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2019 DIGILAW 132 (ALL)

Baijnath v. State of U. P.

2019-01-17

B.K.NARAYAN, GHANDIKOTA SRI DEVI

body2019
JUDGMENT : 1. Heard Sri Pramod Kumar, learned Counsel for the appellant and Smt. Manju Thakur, learned AGA-I for the State. 2. The appellant Baijnath has approached this Court being aggrieved by the judgment and order dated 27.10.1986 passed by Sessions Judge, Etawah in S.T. No. 275 of 1987, State vs. Baijnath, under section 364/302 IPC, P.S. Dibiyapur, District Etawah, by which he has been convicted and sentenced to imprisonment for life under section 364/302 I.P.C. respectively. 3. A written report (Ex. Ka.11) was given by PW-2 Amresh Chandra Tripathi at P.S. Dibiyapur, District-Etawah on 1.6.1987 at about 7.20 p.m. stating therein that an unidentified dead body of a boy gagged by tying a towel across his mouth, who was wearing a shirt, vest and pant which were bloodstained, was found lying in the premises of pipeline godown situate at a distance of about two furlongs in the west of railway crossing at the northern limit of village Lakhanpur, between two piles of pipes. On the basis of the written report Ex. Ka.11, as Case Crime No. 63 under Section 302/201 IPC, was registered against unknown persons. 4. The investigation of the case was taken over by PW-8 S.I. Ramesh Chandra, who reached the place of occurrence on the same day and after inspecting the same, prepared its site plan Ex.Ka.14. He also collected plain and blood-stained sand from the place of occurrence and prepared the recovery memo thereof Ex.Ka.15. He also seized the towel and shoes of the deceased which were marked and produced before the Trial Court as material Ex.Ka.16. Thereafter, he conducted the inquest on the body of the deceased and prepared panchayatnama Ex.Ka.17, photo nash Ex.Ka.18, Challan nash Ex.Ka.19, letter addressed to Superintendent, District Hospital, Etawah Ex.Ka.20, letter for picking up of finger prints from the place of occurrence Ex.Ka.21 and recovery memo of towel and shoes Ex.Ka.16. Thereafter, he got the dead body of the deceased sealed and dispatched for conducting postmortem. Envelope containing the letter paper No. 9K which was recovered from the possession of the deceased was marked Ex.Ka.12. The post-mortem on the body of the deceased was conducted on 2.6.1987 by PW-1 Dr. S.C. Gupta at 4.00 pm who also prepared his postmortem report Ex.Ka.10. Since the dead body could not be identified, its photographs were taken by one Shafi S/o Chhote Khan R/o P.S. Kakrahi Bazar, Dibiyapur Prakash Photo Studio. The post-mortem on the body of the deceased was conducted on 2.6.1987 by PW-1 Dr. S.C. Gupta at 4.00 pm who also prepared his postmortem report Ex.Ka.10. Since the dead body could not be identified, its photographs were taken by one Shafi S/o Chhote Khan R/o P.S. Kakrahi Bazar, Dibiyapur Prakash Photo Studio. The letter Ex.Ka.12 which was recovered from the possession of the deceased, indicated that he was a resident of village Amwaha, hence a copy of the said letter alongwith the photograph of the deceased was dispatched to P.S. Amwaha for identification and another photograph of the deceased was sent to the D.C.R.S. police office Etawah for being published in newspapers. 5. On 26.6.1987 PW-6 Chetram alongwith Shambhu Dayal, Babu Ram, Ganpat etc, all residents of village Amwaha, District Muraina, Madhya Pradesh reached P.S. Dibiyapur. PW-6 Chetram identified the photograph and the clothes of the deceased as that of his son Ram Awtar and expressed his suspicion that his son had been murdered by the appellant Baij Nath. During the investigation, it came to light that the appellant Baijnath had made an extrajudicial confession before PW-3 Genda Lal and PW-4 Bhagri Lal, that he had committed murder of the deceased. After 3.7.1987, the investigation of the case was transferred to PW-10 Prem Narayan Singh, who after completing the same, submitted charge-sheet' against the appellant, Ex.Ka.31 before C.J.M. Etawah. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions. C.J.M. Etawah, committed the accused for trial to the Court of Sessions Judge, Etawah, where it was numbered as S.T. No. 275 of 1987 who framed charge under section 364, 302 IPC against the appellant on the basis of the material collected during the investigation after affording opportunity of hearing to the prosecution as well as the accused-appellant. The accused-appellant abjured the charge and claimed trial. The prosecution in order to prove the charge framed against the appellant, examined as many as eleven witnesses out of whom PW-1 Dr. The accused-appellant abjured the charge and claimed trial. The prosecution in order to prove the charge framed against the appellant, examined as many as eleven witnesses out of whom PW-1 Dr. S.C. Gupta, who had conducted the postmortem on the body of the deceased, prepared and proved his post-mortem report Ex.Ka.10, PW-8 Inspector Ramesh Chandra, the Investigating Officer of the case who had proved the check F.I.R. Ex.Ka.13 which was in the handwriting of Satya Narayan Pandey and inspected the place of occurrence and prepared the site plan, recovered plain and blood stained sand, towel and shoes from the place of occurrence, prepared and proved the recovery memos of the aforesaid articles Ex.Ka.16 and Ex.Ka.17, had after holding the inquest, prepared the inquest report and other related documents Photo nash Ex.Ka.18, Challan nash Ex.Ka.19, letter addressed to Superintendent District Hospital, Etawah Ex.Ka.20, letter for picking up fingerprints from the crime scene Ex.Ka.21, recovery memo Ex.Ka.15 and Ex.Ka.16, PW-9 Satya Narayana Pandey who had prepared and proved check F.I.R. Ex.Ka.13 and the relevant G.D. Entry, vide rapat No. 11, time 7.20 am dated 1.6.1987 Ex.Ka.22 and the letter written by him to the S.S.P. Etawah for publishing the photograph of the deceased Ex.Ka.23, PW-10 Prem Narayan Singh, the second Investigating Officer of the case who after completing the investigation had filed charge-sheet against the accused-appellant Ex.Ka.31 and PW-11 Mohd. Shafi, who had photographed the unidentified dead body found near Dibiyapur Railway Station between the two piles of pipes and proved the same as Ex.Ka.32, were produced as formal witnesses, while PW-2 informant Amresh Chandra Tripathi, PW-5 Pratap, PW-3 Genda Lal, PW-4 Bhagri Lal, PW-5 Pratap and PW-6 Chetram were examined as witnesses of fact. After the recording of the prosecution, evidence was closed, the accused-appellant was examined under section 313 Cr.P.C. he denied the prosecution case as false and pleaded innocence alleging false implication. The accused-appellant did not examine, any witnesses in defence. 6. The learned Sessions Judge, Etawah after hearing the learned Counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellant under section 364/302 IPC and awarded aforesaid sentences to him. 7. Hence, this appeal. 8. The accused-appellant did not examine, any witnesses in defence. 6. The learned Sessions Judge, Etawah after hearing the learned Counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellant under section 364/302 IPC and awarded aforesaid sentences to him. 7. Hence, this appeal. 8. It is contended by the learned Counsel for the appellant that the instant case is based upon circumstantial evidence and the prosecution having miserably failed to establish and prove the chain of circumstances pointing at the guilt of the accused-appellant alone and to show that the evidence on record admits only one hypothesis i.e. the guilt of the appellant, neither the recorded conviction of the appellant, nor the sentences awarded to him can be sustained and are liable to be set aside. 9. He next contended that the last seen evidence of PW-5 Pratap, PW-6-Chetram and PW-7 Ramdas is not sufficient to hold the appellant guilty for the murder of the deceased or to fasten the guilt on him in view of the admitted case of the prosecution that the deceased had allegedly left his house with the accused-appellant on 28.5.1987 and the post-mortem report of the deceased which indicates that the approximate death of the deceased to be sometimes on 31.5.1987. 10. Assailing the impugned judgment and sniping the prosecution story and evidence and castigating it further, it was vehemently argued on behalf of the appellants that after the dead body of the deceased was identified by PW-6 Chetram as that of his son after about one month of the recovery of the body of the deceased, he in consultation with the police, named the appellant because of a lurking suspicion in his mind which the prosecution miserably failed to substantiate by leading any cogent evidences that the accused-appellant was having an illicit relation with his daughter-in-law Guddi, wife of the deceased who was objecting to the same and with a view to eliminate him from his path, the appellant after taking the deceased from his house on the pretext of getting him employed in a band party, committed his murder. He further argued that the failure on the part of PW-6-Chetram to lodge any missing report or F.I.R. after his son leaving his home with the appellant had gone missing clearly indicates that the deceased had neither left his home with the appellant, nor he was seen leaving his house by PW-6 Chetram and PW-7 Ramdas, otherwise a missing report would certainly have been lodged by PW-6-Chetram, when his son had failed to return after allegedly leaving his house for about a month if the prosecution case that appellant who was having illicit relation with deceased's wife and was planning to eliminate him was true. This omission on their part clinchingly proves that the appellant was falsely implicated in the present case by him on the basis of suspicion alone. The prosecution having miserably failed to prove the motive for the appellant to commit the crime and the circumstances from which the conclusion of guilt could be drawn, neither the recorded commission of the appellant, nor the sentences awarded to him can be sustained and are liable to be set aside. 11. Per contra, Smt. Manju Thakur, learned AGA-I appearing for the State submitted that it being proved from the evidence of PW-6 Chetram and PW-7 Ramdas, that the deceased had left his house with the accused-appellant on 28.5.1987 at about 2.00 pm and there being no evidence on record indicating that the deceased was seen alive thereafter, what had happened to the deceased after he left his house with the accused-appellant was a fact which was within the special knowledge of the accused-appellant and he having failed to come up with any explanation with regard to circumstances in which the deceased had been murdered, the Trial Court did not commit any illegality or infirmity in convicting the appellant for kidnapping and murdering the deceased and awarding life sentence to him. It was further proved that the towel with which the deceased was gagged belonged to the accused-appellant, which further indicated at the complicity of the accused-appellant. She lastly submitted that neither the recorded conviction of the appellants, nor the sentence awarded to him suffer from any illegality or infirmity requiring any interference by this Court. Hence, this appeal which lacks merit is liable to be dismissed. 12. She lastly submitted that neither the recorded conviction of the appellants, nor the sentence awarded to him suffer from any illegality or infirmity requiring any interference by this Court. Hence, this appeal which lacks merit is liable to be dismissed. 12. We have considered the arguments advanced by both the sides in the light of oral and documentary evidence and summated and collated the facts and circumstances of the appeal. Undisputedly, the conviction of the appellant in the instant case is based upon circum-stantial evidence. There is no direct evidence on record indicating that the appellant had, after taking away the deceased from his house, committed his murder. 13. Before proceeding to examine whether the circumstances from which the conclusion of guilt is to be drawn, have been fully established and the circumstances concerned are consistent only with the hypothesis of the guilt of the appellant, we consider it appropriate to first examine the law on the issue. 14. The principles how the circumstances be considered and weighed are well settled and summed up by the Apex Court in Sharad Birdhi Chand Sarda vs. State of Maharashtra, 1984 (4) SCC 116 as under: "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade and Another vs. State of Maharashtra, 1973 (2) SCC 793 where the observations were made: (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 15. In Sujit Biswas vs. State of Assam, 2013 (82) ACC 467 (SC) the Apex Court ruled that in judging the culpability of an accused the circumstance adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused and observed as here under: "59. A reference in the passing however to the of quoted decision in Sharad Birdhichand Sarda (supra) construed to be locus classicus on the relevance and decisiveness of circumstantial evidence as a proof of the charge of a criminal offence would not be out of place. The relevant excerpts from paragraph 153 of the decision is extracted herein below. "153. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused - they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. *** *** *** (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 16. In Dhan Raj @ Dhand vs. State of Haryana, 2014 (85) ACC 932 (SC) (Hon. Ghose, J.) while dwelling on the imperatives of circumstantial evidence ruled that the same has to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture. 17. The Apex Court in paragraph 58 of its judgment in Jose @ Pappachan vs. Sub-Inspector of Police, Koyilandy, 2016 (97) ACC 385 (SC) referred to the following extracts from the Treatise on the Law of Evidence "Fifth Edition by Ian Dennis at page 483." 58. Addressing this aspect, however, is the following extract also from the same treatise "The Law of Evidence" fifth edition by Ian Dennis at page 483: "Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, fact finders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not "merely fanciful" it must follow that there is a reasonable doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. It is sufficient to direct simply that the burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure." 18. The legal proposition which emerges out from the reading of the aforesaid authorities is where a case is based upon circumstantial evidence the same has to be of highest order to satisfy the test of proof in a criminal prosecution and as such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture. 19. We now proceed to scrutinize whether the circumstances which weighed with the Trial Court are conclusive in nature and have tendency which could be considered against the appellants in the background of the evidence adduced by the prosecution and the defence and to see if those circumstances bring home the case of the prosecution. 19. We now proceed to scrutinize whether the circumstances which weighed with the Trial Court are conclusive in nature and have tendency which could be considered against the appellants in the background of the evidence adduced by the prosecution and the defence and to see if those circumstances bring home the case of the prosecution. 20. Record shows that the Trial Court relied upon the following circumstances: 1. In order to possess Guddi, wife of the deceased and in order to remove him from his way, the appellant took the deceased Ram Awtar with him on 28.5.1987 on the promise of getting a job for him in his band party which would fetch him Rs. 100/- per day. 2. The recovery of appellant's towel from the place near the body of the deceased material Ex. Ka.7 and the letter written by him Ex.Ka.12 purporting to be deceased suicide note purporting to be in deceased's handwriting from the possession of the deceased and his refusing to acknowledge the ownership of the aforesaid articles deliberately. 21. In order to prove the first circumstance, the prosecution examined PW-5 Pratap Singh, PW-6 Chetram, father of the deceased and PW-7 Ramdas, brother of the deceased. 22. To prove the aforesaid fact, PW-5, Pratap Singh stated before the Trial Court that about one and a half year before, the house of the Babu Lal Seth was being constructed and he was working there as a mason. He had seen Ram Awtar and accused Baij Nath and when he enquired from Ram Awtar, he had told him that he was going With Baij Nath in search of employment whereafter, he had never seen Ram Awtar alive and later on he came to know that Baij Nath had been killed. 23. PW-6 Chet Ram deposed before the Trial Court that about ten years back, the appellant Baij Nath had taken his son who was earning his livelihood as a labourer and who occasionally also earned some money by playing musical instruments, alongwith him and another unknown person. 24. Appellant had asked deceased Awtar that how much he was earning by playing musical instruments on which he had told him that he got Rs. 30 per day, Baij Nath then told his son that he would get him job in a band party which would fetch him Rs. 100 per day. 24. Appellant had asked deceased Awtar that how much he was earning by playing musical instruments on which he had told him that he got Rs. 30 per day, Baij Nath then told his son that he would get him job in a band party which would fetch him Rs. 100 per day. Then his son Ram Awtar went with Baij Nath. When Ram Awtar had gone with the appellant Baij Nath, his wife and his sons Ram Prakash and Ram Das were also present in the house and on receiving the news about the death of Ram Awtar, his wife had become seriously ill and was not in a position to walk. After his son had gone, the police had come to his house and shown him a photograph, which he had recognized immediately as that of his son Ram Awtar and then the police of Amwaha took him to Dibiyapur. 25. After seeing the photograph of his son, he was convinced that he had died. When his son had left his house, he was wearing a pant, shirt, vest and shoes. He identified the pant, shirt, vest, underwear, handkerchief and shoes of the deceased which were produced before him during the recording of his evidence after being taken out from a sealed bundle as those of his son Ram Awtar which were marked as material Ex. Ka.1, Ex. Ka.2, Ex. Ka.3, Ex. Ka.4, Ex. Ka.5 and Ex. Ka.6. On seeing the towel Ex. Ka.7, he deposed that the towel belonged to Baij Nath as he had seen the appellant with Ex. Ka.7. He knew Genda Lal and Bhagri Lal who had told him that the appellant Baij Nath had confessed before them that he had committed the murder of Ram Awtar. Guddi w/o. Ram Awtar was having illicit relations with Baij Nath. Baij Nath wanted to keep Guddi with him and it was for that reason that he had killed Ram Awtar. After the death of Ram Awtar, Guddi had disappeared and her whereabouts were not known. 26. PW-7 Ramdas in his examination-in-chief recorded during the trial stated that his wife had told him that Baij Nath was having an illicit affair with Guddi @ Maya Bai. His wife had also told him that she had overheard Baij Nath telling Guddi that he would get Ram Awtar employed so that she may be able to live with him. PW-7 Ramdas in his examination-in-chief recorded during the trial stated that his wife had told him that Baij Nath was having an illicit affair with Guddi @ Maya Bai. His wife had also told him that she had overheard Baij Nath telling Guddi that he would get Ram Awtar employed so that she may be able to live with him. He had told his brother Ram Awtar about his wife's illicit relations with Baij Nath on which Ram Awtar had quarrelled with Baij Nath. However, after few months, their relations had again become cordial. Ram Awtar's wife used to go to the house of Baij Nath for fetching water. His wife had told him that once when Ram Awtar's wife Guddi was in the house of Baij Nath, his niece Maya had closed the doors. When the aforesaid incident was communicated by his wife to Ram Awtar, on being questioned by Ram Awtar, Guddi had told him that Baij Nath's niece had closed the door from outside mischievously. Few days later, Baij Nath had promised Ram Awtar that he would get him employed somewhere. About one year and six months back on 28.5.1986 at about 2.00 P.M. Baij Nath had come to his house with another person who was not known to him and his brother had gone with him and thereafter, he had not seen him alive. When about 20-25 days later police personnel of Police Station Amwaha came to his house he and his wife told them that Ram Awtar was missing and had gone somewhere. Then they had shown a photograph to him and asked him whether he knew the person in the photograph on which he told the police that the photograph was that of his brother. Thereafter, the police personnel returned. The photograph was shown to him by the police in the presence of his father and mother. When his brother Baij Nath had left his house, he was wearing a pant, shirt and black shoes. Thus, as far as the evidence of PW-7 Ramdas Tripathi on the point of the appellant having illicit relationship with Guddi, W/o. deceased is concerned, the same is hearsay and hence, inadmissible. Both PW-6 and PW-7 have deposed that deceased had left his home on 28.5.1986 at 2.00 p.m. with appellant. 27. Thus, as far as the evidence of PW-7 Ramdas Tripathi on the point of the appellant having illicit relationship with Guddi, W/o. deceased is concerned, the same is hearsay and hence, inadmissible. Both PW-6 and PW-7 have deposed that deceased had left his home on 28.5.1986 at 2.00 p.m. with appellant. 27. From the evidence of PW-6 Chetram, it follows that the appellant had illicit relationship with the wife of the deceased and he wanted to keep her. However, it cannot be presumed from the facts deposed by PW-6 and PW-7 that the appellant had committed the murder of the deceased and the accusation made by PW-6 in his evidence that since the appellant wanted to keep Guddi with him, he had committed the murder of the deceased is based upon suspicion. It cannot be inferred positively from the evidence of PW-6 that it was the appellant who had committed the murder of the deceased. The evidence of the PW-3 Genda Lal and PW-4 Bhagri Lal tendered before the Trial Court that the appellant had made an extra-judicial confession before them that he had committed the murder of Ram Awtar was rightly disbelieved by the Trial Court. The wife of PW-7 Ramdas, whose evidence would have been the best piece of evidence to prove the fact that the deceased's wife was having an illicit relations with the appellant, was not produced by the prosecution during the trial for the reasons best known to. the prosecution. Although from the evidence of PW-6 and PW-7, it is proved that the deceased had left his house with the appellant at about 2.00 P.M. and it is true that once the last seen theory comes into play, onus is on the accused to explain as to what happened to the deceased after the accused and deceased were last seen alive. However, the Apex Court in Shyam Lal G. vs. State of West Bengal, (2012) 7 SCC 646 has explained that there must be reasonable proximity of time between the doer the accused and deceased were last seen together and the time when the fact of deceased having expired comes to light. The Apex Court has further explained that what would be reasonable has to be determined in the facts and circumstances of each case. 28. The Apex Court has further explained that what would be reasonable has to be determined in the facts and circumstances of each case. 28. In the present case, there is no direct evidence on record on the point of time at which the deceased had died. The only evidence on record indicating the approximate time of the death of deceased is the statement of PW-1 Dr. S.C. Gupta, who had conducted autopsy on the body of the deceased and prepared his post-mortem report Ex. Ka.2. PW-1 in his examination-in-chief recorded before the Trial Court deposed that he had conducted post-mortem on the body of the deceased who was about twenty years old. The body was decomposed. He had noted following ante-mortem injuries on the body of the deceased: 1. Stab wound on Rt. Side upper part of abdomen 7 cm. x abdomen cavity 8 cm. above from at 2 O' clock position. 2. Stab round on Rt. Lateral surface of abdomen 3 cm. x 1.5 cm. cavity deep 2 cm away from injury No. 1 3. Stab round on Rt. Upper part of abdomen 9 cm. x 2 cm. x cavity deep, 10 cm away from injury No. 1 4. Stab round on middle of back in midline Rt. Side about 4 cm. x 2 cm. x cavity deep. 29. He deposed that death was a result of shock and haemorrhage, due to injuries sustained. He further deposed the death of the deceased was not suicidal. He could have died on 30/31.5.1987 or 1.6.1987. 30. According to the prosecution case, the deceased had gone with the appellant on 28.5.1987 at about 2.00 pm. According to the medical evidence on record, the earliest the deceased could have died was between 30/31.5.1987 and 1.6.1987. The body of the deceased was found on 1.6.1987. Thus, the deceased died two and a half days after leaving his house with the appellant and hence, there does not appear to be a reasonable proximity of time when the accused and the deceased were last seen together and the time when the fact of deceased having expired came to light as well as the approximate time of death of the deceased. There is yet another reason for us holding that PW-6 Chetram and PW-7 Ramdas are not wholly reliable witnesses. There is yet another reason for us holding that PW-6 Chetram and PW-7 Ramdas are not wholly reliable witnesses. There is absolutely no explanation forthcoming from the side of the prosecution as to why PW-6 Chetram had not either lodged a missing report, or an F.I.R. within a reasonable time after his son had left with the appellant despite being fully aware of the fact, as deposed by both PW-6 Chetram and PW-7 Ramdas before the Trial Court that the appellant was having an affair with the wife of the deceased and wanted to keep her with him, had not returned back to his house despite lapse of about one month from the date of his leaving his house. 31. It is neither the case of the prosecution that the appellant had taken the deceased with him to any other district for getting him employed as an instrument player in a band party, nor it is the case of the prosecution that at the time of leaving his house, the deceased had told his father that he would be away indefinitely. Omission on the part of PW-6 and PW-7 to stop or dissuade the deceased from going with the appellant who was alleged to be illicitly involved with his wife and wanted to keep her is also opposed to normal human conduct under such a situation. Thus, we do not find that the evidence of PW-6 and PW-7 on the point of the appellant having an affair with the deceased's wife is trustworthy and the prosecution has failed to prove the motive for the appellant to commit the murder of the deceased. 32. Coming to the second circumstance, relied upon by the prosecution for establishing the guilt of the appellant namely the recovery of a towel from the place near the spot where the body of the deceased was found which the prosecution claimed to belong to the appellant and the letter recovered from his pocket Ex. 32. Coming to the second circumstance, relied upon by the prosecution for establishing the guilt of the appellant namely the recovery of a towel from the place near the spot where the body of the deceased was found which the prosecution claimed to belong to the appellant and the letter recovered from his pocket Ex. Ka.2 suicide note purporting to be in the handwriting of the deceased, but which was actually written by the appellant and his denial that the towel belonged to him and that the suicide note was in his handwriting is concerned, we find that on the point of ownership of the towel we have material Exhibit Ka-7 the evidence of PW-6 Chetram alone on the record who has merely stated on page 36 of the paper book in his examination-in-chief upon being shown the towel Ex. Ka.6, which was recovered from the spot near the place from where the body of the deceased was found, that the towel belonged to the appellant. PW-6 has not explained how he knew that the towel belonged to the appellant. He has not indicated any special feature of the towel which could have enabled him to recognize and identify the same as that of the appellant. The vague statement made by PW-6 in his examination-in-chief to the effect that towel recovered from the place where the dead body of the deceased was found belonged to the appellant as he had seen him with it is not sufficient to fasten the ownership of the towel with the appellant. 33. Same accusation is with regard to the handwriting on the suicide note which was recovered from the pocket of the shirt which the deceased was wearing at the time of recovery of his dead body which according to the prosecution was in the handwriting of the appellant and not in the writing of the deceased which the appellant had forged to give the murder the colour of suicide. The finding recorded by the Trial Court that the handwriting on the suicide note was that of the appellant, is not based upon any evidence. The finding recorded by the Trial Court that the handwriting on the suicide note was that of the appellant, is not based upon any evidence. There is nothing on record which may indicate that any opinion with regard to the handwriting on the suicide note was sought from a handwriting expert or there was any specimen of admitted handwriting of the appellant on record before the Trial Court with which the Trial Judge could have compared the handwriting on the suicide note and come to the conclusion that the suicide note was in the hand-writing of the appellant, especially in view of the fact that the appellant in his statement recorded under section 313 Cr.P.C. had denied that the suicide note was in his handwriting. Thus, the Trial Judge in our opinion relied upon surmises and conjectures in holding that the suicide note was written by the appellant. 34. Thus upon a wholesome consideration of the facts and circumstances of the case and the critical evaluation and appraisal of the evidence on record, both oral as well as documentary, we do not find that the prosecution has been able to prove its case against the appellant beyond all reasonable doubts and hence, the appellant is entitled to benefit of doubt. 35. The appeal is accordingly allowed. The impugned judgment and order is hereby set aside. 36. The appellant is on bail. He need not surrender. His bail bonds are cancelled and his sureties discharged. 37. However, the appellant shall comply with the mandatory requirement of Section 437-A Cr.P.C. within two months from today.