JUDGMENT : (Per Hon'ble Anil Kumar Srivastava-II,J.) The instant appeal has arisen against the judgment and order dated 29.10.2015 passed by learned Additional Sessions Judge, Court No.2, Lakhimpur Kheri in Sessions Trial No.547/2009 (State v. Majeed @ Lafante) arising out of case crime no.306 of 2009 under Sections 302 I.P.C., P.S.Dhaurhara, District Kheri, whereby the trial court has convicted the accused-appellant under Section 302 I.P.C. and sentenced him to imprisonment for life and fine of Rs.40,000/-; in default of payment of fine, imprisonment for six months was also awarded. According to the prosecution version, Jokhan(deceased) was brother of the complainant, Alisher, son of Nabi, resident of Village Moorhi, P.S.Isa Nagar, District Lakhimpur Kheri. Jokhan was married in the house of Alauddin. Shakuntala, sister of complainant Alisher was married to accused Majeed @ Lafante, son of Alauddin. Jokhan was residing in his in-law's house for the last fifty days. On 31.3.2009 at about 12:00 noon, accused Majeed @ Lafante had some altercation with his wife Shakuntala. Consequently, he divorced his wife. Then, Jokhan went to Village Moorhi along with Shakuntala. On the fateful day, i.e. 1.4.2009, complainant, his brother Jokhan and nephew Islam went to the house of Majeed @ Lafante to discuss the matter. At about 5:30 P.M. when Jokhan was going back after discussing the matter with Majeed @ Lafante, accused appellant Majeed @ Lafante, in front of house of Sriram Dhobi, attacked Jokhan by 'Phawra'. Complainant and his nephew Islam were behind Jokhan. They have seen the occurrence. First information report of the incident was lodged by complainant at P.S.Dhaurhara on 1.4.2009 at 6:45 P.M. Case under Section 302 I.P.C. was registered at case crime no.306 of 2009. Investigation was handed over to S.H.O. Devi Dayal Singh. Investigation Officer prepared the inquest memo on 1.4.2009 at 8:15 P.M. Dead body was sealed and sent for post-mortem, which was conducted on 2.4.2009 at 12:45 P.M.; site plan was prepared; blood stained and plain earth was recovered from the spot. On 2.4.2009 at 4:00 A.M., accused Majeed @ Lafante was arrested along with 'Phawra' by the investigating officer. The recovered articles were sent to Forensic Science Laboratory wherein it was reported that it contained blood stains of human blood. Subsequently, charge sheet under Section 302 I.P.C. was submitted against the accused. Accused was charged under Section 302 I.P.C. He denied the charges and claimed trial. The recovered articles were sent to Forensic Science Laboratory wherein it was reported that it contained blood stains of human blood. Subsequently, charge sheet under Section 302 I.P.C. was submitted against the accused. Accused was charged under Section 302 I.P.C. He denied the charges and claimed trial. In order to prove its case, prosecution has produced P.W.1 Alisher (eye witness); P.W.2 Constable Bachu Lal (formal witness); P.W.3 Dr. S.P. Verma, who has conducted the post-mortem of the deceased on 2.4.2009 and found the following ante-mortem injuries on the body of the deceased:- (1) incised wound 15.00 c.m. X 1.00 c.m. X bone deep - left side face 4.00 c.m. below left ear underlying muscles found cut - upper jaw and lower jaw on left side fractured. (2) Multiple incised wound in an area of 24.00 c.m. X 10.00 c.m. through neck cut, underlying muscles tissue, trachea oesophagus & spinal cord and 2nd cervical vertebra cut. Furee tags are present over wounds. According to the doctor cause of death was shock and haemorrhage as a result of ante-mortem injuries. He opined that these injuries could have been caused on 1.4.2009 at 5:00 P.M. by some sharp-edged weapon, like 'Phawra'. P.W. 4 Islam is the eye witness; P.W.5 Inspector Devi Dayal Singh is the Investigating Officer who submitted charge sheet against accused. Statement of accused under Section 313 Cr.P.C. was recorded wherein he denied the allegations and stated that Shakuntala was married to him while his sister Raiza was married to Jokhan. In defence, Shakuntala was produced as D.W.1. Learned trial court has appreciated the evidence on record and recorded the finding of guilt against the accused holding that prosecution has successfully proved the charge against the accused. Evidence of P.W.1 Alisher and P.W.4 Islam was found to be trustworthy. Accordingly, learned trial curt convicted and sentenced the accused. We have heard Sri Vishnu Swaroop Srivastava, learned Amicus Curiae for the accused-appellant and Smt. Madhulika Yadav, learned Additional Government Advocate and perused the evidence on record. Learned amicus curiae appearing for the accused-appellant submitted that the prosecution has failed to prove guilt against the accused beyond doubt. Evidence of P.W.1 Alisher and P.W.4 Islam is not wholly reliable, rather unreliable. Learned amicus curiae appearing for the accused-appellant submitted that the prosecution has failed to prove guilt against the accused beyond doubt. Evidence of P.W.1 Alisher and P.W.4 Islam is not wholly reliable, rather unreliable. It has come in evidence that after committing crime accused had beheaded the deceased and ran away with the head of the deceased but, in the inquest proceedings, head was found near the body. How it came back when the accused had taken away the same with him? It is further submitted that presence of the two witnesses at the spot is doubtful. Their evidence does not find support from medical evidence. Both witnesses were inimical to accused. Arrest and recovery of 'Phawra' is also not proved, rather, according to the recovery memo accused was arrested on 2.4.2009 at about 4:00 A.M., while, according to the witnesses, he was arrested in the evening of 1.4.2009 itself. Per contra, learned Additional Government Advocate submitted that the prosecution has successfully proved the charges against the accused. Evidence of P.W.1 Alisher and P.W.4 Islam is wholly reliable, although, there might be some deficiency in the investigation but that cannot shatter the prosecution case. It might be a case of defective investigation and mere defect in investigation cannot be a ground to disbelieve the whole prosecution case. We have considered the submissions made by learned counsel for the parties and gone through the material on record. According to the F.I.R. the incident occurred at 5:30 P.M., while the deceased was going back to his house; at that time, the accused attacked him by 'Phawra'. According to P.W.1, when he, along with Islam, reached at the spot, on hearing the shrieks of the deceased, accused was attacking the deceased by 'Phawra'. Neck of the deceased was beheaded from the body. After seeing the witnesses, accused ran away from the scene of occurrence along with 'Phawra' and beheaded neck. This statement is in the examination-in-chief itself. It means that the prosecution is relying upon this fact. Further in the cross-examination, he admits that the accused ran away with head of the deceased; rest of the body was lying at the spot. While P.W.4 has stated that when he, along with Alisher, reached at the spot, accused was attacking the deceased with 'Phawra'; on seeing them, he ran away towards southern side. Further in the cross-examination, he admits that the accused ran away with head of the deceased; rest of the body was lying at the spot. While P.W.4 has stated that when he, along with Alisher, reached at the spot, accused was attacking the deceased with 'Phawra'; on seeing them, he ran away towards southern side. These two witnesses are also the witness of inquest wherein it is mentioned that head was lying separately near the body. In post-mortem the doctor found only one sealed bundle in which the dead body was sealed. P.W.1, Alisher, complainant has further gone to the extent of stating that the inquest proceedings were conducted in his presence. Police arrested the accused Majeed @ Lafante and also recovered the head from him. Body of the deceased was sealed in one bundle while the head was sealed in another bundle. It is further admitted by this witness that when he reached at the spot, after lodging the F.I.R., by that time, the investigating officer had arrested the accused. It is further stated by this witness that when he reached at the spot, he found that the deceased was lying on the ground like a bundle, but, in the recovery memo of 'Phawra' from possession of the accused, it transpires that the recovery was made by investigating officer on 2.4.2009 at 4:00 A.M. in the morning, which was proved by P.W.5 Inspector Devi Dayal Singh. Time of recovery of 'Phawra' and the arrest of the accused is not finding support from the statement of P.W.1 Alisher wherein he has stated that, after lodging the F.I.R., when he reached at the spot, he found that the accused was already arrested by the police. No explanation has been put forward by the prosecution as to how the head of the deceased again came back near the dead body when the accused had already run away with the head. Even, in the recovery memo, it is not mentioned that the accused was arrested along with head of the deceased, rather, only 'Phawra' was allegedly recovered from possession of the accused. This fact is very relevant and important as the whole prosecution story becomes doubtful on this count. There was motive for commission of the crime, as alleged by the prosecution. The motive behind the commission of crime was the alleged divorce given by accused to Shakuntala, sister of the deceased. This fact is very relevant and important as the whole prosecution story becomes doubtful on this count. There was motive for commission of the crime, as alleged by the prosecution. The motive behind the commission of crime was the alleged divorce given by accused to Shakuntala, sister of the deceased. Shakuntala has been produced as D.W.1, who has stated that she was not divorced by her husband. In the cross-examination, even no suggestion was given to this witness that she was divorced by her husband and on this count deceased along with P.W.1 Alisher and P.W.4 Islam came to the house of accused; thereafter, when they were going back, accused had committed the murder of Jokhan. When the factum regarding divorce is not challenged by the prosecution, while the same is denied by D.W.1 Shakuntala, then this fact is uncontroverted. It means that the prosecution accepts the fact that no divorce took place between Shakuntala and accused Majeed @ Lafante. Motive, as alleged by the prosecution, could not be established on the basis of statement of D.W.1, Shakuntala. As per prosecution version and site plan, the incident took place at place ''A' as shown in the site plan. This place is towards eastern side of house of Kedari Dhobi and towards west of Chhappar of Chhutkua; towards north, some houses are also there. Although, the prosecution has produced P.W.1 Alisher and P.W.4 Islam are brother and son of the deceased to prove the prosecution case. In this regard Hon'ble the Apex Court in case of Nagappan v. State (by Inspector of Police, Tamil Nadu), reported in (2014) 3 SCC (Cri) 660, in paragraph no. 10 held as under:- "10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. " Thus, conviction can be recorded even on the basis of testimony of related or interested witnesses but the same has to be scrutinized and appreciated closely when presence of other independent witnesses was possible but they have not been produced without assigning any plausible reason. Prosecution has not given any explanation as to why independent witness of the nearby locality has not been produced while they were available. If we scrutinize the evidence of P.W.1 Alisher and P.W.4 Islam, we find that the prosecution version, as stated in the F.I.R., does not find support from the evidence of these two witnesses. As has been mention earlier, how the head of the deceased was found at the spot when the same was taken away by the accused. In the inquest report, which began at 8:15 p.m., it is mentioned that the head is lying near the body, while, according to the prosecution, by that time, the accused was not arrested but P.W.1 Alisher states that when he came back at the spot, after lodging F.I.R., by that time, the accused has already been arrested. Interestingly, in the inquest proceedings Alisher and Islam were witnesses but it is nowhere mentioned that the murder was committed by the accused appellant Majeed @ Lafante. P.W.4 Islam is the son of the deceased who has stated that Shakuntala is still living in the house of Majeed (accused), which corroborates the statement of D.W.1 that she is living in the house of accused as wife. At no point of time, divorce was given by the accused to her. Hence, so far, the motive is concerned, this statement vanishes the motive, as alleged by the prosecution. P.W. 4 Islam has stated that they were going behind the deceased. At no point of time, divorce was given by the accused to her. Hence, so far, the motive is concerned, this statement vanishes the motive, as alleged by the prosecution. P.W. 4 Islam has stated that they were going behind the deceased. They reached at the spot after hearing the shrieks of the deceased. By that time, the accused had already beheaded the deceased. P.W. 4-Islam has further stated that his cloth got blood-stained when he reached near the body of the deceased but the blood-stained cloth, P.W. 4-Islam have not been taken in possession by the investigating officer. Although, it is not such a grave factor which may make the whole prosecution story doubtful but at the same time, this factor coupled with other facts and circumstances creates a doubt about the presence of witnesses at the time of occurrence. Evidence of P.W.4-Islam further raises doubt about the manner of incident, wherein P.W.1-Alisher who is also the complainant has specifically stated that accused ran away along with head of the deceased. While P.W.4-Islam who is son of the deceased has not stated that the accused had ran away along with the head of the deceased. Further if the head of the deceased was taken away by the accused and according to P.W. 1-Alisher, head of deceased was recovered by the police. By the time he came back from the police station after lodging the first information report. It means that the arrest of the accused was made just after the incident along with the head of the deceased but the recovery memo shows that the arrest was made at 4.00 AM in the morning, that too, along with Fawra but head was not recovered. Why according to the inquest report as well as statement of P.W.5-Inspector Devi Dayal Singh, dead body was sealed after inquest proceedings and was sent for postmortem. According to the eye witnesses, head was in separate cloth but according to P.W. 3-Dr. S.P. Verma, only one sealed bundle was received at the mortuary sealed which was beheaded by the deceased was sealed in the same bundle in which the whole body was sealed. How P.W. 5- Inspector Devi Dayal Singh has stated that he has recovered a Fawda from the possession of the accused at 04.00 AM in the morning. It means that the head was not recovered from the possession of the accused. How P.W. 5- Inspector Devi Dayal Singh has stated that he has recovered a Fawda from the possession of the accused at 04.00 AM in the morning. It means that the head was not recovered from the possession of the accused. Even in the inquest report, it is mentioned that the head is lying near the dead body. P.W. 1- Alisher has not been declared by the prosecution along with statement of P.W. 4-Islam, creates doubt about whole prosecution version. P.W. 3- Dr. S.P. Verma has stated that he did not find any injury on the body of the deceased. Only two incised wounds were found by him. P.W. 5- Inspector Devi Dayal Singh has stated that blood-stained clothes were not shown to him. He has taken in possession himself asked them about the cloths. Even the complainant was not witness of inquest although, it is not necessary that the name of accused should be mentioned in the inquest report but when P.W.1-Alisher has lodged the name in the first information report against the accused and he himself was also witness of inquest along with P.W. 4-Islam who was deceased then the natural conduct appears that they should tell the name of accused to the investigating officer but such lapse is also there which reached doubtful about the present at the spot. We are of the considered opinion that learned trial court has mis-appreciation of evidence on record. P.W.1-Alisher and P.W.4-Islam are not reliable trustworthy witnesses. Their evidence could not be held to be reliable in trustworthy. Considering all the facts and circumstances of the case, we are of the view that learned trial court has misinterpreted the record. Prosecution has failed to prove the charges levelled against the accused beyond reasonable doubt. Accordingly, appeal deserves to be allowed and is hereby allowed. Appellant is acquitted of all the charges levelled against him. Accused is in jail. He shall be released forthwith if not wanted in any other case. Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.