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Himachal Pradesh High Court · body

2014 DIGILAW 1107 (HP)

Naresh v. State of H. P.

2014-08-21

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, J. Both these appeals are being disposed of by a common judgment as these appeals arise out of a common judgment, passed by the learned Additional Sessions Judge, Sirmaur District, at Nahan. 2. These appeals are directed against the judgment, rendered on 03.01.2008, by the learned Additional Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions trial No.9-N/7 of 2006/05, whereby, the appellants/accused persons have been convicted and sentenced as under :- Section Sentence(s) 302 read with Section 34 IPC Sentenced to rigorous imprisonment for life and to pay fine of Rs.10,000/- each, in default, they shall undergo further one year imprisonment. 392 read with Section 34 IPC Sentenced to rigorous imprisonment for five years and to pay fine of Rs.10,000/- each, in default, they shall undergo one year imprisonment. 3. The, brief facts, of the case are that on 25.6.2005, Brij Lal Sharma, son of the deceased, lodged an F.I.R., with the police, to, the effect that on 21.06.2005, at about 11.00 a.m., two persons came to their house, in, a black Suzuki and submitted that they require a tractor, to, carry some goods. His younger brother, Neeraj Sharma, as, narrated therein, recognizes these persons. At about 11.30 a.m., his father alongwith the said accused persons, took the tractor, and, went away with them. The family members of the deceased searched for him, at all the probable places, yet he could not be found. He apprehends that both the aforesaid persons, with whom his father went with tractor, may have killed his father. 4. On conclusion of the investigation into the offence, allegedly committed by the appellants/accused, challan against both the accused was filed, under Section 173 of the Code of Criminal Procedure, in, the committal Court. On the case having been committed for trial to the Court of learned Sessions Judge, Sirmaur, the latter court assigned it for trial, to, the Court of Additional Sessions Judge, Sirmaur. The Court of learned Additional Sessions Judge, Sirmaur, charged both the accused, for, theirs having committed offences punishable under Sections 302, and 392 read with Section 34 of the IPC, to, which accused pleaded not guilty and claimed trial. 5. In proof of the prosecution case, the prosecution examined as many as 25 witnesses. The Court of learned Additional Sessions Judge, Sirmaur, charged both the accused, for, theirs having committed offences punishable under Sections 302, and 392 read with Section 34 of the IPC, to, which accused pleaded not guilty and claimed trial. 5. In proof of the prosecution case, the prosecution examined as many as 25 witnesses. On closure of the prosecution evidence, statements of appellants/accused under Section 313 Cr.P.C. were recorded by the Court, in, which they claimed false implication, and, pleaded innocence. In defence, the appellants/accused, chose to, lead evidence in defence. They tendered in defence evidence, certified copy of judgment Ex. DA, and, closed the defence evidence. 6. On appraisal of evidence on record, the learned trial Court convicted and sentenced the accused for theirs having committed the offences, aforesaid. 7. The first witness, who stepped into the witness box, to prove the prosecution case, is, PW-1 (Brij Lal), the informant, the son of the deceased. He deposes that his father was the owner of tractor trolley bearing No. HNA-9135. He further deposes that he run a shop of Maniyari in front of his house. On 21.6.2005, he was in his own shop, and, in the evening his younger brother Niraj Sharma told him, that at about 11.30 a.m, two persons had come on a black coloured Suzuki Motor Cycle, who were recognizable by the latter. The said persons had taken the tractor trolley, which was driven by his father. He continues to depose that when his father did not return alongwith the tractor then his younger brother told him about the fact that their father had taken the tractor trolley on the request of the aforesaid accused person, and thereafter they started making a search for him till 25.6.2005. On 25.6.2005, at about 2.30 p.m. he deposes that he and his brother, made a report with the police that their father may have been killed by those persons. He admits his signature in F.I.R. comprised in Ext.PW-1/A. He further deposes that after about 15-20 minutes, when they lodged the report, a telephonic message was received at Police Station, Paonta, that one dead body was found, in, the jungle, which was lying under a Puliya. He admits his signature in F.I.R. comprised in Ext.PW-1/A. He further deposes that after about 15-20 minutes, when they lodged the report, a telephonic message was received at Police Station, Paonta, that one dead body was found, in, the jungle, which was lying under a Puliya. Thereafter, he deposes that the police had asked him and his younger brother Niraj, to, visit the spot where the dead body was lying, and, after seeing the dead body, they identified the dead body to be of their father. He further deposes that the dead body was found to have an injury on the right side of head near ear/temple. He further deposes that near the dead body, a red coloured blood stained Parna was found lying, which belonged to his father. He further deposes that there was a Parna, blue in colour, having checks, which was found encircled around the neck of his father and that Parna was identified by his brother Niraj to be the same which was being carried by one of those two persons, who had taken away the tractor, being driven by his father. The police clicked the photographs of the dead body and also prepared the inquest papers. Thereafter, the dead body was sent for post mortem. On 7.8.2005, he deposes that he was called by the police, and, was associated in the investigation. At that time, both the accused persons present in the Court were with the police. He deposes that the accused persons took the police to Shahbad and identified the shop of one lady, who deals in scrap business, and, told that the trolley of the tractor had been sold to her. At that time the lady to whom the accused persons had sold the tractor revealed theirs having sold the trolley to her for Rs.16,000/-. He continues to depose that the lady had confirmed that accused persons had sold the trolley to her for Rs.16,000/- and further divulged that she had converted the trolley into scrap. He further deposes that on the scrap word ‘OM’ was found written, wherefrom they identified the scrap to be that of their trolley. The police had taken into possession the chassis of the trolley and some pieces of scrap, vide memo Ext.PW-1/B, which has been deposed to be bearing his signature as identifier. He further deposes that both the accused persons had also singed this fard. The police had taken into possession the chassis of the trolley and some pieces of scrap, vide memo Ext.PW-1/B, which has been deposed to be bearing his signature as identifier. He further deposes that both the accused persons had also singed this fard. Thereafter, both the accused persons took the police to some other shop and disclosed to have sold the thrasher, which was loaded on the tractor trolley. He further deposes that the thrasher could not be taken into possession, as, it had been converted into scrap and further sold to some one. In this regard Fard Nishandehi Ext.PW-1/C, has been deposed to have been prepared, which the witness deposes to have signed. He further deposes that the accused persons also singed it. He continues to depose that the accused persons then took the police to the workshop styled as eicher tractor work shop, owned by Vishwanath, to whom the accused persons had sold the tractor for Rs.27,000/-, out of which, they had already received Rs.25,000/-, and, the balance amount was to be received lateron. The witness thereafter deposes that in the workshop tractor No. UG-7871, again stated only 7871 was found parked. He again proceeded to depose that the number was HYQ 7871. He further deposes that on seeing the tractor, it was found that the tractor was of bearing No. HNA-9135. He further deposes that they identified the tractor as it had blue colour on the mud guard, red diesel tank and there were lines on the wheels of the tyres. He continues to depose that they identified the tractor from its engine and chassis number, as mentioned in the RC, available with them. He deposes that the tractor was taken into possession vide memo Ext.PW-1/D, which was signed by this witness, as well as the witnesses Rattan Lal and Rajinder Kumar. He further deposes that both the accused persons also signed the memo. In his cross-examination, he deposes that till the lodging of the F.I.R, the identity of the accused persons had not been known. He continues to deposes that at the time of lodging of report Niraj had told him about the description of the persons and also about their clothes, which they were wearing. He feigns ignorance qua his having told the police that the persons who had taken away the tractor belonged to Ilaqua Mullana Hamidpur Gauan Haryana. He continues to deposes that at the time of lodging of report Niraj had told him about the description of the persons and also about their clothes, which they were wearing. He feigns ignorance qua his having told the police that the persons who had taken away the tractor belonged to Ilaqua Mullana Hamidpur Gauan Haryana. He continues to depose that on 24.6.2005 when they were inquiring about their father in Haryana and when they gave description of the persons and the clothes which the accused persons were wearing and also the Parna, they were told that such persons belonged to Hamidpur, Haryana. He feigns ignorance whether he had narrated the fact regarding the persons being of Hamidpur in the F.I.R. However, when the attention of the witness was drawn towards Ext.PW-1/A, it, was not found so recorded. 8. PW-2, Ram Lal, deposes that in the year 2005 he was posted as B.O. Wild Life, Shimbal Bara. That on 25.6.2005, when he alongwith Jai Pal, Forest Guard, were patrolling in the jungle when at about 12.45/1.00 p.m. they reached a place where there is a Puliya on the road, where they felt a foul smell. In order to find out from where the smell was coming, they made a search and when they reached under the Puliya, they noticed a dead body lying there. He continues to depose that on foot they came to Puruwala and then went to P.P.Majra and gave this information to the police which was reduced into writing and thereafter the police of P.P. Majra telephonically informed the Police Station, Paonta, from where the police came and they accompanied the police to the place where the dead body was lying. He further deposes that on the spot, somebody who accompanied them identified the dead body to be that of his father. 9. PW-3, Niraj Sharma, deposes that on 21.6.2005 at about 11.00 a.m, he and his father were watering the fields. In order to take rest, his father sat under a tree. In the meantime, two persons came there on a motor cycle black in colour of Suzuki make. He deposes that one of them was of dark complexion and the other was of fair complexion. Moreover, the person with black complexion had supported a Parna blue and white in colour having checks around his neck. In the meantime, two persons came there on a motor cycle black in colour of Suzuki make. He deposes that one of them was of dark complexion and the other was of fair complexion. Moreover, the person with black complexion had supported a Parna blue and white in colour having checks around his neck. The person who was thin was having sharp edged nose, again stated that the person who was well built and having fair complexion was having sharp edged nose and also small moustaches. He deposes that both the aforesaid persons had a talk with his father, since he was standing nearby, the accused persons asked his father to come to one side so that they could have a talk with his father alone. Thereafter, his father told him that he had to go upto Bilaspur and then his father called his brother Kamal and asked him to drive the tractor trolley. This witness deposes that Kamal did not come and for this reason his father drove the tractor himself after brining the key from inside. He further deposes that his father used to go out occasionally on local trips. He further deposes that the two persons also went on the motor cycle when his father drove away the tractor trolley. He deposes that the person who was well built was driving the motor cycle. This witness further deposes that although his father had told him to return in the evening but he did not turn up, upon this, he informed his elder brother Brij Lal. Thereafter, he deposes that they started making search for their father but he could not be traced. On 25.6.2005, he deposes, that his brother Brij Lal lodged a report with the police. He deposes that when a dead body was found on 25.6.2005, he alongwith Brij Lal went to the spot alongwith the police. They identified the dead body to be that of their father. Nearby the dead body a towel, red in colour having blood stains was found. Around the neck of the dead body, there was a Parna, white and blue in colour having checks. He deposes that the Parna which was found around the neck of the dead body, was the same which was carried by one of those persons who had come to hire the tractor trolley from his father on 21.6.2005. Around the neck of the dead body, there was a Parna, white and blue in colour having checks. He deposes that the Parna which was found around the neck of the dead body, was the same which was carried by one of those persons who had come to hire the tractor trolley from his father on 21.6.2005. He came to identify in the Court both the accused to be the same persons. During the course of cross-examination this witness deposes that before lodging the F.I.R it was not known to him as to who were the persons who had hired the tractor and that the place to which they belong. He deposes that he had accompanied his brother Brij Lal when the F.I.R was lodged. 10. PW-4 Dr. Anand, Medical Officer, Civil Hospital, Paonta Sahib, deposes that he conducted the post mortem on the dead body of Ram Swaroop. The dead body was brought by the police and was identified by Sh. Niraj Sharma and Anil Kumar. He deposes that post mortem was conducted on 26.6.2005 at 10.30 a.m. On the external appearance, the following injuries were observed :- “Putrifying, highly decomposed body of an adult male, maggots present, Rigour mortis absence, skin and hair absent from face and scalp, skull, nasal and mandible bones partially exposed.” He deposes that post mortem report Ext.PW-4/B was issued by him and bears his signature. He further deposes that the person dies owning to the fracture of skull on the right pareato-temporal region alongwith the injuries to the underlying vital centers of brain. 11. PW-5 HHC Amar Singh deposes that on 25.6.2005 information received from P.P.Majra, was entered in Rapat No.22, by him. He has proved the rapat rojnamcha register in Court. 12. PW-6 Kamal Sharma, deposes that on 21.6.2005 at about 11/11.30 a.m when he was sleeping in his house, his father called him. At that time, his father had asked from him regarding the fare upto Bilaspur as some person had come to hire the tractor. He had told the fare to be Rs.1500/- but those persons were offering Rs.1300/-. However, the fare was settled at Rs.1400/-. This witness further deposes that his father had asked him to take the tractor as he used to drive it. Thereafter, his father had inquired as to how much money was required for diesel. Upon this, he apprised that Rs.400/- was required for diesel. However, the fare was settled at Rs.1400/-. This witness further deposes that his father had asked him to take the tractor as he used to drive it. Thereafter, his father had inquired as to how much money was required for diesel. Upon this, he apprised that Rs.400/- was required for diesel. Consequently, he deposes that his father asked him to bring a Tarpal of Rs.1000/-. He further deposes that his father took away the tractor himself because he wanted to buy the Tarpal of his own choice. He further apprised him that he was going to Bilaspur and would come in the evening but he did not return in the evening. For about 2/3 days, he deposes that they kept on searching from their relatives and neighbours. He continues to depose that when his father drove away the tractor, at that time, those two persons had also gone on a motor bike. He deposes that when his father did not return, his brother Brij Lal lodged the report with the police. In cross-examination this witness deposes that when those persons had come to hire the tractor it was not known to them to which place they belonged. 13. PW-7 Baldev Raj Kakar, Deputy Superintendent, Model Central Jail, Nahan, deposes that on 4.8.2005 a letter from Judicial Magistrate was received for making arrangement for test identification and as per the direction he had made the necessary arrangement for the test identification parade in the jail but the same could not be conducted as the accused persons had refused to participate in the same. 14. PW-8 Megh Nath, deposes that he alongwith Sunil Sharma had gone to police station, Paonta Sahib in order to lodge an F.I.R. At that time, the accused persons disclosed that they had thrown a dead body below a pulliya and that they could identify that place. He continues to depose that in consequence to their such statement, both the accused persons took them and the police at that place. The police had taken photographs of that place and also prepared site plan as well as Fard Nishandehi which is Ext.PW-8/B and is deposed to be bearing his signature as well as of witnesses. He continues to depose that the accused Naresh Kumar also made a disclosure statement regarding the stone which he had thrown in bushes and that he could get recovered it. He continues to depose that the accused Naresh Kumar also made a disclosure statement regarding the stone which he had thrown in bushes and that he could get recovered it. This statement is Ext.PW-8/C and bears his signature as well as of witness Sunil Kumar. He deposes that the accused person took the police and them to the place and got recovered stone from the bushes, which was sealed in a parcel and taken into possession vide memo Ext.PW- 8/D. 15. PW-9 Yasin Ali, Forest Guard deposes that on 21.6.2005 at 4.00 p.m he was on duty. A tractor bearing No. HNA 9135 came from Batapul side and entry in that regard was made in register which is Ext.PW-9/A. He continues to depose that the accused persons are the same persons who came to barrier on the said date. He further deposes that the police during investigation took into possession the register Ext.PW-9/B and prepared the recovery memo Ext.PW-9/C which bears his signature. In cross-examination he admits the suggestion that the entry at mark A in Ext.PW-9/A is in different ink than the rest of the entry. He also admits that this entry must have been made by Desh Raj lateron. He further admits that there is no mention of name of Babu Ram in the register. He also admits that the entry was made by Desh Raj, Forest Worker. He also concedes that his signature does not appear in the register. 16. PW-10 Constable Navinder Singh deposes that on 6.8.2005 the police took into possession register of Forest Barrier Palhodi, which is Ext.PW-9/B vide recovery memo Ext.PW-9/C and bears his signature as a witness. 17. PW-11 HC Raghubir Singh, deposes that on 27.6.2005 SHO Narveer Singh handed over to him three packets and among them one packet was containing seal of seal impression ‘A’. On 30.6.2005 he handed over those parcel to Karam Jeet Singh to deposit the same with FSL, Junga. 18. PW-12 Labh Kaur deposes that about 2 years ago two persons came to her shop at Shahbad. They told her that they want to sell the trolley as they wanted to purchase a new trolley. She deposes that they sold the trolley to her for Rs.16,000/-. Since the trolley was not in working condition hence she deposes that she converted some part of the trolley into scrap. They told her that they want to sell the trolley as they wanted to purchase a new trolley. She deposes that they sold the trolley to her for Rs.16,000/-. Since the trolley was not in working condition hence she deposes that she converted some part of the trolley into scrap. The police had taken into possession scrap and trolley vide memo Ext.PW-1/B. She identified the person who sold her the trolley to be the accused persons present in the Court. In cross-examination she deposes that no receipt of purchase of trolley was taken nor any receipt was prepared in her shop. She also deposes that she had cut the trolley to the extent of small portions and the scrap of trolley is kept lying in her shop. She deposes that police inspector with sikh gentlemen visited her shop earlier and at that time the accused persons were with the Inspector. 19. PW-13 Vishwa Nath deposes that on 24.6.2005 Babu Ram and Naresh Kumar came to his shop alongwith a tractor bearing No. HYQ-7871 and told him that they wanted to sell the said tractor as it had become old and the cost of maintenance is very high. He deposes that a receipt was prepared and he purchased the tractor, which is Ext.PW-13/A and bears his signature. He deposes that the accused persons also signed the receipt and are present in Court. He further deposes that on 7.8.2005 police came with accused Babu Ram and Naresh to his shop alongwith the owner of the tractor. Police took the tractor into possession vide memo Ext.PW-1/B. In cross-examination this witness deposes that the accused had their own tractor and they used to visit his workshop for repair of the tractor. He further deposes that S.I. Gurdeep Singh had come to make recovery of the tractor on 7.8.2005 and prior to that about 20 days back he had come to his workshop and had seen the tractor and had inquired from him as to the purchase of the tractor. 20. PW-14 Gurprit Singh deposes that he deals in scrap business. He further deposes that he purchased one thresher from two person, which was brought by them on a trolley. He purchased the thresher at the rate of scrap for Rs.7000/-. He deposes that he converted the thresher into the scrap and sold it further. 21. 20. PW-14 Gurprit Singh deposes that he deals in scrap business. He further deposes that he purchased one thresher from two person, which was brought by them on a trolley. He purchased the thresher at the rate of scrap for Rs.7000/-. He deposes that he converted the thresher into the scrap and sold it further. 21. PW-15 Constable Karamjeet Singh deposes that on 30.6.2005 MHC Raghubir Singh handed over to him three packets out of which one was having seals bearing impression A and 2 packets were bearing impressions of seal CH alongwith sample seals. On the same day, he deposited the above samples with FSL, Junga. 22. PW-16 deposes that he is an agriculturist. He deposes that he had a thresher which was not in working order and he sold it to the accused persons, who are present in the Court, as scrap, as the accused persons were dealing in the trade of scrap. 23. PW-17 deposes that on 20.9.2005 at the instance of the police he prepared spot map of Jungle, Shimblebara and marginal notes are also written by him. 24. PW-18 deposes that on 11.8.2005 Babu Ram and Naresh Kumar were brought by the police for taking their specimen signatures. He recorded their statements to this effect as they refused to give their specimen handwriting/signature. 25. PW-19 Narbeer Singh, deposes that on 25.6.2005 Brij Lal Sharma lodged a report Ext.PW-1/A with the police and the F.I.R bears his signature. He prepared the spot map Ext.PW- 19/A. The marginal notes are also in his hand. After preparation of inquest reports Ext.PW-3/A and Ext.PW-3/B he sent the dead body for post mortem. He deposes that he handed over the case file to S.I. Gurdeep Singh for further investigation and had also prepared the challan of the case which bears his signature. 26. PW-20 deposes that, on 3.7.2005 on the direction of SDPO, Paonta Sahib, the case file was handed over to him for further investigation. He deposes that during the investigation the accused persons disclosed that they can point out the place where they have thrown the dead body of Ram Swaroop and in this regard Ext.PW-8/A was prepared. After completion of the investigation he handed over the file to SHO Narbeer Singh for the preparation of the challan. 27. He deposes that during the investigation the accused persons disclosed that they can point out the place where they have thrown the dead body of Ram Swaroop and in this regard Ext.PW-8/A was prepared. After completion of the investigation he handed over the file to SHO Narbeer Singh for the preparation of the challan. 27. PW-21 deposes that certificate regarding ownership of tractor No.HYQ-7871 was sought by the police and after looking into the record, he issued certificate Ext.PW-21/A and bears his signature. 28. PW-22 deposes that a certificate regarding ownership of tractor No.HNA-9135 was issued by his office which is Ext.PW-22/A and is correct as per the record. 29. PW-23 Rajnish deposes that at the instance of the police he took the photographs of the dead body which are Ext.PW-23/A1 to Ext.PW23/A-11. 30. PW-24 deposes that he was posted as a motor mechanic in police line, Nahan and on 25.10.2005 he inspected the tractor No.HNA-9135 in the house of Brij Lal and traced its engine number and chassis number on separate paper which is Ext.PW-24/A and his report regarding this is Ext.PW20/G and bears his signatures. 31. PW-25 deposes that on 25.6.2005, rapat No.10, was recorded at the instance of Ram Lal at 3.15 p.m and Ext.PW-2/A, is, a true copy of the original. 32. The instant case is a case, which is hinged in its entirety on circumstantial evidence. Obviously, when the prosecution case rests upon circumstantial evidence, it is incumbent upon the prosecution, to, prove each of the links, in, the chain of circumstances. Such proof of each of the links, in, the chain of circumstances, has, to be both unfailing and convincing, besides none of the links in the chain of circumstances, is, to break apart or to severe. In the event of any of the links in the chain of circumstances getting severed or delinked from the chain of circumstances, then the entire bedrock of the prosecution case, fails. With the able assistance of the learned counsel on either side, this Court has with incisive care and circumspection, discerned the entire available evidence, on, record. 33. It is evident on a perusal of the post mortem report that the accused are alleged to have caused the fatal injuries on the deceased, father of PW-1, with the use of stone Ext.P-4. 33. It is evident on a perusal of the post mortem report that the accused are alleged to have caused the fatal injuries on the deceased, father of PW-1, with the use of stone Ext.P-4. The accused persons, have, come to be linked with the murder of deceased, Ram Swaroop, father of PW-1, PW-3 and PW-6, on the strength of both the accused, having come to be identified, at the stage, when they visited the house of the deceased, in a black colour Suzuki motorcycle, for, hiring a tractor owned by the deceased. The imminent identifying features, which remained etched, in the mind of PW-3, the son of the deceased, was, of one of the accused carrying a blue coloured Parna having checks, which Parna was found, encircled, around the neck of the deceased father. Therefore, on the strength of the key characteristic traits and features, borne by the accused persons, and, as noticed initially by PW-3, which impressions enduring in his mind geared him to identify them in the Court, hence, the prosecution connects or links the accused to be the persons who committed the murder of deceased Ram Swaroop. For imputing credibility to the identification by PW-3 of the accused in the Court, it is imperative, for this Court, to, determine whether as a matter of fact, any of the sons of the deceased, i.e., PW-1, PW-3 and PW-6 were aware at the nascent stage of the identity of the accused. In the endeavor to determine, whether at the initial stage the identity of the accused was in the know of any of the sons of the deceased, enabling them to, at the initial stage, gather an enduring impression of their traits and characteristic features, hence, empowering them to subsequently identify the accused in the Court to be the same persons, who had visited the house of their deceased father, for hiring a tractor, the testimonies of each would be adverted to. In case, it is disinterred, on an evaluation of the evidence on record, that, the sons of the deceased did not on the purported visit of the accused to the house of their father for hiring a tractor, notice their key identifiable features or characteristics traits, then, obviously, the conclusion, which is to ensue with aplomb, is, that the accused did not visit the house of the deceased for hiring a tractor, or, hence the initial link in the chain of circumstances, purportedly communicating the factum of the deceased having left in the company of the accused, would get severed at the outset itself. The fact that neither PW-1 and PW-3 besides PW-6, sons of the deceased did not notice or perceive the key characteristic features of any of the accused, when they purportedly visited the house of the deceased father, is palpably and imminently bespoken by the fact of the F.I.R. lodged qua the occurrence, omitting, to disclose the characteristic features or identifiable traits borne by each of the accused. Omission of such disclosures in the F.I.R, lodged qua the incident by the informant, the son of the deceased, even when, though PW-1 deposes that his brother PW-3 had apprised him of the key characteristic features or the identifiable traits of the accused when they purportedly visited their house for hiring a tractor, constrains a conclusion that, hence, at that stage the identifiable features of none of the accused were not known to any of the sons of the deceased. The aforesaid inference of identifiable features of the accused not having been perceived by any of the sons of the deceased, hence, begetting the conclusion that none of the accused visited the house of the deceased for the purported purpose of theirs hiring his tractor gets accentuated by the existence of a deposition in the cross-examination of PW-1 of theirs not knowing the identity and whereabouts of the accused persons at the time of lodging of the F.I.R. qua the incident. Even though PW-3, the son of the deceased, who, purportedly perceived the eminent and dominant characteristic traits of both the accused, when they purportedly visited the house of his father, for hiring a tractor, rather, renders a prevaricated version, qua the fact of his having witnessed their dominant characteristic features, on the strength whereof he identified them in Court, inasmuch, as, when in his cross-examination, he deposes that at the time of lodging of the F.I.R, it was not known to him, as, to who had hired the tractor, and, also the place to which the accused belong, fillips no conclusion, than, that of especially when he concedes to his accompanying his brother PW-1, when the F.I.R. was lodged, yet with there being no disclosure in the F.I.R. too, qua the dominant or key characteristic features of any of the accused and qua the place to which they belonged, hence, obviously at the initial stage or at the inception of investigation by the police qua the identity of the accused, there being no information available with either of the sons of the deceased, qua, the dominant and key characteristic features of the accused. In sequel it has to be invincibly concluded, that, the identifiable features as borne by the accused, were, gathered or marshaled by each of the sons of the deceased, on the accused, having, come to be arrested and produced before PW-1, PW-3 and PW-6. A further concomitant deduction, which ensues, is, that none of the accused persons, as portrayed by the prosecution, visited the house of the deceased, for hiring a tractor, from the deceased, wherefrom the further conclusion, which follows, is, that the initial link in the prosecution evidence of both the accused, having visited the house of the deceased father for hiring a tractor, gets severed or broken. Aggravation to the aforesaid inference and conclusion is lent by the fact that the FIR qua the incident was not promptly lodged rather was lodged after the recovery of the dead body underneath a Puliya, as such, in case information was available with either of the sons of the deceased qua the identity of the accused, when they purportedly visited their house, for hiring a tractor, it ought to have found occurrence in the FIR, especially when their deceased father had assured them to return in the evening, his not having returned in the evening ought to have raised suspicion upon the accused of theirs having murdered him, such omission forecloses an inference that, it, was begotten by theirs not having noticed the identifiable features of both the accused nor hence the accused having ever visited the house of the deceased for hiring tractor, and, their father having not left in the company of the accused, as projected by the prosecution. 34. The deposition of PW-9, who purportedly last saw the deceased in the company of the accused, has been concerted by the prosecution, to, command, sway and constrain this Court to conclude that his evidence comprises best evidence qua last seen of all the accused in the company of the deceased. Obviously, on its strength, both capital and leverage is endeavored to be drawn by the prosecution for pronouncing upon the guilt of the accused. However a more keen and incisive discernment of the testimony of this witness unfolds the fact that his testimony is incredible. The plausible reason which undermines the efficacy of his testimony qua his having last seen the accused in the company of the deceased, is, the fact which emanates in his cross-examination of entry at Mark-A, in the register Ext.PW-9/A recording the tractor number, compatible, to the one entered, in, its RC possessed by the deceased, being in a the different ink, than the rest of the entry. He also admits the suggestion put to her by the defence that the entry at Mark-B in the register Ext.PW-9/A, is, too in a different ink. He also admits the suggestion put to her by the defence that the entry at Mark-B in the register Ext.PW-9/A, is, too in a different ink. Moreover, what firmly dilutes or whittles down his testimony, is, besides the above interpolation existing at mark-A and mark-B in Ext.PW-9/A and Ext.PW-9/B of all the aforesaid entries having not been recorded by, him, but by Des Raj, besides, his deposing that his signatures do not exist anywhere in register Ext.PW-9/A, nor when he further deposes qua the non-existence of the name of Babu Ram, in the register, cumulatively, renders a conclusion that hence he was not on duty at the time of recording of entry existing at Ext.PW-9/A and Ext.PW-9/B. Consequently, if he was not on duty at the time of recording of the entries comprised in Ext.PW-9/A and Ext.PW-9/B, his, testimony cannot be concluded to be garnering any force or vigour, in, concluding that he could have last seen the accused in the company of the deceased. Moreover, when in his cross-examination he deposes that entries at mark–A in register Ext.PW-9/A were recorded by Desh Raj, then it was Desh Raj, who was the best person to prove the fact whether at the time of recording of said entry he had last seen the accused persons with the deceased. Omission to examine him, rather his being given up, as such when he remained unexamined qua the aforesaid fact also constrains this Court that the Investigating Officer has rather relied upon the tainted testimony of a tutored witness to falsely portray the factum of his having last seen the accused in the company of the deceased. Moreover for omission of the recital or of the recording of the number of the motor cycle in register Ex. PW-9/A, forcefully conveys that at the time of arrival of tractor, purportedly driven by the deceased, he was not as alleged by the prosecution accompanied by both the accused on their motor cycle or sequels a conclusion that such omission of recording, of the arrival of, the motor cycle on which the accused were purportedly borne, at the barrier manned by Des Raj that hence, both the accused were not traveling alongwith the deceased at the relevant time. 35. 35. The testimony of PW-12 Labh Kaur, who identified the accused to be the persons, who had sold the trolley to her for Rs.16,000/-, and which was subsequently converted into scrap by her is canvassed to be lending succor to the prosecution story of the accused having murdered the deceased, carried his trolley and sold it besides when they got it recovered from the place where they sold it, comprises an efficacious link or a potent evidence connecting them in the commission of murder of the deceased. However, the said recovery of the tractor trolley converted into scrap by PW-12 after its sale to her by the accused loses force and vigour in the face of an admission existing in the cross-examination of PW-12 of prior, to, the recovery of the tractor trolley at the instance of the accused and taken into possession under memo Ext.PW-1/B, the police inspector had previously visited her shop alongwith the accused. Consequently, the visit of the police inspector alongwith the accused, to the shop of PW-12, prior to the preparation of Ext.PW-1/B, under which it was recovered, conveys that hence, the police inspector had previously located the shop of PW-12 and after its location subsequently taken the accused alongwith him to portray that it was recovered at the instance of the accused, whereas, it cannot be concluded to be recovered at the instance of the accused, inasmuch, as, for prodding such a conclusion, it, had to be simultaneously and contemporaneously with the previous visit of the police inspector alongwith the accused to the shop of PW-12 recovered then. It not having been recovered on the previous visit of the Police Inspector in the company of the accused from the shop of PW-12 displays that the earlier visit of the Investigating Officer prior to preparation of Ext.PW-1/B was a roving visit or a hunt, then, launched entirely at his behest in the company of the accused, to the shops of all scrap dealers, in the vicinity of the residence of the accused, for creating or inventing evidence of any scrap lying therein being relatable to the trolley as was purportedly driven by the deceased and promptly after his murder carried by the accused. Further more, when for recovery at the instance of the accused, the accused are enjoined to be having exclusive knowledge qua its place of keeping or hiding or concealment whereas in the instant case when knowledge qua the place of its concealment, hiding or keeping was previously acquired by the Investigating Officer as divulged by the aforesaid discussion precludes a conclusion that hence, its place of keeping, hiding or concealing was exclusively known to the accused. On formation of the said conclusion an inference which arises is that hence the subsequent recovery of scrap of trolley under Ext.PW-1/B from the shop of PW-12 is concocted, manufactured, besides is not at the instance of the accused rather at the instance of the Inspector. Consequently, it cannot constitute a formidable link in the chain of circumstances so as to connect the accused with the commission of the offence of murder of the deceased. 36. Even the testimony of PW-13, to, whom the tractor owned by the deceased, was, purportedly sold by both the accused under receipt Ext.PW-13/A and who identified the accused in Court to be the same person who had sold the tractor to him and his testimony though concerted by the prosecution to be proving another link in the chain of circumstances, is, ridden with falsity and is incredible, for the reasons (a) the number plate borne by the tractor purportedly sold by the accused to PW-13 is HYQ-7871. However, the registration number borne by the tractor, owned by the deceased, is, HNA-9135. However, the registration number borne by the tractor, owned by the deceased, is, HNA-9135. Even with the number plate of the tractor purportedly sold by the accused to PW-13, is, distinct from the registration number of the tractor owned by the deceased reflected in the RC, nonetheless, on the strength of the testimony of PW-1, who, deposes that the engine and chassis number existing thereon were found compatible with the number of both the chassis and engine numbers reflected in the R.C, nonetheless, on the mere deposition of PW-1, it, cannot be concluded that the purported recovery of tractor under memo Ext.PW-1/B from the work shop of PW-13, is, an abundant and magnifying reflection of the accused having under memo Ext.PW-13/A sold the tractor owned by deceased to PW-13, for the reason (a) there being no best evidence comprised in photographs having been taken of the tractor, at the time, of its having come to be recovered under Ext.PW-1/B, portraying in tandem with the deposition of PW-1 of its carrying or bearing the chassis number and engine number, compatible to the one reflected in RC Ext.PW-1/E. In absence thereof, it cannot be concluded that hence the prosecution has been able to prove (i) that the recovery of tractor from the premises of PW-13, was of the very same tractor as was being driven by deceased in the purported company of the accused. (ii) Of receipts purportedly signatured by the accused conveying theirs having accepted from PW-13 the sale consideration of the tractor are of no consequences in proving that hence the tractor was sold by the accused, in the absence of evidence comprised in the report of a Hand Writing experts divulging that the purported signatures of both the accused existing on the receipts belong to them. (iii) PW-24 has deposed that on 25.10.2005 he inspected the tractor No. HNA-9135 in the house of Brij Lal and traced its engine and chassis number on separate paper comprised in Ex. PW-24/A divulges that hence tractor not removed from the house of the deceased or consequently if it was inspected on 25.10.2005, renders open a conclusion that it was not driven, on the fateful day, by the deceased. In sequel, the testimony of PW-13 of the accused having sold it to him, is, torn to shreds. PW-24/A divulges that hence tractor not removed from the house of the deceased or consequently if it was inspected on 25.10.2005, renders open a conclusion that it was not driven, on the fateful day, by the deceased. In sequel, the testimony of PW-13 of the accused having sold it to him, is, torn to shreds. Further impetus to the inference of the purported recovery of tractor under Ext.PW-1/B, being wholly concocted, arises from the fact of the Investigating Officer as deposed by PW-13, having prior to the recovery of tractor Ext.PW-1/B having visited the workshop, and, seen the tractor and having inquired qua its purchase. Obviously, when the Investigating Officer had prior knowledge or was aware of its purported location, as such, even if it is assumed that, it, was the very same tractor as was being driven by the accused at the time when he was purportedly in the company of the deceased, yet, when given the aforesaid fact of the Investigating Officer having prior knowledge of its location hence was not the sole repository of knowledge qua its location or whereabouts. Therefore, it can not be said that the accused led him to the premises of PW-13 and, as such, it was recovered at their instance, rather the Investigating Officer when his having prior to its recovery under Ext.PW-1/A previously visited the shop of PW-13, as such acquired knowledge of its location, constrains this Court to conclude that he invented or concocted the recovery of tractor purportedly driven by the deceased in the purported company of the accused atop their Motor Cycle so as to invent or ingeniously create a link in the chain of circumstances for falsely implicating the accused. 37. In view of the above discussion, both the appeals are allowed and the judgment of the learned trial Court is setaside. Both the accused are acquitted of the offences charged. They be set at liberty forthwith, if not required in any other case.