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2016 DIGILAW 2938 (ALL)

MOHD. ASHRAF v. STATE OF U. P.

2016-08-24

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : The arguments of this case concluded on 24.08.2016. Following order was passed by us on that date: "Heard Sri Ambrish Kumar, Sri Gopeshwar Sahai Bisaria, learned counsel for the appellants, Shri A.N. Mulla, Sri Saghir Ahmad, learned AGA for the State and Smt. Manju Thakur, Syed Hasan Shaukat Abid, State Law Officer. We will give reasons later but we make the operative order now. The appeal is allowed. Impugned judgment and order dated 29.09.2007 passed by Dr. A.K. Singh, Additional Sessions Judge/ Fast Track Court No. 1, Kanpur Nagar in Session Trial No. 552 of 2005 (State Vs. Mohd Ashraf and others) convicting the appellant under Sections 302/34, 201/34, 392, 412 IPC., are hereby set aside. The appellants are acquitted of all the charges framed against them. Appellant are in jail. They shall be released forthwith unless and until they are wanted in any other case. There shall be no order as to cost." Here are the reasons:- This appeal has been preferred by the three appellants Mohd. Ashraf, Mohd. Aslam and Sanu @ Billa Deen against the judgment and order of conviction dated 29.09.2007 passed by Additional Sessions Judge, Fast Track Court No.1, Kanpur Nagar, in Sessions Trial No.552 of 2005, under Sections 302, 201, 392, 412 IPC arising out of Case Crime No.90 of 2005, Police Station Rail Bazar, District Kanpur Nagar, whereby all the three appellants have been sentenced to imprisonment for life under Section 302/34 IPC coupled with fine Rs.5000/-, default stipulation prescribes six months' additional imprisonment, three years rigorous imprisonment coupled with fine Rs.5000/- under Section 201/34 IPC , default stipulation prescribes six months' additional imprisonment, three years rigorous imprisonment coupled with fine Rs.5000/- under Section 392 IPC, default stipulates six months' additional imprisonment and two years rigorous imprisonment coupled with fine Rs.2000/- under Section 412 IPC, default stipulation directs three months' additional imprisonment. All the aforesaid sentences to run concurrently. We have heard Sri Ambrish Kumar, learned counsel for the appellants, Sri Gopeshwar Sahai Bisaria, learned amicus curiae for appellant Sanu @ Billa Deen and Sri Saghir Ahmad, learned AGA for the State and perused the record of the appeal. All the aforesaid sentences to run concurrently. We have heard Sri Ambrish Kumar, learned counsel for the appellants, Sri Gopeshwar Sahai Bisaria, learned amicus curiae for appellant Sanu @ Billa Deen and Sri Saghir Ahmad, learned AGA for the State and perused the record of the appeal. Facts leading to this appeal as emanate from record appear to be; that a written report was lodged on 01.04.2005 at 8.30 a.m. at police station Rail Bazar, district Kanpur Nagar by informant Nafees Ahmad son of Abdul Aziz, resident of village Sarsaul, Police Station Mahrajpur, district Kanpur Nagar against aforesaid three appellants for committing murder of his son Mohammad Aneesh (deceased) and causing disappearance of evidence for offence of murder. It was alleged in the first information report that the informant's son Mohammad Aneesh aged about 21 years was working as Collection Agent in Sahara Company. On 07.03.2005, his son Mohammad Aneesh and his younger brother Sami Ahmad came to Taat Mill Crossing after receiving Rs.70,000/- pertaining to business transaction from Santosh Carrier located at Nayaganj, Kanpur Nagar, where they met with the appellants namely, Mohd. Ashraf, Mohd. Aslam (both sons of Rais Ahmad, R/o 6-D Sujatganj, police station Rail Bazar, Kanpur Nagar) and their friend Shanu @ Billa Deen son of Asfaq Khan, R/o Imamganj, Police station Mahrajganj, district Raebareilly. Appellant Mohd. Aslam was also employed as Collection Agent in Sahara Company and he is son of his brother-in-law (Saddhu), therefore, they started talking about money transaction. In the meanwhile, informant's brother Sami Ahmad had some personal work, therefore, he went away from there. Thereafter, informant's son Mohammad Aneesh kept on talking to the aforesaid accused persons at that very place and since then his son (Mohammad Aneesh) did not return home. The informant asked many times about whereabouts of his son from the aforesaid appellants but they remained evasive and did not give any information. Now, the informant is confident that the appellants have committed murder of his son for greed of money and have concealed his corpse somewhere else, motorcycle Boxer UP-78 AK 4657, Mobile Phone- Motorola Set bearing No.9415730857 and Rs.70,000/-. This incident is alleged to have taken place on 07.03.2005 at about 4.30 p.m. at Taat Mill Crossing (Xing), which has been witnessed by informant's brother Sami Ahmad. The information is being given and legal action be taken. This written report is Exhibit Ka-1. This incident is alleged to have taken place on 07.03.2005 at about 4.30 p.m. at Taat Mill Crossing (Xing), which has been witnessed by informant's brother Sami Ahmad. The information is being given and legal action be taken. This written report is Exhibit Ka-1. Contents of the written report were taken down in Check FIR on 01.04.2005 at 8.30 a.m. at Case Crime No.90 of 2005, under Sections 302, 201 IPC at police station Rail Bazar, District Kanpur Nagar. Check FIR is Exhibit Ka-14. On the basis of entry made in Check FIR, the case was registered against the appellants in the concerned general diary, rapat no.16 on 01.04.2005 at 8.30 a.m. under Sections 302, 201 IPC at police station Rail Bazar, district Kanpur Nagar. The relevant GD entry is Exhibit Ka-15. Investigation ensued and the Investigating Officer, S.I. Parshuram Tripathi PW-5 took over investigation of the case. He started investigation and recorded statements of informant Nafees Ahmad and Shami Ahmad (PW-1 and PW-2) and on tip off information, arrested the aforesaid three appellants on the very same day i.e. 01.04.2005 at 2.00 p.m. and recovered Rs.12,720 from Mohd. Ashraf, Rs.11740/- from Mohd. Aslam and Rs. 12810/- from Shanu @ Billa Din. He also recovered mobile set, one watch and one purse etc. from their possession. The confession of the appellants in regard to the alleged crime was also recorded at the time of their arrest whereby they confessed to have committed murder of deceased Aneesh after taking him inside the closed Taat Mill and they have done him to death by assaulting him with bricks and looted Rs.70,000/- and distributed the same among them. The motorcycle of deceased Aneesh was parked at Cycle Stand, Railway Station. They have also stated that the dead body is lying in the closed Taat Mill. Memo of arrest and recovery was prepared by the Investigating Officer, which is Exhibit Ka-2. Thereafter, Investigating Officer also recovered Boxer Motorcycle UP 78-AK 4657 from Cycle/Scooter Stand and prepared recovery memo of the same, which is Exhibit Ka-26. Thereafter Investigating Officer proceeded to the closed Taat Mill-place where the dead body of the deceased was allegedly lying - and recovered dead body of the deceased Aneesh along with other things like bricks, blood stained Clay Roll and simple clay roll, one torn pass-book of Punjab National Bank, one driving licence of Sonu c/o Ashfaq Khan. Thereafter Investigating Officer proceeded to the closed Taat Mill-place where the dead body of the deceased was allegedly lying - and recovered dead body of the deceased Aneesh along with other things like bricks, blood stained Clay Roll and simple clay roll, one torn pass-book of Punjab National Bank, one driving licence of Sonu c/o Ashfaq Khan. This recovery memo dated 1.4.2005 was dictated to HCP Radhey Shyam Mishra by the Investigating Officer, which is Exhibit Ka-27. We also gather from record that inquest report was prepared on the spot in the aforesaid Taat Mill on 01.04.2005, which is Exhibit Ka-3. Preparation for inquest report commenced at 14.50 hours and completed at 16:35 hours. In the opinion of inquest witnesses and the Investigating Officer, it was thought proper to send the dead body for post-mortem examination for ascertaining real cause of death of the deceased Aneesh. In this regard, relevant papers were prepared like photonash, challan dead body, police form-13, letter to R.I., letter to Chief Medical Officer etc. The dead body of Mohd. Aneesh was sent to mortuary, Kanpur Nagar for autopsy. Dr. R.K. Srivastava conducted the autopsy on the dead body of Mohd. Aneesh on 02.04.2005 at 11.00 a.m, wherein he found the following ante-mortem injuries on his body: 1. Lacerated wound 3 cm x 2 cm x bone deep, 9 cm above right ear. 2. Multiple lacerated wound. 3. Multiple lacerated wound measuring 6 cm x 4 cm x bone deep, 1 cm below injury no.1 right side of head, longest wound measuring 4 cm x 2 cm to the smallest wound measuring 1 cm x 1 cm. 4. Abraded contusion 4 cm x 3 cm x bone deep on the left side of head 7 cm below and above left end of mouth. Parietal bone fractured. In the opinion of doctor, cause of death was coma as a result of ante-mortem injury. Duration of death was stated to be four weeks. The Investigating Officer also prepared site plan of various places which is Exhibit Ka-17 where the deceased Mohd. Aneesh met with the appellants and talked to them. Exhibit Ka-18 is the site plan where the appellants were arrested by the Investigating Officer near Railway Line Crossing at Sujat Ganj on 01.04.2005. Exhibit Ka-19 is the place of recovery of dead body. Aneesh met with the appellants and talked to them. Exhibit Ka-18 is the site plan where the appellants were arrested by the Investigating Officer near Railway Line Crossing at Sujat Ganj on 01.04.2005. Exhibit Ka-19 is the place of recovery of dead body. Exhibit Ka-20 is the site plan of motorcycle stand from where Motorcycle of deceased UP- 78 AK 4657 was recovered. The Investigating Officer Parshuram Tripathi PW-5 has proved all the aforesaid papers and number of material exhibits were also proved which the trial court has referred in its judgment, therefore, the same need not be repeated at this stage. After completing investigation, the Investigating Officer filed charge-sheet against aforesaid appellants, which is Exhibit Ka-28. Thereafter case of the appellants was committed to the court of sessions, from where it was made over to the concerned trial court. The learned trial Judge after hearing the prosecution and the appellants on the point of charge, framed charge under Sections 302/34, 201/34, 392 and 412 IPC. The prosecution was asked to adduce its testimony in order to prove its case. The prosecution produced in all five witnesses. Nafeesh Ahmad PW-1 is the first informant and father of the deceased. Samir Ahmad PW-2 is the brother of first informant and uncle of deceased Mohd. Aneesh. He is witness of fact of last seen. Constable Chandrabali Verma PW-3 has made entry in relevant Check FIR and concerned GD. Dr. R.K. Srivastava PW-4 has conducted autopsy on the dead body of deceased Mohd. Aneesh. S.I. Parshuram Tripathi PW-5 is the Investigating Officer. He has detailed various steps, which he took for completing the Investigation. He has also filed charge-sheet, Exhibit Ka-28. Thereafter evidence for the prosecution was closed and statement of accused persons was recorded under Section 313 Cr.P.C., wherein Mohd. Ashraf has stated that he being brother of co-accused Mohd. Aslam has been falsely implicated in this case and nothing incriminating was recovered at his pointing out. Similarily, Mohd. Aslam has stated that he is Area Field Manager in Sahara India. The deceased Mohd. Aneesh was his Assistant. He could not deposit collection money in the company, whereupon he in company with his officials went to the father of the deceased, Nafees Ahmad for inquiry and returned after getting documents. Due to this, the first informant was abhorrent towards him. The deceased Mohd. Aneesh was his Assistant. He could not deposit collection money in the company, whereupon he in company with his officials went to the father of the deceased, Nafees Ahmad for inquiry and returned after getting documents. Due to this, the first informant was abhorrent towards him. Shanu @ Billa Deen has stated that he is not acquainted with the aforesaid two co-accused persons. He is a Tempo Driver. Police personnel exploited his services and wanted him to do begar. When he asked money for diesel, the police personnel refused to give any money and falsely implicated him in this case after forcibly taking possession of his mobile phone and driving license. The defence in turn has adduced ocular testimony of Akhilesh Upadhyay DW-1 and Heeru DW-2. These two defence witnesses have proved Exhibit Kha-1, Kha-2 and Kha-3. Thereafter the case was posted for hearing. Learned trial court after hearing both the parties on merit passed judgment of conviction dated 29.09.2007 and sentenced the present appellants as aforesaid. Consequently, this appeal. It has been vehemently contended by the learned counsel for the appellants that this case is an example of police high handedness and false accusations by the first informant. The entire case is admittedly based on circumstantial evidence. There is no eye-witness account of alleged offence of murder and loot. Things have happened in a dramatic way and the chain and sequence of circumstances appear placed in great disarray, which cannot be satisfactorily explained by the prosecution. The entire chain of circumstances and evidence forthcoming is highly doubtful, shaky and gives rise to a number of speculations regarding commission of crime by other persons. In a case based on circumstantial evidence, it is obligatory on the part of the prosecution to prove and establish vital links in the chain of circumstances so as to exclude every hypothesis of innocence of the accused person and to conclusively point out guilt of accused that in all eventualities, it was the accused and the accused alone, who committed the offence to the exclusion of others. Things in this case factually as well as legally- have been ordained by the first informant in collusion with Samir Ahmad PW-2 and the concerned police personnel. Therefore, the prosecution case becomes more and more exposed to untold uncertainties. Things in this case factually as well as legally- have been ordained by the first informant in collusion with Samir Ahmad PW-2 and the concerned police personnel. Therefore, the prosecution case becomes more and more exposed to untold uncertainties. The recovery process is highly doubtful and the same is not sustainable in the eye of law and cannot be read against the appellants. Recovery of dead body has not been made by the police in presence of the appellants and the same is not at the pointing out of the appellants. No note of any sort or worthy recovery memo like Exhibit Ka-27, proved the same. Mere inquest report was prepared, which will not prove recovery of dead body at the pointing out of the appellants. The recovery memo Exhibit Ka-26 and Ka-27 are without signatures of the appellants and there is no reference that copies of these memos were ever given to the appellants. In absence of establishment of fact of recovery of concerned motorcycle UP-78 AK 4657 and the dead body (all the descriptions contained in such so called recovery memos Exhibit Ka-26 and Ka-27), no legal effect pursuant thereto occurs touching on any sort of involvement of the appellants in the alleged act of murder of Anees. The prosecution has failed utterly to prove the vital links of the chain in form of evidence and circumstances. For the sake of argument and assuming it to be that the deceased Mohd. Aneesh was last seen in company of the appellants on 07.03.2005 but there is no further evidence regarding fact that the deceased proceeded in company with the appellants from Taat Mill Crossing to the closed Taat Mill premises and went inside the mill and came out of the mill without being accompanied by the deceased. There is no whisper or evidence that the appellants were ever seen inside the closed Taat Mill. It is noticeable that the son of informant was missing since 07.03.2005 and he was making hectic search for his son. He had been informed by his brother Shami Ahmad PW-2 that the deceased was left by him with the appellants in front of Saloni Cold Drink Shop near Taat Mill Crossing. It is noticeable that the son of informant was missing since 07.03.2005 and he was making hectic search for his son. He had been informed by his brother Shami Ahmad PW-2 that the deceased was left by him with the appellants in front of Saloni Cold Drink Shop near Taat Mill Crossing. Although no report whatsoever was tried to be lodged with any authority or police and no information whatsoever was ever given to any authority but the FIR was lodged only on 01.04.2005 at 8.30 A.M. and the very same day, on tip off information, the appellants were arrested at 2:00 P.M. Thereafter recovery of Rs.37,270/- was jointly made from their possession. On the basis of confessional statement, Motorcycle UP 70 AK 4657 and dead body of Mohd. Aneesh were recovered but the recovery memo of alleged motorcycle and dead body Exhibit Ka-26 and Ka-27, respectively do not bear signatures of the appellants and there was no time mentioned in such memos as to when these recoveries were effected. Chain of circumstances was never complete. The motive assigned for the commission of the crime is neither genuine nor established. Possibility of offence of murder and loot being committed by others than the appellants cannot be ruled out. Appellant Sanu @ Billa Deen was never acquainted with the appellants and he had nothing to do with the case. He was a Tempo Driver and police falsely involved him in this case because he refused to do begar for them. The prosecution case is full of infirmities and the charge made against the appellants has not been proved beyond reasonable doubt. Per contra, learned AGA has replied that admittedly it is a case based on circumstantial evidence but the vital links of the chain of evidence and circumstances are complete. Evidence of last seen has been well proved. Recovery of motorcycle, dead body and other articles have been well proved. Recovery of Rs.37,270/- from the possession of the appellants gave thrust to offence of loot and murder. The recovery of dead body was made only after recording confessional statement of the appellants. Learned AGA has further added that motive for committing the crime is self evident. Firstly the Loot of money and; secondly the deceased Mohd. Aneesh had previously molested sister of Mohd. Aslam and Mohd. Ashraf, which was retaliated by committing murder of deceased Mohd. Aneesh. The recovery of dead body was made only after recording confessional statement of the appellants. Learned AGA has further added that motive for committing the crime is self evident. Firstly the Loot of money and; secondly the deceased Mohd. Aneesh had previously molested sister of Mohd. Aslam and Mohd. Ashraf, which was retaliated by committing murder of deceased Mohd. Aneesh. There is no inordinate delay in lodging the FIR because the first informant kept on searching for his son for 22-23 days. When the appellants refused to disclose whereabouts of his son then only he lodged the FIR on 01.04.2005. Thus, the delay in lodging the FIR is reasonably explained. Laches committed by the Investigating Officer while preparing various memos are not vital and the same alone will not throw away the case of the prosecution. Charge framed against the appellants has been proved beyond doubt. After considering aforesaid rival submissions made by both sides, core consideration for adjudication of this appeal engages our attention to fact whether this case being a case based on circumstantial evidence all its links of circumstances of chain are complete in itself, which lead aside every hypothesis of innocence of the appellants or establishes fact that accused appellants alone are the perpetrator of the crime, to the exclusion of others? It is admitted to both the parties that the present case is one based on circumstantial evidence. No one has seen commission of offence of murder and loot and fact of causing disappearance of evidence. In this view of the matter, we have to scrutinize carefully vital facts and links of chain of circumstances leading to final determination of the case. Crux of written report, Exhibit Ka-1 reflects that the allegations have been made by the first informant Nafee Ahmad PW-1 - the father of the deceased- that his son Mohd. Aneesh aged about 21 years was Collection Agent in Sahara Company and first informant was running business of selling animal (Goats) and he used to receive money in consideration of sale. His son along with Sami Ahmad, informant's real brother, went to receive Rs.70,000/- for business transaction of goats from Satosh Courier at Naya Ganj, district Kanpur Nagar on 07.03.2005. After receipt of Rs.70,000/-, informant's brother Sami Ahmad and his son deceased Mohd. Aneesh met with the appellants and they were talking among themselves. Mohd. His son along with Sami Ahmad, informant's real brother, went to receive Rs.70,000/- for business transaction of goats from Satosh Courier at Naya Ganj, district Kanpur Nagar on 07.03.2005. After receipt of Rs.70,000/-, informant's brother Sami Ahmad and his son deceased Mohd. Aneesh met with the appellants and they were talking among themselves. Mohd. Aslam, one of the appellants was also Commission Agent at Sahara Company, therefore, talks regarding payment were made. In the meanwhile, Sami Ahmad, the uncle of the deceased left the place of occurrence because he had some personal work around 4.30 P.M. Thereafter Mohd. Aneesh did not return home in the evening. On inquiry being made, he was told by his brother Sami Ahmad that deceased Mohd Aneesh was talking with the aforesaid appellants in front of Saloni Cold Drink Shop near Taat Mill Crossing when he left the place of the occurrence for his personal work. After this, the first informant inquired whereabouts of Mohd. Aneesh from the appellants but they avoided question and did not tell anything. The first informant searched for his son but he could not trace him out, therefore, he lodged first information report with Police Station Rail Bazar after 24 days of disappearance of his son on 01.04.2005. In such a situation, we have before us certain vital circumstances of this case, which need be enumerated at this stage:- 1. The 'last seen' evidence when the deceased was last seen in company with the appellants. 2. The deceased was proceeding in company with the appellants either towards Taat Mill or was ever seen with them inside Taat Mill. 3. Whether the appellants were seen coming out of Taat Mill at the relevant date and time of the occurrence and they were accompanied by the deceased. Recovery of dead body and motorcycle etc. were made at the pointing out of the appellants after their arrest by the police. 4. Cause of motive for committing crime. The aforesaid circumstances in form of vital links of chain of circumstances are proved and established then the chain of circumstances will be complete in itself. Now, we may embark on full-fledged discussions of existing evidence qua facts and circumstances of the case. We may start with motive behind the crime. 4. Cause of motive for committing crime. The aforesaid circumstances in form of vital links of chain of circumstances are proved and established then the chain of circumstances will be complete in itself. Now, we may embark on full-fledged discussions of existing evidence qua facts and circumstances of the case. We may start with motive behind the crime. In so far as description contained in the first information report is concerned, the same has reference for greed for money Rs.70,000/-, for which the appellants committed murder of Mohd. Aneesh. There is no any other whisper. However, in the testimony of prosecution witnesses of fact namely Nafees Ahmad PW-1 and Samir Ahmad PW-2, particularly in the arrest memo of accused appellants dated 01.04.2005, it emerges out that the deceased had outraged modesty of sister of Mohd. Ashraf and Mohd. Aslam, the co-accused, for which they avenged by committing murder of Mohd. Aneesh. We shall reflect on this aspect of motive a little later but before we do so, we have to scrutinize certain other relevant aspects of the case and particularly, arrest of the accused appellants and recovery of dead body. The arrest memo (Exhibit Ka-2) discloses that the first information report was lodged on 01.04.2005 at 8.30 A.M. at Police Station Rail Bazar. When S.O. Parshuram Tripathi along with police personnel reached near Sujat Ganj Railway Crossing then on the tip off information that the accused appellants coming to know about lodging of the FIR, are trying to move somewhere either by bus or by train in order to escape from arrest, the police party was also accompanied by PW-1 and PW-2 who sighted the three accused appellants, who after seeing the police became apprehensive and tried to flee away but they were caught near railway crossing around 2.00 P.M. They disclosed their respective names to the police. When they were told about lodging of the FIR, they apologized and said that deceased was son of their mausi. Some years ago, the deceased molested their sister, due to which they decided to take revenge for the same. On 07.03.2005 they called their friend Sanu @ Billa Deen and made a plan to kill the deceased. They were present on Taat Mill Crossing at 4.30 P.M. when Mohd. Aneesh along with his uncle Sami Ahmad came over there and began to talk to them. On 07.03.2005 they called their friend Sanu @ Billa Deen and made a plan to kill the deceased. They were present on Taat Mill Crossing at 4.30 P.M. when Mohd. Aneesh along with his uncle Sami Ahmad came over there and began to talk to them. Later on, his uncle left from the scene of occurrence then on the pretext of smoking cigarette, they took the deceased inside already closed Taat Mill and killed him by giving bricks blow and they distributed Rs.70,000/- among themselves, which the deceased was possessing. Motorcycle of deceased was parked at the Railway Station Motorcyle Stand. Mobile Cell Phone of deceased was taken by co-accused Sanu @ Billa Deen. Dead body of deceased was lying inside Taat Mill. Thereafter recovery of Rs.12720/- from possession of Mohd. Ashraf, Rs.11740/- from accused Mohd. Aslam and Rs.12810/- from accused Sanu @ Billa Deen was made. In all Rs.37270/- were recovered from their possession. Besides, one LG Reliance Mobile Phone and one Mobile Cell Phone Motorola Set belonging to deceased Mohd. Aneesh were also recovered. One HMT Kohinoor wrist watch and one Purse were also recovered. The recovery memo was prepared on the spot, as Exhibit Ka-2. This aspect of the case does not seem vital but assumes importance for the reason that Samir Ahmad PW-2, uncle of deceased left the scene of the occurrence at 4.30 P.M. for his personal work and the deceased was in company of the accused appellants but after strenuous cross-examination, specific question being put to PW-2 by the defence that he has not come out with the description of personal work for which he suddenly left the scene of occurrence. Thereafter pursuant to information so extracted from the accused appellants, recovery of motorcycle was made from Railway Motorcycle Stand and memo of the same was prepared, which is Exhibit Ka-26. This recovery memo does not bear any signature of any of the accused appellants nor does it contain any description regarding copy of memo being given to the accused appellants. It has come in the testimony of the Investigating Officer Parshuram Tripahi PW-5 that he did not ask name of the employee, who was manning the motorcycle stand when the recovery was made, he did not inquire about the name of the contractor/owner of the motorcycle stand. It has come in the testimony of the Investigating Officer Parshuram Tripahi PW-5 that he did not ask name of the employee, who was manning the motorcycle stand when the recovery was made, he did not inquire about the name of the contractor/owner of the motorcycle stand. We, on careful perusal of recovery memo Exhibit Ka-26, notice that no time of recovery has been mentioned in this memo. For these specific and conspicuous reasons, this recovery memo becomes erroneous and legally not admissible and cannot be read against the appellants. Similarly, recovery memo of dead body, certain other articles allegedly scattered on the place of occurrence, simple clay roll and blood stained clay roll (Exhibit Ka-27) made by the police party is so vague in description that it nowhere describes the manner of recovery of dead body, as to on whose pointing out it was discovered. It merely describes recovery of certain articles near the dead body. It also does not bear signatures of the accused appellants nor does it contain any recital for handing over copy of this recovery memo to the accused appellants. Lastly, it does not refer any time as to when such recovery was effected. Therefore, recovery memos as Exhibit Ka-26 and Exhibit Ka-27, which relate to fact of recovery of dead body and other articles from the spot where the dead body was allegedly recovered inside the Taat Mill becomes legally not admissible against the appellants and in the eye of law, both the Exhibits Ka-26 and Ka-27 are very material in this case and are vital links of chain of circumstances which have not been properly proved. Assuming it to be that it may be lapse of the Investigating Officer that he acted in a casual manner and was unmindful of legal sequences that will flow from his negligent act but had it been an ordinary recovery, matter would have been ignored by us but under existing facts and circumstances, we have every reason to believe absence of accused persons at the relevant point of time when these recoveries were made. Had it been so that the accused appellants were present on the spot then their signatures on these recovery memos (Exhibit Ka-26 and Ka-27) should and must have been obtained on it. Had it been so that the accused appellants were present on the spot then their signatures on these recovery memos (Exhibit Ka-26 and Ka-27) should and must have been obtained on it. Since non mention of time and non obtaining of signatures hits at the root of the prosecution case in form of missing vital links of recovery of dead body and the articles, it shakes the entire prosecution case to its discredit. In so far as memo of arrest (Exhibit Ka-2) is concerned, we may observe that after lodging of the first information report, the events happened in quick succession at 2:00 P.M., all the three accused persons were arrested from near Sujat Ganj Railway Crossing, which is a busy public place, still no independent person was arranged to be witness to fact of arrest and recovery. It has been suggested that Sujat Ganj Railway Crossing is manned by a Railway employee, then why his services were not utilized by the Investigating Officer. The Investigating Officer avoided the question. The confession made before the police officer regarding commission of murder will not be read against the appellants, as such, on its face value but it has to be read with the entirety of facts and other circumstances which emerged in this case. We may again observe that how casual is the I.O. and how genuine is the recovery of money from possession of the appellants. It has been described in the recovery memo (Exhibit Ka-2) that Rs.12720/- was recovered from Mohd. Ashraf, Rs.11740/- was recovered from Mohd. Aslam and Rs.12810/- from Sanu and Billa Deen. But how and why denomination of currency notes recovered from the possession of the appellants were not mentioned in the recovery memo. In this view of the matter, recovery of money as described in the recovery memo of arrest, Exhibit ka-2 becomes doubtful. Now, we may consider the other vital links and facts of this case so as to arrive at just decision. The star witness of last seen is Sami Ahmad PW-2. He has testified in his examination-in-chief that he along with deceased went to take Rs.70000/- from Sanosh Courier on motorcycle UP 78 AK 4657 (Bajaj Boxerr). On page 47 of the paper book, he testified that Mohd. Aneesh was a collection agent of Sahara India. The star witness of last seen is Sami Ahmad PW-2. He has testified in his examination-in-chief that he along with deceased went to take Rs.70000/- from Sanosh Courier on motorcycle UP 78 AK 4657 (Bajaj Boxerr). On page 47 of the paper book, he testified that Mohd. Aneesh was a collection agent of Sahara India. After receiving Rs.70000/-, they were returning from Naya Ganj, Kanur Nagar and as soon as they arrived at Taat Mill Crossing in front of Saloni Cold Drink Shop where Mohd. Ashraf and Mohd. Aslam, the two sons of brother-in-law of first informant along with one Sanu @ Billa Deen met with them. When they were talking, this witness left their company and department from there on account of some personal work. It was around 4.30 P.M. he returned home but deceased Mohd. Aneesh did not return home whereupon inquiry was made by the first informant, father of deceased from Sami Ahmad PW-2 who told him that he had left the deceased with the accused appellant around 4.30 P.M. in front of Saloni Cold Drink Shop near Taat Mill crossing. Now relevant issue crops up as to what is the testimony, which may shed light on fact or establish that as soon as the deceased was left with the accused appellants in front of Saloni Cold Drink Shop, he remained in company of accused appellants till and upto the time of his death and no person came in contact with the deceased after 4.30 P.M. on 07.03.2005. There is not an iota of evidence on the point that the deceased was ever seen proceeding towards the Taat Mill with the accused appellants or that he was seen inside the Taat Mill in company with the accused appellants or that the accused appellants were ever seen coming out of Taat Mill without person of the deceased Mohd. Aneesh. On this core essence of incident of murder evidence could have been collected by the Investigating Officer by making sincere effort, if he had contacted the police booth at Taat Mill Crossing, which was made for public help or he could have taken help of guard/check post inside Taat Mill or of certain family members, who had been residing inside Taat Mill in some rooms. This specific testimony appears on page-73 and 74 of the paper book in the statement of the Investigating Officer, S.I. Sri Parshuram Tripathi, therefore, merely because arrest was effectuated by the police, which as discussed above is found to be of dubious nature, will not ipso facto establish other but vital missing links in the chain of circumstances. There is unexplained vacuum on point of continuing and sustained company of deceased with the appellants from 4.30 P.M. onwards on 7.3.2005 and in the absence of such vital link in the chain of circumstances the hypothesis of innocence of appellants alone is fortified because exclusion of possibility that the offence could have been done by others also can not be ruled out. Here it cannot be said that the accused alone are the perpetrators of the crime to the exclusion of others. Perusal of arrest and recovery memo of accused (Exhibit Ka-2) shows that the first informant and his brother Sami Ahmad who knew the accused appellants well from before and also sighted them near Sujat Ganj Railway Crossing, still they were apprehended by the police as if there was no one with the police party to pinpoint the accused and identify them. Their names and addresses were tried to be known after they were apprehended by the I.O. and the police party. Under circumstance this gesture by the police glitters of artificiality and by itself is unnatural. If PW-1 and PW-2 were accompanying police party when the accused persons were apprehended by the police then they could have easily of their own told their names to the police, which the police could have confirmed from them. But nothing like the sort happened but an inquiry was feigningly made regarding identity of the accused appellants in presence of the first informant and his brother on the spot and this way, the Investigating Officer tried unsuccessfully to give colour to his suspected activity. There are certain vital omissions in the first information report as to the spot where the appellants met with deceased. There is no mention of Saloni Cold Drink Shop in front of which the deceased met with the accused persons. It may be observed that no doubt the FIR is not an encyclopedia and it does not contain every detail in its entirety. There is no mention of Saloni Cold Drink Shop in front of which the deceased met with the accused persons. It may be observed that no doubt the FIR is not an encyclopedia and it does not contain every detail in its entirety. However, certain facts, which hold sanguine point may be expected to be referred in report as that would be treated to be natural expression of place which holds center point and the beginning of crime imputed. PW-2 appears to be star witness of the prosecution. However, he has been confronted by the defence in cross-examination on almost all the vital aspects of this case, wherein material contradictions emerge out from his testimony. Regarding fact of taking money from Santosh Courier on 07.03.2005, no such statement was ever given by him to the Investigating Officer and such confrontation by the defence appears on page 52 of the paper book. He has again been confronted on the same page on point whether the deceased was possessing any mobile cell phone, whereupon he replied in the affirmative. But no such statement was ever given to or recorded by the Investigating Officer under Section 161 Cr.P.C. He has again been queried on point of time on the same page of paper book as to when he started for Santosh Courier from his house. He stated that he had told Daroga Ji the time when he left his home but he cannot assign any reason, if the same does not appear in his statement under Section 161 Cr.P.C. Similarly, he has stated that he had told Daroga ji that he arrived in front of Saloni Cold Drink Shop where Mohd. Ashraf, Mohd. Aslam and Sanu @ Billa Deen met him but if these facts have not been recorded by the Investigating Officer in his statement then he cannot assign any reason for the same. Regarding co-accused Sanu @ Billa Deen, he was queried specifically whether he knew him from before then he stated that he had told Daroga Ji that he knew Sanu @ Billa Deen from before but in case such statement has not been recorded under Section 161 Cr.P.C. by Daroga Ji then he cannot assign any reason. Regarding co-accused Sanu @ Billa Deen, he was queried specifically whether he knew him from before then he stated that he had told Daroga Ji that he knew Sanu @ Billa Deen from before but in case such statement has not been recorded under Section 161 Cr.P.C. by Daroga Ji then he cannot assign any reason. One vital aspect of this case, regarding the description of time and place when he (PW-2) left the deceased in front of Saloni Cold Drink Shop, though he claims to have specifically told the Investigating Officer in his statement, but in case no such statement finds place under Section 161 Cr.P.C. regarding the place and time as to when he left the deceased Mohd. Aneesh (in front of Saloni Cold Drink Shop) then he cannot assign any reason for the same. As per his claim, this witness (PW-2) says that he had given statement to Daroga ji to the extent that he left the scene of occurrence around 4.30 P.M. but no such statement was recorded by the Investigating Officer. This fact is very vital and under circumstances carries weight. Perhaps this factual aspect assumes central point of the entire incident and non-disclosure of such pivotal fact to the Investigating Officer would indicate that testimony of PW-2 is motivated and full of embellishment. Thus, testimony of P.W.2 is woefully wanting in correct details on certain vital and relevant aspects of this case and as such does not inspire confidence and it appears that he (PW-2) is not telling the truth before this Court. This witness is unworthy of credit. One aspect of the case relating to involvement of co-accused Sanu @ Billa Deen attracts our attention. Co-accused Sanu @ Billa Deen has stated in his statement recorded under Section 313 Cr.P.C. that he has been falsely involved in this case because he refused to do begar for the police. He was falsely implicated in this case after his driving license was taken by the police and he was detained at the police station. For the sake of argument, it can be assumed that offence was committed even then it is noticeable that Sanu @ Billa Deen had no motive to commit crime from any angle. He has categorically stated in his statement under Section 313 Cr.P.C. that he has no connection with the other co-accused Mohd. Ashraf and Mohd. Aslam. For the sake of argument, it can be assumed that offence was committed even then it is noticeable that Sanu @ Billa Deen had no motive to commit crime from any angle. He has categorically stated in his statement under Section 313 Cr.P.C. that he has no connection with the other co-accused Mohd. Ashraf and Mohd. Aslam. Even the prosecution has failed to establish reasonably and specifically fact of acquaintance of co-accused Sanu @ Billa Deen with the other co-accused Mohd. Ashraf and Mohd. Aslam, who were cousin brothers of the deceased Mohd. Aneesh. Therefore, statement of co-accused Sanu @ Billa Deen appears to be quite correct under prevailing facts and circumstances of the case and there is every reason to believe his false implication in this case. Moreso, it has come in the testimony of prosecution witnesses that Mohd. Aslam and Mohd. Ashraf had told Daroga ji that deceased Mohd. Aneesh had molested his sister few years ago, then testimony on record is overwhelming on point that the deceased Mohd. Aneesh met the accused persons all of a sudden and the incident occurred. Can it be said that they were well prepared and they worked out their plan to eliminate the deceased when deceased appeared before them all of a sudden on 7.3.2005. Further noticeable that the accused kept silent for about 4 years after rape was committed on sister of two co-accused persons and swung into retaliation only on 7.3.2005 as if they were under impression that the victim will today meet them at 4.00 or 4.30 P.M. and prior to this they do not find any suitable time and place to settle score with the deceased Mohd. Aneesh. We may observe that the act of molestation of sister of accused Mohd. Ashraf and Mohd. Aslam has not been specifically established in this case. It would be appropriate to scrutinize fact regarding recovery of dead body though we have discussed a lot on the same while making observation on Exhibit Ka-27. Our scrutiny at this stage becomes relevant, for the reason that learned AGA Sri Sagir Ahmad has vehemently replied to our specific query regarding non-preparation of memo of recovery of dead body that preparation of inquest of the dead body of deceased Mohd. Our scrutiny at this stage becomes relevant, for the reason that learned AGA Sri Sagir Ahmad has vehemently replied to our specific query regarding non-preparation of memo of recovery of dead body that preparation of inquest of the dead body of deceased Mohd. Aneesh on the spot inside the Taat Mill virtually proves recovery of dead body itself at the pointing out of accused persons because they had already stated at the time of their arrest at 2 P.M. about fact that they have killed the deceased inside the Taat Mill and they have distributed Rs.70,000/- among themselves, which was possessed by the deceased. But in the entire arrest/recovery memo, Exhibit Ka-2, there is no mention of any particular place where the dead body was concealed, then the point crops up as to how the police party could reach and recover dead body exactly from the spot inside the room within the campus of Taat Mill. The entire recovery memo and all the memos are absolutely silent here. We may have recourse to the inquest report of deceased, Exhibit Ka-3 which also does not refer as to how they (police party) reached upto the specific room in the Taat Mill premises. We notice abysmal silence on this aspect in Exhibit Ka-3. Learned AGA claims that the inquest report Exhibit Ka-3 may be treated to be recovery memo of the dead body. If the contention is accepted by us at this stage then obviously inquest must bear signatures of all the three accused persons just to mark their presence on the spot. But as per testimony on record, and as per contents of the inquest report, Exhibit Ka-3, we do not find any signature of any of the accused persons on this inquest report. This is not covered under category laches committed by the Investigating Officer. Preparation of memo of recovery of dead body is a substantial compliance in this case based on circumstantial evidence. But it is due to establishment of fact of non-existence of presence of the accused persons on the spot that several recovery memos like recovery of motorcycle, recovery of dead body and the place of occurrence as disclosed through Exhibits Ka-26 and Ka-27 becomes doubtful. Therefore, distinction is to be made between laches committed by the Investigating Officer and the latches which are substantial and hitting at the root of the prosecution case. Therefore, distinction is to be made between laches committed by the Investigating Officer and the latches which are substantial and hitting at the root of the prosecution case. In this way, it is obvious that things have been tried to be accomplished in a dramatic way in utmost hurry. The inquest report by itself can never be treated to be recovery memo of dead body. Such argument though sounds well on its face value but will always be disapproved by one and all for aforesaid reason. The point is that the things have been put in, in universal manner. There is no explanation about the personal work for which PW-2 had to leave the spot where he met with accused around 4.00 P.M. and then left at 4.30 P.M. and it was upto PW-2 to have come out specifically about the piece of personal work with which he was occupied with, but he failed to do that. Here an overall reading of prevailing facts and circumstances give rise to possibility that even Mohd. Aslam (P.W.2) may himself commit murder of deceased Mohd. Aneesh, as human greed has no limitation, which can be effectively executed at any point of time against any person, notwithstanding a close relative. In such peculiar circumstances of this case, how can we hold conclusively that the guilt of the appellants is established as number of missing links in the chains of circumstances are not complete and they leave aside every hypothesis regarding innocence of the appellants. Can we summarize that the links in the chain of circumstances are so complete as to leave aside every hypothesis of the innocence of the appellant and establish that appellants and appellants alone were the perpetrator of the crime after 4.30 P.M. onwards on 7.3.2005. There is no clinching circumstance on record, which may establish that deceased was seen in company with accused appellants either inside the Taat Mill or outside the Taat Mill and there is no evidence on specific factual aspect that after 4.30 P.M. all the three accused persons were seen or sighted by any one near or around Taat Mill and the deceased was accompanying them, therefore, accompaniment of deceased with the appellants after 4.30 P.M. upto the place of occurrence where the dead body was found by the police cannot be established in this case and such a vital link is missing altogether. We are conscious of fact that where conviction is based on circumstantial evidence solely then there should not be any snap or gap in the vital links of the chain of circumstances and in case any snap emerges out in the links of chain, then the accused would be entitled to benefit of doubt. We are also conscious of fact that in cases if some of the circumstances in the chain can be explained by any other reasonable hypothesis, which may give rise to reasonable comprehension that alleged offence can be committed by other persons also when the accused are entitled to be benefit of doubt. Only that circumstantial evidence, which is clinching, consistent leaving aside any other hypothesis regarding commission of crime except innocence of the accused alone would be inspiring confidence. All the circumstances of the case must be, as held in a catena of cases by the Hon'ble Apex Court, that all the links of chain must be complete in cases based on circumstantial evidence. Here, in this case at hand we are constrained to note that not even last seen theory inspires confidence because in case the son of the first informant was missing on 07.03.2005 and the first informant was told about the names of the accused persons and the first informant in fact inquired from them about whereabouts of his son, which on query being raised was found to have been avoided, then a sane and a prudent man would hardly wait for 22-23 days and then only he will lodge first information report alleging therein that now he has become sure that his son has been killed by these persons. May be that such FIR was lodged by first informant on 01.04.2005 with Police Station Rail Bazar, but in between 07.03.2005 upto 01.04.2005, there must have been some whisper about some information regarding missing/disappearance of his son at least to some responsible authority but that aspect on vital fact is woefully silent and inaction of first informant in between the above two periods give rise to a number of possibilities and probability. In this context, we may note that first informant was conscious of fact that his son is missing after receiving Rs.70,000/-. In this context, we may note that first informant was conscious of fact that his son is missing after receiving Rs.70,000/-. He was conscious of fact that his son was also possessing one mobile cell phone, but he is silent as to whether the mobile sim was off or on during the aforesaid period of disappearance of his son from 07.03.2005 upto the time on 01.04.2005 and When the dead body of his son was recovered by the police. Here in this case even PW-2, who happens to be the real brother of first informant can be posed as culprit, for many reasons because he also needed money and he had incurred some expenses for treatment of his wife and he has been suggested on page-57 of his testimony as to whether he had borrowed Rs.20-25 thousand, whereupon he denied the suggestion. On the same page, he has been suggested to this extent that he himself killed his nephew in greed for the money. The possibility of involvement of Mohd. Aslam cannot be ruled out and it is established principle in circumstantial jurisprudence that if different hypothesis of guilt is forthcoming from the testimony and circumstances on record, then benefit of doubt goes to the aforesaid accused. In the backdrop of aforesaid discussion, we are fully convinced that the prosecution has not been able to establish all links in the chain of circumstances and chain remained incomplete. Learned trial court while appraising evidence and marshaling facts on record misread the evidence and based its conviction more on whims and imaginations than on evidence on record, leaving aside the guiding principles to be applied in cases based on circumstantial evidence. In case evidence and circumstances of the case allude to alternative way to alternative hypothesis and give rise to possibility that the perpetrator of the crime can be another person also than the accused then benefit of doubt should and must be given to the accused persons. These are the reasons upon which we set aside the impugned judgment and order of conviction dated 29.09.2007 passed by Additional Sessions Judge, Fast Track Court No.1, Kanpur Nagar, in Sessions Trial No.552 of 2005, under Sections 302, 201, 392, 412 IPC arising out of Case Crime No.90 of 2005, Police Station Rail Bazar, District Kanpur Nagar. These are the reasons upon which we set aside the impugned judgment and order of conviction dated 29.09.2007 passed by Additional Sessions Judge, Fast Track Court No.1, Kanpur Nagar, in Sessions Trial No.552 of 2005, under Sections 302, 201, 392, 412 IPC arising out of Case Crime No.90 of 2005, Police Station Rail Bazar, District Kanpur Nagar. However, we direct that the appellants will ensure compliance of provisions of Section 437A Cr.P.C. by appearing before the concerned trial court at the earliest. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.