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2013 DIGILAW 2993 (ALL)

EK RAM v. STATE OF U. P.

2013-12-11

JAYASHREE TIWARI, VINOD PRASAD

body2013
JUDGMENT Hon’ble Mrs. Jayashree Tiwari, J.—The present criminal appeal has been filed against the judgement and order of conviction dated 18.11.1982 passed by the learned Additional District and Sessions Judge Bareilly, whereby he has convicted the accused appellants under Section 302/34 I.P.C. sentencing both the accused appellants to life imprisonment. 2. In short, the facts of the case are that Thakuri Lal, the informant, had given a missing report before the police station Bahedi stating that his son Ram Chandra who used to work at Ara machine from last two years had gone as usual on 10.2.81 for work, he had gone there after taking his night meal but he did not return in the morning, whereupon he inquired at the Ara machine and came to know that Ram Chandra did not come yesterday for work at Ara machine. Thereafter he searched his son in his relations at several places, after due efforts when he could not be traced him he had given the missing report to the police station so that his son may be searched. 3. The description of the son is given at the bottom of this missing report. Upon this missing report, the police started investigating the matter and during investigation it came out that the accused Ek-ram and Babu Ram had given information to the police station that they had committed murder of Ram Chandra with Gandasa and blood stained Gandasa had been hidden by the accused appellants in sugar cane field and it will be pointed out and got discovered. Ek-Ram went to sugar cane field where in the western part he had hidden the Gandasa, it is the same Gandasa with which he had committed the murder of Ram Chandra by cutting his neck, thus the fard recovery of Gandasa was prepared. Thereafter, during investigation the police had prepared the fard recovery regarding the dead-body of the deceased Ram Chandra which shows that on 14.2.1981 the blood stained clothes of deceased Ram Chandra were recovered alongwith the dead-body and the same was sealed in white cloths before the witnesses Kewal Ram and Dori Lal. Thereafter, the post-mortem had taken place and the Investigating Officer after completion of the investigation submitted a charge-sheet against the accused appellants. Thereafter, the post-mortem had taken place and the Investigating Officer after completion of the investigation submitted a charge-sheet against the accused appellants. Upon submission of the charge-sheet by the police station concerned, the accused appellants were called upon to appear and they were provided the copies of the relevant documents of prosecution as the murder was committed by them. As the offence was triable by the Court of sessions hence, it case was committed to the Court of sessions. The accused appellants were produced in the Court, they were heard on the charges levelled against them. After hearing the prosecution and the accused appellants, the learned Sessions Judge came to the conclusion that the prima facie charges were made out against them and the charges under Section 302/34 I.P.C. were framed against the accused appellants. The charges read over and explained to the accused appellants who pleaded not guilty to the charges levelled against them hence, the trial proceeded. 4. The prosecution had examined as many as ten witnesses in support of his contention which are as follows : PW.1 is Thakuri Lal the informant, who had lodged the missing report and stated that his son had gone in the night to the Ara machine after taking his night meals, but he did not return on the next morning, as such he was searched his son here and there, and ultimately when he could not trace him, the missing report was lodged by him at the police station Bahedi. 5. PW.2 is Tula Ram, who was presented as a witness of last seen and he is the resident of the same village as deceased and informant Thakuri Lal. In his statement he has stated that he saw Ram Chandra prior to his murder in Jalsa at 11.00 and 12:00 in night in the company of Ek-Ram and Baboo Ram. He has further stated that there is a temple where Jalsa used to take place, at Temple and further stated that Ram Chandra, Ek-Ram and Baboo Ram had returned back from Jalsa at about 12:00 in night and he stayed in Jalsa for the whole night and came back home in the morning and after coming home in the morning he had gone to his sasural at Nadeli. He further stated that when he came back in the village, he found that a search for Ram Chandra was going on. He further stated that when he came back in the village, he found that a search for Ram Chandra was going on. He had informed Ratan Lal that he had seen Ram Chandra alongwith Ek-Ram and Baboo Ram in Jalsa, Ratan Lal is the brother of the informant Thakuri Lal. This witness has further stated that on the date of incident four and five persons of the same village had gone to see Jalsa but he does not know their names. He has further stated that Ram Chandra, Ek-Ram and Baboo Ram were sitting by side and they were talking and side by side other villagers were also sitting but he does not know their names. Chetram and Sakuram had also gone to see Jalsa on the same day and Chetram and Sakuram both persons were also sitting side by side in Jalsa. In Jalsa Ram Chandra, Ek-Ram and Baboo Ram had sat for half an hour and they were talking to each-other. This witness also admitted that there is an enmity in between deceased Ram Chandra and accused Ek-Ram. But in Jalsa they all were talking together but he did not know what they all were talking and further stated that he does not know about the illicit relation in between the accused Ek-Ram and the wife of Ram Chandra. Thus, he has been presented as a witness of last seen. 6. PW.3 is Faguni, he has stated that Mohan had told him that the dead body of Ram Chandra is lying in the Jangle of Laxminpur and Harharpur. He had informed about it to the police station and he had gone with the Sub-Inspector to the field where the dead body of Ram Chandra was lying and the dead body was found to be present under the leaves of sugar cane. In the cross-examination, this witness has stated that Ram Chandra had not gone from his before him on Tuesday as Ram Chandra has used to work at the Ara machine, as such on the said day also he must have gone there. In the morning Mullah Mustaq had come to his house at about 6.00-7.00 p.m. and inquired as to why today Ram Chandra had not gone at the Ara machine for work. Mullah Mustaq had not talked him in the morning, he cannot say what talk had gone in between Mullah Mustaq and Thakuri Lal. In the morning Mullah Mustaq had come to his house at about 6.00-7.00 p.m. and inquired as to why today Ram Chandra had not gone at the Ara machine for work. Mullah Mustaq had not talked him in the morning, he cannot say what talk had gone in between Mullah Mustaq and Thakuri Lal. He has further said that Mullah Mustaq had come to the house of Thakuri Lal and not to the house of this witness, this fact has been told by Thakuri Lal to this witness, Thakuri Lal had informed that Ram Chandra had not gone to the Ara machine in the night, Ram Chandra used to go from home saying that he is going on duty but he has not know as to where he used to go on the date of incident, he had not gone to the Ara machine of Mullah Mustaq, the search of Ram Chandra started from the morning. On Wednesday he had talked with Tulai, Tulai had asked him to give information of this fact to the police station, whereupon he and Tulai had gone to the police station on Wednesday and lodged the report at the police station, the Sub Inspector has asked him to search Ram Chandra and to inform if anything comes out. The Sub Inspector had come to the village with regard to the search of the dead body, whereupon he told him that the dead body is lying in the field. 7. PW.4 is Ratan Lal, he has stated that his nephew Ram Chandra had gone to the Ara machine of Mullah Mustaq on Tuseday, but he did not return in the morning, the dead body of Ram Chandra was recovered on the 4th day i.e. Saturday. He has further stated that Tula Ram had told him before recovery of the dead body that he saw Ram Chandra in Jalsa at Laxminpur in the company of the accused Ek-Ram and Baboo Ram. He has further stated that Tula Ram after returning from the fair had gone to his sasural. In the cross-examination, this witness has stated that his house and house of Thakuri Lal is in one Bakhari but the boundary is separated. He has further stated that Tula Ram after returning from the fair had gone to his sasural. In the cross-examination, this witness has stated that his house and house of Thakuri Lal is in one Bakhari but the boundary is separated. He has said that he had not seen Ram Chandra going from home on Tuseday evening, he had gone at the Ara machine in the morning to trace Ram Chandra and nobody told him that he had come to the Ara machine in the night. Faguni, Thakuri Lal and Ganga Ram also accompanied with him at the Ara machine. He has further stated that when they returned from Ara machine after searching Ram Chandra thereafter weeping was started in his house. He had gone at Ara machine at about 9.00 p.m. and returned from there 10.00 to 10.30 a.m.. He has further stated that they had traced Ram Chandra for three days continuously, he had not lodged F.I.R. the Sub Inspector himself came in the village and talked him. When Sub Inspector came by that time the report was not lodged but on the day when the dead body was recovered he had talked with Sub Inspector, the Sub Inspector came on Saturday and an application was scribed by Munshi, which was given to the Sub Inspector with respect to the missing of Ram Chandra, this witness said that the Investigating Officer has not taken his statement. The dead body was lying on the hatch of the field, it was a sugar cane field, he had recognised it well that it was the dead body of Ram Chandra. He has further stated that the fair takes place every year and thousands of people assembled in that fair. 8. PW.5 is Ram Dayal, he has stated that he had seen Ek Ram talking with Kewal Ram Pradhan at about 6.00 a.m. in the morning and he saw Pradhan also talking with Ek Ram. When he returned to Bahedi he met police persons and told the police that Ek-Ram and Pradhan were seeing talking in the morning. In the cross-examination, this witness has stated that his house from the Masra of Pradhan is after four fields, the Bahedi is one kilometre away from his house, he had gone to the doctor at Bahedi to take some medicine and had returned back at 12.00 p.m.. In the cross-examination, this witness has stated that his house from the Masra of Pradhan is after four fields, the Bahedi is one kilometre away from his house, he had gone to the doctor at Bahedi to take some medicine and had returned back at 12.00 p.m.. The Investigating Officer has recorded his statement, he did not tell the Investigating Officer that he had gone to Bahedi for taking medicine, the deceased Ram Chandra is the son of his cousin brother. He has further stated that he knew three days before that the police is searching Ek-Ram. Ek Ram had gone to the house of Pradhan from the same way by which this witness had gone to Bahedi, there were so many people who were going to Bahedi from this way, he did not raise cry but seeing Ek Ram, he did not give any reason as to why he did not raise cry. Ek Ram and Pradhan were talking at chabutra of Pradhan, this witness has said that he did not inquire from Ek Ram where were you and why the police were searching you, this witness said that he came to know about the death of the deceased Ram Chandra after 7 or 8 days, the police persons who met him on the way asked him any murder had taken place in his village, he had informed that the murder of the son of his cousin brother had taken place, the police had also asked him as to whether he knows about Ek-Ram, whereupon this witness has stated that he had told the police that he had seen Ek Ram talking with Pradhan, he has greeted Pradhan by ‘Jai Ram Ji’ and stayed at his chabutra 4-6 minutes whereupon all both these persons stopped talking, this witness had told these things to his brother after returning from Bahedi, the dead body was recovered after five days. It is wrong to say that he had not seen Ek Ram talking with Pradhan on the said date and time. 9. PW.6 is Nathu Lal, he has stated that the dead body of the deceased Ram Chandra was recovered in the field at Laxmipur. He has further stated that the police had taken him after three days of the recovery of the dead body and with him one Shukh Lal of the village was also accompanying. 9. PW.6 is Nathu Lal, he has stated that the dead body of the deceased Ram Chandra was recovered in the field at Laxmipur. He has further stated that the police had taken him after three days of the recovery of the dead body and with him one Shukh Lal of the village was also accompanying. He further stated that just one field before the place from where the dead body was recovered Ek-Ram and Babu Ram took them to the field, and Babu Ram brought out Gandasa from the field. He has further stated that Ek Ram was also accompanying Babu Ram because both of them were enchained by the same chain, the Gandasa was shown to the witness and Baboo Ram said that this is the same Gandasa with which he had killed Ram Chandra and thus he is witness of the recovery of Gandasa. In the cross-examination, this witness has stated that Ek Ram and Babu Ram were tied by one rope, the field from which the Gandasa was recovered in his village and at that time there were no public witness with the police, he cannot say from where the police had arrested the accused persons, the police had taken them with him and asked them to put down the grass on the road, the dead body of the deceased Ram Chandra was recovered before him, he cannot say that whose field it was. This witness said that he reached on spot at about 5.00 p.m., he had seen temple of Laxmipur, he cannot say that he had gone with Kewal Ram Pradhan to Ureniya. 10. PW.7 is Ram Saran Lal, Head Constable, he has proved the Tahrir which is mentioned as Exhibit Ka-2, he has also proved the G.D. which is Exhibit Ka-3 and he has said that he has taken the statement of the informant Thakuri Lal etc. In the cross-examination this witness has stated that he had taken the statement of Ratan Lal, Faguni and Tula Ram, thus he has formally proved the version of the prosecution. 11. In the cross-examination this witness has stated that he had taken the statement of Ratan Lal, Faguni and Tula Ram, thus he has formally proved the version of the prosecution. 11. PW.8 is Harihar Giri who is the Baba of Junagarh Math, he has stated that from the last six years he is sitting in the temple, on Maha Basant Panchami a Jalsa takes place in the temple and a fair also takes place at the same time alongwith Bhandara, the people from adjacent villages used to assemble in the Bhandara and Kirtan also used to take place at the temple, he cannot say who were the persons who attended this Jalsa from Laxmipur, he has stated that after 3-4 days he heard that one boy of the Purwa has been killed, on the chabutara where Kirtan takes place in the temple there is no light, the thousands of people used to come in the temple to this time and the people used to come day and night and it was full of gatherings at that time. 12. PW.9 is the doctor J.S. Punani, he has conducted the post-mortem examination and has stated that the dead body was four days old and it was an average built up and on his person six ante-mortem injuries were found which are as follows : 1. Incised wound 28cm x 4cm x bone deep towards left side of mouth behind the neck occipital in between medieval bone and the bone of head was found to be broken. 2. Lacerated wound 1.5cm x 1.5cm x muscle deep on the back side of left hand thumb. 3. Incised wound 4cm x 2 cm x bone deep on the joint of the right thumb 3 cm above the injury No. 2. 4. Incised wound 5cm x 7 cm x muscle deep on the top of the left shoulder. 5. Incised wound 4cm x 2cm x muscle deep on the interior side of right forearm 6 cm above right wrist. 6. Incised wound 2.0cm x 1.5cm x muscle deep on the right forearm 5 cm above right elbow. In the internal examination, the bone of head was found fractured and membrane were found to be torned. 5. Incised wound 4cm x 2cm x muscle deep on the interior side of right forearm 6 cm above right wrist. 6. Incised wound 2.0cm x 1.5cm x muscle deep on the right forearm 5 cm above right elbow. In the internal examination, the bone of head was found fractured and membrane were found to be torned. In his abdomen 1.5 ml half digestive food were found to be present and on the dead body of the deceased clothes i.e. baniyan, kamij and sweeter were found which were sealed and sent to the S.O. Bahedi. The doctor has opined that the injuries were caused by some sharp edged weapon and the injuries are possible to have come in the evening of 11.2.1981 and they are possible to have been caused by Gandasa. In the cross-examination this witness has stated that injury No. 2 can come by way of lathi. He has proved the post-mortem report and said that ten papers alongwith clothes were sent, the copy of the F.I.R. was not produced before him, the dead body was of 4 days old but due to winter season it has not been decomposed. The doctor also said that after five days rotten (sadan) was started and there was no sign on the body of bite by any animal i.e. dog, rat and cat and the doctor stated that it is wrong to say that the dead body of the deceased is not old more than two days. 13. PW.10 is K.P.S. Rathore, the Investigating Officer, he has investigated the case and after completion of the investigation he had submitted the charge-sheet, he has prepared the spot map during investigation and had proved the charge-sheet which is Exhibit Ka-2 on record, Panchayat Nama which Exhibit Ka-5 on record, Photo of dead body which is Exhibit Ka-10 on record, the challan of dead body which is Exhibit Ka-11 etc. Thus, the prosecution has closed his evidence. 14. Thereafter, the statement of the accused Ek-Ram under Section 313 Cr.P.C. was recorded, in which he has denied the contention of the prosecution and said that he was not working at the Ara machine but he was a man of bad character and was also a thief type man. Thus, the prosecution has closed his evidence. 14. Thereafter, the statement of the accused Ek-Ram under Section 313 Cr.P.C. was recorded, in which he has denied the contention of the prosecution and said that he was not working at the Ara machine but he was a man of bad character and was also a thief type man. He further stated that he had not married Smt. Reshamwati to deceased Ram Chandra, though no doubt it is his sasural but no one was coming and going in the sasural. He further stated that neither Ramwati was ill nor he was called by anyone and all these things were wrong. In other reply to the question of prosecution he has denied the contention of the prosecution and said that he has not committed the murder, he cannot say anything about the others. He further stated that the police had called him from his home and confined him in the police station and had obtained his signature on the blank piece of papers. It is further stated by the accused Ek-Ram that regarding the conduct of deceased Ram Chandra he (Ek-Ram) had told Kashiram and due to this Thakuri Lal and his family members made grudge and ill-will with him. 15. The accused Baboo Ram in his statement under Section 313 Cr.P.C. has denied the contention of prosecution and stated that his daughter was married in the house of Totaram and due to this grudge the witnesses had given false evidence. They also did not lead any evidence in defence. 16. Learned Sessions Judge after hearing the arguments of both the learned counsel for the parties came to the conclusion that the prima facie offence under Section 302/34 I.P.C. has been proved by the prosecution against the accused appellants beyond all reasonable and probable doubts and convicted the accused appellants to life imprisonment. Against this judgement and order of conviction recorded by the learned Sessions Judge the present appeal has been preferred before this Court. 17. The main points which have been argued during the course of arguments are firstly that there is no direct evidence of commission of offence and case is based on the circumstantial evidence. Against this judgement and order of conviction recorded by the learned Sessions Judge the present appeal has been preferred before this Court. 17. The main points which have been argued during the course of arguments are firstly that there is no direct evidence of commission of offence and case is based on the circumstantial evidence. In the case of circumstantial evidence, it is worthwhile to consider that all chains of evidence must be so interlinked so as to make out an unbreakable chain of the guilt of accused appellants and nothing else. In this light, there are several points which have been raised for consideration. The first point is that the missing report is delayed and an afterthought by the appellants. As pointed out by the learned counsel for the appellants, the learned trial Court has not considered the fact that delay in lodging of the missing report is fatal. In this connection, I have gone through the findings recorded by the learned trial Court. Learned trial Court has observed that the mission report has been lodged on 12.2.1981 by Thakuri Lal regarding his missing son Ram Chandra. A perusal of the report shows that it is a missing report given with a view that the Police may find out the missing son Ram Chandra. Upon this report, the Investigation started. The investigation started on 12.2.1981 on the same day, when the missing report was lodged. Besides this missing report, there is no other report on record. 18. The learned trial Court has held that a search was made for missing son and the family members had gone to search for missing son. So looking from this angle, there is no inordinate delay in lodging the missing report. The findings recorded by the learned trial Court seem to be genuine, as this is the natural conduct of a person first to search and when noting comes out then to lodge the missing report. Thus, on the point of delay in lodging the report, the findings of the trial Court appear correct. 19. P.W.-7 Ram Saran has stated his statement that on 12.2.1981 at about 9:10 a.m. Thakuri Lal has given a written report about missing of his son at a police station. Thus, on the point of delay in lodging the report, the findings of the trial Court appear correct. 19. P.W.-7 Ram Saran has stated his statement that on 12.2.1981 at about 9:10 a.m. Thakuri Lal has given a written report about missing of his son at a police station. As such, the learned trial Court has rightly held that there is no inordinate delay in lodging of the missing report which may create a doubt about the generosity of the report. 20. The second contention raised before this Court is that all the witnesses are highly related to each-other, as such, they are interested witnesses. The learned Court has not rightly relied upon the testimony of the interested witnesses. In this connection, it is worthwhile, that according to the settled law as laid down by the Apex Court as well as Hon’ble High Court, the testimony of an interested witness is not to be discarded at the very first instance merely on the ground that he is an interested witness. 21. In that context, the testimony of interested witnesses is to be taken into consideration with due care and caution. It is the natural conduct that no relative will spare the real culprit of his deceased family member and falsely implicate the other. As such, looking from this angle, the testimony cannot be discarded at the very first side. As it is a testimony of interested witnesses rather it is to be considered with utmost care and caution. The most important point worth considerable is that the last seen story against the accused appellants. In this regard, the statement of witness Tula Ram is relied upon by the learned trial Court as an independent witness of fact of last seen and he has stated that in Jalsa on the temple, he had seen the accused Ek-Ram and Baboo Ram sitting and talking with the deceased Ram Chandra. The learned trial Court has relied on the statement of Tula Ram. 22. In this contention, the statement of Tula Ram is worth considerable, Tula Ram was presented as a witness of last seen. In his statement some points are worth considerable. Tula Ram stated in his statement that he had seen Ram Chandra prior to his murder in Jalsa at 11/12:00 a.m. at night. 22. In this contention, the statement of Tula Ram is worth considerable, Tula Ram was presented as a witness of last seen. In his statement some points are worth considerable. Tula Ram stated in his statement that he had seen Ram Chandra prior to his murder in Jalsa at 11/12:00 a.m. at night. He said that he saw Ram Chandra at the time when he was accompanied by Ek-Ram and Baboo Ram. He further stated that there was a Temple where Jalsa used to take place. The witness Tula Ram further stated that Ram Chandra, Ek-Ram and Baboo Ram had returned back from Jalsa at about 12:00 a.m. in night and the witness Tual Ram stayed for the whole night in Jalsa and came back home in the morning. After coming home in morning he had gone to his in-law’s house Nadeli. When Tula Ram came back in the village, he found that a search for Ram Chandra was going on. He had informed Ratan Lal that he had seen Ram Chandra alongwith Ek-Ram and Baboo Ram in Jalsa. Ratan Lal is the brother of the informant Thakuri. The wife of Hemraj, the brother of Thakuri was sitting with this witness Tula Ram. There was sound of thousands of people in Jalsa. His village is about two kos from the place of Jalsa. In cross-examination, this witness further stated that two or four persons of village had gone to see Jalsa but he did not know their names. The witness further stated that on the date of incident four and five persons of the same village had gone to see Jalsa but he did not know their names. He further stated that Ram Chandra, Ek-Ram and Baboo Ram were sitting sidy by side and they were talking. Side by side other villagers were also sitting but he did not know their names. Chetram and Sakuram had also gone to see Jalsa on the same day and Chetram and Sakuram both persons were also sitting side by side in Jalsa. In Jalsa, Ram Chandra, Ek-Ram and Baboo Ram had sat for half an hour and they were talking to each-other. The witness also admitted that there was enmity in between deceased Ram Chandra and accused Ek-Ram. But in Jalsa, they all were talking together but he did not know what they all were talking about. In Jalsa, Ram Chandra, Ek-Ram and Baboo Ram had sat for half an hour and they were talking to each-other. The witness also admitted that there was enmity in between deceased Ram Chandra and accused Ek-Ram. But in Jalsa, they all were talking together but he did not know what they all were talking about. The witness further said that he did not know about the illicit relation between accused Ek-Ram and the wife of Ram Chandra. He further said that the Investigating Officer had not inquired anything from him and he has never given any statement before the Investigating Officer. He further said that how this statement had been recorded by the Investigating Officer, he could not say that Ram Chandra was wearing coat and putting on a blanket. He was not putting on a cap. He said about sitting of Ram Chandra near him in Jalsa and when Ram Chandra left Jalsa, he did not say anything to this witness. In the morning at 4:00 a.m., the witness returned his home and washed his face and after some time, he went to Nadeli. He had not talked with Thakuri on the same day. This witness said that it is wrong to say that this witness told Thakuri that he did not know about Ram Chandra. The temple was a pakka temple and there was a garden all around the temple. The temple was near the road and the road was far from the Abadi. The temple had only one roof. This witness said that it is wrong to say that he had not met Ram Chandra in Jalsa. Thus, this is the entire evidence given by the witness Tula Ram who had been presented as a witness of last seen. Now considering the statement of this witness, it comes out that there were other villagers including Chetram and Sakuram who had seen the accused persons in the company of the deceased Ram Chandra lastly on the said date in Jalsa but none of these two witnesses, who could be treated as independent witnesses, have been produced or examined in Court by the prosecution. 23. From the perusal of the statement of this witness, this fact also comes out that when he returned home, he found that a search for Ram Chandra was going on. 23. From the perusal of the statement of this witness, this fact also comes out that when he returned home, he found that a search for Ram Chandra was going on. If, it was the matter, it was most natural for him to have reported this fact of last seen of the deceased Ram Chandra to Thakuri the father of the deceased, but he did not report this important fact promptly to Thakuri the lodger of the missing report. He further said that he had reported this facts to Ratan Lal that he had seen Ram Chandra alongwith Ek-Ram and Baboo Ram in Jalsa. Ratan Lal is the brother of the informant Thakuri. Even if for the argument’s sake, it be taken into consideration as it is, it was most natural on the part of Ratan Lal, the brother of informant Thakuri to report this facts of last seen to Thakuri but he also omitted to report this fact to Thakuri. The conduct of this witness Tula Ram who is an interested witness shows unnatural conduct in not reporting the matter of last seen to the father of the deceased at the time when search was going.His contention that he reported the fact of last seen to Ratan Lal also seems doubtful as Ratan Lal has also not reported the matter to Thakuri the lodger of the missing report. Thus, the testimony of this witness and his omission reflects his unnatural conduct and lay a curtain of doubt on his testimony. Besides this, the witness said that he was never interrogated by the Investigating Officer and he said that if Investigating Officer has recorded his statement at all, it is entirely wrong because he had not given any such statement to the Investigating Officer. 24. Even if for the argument’s sake, the contention be taken into consideration, in that case, a witness who had not been interrogated during investigation and had been for the first time produced in trial and was giving evidence, his evidence cannot be safely relied upon. In this regard, the statement of P.W.-10 K.P.S. Rathore is worth noting. In his statement he has stated that he has taken the statement of this witness Tula Ram. In this regard, the statement of P.W.-10 K.P.S. Rathore is worth noting. In his statement he has stated that he has taken the statement of this witness Tula Ram. He has stated that he had not taken statement of Chetram and Sakuram who were independent witnesses of last seen and were present in Jalsa on the same day when Ram Chandra was sitting with Ek-Ram and Baboo Ram in Jalsa. 25. The Investigating Officer has further stated that he did not inquire from any person of the village in Jalsa as to whether Tula Ram had gone to Jalsa or not. Thus, the presence of witness Tula Ram at the place of Jalsa is just a chance presence and is not duly verified by any other independent witness. Whereas the witness Tula Ram said that he had not given any statement before the Investigating Officer. The presence of Tula Ram at Jalsa which is two kos from the village had not been fully established. More so, other independent witnesses Chetram and Sakuram had not been examined to corroborate it. No specific reason had been assigned for not recording the statement of these two material witnesses and for not verifying the presence of Tula Ram at Jalsa. 26. In the circumstances, the last seen story had not been fully corroborated and proved by the prosecution evidence. Even if, for the argument’s sake, last seen story be taken into consideration, it had come out that there is no evidence that the dead-body of the deceased Ram Chandra was found on the very next day of last seen accompaniment. The dead body had been recovered after a lapse of four or five days i.e. 14.2.1981, so the recovery of the dead-body from an open place after four days from the last seen version is also a fact to be taken into consideration. The link to chain between four days had not been clearly made out and established by the prosecution. 27. So far as the recovery of the dead-body of the deceased is concerned, it has come in evidence that it was recovered after four days from an open sugar cane field and it was sent for post-mortem examination on 14.2.1981. Thus, no nexus of remaining fours days is duly linked and put-forward. 28. 27. So far as the recovery of the dead-body of the deceased is concerned, it has come in evidence that it was recovered after four days from an open sugar cane field and it was sent for post-mortem examination on 14.2.1981. Thus, no nexus of remaining fours days is duly linked and put-forward. 28. In this connection, it is submitted by the learned counsel for the appellants that as per the medical report, the injuries were found to be four days old. The learned trial Court has relied that as the injuries are four days old, so the fact of murder is sufficiently proved. But the Doctor’s report clearly shows that injuries caused were four days old and they had been examined on 15.2.1981 i.e. 5th day of the incident. Even if, it connects the evidence of Tula Ram that Ram Chandra was seen at Jalsa about 11/12:00 a.m. in night, then the injuries must have been five days old and there must had been a gap six hour on either side, but mere this fact is not sufficient to connect that the offence of murder had been committed by the accused because except the last seen version nothing material had been alleged and proved. There was no other direct or indirect evidence to link or connect them, except the story of last seen which had also not been duly proved as discussed earlier. 29. The next point which is regarding the recovery of blood stained instrument of the murder, it is expedient to consider the provisions of Section 27 of the Indian Evidence Act which lays down as follows : Section 27 Indian Evidence Act—“How much of information received from accused may be proved : Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” So only the fact and information that ‘Gandasa’ had been hidden there and had been recovered on the pointing out of the accused persons is admissible. He had committed the offence with the aforesaid ‘Gandasa’ is relevant. He had committed the offence with the aforesaid ‘Gandasa’ is relevant. In this connection, it is worth while to consider that admissibility of the recovery of the instrument of murder on the pointing out of the accused who were jointly taken had been shown from an open field. 30. Learned counsel for the appellants submitted that there is no independent witness of recovery except interested witnesses. Why independent witnesses of recovery had not been procured, no satisfactory explanation had been put-forward in this regard. Even if this point is to be ignored and the factum of the recovery be taken into consideration, then second point for consideration is that place of the recovery is an open field and it cannot be said to be within the exclusive possession and exclusive knowledge of the accused persons. It is rather having easy excess to all. 31. Even if, this factor is to be ignored then it was expedient on the part of the prosecution who have examined the figure prints of the accused on the ‘Gandasa’. The Investigating Officer in his statement had stated that he had not made any attempt to obtain figure prints as he stated that the figure prints had become very dim and it was not possible to obtain figure prints. Even if, for the argument’s sake, this contention be taken as genuine, in that case, the ‘Gandasa’ was found to be blood stained. In order to prove that offence of murder of deceased had been committed by the aforesaid ‘Gandasa’. It was essential to get the blood examined by the Chemical Examiner to find out whether the blood present on the ‘Gandasa’ was human blood or not. In that respect, no report had been called or produced in evidence. At least it had to be proved that blood stained ‘Gandasa’ was containing human blood. Thus, the contention of the prosecution did not stand proved up to the hilt. According to chemical examination report, Ex. Ka-22 on record, it had been come out that blood spots were found on the large parts of article 1,2,4 and 10 which were respectively mud, pathai, mufler and sweter but the report is silent about the blood stained version on Gandasa as to whether it was human blood or any other animal blood. 32. It is further worth considering to take note the statement of witness Tula Ram. 32. It is further worth considering to take note the statement of witness Tula Ram. He said that Ram Chandra, Ek-Ram and Baboo Ram were inimical terms. Simultaneously he said that they were together in Jalsa and going together with Ek-ram and Baboo Ram at 12:00 a.m. in night from Jalsa appears to be quite unnatural conduct because a person on inimical terms with other will not accompany him at a distance of two kos far village at 12:00 a.m. at midnight. Thus, the last seen version of the witness Tula Ram and accompaniment with his enemy for a distance of two kos at 12:00 a.m. in night also appears to be not only incredible but also unnatural. 33. Learned trial Court has observed that P.W.8 Harihar Giri being an independent witness, would not speak lie. The learned trial Court has relied upon the testimony of P.W. 8 Harihar Giri, P.W.2 Tula Ram but Harihar Giri in his statement had given hearsay evidence that he had heard that one boy of the village had been killed. He had not given any such evidence that he had seen the deceased in the company of Ek-Ram and Baboo Ram. 34. Even if, the testimony of P.W.8 Harihar Giri be taken to be an independent testimony but it is silent on the point of last seen version as raised by witness Tula Ram. The learned trial Court has erred in relying upon the testimony of these two witnesses on the point of last seen and the findings recorded by the learned trial Court that as Baba had not any enmity to any one, he will not speak lie. The entire testimony of Baba as it is so it is a hearsay evidence and there is no evidence given by P.W.8 Harihar Giri regarding his lastly seeing the deceased Ram Chandra in the company of accused Ek-Ram and Baboo Ram. He has also not stated that he had seen Tula Ram in Jalsa. 35. The learned trial Court has not taken into consideration that P.W. 2 Tula Ram who is a resident of two kos away from the village had come to Jalsa and had an opportunity to see Ram Chandra deceased in the company of accused Ek-Ram and Baboo Ram. 35. The learned trial Court has not taken into consideration that P.W. 2 Tula Ram who is a resident of two kos away from the village had come to Jalsa and had an opportunity to see Ram Chandra deceased in the company of accused Ek-Ram and Baboo Ram. The learned trial Court has failed to take note that he is just a chance witness and his evidence did not stand supported by the testimony of any other witness of the village or Temple that is P.W.8 Harihar Giri to corroborate this fact and it was not safe to rely upon the testimony of chance witness which also suffer from the shortcomings as had been pointed out while discussing the testimony of witness Tula Ram. 36. The learned trial Court has also erred in not considering the fact that recovery of the alleged instrument of murder is made from an open field which is not in the exclusive possession of the accused and his having excess to all. The learned trial Court has wrongly relied upon the recovery though it has been made in sufficient day light and time yet no independent witness is sought to be procured or produced by the prosecution. The learned trial Court also committed error while ignoring to notice this fact that the blood which was found on the Gandasa was not chemically examined and was not proved to be a human blood. The learned trial Court has also mistakenally relied upon the testimony given by Doctor that injuries were found to be four days old because the presence of injuries and tenure of death as is made out from the post-mortem examination is required to be corroborated by the testimony of the witness narrating the strong circumstances to make out unbreakable chain of nexus in between the last seen story and recovery of dead body of the deceased after a lapse of four days in the absence of sufficient proof of last seen version being proved beyond all reasonable and probable doubts merely tenure of death being four days old, is not sufficient to hold the accused as guilty, as is found in the examination of the dead-body,. As such, the learned trial Court has wrongly relied upon the testimony of the doctor only without its due corroboration on the point of the last seen. As such, the learned trial Court has wrongly relied upon the testimony of the doctor only without its due corroboration on the point of the last seen. The learned trial Court has also failed to take note of the fact that the clots of blood were found on article 1, 2, 4 and 10 as per the Ex. Ka-22, and the blood found on clothes was matching with the blood found on the Gandasa and it was a human blood. 37. In this connection, it will be expedient to go through the case law as laid down by Hon’ble the Apex Court with regard to the circumstantial evidence which are as follows : In the case of Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 , wherein it has been held that: “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 in the first instance be 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. ....” 38. In another case of Padala Veera Reddy v. State of A.P., 1989 Supp. (2) SCC 706, wherein it has been held by Hon’ble Apex Court: “10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. (2) SCC 706, wherein it has been held by Hon’ble Apex Court: “10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held 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 guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the 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. 39. In another case of C. Chenga Reddy and others v. State of A.P., (1996) 10 SCC 193 , wherein it has been held: “21. 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. In the present case the Courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.” 40. In yet anther case of Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 , wherein it has been held that: “26. In the present case the Courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.” 40. In yet anther case of Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 , wherein it has been held that: “26. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however grave it may be, cannot be a substitute for a proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. 41. In yet another case of Sattatiya v. State of Maharashtra, (2008) 3 SCC 210 , wherein it has been held by Hon’ble Apex Court: “10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The Court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt 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.” 42. In yet another case of Brajendrasingh v. State of M.P., (2012) 4 SCC 289 , wherein it has been held by Hon’ble Apex Court: “28. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. 43. Thus, from the precedents as laid down by the Hon’ble Apex Court, it comes out an accused can be convicted not only on the basis of a direct evidence but also on the basis of circumstantial evidence but the chain of the circumstance narrated must be so closely intertwined and there must be no gap in between so as to raise a conclusive presumption of guilt of the accused and nothing else. Thus, from the discussions made aforesaid, it is apparently clear that the findings recorded by the learned trial Court regarding the prosecution proving its case beyond all reasonable and probable doubts are erroneous and not based on sound legal footings. The findings recorded by the learned trial Court is based on assumption and presumption and not on the sound legal footings likewise. The testimony of Tula Ram the witness of last seen has not been properly assessed by the learned trial Court and it is also wrongly relied upon on the basis of assumption and presumption. The learned trial Court has observed that as no witness was ready to depose the truth before the Court, in the circumstances the testimony of a related witness cannot be rejected is appeared to be entirely baseless and erroneous. 44. Considering aforesaid ruling and in accordance with the discussions made above, it s apparently clear that the prosecution has failed to prove its case against the accused appellants beyond all reasonable and probable doubts and the findings recorded by the learned trial Court are apparently erroneous and are liable to be set-aside. The appeal is allowed. 44. Considering aforesaid ruling and in accordance with the discussions made above, it s apparently clear that the prosecution has failed to prove its case against the accused appellants beyond all reasonable and probable doubts and the findings recorded by the learned trial Court are apparently erroneous and are liable to be set-aside. The appeal is allowed. The impugned judgement and order of the conviction dated 18.11.1982 passed by the learned Additional District and Sessions Judge, Bareilly in Session Trial No. 326 of 1981 (State v. Ek-Ram and another), is set-aside and the accused appellants are acquitted of the charges under Section 302/34 I.P.C. The accused appellants are on bail, they need not surrender before the trial Court, their personal bonds and sureties are hereby discharged. Let the copy of this judgement and order be certified to the learned trial Court for its intimation.