JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—Heard Sri Neeraj Tripathi, Advocate assisted by Sri Bharat Singh Pal, learned counsel for the appellants, Sri A.N. Mulla, Sri Sagir Ahmad, Sri J.K. Upadhyay, Kumari Meena and Smt. Manju Thakur, learned A.G.A.s for the State and perused the record. 2. By way of instant criminal appeal, both the appellants- Sanjay Rastogi and Rajeev Rastogi have challenged sustainability of judgment of conviction and sentence dated 5.3.2005 passed by the Additional Sessions Judge, Court No. 2, Rampur in Sessions Trial No. 276 of 2003, whereby the learned trial Judge after convicting both the aforesaid appellants under Sections 302/34, 411 IPC sentenced them to imprisonment for life coupled with fine Rs. 25,000/- each and in case of default, the concerned convict would have to suffer additional one year R.I. under Section 302/34 IPC. Each of the aforesaid appellants has been sentenced for offence under Section 411 IPC to one year R.I. Both the sentences have been directed to run concurrently. 3. Brief sketch of the prosecution story, as unfolded by the First Information Report, reveals that informant- Suryakant Shukla- father of deceased- Ravi Ranjan Dev Shukla- lodged written report at Police Station- Kotwali Rampur on 31.10.2002 at 8.30 a.m. against both the appellants- Sanjay Rastogi and Rajeev Rastogi- with allegations that both the appellants came to the house of first informant- Suryakant Shukla around 6.30 p.m. on 30.10.2002 and called his son- Ravi Ranjan Dev Shukla and said to him that they should go for marketing for purchasing some article and took him with them. First informant- Suryakant Shukla and his elder son- Chitranjan Dev Shukla waited for him the whole night and also searched for his son at Sanjay Rastogi’s house and at other places in the locality, but did not succeed. First informant alongwith his elder son- Chitranjan Dev Shukla- went to the house of Sanjay Rastogi around 6.00 a.m. on 31.10.2002 where they met with Sanjay Rastogi and on inquiry being made about missing Ravi Ranjan Dev Shukla from Sanjay Rastogi, they were told that the thorn has been removed. They should go to Khasbagh where Ravi Ranjan Dev Shukla will be found lying dead. They should go to Khasbagh where Ravi Ranjan Dev Shukla will be found lying dead. Informant and his elder son (Chitranjan Dev Shukla) alongwith one Vishnu s/o Heera Lal of the locality went to Khasbagh and searched Ravi Ranjan Dev Shukla where they found Ravi Ranjan Dev Shukla lying dead inside the garden close to its wall. Certain injury marks were also seen by them on his body. The informant left behind his son Chitranjan Dev Shukla on the spot and went to the police station to lodge the report, whereupon, the report was lodged at 8.30 a.m. at Police Station- Kotwali Rampur at Case Crime No. 583 of 2002, under Sections 302, 201 IPC. 4. Written report is Exhibit Ka-1. Relevant entries were made in the concerned Check FIR at aforesaid case crime number at aforesaid date and time at police station- Kotwali Rampur. The Check FIR is Exhibit Ka-7. On the basis of entries made in the Check FIR, a case was registered at Serial No. 17 of General Diary dated 31.10.2002 at aforesaid crime number under aforesaid sections of IPC against accused persons. The relevant GD entry is Exhibit Ka-8. 5. Record further reflects that after registration of the case, investigation was prompted by Investigating Officer- Sri Tripurari Diwakar- P.W.6, who after recording relevant contents of the FIR and statement of Constable and the complainant proceeded to the spot and at the pointing out of the informant, prepared site plan, Exhibit Ka-9 and also collected the sample of simple and blood-stained clay-roll from the spot, prepared memo of the same, Exhibit Ka-3. Inquest of deceased- Ravi Ranjan Dev Shukla- was also held under supervision and direction of the Investigating Officer by the S.I. Vikas Saxena, the very same day, which has been proved by the Investigating Officer, as Exhibit Ka-2 and after inquest was completed, the dead body was sent for post-mortem examination after preparation of relevant papers Exhibit Ka-10 to Ka-14. 6. Post-mortem examination of the dead body of deceased- Ravi Ranjan Dev Shukla- was conducted at 4.45 p.m. on 31.10.2002 by Dr. Gyan Chandra, whereby he noted the following ante-mortem injuries on his body : Ante-mortem Injuries: (1) Incised wound 4.0 c.m. x 3.0 c.m. x bone deep at left side of nose. Absence of skin and left part of nostril. (2) Multiple incised wounds of size 1.0 c.m. x 0.5 cm. Gyan Chandra, whereby he noted the following ante-mortem injuries on his body : Ante-mortem Injuries: (1) Incised wound 4.0 c.m. x 3.0 c.m. x bone deep at left side of nose. Absence of skin and left part of nostril. (2) Multiple incised wounds of size 1.0 c.m. x 0.5 cm. x muscle deep at left side of face, upper part in front and below left ear and also behind left ear. (3) Multiple superficial incised wounds and scratch marks of different size and shape and skin deep at left side of face. (4) Incised wounds of size 1.5 c.m. x 1.0 cm. x bone deep and 2.0 c.m. x 1.5 cm. x bone deep at behind left ear and about 1.0 cm away from each other. (5) Stab wound 1.0 c.m. x 0.5 c.m. x 3.0 cm below left ear. (6) Stab wound 1.0 c.m. x 0.5 c.m. x 3.0 c.m. oblique towards anterior part of left lower jaw, blood at upper part of neck on left side. (7) Multiple (3) incised wounds 1.0 c.m. x 0.5 cm x skin deep at left upper chest, two above and one below left clavicle. (8) Stab wound 1.5 c.m. x 1.0 cm. x chest cavity deep at right upper, above 7.0 cm away and above right nipple and about 7.0 cm below from medial end of right clavicle. (9) Multiple scratch marks at both side of face and neck mostly on right side. (10) Two incised wounds of size 1.0 c.m. x 0.5 c.m. x muscle deep at left upper neck thyroid cartilage. (11) Multiple scratch marks at left forearm and hand dorsum. (12) Multiple incised wound 1.0 c.m. x 0.5 c.m. x muscle deep at antero-lateral aspect of right elbow (three) and arm (one). (13) Incised wound 1.0 c.m. x 0.2 c.m. x muscle deep at right palm, upper and mid part. (14) Incised wound 1.5 c.m. x 0.5 c.m. x muscle deep at anterior part of left thigh lower part of just above left knee. 7. Cause of death was stated to be due to shock and haemorrhage as a result of ante-mortem injuries. The doctor witness has proved the post-mortem report as Exhibit Ka-21. 8. (14) Incised wound 1.5 c.m. x 0.5 c.m. x muscle deep at anterior part of left thigh lower part of just above left knee. 7. Cause of death was stated to be due to shock and haemorrhage as a result of ante-mortem injuries. The doctor witness has proved the post-mortem report as Exhibit Ka-21. 8. The Investigating Officer took note of contents of FIR and took steps for arrest of the accused persons and arrested them at 4.25 p.m., the same day on 31.10.2002, and after their arrest, they were taken to the police station and to the spot, from where they got recovered one blood stained bodkin (needle like weapon ‘sooja’) and prepared memo of the same, Exhibit Ka-4. The Investigating Officer also recovered three ‘buttons’, which were stated to be of the shirt of appellant- Sanjay Rastogi- which had felled on ground, a memo of the same was prepared, which is Exhibit Ka-5. These three ‘buttons’ have been proved, as material Exhibits 3, 4 and 5. 9. From the side of the wall of Khas Bagh one ‘watch’ belonging to deceased- Ravi Ranjan Dev Shukla- was recovered embedded under soil at the pointing out of Sanjay Rastogi and Rajeev Rastogi- the two appellants. The memo of the same was also prepared, as Exhibit Ka-6. The watch has been proved by the Investigating Officer, as material Exhibit-1. 10. The clothes of the appellants were taken into possession and the memo of the same was prepared as Exhibit Ka-15. Blood stained shirt of Sanjay Rastogi and vest of Rajeev Rastogi has been proved by the Investigating Officer, as material Exhibits- 12 and 13. 11. The Investigating Officer also took various others steps for completing the investigation and in the process prepared site plan of the the place of recovery of aforesaid material exhibits, weapon, buttons, bodkin etc., which site plan has been proved by the Investigating Officer as Exhibit Ka-19. 12. 11. The Investigating Officer also took various others steps for completing the investigation and in the process prepared site plan of the the place of recovery of aforesaid material exhibits, weapon, buttons, bodkin etc., which site plan has been proved by the Investigating Officer as Exhibit Ka-19. 12. After recording statements of various witnesses, the Investigating Officer completed the investigation and filed charge-sheet, Exhibit Ka-20, against both the appellants, whereupon, the case was committed to the Court of Sessions for trial and was ultimately received by the concerned trial Court where both the appellants were heard on point of charge and prima facie ground was found for framing charges under Sections 302/34, 201, 394 and 411 IPC and accordingly charges were read over and explained to the accused persons, who abjured charges and opted for trial. 13. Consequently, the prosecution was required to produce all its testimony, whereupon, it produced as many as seven witnesses. Brief sketch of the same is as hereunder : (1) Suryakant Shukla P.W.1 is the father of deceased and first informant. He claims himself to be witness of fact of last seen that the accused persons took away his son- Ravi Ranjan Dev Shukla- with them from his house. (2) Chitranjan Dev Shukla P.W.2 is brother of deceased and claims himself to be witness of the same fact as P.W.1(Suryaknant Shukla). (3) Suhail Masood P.W.3 is witness of fact that he saw the accused accompanying the deceased and proceeding towards Khas Bagh. (4) Similar version has been given by another witness- Zuber Shah Khan P.W.4. (5) Ram Ratan Lal P.W.5 is also witness of fact and he has testified to the fact that he saw the accused persons talking to the deceased. (6) Sri Tripurari Diwakar P.W.6 is the Investigating Officer. He has detailed about the steps he took in completing the investigation. He has filed charge-sheet against accused persons. (7) Dr. Gyan Chandra P.W.7 has conducted post-mortem examination on the cadaver of the deceased on 31.10.2002 at 4.45 p.m. and has proved the post-mortem report Exhibit Ka-21. 14. (6) Sri Tripurari Diwakar P.W.6 is the Investigating Officer. He has detailed about the steps he took in completing the investigation. He has filed charge-sheet against accused persons. (7) Dr. Gyan Chandra P.W.7 has conducted post-mortem examination on the cadaver of the deceased on 31.10.2002 at 4.45 p.m. and has proved the post-mortem report Exhibit Ka-21. 14. Except as above, no other evidence was adduced and the evidence for the prosecution was closed and statement of both the accused persons- Sanjay Rastogi and Rajeev Rastogi recorded under Section 313 Cr.P.C., wherein both the accused persons claimed their implication false and submitted that the informant side tried to get vacated some house from Kallu- brother of Sanjay Rastogi and brother-in-law of Rajeev Rastogi @ Raju. 15. No evidence whatsoever was led by the defence. The trial Judge after hearing both the sides and considering merit of the case passed aforesaid judgment of conviction and sentence. 16. Consequently this appeal. 17. It has been vehemently contended on behalf of the appellants that it is a case which creates wholesome darkness on the happening of the incident as to who committed it and how was it committed but the first informant with oblique motive falsely named the accused persons in the First Information Report. The testimony of two witnesses- Suryakant Shukla P.W.1 and Chitranjan Dev Shukla P.W.2, respectively when read together, then it comes out that both the testimonies are full of contradictions and contradicting each other on material points. If testimony of one of them is believed to be true, then testimony of the other one is rendered false. If the two persons have witnessed the last seen and have deposed about the same then description and narration of last seen so stated will never differ materially in description of both the aforesaid witnesses. This aspect would invariably lead to construe that both the witnesses never saw the accused calling the deceased at his home on 30.10.2002. Even the motive suggested for committing the crime is not proved and it being circumstantial case, all the circumstances of the chain are to be completed in order to establish the guilt conclusively. The prosecution is required to prove and establish reasonably the motive as the relevant factor for committing the offence, but the motive imputed have neither been proved nor established, therefore, whole case falls flat. The prosecution is required to prove and establish reasonably the motive as the relevant factor for committing the offence, but the motive imputed have neither been proved nor established, therefore, whole case falls flat. Even the dramatic recovery of bodkin, button and watch cannot be attributed at the pointing out of the accused persons because the witnesses of recovery are not independent witnesses and the dramatic manner in which the dead body of deceased was recovered from Khas Bagh was not at the pointing out of the accused persons. No one saw the accused persons commit the offence. The Investigating Officer has perfunctorily performed his duty just to give colour to the prosecution story. 18. The doctor witness Gyan Chandra P.W.7 has also supported case that the material exhibit bodkin material Exhibit-2 is not sharp-edged. The other witnesses are chance witnesses and police witnesses. It is highly improbable that Sanjay Rastogi, who resides opposite to the house of deceased, will ever commit the offence and will tell the informant about commission of the offence and about whereabouts of the dead body. 19. On bare perusal of FIR it is reflected that the entire process started only after recovery of dead body of Ravi Ranjan Dev Shukla and at the instance of the police, the informant falsely named the accused persons. Learned counsel for the appellants submitted that FIR is delayed one and ante-timed. 20. While controverting aforesaid arguments, learned AGA engaged attention of the Court to the testimony of both the witnesses- Suryakant Shukla P.W.1 and Chitranjan Dev Shukla P.W.2 and claimed that both the witnesses have proved last seen theory against the accused and the FIR itself makes out specific case against the accused. The motive for committing the crime has been specifically proved. Not only this, the various other witnesses have also seen the accused persons accompanying the deceased and moving towards Khas Bagh, this fact also strengths case of the prosecution. Investigation of the case was conducted in fair manner and specific recoveries have been noted against the accused persons, which also points out that the weapon- bodkin was used and post-mortem report tallies with theory of injury being caused by such weapon in form of stab wound. The doctor has supported post-mortem report. Investigation of the case was conducted in fair manner and specific recoveries have been noted against the accused persons, which also points out that the weapon- bodkin was used and post-mortem report tallies with theory of injury being caused by such weapon in form of stab wound. The doctor has supported post-mortem report. Once last seen theory is established, motive is proved, the burden of prove shifts on the accused to show that the murder was not committed by them. The trial Court was justified in recording finding of conviction. 21. We have also considered the rival submissions and also considered the rival claims made by both the parties. 22. The moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to store successfully all the links of circumstances, which leave aside every hypothesis of innocence of the accused and establishes charge beyond reasonable doubt against them? 23. In this case the First Information Report was lodged after disappearance of deceased- Ravi Ranjan Dev Shukla on 31.10.2002 at 8.30 a.m. at Police Station- Kotwali, District- Rampur, after receiving information of death of deceased Ravi Ranjan whereby description of the incident was given to the effect that two persons- Sanjay Rastogi son of Darshan Lal and Rajeev Rastogi son of Shiv Kumar came to the house of first informant around 6.30 p.m. on 30.10.2002 and took with them informant’s son Ravi Ranjan Dev Shukla, aged 19 years, and stated that they are going to the market alongwith him (deceased). The first informant and his elder son Chitranjan Dev Shukla waited for whole night, but he did not return. They searched for whereabouts of Ravi Ranjan Dev Shukla (deceased) in the night, but no trace of missing Ravi Ranjan Dev Shukla could be made by them. In the morning of 31st of October 2002, informant accompanied with his son Chitranjan Dev Shukla and one Vishnu went to the house of Sanjay Rastogi and asked about whereabouts of Ravi Ranjan Dev Shukla- the deceased, whereupon, he told them that he has removed the thorn and dead body of Ravi Ranjan Dev Shukla can be found in the Khas Bagh, whereupon, the informant rushed to Khas Bagh and searched for his son, where he found his son lying dead near wall inside the Khas Bagh. They also saw injury marks on the body of Ravi Ranjan Dev Shukla. 24. In this factual background, we have to scrutinize and evaluate testimony of both the witnessed- first informant- Suryakant Shukla P.W.1, Chitranjan Dev Shukla P.W.2- the brother of the deceased and other prosecution witnesses of fact. But before we enter into and analyse merit of the case, we would like to observe that it is an admitted fact that no one saw the occurrence i.e., killing of Ravi Ranjan Dev Shukla by any culprit. 25. In this particular factual background, obviously, it is a case based on circumstantial evidence. It is cardinal principle of criminal jurisprudence that in matters of circumstantial cases the chain of circumstances must be completed and every link of the chain should be consistent with the guilt of the accused and it should be established conclusively against the accused to the exclusion of all others that the accused and accused alone has committed the crime and none else. 26. Therefore, we would have to keep in mind the nature of the case and have to scrutinize as to whether the prosecution has been able to establish consistently and conclusively each link of the chain of circumstances to the exclusion of all others except the present accused persons that they committed the offence charged with. 27. We can observe that in cases, which are based on circumstances alone, motive forms core consideration for committing the offence and in case, the motive is found to be either weak or full of hollowness or not proved then the natural consequence would follow and a doubt will be generated in the prosecution story. 28. The First Information Report is absolutely silent about any motive for committing the crime. Although, we can take note of the circumstance that the present FIR has been lodged at 8:30 a.m. at police station Kotwali Rampur only after discovery of dead body of Ravi Ranjan Dev. But it does not describe any motive for committing the offence, therefore, we would gather factum of motive from the testimony of witnesses of fact. 29. Although, we can take note of the circumstance that the present FIR has been lodged at 8:30 a.m. at police station Kotwali Rampur only after discovery of dead body of Ravi Ranjan Dev. But it does not describe any motive for committing the offence, therefore, we would gather factum of motive from the testimony of witnesses of fact. 29. On careful perusal of testimony of both the aforesaid witnesses of fact- Suryakant Shukla P.W.1 and Chitranjan Dev Shukla P.W.2, we come across facts that one Neelam w/o Kallu (elder brother of appellant Sanjay Rastogi) was having illicit relationship with accused Sanjay Rastogi and the deceased Ravi Ranjan Dev Shukla used to visit house of Neelam and as per specific testimony of Chitranjan Dev Shukla P.W.2 son of informant an inference has been drawn that the deceased might have seen Sanjay Rastogi and Neelam in objectionable position, therefore, Sanjay Rastogi was apprehensive that the deceased may tell this fact to others. 30. In so far as the source of this information is concerned, both the witnesses have unanimously expressed view that they came to know about bad reputation of the lady (Neelam) only at the instance of people of their locality. It means that the imputation regarding existence of illicit relationship between Sanjay Rastogi and Neelam, w/o Kallu (Sanjay Rastogi’s elder brother) has no worthy base to stand on and it cannot stand test of judicial scrutiny and it cannot be said that particular motive so suggested by the prosecution witnesses is worth believing. It is merely hearsay evidence and sans merit. That way, the theory of motive of existing illicit relationship between Sanjay Rastogi and Neelam and its knowledge to the deceased, loses legal significance and as such, no workable motive established. 31. Except as above, Suryakant Shukla PW-1 has himself admitted in his cross-examination on page-24 of the paper book, that Rajeev Rastogi had no enmity with the deceased. If it is so, then the motive attributed is also not workable against Rajeev Rastogi, the another accused. 32. Now, we may switch over to another factual but vital aspect of the case- say- last seen theory. In this case, last seen theory has been described to be the act of both the accused persons in taking away the deceased from his home around 6:30 p.m. on 30.10.2002. 32. Now, we may switch over to another factual but vital aspect of the case- say- last seen theory. In this case, last seen theory has been described to be the act of both the accused persons in taking away the deceased from his home around 6:30 p.m. on 30.10.2002. Both the witnesses of fact- Suryakant Shukla PW-1 and Chitranjan Dev Shukla PW-2 had on the point of last seen theory stated to have seen the accused persons when both of them came to the house of the first informant, called deceased Ravi Ranjan Dev Shukla. When Ravi Ranjan Dev Shukla came out of the house they took him with them saying that they are going to market. This specific testimony appears in the testimony of Suryakant Shukla PW-1. The point is that the version so described by Suryakant Shukla PW-1 regarding last seen theory is in contrast to the description of last seen theory given by Chitranjan Dev Shukla PW-2. 33. We may take certain excerpts appearing in his cross-examination. On page 30 of the paper book, Chitranjan Dev Shukla P.W.2 has stated that when the accused took the deceased with them from his house, he was sitting in the Courtyard of his house and when any person comes to his house, he is visible from that spot. He states that at the call of accused persons, Ravi Ranjan Dev Shukla opened the door, came out of the house and he (Chitranjan Dev Shukla) watched him from a distance of 8-9 steps. He (Ravi Ranjan Dev) went with them. He did not go for purchasing any article. At that point of time, his father, mother, wife and sister were present in the house. On page 31 of the paper book, he deposes that his brother (Ravi Ranjan Dev) left the house after telling his father that he is going for recreation in the market. This testimony of Chitranjan Dev Shukla PW-2, if compared with testimony of Suryakant Shukla PW-1, stands iin grave contrast on point that Suryakant Shukla PW-1 claims that when his son came out of the house, he also followed him and he himself saw the accused persons and they took the deceased with them for marketing. This testimony of Chitranjan Dev Shukla PW-2, if compared with testimony of Suryakant Shukla PW-1, stands iin grave contrast on point that Suryakant Shukla PW-1 claims that when his son came out of the house, he also followed him and he himself saw the accused persons and they took the deceased with them for marketing. If, it was in fact so, then Chitranjan Dev Shukla PW-2 must have stated specifically that his brother- the deceased- was followed by his father and in the presence of his father, both the accused persons took away with them the deceased because the place from where Chitranjan Dev Shukla- PW-2 saw the deceased and the accused persons were very much visible from the spot/place where Chitranjan Dev Shukla PW-2 was in fact sitting at that relevant point of time. Here, presence of Suryakant Shukla PW-1 vis-a-vis presence of deceased has been rendered dubious, and so becomes his testimony as well, on the point of last seen theory. 34. Put differently, we may add that it has come in the testimony of Chitranjan Dev Shukla PW-2 that there was no point for any marketing and his brother went for recreation with the accused persons. Therefore, presence of Suryakant Shukla PW-1, if taken on the whole, stands falsified. But, in the face of testimony of Suryakant Shukla PW-1, if the testimony of Chitranjan Dev Shukla PW-2 has emerged differently on point of last seen theory and the same is believed to be correct one, then the ocular version of last seen theory itself becomes doubtful. Now, the point is, as to which of the two testimonies (of Suryakant Shukla PW-1 and Chitranjan Dev Shukla PW-2) is to be believed to be correct one. Cautious and careful scrutiny of their testimony on the whole reflects that both the witnesses (PW-1 and PW-2) are improving in their respective spheres on point of last seen theory and both have come up with their own version. This analysis is based on fact that Suryakant Shukla PW-1 never made any statement under Section 161 Cr.P.C. to the Investigating Officer that he ever made any such statement to Daroga Ji that he followed his son when his son came out of the house. When confronted, Suryakant Shukla PW-1 could not assign any worthy reason for non-recording of any such statement given by him to Daroga Ji under Section 161 Cr.P.C. 35. When confronted, Suryakant Shukla PW-1 could not assign any worthy reason for non-recording of any such statement given by him to Daroga Ji under Section 161 Cr.P.C. 35. Another vital aspect of the case pertains to the realm of contradictions. We come across certain contradictions in the testimonial account of the two witnesses. As per testimony of Suryakant Shukla PW-1, he alongwith his elder son- Chitranjan Dev Shukla and one Vishnu went to the house of Sanjay Rastogi to inquire about whereabouts of his son Ravi Ranjan Dev Shukla. On inquiry being made and after Sanjay Rastogi said to him about whereabouts of his son, he wanted to catch Sanjay Rastogi but he could not. This specific testimony appears on page No. 18 of the paper book, but in the testimony of Chitranjan Dev Shukla PW-2, as appearing on Page No. 27 of the paper book when Sanjay Rastogi came out of his house, he was caught by him and then inquired of him. However, after Sanjay Rastogi told him/them that dead body of Ravi Ranjan Dev Shukla was lying in Khas Bagh, this somehow created panic for these witnesses and Sanjay Rastogi escaped away. Both the testimony of Suryakant Shukla PW-1 and Chitranjan Dev Shukla PW-2 on this factual aspect are at great variance. As per testimony of Suryakant Shukla PW-1, there was no catching hold of Sanjay Rastogi, the accused, and as per testimony of Chitranjan Dev Shukla PW-2, Sanjay Rastogi was initially caught by him (by Chitranjan Dev Shukla PW-2) but he later on freed himself from the grip. Either of the two may be correct but both cannot be correct and to hammer out a solution as to who among the two is correct, will be an imaginary exercise and would not serve purpose of judicial scrutiny, therefore, on this particular aspect also both the witnesses are vacillating and improving on in their respective testimony which turn out to be full of embellishments on such vital aspect. 36. 36. At this stage, we may also discuss point of arrest of accused persons by the police on 31.10.2002, as per testimony of Investigating Officer- Sri Tripurari Diwakar PW-6- on page No. 42 of the paper book, he arrested Sanjay Rastogi and Rajeev Rastogi, the two accused, at Rampur bus stand and brought them at the police station around 4:25 p.m. and inquired about the incident and they confessed to have committed the crime and also told the Investigating Officer that they will ensure recovery of the watch of deceased and the weapon used for committing the crime. Then the Investigating Officer reached at the place of occurrence in Khas Bagh and from the southern wall of Khas Bagh a bodkin (sooja) was recovered from the place and a memo of the same was prepared as Exhibit Ka-4. But here the point is that no independent witness was tried to be availed and the work of witness was accomplished by ensuring presence of Vishnu Singh and Chitranjan Dev Shukla PW-2. Vishnu Singh is admittedly intimate to Suryakant Shukla PW-1- the informant and Chitranjan Dev Shukla PW-2 is none other than brother of the deceased. 37. Bare perusal of testimony of Zuber Shah Khan PW-4 reflects that no specific disclosure statement has been noted/described in the memo of recovery of bodkin, Exhibit Ka-4. Therefore, the fact of recovery of bodkin loses its legal force and as such, not believable and similar is the position regarding recovery of three buttons allegedly recovered from the spot at the pointing out of the accused, which buttons were buttons of Sanjay Rastogi’s shirt but for the same reason, as recorded above, the recovery memo of buttons, Exhibit Ka-5, also loses legal significance and as such cannot be read against the accused and regarding recovery of ‘RICO’ watch, allegedly of deceased, recovered from the spot, no disclosure statement has been noted in Exhibit Ka-6. The alleged recovery memo and the witnesses are not independent witnesses. It also loses its legal force and as such, it is not believable. 38. The alleged recovery memo and the witnesses are not independent witnesses. It also loses its legal force and as such, it is not believable. 38. The aforesaid particular legal aspects which render Exhibits 3, 4, 5 and 6 without legal force find support from the testimony of Chitranjan Dev Shukla PW-2 itself when he says in his cross-examination on page No. 31 that Sanjay Rastogi was called by the police at the police station then he saw him at the police station at 4:30 p.m. on 31.10.2002. This particular statement gives rise to certain possibilities that police had earlier ensured presence of Sanjay Rastogi and arrest of Sanjay Rastogi, as stated before the trial Court by the Investigating Officer from bus stand Rampur, was a pretension just to plug loopholes in the prosecution story. If the F.I.R./Report was in fact lodged at the police station at 4:25 p.m. on 31.10.2002 by the Investigating Officer then how and why Chitranjan Dev Shukla PW-2 says on page No. 31 in his cross-examination that the police had called Sanjay Rastogi at the police station at 4:30 p.m. It means he was not seen by Chitranjan Dev Shukla PW-2 in the police lockup but Sanjay Rastogi was called by the police at 4:30 p.m. on 31.10.2002, therefore, theory of arrest of Sanjay Rastogi also loses its legal force and becomes doubtful. 39. Argument has been raised on behalf of the appellants that in this case there was no proper motive for committing the crime and the police has infact acted in collusion with the complainant and in order to implicate falsely the appellants thrusted upon them certain false recovery, which recovery also include alleged weapon of assault used in the commission of the crime, material Exhibit-2 is the bodkin, which bodkin, as per testimony of doctor witness- Gyan Chandra P.W.7 was not sharp edged. 40. On page-52, doctor witness, who conducted post-mortem examination on the cadaver of deceased has specifically stated that the material Exhibit-2 does not bear any edge and no such edge has either been created on the bodkin or exist on it. 40. On page-52, doctor witness, who conducted post-mortem examination on the cadaver of deceased has specifically stated that the material Exhibit-2 does not bear any edge and no such edge has either been created on the bodkin or exist on it. Thereafter a question was put by the trial Court itself whereupon, the doctor witness said that these sort of injuries found on the body of the deceased could have been caused by use of this bodkin and again in the very last portion of his testimony, this doctor has taken ‘U’ turn and has submitted that the edge of this bodkin is quite sharp and therefore, injury Nos. 3, 11, 12, 13 and 14 could be caused by the said weapon. 41. Learned counsel for the appellants added that this testimony itself is vacillating i.e. one in favour of the appellants that this bodkin does not have sharp edge nor does any sharp edge has been created on the weapon but in his ending part of his testimony, this doctor witness takes a ‘U’ turn and testifies that it is sharp edged, therefore, such injuries may have been caused by use of this weapon. That way the testimony is fluctuating and vacillating and the part of testimony, which substantially favours the case of appellants, cannot be ignored and advantage should go to the accused persons. 42. In context of above argument, we have also perused testimony of Dr. Gyan Chandra P.W.7, who has testified in his cross-examination at the initial stage when he was shown material Exhibit-2- the bodkin- the weapon of assault- then he testified to the fact that this bodkin is not sharp edged nor any edge has been created on this weapon and later on when he was questioned by the trial Court itself, he said that these injuries could have been caused by use of this weapon and in the ending part he deposes that certain injury Nos. 3, 11, 12, 13 and 14 may be caused by material Exhibit-2 (bodkin) because it is sharp edged weapon. This way, it is obvious that the doctor witness is not sure. He is blowing hot and cold on the point of ‘edge’ of the weapon. On the one hand he says that it is blunt and on the other hand, he says that it is sharp edged. This way, it is obvious that the doctor witness is not sure. He is blowing hot and cold on the point of ‘edge’ of the weapon. On the one hand he says that it is blunt and on the other hand, he says that it is sharp edged. There is no observation by the trial Court that the bodkin recovered by the police was in fact sharp edged or not and no such observation has been made, whereas the doctor witness himself has stated that it has blunt edge and the edge has not been sharpened even. Therefore, the general and reasonable conclusion would follow that the weapon was not having sharp edge and therefore, it is doubtful whether the incised wounds as noted regarding injury Nos. 3, 11, 12, 13 and 14 of the ante-mortem injuries would in all probability be caused by use of such weapon. But we have already observed in our earlier finding that the recovery of various things including the bodkin, material Exhibit-2, becomes vitiated in the eye of law and does not carry any legal force and, therefore, the use of bodkin conclusively in causing ante-mortem injuries also becomes suspicious. 43. Record further reflects and particularly statement of the Investigating Officer- Tripurari Diwakar abundantly establishes fact that he arrested the accused persons around 4:25 p.m. on 31.10.2002 from Rampur bus stand, and kept them in the lockup of the police station. But he did not prepare any arrest memo nor did he prepare any spot map of place of arrest. Further, after recovery was effected on 31.10.2002, he prepared the spot map of recovery from Khas Bagh on the very next day of the recovery. This particular statement finds place on page No. 46 of the paper book in the cross-examination of the Investigating Officer PW-6. 44. In aforesaid factual backdrop of this case, it is obvious that the Investigating Officer has not only worked carelessly but has tried to create independent testimony in form of recovery. Thus, the factum of recovery is wholly unreliable. We have already discussed the very motive for committing the offence that the same has not been reasonably established and it is very weak. Arrest of the accused persons by the police also becomes doubtful. Thus, the factum of recovery is wholly unreliable. We have already discussed the very motive for committing the offence that the same has not been reasonably established and it is very weak. Arrest of the accused persons by the police also becomes doubtful. The point is that the dead body of Ravi Ranjan Dev Shukla was discovered by the informant but as per testimony on record, obviously, only statement was made by Sanjay Rastogi. Except this statement, there is no any other worthy corroborating circumstance that the dead body was discovered pursuant to the information given by Sanjay Rastogi- the accused to the informant. 45. In so far as testimony of the other prosecution witnesses of fact, namely, Suhail Masood PW-3, Jubair Shah Khan PW-4 and Ram Ratan Lal PW-5 are concerned, the same has emerged on certain particular aspects of this case and circumstance that these witnesses saw deceased- Ravi Ranjan Dev Shukla in company of Sanjay Rastogi and Rajeev Rastogi- the accused and they were going on rickshaw towards ‘Sooraj Cinema’ on road leading to Khas Bagh. Jubair Shah Khan PW-4 saw the deceased in company of accused persons moving towards Khas Bagh on foot and Ram Ratan Lal PW-5 saw the deceased talking to the accused person around 6:45 p.m. on 30.10.2002 and they were proceeding towards ‘Raj Dwar’. The statement of Ram Ratan Lal does not create any situation that in all probability the deceased was taken to Khas Bagh by the two accused persons. He has stated in his cross-examination that he saw the accused person moving through street. His statement was recorded by Daroga Ji under Section 161 Cr.P.C. after a number of days of the incident. Jubair Shah Khan P.W.4 says that in those days and particularly when the incident took place on 30.10.2002, he was employed as a peon/servant in Modi factory and his shift was running from 2 p.m. to 10 p.m. However, when questioned by the trial Court, he clarified that he came out of the factory for his personal work and was going back to factory when he saw the accused persons in company of the deceased. However, in his cross-examination, he could not specify as to what was the personal work for which he left the factory. His statement was also recorded after 16/17 days of the incident. However, in his cross-examination, he could not specify as to what was the personal work for which he left the factory. His statement was also recorded after 16/17 days of the incident. Testimony of this witness also does not reflect on point that the accused persons were seen close to the Khas Bagh or inside the Khas Bagh with the deceased. Non-explanation of personal work on that date also reveals his testimony motivated and improved one. 46. Similarly, testimony of Sohail Ahmad PW-3 relates to fact that he saw the deceased alongwith the accused persons moving on rickshaw towards Khas Bagh around 6:45 p.m. on 30.10.2002. This testimony if taken to be true in itself does not establish fact that all the three persons arrived at Khas Bagh. Therefore, testimony of aforesaid witnesses of fact on particular aspects is not consistent with the establishment of the guilt and it gives rise to certain other possibilities. It is admitted position that no one saw the accused persons either coming into the Khas Bagh or moving out of the Khas Bagh at any relevant point of time during night before discovery of dead body of Ravi Ranjan Dev Shukla. 47. Therefore, various links of the chain in this case necessary for giving consistency to the guilt of the accused persons are found to be missing and due to which we can unambiguously observe that the prosecution has not been successful in establishing the vital links in the chain of circumstances which, if established, would have conclusively pointed towards guilt of the accused that they and they alone are the author and perpetrator of the offence to the exclusion of the entire world. 48. It is cardinal principle of criminal jurisprudence that in cases based on circumstantial evidence, each and every hypothesis of innocence of the accused should be removed and chain of circumstances should be consistently intertwined so as to point out guilt of the accused conclusively that it was the accused and accused alone, who committed the crime to the exclusion of others. 49. In this case, analysis made herein above, goes to evince legal truth that the prosecution has failed miserably to establish vital links of the chain of circumstances and the chain of circumstances is not complete. 49. In this case, analysis made herein above, goes to evince legal truth that the prosecution has failed miserably to establish vital links of the chain of circumstances and the chain of circumstances is not complete. We have counted upon various aspects of the case right from point of ‘motive’ to the factual aspect of ‘last seen’ theory and thereafter factum of ‘arrest’ and recovery made by the Investigating Officer. It appears that the informant came to know about the dead body of his son, the next morning on 31.10.2002 and thereafter, he lodged the report, but the manner in which the Investigating Officer allegedly arrested the two accused persons and effected recovery is highly doubtful and the same cannot be believed to have been truly made under facts and circumstances of this case. Even the Investigating Officer failed to collect the requisite evidence that may conclusively point out and establishes guilt of the accused and work against hypothesis of innocence of the accused. 50. We may sum up that testimony, facts and circumstances open possibility of commission of murder of Ravi Ranjan Dev Shukla by other persons as well and every hypothesis of guilt to the exclusion of others against the accused, has not been established in the chain of circumstances. 51. The trial Court while recording conviction against the appellants failed to properly appreciate the facts and circumstances of the case and recorded erroneous and illegal finding of conviction, which cannot be sustained by us, for reasons aforesaid. 52. Consequently, the contention raised by the learned counsel for the appellants holds the ground firmly, as it has got force. The appeal is allowed and judgment and order of the trial Court dated 5.3.2005 passed by Additional Sessions Judge, Court No. 2, Rampur in Sessions Trial No. 276 of 2003 arising out of Case Crime No. 582/2002 under Sections 302/34 and 411 IPC is hereby set aside and the accused-appellants are exonerated of all charges. 53. In this case the appellants are in jail. They be set free forthwith, if not wanted in connection with any other case after complying with the provisions of Section 437-A Cr.P.C. 54. Let a copy of this order be certified to the concerned trial Court for its intimation and follow up action.