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2017 DIGILAW 165 (ALL)

SUBODH v. STATE OF U. P.

2017-01-12

ALOK KUMAR MUKHERJEE, BHARAT BHUSHAN

body2017
JUDGMENT : (Delivered by Hon'ble Bharat Bhushan, J.) 1. Sole appellant Subodh has assailed the judgment and order dated 26.9.1983 passed by IIIrd Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 360 of 1982 (State versus Subodh and others) arising out of Crime No. 38 of 1982, Police Station Jansath, District Muzaffarnagar whereby appellant was convicted under section 302 read with Section 34 Indian Penal Code ( in short, IPC) and sentenced to undergo life imprisonment. 2. Prosecution story, in brief, is that deceased Adesh left his residence on 14.3.1982 to go to Subodh son of Jai Singh Jat. On the same day, they were seen together by one Nathua and Sahendra (PW-2). Adesh did not return till evening, therefore, informant Baljeet (PW-1) went to the residence of Subodh to question him. However, Subodh showed his ignorance about whereabouts of Adesh. Informant searched the whereabouts of Adesh among his relations but of no avail. Therefore, he lodged a report at Police Station (in short, P.S.) Jansath on 20.3.1982 at about 10:15am which was recorded in General Diary (in short, G.D.) no. 21 at P.S. Jansath. In this report, a suspicion was expressed by informant that Adesh had been done to death by appellant Subodh. 3. This report was scribed by Satish Kumar (PW-3) and chik report is available on record as Ex. Ka-11. It is pertinent to point out that while recording this report in the G.D. of P.S. the Police concluded that no cognizable offence was visible from the contents of this report yet S.I. Fateh Singh Patel (PW-10) was asked to investigate the matter. 4. On 23.3.1982 appellant Subodh allegedly made extra judicial confession before Brahma Singh (PW-8) at about 7:30am in the morning saying that he had murdered Adesh because deceased Adesh had developed illicit relationship with his wife and that he has eliminated him with the help of brother-in-law of his brother namely, co-accused Rajpal Singh and that he sought help of Brahma Singh as Brahma Singh (PW-8) was village head at that point of time. The prosecution story says that one Hukum Singh (PW-4) was also present when this stated extra judicial confession was made. This information was stated to have been given to the Police by PW-8 Brahma Singh. Police arrested appellant Subodh from bus stand at the instance of PW-8 Brahma Singh at 10:00am on the same day. 5. The prosecution story says that one Hukum Singh (PW-4) was also present when this stated extra judicial confession was made. This information was stated to have been given to the Police by PW-8 Brahma Singh. Police arrested appellant Subodh from bus stand at the instance of PW-8 Brahma Singh at 10:00am on the same day. 5. Thereafter, Subodh was taken to agricultural field of Onkar along with PW-8 Brahma Singh, PW-4 Hukum Singh and others, where cadaver of Adesh was recovered at the alleged instance of appellant Subodh. A Police constable was sent by Sub Inspector of Police to obtain papers from he Police Station. The constable returned back at 3:00pm on the same day and thereafter, inquest proceedings were conducted and inquest report (Ex.Ka-2) was prepared on the same day. The corpse of deceased thereafter was sent for postmortem. The memorandum of recovery of corpse (Ex. Ka-3) was also prepared. Samples of blood soaked earth and simple earth were taken from the spot. A memorandum of recovery of blood soaked earth and simple earth is available on record as Ex.Ka.4. Site Plan (Ex.Ka-9) was also prepared on the same day i.e. on 23.3.1982 by PW-10 Fateh Singh Patel, the first Investigation Officer (in short, I.O.), thereafter its investigation was entrusted to S.O. Mehendra Singh Verma (PW-11) on 28.3.1982. The second I.O. recorded statement of Brahma Singh on 18.8.1982 and also father and wife of appellant Subodh. After concluding the investigation, in next two days, a charge sheet (Ex.Ka-10) was submitted against appellant Subodh as well as co-accused Raj Pal under sections 364, 302, 201 IPC. Trial Judge framed charges against appellant Subodh and co-accused Raj Pal under section 302 read with section 34 and 201 IPC. Both accused denied the charges and claimed to be tried. 6. Prosecution adduced evidence of PW-1 Baljeet (father of deceased), PW-2 Sahendra Pal (cousin of deceased), PW-3 Satish Kumar (scribe of FIR), PW-4 Hukum Singh (stated witness of extra judicial confession and recovery of cadaver-hostile) PW-5 Kaliram (hostile), PW-6 Ratan Singh (hostile), PW-7 Dr. Suresh Chandra Tyagi (conducted autopsy) PW-8 Brahma Singh (extra judicial confession and recovery of cadaver), PW-9 Bhagirath, PW-10 Fateh Singh Patel (first I.O.), PW-11 S.I. Mahendra Singh Verma (second I.O.), PW-12 Constable Jagpal Singh (stated witness of arrest of appellant Subodh/recovery of corpse etc.) and PW-13 Head-Moharrir Dharmpal Singh (recorded FIR). 7. Suresh Chandra Tyagi (conducted autopsy) PW-8 Brahma Singh (extra judicial confession and recovery of cadaver), PW-9 Bhagirath, PW-10 Fateh Singh Patel (first I.O.), PW-11 S.I. Mahendra Singh Verma (second I.O.), PW-12 Constable Jagpal Singh (stated witness of arrest of appellant Subodh/recovery of corpse etc.) and PW-13 Head-Moharrir Dharmpal Singh (recorded FIR). 7. The statements of appellant and co-accused persons were recorded under section 313 Cr.P.C. wherein appellant denied all the allegations and claimed false implication at the instance of PW-8 Brahma Singh, village Pradhan (village head) due to prior enmity. No evidence has been adduced by appellant in defence despite opportunity. On conclusion of trial, IIIrd Additional Sessions Judge, Muzaffarnagar concluded that there was sufficient evidence against appellant Subodh and therefore, appellant Subodh was convicted under section 302 read with section 34 IPC and sentenced to life imprisonment vide judgment and order dated 26.9.2003. However, co-accused Rajpal was acquitted by the same judgment. It is pertinent to point out that despite acquittal of Rajpal, appellant Subodh was still convicted with the aid of Section-34 IPC. Strangely appellant Subodh was also found guilty of offence under section 201 IPC but no punishment was awarded to appellant Subodh under selection 201 IPC. The trial Judge maintained complete silence about the punishment under section 201 IPC in his operative part of the order despite holding, Subodh guilty of aforesaid offence. This judgment is under challenge before this Court in this appeal. 8. Heard Sri Brijesh Sahai and Ms. Katyani, learned counsel for appellant Subodh and Sri Ajit Kumar Singh , AGA and Nagendra Kumar, AGA appearing for the State. 9. Learned counsel for the appellant has submitted that 'last seen' evidence given by PW-2 Sahendra Pal is not trustworthy for the simple reason that he took about a week to divulge his information to his uncle (informant). He has also submitted that virtually every witness in this case is either related to informant PW-1 Baljeet or PW-8 Brahma Singh, village Pradhan with whom appellant Subodh had antagonistic relationship. Sri Brijesh Sahai, learned counsel for the appellant has also argued that there is no mention of disclosure statement to PW-8 Brahma Singh, who allegedly communicated extra-judicial confession to Police. Learned counsel has also argued that recovery of cadaver at the alleged instance of appellant Subodh is not borne out of evidence on record. Sri Brijesh Sahai, learned counsel for the appellant has also argued that there is no mention of disclosure statement to PW-8 Brahma Singh, who allegedly communicated extra-judicial confession to Police. Learned counsel has also argued that recovery of cadaver at the alleged instance of appellant Subodh is not borne out of evidence on record. There are vast discrepancies on material and vital particulars in the testimonies of various witnesses. Learned counsel has also submitted that medical evidence does not support prosecution case at all. 10. Per contra, Sri Ajit Kumar Singh, has submitted that trial Judge has delineated the various circumstances relied upon by the court and each circumstance is supported by evidence and on the basis of these proved circumstances appellant Subodh was found guilty of murder of deceased Adesh. 11. In this case, there is no direct evidence of alleged crime of appellant. Entire case is dependent on circumstantial evidence. Prosecution and trial Judge have relied upon 'last seen' evidence given by PW-2 Sahendra Pal and extra-judicial confession allegedly made by appellant before PW-8 Brahma Singh and PW-4 Hukum Singh and recovery of cadaver at the stated instance of appellant Subodh for the purposes of conviction. 12. Before embarking to analyze prosecution evidence in detail, it is pertinent to point out that not only the trial Judge forgot to award punishment under section 201 IPC despite holding him guilty for the same, but has also incorporated several facts in his judgment which are not on record. We have carefully examined all the sworn testimonies of all the witnesses and perused the documents prepared during the course of investigation, right from lodging of the FIR on 20.3.1982 at P.S. Jansath still we have not been able to find various facets and facts mentioned by learned trial Judge. 13. It is stated that some of the facts have been borrowed from extraneous papers not available on record or straight from the case diary without establishing those facts during trial. 14. Coming back to facts of the case, it is pertinent to point out that Adesh disappeared on 14.3.1982. The FIR does not specifically state that he went to the residence of Subodh after informing his family members. This fact has been mentioned by PW-1 Baljeet in his testimony. Adesh did not come back by evening therefore appellant Subodh was questioned. Coming back to facts of the case, it is pertinent to point out that Adesh disappeared on 14.3.1982. The FIR does not specifically state that he went to the residence of Subodh after informing his family members. This fact has been mentioned by PW-1 Baljeet in his testimony. Adesh did not come back by evening therefore appellant Subodh was questioned. Appellant expressed his ignorance about disappearance of Adesh yet PW-1 Baljeet, informant, waited for almost seven days before giving any information to the Police. It is also important to point out that even in this information (Ex. Ka-11) mere suspicion was expressed regarding conduct of Subodh but no reason for the same was given in this report. 15. It is not necessary to provide all kind of information in the FIR but even the testimony of PW-1 Baljeet is hazy in this regard. The evidence disclosed that he kept searching for his son for as many as seven days and then lodged FIR at the instance of his wife. It is stated that while spouses were involved in conversation, PW-2 Sahendra Pal, their nephew came and informed them that he had last seen Adesh in the company of Subodh. Thereafter, a formal information (Ex.Ka-11) was given to the Police. The entire evidence of PW-1 Baljeet merely discloses that deceased Adesh had left his residence by informing his family that he is going to meet Subodh. Other than this, there is no evidence or information to suggest that deceased Adesh did go the residence of Subodh. The testimony of PW-1 Baljeet thus merely establishes two facts (i) that Adesh left his residence in the early part of 14.3.1982 ; and (ii) that he told his family that he was going to the residence of appellant Subodh. 16. This evidence does not necessarily mean or does not establish the fact that deceased Adesh actually went to the residence of Subodh. Apparently, PW-1 Baljeet did not have any suspicion about the conduct of appellant Subodh which is reflected by his continuous search for deceased for seven days. His sworn deposition indicates that he kept searching for his son for another seven days amongst his various relations and in the jungle. There is nothing on record to show that he went to appellant Subodh and his family to inquire about Adesh, barring the bald statement full of discrepancies. 17. His sworn deposition indicates that he kept searching for his son for another seven days amongst his various relations and in the jungle. There is nothing on record to show that he went to appellant Subodh and his family to inquire about Adesh, barring the bald statement full of discrepancies. 17. Question is how the name of appellant Subodh surfaced ? It allegedly emerged when the real nephew of PW-1 Baljeet and cousin of Adesh, PW-2 Sahendra told his uncle and aunt that he had last seen Adesh in the company of Subodh. PW-2 Sahendra testified that he had gone to Delhi for a week and was not aware of disappearance of Adesh, therefore, he could not give this information to the complainant for almost seven days. Incidentally District Muzaffarnagar is not at a great distance from Delhi. But even if, the statement of PW-2 Sahendra Pal is accepted as a gospel truth, there are various questions that need to be answered. He has stated that on the date of disappearance, Adesh was travelling with appellant Subodh just 10-15 paces ahead of him. His another cousin was also accompanying him. PW-2 Sahendra says that he travelled on the same bus to Delhi on which deceased Adesh and appellant Subodh were sitting. Later on, he changed his version and said that he got down 1 ½ Km. away at crusher from the bus and this distance was traversed by him without obtaining any ticket. He further says that deceased Adesh and Subodh continued to travel on this bus till Muzaffarnagar. PW.2 Sahendra boarded another bus from crusher after 45 minutes and went to Delhi. Admittedly he did not question his cousin Adesh and appellant Subodh regarding their programme. 18. He has also admitted that in this private bus, several village folks were present. He also met several village folks at crusher and from there he boarded another bus for Delhi on which several unknown persons were traveling. He could not disclose the name of the clerk from whom he had taken payment. The pertinent question is how could PW-2 Sahendra elicit information about stated visit of deceased Adesh and appellant Subodh to Muzaffarnagar ? Admittedly, he did not talk to them. He has also conceded that he got down from the bus at crusher which was merely 1½ km. away from the village. The pertinent question is how could PW-2 Sahendra elicit information about stated visit of deceased Adesh and appellant Subodh to Muzaffarnagar ? Admittedly, he did not talk to them. He has also conceded that he got down from the bus at crusher which was merely 1½ km. away from the village. It is apparent that he could have divulged information up to crusher only yet in his eagerness to establish and prove the alleged company of deceased with appellant, This witness has given non-existent information. 19. Incidentally, this witness could not give any information about any other member of village. This witness is not clear regarding identities of other village folks he had met at crusher but he was only certain about presence of Subodh and deceased Adesh. The vagueness of testimony continues further. PW-2 Sahedendra has said that he disclosed the information about the company of deceased Adesh with Subodh to his uncle (PW-1 Baljeet) and that PW-1 Baljeet thereafter left for Police Station at about 11:00am. He has also testified that Police Station is 5-6 kms. away from the village. Obviously, informant must have taken some time to cover this distance. No specific question was asked for eliciting the duration taken for traveling up to the Police Station but it is evident from the testimony of PW-8 Brahma Singh that there was no proper transport facility available from the village to Police Station Jansath. He, in fact, stated that he used to take one and half hour (1-1/2) to reach Jansath from his village. Police Station Jansath ofcourse comes within Jansath. When we carefully co-relate these informations divulged by various source, it would reveal that PW-1 Baljeet must have reached at the Police Station at about 12:30 hours. In between he also availed the services of PW-3 Satish for scribing FIR. That too would have taken some time. Now two things emerge from this evidence. First, PW-1 Baljeet could not have lodged FIR before 12:30pm to 1:00pm on 20.3.1982 as per informations furnished by PW-2 Sahendra and PW-8 Brahma Singh. Secondly PW-1 Baljeet went to Police Station with scribe PW-3 Satish, as stated by PW-1 Baljeet, in his last lines of examination-in-chief. The only problem with these conclusions are that they are not supported by report Ex.Ka -11 as well as testimony of PW-3 Satish. The record indicates that FIR had been lodged at 10:15am on 20.3.1982. Secondly PW-1 Baljeet went to Police Station with scribe PW-3 Satish, as stated by PW-1 Baljeet, in his last lines of examination-in-chief. The only problem with these conclusions are that they are not supported by report Ex.Ka -11 as well as testimony of PW-3 Satish. The record indicates that FIR had been lodged at 10:15am on 20.3.1982. This fact has also been supported by the testimony of PW-13 Head Moharrir Dharampal who has clearly stated that report had indeed been lodged at Police Station at 10:15am. and he had registered it immediately. 20. Similarly statement was made by PW-10 Fateh Singh Patel in his cross-examination where he has asserted that report was lodged at 10:15am on 20.3.1982. This documentary evidence as well as oral evidence of PW-10 Fateh Singh Patel and PW-13 Head Moharrir Dharam Pal Singh can not be reconciled with testimony of PW-2 Sahendra who has clearly asserted that PW-1 Baljeet left for Police Station at 11:00am. 21. Second conclusion that PW-3 Satish had accompanied PW-1 Baljeet, informant, has been denied specifically by PW-3 Satish. He has asserted that he handed over the report to PW-1 Baljeet after scribing it but he did not go to the Police Station. This information is contrary to the prosecution story. 22. In cases of circumstantial evidence, these small discrepancies can be very fatal if no proper explanation is given for the same. 23. Informant PW-1 Baljeet and report Ex.Ka.-11 disclose a fact that an intensive search was concluded in the village after disappearance of Adesh on 14.3.1982. Surprisingly, questions were not asked to his brother Ram Chandra, father of PW-2 Sahendra Pal. Their houses are adjacent. He did not even seek the support of his several relations living in the same village as evidence later on discloses. If the relatives living in the same village were not asked about disappearance of deceased Adhesh, then natural question arises where was this search made ? 24. Their houses are adjacent. He did not even seek the support of his several relations living in the same village as evidence later on discloses. If the relatives living in the same village were not asked about disappearance of deceased Adhesh, then natural question arises where was this search made ? 24. A strange assertion can be seen at page-13 of the paper book, where PW-1 Baljeet has stated:- ^^Fkkus ij eq>s nkjksxk th feys Fks eSaus nkjksxk th dks ?kVuk dk crk;k Fkk mUgksusa MkWDVj lrh'k ls dgk fd fy[kks vkSj tks mlus cksyk og mUgksus fy[kk eSus ml ij vaxwWBk yxk fn;k mUgksus i<+dj lquk nhA czge flag iz/kku dHkh Fkkus ij tkrk Fkk iqfyl okys mlds ?kj Hkh Bgj tkrs FksA rc njksxk th esjs lkFk xkao dks py fn;s ogka xkao tkdj mUgksaus tkap iM+rky dh ml fnu og esjs ?kj esa fVds Fks jkr esa ogka BgjsA mlds ckn nkjksxk th xkao esa ugha x;sA ugha ekywe bl ?kVuk ls rhu ekg igys jktiky ij vkns'k us xksyh pykbZ Fkh lquk gS fd jktiky ij xksyh pykbZ Fkh ;g Hkh lquk gS fd og xksyh lcks/k us pykbZ Fkh tcfd vkns'k ogka ikl esa VV~Vh djus cSB x;k Fkk vkSj xksyh pykdj nksuksa lkFk Hkkxs Fks ;g jktiky czge flag iz/kku dk lxk HkkbZ gSA rc ls czge flag iz/kku dk lcks/k ls f[kykQr py jgk gS mldh f[kykQr lcks/k o esjs yM+ds vkns'k ls rHkh ls py jgh gS czge flag iz/kku ges'kk nksuksa yM+dks vkns'k o lcks/k dks pDdj esa Mkys dh fQdj es jgrk gS ugha ekywe fQj dgk gks czge flag iqfyl ls Hkh f'kdk;r djrk Fkk fd budk bUrtke djksA gqde flag iq= ';ke flag fuoklh fryksjk Hkh czge flag iz/kku dk nksLr gS jru flag iq= jke lju] dyhjke iq= gjQwy esjs ;k czge flag iz/kku ds ikl ugh mBrs cSBrs iqfyl esa Hkh mudk mBuk cSBuk ugha gSA tc nkjksxk us eq>dks igys igy fjiksVZ ds fnu iwNk Fkk mlh fnu lc iwNk Fkk vkSj fdlh fnu ugha iwNk Fkk esjs lkeus nkjksxk us fdlh xokg dk c;ku ugha fy;kA esjh dksbZ jaft'k lcks/k o jktiky eqyfteku ls ugha gS vkt Hkh eq>dks muls dksbZ f'kdk;r ugha gSA vc eq>dks pDdj vk jgk gS xokg dks fcBk fn;k x;kA vc Bhd gwW vkSj xokg ls iwNk x;k ,slk ugha gS fd czge flag ds dgus ls eqyfteku ds uke fy[kk;s gks eqdnek eSa Hkh pyk jgk gwWA czge flag Hkh pyk jgk gSA czge flag viuh jaft'k ds dkj.k eqdnek ugh pyk jgk gSA** 25. Now the aforesaid statement creates problem for the prosecution because oral prosecution story is that Baljeet left his village at 11:00am after receiving information of 'last-seen' from PW-2 Sahendra and on his way to Police Station, he managed to find PW-3 Satish who accompanied him to the Police Station where he scribed the report. 26. But PW-3 Satish has denied that he accompanied informant Baljeet to Police Station. He has also denied that report was written at the Police Station inasmuch as he has specifically asserted that report was transcribed at Jansath Road. 27. Not only this, if we interpret the aforesaid portion of testimony of PW-1 Baljeet, it would reveal that first Baljeet went to Police Station and met Sub Inspector of Police and then Sub-Inspector of Police dictated FIR to PW-3 Satish and PW-1 Baljeet merely put his thumb impression on the report. The aforesaid paragraph also indicates that police personnel were very close to PW-8 Brahma Singh, Pradhan and that appellant Subodh indeed had antagonistic relationship with PW-8 Brahma Singh, Pradhan. 28. It is now clear that time of report and manner of report are shrouded in mystery and there are vital discrepancies with regard to the same. It is also indicated that appellant did have a bad relationship if not outright enmity with Brahma Singh, Pradhan, a very influential man. PW-2 Baljeet has also admitted in the aforesaid testimony that Brahma Singh, Pradhan used to seek help of Police against both appellant Subodh and deceased Adesh. 29. We have carefully examined all the evidence available on record. We are not in agreement with trial Judge. The alleged 'last seen' evidence of PW-2 Sahendra Pal is not without blemish. The fact of the matter is that except the uncertain statement of PW-2 Sahendra, there is no evidence on record to suggest that deceased Adesh and appellant Subodh were, in fact, lastly seen together. The delay of seven days creates doubt his evidence. Even it is assumed that accused was seen in the company of deceased 7-8 days prior to his disappearance that by itself is not sufficient to hold appellant guilty of anything. As per testimony of PW-2 Sahendra itself, several village folks travelled in the same bus. The eagerness of PW-2 Sahendra to show that Adesh and and Subodh were travelling to Muzaffarnagar itself is without any basis. As per testimony of PW-2 Sahendra itself, several village folks travelled in the same bus. The eagerness of PW-2 Sahendra to show that Adesh and and Subodh were travelling to Muzaffarnagar itself is without any basis. Even if we believe that testimony of Sahendra is correct, then it can merely establish the fact that deceased Adesh and appellate Subodh boarded the bus from village along with several person including PW-2 Sahendra himself on a particular day. It is also pertinent to point out that PW-2 Sahendra got down from the bus after 1 ½ kms. from the village, meaning thereby that he was not in a position to actually know the future programme of deceased or appellant. No other member of village or fellow passenger of the bus has been produced by the prosecution. Even the evidence of PW-2 Sahendra merely indicates that appellant was travelling in a bus which was also boarded by deceased as well as several members of the same village and that by itself is not sufficient to even prima facie indicate the culpability of appellant. 30. It is pertinent to point out that P.W. 2 Sahendra Pal did not inform the I.O. that he had seen deceased Adesh in the company of appellant Subodh. This fact has been admitted by P.W. 2 Sahendra Pal in his testimony. P.W. 2 Sahendra Pall took considerable time to inform his uncle that deceased was last seen in the company of appellant Subodh but to withhold this information from I.O. is extremely surprising. 31. It is pertinent to point out that P.W. 5 Kaliram and P.W. 6 Ratan Singh have also refused to support the prosecution story wherein it has been said that both appellant Subodh and deceased Adesh had gone to a village fair in village Trisang. Both these witnesses have disowned their alleged statements under Section 161 Cr.P.C. which creates doubt. The prosecution case also depends on the extra judicial confession. The story of extra judicial confession has been introduced by P.W. 8 Brahma Singh, the village Pradhan with whom appellant Subodh had antagonistic relationship and this fact has been conceded by the very important witness, namely, P.W. 1 Baljeet, father of deceased (page no. 13-14 of paper book). Therefore, the story of extra judicial confession made before P.W.8 Brahma Singh must be seen in this background. 32. 13-14 of paper book). Therefore, the story of extra judicial confession made before P.W.8 Brahma Singh must be seen in this background. 32. P.W. 8 Brahma Singh has said that he was siting at his residence on 23.3.1982 with P.W. 4 Hukam Singh in the morning at about 7:30 am. Suddenly appellant Subodh arrived at his residence and made extra judicial confession that he had murdered Adesh with the help of co-accused Rajpal. He also proffered the reason for this assassination saying that deceased Adesh had developed illicit relationship with his wife. The story of this confessional statement has several holes in it. First P.W. 2 Sahendra Pal has said that he had last seen deceased Adesh in the company of appellant Subodh travelling on the bus. Prosecution has also said that deceased had also gone to village Trisang to attend some fair and thereafter murdered Adesh near the agriculture field of Omkar with the help of his relation co-accused Rajpal. The story of 'last seen' thus becomes uncertain for the simple reason that no clarity has been offered by prosecution regarding the last presence of deceased in the company of appellant Subodh. The story of going to Kisanpur and the evidence of village fair in Trisang should have been coordinated or clarified. 33. If the testimony of P.W. 8 Brahma Singh regarding extra judicial confession is considered then it would appear that only three persons were present at the time of this stated extra judicial confession. One was appellant Subodh himself, second was P.W. 8 Brahma Singh and third was P.W. 4 Hukam Singh in whose presence this so called extra judicial confession was made. P.W. 4 Hukam Singh has not supported the story of this extra judicial confession. He has also denied the recovery of corpse in his presence. He has disowned his stated statement under Section 161 Cr.P.C. It is therefore, apparent that P.W. 4 Hukam Singh has not only declined to support the recovery of corpse at the instance of appellant Subodh, he has also refuted the story of extra judicial confession. Appellant Subodh of course has denied the story of extra judicial confession. So out of three persons now, two persons have denied the story of extra judicial confession. Appellant Subodh of course has denied the story of extra judicial confession. So out of three persons now, two persons have denied the story of extra judicial confession. The only person, who has given this story of extra judicial confession has had antagonistic relationship with appellant Subodh as conceded by P.W. 1 Baljeet, father of deceased. 34. We are not convinced with the story of extra judicial confession. It is pertinent to point out that P.W. 10 Fateh Singh Patel, I.O. has not given any day, time and place of this extra judicial confession. It is also significant to note that P.W. 8 Brahma Singh has said that he met the I.O. at his house while P.W. 10 Fateh Singh Patel (I.O.) (page no. 32 of paper book) claimed that he has met the village Pradhan Brahma Singh in his Gher (compound). Strangely P.W. 10 Fateh Singh Patel did not even mention the factum of arrest of appellant Subodh in his examination-in-chief nor he made any mention of confessional statement of appellant Subodh. 35. The stated disclosure statement of appellant was never recorded or placed on record before the trial court. P.W. 8 Brahma Singh and P.W. 10 Fateh Singh, I.O. have stated that appellant was arrested at the bus station and thereafter the cadaver of deceased was recovered from the agriculture field of Omkar Singh subsequent to the discloser of appellant. But this discloser statement has not been produced before the Court. The arrest of appellant Subodh is completely shrouded in the mystery. Both P.W. 8 Brahma Singh and P.W. 10 Fateh Singh Patel have said that P.W. 4, Hukam Singh was present at the time of arrest of appellant Subodh as well as recovery of cadaver of deceased. But P.W. 4 Hukum Singh has completely denied this claim. If we consider the last lines of evidence of P.W.10 Fateh Singh Patel (I.O.) (page no. 40 of paper book), it would give impression that police personnel met P.W. 8, Brahma Singh at his residence; this information was gathered regarding the cadaver of deceased and they were going to search for this corpse but on his way to agriculture field of Omkar, they also arrested appellant Subodh as well. 40 of paper book), it would give impression that police personnel met P.W. 8, Brahma Singh at his residence; this information was gathered regarding the cadaver of deceased and they were going to search for this corpse but on his way to agriculture field of Omkar, they also arrested appellant Subodh as well. The relevant portion of statement of P.W. 10 Fateh Singh is produced hereunder: **------ 22&3&82 dks eSa xkao esa tkdj gjohj ds ?kj :dk Fkk vxys fnu lqcg eSa czge iz/kku ds ?kj ij x;k Fkk mlds ?kj ij igqpus dk le; uk ;kn gS uk dsl Mk;jh esa fy[kk gS ;g Hkh ugha fy[kk gS fd mlds ?kj esa fdruh nsj :dk Fkk ;g Hkh ugha crk ldrk fd muds ?kj ls fdruh nsj esa pyk Fkk dsl Mk;jh esa ,slk Hkh ugha fy[kk gS fd esjs ekStwnxh esa czge flag us vius ?kj ls fdlh vkneh dks dgha Hkstk gksA cythr xokg us /kkjk 161 lh-vkj-ih-lh- ds Ck;ku esa ;g ugha dgk Fkk fd vkns'k ?kj ls tc x;k rks mlls dg dj x;k fd lqcks/k ds ikl tk jgk gwWA mlus ;g Ck;ku fn;k Fkk fd jkr dks eaS lqcks/k ds ?kj x;kA mlus ;g ugh crk;k Fkk fd lqcks/k ds ?kj mldk cki Hkh feyk vkSj nksuksa us dgk fd gesa ugh ekyweA ;g Hkh ugha dgk Fkk fd eSus ?kj lykg e'kojk fd;k rks esjh iRuh us dgk fjiksVZ fy[kkvks vkSj ;g Hkh ugha crk;k Fkk fd tc ge e'kojk dj jgs Fks rks egsaUnz us tkdj crk;k fd mlus vkns'k dks lqcks/k ds ikl tkrs ns[kk FkkA czge xokg us crk;k fd vksedkj ds [ksr esa yk'k crkbZ tkrh gSA mlus ;g Hkh crk;k Fkk fd eqfYte us yk'k vksedkj ds [ksr esa Nqikuk mldks crk;k FkkA yk'k dh cjkenxh ds igys lqcks/k eqfYte dks fxjrkj fd;k Fkk vkSj mlds crkus ij yk'k taxy es feyh Fkh eqfYte dks xzke jktiqj dyk ds cl LVS.M ij fxjrkj fd;k FkkA ogka ls eqfYte ds lkFk xokgku czge flag o gqdqe flag dks ysdj yk'k ds ikl x;s FksA yk'k vksedkj ds bZ[k dh [ksr esa iM+h feyh FkhA ugh ekywe fd xkao esa cl ds nks LVS.M gSA eSa ml {ks= dk ,l-vkbZ- FkkA ^^eq>dks iz/kku ds ?kj esa gh 23&3&82 dks lqcg ekywe gks x;k Fkk fd yk'k vksedkj ds [ksr esa iM+h gS rFkk eSa ml [ksr ij tk jgk Fkk fd jkLrs esa eqyfte dks fxj~rkj dj fy;kA tc yk'k cjken djus eSa x;k rks czge iz/kku dks lkFk ys x;k Fkk jkLrs ls eqyfte dks lkFk ys fy;k mlus vksedkj dk [ksr crk;k FkkA** 36. This evidence (supra) indicates that the so called cadaver of Aadesh was not recovered subsequent to the stated discloser statement of appellant. It indicates that they were in fact going to the agriculture farm of Omkar Singh for recovery and also arrested appellant Subodh while moving towards that farm. Incidentally, P.W. 8 Brahma Singh was accompanying the police. The role of P.W. 8 Brahma Singh and his close relationship with police personnel has been mentioned several times during evidence. 37. It is pertinent to point out that the story of prosecution and the facts mentioned by the Trial Judge in para no. 2 of the impugned judgment, would disclose that not only the cadaver of Aadesh was thrown in the agriculture field of Omkar Singh; the hammer used by assailants for murder of Aadesh was also thrown nearby the corpse and yet no hammer was recovered at the time of recovery of cadaver. 38. P.W. 10 Fateh Singh (supra) has said that he became aware of the presence of corpse in the compound of village Pradhan Brahma Singh P.W.8. But P.W.8 Brahma Singh has hesitated to accept this claim. He has contradicted I.O. right in the beginning of his cross examination (page 30 of paper book). Now if the story of Brahma Singh is accepted that he did not divulge the location of cadaver of deceased Adesh, then the quoted statement of P.W.10 Fateh Singh Patel becomes a lie when he said that he became aware of location of cadaver at the place of village pradhan. 39. We have carefully examined all material on record. We are not convinced of 'last seen' theory of prosecution. The extra judicial confession is also not believable. We also believe that arrest of accused and stated recovery of cadaver is shrouded in the mystery and these facts have not been established with clear cut, cogent and trustworthy evidence. Surprisingly, during the statement of accused under Section 313 Cr.P.C. all the incriminating circumstances especially including the stated disclosure statement was not put to him. The stated disclosure statement of accused was, in our opinion, corner stone of the prosecution story and yet no question was specifically and clearly asked from appellant Subodh regarding this disclosure statement. 40. In addition to that, we are also not convinced with the identity of cadaver. The stated disclosure statement of accused was, in our opinion, corner stone of the prosecution story and yet no question was specifically and clearly asked from appellant Subodh regarding this disclosure statement. 40. In addition to that, we are also not convinced with the identity of cadaver. We have carefully examined all material on record and we believe that there is no specific and convincing evidence to demonstrate that the recovered cadaver was of deceased Aadesh. The identify of recovered corpse has not been fully established especially in the light of evidence of P.W. 7 Dr. Suresh Chandra Tyagi. 41. P.W.7 Dr. Suresh Chandra Tyagi has testified that eighteen years old boy was found murdered. The body was full of insects and worms. Scrotum and penis were swollen. Rigor mortis was absent. Right ear was not present. The hair and skin were not available on skull. Right eye was absent and left eye had come out. Right eye and half right ear had been consumed by the worms. He could not see external injury on the person of deceased. Learned counsel for the appellant has submitted first that there is no specific evidence to establish the identity of this cadaver. He has submitted that the evidence of P.W.1 Baljeet along with evidence of doctor would show that the cadaver was beyond recognition. The major portion of the body had already been eaten by insects and worms. 42. Thus, it was not possible to identify the body. Therefore, some specific evidence, scientific or otherwise should have been produced to establish the identity of cadaver which has not been done. No specific evidence for establishing the identity of cadaver has been placed on record and Trial Judge unfortunately ignored this fact. 43. There is no scientific evidence on record to establish the fact that the death of deceased was result of homicide. The evidence of P.W. 7 Dr. Suredh Chandra Tyagi does not refer to any external injury though he did say after recall by prosecution that the deceased could have suffered an injury on his head of blunt object but he later on explained during cross examination that this injury could have been the result of fall from the head side on the road. We believe that some more specific or scientific evidence should have been led to establish the factum of homicide. We believe that some more specific or scientific evidence should have been led to establish the factum of homicide. Unfortunately there is no specific evidence to establish the factum of homicide beyond all reasonable doubt. 44. There is another reason for not accepting the prosecution case. The charge sheet was submitted against two persons, namely, appellant Subodh and co-accused Rajpal. The prosecution story is that both of them conjointly murdered deceased Aadesh. This fact is available in the impugned judgment. The Trial Judge also framed charges against both accused appellants under Section 302 read with Section 34 IPC. But the Trial Judge acquitted co-accused Raj Pal under Section 302/34 IPC by holding that there is no sufficient evidence to establish his guilt by the same impugned judgment. The Trial Judge, held the appellant Subodh guilty of offence under Section 302 read with Section 34 IPC. Now the question arises whether the appellant Subodh can alone be acquitted under Section 302 read with Section 34 IPC. Both accused were charged under Section 302 read with Section 34 IPC. The element of sharing common intention by both of them was the core of prosecution case. No independent charge under Section 302 IPC was framed against appellant Subodh. In fact no separate role has been delineated either in charge or in evidence as far as appellant Subodh is concerned. Co-accused Rajpal has been acquitted. We believe that the appellant Subodh cannot be convicted for the said offence with the aid of Section 34 IPC. 45. We believe that it is impermissible in law to convict one appellant with aid of Section 34 IPC while both were charged with the aid of Section 34 IPC as there was no independent charge framed under Section 302 IPC against appellant Subodh, hence there is no evidence to show that he independently committed the crime. He cannot be convicted for the offence under Section 302 read with Section 34 IPC while co-accused had been acquitted. Co-accused got the benefit of doubt therefore, the appellant Subodh is also entitled to the same. 46. He cannot be convicted for the offence under Section 302 read with Section 34 IPC while co-accused had been acquitted. Co-accused got the benefit of doubt therefore, the appellant Subodh is also entitled to the same. 46. Bombay High Court in Rajpal Shyamlal versus The State of Maharastra, 2003 CriLJ 4238 has taken this issue under consideration and held that if several persons were convicted by employing Section 34 IPC and if most of them have been acquitted, then sole person ordinarily can not be convicted with the aid of Section 34 IPC only unless his specific role has separately been pleaded and established by trustworthy evidence. The Court held thus:- "6. The first point that requires to be considered is: when the other two co Accused who were named in the charge sheet and even though evidence was adduced against them during the trial by the prosecution-but acquitted, will it be permissible in law to convict the third co-Accused by employing Section 34 of the Indian Penal Code. The Supreme Court in the case of K.G. Patil (supra) has squarely dealt with this proposition. The Apex court has observed that, it is well settled that common intention within the meaning of Section 34 implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a Court an convict a person under Section 302, read with Section 34, of the Indian Penal Code, it should come to a definite conclusion that the said person had prior concert with one or more other persons, named or unnamed, for committing the said offence. The Apex Court has thereafter indicated three different situations. In so far as the present case is concerned, the same is covered under illustration No. 1 given in Para 5 of the said Judgment. The Apex Court has thereafter indicated three different situations. In so far as the present case is concerned, the same is covered under illustration No. 1 given in Para 5 of the said Judgment. That illustration reads thus: "(1) A, B, C, and D are charged under Section 302, read with 34 of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder." While examining the efficacy of this illustration, the Apex Court has observed that: "....in the first illustration the court certainly can convict two or more named accused if it accepts the evidence that they acted conjointly in committing the offence. But what is the position if the court acquits 3 of the 4 Accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said Accused? Can it hold, in the absence of a charge as well as evidence, that though the three Accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons? If the Court could do so, it would be making out a new case for the prosecution: it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration." In paragraph 7, the Apex Court has adverted to its earlier decisions and observed in Paragraph 8, as under: "When Accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same; it would mean that they did not take part in the offence. The effect of the acquittal of Accused Nos. 1, 3 and 4 is that they did not conjointly act with Accused No. 2 in committing the murder. If they did not act conjointly with Accused 2, Accused No. 2 could not have acted conjointly with them." 47. The effect of the acquittal of Accused Nos. 1, 3 and 4 is that they did not conjointly act with Accused No. 2 in committing the murder. If they did not act conjointly with Accused 2, Accused No. 2 could not have acted conjointly with them." 47. Applying the aforesaid principle, we have no hesitation in concluding that once Raj Pal was acquitted, the trial court could not have convicted appellant for the offence under Section 302 read with Section 34 IPC. It is evident that his separate role has not been independently established by trustworthy evidence. The Apex Court in State versus West Bengal versus Vindu Lachmandas Sakhrani Alias, 1994 CriLJ 919 has held thus:- "3. Learned Counsel for the respondent has raised a further point for our consideration. According to him there was no independent charge under Section 302, Indian Penal Code either against the husband or against the wife. Both were charged under Section 302 read with 34, Indian Penal Code. He states that the element of sharing the common intention by husband and the wife was the core of the charge. The husband having been acquitted and there being no independent charge under Section 302, Indian Penal Code against the wife, she cannot be convicted for the said offence. 4. We see force in the argument advanced by the learned Counsel. Both husband and wife were charged with an offence under Section 302 read with Section 34, I.P.C. The charge which was based on the common intention of the two failed with the acquittal of the husband and there being no charge under Section 302 simpliciter against the wife she could not be convicted. In any case there is no evidence on the record to show that she independently committed the offence. " 48. We have carefully examined all the materials on record, it is evident that two persons were accused of murdering deceased Adesh. No specific and independent role of accused persons were separately delineated. Both of them were charged under Section 302 read with Section 34 IPC. However, trial court did not find sufficient evidence against co-accused Raj Pal. It is pertinent to point out that no separate role of appellant Subodh was delineated by prosecution. He was convicted with the aid of Section 34 IPC. Both of them were charged under Section 302 read with Section 34 IPC. However, trial court did not find sufficient evidence against co-accused Raj Pal. It is pertinent to point out that no separate role of appellant Subodh was delineated by prosecution. He was convicted with the aid of Section 34 IPC. Once co-accused Raj Pal was given benefit of doubt, we believe that appellant Subodh should also have been given benefit of the same. 49. In the result, the appeal is allowed. The judgment and order dated 26.9.1983 passed by IIIrd Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 360 of 1982 (State versus Subodh and others) arising out of Crime No. 38 of 1982, Police Station Jansath, District Muzaffarnagar is set aside. Appellant Subodh is acquitted of charge under Section under section 302 read with Section 34 IPC. Appellant need not surrender before the trial court if he is on bail in this case. His bail bonds are cancelled and sureties are discharged. 50. Office is directed to certify the judgment to the concerned court through Sessions Judge, Muzaffarnagar within 15 days. The concerned court shall send the compliance report within one month thereafter.