JUDGMENT Hon’ble Bharat Bhushan, J.—Appellant Net Ram has assailed the judgment and order dated 9.3.1983 passed by the Sessions Judge, Budaun in S.T. No. 422 of 1982 (State v. Net Ram) arising out of Crime No. 44 of 1982 whereby he was held guilty of offence under Section 302 I.P.C. and sentenced to undergo an imprisonment for life. 2. Prosecution case in brief is that one Basanti the real brother of complainant Moti Ram was the resident of village Panotha, Police Station Kunwargaon, district Budaun. He was living with his son Kalicharan (deceased), daughter Smt. Chandrawati (P.W.3) and son-in-law, appellant Net Ram. 3. It appears that Basanti after the death of his wife invited his daughter, P.W. 3 Chandrawati and her husband accused Net Ram to live with him at his house village Panotha. Thus, accused Net Ram and Chandrawati started living with Basanti at his house. Deceased Kali Charan, the only son of Basanti, was also living with them. 4. It is alleged that accused Net Ram started pressurizing his father-in-law to transfer his landed property in his name. Basanti advised patience. Four days prior to the incident ie. on 14.6.1982, Basanti left his residence to visit his relations in another village. 5. Appellant Net Ram and his wife Chandrawati and Kalicharan remained in the house. It is alleged that on 14.6.1982 early, in the morning at about 5 am., appellant Net Ram was seen going out of the village. Suddenly in the morning of 14.6.1982 informant and other villagers heard wailing of woman emanating from the house of Basanti. On inquiry, Chandrawati (P.W. 3) told his uncle informant Moti Ram (P.W. 1) that her brother Kalicharan (deceased) had disappeared. A search party was organized. Appellant Net Ram was found at the periphery of their village. It is alleged that he was throwing the corpse of Kalicharan in the pond. They caught appellant Net Ram and took out the dead body of Kalicharan from the pond. Informant Moti Ram (P.W.1) the brother of Basanti and uncle of Chandrawati and deceased Kalicharan, lodged oral report of this incident against the appellant Net Ram. The police registered the case under Section 302 and 201 I.P.C. Investigation ensued and charge-sheet under Section 302 and 201 I.P.C. was submitted against the accused appellant. 6. Accused appellant Net Ram was charged under Section 302 and 201 I.P.C. on 23.12.1982. The police registered the case under Section 302 and 201 I.P.C. Investigation ensued and charge-sheet under Section 302 and 201 I.P.C. was submitted against the accused appellant. 6. Accused appellant Net Ram was charged under Section 302 and 201 I.P.C. on 23.12.1982. He pleaded not guilty and claimed to be tried. The trial was conducted. Prosecution adduced the testimony of informant Moti Ram as P.W. 1, Chadammi as P.W. 2, Chandrawati as P.W. 3, Dr. Raj Kumar Verma as P.W. 4 and Sub Inspector, Mahendra Singh Malik as P.W. 5. Accused appellant denied all allegations in his statement recorded under Section 313 Cr.P.C. and also claimed that he has been falsely implicated by informant Moti Ram, uncle of deceased Kalicharan in order to grab the property of Basanti. An opportunity was given to appellant to adduce evidence in defence but of no avail. Thereafter trial Judge concluded that there is sufficient evidence to hold Net Ram guilty of offence under Section 302 I.P.C., therefore, he was sentenced to undergo life imprisonment vide judgment and order dated 9.3.1983. This judgment is under challenge before Court in this appeal. 7. Heard Sri S. Rashid, learned counsel for the appellant and Sri Rajiv Kumar Mishra, learned counsel for State. 8. Learned counsel for appellant has submitted that there is no evidence on record to hold appellant guilty of offence under Section 302 I.P.C. No eye-witness account is available regarding his alleged involvement in murder of deceased Kalicharan. The circumstances relied by the Trial Judge have not been established by cogent and credible evidence. In any case, the circumstances relied by the Trial Judge by themself are not sufficient to hold the appellant Net Ram guilty of murder of Kalicharan. 9. Per contra, learned A.G.A. has submitted that case is based on circumstantial evidence. Circumstances have been established by independent and credible evidence and they unerringly indicate that deceased was done to death by appellant Net Ram. 10. A bare perusal of record would reveal that there is no direct evidence of assassination of deceased Kalicharan against the accused appellant. Informant Moti Ram (P.W. 1), Chadammi (P.W. 2) and Chandrawati (P.W. 3) did not witness the incident of murder. This case is based purely on circumstantial evidence. 10. A bare perusal of record would reveal that there is no direct evidence of assassination of deceased Kalicharan against the accused appellant. Informant Moti Ram (P.W. 1), Chadammi (P.W. 2) and Chandrawati (P.W. 3) did not witness the incident of murder. This case is based purely on circumstantial evidence. Two witnesses, namely, P.W. 1 Moti Ram and P.W. 2 Chadammi have primarily given evidence of the fact that on day of incident i.e. on 14.6.1982 at about 5 am. they heard wailing of Chandrawati emanating from her house whereupon informant Moti Ram and his companions questioned her. Smt. Chandrawati (P.W. 3) divulged that her deceased brother Kalicharan is missing and also said that appellant Net Ram had taken deceased Kalicharan alongwith him. However this part of statement is not consistent with the content of F.I.R. in which Smt. Chandrawati had merely reported the disappearance of deceased Kalicharan only. The interesting part is that Smt. Chandrawati (P.W. 3) did not give any information regarding appellant, Net Ram to his uncle or villagers. Involvement of appellant Net Ram was not divulged by Smt. Chandrawati (P.W. 3) as reflected by the F.I.R. It mere discloses that appellant Net Ram was seen in the company of deceased Kalicharan by informant Moti Ram (P.W. 1), Chadammi (P.W. 2) and other persons at 5 am. and they in fact, questioned appellant Net Ram of this early morning stroll with deceased Kalicharan. Thereafter these very people, namely, Moti Ram (P.W. 1), Chaddammi (P.W. 2) etc. heard the wailing of Smt. Chandrawati (P.W. 3) coming out of her house. F.I.R. says that complainant informed Smt. Chandrawati that Net Ram had taken away deceased Kalicharan. 11. F.I.R. further says that when they reached the pond, they saw that the appellant Net Ram was throwing the dead body of deceased Kalicharan in it. When the search party intervened and questioned him, he started running away from the spot. Thereafter the search party chased him and caught him at the periphery of the village. The dead body of Kalicharan was taken out of the pond which was full of mud. The informant Moti Ram lodged the report on same day about 7:30 am. at Police Station Kunwargaon which was three and a half kilometers away from the place of occurrence. 12. The dead body of Kalicharan was taken out of the pond which was full of mud. The informant Moti Ram lodged the report on same day about 7:30 am. at Police Station Kunwargaon which was three and a half kilometers away from the place of occurrence. 12. The testimony of informant Moti Ram (P.W. 1) changes the complexion of story enshrined in F.I.R. Testimony given by Smt. Chandrawati (P.W.3) that appellant Net Ram had taken deceased Kalicharan with him during middle of night is contradictory. Different story is given by P.W. 2 Chadammi, a member of same clan. The evidence would reveal that there are vast and significant discrepancies between the statements of Moti Ram (P.W. 1), Chadammi (P.W.2) and Smt. Chandrawati (P.W. 3). Chandrawati significantly changed the story of preceding night during her testimony. She has stated that her husband, Net Ram (appellant) snatched deceased Kalicharan from her house at about mid night. She has further stated that she had opposed the capture of deceased Kalicharan but her husband forcibly lifted Kalicharan overruling her objection. She reportedly raised alarm immediately. Now other witnesses have claimed that they went to the residence of Smt. Chandrawati (P.W. 3) after hearing her cries at 5 am. and that; they had already seen the decampment of appellant Net Ram with deceased Kalicharan. If the evidence of P.W. 3, Smt. Chandrawati is taken into account then it is apparent that evidence of witnesses that they observed accused Net Ram leaving with deceased Kalicharan in the early morning at 5 am. of 14.6.1982, cannot be correct. If evidence of P.W. 1 Moti Ram and P.W. 2 Chadammi is correct that they witnessed the departure of appellant Net Ram alongwith deceased Kalicharan in the early morning at about 5 am., then the testimony of P.W. 3 Chandrawati would become false. At one place informant Moti Ram (P.W. 1) said that he was feeding his cattle when he saw that appellant Net Ram was going alongwith deceased Kalicharan whereas Chadammi (P.W. 2) has stated that Moti Ram was siting alongwith him and Meharban etc. at his Chaupal when they witnessed the exit of appellant and deceased Kalicharan towards the pond. P.W. 1,Moti Ram refused to acknowledge the presence of Manohar, Chadammi and Meharban on that occasion. at his Chaupal when they witnessed the exit of appellant and deceased Kalicharan towards the pond. P.W. 1,Moti Ram refused to acknowledge the presence of Manohar, Chadammi and Meharban on that occasion. It is alleged that Manohar, Chadammi and Meharban informed him subsequent to this episode that they too had seen the appellant Net Ram and deceased Kalicharan going together towards the pond. This evidence is contrary to the testimony of P.W. 2 Chadammi who has testified that Moti Ram (P.W. 1) had asked the accused appellant Net Ram as to where he was going. 13. The evidence of both P.W. 1, Moti Ram and P.W. 2 Chadammi regarding the manner in which corpse of Kalicharan was taken out from the pond is also full of discrepancy. P.W. 1 Moti Ram said that corpse of deceased Kalicharan was lying in the water whereas P.W. 2 Chadammi has testified that the body was buried one foot deep in the mud of pond. It is therefore, evident that the stories of ‘last seen’ and discovery of dead body are both doubtful as witnesses have deposed contrary to each other. P.W. 3 Chandrawati has also given contradictory statement. If the testimonies of P.W. 1 Moti Ram and P.W. 2 Chadammi are taken into account then that Smt Chandrawati P.W. 3 raised alarm in the morning at 5 am. while P.W. 3 Chandrawati says that she raised alarm in the middle of the night whereupon some villagers reached her place. It is therefore, clear that none of these witnesses are credible, reliable and trustworthy. 14. Surprisingly, even the Trial Judge concluded that the witnesses have deposed in a very shady manner and their testimony is not reliable. At few places the Trial Judge has concluded that witnesses have deposed falsely yet he concluded that the part of the testimony of these witnesses can be accepted for establishing some circumstances which indicate that appellant Net Ram had committed crime. The Trial Judge concluded that in the night in question deceased Kalicharan was taken away by accused appellant Net Ram and that the body of the deceased was recovered at his instance. The Trial Judge opined that these two circumstances have been established by evidence and they unerringly point out at the guilt of appellant. 15. We are afraid the circumstances relied by the Trial Judge are not at all conclusive. The Trial Judge opined that these two circumstances have been established by evidence and they unerringly point out at the guilt of appellant. 15. We are afraid the circumstances relied by the Trial Judge are not at all conclusive. The alleged departure of deceased Kalicharan with the accused appellant in the night of incident has not been established at all. Smt. Chandrawati (P.W. 3) herself has said that deceased was taken by appellant Net Ram in the middle of night and she claims to have raised hue and cry immediately. If informant Moti Ram and villagers reached her residence in the middle of night, then there was no occasion and reason for them to fabricate the story of 5 am. They could have simply stated that they heard the cries of Chandrawati in the middle of night and that; later the dead body of Kalicharan was recovered at the instance of appellant. But the story given by P.W. 1 Moti Ram and P.W.2 Chadammi is diametrically opposite to the testimony of P.W. 3 Chandrawati. Only three witnesses have been produced by prosecution and all three have testified in a different and contradictory manner regarding departure of deceased Kalicharan in the alleged company of appellant Net Ram and also on the point of position of dead body in the pond as well as its recovery. The Trial Judge himself has pointed out several discrepancies. If P.W. 1 Moti Ram and P.W. 2 Chadammi did not see the departure of deceased Kalicharan in the company of appellant Net Ram, then the obvious question would be if the incident occurred in the middle of night then why was report lodged with considerable delay? 16. We believe that testimony of P.W. 3 Chandrawati that she had resisted the attempt of appellant Net Ram in the night cannot be believed. If she raised alarm, immediately in the aftermath of Net Ram lifting the minor boy, then other family member and villagers could have easily stopped Net Ram from doing what he allegedly did. The murder of a person is not a everyday affair. The pond was two kilometers away from the residence of Net Ram. It would take considerable time to reach the place of occurrence. The murder of a person is not a everyday affair. The pond was two kilometers away from the residence of Net Ram. It would take considerable time to reach the place of occurrence. Therefore, if Chandrawati (P.W. 3) was aware of the alleged misdeeds of Net Ram and raised the alarm in the night as claimed, then it would have been possible for other villagers, Moti Ram etc. to catch appellant Net Ram before the murder of Kalicharan. 17. We have carefully scanned all material on record and we believe that there was a tension in the family probably on account of arrival of appellant Net Ram and his wife Chandrawati in the family of Basanti, brother of P.W. 1 Moti Ram. Perhaps some people even apprehended that some part of agriculture land or the property of Basanti would go to Net Ram and this apprehension has probably given rise to this case. A bare perusal of the entire record would reveal that an attempt to manufacture and create evidence is palpable. We have noticed that manner of recovery of corpse has been described differently by both witnesses, namely, P.W. 1 Moti Ram and P.W. 2 Chadammi. It begs the question why these significant discrepancies are available in the testimony of both witnesses, if they were present at the time of recovery of the body. If their presence on the place of recovery of dead body is doubtful then the so called extra judicial confession of appellant Net Ram to P.W. 2 Chadammi cannot be taken into account. We believe that significant time lag between the two stories of departure of appellant Net Ram allegedly in the company of Kalicharan cannot be reconciled. While P.W. 3 Chandrawati says that Net Ram departed in the middle of night and accompanied by Kalicharan but two other eye-witnesses claimed that Net Ram left early in the morning. Both set of witnesses belong to the same clan and both claimed to have witnessed the departure of appellant Net Ram. Therefore, the aforesaid discrepancies are fatal to the prosecution story. 18. Criminal trial based on the circumstantial evidence needs specific kind of evidence. Each circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Therefore, the aforesaid discrepancies are fatal to the prosecution story. 18. Criminal trial based on the circumstantial evidence needs specific kind of evidence. Each circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Those established circumstances should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by accused and none else. The circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of guilt of accused and such evidence should not only be consistent with the guilt of accused but should be inconsistent with his innocence. 19. We have carefully examined the material available before us. It is evident that the trial judge merely believed certain parts of testimonies of witnesses. We believe that Trial Judge was right in disbelieving certain parts of testimonies of witnesses. We also believe that Trial Judge rightly discarded the significant portion of evidence of prosecution but surprisingly, he believed that two circumstances have been established by the same evidence i.e. the alleged departure of deceased Kalicharan in the company of appellant and later on recovery of corpse of deceased at his instance. We have no hesitation to hold that even the remaining part of evidence relied by the Trial Judge is very weak and unworthy of credit. The alleged extra judicial confession is not trustworthy at all. The circumstances pointed out by the Trial Judge have not been established in convincing manner and even if these two circumstances are taken into account that alone would not be sufficient to hold that appellant Net Ram was guilty of murdering deceased Kalicharan. 20. Admittedly, Net Ram was living with deceased and his family, therefore, their association was not at all surprising. The evidence regarding recovery of dead body at the instance of accused appellant is full of holes. The witnesses have testified in contradictory manner in this regard, therefore, in our opinion they cannot be relied. We have carefully gone through the entire record. We believe that prosecution has failed to bring home the guilt of accused by trustworthy evidence. 21. The evidence regarding recovery of dead body at the instance of accused appellant is full of holes. The witnesses have testified in contradictory manner in this regard, therefore, in our opinion they cannot be relied. We have carefully gone through the entire record. We believe that prosecution has failed to bring home the guilt of accused by trustworthy evidence. 21. In view of the aforesaid, the judgment and order dated 9.3.1983 passed by the Sessions Judge, Budaun in S.T. No. 422 of 1982 (State v. Net Ram) arising out of Crime No. 44 of 1982 is, hereby, set aside. The appeal is allowed. The appellant is acquitted. His sureties are discharged. The appellant be released forthwith if he is in custody and not wanted in any other case. Let a copy of this order be certified to concerned Court through Sessions Judge, Budaun within a fortnight for compliance. The Court concerned shall report the compliance within a month thereafter. ——————