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2016 DIGILAW 2741 (ALL)

ASHWANI KUMAR v. STATE OF U. P.

2016-08-09

ARVIND KUMA MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : (Delivered by Hon'ble Bala Krishna Narayana, J.) 1. These two criminal appeals were heard by us on 9.8.2016 on which date we had passed the following orders : Criminal Appeal No. 7096 of 2009 "Heard Sri P.K. Singh, learned counsel for the appellants, Sri Saghir Ahmad, Sri J.K. Upadhya, Km. Meena, learned AGA for the State and Syed Hasan Shaukat Abidi and Sri Irfan Chaudhary, State Brief Holder. We will give reasons later. But we pronounce the operative portion here and now. This criminal appeal is allowed. The impugned judgment and order dated 10.11.2009 passed by Sri Anil Kumar Srivastav (H.J.S.) Session Judge Saharanpur in S.T. No. 751 of 2005 convicting and sentencing the appellants under Section 302 read with Section 34 I.P.C., Police Station Kotwali Nagar, District Saharanpur to undergo life imprisonment and fine of Rs. 10,000/- each and in default of payment of fine then appellants further undergo 10 months simple imprisonment extra are here hereby set aside. The appellants are acquitted of all the charges framed against them and they shall be released forthwith, unless they are wanted in any other criminal case. There shall be however no order as to costs." Criminal Appeal No. 7150 of 2009 "Heard Sri Javed Habib, Amicus Curiae for the appellants, Sri Saghir Ahmad, Sri J.K. Upadhya, Km. Meena, learned AGA assisted by Syed Hasan Shaukat Abidi and Sri Irfan Chaudhary, brief holders for the State. We will give reasons later. But we pronounce the operative portion here and now. This criminal appeal is dismissed." We are now giving reasons : 2. Briefly stated the facts of this case are that PW1 Kr. Mitali daughter of Ramesh Kumar resident of Mohalla Nawabganj, District Saharanpur gave a written report Ex. Ka1 to Police Station Kotwali Nagar, District Saharanpur on 22.7.2005 at about 18:15 hours stating therein that after the death of her mother about five years before, her father Ramesh Kumar had developed illicit relationship with accused-appellant Lata, wife of accused-appellant Raj Kumar, sister-in-law of accused-appellant Ashwani Kumar and sister of accused-appellant Meenu wife of Ashwani Kumar. Ka1 to Police Station Kotwali Nagar, District Saharanpur on 22.7.2005 at about 18:15 hours stating therein that after the death of her mother about five years before, her father Ramesh Kumar had developed illicit relationship with accused-appellant Lata, wife of accused-appellant Raj Kumar, sister-in-law of accused-appellant Ashwani Kumar and sister of accused-appellant Meenu wife of Ashwani Kumar. Accused-appellant Ashwani Kumar on account of the aforesaid affair had got a loan sanctioned in favour of her father but the loan amount was received by accused-appellants Ashwani Kumar and Meenu which they were not paying to her father Ramesh and when on the date of the occurrence her father demanded payment of the loan amount from the accused-appellant, they started beating him and on the same day at about 5 PM accused-appellants Lata and Raj Kumar called her father to their house and the accused-appellant Ashwani Kumar who was also present in the house of accused-appellant Raj Kumar told her father that he would pay the loan amount to him at his convenience on which her father Ramesh Kumar told all the four accused loudly that he wanted his entire money back then and there. Thereafter appellants Lata and Meenu@Meenakshi started shouting that something had happened to Ramesh Kumar and when the complainant and other persons reached the house of Raj Kumar they found the complainant's father Ramesh Kumar lying dead in the house of accused-appellants Raj Kumar and Lata. In the written report of the incident Ex. Ka1 it was also alleged that accused-appellant Lata had seized the title deeds of all the properties of her father, his gold and silver jewelry and cash. 3. On the basis of the written report Ex. Ka1 case crime no. 248 of 2005 was registered against all the accused-appellants under Section 304 IPC at Police Station Kotwali Nagar, District Saharanpur and Chek FIR Ex. Ka2 was prepared by constable Kirtan Pal Singh PW5 and relevant GD entry Ex. Ka3 was made vide rapat no. 53 at 18:15 hours on 22.7.2005 and the investigation of the case was entrusted to SSI Sarvesh Kumar PW9. 4. During the course of investigation of the aforesaid case the Investigating Officer PW9 SSI Sarvesh Kumar conducted the inquest on the dead body of the deceased Ramesh Kumar which commenced on 22.7.2005 at 18:40 hours and was completed on the same day at 19:40 hours. 4. During the course of investigation of the aforesaid case the Investigating Officer PW9 SSI Sarvesh Kumar conducted the inquest on the dead body of the deceased Ramesh Kumar which commenced on 22.7.2005 at 18:40 hours and was completed on the same day at 19:40 hours. He prepared the inquest report Ex. Ka8 and other relevant documents challan lash. Ex. Ka9, photo lash Ex. Ka10 and letters addressed to RI and CMO Ex. Ka 11 and Ex. Ka 12 respectively. Thereafter he entrusted the dead body of the deceased to constable Bhimsen and constable Harpal on 22.7.2005 at 20:15 hours for being taken to the District Hospital for conducting the post mortem. The post mortem on the cadaver of the deceased was conducted by PW12 Dr. R.K. Gupta on 23.7.2005 at about 4 PM who also prepared the post mortem report Ex. Ka13. 5. The Investigating Officer of the case after inspecting the place of incident prepared it's site plan Ex. Ka5 and also recovered "Chunniya" allegedly used by the accused-appellants for committing the murder of the deceased on the pointing out of the accused-appellant Lata and prepared its recovery memo Ex. Ka6. After completing the investigation of the case the Investigating Officer submitted charge-sheet (Ext. Ka 7) against all the accused-appellants on 2.9.2005 Ex. Ka7 under Section 302 IPC before the CJM Saharanpur who took cognizance on the same on 14.9.2005 and after summoning the accused-appellants committed the case for the trial of the accused to the Court of Sessions Judge, Saharanpur vide his committal order dated 14.12.2005. Upon committal, the case was registered as Session Trial No. 751 of 2005. 6. On the basis of the material available on record, learned Sessions Judge, Saharanpur framed charge against all the appellants under Section 302/34 IPC. The accused pleaded not guilty and claimed trial. 7. The prosecution in order to prove its case examined PW1 Kr. Mitali, PW2 Smt. Shikha, PW3 Smt. Gauri Devi, PW4 Smt. Chhoti Devi and PW7 Naresh Kumar as eye-witnesses of the occurrence. The prosecution further examined PW5 Constable Kirtan Pal Singh, PW6 Constable Bhimsen, PW8 D.D. Agrawal, Senior Manager Central Bank of India, PW9 Sarvesh Kumar Yadav Investigating Officer of the case, PW10 Inspector Braj Pal Singh Solanki second Investigating officer of the case, PW11 Mahendra Singh Saini and PW12 Dr R.K. Gupta as formal witnesses. The prosecution further examined PW5 Constable Kirtan Pal Singh, PW6 Constable Bhimsen, PW8 D.D. Agrawal, Senior Manager Central Bank of India, PW9 Sarvesh Kumar Yadav Investigating Officer of the case, PW10 Inspector Braj Pal Singh Solanki second Investigating officer of the case, PW11 Mahendra Singh Saini and PW12 Dr R.K. Gupta as formal witnesses. The accused-appellants in their statements recorded under Section 313 Cr.P.C., denied the prosecution case and disputed the veracity of the evidence adduced by the prosecution for proving the charge framed against them. They further stated that the accused-appellants are relatives of the complainant and the deceased Ramesh. The FIR in this case was lodged against them by PW1 Kumari Mitali with the object of putting pressure upon them. 8. The accused-appellant Lata in her additional statement further stated that the complainant Kumari Mitali, her uncle and her other relatives had put the dead body of the deceased in her house by forcing their entry into her house from the roof of her house through the staircase of her house and at that time neither she nor her husband were present in their house. Her husband had gone to work while she had gone to the house of her neighbour Jaipal and at that time her daughter Kumari Diksha and two other children were present in her house who upon noticing the dead body of the deceased lying in their house had informed her about the aforesaid fact while she was in the house of Jaipal. 9. The accused-appellant Rajkumar had also denied his presence in his house at the time of the incident and had further stated that on account of his being an employee/manager of M/s SMG Tractors, Saharanpur, authorized dealers of Mahendra Tractors in Saharanpur, he was present in the service camp organized by the Mahendra Tractors at Kasba Nanauti which was at a distance of about 22 km from the place of incident on 22.7.2005 from 10:30 AM to 6:00 PM. The accused-appellants Rajkumar and Lata had examined Ramkumar, Kumari Diksha, Jaipal and Jagmohan as DW1 to DW4. Appellant Rajkumar in criminal appeal no. 7150 of 2009 also adduced documentary comprising of employees' attendance register and job cards Exts. The accused-appellants Rajkumar and Lata had examined Ramkumar, Kumari Diksha, Jaipal and Jagmohan as DW1 to DW4. Appellant Rajkumar in criminal appeal no. 7150 of 2009 also adduced documentary comprising of employees' attendance register and job cards Exts. Kha1 to Kha7 for proving the fact that he was an employee of M/s SMG Tractors and on the date of incident he was present in the service camp organized by the M/s Mahendra Tractors in Kasba Nanauti from 10.30 A. M. to 6.00 P. M. 10. Learned Trial Judge after considering the submissions advanced before him by the learned counsel for the parties and scanning the evidence on record convicted all the accused-appellants under Section 302/34 IPC and sentenced them to imprisonment for life, together with fine of Rs. 10,000/- and in case of default in the payment of fine 10 months additional simple imprisonment each. 11. Learned counsel for the appellants submitted that the prosecution having miserably failed to discharge its initial burden by adducing any cogent evidence that the deceased Ramesh was murdered in the house of accused-appellants Rajkumar and Lata in criminal appeal no. 7150 of 2009 and accused-appellants Ashwani Kumar and Meenu@Meenakshi in criminal appeal no. 7096 of 2009 were also present in the house of the accused-appellants Rajkumar and Lata at the time of the occurrence, the conviction of the accused-appellants recorded by the Trial Court under Section 302/34 IPC by invoking the aid Section 106 of the Evidence Act is per se illegal and unsustainable in the eye of law. He next submitted that in the present case there is no direct evidence of murder of deceased Ramesh by the accused-appellants and although prosecution has failed to establish the various links in the chain of the circumstantial evidence consistent only with the hypothesis of guilt of the accused yet the Trial Court has illegally convicted them. He further submitted that witnesses of fact examined by the prosecution for proving the fact that Ramesh was taken from his house to the house of the accused-appellants Rajkumar and Lata by them where he was later murdered, are all partisan and interested witnesses being close relatives of the deceased, vitally interested in seeing that the accused-appellants, who are also related to the deceased, complainant and the other witnesses of fact, were convicted for the murder of the complainant's father Ramesh. Reliance placed by the trial Court on their evidence for convicting the accused-appellants is perse illegal. He also submitted that since the present case is based upon circumstantial evidence, motive is of supreme relevance and the prosecution having failed to prove that the accused-appellants had any motive to commit such a ghastly crime, the recorded conviction of the appellants and the sentence awarded to them by the trial Court after illegally disbelieving the testimony of the defence witnesses who were produced by the defence for proving the plea of alibi set up by the accused-appellants Raj Kumar and Lata in their defence and discarding the documentary evidence adduced by them in this regard cannot be sustained and is liable to be set aside. 12. Per contra Sri Saghir Ahmad, learned AGA submitted that in the present case the presence of accused-appellants in the house of accused-appellants Rajkumar and Lata at the time of the incident stands fully proved from the evidence of PW1, PW2, PW3 and PW7. 13. The prosecution case stands further corroborated from the medical evidence on record and the discovery of the "Chunniya" used by the accused-appellants for committing the murder of deceased Ramesh on the pointing out of the accused-appellant Lata and even if it is assumed for the sake of arguments that the prosecution has not been able to prove the motive for the accused-appellant to commit the murder of deceased Ramesh, the same shall not be fatal to the prosecution case. The finding of guilt recorded by the learned Trial Judge in the impugned judgment against the accused-appellant is based upon cogent and reliable evidence and the sentence awarded to them is supported by relevant considerations. The impugned judgment and order do not suffer from any illegality or infirmity requiring any interference by this Court. 14. We have heard the learned counsel for the parties at great length and very carefully scanned the entire lower Court record. 15. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove it's case against the accused-appellants beyond all reasonable doubts or not. 16. Record shows that the prosecution in order to prove its charge against the accused-appellants had examined as many as 12 witnesses, of which five, PW1 to PW4 and PW7 are witnesses of fact while remaining are formal witnesses. 16. Record shows that the prosecution in order to prove its charge against the accused-appellants had examined as many as 12 witnesses, of which five, PW1 to PW4 and PW7 are witnesses of fact while remaining are formal witnesses. Record further shows that the deceased, accused-appellants, complainant Kumari Mitali PW1 and the other witnesses of this case Smt. Shikha PW2, Smt. Gauri Devi PW3 and PW7 Naresh Kumar are closely related to each other while PW4 Chhoti Devi is a neighbour of the complainant. Another very significant fact which emerges out from the perusal of evidence of the witnesses of fact produced by the prosecution and the site plan of the place of occurrence, Ext. Ka 5 is that the respective houses of deceased Ramesh and accused-appellants Rajkumar and Lata in criminal appeal no. 7150 of 2009 are adjacent to each other. Record further shows that the deceased Ramesh was allegedly murdered at a place on the staircase of the house of the accused-appellant and his dead body was found lying at a place in a room of the house of the accused-appellant Rajkumar denoted by letters B and A respectively in the site plan of the place of occurrence Ex. Ka5. Record also shows that accused-appellants Meenu@Meenakshi and Lata are real sisters of the deceased's wife Ramesh while accused-appellants Ashwani Kumar and Rajkumar are their husbands PW1 complainant Kumari Mitali and PW2 Smt. Shikha are daughters of the deceased, PW7 Naresh Kumar is husband of PW2 Smt. Shikha and the accused-appellants are real uncles and aunts (Mousa and Mousi) of the complainant PW1 and PW2 and brothers-in-law and sisters-in-law of the deceased Ramesh. PW3 is also closely related to the deceased and the only independent witness who was produced by the prosecution, PW4 Smt. Chhoti Devi had failed to support the prosecution case during the trial and was declared hostile. 17. PW1 complainant Kumari Mitali who is the daughter of the deceased has in her examination-in-chief recorded before the trial Court deposed that the deceased Ramesh was an employee of Chawla Garment, Nehru Market. Her mother had died about five years before the incident leaving behind her and her two other daughters one of whom Smt. Shikha was married and one son. Her mother had died about five years before the incident leaving behind her and her two other daughters one of whom Smt. Shikha was married and one son. Her father had developed illicit relationship with accused-appellant Lata about 3- 3½ years before and thereafter he had started staying mostly with accused-appellant Lata in her house which is adjacent to the house of PW1 Kumari Mitali (complainant). She further deposed that the illicit relationship between her father and accused-appellant Lata had become subject matter of gossip in the whole locality. Her father's salary was snatched by accused-appellant Lata and only a very small portion thereof was given to her. Her father who had become heavily indebted, with the intention of increasing his income wanted to set up a business of readymade garments and for that purpose he required finance. The accused-appellant Meenu and her husband accused-appellant Ashwani Kumar had got a loan sanctioned in the name of her father and about 15 days before the incident, a sum of Rs. 20,000/- which was part of the total amount of sanctioned loan was disbursed by the bank but the said amount was dishonestly kept by accused-appellants with themselves. Apart from the aforesaid amount another sum of Rs. 50,000/- was disbursed by the bank towards the loan sanctioned in favour of the deceased. On the date of the incident i.e. on 22.7.2005 her father had sent her to the house of the accused-appellant Meenu to fetch the sum of Rs. 20,000/- from her and when PW1 Kumari Mitali met accused-appellant Ashwani Kumar in his house he had told her to tell her father that he would pay the sum of Rs. 2000/- to her father at his convenience while accused-appellant Meenu had threatened her father on which she returned back to her house and on finding her house locked she went to the house of accused-appellant Lata where she met her father and told him about her conversation with accused-appellants Meenu and Ashwani Kumar on which he started quarreling with accused-appellant Lata, she then returned back to her house. Thereafter on the same day at about 3:00 PM she along with her sister Shikha and her father Ramesh (deceased) had gone for the treatment of her sister to the clinic of Raiwala Hakeem where they met accused-appellant Lata and her daughter Diksha. Thereafter on the same day at about 3:00 PM she along with her sister Shikha and her father Ramesh (deceased) had gone for the treatment of her sister to the clinic of Raiwala Hakeem where they met accused-appellant Lata and her daughter Diksha. On meeting Lata her father told her and her sister to go home and he himself went away somewhere with accused-appellant Lata. After making some purchases, PW1 and her sister returned to their house and on returning back to their house they found PW7 Naresh Kumar husband of PW2 and her father sitting there. Soon thereafter accused-appellants Lata and Raj Kumar came to her house and took her father to their house in her presence on the pretext of arranging his meeting with accused-appellants Ashwani Kumar and Meenu who had also come to their house. After sometime she heard voice of her father asking the accused-appellants to return his money then and there and the voices of accused-appellants saying that they would pay the amount in question to him at their convenience. Thereafter there was silence for sometime and then she heard accused-appellants Lata and Meenu shouting loudly that something had happened to Ramesh, on which PW1 her sister PW2 Shikha and her other relatives rushed to the house of the Rajkumar and on reaching there they saw their father lying dead in the house of accused-appellants. She also deposed that all the title deeds of her father's properties and the ornaments of her mother were in the possession of accused-appellant Lata and the accused-appellant had committed the murder of their father as a result of the dispute between them and her father regarding the loan amount of Rs. 50,000/- PW1 proved written report of the incident Ex. Ka1. 18. PW2 Smt. Shikha in her evidence recorded before the trial Court corroborated the testimony of PW1 on all material points. As far as PW3 Gauri Devi is concerned, her evidence is material only on the point of their being a dispute between the deceased and the accused-appellants over the payment of loan amount. Her evidence on the other aspects of the matter is hearsay as she has categorically stated in her testimony on page 41 of the paper book that she had learnt about the death of the deceased on the same day at about 8 pm thereafter she had immediately gone to his house. 19. Her evidence on the other aspects of the matter is hearsay as she has categorically stated in her testimony on page 41 of the paper book that she had learnt about the death of the deceased on the same day at about 8 pm thereafter she had immediately gone to his house. 19. PW4 Chhoti Devi was declared hostile on the request of the DGC (Criminal) after she failed to support the prosecution case. PW7 Naresh Kumar also corroborated the testimony of PW1 on all material aspects. 20. Thus, the accused in this case, on the basis of the evidence on record, can be safely classified into two sets. The accused first set comprise of accused-appellants Raj Kumar and Lata appellants in Criminal Appeal No. 7150 of 2009 and accused second set constitute accused-appellants Ashwani Kumar and Meenu alias Meenakshi appellants in Criminal Appeal No. 7096 of 2009. As far as the accused-appellants in Criminal Appeal No. 7150 of 2009 are concerned, incriminating circumstances cited against them by the prosecution interalia, are that on account of the illicit relationship between the deceased and accused-appellant Lata who was the real sister of accused-appellant Meenu@Meenakshi, accused-appellant Ashwani Kumar husband of accused-appellant Meenu@Meenakshi and brother-in-law of accused-appellant Lata had got a loan sanctioned in favour of the deceased for establishing a unit for manufacturing readymade garments but out of total amount of loan sanctioned accused-appellants Ashwani Kumar and Meenu@Meenakshi had illegally received a sum of Rs. 20,000/- which they were not returning to the deceased despite his repeated demands; and that accused-appellants Ashwani Kumar and Meenu@Meenakshi were also present in the house of accused-appellants Rajkumar and Lata on the date of the incident according to the testimonies of PW1, PW2 and PW7 who had deposed that when the accused-appellants Rajkumar and Lata had come to the house of the deceased on the date of the incident at about 5 PM they had told the deceased Ramesh in their presence that accused-appellants Ashwani Kumar and Meenu@Meenakshi had come to their house for getting the monetary dispute between them and the deceased settled and after the deceased had gone to the house of the accused-appellants Rajkumar and Lata with them they first heard the voice of their father demanding payment of his money from the accused-appellants and the voices of accused-appellants saying that they would return his money at their convenience and thereafter they heard the voices of the accused-appellants Lata and Meenu@Meenakshi shouting that something had happened to Ramesh and when they along with their other relatives reached the house of the accused-appellants Rajkumar and Lata on hearing the shrieks of the accused-appellants they found their father lying dead in the house of the accused-appellant Rajkumar. 21. Upon scanning the evidence on record both oral as well as documentary, we do not find any cogent or reliable evidence on record indicating either at their presence at the place of occurrence along with co-accused Raj Kumar and Lata in their house or at their complicity in the commission of murder of the deceased Ramesh. Admittedly, the accused-appellants Raj Kumar and Lata were not residing with the accused-appellants Ashwani Kumar and Meenu alias Meenakshi in their house which is adjacent to the deceased's house and that they were residing separately from the accused-appellants Raj Kumar and Lata. There is neither any direct nor circumstantial evidence of their physical presence in the house of appellants Raj Kumar and Lata at the time of occurrence. There is neither any direct nor circumstantial evidence of their physical presence in the house of appellants Raj Kumar and Lata at the time of occurrence. The evidence given by PW1, PW2 and PW7 before the trial court about the accused-appellants Ashwani Kumar and Meenu being present in the house of accused-appellants Raj Kumar and Lata is based upon the alleged information given in this regard to the deceased in their presence by accused-appellants Raj Kumar and Meenu when they had come to his house for taking him away to their house to meet the accused-appellants Ashwani Kumar and Meenu alias Meenakshi who according to them had come to their house to meet the deceased with the object of settling the money dispute between them. Although PW1, PW2 and PW7 in their testimonies have stated that after the deceased Ramesh had gone to the house of accused-appellants Raj Kumar and Lata with them, they had heard heated arguments between the deceased and accused-appellants in their voices and later the voices of Lata and Meenu@Meenakshi shouting that something had happened to Ramesh. The aforesaid evidence, in our opinion, is not sufficient for holding that accused-appellants Ashwani Kumar and Meenu alias Meenakshi were also present in accused-appellant Raj Kumar's house at the time of occurrence as neither PW1 nor PW2 or PW7 have in their evidence stated that they had seen the accused-appellants Ashwani Kumar and Meenu alias Meenakshi also present in the house of accused-appellant Raj Kumar when on hearing alleged shrieks of accused-appellants Meenu and Lata, they had rushed to the house of accused-appellants Raj Kumar and Lata and seen the dead body of deceased Ramesh lying in their house. Even if it presumed that there was some monetary dispute between accused-appellants Ashwani Kumar and Meenu on one side and the deceased Ramesh on the other, the same in itself cannot be treated as inculpatory or sufficient to infer their presence at the place of the incident at the time of occurrence. Even otherwise, from the evidence of PW8 D.D. Agarwal, Senior Manager, Central Bank of India, the prosecution case that accused-appellant Ashwani Kumar had illegally usurped some portion of loan disbursed by the bank to the deceased which he was not returning back to the deceased Ramesh despite his repeated demands and which had ultimately led to his being murdered by the accused-appellant, stands totally falsified. PW8 D.D. Agarwal in his evidence recorded before the Trial Court has on pages 60 and 61 of the paper book categorically stated that out of the total amount of loan sanctioned in favour of the deceased, the sum of Rs. 20,185/- was disbursed on 4.7.2005 directly to M/s Maya Machinery Stones, Saharanpur by a banker's cheque drawn in its favour for purchase of embroidery and sewing machine while the balance amount of Rs. 49,850/- was paid to M/s Sant Lal and Stones and Kanhaiya Lal Market, Saharanpur also by a banker's cheque drawn in favour of the aforesaid firm for purchasing raw material. He had further deposed that out of the total sum of Rs. 70,000/- which was sanctioned as loan by the Bank of India in favour of the deceased Ramesh Rs. 63,500/- was disbursed by the bank while the remaining amount of Rs. 6500/- was contributed by the deceased himself. PW8 DD Agarwal also deposed on page 62 of the paper book that neither the borrower deceased Kuleshwar Singh (Ramesh) nor anyone else was paid any part of the amount sanctioned as loan in cash. Thus in view of the testimony of PW8 DD Agarwal, the prosecution theory that accused-appellants Ashwani Kumar and Meenu@Meenakshi had usurped some part of the loan amount sanctioned in favour of the deceased Ramesh and he was murdered by them and the other co-accused Rajkumar and Lata when he started pressurizing them to return the aforesaid amount to him stands totally disproved and hence the conviction of the accused-appellants Ashwani Kumar and Meenu@Meenakshi (appellants in criminal appeal no. 7096 of 2009) recorded by the Trial Court, in the absence of any cogent and reliable evidence on record indicating at their complicity in the commission of the murder of the deceased cannot be sustained and is liable to be set aside. 22. We now proceed to examine the challenge of the second set of the accused-appellants, Raj Kumar and Lata to their conviction recorded by the trial court. 23. 22. We now proceed to examine the challenge of the second set of the accused-appellants, Raj Kumar and Lata to their conviction recorded by the trial court. 23. It has been submitted by learned counsel appearing for the accused-appellants Raj Kumar and Lata that both of them were not present at the place of incident at the time of occurrence and they have falsely been implicated in the present case by PW1 Kumari Mitali (complainant) and other witnesses who had become inimical towards them after the death of their mother and due to the suspected intimacy of complainant's father with accused-appellant Lata. 24. The accused-appellant Raj Kumar in his statement recorded under Section 313 Cr.P.C. has stated that a free service camp was organized by Mahendra Motors in Nanuta Town on the date of the incident between 10.30 and 6.00 PM and he on account of being an employee of M/s S.M.G. Tractors, authorised dealer of Mahendra Tractor in Saharanpur was required to remain physically present in the service camp between 10.30 AM and 6.00 PM and he was actually present in the service camp held in Nanuta town on the date of occurrence between 10.30 A. M. and 6.00 P. M. In order to prove the alibi set up by the accused-appellant Raj Kumar, in his defence he had examined one Ram Kumar, Manager of M/s S.M.G. Tractors, Authorised Dealer of Mahendra Tractors in Saharanpur and one Jag Mohan, another employee of the same company as DW1 and DW4. He had also adduced documentary evidence to which we shall refer and scrutinize later. 25. DW1 Ram Kumar in his examination-in-chief deposed that he was working as Manager of M/s SMG Tractors since 2001. M/s SMG Tractors were the authorized dealers of Mahendra and Mahendra in District Saharanpur and accused-appellant Rajkumar was working as a Mechanic in SMG Tractors since April 2005. On 22.7.2005 a free service camp was organized by M/s SMG Tractors in Nanauta Town of District Saharanpur and accused-appellant Rajkumar had remained present there from 10:30 AM to 6:00 PM and had also signed the attendance register Ex. Kha1. He also deposed that accused-appellant Rajkumar had serviced three tractors in the service camp from 10:30 AM to 11:30 AM, 12noon to 2PM and 3:25 PM to 5 PM bearing registration nos. RGH/4445, RDHA - 1116 - RGA/2897 respectively. Kha1. He also deposed that accused-appellant Rajkumar had serviced three tractors in the service camp from 10:30 AM to 11:30 AM, 12noon to 2PM and 3:25 PM to 5 PM bearing registration nos. RGH/4445, RDHA - 1116 - RGA/2897 respectively. He proved the job card numbers 27, 31 and 32 pertaining to the servicing of the aforesaid tractors as Ex. Kha2, Kha3 and Kha4. He also proved the job cards pertaining to the tractors which were serviced by PW4 Jagmohan as Kha5, Kha6 and Kha7. However from the facts stated by DW1 on page 97, 98 and 99 of the paper book in his cross examination it transpires that the entries made in attendance register Ex. Kha1 were not signed by any senior or junior officer of the firm. Ex. Kha2, Kha3 and Kha4 did not denote the name of the employee whose thumb impressions were affixed thereon. The aforesaid documents were further not signed by accused-appellant Rajkumar and there were overwritings in the job cards in the column which denoted the time consumed by a mechanic in servicing a particular tractor. A close scrutiny of the statement of DW4 Jagmohan shows that he has nowhere stated in his evidence that accused-appellant Rajkumar had remained present in the service camp organized in the Nanauta Town Saharanpur throughout on 22.6.2004 from 10:30 AM to 6:00 PM. Thus neither the testimony of DW1 and DW4 produced by the accused-appellants nor the documentary evidence adduced by him before the Trial Court appears to be either convincing or reliable for accepting the plea of alibi set up by the accused-appellants in his defence. 26. As far as accused-appellant Lata in criminal appeal no. 7150 of 2009 is concerned she has pleaded that at the time of and on the date of the incident she was not present in her house and had gone to the house of her neighbour Jaipal and taking advantage of her absence from her house, PW1 complainant Kumari Mitali with the help of her uncle and her other relatives had surreptitiously entered into her house from the roof of her house through the staircase and after abandoning the dead body of the deceased Ramesh in her house had returned to their house. The information about the dead body of the deceased lying in her house was given to her by her daughter Diksha and two other children who were present in her house at the time when the deceased's dead body was brought inside her house by PW1 Kumari Mitali and her other relatives and abandoned there. 27. DW2 Km. Diksha and DW3 Jaipal were examined on behalf of accused-appellant Lata for proving the plea of alibi set up by her in her defence. 28. DW2 Diksha deposed before the trial Court that she is the daughter of Rajkumar and her house is adjacent to that of deceased Ramesh. On the date of the incident Shikha Mitali and Naresh Tillu@Pramod had brought the deceased Ramesh in an unconscious state into her house via the staircase of her house and had left him there but later she stated that he was already dead at that time. 29. DW3 Jaipal who is the neighbour of the accused-appellant Rajkumar had in his cross examination recorded before the trial Court stated on oath that on the date of the incident accused-appellant Lata had come to his house at about 3:30 PM and had remained there till 4:30 PM. At about 4:30 PM her daughter Lata had come to his house and accused-appellant Lata after talking to her for sometime in his house had left for her house with her daughter and thereafter he had heard that the dead body of the deceased Rajkumar was found lying in the house of Rajkumar. 30. DW2 Kumari Diksha in her cross examination on page 91 of the paper book has stated that before leaving her house to call her mother she had seen Shikha, Mitali Naresh and Tillu@Pramod bringing Ramesh towards the staircase of her house in an unconscious state from the roof of her house where she had gone on hearing sounds coming from the terrace. Thus the fact stated by her in her examination-in-chief that she had left her house for calling her mother after the complainant and her other relatives had left the dead body of the deceased in her house stands falsified. Thus the fact stated by her in her examination-in-chief that she had left her house for calling her mother after the complainant and her other relatives had left the dead body of the deceased in her house stands falsified. Similarly the evidence of DW3 Jaipal also does not help the accused-appellant Lata because DW3 Jaipal as has categorically deposed in his testimony that the accused-appellant Lata had left his house along with her daughter at about 4:30 PM and hence the possibility of her participating in the commission of murder of deceased Ramesh which had taken place at 5 PM cannot be ruled out. 31. Thus upon an overall appraisal and assessment of the testimony of defence witnesses, it transpires that the accused-appellants Rajkumar and Lata have totally failed to establish the plea of alibi set up by them in their defence. 32. The next question which arises for our consideration is that whether the prosecution has been able to establish, on the basis of any cogent evidence led by it, that the various links in the chain of the circumstantial evidence are complete and the circumstances are consistent only with the hypothesis of guilt of the accused-appellants to the extent that it cannot be explained of any other hypothesis. 33. The Apex Court in its judgment in the case of Shyamal Ghosh v. State of West Bengal (2012) 7 SCC 646 = 2012 (79) ACC 365 (SC) paragraphs 63 and 72 to 77 has explained that once the last seen theory comes into play onus shifts upon the accused to explain as to what has happened to deceased after the accused and deceased were last seen alive. The Apex Court has further explained that there must be reasonable proximity of time between the period the accused and deceased were last seen together and the time when the fact of deceased having expired comes to light. The Apex Court has further explained that what would be reasonable has to be determined in the facts and circumstances of each case. In this context it will be useful to reproduced paragraphs 63, 72 to 77 of the aforesaid judgment herein below : 63. Then it was also contended that circumstantial evidence is a very weak evidence and in the present case, the complete chain having not been established, the accused are entitled to acquittal. This argument again does not impress us. In this context it will be useful to reproduced paragraphs 63, 72 to 77 of the aforesaid judgment herein below : 63. Then it was also contended that circumstantial evidence is a very weak evidence and in the present case, the complete chain having not been established, the accused are entitled to acquittal. This argument again does not impress us. Firstly, we have discussed in some details that this is not purely a case of circumstantial evidence. There are eye-witnesses who had seen the scuffling between the deceased and the accused and the strangulation of the deceased by the accused persons and also the loading of the mutilated body parts of the deceased contained in gunny bags into Maruti Van. Evidence establishing the ''last seen together' theory and the fact that after altercation and strangulation of the deceased which was witnessed by PW8, PW17 and PW19, the body of the deceased was recovered in pieces in presence of the witnesses, have been fully established. To a very limited extent, it is a case of circumstantial evidence and the prosecution has proved the complete chain of events. The gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body is quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased. Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive. The accused persons have failed to render any reasonable/plausible explanation in this regard. 72. Then, it is also contended and of course with some vehemence that where the prosecution is relying upon the last seen theory, it must essentially establish the time when the accused and deceased were last seen together as well as the time of the death of the deceased. If these two aspects are not established, the very application of the ''last seen theory' would be impermissible and would create a major dent in the case of the prosecution. In support of this contention, reliance is placed upon the judgment of this Court in the case of S.K. Yusuf v. State of West Bengal [ (2011) 11 SCC 754 ]. 73. In support of this contention, reliance is placed upon the judgment of this Court in the case of S.K. Yusuf v. State of West Bengal [ (2011) 11 SCC 754 ]. 73. Application of the ''last seen theory' requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. This Court in para 21 of Yusuf's case (supra) while referring to the case of Mohd. Azad @ Samin v. State of West Bengal [ (2008) 15 SCC 449 ] and State through Central Bureau of Investigation Vs. Mahender Singh Dahiya [ (2011) 3 SCC 109 ], held as under:- "21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (Vide Mohd. Azad v.State of W.B and State v. Mahender Singh Dahiya)" 74. The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. The purpose of applying these principles, while keeping the time factor in mind, is to enable the Court to examine that where the last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of the crime and the onus was on him to explain how the death occurred. 75. 75. In the facts of the present case, the factor of time does not play such a significant role because it is a case where there were eye-witnesses to the strangulation of the deceased by the accused, and therefore, it may not be expected of the prosecution to show the time of last seen and death, by leading independent evidence. PW-17 is the witness to the altercation between the accused and the deceased. PW-8 is the witness to the strangulation of the deceased by the accused persons. Besides, PW-7, PW-9 and PW-11 are witnesses to the loading of the gunny bags containing human body parts in the Maruti Van by the accused. Thus, these facts have been established by independent witnesses. None of these witnesses is a relation or a witness inimical towards the accused. 76. It has come on record that the occurrence had taken place on 29th September, 2003 at midnight. There may be some variation (5 to 10 minutes) in the time stated by different witnesses as to when the occurrence took place. From their statements, it is clear that by and large, they have given approximately the same time with reasonable variation, which is primarily for the reason that the accused persons and deceased were seen by the witnesses at different places. We have already held that these discrepancies do not amount to any material contradiction. Thus, the time of death stands clearly established between 11.30 pm to 12.00 am on 29th/30th September, 2003. Thereafter, it was the act of disposal of the body of the deceased which attracts the offence under Section 201 IPC. 77. As far as the death of the deceased is concerned, there was hardly any time gap between the two incidents, i.e. the last seen alive and the fact of death of the deceased becoming known. All the events occurred between 11.00 p.m. to 12.00 a.m. at midnight of 29th September, 2003. Thus, the contention raised on this ground is entirely without any merit. 34. All the events occurred between 11.00 p.m. to 12.00 a.m. at midnight of 29th September, 2003. Thus, the contention raised on this ground is entirely without any merit. 34. A conjoint reading of the complete evidence and the material on record suggests as here under : (i) The deceased Ramesh after the death of his wife had developed an illicit relationship with his wife's sister accused-appellant Lata and had started staying mostly with her in her husband's house which is immediately adjacent to the house of deceased Ramesh in which his two daughters including PW1 complainant Kumari Mitali and his son were residing. (ii) The accused-appellant Lata had taken full control of the finances of deceased Ramesh and had also seized his cash, jewelry and documents relating to his properties. (iii) On 22.7.2005 at about 5 PM accused-appellants Rajkumar and Lata had come to the house of deceased Ramesh and taken him away with them to their house on the pretext of meeting, accused-appellants Ashwani Kumar and Meenu@Meenakshi who according to them were waiting for him in their house for getting the money dispute between them settled. (iv) On hearing the alleged shrieks of accused-appellants Lata and Meenu@Meenakshi, PW1 Kumari Meetali and PW2 Shikha along with their other relatives had rushed to the house of accused-appellants Rajkumar and Lata and on reaching there they found Ramesh lying dead in the house of accused-appellants Rajkumar and Lata. (v) There is no evidence of presence of any other person in the house of the accused-appellants Rajkumar and Lata as none of the witnesses of fact examined on behalf of prosecution have deposed that they had seen any other person including accused-appellants Ashwani Kumar and Meenu@Meenakshi present in the house of accused-appellants Rajkumar and Lata when they had reached their house on hearing the shrieks of the accused-appellants. (vi) Nature of injuries mentioned in the post mortem report make it clear that the deceased had died due to asphyxia as a result of strangulation. PW11 Dr. R.K. Gupta who had conducted the post mortem on the deceased's dead body had opined that death of the deceased was due to asphyxia as a result of strangulation. (vi) Nature of injuries mentioned in the post mortem report make it clear that the deceased had died due to asphyxia as a result of strangulation. PW11 Dr. R.K. Gupta who had conducted the post mortem on the deceased's dead body had opined that death of the deceased was due to asphyxia as a result of strangulation. He had further noted the following ante mortem injuries on the dead body of the deceased : (i) Ligature mark 18 cm x 1.5 cm on front and both sides of neck, 6 cm above sternal notch, ligature mark is horizontally placed. (ii) ligature mark 11 cm x 1.5 cm on front and right side neck, just above injury no. 1. This mark is going upwards post-mark. (vii) The "Chunniya" allegedly used in committing the murder of the deceased Ramesh was discovered on the pointing out of the accused-appellant Lata pursuant to her disclosure statement. The prosecution in this case has proved by cogent evidence that the deceased was last seen alive in the company of the accused-appellants Rajkumar and Lata who had taken him away to their house with them and after only a few minutes he was found strangulated to death in their house. The facts relating to the occurrence of the manner in which the deceased had died in their house were within the special knowledge of accused-appellants Rajkumar and Lata and the burden was upon them to have shown as to what had actually happened to the deceased which had resulted in his death. The accused-appellants having failed to come up with any explanation with regard to the circumstances under which the deceased Ramesh was strangulated to death in their house and their plea of alibi set up by them in defence having been found by us to be unreliable, we have no hesitation in holding that the various circumstances relied upon by the prosecution relating to guilt of accused was fully established beyond doubt. 35. As far as the accused-appellants challenge to the admissibility of the evidence of PW1, PW2 and PW7 who were examined by the prosecution for proving the charge framed against them on the ground that they are close relatives of the deceased and hence partisan witnesses vitally interested in seeing the conviction of the accused-appellants is concerned the same is also without any merit. 36. 36. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. Vs. Jagdeo 2003 Cri LJ 844 (SC) observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye-witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence. 37. Regarding evidentary value of testimony of the interested witnesses or relatives witnesses, Hon'ble Supreme Court in Mano Dutt and another Vs. State of U.P. 2012 (77) ACC 209 has observed in paragraph No. 19 referring to the case of Namdeo Vs. State of Maharashtra 2007 (58) ACC 414 (52) = 2007 (54) AIC 162. That evidence of such witnesses has to be reliable subject to their evidence being trustworthy and admissible in accordance with law. 38. All the witnesses of fact except PW4 who was declared hostile were subjected to grueling cross examination by the learned counsel for the defence but he has failed to elicit anything from them which could render the veracity of their testimony on the point of the deceased having gone to the house of the accused-appellants Rajkumar and Lata on the date of the incident at about 5 PM and his having been found dead in their house only a few minutes later, doubtful even for a minute. All the aforesaid witnesses have consistently deposed about their being present in the house of the deceased at the time when the accused-appellants Rajkumar and Lata had come to the deceased's house and taken him away with them to their house. We do not find any reason to discard or disbelieve their evidence. 39. All the aforesaid witnesses have consistently deposed about their being present in the house of the deceased at the time when the accused-appellants Rajkumar and Lata had come to the deceased's house and taken him away with them to their house. We do not find any reason to discard or disbelieve their evidence. 39. Now coming to the last ground of challenge to the conviction of the appellants Rajkumar and Lata that the prosecution has totally failed to prove by any cogent evidence that the accused-appellants Rajkumar and Lata had any motive to commit the murder, we find that the prosecution has not been able to prove by any reliable evidence, the motive suggested by the prosecution witnesses for the accused-appellants to commit the murder of the deceased and in fact from the evidence of PW8 DD Agarwal which we have already discussed and critically examined herein above, we find that it is true that the motive set up by the prosecution for the accused-appellants to commit the murder of the deceased in fact stands totally falsified. 40. The ancillary question which next arises for our consideration is that whether the failure of the prosecution to prove by any cogent evidence, the motive for the appellant to commit the murder of the deceased the credibility of the entire prosecution case stands shattered. The reply is in the positive as far as accused-appellants Ashwani Kumar and Meenu are concerned. We have already recorded herein above that the prosecution has not been able to prove by any cogent evidence, the complicity of the accused-appellants Ashwani Kumar and Meenu in the commission of the murder of deceased Ramesh. But the same does not hold good vis-a-vis accused-appellants Rajkumar and Lata for the reasons already recorded by us herein above. 41. In view of the above, we do not find any reason to interfere with the recorded conviction and the sentence awarded to the accused-appellants Rajkumar and Lata appellants in criminal appeal no. 7150 of 2009. As far as accused-appellants Ashwani Kumar and Meenu@Meenakshi appellants in criminal appeal no. 7096 of 2009 are concerned, in view of the foregoing discussion, we have no hesitation in holding that the prosecution has not been able to prove it's case beyond all reasonable doubts against them. These are the reasons upon which we are allowing criminal appeal no. 7096 of 2009 Ashwani Kumar and another Vs. 7096 of 2009 are concerned, in view of the foregoing discussion, we have no hesitation in holding that the prosecution has not been able to prove it's case beyond all reasonable doubts against them. These are the reasons upon which we are allowing criminal appeal no. 7096 of 2009 Ashwani Kumar and another Vs. State of U.P. and dismissing criminal appeal no. 7150 of 2009 Rajkumar and another Vs. State of U.P.