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2016 DIGILAW 3201 (ALL)

MOHAN v. STATE OF U. P.

2016-09-20

ALOK KUMAR MUKHERJEE, BHARAT BHUSHAN

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JUDGMENT : Alok Kumar Mukherjee, J. 1. This appeal has been directed against the judgment and order dated 08.02.1983 passed by the learned Special Sessions Judge, Budaun in Sessions Trial No. 72 of 1982 (State Vs. Mohan and others) convicting the accused-appellants Mohan, Shiam Lal, Sita Ram and Har Bilas under Section 302 read with Section 34 IPC and sentencing each of them for life imprisonment. 2. It is relevant to mention here that while hearing of this appeal, it has been noticed by us that during the pendency of this appeal, the appellant no. 1 Mohan and appellant no. 2 Shiam Lal have died, therefore, the appeal filed on their behalf stands abated by a Coordinate Bench of this Court vide order dated 04.04.2014. As such the appeal on behalf of the remaining surviving appellant no. 3 Sita Ram and appellant no. 4 Har Bilas, who are presently detained in jail, is being disposed of by this judgment. 3. The appellants have filed the present appeal against the aforementioned judgment and order dated 08.02.1983 on the ground that the conviction of the appellants is against the weight of the evidence on record and the sentence awarded to them is too severe. 4. The brief fact of the prosecution case is that deceased Nankoo son of the informant Khamani (PW-4) aged about 30 years and the accused appellants no. 1 and 2 Mohan and Shiam Lal are the residents of village Lakhanpur, P.S. Moosajhag, District Budaun. It is alleged that the appellant Shiam Lal is the neighbour and associate of the appellant no.1 Mohan. Rest of the accused-appellants no. 3 and 4 Sita Ram and Har Bilas are the real brothers and they are residents of village Kakora, P.S. Qadar Chowk, District Budaun. Both appellants no. 3 and 4 are alleged to be the bonded labourers of appellant no.1 Mohan. It is also alleged that at the time of occurrence the deceased was also working as a labourer under the employment of the appellant no.1 Mohan. 5. According to the prosecution case about 4 or 5 months before this incident, theft of 2 or 3 pipes allegedly took place from the tube-well of the appellant no.1. It is also alleged that at the time of occurrence the deceased was also working as a labourer under the employment of the appellant no.1 Mohan. 5. According to the prosecution case about 4 or 5 months before this incident, theft of 2 or 3 pipes allegedly took place from the tube-well of the appellant no.1. In this incident of theft the appellant no.1 suspected the complicity of the deceased, with whom some altercation was alleged to have taken place in which the appellant no.1 was said to have threatened the deceased “to realize the cost of stolen pipes from his skin”. Thereafter, on 26.01.1982 (Tuesday) at about noon, it was alleged by the informant that all the four accused persons arrived at the house of the informant in a group and took the deceased along with them on the pretext of thrashing sugarcane. The appellants going together with the deceased were alleged to be seen by Babu (PW-2) also. On the same evening, at about 6.00 p.m. one Natthu (PW-1), who was returning to his home, had seen the appellants on the well of appellant no.1 Mohan where they were beating the deceased and threatening him by saying “to realize the cost of the pipes from his skin”. Natthu (PW-1) at once informed this part of the incident to the informant Khamani (PW-4). On getting the said information, the informant, father of the deceased along with several other persons of his vicinity went to the place of the said incident to rescue his son, but his son was untraceable and the appellants, too, had disappeared from the village. 6. It is further stated in the F.I.R. that the informant searched his son on the following day i.e. 27.01.1982 and also till the afternoon of 28.01.1982 but neither the deceased nor the appellants were traceable. At last in the evening of 28.01.1982 at about 5.05 p.m. he lodged a verbal F.I.R. (Ex.K1) at Police Station Moosajhag, informing the police about disappearance and abduction of his son by the appellants, suspecting that the appellants might have committed murder of his son, which was registered as Case Crime No. 11 of 1982 under Section 364 IPC. 7. After lodging of the F.I.R. (Ex.K1), the investigation proceeding was initiated by the S.I. Moin Uddin (PW-7). 7. After lodging of the F.I.R. (Ex.K1), the investigation proceeding was initiated by the S.I. Moin Uddin (PW-7). Meanwhile, on 30.01.1982 it was informed by the informant Khamani that the dead body of his son (deceased) was found in a field of sugarcane of one Dori of the same village. On receiving this information, the Investigating Officer (PW-7) recovered the dead body from the said field, conducted inquest proceedings etc., sent the body for postmortem and after concluding the investigation he submitted the charge-sheet against all the appellants for the offences under Section 364/302 I.P.C. 8. In the case in hand, cognizance was taken directly in the Court of Special Sessions Judge, Budaun in accordance with the provisions of U.P. Dacoity Affected Areas Ordinance, 1982. The appellants were charged under Section 302 read with Section 34 IPC and also of the offence under Section 12 of the U.P. Ordinance No. 16, 1982 which the accused appellants denied and pleaded that they were not guilty. They further stated that they had been falsely implicated by the rival group of the village due to enmity and claimed to be tried. 9. In order to prove the charges, the prosecution has filed FIR (Ex.K1), injury report of witness Natthu (Ex.K2), postmortem report of the deceased (Ex.K3), site plans (Ex.K4, K5, K11), inquest report (Ex.K6), sketch of the dead body (Ex.K7), challan of the dead body (Ex. K8), letter to the C.M.O. (Ex. K9), sample seal (Ex. K10), recovery memo of blood stain and plain earth from the place from where the body was recovered (ex.K12), recovery memo of blood stained rope/sting (jyot) near the body of the deceased (Ex.13), supurdgi memo of torch of the witness Onkar (PW3) (Ex. K14) and the charge sheet (Ex. K15) on the record and also placed before the court material exhibits pertaining to the blood stained and plain earth as well as blood stained rope/sting (Jyot) Ex. I, II and III. 10. To bring home the guilt of the accused-appellants, the prosecution has examined total seven witnesses namely PW1 Natthu, PW2 Babu Singh, PW3 Onkar, PW4 Khamani informant, PW5 Dr. A.C. Sharma, PW6 Dr. O.P. Chhimpa and PW7 S.I. Moin Uddin, Investigating Officer in oral evidence and closed its evidence. 11. I, II and III. 10. To bring home the guilt of the accused-appellants, the prosecution has examined total seven witnesses namely PW1 Natthu, PW2 Babu Singh, PW3 Onkar, PW4 Khamani informant, PW5 Dr. A.C. Sharma, PW6 Dr. O.P. Chhimpa and PW7 S.I. Moin Uddin, Investigating Officer in oral evidence and closed its evidence. 11. The statements of the appellants under Section 313 Cr.P.C. were recorded after closing of the prosecution evidence in which they had denied the entire prosecution version and stated that they had been falsely implicated due to enmity and the politics of faction-ridden village, no evidence in defence was placed by the appellants. After hearing the arguments of the parties, the learned Trial Judge, by the impugned judgment and order, convicted all the present appellants and sentenced them as above. Feeling aggrieved, this appeal has been preferred by all the appellants. 12. We have heard Sri Abhishek Srivastava, learned Amicus Curiae for the surviving appellants namely, Sita Ram and Har Bilas and Sri Ajit Kumar Singh, learned AGA for the State as also carefully perused the evidence on record. 13. Learned amicus curiae, appearing for the surviving appellants no. 3 and 4 Sita Ram and Har Bilas, has not disputed the factum of homicidal death of the deceased and also the recovery of his dead body from a sugarcane field and interalia raised the following grounds as incriminating circumstances in this appeal; that the prosecution has utterly failed to prove the alleged motive behind the murder of the deceased and that the theory of “last seen together” either alive or with dead body of the deceased was not proved beyond reasonable doubt; because there were serious contradictions in the statements of the witnesses examined by the prosecution to establish these facts. He further contended that neither the dead body of the deceased nor the alleged weapons of assault were recovered from the possession of all or any of the appellants or on their pointing out. In addition to it, all the alleged circumstances, from which the conclusion of the guilt was drawn, could not be fully established by the cogent evidence and the chain of alleged circumstances could not be so complete as not to leave any reasonable ground for the conclusion pointing towards the guilt of the accused persons and not to any other hypothesis. 14. 14. The learned amicus curiae has further submitted that the prosecution has examined only interested/related as well as inimical (members of rival group in the village) witnesses, whose presence and their witnessing the above factums of last seen theory were wholly doubtful, unnatural and improbable, as such they are not worthy of reliance. The F.I.R. was lodged with an inordinate delay having no plausible explanation. According to him basically the FIR (Ex. K1) was antedated and was lodged actually after the dead body was recovered by the informant himself. It also appears from the evidence on record that the deceased Nankoo was murdered by some unknown person/persons and after recovery of his dead body the appellants had falsely been implicated, after due planning with inimical group of the village as well as with the aid of the local police. There is material inconsistency between the ocular and medical evidence. The investigation had been carried out in a most casual, defective and perfunctory manner. He also contended that it was the duty of the prosecution to clearly establish the close proximity between the last seen evidence and the recovery of the dead body but in the instant case there is a huge gap between the two. The entire prosecution story is concocted with a view to implicate the appellants. The surviving appellants, who are admittedly the bonded labourers of the appellant no.1 Mohan (alike the deceased Nankoo himself) against whom neither there was any specific motive for murder alleged or proved nor any specific role assigned or proved by the prosecution and as such they appear to be falsely roped in by the informant due to the above mentioned enmity of the rival group with the appellant no.1 Mohan. 15. Rebutting all the arguments advanced by the learned amicus curie, learned AGA for the State has submitted that all the circumstances concluding the chain have been proved by the cogent evidence and there is no break in the said chain of circumstances, which unerringly proved the guilt of the accused persons. The motive behind the murder of the deceased was consistently and cogently proved by the testimony of PW4 Khamani, father of the deceased. Undisputedly, the death of deceased Nankoo was proved to be homicidal, whose body was recovered by his father from a nearby sugarcane field having multiple injuries, several of them were caused by sharp-edged weapon. The motive behind the murder of the deceased was consistently and cogently proved by the testimony of PW4 Khamani, father of the deceased. Undisputedly, the death of deceased Nankoo was proved to be homicidal, whose body was recovered by his father from a nearby sugarcane field having multiple injuries, several of them were caused by sharp-edged weapon. According to him, the present case rests on the last seen theory and when by the consistent, unshaken testimonies of the witnesses of the prosecution PW1 to PW4 it was proved by the prosecution that on 26.01.1982 the deceased Nankoo was last seen alive or dead in the company/possession of the accused-appellants then it was for the appellants to explain as to what happened to the deceased and in the absence of any satisfactory explanation thereof, based on the concrete chain of the circumstantial evidence the learned trial Judge has rightly convicted and sentenced the appellants. Therefore, the impugned judgment and order warrants no interference. 16. The learned AGA for the State also contended that all the witnesses examined by the prosecution firmly establish each one of the circumstances specifically. They are trustworthy, their presence at different spot were probable and natural, having no material contradiction, embellishments or exaggeration in their testimonies, as such there is no substance in the arguments of the learned amicus curie. The alleged inconsistency in the ocular and medical evidence is misconceived. 17. Before entering into the merits of the appeal, we would like to remind ourselves the settled proposition of law, to be followed by the High court while exercising the appellate jurisdiction in criminal appeal, propounded by the Apex Court in the cases of Ishvarbhai Fuljibhai Patni Vs. State of Gujrat [1995 Supreme Court Cases (Crl) 222] and Lal Mandi Vs. State of West Bengal, [1995 Cr.LJ 2659 (Supreme Court), 2659] that the High Court, while exercising appellate jurisdiction in criminal appeal, is expected to appraise the credibility of evidence available on record and to draw the inference on the basis of material available on record and has not to be guided by the finding of acquittal or conviction recorded by the learned court below, bearing in mind the basis principle of criminal law regarding innocence of the accused. Bearing in mind the aforesaid proposition of law we have considered the rival contentions and carefully examined the impugned judgment and material on record. 18. Bearing in mind the aforesaid proposition of law we have considered the rival contentions and carefully examined the impugned judgment and material on record. 18. It is not in dispute that the conviction of the appellants no. 3 and 4 is based on the circumstantial evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with the innocence. Hence, we have to see how for the prosecution has fully and conclusively proved all the circumstances forming the chain without any gap and thereby able to prove its case beyond reasonable doubt. 19. Circumstantial Evidence: It is pertinent to mention here that in Tulshiram Sahadu Suryawanshi and another Vs. State of Maharashtra (2012) 10 SCC 373 the Apex Court after referring to its earlier decisions in the cases based on circumstantial evidence has laid down as under: “In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 , this Court after referring to various earlier decisions, formulated the following conditions to be fulfilled before a case against an accused can be said to be fully established based on circumstantial evidence:- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 20. Further, the Supreme Court, while dealing with a case of circumstantial evidence, in Nizam and others Vs. State of Rajasthan AIR 2015 SC 3430 has pointed out as follows: “The principles of circumstantial evidence have been reiterated by this Court in a plethora of cases. In Bodhraj @ Bodha and Ors. vs. State of Jammu & Kashmir, (2002) 8 SCC 45 ,wherein this court had quoted a number of judgments and held as under: “10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person....... It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person....... The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.” We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: (SCC pp. 206-07, para 21) “21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 , this court held as under: “12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.” The same principles were reiterated in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 , Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions.” 21. Keeping these principles in mind, we are now analyzing the circumstances relied on by the prosecution. On perusal of the record of the case it is manifest that the circumstances relied upon by the prosecution are as follows: I. Motive: all the accused persons have a motive to commit the murder of the deceased because the appellant no.1 Mohan had threatened the deceased 4-5 months before the incident for realizing the costs of his stolen pipes “from the skin of the deceased”. II. On 26.01.1982 at noon all the appellants took the deceased along with them from his house for thrashing sugarcane and on that date and time the deceased was “last seen going together” in the company of the appellants by the witnesses Khamani (PW4) and thereafter by Babu Singh (PW2). III. At about 6.00 p.m. on the same date the deceased was again last seen alive while being apprehended by the appellants, having sickles in their hands at the tube-well of the appellant no.1 Mohan. At that time all the appellants were extending threats to the deceased for realising the cost of the stolen pipes “from his skin” and were beating the deceased. At that time all the appellants were extending threats to the deceased for realising the cost of the stolen pipes “from his skin” and were beating the deceased. On the intervention by the witness Natthu (PW1), he also received one sickle blow on his forehead by the appellant Mohan and thereafter, the appellants tried to implicate one of the leaders of the rival village group by extending bribe to the witness, for the said injury which was inflicted to him. IV. On information of the aforementioned incident, the father of the deceased Khamani (PW4) went along with other members of his vicinity to rescue his son but they did not find the deceased or the appellants anywhere in the village and they were also not traceable till the recovery of the dead body of the deceased. V. In the night between 26/27.01.1982 all the appellants were last seen by the witness Onkar (PW3), carrying one dead body on “juya” for disposal. VI. The decomposed body of the deceased was recovered by his father (PW4), from sugarcane field of one Dori, having several marks of injuries on his body. VII. Since the date of incident, i.e., the evening of 26.01.1982 all the appellants were absconding till they surrendered in the Court on 05.02.1982. 22. Before examining how far the prosecution has succeeded in proving the aforementioned circumstances against the appellants, we would like to have a glance at the medical evidence in this case, which is in the form of statement of Dr. O.P.Chhimpa (PW6), postmortem report of the deceased (Ex.K3) prepared by him as well as the statement of Dr. A.C.Sharma (PW5) and the injury report of the witness Natthu (Ex.K2) prepared by him. Although the appellants have not disputed the homicidal death and the recovery of the injured dead body of the deceased Nankoo from the field of sugarcane of one Dori of the same village on 30.01.1982, even then as an appellate court we are duty bound to examine whether any offence was committed and if so, by whom. 23. Dr. O.P.Chhimpa (PW6) in his statement has stated that he had conducted the postmortem of the deceased on 31.01.1982 at 3.30 p.m.. The deceased was about 30 years of age and he had died within a span of 3-5 days before the date of postmortem examination. 23. Dr. O.P.Chhimpa (PW6) in his statement has stated that he had conducted the postmortem of the deceased on 31.01.1982 at 3.30 p.m.. The deceased was about 30 years of age and he had died within a span of 3-5 days before the date of postmortem examination. He found the following antemortem injuries on the body of the deceased: 1. Contusion 4 cm x 3 cm on right side head 4 cm above and posterior to ear. Right parietal bone fractured below injury. Muscle scalp and brain matter congested. Below injury, about 10 cm. clotted blood present. 2. Incised wound 5 cm x 1 cm x muscle deep on right side neck 3 cm post to pinna ear direction backward. Margins are clean cut. 3. Body of 6th cervical vertebra cut at middle. 4. Incised wound 3 cm x1 cm x bone deep on edge at right side of nose margin, clean cut 2 cm below bridge of nose. 5. Two circular contusion each of 2 cm, oval in shape, at front of the forehead. 3 cm above bridge of nose. 6. Contusion 3 cm x 2 cm on left side of face. 2 cm below left eye. 7. Incised wound 2 cm x 1 cm x muscle deep at the front of chin 2 cm below lip. 8. Incised wound 4 cm x .5 cm x deep cavity on left side chest at mid axilary line. 4 cm below axila. Margins are clean cut. 9. Incised wound 2 cm x .5 cm x muscle deep on front of left leg.n Anterior aspect. 3 cm above ankle joint. 10. Contusion 3 cm x 1 cm on dorsal aspect of right foot. 11. Contusion 2 cm x1 cm on right knee joint. 12. Contusion 3 cm x 2 cm on left knee joint. 13. Contusion 4 cm x 2 cm on posterior aspect of right elbow joint and on upper part of the arm. 14. Contusion 2 cm x 2 cm on dorsum aspect of right wrist joint. 15. Contusion 3 cm x 2 cm on left elbow joint on posterior aspect. 24. In the opinion of the said doctor the death of the deceased was due to antemortem injuries causing shock and haemorrhage. According to him the skin of the deceased was easily pealed off from the tissues. The entire abdomen and chest were absent but the back was present. 24. In the opinion of the said doctor the death of the deceased was due to antemortem injuries causing shock and haemorrhage. According to him the skin of the deceased was easily pealed off from the tissues. The entire abdomen and chest were absent but the back was present. Skin on the neck was eaten by animals, his penis and scrotum were swollen and teniar of ribs were also eaten by animals. His brain and its membranes were congested on right side and his right parietal bone was fractured. Body of 6th cerival vertebrae was cut in the middle. 1/3rd ribs were present, rest of skin was eaten by animals. Pleura, trachea, both lungs, pericardium and heart were absent. Blood vessels and peritoneum were eaten by animals. He proved the postmortem report of the deceased (Ex.K3). 25. The doctor (PW6) categorically proved that the incised wounds and the contusions found on the corpse appeared to be inflicted by sharp edged weapons and blunt objects, respectively. He further proved that it is possible that the death of the deceased could have been caused on the night of 26/27.01.1982. On cross-examination he has admitted that the death could have been possible in the night of 25/26.01.1982 also. He has specifically opined in his cross-examination that in the injury, inflicted by the sickle, the margins of the injury always appear to be irregular but this type of injury was not found in the body of the deceased. It has also been admitted by the said doctor that there appeared neither any infection nor granulation or pus in the injuries found on the body of the deceased. 26. Similarly, on analyzing the statement of the other doctor PW5 Dr. A.C.Sharma, who had examined the injured witness Natthu (PW1), we find that the said doctor in his statement has stated that he had examined the said injured Natthu (PW1) on 31.01.1982 at 10.45 a.m. and he found a single infected wound 1 cm x 0.5 cm scalp deep on the right side of the forehead, 3.5 cm above right eyebrow, with pus present in the wound. Little amount of granulation tissues were also present, edges oedematous, slough at places. According to his opinion, this wound/injury was simple in nature and was about 4-6 days old. Little amount of granulation tissues were also present, edges oedematous, slough at places. According to his opinion, this wound/injury was simple in nature and was about 4-6 days old. According to him, as the said injury was infected and the characters of the edges of the wound and the tissues in the wound are altered, therefore, no opinion could have been given regarding the nature of the object which had caused the said injury. He proved the aforesaid injury report (Ex. K2) and opined that this injury/wound could have been inflicted on 26.01.1982 at about 4-5 p.m. in the evening. During the cross-examination he has also stated that it could have been inflicted on 25.01.1982, too. 27. Admittedly, the case of the prosecution is entirely based on the circumstantial evidence. Therefore, it needs to be examined as to how far the prosecution has succeeded in proving the aforementioned circumstances (I to VII) cogently and firmly forming a chain so complete which consistently establishes a definite tendency unerringly pointing only towards the guilt of the accused persons/surviving appellants. Further, there should be no escape from the above conclusion and they should be incapable of any explanation or hypothesis other than that of the guilt of the accused persons/surviving appellants and are totally inconsistent with their innocence. 28. We carefully examined the first link of the aforementioned circumstances, i.e., the alleged motive of the incident. It appears from the record that based on the solitary testimony of the informant, Khamani/father of the deceased (PW4), the prosecution and the learned trial judge have concluded that in this case the prosecution has proved the alleged motive for murder of Nankoo. When we examine the evidence of the witness Khamani (PW4) and other documentary evidence placed by the prosecution in this regard, it clearly manifests that the solitary witness PW4 Khamani, informant has stated that about 3-4 months before this incident, few pipes were stolen from the tube-well of the appellant no.1 Mohan (since deceased) for which he had suspected the deceased and a quarrel had ensued between the said Mohan and the deceased Nankoo. During that quarrel it is alleged that the said appellant had threatened the deceased that he would realize the cost of his stolen pipes “from the skin of the deceased”. 29. Admittedly, this fact was also stated in the FIR (Ex.K1), which was verbally lodged by this witness (PW4). During that quarrel it is alleged that the said appellant had threatened the deceased that he would realize the cost of his stolen pipes “from the skin of the deceased”. 29. Admittedly, this fact was also stated in the FIR (Ex.K1), which was verbally lodged by this witness (PW4). The perusal of this FIR (Ex.K1) itself shows that the deceased was alleged to be seen together with the appellants on 26.01.1982. The distance between the place of incidents and the police station is 7 Kms. On the date of incident itself at about 7-8 p.m. in the evening the witness/informant had got the information that the accused persons/appellants having sickles in their hands had apprehended the accused and were beating him but it is surprising that he did not make any effort to lodge prompt FIR and a highly belated FIR was lodged after about two days of the incident. The reasons for the inordinate delay in lodging the FIR neither appears to be sufficient nor proved by any cogent evidence; rather it appears that this explanation that he was relentlessly searching his missing son and the appellants, is concocted after due confabulations and deliberations with some ulterior motive. 30. In cross-examination the said witness Khamani (PW4) has accepted that the said quarrel with Mohan subsequently ended in compromise then and there with the intervention of some villagers. Under the compromise, Nankoo (deceased) started working as labourer in the employment of the appellant no.1 Mohan, but this fact was neither stated in the FIR nor stated by him during investigation. There is no cogent explanation for nondisclosure of this subsequent fact. Therefore, believing through the informant that the present incident was committed by the accused persons on the aforementioned motive appears to be far-fetched. 31. Moreover, this factum is neither corroborated by any material witness nor proved by any documentary evidence. The evidence of the witness Khamani (PW4) on this point is mere hearsay. He was neither present at the time of the alleged quarrel nor when the alleged compromise took place. He himself has admitted during cross-examination that the alleged quarrel took place on the road of the village and at that time he was not present. He also does not know who had made intervention during the said quarrel. As such his evidence on the point of alleged motive is not acceptable. He himself has admitted during cross-examination that the alleged quarrel took place on the road of the village and at that time he was not present. He also does not know who had made intervention during the said quarrel. As such his evidence on the point of alleged motive is not acceptable. No other witness has been examined by the prosecution to prove this alleged factum of motive. Also no cogent explanation was given by the prosecution for non-examination of any material witness in this regard. Therefore, it appears that the learned trial judge has erred in accepting the hearsay evidence of this solitary witness, regarding the motive, on the mere ground that this fact was mentioned in the FIR (Ex.K1) when the body of the deceased was not recovered as corroborative piece of evidence. 32. It is also relevant to mention here that the prosecution was unable to prove any motive or factum of prior enmity against the surviving appellants Sita Ram and Har Bilas. This witness Khamani (PW4) has accepted that the surviving appellants were also labourers and were residents of another village Kakora, which is far away from his village. He admitted that there was no enmity between the said appellants and his son (deceased) prior to and at the time of the incident. Admitting that his son was never annoyed with the said appellants, he vehemently denied knowledge of any quarrel between them. According to him both the appellants were bonded labourers of the appellant Mohan since about 2-3 years prior to this incident, but his son (deceased) was not a bonded labour of the appellant Mohan; he had worked there along with the surviving appellants only 10-15 times before the incident. The deceased also never told him about any quarrel between them. These statements of the witness are testimony to the fact that the surviving appellants had no personal enemies or motive for murder against Nankoo, son of the informant. 33. The learned trial Judge has also erred in accepting the aforementioned motive on the ground that there is no other alternative suggestion of either motive or manner involved in the murder of the deceased. It is not obligatory upon the appellants to prove their innocence or any other alternative motive/manner of crime. The prosecution has to stand on its own legs. It is not obligatory upon the appellants to prove their innocence or any other alternative motive/manner of crime. The prosecution has to stand on its own legs. The infirmity in the defence, if any, would not give any benefit to the prosecution, therefore, we are of the view that the finding of the learned trial judge on the question of motive (first circumstance) is not tenable and the prosecution has utterly failed to prove the alleged motive. 34. It is a settled principle of law that if the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to the prosecution case. But even if the prosecution has not been able to prove the motive, as in this case, that will not be a ground to throw away the prosecution case. Absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution. 35. In the case in hand, the prosecution story relies upon the “last seen together” theory (second, third, fourth and seventh parts of the circumstances) as its pivotal evidence which is now herein examined. The Trial Court has also convicted the appellants based on the said “last seen theory” finding it as an important link in the chain of circumstances pointing towards the guilt of the appellants and further that the appellants have not offered a reasonable and probable explanation as to the cause of death of the deceased under Section 106 of the Evidence Act. 36. To prove the aforementioned circumstances, on the basis of “last seen together” theory, the prosecution has examined the informant (PW4), Babu (PW2) and Natthu (PW1). The learned trial judge has also found this fact proved on the basis of the said testimonies that on 26.01.1982 the deceased was last seen alive with the appellants. 37. Reiterating the version of FIR, in his testimony PW4 Khamani has tried to show that on the date of the incident, i.e., on 26.01.1982 at noon the appellants picked up the deceased Nankoo from his house on the pretext of thrashing sugarcane and all the witnesses were armed with sickles. He further stated that his son Nankoo never returned thereafter. The witness Babu (PW2) of his village also told him on the same day that he had also seen Nankoo in the company of the appellants. He further stated that his son Nankoo never returned thereafter. The witness Babu (PW2) of his village also told him on the same day that he had also seen Nankoo in the company of the appellants. He further admitted that thereafter at 8-9 p.m. Natthu (PW1) of his village had given him definite information that the appellants having sickles in their hands had apprehended his son Nankoo and were quarreling at the tube-well of the appellant Mohan and when Natthu tried to save him, Mohan inflicted injury on the forehead of Natthu with his sickle. He had also seen the said injury of the witness Natthu. On getting this information he along with other villagers of his vicinity had visited the tube-well of the appellant Mohan but they did not find Nankoo there. They also searched for Nankoo and the appellants in the appellants' house but none of the accused persons were found there and remained untraceable till they surrendered in the Court. He thereafter, searched for his son Nankoo (deceased) at all the known places of the accused persons as well as the places of his own relatives but to no avail. 38. When we carefully analyse the statement of PW4 Khamani, informant, it appears that his entire story is improbable and cooked up. Further, the witness is untrustworthy. His evidence appears to be shaky and full of doubts. Further, when there was a definite information on 26.01.1982 itself that his son was seen apprehended in the custody of the appellants, who were armed with sickles and were beating his son in which the witness Natthu (PW1) also got injured then what prompted him to search for his son for about 2 days (before allegedly lodging of the FIR {Ex.K1}) in the places of his other relatives and other places of the appellants. There is no cogent explanation on this point as well as on the point of lodging of the FIR with inordinate delay, which casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. 39. It is strange to note that even the scribe/head moharrir who had written the FIR (Ex.K1) on the dictation of the informant (PW4) and corresponding General Diary has also not been examined by the prosecution. 40. 39. It is strange to note that even the scribe/head moharrir who had written the FIR (Ex.K1) on the dictation of the informant (PW4) and corresponding General Diary has also not been examined by the prosecution. 40. It is also not satisfying to the conscience of this Court that when the deceased was in the employment of the appellant Mohan before the incident why all the appellants would visit the house of the informant for calling him. These second, fourth and seventh parts of the circumstances have also not been corroborated by any other witness, examined by the prosecution. Even the persons of the vicinity of the informant, who had allegedly accompanied him and whom he had named, have also not been examined. Therefore, in our opinion, evidence adduced by the informant (PW4) alone on these facts, without any corroboration, cannot be made the basis of conviction in this case, based on circumstantial evidence. 41. On scrutiny of the evidence of another witness PW2 Babu Singh on this point, it appears that he has tried to show that on the date of the incident at noon he had seen the deceased in the company of four appellants at a different place in the village, who had proceeded towards the tube-well of the appellant Mohan and the deceased was not seen thereafter. In the cross-examination he clearly admitted that his village was mired with village rivalry and there were two parties one led by Natthu Singh (PW1) etc. and another led by the appellant Mohan etc. According to him 'Vaidya Ji' of his village is not in the party of Natthu Singh (PW1), which clearly demonstrates that the witness Natthu Singh (PW1) and the appellants are members of the rival parties and the witness (PW2) is also in the party of Natthu Singh (PW1). The witness Babu Singh (PW2) has further admitted that the deceased Nankoo was in the regular employment of the appellant Mohan as labour for about past 3-4 months. Contradicting the statement of Natthu Singh (PW1) he admitted that in the night also someone looked after the tube-wells and near the tube-well of appellant Mohan, several tube-wells were located. He also admitted that the surviving appellants Sita Ram and Har Bilas are the residents of village Kakora and were in the employment of appellant Mohan since 3-4 years prior to the incident. He also admitted that the surviving appellants Sita Ram and Har Bilas are the residents of village Kakora and were in the employment of appellant Mohan since 3-4 years prior to the incident. He further stated that the witness Natthu (PW1) was village pradhan having 100 Bighas of agricultural land and so was 'Vaidya Ji' with 50 Bighas of agricultural land. The surviving appellants Sita Ram and Har Bilas never worked as labourers in their field because they were bonded labourers of appellant Mohan. During investigation or in the trial this witness has not clarified from which field or place he was coming when he had allegedly seen the deceased in the company of the appellants. 42. In the evidence given by PW1 Natthu, who is also a solitary witness about the third circumstance, he stated that he had seen the appellants having sickles in their hands apprehending the deceased Nankoo on the said date at about 6.00 p.m. and all the appellants were threatening him that the costs of the stolen pipes would be “recovered from his skin”. Further, when he tired to save the deceased, the appellant Mohan inflicted injury on the forehead of the witness (PW1) with his sickle. He also tried to prove that the appellant Mohan tried to bargain with him with a view to implicate one 'Vaidya Ji' of his village for the said injury caused on the witness (PW1) because there was enmity between the party of 'Vaidya Ji' and the party of the appellant Mohan, but he refused and he left for his home. At about 8-9 p.m. he informed Khamani, father of the deceased about the aforementioned incident. Being a solitary witness of this fact there is no corroboration of his evidence. 43. In the cross-examination witness (PW1) has admitted that at the time of the said incident there was no light at all. The date and time of the alleged incident also manifest this fact. There is no explanation in his evidence as to why he had not filed any FIR and also why he had not taken any medical treatment on the date of the alleged incident or the next day of the incident. The date and time of the alleged incident also manifest this fact. There is no explanation in his evidence as to why he had not filed any FIR and also why he had not taken any medical treatment on the date of the alleged incident or the next day of the incident. His evidence and the record show that he was medically examined after the date of alleged recovery of the dead body, i.e., on 31.01.1982 whereas he admitted that when the police and Investigating Officer came to his village and recorded his evidence they saw his said injury. According to PW7 S.I. Moin Uddin he had recorded the statement of this witness on 28.01.1982 but why his injury was not examined on that date or the delay of 4-5 days in examining his injury could not be explained by them, which again casts a shadow of doubt on the evidence of Natthu (PW1). 44. In this regard, we examined the said injury report of Natthu (Ex K2) and the evidence of Dr. A.C. Sharma, Medical Officer (PW5), who had categorically stated that at the time of the medical examination, the alleged injury of Natthu (PW1) was in the shape of a wound having pus and was swollen. Little amount of granulation tissue was also present and slough were present at some places. He opined that as the edges of the said wound and the tissue in the wound were altered, he could not given any opinion about the nature of the object which had caused the injury and the weapon used. According to him this could have been 4-5 days old, in his opinion it could have been inflicted on the alleged date of the incident i.e. 26.01.1982 or may be on 25.01.1982. Therefore, this medical evidence also does not corroborate the ocular evidence of Natthu (PW1) and moreover it does not prove that this injury was actually caused in the alleged incident narrated by him. As such his evidence on this part of alleged incident with regard to factum of “last seen together” cannot be believed and therefore, is not corroborating the evidence of the informant (PW4). As such his evidence on this part of alleged incident with regard to factum of “last seen together” cannot be believed and therefore, is not corroborating the evidence of the informant (PW4). His statement that the appellants were persuading him for implicating one 'Vaidya Ji' of his village on the pretext of his said injury clearly points towards the faction-ridden village rivalry, which is admitted by Babu Singh (PW2) and the cooked up theory of “last seen together”. His presence on the alleged spot and witnessing the said incident also appears to be concocted. He did not prove that there was adequate source of light. He admitted that near the tube-well of Mohan appellant, where the said part of the incident is alleged to have taken place, tube-wells of Vijendra Singh, Ramesh, Prem Pal, Mahipal, Tejpal and Khem Karan were present but none out of them were ever inquired by the Investigating Officer nor examined. Also he (PW1) did not assign any role or act to the surviving appellants Sita Ram and Har Bilas in the said incident. As such it appears that the evidence of this witness is also of no value in proving the factum of “last seen theory”. 45. On careful examination of the entire deposition of the aforementioned three witnesses in the light of the injury report (Ex. K2) as well as Doctor's evidence (PW5) a reasonable doubt arose about their credibility. They appear to be untrustworthy and got-up witnesses, devoid of definite and conclusive nature of evidence in their testimonies. It also appears that the entire prosecution story has been cooked up in connivance with the leaders of the rival party of the village and the police with a view to implicate the appellants. All this goes on to create a serious doubt about the said "last seen together" theory and the above circumstances placed by the prosecution. The conclusion contrary to it arrived at by the learned Trial Judge in this regard is arbitrary and appears to be based on surmises and conjectures. 46. Now we deal with the fifth part of the circumstance placed by the prosecution. To prove this part, the prosecution has examined solitary witness PW3 Onkar, who is the resident of another village, situated at 8-9 Kose (12-1/2 -13-1/2 Kms.) from the village, where he noticed the incident. 46. Now we deal with the fifth part of the circumstance placed by the prosecution. To prove this part, the prosecution has examined solitary witness PW3 Onkar, who is the resident of another village, situated at 8-9 Kose (12-1/2 -13-1/2 Kms.) from the village, where he noticed the incident. On scrutiny of his evidence it is evident that his presence on the spot, from where he is alleged to have seen the appellants carrying the dead body of Nankoo (deceased), appears to be doubtful. He has admitted that he is closely related with the deceased although Khamani informant (PW4) has denied this fact for reasons best known to him (PW4). This witness (PW3) has further categorically stated that as the father of the deceased Nankoo/Khamani had told him that he (PW4) had arrayed him as a witness in the case and when police or anybody would ask him about the aforementioned facts he should say the same and so he had stated the aforementioned facts before the Court. About his presence in the village of incident, he told in cross-examination that on the date of the incident at about 3 a.m. in the dark night, when he was working at the tube-well of the Sarpanch of village Nagla Sarbi, Narayan Singh, he saw the incident. He admitted that he had worked only for one year before the incident and that he did not know who was living in the house of Narayan Singh and the names of any of his family members. He did not even know about the boundaries of the said tube-well and the area of that field. He also did not know about the family members of the accused appellants Shiam Lal and Mohan (since deceased) and their neighbours. 47. According to PW3, he had seen the body of Nankoo in the light of a torch but the said torch was neither placed before the Court nor proved by the witness himself or by the Investigating Officer (PW7). This witness tried to prove that a threat was given to him by the deceased appellants but it was found incorrect, during recording of the evidence. He tried to show that he was siding with the deceased Nankoo because he was of the same caste and also a relative and that Sarpanch Narayan Singh was also siding with the appellants because they were of the same caste. He tried to show that he was siding with the deceased Nankoo because he was of the same caste and also a relative and that Sarpanch Narayan Singh was also siding with the appellants because they were of the same caste. Hence, he had left the job. According to the Investigating Officer (PW7) statement of this witness was recorded by him on 11.3.1982, i.e., about one and a half months after the incident which also casts doubt on the evidence of this witness and he, too, appears to be a got-up witness. Contrary to the said statement of the Investigating Officer (PW7), the witness has denied the recording of any statement by the Investigating Officer. According to him, after about one and a half months of this incident, he conveyed this information (fifth part of the circumstances) to the father of the deceased Khamani (PW4) and before that he did not divulge this information to any one. He admitted that only Khamani, the informant had told him that he had reported against the surviving appellants also. He did not ever visit the place of appellant Mohan Singh. 48. In view of the above, it is amply clear that this solitary witness (PW3) of this part of the circumstance also appears to be unreliable. His presence on the alleged spot and witnessing the alleged crime is quite doubtful. The testimony of this witness cannot be relied upon and made basis of the fifth part of the said circumstances. The finding contrary to it given by the learned Trial Judge is not convincing at all. 49. The last (sixth) part of the circumstance in this case is that the dead body of the deceased was recovered on 30.01.1982 in a critically injured and decomposed condition by the informant (PW4) himself from the sugarcane field of one Dori of the same village, the information of which was also given by him to the police and was recorded in the General Diary of the date at Report No. 24 at 14.30 hours. However, it appears from the record that strangely this copy of the General Diary has also not been proved by the prosecution. However, it appears from the record that strangely this copy of the General Diary has also not been proved by the prosecution. Based on this fact the prosecution pressed hard that the appellants and the deceased were last seen together on 26.01.1982 (although as discussed above this fact has not been proved due to absence of definite and conclusive nature of evidence) and thereafter the deceased was never seen again and his dead body was recovered on 30.01.1982, i.e., after 4 days 5 nights. But in our opinion, in view of the long time gap between the deceased found missing and the dead body that was recovered, possibility of others intervening cannot be ruled out. In the absence of definite and conclusive evidence that the appellants and the deceased were “last seen together” and when the time gap is long between the two, there is no reason to conclude that the appellants are responsible and are guilty of committing the murder of deceased Nankoo. 50. Based on the principles of law laid down in Bodhraj @ Bodha and others Vs. State of Jammu & Kashmir, 2002 (8) SCC 45 and Krishnan @ Ramasamy and others Vs. State of Tamil Nadu, 2014 (12) SCC 279 , the Apex Court recently in a similar matter in the case of State of Karnatka Vs. Chand Basha 2016 (1) SCC 501 held that: “it will be hazardous come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together”. Therefore, it is a settled principle of law that where the said time gap is long, it would be unsafe to base the conviction on the “last seen together” theory; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution, if any. In the case in hand, from the analysis of the facts and evidence with due care and caution, we find that neither there is any definite and conclusive nature of evidence nor other corroborative piece of evidence for each of the alleged circumstances (I to VII) of “last seen theory”. 51. The Apex Court in Bodhraj @ Bodha and others (supra) held that: “31. 51. The Apex Court in Bodhraj @ Bodha and others (supra) held that: “31. the last seen theory comes into play where the 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.” 52. Similarly, affirming the above ratio, the Supreme Court in Krishnan @ Ramasamy and others Vs. State of Tamil Nadu (supra) has observed as follows: “23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4.4.2004 at Vadakkumelur village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the bore well by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.” 53. Moreover, in Nizam and others Vs. State of Rajasthan 2016 (1) SCC 550 the Supreme Court has observed as follows: “it is well settled by this Court that it is not prudent to base the conviction solely on “Last seen theory”. “Last seen theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen”. 54. There also arises a reasonable doubt upon the conduct of the father of the deceased, informant Khamani (PW4) who knew that his son Nankoo was missing since 26.01.1982 and was not only apprehended by the appellants but also beaten by the appellants having sickles in their hands and yet he did not lodge any report to the police for about 2 days, which is against the normal human conduct. 55. In the case in hand, neither the weapons of murder were recovered on the pointing out of the appellants nor the dead body of the deceased was recovered on their pointing out. None of the circumstances relied upon by the prosecution and accepted by the learned trial judge can be said to have been pointing only towards the guilt of the appellants and no other inference can be drawn. None of the circumstances relied upon by the prosecution and accepted by the learned trial judge can be said to have been pointing only towards the guilt of the appellants and no other inference can be drawn. Therefore, in our view, the appellants must get the benefit of doubt. 56. It is also significant to note at this juncture that there were at least six injuries found on the face/head of the dead body which also find corroboration from the inquest report and sketch of the dead body (Ex. K6 and K7). No clothes were found except underwear on the dead body. Clothes shown in the statement of the informant (PW4) were not enumerated in the FIR. In the entire story of the prosecution it was alleged that the appellants were having sickles in their hands and no other weapon was assigned but on the dead body several incised wounds as well as contusions were found. During cross-examination PW6 Dr. O.P.Chhimpa has categorically admitted that these incised wounds were not found inflicted by sickles because the sickles caused irregular margin in the injury, which were not present on the said injuries of the dead body of the deceased. As such the theory of infliction of injury by sickles to the deceased also does not find corroboration from the medical evidence. This doctor (PW6) has further admitted that in the injuries found on the dead body of the deceased there was no infection or granulation or pus. This fact also goes to show that the date and time of the wounds on the body of the deceased and the wound of the witness Natthu (PW1) are altogether different. This fact also creates doubt on the prosecution story and strengthens the arguments of the learned amicus curiae. 57. The testimony of PW6 Dr. O.P.Chhimpa and the Investigating Officer, S.I. Moin Uddin (PW7) along with the corresponding medical and police documents, i.e., postmortem report (Ex K3) and inquest report as well as the sketch of the dead body (Ex K6 and K7) manifest that the dead body was beyond recognition and the underwear which is alleged to be there on the dead body was not shown in the FIR. Despite these facts no measure was taken by the Investigating Officer to take recourse to proper identification of the dead body. Despite these facts no measure was taken by the Investigating Officer to take recourse to proper identification of the dead body. It appears that it was presumed by the police and the informant that it was the dead body of the deceased Nankoo. 58. The Investigating proceeding in this case appears to be biased, tainted and conducted in a perfunctory manner. It is stated by the prosecution witnesses of the alleged circumstances (PW1 to PW4) and the Investigating Officer (PW7) himself that the Investigating Officer had visited the village on the date of lodging of the FIR, i.e., 28.01.1982 and recorded the statements of some of the witnesses and thereafter he regularly visited the village till the recovery of the dead body and so on. But till the recovery of the dead body on 30.01.1982 he did not even try to trace the appellants or conduct any search of their houses. The Investigating Officer has also failed to record the statement of material witness Dori, from whose field the dead body of the deceased is alleged to be recovered by the informant (PW4). He also did not get the witness Natthu (PW1) medically examined on 28.01.1982, 29.01.1982 or 30.01.1982. Copies of General Diary filed by the prosecution during the trial have not been proved by the Investigating Officer (PW7) himself or by any other material witness. 59. Further, the Investigating Officer (PW7) recorded the statement of the witness Onkar (PW3), alleged to be the witness of the fifth part of the circumstance, after a gap of about one and a half months. The alleged torch through the light of which he (PW3) allegedly witnessed the said circumstance, was also not placed before the Trial Court by him. He did not try to record the evidence of those persons whose tube-wells were in the vicinity of the appellant Mohan or the persons residing in the vicinity of the informant (PW4) and neither accompanied him in the alleged search. He even showed his inability to illustrate the position of the structures which were present in the vicinity of the alleged place of incident. His site plans are not in detail. He had not sent the recovered blood samples for medical examination. He even showed his inability to illustrate the position of the structures which were present in the vicinity of the alleged place of incident. His site plans are not in detail. He had not sent the recovered blood samples for medical examination. He has not given any cogent explanation in his evidence about the aforesaid material omissions and commissions which provides ground to the argument of the learned amicus curiae that the FIR, in the case in hand, was cooked up and lodged ante-dated and the investigation proceeding as well as medical examinations, i.e., entire police and medical proceedings, were actually started after the recovery of the dead body of the deceased, on 30.01.1982 in the evening, after instigation and due deliberations with leaders of the rival village party of the appellants and the local police, with a view to falsely implicate the appellants in this case and which cannot be ruled out. 60. In view of the above discussions we are of the opinion that there are many apparent lapses in the evidence of the prosecution as well as in the investigation proceedings and also there are some missing links in the alleged chain of circumstances which are as follows:- (i) No recovery of sickles/weapons alleged. (ii) The nature of the injuries/wounds found on the dead body shows that none of the injuries received by the deceased was from the infliction of the sickle. (iii) The dead body of the deceased was neither recovered from the possession of the appellants nor on their pointing out. (iv) No proper identification of the dead body had been conducted. (v) No proper explanation given for the presence of the witnesses at the time of the alleged incidents pertaining to the different circumstances. (vi) No proper explanation given for the absence of the clothes from the dead body of the deceased. (vii) No corroboration of any of the circumstances alleged by the witnesses devoid of definite positive and conclusive naturre of evidence, by any other reliable witness. (viii) It is admitted that the faction-ridden village in question was mired by the village rivalry; one party was of the deceased appellant Mohan (and Shyam Lal) etc. (vii) No corroboration of any of the circumstances alleged by the witnesses devoid of definite positive and conclusive naturre of evidence, by any other reliable witness. (viii) It is admitted that the faction-ridden village in question was mired by the village rivalry; one party was of the deceased appellant Mohan (and Shyam Lal) etc. in whose employment the surviving appellants Sita Ram and Har Bilas were working and the other party was of the witnesses Natthu (PW1), Babu (PW2), on whose connivance the informant (PW4) had lodged the present ante-dated FIR and they are all got-up witnesses. (ix) The witness Onkar (PW3) is also an after thought and a got-up witness. (x) The highly belated FIR and the medical examination of Natthu (PW1), for which no cogent explanation was given by the prosecution. Thus we find many loopholes in the case of the prosecution. 61. Further, it is a settled principle of law that Section 106 of the Evidence Act does not shift the burden of proof in a criminal trial, which is always upon the prosecution. Be it noted, that only if the prosecution has succeeded in proving the facts by the definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act. (Vikramajit Singh alias Vicky Vs. State of Punjab 2007 Crl. L.J. 1000 (Supreme Court)). 62. It is clear from the discussion made above that for establishing the guilt on the basis of the circumstantial evidence, the circumstances relied upon by the prosecution need to be firmly established and the circumstances should form a complete chain establishing the guilt of the accused. In the case in hand, the chain of the circumstances relied upon by the prosecution, cannot be said to be firm and forming a complete chain establishing the guilt of the appellants only and suggesting no other inference. In the case in hand, the chain of the circumstances relied upon by the prosecution, cannot be said to be firm and forming a complete chain establishing the guilt of the appellants only and suggesting no other inference. Therefore, none of the circumstances relied upon by the prosecution and accepted by the court below can be said to be fully proved and conclusive in nature, forming a chain without any gap, which pointing only to the guilt of the appellants and give no other inference as such invoking the provisions under Section 106 of the Evidence Act in this case for conviction is a misconception and against law. It appears that Trial Court failed to appreciate the discrepancies occurring in the prosecution evidence. Hence the judgment passed by the trial court is based on complete misreading of the case and misconception of the legal positions relevant to the matter and the learned judge has not considered the evidence on record in the right perspective. 63. Thus, in the light of the above discussions, we are not in agreement with the finding and conclusions arrived at by the learned trial judge and are satisfied that the conviction of the appellants in this case cannot be sustained and the appeal ought to be allowed. Accordingly, the conviction of the surviving appellants Sita Ram and Har Bilas for the offences under Section 302 read with Section 34 IPC is set aside and consequently, the appeal is allowed. 64. The appellants are in jail. From perusal of the record, it appears that it has been reported by the Chief Judicial Magistrate, Budaun vide his report dated 10.02.2014 that appellant no. 3, Sita Ram has become blind and another appellant no.4 Har Bilas is critically ill during their detention in jail. It is very unfortunate. Therefore, while directing the concerned jail authority to get the surviving appellants set at liberty forthwith, if not required in any other case, we are compelled to direct the State Government to take recourse to proper medical treatment and their rehabilitation in society, if they or their family members are in capable to provide. 65. Let copies of this order be sent to the concerned Court through Sessions Judge, Budaun and to the Chief Secretary, Govt. of U.P. Lucknow for compliance within ten days. The concerned Court will thereafter report the compliance to this Court within a month. ———————