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2019 DIGILAW 109 (ALL)

Yogesh Kumar v. State of U. P.

2019-01-11

P.K.S.BAGHEL, UMESH CHANDRA TRIPATHI

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JUDGMENT : Umesh Chandra Tripathi, J. By way of instant criminal appeal, the appellants have challenged the legality and sustainability of the judgment and order dated 11.06.1999 passed by IInd Additional Sessions Judge, Muzaffarnagar, in Sessions Trial No. 334 of 1997 (State v. Yogesh Kumar and others), arising out of Case Crime No. 185 of 1996, under Section 302 of the Indian Penal Code, 1860 (for short 'IPC'), Police Station - Budhana, District - Muzaffarnagar whereby the appellants - Yogesh Kumar, Sarvesh Kumar, Sushil Kumar and Jugendra Sharma were convicted and sentenced as follows :- (i) Imprisonment for life, under Section 302 read with Section 34 of IPC; and (ii) Rigorous imprisonment for two years and to pay fine of Rs. 1000/- each, under Section 201 of IPC. In case of default in payment of fine, each of the appellant shall undergo additional imprisonment for six months. 2. Both the sentences were directed to run concurrently. 3. Succinctly, facts relevant for adjudication of this appeal, as discernible from perusal of record, appear to be that Subodh Tyagi, elder brother of informant Sunil Kumar Tyagi was on good terms with Yogesh Kumar, Jugendra Sharma and Om Pal of his village. He was not a teetotaller and used to consume liquor occasionally. The 'chak' of informant Sunil Kumar Tyagi and the bricks kiln of Shugan Chand, his uncle was situated near the tube well of Yogesh Kumar. On 22.12.1996 at about 04.00 P.M., Yogesh Kumar and Jugendra Sharma came at the residence of informant, called Subodh Tyagi and took him on the pretext of some important work. At that time, informant Sunil Kumar Tyagi, his servant Brahma and villager Shamshad were present there. On the same day at about 06.00 P.M., informant Sunil Kumar Tyagi went to the bricks kiln of his uncle Shugan Chand, where he and Shugan Chand saw that Subodh Tyagi was sitting along with Yogesh Kumar and Jugendra Sharma at the tubewell of Yogesh Kumar. After supervising the arrangements at the bricks kiln, informant Sunil Kumar Tyagi came back to his residence. But when his brother Subodh Tyagi did not return at the residence even till 10.00 P.M., then he and his family members went to the tube well of Yogesh Kumar to search him. However, even after intensively searching Yogesh, Jugendra and Subodh Tyagi for the whole night, they could not know their whereabouts. But when his brother Subodh Tyagi did not return at the residence even till 10.00 P.M., then he and his family members went to the tube well of Yogesh Kumar to search him. However, even after intensively searching Yogesh, Jugendra and Subodh Tyagi for the whole night, they could not know their whereabouts. On the next day, that is to say, on 23.12.1996 at about 10.00 A.M., while informant Sunil Kumar Tyagi, his uncle Shugan Chand and cousins Vipin and Sudhir were searching Subodh Tyagi in the jungle, they found the dead body of Subodh Tyagi in the sugarcane field of one Shiv Charan. There dead body of deceased Subodh Tyagi had several injuries. With the allegation that accused Yogesh Kumar and Jugendra Sharma had committed the murder of his brother Subodh Tyagi, informant Sunil Kumar Tyagi requested that report be lodged and stringent action be taken. The written report is on record and marked as Ex.Ka.1. 4. Contents of written report were taken down by scribe in chik first information report (FIR No. 178) at Case Crime No. 185 of 1996 under Section 302 of IPC at Police Station - Budhana, District - Muzaffarnagar on 23.12.1996 at 11.00 A.M. The FIR is on record and marked as Ex.Ka.9. On the basis of entry so made in the FIR, relevant entry was made in the general diary and a case was registered against the accused at the aforesaid case crime number under the aforesaid section. The photostat copy of the G.D. is on record and marked as Ex.Ka.10. 5. Subsequently, investigation of the case commenced and it was entrusted to Sub-Inspector J.P. Gupta, the first Investigating Officer of the case (for short 'first I.O.'), who first of all recorded the statements of witnesses namely Sunil, H.M. Rampal and Satya Pal. He went to the place of occurrence and prepared its site plan, which is on record and marked as Ex.Ka.17. He took into possession blood-stained and simple earth from the place of occurrence and prepared recovery memo of the same, which is on record and marked as Ex.Ka.18. He recovered a pair of shoes ('joota') and one 'chaadar' (a sheet of cloth generally used for spreading and covering) from the place where the dead body of deceased Subodh Tyagi was lying and prepared recovery memo of the same, which is on record and marked as Ex.Ka.19. He recovered a pair of shoes ('joota') and one 'chaadar' (a sheet of cloth generally used for spreading and covering) from the place where the dead body of deceased Subodh Tyagi was lying and prepared recovery memo of the same, which is on record and marked as Ex.Ka.19. He also selected inquest witnesses and in their presence, held inquest on the dead body of deceased Subodh Tyagi. The inquest report ('panchayatnama') is on record and marked as Ex.Ka.12. Thereafter, relevant papers necessary for sending the dead body for postmortem examination viz. letter to R.I. (Ex.Ka.13), letter to C.M.O. (Ex.Ka.14), photo nash (Ex.Ka.15), challan nash (Ex.Ka.16) were prepared. After conclusion of necessary formalities, dead body of deceased Subodh Tyagi was sent to hospital for autopsy. 6. On 24.12.1996, dead body of deceased Subodh Tyagi was brought to District Hospital, Muzaffarnagar by Constables - CP 1236 Ramvir Singh and CP 946 Manoj Kumar. Postmortem examination on the cadaver of the deceased was conducted on the same day at 09.00 A.M. by Dr. B.S. Chandhan, the then Medical Officer of District Hospital, Muzaffarnagar who noted the following ante-mortem injuries on his person : Ante-mortem injuries : 1. Multiple incised wounds on front both sides of neck 7 cm. x 5 cm. x thyroid cartilage cut to 3 cm. x 0.5 cm. x muscle deep over whole of the neck forth side. Clotted blood present. 2. Multiple incised wounds on left upper arm from shoulder to wrist measuring 8 cm. x 4 cm. x bone deep. Clotted blood present. 3. Sharp-edged penetrating wound on right side chest 4 cm. above from nipple at 2 O' clock to 6 O' clock position measuring 5 cm. x 2 cm. x chest cavity deep to 3 cm. x 0.5 cm. x muscle deep. On opening pleura and lungs were cut. 4. Sharp-edged penetrating wound. Multiple wound in an area of 12 cm. x 10 cm., 0.4 cm. above from left nipple 6 O' clock to 9 O' clock position 5 cm. x 3 cm. x chest cavity deep 3 cm. x 0.5 cm. x muscle deep. On opening pleura and lungs were cut and clotted blood was present. 5. Multiple incised wounds on right upper arm outer aspect and forearm measuring 4 cm. x 1 cm. x muscle deep to 3 cm. x 0.5 cm. x muscle deep. Clotted blood present. 7. x chest cavity deep 3 cm. x 0.5 cm. x muscle deep. On opening pleura and lungs were cut and clotted blood was present. 5. Multiple incised wounds on right upper arm outer aspect and forearm measuring 4 cm. x 1 cm. x muscle deep to 3 cm. x 0.5 cm. x muscle deep. Clotted blood present. 7. As per the opinion of doctor, death of deceased Subodh Tyagi was caused due to shock and haemorrhage as a result of ante-mortem injuries. Duration of death was one and half day. Injuries might have been caused to the deceased by sharp-edged weapon such as knife 'daranti' and 'balkati' on 22.12.1996 between 08.00 P.M. - 11.00 P.M. 8. The post-mortem report of deceased Subodh Tyagi is on record and marked as Ex.Ka.5. 9. On 24.12.1996, J.P. Gupta, first I.O. recorded the statement of witness Shamshad and thereafter, the investigation of the case was transferred to the then Station Officer of Police Station - Budhana - Shankar Singh Chahar, the second Investigating Officer of the case (for short 'second I.O.'). 10. On 25.12.1996, S.S. Chahar, second I.O. interrogated witnesses of fact - Mahesh Tyagi and Tara Chand. On 26.12.1996, he recorded the statement of witness Brahma. 11. On 26.12.1996, accused-appellant Sarvesh Kumar alias Titu was apprehended by S.S. Chahar, second I.O. and other police personnel from 'Khatauli Tiraha', who confessed his guilt before the police. On his information, sharp-edged weapon 'daranti' alleged to have been used in the commission of the crime was recovered by the police beneath the floor of 'kothari' (room) of his tube well. Public witnesses - Laxmi Chand and Hasrat Ali were the witnesses of recovery. The recovered 'daranti' was covered with stains of earth and blood. It was taken into possession and its recovery memo was prepared, which is on record and marked as Ex.Ka.2. It was then sealed and its sample seal was prepared. Thereafter, accused-appellant Sarvesh Kumar and the recovered 'daranti' were taken to the police station. 12. On the way to the police station at about 04.00 P.M., as soon as the police reached near the bridge of Budhana river, they saw a man running away on seeing the police jeep. Accused-appellant Sarvesh Kumar, who was sitting inside the jeep, disclosed the man's identity as Sushil Kumar and about his involvement in the commission of the murder of Subodh Tyagi. Accused-appellant Sarvesh Kumar, who was sitting inside the jeep, disclosed the man's identity as Sushil Kumar and about his involvement in the commission of the murder of Subodh Tyagi. Thereafter, accused-appellant Sushil Kumar was also chased down. He was interrogated in the presence of public witnesses - Naresh Kumar and Sher Mohammad. On his information, sharp-edged weapon 'balkati' used in the commission of crime was recovered beneath the potato field near the transformer of his tube well. The recovered 'balkati' which was covered with stains of earth and blood was also taken into possession and its recovery memo was prepared in the presence of witnesses, which is on record and marked as Ex.Ka.3. Thereafter S.S. Chahar, second I.O. prepared the site plans of the places of recovery of both the recovered weapons. The site plans of recovered 'daranti' and 'balkati' are on record and marked as Ex.Ka.6 and Ex.Ka.7, respectively. Both the accused-appellants - Sarvesh Kumar and Sushil Kumar along with the aforesaid recovered weapons were taken to the police station, where an entry was made in the G.D. 13. Thereafter, investigation of the case was again handed over to J.P. Gupta, first I.O., who took police custody remand of accused-appellant Jugendra Sharma. The accused confessed his guilt before the police. On his information, knife alleged to have been used in the commission of crime was recovered on 11.01.1997 at about 02.00 P.M. by the police, in the presence of witnesses - Babu Ram and Dharma, beneath the sugarcane field of Shiv Charan. The recovered knife which was covered with stains of earth and blood was also taken into possession and its recovery memo was prepared, which is on record and marked as Ex.Ka.4. Thereafter, the accused and the recovered knife were taken to police station. The site plan of the place from where the knife was recovered was prepared, which is on record and marked as Ex.Ka.20. 14. S.S. Chahar, second I.O. examined public witnesses Naresh Kumar, Sher Mohammad, Satyaveer Saini and Hukum Chand on 15.01.1997 and Hasrat Ali and Laxmi Chand on 23.01.1997. 15. The report of Forensic Science Laboratory, Agra is on record and marked as Ex.Ka.21. 16. After completion of investigation, S.S. Chahar, second I.O. submitted charge-sheet against the accused under Sections 302 and 201 of IPC. The charge-sheet is on record and marked as Ex.Ka.8. 17. 15. The report of Forensic Science Laboratory, Agra is on record and marked as Ex.Ka.21. 16. After completion of investigation, S.S. Chahar, second I.O. submitted charge-sheet against the accused under Sections 302 and 201 of IPC. The charge-sheet is on record and marked as Ex.Ka.8. 17. Pursuant thereto, the learned Magistrate took cognizance against the accused. After complying with the provisions contained in Section 207 of the Code of Criminal Procedure, 1973 (for short 'Code'), he found case against the accused to be prima facie apposite for committing it to the sessions court. 18. Consequent thereupon, committal proceedings took place and the case was committed to the court of sessions, where it was registered as Sessions Trial No. 334 of 1997 (State v. Yogesh Kumar and others), whereafter it was made over for trial and disposal to the court of IInd Additional Sessions Judge, Muzaffarnagar. Accused were heard on point of charge and the trial court was prima facie satisfied with the case against them, therefore, it framed charges against the accused under Sections 302/34 and 201 of IPC. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried. 19. The prosecution, in order to prove the guilt of the accused and substantiate charge against them, examined as many as twelve prosecution witnesses, viz. informant Sunil Kumar Tyagi (P.W.1), Tara Chand (P.W.2), Satyaveer Singh (P.W.3), Brahma (P.W.4), Laxmi Chand (P.W.5), Naresh Kumar (P.W.6), Babu Ram (P.W.7), Dr. B.S. Chandhan (P.W.8), second I.O. - S.O. Shankar Singh Chahar (P.W.9), Dharampal Singh (P.W.10), first I.O. - S.I. J.P. Gupta (P.W.11) and Dharam Singh (P.W.12). 20. Except the abovenamed witnesses, no other testimony was adduced, either oral or documentary, therefore, evidence for the prosecution was closed and the statements of the accused was recorded under Section 313 of the Code, wherein they claimed that the witnesses have falsely deposed against them and that they have been falsely implicated in the present case on account of enmity. 21. In turn, the defence examined Satish Kumar (D.W.1) as defence witness. 22. The learned trial Judge after considering the case on its merit, passed the impugned judgment and order. 23. Feeling aggrieved by the order of learned trial Judge, the appellants have preferred this appeal. 24. 21. In turn, the defence examined Satish Kumar (D.W.1) as defence witness. 22. The learned trial Judge after considering the case on its merit, passed the impugned judgment and order. 23. Feeling aggrieved by the order of learned trial Judge, the appellants have preferred this appeal. 24. During pendency of this appeal, vide report of the Chief Judicial Magistrate, Muzaffarnagar dated 23.03.2017, this Court was apprised of the fact that appellant no. 4 - Jugendra Sharma had died, whereafter appeal in reference to Jugendra Sharma stood abated by this Court vide its order dated 29.11.2017. Hence, we now proceed to examine this case on its merits qua appellant nos. 1 - 3 - Yogesh Kumar, Sarvesh Kumar and Sushil Kumar. 25. Heard Sri Onkar Singh, learned counsel for the appellants, Sri Amit Daga, learned counsel for the respondent/informant and Sri Om Prakash-I, learned A.G.A. for the State of U.P. 26. Learned counsel for the appellants contended that it is a case of circumstantial evidence. There is no eye-witness of the occurrence. Statements of prosecution witnesses are not reliable. There was no motive for the accused-appellants to commit the murder of Subodh Tyagi. Moreover, there are major contradictions in the statements of the witnesses. The learned trial court without considering all these facts and without properly appreciating the material brought on record, has passed the impugned order of conviction, which is not sustainable and liable to set aside and as such, the appeal deserves to be allowed. 27. Per contra, learned A.G.A. and learned counsel for the respondent/informant contended that there is no illegality or perversity in the well-reasoned and well-discussed order of conviction passed by the court below. As such, the appeal, being devoid of merit, is liable to be dismissed. 28. The name of accused-appellants Sushil Kumar and Sarvesh Kumar came into light during the investigation, on the basis of statements of P.W.2 Tara Chand, Mahesh Tyagi and P.W.3 Satyaveer Singh before P.W.9 S.K. Chahar, second I.O. Tara Chand and Mahesh Tyagi had stated to the second I.O. that on the night of the occurrence at about 07:00 P.M. - 8:00 P.M., they had seen the deceased Subodh Tyagi along with accused-appellants - Sushil Kumar, Sarvesh Kumar, Yogesh Kumar and accused Jugendra Sharma, who were consuming liquor at the tube well of Yogesh Kumar. P.W.3 Satyaveer Singh has stated to the I.O. that on the day of the occurrence, in the night at about 09.00 P.M., he saw Subodh Tyagi with accused-appellants Sarvesh Kumar, Sushil Kumar, Yogesh Kumar and accused Jugendra Sharma, who were going towards the field from Yogesh's tube well. 29. Before we proceed to appreciate the evidence on record and the arguments advanced by learned counsel for the parties, it would be appropriate to discuss the principle laid down by Hon'ble Apex Court for such cases where prosecution is based solely on the circumstantial evidence. In the case of Padala Veera Reddy v. State of Andhra Pradesh and Others, (1989) Supp2 SCC 706 Hon'ble Apex Court held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351 : 1982 SCC (Cri) 431].)" 30. In reference to involvement of accused-appellants Sushil Kumar and Sarvesh Kumar, P.W.2 Tara Chand and P.W.3 Satyaveer Singh have been examined by the prosecution. Both the witnesses are residents of the same village - Alipur Aterna, Police Station - Budhana, District - Muzaffarnagar where the informant also resides. Both the witnesses have further stated that on the next day of the occurrence, they had gone out of the village, but they could not explain the time, the purpose and the particular place where they had gone on the next day of the occurrence. P.W.2 Tara Chand even could not explain the place where he had gone after the occurrence. P.W.2 Tara Chand even could not explain the place where he had gone after the occurrence. In his examination-in-chief, he had not stated the day on which he returned to the village, but in his cross-examination, he stated that in the evening of 24.12.1996, he returned to his residence. P.W.3 Satyaveer Singh has stated that on the next day of the occurrence, he had gone to Delhi. The time when he had gone to Delhi has not been explained by him. He has not explained the day on which he returned to his residence. The particular place and the person to whom he had gone to meet in Delhi is also not explained by him. P.W.2 Tara Chand was interrogated by the police on 25.01.1997, at a very belated stage. From the perusal of statement of both the witnesses, it appears that they have falsely stated that they had gone out of their village on the next date of the occurrence, only to explain the delay in recording their statements by the I.O. Second I.O. P.W.9 S.S. Chahar has admitted this fact that he had noted the statement of P.W.2 Tara Chand on 25.12.1996 and statement of P.W.3 Satyaveer Singh on 15.01.1997. Statement of witness Mahesh Tyagi was also recorded by him on 25.12.1996. But he has not explained as to why he did not record the statements of these material witnesses, who are residents of the same village where the occurrence had taken place, immediately after the occurrence. He has also not explained the reason for interrogating them at such a belated stage. 31. In Harbeer Singh v. Sheeshpal and others, (2016) 16 SCC 418 Hon'ble Apex Court held as under : 16. As regards the incident of murder of the deceased, the prosecution has produced six eyewitnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 CrPC. In the present case, the date of occurrence was 21-12-1993 but the statements of PW 1 and PW 5 were recorded after two days of incident i.e. on 23-12-1993. The evidence of PW 6 was recorded on 26-12-1993 while the evidence of PW 11 was recorded after 10 days of incident i.e. on 31-12-1993. In the present case, the date of occurrence was 21-12-1993 but the statements of PW 1 and PW 5 were recorded after two days of incident i.e. on 23-12-1993. The evidence of PW 6 was recorded on 26-12-1993 while the evidence of PW 11 was recorded after 10 days of incident i.e. on 31-12-1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the court. [See Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 : 1993 SCC (Cri) 435] ; [Mohd. Khalid v. State of W.B., (2002) 7 SCC 334 : 2002 SCC (Cri) 1734]; [Prithvi v. Mam Raj, (2004) 13 SCC 279 : 2005 SCC (Cri) 198] and [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385]. 17. However, [Ganesh Bhavan Patel v. State of Maharashtra, (1978) 4 SCC 371 : 1979 SCC (Cri) 1], is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 CrPC, although those witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. (See also [Balakrushna Swain v. State of Orissa, (1971) 3 SCC 192 : 1971 SCC (Cri) 313] ; [Maruti Rama Naik v. State of Maharashtra, (2003) 10 SCC 670 : 2004 SCC (Cri) 958] and [Jagjit Singh v. State of Punjab, (2005) 3 SCC 689 : 2005 SCC (Cri) 893].) Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case. 32. Accordingly, the testimonies of P.W.2 Tara Chand and P.W.3 Satyaveer Singh are not natural and it appears that they have been procured as witnesses of this case only to implicate accused-appellants Sarvesh Kumar alias Titu and Sushil Kumar. Accused-appellants Sarvesh Kumar and Sushil Kumar were arrested by the police on 26.12.1996. In the recovery memos of alleged weapons of assault 'daranti' and 'balkati' (Ex.Ka.2 and Ex.Ka.3), time of recovery of the alleged weapon is not mentioned. Accused-appellants Sarvesh Kumar and Sushil Kumar were arrested by the police on 26.12.1996. In the recovery memos of alleged weapons of assault 'daranti' and 'balkati' (Ex.Ka.2 and Ex.Ka.3), time of recovery of the alleged weapon is not mentioned. Public witnesses P.W.5 Laxmi Chand and P.W.6 Naresh Kumar and second I.O. Shanker Singh Chahar, who is also a witness of the alleged recovery, have not stated the time of the recovery of weapons on information of accused-appellants Sarvesh Kumar and Sushil Kumar in their statements before the court. From this fact, only this inference can be drawn that false recovery has been made only to implicate accused-appellants Sarvesh Kumar and Sushil Kumar in this case. Accordingly, on the basis of statements of P.W.2 Tara Chand and P.W.3 Satyaveer Singh and alleged recovery of weapons, accused-appellants Sarvesh Kumar and Sushil Kumar cannot be convicted for the offence punishable under Sections 302/34 and 201 of IPC. 33. Insofar as accused Jugendra and accused-appellant Yogesh Kumar are concerned, P.W.1 informant Sunil Kumar Tyagi and his servant P.W.4 Brahma have stated that on 22.12.1996 at about 04.00 P.M., they took Subodh Tyagi with them from his residence. P.W.1 Sunil Kumar Tyagi further stated that he and his uncle Shagun Chand had seen deceased Subodh Tyagi with Yogesh and Jugendra at about 06.00 P.M., who were sitting near Yogesh's tube well. When Subodh did not return till 10.00 P.M., they started searching Subodh. They searched Subodh till 11:00 P.M. - 12:00 midnight. Even so, his whereabouts could not be known. On the next day, early in the morning, they resumed their search and went to the tube well of accused Yogesh. However, the dead body of the deceased was recovered by them at about 10.00 A.M. in the sugarcane field of Shiv Charan. 34. P.W.3 Satyaveer Singh has admitted in his cross-examination the sugarcane field of Shiv Charan Tyagi is situated at a distance of 200 gaj' (200 square yards) from the tube well of accused-appellant Yogesh. P.W.1 informant Sunil Kumar Tyagi has also admitted in his cross-examination that dead body of deceased Subodh was found in a 'nali' (a channel which runs from tube well to the field to supply water for irrigation), running towards Yogesh's tube well. Sunil Kumar Tyagi had seen the deceased in the evening at about 06.00 P.M. at Yogesh's tube well with the accused. Sunil Kumar Tyagi had seen the deceased in the evening at about 06.00 P.M. at Yogesh's tube well with the accused. Accordingly, it was very much natural for informant and his companions to search for the dead body of deceased Subodh Tygai in the vicinity of the tube well. From the statement of P.W.1 informant Sunil Kumar, it appears that he was suspicious about some mishappening with Subodh. Only on suspicion of some mishap with Subodh, informant Sunil Kumar Tyagi and his companions had started searching Subodh Tyagi in the night and searched for him till 11:00 P.M. - 12 midnight. P.W.1 informant Sunil Kumar Tyagi further stated that in the night of 22.12.1996, they had also gone at the residence of accused Yogesh Kumar and Jugendra Sharma to search for Subodh, but they were not present there. The fact of accused Jugendra and Yogesh being not present at their residence in the night is a material fact, but this fact is not mentioned in the first information report. P.W.1 informant Sunil Kumar Tyagi stated before the court that he has narrated this fact to the first I.O. P.W.11 J.P. Gupta. But I.O. J.P. Gupta has stated in his cross-examination that informant Sunil Kumar Tyagi had not narrated him that he had gone at the residence of accused-appellant Yogesh Kumar and that accused Yogesh Kumar, Jugendra Sharma and Subodh were not present there. Accordingly, the statement of P.W.1 informant Sunil Kumar Tyagi before the court is contradictory to the statement recorded by the I.O. under Section 161 of the Code. From these facts, it infers that the statement of P.W.1 informant Sunil Kumar Tyagi stated before the court that he and his companions had gone at the residence of Yogesh Kumar in the night has been made only to strengthen the prosecution version, which is not reliable. 35. If informant Sushil Kumar Tyagi and his companions had started to search for Subodh Tyagi early in the morning on 23.12.1996, then it was very much possible that dead body of Subodh might have been found early in the morning from the sugarcane field of Shiv Charan Tyagi situated near the tube well. 35. If informant Sushil Kumar Tyagi and his companions had started to search for Subodh Tyagi early in the morning on 23.12.1996, then it was very much possible that dead body of Subodh might have been found early in the morning from the sugarcane field of Shiv Charan Tyagi situated near the tube well. P.W.1 informant Sunil Kumar and P.W.4 Brahma have further made improvements in their statements before the court and stated that when accused Yogesh Kumar and Jugendra Sharma had come to their residence to take away Subodh with them, Subodh had initially declined to go with them, but after persuasion, he went with them. This fact is neither narrated in the first information report nor they have stated this fact in their statements recorded under Section 161 of the Code to the I.O., which not only casts a doubt on their testimonies, but it also appears that they have made this improvement only to strengthen the version of the prosecution. 36. Although motive is not very much material in a case of direct evidence, if offence is proved, the accused cannot be acquitted on the ground that motive of the accused to commit the offence is not proved. But in a case of circumstantial evidence like the present one, motive is very much material to come to the right conclusion. In the present case, in the first information report, no motive was assigned to the accused-appellants to commit the crime. Later on, P.W.1 informant Sunil Kumar Tyagi has made an improvement in his statement before the court, stating that there was enmity between deceased Subodh Tyagi and the accused, but he could not explain the cause of enmity between them. Even in his statement under Section 161 of the Code, he has not stated that there was any enmity between deceased Subodh Tyagi and the accused. Accordingly, absence of motive for the accused to commit the offence also casts a doubt on the prosecution version. 37. Although accused Jugendra had died on 11.01.1997, it is alleged that on his information, knife alleged to have been used in the commission of the crime was recovered by the police, but the police personnel Ramendra Singh and Guman Singh, who have recovered the alleged knife, have not been examined. 37. Although accused Jugendra had died on 11.01.1997, it is alleged that on his information, knife alleged to have been used in the commission of the crime was recovered by the police, but the police personnel Ramendra Singh and Guman Singh, who have recovered the alleged knife, have not been examined. However, public witness Babu Ram in whose presence alleged recovery has been made, stated before the court that in his presence, accused Jugendra confessed his guilt before the police and stated that he has concealed the knife used in the commission of the crime in sugarcane field. From the perusal of recovery memo (Ex.Ka.4), it is apparent that no confessional statement has been made by accused Jugendra before the police in the presence of witness Babu Ram. Confessional statement of Jugendra had been made before the police and thereafter, the police took him out of the lockup and Babu Ram met the police on the way. Only the knife alleged to have been used in the commission of the crime was recovered in his presence. Accordingly, Babu Ram is not a reliable witness. There is also no evidence to show that murder had been caused by the alleged recovered knife. Accordingly, on the basis of this recovery, accused Jugendra cannot be held guilty for committing the murder of deceased Subodh Tyagi. 38. P.W.1 informant Sunil Kumar Tyagi and P.W.4 Brahma stated before the court that on the day of the occurrence, that is to say, on 22.12.1996 at about 04.00 P.M., accused Yogesh and Jugendra came at the residence of informant Sunil Kumar and took Subodh Kumar with him. On this fact, witnesses Sunil Kumar and Brahma have not been cross-examined by counsel for the accused, but only because these two witnesses have not been examined by the counsel for the accused, this fact shall not be presumed as a gospel truth. The veracity of this fact shall be evaluated on the basis of facts and circumstances of the case. If it does not inspire confidence of the court about the truthfulness of the statement, the accused cannot be convicted on the basis of this statement, even if witnesses have not been cross-examined on this fact. 39. In Harbeer Singh's case, Hon'ble Apex Court held as under : 11. If it does not inspire confidence of the court about the truthfulness of the statement, the accused cannot be convicted on the basis of this statement, even if witnesses have not been cross-examined on this fact. 39. In Harbeer Singh's case, Hon'ble Apex Court held as under : 11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Vide [Kali Ram v. State of H.P., (1973) 2 SCC 808 : 1973 SCC (Cri) 1048]; [State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 : 2003 SCC (Cri) 1965]; [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] ; [Upendra Pradhan v. State of Orissa, (2015) 11 SCC 124 : (2015) 4 SCC (Cri) 309] and [Golbar Hussain v. State of Assam, (2015) 11 SCC 242 : (2015) 4 SCC (Cri) 384].) 40. It is well-settled in law that no person can be convicted merely on the basis of suspicion, no matter howsoever strong it may be. 41. All these facts have not been considered by the trial court while recording conviction against and awarding sentence to the appellants. In this case, a decisive conclusion cannot be drawn that either of the accused or any of them had committed the murder of deceased Subodh Tyagi. 42. For the reasons aforesaid, after hearing the arguments of learned counsel for parties on merit and after going through the material brought on record and impugned judgment and order, we are of the considered view that prosecution has failed to prove guilt of the accused beyond all reasonable doubt. The learned trial court while recording conviction against the appellant failed to properly appreciate the evidence, facts and circumstances of the case and recorded erroneous finding of conviction, which cannot be sustained. Accordingly, appellants - Yogesh, Sarvesh and Sushil deserve to be given benefit of doubt. 43. The learned trial court while recording conviction against the appellant failed to properly appreciate the evidence, facts and circumstances of the case and recorded erroneous finding of conviction, which cannot be sustained. Accordingly, appellants - Yogesh, Sarvesh and Sushil deserve to be given benefit of doubt. 43. In the result, the appeal succeeds and the same stands allowed. Conviction and sentence of appellants - Yogesh Kumar, Sarvesh Kumar and Sushil Kumar are hereby set aside and they are acquitted. 44. All the appellants are on bail. They need not surrender. Their bail bonds stand cancelled. 45. Let a copy of this order be certified to the court below for the purposes of intimation and necessary compliance. The lower court's recorded is directed to be remitted back to the court concerned.