ORDER : Rajendra Kumar-IV, J. 1. Present jail appeal has been filed against the judgment and order dated 08.08.2016 passed by Sri Jai Mangal Sharma, Sessions Judge, Kannauj in Session Trial No.190 of 2012 (State of U.P. Vs. Kallu @ Yogendra @ Anshu) under Sections 302 and 201 IPC, Police Station Tirwa, District Kannauj whereby Trial Court has convicted the accused Kallu @ Yogendra @ Anshu and sentenced him to rigorous imprisonment for life with a fine of Rs.10,000/-under Section 302 IPC and in default of payment of fine, further imprisonment of one year and rigorous imprisonment for three years with a fine of Rs.3000/-under Section 201 I.P.C. and in default of payment of fine, further imprisonment of six months. All sentences shall run concurrently. 2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as “FIR”) as well as material placed on record is as follows. 3. The brief facts of prosecution story is that on 12.2.2012, at about 6:00 p.m., Brij Lal, aged about 55 years, younger brother of Informant Desh Raj, had gone to natural call (Latrine) saying to his wife -Shanti Devi PW-1 to cook food (Roti of Makka and potato vegetable) but did not return back to his house till late night. Then Informant along with villagers went in search of his brother. Next day i.e. on 13.2.2013, dead body of Brij Lal was found lying in back side of house of one Rajendra, situated in village Saraiya, head was missing from the dead body and there were many knife injuries on the body of deceased. It was suspected by Informant that his brother was assassinated by some one. 4. A Written Tehrir Ex. Ka-5 was scribed by P.W.-4 Naresh Singh under the dictation of Desh Raj (not examined due to death), who presented it in Police station Tirwan. On the basis of Written Tehrir Ex.Ka-5, Chick F.I.R. Ex. Ka-6 was written by Constable Shrinath P.W.-5 at Case Crime No. 87 of 2012 under Sections 302 and 201 I.P.C. against unknown person, an entry was made in G.D. on 13.2.2012 at 4:30 p.m. copy whereof is on record as Ex. Ka-7. 5. Immediately after registration of case, S.I. Sri Jitendra Kumar Singh, PW-8 under took investigation, recorded statements of Constable Srinath PW-5, Informant Desh Raj, visited spot, prepared site plan Ex. Ka-7. 5. Immediately after registration of case, S.I. Sri Jitendra Kumar Singh, PW-8 under took investigation, recorded statements of Constable Srinath PW-5, Informant Desh Raj, visited spot, prepared site plan Ex. Ka14 under his signature, directed S.I. B.K. Saxena to hold inquest and recorded statement of Shanti Devi, Naresh Singh, Chandra Shekhar on 15.2.2012. He further recorded statements of Surendra Babu, Desh Raj, Heera Lal, Uma Shankar, Chandra Prakash, Chandra Shekhar, Rajeev Kumar on 16.3.2012. Thereafter he was transferred. 6. On the instruction, S.I. B.K. Saxena P.W.-6 held inquest over dead body of Brij Lal without head and prepared inquest report Ex.Ka-1 and other relevant papers relating thereto i.e. letter to C.M.O. Ex. Ka-8, Photo Nash Ex. Ka-9, Chalan Nash Ex. Ka-10. Body was duly sealed and sent through Constable Lakhan Singh and Mahaveer to District Hospital for post mortem. On 20.2.2012 head of the dead body was recovered in the Bagg of Surendra Singh. He held inquest of head and prepared inquest report Ex.Ka-2 in his signature, duly sealed and sent for post mortem. 7. PW-3 Dr. R.D. Gautam conducted autopsy of dead body of Brij Lal on 14.2.2011 at about 2:00 p.m. and on 21.2.2011 at about 2:30 autopsy of head of deceased Brij Lal was conducted. Doctor opined that the death was caused due to haemorrhage and coma on account of anti mortem injuries. He further opined that death might have been caused in the intervening night of 12/13.02.2012 and injuries found on the body of deceased might have been occurred by some sharp cutting weapon. 8. PW 7 Dhruv Dutt Mishra under took investigation after transfer of P.W.-8 Jitendra Kumar Singh and completed remaining formalities of investigation, submitted charge sheet, Ex.Ka-18, against accused-appellant Kallu @ Yogendra @ Anshu under Sections 302 and 201 I.P.C. in the Court of Chief Judicial Magistrate concerned. 9. Case being exclusively triable by Court of Session, after making compliance under section 207 Cr.P.C. was committed to the Court of Sessions for trial. 9. Case being exclusively triable by Court of Session, after making compliance under section 207 Cr.P.C. was committed to the Court of Sessions for trial. The then Sessions Judge framed two charges against accused under Sections 302 and 201 IPC, which reads as under :- ^^eSa Mh0ds0 frokjh] l= U;k;k/kh'k dUukSt vki vfHk;qDr dYyw mQZ ;ksxsUnz mQZ vU'kw dks fuEu vkjksi ls vkjksfir djrk gwW%& ÁFker% ;g fd fnukad 12-02-2012 dh 'kke 6 cts ls fnukad 13-02-12 dh e/;] LFkku taxy ckx ogn xzke ljS;k Fkkuk frokZ ftyk dUukSt ds {ks=kf/kdkj ds varxZr vkius oknh ds NksVs HkkbZ c`tyky dh lk'k; gR; dj nhA bl izdkj vkius /kkjk 302 Hkkjrh; n.M lafgrk ds varxZr n.Muh; vijk/k dkfjr fd;k tks l= U;k;ky; ds laKku d varxZr gSA varr% ;g fd mDr LFkku] le; o fnukWd ij c`tyky dh e`R;q dkfjr djus ds mijkUr ;g tkurs gq, fd vkius gR;k dk vijk/k dkfjr fd;k] Lo;a dks oS/k n.M ls cpkus ds fy, e`rd ds 'ko dks fNik fn;kA bl Ádkj vkius /kkjk 201 Hkkjrh; n.M lafgrk ds varxZr n.Muh; vijk/k dkfjr fd;k tks l= U;k;ky; ds laKku ds varxZr gSA vkjksi vfHk;qDr dks i<+dj lquk;k o le>k;k x;kA vfHk;qDr us vkjksiksa dks bUdkj djrs gq, fopkj.k dh ekax dhA “I, D.K. Tiwari, Sessions Judge, Kannauj charge you, accused kallu @ Yogendra @ Anshu as under: Firstly, that between 6 pm on 12.02.2012 until the midday of 13.02.2012, at Jungle Bagg within the territorial jurisdiction of Village Saraiya, P.S. Tirwa, District Kannauj, you intentionally killed complainant's younger brother Brijlal, thus committing an offence punishable u/s 302, IPC; which is within the cognizance of the Sessions Court. Lastly, that having committed the murder of Brijlal on the said place, time and date and fully knowing to have committed such an offence of murder, you hid the body of the deceased so as to protect yourself from the legal punishment. In this way, you have committed an offence punishable u/s 201, IPC; which is within the cognizance of the Sessions Court. The Charges were read over and explained to the accused. The accused denied the charges and sought to be tried.” (Translation by Court).” 10. Accused-appellant denied charges levelled against him and claimed trial. 11. To prove its case, prosecution examined PW-1 Shanti Devi, PW-2 Surendra Babu, PW-3 Dr. The Charges were read over and explained to the accused. The accused denied the charges and sought to be tried.” (Translation by Court).” 10. Accused-appellant denied charges levelled against him and claimed trial. 11. To prove its case, prosecution examined PW-1 Shanti Devi, PW-2 Surendra Babu, PW-3 Dr. RD Gautam, PW-4 Naresh Singh, PW-5 Sri Nath, PW-6 Brij Kishore Saxena, PW-7 Dhruv Dutta Mishra, PW-8 Jitendra Kumar Singh and PW-9 Rakesh Chandra Sharma in oral evidence as well documentary evidence. 12. On closure of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded by the Court explaining all incriminating other evidences and circumstances. Accused denied prosecution case in toto and all formalities of investigation were said to be wrong, claimed false implication on account of village party bandi (groupage). He desired to adduce evidence but later on led no evidence. In response of question no. 24 in additional statement regarding the recovery of Daranti on pointing out of accused-appellant Kallu answered that he has nothing to say. 13. After hearing counsel for the parties and analyzing entire evidence led by prosecution on record, Trial Court has found appellant guilty and convicted him as stated above. Feeling aggrieved with impugned judgment and order of conviction, present appeal has been filed from Jail. 14. We have heard Sri Devendra Pratap Singh, Advocate (Amicus Curiae) for appellant and Sri Syed Ali Murtaza, learned A.G.A for State-respondent at length and have gone through the record available on file carefully. 15. Learned Amicus Curiae appearing for appellant has challenged conviction of accused-appellant, advancing his submissions, in the following manners : (i) This is a case of circumstantial evidence and there is no motive to accused to commit murder of Brij Lal. (ii) There is no complete chain of evidence so as to indicate that accused is the only person who has committed crime. (iii) P.W.-1 Shanti Devi is not named witness in F.I.R., but after due deliberation she was made a witness, that too a close relative of the deceased. Alleged presence of P.W.-1 on spot is not reliable and appears doubtful. (iv) P.W.-1 is said to have seen accused taking head and body of deceased. As per her statement she was present at the time of lodging F.I.R. but accused was not named by Informant, who is the real brother of deceased. (v) There are several contradictions rendering prosecution case doubtful. (iv) P.W.-1 is said to have seen accused taking head and body of deceased. As per her statement she was present at the time of lodging F.I.R. but accused was not named by Informant, who is the real brother of deceased. (v) There are several contradictions rendering prosecution case doubtful. (vi) FIR has been lodged by Desh Raj (brother of victim) close relative, next day after detection of dead body without explaining sufficient reason for delay in lodging FIR. 16. Per contra learned AGA opposed submissions and urged that Pws-1 is only witness of fact, P.W.-2 and P.W.-4 are the witnesses of recovery and panchayatnama, P.W.-5 is the Constable, who scribed F.I.R. and G.D, P.W.-6, 7 and 8 are investigators, P.W.-9 is the Investigator and witness of recovery. It has also come in evidence that P.W.-1 wife of deceased has seen accused taking body of deceased. Prosecution has established a complete chain of circumstantial evidence to connect accused with present crime. Accused is the only person who committed murder of Brij Lal. 17. We now proceed to consider rival submissions on merits. 18. Admittedly, there is no eye-witness in the present case. This case rests upon circumstantial evidence. It is no doubt a case where there is no eye witness of crime. Prosecution totally rests on circumstantial evidences, which found favour with Court below and finding prosecution version proved beyond reasonable doubt, Trial Court has convicted appellant, as stated above. 19. It will be appropriate to briefly consider the evidence on record. PW-1 is the wife of deceased, who has deposed that on the fateful evening at about 6:00 p.m. her husband asked him to cook food (Makka ki Roti and Potato vegetable) and he went to natural call. She prepared food but her husband did not return back to house till late night. Getting worried she told her brother-in-law (Jeth) and other villagers whereupon all of them started searching. She prepared food but her husband did not return back to house till late night. Getting worried she told her brother-in-law (Jeth) and other villagers whereupon all of them started searching. She came to know from before that her husband was having illicit relation with the mother of accused-appellant Kallu, she objected so many time but her husband did not pay any heed therefore, she suspected that her husband would have gone to boring of accused, she went to see him at about 12 O'clock in the night and saw in the light of torch that accused-appellant Kallu was carrying dead body of her husband on his back and head in his hands. On seeing that she inquired accused Kallu what have you done, he answered that her mother was being defamed due to him. The Kallu went away with body and head. She became unconscious, and when gained consciousness, she came back to her house. Since she became nervous, she did not tell the entire episode to her brother-in-law (Jeth). After passing three or four days, she narrated entire episode to Sub-Inspector. She further said that dead body of her husband without head was detected second day in the Bagg of Rajendra. She also went there. Head of her husband was detected after eight days in village Jariyan. She identified the head. Her husband was assassinated by the accused-appellant Kallu in connection of illegal relationship with his mother. In cross-examination, she admitted that she had told entire episode to her brother-in-law (Jeth) at about 1:00 p.m. in the evening that accused Kallu was going with the body of her husband on the back and head in his hands. She was taken to police station by Desh Raj and lodged F.I.R. On being interrogated by police she told entire episode to Sub-Inspector. She admitted that she had knowledge about the illegal relationship of her husband with mother of accused Kallu one year prior to incident. 20. Since P.W.-1 herself admitted that she had narrated entire story to her brother-in-law (Jeth Desh Raj) before lodging F.I.R. and to Sub-inspector at the time of registration of case, even then Desh Raj, who happens to be brother of deceased had not named accused in F.I.R. that too after detection of dead body. It appears that P.W.-1 has been made witness to support prosecution case while none has seen accused committing murder. It appears that P.W.-1 has been made witness to support prosecution case while none has seen accused committing murder. If P.W.-1 had seen accused-appellant taking body and head of deceased, she would have been made witness in F.I.R. Presence of P.W.-1 in the night at the boring of accused-appellant Kallu does not appear to be natural and reliable. Her statement inspires no confidence. 21. PW-2 Surendra Babu has deposed that body without head of Brij Lal was found in the Bagg of one Rajendra. He also went there and saw corpse which was found on 13.2.2012. Inquest was held by police before him and others persons, who signed the inquest report Ex.Ka.-1. seven or eight days after the body was detected, head of Brij Lal was found in the Bagg near village Jariyan. Police held inquest and prepared Panchayatnama, and obtained his signature on inquest report Ex.Ka-2. 22. PW-3 Dr. R.D. Gautam conducted autopsy over the dead body of deceased on 14.2.2012; prepared post mortem report Ex.Ka.-3; and noted ante-mortem injuries therein expressing his opinion that death might have occurred in the intervening night of 12/13.2.2012 at any time due to coma and hemorrhage on account of ante-mortem injuries caused by sharp cutting weapon. He further deposed that on 21.2.2012 at about 2.30 p.m. conducted autopsy of head and prepared post-mortem report Ex.Ka.-4 expressing same opinion as recorded in Ex.Ka.-3. 23. From the evidence adduced by prosecution following circumstances are clearly established : A. Brij Lal was murdered by someone using sharp cutting weapon in the intervening night of 12/13.2.2012. B. Dead body without head was found in the Bagg of Rajendra Singh on 13.2.2012 and his head was found in the Bagg near village Jariyan on 20.2.2012. C. Post-moterm report reveals that death of Brij Lal might have occurred at any time in intervening night of 12/13.2.2012 and ante-mortem injuries might have caused by some sharp cutting weapon. 24. In case in hand there is no eye witness of occurrence and case of prosecution rests on circumstantial evidence. C. Post-moterm report reveals that death of Brij Lal might have occurred at any time in intervening night of 12/13.2.2012 and ante-mortem injuries might have caused by some sharp cutting weapon. 24. In case in hand there is no eye witness of occurrence and case of prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that circumstances from which an inferences of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and he should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. 25. Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343 , is the basic judgment of the Supreme Court on appreciation of evidence, when the case depends only on circumstantial evidence, which has been consistently relied in later judgments. In this case as long back as in 1952 Hon'ble Mahajan, J expounded various concomitant of proof of a case based purely on circumstantial evidence and said: "... circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...... it must be such as to show that within all human probability the act must have been done by the accused." 26. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063 , Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person. 27. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (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. (emphasis added) 28. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890 , Court said: "...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." (emphasis added) 29. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(10) SCC 193 , Court said: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. " (emphasis added) 30. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgment said: "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." (emphasis added) 31. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno v. State of U.P., 2015(7) SCC 178 . 32. In State of Punjab versus Karnail Singh, (2003)11 SCC 27, Court observed that law does not enjoying the duty on prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on prosecution is to lead such evidence which it is capable of leading. 33. Now the crucial question up for consideration is who is the prepetrator of this crime. 34. It is a case where there is no eye witness and none has seen the accused murdering Brij Lal. The duty on prosecution is to lead such evidence which it is capable of leading. 33. Now the crucial question up for consideration is who is the prepetrator of this crime. 34. It is a case where there is no eye witness and none has seen the accused murdering Brij Lal. Offence has taken place in the dark night. P.W.-9 Rakesh Chandra Sharma deposed that he apprehended accused on 17.4.2012 at about 4.40 p.m. at petrol pump on the information of Informer, recorded statement of accused who confessed his guilt before police and on his pointing out alleged Daranti used in the commission of offence from house of accused before witnesses and prepared recovery memo Ex.Ka-16 which recites that on 12.2.2012 he was present on his Tub-well at about 9 to 10 p.m. and inflected Daranti blow on the neck of Brij Lal. Later on, when he succumbed to injuries he threw body in the Bagg of Rajendra and head near the field of Chandan Singh. Accused was arrested by P.W.-9 on 17.4.2012. As per report of FSL, blood was disintegrated to be examined. Recovery of Daranti at the pointing out of accused, if found proved, cannot be a complete chain of circumstantial evidence so as to indicate guilt of accused and cannot be the sole basis for conviction. 35. In the present case no body has seen accused assassinating Brij Lal, taking or throwing his body. No body has seen accused in the company of deceased. We find presence of P.W.-1, as alleged by prosecution, neither natural nor reliable. Her statement inspires no confidence in view of the discussion made above. Except recovery of Daranti, which does not find support of FSL report, no other chain of circumstances is proved. 36. As per prosecution case Brij Lal had gone to natural call at about 6 p.m. after directing his wife P.W.-1 to cook the food but did not return back to house till late night. Thereafter, his dead body was found in Bagg of Rajendra Singh on 13.2.2012. Nobody, in village, had seen deceased in the night. As per Informant, deceased did not come to house till late night. Meaning thereby, having gone for natural call till detection of his dead body, there was nothing to show what happened with deceased and who murdered him. Hence it can be said that crime could have been committed by somebody else. As per Informant, deceased did not come to house till late night. Meaning thereby, having gone for natural call till detection of his dead body, there was nothing to show what happened with deceased and who murdered him. Hence it can be said that crime could have been committed by somebody else. There is no complete chain of circumstances to indicate that accused is the only person who murdered Brij Lal. 37. Looking into entirety of facts and circumstances of the case, as discussed above, we are of the view that Trial Court has not marshaled entire evidence on record with care and caution and is not correct in convicting accused-appellant, solely relying on statement of PW-1, recovery of Daranti and motive of illegal relationship as stated by prosecution that too not supported by any other witnesses. Deposition of P.W.-1 has been treated a proof of incident overlooking other major contradictions in her evidence and missing chain of circumstantial evidence. In our view, accused-appellant is entitled to the benefit of doubt and it cannot be said that prosecution has been successful in proving guilt of accused-appellant beyond reasonable doubt. 38. In the result, appeal succeeds and is allowed. Impugned judgment and order dated 8.8.2016 in Sessions Trial No. 190 of 2012 is hereby set aside. Accused-appellant Kallu @ Yogendra @ Anshu is acquitted of charges levelled against him. He is in jail and shall be released forthwith, if not wanted in any other case. 39. Keeping in view provisions of Section 437-A Cr.P.C., accused-appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court. 40. Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action. 41. Before parting, we provide that Sri Devendra Pratap Singh, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/-. 40. Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action. 41. Before parting, we provide that Sri Devendra Pratap Singh, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.