Judgment : (Per:V.K. Bist, J.) By the judgment under appeal, the appellants have been convicted for the offence punishable under Section 302, 201 and 404 read with Section 34 of the Indian Penal Code (for short IPC) and each one of them have been sentenced for life imprisonment with fine of Rs. 10,000/- under Section 302/34 IPC and in default of payment of fine, further imprisonment for one year has been awarded. The appellants have further been sentenced under Section 201/34 and 404/34 IPC and each one of them have been awarded three years rigorous imprisonment with fine of Rs. 5,000/- for each offence and further imprisonment for six months for each default in making payment of fine has been awarded. 2. On 19.08.2007, PW-1 Shahdab Hussain (complainant) submitted a written complaint to Station House Officer, Haldwani, with the assertion that on 18.08.2007 at about 8:00 p.m., when he was closing his shop, two boys, namely, Raju and Rais @ Bablu, working in the shop of Shafat Hussain, came at his shop and told Shafat Hussain that Rabia Amma is ill and is calling him. When the boys insisted, brother of the complainant i.e. Shafat Hussain, in the scooter of the complainant alongwith the said boys, proceeded towards the house of Rabia situate at Indranagar. It was reported in the FIR that Shafat was frequent to the house of Rabia. The complainant, alongwith PW-7 Junaid, had also gone to the house of Rabia at 9:15 p.m., where they saw Rabia, Raju, Rais and daughter of Rabia in sitting state, and after some time, the complainant and PW-7 returned back to their house. When Shafat did not return till 10:00 p.m. and making contact on his mobile phone failed, the complainant and PW-7 reached to the house of Rabia late night at 12:30 a.m. where Rabia and her daughter told them that Shafat had already left the house at 10:00 p.m. The complainant, his nephew and others went to their known people but their attempts for search of Shafat Hussain failed. Ultimately, at 2:00 a.m. at graveyard temple in Bareilly Road, scooter of the complainant was found lying and beside the scooter, one dead body was also found lying. The dead body was of Shafat Hussain. Ultimately, at 2:00 a.m. at graveyard temple in Bareilly Road, scooter of the complainant was found lying and beside the scooter, one dead body was also found lying. The dead body was of Shafat Hussain. Lot of people also gathered at the spot, where PW-5 Saddan disclosed that at 1:00-1:30 a.m., he saw that the scooter-found at the site, was being driven by the accused Rais @ Bablu, and behind the scooter-there was one cart carrying some covered material, which was being pushed by the accused Raju and one another person. The complainant further reported that the said persons, after killing his brother, have thrown the dead body of his brother. On the basis of said written complaint, an FIR was lodged on 19.08.2007 at 3:10 p.m. against the appellants in respect of offence punishable under Section 302 I.P.C. Investigation was taken up by PW-13 Sub-Inspector H.B. Sen. During investigation, the IO recorded the statements of the witnesses and reached at the spot where the dead body of Shafat Hussain and scooter of the complainant was found lying. Thereafter, inquest on the dead body of Shafat Hussain was conducted. Recovery memo of the scooter and site plan were prepared. The IO apprehended the accused/appellants and on their pointing out, the weapon i.e. GANDASA, used in the crime, was recovered from the house of the accused Rabia. Besides it, mobile phones and the rings of the deceased Shafat Hussain were also recovered from the house of the accused Rabia. The IO also took into his possession the bloodstained articles i.e. towel, pillow cover, one piece of the shirt and one plastic bag, and prepared recovery memos thereof. The cart, on which the dead body of the deceased was dragged, was also taken in possession and memo of recovery and the site plan in this regard were prepared. After satisfying other necessary formalities, it culminated into filing of charge sheet under Section 302, 201, 404/34 IPC against the accused/ appellants. The articles, taken in possession by the police, were sent for chemical examination and report in this regard was furnished by the Forensic Science Lab, Panditwadi, Uttarakhand, Dehradun. 3. As a result thereof, the trial commenced. The trial Court framed charge of offence punishable under Section 302/34, 201/34 and 404/34 I.P.C. against the accused/ appellants, who pleaded not guilty and claimed to be tried. 3. As a result thereof, the trial commenced. The trial Court framed charge of offence punishable under Section 302/34, 201/34 and 404/34 I.P.C. against the accused/ appellants, who pleaded not guilty and claimed to be tried. The prosecution, in order to prove its case, examined as many as thirteen witnesses. The accused/ appellants did not produce any evidence in their defence. After considering the evidence on record, the trial Court convicted the appellants as mentioned above. 4. PW-4 Dr. Nilamber Bhatt, at the time of autopsy on the dead body of Shafat Hussain, found the following ante mortem injuries on the person of the deceased and prepared postmortem examination report (Ext. A-5):- 1. Incised wound of 8cm. x 5cm.x bone deep over left side of neck horizontally placed just below border of left mandible, blood seen over it on exploration of neck blood vessel are cut, trachea cut and cut is also noted on cervical vertebra, cut is also noted over oesophagus. 2. Incised wound of 7cm. x 3 cm. x bone deep over left side of face, extending from left maxillary process up to pinna left ear incised inner side part, blood seen over it on exploration cut is noted on left maxillary bone. 3. Incised would of 6cm. x 3.5 cm. on left side of forehead x bone deep. Blood seen over it, horizontally placed. 4. Incised wound of 4.5 cm. x 2 cm. x skin deep over left temporal parietal region, blood seen over it. 5. Incised wound of 6cm. x 3cm. x bone deep on left temporo parietal region obliquely placed bone deep. 6. Incised wound of 8cm. x 3.5 cm. x bone deep over left temporo occipital region. Blood seen over it. 7. Incised wound of 6cm. x 1.5 cm. x skin deep over left side of occipital region vertically placed. Blood seen over it. 8. Incised wound of 5cm. x 2 cm. x skin deep over forehead, middle part. Blood seen over it. 9. Incised wound of 5cm. x 2cm. x skin deep over top of scalp, frontal region, blood present. 10. Incised wound of 6cm. x 2cm. x muscle deep over back of right shoulder. Blood seen over it. 11. Lacerated wound of 6cm. x 4cm. x muscle deep over right thumb and palm up to wrist. Blood seen over it. 12. Lacerated would of 7cm. x 7.35 cm. x skin deep over top of scalp, frontal region, blood present. 10. Incised wound of 6cm. x 2cm. x muscle deep over back of right shoulder. Blood seen over it. 11. Lacerated wound of 6cm. x 4cm. x muscle deep over right thumb and palm up to wrist. Blood seen over it. 12. Lacerated would of 7cm. x 7.35 cm. x muscle deep over thenar aspect of right palm. Blood present. 13. Incised would of 4cm. x 3cm. x muscle deep over thenar aspect of left palm. Blood seen over it. 14. Incised would of 5cm. x 2cm. x skin deep over medial aspect of right leg. Blood seen over it. 15. Multiple linear abrasion over left side of front of abdomen just lateral to umbilicus and lateral aspect of chest wall. 16. Linear abrasion of 6cm. length over left shoulder. 5. Doctor proved the autopsy report Ext. A-5 and opined that cause of death was due to shock as a result of multiple ante mortem injuries. He also opined that except injury nos. 11, 12, 15 and 16, all injuries were inflicted with sharp edged weapon and weapon may be GANDASA. The injuries nos. 15 and 16, being bruises, may be caused by rubbing and injury nos. 11 & 12 may be caused by blunt object and death may be caused at about 1:30 a.m. of the night of 18/19.08.2007. 6. Heard learned counsel for the appellants, learned Addl. Advocate General for the State, and perused the lower court record. 7. PW-1 Shahdab Hussain is the complainant, who in his testimony corroborated the averments made in the FIR. Besides it, this witness identified the dead body of Shafat Hussain, found lying at the graveyard temple. This witness has proved the written report (Ext. A-1). In the presence of this witness, inquest on the dead body was conducted and this witness proved the inquest report (Ext. A-2). This witness has further stated that at the time of said accident, his brother was possessing two mobile phones, some rings and a sum of Rs. 90,000/-, which were not found with the dead body. A-1). In the presence of this witness, inquest on the dead body was conducted and this witness proved the inquest report (Ext. A-2). This witness has further stated that at the time of said accident, his brother was possessing two mobile phones, some rings and a sum of Rs. 90,000/-, which were not found with the dead body. PW-2 Jane Alam, has given evidence in respect of the incident, he saw in the intervening night of 18th and 19th August, 2007, when at about 1:30 a.m., accused Raju and Rabia were coming by keeping something covered on their cart and the accused Rais @ Bablu was coming in the scooter, just ahead the cart. PW-3 Constable Jagmohan Singh is a formal witness, who has proved the Chik FIR. PW-4 is Dr. Nilambar Bhatt, who conducted autopsy on the dead body. PW-5 Saddan is said to have been the star witness. This witness has stated that on 18.08.2007, at about 1:30 a.m., he saw accused Bablu coming on scooter and the accused Raju, alongwith another person, was pushing the cart heading towards Bareilly road, having something over the cart, and on his way returning from Mandi, at 2:30 a.m., he saw people gathered near the temple and he came to know that same scooter was lying there, which was earlier driven by the accused Rais @ Bablu. Dead body of the deceased was also lying on the ground near the scooter. PW-6 Arun Kr. Verma-SHO, who accompanied the Investigating Officer, has given statement in respect of arrest of the accused, recovery of weapon and other articles. This witness has proved the recovery memo (Ext. A-6), material exhibits (Ext. 1 to 16). PW-7 Mohd. Danish @ Junaid was alongwith the complainant and this witness has corroborated the statement of PW-1. Besides it, this witness has given statement in respect of recovery of dead body of the deceased, scooter, cart, GANDASA, mobile phones, rings and other bloodstained articles taken in possession by the police. This witness has proved the material exhibits 1 to 7, 10, 17 to 23 and 24 & 25. PW-8 Maqsood has been produced to prove that the deceased had a handsome amount in his possession at the time of his death. PW-9 Uvesh is the witness of the inquest. PW-10 Aftab Hussain has given evidence regarding outstanding balance of consideration of private contract due towards accused Rabia. PW-8 Maqsood has been produced to prove that the deceased had a handsome amount in his possession at the time of his death. PW-9 Uvesh is the witness of the inquest. PW-10 Aftab Hussain has given evidence regarding outstanding balance of consideration of private contract due towards accused Rabia. PW-11 Sub Inspector RS Mehta conducted the inquest and after satisfying necessary formalities, sent the dead body for postmortem. This witness has also given statement in respect of the arrest of the accused, recovery of GANDASA, mobile phones and rings, on the pointing out of the accused. Besides it, this witness has proved the memo of bloodstained articles and the cart, used in the offence. PW-12 Hifzur Rehman, witness of recovery of GANDASA at the instance of accused Rabia, has been declared hostile by the prosecution. PW-13 Sub-Inspector Harish Bahadur Sen is the Investigating Officer, who after investigation, submitted charge sheet (Ext. A-16) against the accused/ appellants. 8. Learned counsel for the appellants assailed the judgment of the trial Court contending that prosecution has dismally failed to show any motive or enmity behind the crime. He contended that the dead body was lying near the Laturia Baba Temple; none has witnessed the accused/appellants committing the crime, therefore, the accused/ appellants could not be held guilty for the offence. He submitted that the entire prosecution story has been erected on shaky foundation and based on conjunctures and surmises, the judgment of the trial Court, is liable to be dismissed. It is also submitted that the FIR is belated one and there is no satisfactory explanation, either in FIR itself, in the statement recorded under Section 161 Cr.P.C. or in the evidence adduced by the prosecution, regarding the delay in lodging the same. No money, as alleged by the prosecution, was recovered from the possession of the appellants. He submits that evidence of most of the PW(s) are formal in nature; they are near and dear of the deceased family and their presence at late night, that too at 1:30 a.m., is highly dubious, hence no reliance can be placed on their testimony. Alleged recovery of two mobile phones with five silver rings at the instance of appellant Rais @ Bablu is fabricated and planted one, as no recovery was made at the instance of appellant Rais @ Bablu. Alleged recovery of two mobile phones with five silver rings at the instance of appellant Rais @ Bablu is fabricated and planted one, as no recovery was made at the instance of appellant Rais @ Bablu. Similarly, recovery of GANDASA, at the instance of appellant Smt. Rabia, is also planted one, as the witness of recovery, PW-12-Hafzur Rehman has denied the alleged recovery. No appellant was seen at the place, from where the dead body of the deceased is said to have been recovered. There is nothing against the appellant no.4 Km. Reshma. Lastly, it is contended that the evidence on record, is sufficient to create suspicion about the complicity of appellants in the alleged crime, as such the judgment under appeal suffers from illegality and manifest error of law, hence liable to be set-aside. 9. The question, therefore, in the present appeal, before us is whether, considering the evidence of prosecution witnesses, the appellants could be held guilty? Upon going through the evidence produced by the prosecution, suffice it to say that the prosecution case encircles on the testimony of PW-5 Saddan. It is a case of circumstantial evidence. There is no eyewitness of the incident. As per the prosecution version, when, after making abundant search, the whereabouts of the deceased could not be traced out, then at 2:30 a.m. on 18.08.2007, PW1 and PW-7 saw that there was a crowd gathered at the site, i.e. the place where the dead body of the deceased was found lying, and PW-5 disclosed the complainant that at late night at 1:30 a.m., when he was proceeding towards his house, he saw accused Raju, alongwith another person, near Noori Maszid. He could not recognize the other person. The accused Bablu, driving a scooter, was proceeding towards Bareilly road. At 2:30 a.m. when PW-5 was returning to his house, at the temple, he saw a crowd, and the scooter, which was being driven by Bablu earlier, was lying at the temple site and dead body of Shafat Hussain was also lying aside the scooter. Surprisingly, this witness did not recognize the accused/appellants before the trial Court and put his hand on accused Raju, when he was asked as to whom amongst the accused, was driving the scooter. Similarly, he put his hand on Bablu, when he was asked as to who was pulling the cart. Surprisingly, this witness did not recognize the accused/appellants before the trial Court and put his hand on accused Raju, when he was asked as to whom amongst the accused, was driving the scooter. Similarly, he put his hand on Bablu, when he was asked as to who was pulling the cart. Thus, this state of affairs belies the story of the prosecution for the reasons, firstly, at late night at 1:30 a.m., PW-5 saw accused Bablu driving the scooter and behind him accused Raju, alongwith another person, was carrying the dead body of the deceased in a cart, to hide the same in order to save themselves. Secondly, it is highly improbable for PW-5 to recognize the accused persons without any source of light at midnight at 1:30 a.m. Thirdly, presence of PW-5 at 1:30 a.m. at the site, as asserted by the prosecution, is doubtful. It is implausible to say that this witness was in his routine process, when he saw the accused Raju and Bablu at midnight. 10. Insofar, the independent witness PW-12, before whom the weapon, used in the crime (i.e. the GANDASA), was said to have been recovered from the possession of the accused/appellant is concerned, this witness has been declared hostile by the prosecution. Further, in relation to the recovery of five silver rings, the prosecution did not produce any iota of evidence, which could suggest that the rings, thus recovered, were of the deceased. Furthermore, as per the version of the prosecution, at the time of his death, the deceased had a handsome amount in his possession, but it is not the case of the prosecution that such an amount was recovered from the possession of the accused persons, connecting them directly for commission of said crime. Thus, considering the entire evidence procured by the prosecution, a reasonable doubt crops up as to the veracity of the testimony of PW(s). As a consequence thereof, the appellants are entitled to get benefit of doubt. 11. We, accordingly, allow the appeal and set-aside the judgment under appeal, whereby and under, appellants have been convicted for the offences punishable under Section 302, 201 and 404 read with Section 34 IPC and quash the sentences. 12. The appellant nos. 1, 3 & 4 are on bail. They need not to surrender. Their sureties are discharged. 11. We, accordingly, allow the appeal and set-aside the judgment under appeal, whereby and under, appellants have been convicted for the offences punishable under Section 302, 201 and 404 read with Section 34 IPC and quash the sentences. 12. The appellant nos. 1, 3 & 4 are on bail. They need not to surrender. Their sureties are discharged. The appellant no.2, Rais is in jail, and in case he is not required to be detained in custody in connection with any other crime, he should be released forthwith. 13. Let a copy of this judgment be sent to the Superintendent of Jail concerned and a copy be sent to the Court below alongwith the LCR.