JUDGMENT Hon'ble Ravindra Maithani, J. (Oral) Challenge in this appeal is judgment and order dated 27.11.2013, passed in Sessions Trial No.85 of 2009, State vs. Devendra Singh and two others, by the Court of learned 1st Additional Sessions Judge, Nainital. By it, the appellants have been convicted under Sections 302 read with section 34 IPC, 120-B read with section 34 IPC and section 201 read with section 34 IPC and sentenced as hereunder:- (i) Under section 302 read with section 34 IPC imprisonment for life with a fine of Rs.5,000/- each. In default of payment of fine to undergo simple imprisonment for a further period of six months. (ii) Under section 120-B read with section 34 IPC imprisonment for life. (iii) Under section 201 read with section 34 IPC three years rigorous imprisonment with a fine of Rs.2000/- each. In default of payment of fine to undergo simple imprisonment for a further period of three months. 2. The prosecution story briefly stated is as hereunder:- On 20.04.2009 two dead bodies; one belonging to a female, aged about 30 years and another a baby boy aged 2 years were located in Patta Pani, Belparao within Police Station Ramnagar, District Nainital. Police officer reached at the place. The inquests were prepared. A diary was located near the dead bodies. There were some telephone numbers written on this diary. When those numbers were contacted it was revealed that the dead bodies belonged to a Rajabeti wife of appellant Devendra Singh and her son Golu. Post mortem of both the dead bodies were conducted. According to doctor, the cause of death was strangulation. On 21.04.2009 brother of deceased Rajabeti lodged a report at Police Station. Based on which, the case was lodged and investigation carried out. Investigating officer prepared the site plan and after investigation submitted charge sheet against the appellants and their father Dhaniram. Cognizance taken and case was committed to the court of sessions for trial. On 18.03.2010 charges under Section 302 read with Section 34 IPC, Section 201 read with Section 34 IPC and 120-B read with Section 34 IPC were framed against the appellants Devendra Singh, Vipin Kumar and their father Dhaniram. To which, they denied and claimed trial. 3. Cognizance taken and case was committed to the court of sessions for trial. On 18.03.2010 charges under Section 302 read with Section 34 IPC, Section 201 read with Section 34 IPC and 120-B read with Section 34 IPC were framed against the appellants Devendra Singh, Vipin Kumar and their father Dhaniram. To which, they denied and claimed trial. 3. In order to prove its case, prosecution examined 9 witnesses in support of the case, namely, PW1 Ram Singh, PW2 Ramesh, PW3 Pankaj Pandey, PW4 Bhagwan Singh, PW5 Somwati, PW6 S.I. Ashok Kumar Dhankad, PW7 Dr. Sanjeev Prakash, PW8 Head Constable Maheshram and PW9 Shri Anand Singh Gusain. 4. Appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘the Code'). They denied their implication. According to them they have been falsely implicated. According to appellant Devendra Singh, a month prior to their death, his wife Rajabeti and his son Golu went along with PW1 Ram Singh, the first informant, and thereafter he does not know as to what happened to them. In their defence, a witness DW1 Smt. Meera has also been examined. 5. After hearing the parties by the impugned judgment and order, the appellants have been convicted and sentenced, as hereinbefore. Co-accused Dhani Ram was acquitted of the charges leveled against him. Aggrieved, the instant appeal. 6. Learned counsel for the appellants would argue that it is case based on circumstantial evidence but the chain of evidence is not complete. The following points have been raised by the learned counsel in his arguments:- i. Motive is not established. Deceased Rajabeti had discord with her husband, the appellant Devendra Singh and it was settled in the year 2008. Thereafter they were living in harmony. ii. The prosecution case is not believable. If on 20.04.2009, when the dead bodies were recovered, a diary containing the telephone numbers were located and the identity of the deceaseds was established, why both the deceaseds have been described as ‘unknown' in the inquest, which was prepared on 20.04.2009, and in post mortem reports, which was conducted on 21.04.2009 after 04:00 p.m. iii. It is not established as to how PW1 Ram Singh was informed by the police. Recovery of any diary is not recorded in the inquest reports. iv. It is not established as to how PW1 Ram Singh was informed by the police. Recovery of any diary is not recorded in the inquest reports. iv. PW9 Anand Singh Gusain, the Investigating Officer states that he traced the location of appellant Vipin Kumar on 01.05.2009 but the arrest was made on 11.05.2009. The call details have not been legally proved. The person, who furnished those call details has not been examined in evidence. v. The evidence of last seen is not reliable. vi. There is inconsistency in the statements of PW1 Ram Singh, PW2 Ramesh and PW5 Somwati. vii. In the case of circumstantial evidence, merely, on the basis of last seen evidence, conviction cannot be had unless it is corroborated by some other evidence. 7. Learned counsel would argued that the essence of last seen is that there should be less time and minimum distance between last seen and the recovery of the dead bodies, which is not in this case. According to learned counsel, the evidence of last seen is not reliable. However, if it is presumed to be true, there is no proximity of time and place between last seen and recovery of the dead bodies. If on 17.04.2009 the deceaseds had accompanied the appellants at Jaipur, Rajasthan, the dead bodies were recovered in Nainital after three days. So there is neither proximity of time nor of the place. It is much unsafe to convict the appellants on the basis of unreliable testimony of last seen. 8. In support of his contention, learned counsel for the appellant placed reliance on this principle of Law as laid down in the cases of Hatti Singh vs. State of Haryana (2007) 12 SCC 471 , Padala Veera Reddy vs. State of Andhra Pradesh and Others 1989 Supp (2) Supreme Court Cases 706, Ramreddy Rajesh Khanna Reddy and Another vs. State of A.P. (2006) 10 SCC 172 . In the case of Ramreddy Rajesh Khanna Reddy (supra), the Hon'ble Supreme Court, inter-alia, held as hereunder:- “27. The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration." In the case of Padala Veera Reddy (Supra), the Hon'ble Supreme Court held as hereunder:- “10. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ……………………………………." In the case of Hatti Singh (Supra), the principles of law as laid down in the case of Ramreddy Rajesh Khanna Reddy (Supra) has been referred to. 9. On the other hand, learned State Counsel would argue that PW1 Ram Singh and PW5 Somwati have categorically stated that the deceased Rajabeti along with her son Golu were taken by the appellants along with them from Subhash Chowk, Jaipur on 17.04.2009 and thereafter, their dead bodies were recovered. It is argued that the burden was upon the appellants to establish as to how the appellants disappeared. It is argued that the burden was upon the appellants to establish as to how the appellants disappeared. With regard to identity, learned State counsel would argue that when the dead bodies were recovered, a diary was found near them and with the help of the telephone numbers, which were recorded in the diary, the identity of the deceaseds could be revealed. 10. Undoubtedly, this is case of circumstantial evidence. PW1 Ram Singh is the first informant, who is brother of deceased Rajabeti. According to him, on 29.06.2001 deceased Rajabeti and appellant Devendra Singh were married. After marriage, deceased Rajabeti was tortured and harassed for the demand of dowry. The appellant Devendra Singh would beat her and she was expelled out from her matrimonial house in the year 2007. On 17.07.2007, deceased Rajabeti moved an application for maintenance and Rs.8,000/- maintenance was awarded to her. But subsequently, the matter was compromised between the parties and deceaseds started staying with her husband, the appellant Devendra Singh. Three children were born out from their wedlock. A boy 6 years, another boy 4 years and the third, the youngest one, who was killed in this incident. According to PW1 Ram Singh, after settlement between deceased and her husband, appellant Devendra Singh, they stayed comfortably for sometime but, thereafter, deceased Rajabeti was again harassed by the appellant Devendra Singh. According to him, on 20.03.2009 Rajabeti along with her son Golu had come to their house. On 29.03.2009 appellant Vipin had called deceased Rajabeti to visit Aamer Fort and sent her back by giving her Rs.5,000/-also. These are the statements to indicate the relationship between the parties. 11. According to PW1 Ram Singh on 17.04.2009 appellant Vipin telephoned deceased Rajabeti, which was received by Rajabeti in a PCO. Appellant Vipin requested deceased that they had less time to catch the train, therefore, she should come to Subhash Chowk, to accompany them. At this, deceased Rajabeti and her son deceased Golu alongwith her mother PW5 Somwati and PW2 Ramesh, reached at Subhash Chowk. At Subhash Chowk both the appellants were present, who took them along with them and thereafter nothing was heard of the deceaseds. On 20.04.2009, this witness received information from Ram Nagar, Police Station that the dead bodies of Rajabeti and Golu were lying in the forest of Belparao. At Subhash Chowk both the appellants were present, who took them along with them and thereafter nothing was heard of the deceaseds. On 20.04.2009, this witness received information from Ram Nagar, Police Station that the dead bodies of Rajabeti and Golu were lying in the forest of Belparao. They came at Police Station from there, they were taken to Haldwani Hospital, where they identified the dead bodies. According to this witness, they informed police that due to litigation between them, appellants had killed them and had thrown Rajabeti and her son Golu in the forest. This witness proved his report. PW2 Ramesh is the brother of PW1 Ram Singh and deceased Rajabeti. He has corroborated the statement of PW1 Ram Singh. PW5 Somwati is the mother of deceased Rajabeti. According to her, her daughter Rajabeti was happily staying with her husband, appellant Devendra Singh. She was never harassed for the demand of dowry. On 17.04.2009, in the evening the appellant Vipin took Rajabeti and her son Golu along with him. Thereafter police informed about their death. 12. There are three witnesses of inquest PW3 Pankaj Pandey, PW4 Bhagwan Singh and PW6 S.I. Ashok Maheshram. According to PW6, on 20.04.2009, upon information having been received, along with witnesses he visited Patta Pani, Belparao, where two dead bodies; a female aged 30 years and a baby boy aged 2 years were lying. He prepared the inquest, which he proved and also proved other documents. This witness sent dead bodies for post mortem. PW3 Pankaj Pandey and PW4 Bhagwan Singh are witnesses to the inquest. They have stated about it. In addition to it, according to PW3 Pankaj Pandey there was a diary inside a bag, which was lying near the dead bodies. The police contacted at the telephone numbers, which were written in the diary, and thereby the identity of the deceaseds was established. PW4 Bhagwan Singh has also stated about it. 13. PW7 Dr. Sanjeev Prakash, conducted post mortem. According to him on 21.04.2009 at 04:00 p.m., he conducted post mortem of baby boy, aged 2 years and found ligature mark in front of his neck. Neck muscles nerve contused and fractured. According to doctor, cause of death was asphyxia due to strangulation. Dr. Sanjeev Prakash also conducted post mortem of the dead body of Rajabeti, on 21.04.2009 at 04:39 p.m. There was ligature mark below thyroid cartilage. Neck muscles nerve contused and fractured. According to doctor, cause of death was asphyxia due to strangulation. Dr. Sanjeev Prakash also conducted post mortem of the dead body of Rajabeti, on 21.04.2009 at 04:39 p.m. There was ligature mark below thyroid cartilage. According to doctor, cause of death of female was also asphyxia due to strangulation. 14. PW8 Head Constable Maheshram is formal witness, who proved chik FIR and G.D. entries. PW9 Shri Anand Singh Gusain, is the Investigating Officer, who prepared the site plan and interrogated the witnesses, got call details and arrested the accused. Subsequently, the Investigation was transferred to a B.S. Pangti. This witness proved charge sheet. 15. Conviction is based on the last seen theory as well as some call details. One of the main arguments, which is advanced on behalf of the appellants is that, it is a case based on circumstantial evidence. The chain of events is not complete. Last seen theory is doubtful and even it is also doubtful as to how the identification was established by the police. 16. PW3 Pankaj Pandey and PW4 Bhagwan Singh are the witnesses to inquest. They state that a diary was found near the dead bodies. Some telephone numbers, were written in the diary. Police contacted on those telephone numbers and that is how the identity of the deceaseds was established. The question is, who contacted on those telephone numbers? Nothing has been stated about it. PW6 S.I. Ashok Kumar Dhankad, is the person who prepared the inquest report. He has not stated about any diary. He has not stated that someone was contacted, based on the telephone numbers, from any diary. A reference can be made to the statement of PW9 Anand Singh Gusain. In para 7 page 3 of the statement, he states that a B.S. Pangti along with Dinesh Phartiyal and other police personnel had reached at the spot, where the dead bodies were lying and a diary was found from there. The witness B.S. Pangti has not been examined. Inquest reports of the deceaseds Rajabeti and Golu are on record as Annexure nos.A-3 and A-4. There is no mention of any diary in it. This fact is not established as to who informed PW1 Ram Singh or his family members. Had the identity of the deceaseds been established while preparing the inquest? Inquest reports of the deceaseds Rajabeti and Golu are on record as Annexure nos.A-3 and A-4. There is no mention of any diary in it. This fact is not established as to who informed PW1 Ram Singh or his family members. Had the identity of the deceaseds been established while preparing the inquest? If so, why the dead bodies are shown as “unknown" in the inquest reports? 17. This matter may be looked from another angel. According to PW1 Ram Singh, he along with other family members reached Ram Nagar, Police Station; identified the dead bodies in the hospital; cremated the dead bodies and thereafter he lodged the FIR. It is significant to note here that the post mortem of deceased Golu was conducted on 21.04.2009 at 04:00 p.m. and of Rajabeti on the same day at 04:39 p.m. FIR was lodged by PW1 Ram Singh on 21.04.2009 at 04:10 p.m. Now if PW1 Ram Singh, PW2 Ramesh and other family members had reached police station Ram Nagar from Haldwani hospital before 4:10 p.m. on 21.04.2009 (FIR lodged at 04:10 p.m.) where post mortem was being conducted, why in the post mortem reports the dead bodies are named as “unknown bodies"? Why their identity was not disclosed? It creates doubt somehow, somewhere in the prosecution story. 18. According to the prosecution, the appellants were last seen with the deceaseds on 17.04.2009. Both the deceaseds were taken by the appellants from Subhash Chowk, Jaipur along with them. Appellant Devendra Singh is the husband of the deceased Rajabeti and Golu is his son. Learned counsel for the appellants would argue that even if it is presumed, though not true, that there was a matrimonial discord between appellant Devendra Singh and his wife deceased Rajabeti and it was a motive to commit the offence. According to learned counsel, what was the motive for the appellant Devendra Singh to kill his own young son of 2 years. Motive is something, which is very tough to read. It is a State of mind, which can be inferred from actions. PW1 Ram Singh and PW2 Ramesh have stated that the deceased Rajabeti was tortured and harassed for the demand of dowry; about a litigation and a settlement. But PW5 Somwati has not corroborated their statements in so far as demand of dowry, harassment and torture is concerned. There was no litigation pending between the parties. PW1 Ram Singh and PW2 Ramesh have stated that the deceased Rajabeti was tortured and harassed for the demand of dowry; about a litigation and a settlement. But PW5 Somwati has not corroborated their statements in so far as demand of dowry, harassment and torture is concerned. There was no litigation pending between the parties. This matrimonial discord may act on both sides. It may give a reason for appellant Devendra Singh to eliminate his wife. But, then the question is as to what was the motive to kill his own young son? At the same time this motive leads to enmity, which may be a reason to false implication. 19. According to PW1 Ram Singh, on 17.04.2009 Vipin called deceased Rajabeti. The telephone was not in the house. It was in a PCO, which was in the same building. PW1 Ram Singh did not go to see off deceased Rajabeti and her son Golu. He has not seen appellants Vipin and Devendra on 17.04.2009 at Subhash Chowk, Jaipur. In his cross examination PW1 Ram Singh states that his brother PW2 Ramesh and mother PW5 Somwati had gone at Subhash Chowk. PW2 Ramesh is the brother of deceased Rajabeti. According to him, he also talked to appellant Vipin and Devendra; deceased Rajabeti also spoke to Vipin, Devendra and her mother-in-law. 20. The question is as to whether any telephone call was received at the PCO and if so from which number? From where? Because what has been stated is that the appellant Vipin telephoned and requested deceased Rajabeti to come at Subhash Chowk, so that they could catch the train, as they were already getting late. The distance of Subhash Chowk, where appellant Vipin requested the deceased to come, from the house of PW2 Ramesh is stated to be 200 yards. It means that the appellants want to save that time, which otherwise they would have taken to travel 400 additional yards. (The distance for Subhash Chowk to the house of PW2 Ramesh is 200 yards so both ways it is 400 yards in total). The appellants are residents of Divyapur, District Auriya, Uttar Pradesh. Though according to DW1 Smt. Meera the appellants also reside in a village called Aurangabad, District Kanpur. According to DW1 Meera on 17.04.2009, both the appellants were in village Aurangabad, District Kanpur. The appellants are residents of Divyapur, District Auriya, Uttar Pradesh. Though according to DW1 Smt. Meera the appellants also reside in a village called Aurangabad, District Kanpur. According to DW1 Meera on 17.04.2009, both the appellants were in village Aurangabad, District Kanpur. Be it at it may, the fact remains that both the places, namely, Aurangabad, District Kanpur and Auriya, Uttar Pradesh are at a distance from Jaipur, Rajasthan. 21. PW5 Somwati has not named appellant Devendra Singh. She has not stated anything about telephone call having been made on that day either by Vipin or Devendra Singh or by their mother. According to PW5 Somwati, deceased had gone along with Vipin to visit Ajmer and they had returned on 17.04.2009. In the evening of 17.04.2009 Vipin took both the deceaseds Rajabeti and her son Golu along with him. Now, there is in fact, great variations as to what happened on 17.04.2009. PW1 Ram Singh had not seen the appellants on 17.04.2009. According to PW2 Ram Singh on 17.04.2009 he saw appellants at Subhash Chowk; the deceased accompanied them. PW5 Somwati does not corroborate it. She does not speak about any telephone call or Subhash Chowk. According to her, appellant Vipin alone took the deceased with him. PW5 Smt. Somwati in her statement at first paragraph says that Vipin did not take deceased from her house and PW1 Ram Singh and PW2 Ramesh gave their statements on the basis of suspicion. It all creates doubt in the veracity of the statements of PW1 Ram Singh and PW2 Ramesh. The last seen evidence is not wholly reliable. It is not proved. 22. According to PW1 Ram Singh and PW2 Ramesh on 17.04.2009, a call was received by Rajabeti to reach at Subhash Chowk so as to avoid delay, in catching the train. Both these witnesses believed it. It was a hurry because they were getting late to catch the train. It further means that the phone was made from Jaipur itself. The question is from where the phone call was made? Call details have not been adduced or proved by the prosecution. Which train the appellants wanted to board? Where did they go on 17.04.2009? Where did they stay on 18.04.2009 or 19.04.2009? Or when did they reach Belparao, where the dead bodies were recovered? Nothing has been even shown by the prosecution. Call details have not been adduced or proved by the prosecution. Which train the appellants wanted to board? Where did they go on 17.04.2009? Where did they stay on 18.04.2009 or 19.04.2009? Or when did they reach Belparao, where the dead bodies were recovered? Nothing has been even shown by the prosecution. PW2 Ramesh says that on 17.04.2009, when the telephone call was received, Rajabeti also spoke to her mother-in-law. Where was mother-in-law of deceased Rajabeti? If, in one call appellants and their mother talked to deceased Rajabeti, it means they all were together, somewhere in Jaipur. But PW2 Ramesh has not seen mother of the appellants at Subhash Chowk on 17.04.2009. Where had she gone? 23. Last seen evidence may in fact, be helpful to prove the guilt but then proximity of time and distance is essence of it. On 17.04.2009 according to prosecution, the deceaseds were sent with the appellants at Subhash Chowk, Jaipur. On 20.04.2009 in the morning, the dead bodies of both the deceaseds were recovered in forest within Police Station Ram Nagar, District Nainital, Uttarakhand. Its almost more than 700 k.m. away from Jaipur. What happened in between nobody knows. It may not be exactly termed as last seen theory. There may be something, which might had happened in between. As stated, even the evidence that the appellants were last seen with the deceased is not wholly reliable. 24. Having considered the entire material on record, this Court is of the view that the chain of events, in this case is not complete. Prosecution has not been able to prove the charges leveled against appellants and the appellants ought to have been acquitted of the charges. Learned court below committed an error in convicting and sentencing the appellants. Therefore, the appeal deserves to be allowed. 25. The appeal is allowed. The judgment and order dated 27.11.2013 passed in Sessions Trial No.85 of 2009, State vs. Devendra Singh and two others, in so far as it convicts appellants Devendra Singh and Vipin Kumar is set aside. 26. The appellants Devendra Singh and Vipin Kumar are acquitted of the charges under Section 302 read with 34 IPC, 120-B read with section 34 IPC and section 201 read with section 34 IPC. 27. 26. The appellants Devendra Singh and Vipin Kumar are acquitted of the charges under Section 302 read with 34 IPC, 120-B read with section 34 IPC and section 201 read with section 34 IPC. 27. Appellants are in jail, they be released forthwith, if not wanted in any other case, subject to their furnishing personal bonds and two sureties each of the like amount to the satisfaction of the court concerned under Section 437 A of the Code of Criminal Procedure, 1973. 28. Let a copy of this judgment be sent to learned court below along with the original records.