JUDGMENT Singh, J.--1. With the consent of the parties, heard finally. 1. All these three appeals have arisen out of the same judgment; therefore, they are heard analogously and are being decided by this common order. 2. All the appellants have challenged their conviction and sentence of life imprisonment under section 302/34 of the IPC recorded by Special Judge, SC/ST Act, Rajgarh Biaora vide judgment dated 26.4.2017 delivered in Special Sessions Trial No. 75/2015. 3. The prosecution had come before the trial Court with a case that the deceased Rajkumar was having affair with the sister of the appellant Sunil. Annoyed by this he hatched a conspiracy with his cousins Pawan and Ashok and friend Rajesh to kill him. On 19th August, 2015 at about 07:00 in the evening they called him through Ashok on the pretext that they will deputize him with his lover. Ashok went to his house and took him with him towards Kurawar. Other appellants also joined them. On the way to Kurawar, they offered him drinks and had the same with him. When he was intoxicated, they strangulated him with a handkerchief and threw his body in the bushes to disappear the evidence of commission of the offence with intent to screen themselves from legal punishment and they have committed the offence knowingly that the deceased belongs to Scheduled Caste. 4. According to the prosecution case, on 19.8.2015, the deceased was at home alongwith his mother Inderbai (PW5) and brother Vinod (PW8) at village Mohmmadpur, Police Station Kalapipal, district Shajapur. His father had gone at his job with Gopal Seth at Kurawar. In the evening, at about 07:00 his friend Ashok (appellant) came and asked him to come with him to Kurawar. They both left the house on the motorcycle of Ashok. After about an hour when mother Inderbai asked his son Vinod to ask the deceased Raj Kumar as to where he is and when will he come back, the deceased replied that he is in Kurawar with Ashok and Pawan (appellants). After sometime, when Vinod again called him on mobile, he said that he is coming back shortly, but he did not come back. At about 09:00 in the night, Vinod again tried to contact him on mobile but this time could not get connection. The deceased did not come back home for the whole night. After sometime, when Vinod again called him on mobile, he said that he is coming back shortly, but he did not come back. At about 09:00 in the night, Vinod again tried to contact him on mobile but this time could not get connection. The deceased did not come back home for the whole night. On next morning, Vinod called his father Kunwarji (PW1) on mobile and informed about the incident. He came back home at about 10:00 o'clock and went to the house of Ashok with his wife Inderbai and asked his father Baijnath and brother Jitendra about Rajkumar but they scolded and asked them to leave their house. Kunvarji tried to search his son but in vain. Ultimately, he approached the police and lodged a missing person report No. 23/2015 on 23.8.2015 (Ex.P-2) at Police Station Kalapipal. 5. On 21.8.2015, the police of Narsingarh recovered deadbody of an unknown person, registered merg No. 30/2015 and got the post mortem done. It was revealed that the death of the deceased was due to throttling and was in homicidal in nature; therefore, FIR No. 410/2016 (Ex.P-16) against the unknown persons was registered and the Police buried the deadbody. 6. After 6-7 days, Kunwarji received information from the Police Station Narsingarh about recovery of dead body of an unknown person. Next day he went there. The police showed him photograph clothes and shoes of the dead body, which they had found at the Ganesh Mandir Hills. Kunwarji identified them as photographs and articles of his son Rajkumar. 7. During investigation, father Kunwarji and brother Vinod of the deceased informed the police that 5-6 months prior to the incident sister of the appellant Sunil, Manju had written two love letters to the deceased, but he brought them home as he was illiterate and asked his brother Vinod to read them. Father (of the deceased) took these letters to Bhagirath (PW3) and they both approached Tejsingh (PW4), who assured them that he will talk to the family of Manju. Father of the deceased kept the photocopy of the letters with him and handed over both the letters to the father of Manju, who got them burned through his son Sunil. But due to this episode Sunil got annoyed. 8. On receiving this information, the Police nabbed the appellants and interrogated them. Father of the deceased kept the photocopy of the letters with him and handed over both the letters to the father of Manju, who got them burned through his son Sunil. But due to this episode Sunil got annoyed. 8. On receiving this information, the Police nabbed the appellants and interrogated them. They revealed that due to affair of the deceased with sister of Sunil, he along with his cousins Ashok and Pawan and friend Rajesh hatched a conspiracy to kill the deceased, called him through Ashok and on the way to Kurawara, killed him at hills of Ganesh Mandir and threw his body in the bushes. 9. The police recovered a black handkerchief allegedly used in throttling (Ex.P-33) and a black platinum motorcycle (Ex.P-34) from Sunil, a black purse containing a colour photograph of the deceased and a receipt of his Aadhar Card from Rajesh (Ex.P-35), a green Bajaj motorcycle from Ashok (Ex.P-36) on the basis of their disclosure statements (Ex.P-28-31). Sunil also revealed that he had thrown the mobile of the deceased in a pond. The police tried to recover it with the help of divers but in vain (Ex.P-24-25). The police arrested the appellants vide memo Ex.P-37-40, got the purse recovered from Rajesh identified from father of the deceased through councilor Mohan Verma, seized photocopy of letters written by Manju to the deceased (Ex.P-43) and one mobile each from Sunil (Ex.P-44) and Ashok (Ex.P-45) and sent the black handkerchief to the doctor for his opinion as to whether the ligature marks found on the dead body can be caused by this handkerchief (query Ex.P-48 reply Ex.P-49). Manju refused to give sample of her handwriting; therefore, hand writing of photocopy of letters allegedly written by her could not be compared. The police sent a letter Ex.P-14 to the Tahsildar to get the spot map prepared from Patwari, who later prepared the same (Ex.P-13). All the articles seized were sent to the FSL vide Ex.P-51 and who submitted reports Ex.P52 and 53. CDR of mobile phones used by the accused persons were also seized from service provider Idea and Vodaphone (Ex.P-54-55). 10. Panchnama (Ex.P-22) of verification of the spot where, according to the appellants, they had liquor with the deceased and panchnama of the place where they got their tube of motorcycle changed were also prepared. CDR of mobile phones used by the accused persons were also seized from service provider Idea and Vodaphone (Ex.P-54-55). 10. Panchnama (Ex.P-22) of verification of the spot where, according to the appellants, they had liquor with the deceased and panchnama of the place where they got their tube of motorcycle changed were also prepared. The police got the tube identified from the shopkeeper Kailash and prepared Panchana Ex.P-14. After investigation, the police filed charge sheet. 11. Charges under section 302 read with section 120B IPC, in alternate section 302 read with section 34 of the IPC, section 201 of the IPC and section 3 (2)(v) of The Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities) Act, 1989 were framed against the appellants. They denied the charges and claimed for trial. After the trial, they are convicted under section 302/34 of the IPC and acquitted from all other charges. 12. The appellants have preferred this appeal on the grounds that the judgment of the learned trial Court is contrary to the law and facts available on record. The learned trial Court has committed error in appreciating the evidence of the prosecution and in relying upon the statements of interested witnesses and in discarding the defense version. Learned trial Court failed to consider material contradictions and omissions appeared in the statements of the prosecution witnesses and have wrongly placed reliance on their statements, therefore, the appellants are entitled for the acquittal. 13. Learned public prosecutor has supported the judgment and prayed for dismissal of the appeal. 14. Before the trial Court, Dr. Shahbar PW17 has stated that he along with his companion Dr.K.K Uniya and Dr. Gaurav had performed the post mortem on the body of 26-27 years old unknown persons on 21.08.2015 and after observation they were of the opinion that the cause of death of the deceased was asphyxia due to throttling. Though the appellants have contested the finding of the Doctors before the trial Court but before us they have not controverted this fact, therefore, we uphold the findings of the trial Court that the death of the deceased was homicidal. 15. Though the appellants have contested the finding of the Doctors before the trial Court but before us they have not controverted this fact, therefore, we uphold the findings of the trial Court that the death of the deceased was homicidal. 15. The trial Court has summed up the circumstances placed before it by the prosecution in para No.17 of the impugned judgment which reads thus : ^^17- vfHkys[k ij vfHk;kstu dh vksj ls izkjaHk ls var rd vfHk;qDrx.k ds fo#) ,slh dksbZ izR;{k lk{; is'k ugha dh xbZ gS] ftlds vk/kkj ij izekf.kr gksrk gks] fd vfHk;qDrx.k }kjk e`rd jktdqekj dh gR;k mldk xyk ?kkSaVdj dh xbZ FkhA vfHk;kstu dh vksj ls e`rd jktdqekj dh gR;k esa vfHk;qDrx.k dh lafyIrrk LFkkfir djus ds fy, ifjfLFkfrtU; lk{; dk voyacu fy;k x;k gSA vfHkys[k ij miyC/k lk{; dk fo'ys"k.k djds ;g ns[kuk gksxk fd D;k vfHk;kstu }kjk is'k lk{; ds vk/kkj ij ;qfDr;qDr lansg ,oa 'kadk ls ijs e`rd jktdqekj dh gR;k esa vfHk;qDrx.k dh lafyIrrk izekf.kr gS\ vfHk;kstu }kjk ;g izdj.k fuEufyf[kr ifjfLFkfr;ksa ds vk/kkj ij is'k fd;k x;k gSA ifjfLFkfr Ø- 1 %& e`rd jktdqekj dks vafre ckj vfHk;qDr v'kksd ds lkFk lk{kh banjckbZ v-lk-5 ,oa fouksn v-lk-8 }kjk ns[kk x;k FkkA ifjfLFkfr Ø- 2 %& vfHk;qDr lquhy mQZ lksuw dh cgu eatwckbZ dk iszeizlax e`rd jktdqekj ds lkFk gksuk ,oa ?kVuk ds dqN fnu iwoZ eatwckbZ }kjk e`rd jktdqekj dks izsei= fy[kdj fn;k tkukA ifjfLFkfr Ø- 3 %& vfHk;qDr jkts'k ds eseksjsaMe iz-ih- 31 ds vk/kkj ij vfHk;qDr jkts'k dh fu'kknsgh ij e`rd jktdqekj dk ilZ tIrh iapukek iz-ih- 35 ds }kjk tIr fd;k tkukA ifjfLFkfr Ø- 4 %& vfHk;qDr lquhy mQZ lksuw ds eseksjsaMe iz-ih- 29 ds vk/kkj ij vfHk;qDr lquhy mQZ lksuw dh fu'kknsgh ij iz-ih- 33 ds tIrhiapukes ds }kjk e`rd jktdqekj dh gR;k esa iz;qDr dkyk jax dk :eky tIr fd;k tkukA ifjfLFkfr Ø- 5 %& vfHk;qDr jkts'k] lquhy] iou ,oa v'kksd ds eseksjsaMe iz-ih-15 ds vk/kkj ij vfHk;qDrx.k dh fu'kknsgh ij ?kVukLFky dk rLnhd iapukek iz-ih- 21 cuk;k tkukA** 16. First and the most important circumstance relied on by the prosecution is that the deceased was last seen with the appellant Ashok and when contacted on mobile he revealed that he is with Pawan and Ashok. First and the most important circumstance relied on by the prosecution is that the deceased was last seen with the appellant Ashok and when contacted on mobile he revealed that he is with Pawan and Ashok. To establish this circumstance, the prosecution has examined mother Inderbai PW5 and brother Vinod PW8 of the deceased and they have deposed on oath that when they all together were at home, Ashok came and asked the deceased to accompany him to Kurawar and the deceased went with him on his motorcycle. When they contact him twice on mobile, he revealed that he is with Ashok and Pawan but thereafter, neither he could be contacted on phone nor he returned home. Both these witnesses have stated that they have revealed this fact before husband/father Kunwarji. Kunwarji PW1 has also admitted this fact that his wife Inderbai and son Vinod had informed him that the deceased had gone with Ashok and when he contacted him on mobile he revealed that he is with Ashok and Pawan. Kunwarji has stated that after knowing this, he went to the house of Ashok to inquire about the whereabouts of his son Rajkumar, but they started quarreling, scolded him and asked him to leave their house but surprisingly all these facts are not informed to the police at the first instance and these facts are not mentioned in the missing person report Ex.P-2 lodged by Kunwarji at Police Station Kalapipal. The information given by Kuwarji at police station Kalapipal reads thus : ^^xqelqnk ?kj ls fnukad 19-8-2015 dks 'kke 7%00 cts fcuk crk;s dgha pyk x;k gS tks vkt rd okil ugha vk;k gSA ;g igys Hkh ,d ckj pyk x;k Fkk tks okil vk;kA** 17. It would be pertinent to mention that at the time of lodging this missing persons report, wife of Kuwarji and mother of the deceased Inderbai was with him (Kuwarji) at the police station itself. In para No. 13 of his deposition, she has admitted that her husband lodged this missing persons report in her presence and they have informed the police regarding the fact that the appellant Ashok had taken their son with him and when contacted on mobile, he informed her that he is with Pawan and Ashok. No explanation, whatsoever, is given by the prosecution as to why this fact is not mentioned in the missing person report. 18. No explanation, whatsoever, is given by the prosecution as to why this fact is not mentioned in the missing person report. 18. Missing person report is lodged after four days of missing of the deceased on 23.8.2015 and the delay is unexplained and is fatal to the prosecution case particularly when the prosecution itself has come with the story that since the time the deceased left home, his mother and brother were aware of the fact that he had gone with Ashok. Non mentioning of this fact in the missing person report specially when the scriber Kunwarji was knowing this fact at the time of lodging the report, adds on the doubt already existing in the mind. Record shows that first time this fact has come to the knowledge of the police on 5/6.9.2015 when statements of father Kuwarji PW1, mother Inderbai PW5 and brother Vinod PW5 were recorded by the police under section 161 of the CrPC but it is to keep in mind that prior to recording of these statements, all the accused persons were already in custody since 2.9.2015 (Ex.P-37-40). The police interrogated them on the same day, recorded their memo statements also (Ex.P-30-33) and recovered two motorcycles, purse, handkerchief (Ex.P-33-36) from their possession. This fact also strengthens the doubt. 19. It is claimed by Inderbai and Vinod that they called the deceased twice mobile but most important link is missing in this case as to from and on which mobile numbers Vinod made calls. Neither the information regarding the mobile number used by Vinod or the deceased to make or receive the calls nor their call details are seized or produced by the prosecution before the trial Court and this missing link breaks the chain of circumstance particularly in the background of the fact that at the first instance no such information was given to the police that the deceased had gone with the accused Ashok. 20. In his cross examination, Vinod PW8 had admitted that he did not revealed this fact before anyone for next 15 days and he has not given any explanation for the same. This makes his statement and also the prosecution case based on this evidence doubtful. 21. In any case, if we consider the statements of the witnesses true, even then they only stated that the deceased had gone with Ashok. This makes his statement and also the prosecution case based on this evidence doubtful. 21. In any case, if we consider the statements of the witnesses true, even then they only stated that the deceased had gone with Ashok. There is no evidence that the other accused Sunil and Rajesh were with the deceased. This evidence also cannot be used against the accused Pawan as there is no evidence to connect him with the crime except the statement of Vinod that deceased told him that he was with Pawan and Ashok. In absence of any corroborative evidence like call details, only on the basis of such evidence, we cannot hold that the other appellants were also last seen together with the deceased. Thus, we have no hesitation to hold that first circumstance put-forth by the prosecution could not be established beyond a reasonable doubt. 22. The evidence against the appellant Sunil is that a black handkerchief, which was allegedly used to strangulate the deceased was seized from his possession and Dr.K.K. Uniya PW20 has opined that the ligature marks found on the dead body may be caused by this handkerchief. But Dr. Uniya had admitted in his cross examination that generally handkerchief is soft material and ligature mark cannot be caused by such soft material. The trial Court has dismissed this explanation on the basis that it was a reply to a general question and no specific question is asked regarding the handkerchief seized from the appellant Sunil but this is not a case of the prosecution that some typical or specific type of handkerchief was seized from Sunil. The evidence produced by the prosecution itself shows that this was a common type of handkerchief, therefore, admission of Dr.Uniya cannot be discarded on this ground alone. Otherwise also, this is a fact of common knowledge that ligature marks cannot be caused by handkerchief. Thus, guilt of appellant Sunil also does not establish in this case. 23. The prosecution has come forward with a story that the deceased was having affair with sister of Sunil, Manjubai. Otherwise also, this is a fact of common knowledge that ligature marks cannot be caused by handkerchief. Thus, guilt of appellant Sunil also does not establish in this case. 23. The prosecution has come forward with a story that the deceased was having affair with sister of Sunil, Manjubai. She wrote two love letters to the deceased, which proved the root cause of the death of the deceased or which led the controversy upto the death of the deceased but admittedly original love letters were not available to the police, these letters were written 5-6 months prior to the incident and handwriting of these letters could not be compared due to non cooperation of Manju. Besides, the prosecution evidence shows that after getting those letters, Kuwarji took them to Tejsingh, who assured him to look into the matter, then he photocopied those letters and returned the originals to the father of Manju, who got them burned, but there are discrepancies on the material points in the statements of the witness. Mother Inderbai has stated nothing regarding the story of love letters. Tejsingh PW4 has stated nothing regarding the story of handing over of original letters to the father of Manju or the fact that Sunil had burned them. Kuwarji PW1 has stated that he had shown those letters to Tejsingh who read the same and asked him to go back home, while Tejsingh has stated that he had never read those letters, but asked Kuwarji to come in the Panchayat in the next morning, but he never turned up. It appears unbelievable that even after returning original letters; a rustic villager does take out photocopies of those letters and will keep them with him for no reason. 24. Seizure of purse of the deceased containing his photograph and receipt of Aadhar Card is another circumstance placed by the prosecution to prove guilt of the appellants, but first of all, this purse was seized from Rajesh. Nothing is there to connect other appellant with this recovery. There has nothing come in the evidence that at the time of leaving the house the deceased was having any purse with him. According to the prosecution case, after killing the deceased, Rajesh took out the purse and mobile from the dead body, kept the purse with him and threw the mobile in the pond. There has nothing come in the evidence that at the time of leaving the house the deceased was having any purse with him. According to the prosecution case, after killing the deceased, Rajesh took out the purse and mobile from the dead body, kept the purse with him and threw the mobile in the pond. Later, mobile could not be recovered while purse was recovered kept in his suitcase kept in the almirah in the house. This story is inherently improbable. This is unbelievable that after killing some person for the reason that the deceased was having affairs with his cousin sister will search the dead body and after taking out the purse and mobile would throw the mobile, which at least has some value and keep the purse alongwith the photograph and receipt of Aadhar card of the deceased, which was totally useless for him. It is further unbelievable that after stealing the purse from the dead body, without using it someone will keep it only for the sake of keeping the same. In absence of any corroborating evidence and in absence of any explanation, the entire story of the prosecution does not inspire confidence. 25. There is no evidence to connect the motorcycles seized from the appellants or the spot map or the memo of verification of the place of incident, therefore, these circumstances are also not sufficient to prove the charge framed against the appellants. It has come in the prosecution case itself that no sign of struggle or no injury was found on the dead body. The prosecution has come before this Court that first the appellants had liquor with the deceased, thereafter, they killed him, but brother of the deceased Vinod PW8 has clearly admitted that the deceased had no habit of having liquor. Presence of liquor in the viscera also could not be confirmed in the FSL Report. This makes the prosecution story doubtful. 26. Thus, the prosecution failed to produce any cogent and convincing evidence to establish that it was the appellant; who took the deceased with them and killed him. The learned trial Court has committed error in appreciating the evidence and also in holding the appellants guilty for the alleged crime. 27. Consequently, all the appeals are allowed. The appellants are acquitted from the charge under section 302/34 of the IPC. Fine amount, if deposited, be refunded to them. The learned trial Court has committed error in appreciating the evidence and also in holding the appellants guilty for the alleged crime. 27. Consequently, all the appeals are allowed. The appellants are acquitted from the charge under section 302/34 of the IPC. Fine amount, if deposited, be refunded to them. They be set at liberty forthwith, if not required in any other case. 28. Order of the trial Court regarding disposal of property stands confirmed.