JUDGMENT Hon’ble Arvind Kumar Tripathi, J.—The instant criminal appeal has been preferred against the impugned judgment and order of conviction and sentence dated 22.1.1983 passed by IV Additional Session Judge, Allahabad in Session Trial No. 75 of 1982, State v. Shiv Lal and Two others, arising out of Case Crime No. 24 of 1981, under Section 302/34 IPC, P.S. Paschim Sarira, District Allahabad (now Kaushambi). 2. The appeal was admitted. Prayer for bail was allowed vide order dated 24.1.1983. 3. Mr. Rahul Mishra, learned Advocate appeared on behalf of the appellants. Mr. Mahendra Singh Yadav, learned AGA appeared on behalf of the State of U.P. 4. By the impugned judgment, appellants Shiv Lal and Sukh Lal were convicted and sentenced to undergo imprisonment for life, however, co-accused Shankar Dayal was acquitted. 5. Learned counsel for the appellants and learned AGA informed that they have no instruction or information regarding Government Appeal against the acquittal of Shankar Dayal. 6. Brief facts of the case is that the F.I.R. was lodged by Smt. Dasiya, wife of Suraj, mother of the deceased Annu. According to F.I.R. version, which was written by one Shiv Charan S/o Shiv Nath, village Baruwa. Informant Smt. Dasiya W/o Suraj (‘Pasi’ by caste) was resident of Laugawan. Her son Annu was also living alongwith her. In the evening of 15.2.1981 at the time of sunset, Shiv Lal and Sukh Lal, who were ‘Kori’ by caste, both of the same village, alongwith two other persons resident of village Tikri, who were relative of Shiv Lal, came at her door, asked her son Annu to accompany them for watching dance in a dance show. Annu said that firstly, he would take his meal and then he would accompany them. After taking meal, he went alongwith those persons though informant (her mother) asked Annu not to go but he did not stop and went alongwith them. The accused persons told her not to worry and her son would return after sometime. Annu did not come back for the whole night. Informant started making enquiry and searching him but he was not traceable. On 16.2.1982 at about 4 p.m., she was informed by one Pandey and some other persons of the same village that a dead body was lying in the field of Garg, near Kumhiyawan Kothi. Informant Smt. Dasiya went to the said field, saw the dead body of her son Annu. On 16.2.1982 at about 4 p.m., she was informed by one Pandey and some other persons of the same village that a dead body was lying in the field of Garg, near Kumhiyawan Kothi. Informant Smt. Dasiya went to the said field, saw the dead body of her son Annu. It was further mentioned in the F.I.R. that Shiv Lal and Sukh Lal and two other persons of village Tikri, took her son and killed him. Alongwith her second son Piyare, she went to the police station for lodging of the F.I.R.(Ex. Ka-1), which was written by Shiv Charan and the same was lodged and registered on 16.2.1981 at 17.30 hrs (5.30 p.m.). The distance of the police station from the place of incident was about ten kilometers towards south. F.I.R. was registered as Case Crime No. 24/81, under Section 302 IPC against Shiv Lal, Sukh Lal and two other unknown persons. G.D.entry was made at Report No. 21. The investigation was handed over to S.I. Jata Shanker Pandey P.W.-5, who recorded the statement of Smt. Dasiya and Piyare at the police station. Then he proceeded to the place of occurrence. Panchayatnama could not be prepared on the same day due to darkness. Thereafter, in the morning on 17.2.1981 panchayatnama (inquest report) was prepared. Blood stained and plain mud and pieces of bones, were collected from the place of incident. The dead body was sent for post-mortem examination through Constable Aik Ram Tiwari and Girja Shankar. The I.O. recorded the statement of Bachchi Lal, prepared the site plan (Ex. Ka-8). The statement of other persons were also recorded on the same day. 7. The post-mortem on the dead body of deceased Annu was conducted by Dr. S.K.Sinha (P.W.-6) on 18.2.1981 at 2 p.m. and he found the following anti-mortem injuries : i. Lacerated wound just above the right ear extending from right cheek to the area just behind the right ear 4 ½’’ long, 2'’ in width and 3'’ deep. Brain material was protruding out. ii. Lacerated wound present ½’’ above injury No. 1, 1 ½’’ x 1'’ x 3'’ brain deep. Edges were lacerated. iii. Lacerated wound 1'’ behind injury No. 2, 3'’ x 1'’ x 3'’, 2 ½’’ behind right ear. iv. Lacerated wound in the back of scalp 1'’ x 1'’ x 1'’. v. Abrasion all over the body. ii. Lacerated wound present ½’’ above injury No. 1, 1 ½’’ x 1'’ x 3'’ brain deep. Edges were lacerated. iii. Lacerated wound 1'’ behind injury No. 2, 3'’ x 1'’ x 3'’, 2 ½’’ behind right ear. iv. Lacerated wound in the back of scalp 1'’ x 1'’ x 1'’. v. Abrasion all over the body. On internal examination, the brain material was protruding out through injuries No. 1, 2 and 3. Stomach and small intestine were found empty. Cause of death was due to grievous injuries. The time since death was noted more than 48 hours. As per information, injuries had been caused by some blunt object. 8. Co-accused Shankar Dayal was arrested and lodged in jail on 18.3.1981. He was put to identification in jail on 22.4.1981 alongwith another person Ajmer. Shankar Dayal was identified by Jiya Lal only, Smt. Dasiya could not identify either Shankar Dayal or Ajmer. After completing the formalities, concluding the investigation, I.O. submitted the charge-sheet (Ex. Ka-11) on 5.7.1981. The case was committed to the Court of Sessions on 24.2.1982 by the C.J.M. Allahabad. Thereafter, the charges were framed. The accused-appellants and co-accused denied the charges and pleaded to be tried. 9. The prosecution to prove its case examined as many as six witnesses. P.W.-1 Smt. Dasiya, informant and mother of the deceased Annu. P.W.-2 Bachchi Lal, brother of the deceased. P.W.-3 Sukhdeo of the same village, subsequently, who stated that in relation Annu was his grandson. P.W.-4 Ram Sagar. P.W.-5 Jata Shanker Pandey, S.I. who submitted the charge-sheet. P.W.-6 Dr. S.K.Sinha who conducted the post-mortem examination. Two Court witnesses were examined. C.W.-1 Jiya Lal, brother of the deceased and C.W.-2 S.N. Ojha, Deputy Collector Etah before whom the identification parade was conducted. 10. It is a case of circumstantial evidence. No motive was mentioned in the F.I.R. and in the statement of informant P.W.-1. Subsequently, motive was introduced in the statement of P.W.-2. 11. Learned counsel for the appellants submitted that on the basis of same evidence in identification parade, co-accused Shankar Lal was identified by one of the witness Jiya Lal C.W.-1, but he was acquitted and appellants Shiv Lal and Sukh Lal were convicted who are real brothers. There is no direct evidence, hence, motive was also important. 11. Learned counsel for the appellants submitted that on the basis of same evidence in identification parade, co-accused Shankar Lal was identified by one of the witness Jiya Lal C.W.-1, but he was acquitted and appellants Shiv Lal and Sukh Lal were convicted who are real brothers. There is no direct evidence, hence, motive was also important. According to witnesses, deceased Annu went alongwith the appellants and co-accused for watching dance program but he did not return and next day, his dead body was recovered. According to medical report and opinion of Doctor since stomach and small intestine were found empty, the death might have taken place after about 8-10 hours from the time when he took meal. The deceased went at the time of sunset in the month of February. Specific evidence is that after taking meals, he went alongwith the appellants, hence, if he had taken meals at about 6 p.m. then the murder might have taken place after 3-4 p.m. Whether during this period, he was alongwith the appellants or not there is no evidence, merely there is presumption that he was present with the appellants till his death. Considering the proximity of time of death merely on the basis of last seen evidence, conviction of the appellants is not justified. He further contended that even considering the statement of witnesses, contradictions and improvement, the prosecution story appears to be doubtful. The F.I.R. appears to be anti-time, written and lodged after recovery of the dead body with consultation. There is no independent witness of last seen evidence, merely the family members or those who are closed and related, alleged to have seen the deceased Annu in the company of appellants at different places. At the door of the house of Annu, near grove of Gram Pradhan, near the grove of Durjania. He relied the judgment of the Apex Court in Inderjit Singh and another v. State of Punjab, 1991 Cri LJ 2191. He further submitted that in that case also, there was no direct evidence and only on the basis of sole circumstance of last seen evidence, Hon’ble Apex Court found that the evidence was not sufficient to convict. 12. Learned counsel for the appellants further submitted that the sanctity of the F.I.R. is doubtful, which is anti-time and written on direction of the police, hence, real story was suppressed. 12. Learned counsel for the appellants further submitted that the sanctity of the F.I.R. is doubtful, which is anti-time and written on direction of the police, hence, real story was suppressed. F.I.R. is not a first information because in view of the circumstances and statement of witness, it appears that after first information, police reached on the spot, thereafter, another report was got written on direction of the police on behalf of Smt. Dasiya, mother of the deceased who was examined as P.W.-1. Even in the prosecution papers, in panchayatnama, no detail has been mentioned regarding the case crime number, time when inquest report started and concluded only date 16.2.1981 and time 10 a.m. was mentioned. According to P.W.-2 Bachchi Lal, brother of the deceased, there was no enmity of Shiv Lal with him and with Annu. His mother advanced a sum of Rs. 2,500/- to Chhangu, brother of Shiv Lal and had there been enmity why the money has been advanced. Subsequently on suggestion and question, it was stated that Annu was seen talking with wife of Jiya Lal (brother of Shiv Lal). But subsequently there was no dispute. They started visiting house of each other. He also stated in the cross-examination that due to darkness, he could not identify the other two persons when they met near the grove land. He contended that in view of the circumstances, the prosecution story is not reliable, the conviction merely on the basis of the alleged last seen evidence of the deceased in the company of the appellants and co-accused Shankar Dayal, is against the evidence on record and the same is liable to be set aside. 13. Learned AGA vehemently opposed the arguments of learned counsel for the appellants and submitted that all the three witnesses supported the story of last seen. P.W.-1 clearly stated that the deceased Annu, her son went in the company of the appellants and two other persons. Subsequently, name of Shankar Dayal was disclosed though giving the benefit of doubt, trial Court acquitted him. In statement under Section 313 Cr.P.C., regarding the last seen evidence, there is no specific denial and there is no specific defence case why they were falsely implicated. Subsequently, name of Shankar Dayal was disclosed though giving the benefit of doubt, trial Court acquitted him. In statement under Section 313 Cr.P.C., regarding the last seen evidence, there is no specific denial and there is no specific defence case why they were falsely implicated. After deceased was seen in the company of appellants and co-accused, he was not seen alive rather next day, his dead body was recovered and from the statement, it is clear that enmity was also with the deceased, hence, there was reason to commit his murder. Hence, merely on the basis of minor discrepancies and contradictions, prosecution story has not to be disbelieved. The trial Court rightly found that the prosecution has proved the case beyond doubt and rightly convicted and sentenced the appellants. Hence, the appeal is liable to be dismissed. 14. Considered the submissions of learned counsel for the parties. It is a case of circumstantial evidence. Apart from last seen evidence, there is no evidence to the effect that the deceased was seen alive in the company of appellants either watching the dance show or returning from there. According to P.W.-1, appellants Shiv Lal and Sukh Lal came at her house. They asked Annu to accompany them to watch dance show and after taking meal, he went alongwith them though she raised objection not to go but she has not stated that there was any enmity or suspicion so she asked him not to go alongwith appellants and others. According to the F.I.R., the statement of P.W.-1 and the prosecution case, he went alongwith the accused-appellants in the evening of 15.2.1981. Next day, the dead body was recovered. She could not identify the other two accused who were not named on the day when the dead body was recovered. Sub Inspector came in the noon and he get the dead body identified by her and she informed Sub Inspector that the body was of her son Annu, her husband was not present in the village. Sub Inspector asked her who will get the report lodged, then she said that she would get it lodged. Thereafter, Sub Inspector called Shiv Charan and at the place where the dead body was lying, he got the report written by Shiv Charan and get her thumb impression on the written report. After she put her thumb impression, she did not met the Sub Inspector (I.O.). Thereafter, Sub Inspector called Shiv Charan and at the place where the dead body was lying, he got the report written by Shiv Charan and get her thumb impression on the written report. After she put her thumb impression, she did not met the Sub Inspector (I.O.). From these circumstances, it appears that when Sub Inspector (I.O.) reached at the place where the dead body was lying there was no F.I.R. and on direction of the Sub Inspector, F.I.R. was written by Shiv Charan. She further stated in cross-examination that till the report was written, her other sons Jiya Lal and Bachchi Lal were not aware how the murder of Annu took place and who killed him. When her son Annu was missing, there was search of accused Sukh Lal also in the village but he was not available. The question was put to her that when her son was missing after three days, Sukh Lal was found in injured condition. She replied that when Sukh Lal assaulted her son, her son might have assaulted him. In cross-examination, the I.O. (P.W.-5) stated that Sukh Lal was arrested on 19.2.1981 at 7.30 a.m. in injured condition, however, no medical aid was provided. He was sent to jail. 15. A report was lodged at the police station regarding missing and abduction of Sukh Lal and attack upon him. The matter was investigated by him. The incident of abduction might be of the evening of 16.1.1981 so when there was a suggestion and question in the cross-examination from side of the defence, the I.O. admitted that there was a report regarding abduction of Sukh Lal whom injuries were caused and when he was apprehended on 19.2.1981, he was found injured. Further, according to P.W.-1, he reached in the noon of 16.2.1981 at the place where the dead body of Annu was lying but according to I.O., at the place of incident, he reached at 10 p.m. on 16.2.1981. The dead body was not taken to police station. He did not visit the place of incident during day time because he has no information which is contradictory to the statement of P.W.-1 and P.W.-2. According to P.W.-2 from where the dead body was lying, it was lifted by the public and brought at the road by ‘Ikka’. The dead body was not taken to police station. He did not visit the place of incident during day time because he has no information which is contradictory to the statement of P.W.-1 and P.W.-2. According to P.W.-2 from where the dead body was lying, it was lifted by the public and brought at the road by ‘Ikka’. He also went alongwith dead body to the police station and reached at about 5 p.m. The dead body was sent to Allahabad at 7-8 p.m. When the dead body was recovered, next day, Sub Inspector came to the village and at the place where the dead body was lying, panchayatnama was prepared and signature of witnesses were obtained. If the statement of witness is correct then panchayatnama was prepared and signed by the witness in absence of the dead body as it has already been sent. According to witness, it was sent to police station but according to I.O., it was directly sent from the place of incident where the dead body was lying on 17.2.1981 at 10 a.m., though according to the Doctor, dead body was received at 10 a.m. on 17.2.1981 and papers were received on 18.2.1981 in the hospital. 16. It is clear that no motive was mentioned in the F.I.R. and the statement of P.W.-1 and subsequently, after there was suggestion a weak motive was mentioned in the statement of P.W.-2 Bachchi Lal, brother of the deceased. Though the motive is also important in the cases of circumstantial evidence. 17. Further according to statement of Bachchi Lal, P.W.-2, in cross-examination, when he saw his brother going to watch dance show, next day, at about two and half O’ clock, when Sub Inspector came at that time, he alongwith his mother and brother were present near the dead body, the dead body was recovered from sugarcane field but at that time sugarcane from that area was harvested and crops of sugarcane was not found standing as per site plan. According to him after recovery of the dead body, he informed his mother that his brother Annu was seen in the company of the appellants in the grove land. According to him after recovery of the dead body, he informed his mother that his brother Annu was seen in the company of the appellants in the grove land. But this fact was not mentioned in the F.I.R. According to P.W.-2, first time in the statement of P.W.-3, it was mentioned that when he saw Annu alongwith the accused-appellants and other co-accused, Shiv Lal was having farsa in his hand and other persons were having lathi but these facts are also missing in the F.I.R. It was an improvement, subsequently, arms were also introduced. This fact has also not been stated in the statement of C.W.-1 Jiya Lal, another brother of deceased Annu when he was summoned. According to him, he was playing near the house of Sukh Lal, when he saw the two accused persons Shiv Lal and Sukh Lal and two others who were not known to him alongwith Annu. Annu was talking with them. Thereafter, Annu purchased ‘Bidi’ from the shop of one Vijmat Ali, went to the house of Shiv Lal, gave it for smoking to Shiv Lal, Sukh Lal and two other persons. Thereafter, Annu went to the house. Again he came after taking meals and went to the house of Shiv Lal. Thereafter, they decided to go to watch the dance show. He heard their conversation. They went towards east at some distance, he followed them, however, since Shiv Lal scolded and asked to return and as such he returned. He identified in jail Shankar Dayal and also pointed out in the Court towards him. He also stated that on the date of incident, ‘Dal’, ‘Roti’ and ‘Chawal’ were prepared in the evening, and Annu took meals and went alongwith the appellants. But according to medical report, stomach of the deceased Annu as well as small intestine were found empty. Hence, incident took place after about 8-10 hours and till then Annu was alive but any independent person has not been examined to prove that deceased was seen in the company of accused-appellants either in the way while they were going to watch dance show or when they were watching the dance show or while they were returning from there. 18. From perusal of the statement of P.W.-1 as well as C.W.-1 Jiya Lal, brother of the deceased Annu, there is no whisper that the accused-appellants were armed with farsa & lathi. 18. From perusal of the statement of P.W.-1 as well as C.W.-1 Jiya Lal, brother of the deceased Annu, there is no whisper that the accused-appellants were armed with farsa & lathi. As far as P.W.-3, Sukhdeo is concerned, he is also resident of the same village. Subsequently, he informed that in relation Annu was his grandson. He identified Annu only on the basis of his voice because his eye-sight was very weak. He was returning from Kumhiyawan Bazaar though on that date there was no Bazaar but why he went, has not been mentioned in the statement. However, when he proceeded from Kumhiyawan Bazaar, the lights were enlightened and the distance from Kumhiyawan and the grove where he met Annu and accused-appellants and co-accused was at a distance of about half mile. He was returning on foot, hence, when he reached, it was dark and that is why he could not recognise Annu by face who was well known to him then how he could recognise accused-appellants when he give statement that he saw Annu in the company of accused-appellants. Further, he did not mention the date, however, in the statement under Section 161 Cr.P.C., the date was mentioned. P.W.-4 Ram Sagar is the witness who saw dead body and informed P.W.-1, mother of the deceased Annu. Hence, in view of the fact, it is clear that there are no independent witnesses who saw the deceased Annu in the company of accused-appellants. 19. It has not been mentioned in the F.I.R. or in the statement of P.W.-1 and C.W.-1 that accused-appellants were having farsa and lathi. The F.I.R. was written after Sub Inspector came at the place of incident where the dead body was lying and on his direction, F.I.R. was written by Shiv Charan and thumb impression was put by Smt. Dasiya, wife of Suraj Pasi, mother of the deceased Annu. This also shows that before F.I.R. was lodged, information had already been given to the Sub Inspector/I.O., P.W.-5 and after he reached on the spot, thereafter, the F.I.R. was written. The argument of learned counsel for the appellants was also that the F.I.R. was anti-time, subsequently, after consultation and on direction of the Sub Inspector, F.I.R. was written, lodged, registered at the police station Paschim Sarira at 5.30 p.m. on 16.2.1981. No missing report was lodged before that. 20. The argument of learned counsel for the appellants was also that the F.I.R. was anti-time, subsequently, after consultation and on direction of the Sub Inspector, F.I.R. was written, lodged, registered at the police station Paschim Sarira at 5.30 p.m. on 16.2.1981. No missing report was lodged before that. 20. In case of Inderjit Singh and another (supra) relied by learned counsel for the appellants, the appellants had taken away the deceased from his house and thereafter, he was never seen alive. The dead body of the deceased was found on the bank of canal which was identified as that of the deceased. There was denial of the appellants that they had ever taken the deceased and further the suggestion in that case was that the appellants had falsely been implicated in the case. The observation of the Apex Court was that considering the circumstances, those circumstances were not sufficient to establish guilt of the accused. It was observed by the Hon’ble Apex Court that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. It was held that the circumstances relied upon by the prosecution were hardly sufficient to establish the guilt of the accused. The circumstance, i.e., the absence of enmity between the accused and the deceased and the witness would also show that the accused also had no enmity against the deceased. There was recovery of the gun also in that case in which the High Court has acquitted of that charge and the only circumstances were pointed out that the accused-appellants and the deceased left the house together in a friendly manner for bird shooting. It was held that no conviction could be caused on that shown circumstances. Conviction and sentence awarded by the Court below were set aside. 21. In view of the aforesaid discussion, there was no motive and subsequently by improvement in the prosecution case motive was suggested which was very weak except the last seen evidence supported by only family members with some contradiction, there is no evidence to show the involvement of the appellants in murder of Annu, deceased. 21. In view of the aforesaid discussion, there was no motive and subsequently by improvement in the prosecution case motive was suggested which was very weak except the last seen evidence supported by only family members with some contradiction, there is no evidence to show the involvement of the appellants in murder of Annu, deceased. The conviction merely on the basis of last seen evidence which is not supported by any reliable and independent evidence to prove the guilt, is not safe, justified, and is not sufficient to establish the guilt of the accused-appellants. Hence, the impugned judgment and order of conviction and sentence dated 22.1.1983 passed in Session Trial No. 75 of 1982 State v. Shiv Lal and Two others, arising out of Case Crime No. 24 of 1981, under Section 302/34 IPC, P.S. Paschim Sarira, District Allahabad, is hereby set aside. 22. Accordingly, the present appeal is hereby allowed. The appellants are on bail. Sureties stand discharged. Let this order be communicated to the Court concerned. ———————