JUDGMENT : G.R. MOOLCHANDANI, J. 1. Both these appeals have been directed against the judgment of conviction passed by Additional Sessions Judge (Fast Track), Tonk in Sessions Case No. 46/2010 (61/2010) on 23.09.2011, whereby learned trial Court has convicted appellant-accused Vijay Singh and Bhairu Singh for the offences punishable under Sections 364, 394, 302 and 201 of IPC as under:- Under Section 364 of IPC Life Imprisonment and fine of Rs. 1,000/- in default of payment of fine, to further undergo three months imprisonment. Under Section 302 of IPC Life Imprisonment and fine of Rs. 1,000/- in default of payment of fine, to further undergo three months Imprisonment. Under Section 394 of IPC Life imprisonment and fine of Rs. 1,000/- in default of payment of fine, to further undergo three months imprisonment. Under Section 201 of IPC Seven years simple imprisonment and fine of Rs. 1,000/- in default of payment of fine, to further undergo three months imprisonment. All sentences to run concurrently. 2. Contents of Written Report Exhibit-P1, which has been submitted by Sheojiram PW-1 S/o Chaturbhuj, a villager on 15.6.2010 at 10:15 a.m. to Constable Madan Lal PW-5, Police Station Uniyara District Tonk, reads as under:- ^^lsok esa] Jheku Fkkukf/kdkjh] iqfyl Fkkuk mfu;kjk fo"k; & fjiksVZ ntZ djus ckcrA Jheku] fuosnu gS fd vkt fnukad 15-6-2010 dks lqcg djhc vkB cts eq>s irk pyk fd jlqyiqjk dh iqfy;k ds ikl rFkk u;kxkao ds lM+d ds mRrj esa ,d vKkr O;fDr dh yk'k iM+h gqbZ gSA ftldk flj QwVk gqvk gS xnZu ij pksV dk fu'kku gSA ftldh 'kVZ dh dkWyj Hkh dVh gqbZ gS yk'k lM+h gqbZ cncw ekj jgh gSA bl vKkr O;fDr dks dksbZ ekjdj mldh yk'k ;gka iqfy;k ds uhps Mkyh xbZ gSA ge xkao ds O;fDr ekStwn gSA dk;Zokgh djus dh d`ik djsaA yk'k nks&rhu fnu iqjkuh gks ldrh gSA fjiksVZ djrk gawA mfpr dk;Zokgh djus dh d`ik djsaA fnukad 15-06-2010 ,lMh@& ';ksthjke xqtZj u;k xkao ddksM rglhy mfu;kjk ftyk VksadA** On the basis of above Written Report, formal FIR Exhibit-P14 has been lodged as FIR No. 84/2010 at Police Station Uniyara District Tonk on 15.6.2010 at 11:00 a.m. for the offences punishable u/s 302, 201 of IPC. 3. Subsequently, after identification of dead-body and detection of tractor. 3. Subsequently, after identification of dead-body and detection of tractor. Dayal Das Swami (PW-27) father of deceased Vishnu Das Swami, lodged a detailed written report Exhibit-P50, with Police Station Uniyara mentioning following text:- ^^lsok esa] Jheku Fkkukf/kdkjh egksn;] iqfyl Fkkuk mfu;kjk ftyk VksadA fo"k; & fjiksVZ ntZ dj dkuwuh dk;Zokgh djus ckcrA egksn; th] mijksDr fo"k; esa fuosnu gS fd eSa xzke mn;iqfj;k Fkkuk nwnw dk jgus okyk gawA gky esa cksjkt esa edku fdjk, ysdj jg jgk gawA tgka ij esjh cgu 'kfUr nsoh iRuh LoŒ Jh Hkwjknkl Lokeh Hkh Lo;a ds edku esa jgrh gSA eSa VSEiks pykrk gawA esjh cgu dk yM+dk txnh'k esjk HkkUtk gSA ftlds ikl efgUæk VªsDVj MhŒvkbZŒvkjŒtsŒ 14 vkjŒtsŒ 5740 gS ftls txnh'k o esjk yM+dk fo".kq nksuksa xkaoksa esa fdjk;s ij pykrs gSA txnh'k dk edku chp cktkj dgpjh ds ikl gSA tgka ;g jgs gS ,oa budk dqvk xkao ds ckgj gSaA tgka edku cuk gqvk gSA VªsDVj ogha [kM+k jgrk gSA esjk yM+dk fo".kq nkl fnukad 13-06-2010 dks esjh cgu 'kkfUr nsoh ls VªsDVj dh pkch ekaxdj ;g dgdj ys x;k Fkk fd [kkn Mkyus tkuk gSA dy nksigj rd vk tkÅaxkA fo".kq dks fot; flag vkSj HkS:flag gekjs xkao ds cqykus vk, Fks ftuds lkFk pkch ysdj dq, ij pyk x;k vkSj VªsDVj ys x;kA fnukad 14-06-2010 dks fo".kq 'kke rd ?kj ugha vk;k rc eSa esjh cgu ds ?kj x;k rks esjh cgu us crk;k fd fot; o HkS:flag cqykdj ys x, Fks tks vc rd ugha vk,A eSa fot; flag ds ?kj x;k rks mlds firk vejflag feys ftuls eSaus iwNk fd fot; o fo".kq lkFk x, Fks tks ugha vk, dgka x, gS \ rc mlus dgk fd eq>s irk ugha gSA eq>s dqN Hkh dgdj ugha x;k eSa okil vk x;k eSaus vkSj esjs ifjokj okyksa us fo".kq o VªsDVj dks vklikl ryk'k fd;k tks ugha feys fnukad 15-06-2010 dks eSa VSEiks ysdj cU/ks ds ckykth pyk x;k 'kke dks ?kj vk;k rks ?kjokyksa us crk;k fd fo".kq vc rd ugha vk;kA geus fot;flag ds ?kj ij ekywe fd;k rks mUgksaus dqN Hkh ugha crk; ge okil ?kj vk jgs Fks rks jkLrs esa lkaojnkl feys ftuls fo".kq ds ckjs esa iwNk rks crk;k fd fnukad 13-06-2010 dks 'kke lkr cts eSaus mudks egyk cl LVS.M ij Fkk fo".kq] fot;] HkS:flag [kM+s&[kM+s ckrsa dj jgs Fks ikl gh rqEgkjk VªsDVj o ,d eksVjlkbZfdy [kM+h Fkh tks FkksM+h nsj ckn fo".kq o fot; VsªDVj ls o HkS:flag eksVjlkbZfdy ls lkaxkusj dh pys x,A bl ij gesa 'kd gqvk fd vejflag dh yM+dh e.Mkojk vyhx<+ esa C;kgh gqbZ gS tgka ij budh tehu Hkh gSA VªsDVj o fo".kq dks ogka ys x, gks gesa ugh crk jgs gks rc ge fnukad 16-06-2010 dks eSa esjk HkkUtk txnh'k] lkaojnkl] xksiky yky 'kekZ] gsejkt flag e.Mkojk x, rks gekjk VªsDVj&Vªksyh ds cEcj ij nknwjke lR;jke fy[kk Fkk ftls yky jax ls feVk;k gqvk Fkk tks rktk Hkh Fkk vkSj Vªksyh ij Lokeh d`f"k QkeZ cksjkt] rglhy nwnw ftyk t;iqj fy[kk Fkk ftls geus igpku fy;k fQj vejflag ds tokbZ c`tsUæ flag dks cqykdj fo".kq ds ckjs esa cqykdj iwNk rks crk;k fd eSa fo".kq dks ugha tkurk VªsDVj esjk lkyk fot;flag ;gka NksM+dj x;k Fkk bl ckr ij gekjs cgl gksus yxhA fdlh us iqfyl dks Qksu dj fn;k rks iqfyl okys vk, vkSj VªsDVj ds dkxt ekaxs tks gekjs xkao ?kj ij Fks iqfyl us VsªDVj tCr dj vyhx<+ Fkkus ij ys vk,A ge Hkh vyhx<+ vk x, ogha ij esjs fj'rsnkj us Qksu ij crk;k fd mfu;kjk esa ,d vKkr O;fDr dh yk'k feyh gS rqe ogka tkdj ns[kk ge ;gka mfu;kjk vk, rks mldk QksVks o diM+s ns[kdj igpku x, fd ;g fo".kq ds gh gSA fQj ge iqfyl okyks ds lkFk Vksad tkdj yk'k dks ns[kdj igpkus fd ;g yk'k fo".kq dh gh gSA ftldk flj QwVk gqvk o xnZu dVh gqbZ gSA fo".kq dks fot;flag o HkS:flag us VsªDVj&Vªksyh gM+ius ds fy, flj QksM+dj o xnZu dkVdj gR;k dh gSA fjiksVZ djrk gaw dkuwuh dk;Zokgh djsaA fnukad 16-06-2010 gLrk{kj n;ky nkl Lokeh iq= Jh jkejl Lokeh fuoklh&cksjkt Fkkuk tkscusj t;iqjA** 4. Heard submissions of rival sides. Learned counsels for the appellants has contended that learned court below has ignored mandate of law by passing the impugned judgment and without clinching evidence in respect of theory of last seen together, order of conviction has been passed in fact theory of last seen together has not been established and there are several manifest contradictions in the evidence relating thereto, recovery of the weapon of offence and apparels is also not established since prosecution has failed to give satisfactory evidence in respect of the same and no independent witness has been taken for proving recovery, testimony of some of the witnesses have been recorded belatedly without any explanation, which creates serious dent upon the story of the prosecution, some of the important witnesses of the prosecution have turned hostile, even identity of Brijendra Singh, who allegedly recorded evidence under Section 164 of Cr.PC and Brijendra Singh, who deposed before the court, is doubtful and both the individuals vary but prosecution has not explained this aspect and has failed to establish identity of Brijendra Singh. PW-6 Brijendra Singh has turned hostile, so finding of the court below needs to be interfered with and quashed, hence appeal be accepted and conviction of both the accused-appellants be set aside. Per contra learned Public Prosecutor has contended that the case of the prosecution is well proved by positive evidence and recoveries have been made on the instance of accused persons, there is material evidence in respect of last seen together, looted tractor has also been recovered, concealed by the accused persons, so impugned judgment does not suffer from any infirmity and it deserves to be confirmed, hence appeal be dismissed and finding of learned trial court be upheld. 5. Exhibit-P54 autopsy report dated 17.6.2010 reveals that body has been post-mortemed on 17.6.2010 at 10:45 a.m. and cause of death has been opined to be head injury, viscera was sealed and sent for FSL examination. Following injuries have been found on the dead body:- Whole body due to putrefaction swollen enormously, appear stouter and older. Foul smell present. Whole body cover with blister and peeling of skin place to place, body appear discoloured. Maggots present in face and neck wound. Wound from left side of mouth to neck, left side laterally and posteriorly. Wound altered and open. Foul smell present. Whole body cover with blister and peeling of skin place to place, body appear discoloured. Maggots present in face and neck wound. Wound from left side of mouth to neck, left side laterally and posteriorly. Wound altered and open. There is multiple fracture of skull vault, brain matter liquefied, cranial cavity empty and a piece of left parietal is missing. Right eye bulging and protrude out socket left eye collapsed in socket. 6. Exhibit-P55 dated 07.04.2011 FSL report has given a negative test for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquilizers and insecticides, as such it reveals no administration of poison. Exhibit-P70 serological report suggests detection of human blood on blood smear soil, shirt, half pant, baniyan, jeans, pant of the deceased and human blood has also been found on chaku (knife), rod (top-land) and pants of both the accused persons. 7. Exhibit-P19 statements of Brijendra Singh, Behnoi (brother-in-law) of accused Vijay Singh, recorded under Section 164 of Cr.PC on 12.7.2010, are relevant since he has stated therein that on 14.6.2010 at about 4:00 of midnight, while he was sleeping alongwith his family, his door was knocked, on opening he found his brother-in-law (Saala) Vijay Singh, who came inside, on query, he informed that he had bought a tractor and said that Bhairu Singh had also come alongwith but since returned from Uniyara, he has further stated that when it was enquired whether the tractor was bought, then Vijay Singh informed that tractor was purchased on loan for agriculture and expressed his desire to dine, which was prepared by wife of the deponent. Vijay Singh went to tap to have bath, since it was getting daybreak, so deponent went to ease himself and Vijay Singh left in his behind, he has further stated that so he went by tractor and found Vijay Singh going on the way, thus was taken and left promptly. On 18.6.2010 Dayal Das came there with four to five persons and enquired about his son and he was told that the tractor had been left there but he does not know whereabouts of his son, they said that Vijay Singh had bought the tractor. Aligarh Police Station was informed, police came there and asked papers of the tractor but he denied their possession. Aligarh Police Station was informed, police came there and asked papers of the tractor but he denied their possession. On the same day, it could be known through newspaper that Vijay Singh and Bhairu Singh had killed Vishnu Das Swami by knife infliction but he did not witness any incident, this statement has been recorded by Judicial Magistrate, Deoli (Tonk) Shri Mukesh Arya PW-28 on 12.7.2010 being Exhibit-P19. 8. The case of the prosecution is based on circumstantial evidence and there is no ocular evidence regarding the incident, there are contradictory evidence pertaining to theory of last seen together, severe feebility has emanated in respect of the same, majority of the witnesses have stated that there was no enmity between the families of the deceased and accused persons but evidence to this effect has also appeared in the testimony produced by the prosecution. Some of the important witnesses of the prosecution have turned hostile, even recovery witnesses in context of the recovery of alleged weapon of offence, a dagger and top-land (rod) have not supported the prosecution, independent witnesses have almost turned hostile and testimony of Police Constables, having been shown witnesses of recoveries, seems to be doubtful because of not being indifferent and non-inclusion of independent witnesses. 9. PW-32 Smt. Shanti, Aunt of deceased Vishnu Das Swami, primary witness of last seen together, has stated that twelve months back, when she was preparing tea in the evening and Vishnu was drinking tea. Vijay Singh and Bhairu Singh came there and called Vishnu to come-out, they had a conversation, then Vishnu came to her and asked for the key of the tractor, by saying that he was going to transport fertilizer, after that Vishnu, Vijay Singh, Bhairu, all rode on the motorcycle and went away towards the well, place where tractor was parked. Vishnu had told her that he will be coming back by the evening of next day but he did not return, third day they went to search him at the house of Vijay Singh. Vishnu had told her that he will be coming back by the evening of next day but he did not return, third day they went to search him at the house of Vijay Singh. Father of Vijay Singh met at his resident, who was not aware about the whereabouts of Vishnu, she has further stated that tractor and trolley were recovered from Tonk District, where Vijay Singh has got some relations and it was learnt that after killing, Vishnu was thrown away, the said tractor stands registered in my name alongwith Jagdish Swami, its R.C. is Exhibit-P57, in cross-examination she has stated that Dayal Das, while got married with another lady, lady brought two kids alongwith, born from her former spouse. Younger brother of Vishnu Heera Swami died nine years back due to ailment, going contrary to the examination-in-chief, she has stated that when she went to the house of Vijay Singh, he met her but had expressed his ignorance about whereabouts of Vishnu twistingly, she has further asserted that part of her statement-in-chief that she had met with father of Vijay Singh are wrong and has further asserted that she had conveyed to the Police that she had informed the same that she had enquired it from Vijay Singh but this aspect has admittedly not appeared in Exhibit-D7, her Police statements. Omissions and contradictions have appeared vis-a-vis in her testimony and Exhibit-D7 her Police statements, contrary to recitals of her Police statements, she has asserted that Jagdish, her son and Dayal Das, her brother, did not visit to the house of Vijay Singh to enquire, going against the record, she has further stated that she had gone to Jobner Police Station to report Vishnu's missing but same was not registered by the Police and has further stated that she did not register any report against Jobner Police Staff nor complained to higher authorities, she has categorically denied existence of dispute between her son Jagdish, brother Dayal Das or wife of Dayal Das with deceased Vishnu, she has also stated that Vishnu had resided with her at Boraj and all were known to him at Boraj. 10. 10. FIR Exhibit-P50 has got a recital that Sanwar Das, while meeting complainant on the way, had informed complainant that deceased was witnessed by him at Mehla Bus Stand alongwith Vijay and Bhairu Singh, Vishnu was plying tractor of his aunt Shanti Devi about eight months back, while he was going to purchase some commodity at 06:00 p.m. from Mehla Bus Stand, on the other corner of the road Vijay Singh, Bhairu and Vishnu Das Swami riding found negotiating and while coming back after buying the commodity, he witnessed Vishnu and Vijay Singh leaving by tractor and Bhairu Singh riding on black Splendor motorcycle towards Jaipur, when he returned back to Village Boraj on 15th, then Dayal Das Swami and Jagdish Das Swami met him on the way and informed that Vijay Singh and Vishnu Das Swami, who rented the tractor, had not returned, then he informed them regarding witnessing them on 13th in the evening, afterwards, on 16th morning they went to Mandavra through a Jeep accompanying his uncle Dayal Das Swami, Jagdish Das Swami, Gopal Lal Sharma and owner of jeep Hemraj Choudhary, reaching at Village Mandavra they enquired about the premises of Brijesh and knocked the door of Brijesh, which was closed, on observing around, they found tractor-trolley parked there, Brijesh come out of the house and was enquired about Vishnu, he said that he does not know any such Vishnu, on enquiring about the said tractor as to from where and why it was there, he said, it belongs to him since it was left by his brother-in-law Vijay Singh at 04:00 a.m. he left the vehicle with a say that it was already purchased by him, then wordy altercation took place. 11. Crucial aspect in respect of recovery of the tractor (looting of which is alleged motive of the crime) is also highly doubtful. 11. Crucial aspect in respect of recovery of the tractor (looting of which is alleged motive of the crime) is also highly doubtful. Case of the prosecution is that the alleged tractor was recovered from the premises of Brijendra Singh (Behnoi) brother-in-law of accused Vijay Singh, some of the witnesses have stated that alleged tractor was found in the occupied encircled premises of Brijendra Singh and it was noticed thereby relatives of the deceased, when they had been to Brijendra's house at Mandavra and on knocking his door, the said was detected there but majority of the evidence has come otherwise that said tractor was found outside the premises area of Brijendra Singh, Exhibit-P28 establishes conversely otherwise since said tractor has been recovered from Police Station Aligarh on 16.06.2010 and was earlier seized under Section 207 of the Motor Vehicles Act, except irrelevant oral say, nothing is there on the record to show that the said tractor was recovered from the premises of Brijendra Singh. So far as testimony of Brijendra Singh, PW-6 is concerned, he has turned hostile and has not supported the prosecution, rather has resiled from his earlier statements recorded under Section 164 of Cr.PC sparking doubt over the identity of both the individuals deposed under Section 164 and testified later in the court. 12. So far as testimony of Brijendra Singh, PW-6 is concerned, he has turned hostile and has not supported the prosecution, rather has resiled from his earlier statements recorded under Section 164 of Cr.PC sparking doubt over the identity of both the individuals deposed under Section 164 and testified later in the court. 12. Brijendra Singh, while examined under Section 164 of Cr.PC besides verifying certain prosecution documents, has signed in "Hindi" signing his full initials as Brijendra Singh but while deposing in the court, the signatures have been made in "distinct peculiarity" in shape of "initials" indicating illegible script and language, it is also important that age of deponent Brijendra Singh in his 164 Cr.PC statements, which have been recorded on 12.07.2010 is shown to be of "35 years" but in the court testimony, which has been recorded about six months later on 11.01.2011, age of the deponent is shown to be of "40 years" deponent Brijendra Singh has stated that on 14.06.2010, when he was at his residence in Mandavra, none came to him, neither his brother-in-law (Saala) visited there nor he came with the tractor, he has further stated that Police never came to his house nor they produced him before the Magistrate and Magistrate did not record his statements rather he has categorically stated that he never visited to the court of Deoli and his statements were not recorded by the Magistrate, he has also denied his relations with accused persons and has further stated that Police did not recover any iron top-land rod or drawn spot map or wearing clothes, denying Exhibit-P19, statements recorded under Section 164 of Cr.PC he has even denied signatures and has also negated his signatures on Exhibit-P20 (recovery of top-land rod), Exhibit-P21 (its spot-map), Exhibit-P22 (recovery of clothes of accused Vijay Singh @ Chhotu) and Exhibit-P23 spot-map (pertaining to recovery). He has also stated that Police did not record his statements. 13. Repeated categorical denials of this witness that his statements were neither recorded nor his signatures were taken on any recovery memo or document and "distinction between" the signatures as mentioned in Exhibit-P19 and testimony recorded on 11.01.2011, makes story of prosecution dented and highly doubtful, even age of Brijendra Singh at the time of both the statements varies despite it, prosecution has failed to explain the same as to the precise identity of Brijendra Singh as well. Naked-eye observation of signatures of Brijendra Singh on Exhibit-19 and court testimony, drastically varies, which can be easily perceived by perusal, this witness has turned hostile but prosecution has not brought forth any evidence in respect of this vital discrepancy, in cross-examination he has denied his Police statements Exhibit-P24 as well and has even negated his relationship with accused Vijay Singh by saying that Vijay Singh does not belong to him nor he is his brother-in-law and has further ratified his say that his statements under the provisions of Section 164 of Cr.PC were never recorded, he has further explained that Police-Cops of Uniyara or of Aligarh came to his residence in his back and had left an information so, his cousin brother Kishore Singh informed that he was to attend Fast Track Court, Tonk on 11.01.2011, for testimony, hence had been there. 14. 14. SHO Dault Ram PW-17, though has stated that upon receiving information in context of tractor, he had visited and seized tractor vide Exhibit-P28 and at the time of seizure, there was no mention of tractor number on it, in cross-examination he has stated relevant which is being quoted:- ^^fctsUæ flag dk edku gksus ckcr eSaus c;ku ugha fy, iwNrkN dh FkhA iwNrkN fduls dh muds vkt ugha crk ldrkA ;g ckr lgh gS fd bl ckcr Án'kZ ih&28 esa dksbZ o.kZu ugha gSA ftl VªsDVj&Vªksyh ckcr esa crk jgk gaw fd og VªsDVj&Vªksyh ogka [kM+h Fkh tgka ls tCr dh Fkh vkSj og xkao esa fctsUæ ds edku ds ckgj [kM+h FkhA eSaus VsªDVj ds pkyd ds ckjs esa iwNrkN fctsUæ flag ls dh Fkh rc mlus ;g crk;k Fkk fd esjk lkyk fot;flag bls pyk dj yk;k Fkk vkSj og [kM+k dj x;k gSA oRrZeku esa ;g VªsDVj&Vªksyh esjs dCts esa gSA ;g ckr lgh gS fd fctsUæ ls iwNrkN dh vkSj mlus esjs dks tks crk;k ml ckcr eSaus vyx ls dksbZ c;ku ys[kc} ugha fd, ijUrq tks QnZ tIrh cukbZ Fkh mlesa bu rF;ksa dk vadu dj fn;k x;k gSA ;g ckr lgh gS fd Án'kZ ih&28 esa of.kZr ugha gS fd fctsUæ us eq>s ;g crk;k gks fd fot;flag bldk [kM+k djds x;k gSA ;g ckr Hkh lgh gS fd Án'kZ ih&28 esa Li"V :i ls ;g ugha fy[kk fd VªsDVj&Vªksyh fctsUæ ds edku ds ikl [kM+k gks cfYd blesa ;g fy[kk gqvk gS fd fctsUæ ds ikl VsªDVj&Vªksyh tIr dh xbZA VsªDVj [kM+k gqvk Fkk blfy, fctsUæ flag VsªDVj dk pkyd ugha FkkA ;g ckr lgh gS fd QnZ pSfdax ds QkeZ esa tks okgu pkyd 'kCn gS og fÁUVsM gS vkSj bl ekeys esa fctsUæ flag okgu pkyd ugha FkkA ;g lgh gS fd okgu pkyd 'kCn Án'kZ ih&28 esa fctsUæ flag dk gksuk xyr gS tcfd VªsDVj fctsUæ flag ds dCts esa FkkA ;g ckr lgh gS fd VsªDVj&Vªksyh esa x;k mlls igys gh ogka [kM+s FksA ;g ckr lgh gS fd QnZ Án'kZ ih&28 esa Lokeh d`f"k xzke cksjkt o VsªDVj dk yky jax gksuk fy[kk gqvk ugha gSA------------ vkt eq>s ;kn ugha gS fd fnukad 16-06-2010 dks lwpuk 2%10 ihŒ,eŒ ij feyh gks tks e.Mkojk xkao esa fookn gksus dh lwpuk feyh gksA eSaus iqfyl dks c;kuksa esa 2%10 ihŒ,eŒ ds LFkku ij 'kk;n 12%10 ihŒ,eŒ fy[kk;k FkkA iqfyl c;ku Án'kZ Mh&3 esa 2%10 ihŒ,eŒ dk le; xyr fy[kk gSA ;g lgh gS Án'kZ ih&28 esa ;g of.kZr ugh gS fd VªsDVj&Vªksyh dks tCr djds dgka ysdj x,A-------** 15. PW-9 Nand Pal, a Police Constable has stated that on 25.06.2010 un-numbered trolley was seized vide Exhibit-P26 from Uniyara Police Station and a Mahendra DI tractor was also seized from there in cross-examination he has further stated that both tractor and trolley were un-numbered, it was bearing no mentioning of name of the complainant nor name of the deceased or his family members or there address was mentioned, the said tractor and trolley were recovered from Police Station Aligarh, no mentioning of chassis number was there on the seized tractor, he has further stated that seizure under Section 207 of Motor Vehicles Act was not made before him and at the time of drawing of Exhibit-P26 no independent witness was called. 16. PW-4 Jagdish Swami has stated that when he detected the tractor and trolley, then he had found name of Dadu Ram, Satya Ram with registration number of the tractor on its bumper, which has categorically been denied by the above witness Nand Pal PW-9, as such a doubt has arisen on the identity and description of the alleged tractor and trolley, whereas Jagdish Swami has also stated that the bumper was painted freshly, so question of painting the bumper subsequently for allegedly concealing the name and number of the vehicle, does also not arise. He has also stated that none had witnessed Vishnu taking tractor and trolley from his residence, this witness has confirmed that his village was situated 8 km away from Mehla village and Mehla is situated on national highway no. 8 on Jaipur-Ajmer Road, which is six-lane road, there are several hotels, shops and residences with dense population and thick movement to the both sides of Mehla village. 17. In respect of some discord, he has stated that Kishan Lal and Bhagwan Das are his brothers and a dispute had taken place eight to nine months back with accused Bhairu Singh and his family members in respect of opening a window and jangla (abutting projection), this witness has accepted that on way from Mehla to Jaipur, toll-tax exists and CCTV footage is clocked, when a vehicle crosses the toll, he has expressed his ignorance about the presence of Bhairu in the village from 13th to 16th. 18. 18. Exhibit-P50, subsequent FIR has got a reference that Sanwar Das, nephew of complainant Dayal Das Swami, had informed Dayal Das that in the evening of date 13th, he had seen Vijay Singh, Bhairu Singh and Vishnu Das Swami talking on the road, when he had gone there to buy some commodity from Mehla bus stand and had witnessed Vishnu and Vijay Singh leaving by tractor, Bhairu Singh by black coloured Splendor motorcycle towards Jaipur. 19. 19. If, we scan cross-examination of this witness PW-18, then we find that several improbable have appeared in his testimony, which falsifies testimony of this witness that he ever seen Vijay Singh, Bhairu Singh and Vishnu Das Swami in 13th evening at Mehla bus stand because in his cross-examination he has stated that he had gone by jeep to Mehla village and has further stated several improbable, such as:- ^^og thi fdldh Fkh o mlds uEcj D;k Fks] ml ij D;k fy[kk gqvk Fkk eSa ugha crk ldrkA thi dk jax D;k Fkk eSa ugha crk ldrkA egyk xkao jk"Vªh; jktekxZ uaŒ 8 fnYyh ls vtesj ij fLFkr gSA ml pkSjkgs ij lSdM+kas nqdkusa] edkukr cus gq, gSA ftl fnu 'kke dks 6 cts eSa vius vki dks egyk xkao esa gksuk crk jgk gwa ml le; ml egyk pkSjkgs ij cgqr lkjs okgu o iSny vkneh vk tk jgs Fks] lc nqdkusa [kqyh gqbZ Fkh] mu lc nqdkuksa ij xzkgd FksA og lM+d tgka eSa [kM+k Fkk og 6 ysu dh cuh gqbZ gSA ftldh djhc 125&150 ehVj dh pkSM+kbZ gSA ftl nqdkunkj ls eSaus lkeku fy;k mldk uke eSa ugha tkurk og egyk xkao dk FkkA mldh nqdku ij D;k fy[kk gqvk Fkk ;g Hkh eq>s irk ughaA eSaus ml nqdku ls lkeku [kjhnus dk dksbZ fcy ugha fy;kA ftl nqdku ij ls eSa lkeku jgk Fkk mlds vkl&ikl vkj&ikj iwjh yEckbZ esa thisa] eksVj lkbZdysa vkfn [kM+h Fkha] muds uEcj] jax jksxu ugha crk ldrk og fdldh Fkh ;g Hkh ugha crk ldrkA eSa ;g Hkh ugha crk ldrk fd ml lM+d ds nwljs Nksj ft/kj eSaus fo".kq dks [kM+s gksuk crk;k gS ml rjQ fdrus okgu] dkSu&dkSu ls uEcj ds] jax ds ;k fdrus Ádkj ds [kMs+ Fks eSaus ugha crk ldrkA ml le; jk"Vªh; jktekxZ uaŒ 8 ij Vªdsa] thisa] clsa o lHkh Ádkj ds okgu vk jgs FksA ml le; fo".kq ls esjh fdlh Ádkj dh dksbZ ckrphr ugha gqbZ FkhA ml le; egyk cl LVS.M ls lkeku [kjhnus ds ckn eSa esjs ?kj ugha vk;k cfYd nwnw ds ikl n;kyiqj xkao pyk x;k FkkA iqfyl okyksa us esjs ls iwNrkN dh Fkh esjs c;ku fy, FksA iqfyl c;ku Án'kZ Mh&4 dk ,s ls ch Hkkx ^^fQj eSa esjs ?kj vk x;k** lquk ,slk c;ku eSaus iqfyl dks ugha fn;k xyr fy[kk gSA n;kyiqj xkao esa ftl O;fDr ds ;gka eSa x;k Fkk mldk uke eSa ugha tkurkA mldk ?kj xkao ds chp esa gS tks iwoZ esa ns[krk gS mlds vxy&cxy esa fdlds edku gSa eSa ugha tkurkA esjh ml O;fDr ls dksbZ tkudkjh ugha gS ftlds ?kj eSa x;k FkkA eSa ml vutku O;fDr ds ?kj nks fnu jgk Fkk esjs lkFk esa nks lk/kq vkSj FksA eSa 15 rkjh[k dks nks&<kbZ cts vdsyk gh xkao cksjkt vk;k Fkk tks egyk gksdj gh vk;k FkkA eSa tc cksjkt ds cl LVs.M ls mrj dj esjs dq,a okys ?kj ij vk jgk Fkk rc ;s nksuksa xkao dh rjQ vkrs gq, eq>s feys FksA ;s nksuksa O;fDr 15 rkjh[k dks eq>s feyus ds ckn esjs lkeus ;s nksuksa ;k eSa xzke cksjkt esa fot;flag ;k HkS#flag ds ?kj ugha x;s vkSj u gh HkS#flag o fot; flag vFkok muds ?kj okyksa ls iwNrkN dhA ;g xyr gS fd eSa 15 rkjh[k dks fot; flag ds ?kj x;k gksA ;g xyr gS fd 15 rkjh[k dks fot;flag Lo;a ds ?kj eq>s feyk gksA 13 rkjh[k dh 'kke dks 6 cts esjs egyk cl LVs.M ls n;kyiqjk tkus vkSj 15 rkjh[k dks okfil ?kj ij vkus rd esjs ekek n;kynkl] txnh'knkl esjs ekSlh ds csVs HkkbZ us] ekSlh 'kkfUr nsoh us] ;k esjs firkth ;k ?kj okyksa us fdlh us Hkh eq>s eksckby Qksu ij ;g ugha crk;k vkSj u gh esjs ls iwNk fd fo".kq 13 rkjh[k ls ?kj ij ugha gS cfYd eq>s fdlh us Hkh bl ckcr dskbZ Qksu ugha fd;kA eSaus Lo;a us Hkh 13 rkjh[k dh 'kke ls 15 rkjh[k dks okfil xkao vkus rd mDr yksxksa esa ls fdlh ls Hkh fo".kq dks egyk cl LVs.M ij eqyfteku ds lkFk ns[kus ckcr u rks dksbZ Qksu fd;k vkSj u crk;kA 15 rkjh[k dks <kbZ cts n;kynkl o txnh'knkl ls ckr gksus ds ckn 16 rkjh[k dh lqcg rd eSa rks fo".kqnkl dks <wa<us dgha ugha x;k cfYd ?kj ij gh jgkA** 20. This witness has also stated the distance between his village to Mandavra and has said that Mandavra village is situated 250-300 km away from their village and has said that he had stayed there for fifteen to twenty minutes and has also expressed his ignorance about the number of houses situated around there, vital contradictions and omissions have also appeared in his police statements Exhibit-D4, he has also stated that he did not convey police regarding his going to Mehla bus stand at 5:00 p.m. and has asserted that such a statement is wrong and has specifically stated as under:- ^^eSaus 'kke dks 6 cts esjk egyk cl LVs.M ij lkeku [kjhnus tkus okyk ckr iqfyl dks crk nh Fkh iqfyl c;ku Án'kZ Mh&4 ds lh ls Mh Hkkx esa 'kke ikap cts xyr fy[k j[kk gS eSaus ugha fy[kok;kA eSaus ml fnu fot;flag] HkS#flag o fo".kq lM+d ds nwljs fdukjs ckrphr djus okyh ckr iqfyl dks crk nh Fkh Án'kZ ih&4 esa ;g D;ksa fy[kh gqbZ ugha gS eq>s irk ugha gSA eSaus ml le; HkS#flag dkys jax dh Lisy.Mj eksVj lkbZfdy ysdj jokuk gksus okyh ckr Hkh iqfyl dks crk nh Fkh c;ku Án'kZ Mh&4 esa bl Ádkj D;ksa fy[kk gqvk ugha gS eSa ugha crk ldrkA eSausa iqfyl }kjk iwNrkN djrs le; e.Mkojk xkao esa fczts'k flag }kjk gesa ;g dguk fd] mls fot;flag ,d&nks fnu esa okfil vkus dh dg dj tkus vkSj VªsDVj ls ;gha ij [ksrh&ckM+h dk dke djus ds fy, dgus okyh ckr iqfyl dks crk nh Fkh c;ku Án'kZ Mh&4 esa D;ksa fy[kh gqbZ ugha gS ;g eq>s irk ugha gSA** 21. This witness has also stated that he his unaware about Bhairu Singh that he was on NREGA duty on 14.06.2010 at 6:00 a.m. though he has accepted that there is a "toll" between Mehla and Jaipur but not aware whether toll-tax is levied or not, which too is indicating that this witness has not narrated truth and tried to keep vitals concealed, he has also stated that he is not aware that Bhairu Singh would have remained present at his residence from 13.06.2010 to 14.06.2010, which too is suggestive that factum of witnessing him at Mehla bus stand becomes interfered. 22. 22. PW-24 Dayaram Swami has also narrated several improbable contradictory utterances, which makes testimony of this witness highly doubtful in the examination-in-chief, this witness has said that Vishnu is related to him and he had met him at Chandralok Hotel, many people were sitting in the hotel, two persons were sitting besides Vishnu, who were not known to him, Vishnu introduced them as Vijay Singh and Bhairu Choudhary, in cross-examination he has stated several improbable, which makes testimony of this witness highly doubtful since he has stated that:- ^^13-06-2010 dks jkr ds 12%00&1%00 cts tc eSa pUæyksd gksVy ij vkdj :dk rc ml gksVy ds ckgj fdrus LdwVj] cl] thi] Vªd] eksVjlkbZfdy] dkj ;k vU; okgu [kM+s Fks eSa ugha crk ldrk D;ksafd eSaus fxus ughaA ml le; ml gksVy ij 8&10 Vsfcyksa ij [kkuk [kkus okys] pk; ihus okys vkfn yksx Fks tks vUnktu 100&50 ds yxHkx gksaxsA gksVy dk ekfyd ml le; dkmUVj ij cSBk gqvk FkkA gksVy ds ogka lkbZM esa ,d iku dh dSfcu gS ftl ij dkSu cSBk Fkk irk ughaA gksVy ij dke djus okys 8&10 yksx Hkh ogka ekStwn Fks eSaus muesa ls fdlh dk uke ugha tkurkA eSaus gksVy ij ml fnu pk; ihus dk dksbZ fcy ugha fy;k vt[kqn dgk fd fcy nsrs gh ugha gSA fo".kq ds ikl cSBs vknfe;ksa esa ,d ds Vh&'kVZ isUV] vkSj ,d ds 'kVZ o isUV Fkh jax Vh 'kVZ dks rks ihyk dyj Fkk] isUV dkSuls jax dh Fkh eq>s irk ugha eSaus rks cSBs gq, ns[ks FksA------------ 23. And has furhter stated:- eSaus fuokbZ esa lar f'kon;ky nkl dk Qksu vkus ds ckn Hkh fo".kq ds fuokbZ ds fj'rsnkj eksgunkl o cSBd esa thi esa gekjs lkFk tk jgs 10&12 O;fDr;ksa esa ls fdlh dks Hkh 13-06-2010 dh jkr dks pUæyksd gksVy esa ckjg&,d cts fo".kq o eqyfteku dks pUæyksd gksVy ij lkFk&lkFk ns[kus dh ckr ugha crkbZA----------------** 24. It has also appeared in his cross examination:- ^^eSaus rh;s dh cSBd esa Åunfj;ka xkao tkdj ogka eqyfteku }kjk fo".kq Lokeh dh gR;k djus dk irk yxus rFkk okfil fuokbZ vkus ij jkstkuk v[kckj esa bl gR;kdk.M ckcr [kcjsa Ádkf'kr gksus vkSj esjs }kjk i<+ ysus ds ckotwn Hkh eSaus 13 rkjh[k dks pUæyksd gksVy esa e`rd o eqyfteku dks lkFk&lkFk ns[kus ckr fuokbZ iqfyl Fkkus fMIVh] U;k;ky; ;k mfu;kjk Fkkus ;k Vksad esa iqfyl v/kh{kd] ftyk dysDVj ;k vU; fdlh Á'kklfud vFkok iqfyl vf/kdkjh dks bl ckcr u rks dksbZ lwpuk nh uk gh dksbZ c;ku fn,A esjs lkFk fuokbZ ds tks O;fDr e`rd fo".kq ds fj'rsnkj Fks mUgksaus Hkh 13 twu 2010 ckcr esjs }kjk nh xbZ tkudkjh ds lEcU/k esa dgha ij Hkh iqfyl ;k Á'kklfud vf/kdkjh dks dksbZ lwpuk ;k tkudkjh ugha nhA** 25. He ha also stated:- ^^;g ckr lgh gS fd bl Ádj.k dh rQrh'k ds nkSjku ,d ckj mfu;kjk ds Fkkusnkj th cksjkt ls rQrh'k dj nksuksa eqyfteku lfgr ÁkbZosV cksysjks thi esa cSBdj okfil mfu;kjk Fkkus vk jgs Fks rc esjh nqdku ij eqyfteku lfgr fuokbZ esa :d dj x, FksA tgka pk; ihdj x, Fks vkSj esjs ls ckrphr djds x, FksA ;g ckr lgh gS fd Fkkusnkj th eqyfteku lfgr fuokbZ esa esjh nqdku ij e`rd fo".kq dh rh;s dh cSBd ds vUnktu pkj&ikap fnu ckn vkdj x, FksA ;g ckr lgh gS fd bl Ádj.k esa Fkkusnkj th us lHkh xokgksa ds c;ku fy[kus o rQrh' djus ds ckn djhcu ,d ekg ckn esjs ls ;g dgk Fkk fd vkids Hkh c;ku fy[k ysrk gawA ;g lgh gS fd rc fQj fnukad 12-7-2010 dks iqfyl okyksa us esjs 161 ds c;ku fy[ks FksA ;g ckr lgh gS fd iqfyl okyksa us 12-07-2010 dks esjs 161 lhŒvkjŒihŒlhŒ ds c;ku fy[kus ls igys ;g dgk Fkk fd igys rks ;gh dksf'k'k djrs gSa fd t;iqj dh rjQ e`rd ds xkao ds gh dksbZ xokg fey tk, rks mudss c;ku fy[k ysa fQj oks ugha feys rc esjs c;ku iqfyl okyksa us fy[ks FksA** 26. Several contradictions have also appeared in his Police statements Exhibit-D5 vis-a-vis his court testimony, he has admitted that test identification parade of the accused persons was also not done, important omissions and contradictions have appeared in his Police statements Exhibit-D5. 27. Several contradictions have also appeared in his Police statements Exhibit-D5 vis-a-vis his court testimony, he has admitted that test identification parade of the accused persons was also not done, important omissions and contradictions have appeared in his Police statements Exhibit-D5. 27. Police statements Exhibit-D5 of this witness have been recorded on 12.07.2010 which is enough to indicate that statements of this witness have not been recorded expeditiously rather Exhibit-D5 has been recorded about one month after the incident, non-importance of testimony of this witness could very well be scanned by his assertion that he was told by the Investigating Agency that preferably evidence of Jaipur side witnesses was to be taken and in the event of non-availability of Jaipur side witness, his testimony was to be recorded, as such there appears no worth in the testimony of this witness. 28. PW-32 Shanti Devi has also deposed theory of last seen together and has stated that about twelve months back it was evening time, Vijay Singh came, Vishnu was taking tea, they called him. Vishnu went outside, they had some talk then Vishnu came and asked for key of tractor to lay fertilizer, then Vishnu, Vijay Singh and Bhairu Singh all went away on motorcycle, in cross-examination she has stated that Vishnu never went to transport and lay fertilizer anywhere earlier, Vishnu used to supply water by tanker, Vishnu did not inform how much fertilizer was to be transported at which rate and to which place, she has also stated that:- ^^eSaus Lo;a us Hkh fot;flag o HkS:flag dks vkt igyh ckj U;k;ky; esa gh ns[kk gSA** 29. She has further stated that initially for two days, none amongst us went in search of Vishnu, third day her brother Dayal Das and son Jagdish went to search Vishnu for the first time, she has also stated:- ^^bu nks rhu fnu esa u rks esjs yM+ds ;k HkkbZ us vFkok u gh Lo;a fo".kq us vkil esa ,d nwljs ls dksbZ ckrphp dh gSA esjs yM+ds txnh'k o HkkbZ n;kynkl ds vykok ifjokj ds vU; fdlh Hkh O;fDr us fo".kq dh dgha ij dksbZ ryk'k ugha dhA** 30. She has further stated:- ^^fot;flag ds ?kj esa tkdj vkbZ FkhA ogka ij fot;flag feyk FkkA mlus fo".kq ds ckjs esa fdlh Hkh Ádkj dh tkudkjh gksus ls euk fd;k FkkA eSaus eq[; c;kuksa esa fot;flag ds firk ds ?kj ij <wa<us tkus ij mlds firk dk feyus vkSj muds }kjk fo".kq ds ckjs esa dqN ugha crkus okyk c;ku xyr fn;k gSA iqfyl okyksa us bl ckcr esjs ls iwNrkN dh Fkh eSaus iqfyl dks c;ku nsrs le; esjk Lo;a dk fot;flag ds ?kj iwNrkN djus tkuk ogka Lo;a fot;flag dk feyuk vkSj mlds }kjk fo".kq ckcr euk djus okyh ckr iqfyl dks crk nh Fkh ;s lc ckrsa c;ku Án'kZ Mh&7 esa D;ksa fy[kh gqbZ ugha gS eq>s irk ugha gSA ;g dguk xyr gS fd eSa dHkh Hkh fot;flag ds ?kj ij ugha xbZ gks vkSj og eq>s ugha feyk gksA esjs yM+ds o HkkbZ <k.kh esa <aw<us x, Fks vkSj eSa cktkj xbZ rc fot;flag ds ?kj ij iwNus xbZ FkhA fo".kq ds ckcr iwNrkN djus esjk yM+dk txnh'k o HkkbZ n;kynkl ;k vU; ?kj okys fot;flag ds ?kj ekywe djus ugha x, FksA** 31. Important omissions and contradictions have also appeared in her Police statements Exhibit-D7, she has also said that she does not possess papers relating to the trolley nor she know number of the tractor, she has further stated that she had gone to Police Station Jobner to lodge complaint, when Vishnu did not return after taking tea for three to four days ahead. 32. Appreciation of the evidence of this witness depicts several omissions and contradictions, even vital deviations have appeared in her testimony vis-a-vis her Police statements, which makes the story of the prosecution dented and doubtful. 33. PW-2 Jagdish S/o Narayan has stated that he does not know about the contents of Exhibits-P2 and P4. 34. PW-3 Deshraj Police Constable a recovery witness to Exhibit-P7, 35 dagger and its spot-map and wearing clothes of deceased vide Exhibit-P9, in cross-examination has stated that the accused persons were arrested from Police Station, when they had come there, it is not known to him as to who brought them. He has also said that the "spot of recovery is national highway and is an open spot" and passengers going towards Rasulpura stay there. He has also said that the "spot of recovery is national highway and is an open spot" and passengers going towards Rasulpura stay there. He has further stated that no independent witness passed from there, which is also not feasible, in cross-examination he has further stated that clothes of unknown dead person were seized on 15th and were kept open, those were not sealed and an important say has also been narrated by this witness that "seized apparels and knife were not sealed before him" which makes the recovery a futile exercise. 35. PW-4 Jagdish Swami has stated that deceased Vishnu was his mama's son, he has deposed that no ownership papers of tractor were delivered to police by him, since those were not asked for, he has also stated that "Vishnu was not having a driving license to ply tractor" nor he lodged any report with police in respect of missing of Vishnu and has confirmed that nobody had seen Vishnu taking tractor-trolley from his residence except his mother, contrary to the statements of Shanti Devi, he has stated that they started searching Vishnu from 15th. This witness has also asserted a previous dispute with accused Bhairu in respect of opening of a window and projections towards their house, as such this witness is a hearsay and is not a witness to last seen together and several contradictions have appeared in his testimony, which feebles the story of the prosecution, rather he has expressed his ignorance on fact of presence of Bhairu in the village itself between 13th to 16th of the month. 36. PW-5 Madan Lal, a witness to the recovery of apparels of accused Bhairu and motorcycle, has stated that there are several houses and shops around the house of Bhairu and many people reside around the house of Bhairu and passerby were using the road at the time of recovery of the motorcycle and several had come out of their houses there, he is not aware whether Investigating Officer had put a note to this effect that independent witnesses were not ready to sign and it is correct that no notice was given to independent witnesses, he has also admitted that Exhibits-P17 and P18 have got no signatures of independent witnesses, he has expressed his ignorance about colour of the clothes, which makes everything doubtful. 37. 37. PW-6 Brijendra Singh has turned hostile and has denied his police statements for recovery of any seized item. 38. PW-7 Nathuram Meena has turned "hostile" and has stated that he had gone to Police Station with his friend but policemen got his signatures forcibly done on certain papers, which rather depicts that the Investigating Agency has remained tainted and has not carried out the investigation independently. 39. PW-8 Hari Das has stated that when his Police statements were taken, is not known to him, he did not inform laying of fertilizer alongwith two boys, further he has admitted omission of certain answers, which have not appeared in his Police statement Exhibit-D2 which indicates that this witness is also not of much worth. 40. PW-9 Nand Lal Police-Cop is categorical by saying that seized tractor was not having any chassis number, name of the owner was not mentioned on the tractor or on its trolley nor their address and the tractor was "unnumbered" which was seized vide Exhibit-P26 and seizure was not made before two independent witnesses. 41. PW-10 Mohan Lal has expressed his ignorance upon the contents of Exhibit-P27. 42. PW-11 Gopal Lal Sharma has stated that he did not witness Bhairu Singh and Vijay Singh taking away Vishnu or Jagdish by tractor, nor even witnessed Vijay Singh and Bhairu Singh taking Vishnu Das together. 43. PW-12 Hemraj Singh has stated that he does not know Brijendra Singh and has said that he had heard that Vijay Singh and Bhairu had murdered but he did not witness anything, in cross-examination he has said that he did not enter into Police Station nor any talk had taken place with the Police there, nothing was scribed before him, he has also uttered that he cannot say to whom the encircled area had belonged, from where the tractor was recovered, no talk was held with Brijendra. 44. PW-13 Kamlesh has turned hostile and has denied recovery of any knife before him, in cross-examination he has stated that his signatures were taken on Exhibits-P7 and P8 at a shop in Nayagaon a "knife" was brought by policemen from the jeep and it was shown by Thanedar Saheb, only policemen were there in the jeep, none else was there in the jeep, Thanedar Saheb had taken the knife back again after warping it. 45. 45. PW-14 Jagdish Prasad, witness of Exhibits-P22 and P23, has stated that the clothes were washed and he cannot say to whom those were connected. Thanedar Saheb did not call any independent witness from vicinity, only one lady was there in that house, none other was there in the premises, Thanedar Saheb did not ask his name, village was of 300 to 400 houses, none of the villagers was called by Thanedar Saheb, he has also stated that the pant and shirt, which were recovered, are not before him at the time of testimony. 46. In view of the aforesaid, testimony of this witness he is also of no worth. 47. PW-15 Ram Kumar Jat, a witness of motorcycle recovery, has stated that he does not know contents of Exhibits-P15 and 16, police had taken his signatures by saying that some motorcycle is recovered, contrary to the documentary evidence, he has stated that the questioned motorcycle was not recovered from Boraj village and has further said that the said motorcycle was not recovered from the accused present in the court, as such the testimony of this witness is also of no help to the prosecution. 48. PW-16 Gajanand Das has also stated in cross-examination that he did not inform police, the information was given by Dayaram prior to recording of statements. 49. PW-17, Daulat Ram, witness of Exhibit-P28 seizure of tractor, has stated that at the time of seizure of the tractor, no number was there, this SHO in his cross-examination has asserted that he cannot inform the names of those persons with whom he had enquired about that house that it was Brijendra Singh's residence, he has further stated that the seized tractor-trolley was parked outside the house of Brijendra, whatever interrogation had taken place with Brijendra has not been reduced into writing separately nor it is mentioned in Exhibit-P28, vital contradictions have appeared in the testimony of this witness as well. 50. 50. PW-19 Teju Mal Cop has narrated another contrary statement regarding alleged plying of tractor at the time of seizure under Section 207 of the Motor Vehicles Act, by saying that the tractor was driven by the "Driver of Police Station" this Constable witness has also asserted that no spot-map was drawn from where the tractor was seized, nor any statement of any person was taken by Thanedar Saheb in respect of the tractor and trolley, this witness has also stated that the tractor-trolley was standing on the public way, as such the theory of recovery of the tractor becomes doubtful. 51. PW-23 Shri Ram is also a Police Constable, before whom clothes of accused Bhairu have been recovered and no independent witness has taken for the recovery nor attendance of any independent witness has been ensured even in cross-examination he has said that around the house of Bhairu, several houses and shops are there and it was located in the main public way and all the family members of Bhairu were there and several persons were present in the houses and shops all around, to whom Thanedar Saheb had called, he is ignorant, nor any noting was made that independent witness did not prepare to be a witness, which rather indicates that police has acted in a partisan way by not informing independent witnesses to prove vitals of recovery. 52. PW-26 Rajesh Choudhary has turned hostile and he has specifically said that his motorcycle was not taken by Bhairu on 13.06.2010 and he has expressed his ignorance on Exhibit-P49 police statements, in cross-examination he has said that the motorcycle has remained in his possession throughout till the time of its seizure by the police. 53. PW-27 Dayal Das, father of deceased Vishnu, has stated that Sanwar Das had informed him having witnessing all three persons on 13th at about 4:00 to 5:00 p.m. which is also contrary to the statements of PW-18 Sanwar Das, since he has stated that at 6:00 in the evening, while he was at Mehla Bus Stand, then he had witnessed all the three persons namely Vijay Singh, Bhairu and Vishnu "he has also stated that tractor and trolley were standing outside of the house" he has ratified having presented Exhibit-P50 report to Uniyara Police Station, he has also stated that prior to the incident, Vishnu had never gone outside with the tractor. Contradictions have also appeared in his testimony regarding search of missing boy, Vishnu, he has also stated that:- ^^eSaus fjiksVZ Án'kZ ih&50 iqfyl dks nsrs le; 13 rkjh[k dks lar lkaojnkl }kjk fo".kq dks jksdus dk Á;kl djuk] e.Mkojk xkao esa >xM+k gksdj gkFkkikbZ dh ukScr vkus] ogka ch;j dh cksryksa ls gesa ekjus ds fy, rS;kj gks tkus] esjs eksckby Qksu uEcj ckcr iqfyl dks crk fn;k Fkk lc ckrsa Án'kZ ih&50 esa fy[kh gqbZ D;ksa ugha gS eq>s irk ugha gSA ;g dguk xyr gS fd eSa tkucq>dj eqyfteku ds f[kykQ >wBs c;ku ns jgk gaA VªsDVj&Vªksyh ds dkxt eSaus ns[ks Fks rFkk iqfyl dks ns fn, FksA oks dkxt U;k;ky; dh i=koyh esa gS ;k vFkok ugha eq>s irk ugha gSA** 54. He has expressed his ignorance about the presence of Bhairu on 14.06.2010 in the village Boraj on NREGA duty and has also expressed his ignorance at the presence of Bhairu in the village itself in the evening on 13.06.2010, which weakens story of the prosecution. 55. PW-28 Mukesh Arya, Judicial Magistrate, has stated that he had recorded statements of Brijendra under Section 164 of Cr.PC who was produced by SHO, Uniyara, but no explanation has come-forth on the factum of distinction on his signatures, which have appeared upon his testimony being PW-6 and statements recorded under Section 164 of Cr.PC Exhibit-P19, which gives doubt on the identity of the individuals being same. 56. PW-29 Shankar Puri Goswami has stated that from 15.06.2010 to 25.06.2010 he was Malkhana In-charge at Uniyara Police Station since Malkhana In-charge was on leave, so the charge was with him, he has stated that at the time of the seizure, what was the status of the samples is not known to him, the seal embossed have not been deposited with Malkhana. 57. PW-30 Dr. 57. PW-30 Dr. Pradeep Solidya, who conducted autopsy, has stated that he had conducted autopsy vide Exhibit-P54 on 17.6.2010 and has stated that death was caused due to head injury and according to post-mortem, o death had taken place sixty to seventy-two hours before the post-mortem, he has also stated that in event, if somebody is going on foot and meets with an accident then the kind of injuries found, could result, if the victim is dashed against a stone, he also stated that the death of Vishnu had taken place on 14.06.2010 between 10:45 a.m. to 10:45 p.m. How many injuries were there on the head, have not been described and by what weapon, since skin had putrefied, an important say has also been said by this witness that no signs of "dragging" the body were there. Appraisal of this aspect with spot-map makes the story of the prosecution bit doubtful since footwears (Chappal) of the deceased have been found at o different places and place of detection of the dead body is near the main highway adjacent to a culvert near a causeway, this also weakens the story of prosecution, since "dragging" had to be there, when both the chappals (footwears) have been found separately at two distinct spot of nearby place. 58. Testimony of PW-31 Radheshyam, Constable, relates to Exhibits-P55 and P56 but said is also tainted because he has specifically admitted that none of the independent witness from the vicinity was called nor their signatures were obtained, which discloses that the Investigating Agency has willfully acted in a partisan way and no effort has been made to take independent witnesses. 59. PW-33 Rewar Mal, SHO, has ratified different facets of the investigation undertaken by him, in cross-examination he has accepted that place of recovery of Exhibit-P8 is accessible to everybody and it relates to recovery of knife, he has also stated that there were no signs of foot-print, so were not lifted, he has accepted that there are several houses and inhabitation around the house of Bhairu, he has admitted that motorcycle stands registered in the name of Vijay Shankar Meena but notice to its owner under Section 133 of the Motor Vehicles Act was not given, he has admittedly stated that he did not call relatives of the deceased for witnessing. Exhibits-P15, P16 and Exhibits-P17, P18 have got no testimony of independent witnesses and both the witnesses belong to Police, this witness has expressed his ignorance about the make of the almirah from where apparels of Bhairu were taken that whether it was of "timber or iron" he has also conceded that accused Bhairu was present on his NREGA duty on 14.06.2010 at 7:00 a.m. which doubts his presence in committing the alleged offence and makes it doubtful. 60. Accused-appellants have also produced eight defence witnesses, DW-1 Kapoor Chand, DW-2 Prithvi Singh, DW-3 Babu Lal, DW-4 Ishwar Lal, DW-5 Akhey Ram, DW-6 Shaitan, DW-7 Gulab Chand and DW-8 Bhairu Singh. 61. DW-7 Gulab Chand mate of NREGA, has stated that on 14.06.2010 Bhairu had reported at 5:45 a.m. for NREGA duty, copy of muster-roll Exhibit-D9A has also been produced and ratified by this witness. Exhibit-D9A supports presence of Bhairu on 14.06.2010 at NREGA job and evidence of this witness has not been impeached by the prosecution. 62. Scrutiny, appraisal and scanning of afore-discussed evidence manifestly indicate that prosecution has failed to adduce clinching and positive evidence fastening the culpability of the appellant-accused persons. Exhibit-D9A supports presence of Bhairu on 14.06.2010 at NREGA job and evidence of this witness has not been impeached by the prosecution. 62. Scrutiny, appraisal and scanning of afore-discussed evidence manifestly indicate that prosecution has failed to adduce clinching and positive evidence fastening the culpability of the appellant-accused persons. Important contradictions and testimony denting upon the prosecution has emerged, recoveries have also not been established beyond doubt, alleged motive is also not obvious, since suspected motive of looting of tractor and leaving it at a close relatives premises, does not infuse reliability, moreover the said tractor has also not been recovered from the custody and premises of Brijendra Singh, a serious doubt has arisen on the "identity of Brijendra Singh" whose testimony has been recorded vide Exhibit-P19 under Section 164 of Cr.PC vis-a-vis testimony of PW-6 Brijendra Singh, age of both these witnesses varies, their signatures are also dissimilar, while deposed in the court PW-6 Brijendra Singh has turned hostile and has even stated that he did not attend the court of Judicial Magistrate for getting his statements recorded rather he has shattered the case of the prosecution and has even created a serious doubt on the identity of both these individuals, nevertheless prosecution has failed to dispel this doubt and nothing has been produced by the prosecution to establish that both Brijendra Singh, whose statements have been recorded under Section 164 of Cr.PC and one who deposed before the court, are not distinct individuals but is/are one individual, recovery of the alleged tractor has also been made from Police Station Aligarh and nothing of this kind has admittedly taken note of in writing by the Investigating Agency that the said tractor was recovered from the possession of Brijendra Singh, almost all the testimonies depict that said tractor was recovered from abandoned public way, even one of the Cop of the prosecution has stated that it was driven by a Police Cop to Police Station, prosecution has failed to prove recovery through independent witnesses and it is an admitted position that almost all the witnesses of the prosecution pertaining to seizure and recovery are Police Constables and no effort has ever been made to take independent witnesses, important witnesses of the prosecution pertaining to recovery, have also turned hostile and the way in which they have given testimony does not infuse credence and reliance in respect of alleged recoveries, testimony pertaining to the theory of last seen together is also not creditworthy since vital contradictions and omissions have appeared in respect of theory of last seen together, as deliberated earlier evidence to this effect has also emerged that civil-discord was lingering and had occurred between accused Bhairu and family of complainant. 63. In Varun Choudhary vs. State of Rajasthan, 2011 Cri. L.J. 675, it has been held that where chain of events is doubtful, no conviction can be based and it is settled legal proposition that in a case of "circumstantial evidence" there must be complete chain of events which would lead to a conclusion that the accused was the only person, who could have committed that offence and none else. In Musheer Khan alias Badsah Khan vs. State of M.P. 2010 (2) SCC 748 it has been observed that in cases of circumstantial evidence complete chain of circumstances must be looked and snapped or scattered links are not enough to convict and Sanatan Naskar vs. State of West Bengal, 2010 (3) RCR (Cr.) 629, it has been held that court below took a wrong view of the matter while convicting the accused in a case, where chain of events of the case was not proved beyond reasonable doubt. 64. In Jiten Besra vs. State of West Bengal, 2010 (2) SCC (Cr.) 438 and in Kamla Devi vs. State of Delhi, 2012 (2) JCC 1457 (Delhi), the Supreme Court has observed that once it is found that circumstance could not point out towards guilt of accused, without any other inference being probable, the accused must get benefit of doubt. 65. In a recent law as laid down in H.D. Sikand (D) through LRs. vs. Central Bureau of Investigation, 2017 Cr. L.R. (SC) 58, the Supreme Court has held that if the offence is not established and the prosecution fails to prove the offence beyond reasonable doubt, then order of acquittal is justified. 66. In Baijnath and Others vs. State of Madhya Pradesh, 2017 (1) SCC 101 , Apex Court has held that in the cases of deficiency of proof, benefit would be available to the person charged and in Narendra Singh and Another vs. State of M.P. 2014 (10) SCC 699, Apex Court has held that in event of there being two possible views, one supporting the accused should be upheld and has recognized presumption of innocence as a human right. 67. Apex Court in C. Chenga Reddy vs. State of A.P. 1996 (10) SCC 193 , wherein it has been observed thus: "21. 67. Apex Court in C. Chenga Reddy vs. State of A.P. 1996 (10) SCC 193 , wherein it has been observed thus: "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." 68. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (10) SCC 681 , the Apex Court has held as under:- "In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence." 69. Apex Court while deciding Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , has laid down the conditions of circumstantial evidence on which conviction could be made in view of Section 3 of Evidence Act, which postulates as under. 70. The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:- (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (2) 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. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) 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. 71. Thus, prosecution has failed to establish its case by clinching positive evidence and material contradictions have emerged in the testimony of the prosecution and circumstances are not explained, linking with the theory of last seen together. 72. Considering the facts and circumstances of the case and after perusal and scrutiny of the evidence, we are of the view that both the accused-appellants are entitled to get benefit of doubt. 73. In the result, we set aside the judgment passed by Additional Sessions Judge (Fast Track), Tonk and acquit both the appellants of the charges under Sections 364, 394, 302 and 201 of IPC. Appellants are directed to be set at liberty forthwith, if their custody is not required in any other case, however, learned trial Court is directed to summon the accused persons for compliance of Section 437-A of Cr.PC forthwith. 74. Both the appeals are accordingly allowed.