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2022 DIGILAW 1173 (ALL)

Pratap Singh v. State of U. P.

2022-07-27

MANOJ MISRA, SAMEER JAIN

body2022
JUDGMENT : This appeal is against the judgment and order dated 5.2.2019/7.2.2019 passed by the Vth Additional Sessions Judge, Bareilly in Sessions Trial No. 596 of 2011, arising out of Case Crime No. 1073 of 2010, P.S. Izzatnagar, District-Bareilly, whereby the appellants have been convicted and sentenced under Sections 364/34, 302/34, 201 and 404/34 I.P.C. as follows : (i) 10 years R.I. as well as fine of Rs.5,000/- each, coupled with a default sentence of 2 months, under Section 364/34 I.P.C.; (ii) Imprisonment for life as well as fine of Rs.10,000/- each, coupled with a default sentence of 4 months, under Section 302/34 I.P.C.; (iii) 7 years R.I. as well as fine of Rs.5,000/- each, coupled with a default sentence of 2 months, under Section 201 I.P.C.; and (iv) 3 years imprisonment as well as fine of Rs.2,000/- each, coupled with a default sentence of one month, under Section 404/34 I.P.C. All sentences to run concurrently. INTRODUCTORY FACTS 2. On 3.5.2010, Mewa Ram (PW-1) gave a written missing report, dated 2.5.2010, (Exb. Ka-1) at P.S. Izzatnagar, District Bareilly which was entered in GD as report No. 70 (Exb. Ka-3), at 21.15 hours, by Head Constable Braj Raj Singh (PW-6). The written report (Exb. Ka-1) was scribed by Brij Nand Kumar Gola (son of PW-1 - not examined). In the missing report it is alleged that on 29.4.2010 at about 8.30 a.m., PW-1 left home to attend to his duties. When he returned at 5.30 p.m., he did not find his wife Munni Devi (the deceased), aged 47 years, present. On finding his wife absent, he dialled his wife's Mobile No. 9808068517 which was found switched off. After waiting for her till 8 p.m., he made efforts to contact his relatives to ascertain her whereabouts, but could get no information about her. During search of her possessions, it was found that her bank passbook of U.P. Regional Gramin Bank, Branch Partapur, Bareilly and Rs. 5,000/- including gold chain, earrings and other jewellery articles were missing. Suspecting foul play, missing report was lodged without naming any suspect. 3. As per prosecution story on 12.5.2010, PW-5 (Rajesh Kumar Singh) got information that discovery of an unknown female body was reported at P.S. Moosajhag, Badaun. On getting this information, PW-5, with PW-1 and Head Constable Vinod Kumar (not examined) went to P.S. Moosajagh, Budaun. Suspecting foul play, missing report was lodged without naming any suspect. 3. As per prosecution story on 12.5.2010, PW-5 (Rajesh Kumar Singh) got information that discovery of an unknown female body was reported at P.S. Moosajhag, Badaun. On getting this information, PW-5, with PW-1 and Head Constable Vinod Kumar (not examined) went to P.S. Moosajagh, Budaun. There, on the basis of clothes and photograph, PW-1 could identify that the photograph was of his missing wife Munni Devi's body. As a result whereof papers concerning inquest, autopsy, etc of that body were brought to P.S. Izatnagar, Bareilly and on 13.5.2010, vide report No. 33, at 10.30 hours, the missing report was converted into Case Crime No. 1073 of 2010 under Sections 364, 302, 201 I.P.C. 4. According to the prosecution case the appellants were arrested on 13.5.2010; at the time of arrest, appellant No. 1 (Pratap Singh) was found in possession of two mobile instruments of Nokia model No. 1208 and 1209, with SIM of numbers 8954197544 and 9808068517. Evidencing that seizure, a memorandum (Exb. Ka-11), witnessed by PW-1 and other police personnel, was prepared. After investigation it was found that Mobile No. 8954177544 was of Pratap Singh (appellant No. 1) whereas Mobile No. 9808068517 was of Munni Devi's son Yatindra. The call detail records collected indicated that calls were exchanged between the two mobile numbers on 25.4.2010, 26.4.2010, 27.4.2010 and 29.4.2010. 5. During investigation, on 5.6.2010 statement of Jagan Lal (PW-2) was recorded. He disclosed that on 29.4.2010, at about 11 a.m., he noticed Pratap Singh and Raju (appellants) with Munni Devi (the deceased) at Pachlore Chauraha on Rampur road. 6. After completing the investigation, on 5.6.2010 charge-sheet (Exb. Ka-13) was submitted by Pradeep Kumar Tripathi (PW-8) against the appellants. Cognisance was taken on the charge-sheet and thereafter the case was committed to the Court of Session. On 4.5.2012, the Court of Session charged both the appellants with offences punishable under Sections 364/34, 302/34, 201 and 404/34 I.P.C. The appellants pleaded not guilty and claimed trial. PROSECUTION EVIDENCE 7. During the course of trial, the prosecution examined as many as nine witnesses. Their testimony, in brief, is as follows : 8. PW-1 - Mewa Ram (husband of the deceased). He reiterated the contents of the written report (Exb. Ka-1). Thereafter, PW-1 stated that missing report of his wife was published in the newspaper. PROSECUTION EVIDENCE 7. During the course of trial, the prosecution examined as many as nine witnesses. Their testimony, in brief, is as follows : 8. PW-1 - Mewa Ram (husband of the deceased). He reiterated the contents of the written report (Exb. Ka-1). Thereafter, PW-1 stated that missing report of his wife was published in the newspaper. [Note: The newspaper report was produced, which was marked material exhibit-1] (This newspaper cutting reveals that news item was published on 5.5.2010 with photograph of the deceased). PW-1 stated that thirteen days after the incident, he came to know from the police that an unknown female body has been found within the jurisdiction of P.S. Moosajhag, District Budaun. On this information, PW-1 and police personnel from police station Izzatnagar went to police station Moosajhag where, from clothes and photograph it was ascertained that the photograph was of the body of the deceased. It was also discovered that the inquest and autopsy of the body had been done and it was cremated. In respect of recovery of the mobile which his wife (the deceased) was using, PW-1 stated that it was not recovered in his presence. Rather, the police had recovered it. In respect of relationship with his wife (the deceased), PW-1 stated that on 2.5.1999 while they were travelling together they met with an accident in which his wife sustained injuries. Since then, his wife (the deceased) had behavioural issues. She used to make false accusations and used to speak loudly. To cure herself of these behavioural issues she came in the grip of 'Tantrik' (sorcerer) and 'Sadhus' (saints). PW-1 stated that he learnt that when he used to be away from his house, 'Tantrik' (Pratap) used to visit her. On 25.7.2013, PW-1 was examined again to identify the seized clothes etc. worn by the deceased at the time of her death. On the basis of their identification by PW-1, those clothes etc were made material exhibits. During cross-examination, PW-1 stated that he had been with his wife for 25 years; that the written report (Exb. Ka-1) was scribed by his son Brijendra Kumar Gola and it was given on 2.5.2010. The information regarding his wife being missing was published in the newspaper; that neither her abduction nor murder was witnessed by him; and that neither in the written report (Exb. Ka-1) was scribed by his son Brijendra Kumar Gola and it was given on 2.5.2010. The information regarding his wife being missing was published in the newspaper; that neither her abduction nor murder was witnessed by him; and that neither in the written report (Exb. Ka-1), nor in the article published in the newspaper, suspicion was expressed against anyone. He denied the suggestion that he had lodged a false missing report. 9. PW-2 -Jagan Lal - This witness has been examined by the prosecution as a witness of last seen circumstance. PW-2 stated that he knows PW-1 and his wife (Munni Devi-the deceased) as earlier they used to reside in CB Colony near PW-2's house. He also knows accused Pratap Singh and Raju as Pratap's sister is married in village Pinidher where PW-2's sister is married. Pratap Singh and Raju were residing as tenants of Sriram, which is half a kilometre from PW-2's house. Village Pachlore falls within the jurisdiction of P.S. CB Colony. In respect of the incident, PW-2 stated that on 29.4.2010, at about 11 a.m., he saw Pratap Singh and Raju with Munni Devi at Pachlore Chauraha, Rampur road. They were waiting for a conveyance. All three were wearing clothes of yellow colour. When PW-2 asked them as to where they were going, all three told him that they were going to Sai Baba's Darbaar. PW-2 stated that few days later, he read in the newspaper that Munni Devi had gone missing. He also learnt that body of Munni Devi was found within the jurisdiction of PS Moosajhag, District Budaun. He stated that in the newspaper, photograph of Munni Devi was published. When he met Mewa Ram (PW-1), he informed PW-1 that he had noticed Munni Devi in the company of Pratap Singh and Raju on 29.4.2010. During cross-examination, PW-2 stated that Mewa Ram's house in CB Colony was at a distance of 200-300 meters from his house; that now in that house of Mewa Ram, Mewa Ram's son is residing. On being questioned as to when Mewa Ram shifted from CB Colony's house, PW-2 stated that he does not remember. But he clarified by stating that PW-1 and his wife had been visiting CB Colony. PW-2 stated that his relations with Mewa Ram are cordial and being residents of the same locality, they had been on visiting terms. On being questioned as to when Mewa Ram shifted from CB Colony's house, PW-2 stated that he does not remember. But he clarified by stating that PW-1 and his wife had been visiting CB Colony. PW-2 stated that his relations with Mewa Ram are cordial and being residents of the same locality, they had been on visiting terms. PW-2 stated that though he had not met Mewa Ram in those 10-15 days preceding the date of the incident but he had met him (Mewa Ram) 5-6 days after the incident. PW-2 further stated that he has a furniture shop at Rampur road. In respect of the day of the incident i.e. 29.4.2010, PW-2 stated he had left his house at quarter to 11 in the morning to go to his furniture shop. He arrived at his shop at quarter to 12. That day, he was in his shop till the evening. When he left his house for the shop, he did not meet anyone. Immediately thereafter, PW-2 clarified that when he was returning in the evening from his shop he did not meet anyone but, while he was going to his shop, he met Pratap, Raju and Munni Devi. In respect of his reaction on the missing report published in the newspaper, PW-2 stated that the newspaper report about Munni Devi going missing was published 3-4 days after the incident. The day he read the missing report in the newspaper, he gave information to Mewa Ram (PW-1). Mewa Ram had come to his house with his son. The relevant extracts of PW-2's statement in this regard are reproduced below : ^^esjh ?kVuk ls igys eghuk nks eghuk igys eqUuh nsoh] izrki ls eqykdkr ugha gq;h Fkh v[kckj eas fudyk Fkk eqUuh nsoh xk;c gks x;h gS v[kckj esa rhu pkj fnu ckn fudyk FkkA ftl fnu eSus isij esa iढ+k ml fnu eSus esokjke dks lwpuk nh FkhA mlh fnu esokjke vius iRuh ds fo"k; es iwNrkN djus vk;s Fks esokjke ds lkFk mldk csVk Hkh FkkA^^ On further questioning, PW-2 stated that he gave information to the police about 15 days after the incident. The police had interrogated him at P.S. Izzatnagar. PW-2 admitted the suggestion that his sister is married in the same village where Pratap's sister was married. The police had interrogated him at P.S. Izzatnagar. PW-2 admitted the suggestion that his sister is married in the same village where Pratap's sister was married. However, PW-2 denied the suggestion that as relations between his sister and Pratap's sister are sour, he is making a false statement. 10. PW-3 - Majid - A village chowkidar who discovered the body of the deceased. He stated that about 3-1/2 years ago, at about 5 p.m., while he was herding his goats in the jungle, he found a female body in a Barsati Naala. The body was in a yellow colour sari and blouse. He gave information about discovering the body. Upon his information, the police arrived at the spot, conducted inquest and sent it for autopsy. During cross-examination, he stated that he found the body at about 5.30 p.m.. He stated that he is not a literate person; he had just put his thumb impression on the report; that the body had marks of injury around the neck. 11. PW-4 - Dr. Harpal Singh- He is the autopsy surgeon who conducted the autopsy. He stated that on 1.5.2010, while he was posted as Medical Superintendent at District Hospital, Budaun, at about 3.30 p.m., he conducted autopsy of an unknown female body. PW-4 stated that in his report he described the body as of average built and that rigor mortis had passed off; decomposition had started; skin was peeling off; abdomen was distended; and the entire body including face was swollen. No external ante-mortem injury was noticed but, on dissection of neck, trachea was found congested; hyoid bone was found fractured; brain and lungs were congested; stomach was empty; small intestine had chyme and gases; large intestine had faecal matter and gases. According to him, death was a result of asphyxia due to injuries noticed on the neck. On the basis of his statement, autopsy report was marked Exb. Ka-2. PW-4 stated that time since death before autopsy was about 2-3 days. Opportunity to cross-examine PW-4 was given but it was not availed. 12. PW-5 - Rajesh Kumar Singh. He stated that on 3.5.2010, he was posted at Chowki of PS Izzatnagar when PW-1 (Mewa Ram) lodged a missing report regarding his wife Munni Devi. During investigation, he learnt that an unknown female body was found within the jurisdiction of PS Moosajhag, Budaun. 12. PW-5 - Rajesh Kumar Singh. He stated that on 3.5.2010, he was posted at Chowki of PS Izzatnagar when PW-1 (Mewa Ram) lodged a missing report regarding his wife Munni Devi. During investigation, he learnt that an unknown female body was found within the jurisdiction of PS Moosajhag, Budaun. On getting that information, he, PW-1 and Head Constable Vinod Kumar went to PS Moosajhag and there from the clothes and photograph of the body, PW-1 identified that the photograph was of his wife's body. Consequently, he obtained inquest report and other papers and gave information to SHO Pradeep Kumar Tripathi (PW-8) whereafter, vide report No. 33, dated 13.5.2010, at 10.30 hours, the missing report was converted into Case Crime No. 1073 of 2010, under Sections 364/302/201 I.P.C. PW-5 stated that on 13.5.2010 itself, he, alongwith S.O. Pradeep Kumar Tripathi (PW-8), arrested the accused Pratap Singh and Raju from near CB Ganj Railway Station at about 19.30 hours. From the possession of Pratap Singh mobile set of Munni Devi (the deceased) was recovered, which was identified by PW-1. During cross-examination, PW-5 denied the suggestion that the accused was wrongly shown arrested on 13.5.2010 at 19.30 hrs when, in fact, he was lifted from his house in the morning at 5.00 a.m. on 13.5.2010 and thereafter was made to sit at the police station. Note: It appears from paper No. 32 Kha/89 on the trial Court record that PW-5 was shown the news paper report wherein arrest of the appellant Pratap on the previous date was published. In that context, PW-5 admitted that such information was published in the newspaper. He, however, denied the suggestion that a false case was fabricated against the accused. At this stage, the witness was given another suggestion, which was, that Pratap's servant was lifted on 12.5.2010 and was made to sit at the police station, which was published in newspaper. PW-2 denied this suggestion and claimed that no such news was published in the newspaper. He also denied the suggestion that the accused persons were lifted from their shop and falsely implicated. 13. PW-6- Head Constable Braj Raj Singh. He is the person who made GD Entry of the missing report (Exb. Ka-1) submitted by PW-1. He stated that in the month of May, 2010, he was posted as Head Constable at PS Izzatnagar. He also denied the suggestion that the accused persons were lifted from their shop and falsely implicated. 13. PW-6- Head Constable Braj Raj Singh. He is the person who made GD Entry of the missing report (Exb. Ka-1) submitted by PW-1. He stated that in the month of May, 2010, he was posted as Head Constable at PS Izzatnagar. On 3.5.2010, Mewa Ram (PW-1) gave a written missing report which was entered in the GD on 3.5.2010 at 21.15 hours vide report No. 70. He proved the copy of the GD entry, which was marked Exb. Ka-3. He stated that on 13.5.2010, S.I. Rajesh Kumar Singh (PW-5) returned to the police station with information about the death of Smt. Munni Devi and had deposited the inquest report, autopsy report alongwith a bunch of papers. PW-5 also told PW-6 that the informant has been able to identify the body of his wife on the basis of clothes and photographs. PW-6 stated that the autopsy report indicated that death was a result of strangulation therefore, vide report No. 33, dated 13.5.2010, at 10.30 hours, the missing report was converted into Case Crime No. 1073 of 2010, under Sections 364/302/201 I.P.C. He proved copy of the GD entry of conversion, which was marked Exb. Ka-4. During cross-examination, PW-6 confirmed that the missing report was given by PW-1 on 3.5.2010 at 21.15 hours which was entered in the GD by Constable Clerk Virendra Kumar. He stated that Constable Virendra Kumar was posted with him at the police station. He identified the signature of Virendra Kumar. He stated that the GD entry of conversion was made on return of S.I. Rajesh Kumar Singh when he had come with inquest report, clothes etc. of the deceased. He denied the suggestion that the conversion entry was made under pressure of S.I. Rajesh Kumar Singh. He also denied the suggestion that the Constable Clerk Virendra Kumar was not posted with him at the police station concerned. He also denied the suggestion that missing report was fabricated. 14. PW-7 - S.I. Virendra Pal Singh. He is a witness of preparation of inquest report and papers relating to autopsy of the body. He stated that on 30.4.2010, he was posted at PS Moosajhag, Budaun. On that day, village Chowkidar-Majid gave information with regard to discovery of a female body in his area. 14. PW-7 - S.I. Virendra Pal Singh. He is a witness of preparation of inquest report and papers relating to autopsy of the body. He stated that on 30.4.2010, he was posted at PS Moosajhag, Budaun. On that day, village Chowkidar-Majid gave information with regard to discovery of a female body in his area. On receipt of that information, PW-7 and fellow police personnel went to the spot and conducted inquest. After conducting inquest, he prepared papers such as challan lash, photo lash, etc. for autopsy of the body. The inquest report and autopsy related papers were marked Exb. Ka-5 to Exb. Ka-10. 15. PW-8 - Pradeep Kumar Tripathi -The Investigating Officer. He stated that he was posted as In-charge of P.S. Izzatnagar. On 13.5.2010, he took over investigation of Case Crime No. 1073 of 2010; that after collecting copy of inquest report, autopsy report, etc he recorded the statements of Constable Braj Raj Singh and Mewa Ram (the informant) and made search for the accused persons; that the accused persons were arrested; they confessed their guilt and from Pratap, Mobile No. 8954197544 and 9808068517 (which was of Munni Devi) were recovered. Both mobiles were seized and sealed in a cloth; a seizure memo was prepared, which was signed by him, the witnesses and Pratap (the accused). The seizure memo was marked Exb. Ka-11. The second CD parcha was prepared on 22.5.2010 when statement of I.O., who prepared inquest report, village chowkidar and other inquest witnesses were recorded and on the instructions of that village chowkidar, the site plan of the place from where body was recovered was prepared, which was marked Exb. Ka-12. He stated that on the same day, he recorded statement of Raksh Pal, Sukhbir Singh and the Constable, who took the body for autopsy. On 27.5.2010, he obtained ID of the two mobiles as also their call detail records (CDRs). From the CDRs it was noticed that calls were exchanged between the two mobiles on 25.4.2010, 26.4.2010, 27.4.2010 and 29.4.2010. After 29.4.2010, there were no calls made, inter se, the two mobiles. He stated that one mobile recovered from Pratap was in the ID of Pratap whereas the other mobile, which was allegedly in use of the deceased (Munni Devi), was in the name of her son (Yatindra). After 29.4.2010, there were no calls made, inter se, the two mobiles. He stated that one mobile recovered from Pratap was in the ID of Pratap whereas the other mobile, which was allegedly in use of the deceased (Munni Devi), was in the name of her son (Yatindra). PW-8 stated that on 3.6.2010, he recorded the statement of S.I. Rajesh Singh, S.I. S.S. Mishra, Head Constable Vinod Kumar, Constable Bhupendra Kumar and Constable Amit Kumar. Thereafter, on 5.6.2010, he recorded statement of Jagan Lal (PW-2). After completing the investigation, he submitted charge-sheet under Sections 302, 364, 201 and 404 I.P.C., which was marked Exb. Ka-13. During cross-examination, he stated that he took over investigation of the case on 13.5.2010; by then, on 12.5.2010, the body of Munni Devi (the deceased) had already been identified on the basis of photograph at P.S. Moosajhag, District Budaun. He stated that he had not gone to PS Moosajhag. Rather, the Chowki Incharge S.I. Rajesh Kumar Singh and Head Constable Vinod Kumar had gone to PS Moosajhag. With them, deceased's husband Mewa Ram had also gone. He denied the suggestion that he did not properly investigate the case and submitted a false charge-sheet. On 31.3.2017, PW-8 was re-examined. He stated that the mobile instrument mentioned in the seizure memo (Exb. Ka-11) is not before him because, despite request for its production, report was received that due to fire in the Malkhana, the mobiles got destroyed in respect of which a GD entry was made on 13.5.2013, vide report No. 68 at 22.30 hours. During cross-examination, the witness confirmed that the mobile was destroyed in the fire that took place in the Malkhana. On 2.11.2018, PW-8 was again re-examined under order of the Court dated 27.6.2018. During re-examination, PW-8 stated that when the accused Pratap was arrested, two mobile phones were recovered, namely, 8954197544, which was of Pratap, and 9808068517, which was of the deceased; and the call detail records indicated that inter se the two mobiles multiple calls were exchanged. PW-8 clarified that Mobile No. 8954197544 stood in the name of Pratap Singh whereas Mobile No. 9808068517 stood in the name of Yatindra son of Munni Devi. PW-8 proved the CDRs obtained by him from Call Detail Electronic System. Those CDRs were marked Exb. Ka-15 to Exb. Ka-22. 16. PW-9 - Ved Prakash Agnihotri. PW-8 clarified that Mobile No. 8954197544 stood in the name of Pratap Singh whereas Mobile No. 9808068517 stood in the name of Yatindra son of Munni Devi. PW-8 proved the CDRs obtained by him from Call Detail Electronic System. Those CDRs were marked Exb. Ka-15 to Exb. Ka-22. 16. PW-9 - Ved Prakash Agnihotri. He stated that he was posted at Sadar Malkhana police station, Bareilly. In the Malkhana register vide Serial No. 1168/12 articles were deposited in connection with Case Crime No. 1073 of 2010. On 24.7.2014, there was a fire accident in Sadar Malkhana, Bareilly and the articles got destroyed. He proved the report in connection therewith which was exhibited as Exb. Ka-14. During cross-examination, PW-9 stated that clothes etc. of the deceased, which were also deposited vide report No. 1168/12 in connection with Case Crime No. 1073 of 2010, were produced on 25.7.2013. He reiterated that the fire accident in the Malkhana took place on 24.7.2014. STATEMENT OF THE ACCUSED UNDER SECTION 313 CRPC 17. (a) Statement of accused Raju: In his first statement recorded on 4.2.2015, he denied the incriminating circumstances appearing in the prosecution evidence against him and stated that he met Munni Devi only when Mewa Ram (PW-1) used to visit Budaun with her; on his own, he never visited Bareilly. He claimed himself innocent and falsely implicated. He denied the incriminating circumstance in respect of recovery of mobile of Munni Devi as also with regard to the call detail records. In his additional statement recorded on 3.11.2017, he stated that he is innocent and this is the first criminal case against him. On 17.1.2019, yet another additional statement of accused Raju was recorded in which, in response to Question No. 2, Raju stated that there was no recovery of mobile of Munni Devi from him. He again denied the call detail records put to him. He also denied having conversations with Munni Devi on the mobile. (b) Statement of accused-appellant Pratap: His first statement under Section 313 Cr.P.C. was recorded on 4.2.2015 in which he denied the incriminating circumstances including the recovery of mobile phone of Munni Devi from him which was put to him vide question No. 6. He also denied telephonic conversation with Munni Devi, which was put to him vide question No. 9. (b) Statement of accused-appellant Pratap: His first statement under Section 313 Cr.P.C. was recorded on 4.2.2015 in which he denied the incriminating circumstances including the recovery of mobile phone of Munni Devi from him which was put to him vide question No. 6. He also denied telephonic conversation with Munni Devi, which was put to him vide question No. 9. He stated that the investigation was not fair; that a false charge-sheet has been submitted; that there is enmity between him and Jagan Lal (PW-2) and he has been falsely implicated. Additional statement was recorded on 3.11.2017 in respect of report of fire accident at Malkhana on 24.7.2014 and destruction of articles in that fire. He denied the said circumstance and claimed that this is the first criminal case against him. In addition to above, another additional statement of Pratap was recorded under Section 313 Cr.P.C. on 17.1.2019 wherein, in response to question No. 2 put to him, he again denied the recovery of mobile of Munni Devi from him. Further, he did not admit the CDRs put to him vide question No. 3; and denied having talks with Munni Devi from Mobile No. 8954197544 on Mobile No. 9808068517. But he did not deny that mobile No. 8954197544 was in his name and that mobile No. 9808068517 stood in the name of son of Munni Devi. He claimed that the prosecution has failed to prove its case and therefore, he be acquitted. DEFENCE EVIDENCE 18. A defence witness was examined, namely, Smt. Ratnesh, as DW-1. 19. DW-1 stated that she is a neighbour of Pratap; she has been residing in Budaun for last 10 years; that the lady who has been killed, was never seen in her mohalla; Pratap has a shop; in that shop, Raju works as an employee. They have been falsely implicated. During cross-examination, DW-1 stated that she is illiterate; she appeared as a witness without being summoned; she was informed by Pratap that she has to give her evidence; she gave her statement as a neighbour of Pratap and whatever she has stated is correct. She admitted that when Pratap leaves his house, he does not inform her; she does not know whether Pratap had visited Pachlore, Bareilly on 29.4.2010. She denied the suggestion that she has made a false statement to save Pratap. She admitted that when Pratap leaves his house, he does not inform her; she does not know whether Pratap had visited Pachlore, Bareilly on 29.4.2010. She denied the suggestion that she has made a false statement to save Pratap. She also denied the suggestion that Pratap is a ''Tantrik'' and practiced sorcery for the purposes of extorting money, jewellery etc. To the Court, DW-1 informed that she is a household lady and remains in her house. She admitted that there are several houses in her colony and she is not aware as to who visits her neighbour. TRIAL COURT FINDINGS 20. The trial Court found following circumstances proved : that on 29.4.2010, the deceased went missing from her home; that the deceased was not keeping well, therefore she use to take help of ''Tantrik'' etc.; that the deceased had been in touch with the appellant Pratap as could be elicited from the CDRs of the two mobiles; that on the day when she went missing i.e. 29.4.2014, there were exchange of calls inter se mobile of the deceased and mobile of the accused Pratap; that on 29.4.2010, PW-2 saw the accused Pratap and Raju with the deceased at about 11 a.m. in a yellow saree; that the deceased was not seen alive thereafter; that on 30.4.2010 the body of the deceased was discovered wearing yellow colour saree; that the autopsy report confirmed homicidal death; that the medical evidence indicated that her death could have occurred on 29.4.2010; and that the accused Pratap was found in possession of the mobile of the deceased. Upon finding all the above circumstances proved, the trial Court found these circumstances constituting a chain so complete that in absence of any explanation from the appellants as to when they parted company of the deceased and how the mobile phone of the deceased came in their possession, it pointed conclusively that except the appellants there was no one else who committed murder of the deceased and to hide evidence thereof disposed off the body in the jungle. After holding as above, the appellants were convicted and sentenced as above. 21. We have heard Sri R.S. Tripathi for the appellants and Sri J.K. Upadhyay, learned A.G.A., for the State and have perused the record. SUBMISSIONS ON BEHALF OF THE APPELLANTS 22. The learned counsel for the appellants submitted that the prosecution case is based on circumstantial evidence. After holding as above, the appellants were convicted and sentenced as above. 21. We have heard Sri R.S. Tripathi for the appellants and Sri J.K. Upadhyay, learned A.G.A., for the State and have perused the record. SUBMISSIONS ON BEHALF OF THE APPELLANTS 22. The learned counsel for the appellants submitted that the prosecution case is based on circumstantial evidence. Firstly, the incriminating circumstances have not been proved beyond reasonable doubt and, secondly, it does not form a chain so complete as to conclusively point towards the guilt of the appellants by ruling out hypotheses consistent with the innocence of the appellants. That apart, the prosecution story appears inherently improbable and does not at all inspire confidence for the following reasons : (i) The deceased went missing from home on 29.4.2010 yet, PW-1 (husband of the deceased) who came to learn about the deceased having gone missing in the evening of 29.4.2010 lodged no report till the night of 3.5.2010. Moreover, PW-1 himself stated that his wife had behavioural issues since 1999 and she used to make false accusations on him and use to speak loudly and had fallen in the grip of Tantriks and saints; and that it was learnt that in his absence Tantrik Pratap (the appellant No. 1) used to visit her house yet, there is no mention of these facts in the missing report, which was lodged after three clear days. Further, these circumstances would indicate that PW-1 had motive to get rid off his wife and, therefore, his conduct of delaying the missing report shrouds the prosecution story in doubt and throws a serious possibility of PW-1 having a hand in the murder of his wife; (ii) PW-5 stated that during investigation on the missing report he received information with regard to discovery of an unknown female body within the jurisdiction of P.S. Moosajhag, Budaun but the date, time and source when and from whom PW-5 received that information is not disclosed. PW-8 also does not disclose the source of that information. PW-1 only states this much that after 13 days he learnt from the police station that a dead body was found within the jurisdiction of P.S. Moosajhag, Budaun. No witness from police station Moosajhag, Budaun, except PW-7, has been produced to prove as to when information of discovery of body was given either to PW-1 or to the police of police station Izatnagar, Bareilly. No witness from police station Moosajhag, Budaun, except PW-7, has been produced to prove as to when information of discovery of body was given either to PW-1 or to the police of police station Izatnagar, Bareilly. PW-7 who was posted at P.S. Moosajhag, Budaun at the relevant time speaks of holding inquest on 30.4.2010. He does not give any information as to when information with regard to discovery of body was provided to PW-1 and the police of P.S. Izatnagar. Thus, the prosecution evidence is silent as to how the information about discovery of body came to P.S. Izzatnagar. Further, from the testimony of both PW-1 and PW-2 it is clear that news item of the deceased going missing with her photograph was published in newspaper on 5.5.2010, giving numbers of persons to be contacted on getting any information (See Material Exb. 1), yet, till 12.5.2010 no information about the deceased could be gathered, which is unbelievable. It therefore appears to be a case where the investigation agency in collusion with PW-1 was building up a story and when they found a soft target, the story was given its shape. It may also be a case where the investigating agency was groping in the dark and just to solve out the case developed the prosecution story. These two possibilities derive strength also from the circumstance that if the body was identified on 12.5.2010, as per testimony of PW-8, then why there was no conversion entry of the missing report till 13.5.2010 and why there was no recording of statement of the informant (PW-1) till 13.5.2010. All of this would suggest that either the investigating agency in collusion with PW-1 was building up a case with ulterior motive or it had no clue about the murder and just to solve out the case, the story was developed by guess work upon finding a soft target. 23. All of this would suggest that either the investigating agency in collusion with PW-1 was building up a case with ulterior motive or it had no clue about the murder and just to solve out the case, the story was developed by guess work upon finding a soft target. 23. The recovery of mobile phone of deceased's son, alleged to be in use of the deceased, from Pratap on 13.5.2010 is completely bogus and false for the following reasons: (a) the recovery memorandum says that recovery was made in the presence of PW-1 on 13.5.2010 but PW-1, in his statement, specifically stated that mobile of his wife was not recovered in his presence rather, the police on its own recovered the mobile; (b) the recovery is neither on the basis of a disclosure statement nor from any place where the mobile might have been hidden, rather, it was found in possession of the appellant-Pratap at the time of his arrest on 13.5.2010. There appears a news paper report, publication of which is accepted by PW-5 on the suggestion given to him, that Pratap was lifted from home earlier. Therefore, the entire recovery becomes doubtful. Further, as per call detail record, there is no call made from Mobile No. 9808068517 after 29.4.2010 therefore, what was the purpose of carrying the said mobile by the accused from 29.4.2010 till 13.5.2010. Otherwise also, the tower location of the mobile was not obtained to ascertain whether the two mobiles at any given time were found at one location. All of this would suggest that this mobile was very much in possession of the informant or a member of his family and was planted only to create evidence of recovery against the appellant. 24. The CDRs are not proved inasmuch as there is no certificate as contemplated by Section 65-B (4) of the Evidence Act. Even otherwise, as there is no evidence in respect of location of the mobile, even if calls were exchanged between the two instruments, namely, one of the appellant Pratap and the other of the deceased, it can be of no help in drawing an inference with regard to the guilt of the accused appellants for the offences of abduction or murder. 25. 25. In so far as the last seen circumstance narrated by PW-2 is concerned, firstly, the testimony of PW-2 is highly unreliable as he is just a chance witness, secondly, his statement was recorded after a month on 5.6.2010 even though, according to PW-2, he had good relations with PW-1 and had noticed the missing report published in the newspaper just 3-4 days after she had gone missing and, thirdly, PW-2 claims that he gave information of the last seen circumstance to PW-1 immediately on reading missing report in the newspaper but, if that was so, PW-1 would have made a prompt disclosure to the police about complicity of the appellants. Interestingly, there was no such disclosure by PW-1 even in his statement to the I.O. on 13.5.2010. All of this would suggest that the police was groping in the dark and just to solve out the case, false evidence was created. 26. It was argued that the trial Court has failed to evaluate the evidence in proper perspective and it took the evidence fabricated against the appellant as gospel truth. Hence, it was prayed that the judgment and order of the trial Court be set aside and the appellant be acquitted. SUBMISSIONS ON BEHALF OF THE STATE 27. Sri J.K. Upadhyay, learned A.G.A., appearing for the State, submitted that the delay in lodging the missing report is not sufficient to draw an adverse inference against the prosecution because it is quite natural that a person would be on the look out for his wife and only when he finds himself helpless that he would lodge a report. It was argued that there is no dispute that out of the two mobiles recovered from the possession of the appellant No. 1, one was of appellant No. 1. The call detail records were exhibited and no objection to its admissibility was raised. Rather, the counsel for the accused-appellants, namely, Sri S. Raizada, made an endorsement on the CDRs to the effect that he accepts their genuineness. Therefore, its admissibility cannot be challenged in appeal. The call detail records indicated exchange of calls between the mobile of the appellant and the other mobile, which stood in the name of deceased's son Yatindra and was in use of the deceased. Therefore, its admissibility cannot be challenged in appeal. The call detail records indicated exchange of calls between the mobile of the appellant and the other mobile, which stood in the name of deceased's son Yatindra and was in use of the deceased. There is no explanation of the appellant No. 1 as to in what connection calls were made to and received from the other mobile. This clearly means that the appellants are hiding true facts. It was submitted that since the police witnesses have proved the recovery of the two mobiles from appellant No. 1 and the CDRs indicate that there were exchange of calls between the two mobiles, the burden was on the accused to explain as to in what circumstances the other mobile was in his possession. In absence whereof, an adverse inference in respect of the guilt of the appellant was rightly drawn by the trial Court. 28. Learned A.G.A. also submitted that PW-2 had noticed the deceased in the company of the two appellants on 29.4.2010 at about 11 a.m. and thereafter the deceased was not seen alive. Nothing much could be pointed out with regard to any malice or enmity of PW-2 with the two accused as to doubt his testimony therefore, the burden was on the two accused to explain whether they parted company with the deceased or not. In absence of any explanation and in view of recovery of the mobile of the deceased from the appellant No. 1, the trial Court was justified in holding that the chain of circumstances stood complete pointing conclusively that in all human probability it was the appellant and no one else who committed the murder of the deceased and to remove the evidence of murder, threw her body in a Naala. Learned A.G.A. therefore prayed that the appeal be dismissed and the judgment and order of conviction and sentence be confirmed. ANALYSIS 29. Having noticed the rival submissions and the entire evidence on record, admittedly, there is no direct evidence of the crime therefore, before we proceed to evaluate the evidence, we must bear in mind the legal principles as regards when an accused can be convicted on evidence circumstantial in nature. The law in this regard is well-settled. ANALYSIS 29. Having noticed the rival submissions and the entire evidence on record, admittedly, there is no direct evidence of the crime therefore, before we proceed to evaluate the evidence, we must bear in mind the legal principles as regards when an accused can be convicted on evidence circumstantial in nature. The law in this regard is well-settled. In the oft-quoted and consistently followed decision of the Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , the legal principles in this regard have been summarised, in paragraph 153 of the judgment, as follows : ''153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 , where the following observations were made: ''19. .....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.'' (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.'' 30. In light of the legal principles noticed above, we would have to ascertain, firstly, as to what were the incriminating circumstances relied upon by the prosecution, secondly, whether those were of conclusive nature and tendency, thirdly, whether the prosecution has been successful in proving those circumstances beyond reasonable doubt and, fourthly, whether they form a chain so complete as to show, by excluding all reasonable hypotheses consistent with the innocence of the accused, that in all human probability the act must have been done by the accused and no one else. 31. In the instant case, the prosecution seeks to rely on following circumstances : (a) The deceased, wife of PW-1, after her accident in the year 1999, had behavioural issues as a result whereof she was seeking advice and had fallen in the grip of ''Tantriks/Priests''. The accused-appellant No. 1 was a ''Tantrik''. The deceased was in touch with the accused-appellant No. 1 as could be gathered from CDRs of the mobile of the appellant No. 1 and the mobile in use of the deceased. On 29.4.2010 at about 5.30 p.m., when PW-1 returned from office, he discovered his wife (the deceased) missing. Upon which, when PW-1 dialled the mobile of the deceased it was found switched off. Despite hectic search when deceased could not be traced out and when it was noticed that she had taken Rs. 5000/- cash, a missing report was lodged by PW-1 at P.S. Izatnagar, Bareilly on 3.5.2010. Whereafter, when it was learnt that a female body was found within the jurisdiction of PS Moosajhag, Budaun, on 12.5.2010 PW-1 with the police team of P.S. Izzatnagar, Bareilly went to P.S. Moosajhag, Budaun where, from clothes and photograph of the body, it was identified that the body which was found on 30.4.2010 and cremated thereafter was of the deceased. (b) Inquest report dated 30.4.2010 and autopsy report dated 1.5.2010, collected from P.S. Moosajhag, Bareilly, confirmed a homicidal death. Autopsy report prepared on 1.5.2010 at 3.30 p.m. indicated that the deceased could have died about 2-3 days before, which correlates with the date 29.4.2010 i.e. the date when she went missing; (c) PW-2 saw the deceased and the two appellants together at 11.00 a.m. on 29.4.2010. When PW-2 noticed the deceased she was wearing a yellow colour saree. Autopsy report prepared on 1.5.2010 at 3.30 p.m. indicated that the deceased could have died about 2-3 days before, which correlates with the date 29.4.2010 i.e. the date when she went missing; (c) PW-2 saw the deceased and the two appellants together at 11.00 a.m. on 29.4.2010. When PW-2 noticed the deceased she was wearing a yellow colour saree. The body of the deceased was clothed in the same colour, which fact is confirmed by its photograph, inquest report and clothes seized at the time of inquest/autopsy; (d) On 13.5.2010 two mobile phones were recovered from the appellant No. 1; one of those two, was of the son of the deceased in use of the deceased. The CDRs of the two mobile phones confirmed exchange of calls inter se the two mobile phones. The last call from/on the mobile used by the deceased was on 29.4.2010 which corroborates PW-1's statement that deceased's mobile was found switched off when he dialled her number; (e) No explanation came from the appellants as to under what circumstances they were together with the deceased and whether they parted company of each other, if so, when. Further, there is no explanation as to in what circumstances appellant Pratap was found in possession of the mobile phone of the deceased. According to the prosecution, these circumstances formed a chain so complete that pointed conclusively that in all human probability it was the appellants and no one else who committed the murder of the deceased for the money which the deceased was carrying when she left her home on 29.4.2010. 32. According to the prosecution, these circumstances formed a chain so complete that pointed conclusively that in all human probability it was the appellants and no one else who committed the murder of the deceased for the money which the deceased was carrying when she left her home on 29.4.2010. 32. Having narrated the circumstances on which the prosecution seeks to build its case against the appellants, for a convenient and effective analysis of the evidence, we divide the evidence led by the prosecution into multiple parts, namely, (a) that the deceased was wife of PW-1; (b) she had an accident in 1999 due to which she used to have behavioural issues; (c) for treatment of those issues she used to consult Tantrik etc in which connection Pratap Tantrik used to visit her house; (d) that on 29.4.2010 at 8.30 a.m. PW-1 left his house to attend to his duties and returned at 5.30 p.m. to find his wife absent; (e) upon finding his wife absent, he dialled her number 9808068517, which was found switched off; (f) when, despite hectic search, PW-1 could not find his wife, he submitted missing report (Exb. Ka-1), dated 2.5.2010, on 3.5.2010 at 21.15 hrs at P.S. Izzatnagar; (g) that on 12.5.2010, upon information that an unknown body was found within the jurisdiction of P.S. Moosajhag, Budaun, PW-1 and PW-5 visited the said police station and identified the body from its photograph and clothes; (h) that from the police papers received from P.S. Moosajhag, Budaun it was noticed that the body was discovered by PW-3 in the Naala of a jungle on 30.4.2010 at about 5.00 p.m. or so and that the autopsy confirmed that it was a homicidal death; (i) that on 13.5.2010, vide report No. 33, at 10.30 hrs, on the basis of papers received from P.S. Moosajhag, case was converted to case crime No. 1073 of 2010 at P.S. Izzatnagar, Bareilly and investigation was taken over by PW-8; (j) on 13.5.2010, statement of PW-1 was recorded; (k) on 13.5.2010 at 19.30 hrs both the appellants were arrested from CB Ganj, Railway Station and from the possession of appellant Pratap two mobiles were recovered, one was of the appellant Pratap and the other was of deceased's son, which was claimed to be in use of the deceased, of which seizure memorandum (Ex. Ka-11) was prepared; (l) the call detail records of the two mobiles indicated that there had been exchange of calls between the two mobiles from 25.4.2010 to 29.4.2010 and the last call on/from the mobile in use of the deceased was made on 29.4.2010 i.e. the date when the deceased went missing; (m) on 29.4.2010 at 11 a.m., PW-2 had noticed the deceased in the company of two appellants and at that time the deceased was wearing yellow colour saree; (n) that the body of the deceased which was found next day on 30.04 2010 had a saree of yellow colour; and (o) the autopsy report dated 1.5.2010 not only proved that death was homicidal but it also indicated that it occurred two or three days before, which correlates with the date when she was last seen alive in the company of the appellants. Admissibility of the CDRs without the certificate 33. Before we proceed to determine whether each of the above narrated circumstances have been proved beyond reasonable doubt, we would deal with the legal submission of the learned counsel for the appellant with regard to the admissibility of the CDRs brought on record without the certificate as contemplated under Section 65-B (4) of the Evidence Act. It is now settled by a three-judge Bench decision of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and others, (2020) 7 SCC 1 , following an earlier three-judge Bench decision in Anvar P.V. v. P.K. Basheer and others, (2014) 10 SCC 473 , that the certificate required under Section 65-B (4) of the Evidence Act is a condition precedent to the admissibility of secondary evidence of an electronic record and that the secondary evidence is admissible only if led in the manner stated and not otherwise. In that decision it was held that Section 65-B differentiates between the original information contained in the computer itself and copies made therefrom - the former is the primary evidence and the latter being secondary evidence. It was held that certificate required under Section 65-B (4) is unnecessary if the primary evidence, such as a laptop, computer, computer tablet or even a mobile phone, etc is produced and proved by its owner by entering the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. However, where the computer happens to be a part of the computer system or computer network and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with S.65-B(1), together with the requisite certificate under Section 65-B (4). 34. In this case the issue that arises for our consideration is a bit different. Here, we notice from the trial Court record that the genuineness of the call detail records (CDRs) was admitted by Sri S. Raizada Advocate, counsel representing the accused-appellants. On the basis of his admission, the CDRs were exhibited as Exb. Ka-15 to Exb. Ka-20 and Exb. Ka-21. However, there is no certificate on record as contemplated by Section 65-B (4) of the Evidence Act. In this context, the moot question that arises for our consideration is whether, once the secondary evidence of the CDRs is taken on record as an exhibited document consequent to acceptance of its genuineness by the counsel for the accused-appellants, the same is to be eschewed from consideration for want of a certificate as contemplated by Section 65-B (4) of the Evidence Act. This issue is no longer res integra. In Sonu alias Amar v. State of Haryana, (2017) 8 SCC 570 , an identical issue came up for consideration before the Supreme Court. The Supreme Court relying on earlier decisions including one in R.V.E. Venkatchala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, (2003) 8 SCC 752 , held that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage but where objection is with regard to the mode or method of proof, the same being procedural, if not taken at trial, cannot be permitted at appellate stage. The Supreme Court held that it is nobody's case that CDRs which are a form of an electronic record printed on paper are not inherently admissible in evidence. The objection is only in respect of mode or method of proof. If an objection was taken to CDRs being marked without a certificate, the trial Court could have given the prosecution an opportunity to rectify the deficiency. The objection is only in respect of mode or method of proof. If an objection was taken to CDRs being marked without a certificate, the trial Court could have given the prosecution an opportunity to rectify the deficiency. The Supreme Court observed that an objection relating to mode or method of proof is to be raised at the time of marking of document as an exhibit i.e. at the trial stage, and not later. With the above reasoning, upon finding that the CDRs were already exhibited in the records of the trial Court and the objection was only with regard to the mode of proof, the Supreme Court overruled the objection as to the admissibility of the CDRs without the certificate contemplated under Section 65-B(4). The above decision of the Supreme Court was followed in Rajender alias Rajesh alias Raju v. State (NCT of Delhi), (2019) 10 SCC 623 , where also, the Supreme Court did not allow raising of objection at the appellate forum as to the admissibility of CDRs for want of certificate under Section 65-B (4) of the Evidence Act. In light of the decisions noticed above, we are of the view that once genuineness of the CDRs was admitted by the counsel representing the appellants before the trial Court and, consequent to that admission, they were marked Exb. Ka-15 to Exb. Ka-20 and Exb. Ka-21, objection with regard to their admissibility for want of certificate contemplated under Section 65-B(4) of the Evidence Act, raised for the first time before appellate Court, is liable to be rejected and is, accordingly, rejected. Relevance of the CDRs 35. Although the CDRs may be admissible in evidence but as to how far they are relevant to indicate the involvement of the appellants in the crime is another issue altogether. It be noted that the exhibited CDRs only indicate exchange of calls between two mobiles, namely, No. 8954197544 and No. 9808068517. The latter is claimed to be in use of the deceased, though it stands in the name of her son, whereas the former is of the appellant. The CDRs produced do not indicate the tower location as to show that at any time the two instruments were found at one location. Further, there is no voice call recording to indicate as to who was talking with whom. The CDRs produced do not indicate the tower location as to show that at any time the two instruments were found at one location. Further, there is no voice call recording to indicate as to who was talking with whom. In these circumstances, the CDRs produced would only indicate some kind of acquaintance between the caller and the recipient of the call and nothing more. Had the CDRs indicated that the mobile instrument seized had used both SIMs, that is, one of the accused-appellant Pratap and the other of the deceased, then an inference could have been drawn that both instruments at some stage were in possession of one person. But here the CDRs do not indicate that same instrument was used for making calls by using both SIMs. In these circumstances, the relevance of CDRs is only to show that the caller and recipient of the call were acquainted with each other. Evaluation of the Evidence 36. Now we shall advert to the evidence in respect of the facts culled out in paragraph 32 herein above. The facts that the deceased is the wife of PW-1, used to live with PW-1, had an accident in the year 1999, giving rise to behavioural issues, are proved by the testimony of PW-1 as regards which, there appears no serious cross-examination by the defence. However, the allegation that in connection with her behavioural issues she was in contact with Tantriks (sorcerers) or saints including the appellant Pratap is not proved by any cogent evidence. Testimony of PW-1 in this regard is that he had heard that when he used to be away, Tantrik Pratap used to visit his house. This statement is hearsay and is not admissible in proof of that fact. PW-2, the other witness of fact, neither states that Pratap is a Tantrik nor states that he saw Pratap visiting the house of deceased/PW-1. PW-2, however, stated that on 29.4.2010 at 11 a.m. he saw the deceased in the company of the appellants near Pachlore Chauraha. PW-2 also stated that they had told him that they were going to Sai Darbaar. PW-2, however, stated that on 29.4.2010 at 11 a.m. he saw the deceased in the company of the appellants near Pachlore Chauraha. PW-2 also stated that they had told him that they were going to Sai Darbaar. But since PW-2 did not state that Pratap is a Tantrik and use to visit the house of the deceased or that the deceased used to visit his house in connection with Tantrik Kriya (sorcery), the testimony of PW-2 does not at all prove that, firstly, appellant Pratap was a Tantrik and, secondly, the deceased was in the grip of the appellant (Pratap) in connection with Tantrik Kriya (sorcery). Even if we accept the testimony of PW-2 that the deceased, wearing a yellow colour dress, was noticed with the appellants at Pachlore Chauraha on 29.4.2010 at 11 a.m. and they reported to PW-2 that they were going to Sai Darbaar, in absence of further details in the testimony, no inference can be drawn with regard to appellant (Pratap) being a Tantrik and of him having a grip on the deceased. Notably, there is no evidence that the deceased was taken by the appellants from her place of residence at Sun City. Further, no witness of Sun City colony, where the deceased resided with her husband, has been examined to prove that in absence of PW-1 the appellant used to visit the deceased. In these circumstances there is no worthwhile evidence to prove that the appellant was a Tantrik and that he visited the house of the deceased or that the deceased was in his grip. We are therefore of the firm view that the prosecution has failed to prove that, firstly, appellant was a Tantrik, secondly, that he had been visiting the house of the deceased, or vice versa, in connection with Tantrik Kriya (sorcery) and, thirdly, that the deceased was in the grip of the appellant (Pratap). 37. We shall now evaluate the evidence in respect of alleged recovery of mobile of the deceased from appellant Pratap and of the deceased being last seen alive with the appellants on 29.4.2010. Before evaluating the evidence in respect of these two circumstances, we would like to put on record that the mobile alleged to be in use of the deceased and recovered from the appellant Pratap was in the name of the son of the deceased. Before evaluating the evidence in respect of these two circumstances, we would like to put on record that the mobile alleged to be in use of the deceased and recovered from the appellant Pratap was in the name of the son of the deceased. Son of the deceased has not been produced as a witness. In this context, it would be worthwhile to examine whether the son of the deceased resided at the same place where deceased resided or he resided elsewhere. According to PW-1 he resided with his wife at Sun City. In his testimony PW-1 does not state where his son, whose mobile was used, resided. From PW-1's statement during investigation, it appears that Yatindra, in whose name the mobile was, had been in Noida in connection with his studies. However, this part of his statement is not admissible. Interestingly, PW-2 stated that the deceased and her husband (PW-1), earlier, use to reside in C B Colony where PW-2 also had his house. From there, they (deceased and her husband) shifted to Sun City colony. As per PW-2, son of PW-1 continued to reside in C. B. Colony. It is not disclosed whether the mobile recovered was of that son who resided at C.B. Colony. Be that as it may, it is not proved on record that the son of the deceased, whose mobile was being allegedly used by the deceased, resided with the deceased. Using phone of a family member who resides under the same roof is not uncommon. But using phone of a person, even though part of the family, who resides elsewhere is an unnatural circumstance which requires an explanation. In this regard PW-1's son who was the owner of the mobile phone, allegedly recovered from the appellant Pratap, was a material witness, which the prosecution did not produce. He could have thrown light on the issue whether the mobile recovered was in regular use of the deceased or he had handed over the mobile to her that day itself. Notably, PW-2, who allegedly noticed the deceased with the appellants near Pachlore Chauraha at 11 a.m. on 29.4.2010, stated that village Pachlore falls in P.S. C B Colony. Interestingly, as per PW-2, the son of the deceased continued to reside in C B Colony. Notably, PW-2, who allegedly noticed the deceased with the appellants near Pachlore Chauraha at 11 a.m. on 29.4.2010, stated that village Pachlore falls in P.S. C B Colony. Interestingly, as per PW-2, the son of the deceased continued to reside in C B Colony. In such circumstances, a doubt is created in our mind whether the deceased on that fateful day had come to C B Colony to her son's house and from there, after taking his mobile, went to some other place. For clarity on all these issues, testimony of PW-1's son, who was the scribe of the FIR, was important. He was a material witness whom the prosecution did not produce. That apart, there is inordinate delay in making a missing report. All these circumstances do not inspire our confidence in the prosecution story therefore, we would have to carefully scrutinise the evidence in respect of alleged recovery of mobile as well as the circumstance of the deceased being last seen alive in the company of the appellants. 38. As to whether the prosecution has been successful in proving beyond reasonable doubt the recovery of the mobile in use of the deceased from the appellant is an issue which we shall address now. Notably, the appellant Pratap in his statement under Section 313 CrPC has claimed the alleged recovery as bogus. It is noteworthy that the recovery is not on the basis of a disclosure statement from a place where the mobile might have been kept or hidden. Rather, it is from the appellant Pratap when he was arrested on 13.5.2010 at 19.30 hrs of which a seizure memorandum (Ex. Ka-11) was prepared. PW-1 who is a witness to the memorandum (Exb. Ka-11) states that the police did not recover the mobile phone in his presence. Importantly, a suggestion was given to PW-5, who effected arrest and recovery, that arrest was made much earlier than stated and the fact of arrest was reported in newspaper earlier than the disclosed time of arrest. Though, this suggestion has been refuted but the fact that it was so published in the newspaper has been admitted by PW-5 during cross-examination. What is also interesting is that there is no arrest memorandum on record. Though, this suggestion has been refuted but the fact that it was so published in the newspaper has been admitted by PW-5 during cross-examination. What is also interesting is that there is no arrest memorandum on record. On perusal of the case diary we noticed that when on 13.5.2010 the statement of PW-1 was recorded he had not disclosed the name and description of the accused but has only given information regarding involvement of a Tantrik. Notably, arrest was shown to have been made at C B Ganj Railway Station on the tip off given by PW-1. In such circumstances whether the case was built against the appellants after their arrest or the arrest followed receipt of credible information against them is an issue which comes for our consideration. The former appears more probable because, firstly, the case diary contains no material to show as to what was the credible information available against the appellants before their arrest and, secondly, as per CDRs of Mobile Phone No. 9808068517 (alleged to be in use of the deceased), no call was made by using that SIM or that mobile instrument after 29.4.2010. It appears very strange as to why would the accused-appellant No. 1 carry mobile No. 9808068517 with him for 14 days without even using the same. Had it been hidden and recovered on the basis of a disclosure statement, the incriminating value of the recovery would have been much greater. But here the recovery is not on the basis of a disclosure statement made at the time of arrest. Moreover, PW-1 the witness of recovery, as per memorandum (Exb. Ka-11), does not support recovery of the phone. Further, there is a serious doubt about the timing of arrest as noticed above. Thus, keeping in mind that the owner of the instrument i.e. PW-1's son has not been produced as a witness and the CDRs of the mobiles do not give the tower location details to enable us to connect the location of the two mobiles qua each other as also qua the place where the body of the deceased was found, we are of the considered view that the circumstance of recovery of mobile of the deceased from the appellant No. 1 (Pratap) is unworthy of acceptance and is accordingly discarded. 39. 39. Now we shall examine whether the testimony of PW-2 that he saw the deceased in the company of the appellants on 29.4.2010 at 11 a.m. is worthy of acceptance. PW-2 is a person who resides in CB Ganj Colony where the informant (PW-1) used to reside before shifting to his new residence in Sun City Extension Colony. PW-2 states that he knew the deceased and her family as they were residents of the same colony. PW-2 also states that he also knows the accused because accused Pratap Singh's sister is married in the same village where PW-2's sister is married. PW-2 stated that few days after 29.4.2010, he had learnt about Munni Devi being missing. He had also come to know about recovery of the body of Munni Devi. He stated that news paper report, with photograph, of Munni Devi going missing was published. He stated that it was published 3-4 days after the incident; and the day he read the newspaper, he informed PW-1 that he had witnessed the accused and Munni Devi together on 29.4.2010. Notably, Ex. 1 (newspaper report) is dated 5.5.2010. We fail to understand that if PW-2 was so close to PW-1 that he immediately informed PW-1 what he saw on the day when the news was published, why there was no disclosure by PW-1 to the police before 13.5.2010. Notably, statement of PW-1 recorded in case diary on 13.5.2010 does not even disclose about receipt of information from PW-2. Otherwise also, if PW-2 was really a witness and had informed PW-1 of what he witnessed, why the statement of PW-2 was recorded by the I.O. on 5.6.2010 and not before. All these circumstances seriously dent the credibility of this witness. Other than that, PW-2 is a mere chance witness. He states that while he was going to his shop he noticed the accused and the deceased together at the Chauraha. The exact location of his shop is not disclosed. How close it was to the Chauraha is not disclosed. PW-2 therefore is a mere chance witness who made no prompt disclosure to the police despite being fully aware of the incriminating value of what he witnessed, which renders his testimony highly doubtful. The exact location of his shop is not disclosed. How close it was to the Chauraha is not disclosed. PW-2 therefore is a mere chance witness who made no prompt disclosure to the police despite being fully aware of the incriminating value of what he witnessed, which renders his testimony highly doubtful. More over, the fact that his statement was recorded on 5.6.2010, that is, at the fag end of investigation, would suggest that he is a got up witness to provide a link to an otherwise weak case of the prosecution. In these circumstances, the statement of PW-2 that he noticed the yellow colour saree of the deceased is not of much relevance to corroborate his testimony as, by this time, he could have easily been made aware of the colour of dress worn by the deceased when her body was found. We therefore hold that the last seen circumstance has not been proved beyond reasonable doubt. 40. Even otherwise, last seen theory operates when there is close proximity between the time and place when the deceased is last seen alive with the accused and recovery of the body of the deceased. But where there is a big gap, possibility of intervening circumstances cannot be ruled out. In such a scenario, the circumstance may only raise suspicion but it would not travel to the level of proof of guilt. In the instant case, the last seen circumstance is of 11 a.m. on 29.4.2010 whereas the body of the deceased was found in a jungle naala on 30.4.2010 at about 5.00 p.m.. The distance of that spot from the place where the deceased was last seen alive with the appellants is not disclosed specifically. Even the CDRs do not reflect location of the mobiles alleged to have been recovered. In such an event, reasonable probability of involvement of some one else cannot be ruled out. Thus, in a nut shell there is no worthwhile evidence to sustain conviction. 41. In view of our analysis above, we are of the considered view that the prosecution has failed to prove the charge against the appellants. The trial Court has failed to properly evaluate and test the prosecution evidence. Consequently, the appeal is allowed. The judgment and order of the trial Court is set aside. The accused appellants are acquitted of the charges for which they have been tried and convicted. The trial Court has failed to properly evaluate and test the prosecution evidence. Consequently, the appeal is allowed. The judgment and order of the trial Court is set aside. The accused appellants are acquitted of the charges for which they have been tried and convicted. The appellants are reported to be in jail. They shall be released forthwith, unless wanted in any other case, subject to compliance of provisions of Section 437-A Cr.P.C. to the satisfaction of the Court below. 42. Let a copy of this order alongwith record of the Court below be sent to the Court below for information and compliance.