JUDGMENT Hon’ble Alok Singh, J. (Oral) 1. All the three appeals are filed assailing the one and common judgment/order dated 26.8.2013 passed by Ist Additional Sessions Judge, Haridwar in Sessions Trial No. 146 of 2009, whereby all the three accused/appellants were held guilty for the offences punishable under Sections 302 read with Section 34 IPC, Section 394 read with Section 34 IPC and Section 201 read with Section 34 IPC and all the three accused/appellants were awarded life imprisonment and fine of Rs. 5,000/- each under Section 302 read with Section 34 IPC; RI for a period of 7 years and fine of Rs. 2,000/- each under Section 394 read with Section 34 IPC and RI for a period of three years and fine of Rs. 1,000/- each under Section 201 read with Section 34 IPC. 2. Brief facts of the present case, inter alia, are that on 25.2.2009 PW3 Mohd. Ajmal got registered one FIR with P.S. Jwalapur, District Haridwar, inter alia, stating therein that he is a resident of Mohalla Nechalgarh, P.S. Deoband, District Saharanpur, Uttar Pradesh; Murslin (deceased), real brother of PW3, was in business of supplying gold jewellery to Jawalapur after procuring the same from Meerut; at about 9:00 a.m. on 16.2.2009, Murslin (deceased) left his house to go to Jwalapur carrying jewellery with him; Murslin did not come back in the evening of 16.2.2009; search was made for him, however, in vain; on 16.2.2009, he informed P.S. Deoband, District Saharanpur about the missing of his brother Murslin (deceased); however, family members of Murslin (deceased) kept on searching for him; meanwhile, Mohd. Rehan (PW1), maternal uncle of PW3, informed PW3 that he (PW1) had a talk with Murslin on his cell phone on 16.2.2009 between 11:00 – 11:30 a.m. and Murslin (deceased) had disclosed him that he was going to Jwalapur to deliver jewellery to Jogendra @ Jogi/accused on his order; Ikram (PW2) also informed PW3 that on 16.2.2009, he (PW2) had seen Murslin at about 12:00 in the noon talking with Jogendra @ Jogi and Vishnu/ accused after deboarding from the bus near Harilok Bus Stop; PW2 also informed PW3 that he had seen Murslin (deceased) going with both the accused Jogendra @ Jogi and Vishnu on the motorcycle towards Harilok Colony; having received this information from PW2, inquiry was made from Jogendra/accused, however, Jogendra was looking nervous and he refused to speak to them; On this, PW3 got suspicion that Jogendra @ Jogi and Vishnu, with the help of their companions, might have looted Murslin and might have murdered Murslin. 3. Police arrested all the three accused on 25.02.2009; all the three accused confessed before the police that Murslin was murdered in the house of Pankaj/accused in Harilok Colony and his dead body was disposed of in river Ganges and all the jewellery being carried by Murslin were looted by them and they have divided the booty and they could facilitate the recovery of the booty; thereafter, police party went to river Ganges, wherefrom dead body of Murslin (deceased) was recovered and sent for autopsy after completion of the formalities; thereafter, police party went to the house of Vishnu; Vishnu after taking out one packet from his almirah handed over the booty along with 350 bore country made pistol to the police and stated that it was the weapon, whereby Murslin (deceased) was killed; having completed the formalities in the house of Vishnu, police party went to the house of Pankaj; in the room of Pankaj, police party noticed blood stains on the wall, double bed leg and also found broken piece of sunmica having blood stains; police party collected plaster from the wall containing blood stains, wooden leg of double bed and broken piece of sunmica and kept them in seal cover; Pankaj also took out one packet from the wooden almirah and handed over the booty to the police saying that said jewellery came into his share. He also handed over one blue colour bag to the police wherefrom police recovered voter ID of Murslin; thereafter, police party went to the house of Jogendra; Jogendra also handed over one packet of the looted jewellery after taking out from the box. 4. Having investigated the matter, police filed chargesheet against all the three accused for the offences punishable under Sections 394, 302, 201, 411 read with 34 IPC. After committal of the trial, charges were framed against all the accused for the offences punishable under Sections 394 read with 34 IPC, 302 read with 34 IPC, 201 read with 34 IPC and under Section 411 IPC. All the three accused denied the charges and claimed trial. 5. To prove the prosecution story, statements of PW1 Mohd. Rehan, PW2 Ikram, PW3 Ajmal, PW.4 Rasheed Ahmad, PW5 Dr. J.S. Chufal, PW6 Nadim, PW7 B.S. Bhakuni, PW8 Nagendra Pratap Singh, PW9 Suman Pal, PW10 Harendra Singh, PW11 Pradeep Pant and PW12 R.K. Dubey were recorded, and thereafter statements of all the accused were also recorded under Section 313 CrPC. 6. Having perused entire material available on the record, learned Trial Court was pleased to acquit all the accused for the offences punishable under Section 411 IPC, however, all the accused were held guilty for the offences punishable under Sections 302 read with Section 34 IPC, Section 394 read with Section 34 IPC and Section 201 read with Section 34 IPC and were awarded sentence as narrated hereinbefore. Feeling aggrieved, all the accused have preferred three different (present) appeals. 7. We have heard Mrs. Pushpa Joshi, learned Senior Counsel assisted by Mr. P.K. Chauhan and Mr. Saurav Adhikari, Advocates for the appellants and Mr. A.S. Gill, learned Deputy Advocate General assisted by Mr. Milind Raj, learned Brief Holder for the State, and have carefully perused the record. 8. As per the statement of the Investigating Officer S.S.I. Mr. Pradeep Pant (PW11), when all the accused have confessed before the police that Murslin (deceased) was murdered in the house of Pankaj, police party went to the house of Pankaj, wherein police party observed blood stains on the wall and wooden leg of bed and police party found one broken piece of sunmica containing blood. Pradeep Pant (PW11), when all the accused have confessed before the police that Murslin (deceased) was murdered in the house of Pankaj, police party went to the house of Pankaj, wherein police party observed blood stains on the wall and wooden leg of bed and police party found one broken piece of sunmica containing blood. Police party took the photographs thereof; piece of wall (plaster) containing blood stains, piece of sanmica containing blood stains and piece of wooden leg of bed containing the blood stains were kept in seal cover and were sent for forensic examination to Central FSL, Chandigarh. 9. As per the report of the Central FSL, Chandigarh dated 25.5.2009, piece of wall (plaster), piece of sunmica and wooden leg of bed were not found having any human blood thereon as claimed by the police. There is no direct eyewitness, who has seen the murder of Murslin (deceased) at the hands of the accused. Entire case of the prosecution is roaming around the alleged last seen evidence. 10. PW1 Mohd. Rehan, while appearing in the witness box, stated that on 16.2.2009, he had a talk with Murslin (deceased) between 11:00 - 11:30 a.m. on his cell phone; Murslin (deceased) had informed him that he was about to reach Jwalapur and he was going Jwalapur to deliver jewellery to Jogendra @ Jogi/accused. He further stated that he did not receive any information about missing of Murslin, however, when he went to Deoband in the house of Murslin on 24.2.2009 then after acquiring the knowledge of his missing, he told PW3 that he had a talk with Murslin on 16.2.2009 and Murslin had informed him that he was going to Jwalapur to deliver jewellery to Jogendra @ Jogi. 11. It is important to mention herein that PW1 has not seen Murslin (deceased) in the company of the accused/appellants. He has been allegedly informed by Murslin telephonically that Murslin was going to Jwalapur to deliver jewellery to Jogendra @ Jogi. 12. 11. It is important to mention herein that PW1 has not seen Murslin (deceased) in the company of the accused/appellants. He has been allegedly informed by Murslin telephonically that Murslin was going to Jwalapur to deliver jewellery to Jogendra @ Jogi. 12. PW2 Ikram, while appearing in the witness box, stated that Murslin (deceased) was known to him; on 16.2.2009, PW2 alongwith Farman were coming from Roorkee side; on 16.2.2009 at about 12:00 in the noon, when they reached near Arya Lok Colony, Jwalapur, he had seen that Murslin, after de-boarding from bus, was speaking to Jogendra and Vishnu; thereafter, PW2 had seen all the three i.e. Murslin (deceased), Jogendra and Vishnu (accused) going towards Hari Lok Colony on motorcycle. 13. From the statement of PW2 Ikram, the only thing which can be said is that he had seen accused Jogendra and Vishnu going on motor cycle along with Murslin at about 12:00 noon on 16.2.2009. He did not see either deceased or accused thereafter on the same day. 14. PW3 Mohd. Ajmal is the real brother of Murslin (deceased). He has not seen Murslin (deceased) in the company of accused and whatever he has stated in the FIR, has stated on the basis of information received by him from PW1 Mohd. Rehan and PW2 Ikram. 15. Dr. J.S. Chufal, PW5, who conducted postmortem on the dead body of Murslin (deceased) on 26.2.2009, while appearing in the witness box, stated that dead body has started decaying and decay starts after about 2 weeks from the death. He further stated that if dead body remains in the water then the skin starts pilling after one and a half weeks to two weeks. He further stated that death of Murslin was possible either on 12.2.2009 or soon thereafter. 16. As per the statements of PW1, PW2 and PW3, Murslin (deceased) left his home on 16.2.2009 while as per the statement of doctor, death was possible either on 12.02.2009 or soon thereafter. Therefore, prosecution story that Murslin (deceased) left his house on 16.02.2009 and was murdered in the evening of 16.02.2009, does not find support from the medical evidence. 17. It is stated by Mohd. Ajmal, PW3, that he has submitted one report with P.S. Deoband, District Saharanpur on 16.2.2009 itself about the incident. Therefore, prosecution story that Murslin (deceased) left his house on 16.02.2009 and was murdered in the evening of 16.02.2009, does not find support from the medical evidence. 17. It is stated by Mohd. Ajmal, PW3, that he has submitted one report with P.S. Deoband, District Saharanpur on 16.2.2009 itself about the incident. However, neither true and correct copy of such report was produced on the record nor original was summoned from P.S. Deoband. 18. Now very important question comes – As to whether the booty recovered from the possession of the accused was being carried by Murslin? 19. As per the statement of PW3, Murslin (deceased) used to purchase Jewellery from Meerut to supply the same to Jwalapur market. However, no witness from Meerut has been produced in the witness box to say that recovered jewellery was supplied by him to Murslin. 20. None of the witnesses has said that alleged booty/jewellery was sold by him to Murslin (deceased) for supply to Jogendra @Jogi at Jwalapur. Surprisingly, looted items have not been proved. Learned Trial Court was pleased to acquit all the three accused for the offence punishable under Section 411 IPC, however, all the accused were held guilty for the offences punishable under Section 394 IPC, which cannot be said to be proper as the alleged recovered items have not been proved as looted property. 21. It is the settled position of law that presumption of innocence is always available in favour of the accused. Such presumption must be ruled out by producing concrete evidence. If none has witnessed the incident and case rest on the circumstantial or last seen evidence, entire chain of circumstantial evidence must be proved beyond reasonable doubt. There should not be unreasonable intervening period between the last seen evidence and time of occurrence. 22. As discussed hereinbefore, none has witnessed the murder of Murslin at the hands of the accused. Place of murder i.e. house of Pankaj has also not been proved in view of FSL report. Not only this, time of murder does not match with the medical report. 23. In view of the discussions made hereinabove, in our considered opinion, prosecution has not been able to prove the guilt of the accused for the offences punishable under Sections 302 IPC and 394 IPC. Not only this, time of murder does not match with the medical report. 23. In view of the discussions made hereinabove, in our considered opinion, prosecution has not been able to prove the guilt of the accused for the offences punishable under Sections 302 IPC and 394 IPC. Since, offence under Section 302 IPC and 394 IPC could not be proved, therefore, offence punishable under Section 201 IPC is also not proved. 24. Consequently, all the appeals are allowed. Impugned judgment and order is hereby set aside. All the accused are acquitted from the charges punishable under Sections 302 read with Section 34 IPC, Section 394 read with Section 34 IPC and Section 201 read with Section 34 IPC. 25. Appellant Pankaj is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Other two accused, namely, Jogendra @ Jogi and Vishnu, if no wanted in any other case, be released forthwith. 26. Let copy of this judgment along with LCR be forwarded to learned Trial Court for compliance.