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2017 DIGILAW 463 (ALL)

IMRAN v. STATE OF U. P.

2017-02-08

KRISHNA PRATAP SINGH, NARAYAN SHUKLA

body2017
(Delivered by Hon'ble Krishna Pratap Singh, J.) 1. Heard Sri D.K. Tiwari, learned counsel for the appellants as well as Sri Rajeev Kumar Mishra, learned A.G.A., for the State of U.P. 2. These two connected appeals are directed against the judgment and order dated 18.11.2008 passed by the learned Additional Sessions Judge, FTC-III District Moradabad in S.T. No. 561 of 2006 (State Vs. Imran and one other) arising out of criminal case crime No. 334 of 2006, Police Station Billari District Moradabad. 3. Both the accused appellants have been convicted under Section 302 Indian Penal Code and sentenced to life imprisonment alongwith fine of Rs. 2,000/- and in default of payment of fine to further undergo an imprisonment for period of six months. Both of them have also been convicted under Section 364 Indian Penal Code and sentenced to rigorous imprisonment for period of 3 years with the fine of Rs. 1,000/-, in default of payment of fine to further undergo an imprisonment for period of six months. Further both of them have also been convicted under Section 201 IPC and sentenced to undergo rigorous imprisonment for period of four years with fine of Rs. 2,000/-, in default of payment of fine to further undergo an imprisonment for period of six months. Learned Trial Court has further directed that all the aforesaid sentences of each one of the appellants shall run concurrently. 4. Briefly the facts of the case are as follows:- 5. Informant Laeek Ahmed PW-1 is resident of village Thawla, PS Bilari District Moradabad, deceased Raees was the younger brother of informant Laeek Ahmed PW-1. Kamil PW-2 is resident of village Guriabhikam, PS Bilari District Moradabad, Shahid Hussain (PW-3) is also resident of village Thawla, PS Bilari District Moradabad. On 18.03.2006 Chaukidar of the village Nibri Jagdish (PW-5) had given a written information Ext. Ka-5 at PS Bilari District Moradabad which was written by one Anis Ahmed resident of village Thawla stating therein that village chowkidar Jagdish Prasad (PW-5) had seen a dead body buried in earth in the wheat field of Om Pal Singh in the jungle of village Nibri, whose limbs were sticking out over the ground and it had been dug up and eaten by the animals. The dead body was fully decomposed. The written information given by the Chowkidar Jagdish (PW-5) was entered in the GD Ext. The dead body was fully decomposed. The written information given by the Chowkidar Jagdish (PW-5) was entered in the GD Ext. Ka-20 and after recovery of dead body inquest report Ext. Ka-2 was prepared. Ext. Ka-9 is the sample of soil. Ext. Ka-10 is the letter to the RI. Ext. Ka-11 is the letter to Chief Medical Officer for post mortem and Ext. Ka-12 is the police form-33 and Ext. Ka-13 is police form No. 13 relating to the transmission of the dead body for post mortem. Ext. Ka-8 is the photograph of the body of the deceased. 6. After recovery of the dead body of the deceased, informant Laeek Ahmed (PW-1) lodged the FIR written by Tanvir Hussain (PW-11) dated 18.02.2006 Ext. Ka-1 at Police Station Bilari District Moradabad alleging therein that his brother deceased Raees has left his rented room at Sahaspur in night at 11:00 PM on 21.02.2006 on a call on his mobile phone. A report regarding disappearance of deceased Raees had also been lodged on 24.02.2006 at Police Station Bilari District Moradabad. After extensive search the informant came to know that appellants Imran and Anzar resident of village Guriabhikam Police Station Bilari District Moradabad had disappeared the deceased Raees with intention to kill him, on suspicion that the Kalowa brother of the appellants had been disappeared by the deceased Raees. The deceased Raees was lastly seen with the appellants by Kamil (PW-2) and Shahid Hussain (PW-3). It is further stated in the FIR that this fact had come to the knowledge of the informant Laeek Ahmed (PW-1) only today i.e. 18.03.2006. On the basis of FIR Ext. Ka-1 Constable Babu Ram (PW-7) registered the case on crime no. 334 of 2006 under Section 364 IPC on 18.03.2006 at 11:50 AM preparing chik FIR Ext. K-4 and GD Ext.Ka-15. The case was initially investigated by Sub Inspector Ayodhya Prasad (PW-6). Thereafter police Inspector B.P. Singh (PW-10) and lastly by Inspector K.N. Misra (PW-8). During the course of investigation, statement of witnesses and accused persons were recorded. During investigation, Investigating Officer has prepared Ext. Ka-7 of taking into possession of earth from the place where the dead body was recovered. The case was initially investigated by Sub Inspector Ayodhya Prasad (PW-6). Thereafter police Inspector B.P. Singh (PW-10) and lastly by Inspector K.N. Misra (PW-8). During the course of investigation, statement of witnesses and accused persons were recorded. During investigation, Investigating Officer has prepared Ext. Ka-7 of taking into possession of earth from the place where the dead body was recovered. On 06.04.2006, the Investigating Officer took the appellants accused on remand and at the instance of accused Imran Phawra (spade) used in burring the dead body of the deceased and Chhuri (knife) at the instance of appellant Anzar were recovered. The site plan of the place of recovery are Ext. Ka-18 and Ext. Ka-19. Ext. Ka-6 is the site plan dated 18.03.2006 of the place of recovery of the dead body and Ext. Ka-17 is the site plan of the place from where deceased departed before his death. Post mortem report is Ext. Ka-4. After completing the investigation, the police submitted charge-sheet Ext. Ka-16 against the appellants/accused under Section 364, 302 and 201 of Indian Penal Code. 7. Autopsy on cadaver of the deceased was performed by Dr. P.N. Saxena (PW-4) on 19.03.2006 at 4:00 PM vide Ext. Ka-4 in the estimate of doctor, deceased was 27 years of age, three or four weeks had lapsed since he was murdered. The dead body was fully decomposed and mud present all over the body, maggots present in eye balls and in front of chest and abdomen and found following ante-mortem injury:- (I) 4cm x 4cmx 4cm x trachea deep at front of mid of neck hyoid cartilage of trachea cut. 8. On the strength of submitted charge-sheet, accused were summoned since the disclosed offences were exclusively triable by the Sessions Court, learned CJM committed the case to the Court of Sessions; where it was registered as Sessions Trial No. 561 of 2006 (State Vs. Imran and one other). The aforesaid sessions trial was transferred to the Additional Sessions Judge, FTC-III, Moradabad. 9. Learned Trial Judge charged the appellants accused with offences under Sections 201, 364, 302 read with Section 34 IPC on 13.09.2006. After the charges being read over and explained to the both appellants/accused, they claimed to be tried and consequently, sessions trial procedure was restored to establish their guilt. 10. 9. Learned Trial Judge charged the appellants accused with offences under Sections 201, 364, 302 read with Section 34 IPC on 13.09.2006. After the charges being read over and explained to the both appellants/accused, they claimed to be tried and consequently, sessions trial procedure was restored to establish their guilt. 10. In the trial prosecution rested its case on oral testimonies of witnesses including those of informant Laeek Ahmed (PW-1), Kamil (PW-2), Shahid Hussain (PW-3), Chaukidar Jagdish (PW-5), Tanvir Hussain PW-11 as fact witnesses. Formal witnesses are Dr. P.N. Saxena (PW-4), Investigating Officer Sub Inspector Ayodhya Prasad (PW-6), Constable Babu Ram (PW-7), Investigating Officer Sub Inspector K.N. Misra (PW-8), Sub Inspector Hari Singh (PW-9) and Investigating Officer B.P. Singh (PW-10). After the evidence of the prosecution, statement of appellants/accused were recorded under Section 313 Code of Criminal Procedure and in their examination under Section 313 Code of Criminal Procedure, both the accused pleaded the common defence of their false implication and witnesses had deposed false story against them. Learned Trial Court believed the prosecution case and, therefore, convicted the appellants/accused of the framed charges under Sections 201, 364, 302 read with Section 34 IPC and have sentenced them accordingly vide impugned judgment and order dated 18.11.2008 which decision has now been called in question in the instant appeals. 11. Learned counsel for the appellants submitted that the appellants accused are innocent and have been falsely implicated in the present case. It was further submitted that the deceased was a hardened criminal and many cases were pending in different districts of U.P. against the deceased. He was murdered by some times in night as he has lots of other enemies and since murders could not be identified, the appellants accused have been falsely implicated by the informant and the witnesses in the present crime on the basis of suspicion, though both had nothing to do with it. It was further submitted that it is case of no evidence. None of the fact witnesses, Kamil (PW-2) and Shahid Hussain (PW-3) who are the witnesses of last seen are trustworthy and reliable witnesses nor their testimonies are convincing and confidence inspiring. It is also submitted that Kamil (PW-2) and Shahid Hussain (PW-3) are planted and tutored witnesses. They have never seen the deceased in the company of the appellants accused. It is further submitted that entire prosecution story is cooked up and fabricated. It is also submitted that Kamil (PW-2) and Shahid Hussain (PW-3) are planted and tutored witnesses. They have never seen the deceased in the company of the appellants accused. It is further submitted that entire prosecution story is cooked up and fabricated. Learned Trial Judge has completely ignored the important evidence and has concentrated only on truncated version to convict the appellants so the impugned judgment could not sustained and the appeals filed by the appellants be allowed and they may be acquitted from all the charges and be set at liberty. 12. Learned AGA to contrary has submitted that the circumstances brought on record by the prosecution indicate that the deceased was taken away by the appellants and subsequently was murdered. His dead body was buried in the earth in order to disappear the evidence, since it is not a case of an eye witness account, prosecution has successfully brought on record the motive and last seen evidence against the accused appellants and the weapon used in the commission of the present crime was also recovered at the instance of the accused appellants. Therefore, the charge of murder has been established beyond any shadow of reasonable doubt. It was also submitted that the appeals of the appellants accused are without merit and deserves to be dismissed. 13. The prosecution case is that the appellants accused Imran and Anzar had committed the murder of Raees by cutting his throat with a Chhuri (knife) and dead body has been buried in the wheat field of one Om Pal Singh in jungle of village Nibri. At the time of recovery of dead body the limbs of deceased were sticking out over the ground. The dead body had been dug up and eaten by the animals. The dead body was also fully decomposed. Nobody witnessed the occurrence and case rests on circumstantial evidence. It has been consistently laid down by the Hon'ble Apex Court that where a case rests squarely on circumstantial evidence, the inference of the guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. It has been consistently laid down by the Hon'ble Apex Court that where a case rests squarely on circumstantial evidence, the inference of the guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 14. In Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR (1984) (SC) 1622, the Hon'ble Apex Court has held that; (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) The circumstances should be of conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved and, (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 15. In State of U.P. Vs. Ashok Kumar Srivastava, (1992) Crl. L.J. 1104 wherein it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in the favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 16. It was also pointed out that the circumstances relied upon must be found to have fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 16. Their lordships of the Hon‘ble Supreme Court in the case of Majenderan Langeswaran v. State (NCT of Delhi) and another, reported in (2013) 7 SCC 192 , have held that onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court and all the circumstances must lead to the conclusion that accused is the only one who has committed crime and none else. It have been held as follows: "3. On 30th November, 1996, an altercation is stated to have taken place between the accused and the deceased L. Shivaraman. As the accused had sustained some cut injuries on his hands, he reported the matter to the officials. On 1st December, 1996 when the ship was on high seas, the appellant took off from his duty as helmsman on the ground of pain in his hands due to cut injuries and another helmsman Baria was asked to do the duty as replacement. As the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault. At about 1510 hours, the accused allegedly approached IInd Officer Kalyan Singh (PW-6) with a blood-stained knife in his hand and his hands smearing in blood and is alleged to have confessed before him that he had killed L. Shivaraman. On being asked by Kalyan Singh (PW-6), the appellant handed over the blood-stained knife to him which he placed in a cloth piece without touching the same. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. On being so directed by the Captain of the ship (PW-5), Kalyan Singh (PW-6) got the body of the deceased cleaned up for being preserved in the fish room with the help of Manjeet Singh Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18) took photographs. The bloodstained knife was kept in the safe custody of PW-5. The accused was then apprehended, tied and disarmed before being shifted to the hospital on board. Since the ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No.10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996. 16. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court. 17. In the case of Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 , Hon'ble Apex Court observed as under: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. …." 18. In the case of Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706, Hon'ble Apex Court opined as under: "10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351 )" 19. In the case of C. Chenga Reddy & Ors. v. State of A.P., (1996) 10 SCC 193 , Hon'ble Apex Court while considering a case of conviction based on the circumstantial evidence, held as under: "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence." 20. In the case of Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 , Hon'ble Apex Court again considered the case of conviction based on circumstantial evidence and held as under: "26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603 )." 21. In the case of Sattatiya v. State of Maharashtra, (2008) 3 SCC 210 , Hon'ble Apex Court held as under: "10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." This Court further observed in the aforesaid decision that: "17. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." This Court further observed in the aforesaid decision that: "17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court—Bharat v. State of M.P., (2003) 3 SCC 106 .” 22. In the case of State of Goa v. Pandurang Mohite, (2008) 16 SCC 714 , Hon'ble Apex Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 17. In the light of the above pronouncements of Hon'ble Apex Court, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellants had committed the crime. In the present case, the prosecution in order to prove its case, mainly relied on the following circumstances; (i) The death of the deceased Raees was homicidal in nature. (ii) Deceased Raees was last seen with the accused Imran and Anzar at the triangle (tiraha) of village Thawla on the occurrence of night. (iii) Recovery of Chhuri and Phawra on the pointing out of the accused persons and recovery of clothes of deceased from the dead body. (iv) The brother of the accused persons Kalwa who was disappeared by the deceased Raees before the present occurrence. 18. (iii) Recovery of Chhuri and Phawra on the pointing out of the accused persons and recovery of clothes of deceased from the dead body. (iv) The brother of the accused persons Kalwa who was disappeared by the deceased Raees before the present occurrence. 18. The autopsy on body of Raees was conducted by Dr. P.N. Saxena (PW-4). According to him following injuries were found on the dead body:- ,UVhekVZe bUtjh ,d dVk gqvk ?kko x 4 lseh x- 4 lseh lkWal dh uyh dVh gqbZA ?kko xys ds lkeus dh rjQA VsVqvk Hkh dVk gqvk FkkA efLr"d dk inkFkZ iryk iM x;k FkkA ilfy;ksa ds lkal dks dhMs [kk x;s FksA lkal dh uyh dks Hkh dhMs [kk x;s FkssA nksuksa lkbZM ds QsQMs [kk fy;s FksA g`n; Hkh dhMksa us [kk fy;k FkkA isV dk lkjk foljk dhMksa us [kk fy;k FkkA isV feVVh ls Hkjk gqvk FkkA nkar 16@16 FksA MkDVj dh jk; esa e`rd dh e`R;q ,aVhekVZe bUtjh dh otg ls lEHko FkhA e`rd dh e`R;q fnukad 21-2- 2006 ls 18 -3-2006 ds chp dHkh Hkh /kkjnkj gfFk;kj elyu Nqjh ls xyk dkVdj gksuh lEHko FkhA iksLV ekVZe dh fjiksVZ izn'kZ&d4 gSA 19. On the basis of antemortem injury of the deceased, it is opined by the Doctor that the cause of death of Raees was ante-mortem injuries. Accepting the medical evidence, it is is clear that Raees suffered a homicidal death. 20. As to concern, the last seen evidence, deposed by Kamil (PW-2) and Shahid Hussain (PW-3). The said evidence was disclosed about 26 or 27 days after the occurrence who were wholly chance witness. Kamil (PW-2) and Shahid Hussain (PW-3) in between the incident and passing of 26 or 27 days, both the witnesses had not narrated the last seen, story to anybody not even to his family members or to the police or informant. They were interrogated by the Investigating Officer only after a gap of aforesaid period when the dead body was recovered, therefore, it will be fatal and dicey to place reliance of such an evidence, Kamil (PW-2) is the near relative of informant Laeek Ahmed (PW-1). Informant Laeek Ahmed (PW-1) is the brother-in-law of Kamil (PW-2). Shahid Hussain (PW-3) is also seems to be interested and partisan witness. Informant Laeek Ahmed (PW-1) is the brother-in-law of Kamil (PW-2). Shahid Hussain (PW-3) is also seems to be interested and partisan witness. In his cross-examination at page-4 he has deposed that he was present at spot when the dead body was recovered/discovered whereas Investigating Officer Ayodhya Prasad (PW-6) at last page of the cross-examination clearly stated that Kamil (PW2) and Shahid Hussain (PW-3) were not present at the time of recovery of dead body. This fact shows that Shahid Hussain (PW-3) is also interested witness. Kamil (PW-2) and Shahid Hussain (PW-3) has not informed the informant about the last seen evidence prior to the recovery of dead body. Why they kept this evidence close to their chest for such a long period of 26 or 27 days. Why they were waiting regarding the aforesaid fact. Both the witnesses have been rightly suggested by the defence that they had not seen the deceased in company of appellants accused and whatever they had evidenced is false. We find that they appear a wholly and unreliable witnesses and, therefore, in our opinion, there is no evidence of last seen against the appellants accused in the present matter. 21. According to the prosecution, blood-stained baniyan, Tshirt, pant, blood-stained earth and blood-stained Chhuri (knife) material exhibits 1, 2, 3, 6 and 9 were recovered. Recovered Chhuri (knife) material exhibit 9 and the clothes that had been worn by the deceased at the time of incident was sent to the Central Forensic Science Laboratory, Agra for examination and information. According to the report which is available on record, human blood was found on the aforesaid material exhibits but the blood group of deceased and blood found on material exhibits were not mentioned in the report. The said Chhuri (knife) Ext. Ka-9 was not shown to the doctor who conducted the post mortem examination to ascertain whether the said Chhuri was used in the commission of offence. As per post-mortem report cut wound was found on the neck of the deceased. The Chhuri was not shown to the doctor P.N. Saxena (PW-4) who had conducted the post mortem examination on the dead body of the deceased to find out whether injuries could have been caused by that weapon. Thus, there is nothing on record to show that injuries caused to the deceased were such as could be caused by recovered Chhuri, material exhibit 9 alone. Thus, there is nothing on record to show that injuries caused to the deceased were such as could be caused by recovered Chhuri, material exhibit 9 alone. Further, informant Laeek Ahmed (PW-1) is the real brother of the deceased and brother-in-law of Kamil (PW-2). Shahid Hussain (PW-3) is also interested and chance witness so it appears to us that recovery has not been corroborated by any proper independent evidence. 22. The evidence produced by the prosecution before the Trial Court is that the dead body of deceased Raees was recovered from the wheat field Om Pal Singh and Chhuri and Phawra were recovered at the instance of the appellants accused. There is nothing on record to show that the appellants accused were seen near the place of commission of crime or where the deceased was residing before the occurrence. Foot prints of the appellants accused were also not found in the wheat field of Om Pal Singh from where body of the deceased was recovered and the place from where the Chhuri and Phawra are alleged to have been recovered. For establishing the guilt on the basis of circumstantial evidence, it is also to be taken into account that chain of circumstantial evidence must be completed. It appears from the fact that the said chain of circumstantial evidence cannot be concluded in the manner sought to be done by the prosecution. The circumstances must be conclusive in nature. In the instant case, after analysing the facts, it appears that there is a gap between the circumstances tried to be relied upon to hold the appellants accused as guilty. 23. The identity of the recovered dead body and incriminating articles has also been challenged by the defence. According to the post-mortem report, the dead body was fully decomposed and maggots were crawling on over the body, some parts of the body was eaten by the animals. The dead body was identified by red coloured T-shirt and cream coloured pant which were found on cadaver. Evidence available on record shows that dead body was recovered after 26 or 27 days after the incident. The dead body was buried in earth. Looking the condition of dead body it was not possible to identify the cadaver as in the period of 26 or 27 days, the clothes which were worn by the deceased would have become tatter. Evidence available on record shows that dead body was recovered after 26 or 27 days after the incident. The dead body was buried in earth. Looking the condition of dead body it was not possible to identify the cadaver as in the period of 26 or 27 days, the clothes which were worn by the deceased would have become tatter. On the basis of tatter, identity of the dead body become wholly unbelievable and unreliable. As such, the identity of the dead body is also doubtful. It is also noteworthy that the dead body was not recovered at the instance of the appellants accused. 24. We have seen that according to the report of CFSL, Agra, human blood was found on the clothes and Chhuri but there is nothing on record to show that the blood of the deceased was sent for comparison with the blood stains found on the clothes and Chhuri (weapon of crime). Serologist also could not opined that blood found on the clothes and Chhuri was of Raees. Thus recovery will not connect the appellants accused with the crime. 25. Brother of the deceased Laeek Ahmed (PW-1) in his cross-examination at page 3 has accepted that at the time of incident deceased was living in Sahaspur with a lady Saira. Saira was legally wedded wife of one Mohd. Rafi. He does not know that Mohd. Rafi is the resident of village Thawla. He further deposed that dead body was fully decomposed could not be identifiable. His mother had told him about the clothes which had been worn by the deceased. It is alleged that red coloured T-shirt and cream coloured pant were recovered from the dead body of the deceased. Deceased had not gone before him in other words the mother of the deceased had seen the deceased when deceased had lastly left his house. Laeek Ahmed (PW-1) had not seen the deceased. This fact that at the time of occurrence deceased had worn red coloured T-shirt and cream coloured pant should be proved by producing the mother of the deceased in witness box but mother of the deceased has not been examined. Saira with whom at the time of occurrence the deceased was living had also not been examined. So the fact that deceased when lastly left his house had worn red coloured T-shirt and cream coloured pant is also not proved. Saira with whom at the time of occurrence the deceased was living had also not been examined. So the fact that deceased when lastly left his house had worn red coloured T-shirt and cream coloured pant is also not proved. In any case, those clothes of the deceased would be hardly any evidence to connect the appellants accused with the alleged murder of the deceased by them. When assuming to be true, the recovery of certain incriminating articles were made at the instance of the appellants accused under Section 27 of the Indian Evidence Act that by itself cannot form the basis of conviction as has been dealt by the Hon'ble Apex Court in Wakkar & Anr. Vs. State of U.P., reported in (2011) 3 SCC 306 . 26. Motive of the commission of the crime has been shown by the prosecution in the instant case is that before some times of the present occurrence, the brother of the appellants accused Kalowa has been disappeared. On suspicion that Kalowa had been disappeared by the deceased Raees, appellants had a grudge and therefore, committed the murder of Raees and dead body was buried with the intention of screening themselves from the legal punishment. Evidence on record does not show that when and from where the brother of the appellant accused Kalowa was disappeared. There is also no evidence and explanation that why Kalowa had been disappeared by the deceased (Raees). This alleged motive for murder of Raees has not been proved by the prosecution. While dealing with the conviction based on circumstantial evidence, circumstances from which conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused. Onus lies on prosecution to prove that chain of event is complete and not leave any doubt in the mind of the Court. In other words there must be chain of evidence so completed as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In other words there must be chain of evidence so completed as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. On consideration of all facts and pieces of evidence, it can safely be concluded that the offence committed by the appellants accused has not been fully established beyond all reasonable doubt as circumstances are not conclusive in nature. Neither the chain of events is complete nor the circumstances lead to conclusion that murder of Raees was committed by the appellants accused and none else. 27. For the reasons given above, both the appeals are allowed. The impugned judgment and conviction is set aside and the appellants/accused are acquitted from all charges levelled against them. Appellants are in jail, they may be released forthwith if they are not wanted in connection with any other case. 28. Let a copy of this order alongwith lower court record of the case be sent to the concerned learned Sessions Judge for necessary compliance forthwith.