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2022 DIGILAW 656 (ALL)

Subhash Chandra @ Kalloo v. State of U. P.

2022-04-28

MANOJ MISRA, SAMEER JAIN

body2022
JUDGMENT : 1. These two appeals are against the judgment and order dated 19.1.2013 passed by Additional Sessions Judge (E.C.P.), Court No. 26, Shahjahanpur in Sessions Trial No. 233 of 1993 whereby, the appellants have been convicted under Sections 302 and 201 I.P.C. and awarded sentence of imprisonment for life and seven years R.I., respectively, alongwith fine of Rs. 10,000/- and Rs. 5,000/- respectively. All sentences were to run concurrently. The appellants were, however, acquitted of the charge of an offence punishable under Section 364 I.P.C. INTRODUCTORY FACTS 2. The prosecution case, in brief, as per the written report (Exb. Ka-1), dated 4.10.1990, scribed by Ram Kishan (not examined), lodged by Shyama Charan (brother of the deceased - not examined), which was registered on 4.10.1990 at 20.30 hrs. giving rise to Case Crime No. 384 of 1990 at P.S. Jalalabad, District-Shahjahanpur, is that on 29.9.1990, informant's elder brother, Ram Ratan (the deceased), while he was in his jewellery shop at Jalalabad was visited by two persons, namely, Subhash Chandra @ Kallu (appellant No. 1 in Crl. Appeal No. 420 of 2013) and Parshuram (appellant in Crl. Appeal No. 1059 of 2013). At about noon, they took the deceased to Dussehera Mela (for short Mela). Omveer (PW-1), who had a jewellery shop there, spotted them going. At the Mela, they were spotted together with two ladies. Thereafter, at 6.30 p.m. they were spotted together going from Barah Patthar Chauraha towards Nagariya. Since thereafter, the deceased was not seen alive. As a result, informant inquired from Subhash, Parashuram and the two ladies namely, Khilauna and Nanhi (appellants 2 and 3 in Criminal Appeal No. 420 of 2013) but could get no information. By alleging that those two ladies have bad reputation and by expressing apprehension that they may have abducted the deceased with an eye on his property, the FIR was lodged. 3. During the course of investigation, on 5.10.1990, the investigating officer (I.O.) made recovery of the body of the deceased from a grove of Mukut Singh allegedly on the joint pointing out of the appellants Subhash and Parshuram. The recovery memorandum (Exb. Ka-3) was witnessed by Deshraj and Nathu Lal, who have not been examined. On the same day, a knife is also stated to have been recovered from the house of appellant-Subhash Chandra. The memorandum (Exb. Ka-4) in respect thereof was also witnessed by Deshraj and Nathu Lal. 4. The recovery memorandum (Exb. Ka-3) was witnessed by Deshraj and Nathu Lal, who have not been examined. On the same day, a knife is also stated to have been recovered from the house of appellant-Subhash Chandra. The memorandum (Exb. Ka-4) in respect thereof was also witnessed by Deshraj and Nathu Lal. 4. Thereafter, on 7.10.1990, at the instance of accused Nanhi, a bunch of keys allegedly of the deceased is stated to be recovered from a funeral ground at village Nagaria. The recovery memo (Exb. Ka-5) is witnessed by Kewal Ram and Bhoopram who have not been examined. 5. In between, inquest was conducted on 5.10.1990 at 16.50 hours which was witnessed by Nathu Lal (not examined), Deshraj (not examined), Kindar (not examined), Bhoopram (not examined) and Matadeen (not examined). 6. Autopsy was conducted by Dr. Rajendra Sharma (PW-5) on 6.10.1990 at 3 p.m.. The autopsy report (Exb. Ka-2) notices : ANTE-MORTEM INJURIES: (i) Multiple stab wound in an area 20 cm x 18 cm in front of the abdomen and part of chest 3 cm above left (sic) varying in size from 5 cm x 0.5 cm to 1 cm x 0.5 cm, cavity deep. (ii) One incised wound 4 cm x 2 cm, cavity deep, right side of abdomen 12 cm below right nipple. NOTE: Intestine loop coming out from injury No. 2. INTERNAL EXAMINATIONS: Internal examination revealed perforation of small intestine as well as stomach. Stomach and small intestine were empty and large intestine had faecal matter. CAUSE OF DEATH: Shock and haemorrhage as a result of ante-mortem injuries. ESTIMATED TIME OF DEATH: About one week before. 7. After investigation, the investigating officer - Vijendra Singh (not examined) submitted a charge-sheet (Exb. Ka-15). After taking cognisance on the charge-sheet, the case was committed to the Court of Session. On 20.5.1995, the appellants were charged for offences punishable under Sections 364, 302 and 201 I.P.C. The appellants pleaded not guilty and claimed trial. PROSECUTION EVIDENCE 8. During the course of trial, the prosecution examined six witnesses. Their testimony, in brief, is as follows : 9. PW-1 - Omveer. He was examined on 8.1.2001. He stated that about 10 years and 3 months ago Ram Ratan (the deceased) was taken by accused-appellants to the Mela. Thereafter, Ram Ratan was not seen alive. PROSECUTION EVIDENCE 8. During the course of trial, the prosecution examined six witnesses. Their testimony, in brief, is as follows : 9. PW-1 - Omveer. He was examined on 8.1.2001. He stated that about 10 years and 3 months ago Ram Ratan (the deceased) was taken by accused-appellants to the Mela. Thereafter, Ram Ratan was not seen alive. In his cross-examination, which took place on 31.1.2008, PW-1 stated that at the time when the incident occurred he was studying in school. On the day of the incident, there was a holiday in the school. In between his Sarafa (jewellery) shop and Ram Ratan's (deceased's) shop, there are three shops; he saw the accused, while he was sitting in his shop. He stated that with the four accused, he did not see any other person. On the same day, during cross-examination, he stated that he did not witness any incident and that he did not give any statement to the I.O. He stated that he does not know as to how the I.O. recorded his statement. At this stage, he was declared hostile and was cross-examined by the Public Prosecutor. During his cross-examination by the Public Prosecutor, he stated that the accused had not taken Ram Ratan (the deceased) in his presence and that the statement which he made earlier on 8.1.2001 was not given by him. When the Court put a question to him as to whether he had signed the statement made on 8.1.2001, he stated that it bears his signature. 10. PW-2 - Shiv Kumar. He is the son of the deceased. His statement was recorded on 24.1.2008. He stated that his father was taken from his shop by accused Parshuram and Subhash at about noon to visit the Mela. At that time, there were two ladies, namely, Khilauna and Nanhi, with the other two accused. He stated that when his father did not return, he and his family members had made a search for him and 7 days later, his body was discovered at Nigaria Khanti. He stated that after recovery of the body, accused Subhash Chandra (appellant No. 1 in Criminal Appeal No. 420 of 2013) came to his house, had meals and, on enquiry, confessed his guilt. He stated that accused Subhash stated that he, Parshuram, Nanhi and Khilauna had killed PW-2's father. He stated that after recovery of the body, accused Subhash Chandra (appellant No. 1 in Criminal Appeal No. 420 of 2013) came to his house, had meals and, on enquiry, confessed his guilt. He stated that accused Subhash stated that he, Parshuram, Nanhi and Khilauna had killed PW-2's father. He stated that the written report was signed by his uncle Shyama Charan. As PW-2 recognised the signature of Shyama Charan on the written report, the same was marked Exhibit Ka-1. In his cross-examination, PW-2 stated that his father (the deceased) was a shopkeeper having a shop at Kasba Jalalabad. His father used to stay in the village as well as in Jalalabad whereas, PW-2, his mother, etc used to reside in the village. PW-2 stated that he had received information that the shop is lying shut. He then stated that because he got information that the shop of his father was shut and the accused had taken his father in his presence he came to understand that his father was abducted. He stated that Ram Prasad is a resident of Baghapur. PW-2 stated that he had informed his uncle (the informant) that accused had come to take his father. PW-2 stated that he and Ram Kishan (scribe of the FIR) had seen the accused taking his father. Then he stated that Ram Kishan (not examined) had not seen the accused taking his father but Ram Prasad (PW-4) had seen the accused taking his father. Immediately thereafter, he clarified that both Ram Kishan and Ram Prasad had seen accused taking his father. On being confronted with his statement under Section 161 CrPC, he stated that he had informed the I.O. that Ram Chandra and Buddha (Chowkidar) (PW-2's servant) had seen the accused taking his father. He stated that Ram Prasad had told him that four accused were seen near Barahpur. He stated that he knows Subhash and Parshuram from before because Subhash's marriage was arranged by his father (the deceased). He stated that a missing report of his father was lodged with the police alleging that someone had abducted his father. In that missing report, the name of the accused were not mentioned. On further cross-examination, PW-2 stated that at the time of lodging the report, he was not aware that his shop had been looted. He stated that a missing report of his father was lodged with the police alleging that someone had abducted his father. In that missing report, the name of the accused were not mentioned. On further cross-examination, PW-2 stated that at the time of lodging the report, he was not aware that his shop had been looted. Thereafter, he stated that information which he had given was in respect of looting of the shop. He stated that his uncle had given the report in respect of shop being looted but he is not sure as to what articles were looted from the shop. He added that the witness Ram Prasad on his own did not inform him that the accused had taken Ram Ratan but when search and inquiry was made, three days later, Ram Prasad gave the information. PW-2 stated that Ram Prasad used to visit his shop on a daily basis and he gave information three days after his father had gone missing. He stated that his uncle Shyama Charan had made a missing report on the third day. He stated that this fact must have been disclosed in the written report but if it was not written, he cannot give a reason for it. On further cross-examination, PW-2 stated that he was informed by Ramchandra Teli that accused Subhash had looted the shop. He also stated that Ramchandra Teli had brought the accused to the police station and when the accused were beaten, they confessed and made a disclosure about the place where the body was kept. At this stage, when the witness was confronted with his previous statement that the accused had confessed his guilt before him, the witness stated that that statement is also correct. PW-2 stated that from police station he, his uncle, sister, brother, mother, police personnel and many others had gone to recover the dead body. He stated that after recovery of the body, the same was brought to the police station and at the police station, papers were prepared and signatures of his uncle and mother were obtained and from there the body was sent to the mortuary for autopsy. He then stated that the report was lodged after recovery of the body. Immediately thereafter, PW-2 corrected himself and stated that first report was lodged and thereafter, the body was recovered when the accused were beaten. He then stated that the report was lodged after recovery of the body. Immediately thereafter, PW-2 corrected himself and stated that first report was lodged and thereafter, the body was recovered when the accused were beaten. He accepted that his father was fond of eating and drinking. He denied the suggestion that he was not at Jalalabad at the time of the incident but accepted that he was a student of Class 5 at the time of the incident. He denied the suggestion that he witnessed nothing and whatever he had stated is on account of tutoring. 11. PW-3 - Patiram. He is another son of deceased Ram Ratan. He stated that the deceased had a shop at Jalalabad. He stated that about 17 years ago, at about 6 p.m., he had seen his father Ram Ratan in the company of accused Subhash, Parshuram and two ladies, namely, Nanhi and Khilauna. They were going from Barahpathar towards Nagaria. An hour later, he saw these four accused coming back from Nagaria, but without the deceased and they all looked nervous. Two or three days later, the accused Subhash, Parshuram, Nanhi and Khilauna had come to him and had confessed their guilt before him. He stated that the body of his father was recovered about seven days later. He stated that when he saw his father with the accused it was Dussehra. In his cross-examination, PW-3 stated that witness Shiv Kumar (PW-2) is his younger brother. At the time of the incident, PW-3 was student of Class 5 whereas his brother Shiv Kumar was a student of Class 3. He stated that their school was at Bighapur and not at Jalalabad. PW-3 stated that he, his brother and mother used to stay in the village. On further cross-examination, PW-3 stated that he came to know about the incident two days after, in the village, when his father did not return. PW-3 denied the suggestion that his father used to live in a rented accommodation at Jalalabad. PW-3 stated that Subhash had come to his house and had disclosed that his father's body has been discovered. PW-3 stated that Subhash had been making an effort to find out his father and had come to the village after four days. PW-3 stated that Subhash did not inform him that his father had been killed. PW-3 stated that Subhash had come to his house and had disclosed that his father's body has been discovered. PW-3 stated that Subhash had been making an effort to find out his father and had come to the village after four days. PW-3 stated that Subhash did not inform him that his father had been killed. He stated that when he questioned Subhash regarding the whereabouts of his father, Subhash did not give a clear information. PW-3 stated that the village of Subhash is 20 Kos (40 miles) away. He stated that his sister Badam is married to the elder brother of Subhash and because of that he had relations with them. He stated that his village and the village of accused Khilauna and Nanhi are separate and there is a gap of about 4 kms. He stated that before his statement in Court, no one had ever recorded his statement though he had given his statement to the police and had also informed the I.O. that Subhash had informed him about the murder of his father but if that was not written by the I.O., he cannot tell the reason for the same. He stated that when accused Subhash was arrested, he had visited the police station with his brother Shiv Kumar. Subhash was beaten by the police. He denied the suggestions that he gave no statement to the I.O.; that he did not witness any incident; that his statement is on the basis of tutoring; that he never saw the accused with his father at Barahpathar; and that he has given false statement on account of enmity. 12. PW-4 - Ram Prasad. He stated that Ram Ratan was killed 16-17 years ago but he did not see Ram Ratan in the company of the accused. At this stage, the witness was declared hostile. On being confronted with the statement recorded under Section 161 Cr.P.C., the witness stated that he does not know as to how his statement was recorded. He denied the suggestion that he has colluded with the accused. He told the Court that whatever he is stating is not under any coercion or inducement. 13. PW-5 - Dr. Rajendra Sharma-Autopsy Surgeon. He proved the autopsy report which was marked as Exhibit Ka-2. He accepted the possibility of death having occurred anytime after noon on 29.9.1990. He denied the suggestion that he has colluded with the accused. He told the Court that whatever he is stating is not under any coercion or inducement. 13. PW-5 - Dr. Rajendra Sharma-Autopsy Surgeon. He proved the autopsy report which was marked as Exhibit Ka-2. He accepted the possibility of death having occurred anytime after noon on 29.9.1990. In his cross-examination, he stated that it is not possible to specifically determine the time of death as it is just an estimation though, it is possible that the deceased might have died more than 5 days before the autopsy. 14. PW-6 - Jamadar Singh. He stated that he was posted at P.S. Jalalabad on 29.9.1990 when the report was registered. On 5.10.1990, he had accompanied the I.O.- S.I. Vijendra Singh to recover the body on the confessional statement of the accused. Upon reaching the spot, the body was dug out with the help of villagers, brother and sons of the deceased and was got identified. PW-6 stated that the body was recovered from a grove of Mukut Singh. The recovery memo was proved by him and was marked as Exhibit Ka-3. He stated that on the same day, the accused Subhash and Parshuram enabled recovery of the knife of which recovery memo was exhibited as Exhibit Ka-4. He stated that recovery memos Exhibit Ka-3 and Exhibit Ka-4 were under the signature of S.I. Vijendra Singh. He stated that on 7.10.1990, key chain was recovered at the instance of Nanhi from verandah of her house of which recovery memo Exhibit Ka-5 was prepared by S.I. Vijendra Singh. (Note: Recovery memo Ex. Ka-5 shows that key chain was recovered from a funeral ground). He proved the conduct of the inquest and preparation of the inquest report by S.I. Vijendra Singh and also proved preparation of challan-nash, photo-nash and letter to CMO and other papers in connection with autopsy. He also proved preparation of site plans by Vijendra Singh of the place from where : (i) the deceased was taken, (ii) the body was recovered, (iii) the knife was recovered and (iv) the keys were recovered, which were marked separately as Exhibit Ka-11 to Ka-14. He stated that after investigation, charge-sheet (Exhibit Ka-15) was submitted by S.I. Vijendra Singh whose signatures he could recognise. PW-6 proved the GD entry and chik FIR by recognising the signature of constable Dayanand. He stated that after investigation, charge-sheet (Exhibit Ka-15) was submitted by S.I. Vijendra Singh whose signatures he could recognise. PW-6 proved the GD entry and chik FIR by recognising the signature of constable Dayanand. The GD entry and the chik FIR were marked as Exhibits Ka-16 and Ka-17. He produced the clothes of the deceased, the recovered knife and key chain; which were marked as material exhibits 1, 2 and 3. In his cross-examination, PW-6 stated that he has no knowledge whether S.I. Vijendra Singh (I.O.) is dead or alive and that he has no knowledge as to where S.I. Vijendra Singh resides. PW-6 admitted that he had not signed any of the memorandums proved by him. He also stated that he does not remember as to when he left the police station for the various stages of the investigation though he stated that with him S.I. Vijendra Singh, Constable Ram Ratan Singh, Dheer Singh, Prahlad Singh were there. He stated that he is not aware whether there is entry of that in the GD or not. He stated that at that time, alongwith them, informant and deceased's son Om Prakash was there. He stated that after recovery, the dead body was not brought to the police station but was straightaway sent for autopsy as it was in a decomposed state and emitting foul odour. He stated that neither in the inquest report nor in any other paper his signatures are there. PW-6 denied the suggestion that the accused were arrested after recovery of the body. He also denied the suggestion that after recovery of the body, same was brought to the police station and thereafter sent for post-mortem. He denied the suggestion that all papers in connection with the case were prepared while sitting at the police station. 15. Incriminating material appearing in the prosecution evidence were put to all the accused. The accused denied the incriminating material including the alleged recovery by claiming it to be false and bogus and claimed that they had been falsely implicated. The accused, however, led no evidence in defence. TRIAL COURT FINDINGS 16. 15. Incriminating material appearing in the prosecution evidence were put to all the accused. The accused denied the incriminating material including the alleged recovery by claiming it to be false and bogus and claimed that they had been falsely implicated. The accused, however, led no evidence in defence. TRIAL COURT FINDINGS 16. The trial Court found that from the prosecution evidence it was established that the deceased was taken from his shop by the accused-appellants on 29.9.1990; that the accused-appellants and the deceased were seen together in the evening; that thereafter the deceased was not seen alive; that at the pointing out of the accused-appellants Subhash and Parshuram, the body of the deceased was recovered; that the autopsy report suggested that the deceased was killed by infliction of stab wound/incised wound from a knife; that the knife was recovered on the pointing out of the accused-appellant Subhash Chandra; that the key chain of the deceased was recovered at the instance of the accused Nanhi who was seen in the company of the deceased and the other accused, when the deceased was last seen alive; that the autopsy report suggested that the deceased died on or about the day when he went missing and was last seen with the accused therefore, all the circumstances formed a complete chain pointing towards the guilt of the accused and as there was no proper explanation forthcoming from the accused-appellants, in respect of the incriminating circumstances, they were liable to be convicted for the offences for which they were charged. 17. We have heard Sri Pawan Kumar Dubey for the appellants in both the appeals and Sri Gaurav Pratap Singh, Brief Holder, alongwith Sri J.K. Upadhyay, learned A.G.A., for the State and have perused the record carefully. SUBMISSIONS ON BEHALF OF THE APPELLANTS 18. Learned counsel for the appellants submitted that the First Information Report was lodged by Shyama Charan (the brother of the deceased) who has not been examined as a witness therefore, its contents are not to be read in evidence. The First Information Report discloses the name of only two eye-witnesses, namely, Omveer (PW-1) and Ram Prasad (PW-4) as the persons who saw the deceased in the company of the accused. These two witnesses, namely, Omveer and Ram Prasad have been declared hostile therefore, there is no evidence worthwhile of the deceased being last seen with the accused. The First Information Report discloses the name of only two eye-witnesses, namely, Omveer (PW-1) and Ram Prasad (PW-4) as the persons who saw the deceased in the company of the accused. These two witnesses, namely, Omveer and Ram Prasad have been declared hostile therefore, there is no evidence worthwhile of the deceased being last seen with the accused. In so far as the testimony of Shiv Kumar (PW-2) and Pati Ram (PW-3) is concerned, they were barely 10 years old on or about the date of the incident and were residing in the village at that time, whereas the deceased went missing from his shop at Jalalabad therefore, the testimony of PW-2 and PW-3 is not at all reliable in so far as the evidence of the deceased being last seen in the company of the accused-appellants is concerned. In respect of the alleged recoveries, it was urged that the recovery has not been proved by any of the witnesses of the recovery memo; the I.O., who effected the recovery, namely, S.I. Vijendra Singh, has not been examined; and PW-6 who has sought to prove the recovery memos is admittedly not a signatory to any of the recovery memos, therefore, the recovery is nothing but a waste paper and cannot be relied upon. Moreover, the recovery of the dead body has no disclosure statement in support thereof. Further, the disclosure statement has neither been proved nor exhibited. Even the investigating officer has not been examined to prove any disclosure statement therefore such recovery is inconsequential. Otherwise also, from the statement of PW-2 and PW-3 it appears that the body was recovered even before the accused were arrested. Thus, the recovery of the body at the instance of the accused is nothing but bogus. It has been submitted that, under the circumstances, the findings returned by the trial Court that the incriminating circumstances stood proved and formed a complete chain is nothing but perverse and is liable to be set aside. It is consequently prayed that the judgment and order of the trial Court be set aside and the appellants be acquitted. SUBMISSIONS ON BEHALF OF STATE 19. Per contra, the learned A.G.A. submitted that even though the investigating officer was not examined but the recovery/the memorandum has been proved by PW-6 who was a member of the team that had visited the spot to effect the recovery. SUBMISSIONS ON BEHALF OF STATE 19. Per contra, the learned A.G.A. submitted that even though the investigating officer was not examined but the recovery/the memorandum has been proved by PW-6 who was a member of the team that had visited the spot to effect the recovery. Even PW-2 proved the recovery and in the memorandum of recovery, the presence of PW-2 is disclosed. Once recovery of the body, being a clinching circumstance, has been proved it points towards the guilt of the accused-appellants. Further, the prosecution has proved that the deceased was taken from his shop by the accused and was not seen alive thereafter. Consequently, it is established that the accused had taken the deceased from his shop to visit Dussehra Mela and was last seen alive in the company of the accused; whereafter, the body of the deceased with ante-mortem injuries, suggesting a case of homicide, was recovered on the pointing out of the accused hence, the chain of circumstances stood complete pointing towards the guilt of the appellants. Thus, in the event of there being no explanation as to when the accused parted company of the deceased, the conviction recorded by the trial Court deserves to be sustained. ANALYSIS 20. Having noticed the rival submissions and the prosecution evidence, what stands out is that there is no direct evidence of murder. In so far as the charge of offence punishable under Section 364 IPC is concerned, the accused have been acquitted. The case therefore turns on circumstantial evidence. Before we proceed further, it would be useful to notice the legal principles that are to be borne in mind when an accused can be held guilty on the basis of evidence circumstantial in nature. In Hanumat Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 , which has been consistently followed and elaborated from time to time, the Supreme Court observed: ''it is well-settled that to sustain a conviction, where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of circumstances so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In Vijay Shankar v. State of Haryana, (2015) 12 SCC 644 , the Supreme Court following its earlier decisions including the much celebrated decision in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 and Bablu v. State of Rajasthan, (2006) 13 SCC 116, reiterating the law, held that ''the normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence''. Further, in Sharad Birdhichand Sarda's case (supra), in paragraph 153, it was observed that the circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby they 'must or should' and not 'may be' established. 21. In addition to above, we must bear in mind the most fundamental principle of criminal jurisprudence, which is, 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 (vide Shivaji Sahabrao Bobade and another v. State of Maharashtra, (1973) 2 SCC 793 ). 22. 22. These settled legal principles have again been reiterated in a three-judge Bench decision of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 and it was held (vide paragraph 19) that where two views are possible on the case, one pointing to the guilt of the accused and the other his innocence, the accused is indeed entitled to have the benefit of one which is favourable to him. 23. In the instant case, the circumstances on the basis of which the prosecution seeks to bring home the charge, inter alia, are that the deceased was taken from his shop at Jalalabad by appellants Subash and Parashu Ram to visit Dussehra Mela at or about 12 noon of 29.9.1990; thereafter, the deceased was seen in the company of the four accused at or about 6.30 p.m. of 29.9.1990 going towards Nagariya from Barah Pathhar Chauraha and, thereafter, was not seen alive. Whereafter, his body was recovered on the pointing out of accused Subash and Parashu Ram on 5.10.1990 from a grove of one Mukut Singh. And the autopsy confirmed the case of homicide, with the use of sharp-edged weapon as also the possibility of death to have occurred on or about the time when the deceased was last seen alive with the accused. That apart, there was recovery of knife on the pointing out of accused Subash and of key chain of the deceased on the pointing out of accused Nanhi, which, according to the prosecution completed the chain. Thus, broadly speaking, there are two types of incriminating circumstances, one is of last seen and the other of recovery. We shall deal with both. But, before we proceed to analyse the prosecution evidence to find out whether the incriminating circumstances have been proved beyond doubt and whether they constitute a chain so complete that it leads us to infer that in all human probability the crime was committed by the accused and no other, it would be useful to first notice the law with regard to the incriminating value of the circumstance of the deceased being last seen alive with the accused. 24. 24. Ordinarily, the circumstance of the deceased being last seen alive with the accused alone may not be sufficient to record conviction (vide Nizam v. State of Rajasthan, (2016) 1 SCC 550 ; Navneetakrishnan v. State, (2018) 16 SCC 161 ; and Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 ) but, it is an important link in the chain of circumstances that could point towards the guilt of the accused with some certainty. 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 time gap and possibility of other persons coming in between exists (vide State of U.P. v. Satish, (2005) 3 SCC 114 ). In Ramreddy Rajesh Khanna Reddy and another v. State of A.P., (2006) 10 SCC 172 , following the decisions in State of U.P. v. Satish (supra) and Bodhraj v. State of J & K, (2002) 8 SCC 45 , in paragraph 27 of the judgment, it was held that ''the last seen theory, furthermore, comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. Even in such cases the Courts should look for some corroboration.'' 25. Having noticed the law, we now proceed to evaluate and analyse the evidence led by the prosecution, detailed above. What stands out in the prosecution evidence is that the deceased had a shop at Jalalabad. The First Information Report was lodged by the brother of the deceased, namely, Shyama Charan. In the First Information Report, Shyama Charan had stated that on 29.9.1990, the deceased was taken from his shop at Jalalabad at around 12 noon and was seen by PW-1 (Omveer) in the company of accused Subhash, Parshuram and two ladies. The First Information Report was lodged by the brother of the deceased, namely, Shyama Charan. In the First Information Report, Shyama Charan had stated that on 29.9.1990, the deceased was taken from his shop at Jalalabad at around 12 noon and was seen by PW-1 (Omveer) in the company of accused Subhash, Parshuram and two ladies. The FIR also alleges that in the evening, on 29.9.1990, at 6.30 p.m., these four accused were seen with the deceased going from Barah Pathar Chauraha to Nagaria by Ram Prasad (PW-4) and, thereafter, the deceased was not seen alive. The FIR does not mention that any other person had seen the deceased in the company of the accused on 29.9.1990. Importantly, this First Information Report was lodged on 4.10.1990 i.e. five days after the deceased had gone missing yet, it does not make a mention of any other person having seen the deceased with the accused except PW-1 and PW-4. 26. Notably, PW-1, though, initially, sought to support the prosecution case but, in his cross-examination, he did not support it and was declared hostile. What is important is that Omveer (PW-1) is not a person who worked for the deceased or was an associate of the deceased. At the time of giving his statement-in-chief on 8.1.2001, he was aged 26 years therefore, on the date of the incident he must be about 15 years old. In his cross-examination, which took place seven years later, he stated that at that time he was a student. He stated that his father also had a Sarafa shop which was three shops away from shop of the deceased. He stated that as it was a Dussehra holiday, he had come to his father's shop. In these circumstances, PW-1 is nothing but a chance witness. Moreover, during cross-examination, PW-1 did not support the prosecution case and stated that he had not witnessed any incident and was declared hostile. In our view, though, hostile witness testimony may be accepted to the extent it corroborates the prosecution case but he being merely a chance witness and declared hostile, it would be unsafe to place reliance on his testimony to record a definite finding that the deceased, on 29.9.1990, was taken from his shop by the accused-appellants and was noticed in the company of the accused-appellants. 27. 27. The other witness Ram Prasad (PW-4) whose name is mentioned in the First Information Report did not support the prosecution case from the very beginning and was declared hostile therefore, his testimony is of no significance. 28. The other two witnesses, namely, PW-2 and PW-3 are sons of the deceased and they were not cited as witnesses in the First Information Report. No doubt, not mentioning a witness name in the FIR is not a determining factor affecting his testimony, particularly, where there is no doubt in respect of his presence at the scene of occurrence. But, here, what is important is that both PW-2 and PW-3 have admitted that they resided in the village with their mother whereas their father had a shop at Jalalabad from where he allegedly went missing. Further, the statement of PW-3, who claims himself to be elder to PW-2, indicates that at the time of the incident he was a student of Class 5 and his brother Shiv Kumar was a student of Class 3 and both used to study in a school in the village whereas the deceased went missing from his shop at Jalalabad. The possibility of these witnesses being set up and tutored, as per the suggestion of the defence, is highly probable, more so, because their names do not figure in the FIR as persons who witnessed any of the incriminating circumstances in spite of the fact that the FIR was lodged five days after the deceased had gone missing. Otherwise also, from a perusal of their testimony as a whole, it appears, their deposition in respect of the last seen circumstance is hearsay and not on their personal knowledge. Under these circumstances, in our view, there is no reliable or cogent evidence to prove the circumstance that the deceased was last seen alive in the company of the accused-appellants as set out by the prosecution. 29. In so far as the evidence of recovery of the body of the deceased at the instance of the appellants Subash Chandra and Parshuram is concerned, what is important is that the recovery has been effected by the investigating officer-S.I. Vijendra Singh on the basis of joint confessional statement of Subhash Chandra and Parshuram. Neither the confessional/disclosure statement has been proved/exhibited nor the investigating officer who recorded the same and effected the recovery has been examined. Neither the confessional/disclosure statement has been proved/exhibited nor the investigating officer who recorded the same and effected the recovery has been examined. The constable Jamadar Singh (PW-6) who has been examined to prove the memorandum of recovery is admittedly not a signatory of that memorandum and is not a witness of any disclosure made by the accused. Notably, the witnesses of that memorandum, namely, Deshraj and Nathulal, have not been examined. When we go through the memorandum it appears that both the accused, namely, Subhash Chandra and Parashuram, accompanied the police team to the spot where the body was lying half buried with the knee and feet visible and from there the body was taken out with the help of the villagers. As the disclosure statement is not proved, whether the body was recovered on the basis of information provided by Subhash Chandra or Parshuram or somebody else is anybody's guess. The constable Jamadar Singh, who was part of that team does not state that the disclosure statement was made in his presence. PW-6 does not even state that the accused had pointed out the spot and, thereafter, the villagers had excavated the body. Thus, there appears no substantive evidence except the recovery memo to prove the recovery of the body. In so far as the recovery memo is concerned, none of its witnesses has been examined to prove that what was written there was witnessed by him. Interestingly, PW-6 has not stated that he had prepared the recovery memo and, most importantly, he had not signed any of the documents in connection with the case. Whereas, the recovery has been specifically challenged by the accused in their statement under Section 313 CrPC. In these circumstances, the recovery memo is not conclusive that the recovery was made on the basis of the information received from the accused-appellants. 30. What is also important to note is that in the recovery memorandum it is mentioned that the family members of the deceased were also present at the time of the recovery. PW-2, namely, the son of the deceased, in his statement-in-chief, states that he and his family members had searched for his father and then had discovered his father's body seven days later. PW-2, namely, the son of the deceased, in his statement-in-chief, states that he and his family members had searched for his father and then had discovered his father's body seven days later. Whereas, PW-3 another son of the deceased stated : ^^lqHkk"k eqyfte esjs ?kj ij x;k Fkk o mlus crk;k Fkk fd esjs firk jke jru dh yk’k feyhA lqHkk"k esjs ?kj ij x;k o esjs firk dks ढqaढokrk jgk FkkA lqHkk"k eqyfte ?kVuk ds 4 fnu ckn esjs xkao ch?kkiqj x;s FksA^^ Both PW-2 and PW-3 stated that after recovery of the body, Subash Chandra came to their house and had confessed his guilt. These statements of PW-3 and PW-2 would suggest that the body was discovered earlier than the day Subhash was arrested. We are, therefore, of the considered view that the recovery of body on 5.10.1990, at the instance of accused appellants, has not been proved beyond doubt. 31. In so far as the circumstance of recovery of the knife is concerned, the knife admittedly carried no blood-stains and is not forensically connected with crime. Moreover, the length of the blade of that knife, as mentioned, is equivalent to the thickness of 5 fingers which is not large as to draw any kind of suspicion from its mere possession, as such a knife is commonly available. Moreover, no disclosure statement has been proved to demonstrate that recovery was a consequence of such disclosure. Consequently, the recovery of the knife, in our view, is inconsequential. 32. In so far as the recovery of the key chain of the deceased at the instance of the accused Nanhi is concerned, firstly, the said recovery is not proved by examination of the I.O., secondly, PW-6 states that the recovery was made from verandah of Nanhi's house whereas the memo of recovery suggests that it is from Shamshaan (funeral ground) and, thirdly, we fail to understand as to why Nanhi would hide key chain at any place. Moreover, this recovery is not on the basis of any proven disclosure statement to connect it with the crime. For all the reasons above, we discard the evidence of recovery of key chain. 33. At this stage, we may notice the statement of PW-2 and PW-3 with regard to the accused Subhash Chandra having confessed his guilt before them. As per allegations, the accused Subhash had confessed his guilt after recovery of the body. For all the reasons above, we discard the evidence of recovery of key chain. 33. At this stage, we may notice the statement of PW-2 and PW-3 with regard to the accused Subhash Chandra having confessed his guilt before them. As per allegations, the accused Subhash had confessed his guilt after recovery of the body. If that was so, the recovery of the body itself is doubtful at the instance of accused Subhash and since it is stated to be on joint disclosure of Subash and Parshu Ram, the same becomes completely unreliable. Thus, viewed from any angle not only the recovery of dead body of the deceased at the instance of the accused Subash and Parshu Ram is doubtful but even the alleged confession becomes completely unreliable as to form a link to the alleged chain of circumstances set up by the prosecution. Otherwise also, alleged confession before PW-2 and PW-3 makes no sense; firstly, because both PW-2 and PW-3 were minor when those confessions were allegedly made therefore, what purpose such confession would serve and, secondly, the time and place of such confession has not been specified. Further, PW-2 stated that confession was made after recovery of the body, if it was so, then the entire prosecution case is falsified. All of this would suggest that PW-2 and PW-3, who were minor at the time their father died, have been set up and tutored. 34. Having analysed the entire prosecution evidence above, we are of the considered view that the prosecution has failed to prove beyond reasonable doubt that the deceased was taken from the shop by the accused-appellants or that he was last seen alive in the company of the accused appellants. Further, the alleged recoveries have not been proved beyond reasonable doubt. Consequently and for all the reasons above, we have no hesitation in allowing both the appeals by extending the benefit of doubt to the accused-appellants. Both the appeals are allowed. The judgment and order of the trial Court convicting and sentencing the appellants, as above, is set aside. The accused-appellants are acquitted of the charges for which they have been tried and convicted. The appellants Khilauna and Nanhi are on bail. They need not surrender, subject to fulfilment of the requirement of Section 437-A Cr.P.C. to the satisfaction of the Court below. The accused-appellants Subhash Chandra and Parshuram are in jail. The accused-appellants are acquitted of the charges for which they have been tried and convicted. The appellants Khilauna and Nanhi are on bail. They need not surrender, subject to fulfilment of the requirement of Section 437-A Cr.P.C. to the satisfaction of the Court below. The accused-appellants Subhash Chandra and Parshuram are in jail. They shall be set at liberty forthwith subject to compliance of the provisions of Section 437-A Cr.P.C. to the satisfaction of the Court below. 35. The certified copy of this judgment alongwith the record shall be transmitted to the Court below for information and compliance.