JUDGMENT Per : Hon’ble Servesh Kumar Gupta, J. Appellants convicts Jai Chand and Kuldeep have preferred the above titled appeals, are being decided together, against the judgment and order of their conviction dated 21.12.2010 rendered by 6th Additional Sessions Judge, Haridwar in Sessions Trial No. 193/2009. The said trial pertained to the Crime No. 21/2009, PS Shyampur, District Haridwar, whereby three accused persons, namely, Sandeep @ Bobby, Jai Chand and Kuldeep, were tried. On conclusion of the trial, all the three accused persons were found guilty of the offences under Section 364A, 302, 201/34 IPC and they were sentenced appropriately. This Court has been informed by the appellants’ Counsel that the third accused Sandeep @ Bobby has not preferred any appeal against his conviction. 2. The genesis of the prosecution story is that one Pushpendra @ VP Singh, S/o Rajendrra Singh was missing since 1 PM of 25.3.2009 from his house at Jwalapur, Haridwar. He left his home on his bike with mobile number ‘9756018646’ but did not return till the missing report was lodged on 26.3.2009 at 10 AM. A massive hunt was made by his father, but in vain. Hence, the missing report Ex. Ka-1 was lodged by Rajendrra Singh (PW1). Further, a report was given by Rajendra Singh to the PS Pathri. In addition to the facts, as were stated in the missing report, he informed to the police that some miscreants have demanded rupees twenty lakhs by making a ring call from the aforementioned mobile number of his son to the mobile number ‘9917185764’ belonging to his nephew. So, he narrated that his son had been kidnapped for ransom by the scoundrels, who were threatening too. It was further averred in the report that the voice of the criminal demanding the ransom has been recognized to be of Kuldeep, S/o Premchand, who hails from village Jiyapota. Besides, it was also stated that his son Pushpendra was seen in the company of Kuldeep, Sandeep @ Bobby and Jai Chand by Kusum Raj, Sukhveer and others. So, he was confident that all these three accused persons, hereinafter referred to as A1, A2 and A3 respectively, have kidnapped his son for ransom because all these three miscreants were not found available in their home. This additional report is Ex. Ka-2. Chick of missing report lodged earlier is Ex. Ka-4. 3. So, he was confident that all these three accused persons, hereinafter referred to as A1, A2 and A3 respectively, have kidnapped his son for ransom because all these three miscreants were not found available in their home. This additional report is Ex. Ka-2. Chick of missing report lodged earlier is Ex. Ka-4. 3. After lodging the report with the above averments, the police came into action and arrested A2 (Sandeep @ Bobby) on 28.3.2009. His arrest memo is Ex. Ka-7. As per the prosecution version, A2 confessed his guilt before the police by making the self-incriminatory statement to commit the murder of Pushpendra. He named A1 and A3 having complicity in the commission of crime. At the instance of A2, the dead body of Pushpendra was recovered from the jungle. Recovery memo is Ex. Ka-8. It bears the signature of Sandeep @ Bobby. At his instance, the rope which was used for strangulation was also recovered. Recovery memo is Ex. Ka-9, which bears the signature of A2. A jute bag wherein the dead body was packed was also recovered by the police. Its recovery memo Ex. Ka-10 bears the signature of A2. It was also revealed during the course of investigation that before the commission of crime, all the accused persons consumed liquor with the deceased. So, empty bottles of liquor and bear were also recovered at the instance of A2. Recovery memo thereof is Ex. Ka-11. It also bears the signature of A2. A1 was arrested by the police and at his instance, the SIM of IDEA Mobile Company was recovered from beneath a stone and that SIM was kept within a polythene wrapped further by some paper. Recovery memo thereof was prepared, which is Ex. Ka-12. It bears signature of A1 (Kuldeep). 4. Inquest report Ex. Ka-13 was prepared on 28.3.2009 at the place of recovery i.e. jungle of Shyampur. Inquest proceedings lasted till 19.30 hours of that day. Since the dead body was recovered on 4th day of the incident, so it was well-identified by his father Rajendra Singh as well as other persons of the village. The witnesses of the inquest report opined that the deceased died due to strangulation. Nonetheless, they recommended for the post-mortem. 5. The post-mortem report is Ex. Ka-3. It was prepared by Dr. SM Khan, who had conducted the autopsy on 29.3.2009 at 2.15 PM in District Hospital, Haridwar. The witnesses of the inquest report opined that the deceased died due to strangulation. Nonetheless, they recommended for the post-mortem. 5. The post-mortem report is Ex. Ka-3. It was prepared by Dr. SM Khan, who had conducted the autopsy on 29.3.2009 at 2.15 PM in District Hospital, Haridwar. The victim was 19 years’ old. The Doctor opined that the death had occurred about 5-6 days back and the cause of death was asphyxia due to strangulation. The following ante mortem injury was found on the dead body: (1) Ligature mark present, 35 cm x 2.5 cm area and the neck encircling 5 cm below right ear, 5.5 cm below the left ear, 4 cm below the chin and above the thyroid cartilage base of mark reddish and margins are ecchymosed. 6. So, this way we find that even if the accused persons had caused the murder on the same day on which the victim went missing, i.e. in the evening of 25.3.2009, even then the time estimated by the doctor does not match with the incident because if the time, as estimated by the doctor, is found to be true, then the death would have been caused sometime between the noon of 23.3.2009 to 24.3.2009, while the deceased had allegedly left his house on 25.3.2009 at 1 PM and latter he was seen on 25.3.2009 itself, as deposed by PW2 and his real uncle Sukhveer Singh in the company of the accused persons. 7. The investigation culminated into submission of the chargesheet Ex. Ka-14 against A1, A2 and A3 for the offences under Section 364A, 302, 201/34 IPC. The charges were levelled accordingly. All the accused persons abjured their guilt and claimed trial. 8. Prosecution examined 11 witnesses. Thereafter statements of the accused persons were recorded under Section 313 CrPC. They expressed their ignorance from the incident and told that the witnesses have given false evidence. 9. We have heard learned Counsel for the appellants as well as learned State Counsel nay perused the evidence available on the record. 10. PW1 Rajendra Singh has stated that he submitted the missing report of his son on 26.3.2009 i.e. on the next day of the incident. 9. We have heard learned Counsel for the appellants as well as learned State Counsel nay perused the evidence available on the record. 10. PW1 Rajendra Singh has stated that he submitted the missing report of his son on 26.3.2009 i.e. on the next day of the incident. But despite the disclosure made by PW2 about the last-seen of his son in the company of the accused persons, he did not make any mention about either of them in the report which he submitted on 26.3.2009. He has deposed that in the evening of 26th, a ring call was received on the mobile phone of his nephew Sonu demanding the ransom of rupees twenty lakhs. At the same time, PW3 Sonu has deposed that on 26th March, they were striving time and again to make the ring call to the mobile number of Pushpendra and the efforts were ultimately succeeded once. So, this way the statement of PW1 and PW3 are diagonally opposite because PW1 states about the receiving of phone call from the mobile phone of his son, while PW3 states that his effort to make the ring call on the phone of Pushpendra could be successful in the evening of 26th. PW1 could not identify that voice immediately, but it was identified by his nephew Sonu to be of A1. The version of both these witnesses regarding the phone call does not further match from the call details taken by the Investigation Officer from the office of the telecom company. The chart of the call details divulges that on 26.3.2009, the talks were made thrice from the mobile phone of PW3 to the mobile phone of the deceased. These calls were not consecutive, but there were other calls from another mobile phone number to the mobile phone of the deceased. The abovementioned three calls lasted for 105, 103 and 152 seconds respectively. So, the version of PW1 and PW3 does not match with the details of the phone call taken by the Investigation Officer from the office of the company. 11. PW1 has also deposed that on 27th March, the phone call was again received on the mobile phone of his nephew asking whether the arrangement of the money had been made or not. The voice then could be identified by him as well as by other villagers to be of A1. 11. PW1 has also deposed that on 27th March, the phone call was again received on the mobile phone of his nephew asking whether the arrangement of the money had been made or not. The voice then could be identified by him as well as by other villagers to be of A1. Here again, the statement of PW1 does not match with the call details of that day because on 27.3.2009, there were two outgoing phone calls (not one) at different times which were well received at the mobile number of PW3 and the duration of call was 238 and 180 seconds respectively. So, the version of PW1 that on 27.3.2009, one call was received on the mobile number of his nephew is not in consonance with the call records. Moreover, the voice identification without being scientific is not a conclusive proof. So, on the basis of this voice identification by PW1 and PW3, it is difficult to hold the appellant guilt of the alleged offences. 12. As regards the evidence of last-seen, which has been testified by PW2, Kusum Raj, this alone also cannot be taken as a substantial evidence to ascribe the guilt upon the accused appellants for the reason that as per PW2, deceased was allegedly seen on the public road at Ranipur Turn, Jwalapur which is a crowded place. It is unlike a desolate one. More so, if Kusum Raj had actually seen the deceased in the company of accused persons, then despite this disclosure to the father of the deceased, why their names were not revealed at the time of lodging the report Ex. Ka-1 so as to bring it to the notice of the police? No clarification has been offered for the same either by PW2 or PW1. 13. All the incriminating things like rope, used in strangulation, jute bag, bear and liquor bottles besides the dead body were recovered at the instance of A2. Only a SIM card of IDEA phone was recovered from beneath a stone lying under a tree at the instance of A1 and that SIM was kept within a polythene further wrapped by the paper. Only a SIM card of IDEA phone was recovered from beneath a stone lying under a tree at the instance of A1 and that SIM was kept within a polythene further wrapped by the paper. This story does not inspire confidence for the reason that even for an ordinary prudent person, it was not natural to keep the SIM of a mobile phone after using the same for demanding ransom in such a safe manner, as has been stated above, and destroying the mobile set which may have fetched some money to him. So, the recovery of SIM at the instance of accused Kuldeep is not believable and creates doubt in the entire prosecution story. Nothing was recovered at the instance of A3. A1 and A3 have been chargesheeted only on the statement of A2. So, we have to assess the evidence very carefully and with great circumspection. 14. Kuldeep has been implicated in the instant crime only on the basis of suspicion i.e. on the basis of identification of his voice without any scientific basis on the mobile phone and this cannot be accepted as a decisive proof. Here, we would like to rely upon an oflate precedent of Hon’ble Apex Court rendered in the case of Sujit Biswas v. State of Assam, reported in 2013 (82) ACC 467, wherein it has been reiterated that suspicion, however grave it may be, cannot take the place of proof, and there is large difference between something that ‘may be’ proved, and something that ‘will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between ‘may be’ and ‘must be’ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‘may be’ true and ‘must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before an accused is condemned as a convict, and the basic and golden rule must be applied. The large distance between ‘may be’ true and ‘must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in kind the distance between ‘may be’ true and ‘must be’ true, the Court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. 15. The Hon’ble Apex Court, in the above-cited judgment, has also relied upon the decades old principle of criminal jurisprudence held out in the case of Kali Ram v. State of Himachal Pradesh, reported in AIR 1973 SC 2773 , wherein it was observed as under: “Another golden thread which runs through the web of the administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.” 16. PW4 is Indraj Singh. This witness is of no avail to the prosecution because he only deposes about the confession by A2 on being inquired by the Investigation Officer in his presence. 17. PW5 is Dr. SM Khan, who has conducted the autopsy and has proved the autopsy report, as has been stated above. 18. PW6 Sushil Kumar is a formal witness. He is a Constable who has reduced in writing the missing report in the GD at the outpost of the police station and has proved the same. 17. PW5 is Dr. SM Khan, who has conducted the autopsy and has proved the autopsy report, as has been stated above. 18. PW6 Sushil Kumar is a formal witness. He is a Constable who has reduced in writing the missing report in the GD at the outpost of the police station and has proved the same. PW7, PW8 and PW9 are the Investigation Officers, who have either recovered various items or has submitted the chargesheet after culmination of the investigation. They have proved their respective papers. PW10 is again a police personnel, who received the subsequent report from the complainant on 28.3.2009 (Ex. Ka-2) and has ratified the same. PW11 is also a police personnel, who was deputed by the Senior Superintendent of Police to prepare the call details of both phone numbers, as has been discussed above, and has proved the same. 19. In view of our foregoing discussion of evidence, we are of the view that the prosecution has failed to conclusively prove the complicity of appellants Kuldeep and Jai Chand in the crime. So, we think it just and proper to extend the benefit of doubt to both these appellants. As such, both these appeals are acceptable. 20. Consequently, we allow both these appeals. We, accordingly, set aside the impugned judgment and order dated 21.12.2010 so far as it relates to the appellants Kuldeep and Jai Chand only. Conviction and sentence of both these appellants are hereby quashed. They are in jail. They shall be set at large forthwith if not wanted in any other case. Let a copy of this judgment and order along with LCR be sent to the court below for compliance.