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2018 DIGILAW 68 (MEG)

Mehboob Ansari v. State of Meghalaya

2018-10-08

MOHAMMAD YAQOOB MIR, S.R.SEN

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Vide judgment impugned dated 07.04.2016, passed in Sessions Case No.16 of 2012, appellant has been convicted for commission of the offences punishable under Sections 364A and 302 IPC. 2. Vide order impugned dated 12.04.2016, the appellant has been sentenced to life imprisonment and to pay a fine of Rs.25,000/- and in default of fine to undergo an additional one year imprisonment under Section 364A IPC and has also been sentenced to life imprisonment and to pay a fine of Rs.25,000/- and in default of fine to undergo an additional one year imprisonment for the offence under Section 302 IPC. All the sentences excluding sentences for default of fine have been directed to run concurrently. 3. Aggrieved whereof, appellant has assailed both the judgment and order impugned by medium of this appeal. 4. Learned counsel for the appellant empathically projected that the appellant is an innocent person. Learned Trial Court has not appreciated the evidence in its right perspective, instead has been swayed by concocted story. The whole case hinges on circumstantial evidence. The principles enunciated to be satisfied for recording conviction on circumstantial evidence have been totally overlooked. The motive of crime is not forthcoming. The important listed witness No.2 Md. Thankir Alam Ansari has not been produced, withholding of such a witness give rise to adverse inferences. 5. Learned counsel for the appellant has taken us through the testimony of all the prosecution witnesses examined by the learned Trial Court and highlighted as to how the evidence is feeble not connecting the accused in any manner with the commission of crime. In support of his submission has placed reliance on the judgments reported in (2011) 11 SCC 724 , (2011) 12 SCC 545 and Meghalaya Judgment (2016) 2 MJ 498. 6. Learned Addl.PP would submit that the learned Trial Court has properly appreciated the evidence and has passed a reasoned judgment accused is proved to have been committed the offences, therefore, has been rightly convicted and sentenced. The appeal may be dismissed. 7. We have heard the learned counsel for the parties at length and perused the entire record. 8. The issue of non-appreciation and mis-appreciation of evidence has been specifically highlighted while referring to the statement of witnesses, therefore, we undertake to re-appreciate the whole gamut of the case including evidence which otherwise also as a Court of appeal is required. 7. We have heard the learned counsel for the parties at length and perused the entire record. 8. The issue of non-appreciation and mis-appreciation of evidence has been specifically highlighted while referring to the statement of witnesses, therefore, we undertake to re-appreciate the whole gamut of the case including evidence which otherwise also as a Court of appeal is required. Background of the case:- 9. Precisely the background of the case as has emerged from perusal of the record is that on 25.11.2011 Master Samsad Ansari a 5 years old boy son of Iliaz Ansari got missing. Missing report (Ext.1) was lodged by the father of the boy informing the officer-in-charge of Laitumkhrah Beat House that his son Md. Samsad Ansari (nickname chutu) is missing from around 9:00 am of the day i.e. 25.11.2011. SI B.R. Marak was asked by the officer-in-charge of the police station to enquire and report. 10. The father of the boy (PW1) subsequently on 29.11.2011 lodged an FIR (Ext.2) mentioning therein that the missing report was lodged on 25.11.2011. However, on 26.11.2011, at 6:07 pm he (PW1) received a telephonic call from an unknown caller through mobile number 8974429693, who demanded a ransom of Rs.3 lakhs (Rupees three lakhs) only. The caller switched off his phone soon after making the demand. He strongly suspects that the unknown caller had kidnapped his son for ransom. The case may be registered against the caller of mobile number 8974429693. 11. The officer-in-charge on such FIR has directed SI B.R. Marak to enquire and report. Three persons including the accused were called to the police station. In the meantime, PW19 SI K. Shabong who on the direction of PW24 Shri Vivek Syiem, Superintendent of Police was analyzing the mobile number from which call had been received. On ascertaining that the number was of the relative of the missing boy and on learning that the entire family was at the police station while reaching there on 28.11.2011, SI K. Shabong asked the accused about his phone. On enquiry according to the police, the accused disclosed about the commission of the offence and about the dead body of the victim boy. Then, he led them to the place of recovery of the dead body which was recovered. Postmortem was conducted and blood samples were collected. 12. On enquiry according to the police, the accused disclosed about the commission of the offence and about the dead body of the victim boy. Then, he led them to the place of recovery of the dead body which was recovered. Postmortem was conducted and blood samples were collected. 12. On completion of investigation charge sheet (challan) under Section 173 CrPC was presented before the Chief Judicial Magistrate, Shillong who committed the case on 21.06.2012 to the Court of learned Sessions Judge, Shillong. 13. The learned Trial Court framed the charge against the accused on 03.08.2012 to the effect that the accused on 25.11.2011 had kidnapped Master Samsad Ansari aged 5 years old from his residence at Lower Nongrim Hills and demanded Rs.3 lakhs for his release and later on, murdered Samsad Ansari thereby has committed the offences punishable under Section 364A and 302 IPC to which accused pleaded not guilty. 14. Prosecution has produced and examined 27 witnesses out of listed 32 witnesses. On closure of prosecution evidence, the accused was examined in terms of Section 313 CrPC incriminating circumstance were put to him, he denied the complicity in the crime and also said that the mobile phone does not belong to him, has shown totally ignorance about the occurrence, claimed to be innocent and had further added that on 28.11.2011 on personal search by a police officer, his mobile Nokia touch screen was taken out. Then, he was taken to his house for search where-from, they could not get anything and took him back to the police station. Police received a phone call. After conversation, one police personnel took him to the ground floor made him to sit in the police vehicle his face was covered with black cloth not knowing where he was taken. Finally, when the black cloth was removed from his face, he found himself in Civil Hospital, Shillong. He also added that on 26.11.2011, a phone call had come to Md. Thankir Alam. Later on, they had tried to call that number but they could not contact as it was switched off. Finally, he has claimed that he is innocent falsely implicated and he has a family with small children and also helping his younger brother’s family because his younger brother died in an accident and has prayed for justice. Thankir Alam. Later on, they had tried to call that number but they could not contact as it was switched off. Finally, he has claimed that he is innocent falsely implicated and he has a family with small children and also helping his younger brother’s family because his younger brother died in an accident and has prayed for justice. He was asked whether to produce any defence witness he has shown willingness but has not produced any defence witness. 15. After closure of the prosecution evidence and after examining the accused in terms of Section 313 CrPC, the learned Trial Court was required to hear the prosecution and the accused under Section 232 CrPC and thereafter, the learned Trial Court was required to proceed under Section 233 calling upon the accused to enter upon his defence and to adduce any evidence he may have in support thereof. What the learned Trial Court has done is that after closure of prosecution and after examining under Section 313 CrPC straightaway asked accused whether he wants to produce defence thereby ignored to follow the procedures prescribed under Sections 232 and 233 CrPC. Though it has not caused any prejudice but normally what law specifically prescribes has to be followed. The object of hearing under Section 232 CrPC is to avoid unnecessary delay in case otherwise acquittal at that stage is warranted. 16. There is no direct evidence about kidnapping and then murder of the deceased. The case totally hinges on circumstantial evidence. For proving the case on circumstantial evidence, the principles have been enunciated by the Hon’ble Apex Court in the case of “Sharad Birdhichand Sarda v. State of Maharashtra”: (1984) 4 SCC 116 . Same have been reproduced in para 24 of the judgment rendered in the case of “Mustkeem Alias Sirajudeen v. State of Rajasthan”: (2011) 11 SCC 724 . Para 24 is of the reported judgment is reproduced hereunder:- “24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra : (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence following features are required to be complied with. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra : (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) “(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may 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 a 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”. 17. The 1st circumstance as per prosecution case, to connect the accused with the commission of crime is, a call for ransom. It has to be divided in two parts first, as to who had given the call for ransom, second, to whom the call for ransom was given. It is advantageous to notice as to what the witnesses have stated in this behalf:- (i) PW1 father of the victim (boy) in the FIR dated 28.11.2011 (Ext.2) has mentioned that on 26.11.2011 at 6:07 pm, he received a telephonic call from an unknown caller through mobile number 8974429693, who demanded a ransom of Rs.3 lakhs. The caller switched off the phone soon after making the demand. In his statement before the learned Trial Court, he has stated that he received a phone call on his mobile demanding Rs.3 lakhs for release of his son. But in the cross examination, he has stated as:- “I do not have any mobile phone. The demand for ransom of his son came on the mobile of one of my relatives Tauke Alom and Tauke Alom informed him that the demand is made for Rs.3 lakhs for release of his son”. But in the cross examination, he has stated as:- “I do not have any mobile phone. The demand for ransom of his son came on the mobile of one of my relatives Tauke Alom and Tauke Alom informed him that the demand is made for Rs.3 lakhs for release of his son”. (ii) PW2 mother of the victim (boy) has stated that the accused demanded money, for release of her son, through mobile of Tauke Alom. (iii) PW19 K Shabong, S.I. of Police has stated that the father of the boy had received a call for ransom. Since he (PW19) was deputed to look after any crimes involving mobile phones, he was not able to do anything regarding the call because same was received on Saturday. Saturday and Sunday being holidays therefore, on Monday he asked for call details report (CDR) of the mobile call on which the father of the boy received the call and on obtaining the CDR, IMEI number was reflected therein. On tracking, it was found a personal number of the accused Mehbood Ansari. In the cross examination, he has stated that the Additional Superintendent of Police (Crime) Shri Vivek Syiem informed him on Saturday night that the father of the boy had received a call for ransom and asked him to track down the number. He has further qualified in his cross examination as under:- “I do not agree that the call for ransom was not received by the father of the boy.” (iv) PW21 Shri Simsang A. Sangma, S.I. has stated that he along with PW19 (Shri K Shabong) conducting the tracking of telephone number from which call demanding ransom in respect of the missing boy was made. On tracking of the mobile through CDR, it showed the IMEI number of the phone which matches with the mobile phone number used by the accused (Mehbood Ansari). Further, he has stated that under the instructions of the Additional Superintendent of Police (Crime) that too on the requisition made by the I/O, he (PW21) and PW19 have done the tracking of the phone. After tracking the mobile number they contacted the I/O of the case. (v) PW24 Shri Vivek Syiem, Superintendent of Police has stated that he was informed that an anonymous call had been received demanding Rs.3 lakhs for release of the missing boy. After tracking the mobile number they contacted the I/O of the case. (v) PW24 Shri Vivek Syiem, Superintendent of Police has stated that he was informed that an anonymous call had been received demanding Rs.3 lakhs for release of the missing boy. Thereafter, Special Cell Officer Shri K. Shabong was directed to make analysis of the mobile number. After analyzing, it was ascertained that the number belonged to the relative of the father of the missing boy. In the cross examination, he has stated as under:- “The fact about the ransom call was informed by Mr. B.R. Marak (I/O of the case)”. (vi) PW26 Shri Feroz Rahman, Police Inspector has stated that he does not remember exactly to whom the call had been made but it was one of the relatives of the complainant. (vii) PW27 Shri B.R. Marak, S.I. of Police has stated that ransom call had been made to Md. Thankir Alam by the accused. He (PW27) did not seize the mobile of Md. Thankir Alam. On 27.11.2011 in the evening time Md. Thankir Alam informed him about the ransom call. He has recorded the mobile number of Md. Thankir Alam. 18. From the deposition of the witnesses to this circumstance about call for ransom, it is clear that there are materials contradictions (i) PW1 father of the victim (boy) has stated that he received a call on his own mobile phone then, he has stated that he had no mobile phone then again he has stated that the call came on the mobile of Md. Thankir Alam; (ii) PW19 Shri K. Shabong, S.I. of Police has stated that the father of the boy on Saturday received call demanding ransom. Thankir Alam; (ii) PW19 Shri K. Shabong, S.I. of Police has stated that the father of the boy on Saturday received call demanding ransom. In the cross examination, he has stated that the Additional Superintendent of Police (Crime) informed him on Saturday night that the father of the boy had received phone call for ransom; (iii) PW24 Vivek Syiem, Superintendent of Police has stated that the fact about ransom call was informed by S.I. B.R. Marak; (iv) S.I. B.R. Marak PW27 has stated that he received the information about ransom call on 27.11.2011 at the evening time; (v) PW19 K. Shabong has stated that he received the information about the missing boy on the next day i.e. 26.11.2011; (vi) whereas, PW 21 Shri Simsang A. Sangma has stated that he along with PW19 (Shri K. Shabong) were directed by the Additional Superintendent of Police (Crime) to track down the number from which the ransom call has come; (vii) whereas, PW19 has not said anything about PW21 (Shri Simsang A. Sangma); and (viii) PW27 has no where stated that he informed Shri Vivek Syiem, then Additional Superintendent of Police (Crime) (PW24) about the information of the call had been received by him (PW27). 19. These contradictions in the statements and variations got compounded by the fact that the mobile set on which call for ransom was received has not been seized at all. Md. Thankir Alam who received call for ransom, though listed as prosecution witness has not been produced before the learned Trial Court. He was a vital link as also relevant person to state as to when he received the call for ransom. Withholding of such witness gives rise to so many inferences may be in case he would have been examined, he would have given different twist to the case. Why he was not produced is a question which has remained to be explained. 20. When the mobile set of Md. Thankir Alam was not seized, when the CDR of the said number was not produced before the learned Trial Court, as such, same has remained to be proved. According to the three witnesses, it is on the basis of the CDR report of the mobile number of Md. Thankir Alam, on analyzing they could track down IMEI which finally led them to say that call had come from the mobile set of the accused. According to the three witnesses, it is on the basis of the CDR report of the mobile number of Md. Thankir Alam, on analyzing they could track down IMEI which finally led them to say that call had come from the mobile set of the accused. Here the question as to why the CDR report of mobile phone of the accused was not collected which would show as to whether any call had come on that mobile. This important link for the stated reason has remained to be proved. 21. Method for collecting details regarding cell phone and sim card is that printed copy of the computer generated call details are obtained then to be proved by secondary evidence provided requirements of Section 65-B of the Evidence Act are satisfied. It shall be apt to quote paras 56 and 57 of the judgment rendered in the case of “Harpal Singh Alias Chhota v. State of Punjab”: (2017) 1 SCC 734 . “56. Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65-B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V.: (2014) 10 SCC 473 ordaining an inflexible adherence to the enjoinments of Sections 65-B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65- B(2) had been complied with, in absence of a certificate under Section 65-B(4), the same has to be held inadmissible in evidence. 57. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65- B(2) had been complied with, in absence of a certificate under Section 65-B(4), the same has to be held inadmissible in evidence. 57. This Court in Anvar P.V.: (2014) 10 SCC 473 has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65-B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65-A and 65-B of the Act as above. 22. The position of the case in hand is worst because call details report (CDR) of the cell phone on which alleged call for ransom was received had been collected but not produced before the learned Trial Court. Even CDR of the cell phone from which call was given has not been obtained what to speak of satisfying the requirement of Section 65-B(4) of the Evidence Act. Therefore, base of the circumstance is totally shaken which depicts as to how investigation of the case has been a causality. The second circumstance: Recovery of mobile phone allegedly of the accused 23. What the witnesses have stated in this behalf is:- (a) PW10 Shri Situ Nath, running a small tea stall near the police station at Laitumkhrah has stated that he had gone to serve tea at the police station. He was called by the I/O of the case to witness the seizure of the mobile which was recovered from the toilet of the police station. He has signed the seizure list (Ext.7). Mat.Ext.VII is the Nokia mobile and Mat.Ext.VIII is the battery of the said mobile. Mat.Ext.VII was brought out from the commode of the toilet. He does not know what was written in the seizure list (Ext.7). He has signed the seizure list (Ext.7). Mat.Ext.VII is the Nokia mobile and Mat.Ext.VIII is the battery of the said mobile. Mat.Ext.VII was brought out from the commode of the toilet. He does not know what was written in the seizure list (Ext.7). (b) PW11 Shri Sheo Dutt Prasad, running a small pan shop on the front gate of the Laitumkhrah police station has stated that S.I. B.R. Marak showed him one mobile which was inside the commode of the toilet, one constable pulled it out and was seized by S.I. B.R. Marak. He signed the seizure list (Ext.7). He does not know to whom the mobile phone belongs. He does not know the name of the constable who pulled out the mobile from the commode. (c) PW19 Shri K Shabong has stated that on tracking the number, showing that it is a personal number of the accused, he called up the father of the boy who informed him that the accused (Mehbood Ansari) had gone with him to the police station. He (PW19) went to Laitumkharh police station asked the accused to produce the mobile who replied that the mobile was used by his wife. On this information, PW19 proceed to his house at Bihari Colony. While they were about to leave the police station, the accused said that he needs to visit the toilet. One of the staff accompanied the accused to the toilet. Thereafter, they went to the house of the accused for search of the mobile but the mobile could not be found. Then, PW19 thought that the accused before leaving from police station had gone to the toilet, he immediately rang up the police station and also sent his staff to the toilet which the accused had used. After sometime, he received the information from the police station that the mobile was found in the toilet used by the accused. Then, he returned back to the police station. In the cross examination, he has stated that “the mobile was retrieved by the O/C and I/O of the case”. (d) PW21 Shri Simsang A. Sangma, S.I. has stated that on tracking the mobile through CDR and ascertaining that the mobile number was used by the Mehboob Ansari (accused). Then, he returned back to the police station. In the cross examination, he has stated that “the mobile was retrieved by the O/C and I/O of the case”. (d) PW21 Shri Simsang A. Sangma, S.I. has stated that on tracking the mobile through CDR and ascertaining that the mobile number was used by the Mehboob Ansari (accused). Since the accused was detained at the police station, they asked him regarding his mobile phone to which the accused replied that he has kept that in his house. They asked the accused to take them to his house, accused begged for some time to go to the toilet. After coming out from the toilet accompanied them to his house but at his house mobile phone could not be traced out. Then, it struck to the mind of the witness (Shri Simsang A. Sangma) that the accused might have thrown his mobile in the toilet. Therefore, he (PW21) immediately asked PW19 to proceed to police station and on reaching the police station, the mobile phone of the accused was recovered from the toilet. (e) PW24 Shri Vivek Syiem, Superintendent of Police has stated that Special Cell Officer Shri K Shabong after making analysis of the mobile number ascertained it to be the number of the accused. On enquiring, the accused replied that the same was with his wife. Then team was immediately dispatched to his wife house to recover the phone. In the meantime, he learnt that Mehboob Ansari (accused) had gone to the toilet. The team could not find the phone, remaining team which was at Laitumkhrah police station immediately searched the toilet and from the commode phone was recovered. (f) PW26 Shri Feroz Rahman, Police Inspector has stated that during interrogation, police suspected the accused (Mehboob Ansari) who is the uncle of the missing minor child. In the police station, the accused by taking excuse for going to toilet had thrown his mobile in the commode of the bathroom which was seen by some of the boys and it was later recovered from the other side of the bathroom where there was a leakage. (g) PW27 I/O of the case in this behalf has stated that he was interrogating Md. Thankir Alam, Md. Abdul Ansari and Md. (g) PW27 I/O of the case in this behalf has stated that he was interrogating Md. Thankir Alam, Md. Abdul Ansari and Md. Mehboob Ansari in the meantime, Shri Vivek Syiem, Additional Superintendent of Police (Crime) and S.I. K. Shabong of Special Cell S.P. office, Shillong took over the interrogation. They interrogated Mehbood Ansari and while interrogating him, he wanted to go to the toilet was allowed to go to the toilet. There in the commode he threw one Nokia mobile model No.1209 and opened the cover of the mobile and also took out the battery and sim card and threw in the commode. Further, has stated as under:- “One of the SOT personnel who went along with the accused to the toilet had seen the mobile in the commode and I did not remember his name. I did not record any statement of the SOT personnel”. Then has further stated as under:- “At around 2:35 pm, this SOT personnel has informed me about the mobile. I myself took the mobile from the toilet by putting a plastic in my hand.” Then during cross examination, he has stated as under:- “It is a fact that I have not taken out the mobile but it has been taken out by one police constable and I do not remember his name”. Then, has further stated as under:- “I have not recorded the statement of the person who has taken out the mobile. I have not enquired about the mobile set from the alleged accused person from where he has bought and how he has possessed”. Then, again has further stated as under:- “It is not a fact that the mobile was taken out from the other side of the toilet and not from the commode”. 24. Now, from amongst the witnesses regarding throwing the mobile into the commode and its recovery who is to be believed. The I/O PW27 is the architect of the case has given a wavering self destructive contradictory statement looses credibility. According to him (I/O), he took the mobile from the toilet by putting a plastic in his hand and then has stated that the mobile was taken out by the police constable. Further, he has stated that the two independent witnesses had not seen the accused throwing the mobile into the commode. According to him (I/O), he took the mobile from the toilet by putting a plastic in his hand and then has stated that the mobile was taken out by the police constable. Further, he has stated that the two independent witnesses had not seen the accused throwing the mobile into the commode. An exaggeration that the accused took and threw the mobile set into the commode removed the cover, battery and sim card. Therefore, witnesses has further demolishes this important circumstance. As according to PW10 the mobile was brought out from the commode. PW11 stated that S.I. B.R. Marak showed him the mobile which was inside the commode of the toilet and one constable pulled it out. He does not know the name of the constable. PW10 and PW11 are the two independent witnesses but at the same time they could be routine witnesses because one is running a tea stall and another is running pan shop quite adjacent to the police station. Their credibility is exposed by the fact i.e. according to the PWs19, 24 and 26 when they enquired from the accused about the mobile, he told them that the mobile was with his wife. They went to his house but could not find it there. Then they thought that while leaving for search to his house, accused had gone to the toilet therefore, they informed the police station. Laitumkhrah police station informed them that the mobile was lying in the commode. PW24 has given another exaggeration that according to him when police team went to the house of the accused but could not find the mobile phone from there they informed the remaining team which was at the police station who immediately searched the toilet and from the commode of the toilet the mobile phone was recovered. Whereas, PW26 Shri Feroz Rahman has given another twist by stating that accused was seen throwing the mobile by one SOT personnel and same was recovered from the other side of the bathroom where there was a leakage. All these witnesses to this circumstance have given such a testimony which is self contradictory, self destructive and give rise to manipulations. 25. Recovered mobile even otherwise has not been proved to be in the name of the accused. All these witnesses to this circumstance have given such a testimony which is self contradictory, self destructive and give rise to manipulations. 25. Recovered mobile even otherwise has not been proved to be in the name of the accused. The I/O of the case has not bothered to collect the information from the person who had issued the sim card of the mobile so as to ascertain whether it was in the name of the accused or someone else. This aspect of the case has not been investigated at all. Another worst position is that if according to the I/O or PW24, the accused was seen throwing the mobile into the commode by one police constable or by SOT personnel why they have not cited them as witness to prove that fact. Same has remained to be explained. 26. Taking these two circumstances together neither the mobile set from which call was given for ransom nor the mobile set on which call was received for ransom have been seized, therefore, not proved. Those two mobiles respectively one belonged to the accused and another to Md. Thankir Alam Ansari. Even the CDR details have not been proved. Therefore, both two links taken together have not been proved. The third circumstance: Recovery of dead body. 27. According to PWs19, 21, 24 and 26, accused led them to the place of occurrence i.e. the place where-from the dead body was recovered. PW19 has stated that they reached the spot, there were many policemen present. Whereas, PW21 has stated that they reached the place of occurrence, there was no one at that time near the body. Then again PW21 has stated that when he reached the spot headman and others were present. PW24 has stated that when he reached the spot then others came. According to PW26, headman and others were already present and waiting for him then, has further stated that 10 to 15 people were there. The teacher PW13 had already informed the Additional Superintendent of Police (Crime) (PW24). 28. Here the question arises as to whether the accused had any information about the dead body at place of recovery. According to the witnesses, it is the accused who led them to the place of recovery but same appears to be manipulation. In case he would have made any disclosure, disclosure statement at least would have been recorded by the I/O (PW27). According to the witnesses, it is the accused who led them to the place of recovery but same appears to be manipulation. In case he would have made any disclosure, disclosure statement at least would have been recorded by the I/O (PW27). PW27 has clearly qualified that he has not recorded any disclosure statement. Disclosure statement to the extent of recovery is admissible in evidence as per Section 27 of the Evidence Act, 1992. First, disclosure statement was not recorded then to say that the accused led them to the place of occurrence appears to be manipulation and doubtful which fact is supported by the testimony of the witnesses as according to PW19 policemen were already present PW21 had also said the same story. He also added that the headman was also present there. Even PWs 24 and 26 have also stated that the headman and others were already present and waiting there at the place of recovery. 29. The statement of independent witness, PW13 assumes importance. Shri Leonard Arun Mawrie a teacher who has been examined as PW13 has deposed before the learned Trial Court that on 28.11.2011 at around 2:15 pm, he received a phone call from the villagers while collecting firewood from the Government forest land that they have seen a child in the forest. On this information, he rushed to the place and saw a child below the trunk of the tree on a standing position. They called him several times but with no response. Therefore, he informed Madanriting police station and police party reached the spot after sometime and found the child was already dead. Police held the inquest on spot which he had signed same is exhibited as Ext.8-A. In the cross examination, he has qualified that the person who informed him on telephone was Mr. Mostur Kharkongor (now dead). He has further qualified that he (PW13) had informed the officer-in-charge Madanriting police station, after 15 minutes he reached the spot. He has further qualified that he (PW13) reached the spot saw 10 people who were collecting firewood from that area had gathered on the spot. The statement of this witness is supported by other witnesses such as PWs21, 24 and 26, who have stated that when they have reached the spot, the headman and 13 persons were already present there. He has further qualified that he (PW13) reached the spot saw 10 people who were collecting firewood from that area had gathered on the spot. The statement of this witness is supported by other witnesses such as PWs21, 24 and 26, who have stated that when they have reached the spot, the headman and 13 persons were already present there. What would emerge is that basically the dead body was spotted by the persons who were collecting firewood and informed the teacher (PW13). PW13 informed the Madanriting police station as a result whereof, police of Madanriting police station, headman and other persons gathered on spot. It is thereafter, the police personnel from Laitumkhrah police station reached the spot. It clearly suggests that the statement of I/O and others to the effect that the accused led to the place of occurrence is exposed and compounded by the fact that no disclosure statement of the accused was recorded. The fourth circumstance: Seizure of vehicle i.e. Maruti Taxi (Ext.3). 30. According to PW3 Md. Elias Taxi bearing No.ML-05 D 2302 (Ext.3) was seized on 28.11.2011 only after recovery of the dead body from the road which is between Pohkseh and Nongrim Hills. Whereas, in the cross examination has stated that he did not know whether the dead body was recovered first or vehicle was seized first. PW9 Smti. Marylly Lyngdoh Nongdhar has also stated that the Taxi was seized. PW8 Shri Ramlal Tuarah has stated that the documents of the vehicle were seized on 03.12.2011. PW27 I/O has stated that the Taxi was seized on 28.11.2011 which was parked in the compound of Marylly Lyngdoh Nongdhar of Lower Nongrih Hills. Seizure of the vehicle on 28.11.2011 is not denied. The fifth circumstance is blood samples. 31. PW10 has stated that in the police station seized local taxi was shown to him the seat of the taxi with cut marks, also the blood stains were shown. In the cross examination, has stated that he noticed 5 to 6 blood stained on the front seat. He also noticed blood stains around the parts where the seat has been cut. PW12 a businessman has stated that S.I. B.R. Marak called him to witness the blood stained spots in the local taxi which was seized by him. In the cross examination, has stated that he noticed 5 to 6 blood stained on the front seat. He also noticed blood stains around the parts where the seat has been cut. PW12 a businessman has stated that S.I. B.R. Marak called him to witness the blood stained spots in the local taxi which was seized by him. PW12 saw the blood stains in the front seat where the driver is sitting and also in the same front seat where the passenger used to sit. He also noticed the blood stain on the floor of the taxi behind the driver seat and also blood stain in the dickey of the car. The police took the samples of blood stain. Mat.Exts.X to XV are the small cut pieces of cloth which have been cut by the police and then brought to the taxi and same have been put on the blood stains to collect the blood samples. He (PW12) had witnessed the blood stains which are exhibited as Mat. Exts. IX to XV. PW 26 has stated that on Ext.7 (A) he has signed as a witness in respect of seizure of blood stains collected from the seat and other parts of the vehicle on 02.12.2011. PW27 has stated that during his investigation into the local taxi, he found some blood stains and informed the Director of Forensic Science Laboratory (FSL), who sent staff to guide him how to preserve the blood stains. He collected the blood stain from the seat cover by cutting pieces from the seat cover. Thereafter, sent the same to FSL. At that time, two witnesses were present no other persons was present. 32. According to PW27 I/O of the case regarding blood stain cut out from different portions of the seat cover and regarding collection of blood stain in a white cotton cloth, he prepared a seizure list (Ext.7(A)). To the said seizure list, two witnesses have been cited i.e. PW12 Shri Dominic E. Nongkynrih (businessman) and PW26 Shri Feroz Rahman (Police Inspector). PW12 has stated that he was called by S.I. B.R. Marak (PW27) to witness the blood stained spots in the local taxi which was seized by him. PW12 saw blood stain on the front seat of the taxi where the driver is sitting and also in the same front seat where the passenger used to sit. PW12 has stated that he was called by S.I. B.R. Marak (PW27) to witness the blood stained spots in the local taxi which was seized by him. PW12 saw blood stain on the front seat of the taxi where the driver is sitting and also in the same front seat where the passenger used to sit. He (PW12) also noticed the blood stain on the floor of the taxi behind the driver seat and also the blood stain in the dickey of the car. He further stated that seizure list (Ext.7(A)) was prepared which bears his signature as witness. 33. Mat. Ext. IX are the two numbers of cut portion from the driver seat of the taxi containing blood stain. Mat.Exts.X, XI, XII, XIII and XIV are the small cut piece of cotton cloth containing blood stain. Mat.Ext.XV is one number of cut portions from the front seat of the passenger side containing blood stain. In the cross examination, he has stated that Mat.Exts.X to XV are the cut pieces of cloth which have been cut by the police and then brought to the taxi and same was put on the blood stains to collect the blood sample. The numbers of blood stains exhibited in the Court today are Mat.Exts.X to XV. He (PW12) had witnessed the blood stains which are exhibited as Mat.Exts.X to XV. 34. PW25 Smti. Dolphie Nolen Rose Lyngdoh, Deputy Director, FSL has stated that Mat.Ext.IX are the four numbers of cut portion from the seat of the seized vehicle. Mat.Exts.X, XI, XII, XIII and XIV are the small cut pieces of cotton cloth containing blood stains. Mat. Ext. XV is another cut portion from the seat of the seized vehicle. As per witness to the seizure list Mat.Ext.IX are the two numbers of cut portion from the driver seat of the taxi containing blood stain whereas, as per PW25 Mat.Ext.IX are the four numbers of cut portion from the seat of the seized vehicle. As per the statement of PW12, Mat.Ext.IX are the two numbers of the cut portion from the driver seat of the seized vehicle. From the statement of PW12, Mat.Ext.IX are the two numbers of the cut portion from the driver seat and Mat.Ext.XV is one number of cut portion from different seat. As per the statement of PW12, Mat.Ext.IX are the two numbers of the cut portion from the driver seat of the seized vehicle. From the statement of PW12, Mat.Ext.IX are the two numbers of the cut portion from the driver seat and Mat.Ext.XV is one number of cut portion from different seat. Means in total three numbers of cut portions from the driver seat of the taxi were seized whereas, as per PW25 five numbers of cut portions from the seat of the vehicle were examined by him. The seizure list (Ext.7(A)) reveals that only three portions of blood stain cut out from the seat cover were seized i.e. A, B and C. As per the same seizure list (Ext.7(A)) five numbers of blood stain were collected separately in white cotton cloth i.e. Exts.E, F, G and H. 35. As per the testimony of PW26 Feroz Rahman (Police Inspector), he had signed as a witness No.2 to seizure list (Ext.7(A)) in respect of the blood stain collected from the seat and other part of the vehicle on 02.12.2011. PW12 has qualified that “it is not a fact that I was not present when the seizure of Ext.11 and Ext.7(A) was prepared”. His (PW26) presence at the time of seizure list (Ext.7(A)) is denied by PW12 who has qualified that “there was no other witness present at that time except me and S.I. B.R. Marak. I do not agree to the suggestion that there were some other people also at the time of seizure of material exhibits”. 36. Now, two important witnesses to the seizure list (Ext.7(A)) i.e. PWs12 and 26 create another doubt i.e. either PW26 was not present on spot or PW12 was not present when the said seizure list was prepared. PW12 has created another doubt i.e. in the examination-in-chief, he has stated that Mat.Exts.IX and XV respectively were two numbers and one number of cut portion of the seat. Then, in the cross examination, has stated that Mat.Exts.X to XIV are the small cut piece of cotton cloth used containing blood stain whereas, Mat.Ext.XV is a portion cut out from the front seat of the passenger side. 37. Then, in the cross examination, has stated that Mat.Exts.X to XIV are the small cut piece of cotton cloth used containing blood stain whereas, Mat.Ext.XV is a portion cut out from the front seat of the passenger side. 37. PW27 has made the position more doubtful as according to him, on noticing the blood stain inside the taxi, he had informed the Director of FSL, who had sent staff to guide as to how to preserve the blood stains. Then, he has stated that “I have collected the blood stain from the said local taxi by cutting pieces from the seat cover”. PW27 has not stated as to what was the method adopted for collecting blood stains from the vehicle but PW25 in the cross examination, has stated as under:- “The processing of collecting the blood sample from resin is by collecting it by moist cloth or moist cotton cloth or by cutting the stained portion”. 38. PW27 I/O of the case has not stated as to whether he had adopted the same method i.e. whether he had used moist cloth for collecting the blood stain from resin. Though he had stated that the blood stain portion of the seat cover were cut out but regarding collection of blood stain on the other parts of the vehicle has not stated as to whether he used moist cotton cloth. Though the blood stains are shown to have been collected on cloth as reflected in seizure memo Exts. D to H. Here again a question as to why he had not taken the assistance of the expert (FSL) in collecting the samples of blood stains from the vehicle. Same give rise to a doubt which is further compounded by the fact that according to the I/O, seizure list (Ext.7(A)) was prepared in presence of two witnesses i.e. PWs12 and 26. But according to PW12 a businessman at the time of seizure no other person except him and S.I. were present. As to how PW12 was present in the police station at the time of seizure, he replied that he used to come to the police station quite often with regard to his business. 39. Another important position which has emerged is that the blood group of the victim is “B” and at the same time accused’s blood group is also “B” same has been proved. 39. Another important position which has emerged is that the blood group of the victim is “B” and at the same time accused’s blood group is also “B” same has been proved. In this connection, in the cross examination of PW25 has stated that “I can definitely say that the blood group is of the victim and of the accused, but in case of random blood samples it is difficult to pinpoint to any person of the same blood group”. Then on Court question and answered as under:- “Is there a possibility that the blood group between close relative will be the same? Yes”. She has further stated as under:- “From the blood stain it cannot be said whether the blood is of the child or of an adult”. Further, has stated that in her report she had not mentioned how old the blood stains were as she was not asked by the police for the same. 40. The collection of blood stain and blood stain portion cut out from the seat for contradiction in the statement of PWs12, 26 and 27, it is difficult to say as to whether the blood stains were of the accused or the victim. This aspect of the case has not been looked into by the learned Trial Court. 41. Another circumstance is that the accused had used the wheel wrench while attacking the victim. Wheel wrench has been seized as stated by PW27 and same has been sent to the Director of Finger Print Bureau. What was the view or opinion of the Director of Finger Print Bureau has not been produced. Furthermore, on the wheel wrench no blood stain had been noticed nor finger print of the accused were noticed or proved. 42. Another circumstance is linked with the inquest report (Ext.8(A)), same has been prepared by S.I. B.R. Marak, I/O and shown to have been witnessed by Leonard Arun Mawrie and Md. Thankir Alam. As per the inquest report, inquest was held over the dead body on 28.11.2011 at 3:30 pm, “being identified by Md. Tankir Alom son of Md. Eisa Ansari (cousin brother). The dead body was found lying in between two branches of tree, head inclined towards right side, left hand upwards, the right hand downside between the branches of tree, the leg was found in a sitting position. Tankir Alom son of Md. Eisa Ansari (cousin brother). The dead body was found lying in between two branches of tree, head inclined towards right side, left hand upwards, the right hand downside between the branches of tree, the leg was found in a sitting position. In the left side 60 cm cut mark in the cheek, laceration in the right side of the below of forearm, on turning the left side found a bruise mark in the cheek, on turning the body upside found injury neck in the vertebral column, wounds were found on the head and blood stain on the cloth of the child”. Md. Thankir Alam has not been produced as a witness before the learned Trial Court. 43. The inquest report suggests that the dead body of the boy was identified by Md. Thankir Alam whereas, in the Panchnama (Ext.10) what has been stated is that “immediate interrogation of accused revealed that he took the child Master Md. Samsad Ansari son of Elias Ansari on 25.11.2011 at about 9:00 am from the compound of Elias Ansari i.e. Moina Turaha Compound, Nongrim Hills, Shillong on local taxi bearing No.ML-05 D 2302 and strangulated the boy to death with his bare hands at the place of occurrence and left the dead body in the jungle”. The accused led the search party to the place of occurrence. A police team was led by Shri Vivek Syiem, MPS, Additional Superintendent of Police (Crime) along with O/C Laitumkhrah police station, I/O S.I. B.R. Marak and other officers of special cell, Madanriting police station also with independent witnesses Shri Chotu Nath and Tankir Alom Ansari. It is also mentioned therein that on the way headman of Laitkor, Nongdaneng Shri L. Arun Mawrie informed that one dead body of a boy has been found by some people who were collecting firewood from the forest. On arrival at the place of occurrence, headman of Laitkor and others were already at the place of occurrence who on reaching led the way to the place of occurrence. It is also mentioned that on arrival of FSL team headed by Smti. On arrival at the place of occurrence, headman of Laitkor and others were already at the place of occurrence who on reaching led the way to the place of occurrence. It is also mentioned that on arrival of FSL team headed by Smti. B. Lyngdoh, Deputy Director FSL Biology Division, I/O along with them visited the place of occurrence where the dead body was lying, the place of occurrence with head put between two trees in sitting position, head pointing out towards northeast, right leg pointing towards northwest, left leg pointing towards south. It is also mentioned that the inquest was held over the dead body by S.I. B.R. Marak in presence of the FSL team, O/C Laitumkhrah, Additional Superintendent of Police (Crime) and other independent witnesses. 44. Reading the inquest report (Ext.4) and panchnama (Ext.10), it is quite evident that the dead body has been spotted by the persons who were collecting firewood PW13 teacher had informed the police. When police team reached on spot, headman and others were present which in turn would give rise to an inference that in fact, the accused had not led the police party to the place of recovery in fact, it is PW13 a teacher who is also a headman and others who had led the police party to the place of occurrence. Md. Thankir Alam has not been examined as a witness. So has been withheld in case would have been produced he would have given a clear picture as to who had led the police party to the place of recovery. 45. It has emerged that a teacher (PW13) had informed the Madanriting police station that the persons collecting firewood had spotted the child in the forest in a standing position. None of the persons including the police who were present at the time of recovery have stated that the accused was present on spot at the time of recovery. 46. Another worst position so as to negate the theory of blood stains in the seized vehicle is that in the panchnama (Ext.10), it has been mentioned that the accused during interrogation divulged that he had strangulated the boy with his bare hands and left the body in the jungle, which again is a theory developed by the prosecution. Panchnama (Ext.10) has been signed by seven persons out of whom two have not been produced. Panchnama (Ext.10) has been signed by seven persons out of whom two have not been produced. The other five witnesses who have been examined have no where stated that the accused at the time of recovery was present on spot. 47. Theory of strangulation is exposed because in the opinion of the doctor (PW15) death had occurred due to head injury. Even that head injury has not been explained. 48. When prosecution case totally hinges on circumstantial evidence motive of crime assumes significance. Though it is settled that in every case motive of the crime is not necessary to be proved but in the stated facts and circumstances, which are full of gaps, motive has to be established. None of the witnesses, more particularly, the parents of the victim, PW1 father and PW2 mother have stated that they had any type of dispute, hostility and acrimony with the accused. The accused is a brother of PW1, when there is no hostility between them, why the accused would kidnap his own nephew a 5 years old boy and then kill him. Perhaps police realizing that the case being cooked up against the accused have introduced a theory that there was a call for ransom which, as conclude hereinabove, has not been proved at all. While referring to the various circumstances, more particularly, to the mobile phone on which call was given and phone on which call was received. PWs1 and 2 have not stated that at any time or any point the accused had demanded money from them except a wavering statement of PW1 that he had received a call for ransom from unknown caller on his own mobile number then, has stated that the call was received by Md. Thankir Alam. Md. Thankir Alam has not produced as a witness as already stated. The call details report (CDR) have not been proved therefore, the theory of motive i.e. call for ransom introduced is not proved. 49. Another strange motive has been introduced as stated by PW24 Shri Vivek Syiem, Additional Superintendent of Police (Crime) by stating as under:- “........on further interrogating Mehbood Ansari on the spot he admitted that the reason for killing his nephew was to enable him to get a boy child as his wife was third time pregnant. 49. Another strange motive has been introduced as stated by PW24 Shri Vivek Syiem, Additional Superintendent of Police (Crime) by stating as under:- “........on further interrogating Mehbood Ansari on the spot he admitted that the reason for killing his nephew was to enable him to get a boy child as his wife was third time pregnant. He also admitted that on 25.11.2011 he promised the child to take him for a drive and on reaching Laitkor smashed his face with an iron wrench and strangulated him”. A lie has no leg to stand upon, what a trash statement, all along theory of the prosecution is that there were blood stains in the vehicle, if boy was taken to Laitkor (place of recovery), his face was smashed with an iron wrench and strangulated then thrown into the jungle, how the question of blood stains in the vehicle. Another motive attributed i.e. accused said that reason for killing the victim boy was to enable him to get a boy child, how that could happen. This theory is only known to PW24 a police officer not below the rank of Superintendent of Police. 50. Therefore, the motive of crime as attributed is totally without any basis and substance. In the present case, in the given facts and circumstances, motive of crime was attempted to be established, purpose was to cover up the case. The two theories were introduced by the police for proving motive but not proved. From the judgment rendered by the Hon’ble Apex Court in the case of “Varun Chaudhary v. State of Rajasthan”: (2011) 12 SCC 545 . Paras 16 and 24 are advantageous to be quoted:- “16. According to the learned counsel, in absence of any motive, in a case which is based only on circumstantial evidence, it would not be just and proper to convict the accused, especially when there was no material to come to a conclusion that the accused had committed the offence. So as to substantiate the above submission, they relied on the judgments delivered by this Court in Surinder Pal Jain v. Delhi Admn. 1993 Supp (3) SCC 681 and Tarseem Kumar vs. Delhi Admn. 1994 Supp (3) SCC 367 respectively. 24. It is also pertinent to note that the prosecution could not establish the purpose for which the deceased was murdered by the accused. 1993 Supp (3) SCC 681 and Tarseem Kumar vs. Delhi Admn. 1994 Supp (3) SCC 367 respectively. 24. It is also pertinent to note that the prosecution could not establish the purpose for which the deceased was murdered by the accused. Of course, it is not necessary that in every case motive of the accused should be proved. However, in the instant case, where there is no eye witness or where there is no scientific evidence to connect the accused with the offence, in our opinion, the prosecution ought to have established that there was some motive behind commission of the offence of murder of the deceased. It was the case of the prosecution that the deceased, an Income Tax Officer had raided the premises belonging to some scrap dealers and, therefore, he had received some threats from such scrap dealers. It is an admitted fact that the accused are not scrap dealers or there is nothing to show that the accused had been engaged by scrap dealers to commit the offence. Thus, there was no motive behind the commission of the offence so far as the accused are concerned.” 51. The chain of circumstances as referred to above one by one are totally broken and are imaginary chains. Now, an important question is as to why the police had implicated the accused. In the facts and circumstances and in the light of the inquest report revealing as to how the dead body was found at the place of occurrence lying in between two branches of tree, head inclined towards right side, left hand upwards, the right hand downside between the branches of tree, the leg was found in a sitting position. A gruesome murder that too of a child of five years of age would have given rise to public anger. Police in order to show that they have cracked the murder appears to have made the accused a soft target so as to earn applause and appreciation. Very sad a boy of 5 years of age has lost his life, deprived of enjoying so many summers of his life and parents are deprived of a child but police has failed to reach to the actual criminal. 52. Kidnapping and killing of the boy has remained a mystery or has been made as a mystery by not investigating it properly therefore, the actual criminal has remained to be reached. 52. Kidnapping and killing of the boy has remained a mystery or has been made as a mystery by not investigating it properly therefore, the actual criminal has remained to be reached. 53. Unnecessary involvement of the accused as it appears from the record is indirectly supported by PW1 father of the boy (brother of the accused) and also his wife PW2. PW1 father of the boy has not named the accused neither he had any suspicion about the accused in fact, accused had accompanied him (PW1) to the police station. PW1 has not anywhere stated that he or the accused had any hostility or any dispute or any ill will. PW2 mother of the boy too has not stated even a word that the accused has committed the crime but has qualified that they have not lodged any report against the accused. It is the police who arrested him (accused) in this case. None of the witnesses produced have stated that they ever saw the accused kidnapping or killing the boy or they had any doubt about the accused. 54. Alas! murder of the boy has remained a mystery and mystery compounded by the fact that in the inquest report (Ext.8(A)) it is mentioned that the dead body was lying in between two branches of tree, head inclined towards right side, left hand upwards, the right hand downside between the branches of tree, the leg was found in a sitting position. This type of mystery could have been unfolded in case the investigating officer including police team without jumping to the conclusion for unwarranted publicity would have reached to the actual criminal that would have been a big solace to the bleeding parents. 55. The manner in which the matter has been handled by the investigating officer and Shri Vivek Syiem, Additional Superintendent of Police (Crime) and other police officers/officials suffice to say that it is quite deplorable. It appears that the learned Trial Court has been swayed by sentiments and in the process has not appreciated the evidence properly. 56. For the detailed discussions and reasons as stated hereinabove, we have no manner of any doubt about the fact that the actual criminal for the reason best known to the investigating agency has remained to be reached and brought to book. 56. For the detailed discussions and reasons as stated hereinabove, we have no manner of any doubt about the fact that the actual criminal for the reason best known to the investigating agency has remained to be reached and brought to book. It is painful to notice a horrific murder wherein, a boy of 5 years of age has been killed and then his dead body kept between two branches of a tree, absolutely inhuman act. To our dismay, the investigating agency has not shown their skill while investigating the case. The prosecutor who was conducting the prosecution before the learned Trial Court too has shown negligence by not producing important witnesses in particular Md. Thankir Alam Ansari. It is high time that the policing requires to be improved and strengthened. Investigation of such heinous cases shall invariably be got conducted through a senior police officer not below the rank of Deputy Superintendent of Police. 57. The appeal succeeds. Judgment and order impugned passed by the learned Trial Court are set aside. The accused is directed to be released forthwith. 58. Copy of this judgment be sent to Director General of Police, Meghalaya for information and necessary action. Copy of this judgment along with Trial Court record be sent to the Trial Court.