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Madhya Pradesh High Court · body

2014 DIGILAW 554 (MP)

Neeraj v. State of M. P.

2014-05-07

B.D.RATHI, S.K.GANGELE

body2014
JUDGMENT Rathi, J -- 1. This judgment shall govern the disposal of Cr.A.396/1999 [Neeraj v. The State of M.P.], Criminal Appeal No.462/1999 [Bhola Mahor v. The State of M.P.], Criminal Appeal No.465/1999 [Kallu Jatav v. The State of M.P.] and Criminal Appeal No.566/1999 [Pappu Pal v. The State of M.P.] since all these appeals have arisen out of the common judgment of conviction and order of sentence dated 27.7.1999 passed by the IV Additional Sessions Judge, Gwalior (M.P.) in Sessions Trial No.400/93 whereby the accused-appellants have been convicted under section 302/34 of the Indian Penal Code and sentenced to suffer imprisonment for life (rigorous) each with a fine of Rs.2,000/- each with default stipulations. 2. Prosecution story, in nutshell, is that on 21.8.1993 at 9 a.m. Ram Narayan while going from Taraganj to the market at Balabai Ka Bag, Jamdar Ka Bagicha noticed that a dead body of a young man aged near about 23-24 years was lying half submerged in water. Ram Narayan informed the police on the basis of which Marg No.42/93 Ex.P-15 was registered and enquiry into the circumstances of death was taken up by A.S.I. Shri Dixit. Site-plan Ex.P-21 dated 21.8.1993 at 08:50 am and lash Panchayatnama Ex.P-22 dated 21.8.1993 were prepared. Ordinary clay and blood stained clay was seized from the site vide seizure memo Ex.P-23 dated 21.8.1993 at 11:30 am. One blue and one yellow coloured pair footwear (chappal) from the site were seized and seizure memo Ex.P-24 dated 21.8.1993 at 11:50 am was prepared. Clothes of the deceased were seized from the spot vide seizure memo Ex.P-25 dated 21.8.1993. The body was sent for the autopsy which was conducted by Dr. V.K. Diwan (PW6) on 21.8.1993 at 5:30 pm who found that the death was homicidal in nature. Post-mortem report Ex.P-4 was prepared and signed by him. 3. On the basis of aforesaid investigation done by the Investigating Officer in the aforesaid Marg, an offence at Crime No.214/93 Ex.P-14 under section 302/34 of the Indian Penal Code was registered at police station against unknown persons on 21.8.1993 at 10:00 p.m. During investigation, it was revealed that in the evening of 20.8.1993 the deceased had gone with the accused persons and at about 8:30 pm he was seen near Taraganj bridge taking food along with 3-4 persons. On 20.8.1993 at about 11:00 the accused appellant Neeraj had kept the bicycle of the deceased in the house of Nirpat (PW5) and on 21.8.1993 he alongwith one person took it back. On 21.8.1993 the appellant Neeraj, Pappu went to the house of Chhiddilal (PW2) stayed there in the night and took dinner. On 22.8.1993 Pappu and the appellant Neeraj came back leaving the bicycle at the house of Chhiddilal. On information given under section 27 of the Evidence Act, the cycle was recovered by the Investigating Officer, Mr. M.L. Sharma (PW15). The cycle along with other recovered articles like Shirt, briefs, Nekar, footwear (Chappal), silver ring, chain and keys were identified by Randhir Singh, in Test Identification Parade conducted by Ramesh Patharia (PW4). The TIP Memo of Ex.P-3 was prepared. 4. After investigation, charge-sheet against the accused persons/appellants was filed under section 302/34 of the Indian Penal. The accused/appellant abjured their guilt and pleaded complete innocence. 5. To bring home the charges, prosecution has examined as many as seventeen witnesses, namely, Ramdayal (PW1), Chhiddilal (PW2), Somdev Singh (PW3), Ramesh Pathariya (PW4), Nirpat Singh (PW5), Dr. V.K. Deewan (PW6), Pannalal (PW7), Pooran Singh (PW8), Mohanlal Shrivastava (PW9), Ajay Sonone (PW10), Randheer Singh (PW11), Suresh Kumar (PW12), Bundabai (PW13), Leela (PW14), M.L. Sharma (PW15). Inspector, Dinesh Chandra Assistant Sub-Inspector (PW16), and Ramnarayan Kushwah (PW17). Similarly, two witnesses were examined by the accused in defence, namely, Kamlesh Kumar Pandey Head Constable (DW1) and Dashrath Singh Assistant Sub-Inspector (DW2). 6. It is an admitted position that there is no eye-witness of the incident in question and the matter solely rests upon circumstantial evidence. The circumstances which have been relied by the learned trial Court are as under : (i) The accused persons had taken the deceased Ram Babu from his house on 20.8.1993 at about 6 p.m. (ii) After some time, the accused persons were seen along with the deceased in the way near the house of Hariom at the square and further they were seen at 8:30 p.m. at Taraganj bridge near the spot from where dead body was recovered. (iii) The recovery of the dead body of Ram Babu from Jamdar-Ka-Bagicha. (iii) The recovery of the dead body of Ram Babu from Jamdar-Ka-Bagicha. (iv) Immediately after the incident, the cycle of the deceased was kept at the house of Nirpat and then left it at the house of Chhiddilal by accused Neeraj; and (v) Recovery of the cycle and other articles on instigation of accused Neeraj and other accused persons respectively. 7. After taking into consideration the evidence adduced by the parties, impugned judgment of conviction and order of sentence was passed by the learned trial Court. Hence, this appeal. 8. It is argued by Shri V.K. Saxena, learned senior counsel appearing on behalf of the appellants that the learned trial court has not appreciated the evidence, available on record, properly. It is also submitted by Shri Saxena, learned senior counsel that in absence of the evidence in regard that the accused persons were seen along with the deceased at the last time just near the place where dead body was found or murder was committed judgment of conviction could not be passed. It is also submitted that recovery of worthless articles like silver ring and silver chain is more unnatural. The entire story of seizure was developed by the prosecution only just for false implication of the appellants. Motive for committing the offence has also not been proved by he prosecution. Identification parade was not organized for the identification of appellants. Short time gap, between the last seen and time of death, was also not established. Identification parade of articles was disgraced. Thus, on these grounds, learned senior counsel appearing for the appellant submitted that the present appeals be allowed and the appellants be acquitted of the charges levelled against them. In support of contention following judgments have been cited. 9. In the case of State of Goa v. Sanjay Thakran and another, reported in (2007)2 SCC (Cri) 162, the Hon’ble Supreme Court has held as under : “13. In support of contention following judgments have been cited. 9. In the case of State of Goa v. Sanjay Thakran and another, reported in (2007)2 SCC (Cri) 162, the Hon’ble Supreme Court has held as under : “13. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 10. It was further held by the Hon’ble apex Court in Sanjay Thakran (supra), that in such types of cases duration of time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration. Thus, normally such evidence would be taken into account where the prosecution establishes that the said time gap was so small that possibility of any other person being with the deceased could completely be ruled out. But it cannot be said that in all cases where there is a long time gap between the above two points, the evidence of last seen together is to be rejected. Even in such cases the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of an other person meeting or approaching the deceased at the place of incident or before the commission of the crime. 11. Even in such cases the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of an other person meeting or approaching the deceased at the place of incident or before the commission of the crime. 11. In Sanjay Thakran (supra), it was further held by the Hon’ble apex Court that if test identification parade was organized under section 9 of the Evidence Act then persons identifying articles did not have sufficient opportunity to see the said articles being used by the deceased for a long duration. Further these articles not carrying any distinctive marks on the basis of which these could be distinguished from similar articles which were easily accessible and available in market. Hence it is held that identification of the said articles as belonging to deceased, could not be believed. 12. In case of Rishipal v. State of Uttarakhand reported in 2013(1) Crimes 162 (SC), it was held by the Hon’ble apex Court as under : “14. .........It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. {See Sukhram v. State of Maharashtra [ (2007)7 SCC 502 ], Sunil Clifford Daniel (Dr.) v. State of Punjab [(2012)8 SCALE 670], Pannayar v. State of Tamil Nadu by Inspector of Police [ (2009)9 SCC 152 ]}. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside. 13. In the case of Shobhau v. State of M.P. [1998 Cri.L.J. 3934] considering the aforesaid aspect this Court observed as follows : “5. In a case where the entire case of the prosecution rests on the circumstantial evidence, all circumstances from which conclusion of guilt is to be drawn must be fully established. It is well settled that there is a long distance between ‘may be true’ and ‘must be true’. The prosecution has to travel all the way to establish fully the chain of evidence which should be consistent only with the hypothesis of the guilt of the accused and this circumstance should be of conclusive nature and definite tendency. They should be such as to exclude every hypothesis but one proposed to be proved. The prosecution has to travel all the way to establish fully the chain of evidence which should be consistent only with the hypothesis of the guilt of the accused and this circumstance should be of conclusive nature and definite tendency. They should be such as to exclude every hypothesis but one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive; but cumulatively must form unbroken chain of events leading of the proof of the guilt. If these circumstances or some of them can be explained by any of the reasonable hypothesis the accused must have the benefit of the hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct evidence to the commission of murder and case rests entirely on circumstantial evidence, the circumstances relied must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. {See Kishore Chand v. State [ AIR 1990 SC 2140 :1990 Cri LJ 2289]}.” 14. Per contra, Shri Khedkar, learned Public Prosecutor appearing on behalf of the State vehemently opposed the prayer made by the learned senior counsel for the appellants and submitted that the impugned judgment of conviction and order of sentence has been passed on proper appreciation of evidence on record and needs no interference. It was also submitted that appellants have not explained the circumstances under which the death of Rambabu occurred, therefore, they all were rightly convicted. In support of his contention, he relied on judgment rendered by the Hon’ble apex Court in the matter of Harivadan Babubhai Patel v. State of Gujarat, reported in (2013)7 SCC 45 , in which it was laid down by the Hon’ble Supreme Court that time gap between when deceased was seen in company of accused and time of death is not long, as duly established by medical evidence and there is no reason to discredit the same, circumstance pertaining to theory of last seen, thus deserves acceptance against appellant. He further relied on Rohtash Kumar v. State of Haryana, reported in (2013)14 SCC 434, in which the Hon’ble apex Court has held as under : “32. In cases where the accused was last seen with the deceased victim (last seen together theory) just before the incident, it becomes the duty of the accused to explain the circumstances under which the death of the victim occurred. {Vide : Nika Ram v. State of H.P. [ AIR 1972 SC 2077 ] and Ganeshlal v. State of Maharashtra [ (1992)3 SCC 106 ]}. 33. In Trimukh Maroti Kirkan v. State of Maharashtra [ (2006)10 SCC 681 ], this Court held as under (SCC p.694, para 22) : “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for] commission of crime. {See also Prithipal Singh v. State of Punjab [ (2012)1 SCC 10 ]}.” 34. Thus, the doctrine of “last seen together” shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.” 15. It is also submitted by Shri Khedkar, learned Public Prosecutor that even when there is no previous TIP, the Court may appreciate dock identification as being above board and more than conclusive. Dock identification is a substantive piece of evidence and even in absence of TIP no prejudice is caused to prosecution case. Reliance has been placed on the judgment rendered by Hon’ble apex Court in the matter of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) reported in (2010)6 SCC 1 . Again it was submitted by Shri Khedkar, learned Public Prosecutor, that though motive is important but even if prosecution fails to prove the motive, case of the prosecution will not fail. Again it was submitted by Shri Khedkar, learned Public Prosecutor, that though motive is important but even if prosecution fails to prove the motive, case of the prosecution will not fail. Reliance has been placed on Ajitsingh Harnamsingh Gujral v. State of Maharashtra, reported in AIR 2011 SC 3690 . It is further argued by learned Public Prosecutor that in this case appellant Neeraj was injured. He has not explained the injuries who he sustained, therefore, such conduct of appellant Neeraj will go against him. In order to strengthen this plea, reliance was placed on Munna Kumar Upadhyaya alias Munna Upadhyaya v. State of Andhra Pradesh, reported in (2012)6 SCC 174 , and on Ravirala Laxmaiah v. State of Andhra Pradesh, reported in (2013)9 SCC 283 . It is further argued by learned Public Prosecutor that minor contradictions and omissions do not affect the credibility of evidence and failure of accused to explain circumstances found against him will go in favour of the prosecution. He relied on Jagroop Singh v. State of Punjab reported in AIR 2012 SC 2600 , and on Munish Mubar v. State of Haryana, reported in (2012)10 SCC 464 . 16. Having heard learned counsel for the rival parties the impugned judgment and evidence available on record have been perused. 17. It is not in dispute that murder of Rambabu was committed and his dead body was seized from Jamdar Ka Bagicha Hanuman Bandh Road, Taraganj and spot map Ex.P-21 was prepared on 21.8.93 at about 9:50 am. So, in this way, nature of death of Rambabu has to be ascertained and while adhering to such issue we find that in evidence of Dr. V.K. Diwan (PW6) he proved that the death of Rambabu was homicidal in nature as during autopsy he has found 15 injuries over the body of Rambabu and both cronial fosa bone were fractured. According to him, the cause of death was cardiorespiratory failure because of sustaining injuries which resulted in his death. Post-mortem report Ex.P-4 was prepared and signed by him. 18. Now, to come to a right conclusion, we will see whether the evidence was properly appreciated or not under the following heads by the learned trial Court in view of propositions laid down by the Hon’ble apex Court in above-mentioned cases : 1. Motive 2. Last seen 3. Identification of accused 4. 18. Now, to come to a right conclusion, we will see whether the evidence was properly appreciated or not under the following heads by the learned trial Court in view of propositions laid down by the Hon’ble apex Court in above-mentioned cases : 1. Motive 2. Last seen 3. Identification of accused 4. Seizure of weapons from the possession of the appellants. 5. Seizure of property from the possession of accused persons 6. Identification of properties seized from the possession of the accused persons. 19. Detailed discussion follows : 1. Motive : (A) For this purpose, witness Pannalal (PW7) was cited. It was stated by him in para 1 of his statement that Rambabu (deceased) and his father Randheer Singh both were residing in his neighbourhood. In the morning at about 6-7 one girl, namely, Sarla came to my house along with accused appellant Neeraj. Sarla told him that for performance of sexual abuse with my son, Neeraj had opened his undergarment and therefore Neeraj was scolded. On which, Neeraj had stated that since Sarla was defaming him everywhere, he would inflict knife to Sarla’s son. Again, it was stated by Pannalal (PW7), in the same para, that at that time Rambabu had shouted from the roof of his house that Neeraj was in the habit of stealing and a evildoer, therefore, FIR should be lodged against him. (B) It is submitted by learned counsel appearing on behalf of the respondent/State that it shows that accused Neeraj is a person who has very much revengeful attitude. In the morning of the fateful day because some allegations were made by Rambabu against Neeraj and therefore to take vengeance, murder of Rambabu was committed by Neeraj alongwith other co-accused persons. (C) But the statement of Pannalal (PW7) is not reliable because in para 2 it was admitted by him that this fact was not stated by him to the police in his police statement. Except this evidence, prosecution has not produced any other evidence to prove the inimical relationship between Neeraj and Rambabu or between other co-accused persons and Rambabu. Prosecution has also not produced any other evidence to prove the motive of the crime but on the contrary Ajay Sonone (PW10) stated in para 1 that Neeraj and Rambabu were friends and the members of orchestra party. Prosecution has also not produced any other evidence to prove the motive of the crime but on the contrary Ajay Sonone (PW10) stated in para 1 that Neeraj and Rambabu were friends and the members of orchestra party. Similarly, Leela (PW14), sister of the deceased, in para 6 of her evidence and Suresh Kumar (PW12), brother of the deceased, in para 13 of his evidence have deposed that there was no inimical relationship between Rambabu and appellants Kalla, Neeraj, Bholu and Pappu. Learned trial Court has also found in para 46 of its judgment that motive was not proved by the prosecution. In this way, it is clear that prosecution has failed to prove the motive behind commission of crime. 2. Last seen, 3. Identification of accused and 4. Seizure of weapons from the possession of the appellants : (A) To prove this set of evidence, prosecution has produced Leela (PW14) who is the younger sister of the deceased. It was stated by her in paragraph 1 of her evidence that at about 6 p.m. when she was sweeping the platform of the house, she saw that appellant Neeraj, Kallu and one unknown person had come there. They invited the deceased to take food at hotel. During dock identification, it was also stated that third unknown person was, the person present in court, (indicating appellant-Bhola). After a period of half an hour of this incident, deceased came back but she and her mother did not ask any question to the deceased whether he had taken food or not. This evidence was fully corroborated from the evidence of Bundabai (PW13) who is the mother of the deceased. (B) Bundabai (PW13) and Leela (PW14) further deposed in their respective evidence that thereafter they had gone to purchase vegetables and after purchasing when both were returning they saw that deceased had a cycle and was going with appellant Neeraj, Kallu along with two unknown persons who were identified in the Court during trial by indicating towards appellant Pappu and Bholu. Both have also stated that they did not know the name of these two (Pappu and Bholu) appellants. Similarly, Randheer Singh (PW11), father of the deceased, stated in para 2 of his evidence that on that fateful evening deceased had come to the shop by bicycle and told him that he was going with his friends. Both have also stated that they did not know the name of these two (Pappu and Bholu) appellants. Similarly, Randheer Singh (PW11), father of the deceased, stated in para 2 of his evidence that on that fateful evening deceased had come to the shop by bicycle and told him that he was going with his friends. He did not return till 9 p.m. In para 5, it was stated by him that he was informed by Leela (PW14) and Bundabai (PW13) that the deceased had gone with appellants Neeraj, Kallu, Pappu and Bholu. But so far as this statement in regard to names of Pappu and Bholu is concerned is not reliable because Bundabai (PW13) and Leela (PW14) both themselves state that they do not know the names of these two unknown persons (Pappu and Bholu). Ajay Sonone (PW10) deposed in para 1 of his statement that he had seen that the deceased and Neeraj along with 2-3 unknown persons were taking food near Taraganj bridge. Suresh Kumar (PW12), brother of the deceased stated in para 1 of his evidence that in the fateful evening when he was going to his shop, on a square, he saw that Rambabu and appellants Neeraj, Kallu, Pappu and Bholu were going. At that time, deceased was having cycle. (C) From the above mentioned evidence, it is clear that at about between 8:00 to 8:30 pm deceased was seen along with appellants Neeraj and Kallu. So far as appellants Pappu and Bholu are concerned, their presence is not reliable because Bundabai (PW13), Leela (PW14) and Ajay Sonone (PW10) stated that two unknown persons were there along with appellants Neeraj and Kallu. Test Identification Parade was not organized by the prosecution for identification of appellants Pappu and Bholu. Statement of Suresh Kumar (PW12) is not reliable on this point because it was not stated by him in his police statement Ex.D-6 that he has seen the deceased along with all appellants i.e. Neeraj, Kallu, Pappu and Bholu. Therefore, appellants Pappu and Bholu could not be connected with the last seen. (D) It was submitted by Shri Khedkar, learned Public Prosecutor that when appellants Pappu and Bholu were identified by the witnesses during Court trial, therefore, only in the absence of TIP during investigation, names of appellants Pappu and Bholu cannot be removed from the last seen evidence. Therefore, appellants Pappu and Bholu could not be connected with the last seen. (D) It was submitted by Shri Khedkar, learned Public Prosecutor that when appellants Pappu and Bholu were identified by the witnesses during Court trial, therefore, only in the absence of TIP during investigation, names of appellants Pappu and Bholu cannot be removed from the last seen evidence. It is also submitted by Shri Khedkar that deceased was last seen in the company of the appellant and just thereafter in the same locality dead body of deceased Rambabu was found. No explanation was given, therefore, the appellants are liable for conviction. To strengthen his plea, he relied on Shyamlal Ghosh v. State of West Bengal, reported in (2012)7 SCC 646 . But we are of the considered view that it gives no help to the prosecution because in the present case appellants Pappu and Bholu were unknown persons for the witnesses. Their names were also not mentioned in police statements. Identification parade was also not organized for them. Their names were also not stated during trial when witnesses had seen them present in the Court along with appellants Neeraj and Kallu. They were identified by indication only. (E) Now, the question before us for consideration is whether appellants Neeraj and Kallu could be linked with the offence of murder only because both were seen along with deceased by the witnesses? The answer will be “No” since in absence of motive as discussed in foregoing paras and because Rambabu and Neeraj both were friends; they used to go here and there and also at orchestra office of Ajay Sonone (PW10) and there was no inimical relationship between these persons as stated by Suresh (PW12) in para 13 of his statement, Leela (PW14) in para 6 of her statement. Ajay Sonone (PW10) also deposed in para 5 of his evidence that 8-10 days prior to this incident, he had seen the deceased along with appellants Kallu and Neeraj at Chandrabadani hills where house of deceased is situated. It also shows that deceased and appellants Neeraj and Kallu used to remain in company to each other and also used to go here and there. It also shows that deceased and appellants Neeraj and Kallu used to remain in company to each other and also used to go here and there. Therefore, only mere presence of appellants Neeraj and Kallu along with the deceased on the fateful night at about 8:30 p.m. cannot be a ground for linking them with the offence because both the appellants and deceased used to go here and there due to their friendship. (F) Dr. V.K. Diwan (PW6) has conducted the autopsy. He has found 15 ante-mortem injuries on the body of the deceased. It was stated by him in para 3 of his evidence that death of Rambabu occurred within 12 to 24 hours. Autopsy report Ex.P-4 was prepared and signed by him. Post-mortem was conducted on 21.8.1993 at 5:30 p.m. Dead body of deceased was recovered from Jamdar Ka Bageecha in the morning of 21.8.1993 at 9:50 and spot map Ex.P-21 was prepared. (G) It was pointed out by the learned Public Prosecutor that at about 8:30 p.m., appellant Neeraj and Kallu both were seen in the company of deceased and then after a period of 2-1/2 hours Neeraj reached at about 11 p.m. at the house of Nirpat Singh (PW5) just to keep cycle of deceased at his house which was taken away in the next morning by Neeraj from the house of (PW5). Meaning thereby, murder of deceased was committed between near about 8:30 p.m. to 10:30 p.m. of 20.8.1993. This fact was also proved from the evidence Dr. V.K. Diwan (PW6) who stated that autopsy was conducted on 21.8.1993 at about 5:30 p.m. and death of deceased occurred within 12-24 hours and in this way appellants can be very well linked with the offence. (H) We are unable to accept the contention of learned Public Prosecutor because reaching of appellant Neeraj at the house of Nirpat (PW5) at 11 p.m. is doubtful because neither cycle was produced for identification before (PW5) nor seizure of cycle was proved as discussed in next paras. It is also made clear that TIP for cycle and other articles was also found doubtful as discussed in subsequent paras. Apart that Dr. It is also made clear that TIP for cycle and other articles was also found doubtful as discussed in subsequent paras. Apart that Dr. V.K. Diwan (PW6) has stated in his evidence the duration of death was 12-24 hours but reasons were not assigned by him in his evidence that how he arrived at this conclusion.Therefore, it may also be possible that murder was committed within 12 hours from the time of autopsy i.e. 5:30 p.m. on 21.8.1993. Meaning thereby, murder may be committed at about 5:30 a.m. early in the morning of 21.8.1993 (within 12 hours). Time of last seen was 08:30 pm on 20.8.1993 and death may be occurred at about 5:30 am in 21.8.1993 and in between a long period of these nine hours, possibility of entry of third person for committing the murder cannot be ruled out. In post-mortem report Ex.P-4 it was mentioned that rigor mortis were present all over the body. As per Modi’s Medical Jurisprudence and Toxicology, 24th Edition Reprint-2012 pg.343, Time of onset This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In this way, in absence of other evidence appellant Neeraj and Kallu cannot be connected with the crime only on this ground. (I) Besides this, appellants Neeraj and Kallu could not be connected with the offence in the absence of seizure of any weapon from their possession. Admittedly, about 15 ante-mortem injuries were found present on the body of the deceased and it was specifically stated by the doctor in para 3 of his statement that injuries No.1 to 14 were caused by hard and blunt object and injury No.15, incised wound, was caused by sharp-edged weapon. This important piece of the evidence was not collected by the prosecution and it creates doubt whether appellant, Neeraj and Kallu who were the friends of deceased and usually used to remain in his company, committed offence of murder. (J) Apart that on perusal of spot map Ex.P-21, it is clear that dead body of deceased was lying near pit filled with water. This area was situated in Taraganj but nowhere the distance, from Taraganj bridge to the spot where the dead body of the deceased was found present, was mentioned in Ex.P-21. (J) Apart that on perusal of spot map Ex.P-21, it is clear that dead body of deceased was lying near pit filled with water. This area was situated in Taraganj but nowhere the distance, from Taraganj bridge to the spot where the dead body of the deceased was found present, was mentioned in Ex.P-21. Apart that it was also not stated by Dinesh Dixit (PW16), ASI, Police Station Janakganj that at what distance Taraganj bridge was situated from the spot wherefrom the dead body was seized. It was important and material piece of the evidence to link the appellants Neeraj and Kallu with the offence because Ajay Sonone (PW10) has categorically stated that he had seen deceased and Neeraj along with 2-3 other persons near Taraganj bridge where they were taking food. Therefore, distance between Taraganj bridge and the spot where the dead body of the deceased was found was very material and important piece of the evidence. If distance was established then possibility of third person being with the deceased or not could be judged. Meaning thereby if the distance is short then possibility of entry of third person was less in the absence of other evidence and if distance was long then possibility of third person being with the deceased remains more there. (K) It is an admitted fact that Jamdar Ka Bagicha where the dead body was found also comes within the area known as Taraganj and Taraganj bridge is also situated in the area known as Taraganj. But only on this basis, it cannot be presumed that the distance between to points was very short. 5. Seizure of property from the possession of accused persons and 6. Identification of properties seized fromthe possession of the accused persons : (A) As per the prosecution case, cycle which was seen by the witnesses at the time of last seen with appellant Neeraj and Kallu was seized from the house of Chhiddilal (PW2) on the instigation of appellant Neeraj. Seizure memo Ex.P-2 was prepared. Bicycle was seized on 24.8.1993. But this seizure is doubtful because Chhiddilal (PW2) deposed in para 1 of his evidence that Neeraj along with one boy and his son Somdev were going to his house. He also reached there. Thereafter, bicycle was left by Neeraj at his house. Seizure memo Ex.P-2 was prepared. Bicycle was seized on 24.8.1993. But this seizure is doubtful because Chhiddilal (PW2) deposed in para 1 of his evidence that Neeraj along with one boy and his son Somdev were going to his house. He also reached there. Thereafter, bicycle was left by Neeraj at his house. But Somdev (PW-3) deposed in par 5 of his evidence that when Neeraj had come to his house along with bicycle at that time he was not present at home. Later on, he was informed by his sister that cycle was left there by Neeraj. So, similarly, Chhiddilal (PW2) deposed in para 2 of his evidence that after 2-3 days he was called from the agricultural field by Somdev. He came at house where the cycle was being seized by police and seizure memo was being prepared. But Somdev (PW3) deposed in para 4 that at the time of seizure of bicycle his father was not present there and did not come back home till the moment police was present. Due to contradictory statements of both these witnesses, seizure of bicycle from the house of Chhiddilal (PW2), on the instigation of appellant Neeraj, is doubtful. (B) Similarly, as per the prosecution case, one half shirt and one used cream coloured singlet (Baniyan). Both the articles, which were of his own, were seized from the possession of appellant Pappu on his instigation. For the sake arguments, if it is presumed that both the articles were seized from the possession of the appellant Pappu which were owned by him even then he cannot be linked with the offence because prosecution has not produced any evidence in regard to the presence of blood of deceased on these two articles. Therefore, mere seizure of his (appellant Pappu) own clothes cannot be a ground for linking him with the offence. Therefore, mere seizure of his (appellant Pappu) own clothes cannot be a ground for linking him with the offence. (C) Now, for the sake of arguments if it is presumed that one silver chain belonging to deceased was seized from the possession of appellant Bholu vide seizure memo Ex.P-7 dated 25.8.1993; bicycle of deceased was seized from the house of Chhiddilal (PW2) on the instigation of appellant Neeraj vide seizure memo Ex.P-2 and similarly if it is also presumed that one silver ring and two keys tagged in a keyring belonging to the deceased were seized from the possession of appellant Kallu on his instigation vide seizure memo Ex.P-1 dated 24.8.1993, even then the appellants Neeraj, Kallu and Bholu cannot be linked with the crime because, TIP for these articles was not properly conducted to prove that these articles were belonging to deceased. For this purpose, TIP memo was prepared Ex.P-3. Articles were identified by Randhir Singh (PW11), father of the deceased, and TIP was conducted by Ramesh Patharia (PW4) former corporator. Ramesh Patharia (PW4) has admitted in para 7 of his statement that in TIP memo Ex.P-3 crime number, name of the witnesses, articles for identification and whether rightly or wrongly identified; all these facts were mentioned by his friend Dinesh Bhatnagar. He was also present on the spot. Even his name i.e. Ramesh Patharia, former corporator, Ward No.39, Police Station Janakganj dated 7.9.1993 time 9:30 was also written in the handwriting by Dinesh Bhatnagar. Entire memo Ex.P-3 was prepared by Dinesh Bhatnagar but neither the presence of Dinesh Bhatnagar was mentioned in this memo nor his signature was present on that memo. Though in the bottom of para 7 of his evidence it was deposed by Ramesh Patharia (PW4) that on his dictation entries were made by Dinesh Bhatnagar but even this fact was not mentioned in this TIP memo Ex.P-3. Further, it was admitted by Randhir Singh (PW11) in para 6 of his evidence that identification parade was conducted by two unknown persons. Therefore, in absence of examination of very important and material witness Dinesh Bhatnagar, the possibility of preparation of preplanned identification memo Ex.P-3 cannot be ruled out. In this way, entire TIP was defiled and remained not reliable. It was also not explained by prosecution that how two different dates were mentioned in Ex.P-3 i.e. on top 7.9.1993 and at bottom 9.7.1997. In this way, entire TIP was defiled and remained not reliable. It was also not explained by prosecution that how two different dates were mentioned in Ex.P-3 i.e. on top 7.9.1993 and at bottom 9.7.1997. It also creates doubt. (D) Apart that, initially Randhir Singh in his first police statement dated 21.8.1993, Ex.D-14, Leela Bai in her first police statement dated 21.8.1993, Ex.D-7 and Bundabai in her first police statement dated 21.8.1993, Ex.D-7, did not state that deceased used to wear one silver ring, one silver chain and he used to keep with him keys tagged in keyring. But in subsequent statements it was stated by the witnesses that Rambabu used to wear and keep above mentioned articles with him. Therefore, the possibility of manipulation, by showing seizure of articles belonging to deceased from the possession of the appellants, cannot be ruled out. (E) On perusal of statement of Randhir Singh (PW11), in the bottom of para 3, when question was put before him by the defence vkidk yM+dk jkeckcw D;k&Dk igurk Fkk\ mRrj & ^^vaxwBh pk¡nh dh] pSu pk¡nh dh] cq’kVZ] pM~Mh] gkWQ iSaV] lkbZfdy o pIiy vkSj nqdku dh pkchA** From perusal of this answer, it is clear that how the witness was tutored by the prosecution to answer that whenever such types of questions were asked by the defence then he had to answer in regard to the articles seized from the possession of the appellants. The question was simply asked as to what articles deceased used to wear but answer was given with cycle and keys of the shop also. These articles i.e. cycle and keys of the shop cannot be worn by anyone while they can be kept alongwith. This question-answer itself creates a doubt on the testimony of Randhir Singh (PW11). (F) Dinesh Chandra Dixit (PW16), ASI, has admitted in cross-examination that during marg enquiry this fact had not come before him that when deceased went from his house at that time one silver chain, one silver ring and keys were along with him. (G) Apart that Randhir Singh (PW11) was not sure himself that the offence was committed by the appellants because in para 14 of his statement it was deposed by him that he had doubt that murder of deceased was conspired by Mahesh. (G) Apart that Randhir Singh (PW11) was not sure himself that the offence was committed by the appellants because in para 14 of his statement it was deposed by him that he had doubt that murder of deceased was conspired by Mahesh. He has never stated in his entire evidence, that at any point of time, any doubt arose against the appellants for commission of such offence. 20. It was further submitted by the learned Public Prosecutor that as per the arrest memo of appellant Neeraj, Ex.D-3, at the time of arrest it was found that his nose was injured and blood was oozing. Similarly, in MLC report Ex.D-11 and D-12, it was mentioned that two injuries were found present; one is lacerated wound on the right nasal side and the second is contusion but the injuries were not explained by appellant Neeraj, therefore, after taking into consideration the entire circumstances it should be presumed that offence was committed by Neeraj. Contention is not acceptable because as per the defence contention injuries were inflicted by police authorities by giving him third degree treatment and to prove this fact question was put by the defence before M.L. Sharma (PW15), the investigating officer. Though this fact was denied that third degree treatment was given to appellant Neeraj. Injuries were explained during the examination of accused under section 313 of CrPC when question No.61 was asked by the trial Court from appellant Neeraj and it was explained by him that he was beaten by police due to which injuries were sustained. 21. On the basis of above discussion of evidence and after taking into consideration the entire material available on record, we are of the considered view that prosecution has failed to complete the chain of events by circumstantial evidence by missing following rings of the chain : (a) In absence of motive; (b) Since appellant Neeraj was the close friend of deceased and both were used to remain in the company of each other at different places; therefore on the fateful day company of these persons was not unnatural. (c) Because distance of last seen spot and the place from where the dead body was seized was not proved; (d) In the absence of TIP in regard to appellant Pappu and Bholu; (e) TIP of articles seized from the appellants belonging to deceased was defiled; (f) The weapons used in the commission of offence of murder of the deceased were not seized from the possession of the appellants; and (g) Time-gap between the last seen and death of Rambabu was more than 9 hours therefore possibility of entry of third person to commit the murder was there. Therefore, we are not inclined to hold that the impugned judgment of conviction and order of sentence was rightly passed by the learned trial Court. 22. In the above mentioned facts and circumstances of the case, authorities as relied on by the learned Public Prosecutor are of no relevance since they are quite distinguishable from the facts of the present case. In cases which rest upon circumstantial evidence, conviction can be permissible only when all links in chain of events are established beyond reasonable doubt and established circumstances are consistent only with hypothesis of guilt of accused and totally inconsistent with his innocence. This principle was laid down by Hon’ble apex Court in Jagroop Singh (supra). But in this case prosecution has failed to become complete the chain of events. 23. It is settled law that benefit of doubt always goes in favour of the accused. In this case also, entire case of the prosecution is doubtful. The prosecution has failed to prove the guilt of the appellants beyond reasonable doubt, therefore, the benefit of doubt is granted to the appellants. 24. Accordingly, all the appeals are hereby allowed. The impugned judgment of conviction and order of sentence passed by the learned trial court is set aside. All the accused-appellants are acquitted of the charges levelled against them. Fine amount, if any deposited by the accused/appellants, be refunded to them respectively. All the appellants are in jail. Release warrants be issued in their favour, if not required in any other case. The order regarding disposal of the seized articles passed by the learned trial Court is hereby confirmed. A copy of this judgment along with record be sent to the trial Court for necessary compliance. .............