JUDGMENT : 1. Heard Sri S.M. Nazir Abbas Abedi, learned counsel for the appellant and Sri Awadhesh Narayan Mulla, learned A.G.A. and Smt. Manju Thakur, learned brief holder for the State. 2. By way of instant Jail Appeal, challenge has been made to the validity and sustainability of judgment and order of conviction dated 27.06.2005 passed by Additional Sessions Judge (Fast Track Court No. 5), Meerut in Sessions Trial No. 527 of 2004, u/s 302, 506 I.P.C. (State vs. Rajendra) arising out of Case Crime No. 106 of 2004, Police Station-Hastinapur, District-Meerut, whereby, the appellant-Rajendra has been sentenced to imprisonment for life coupled with fine of Rs. 10,000/- in case of default of payment of fine, two years further imprisonment, under Section 302 I.P.C. Appellant has been acquitted of the charge u/s 506 I.P.C. 3. The prosecution case in short, as discernible from record, appears to be that informant-Harish Chandra s/o Buddh Singh r/o Village-Hastinapur, District Meerutlodged written complaint Ex.Ka.1 in police station-Hastinapur against accused Rajendra s/o Charan Singh on 01.05.2004 at 07.30 A.M. with allegations that on 01.05.2004 in between 4.00 A.M. to 5.00 A.M., his niece Kumari Mamta d/o Chetan had gone to answer the nature's call. While she was returning, accused Rajendra had caught her and dragged her forcibly inside a secluded room. Hearing screams of Km. Mamta informant Harish Chandra, her father Chetan, Rohtash s/o Ramphal, Satish s/o Girwar woke up and rushed towards the place from where the screams of Km. Mamta were coming. On reaching there, they found Rajendra had mounted on the chest of Km. Mamta and was stabbing her with a knife by one hand and gripping her throat with the other. On their arrival at the place of incident, the accused-appellant Rajendra made good his escape from the crime scene with the bloodstained knife after threatening the witnesses with dire consequences if they dared to divulge his name as the perpetrator of the crime. Km. Mamta was wriggling with pain on account of stab wounds inflicted on her by the appellant and succumbed to her injuries after a short while. 4. Contents of the aforesaid information were taken down in the concerned check FIR at Police Station-Hastinapur on 1.5.2001 at 7.30 P.M. in Case Crime No. 106 of 2004 under Section 302 IPC. The check FIR is Exhibit Ka2. 4. Contents of the aforesaid information were taken down in the concerned check FIR at Police Station-Hastinapur on 1.5.2001 at 7.30 P.M. in Case Crime No. 106 of 2004 under Section 302 IPC. The check FIR is Exhibit Ka2. On the basis of entry so made in the check FIR, relevant entry was made in the concerned G.D. entry vide rapat No. 9 at 7.30 A.M. on 1.5.2004 at the same police station under aforesaid section of Indian Penal Code and a case was registered against the accused. The relevant G.D. entry is Exhibit Ka.3. 5. Investigation of the case was taken over by the Investigating Officer-Hari Shanker Joshi PW-5, who after taking note of the contents of the check FIR and other relevant papers, recorded statement of informant and proceeded to the spot along with Constable-Prahalad Singh and after appointing inquest witnesses, held inquest of the deceased. The inquest commenced at 08.10 A.M. and was completed at 10.15 A.M. on 1.5.2004. The inquest report is Exhibit Ka5. 6. In the opinion of the inquest witnesses and the Investigating Officer, it was thought proper to send the dead body for autopsy for ascertaining real cause of death. In the process, relevant papers were prepared-letter to R.I., letter to C.M.O., challan lash, letter to C.M.O.II, photo lash, which have been marked as Ex.Ka.6, Ex. Ka. 7, Ex.Ka.8, Ex.Ka.9 and Ex.Ka.10, respectively. The Investigating Officer collected plain and bloodstained soil from the place of occurrence and prepared recovery memo Ex.Ka.11. The I.O. further inspected the place of incident and prepared site plan of place of occurrence Ex. Ka. 12. He also seized the clothes of the accused-appellant Rajendra, got the crime weapon (knife) recovered on his pointing out and prepared the recovery memos of the aforesaid articles, which are on record as Ex.Ka.14 and Ex.Ka.13 respectively. Vaginal slides of the deceased were taken and sent to the forensic expert, but there is no report of the forensic expert. 7. Thereafter, Investigating Officer Hari Shanker Joshi PW-5 got the dead body of deceased Kumari Mamta sealed and dispatched to the District Hospital, Meerut along with constable Sheodan Singh and Home-Guard Phool Singh for conducting postmortem. The postmortem on the dead body of the deceased was conducted by PW-4 Dr. Sushil Kumar, wherein he noted following antemortem injuries at the time of examination: (1) Incised wound size 3.0 cm. x 1.5 cm. The postmortem on the dead body of the deceased was conducted by PW-4 Dr. Sushil Kumar, wherein he noted following antemortem injuries at the time of examination: (1) Incised wound size 3.0 cm. x 1.5 cm. x cavity deep on front of chest 5.0 cm away from left nipple at 8 O'clock position. (2) Incised wound size 2.0 cm. x 1.5 cm. x cavity deep on right side chest 6.0 cm away from right nipple at 5 O'clock position. (3) Incised wound size 2 cm. x 1 cm. x cavity deep right side upper abdomen 7.0 cm umbilicus at 10 O'clock position. (4) Incised wound size 2.5 cm. x 1.0 cm. x cavity deep 4.0 cm above umbilicus at 12 O'clock position. (5) Incised wound size 2.5 cm. x 1.5 cm. x cavity deep on left side lower chest 10 cm below left nipple at 7 O'clock position. (6) Incised wound size 1.5 cm. x 1.0 cm. cavity deep on left side upper abdomen 5.0 cm away from umbilicus at 2 O'clock position. (7) Incised wound size 2.0 cm. x 1.0 cm. x cavity deep on right side abdomen 3.0 cm away from umbilicus at 3 O'clock position. (8) Incised wound size 1.0 cm. x 1.5 cm. on right side abdomen 5.0 cm away from umbilicus at 3 O'clock position. (9) Contusion size 0.5 cm x 0.5 cm x muscle deep on back of left abdomen 8.0 cm above iliaccrest (left). 8. In the opinion of doctor, cause of death was shock and haemorrhage as a result of antemortem injuries. Postmortem report has been proved by Dr. Sushil Kumar PW-4 as Exhibit Ka-4. 9. Thereafter, committal proceeding took place and the case was committed to the Court of Sessions, where it was numbered as Sessions Trial No. 527 of 2004 and transferred to the Additional Sessions Judge, F.T.C. No. 5, Meerut for conduction and disposal of the trial, who after hearing the prosecution and the accused on point of charge was satisfied with prima facie case against the accused, consequently, framed charge against accused under Section 302 and 506 IPC. Charges were read over and explained to the accused, who abjured the charge and opted for trial. 10. Charges were read over and explained to the accused, who abjured the charge and opted for trial. 10. The prosecution in order to prove its case against the accused, examined as many as five witnesses of whom Harish Chandra PW-1 and Rohatash PW-2 were examined as witnesses of fact while Bijendra Singh PW-3, Dr. Sushil Kumar PW-4 and Hari Shanker Josh PW-5 were produced as formal witnesses. 11. Thereafter, evidence for the prosecution was closed and statement of accused recorded under Section 313 Cr.P.C., wherein he has claimed to have been falsely implicated in the case on the ground that his mother had solemnized second marriage and the father of the complainant was putting pressure on him to get the marriage of his sister solemnized with an alcoholic and when he had objected, his step uncle (fufa) got him falsely implicated in the present case. He had no knowledge about who committed the crime. He adduced testimony of one Gabbar Singh as D.W.1 to prove its alibi. 12. Except as above, no other defence evidence was adduced, therefore, evidence for defence was also closed and the case was posted for argument. 13. The learned Additional Sessions Judge, Meerut after considering the submissions made by learned counsel for the parties and scrutinizing the evidence brought on record, both oral as well as documentary, convicted the appellant under Section 302 I.P.C. and awarded the aforesaid sentence to him, while acquitting him from the charge u/s 506 I.P.C. 14. Hence, this appeal. 15. Learned counsel for the appellant submitted that the incident had taken place in the early hours of 01.05.2004 and no one had actually seen the occurrence. After the dead body of the deceased was discovered in the morning, the accused-appellant was falsely implicated in the present case due to complainant's father being inimical towards him. He next submitted that although Harish Chandra PW-1 and Rohatash PW-2 claimed themselves to be the eyewitnesses of the occurrence, but from the facts deposed by them in their cross-examination, it is proved that they had arrived at the place of occurrence after Km. Mamta (deceased) had been murdered and the culprit, after committing heinous offence, had decamped from the place of occurrence. He also submitted that the time of incident, as spell out in the F.I.R., does not find corroboration from the medical evidence on record. Mamta (deceased) had been murdered and the culprit, after committing heinous offence, had decamped from the place of occurrence. He also submitted that the time of incident, as spell out in the F.I.R., does not find corroboration from the medical evidence on record. The prosecution has failed to come up with any motive for the appellant to commit the offence. 16. Such being the state of evidence, then neither the recorded conviction of the appellant nor the sentence awarded to him by the trial court are neither just nor proper, therefore, conviction of the appellant recorded by the trial court and the sentence awarded to him are liable to be set aside. 17. Per contra, Smt. Manju Thakur, learned brief holder for the State has submitted that it is fully proved from the evidence of Harish Chandra PW-1 and Rohatash PW-2 that accused-appellant Rajendra had committed the murder of Km. Mamta by wielding knife blows on her chest. There is nothing in their testimony, which may even remotely indicate that they had not witnessed the occurrence and they had arrived at the place of occurrence after the accused had escaped after committing the murder of Km. Mamta. Both the witnesses (Harish Chandra PW-1 and Rohatash PW-2) have proved the presence of each other at the time and place of occurrence. The medical evidence on record fully supports the prosecution case. The ocular version further finds support from the medical evidence. The recorded conviction of the appellant is based upon cogent and reliable evidence and the sentence awarded to him is supported by relevant considerations. Hence, this appeal lacks merit and is liable to be dismissed. 18. We have very carefully considered the submissions advanced before us by the learned counsel for the parties and perused the entire record of this appeal. 19. Record reflects that on the basis of the written report Exhibit Ka.1 lodged by informant-Harish Chandra PW-1 (uncle of the deceased-Kumari Mamta) at Police Station-Hastinapur, District-Meerut, Case Crime No. 106 of 2004 u/s 302 and 506 I.P.C. was registered against the accused-appellant. In support of the incident, Harish Chandra PW-1 had categorically stated that on 01.05.2004 between 4.00 to 5.00 A.M., his niece Km. In support of the incident, Harish Chandra PW-1 had categorically stated that on 01.05.2004 between 4.00 to 5.00 A.M., his niece Km. Mamta d/o Chetan r/o Tarapur, P.S.Hastinapur had gone out of her house to answer nature's call in a field across the road and when she was returning after easing herself, accused-appellant-Rajendra forcibly dragged her into an abandoned room near the road and on her raising alarm for help, informant Harish Chandra PW-1 and Rohtash s/o Ramphal and Satish s/o Girwar reached the place of incident and after reaching there, they found Rajendra had mounted on the chest of Km. Mamta and was stabbing her with a knife by one hand while gripping her throat with the other. On their arrival at the place of incident, the accused-appellant Rajendra made good his escape from the crime scene along with the bloodstained knife after threatening the witnesses with dire consequences if they dared to take his name as the perpetrator of the crime. The F.I.R. of the incident was lodged by Harish Chandra PW-1 informant on 01.05.2004 at about 7.30 A.M. 20. Now, we may look to the postmortem examination, Exhibit Ka4. Bare perusal of the postmortem examination report is indicative of fact that there were nine antemortem injuries on the dead body of the deceased Kumari Mamta. 21. The ante-mortem injury No. 9 was described as a contusion on back of left abdomen. Injury Nos. 1 to 8 were incised wounds on whole chest and abdomen. 22. In the opinion of doctor, cause of death was shock and haemorrhage as a result of antemortem injuries. Postmortem report has been proved by Dr. Sushil Kumar PW-4 as Exhibit Ka4. He has suggested that these injuries might have been caused by sharp edged weapon like knife. He opined that deceased might have died on 1.5.2004 between 1.00 A.M. to 2.00 A.M. and all the injuries were sufficient to cause death of victim. He had further suggested that the condition of her stomach, as spelt out in the postmortem report, was that semi-digested food was found, which further indicated the possibility that she had been killed before she had eased herself. Thus, on the basis of the evidence of Dr. He had further suggested that the condition of her stomach, as spelt out in the postmortem report, was that semi-digested food was found, which further indicated the possibility that she had been killed before she had eased herself. Thus, on the basis of the evidence of Dr. Sushil Kumar PW-4, we find that the medical evidence does not corroborate the time of incident as spelt out in the F.I.R and the prosecution case that the deceased was murdered while she was returning after answering to nature's call in the early morning. 23. Before proceeding to examine the veracity of the evidence of the eyewitnesses examined by the prosecution for proving the charge framed against the appellant, it would be appropriate to refer to the evidence of the formal witness Constable Bijendra Singh PW-3, who was posted as Head Moharrir at Police Station-Hastinapur at the relevant point of time proved the check F.I.R. and relevant G.D. Exhibit Ka.2 and Exhibit Ka.3. He also deposed that on the basis of the written report given to him by Harish Chandra PW-1 on 01.05.2004 at about 7.30 A.M, he had registered the case in the G.D. at Rapat No. 9 at 7.30 A.M. on 01.05.2004. 24. It is reflected from the record that no suggestion has been given to the witnesses that the F.I.R. was not registered at the time shown in the check F.I.R. and G.D. Hence, the F.I.R. in this case cannot be said to be ante-timed. 25. Hari Shanker Joshi, Investigating Officer, who had completed investigation of the case and submitted chargesheet has been examined as PW-5. He in his evidence has furnished the details of the steps taken by him during investigation and proved the chargesheet Ex.Ka.16, letter to R.I. Ex.Ka.6, letter to C.M.O. Ex. Ka.8, challan lash Ex.Ka.8, letter to C.M.O. II Ex. Ka.9 and photo lash Ex.Ka.10. 26. It is noteworthy that PW-5 Hari Shanker Joshi in his testimony recorded before the trial court has very frankly deposed that neither he had sent vaginal slides nor the knife allegedly used by the appellant in committing the murder of the deceased for chemical examination. 27. Thus, it is clear that the prosecution has failed to establish by any cogent evidence that the injuries found on the dead body of the deceased were caused by the knife allegedly recovered on the pointing out of the accused-appellant on 01.05.2004. 28. 27. Thus, it is clear that the prosecution has failed to establish by any cogent evidence that the injuries found on the dead body of the deceased were caused by the knife allegedly recovered on the pointing out of the accused-appellant on 01.05.2004. 28. Now, we embark upon an enquiry to evaluate the evidence of Harish Chandra PW-1 and Rohatash PW-2 with the object of ascertaining whether they had spoken the truth before the trial court or not. Harish Chandra PW-1 has in his examination-in-chief fully supported the prosecution case as spelt out vis-a-vis the time, place and manner of assault and the identity of the perpetrator of the crime. 29. Similarly, Rohatash PW-2 in his examination-in-chief has also fully corroborated the testimony of Hari Shanker PW-1 on all material points relating to the occurrence. However, from facts deposed by Hari Shanker PW-1 and Rohatash PW-2 in their cross-examinations on page Nos. 12 and 15 of the paper book it is established beyond any doubt that both these witnesses had arrived at the place of occurrence after the incident had taken place and the culprit had made his escape good from the place of incident. In this regard, it would be useful to reproduce the relevant portion of the testimony of Hari Shanker PW-1 who has stated (on page No. 12 of the paper book) that: ^^tc eSa Hkkxdj ekSds ij igaqpk rks eerk dh yk'k iM+h feyh FkhA-----** 30. It would also be useful to reproduce the relevant portion of the testimony of Rohatash PW-2 who has stated (on page No. 15 of the paper book) that: ^^-----lrh'k o gf'pUnz Hkkx jgs Fks eSa muds lkFk gks fy;kA tc eSa iagqpk rks eerk fxjh iM+h FkhA eerk 'kkSp ds fy;s xbZ Fkh ;g ckr eerk ds ?kjokyksa us crkbZ FkhA--------** 31. Thus, upon a wholesome appraisal and careful evaluation of the evidence on record, both oral as well as documentary, we find that the prosecution has failed to prove its case against the appellant beyond all reasonable doubts. It is evident from the testimony of Hari Shanker PW-1 and Rohatash PW-2 that they had arrived at the place of the incident after the occurrence had taken place and had neither seen the accused-appellant Rajendra stabbing the deceased nor his escaping from the place of occurrence with the bloodstained knife. It is evident from the testimony of Hari Shanker PW-1 and Rohatash PW-2 that they had arrived at the place of the incident after the occurrence had taken place and had neither seen the accused-appellant Rajendra stabbing the deceased nor his escaping from the place of occurrence with the bloodstained knife. Their evidence regarding the deceased having gone out of her house on 01.05.2004 between 4.00 to 5.00 A.M. to answer nature's call and her being dragged by accused- appellant Rajendra in an abandoned lonely room at the side of the road is either a figment of imagination of the fact witnessed or total embellishment, as from the facts deposed by them in their examination-in-chief, it is apparent that they had woken up after hearing the screams of Km. Mamta, as such the evidence given by them that deceased Km. Mamta had gone to answer the call of nature and while she was returning back, she was dragged by the appellant into an abandoned room, cannot be termed as evidence of facts within their knowledge as the same relate to the time when they were admittedly sleeping. Hence, their evidence on the aforesaid point is wholly inadmissible. The medical evidence on record does not corroborate the ocular testimony recorded by the trial court. 32. In view of above, the recorded conviction of the appellant and the sentence awarded to him in Sessions Trial No. 527 of 2004, u/s 302, 506 I.P.C. (State vs. Rajendra) arising out of Case Crime No. 106 of 2004, Police Station-Hastinapur, District-Meerut, passed by Additional Sessions Judge (Fast Track Court No. 5), Meerut cannot be sustained and are hereby set aside by us. 33. The appeal is accordingly allowed. 34. The accused-appellant Rajendra is in jail for the last 13 years. He shall be released forthwith, if not wanted in connection with any other case. 35. However, we direct that the appellant will ensure compliance of provisions of Section 437A Cr.P.C. by appearing before the concerned trial court at the earliest. 36. Let a copy of this judgment/order be certified to the court below for its intimation and follow-up action.