complainant. There is material contradiction with regard to the time when PW-4 had allegedly seen the accused. According to him, the accused were seen by him coming out from the house of the complainant at about 3.30 a.m., while PW-1 has stated that PW-4 had seen the accused coming inside his house at about 1.30 a.m. These contradictory statements are difficult to reconcile. Thus, the learned trial Court committed illegality in placing reliance on PW-4, who is not at all a reliable witness. 15. The learned trial Court has taken support from the recovery of stolen jewelery items from the shop of accused Ghan Shyam Seth at the instance of accused Sartaz @ Raju and Sanjay to convict them under Section 302 IPC. Both these accused were allegedly arrested by the police on 31.8.2002 at about 11.30 a.m. in so-called police encounter case near Bhaiyu Pul. Both these accused were allegedly arrested by the police on 31.8.2002 at about 11.30 a.m. in so-called police encounter case near Bhaiyu Pul. The PW-1 and PW-2 at about 12.30 p.m. came to know about the arrest of these accused in the market as also their complicity in the incident of double murder of their family members. These two witnesses went on foot and found both the accused in the custody of police. PW-1 has stated that the police told them about the alleged confession of accused persons regarding murder of two ladies of complainant’s family while PW-2 states that before the police both the accused confessed their guilt in his presence. None of the witnesses of fact was able to tell the name of the person, who had informed about the arrest of accused persons in the market at about 12.30 p.m. According to PW-8, the accused were apprehended at about 11.30 p.m. when they opened fire on police personnel. It is difficult to believe that the police party waited for the complainant and his brother at the spot till 1.00 p.m. Moreover, if the accused after arrest allegedly confessed their participation in the incident at the house of the complainant, then it was imperative for them to made the accused bapardah for the purpose of identification by the sole eye-witness of the incident. It is significant to note that both the accused have been acquitted by the learned Additional Sessions Judge vide judgment dated 7.8.2007, i.e. on the day when the judgment in this case was pronounced in their alleged firing on police on 31.8.2002. The appellants have brought on record the certified copy of the judgment passed by learned Additional Sessions Judge/FTC-4, Varanasi in S.Ts. No. 699, 779 and 780 of 2002 under Sections 307 IPC and 25 Arms Act respectively. We have carefully perused this judgment as well. The learned trial Judge has disbelieved the manner of arrest, their role in the incident as also the recovery of fire arms from their possession and thus they have been acquitted on all counts. This finding of the trial Court affects the merit of this case as well, because the complicity of accused persons came to light only through their alleged arrest in the aforesaid case. This finding of the trial Court affects the merit of this case as well, because the complicity of accused persons came to light only through their alleged arrest in the aforesaid case. In the facts and circumstances of the case, the trial Court fell in error in taking shelter of recovery of stolen jewelery items pursuant to alleged information conveyed by accused Sartaz and Sanjay that they have sold the stolen property to Kuldip Seth and Ghan Shyam Seth to convict the accused persons under Section 302 and 392 IPC. Thus, conviction of accused Sartaz @ Raju and Sanjay Harijan under these sections cannot be sustained. 16. Now as regards appeal of accused Ghan Shyam Seth is concerned, he admittedly runs a jewelery shop and the police has allegedly recovered five gold items of jewelery from shop on the pointing out of accused Sartaz @ Raju and Sanjay Harijan on 31.8.2002 at about 3.30 p.m. This recovery is highly doubtful for the following reasons: (i) that there is no public witness of recovery, although the shop of accused Ghan Shyam Seth is situated in dense commercial market; (ii) that no identification of the recovered jewelery items was conducted from the ladies of the complainant’s family, because all the items allegedly belonged to mother and niece of deceased, so the male members of his family were not in a position to identify them. This conclusion is further fortified from the fact that in the report dated 29.8.2002 Ex. Ka-2 the complainant has stated that the ladies of the house have informed about the details of the stolen jewelery items; (iii) that full particulars of jewelery items e.g. their shape or weight etc. had not been mentioned in 2nd report furnished by PW-1 to the investigating officer on 29.8.2002, so that they may be correctly identified; iv) that theft of jewelery items could not be proved by cogent and reliable evidence; (v) that the prosecution has failed to lead any evidence to show that the accused dishonestly received, retained or handled the jewelery items believing them to be stolen; (vi) that had the accused knowledge about the jewelery items to be stolen then he should not have kept them in the same shape and would have certainly melt them. 17. 17. In view of the aforesaid circumstances, we are of the considered view that learned trial Court has not correctly appreciated the evidence on record and illegally convicted and sentenced accused Ghan Shyam Seth for the offence punishable under Section 411 IPC. Thus, his appeal succeeds. 18. The net result of the aforesaid discussion and findings is that the prosecution has miserably failed to prove its case beyond all reasonable doubt against the accused-appellants in both the appeals, and they succeed. 19. Both the appeals are allowed. The conviction of all the appellants and sentences awarded to each of them are set aside and they are acquitted on all counts. Accused Sanjay Harijan and Mohd. Sartaz @ Raju are in jail, they be released forthwith, if not wanted in any other case. Accused Ghanshyam Seth is on bail. His personal bond and surety bonds are discharged. 20. Let certified copy of the judgment be sent to the Court concerned and the Chief Judicial Magistrate, Varanasi for compliance, which should be reported in 4-weeks. ——————