JUDGMENT : Ajay Bhanot, J. 1. This criminal appeal arises out of the judgment dated 23.12.1986 rendered by the learned Additional Sessions Judge-VI, Bulandshahr, in Sessions Trial No. 08 of 1986, State Vs. Indar and others, convicting the appellant for offences under Section 302 and Section 201 of the I.P.C., and imposing punishments of life imprisonment and rigorous imprisonment of two years for the respective offences. 2. The prosecution case originated in an F.I.R. lodged on 13.01.1985, at Police Station Dankaur, District Bulandshahr, as Case Crime No.8 of 1985. 3. The Investigation Officer made his investigation and on 11.03.1985 submitted a chargesheet in court against the accused persons. 4. The case was registered as Sessions Trial No. 08 of 1986, State Vs. Indar and Others. The learned Additional Sessions Judge-VI, Bulandshahr, on 11.04.1986 charged the accused as follows: “Istly that you on 9.1.1985 some time after 5.30 P.M. in the Jungle of village Banjhar Pur within police circle Dankaur District Bulandshahr in furtherance of the common object of you all did commit the murder of Ganga Ram by intentionally causing his death and you thereby committed an offence punishable under section 302 read with section 34 I.P.C. and within by cognizance. IIndly that you on the same date time and place knowing that the murder of Gangaram has been committed to threw the dead body of said Gangaram in canal for concealing the evidence of the murder of screening yourself from legal punishment and thereby committed an offence, punishable under section 201 I.P.C. within my cognizance. And I hereby direct that you be tried by this court on the said charge.” 5. The accused pleaded not guilty and the case then went to trial. 6. The narrative will be structured in the following framework: I Outline of documentary evidence adduced by prosecution: i. F.I.R. ii. Recovery of articles iii. Inquest Report iv. Postmortem report v. Site Plans vi. Chargesheet vii. Witnesses II Arguments by counsels III Brief statement of FIR IV Testimonies of witnesses V Statement under Section 313 Cr.P.C. VI Concept of circumstantial evidence : Legal perspective VII Appraisal of evidence/Chain of circumstances incriminating the accused: i. F.I.R. ii. Recovery Memos iii. Inquest Report iv. Postmortem Report, Evidence of expert witness, cause and time of death. v. Motive vi. Last Seen: a. Legal perspective b. Evaluation of evidence vii. Recovery Memos iii. Inquest Report iv. Postmortem Report, Evidence of expert witness, cause and time of death. v. Motive vi. Last Seen: a. Legal perspective b. Evaluation of evidence vii. Investigation VIII Findings IX Analysis of trial court judgment X Final Directions/Result of appeal I. Outline of documentary evidence adduced by prosecution: 7. The prosecution introduced both oral and documentary evidences during the trial to bring home the guilt as outlined below: i. F.I.R. (details have been stated) ii. Recovery of articles 8. Recovery Memos dated 14.01.1985 (marked as Exh. Ka-3 and Exh. Ka-4) depicting recovery of personal articles of deceased. iii. Inquest Report after recovery of dead body 9. Inquest report dated 18.01.1985 (marked as Exh. Ka-5) prepared on the date the dead body was recovered. iv. Postmortem Report 10. Postmortem report (marked as Exh.Ka-2) dated 19.01.1985. v. Site Plans and others documentations related to the crime: 11. Map of the dead body, Challan of the dead body and letters addressed to Atisaar Nirikshak and Chief Medical Officer (marked as Exh. Ka 6 to Ka 9 respectively). Site plan of the place from where the dead body was recovered (marked as Exh. Ka 10). Maps of the places where Kurta and tobacco pouch, and pyjama, were recovered (marked as Exh. Ka 11 and Exh. Ka 12, respectively). vi. Charge-sheet 12. Charge-sheet submitted by the Investigation Officer before the learned trial court on 11.03.1985 under Sections 302/34/201 I.P.C. against the accused persons (marked as Exh. Ka-1). vii. Witnesses 13. Fourteen persons (P.W. 1 to P.W.14) testified as witnesses for the prosecution. Details of the said witnesses are extracted hereinunder in a tabular form: Sr. No. Name of the prosecution witnesses Nature of the prosecution witnesses Documents proved 1. P.W.1— Bhikhari (Informant -complainant) 2. P.W. 2— Mewa (Witness of last seen) 3. P.W. 3—Nanuka (Witness of last seen) 4. P.W. 4— Rajendra Witness of extra judicial confession 5. P.W. 5— Rajwati (Wife of deceased and witness of last seen) 6. P.W. 6— Badle Witness of extra-judicial confession 7. P.W. 7 —Yadram Witness of extra-judicial confession 8. P.W.8 —Khusi Ram Witness of extra-judicial confession 9. P.W. 9—S.I. V. R. Sharma I.O. Charge-sheet 10. P.W.10—Dr. N. P. Agrawal Doctor Postmortem report 11. P.W.11—S.I. Om Prakash Khatheria I.O. 12. P.W. 12—Constable Abdul Rehman Took the body to hospital 13. P.W.13—Jaggan Singh Witness to recoveries Exh. Ka-4, Ka3, Recovery Memos 14. P.W. 7 —Yadram Witness of extra-judicial confession 8. P.W.8 —Khusi Ram Witness of extra-judicial confession 9. P.W. 9—S.I. V. R. Sharma I.O. Charge-sheet 10. P.W.10—Dr. N. P. Agrawal Doctor Postmortem report 11. P.W.11—S.I. Om Prakash Khatheria I.O. 12. P.W. 12—Constable Abdul Rehman Took the body to hospital 13. P.W.13—Jaggan Singh Witness to recoveries Exh. Ka-4, Ka3, Recovery Memos 14. P.W. 14—Constable Ram Babu Scribe of FIR Rozmancha Report No. 24, (marked as Exh. Ka-13) II. Submissions of learned counsels for the parties 14. Learned counsel for the petitioner Shri Krishna Dev Mishra, assailing the judgment of the learned trial court submits that this is a case of circumstantial evidence where the prosecution has failed to establish the incriminating links in the chain of circumstances by legal evidence. The arguments were directed against the FIR, recoveries, last seen evidence, motive and the investigation. The prosecution failed to prove the guilt beyond reasonable doubt. 15. Shri Arun Kumar Singh, learned A.G.A. supporting the judgment of the learned trial court contends, that the links in the incriminating circumstances were established by legal evidence. The recoveries of the personal effects of the deceased Ganga Ram, credible testimonies of witnesses who had last seen the accused and motive for murder established the guilt of the accused beyond reasonable doubt. III. Brief statement of FIR 16. FIR lodged by Bhikhari the brother of Ganga Ram on 13.01.1985 was a missing report informing about the disappearance of Ganga Ram since the evening of 09.01.1985. IV. Testimonies of witnesses 17. P.W.1—Bhikari, was the complainant of the F.I.R. He deposed before the learned trial court as follows: 18. Ganga Ram was his brother who was murdered one and a half years ago. Ganga Ram went missing nine days prior to the recovery of his dead body. 19. P.W. 1 was first informed by his son that Ganga Ram had left for Samrath’s tube well that evening but did not get home. On the next day, Smt. Rajwati wife of Ganga Ram also told him about Ganga Ram’s disappearance. 20. He alongwith others went on the lookout for Ganga Ram. They enquired about his whereabouts from Samrath’s sons including Indar. The search continued over the days till they found Ganga Ram's kurta and tobacco pouch stuck in a bush on the bank of the canal. By now they had knowledge about the murder of his brother. 20. He alongwith others went on the lookout for Ganga Ram. They enquired about his whereabouts from Samrath’s sons including Indar. The search continued over the days till they found Ganga Ram's kurta and tobacco pouch stuck in a bush on the bank of the canal. By now they had knowledge about the murder of his brother. They then went to the police station to report. At the police station an unknown person scribed the complaint. The complaint was not read out to him. He was simply asked to affix his thumb impression. He deposited Ganga Ram's kurta and tobacco pouch in the police station. A day after of lodgement of the FIR, the Investigation Officer arrived at the village and went to Samrath's tubewell(emphasis supplied). The tubewell room was unlocked by the Investigation Officer. Pyjama of the deceased was found in the hollow of the wall of the tubewell room under a brick. Yoke of plough was found on the roof of the tubewell room, but its leather belt was missing (emphasis supplied). 21. Some days later, they found Ganga Ram’s body in a pit near the canal. Later upon receiving information, the Investigation Officer came to the spot. 22. A leather belt was found tied round the neck of the body. Ganga Ram had worked intermittently as a daily wager for Samrath since the past 4-5 months. However, he had stopped going to work since 10 days prior to his disappearance. On the day Ganga Ram had gone to Samrath's tubewell, Indar had visited his house and called him over to take his wages. Ganga Ram expelled Indar from his house as he used to make inappropriate remarks to his wife and declined to take money from Indar(emphasis supplied). 23. Under cross-examination his testimony was not modified. However, additional information was elicited. On 11th(January, 1985) they had gone to the police station to register the F.I.R. The Daroga (SHO), declined to register the F.I.R. He rebuffed them and told them to continue search themselves(emphasis supplied). At which point they made an oral complaint. They did not give written information. They did not inform the S.P. or Collector that the Daroga (SHO) had refused to lodge their complaint. 24. The testimony of P.W. 1 Bhikari was largely natural and unvarnished (except on issue related to Indar and Rajwati, and his failure to name Indar in the F.I.R.). They did not give written information. They did not inform the S.P. or Collector that the Daroga (SHO) had refused to lodge their complaint. 24. The testimony of P.W. 1 Bhikari was largely natural and unvarnished (except on issue related to Indar and Rajwati, and his failure to name Indar in the F.I.R.). P.W. 1 is a credible witness whose testimony is liable to be believed (apart from the excepted portions). 25. P.W. 2—Mewa, testified before the learned trial court that he had seen Ganga Ram and Indar sitting together, at Samrath's tubewell after 05:00 PM, ten days prior to the discovery of the dead body (emphasis supplied). He asked Ganga Ram to accompany him to the village. Ganga Ram replied that he would come only after taking his money from Indar. Ganga Ram was not seen alive thereafter. Indar and Ganga Ram's wife had an illicit relationship (emphasis supplied). 26. Two days prior to that he had seen Indar making inappropriate remarks to Ganga Ram's wife. He informed Ganga Ram about it, who responded by saying that he will follow Indar from today onwards. 27. Under cross-examination he stated that Ganga Ram was his nephew. Their houses are closely situated. There is no road from his agricultural field to tubewell. He, however, reached the tubewell. He was coming to the village by the canal route(emphasis supplied). Twenty days prior to the death, he had seen Indar coming to the house of Ganga Ram. He was suspicious of illicit relations between Indar and Rajwati (Ganga Ram's wife), since he had seen Indar visiting the Ganga Ram's house (emphasis supplied). He had not seen Ganga Ram's wife with accused at the tubewell. Apart from this, he had never seen Indar at Ganga Ram's house. 28. P.W. 2-Mewa's presence at the tubewell was perchance. He could not satisfactorily account for his presence at the tubewell. Under cross-examination he materially altered his statement made under examination-in-chief regarding the relations between Rajwati and Indar. His credit as a witness was impeached under cross examination. P.W. 2 Mewa is not a reliable witness, and his testimony is not liable to be believed. 29. P.W. 3—Nanuka, deposed before the learned trial court that on 9th he had gone to the field for spraying manure, when he saw Ganga Ram with the accused-Indar at the tubewell (emphasis supplied). He told Ganga Ram to come home alongwith him. P.W. 2 Mewa is not a reliable witness, and his testimony is not liable to be believed. 29. P.W. 3—Nanuka, deposed before the learned trial court that on 9th he had gone to the field for spraying manure, when he saw Ganga Ram with the accused-Indar at the tubewell (emphasis supplied). He told Ganga Ram to come home alongwith him. Ganga Ram declined and said that he would come home after taking money from Indar. Ganga Ram was wearing a black trouser and a white kurta. An Aligarh cut(style) pyjama was tied to the head of Ganga Ram, and a Khes was resting on his shoulder. Ganga Ram used to work for Indar and at times slept there. He had heard that Indar and Ganga Ram's wife had illicit relationship (emphasis supplied). He had not seen Ganga Ram alive thereafter. Lastly he saw his dead body. 30. Under cross-examination he stated that he was able to identify the Aligarh cut/style pyjama since one leg of pyjama was hanging in full view (emphasis supplied). Aligarh cut/style pyjama is narrow at the bottom and broad at the top. 31. In material aspects, the testimony of P.W. 3 Nanuka, stretches credulity. His version conflicts with ordinary experience and common sense. A detailed examination of his lack of reliability shall be made later. 32. Before the trial court P.W. 4—Rajendra, denied the statement recorded by the Investigation Officer that Dharampal and Samrath has confessed to the murder of Ganga Ram before him and urged him to get the matter compromised. 33. P.W. 5—Rajwati (wife of deceased Ganga Ram), deposed as under before the learned trial court: 34. Last time she saw her husband alive at 05:00 PM in the evening along with Indar at the tubewell (emphasis supplied). At the time, she was alone cutting grass at some distance from the tubewell. Indar called to her inappropriately. She declined his advance. He persisted, saying why she would not come; grabbed her by her arm and tried to force himself. When he saw her husband approaching he let go of her. On her way back she told her husband about the incident. Her husband told her to go home, and said that he would recover his money from Indar and take him to task. Her husband used to work on daily wages for Indar. When he saw her husband approaching he let go of her. On her way back she told her husband about the incident. Her husband told her to go home, and said that he would recover his money from Indar and take him to task. Her husband used to work on daily wages for Indar. Her husband was wearing a pant, a Kurta and a Khes was wrapped round him (emphasis supplied). 35. Her husband often had his meals at Indar's house, and at times slept there as well. That night her husband did not return home. 10 days thereafter the body of her husband was found near the canal(emphasis supplied). 36. Under cross-examination while conforming to the examination-in-chief, she revealed additional information. Ganga Ram often slept and had his meals at Indar's tubewell. Hence she did not inform to her brother-in-law, that he did not return home that night. Prior to the incident, Indar had never made any inappropriate remarks or overtures to her(emphasis supplied). On the next day at about 12 in the afternoon, when she went to cut grass she enquired about her husband's whereabouts from Indar. Indar told her that her husband had gone to Bilaspur. Indar did not say anything else to her (emphasis supplied). She denied the suggestion that she had illicit relations with her brother-in-law who had murdered him. She did not want any harm to come to her husband, and elaborated that she had four young children(emphasis supplied). 37. P.W. 5 is a woman from a rural background. In her testimony, she comes across as forthright and straightforward. Her credit was not impeached. Her deposition appears to be truthful and liable to be believed. 38. P.W. 6—Badle S/o Chhagga, made this deposition on oath before the court below. Eight days prior to the discovery of dead body of Ganga Ram at about 8:00 PM, he was at Yadram’s house. Dharampal and Samrath told them that Indar had done Ganga Ram to death. They wanted him to get the matter compromised in exchange for money. They did not state as to why Indar murdered Ganga Ram. 39. P. W. 6 Badle has an exaggerated sense of self importance. His proximity to Samrath is not established. There was no reason for Samrath and Dharampal to confide in him. They wanted him to get the matter compromised in exchange for money. They did not state as to why Indar murdered Ganga Ram. 39. P. W. 6 Badle has an exaggerated sense of self importance. His proximity to Samrath is not established. There was no reason for Samrath and Dharampal to confide in him. Further he was not a man of such social eminence, in whom rival parties would repose faith to settle such grave issues. P.W. 6 is not corroborated by any other prosecution witness or evidence. He is not a reliable witness. His testimony is disbelieved. 40. This evaluation of the evidence of P.W. 6, Badle, is supported by the caution on evidentiary value of an extrajudicial confession stated in Balwinder Singh v. State of Punjab, reported at 1996 SCC (Cri) 59: “10. An extrajudicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extrajudicial confession.” 41. P.W. 7—Yadram S/o Ram Singh, before the court below denied the statement recorded by the Investigation Officer that the accused had confessed to murder of Ganga Ram before him. 42. P.W. 8—Khusi Ram S/o Jassa, testified in the trial that he had seen Ganga Ram in the village some time before his death in the village, but could not recall the exact date. He was not the part of Panchayat in the village held after the murder of Ganga Ram. He could not tell how incorrect statements were attributed to him by the Investigation Officer. 43. The testimonies of PW 4, P.W.7 and P.W. 8 do not support the prosecution case. 44. P.W. 9—V. R. Sharma, S.I., had submitted the charge-sheet on 11.03.1985 and identified his signatures on it. 45. P.W. 10—Dr. N. P. Agrawal, Medical Officer District Hospital Bulandshahr, was the author of the postmortem report. P.W. 10 testified that the postmortem was conducted by him at 01:00 PM on 19.01.1985. He proved the postmortem report. P.W. 10 described the ante-mortem injuries, in conformity with the PM report. 46. Under cross-examination, P.W. 10 stated that the death happened due to asphyxiation caused by strangulation. P.W. 10 testified that the postmortem was conducted by him at 01:00 PM on 19.01.1985. He proved the postmortem report. P.W. 10 described the ante-mortem injuries, in conformity with the PM report. 46. Under cross-examination, P.W. 10 stated that the death happened due to asphyxiation caused by strangulation. The ante-mortem injuries on the neck could have been caused by tightening of the leather belt round the neck of the deceased. The injuries around the neck were sufficient to cause death. 47. The time of death in the opinion of the P.W. 10, could have been any time between the night of 10/11.01.1985. The variation in the time of death could be between one or two days. He could not say with certainty whether the victim died on 13.01.1985. 48. P.W.11—Shri Om Prakash Katheria, was the I.O., who while deposing before the learned court stated as follows: 49. On 14.01.1985 while posted as S.O., at P.S. Dankaur he was given charge of the police investigation pursuant to the F.I.R. He reached and inspected the site on 14.01.1985 near the canal at Jangal Gram Banzarpur, where personal effects of Ganga Ram, were reported to be lying. He found Kurta and tobacco pouch in its pocket lying under a deposit of pebbles under water near the bridge on the western bank of the canal. They were found a distance of 65 furlong from the bridge (emphasis supplied). The aforesaid recoveries were made by him on 14.01.1985 in the presence of Tej Singh and Jaggan Singh. The recovery memo (Exh. Ka-3) was prepared by him and read out to the witnesses. He and the witnesses put their signatures to it. 50. Search at the tubewell room, yielded one Aligarh cut/style pyjama also belonging to Ganga Ram. The recovery memo (marked as Exh. Ka-4) was taken down by the P.W. 11 in his hand and read out to the witnesses. All three affixed their signatures to it. 51. The dead body was found near the canal in village Sarakpur. The inquest report was prepared, in presence of five witnesses (Panchas) and read out to them. Thereafter they put their signatures to the report, (marked as Exh. Ka-5). P.W. 11 identified his signatures on the inquest report. Then he described other documentation and procedures, culminating in dispatch of the body to the hospital for postmortem. 52. The inquest report was prepared, in presence of five witnesses (Panchas) and read out to them. Thereafter they put their signatures to the report, (marked as Exh. Ka-5). P.W. 11 identified his signatures on the inquest report. Then he described other documentation and procedures, culminating in dispatch of the body to the hospital for postmortem. 52. Under cross-examination, P.W. 11 admitted that he commenced the investigation in the afternoon of 14.01.1985. However, he did not record the fact of his visit in the case diary. He could not explain the violation of police regulations during the investigations(emphasis supplied). The name of accused Indar had surfaced at the time of preparation of inquest report. However, name of accused Indar was not recorded in the inquest report. At that point in time, the case had not been registered and the investigation was on foot. He could not explain why the time of the inquest proceedings was not stated in the case diary. Nor could he account for the failure to record the names of the witnesses in the G.D. He was confronted with discrepancies in the Parchas in Case Diary and absence of dates of receipt of the same by the S.O. He could not account for or justify the same as well(emphasis supplied). He was also faced with the gaps and discrepancies in the statements of witnesses recorded by him and the testimonies the said witnesses gave before the court. He stood by the statements recorded in the case diary. 53. P.W. 11 admitted to lapses and violation of police regulations in the course of the investigation. He was contradicted by various prosecution witnesses on many material points. We find that on most material aspects, P.W. 11 (Om Prakash Katheria), is not a reliable witness. 54. P.W. 12—Constable Number 908 Abdul Rahman, testifying before the learned court below stated this. On 18.01.1985 after the preparation of the Panchnama, the body was sealed and was made over to him and Constable Shivnath. They deposited it in the mortuary. On the next date the postmortem was conducted by the doctor. The doctor sealed the clothes removed from the dead body, and handed over the bundle to them. The latter deposited it at the police station. The bundle was secured by seal and hence no tampering was possible. 55. They deposited it in the mortuary. On the next date the postmortem was conducted by the doctor. The doctor sealed the clothes removed from the dead body, and handed over the bundle to them. The latter deposited it at the police station. The bundle was secured by seal and hence no tampering was possible. 55. P.W. 13—Jaggan Singh, testifying before the learned trial court said that Ganga Ram was missing since 09.01.1985. His dead body was discovered on 18.01.1985. Five days after Ganga Ram went missing, his kurta with the tobacco pouch in the pocket of the said kurta were found entangled in small pebbles in the canal. After making the recovery of the said items, the I.O. created a recovery memo to which he and one Tej Singh were witnesses(emphasis supplied). The recovery memo (marked as Exh.Ka-3) was read out to them, and they put their signatures to it. He identified his signatures on Exh. Ka-3. On 14.01.1985, Ganga Ram’s pyjama was recovered from the hollow in the western wall of the room of Samrath's tubewell. The I.O. prepared a recovery memo(marked as Exh. Ka-4) which was also read out to them and they put their signatures to it. He identified his signatures on Exh.Ka-4. 56. The witness could not withstand the cross-examination, and materially changed his version of the recovery. Under cross-examination, he stated that on 13.01.1985 he alongwith some other persons went to the police station with Ganga Ram's kurta and tobacco pouch. They reached the police station at about 6-7 PM. (He clarified that they did not take Ganga Ram’s pyjama to the police station, but only his kurta and the tobacco pouch). They deposited the kurta and the tobacco pouch at the police station, but no recovery memo was prepared. The next day (14.01.1985) the I.O. reached the village, and prepared the recovery memo. However, he did not bring the kurta and tobacco pouch from the police station(emphasis supplied). 57. P.W.13-Jaggan Singh, was an independent prosecution witness of the recovery of the kurta and the pyjama of Ganga Ram. Under cross-examination he resiled from his statement in the examination-in-chief, and contradicted the recovery of kurta made by the Investigation Officer (P.W. 11) and also the recitals in the Recovery Memo (Exh. Ka-3). 58. P.W. 14—Constable Clerk Ram Babu, deposed thus before the trial court. Under cross-examination he resiled from his statement in the examination-in-chief, and contradicted the recovery of kurta made by the Investigation Officer (P.W. 11) and also the recitals in the Recovery Memo (Exh. Ka-3). 58. P.W. 14—Constable Clerk Ram Babu, deposed thus before the trial court. He made an entry in the Rojmancha on the foot of a complaint submitted by Bhikhari on 13.1.1985 at the police station, reporting the disappearance of his brother Ganga Ram. He identified his signature and handwriting on the Rozmancha Report No. 24, (marked as Exh. Ka-13). The original complaint submitted by the complainant on 13.01.1985, was sent with the General Rozmancha at the Record Room of Police Office for purposes of the BSR. He did not produce the original complaint submitted by the complainant. He could not explain the absence of the original complaint from the record books(emphasis supplied). 59. Failure to produce the original complaint as we shall see, would prove fatal to the prosecution case. V. Statement Under Section 313 Cr.P.C. 60. In proceedings under Section 313 Cr.P.C. the attention of the accused was drawn to various incriminating circumstances/ evidences against him. The accused-appellant denied the same and claimed that he was falsely implicated. VI. Concept of Circumstantial Evidence: Legal Perspective 61. There is no eye witness of the death of Ganga Ram. This is a case of circumstantial evidence. Rules of appraisal of circumstantial evidence are slightly distinct from the method of appreciating direct evidence. In a case of circumstantial evidence, prosecution brings various incriminating evidences which form links in the chain of circumstances pointing to the guilt of the accused person. Each link in the chain of circumstances, has to be proved by the prosecution by adducing legal evidence. Links in the chain of circumstances should be fully consistent with the guilt of the accused, and exclude any hypothesis of innocence. In case any link in the chain of incriminating circumstances is broken, or the prosecution fails to establish any vital link by legal evidence, the prosecution case becomes vulnerable. 62. The law on circumstantial evidence is settled by good authority. Sharad Birdhichand Sarda Vs. In case any link in the chain of incriminating circumstances is broken, or the prosecution fails to establish any vital link by legal evidence, the prosecution case becomes vulnerable. 62. The law on circumstantial evidence is settled by good authority. Sharad Birdhichand Sarda Vs. State of Maharashtra, reported at AIR 1984 SC 1622 , was a case of circumstantial evidence, wherein the imperative of proving the links in the chain of incriminating circumstances was laid down: “(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 (emphasis supplied). (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 (emphasis supplied), (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 supplied) [This proposition of law has been consistently reiterated over the years. [Ref: Hanumant Govind Nargundkar vs. State of M.P., reported at AIR 1952 SC 343 ; Padala Veera Reddy vs. State of A.P., reported at 1989 Supp (2) SCC 706; C. Chenga Reddy & Ors. vs. State of A.P., reported at (1996) 10 SCC 193 ; Ramreddy Rajesh Khanna Reddy vs. State of A.P., reported at (2006) 10 SCC 172 ; Sattatiya vs. State of Maharashtra, reported at (2008) 3 SCC 210 ; G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593 ; and Anjan Kumar Sarma and others Vs. State of Assam, (2017) 14 SCC 359 ]. 63. Another first principle of criminal jurisprudence applicable to cases of circumstantial evidences will guide the judgement. If two views are possible on the evidence adduced in a case, one attributing guilt to the accused and the other absolving him of the charge, the view favourable to the accused should be adopted by the courts (Ref: AIR 1973 SC 2773 ) VII. Appraisal of Evidence i. F.I.R. 64. If two views are possible on the evidence adduced in a case, one attributing guilt to the accused and the other absolving him of the charge, the view favourable to the accused should be adopted by the courts (Ref: AIR 1973 SC 2773 ) VII. Appraisal of Evidence i. F.I.R. 64. The first information report in criminal jurisprudence is a critical piece of prosecution evidence. Very often the credibility of the first information report determines the plausibility of the prosecution story. A prompt F.I.R. may be seen as a natural telling of the incident, since it could obviate the possibility of embellishments or false implication by after thought. We have the advantage of authority in point. 65. The holding of Hon’ble Supreme Court in Mukesh and another Vs. State (NCT of Delhi), reported at (2017) 6 SCC 1 , emphasized the importance of promptitude in lodgement of an F.I.R: “50. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by the courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors.” 66. The FIR is the first link in the chain of incriminating circumstances in this case. 67. The F.I.R. was recorded on 13.01.1985 at 08:10 PM on the foot of a written complaint given by the informant Bhikari P.W. 1. 68. Brief contents of the F.I.R. are as follows: “The complainant-Bhikari is the brother of Ganga Ram. Ganga Ram had gone to meet Indar in the evening of 09.1.1985 at the latter's tubewell to get his wages for labour. He has not returned home ever since. The complainant-Bhikari and others while searching for him, found his kurta and tobacco pouch. The F.I.R. also recorded details of the physical attributes of Ganga Ram and clothes he was wearing. (The F.I.R. is not in the record, and is being extracted from the judgment of the learned trial court)”. 69. The testimony of P.W.1 (Bhikhari) and P.W. 14 (Constable Ram Babu), (especially the highlighted portions), would be relevant in determining the veracity of the F.I.R. and its worth as a piece of inculpatory evidence. (The F.I.R. is not in the record, and is being extracted from the judgment of the learned trial court)”. 69. The testimony of P.W.1 (Bhikhari) and P.W. 14 (Constable Ram Babu), (especially the highlighted portions), would be relevant in determining the veracity of the F.I.R. and its worth as a piece of inculpatory evidence. The facts proved and conclusions drawn by us are these. 70. P.W. 1 Bhikhari became aware of Ganga Ram’s death at the time the kurta of Ganga Ram was discovered. In his perception there was hostility between Ganga Ram and Indar, due to inappropriate behaviour of the latter with Rajwati. These facts were in the knowledge of P.W.1 (Bhikhari), when he lodged the F.I.R. on 13.01.1985. Despite this, Indar was not named as an accused in the FIR. This supports the defence argument that the accused was falsely implicated after much deliberations. 71. The contents of FIR were not read out to the complainant P.W.1 Bhikhari. He was simply asked to put his signatures to it. The original complaint was never produced or proved. The contents of FIR, and the written complaint were not reconciled and proved together. There is no explanation for absence of the complaint from police records. Failure of the prosecution to produce the complaint and its absence from the record remain unexplained. 72. P.W. 1 (Bhikhari) had first gone to lodge an F.I.R. at an earlier point in time. However, the SHO (Daroga) declined to register the F.I.R. P.W. 1 Bhikhari and others simply made an oral complaint, and did not submit a written complaint. The F.I.R. was finally registered on a later date. 73. The F.I.R. was not registered promptly. There is no satisfactory explanation for the delay. In the facts of this case delay in lodgement of the FIR becomes fatal to the prosecution. These evidences cast serious doubt on the authenticity of the F.I.R. We find that the FIR is not proved beyond reasonable doubt. ii. Recovery Memos: 74. The second link in the chain of incriminating circumstances are the recoveries of the kurta (with tobacco pouch) and the pyjama of deceased Ganga Ram. 75. The recovery memo of the kurta (Exh. Ka-3) drawn up, by the Investigation Officer on 14.01.1985, essentially contains these recitals. The kurta was discovered near the bridge on the western bank of the canal. The second link in the chain of incriminating circumstances are the recoveries of the kurta (with tobacco pouch) and the pyjama of deceased Ganga Ram. 75. The recovery memo of the kurta (Exh. Ka-3) drawn up, by the Investigation Officer on 14.01.1985, essentially contains these recitals. The kurta was discovered near the bridge on the western bank of the canal. It was found at the distance of 65 furlong from the bridge lying under a deposit of small pebbles. Recoveries were made in the presence of the witnesses, Tej Singh and P.W. 13 Jaggan Singh. 76. The evidence will be evaluated on consideration of testimonies of P.W. 11, O.P. Katheria, P.W. 13 Jaggan Singh, P.W.1 Bhikhari, the recovery memo (Exh. Ka-3) and the FIR. 77. P.W. 11, Om Prakash Katheria conformed his testimony to the recitals in the recovery memo (Exh. Ka-3). The testimonies of P.W. 1 Bhikhari, and the statement of P.W. 13 Jaggan Singh and the relevant contents of the FIR squarely contradict the prosecution version of the recovery of the kurta of the deceased. The highlighted portions of the said testimonies may be referenced. 78. According to P.W.1 Bhikhari and the FIR version, the kurta and the pouch of the deceased were discovered on 13.01.1985 by the P.W. 1 Bhikhari and other villagers while searching for Ganga Ram. These articles were deposited by them in the police station on 13.01.1985. The testimonies of P.W. 1 (Bhikhari) and the corroborative testimony of P.W. 13 Jaggan Singh (under cross-examination) and recitals in the FIR in this regard are liable to be believed. 79. The recovery of the pyjama and pouch was not made on 14.01.1985, in the manner stated in the Recovery Memo (Exh. Ka-3). The testimony of P.W. 11 I.O. Shri O. P. Katheria to this effect is disbelieved. (The lack of reliability of P.W. 11 as a witness has already been discussed earlier in the judgment). 80. Consequently, we conclude that the recovery memo (marked as Exh. Ka-3) contains false recitals, and is accordingly discarded. 81. The prosecution has thus failed to prove the second important link in the chain of circumstances by legal evidence. 82. The recovery of Aligarh cut pyjama and recovery memo Exh. Ka-4, is of no avail to the prosecution case. Only PW-3 Nanuka claimed the Ganga Ram was wearing the pyjama on his head when he was last seen by the former. 82. The recovery of Aligarh cut pyjama and recovery memo Exh. Ka-4, is of no avail to the prosecution case. Only PW-3 Nanuka claimed the Ganga Ram was wearing the pyjama on his head when he was last seen by the former. The statement has been disbelieved by us. (This aspect will be elaborated later in the narrative). The recovery is not a relevant piece of evidence in this case. iii. Dead Body and Inquest Report 83. According to the testimony of the I.O. P.W. 11, on 18.01.1985, received information that a fully clothed dead body was lying near the canal at village Sarakpur. 84. Acting on the said information he reached the canal site and found the dead body. After the identification of the dead body, the inquest report (Exh. Ka-5) was prepared at the spot on 18.01.1985. 85. Five persons, namely, Balu S/o Mewa, Vijaypal Singh S/o Giriraj Singh, Chatar Singh S/o Lekha Singh,Yashpal Singh S/o Giriraj Singh and Gangu S/o Tulli Balmiki, were the witnesses of the inquest report. The said witnesses were not produced in court. iv. Postmortem Report 86. The relevant extracts of the postmortem report dated 19.01.1985 are as follows: Antemortem Injuries: 87. Ligature mark measuring 14x1 inches was round the neck. Just below the thyroid cartilage the boundaries of the injury were ecchymosed and contained small clots of blood. 88. The muscle below the injury on the neck was torn. The thyroid bone on the right side was broken. The carotid blood vessels of the neck were fractured. Both lungs were red. The stomach membrane was congested. Cause of death in the Postmortem Report: 89. Death is due to asphyxiation as a result of strangulation. Time of death in the Postmortem Report: 90. About one week. Discussion and Findings 91. Postmortem report materially agrees with the deposition of the P.W. 10 Dr. N. P. Agrawal before the court on the cause and time of death. The cause of death is stated in definite terms. The time of death has not been stated with pinpoint accuracy. The postmortem report drawn up on 19.01.1985, puts the time of death at one week prior to the report, i.e. on 12.01.1985. P.W. 10 under cross-examination, stated that there could be a variation of about 1-2 days in the time of death. The death could have happened on 10/11.01.1985. The time of death has not been stated with pinpoint accuracy. The postmortem report drawn up on 19.01.1985, puts the time of death at one week prior to the report, i.e. on 12.01.1985. P.W. 10 under cross-examination, stated that there could be a variation of about 1-2 days in the time of death. The death could have happened on 10/11.01.1985. However, P.W.10 did not rule out 13.01.1985 as the date of death. v. Motive 92. The evidentiary bearing of motive for the crime in a case of circumstantial evidence was discussed by a Division Bench of this Court in the case of Rajjan @ Yogesh Kumar Vs. State of U.P., reported at (2020) 110 ACC 162 : “41. …..Normally, prosecution should prove motive in a case based on circumstantial evidence. But, absence of motive in a case based on circumstantial evidence is not of much consequence when proved circumstances is so conclusive that it completes the chain in itself raising the only hypothesis that is the guilt of the accused(emphasis supplied).” 93. This narrative shall profit from the law laid down in Rajjan @ Yogesh Kumar (supra), as regards the issue of motive of the accused to commit the crime. 94. Illicit relations between Rajwati (W/o Ganga Ram) and accused Indar is ascribed by some prosecution witnesses as the motive for murder. P.W. 1(Bhikhari) stated that Indar used to make inappropriate remarks to Rajwati, and Ganga Ram expelled him from his house and refused to take money from him. However, we find that Ganga Ram infact went to take money from Indar. This part of the testimony of P.W. 1 Bhikhari is disbelieved. Further P.W. 5 Rajwati denied that Indar made inappropriate remarks prior to the incident on 09.01.1985. P.W. 2 Mewa was only “suspicious” of illicit relationship between Indar and Rajwati. P.W. 3 Nanuka claimed that he heard that Ganga Ram's wife and Indar had an illegitimate relationship. Evidence of P.W. 3 Nanuka is hearsay and is rejected out of hand for being inadmissible. 95. Most pertinently the testimony of P.W. 5 Rajwati, wife of Ganga Ram in this regard needs consideration. She denied the fact of illegitimate relations between her and Indar. She had in a very powerful and credible manner stated that she had four children and would not want any harm to come to her husband. 95. Most pertinently the testimony of P.W. 5 Rajwati, wife of Ganga Ram in this regard needs consideration. She denied the fact of illegitimate relations between her and Indar. She had in a very powerful and credible manner stated that she had four children and would not want any harm to come to her husband. Her defence of her reputation was stout and worthy of acceptance. 96. Highlighted portions of the testimonies of the said witnesses may be referenced. 97. The honour and reputation of a lady cannot be trifled with lightly so as to be tainted by unreliable testimony of a witnesse. In case aspersions are cast on the virtue and honour of a woman by a witness, the latter has to be put to strict proof of such imputations. 98. In this case the witnesses did not furnish reliable evidence of the serious charge they had made against P.W. 5 Rajwati. The prosecution witnesses could not prove illicit relations between Rajwati and accused Indar. The attempt of the prosecution to impute the character of Rajwati, with a view to supply motive to the crime, has completely failed. vi (a). Last Seen with the accused: Legal Backdrop 99. The evidence of “last seen with the accused” is also posited as an incriminating link in the circumstantial evidence against the accused. The legal backdrop in light of which the evidence of “last seen with the accused” will be assessed is stated below. 100. The “last seen with the accused” is a crucial element in the law of circumstantial evidence. The concept of “last seen with the accused”, is governed by the rule of evidence embodied in Section 106 of the Indian Evidence Act, 1872. Section 106 of the Indian Evidence Act, 1872 is extracted below: “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 101. The burden to prove the guilt of the accused lies upon the prosecution. The provision does not reverse the burden. The provision merely shifts the burden upon the accused for a limited purpose of proving some facts which are specially in his knowledge. [Ref: The meaning of the word “specially” in the Oxford English Dictionary is “in particular”]. 102. The burden to prove the guilt of the accused lies upon the prosecution. The provision does not reverse the burden. The provision merely shifts the burden upon the accused for a limited purpose of proving some facts which are specially in his knowledge. [Ref: The meaning of the word “specially” in the Oxford English Dictionary is “in particular”]. 102. The facts which are especially in the knowledge of the accused are basically those facts which are preeminently or exceptionally in the know of the accused. By the peculiar nature of the circumstances, such facts are predominantly or particularly in the knowledge of the accused, and are not in the knowledge of the public at large. Need for the Provision: 103. Need for the provision arose with the experience that in many cases the prosecution does not and more importantly cannot have knowledge of all facts or evidence which exculpate the accused. 104. The provision is designed for exceptional cases where it is almost impossible for the prosecution, or at any rate disproportionality difficult for the prosecution to obtain such evidence. The remote possibility of the prosecution to have access to these facts is paired with the reality of the same facts being in the predominant knowledge of the accused. In such circumstances these relevant facts can be conveniently elicited from the accused for the benefit of the judicial process. Limitations: 105. There is no easy or automatic recourse to the provisions of the Section 106 of the Indian Evidence Act, 1872. The provision does not relieve the prosecution of its responsibility to prove the guilt of the accused by legally accepted standards of evidence. 106. The provision can be applied when despite due diligence the facts elude the knowledge of the prosecution. But when after exercise of due diligence and proper investigation, such facts/evidence are equally capable of being discovered by the prosecution, those facts cannot be held to be especially within the knowledge of the accused. 107. The provision cannot be employed to supply defects in investigation or cover up for laxity in prosecution before the court. Prerequisites: 108. Before the provision can be invoked and the accused can be saddled with the burden of proving these facts, the prosecution has to satisfy certain prerequisites. 107. The provision cannot be employed to supply defects in investigation or cover up for laxity in prosecution before the court. Prerequisites: 108. Before the provision can be invoked and the accused can be saddled with the burden of proving these facts, the prosecution has to satisfy certain prerequisites. These conditions precedent form the jurisdictional foundation to invoke Section 106 of the Indian Evidence Act, 1872, and start the presumption of the facts being in the special knowledge of the accused. 109. The prosecution should discharge its burden by establishing various links of incriminating circumstances beyond reasonable doubt to the satisfaction of the court. These incriminating facts should create a reasonable inference of guilt against the accused. 110. Secondly the two events of the deceased being last seen with the accused, and the death of the former have to be in close proximity. In case the time period between the two events is very wide, the possibility of the deceased meeting with other people prior to his death becomes strong. Then the cause of the death of the victim would not be especially within the knowledge of the accused. Appreciation: 111. The evidence of “last seen” is a piece of evidence which has to be appreciated with the entire prosecution evidence before the court. It cannot be evaluated on a stand alone basis, or in isolation to other evidences adduced by the prosecution. Consequences: 112. Failure to explain the facts within the special knowledge of the accused merely becomes an incriminating link in the chain of circumstantial evidence. The probative effect of the prosecution evidence is enhanced in such cases by the silence of the accused. It cannot become the sole basis of conviction, without proving other links in the chain of circumstances. 113. Application of Section 106 of the Indian Evidence Act, 1872, to the case of an accused, who was the last seen with the deceased, puts upon such accused the burden of proving facts regarding the death of the victim especially within his knowledge. The accused can discharge this burden of proof by explaining the circumstances which comport with his innocence (for example when he and the deceased parted company). 114. The propositions shall now be fortified by authorities in point. 115. A Division Bench of this Court in the case of Ram Bharosey Vs. The accused can discharge this burden of proof by explaining the circumstances which comport with his innocence (for example when he and the deceased parted company). 114. The propositions shall now be fortified by authorities in point. 115. A Division Bench of this Court in the case of Ram Bharosey Vs. Emperor, reported at AIR 1936 All 833, observed that Section 106 has no application to cases where the fact in question capable of being known not only by the accused but also by others if they happened to be present when it took place. Section 106 cannot be invoked to make up for the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused: “6. ..It is perfectly clear that S. 106 contemplates facts which in their nature are such as to be within the knowledge of the accused and of nobody else: for instance, his own intention in doing an act (Illus. A) or the fact that he purchased a ticket though he was subsequently found to be without one (Illus B). It has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. It cannot, in my opinion, be invoked to make up for the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. Where facts proved by evidence give rise to the inference of guilt, unless rebutted, it is not the result of the application of S. 106, but of the probative force of such facts. 9. The learned Judge has been much influenced by the fact that the appellant has pleaded alibi and has denied that he was ever with the deceased on the night before the murder. I think where an inference adverse to an accused person can be drawn from a number of circumstances if the accused person is unable to offer any explanation which is compatible with his innocence or if it is proved that any explanation which he offers is false that is a further circumstance from which an inference can be drawn against him, but it is unsafe to hold that an accused person is necessarily guilty because he is making a false statement. Every case must be considered on its own merits and certainly in the present case I do not think it would be at all safe to assume that the appellant must be guilty because he has denied his association with the deceased just before the murder was committed. A person who is accused of a crime especially if he is ignorant and frightened may take what seems to him to be the line of least resistance and the best defence and may foolishly make a false statement when he would be better advised to make a true one. Section 106 of the Evidence Act, obviously refers to cases where the defence of the accused depends on his proving a certain fact, that is, cases where his guilt is established on the evidence produced by the prosecution unless he is able to prove some other facts especially within his knowledge which would render the evidence for the prosecution nugatory. I am satisfied that the case against the appellant is not proved at all.” 116. Hon'ble Supreme Court in the case of State of Rajasthan Vs. Kashi Ram, reported at (2006) 12 SCC 254 , while appreciating the “last seen together” evidence applied Section 106 of the Indian Evidence Act, 1872, in the following manner: “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Mad 218 .” 117. Further this Court in State of U.P. Vs. Satish, reported at 2005 (51) ACC 941, stated the caution and attending circumstances/evidences which have to be considered before applying the provisions of Section 106 of the Indian Evidence Act, 1872, and requiring the accused to establish his innocence: “23. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.” 118. Similar view was taken by the Hon'ble Supreme Court in the case of Mohibur Rahman Vs. State of Assam, reported at 2002 (45) ACC 687, held thus: “11. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. State of Assam, reported at 2002 (45) ACC 687, held thus: “11. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide. In the present case there is no such proximity of time and place. As already noted the death body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 kms. The event of the two accused persons having departed with the deceased and thus last sen together (by Lilima Rajbongshi, PW6) does not bear such close proximity with the death of victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9.2.1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24.1.1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable numbers of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal.” vi (b). Last Seen : Appreciation of evidence 119. P. W. 2 Mewa, P.W. 3 Nanuka and P.W.5 Rajwati were the witnesses who claimed to have seen the deceased Ganga Ram in the company of the accused-appellant before the former disappeared and was later found dead. 120. He is entitled to an acquittal.” vi (b). Last Seen : Appreciation of evidence 119. P. W. 2 Mewa, P.W. 3 Nanuka and P.W.5 Rajwati were the witnesses who claimed to have seen the deceased Ganga Ram in the company of the accused-appellant before the former disappeared and was later found dead. 120. P.W. 2, Mewa was a chance witness at Samrath's tubewell at about 05:00 PM, when he saw the accused with the deceased Ganga Ram. A chance witness is essentially one who is present at the site or witnesses the event, due to fortuitous circumstances, and his presence is not natural. Such witness has to justify or explain his presence at the site. The evidence of such witness has to be scrutinized carefully to determine whether the presence is established or is doubtful or ruled out. 121. There is admittedly no road connecting Mewa's agricultural field with Samrath's tubewell. Hence in the ordinary course of business P.W. 2 Mewa had no reason to be present at the tubewell at the appointed time. Only business of a specific character could have taken him to the tubewell at the time described by him. He could not state any business of exceptional or specific nature which brought him to the tubewell. His explanation for his presence at the tubewell is not satisfactory. 121.1. Further he had also asked Ganga Ram to accompany him back to his home when he saw the latter in the company of Indar/accused. This conduct was not natural. On the one hand, P.W. 2 Mewa claimed to be a close relative of Ganga Ram, and would thus be aware that Ganga Ram often slept at the tubewell. There was no reason for him to ask him to accompany him back to home. The presence of P.W. 2 Mewa at tubewell at the date and the time stated by him, is doubtful. His testimony in this regard is unreliable. We conclude that the prosecution has not been able to establish the presence of P.W.2 Mewa at the tubewell beyond reasonable doubt. In the earlier part of the narrative we have already found that P.W. 2 is not a reliable witness and his testimony is liable to be disbelieved. 122. There is another aspect to the matter. We conclude that the prosecution has not been able to establish the presence of P.W.2 Mewa at the tubewell beyond reasonable doubt. In the earlier part of the narrative we have already found that P.W. 2 is not a reliable witness and his testimony is liable to be disbelieved. 122. There is another aspect to the matter. P.W. 2 Mewa had claimed that he had seen Ganga Ram and Indar at the Samrath's tubewell ten days prior to the discovery of the dead body. 123. The dead body was discovered on 18.01.1985. The deposition of P.W. 2 Mewa if taken on face value, would mean that he had seen the deceased Ganga Ram with accused Indar on 08.01.1985. However, Nanuka, P.W. 3 claims that he had seen Ganga Ram with Indar on 9th i.e. 09.01.1985. Hence P.W. 2 Mewa cannot be regarded as a witness who saw the accused with the deceased. 124. P.W.3 Nanuka claims in his testimony that he had seen Ganga Ram with Indar on 9th (09.01.1985). The witness describes in meticulous detail the clothes deceased Ganga Ram was wearing. Incidentally the description of the clothing given by P.W. 3 Nanuka fully agrees with the articles of clothing claimed to have been recovered by the Investigation Officer. 125. The part of his testimony wherein he identified the Aligarh cut/style of the pyjama tied to the head of the deceased Ganga Ram made him a “suspect witness” in the eyes of the defence team. He was specifically cross examined as to how he could make out that the pyjama was of Aligarh cut(style), when the same was tied as a headgear by Ganga Ram. He replied that one leg of the pyjama was hanging in full view. The Aligarh cut/style is narrow at the bottom and broad at the top. 125.1. This description is out of the ordinary. In the normal course, in villages when a pyjama is tied as headgear, the legs of the pyjama are used in the likeness of a turban and compactly tied. They are never left dangling or hanging in full view. Further the description by P.W. 3 of the clothes Ganga Ram was wearing is at variance with evidence of P.W.5 Rajwati on the point. They are never left dangling or hanging in full view. Further the description by P.W. 3 of the clothes Ganga Ram was wearing is at variance with evidence of P.W.5 Rajwati on the point. The anxiety of P.W. 3 to make a statement in mirror image of the recoveries, and readiness to become an instrument of the Investigation Officer to bring home the guilt at all costs, are all too evident from the aforesaid deposition. The testimony is not worthy of belief. The P.W. 3 is clearly a tutored witness. His testimony is liable to be discarded. 126. P.W.5 Rajwati, claims that she also saw Ganga Ram with Indar ten days prior to the recovery of his dead body on 18.01.1985. However from the totality of evidence in the record, it appears that she had seen the accused in the company of the deceased, 9 days prior to the discovery of the body. P.W. 5 Rajwati last saw the deceased with accused. However, Section 106 of the Indian Evidence Act, 1872, is not applicable to the facts of this case, as the subsequent discussion will show. 127. According to the medical opinion received during trial, the death could have happened between 9th/10th. The time of death could vary from one to two days. But most importantly, P.W. 10 Dr. N.P. Agrawal, did not rule out the possibility of the victim dying on 13.01.1985. Consequently, we find that the variation in the time of death was from one and two to four days. Adopting the evidence which is favourable to the accused, the time of death of Ganga Ram would be four days after he was last sighted with the accused. This creates a wide time gap between the accused being sighted with deceased Ganga Ram, and the latter's death. There is every possibility of the deceased having met other persons in this period of four days. 128. In these facts, the cause of death of Ganga Ram was not within the special knowledge of the accused-appellant. Section 106 of the Indian Evidence Act, 1872, cannot be invoked against the accused-appellant. 129. Further, the prosecution having failed to prove any incriminating link in the chain of circumstances, cannot take the assistance of Section 106 of the Indian Evidence Act, 1872, to prove the guilt of the accused-appellant. The prosecution theory of “last seen together”,cannot rescue its failing case. vii. Investigation 130. 129. Further, the prosecution having failed to prove any incriminating link in the chain of circumstances, cannot take the assistance of Section 106 of the Indian Evidence Act, 1872, to prove the guilt of the accused-appellant. The prosecution theory of “last seen together”,cannot rescue its failing case. vii. Investigation 130. Large scale discrepancies in the investigation and repeated violations of police regulations have been evidenced in this case. The falsity of the recovery of the Kurta and tobacco pouch in the prosecution case has been established. 131. The cumulative effect of the investigative lapses is that the zealousness of the IO to “solve” the case by framing the accused cannot be ruled out. VIII. Findings 132. In summation we find: I. The prosecution failed to establish any link in the chain of circumstances consistent with the guilt of the accused-appellant by legal evidence. II. The prosecution has failed to prove the guilt of the accused-appellant beyond reasonable doubt. III. The accused-appellant is innocent of the charge of murder of Ganga Ram and of destruction of evidence and is liable to be acquitted. IX. Analysis of the judgment of learned trial court 133. The learned court below in the impugned judgment found that the leather belt of yoke of Samrath’s plough was missing. There was a possibility that the leather belt round the neck of deceased Ganga Ram's body, was in fact the missing belt of Samrath' yoke. This finding directly incriminated the accused-appellant. 134. We are afraid that the finding is made on the foot of conjectures and the very antithesis of the first principles of criminal jurisprudence. 135. While adverting to the circumstantial evidence, the learned court below upheld the recoveries of the personal articles of deceased Ganga Ram, namely, his kurta, tobacco pouch and pyjama. These recoveries linked the accused-appellant with the crime. The accused-appellant was seen in the company of the deceased by various witnesses. But he could not offer an explanation for the death of Ganga Ram. The illicit relations between the accused Indar and Rajwati, wife of the deceased Ganga Ram, provided the motive for crime. Thus in the opinion of the learned trial court the chain of incriminating circumstances was complete. The accused (appellant) was convicted and punished. The other accused were acquitted. 136. The learned trial court clearly misdirected itself in fact, evidence and the law. 137. Thus in the opinion of the learned trial court the chain of incriminating circumstances was complete. The accused (appellant) was convicted and punished. The other accused were acquitted. 136. The learned trial court clearly misdirected itself in fact, evidence and the law. 137. The judgment of the learned trial court dated 23.12.1986 is unsustainable in law and liable to be set aside. X. The Verdict 138. In view of the preceding narrative, we hold that the accused-appellant is not guilty as charged for the murder of Ganga Ram and destruction of evidence. We acquit the accused-appellant of the aforesaid charges under Section 302/201 I.P.C., for which he was prosecuted. 139. The judgment rendered by the learned trial court/learned Additional Sessions Judge-VI, Bulandshahr, in Sessions Trial No. 08 of 1986 (State Vs. Indar and others) on 23.12.1986 is set aside. 140. Criminal Appeal is allowed. 141. The appellant is in jail. We direct that the appellant be released forthwith from jail, unless he is detained in any other case. 142. The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary action. 143. The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.