JUDGMENT Per: U.C. Dhyani, J. 1. Informant Ramanand wrote a complaint (Ext. Ka-1) to Station Officer, police station Manglore (Haridwar) on 12.03.2003, enumerating the facts contained therein that co-villager (accused) Om Pal s/o Ikram borrowed Rs. 30,000/- from Vipin (informant’s son) about 20 days ago. Om Pal promised Vipin that he would pay back the money after the marriage. On 11.03.2003, at 03:00 P.M., co-villagers Om Pal s/o Ikram and Ranu s/o Om Pal came to informant’s house. They told Vipin to accompany them to their house and settle the accounts. Vipin went with Om Pal and Ranu in presence of informant, Rajeev and Rahul. Vipin did not return that night. On the next day morning, at 7 o’clock, informant, Anuj, Mubarik, Navbahar and Braham Singh went to the house of (accused) Om Pal. Om Pal’s wife Sudeshna met them in the house. Blood was found spilled over the floor of Om Pal’s house. Blood was being camouflaged by cow-dung by Sudeshna. When the informant alongwith others inquired about the whereabouts of Vipin, Sudeshna reluctantly acknowledged killing of Vipin on 11.03.2003, at 05:00 P.M. She also acknowledged that the dead body of the victim was carried somewhere in a buffalo cart. 2. FIR (Ext. Ka-10) was lodged on 12.03.2003, at 09:10 A.M. in police station Manglore, Roorkee, District Haridwar, which was registered as case crime no. 70 of 2003, under Sections 364, 302, 201 of IPC. A separate case crime no. 76 of 2003 was also registered against accused Vishwas alias Lala, as regards the offence punishable under Section 25 of Arms Act. After completion of investigation of both the cases, separate charge sheets were submitted against the accused persons. Charge-sheet (Ext. Ka-16) was submitted against six accused persons, including the appellants, for the selfsame offences. Another charge sheet for the offence punishable under Section 25 of Arms Act was submitted against accused Vishwas alias Lala. Both the cases were committed to the Court of Sessions. When the trial commenced and prosecution opened it’s case charges under Section 364 of IPC, Section 302 read with Section 149 of IPC and Section 201 of IPC were framed against all the accused persons, who pleaded not guilty and claimed trial. A separate charge for the offence punishable under Section 25 of Arms Act was framed against accused Vishwas alias Lala, who denied the charge and claimed trial. 3. A separate charge for the offence punishable under Section 25 of Arms Act was framed against accused Vishwas alias Lala, who denied the charge and claimed trial. 3. PW1 Ramanand, PW2 Rajeev Kumar, PW3 Mubarik Singh, PW4 Karan Singh, PW5 Harendra Singh, PW6 Ompal Singh s/o Dile Ram, PW7 Navbahar, PW8 Constable Yogendra Singh, PW9 S.I. Resham Singh, PW10 Constable Ram Dhan, PW11 Dr. Shashi Kumar Agnihotri, PW12 Head Constable Om Pal Singh, PW13 S.H.O. B.D. Uniyal and PW14 S.I. C.S. Chauhan were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. It was also stated that the victim was a man of criminal antecedents. No evidence was given in defence. After considering the evidence on record, learned Addl. Sessions Judge, Haridwar, vide judgment and order dated 23.10.2009, convicted accused-appellants Om Pal and Ranu under Section 302 of IPC. Both of them were sentenced to imprisonment for life alongwith a fine of Rs. 10,000/- each. Accused-appellants Om Pal, Ranu, Vishwas alias Lala, Smt. Sudeshna and Satyendra were convicted under Section 201 of IPC and were sentenced to undergo rigorous imprisonment for four years alongwith a fine of Rs. 5,000/- each. Accused-appellants were exonerated of other charges levelled against them. Aggrieved against the impugned judgment and order, two separate criminal appeals were filed by the appellants. Since both the appeals have arisen out of same incident, therefore, they are being decided by this common judgment and order for the sake of brevity. 4. Prosecution led the evidence through PW1, who was the father of the deceased and, who set the criminal law into motion by lodging the FIR. PW1, in his examination-in-chief, proved the contents of Ext. Ka-1. PW1 also said that he put in his signatures on Ext. Ka-1, which was written by Arvind Kumar (scribe). PW1’s examination-in-chief was almost the verbatim reproduction of the contents of Ext. Ka-1. 5. PW2 was also present when accused-appellants Om Pal and Ranu took the victim alongwith them from the victim’s house in presence of PW1 and PW3. PW3 supported PW1 and PW2. PW1, PW2, PW3 proved what was written in Ext. Ka-1. 6. PW4 saw on 11.03.2003, at 05-05:30 P.M., that the victim was lying on the cot at Om Pal’s house. PW2 was also present when accused-appellants Om Pal and Ranu took the victim alongwith them from the victim’s house in presence of PW1 and PW3. PW3 supported PW1 and PW2. PW1, PW2, PW3 proved what was written in Ext. Ka-1. 6. PW4 saw on 11.03.2003, at 05-05:30 P.M., that the victim was lying on the cot at Om Pal’s house. Accused-appellants were pulling the cot of Vipin inside the room. PW5 saw accused-appellants going towards canal riding on buffalo cart on 11.03.2003 in the night. PW6 saw that Sudeshna was camouflaging blood by applying cow dung over it. Police recovered cot, planks of buffalo cart and blood stained fibers woven in the cot. PW7 also accompanied PW1, PW2, PW3 to the house of Om Pal, where they found blood spilled over the floor of the house of Om Pal. 7. PW8 was the witness to the recovery of spade found on the pointing of accused Ranu. PW9 received an information that the dead body of Vipin was lying in decomposed state near Nirgajani jhal. PW9 also prepared inquest report of the deceased and sent the dead body for postmortem examination. PW10 proved chik FIR (Ext. Ka-10) and entry of the same in G.D. (Ext. Ka-11). 8. PW11 conducted postmortem on the dead body of Vipin and proved postmortem report as Ext. Ka-12. The Medical Officer found ante mortem injuries on abdomen and chest of the victim at four places. The cause of death of victim was haemorrhage and shock as a result of ante mortem injuries. When the postmortem was conducted, the dead body was in a decomposed state. PW12 proved chik FIR and G.D. relating to offence punishable under Section 25 of Arms Act. PW13 was the Investigating Officer of the case as regards offences punishable under Sections 364, 302, 201 of IPC, who inspected the place of incident, proved site plan (Ext. Ka-15), prepared memo (Ext. Ka-2) of bloodstained cot and cloth, fibre woven in the cot, planks of cot etc. as also memo (Ext. Ka-3) of bloodstained pieces of planks of buffalo cart. He also effected arrest of accused-appellants, prepared recovery memo (Ext. Ka-5) of recovery of spade used in the commission of crime on the pointing of accused-appellant Ranu. PW13 also prepared memo (Ext. Ka-6) of the recovery of country made pistol on the pointing of accused Vishwas and submitted charge sheet (Ext. Ka-3) of bloodstained pieces of planks of buffalo cart. He also effected arrest of accused-appellants, prepared recovery memo (Ext. Ka-5) of recovery of spade used in the commission of crime on the pointing of accused-appellant Ranu. PW13 also prepared memo (Ext. Ka-6) of the recovery of country made pistol on the pointing of accused Vishwas and submitted charge sheet (Ext. Ka-16) against the accused-appellants. PW14 was the Investigating Officer of the case under Section 25 of the Arms Act. 9. A bird’s eye view of the above evidence will indicate that nobody saw the killing of the victim. None of the prosecution witnesses said that they saw killing of Vipin by accused-appellant Ompal and others. In other words, there is no direct evidence. It is a case of circumstantial evidence, in which there is, at the most, last seen evidence tendered by PW1, PW2 and PW3. The evidence tendered by PW4, PW5 does not, at all, inspire confidence. [If the victim was killed on 11.03.2003, at 05-05:30 P.M., as per the statement of PW4 and his dead body was taken on a buffalo cart during the intervening night of 11/12.03.2003, as per the statement of PW5, why then accused-appellant Sudeshna will camouflage blood by applying cow-dung so late in the morning of 12.03.2003? As if, Sudeshna was waiting for the arrival of PW1, PW2, PW3 (PW6, PW7) to witness the same? She would have, in normal course, done the same in the previous evening itself.] In other words, there is only evidence of having last seen victim in the company of accused-appellants Om Pal and Ranu on 11.03.2003. 10. In addition to that, some human blood was seized from the house of the accused-appellants. Accused-appellant Sudeshna gave confessional statement to PW1 in the morning of 12.03.2003 regarding killing of Vipin by the accused-appellants. Bloodstained cot was recovered on the selfsame day at 11:05 A.M. Buffalo cart was also recovered on the same day at 11:40 A.M. Why did PW1 and others did not bother about their son the whole night? What prevented them from enquiring the whereabouts of the victim from the appellants, who were the co-villagers, the same evening, before the advent of dusk? All the accused-appellants (except Ranu) stated in their statements under Section 313 of Cr.P.C. that the deceased was a man of criminal antecedents. What prevented them from enquiring the whereabouts of the victim from the appellants, who were the co-villagers, the same evening, before the advent of dusk? All the accused-appellants (except Ranu) stated in their statements under Section 313 of Cr.P.C. that the deceased was a man of criminal antecedents. PW1 admitted in his cross-examination that Vipin was facing a trial of kidnapping/abduction of a girl. PW1 also admitted that he (PW1) underwent trial in connection with rape and murder of the wife of one Sobha Ram. It is just possible that PW1 and others did not bother about the victim and did not trace him in the night of 11/12.03.2003, because the same was the usual itinerary of the victim. It might be possible that he was a vagabond. But once accused-appellants Sudeshna divulged the fact of killing of victim, why did it take about a fortnight to trace the dead body of the victim? The informant and his family members came to know on the very next day that Vipin was done away with by the accused persons. This is being said because the dead body of the deceased was found in decomposed state, as is evident from the inquest report, as also from the postmortem report. Although the photographs of the dead body were taken, but it is difficult to establish whether the same was the dead body of Vipin or not? PW11 opined in his report that the dead body was two weeks’ old when the postmortem was conducted. 11. Recovery of spade on the pointing of accused-appellant Ranu was also doubtful. Recovery memo (Ext. Ka-5) regarding recovery of spade was prepared by the policemen. The said recovery memo had nothing to do with co-accused Vishwas alias Lala. Why then the signatures of both Ranu and Vishwas alias Lala were obtained on Ext. Ka-5? The same denotes that the signatures were obtained on plain papers and later on the contents were filled up as per the wish and convenience of the police personnel. The signatures of Vishwas alias Lala were also taken on a separate memo (Ext. Ka-6) regarding recovery of country made pistol, which recovery memo does not contain, and rightly so, the signatures of accused-appellant Ranu. Recovery of spade was made after seven days of the incident. The signatures of Vishwas alias Lala were also taken on a separate memo (Ext. Ka-6) regarding recovery of country made pistol, which recovery memo does not contain, and rightly so, the signatures of accused-appellant Ranu. Recovery of spade was made after seven days of the incident. Although it was said that the spade contained the spots of dried blood and was sealed on the spot on 21.03.2003, at 01:15 P.M., but how do we know that the same spade was sent to Forensic Science Laboratory? It was not indicated that the blade of the spade was sealed, which seal was opened by the Scientist at Forensic Science Laboratory, at the time of conducting chemical examination. Although PW13 said that the spade was got recovered at the instance of accused-appellant Ranu, but it was not established that the recovered spade was the same spade, which was used in the commission of crime. Further, it was not established that the blade of same spade was sent to Forensic Science Laboratory for chemical examination. 12. Use of spade in the commission of crime was also doubtful. Postmortem report (Ext. Ka-12) denoted ante mortem injuries at four places in front of abdomen and chest, but it was not evidenced that the same was caused by the user of spade. In other words, although it was mentioned in the postmortem report that there were injuries on abdomen and chest on the dead body of victim, but it could not be said that those ante mortem injuries were sustained by a sharp edged weapon, like spade. The skin of the victim was not perforated. Where was the injury, inflicted upon the person of the victim, which permitted oozing out of blood? To make it clear, if a sharp edged weapon, like spade, will be used for assault, it will perforate epidermis/cortex of the skin and blood will ooze out in the process, but the postmortem report did not suggest the same (perhaps because unidentifiable body was in decomposed state). To make it further clear, there was no injury of spade. Postmortem report did not indicate the same. Dead body of the victim did not have any mark of injury to suggest that blood oozed out from the injury inflicted by the blows of spade. 13. To make it further clear, there was no injury of spade. Postmortem report did not indicate the same. Dead body of the victim did not have any mark of injury to suggest that blood oozed out from the injury inflicted by the blows of spade. 13. Cot, pieces of bloodstained parts of cot, plastic fiber, quilt, piece of cloth, spade, wooden pieces were sent to Forensic Science Laboratory on 30.10.2003. Although human blood was found on some of the items which were sent to FSL, but since the blood spots were disintegrated, therefore, neither their origin nor blood group could be ascertained. The articles were sent to FSL through Special Messenger on 11.07.2003. The first report of FSL was missing and, therefore, second copy of the report was issued on 25.04.2009. 14. A suggestion was made by defence to PW1 that accused-appellant Om Pal did not borrow money from the victim. Such suggestion gains ground in view of the fact that monetary transaction between the deceased and the accused-appellant Om Pal was not proved. The prosecution could not prove the financial transaction between the two. In the absence of any motive to kill the victim, it could not be established that accused-appellants Om Pal and Ranu took the victim alongwith them to settle the accounts. Had there been direct evidence, the motive to commit the crime would have faded into oblivion, but the same is not applicable in the instant case, in as much as, it is not a case of direct evidence. The statements of the prosecution witnesses in this respect were mutually destructive. It is a case solely based upon circumstantial evidence, in which there is, at the most, last seen evidence. Chain of circumstances is not complete so as to infer that the accused-appellants and none else committed the murder of the victim. The accused-appellants, therefore, deserve to be given benefit of doubt. 15. Having considered the facts and circumstances of the case enumerated above, the accused- appellants are entitled to be exonerated of the charge of offences levelled against them giving them benefit of doubt. 16. Criminal appeals preferred by the accused-appellants are, therefore, allowed. The conviction and sentence awarded to the accused-appellants by the court below is hereby set aside. Accused-appellants are on bail. Their bail bonds are cancelled and the sureties discharged. They need not surrender. 17. 16. Criminal appeals preferred by the accused-appellants are, therefore, allowed. The conviction and sentence awarded to the accused-appellants by the court below is hereby set aside. Accused-appellants are on bail. Their bail bonds are cancelled and the sureties discharged. They need not surrender. 17. Let a copy of this judgment alongwith the lower court records be sent to the Court below for compliance.