Judgment : (Delivered by Hon'ble Shashi Kant Gupta, J) This Criminal Appeal has been preferred by the appellants namely No. (1) Sukhey, (2) Bhagwat, (3) Sheshram, (4)Misri and (5) Nihal against the judgment and order dated 4.2.1983 passed by III Additional Sessions Judge, Bijnor in S. T. No. 461 of 1980, State Vs. Sukhey and others convicting the accused appellants under Sections 147 and 302 of the Indian Penal Code (in short "the IPC"), Police Station Kotwali City Bijnor, District Bijnor and sentencing them to undergo three months' R.I. and rigorous imprisonment for life and to pay fine of Rs. 1000/- each. 2. During the pendency of the present appeal, the accused appellants no. 3, 4 and 5 namely Sheeshram, Misri and Nihal died and the present appeal stood dismissed by this Court as abated against them, vide order dated 30.9.2015, by this court. Thus, the present appeal is being taken up for consideration on behalf of the remaining appellants namely Sukhey and Bhagwat only. 3. The prosecution story, in nutshell, is as follows:- 4. As per prosecution story, about 3-4 months prior to the alleged incident an altercation took place between the accused Sukhey, Bhagwat, Seshram, Misri and Nihal on one hand and Hari Singh on the other hand over the opening of Paranalas (water drainage) towards the house of Hari Singh. On 29.9.79 at about 8-8.30 P.M. Hari Singh while proceeding towards his field to spread soil told his wife Smt. Kamla that he would be returning soon. When Hari Singh did not return home till mid-night, his wife Smt. Kamla went out in search of him to the field but was unable to find him. Next morning, when Tulsi Singh (P.W.5) and others came to know that Hari Singh was missing, they also tried to search for him, and at about 11.00 AM. one Gama son of Sukhan Singh informed Swarup Singh that he had seen the dead body of Hari Singh in the field of Shanker Singh son of Jhabba resident of Mohalla Kazipara. Surja, Shyama and Lallu also informed Tulsi Singh that they had seen the accused persons Sukhey, Bhagwat, Sheashram, Nihal and Mishri near Eedgah taking the deceased Hari Singh along with them towards the jungle. 5. A written report of this incident was lodged by Tulsi Singh (informant) on 30.09.79 at 12.15 noon at P.S. Kotwali City Bijnor. Surja, Shyama and Lallu also informed Tulsi Singh that they had seen the accused persons Sukhey, Bhagwat, Sheashram, Nihal and Mishri near Eedgah taking the deceased Hari Singh along with them towards the jungle. 5. A written report of this incident was lodged by Tulsi Singh (informant) on 30.09.79 at 12.15 noon at P.S. Kotwali City Bijnor. Thereafter during investigation an inquest report was prepared by the Investigating officer and the dead body was sent through police constable to the mortuary where the post mortem examination of the dead body was done on 1.10.79 by Dr. J.P. Srivastava who found gun shot wounds, abrasion etc. on the body of the deceased. During the investigation the I.O. found one pair of Chappal and lathi belonging to the deceased lying near the dead body. After necessary investigation the police submitted charge sheet under sections 302, 364 I.P.C against the accused persons. 6. The court framed the charges under sections 147 and 302/149 I.P.C against all the five accused named above to which each one of them pleaded not guilty and claimed to be tried. 7. The prosecution examined Dr. J.P. Srivastava P.W.1 Swarup Singh P.W.2, Lallu P.W.3, Surja Singh P.W.4, Tulsi Singh P.W.5, Smt. Kamla P.W.6, Shyama P.W.7, S.I. Sri Harish Chand Saxena P.W.8, constable Duli Chand P.W.9. The accused did not examine any witness in defence but filed six papers Exts. Kha-1 to 6 in defence. 8. Smt. Kamla P.W.6 wife of deceased Hari Singh has deposed that about three and half years back at night after dinner her husband went out to the field saying that he would return soon. She further stated that 10-15 minutes later Mishri Singh came looking for him whom she informed that Hari Singh had gone to the field. Mishri Singh went away, she closed the door and went off to sleep. At about 11-11.50 P.M. she woke up and realising that her husband was not back home, she went to the field and also to the well to search for him but found nowhere, so the next morning she informed her mother in law and others about missing of her husband. She further stated that about two months prior to this incident the accused Nihal Singh, in spite of Hari Singh's objection, had opened three parnalas from his house into his land. She further stated that about two months prior to this incident the accused Nihal Singh, in spite of Hari Singh's objection, had opened three parnalas from his house into his land. She also further stated that the accused Mishri had erected a chur on the rasta towards the house of Hari Singh thereby, narrowed the width of the passage. On being objected to it by Hari Singh, a Panchayat was convened about 10-20 days before the incident and it was agreed that Nihal Singh would divert the water of his parnalas and Mishri Singh would remove his Chur from that place but they failed to keep their promise. According to her, the field of the accused Sheeshram was adjoining the field of Hari Singh and a Bari tree also existed in the field of Hari Singh. Sheesram extended the boundary of his field and encroached that part of the field of Hari Singh on which the Bari tree was standing. She further stated that a day prior to the night of the incident, her husband restored/re-establish the boundary line of his field which was altered/dismantled by Sheeshram as a result of which, the Bari tree again came into his possession. Furthermore, Hari Singh was harassed and troubled so much by Sheeshram that he was compelled to sell one of his plot (which was situated near the field of Sheeshram) to Sheeshram. She further stated that about two months prior to this incident when her husband was making Thalas for sowing Lauki seeds, the accused Sheesram abused Hari Singh, leading to a quarrel during which Sheesram threatened him with dire consequences. Earlier also he had tried to stop the labourers from working in the field of Hari Singh. 9. Surja P.W.4 has deposed that more than two years back at about 9.00 P.M. when there was moon light he saw the accused Sukhey, Sheesram, Bhagwat, Mishri and Nihal Singh sitting with Hari Singh(deceased) and the next morning he came to know that Hari Singh had been murdered. Lallu Singh P.W.3 has deposed that at the night of the incident at about 10 PM he heard sounds of gun shots from the field of Shankar Singh. Lallu Singh P.W.3 has deposed that at the night of the incident at about 10 PM he heard sounds of gun shots from the field of Shankar Singh. After hearing the gunshot fire, he got scared and hid himself in the field for around an hour and thereafter he proceeded towards his house and on the way met the accused persons at the Tiraha and clearly identified them in the moon light. Next morning, he came to know that the dead body of Hari Singh was lying in the field of Shanker Singh so he informed Tulsi Singh. 10. Shyama P.W.7 has stated that at the night of incident at about 7.00 P.M. he went to the house of one Jeeju in village Kherki and while returning saw the deceased in the company of the above named accused Sukhey, Sheesram, Bhagwat, Mishri and Nihal Singh at about 9.00 P.M. He could identify them in the moon light. The next morning when he came to know about Hari Singh's murder, he informed Tulsi about what he saw on the previous night. 11. Swarup Singh P.W.2 has stated that Hari Singh had to sell one of his plot to Sheeshram under pressure from Sheeshram. According to him, Sheeshram dismantled the Mend of the plot of Hari singh and extended his boundary up to the Bari tree which existed in the field of Hari Singh. He also stated that about 8-10 days prior to this incident an altercation had taken place between the accused Mishri and Hari Singh because Mishri had made a Chur on the road leading to the house of Hari Singh and that the accused Nihal Singh had also opened parnalas from his house into the land of Hari Singh in spite of objection to it. A Panchayat was also called to settle the dispute, wherein Nihal Singh agreed to divert the course of parnalas and Mishri too agreed to remove the said Chur but none of them kept their promise. The next morning of the incident, he met Gama, who told him about the dead body of Hari Singh lying in the field of Shankar Singh. He thereafter informed Tulsi Singh about it. 12. The next morning of the incident, he met Gama, who told him about the dead body of Hari Singh lying in the field of Shankar Singh. He thereafter informed Tulsi Singh about it. 12. Tulsi Singh P.W. 5, uncle of deceased Hari Singh, also stated the alleged enmity between the accused Nihal, Mishri and others on one hand and Hari Singh on the other due to the opening of parnalas erecting chur in Hari Singh's land. According to him, he was informed by P.W. 2 Swaroop on 30.9.1979 about the disappearance of deceased since the previous night and later on in between 10.45 AM and 11.30 A.M. Swarup Singh informed him that Gama told him that the dead body of Hari Singh is lying in the field of Shankar Singh and Chappal, lathi and a Khoka cartridge were also found near the dead body thereafter he met Lallu, Surja and Khubbi on the way to the police station who informed him that on the previous night they had seen Hari Singh going with the accused. Thereafter, he got a report Ext. Ka-2 of this incident written from Jishan and lodged the same at the police station. 13. Constable Duli Chand P.W.9 has filed his affidavit stating therein that the dead body of Hari Singh sealed in a cloth was sent through him for post mortem examination. S.I. Sri Harish Chand Saxena P.W.8, who was posted as Sub Inspector at P.S. Kotwali City Bijnor on 30.9.79, has stated that the Chick report Ext. ka 3 of this incident is in the hand writing of H.C. Sompal and that Ext. Ka-4 is a true copy of the G.D. Entry prepared by that very constable. He further stated that during the course of investigation of the case, he recorded the statement of the witnesses, inspected the dead body and prepared the inquest report Ext. Ka 5 in presence of the witnesses and prepared the necessary papers Ext. Ka 7, Ka-8, Ka-9 and Ka-10 and sealed the dead body and sent it through constable for post mortem examination. He has further stated that he took the sample of blood stained and simple soil from the place of the recovery of dead body and prepared memo Ext. Ka 7, Ka-8, Ka-9 and Ka-10 and sealed the dead body and sent it through constable for post mortem examination. He has further stated that he took the sample of blood stained and simple soil from the place of the recovery of dead body and prepared memo Ext. Ka-11 and then took the Khokha of cartridges, lathi and chappal in his custody from the spot and prepared the memo Ext.Ka 12 and 13 for the same in presence of the witnesses. He also inspected the place of incident and prepared the site plan Ext. Ka 14 and thereafter arrested the accused Nihal and Sheesram on 5.10.79 and 6.10.79 respectively and after completing the investigation, submitted charge sheet Ext. Ka 15 against all the accused. 14. Dr. J.P. Srivastava P.W.1, who was posted as a Medical Officer at District Hospital, Bijnor on 1.10.79 on that day, stated that he conducted the post mortem on the dead body of the deceased Hari Singh brought by constable Duli Chand and another in a sealed position and found the following ante mortem injuries on the body of the deceased. (1) One gun shot wound right supra 1 ¼ cm lateral chest cavity deep wound of entry. (2) One gun shot wound right side neck 1-1/2 cm in diameter wound exit soft tissue deep posterior side near scapula. (3) Two gun shots wounds front of chest 1 ½ cm lateral deep each 2 cm apart wound of entry. (4) Abraded contusion 6 cm x 6 cm x left hip. (5) Abraded contusion 4 cm x 4 cm right leg back. (6) Abraded contusion 3cm x 2 cm right hip. (7) Abraded contusion 4 cm. X 3 cm. left calf. 15. On the internal examination of the dead body he found that both the lungs were lacerated. According to him, the deceased died on account of shock and haemorrhage on account of above injuries. The post mortem report is Ext. Ka-1. Dr. J.P. Srivastava has further stated that he took out two pallets each weighing 135 grams and sent the same to S.P. Bijnor through a constable. In his opinion the injuries could have been caused by gun shot fire in the night between 29th and 30th day of September 1979 at about 1.00 P.M. 16. Mr. Ka-1. Dr. J.P. Srivastava has further stated that he took out two pallets each weighing 135 grams and sent the same to S.P. Bijnor through a constable. In his opinion the injuries could have been caused by gun shot fire in the night between 29th and 30th day of September 1979 at about 1.00 P.M. 16. Mr. Gaurav Kakkar, learned counsel for the appellants submitted that the F.I.R. was lodged after considerable lapse of time only after the recovery of the dead body and no missing report was lodged even though the police station was just 2 Km. away. He further submitted that the F.I.R. was lodged after deliberation, consultation and afterthought and this fact stands corroborated by the statement of P.W. 2, Swaroop Singh. 17. It was further submitted that no motive has been assigned to the surviving appellants for the commission of the offence and as such the involvement of the appellants in the present case appears to be far- fetched and this fact also stands corroborated by the F.I.R. The specific motive for the commission of the alleged offence has been assigned to other accused namely Nihal, Misri and Seeshram who have already died and the appeal against them has already been dismissed as abated. He further submits that the version given in the F.I.R. that the witnesses namely Sarju, Shyama and Lallu informed him about Hari Singh ( deceased) being taken towards the jungle by the accused persons Sukhey, Bhagwat, Sheesram Nihal and Misri stands completely belied and contradicted by the statements of P.W. 3, P.W. 4 and P.W. 7. 18. It was further submitted that the statement of Lallu (P.W. 3) is not corroborated by the post mortem report because, as per his statement, he had only heard the sound of a single gun shot whereas the post mortem report shows that there were atleast two gun shot wounds of entry on the body of the deceased. P.W. 3 is also stated to have kept himself under cover for approximately more than an hour after hearing the gunshot and thereafter, when he was returning back home, at Tiraha he saw the accused persons. This appears to be highly improbable as there was no occasion for the accused persons to remain in the near vicinity of the place of occurrence for an hour after committing such heinous offence. This appears to be highly improbable as there was no occasion for the accused persons to remain in the near vicinity of the place of occurrence for an hour after committing such heinous offence. He further submits that P.W. 2, Swarup, P.W. 3 Lallu, P.W. 4, Surja, P.W. 5 Tulsi, P.W. 6 Smt. Kamla and P.W. 7 Shyama are all interested witnesses either on account of blood relations, family ties or some previous grudge. He further submits that the statements of P.W. 2(Swarup) and P.W. 4 (Surja) are contradictory to each other. 19. It was further submitted that, admittedly, as per the testimony of the prosecution witnesses, relations between Hari Singh and accused persons were absolutely strained and inimical and in such a situation, it was quite unnatural and impossible that the deceased would have accompanied the accused persons and that too at odd hours of the night. 20. It was further submitted that except the only evidence of the so called last seen, there is nothing on record to connect the appellants with the commission of the alleged offence. He further submits that in the present case the evidence of last seen given by the witnesses is not trustworthy as the witnesses are interested persons and there are material contradictions and discrepancies in the statements of the witnesses which belies the so called evidence of the last seen. He further submits that the circumstances sought to be proved against the accused have to be established beyond reasonable doubt and such circumstances must form a complete chain leaving no option but to hold that the accused is guilty of the offence with which he is charged with but it has not been done in the present case. 21. Per contra, Mr. Rajeev Gupta, learned A.G.A. for the State, supported the impugned judgement and order of conviction and submitted that as per the evidence available on record the accused persons were on inimical terms with the deceased and they had strong motive to commit the murder of the deceased. 21. Per contra, Mr. Rajeev Gupta, learned A.G.A. for the State, supported the impugned judgement and order of conviction and submitted that as per the evidence available on record the accused persons were on inimical terms with the deceased and they had strong motive to commit the murder of the deceased. He further submitted that there are three witnesses namely Lallu Singh ( P.W. 3), Surja Singh( P.W. 4) and Shyama ( P.W. 7) who have very categorically stated that they had seen the deceased in the company of the accused persons shortly before commission of the present offence and there is a close proximity with the factum of place and time of death of the deceased and the chain of circumstances is complete. He further submitted that the factum of seeing the deceased in the company of the accused persons was disclosed by three witnesses namely Surja, Shyama and Lallu in the morning of the very next day. He further submits that from perusal of the material available on record, it is evident that there was reasonable proximity between time when the deceased was killed and lastly seen alive with the accused persons. He further submits that so far as the discrepancies in the depositions of the witnesses is concerned, normal discrepancies are bound to occur in the depositions of such rustic witnesses due to normal errors of observation viz. errors of memory due to lapse of time or due to mental disposition, such as shock and horror at the time of occurrence and such minor contradictions, as pointed out by the learned counsel for the appellants, do not affect the core of the prosecution case and, therefore, the same should not be made a ground on which the evidence can be rejected in its entirety. 22. It was further submitted that in the cases where the accused was last seen with the deceased just before the incident, it becomes the duty of the accused to explain the circumstances under which the death of the victim occurred. 23. Heard Mr. Gaurav Kakkar, learned counsel for the appellants and Mr. Rajeev Gupta, learned A.G.A. for the State and perused the record. 24. 23. Heard Mr. Gaurav Kakkar, learned counsel for the appellants and Mr. Rajeev Gupta, learned A.G.A. for the State and perused the record. 24. According to the F.I.R, the deceased ( Hari Singh) had left his house late in the evening of 29.9.1979 for agricultural purpose and when he did not return home on the said night, the next morning, his wife Smt. Kamla ( P.W. 6) informed about it to his relatives but his whereabouts could not be traced. Later on, at about 11. 00 A.M. one Gama son of Sukkhan resident of the same village told Swarup Singh (brother of the informant) that the dead body of the deceased was lying in the field of one Shankar. It was further averred in the said F.I.R. that three persons namely Surja, Shyama and Lallu, who were residents of the same mohalla had also told the informant that on the previous night, the deceased was seen being taken towards the jungle by the accused persons. Admittedly, it is a case of circumstantial evidence. 25. Perusal of the record shows that, in fact, no specific motive has been attributed to the surviving accused appellants nos. 1 and 2 namely Sukhey and Bhagwat. The main allegations have been made against the remaining appellants no. 3, 4 and 5 who were having dispute with the deceased Hari Singh. Appellant nos. 3, 4 and 5 namely Sheshram, Misri and Nihal are now no longer alive and their appeals have already been dismissed as abated against them. 26. The main contention of the learned counsel for the appellants is that if the deceased had so serious inimical relations and enmity with the accused persons, then by no stretch of imagination it can be presumed that the deceased Hari Singh would have accompanied accused persons particularly at odd hours of the night. Further contention of the learned counsel for the appellants was that the witnesses of last seen were set up by the prosecution after consultations and deliberations just to work out the case and to fill up the lacuna of the prosecution case. In fact it was a case of blind murder. Further contention of the learned counsel for the appellants was that the witnesses of last seen were set up by the prosecution after consultations and deliberations just to work out the case and to fill up the lacuna of the prosecution case. In fact it was a case of blind murder. After the recovery of dead body of the deceased from the field of Shankar, the story was concocted against the accused persons with whom the deceased was having enmity by setting up close relative and interested persons as the witnesses of the last seen evidence. In this connection, the learned counsel for the appellants referred to the testimonies of the alleged witnesses of last seen evidence namely Surja, Shyama and Lallu and stated that the said testimonies are full of contradictions, improvements and embellishments. 27. In order to ascertain the truthfulness and credibility of the prosecution story, we have to closely scrutinise the testimonies of the witnesses and all the relevant attending circumstances to separate falsehood from truth. 28. 27. In order to ascertain the truthfulness and credibility of the prosecution story, we have to closely scrutinise the testimonies of the witnesses and all the relevant attending circumstances to separate falsehood from truth. 28. For the purpose of analysis, it would be profitable to quote the paragraphs 2,3 and 8 of the deposition of P.W. 3, Lalloo Singh, which are as follows: 2& djhc 1&1@2 ekg de nks lky dh ckr gS eS vius [ksr ij pDdj yxkus tk;k djrk Fkk] ml jkst Hkh x;k gqvk FkkA eSus,d Qk;j vkokt jkr ds 10 cts ds djhc lquhA ;s vkokt Qk;j dh 'kadj ds [ksr dh rjQ ls vkbZ FkhA eSa dqN nsj ckn ns[kHkky dj vius ?kj dh rjQ dks pykA eq>s ikWpksa eqyfteku gkftj vnkyr pDdj ij feysA eSus budks pkWn dh jks'kuh esa igpku fy;kA eSa Hkh buds ihNs ihNs pyk vkSj fQj eSa vius ?kj pyk x;kA ** 3& eSa vius ?kj ls vius [ksr ij jkr ds 8] 8&1@2 cts pyk FkkA eSus es<+ ij cksfjax ds ikl 'kh'kjke Hkxor] gjh] feJh] fugky lqD[ks dks cSBs ns[kkA lqcg irk pyk vkB cts fd gjh dks ekj fn;k gS] vkSj yk'k 'kadj ds [ksr esa iMh gSA eSus ;s ckr rqy'kh dks crk nh FkhA ** 8& eSus ,d Qk;j dh vkokt lquh FkhA nks Qk;j dh vkokt ugh lquh FkhA eSus njksxk th dks nks Qk;j dh vkokt lquuk crk fn;k gksxkA eSa Qk;j dh vkokt lqudj Mj x;k vkSj ogkW vius [ksr ij Nqidj cSB x;kA fQj eSa djhc,d ?kUVs ckn vius [ksr ls vius ?kj dks pyk FkkA** 29. Evidence of Lallu Singh (P.W. 3) as to witnessing the deceased in the company of the accused before the alleged incident on the fateful night appears to be doubtful. In this regard it is noteworthy that the said witness in his testimony has specifically stated that in between 8.00 P.M. and 8.30 P.M. on 29.9.79 when he was proceeding towards his field, he saw that the accused persons sitting and chatting on the mend near the boring. Thereafter, at around 10.00 P.M. he heard the sound of a single gunshot fire from the field of Shanker. Thereafter, at around 10.00 P.M. he heard the sound of a single gunshot fire from the field of Shanker. In the cross examination has further stated that after hearing the gunshot fire, he got scared and he hid himself in the field for around an hour and thereafter while he was proceeding towards his home, he again met the accused persons on the way to whom he recognised in the moon light. The aforesaid testimony of P.W. 3 does not inspire our confidence. First of all, it is most improbable that the deceased, who was having so serious inimical relations and enmity with the accused persons, would have remained in their company for more than an hour as the P.W. 3 himself had stated that between 8- 8.30 P.M. he had seen the deceased sitting and chatting with each other on the Mend near a boring and thereafter at around 10 P.M. he heard the sound of a single gun shot fire, meaning thereby, the deceased was killed after nearly one and half hours. Secondly, the accused persons, after committing such heinous offence, would not have stayed in close vicinity of the place of the incident for so long (for more than an hour after committing the alleged offence), as such, the testimony of this witness does not appear to be trustworthy as no prudent person will believe the story as projected by the P.W.3. Under these circumstances, we find difficult to place reliance on the version of P.W. 3, Lallu. 30. Evidence of Lallu (P.W. 3) is also not reliable for the reason that as per his statement, he had heard the sound of only a single gun shot fire whereas the post mortem report shows that there were at least two gun shot wounds of entry on the body of the deceased. As such, oral evidence is not corroborated by the medical evidence. 31. On a careful perusal of record, We also find that testimonies of P.W. 2 (Swarup) and P.W. 4 (Surja) are contradictory to each other. As such, oral evidence is not corroborated by the medical evidence. 31. On a careful perusal of record, We also find that testimonies of P.W. 2 (Swarup) and P.W. 4 (Surja) are contradictory to each other. As per the statement of P.W. 2, Swaroop only P.W.5 Tulsi accompanied him to the place where the dead body of Hari Singh was found as in para 7 of his testimony he has categorically stated that he met Syama(P.W.7) near the dead body at 11.00 A.M., had not met before 11.00 A.M. and had also not met P.W. 4 Surja and P.W.3 Lallu, whereas, as per the statement of Surja (P.W.4) he also accompanied Tulsi and Swaroop while they were proceeding to the place of occurrence to see the dead body of the deceased and he at that time merely informed them of his having last seen the deceased in the company of the accused persons sitting on the mend and had not told him that the accused persons were taking the deceased towards the jungle as disclosed in the F.I.R. As per the statement of Tulsi (P.W. 5), he had received the information of last seen while he was proceeding all alone from the place of incident (where the dead body of the deceased was recovered) towards the police station for lodging F.I.R. Therefore, there is material contradiction in the statements of the witnesses as regards time and place of their meeting on 30.9.79 which puts a question mark on the reliability of the prosecution story. 32. 32. For ready reference, the evidence of P.W. 2 at para 7 in this regard is quoted herein below: **';kek eq>s 11 cts yk'k ij feys FksA 11 cts ls igys ugh feykA lqjtk yYyw Hkh ugh feysA eq>s ugh ekywe fd gjh flag dks taxy dh rjQ ys tkrs yYyw ';kek] lqjtk us lqD[ks] 'kh'kjke] Hkxor fugky o feJh ds lkFk ns[kk gSA njksxk th us igys esjk c;ku fy;k Fkk fQj YkYYkw] ';kek vkSj lqjtk dk fy;k FkkA C;ku nsus ds ckn eq>s irk pyk fd bu yksxksa us ys tkrs ns[kk gSA fQj dgk fd bu yksxks us Ck;ku ds le; eq> ls Hkh crk fn;k Fkk vkSj njksxk th ls Hkh crk fn;k FkkA eSus njksxk th ls ;s ugh dgk fd **ekywe gqvk gS fd gjh flag dks taxy dh rjQ ys tkrs yYYkw] ';kek] lqjtk us lqD[ks] 'kh'kjke] Hkxor] fugky feJh dks lkFk ns[kk gSA** xokg dks Ck;ku lquk;k x;kA dgk fd eSa ugh dg ldrk fd dSls fy[k fy;kA bu rhuksa ';kek] lqjtk] yYyw us eq>s crk;k Fkk fd bUgksaus gjh flag ds ikWpks eqyfteku ds lkFk tkrs ns[kk gSA^^ 33. The aforesaid statement further shows that even though Shyama, one of the alleged witnesses of last seen, who was allegedly present on the spot (where the dead body was found) with Tulsi and Swaroop Singh at 11 A.M. on 30.09.79 did not choose to divulge the fact of last seen of the deceased with the appellants at that point of time. The aforesaid unnatural conduct of the P.W. 7 Shyama of not disclosing the vital fact at the very first opportunity also throws a cloud of suspicion in the prosecution story with regard to last seen evidence. 34. Tulsi Singh, P.W.5 in his testimony before the trial court had deposed that on 30.9.1979 when he was proceeding towards the police station to lodge a report after the recovery of the dead body, he met Surja, Shyama and Lalloo on the way who told him that on the previous night at about 10.30 P.M. they had seen deceased Hari Singh near the Masjid going along with the accused appellants and upon asking him, he told them that they were going towards Meerpur. 35. 35. However, subsequently, P.W.5 Tulsi Singh in para 11 of his testimony stated that he met Surja, Shyama and Laloo at around 10 A.M. Near the Kabristan and they had not told him that they saw the accused persons taking the deceased Hari Singh towards jungle although in the F.I.R as well as in the statement recorded under Section 161 Cr.P.C. Tulsi had stated that they had told him that they saw the accused appellants taking the deceased Hari Singh towards the jungle. In this context, it is necessary to observe that P.W. 2 Swarup Singh in his testimony at para 4 has very categorically stated that when Tulsi Singh returned home at around 10 A.M. in the morning from his duty, he was informed about the mysterious disappearance of the deceased Hari Singh at around 11 AM. This fact shows that Tulsi Singh was totally unaware about the disappearance of Hari Singh till around 11 A.M. on 30.9.1979. As such, there is material contradictions and inconsistency regarding the alleged meeting of the first informant, Tulsi with the alleged last seen witnesses i.e. Surja, Shyama and Lallu on 30.9.1979. 36. Para 4 of the testimony of P.W. 2 Swaroop Singh in this context is relevant and is quoted herein below for quick reference: ^^4- mijksDr pj vkSj ijukys dh ckrsa eq>s ekywe Fkha iapk;r dk irk rqylh dks ugha Fkk oks ukSdjh ij jgrk FkkA rqylh dks ;s irk ugh Fkk fd feJh us pj cuk yh vkSj fugky us irukys mrkjsA rqylh dks ;s Hkh irk ugh Fkk fd mlus MkWy c<+kdj csjh vius [ksr esa dj yh vkSj MkWy ij >xMk gqvkA eq>s viuh ekywe gSA eq>s lqcg 8 cts irk pyk fd gjh ugha gSA 10] 10&1@2 cts rd mls xM+k Fkk fugky dh pj o irukys ij Hkh >xM+k Fkk vkSj MkSy c<+kdj csjh dks vius [ksr es ysus ij Hkh >xM+k FkkA mlds vxys fnu tkdj rqylh us fjiksVZ fy[kkbZA fjiksVZ rqylh us Fkkus esa fy[kkbZ FkhA Fkkus esa tks fy[kus okys gSa mUgksaus fy[kh FkhA** 37. P.W. 3, Lallu Singh in his testimony has deposed that after coming to know about the disappearance of the deceased Hari Singh he went to the house of Kamla and from there he along with Kamla went to the house of Tulsi Singh and Swarup Singh at 10 O'clock and merely told them that when he was proceeding towards his field on the previous night, he had seen the accused appellants sitting and chatting on the mend near Boring. However, it is noteable that he did not disclose to Tulsi that he either saw the accused persons taking Hari Singh along with them or saw Hari Singh going with them or saw them chatting with the deceased. 38. Testimony of P.W. 3 Lallu Singh contained in para 7 in this regard for ready reference is quoted herein below: ^^7& lqcg 8] 8&1@2 cts irk pyk fd gjh flag xk;c gSA bl ij eSa gjh flag ds ?kj x;kA ogkW ij eq>s deyk o mldh lkl HkkxhjFkh feyhA rqylh o Lo:i flag eq>s vanktu 10 cts feys gksaxsA deyk vkSj eSa Lo:i flag o rqylh ds ?kj x, FksA eSus cksfjax okyh es< ij eqyfteku dk cSBk gksuk rqylh o Lo:i flag dks crk fn;k FkkA eSus rqylh ls ;s ugh crk;k Fkk fd eSus eqyfteku dks gjh flag dks ys tkrs ;k muds lkFk tkrs gq, ns[kk gSA** 39. The aforesaid testimony of Lallu Singh is contrary to the FIR version as well as his statement recorded under Section 161 Cr.P.C. No reason has been assigned as to why Lallu Singh had not disclosed the fact of last seen at the very first opportunity when he visited Tulsi at 10' clock in the morning along with Kamala. 40. P.W. 7, Shyama has stated that he met the deceased along with the accused appellants at 9 O' clock in the night near the crossing of Eedgah where accused appellants were walking along with the deceased, he recognised them in the moon light. Deceased Hari Singh did not make any complaint to him. He further stated that he met Tulsi at around 10.30 A.M. on 30.9.1979 and informed him about what he had seen on the previous night. Deceased Hari Singh did not make any complaint to him. He further stated that he met Tulsi at around 10.30 A.M. on 30.9.1979 and informed him about what he had seen on the previous night. He further stated that he does not know whether the accused persons were carrying on any weapon or not and he had not seen any other witnesses namely Surja and Lallu near the place of occurrence. The aforesaid statement of Shyama is again contradictory to the deposition of Tulsi and P.W.2 Swarup. According to P.W.2 Swarup, Tulsi came to know about the disappearance of Hari Singh at 11 A.M. on 30.9.79 and according to Tulsi he was informed by P.W. 7 Shyama and other last seen witnesses when he was on the way to police station to lodge F.I.R. which was lodged at 12.15 P.M., meaning thereby, he was allegedly informed shortly before 12.15 P.M. on 30.9.1979. 41. P.W.8 Harish Chand Saxena, S.I. has deposed in his cross examination that Lallu Singh in his statement under section 161 Cr.P.C. had stated that he knew that Hari Singh was not having good relations with the accused appellants. He further deposed that witnesses did not tell him from which place they had seen Hari Singh in the company of the accused persons. 42. It is also notable that P.W. 2 Swarup Singh has categorically stated in para 4 of his deposition (para 4 is already quoted herein above) that Tulsi had returned to his house at 10 O' clock in the morning on 30.9.1979 from his duty and he told him about the disappearance of Hari Singh at 11 O' clock. However, Tulsi Singh in his statement gave a different version and stated that he returned home between 8.30 and 8.45 A.M. from his duty and when he learnt from his brother Swaroop about the disappearance of Hari Singh, he along with Swaroop Singh went to the house of Kamla in the morning. On the other hand, P.W. 3, Lallu Singh in his testimony has stated that in the morning, in fact, he had gone to the house of Hari Singh where he met Kamla and her mother in law Bhagirathi. As such, the story of Lallu that he along with Kamla and Bhagirathi had gone to the house of Tulsi appears to be contradictory and creates serious suspicion about its trustworthiness. As such, the story of Lallu that he along with Kamla and Bhagirathi had gone to the house of Tulsi appears to be contradictory and creates serious suspicion about its trustworthiness. Thus, there are material contradictions in the statements of Swarup Singh, Lalloo Singh and Tulsi Singh. 43. In this context, para -2 of the testimony of P.W.5 is relevant and is quoted herein below for ready reference: **2& eS fctukSj esa fctyh foHkkx esa lSDVj crkSj eSa pkSdhnkj FkkA ?kVuk okyh jkr esa esjh M;wVh jkr ds 12 cts ls lqcg 8 cts rd FkhA M;wVh ds ckn eSa lqcg ds djhc 8&1@2 ;k ikSus ukS cts vius ?kj igWqpk FkkA rc esjs HkkbZ Lo:i us crk;k fd jkr ds 8 cts djhc ls gjh flag dk irk ugha gSA deyk gfj flag dh iRuh gSA FkksM+h nsj ckn gh eSa rFkk Lo:i deyk ds ?kj x;sA deyk ogkW ij feyhA deyk us crk;k fd jkr ds djhc 8 cts gjh flag] QkoM+k o ykBh ysdj ;g dgdj x;k Fkk fd [ksr ij feV~Vh,drkj djds vkmxkA ysfdu og okil ugh vk;kA mlus ;g Hkh crk;k fd,d nks ckj jgV ds dq;s rd mls ns[kus Hkh xbZ FkhA ysfdu Mj dkj.k vkxs ugh xbZA rc eS o Lo:i gjh flag ds [ksr ij x;s ogkW ij QkoM+k iM+k gqvk FkkA ogkW ij ykBh ugha FkhA gfj flag ogkW ij ugh FkkA fQj geus mldks b/kj m/kj ns[kk ijUrq og ugh feykA mldk dksbZ irk ugha pyk rc eSa vius ?kj vk x;kA^^ 44. For ready reference para-4 of the testimony of P.W.2 Swaroop Singh is also quoted herein below: **4& mijksDr pj vkSj ijukys dh ckrs eq>s ekywe Fkha iapk;r dk irk rqylh dks ugha Fkk oks ukSdjh ij jgrk FkkA rqylh dks ;s irk ugh Fkk fd feJh us pj cuk yh vkSj fugky us irukys mrkjsA rqylh dks ;s Hkh irk ugh Fkk fd mlus MkWy c<+kdj csjh vius [ksr esa dj yh vkSj MkWy ij >xMk gqvkA eq>s viuh ekywe gSaA eq>s lqcg 8 cts irk pyk fd gjh ugha gSA 10] 10&1@2 cts rd mls xM+k Fkk fugky dh pj o irukys ij Hkh >xM+k Fkk vkSj MkSy c<+kdj csjh dks vius [ksr esa ysus ij Hkh >xMk FkkA mlds vxys fnu tkdj rqylh us fjiksVZ fy[kkbZA fjiksVZ rqylh us Fkkus es fy[kkbZ FkhA Fkkus esa tks fy[kus okys gSa mUgksus fy[kh FkhA** 45. For ready reference para -7 of the statement of P.W.3, Lalloo Singh is relevant to be quoted herein below at the cost of repetition: ^^7& lqcg 8] 8&1@2 cts irk pyk fd gjh flag xk;c gSA bl ij eSa gjh flag ds ?kj x;kA ogkW ij eq>s deyk o mldh lkl HkkxhjFkh feyhA rqylh o Lo:i flag eq>s vanktu 10 cts feys gksaxsA deyk vkSj eSa Lo:i flag o rqylh ds ?kj x, FksA eSus cksfjax okyh es< ij eqyfteku dk cSBk gksuk rqylh o Lo:i flag dks crk fn;k FkkA eSus rqylh ls ;s ugh crk;k Fkk fd eSus eqyfteku dks gjh flag dks ys tkrs ;k muds lkFk tkrs gq, ns[kk gSA** 46. A perusal of the record indicates that Tulsi Singh did not meet any of the witnesses of the last seen before reaching the place of occurrence where the dead body of the deceased was lying and, according to his testimony he had met the alleged witnesses of last seen evidence while he was proceeding after 11 A.M. to the police station to lodge F.I.R.. However, later on, he came forth with a different version and deposed in para 11 of his deposition that he met Surja, Shyama and Lallu, alleged last seen evidence witnesses at 10 A.M. near a Kabristan where they informed him that they had seen the accused appellants taking Hari Singh with them. As such, different versions have been given by Tulsi Singh in his testimony. At one place he has stated that he met the alleged eye witnesses Surja, Shyama and Lallu at about 10 O'clock in the morning near a Kabristan and at another place, he stated that he met them while he was on the way to the police station. Record shows that he lodged the F.I.R. at 12.15 P.M. and the police station was just 2 km. away from the place of incident. As such, he would have allegedly met them shortly before the lodging of F.I.R. 47. Record shows that he lodged the F.I.R. at 12.15 P.M. and the police station was just 2 km. away from the place of incident. As such, he would have allegedly met them shortly before the lodging of F.I.R. 47. For ready reference paras 3 and 11 of the deposition of P.W. 5, Tulsi are quoted herein below: **fnu ds ikSus X;kjg lk<+s X;kjg cts ds djhc Lo:i fQj esjs ikl vk;k vkSj mlus crk;k fd xkek us mls crk;k gSA fd gjh flag dh yk'k 'kadj dh MkSy ij iMh gSA vkSj ogh pIiy] ykBh o [kkyh dkjrwl iM+k gSA fQj eS o Lo:i ogkW ij x;sA geus ogkW ij gjh flag dh yk'k] ykBh] pIiy vkSj [kkyh xksyh iMh gqbZ ns[khA fQj ge ogkW ls okil jiV fy[kkus dks pysA jkLrs esa] yYYkq] lqUxh o lqDdk gesa feysA mUgksaus eq>s crk;k fd jkr 10&1@2 cts gjh flag] Hkxor] lqD[ks feJh] fugky o 'kh'kjke ds lkFk tk jgk Fkk vkSj mUgksus elftn ds ikl ns[kk FkkA mUgksaus crk;k Fkk fd ;g yksx ehjiqj dh rjQ dks tk jgs FksA ** 11-& **lq[kk] ';kek o yYyq eq>s fnu ds djhc 10 cts jkLrs esa dfczLrku ds ikl feys FksA mUgksus eq>s ;g ugha crk;k Fkk fd taxy dh rjQ ys tkrs ns[kk FkkA eSus fjiksVZ esa,slk fy[kk;k Fkk & **lqtkZ] ';kek vkSj ykyq us eq>s crk;k fd lqD[ks] Hkxor] 'kh'kjke] fugky o feJh dks bZnxkg ds ikl gjh flag dks taxy dh rjQ ys tkrs mUgsa ns[kk gSA **;gh ckr njksxk th dks crkbZ FkhA elftn ls ehjiqj dh rjQ dks taxy gSA elftn] o bZnxkg,d gh ckr gSA ;g dguk xyr gS fd ogkW dksbZ elftn ugh gSA mls elftn Hkh dgrs gSa vkSj bZnxkg dgrs gSA ;g dguk xyr gS fd fdlh us eqyfteku o gjh flag ds lkFk&2 tkrs ugh ns[kk vkSj eSA nq'euh ds dkj.k >wBk C;ku ns jgk gWwA** 48. It is also pertinent to note that even Swarup Singh in his statement has stated that till 11 O' clock Tulsi Singh was not aware about the incident as he came home from his duty at 10 O' clock, as such there was no occasion for Tulsi to meet the alleged eye witnesses at 10 A.M. as alleged by him. It is also pertinent to note that even Swarup Singh in his statement has stated that till 11 O' clock Tulsi Singh was not aware about the incident as he came home from his duty at 10 O' clock, as such there was no occasion for Tulsi to meet the alleged eye witnesses at 10 A.M. as alleged by him. As already noted above at one place P.W. 5 Tulsi has stated that he met the last seen witnesses on 30.9.1979 at 10 A.M. and in the cross examination stated that he met them while he was on the way to police station (between 11.30 A.M. and 12.15 P.M.). Thus, there are material contradictions in the prosecution case with regard to meeting of Tulsi Singh with the alleged eye witnesses of last seen. 49. It is also note worthy that all the three eye witnesses namely Surja, Shyama and Lallu are close relatives and interested witnesses and they claim to have last seen the accused persons with the deceased at different places and the record further shows that the deceased was accompanying accused persons voluntarily and happily sitting and chatting with them. The alleged behaviour of the deceased was against the human conduct as he was on inimical terms with the.accused persons. The record further indicates that alleged witnesses of last seen were related to the deceased and were the resident of the same mohalla where the deceased was living. They have admitted in their statements under section 161 Cr.P.C. that they were aware about the previous enmity between the accused persons and the deceased and even then they did not warn the deceased or disclose the fact of alleged last seen of the deceased with the accused persons at the first opportunity. Admittedly, as per the testimony of the prosecution witnesses, relations between Hari Singh and accused persons namely Sheesh Ram, Neehal and Misri were very much strained and inimical and in such situation, it was quite unnatural and improbable that the deceased would have gone willingly and voluntarily with the accused persons, that too at odd hours of the night as alleged by the so called witnesses of last seen evidence. Except the alleged evidence of so called last seen witnesses, there is nothing on record to connect the appellants with the commission of the alleged offence. 50. Except the alleged evidence of so called last seen witnesses, there is nothing on record to connect the appellants with the commission of the alleged offence. 50. The aforesaid facts clearly show that there are material contradictions /inconsistency in the statements of the witnesses of last seen which goes to the root of the matter and creates serious doubt upon the trustworthiness of the witnesses. The record further reveals that all the three witnesses of last seen were bearing grudge against the accused appellants for different reasons e.g. P.W.4, Surja Singh has stated that he is the real nephew of Shyama and the mother of Shyama was murdered about 4-5 years ago wherein the accused appellants Sukhey and Nihal were cited as witnesses but they did not appear in court to depose in favour of the prosecution. It appears that due to this, the alleged witnesses Surja and Shyama developed grudge against the accused appellants. 51. No weapon alleged to have been used in the commission of crime has been recovered. 52. From the facts and circumstances of the case, it is evident that the appellants have been made accused merely on the basis of alleged last seen evidence which is very fragile and shaky and does not com­plete the chain of events. It is a case of circumstantial evidence and there is no direct evidence against the appellants. Except the alleged evidence of last seen there is not even a single iota of credible and convincing evidence connecting them with the alleged offence. No specific motive has been attributed to the surviving appellants namely Sukhey and Bhagwat for allegedly committing the murder of the victim. Probably the deceased was taken by some unknown miscreants to the outskirts of the village and was murdered by them in the dark hours of the night and no body saw the real assailants and just to work out the case, the false and fabricated story has been concocted by setting up the so called witnesses of last seen and, therefore, the appellants are liable to be acquitted of the charges levelled against them. 53. 53. It is the settled principles of law that to base a conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. In the present case, evidence of last seen given by the witnesses is not of much reliability as the witnesses appear to be interested and there are material contradictions and discrepancies which even belies the so called evidence of last seen. The circumstances sought to be proved against the accused must be established beyond reasonable doubt and such circumstances must form a complete chain leaving no option but to hold that the accused is guilty of the offence. In this connection reference may be made to the law laid down in Ramreddy Rajesh Khanna Reddy and another Vs. State of A.P.: 2006 10 SCC 172 . Paras 26, 27 and 28 of the said judgment are quoted below: 26. "It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. 27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and 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. Even in such a case courts should look for some corroboration. 28. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. 28. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." 54. The mere circumstances of last seen does not by itself necessarily lead to an inference that it was the accused who had committed the crime. There must be more establishing connection between the accused and crime. In this connection reference may be made to the law laid down in Kanhaiya Lal Vs. State of Rajashthan Vs. State of Rajasthan (2014)2 SCC (Cri) 413. 55. 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 and all the circumstances should be complete and there should not be any gap left in the chain of evidence. Reference may be made to the law laid down in Ramesh Bhai and another Vs. State of Rajasthan : (2009) 12 SCC 603 . Paras 11 and 12 of the said judgment are quoted below: "11. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: "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. 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....". 56. In Padala Veera Reddy v. State of A.P. and Ors. ( AIR 1990 SC 79 ), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 57. On the aforesaid point, further reference may be made to the principles laid down in Rishipal Vs. State of Uttarakhand: [ 2013 (81) ACC 442 The observation made the apex court in paras 16 and 17 of the said judgment are as follows: "16. In Mohibur Rahman and Anr. v. State of Assam (2002) 6 SCC 715 , this Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. Similarly in Arjun Marik and Ors. Similarly in Arjun Marik and Ors. V. State of Bihar 1994 Supp (2) SCC 372, this Court reiterated that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded. So also in Godabarish Mishra v. Kuntala Mishra and Another (1996) 11 SCC 264 , this Court declared that the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances. In Bharat v. State of M.P (2003) 3 SCC 106 ; two circumstances on the basis whereof the appellant had been convicted were (i) the appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance. This Court held : "........Mere non-explanation cannot lead to the proof of guilt against the appellant. The prosecution has to prove its case against the appellant beyond reasonable doubt. The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the appellant....." 58. We may also refer to the case of State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755 wherein this Court held that in the absence of any other corroborative piece of evidence to complete the chain of circumstances it is not possible to fasten the guilt on the accused on the solitary circumstance of the two being seen together. Reference may also be made to Bodh Raj alias Bodha and Ors. v. State of Jammu and Kashmir (2002) 8 SCC 45 where this Court held as follows: "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases...." 59. Keeping in view the peculiar facts and circumstances of the case, we are of the opinion that the prosecution cannot be said to have established the guilt of the appellants herein beyond all shadow of doubt. The prosecution story has a large number of loopholes and, thus, we have no option but to hold that the appellants are entitled to the benefit of doubt and the impugned judgment and order passed by the court below deserves to be set aside. 60. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the accused appellants Sukhey and Bhagwat is palpably wrong and the findings recorded by the Court below are perverse, erroneous and can not stand the scrutiny of law. The judgment passed by the trial court is based on a complete misreading of the case and misconception of the legal position relevant to the matter and has not considered the evidence on record in right perspective. The prosecution has not been able to prove the case beyond doubt. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellants. 61. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the present appellants are also entitled to the benefit of doubt and acquittal. 62. Consequently, the appeal is allowed. 63. The impugned judgment and order dated 4.2.1983 passed by III Additional Sessions Judge, Bijnor in S. T. No. 461 of 1980, State Vs. Sukhey and others under Sections 147 and 302 of the Indian Penal Code is hereby set aside and the appellants Sukhey and Bhagtwat are acquitted of the charges levelled against them. The appellants Sukhey and Bhagwat are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liabilities. 64. Sukhey and others under Sections 147 and 302 of the Indian Penal Code is hereby set aside and the appellants Sukhey and Bhagtwat are acquitted of the charges levelled against them. The appellants Sukhey and Bhagwat are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liabilities. 64. Let a copy of this judgment along with the trial court record be sent to the court concerned for compliance. ———————